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EXHIBIT 4.4
BUDGET RENT A CAR CORPORATION
EMPLOYEE RETIREMENT PLAN
FOR COLLECTIVELY BARGAINED EMPLOYEES
(AS AMENDED AND RESTATED EFFECTIVE JULY 1, 1990)
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BUDGET RENT A CAR CORPORATION
EMPLOYEE RETIREMENT PLAN
FOR COLLECTIVELY BARGAINED EMPLOYEES
ARTICLE I
INTRODUCTION
The Budget Rent a Car Corporation Employee Retirement Plan for
Collectively Bargained Employees is amended and restated effective July 1, 1990
as provided herein. The Plan was originally established effective July 1, 1988,
as the Budget Rent a Car of Chicago Employee Retirement Plan for Collectively
Bargained Employees. The Plan was amended effective July 1, 1990 to permit
participation by eligible employees of collective bargaining units in Detroit,
New Orleans and Nashville. The Plan is intended to qualify under Code Section
401(a) and to satisfy the requirements of Code Section 401(k). Except as may be
required by ERISA or the Code, the rights of any person whose status as an
Employee has terminated shall be determined pursuant to the Plan is in effect on
the date such employment terminated, unless a subsequently adopted provision of
the Plan is made specifically applicable to such person.
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ARTICLE II
DEFINITIONS
The following terms have the respective meanings set forth below when
capitalized in the Plan, unless another meaning is specified in the Plan:
"Accounts" means the following accounts (and any subaccounts
established thereunder) established and maintained for each Participant pursuant
to Article VI, representing a Participant's allocable share of the Trust Fund:
(a) "Participant Deferral Account," for amounts
attributable to Compensation Deferral Contributions;
(b) "After-Tax Contributions Account," for amounts
attributable to After-Tax Contributions;
(c) "Matching Contributions Account," for amounts
attributable to Matching Contributions; and
(d) "Rollover Account," for amounts attributable to
rollovers of amounts rolled over to the Plan pursuant to Section 4.5.
"Active Participant" means any Eligible Employee who has satisfied the
participation requirements set forth in Article III and has a Compensation
deferral agreement currently in effect.
"Actual Deferral Percentage Tests" means the tests described in Section
4.2.
"Affiliated Company" means any corporation or enterprise which is a
member of the same controlled group of corporations, group of trades or
businesses under common control or affiliated service group, determined in
accordance with Code Sections 414(b), (c), (m) or (o), as the Company. For
purposes of Article XIII, Code Sections 414(b) and (c) are modified by Code
Section 415(h).
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"After-Tax Contributions" means the voluntary non-tax-deferred
contributions made by a Participant under Section 4.4.
"Beneficiary" means the person or persons designated under Section
8.3(b) to receive the interest of a deceased Participant.
"Board of Directors" means the Board of Directors of the Sponsor as it
may from time to time be constituted or the Executive Committee of the Board of
Directors (if duly authorized to act for and in place of the Board of
Directors).
"Break in Service" means a Computation Period during which an Employee
does not complete more than 500 Hours of Service. A Break in Service shall occur
on the last day of such Computation Period if the Employee is not then employed
by the Company or an Affiliated Company.
(a) Solely for purposes of determining whether an
Employee incurs a Break in Service, the following provisions of this definition
shall apply with respect to an Employee who is absent from work for any period
by reason of the pregnancy of the Employee, by reason of the birth of a child of
the Employee, by reason of the placement of a child with the Employee in
connection with the adoption of the child by the Employee, or for purposes of
caring for the child for a period beginning immediately following the birth or
placement. Such Employee shall provide the Committee with such timely
information as it shall reasonably require to establish the number of days in
the period of absence and that the absence is for the reasons described in this
paragraph.
(b) The Hours of Service credited to an Employee
described in paragraph (a) shall be the Hours of Service which otherwise would
have been credited to the Employee but for the absence or, if the Committee
determines that such number is not capable of being
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determined, eight Hours of Service per day; provided that the total number of
Hours of Service credited under this paragraph shall not exceed 501, and these
Hours of Service shall be taken into account solely for purposes of determining
whether or not the Employee has incurred a Break in Service.
(c) The Hours of Service credited under paragraph (b)
shall be credited to the Computation Period in which the absence begins if
needed to prevent a Break in Service in that Plan Year, and in any other case,
in the immediately following Computation Period.
"Code" means the Internal Revenue Code of 1986, as in effect on the
Effective Date and as thereafter amended from time to time.
"Committee" shall mean the committee described in Article IX.
"Company" shall mean the Sponsor and any Affiliated Company which
adopts this Plan pursuant to Section 16.1.
"Company Contributions" means contributions described in Section 5.1.
"Compensation" means:
(a) All remuneration payable on periodic paydays to a
Participant during a Plan Year by reason of services performed as an Active
Participant, including regular earnings, overtime, commissions, bonuses and sick
pay (to the extent includible in taxable income of the Participant) paid by the
Company and any elective pre-tax contribution made on his or her behalf by the
Company under a Code Section 401(k) plan or a Code Section 125 cafeteria plan,
but excluding short-term disability payments, long-term disability payments,
clothing allowances, moving allowances, amounts paid to employees who decline
medical and dental or reduce life insurance, and the value of any life
insurance.
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(b) For purposes of Article XIII, all wages, salaries,
and other amounts received by an Employee for personal services actually
rendered in the course of employment with the Company and any Affiliated Company
to the extent that the amounts are included in gross income; such term shall
include those items listed in Treasury Regulation Section 1.415-2(d)(1) but
shall not include those items listed in Treasury Regulation Section
1.415-2(d)(2).
(c) For purposes of the definitions of Highly Compensated
Employee, Family Group and Family Member and Sections 4.2, 5.2 and Article XV,
"Compensation" means "Compensation" as defined in paragraph (b) plus any
elective pre-tax contributions made on the Employee's behalf by the Company
under a Code Section 40t(k) plan or a Code Section 125 cafeteria plan.
Notwithstanding the foregoing, for Plan Years commencing prior to
January 1, 1994, Compensation shall not include any amount in excess of
$200,000, or such other limit imposed under Code Section 401(a)(17) (as adjusted
by the Secretary of the Treasury for increases in the cost of living); and the
rules of Code Section 414(q)(6) shall apply, except that the term "family" shall
only include the spouse of the Employee and any lineal descendants of the
Employee who have not attained age 19 before the close of the year. For Plan
Years beginning on or after January 1, 1994, the annual Compensation of each
Employee taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
Adjusted by the Secretary of Treasury for increases in the cost of living in
accordance with Code Section 401(a)(17)(B). The cost-of-living adjustment in
effect for a calendar year applies to any period, not exceeding 12 months, over
which Compensation is determined (determination period) beginning in such
calendar year. If a determination period
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consists of fewer than 12 months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under Code Section 401(a)(17) shall mean the OBRA
'93 annual compensation limit set forth in this provision.
"Compensation Deferral Contributions" means contributions described in
Section 4.1(a).
"Computation Period" means, for purposes of determining an Employee's
eligibility to participate in the Plan, the 12 month period commencing on the
later of (a) the Employee's Employment Commencement Date or (b) the first pay
period as of which the Employee becomes covered by an applicable collective
bargaining agreement. In the case of an Employee who does not complete 1,000
Hours of Service during such 12 month period, subsequent Computation Periods for
such purposes shall be the 12 month period beginning on the first anniversary of
the date the initial Computation Period began and succeeding anniversaries
thereof.
"Contribution Percentage Tests" means the tests described in Section
5.2.
"Early Retirement Date" means, if applicable, the date on which a
Participant has satisfied the requirements for early retirement set forth in the
applicable Schedule to Appendix 1.
"Effective Date" means July 1, 1990.
"Eligible Employee" means any Employee who is:
(a) employed at a location of the Company on or after its
respective date of participation in the Plan as set forth in Appendix 1; and
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(b) covered by the terms of a collective bargaining
agreement under which retirement benefits have been the subject of good faith
bargaining and which calls for such Employee's eligibility for participation in
this Plan.
"Employee" means:
(a) any person actively employed as a common law employee
in any capacity by the Company or an Affiliated Company who is scheduled to work
at least one thousand (1,000) Hours a year; and
(b) any Leased Employee; provided, that if Leased
Employees constitute less than 20% of the Company's "nonhighly compensated work
force" (within the meaning of Code Section 414(n)(5)(C)(ii)), "Employee" shall
not include Leased Employees covered by a plan described in Code Section
414(n)(5) unless otherwise provided by the terms of the Plan.
"Employment Commencement Date" means the date on which an Employee
first performs an Hour of Service. In the case of an Employee who is reemployed
after he incurs a Break in Service, "Employment Commencement Date" means the
date on which the Employee again performs an Hour of Service.
"Entry Date" means the first day of each January, April, July and
October and the first date as of which participation was offered to specific
bargaining units, as set forth in the applicable schedule to Appendix 1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Family Group" means all Family Members of a Highly Compensated
Employee who is a Five-Percent Owner or who is a member of the group consisting
of the ten employees of the Company and all Affiliated Companies paid the
greatest Compensation during the Plan Year. If
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two or more Family Groups include common Family Members, such Family Groups
shall be aggregated as one Family Group.
"Family Member" means a Highly Compensated Employee who is a
Five-Percent Owner or who is a member of the group consisting of the ten
employees of the Company and all Affiliated Companies paid the greatest
Compensation during the Plan Year, and any individual who is the spouse, lineal
ascendant or descendant, or the spouse of a lineal ascendant or descendant, of
such Five-Percent Owner or a member of the group consisting of the ten employees
of the Company and all Affiliated Companies paid the greatest Compensation
during the Plan Year.
"Five-Percent Owner" means an Employee described in Code Section
416(i)(1).
"Gap Period" means the period of time between the end of the Plan Year
and the last day of the month immediately preceding the date on which excess
Compensation Deferral Contributions and After-Tax Contributions are distributed
to a Highly Compensated Employee and excess Matching Contributions are treated
as forfeitures.
"Highly Compensated Employee" means, for the current Plan Year (the
"Determination Year"), an Employee who was an Active Participant at any time
during the Plan Year and who:
(a) during the preceding Plan Year:
(i) was a Five-Percent Owner; or
(ii) received Compensation in excess of $75,000
(as adjusted annually for increases in the cost of living by the Secretary of
the Treasury); or
(iii) received Compensation in excess of $50,000
(as adjusted annually for increases in the cost of living by the Secretary of
the Treasury) and was among the top 20% of Employees when ranked on the basis of
Compensation paid for that year; or
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(iv) was an officer of the Company or an
Affiliated Company and received Compensation in excess of one-half of the amount
in effect under Code Section 415(b)(1)(A) for that year (provided that for this
purpose, no more than 50 Employees (or if lesser the greater of three or ten
percent of all Employees) shall be treated as officers), or if there is no such
officer, was the highest paid officer of the Company or an Affiliated Company
for that year; or
(b) at any time during the Determination Year:
(i) is a Five-Percent Owner; or
(ii) is a member of a group consisting of the 100
Employees who received the greatest Compensation during that Plan Year and would
be a member of the group of Employees described in paragraph (a)(ii), (iii) or
(iv) for the Determination Year. For any Plan Year, the Committee may, to the
extent permitted by law, elect to apply the provisions of this paragraph (b)(ii)
without regard to the limitation of the group to 100 Employees.
To the extent required by Code Section 414(q)(9), a former Employee who
was a Highly Compensated Employee when he separated from service with the
Company and all Affiliated Companies or at any time after attaining age 55 shall
be treated as a Highly Compensated Employee.
"Highly Compensated Family Member" means a Family Member who is a
Highly Compensated Employee without application of the family aggregation rules
of Code Section 414(q)(6).
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"Hour of Service" means:
(a) Each hour for which an Employee is paid or entitled
to payment by the Company or an Affiliated Company for the performance of
services as an Employee. For purposes of this definition, overtime work shall be
credited as straight time.
(b) Each hour in or attributable to a period of time
during which the Employee performs no duties (irrespective of whether he has
terminated his employment) due to a vacation, holiday, illness, incapacity,
Leave of Absence, jury duty or military duty for which he is so paid or so
entitled to payment, whether direct or indirect. However, no such hours shall be
credited if the Employee is directly or indirectly paid or entitled to payment
for such hours under a plan maintained solely for the purpose of complying with
applicable worker's compensation, unemployment compensation or disability
insurance laws.
(c) Each hour in or attributable to a period of time
during which the Employee is not paid or entitled to payment and performs no
duties due to Leave of Absence or service in the Armed Forces of the United
States (other than by voluntary enlistment or commission), if such Employee's
duties for the Company are resumed immediately upon the expiration or
termination of Leave of Absence or within 90 days after release from the Armed
Forces. With respect to any such unpaid absence, an Employee shall be deemed to
complete Hours of Service at his customary work schedule prior to the
commencement of such absence.
(d) Each hour for which the Employee is entitled to back
pay, irrespective of mitigation of damages, whether awarded or agreed to by the
Company, provided that such Employee is not also credited with an Hour of
Service with respect to such hour under paragraph (a), (b) or (c) above.
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The Hours of Service, if any, for which an Employee is credited for a period in
which he performs no duties shall be calculated in accordance with Department of
Labor Regulation ss. 2530.200b-2 and other applicable regulations promulgated by
the Secretary of Labor. Hours of Service shall be credited to the appropriate
Computation Period according to Department of Labor Regulation ss.
2530.200b-2(c). However, an Employee will not be considered as being entitled to
payment until the date the Company would normally make payment to the Employee
for such Hour of Service. Hours of Service will be determined on the basis of
months worked. An Employee will be credited with one hundred ninety (190) Hours
of Service if under the Plan such Employee would be credited with at least one
(1) Hour of Service during the month; provided, however, that no more than 501
Hours of Service shall be credited to an Employee pursuant to this definition on
account of any single continuous period during which the Employee performs no
duties.
"Leased Employee" means any individual who is not a common law employee
of the Company or an Affiliated Company who provides services for the Company or
an Affiliated Company if:
(a) such services are provided pursuant to an agreement
between the Company or an Affiliated Company and any other person;
(b) such individual has performed such services for the
Company or an Affiliated Company (or a related person within the meaning of Code
Section 144(a)(3)) on a substantially full-time basis for a period of at least
one year; and
(c) such services are of a type historically performed by
employees in the business field of the Company or an Affiliated Company.
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"Leave of Absence" means a period of temporary absence approved by the
Company in accordance with Company policy.
"Matching Contributions" means the Company Contributions described in
Section 5.1(c).
"Nonhighly Compensated Employee" means, for any Plan Year, any Employee
who (a) was an Active Participant at any time during the Plan Year, and (b) was
not a Highly Compensated Employee for such Plan Year.
"Normal Retirement Date" means a Participant's 65th birthday.
"One-Percent Owner" means an Employee described in Code Section
416(i)(1).
"Participant" means any person for whom an Account is maintained under
this Plan and whose vested Account balance has not been distributed in full.
"Plan" means the Budget Rent a Car Corporation Retirement Plan for
Collectively Bargained Employees originally adopted effective July 1, 1988, and
as it may be amended from time to time.
"Plan Administrator" means the administrator of the Plan, within the
meaning of ERISA Section 3(16)(A). The Plan Administrator shall be the Committee
provided for in Article IX.
"Plan Year" means the period beginning on the Effective Date and ending
on December 31, 1990, and each 12 month period thereafter.
"Rollover Contribution" means (i) all or a portion of an eligible
rollover distribution received by an Employee from another qualified plan which
is transferred by the Employee to this Plan within 60 days following his receipt
thereof, or which is paid directly from the other qualified plan to this Plan at
the election of the Employee; (ii) amounts transferred to this Plan from a
conduit individual retirement account which has no assets other than assets (and
the earnings thereon) which were previously distributed to the Employee by
another qualified plan
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as an eligible rollover distribution and deposited in such conduit individual
retirement account within 60 days of receipt thereof; and (iii) amounts
distributed to the Employee from a conduit individual retirement account meeting
the requirements of clause (ii) above, and transferred by the Employee to this
Plan within 60 days of his receipt thereof.
"Sponsor" means Budget Rent a Car Corporation, a Delaware corporation.
"Spouse" means the person to whom a Participant is legally married.
"The 1.25 Test" is the test described in Sections 4.2 and 5.2.
"The 2.0 Test" is the test described in Sections 4.2 and 5.2.
"Total and Permanent Disability" exists if the Committee determines
that the individual is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment expected to
either result in death or be of long continued duration. An individual's
disabled status shall be determined by the Committee, based on the certificate
of a medical doctor satisfactory to the Committee, and shall be further subject
to any additional provisions set forth in an applicable Schedule to Appendix 1.
"Trust" or "Trust Fund" means the assets of the trust established under
the Trust Agreement.
"Trust Agreement" means the one or more trust agreements entered into
by the Sponsor with the Trustees in accordance with the provisions of Article
VII for the purpose of holding contributions and earnings under the Plan.
"Trustee" means any bank or insurance company with whom the Sponsor has
entered into an agreement for the purpose of holding assets of the Trust Fund,
and any successor acting as a trustee of the Trust Fund. Any Trustee shall be
appointed or removed by the Board of Directors.
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"Valuation Date" means the last day of each month, and such other dates
as the Committee may determine, as of which dates the value of the Trust Fund
and of Accounts shall be determined.
"Year of Service" means a Computation Period during which an Employee
completes 1,000 or more Hours of Service. An Employee shall in no event be
deemed to accrue more than one full fear of Service with respect to any
Computation Period. An Employee's Years of Service shall include service in
Computation Periods beginning prior to the Effective Date.
"Year of Vesting Service" means:
(a) The 12 month period beginning on an Employee's
Employment Commencement Date and anniversaries thereof during which an Employee
completes 1,000 or more Hours of Service. In the case of an Employee who incurs
a Break in Service, any subsequent period for determining additional Years of
Vesting Service shall begin on the date he again performs one (1) Hour of
Service and each anniversary thereof.
(b) Unless otherwise specified by the Committee, for
purposes of vesting under the Plan, an Employee shall be credited with Years of
Vesting Service for a company (which becomes an Affiliated Company) for periods
prior to the date on which such company becomes an Affiliated Company or part of
an Affiliated Company or the Company. In no event, however, shall an Employee be
credited with Years of Service or Years of Vesting Service for a franchise of
the Company for a period during which he is not an Employee, or for periods
prior to the Computation Period in which the Employee attained age eighteen
(18).
(c) Notwithstanding the foregoing provisions of this
definition, in the case of any Employee who incurs a Break in Service and is
reemployed by the Company or an Affiliated Company, but who, immediately
preceding such Break, did not have any nonforfeitable right
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under the Plan to his Accounts attributable to Company Contributions, if the
number of such Employee's consecutive Breaks in Service equals or exceeds the
greater of (i) five, or (ii) the number of his Years of Vesting Service accrued
prior to said Breaks in Service, then such prior Years of Vesting Service shall
not be taken into account under this Plan for any purpose. In applying this
definition, an Employee's Years of Vesting Service prior to a Break shall be
deemed not to include any Years of Vesting Service that are not required to be
taken into account under this definition by reason of any prior Break in
Service.
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ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 COMMENCEMENT OF PARTICIPATION.
Except as provided in Section 3.2, every Eligible Employee who was
eligible to participate in this Plan on June 30, 1990 shall continue as an
Eligible Employee, and every Active Participant on June 30, 1990 shall continue
as an Active Participant on the Effective Date subject to the provisions of the
Plan. Every other Eligible Employee shall become an Active Participant on the
first Entry Date, as of which he has entered into a Compensation deferral
agreement under Section 4.1 which is coincident with or following the later of:
(a) the date he attains age eighteen (18),
(b) the date he has completed one (1) Year of Service,
(c) the effective date on which the location of the
Company or Affiliated Employer by whom he is employed commences participation in
this Plan, as specified in Schedule 1,
(d) the Effective Date, or
(e) the date on which he becomes an Eligible Employee.
3.2 CESSATION OF PARTICIPATION.
(a) A Participant shall cease to be an Eligible Employee
and Active Participant on the earlier of:
(i) the date of the Participant's transfer to a job
category with the Employer that is not covered by this Plan, or
(ii) his date of termination of employment with the
Company or an Affiliated Company, including permanent layoff.
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(b) If an Employee ceases to be an Eligible Employee he
may become an Active Participant (or again become an Active Participant) on the
Entry Date coinciding with or next following the date he satisfies the
requirements of Section 3.1.
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ARTICLE IV
EMPLOYEE CONTRIBUTIONS
4.1 COMPENSATION DEFERRAL AGREEMENT.
(a) Each Eligible Employee may at the time specified in Section
3.1 enter into a Compensation deferral agreement to have an amount equal to a
fixed whole percentage as set forth in the applicable Schedule to Appendix 1 of
his Compensation contributed to the Plan on his behalf from each regular
paycheck within the period that such Compensation deferral agreement is in
effect, except that the Committee shall determine the frequency of payroll
deductions for a Participant whose Compensation is paid less frequently than
monthly. A Compensation deferral agreement must be delivered to the Committee at
the time, in the form and in accordance with procedures established by the
Committee before the payroll date as of which Compensation deferral is to
commence.
(b) The Compensation deferral agreement shall remain in effect
until it is revoked or modified or the Participant terminates employment. Any
modification of a Compensation deferral agreement shall be effective on the
coinciding or next April 1 or October 1 (or January 1 or July 1 beginning
January 1, 1994) or, in the case of Participants paid more frequently than
monthly, the payroll date coinciding with or next following such date, except
that a Participant may completely cease making Compensation Deferral
Contributions as soon as such revocation can be processed by the Company's
payroll system. Any such revocation or modification shall be effective upon not
more than 45 days' written notice. An Active Participant who revokes his
Compensation deferral agreement may enter into a new Compensation deferral
agreement after three full calendar months have elapsed (the "Three-Month
Suspension") on the coinciding or any following Entry Date following the
Three-Month Suspension, or, in the case of Participants paid more frequently
than monthly, any
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payroll date coinciding with or following such Entry Date following the
Three-Month Suspension, upon not more than 45 days' written notice. A
Compensation deferral agreement or any revocation or modification shall be made
in such form and manner as the Committee shall prescribe or approve. A
Participant who makes a hardship withdrawal shall automatically cease making
Compensation Deferral Contributions as of the end of the payroll period
coinciding with or immediately preceding the date he makes such hardship
withdrawal, and the Participant may not make further Compensation Deferral
Contributions until at least 12 full calendar months have elapsed since he last
made a hardship withdrawal (the "Twelve-Month Suspension"). The Participant may
enter into a new Compensation deferral agreement to resume making Compensation
Deferral Contributions as of any Entry Date coinciding with or following the
Twelve-Month Suspension, or, in the case of Participants paid more frequently
than monthly, any payroll date coinciding with or following the Entry Date
following the Twelve-Month Suspension, unless he revokes or modifies his
Compensation deferral agreement pursuant to the provisions of this section.
4.2 LIMITATIONS ON COMPENSATION DEFERRAL CONTRIBUTIONS. Solely for
purposes of satisfying one of the tests prescribed in this section, the
Committee may prescribe such rules as it deems necessary or appropriate
regarding the maximum amount that a Participant may defer under Section 4.1(a)
and the timing of such an election. These rules may provide that the maximum
percentage of Compensation that a Participant may defer will be a lower
percentage of his Compensation above a certain dollar amount of Compensation
than the maximum deferral percentage below that dollar amount of Compensation.
These rules shall apply to all Active Participants, except to the extent that
the Committee prescribes special or more stringent rules applicable only to
Highly Compensated Employees.
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(a) In no event shall a Participant's Compensation
Deferral Contributions exceed $7,000 (as adjusted annually for increases in the
cost of living by the Secretary of the Treasury) for any calendar year. Such
limitation shall apply to the combined Compensation Deferral Contributions of
the calendar year in which a Participant makes a hardship withdrawal and the
next following calendar year. If any amount is included in a Participant's
income for any calendar year by reason (if the limitation in this paragraph, the
Participant may notify the Committee of the amount of such excess allocable to
this Plan by March 1 of the following year, and such excess, and any earnings
allocable thereto, shall be distributed to the Participant by April 15 of such
following year. A Participant is deemed to have notified the Plan of
Compensation Deferral Contributions in excess of the limitation in this
paragraph to the extent he has excess Compensation Deferral Contributions for a
calendar year under this Plan and any other plans of the Company and all
Affiliated Companies.
(b) Notwithstanding any other provision of the Plan:
(i) The Compensation Deferral Contributions for
a Plan Year of the Highly Compensated Employees shall be reduced and
refunded if neither of the Actual Deferral Percentage Tests set forth
in (A) or (B) below is satisfied:
(A) The 1.25 Test. The Actual Deferral
Percentage of the Highly Compensated Employees is not more
than the Actual Deferral Percentage of the Nonhighly
Compensated Employees multiplied by 1.25.
(B) The 2.0 Test. The Actual Deferral
Percentage of the Highly Compensated Employees is not more
than two percentage points greater than the Actual Deferral
Percentage of the Nonhighly Compensated Employees and the
Actual Deferral Percentage of the Highly Compensated Employees
is not
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more than the Actual Deferral Percentage of the Nonhighly
Compensated Employees multiplied by 2.0.
(ii) (A) "Actual Deferral Percentage" means
the average of the ratios of each Highly Compensated Employee's or
Nonhighly Compensated Employee's, as the case may be, Compensation
Deferral Contributions which were allocated to the Participant's
Participant Deferral Account with respect to the Plan Year, to each
such Participant's Compensation for the Plan Year.
(B) If a Highly Compensated Employee is
a member of a Family Group, such Family Group shall constitute
a single Highly Compensated Employee. The Actual Deferral
Percentage of such Family Group shall be the aggregate Actual
Deferral Percentage of all Family Members and the Actual
Deferral Percentage of each Family Member shall be disregarded
for purposes of the Actual Deferral Percentage Tests.
(iii) If neither Actual Deferral Percentage Test
is satisfied as of the end of the Plan Year, the Committee shall cause
the Compensation Deferral Contributions for the Highly Compensated
Employees to be reduced and refunded to each such Highly Compensated
Employee until either Actual Deferral Percentage Test is satisfied. The
sequence of such reductions and refunds shall begin with Highly
Compensated Employees who elected to defer the greatest percentage,
then the second greatest percentage, continuing until either Actual
Deferral Percentage Test is satisfied. Once either Actual Deferral
Percentage Test is satisfied, the Committee shall direct the Trustee to
distribute to the appropriate Highly Compensated Employees the amount
of the reduction of the Compensation Deferral Contributions of each
such Highly Compensated
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Employee together with the net earnings or losses allocable thereto
prior to the end of the Plan Year following the Plan Year in which the
excess Compensation Deferral Contributions were made.
(c) (i) Net earnings or losses to be refunded with
the Compensation Deferral Contributions shall be equal to the net earnings or
losses on such contributions for the Plan Year in which the contributions were
made plus the net earnings or losses on such contributions during the Gap
Period.
(ii) The net earnings or losses allocable to the
excess Compensation Deferral Contributions for the Plan Year shall be
determined by multiplying the net earnings or losses allocable to the
Participant's Participant Deferral Account for the Plan Year by a
fraction, the numerator of which is the amount of the Participant's
Compensation Deferral Contributions to be refunded and the denominator
of which is the balance of the Participant's Participant Deferral
Account as of the last day of the Plan Year, reduced by the net
earnings (or increased by the net loss) allocable to the Participant's
Participant Deferral Account for the Plan Year.
(iii) The net earnings or losses allocable to the
excess Compensation Deferral Contributions for the Gap Period shall be
the amount determined in accordance with (A) or (B) below, as the
Committee shall select:
(A) The amount determined by applying
the formula described in (ii) above except that the phrase
"Gap Period" shall be substituted for the phrase "Plan Year."
(B) The amount determined by
multiplying the net earnings or losses for the Plan Year
determined in subsection (ii) above times one-tenth for
22
<PAGE> 24
each month in the Gap Period, including the month in which the
refunds are distributed if the refund is distributed after the
15th day of such month.
(d) Any excess contributions distributed to a Family
Group pursuant to the reductions in paragraph (b)(iv) above shall be allocated
to each Family Member in the same proportion that such Family Member's
Compensation Deferral Contributions bear to the aggregate Compensation Deferral
Contributions of the Family Group.
(e) The Committee may restrict the Compensation Deferral
Contributions of Participants at any time if such restriction is necessary to
insure that a Participant's Annual Additions for any Plan Year will not exceed
the limitations of Article XIII and that contributions made by the Company for
any Plan Year do not exceed the maximum amount deductible for federal income tax
purposes.
4.3 RETURN OF DEFERRALS OVER $7,000.
(a) If a Participant's Compensation Deferral
Contributions exceed the limitation described in Section 4.2(a) the excess
Compensation Deferral Contributions, together with income allocable thereto (or
reasonably estimated to be allocable thereto), shall be returned to the
Participant (after withholding applicable federal, state and local taxes) on or
before the April 15 following the close of the calendar year in which such
excess contribution is made; provided, however, if there is a loss allocable to
the excess Compensation Deferral Contributions, the amount distributed shall be
the amount of the excess as adjusted to reflect such loss. Any Matching
Contributions which are attributable to any excess Compensation Deferral
Contributions and any income allocable thereto, shall either be returned to the
Company or applied to reduce future Matching Contributions.
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<PAGE> 25
(b) In accordance with rules and procedures as may be
established by the Committee, not later than March 1 of a calendar year a
Participant may submit a claim to the Committee in which he certifies in writing
the specific amount of his Compensation Deferral Contributions for the preceding
calendar year which, when added to amounts deferred for such calendar year under
other plans or arrangements described in Section 401(k), 408(k) or 403(b) of the
Code, will cause the Participant to exceed the limitation described in Section
4.2(a) for such preceding calendar year. Notwithstanding the amount of the
Participant's Compensation Deferral Contributions for such preceding calendar
year, the Committee shall treat the amount specified by the Participant in his
claim as a Compensation Deferral Contribution in excess of the limitation
described in Section 4.2(a) for such calendar year and return it to the
Participant in accordance with this section.
(c) Any Compensation Deferral Contributions in excess of
the limitation described in Section 4.2(a) which are distributed to a
Participant in accordance with this section shall, to the extent required by
regulations issued by the Secretary of the Treasury, be treated as Annual
Additions under Article XIII for the Plan Year for which the excess Compensation
Deferral Contributions were made.
4.4 AFTER-TAX CONTRIBUTIONS. To the extent provided in the
applicable Schedule for the Participant's collective bargaining unit, as set
forth in Appendix 1, may elect to contribute amounts as After-Tax Contributions
under the Plan. After-Tax Contributions shall be designated by the Participant
in writing on the form required by the Committee in whole number percentages up
to ten percent of his Compensation. An agreement to make After-Tax Contributions
to the Plan shall become effective on the next Entry Date, or, in the case of
Participants paid more frequently than monthly, the payroll date coinciding with
or next
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<PAGE> 26
following the next Entry Date, by completing and submitting such agreement at
the time, in the form and in accordance with procedures established by the
Committee, and shall remain in effect unless revoked or changed by the
Participant under the same terms and conditions as those set forth in Section
4.1(b) for revocation or modification of Compensation deferral agreements;
provided that such contributions shall automatically be revoked if the
Participant terminates or revokes his Compensation deferral agreement and the
Participant shall again be able to make After-Tax Contributions only if he
enters into a new Compensation deferral agreement.
4.5 ROLLOVERS. Subject to the Committee's approval, any amount
which a Participant has received from any other employee benefit plan (the
"Other Plan") which is qualified under Code Section 401(a) may, in accordance
with uniform and nondiscriminatory procedures adopted by the Committee, be
transferred to the Committee as a Rollover Contribution. Such Rollover
Contribution shall be paid to the Trust Fund and allocated to the Participant's
Rollover Account. A Rollover Contribution is subject to the following
conditions:
(a) The amounts received under the Other Plan must
qualify for rollover treatment under Code Section 402;
(b) The transfer of such amounts to the Committee be made
directly from the Other Plan or must occur on or before the 60th day following
such Participant's receipt of' the distribution from the Other Plan, or if such
Other Plan distribution has been previously deposited in an Individual
Retirement Account (as described in Code Section 408), the transfer of such
amounts to the Committee must occur on or before the 60th day following the
receipt by such Participant of the balance of such Individual Retirement
Account;
(c) The amounts transferred to the Committee must not
represent any deposits or contributions deemed made by such Participant under
the Other Plan (other than voluntary
25
<PAGE> 27
deductible contributions described in Code Section 219(e)(2)) or to the
Individual Retirement Account; and
(d) The amounts transferred to the Committee must not
represent rollovers from any plan which is subject to the requirements of Code
Section 401(a)(11).
Amounts held in a Participant's Rollover Account may not be withdrawn
under Section 8.6 prior to the Participant's termination of employment with the
Company and Affiliated Companies.
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<PAGE> 28
ARTICLE V
COMPANY CONTRIBUTIONS
5.1 AMOUNT AND ALLOCATION OF CONTRIBUTIONS. Subject to the
requirement restrictions of the Plan:
(a) The Company shall make Compensation Deferral
Contributions as elected by Participants pursuant to Section 4.1, so long as
such amounts qualify for treatment under Code Section 401(k).
(b) The Company shall make Company Contributions as
necessary to restore amounts forfeited as provided in Section 8.4(b).
(c) The Company shall make a Matching Contribution on
behalf of each Participant who made Compensation Deferral Contributions during
the Plan Year equal to a percentage of such Participant's Compensation Deferral
Contributions which qualify for treatment under Code Sections 401(k) and 402(g),
determined in accordance with the applicable Schedule for the Participant's
collective bargaining unit, as set forth in Appendix 1.
(d) All Compensation Deferral Contributions shall be paid
to the Trust Fund as soon as practicable but in no event later than 90 days
following the date such deferrals are made. All Matching Contributions with
respect to a Plan Year shall be paid to the Trust Fund no later than the time
prescribed by law (including extensions) for filing the Company's federal income
tax return for the Company's taxable year during or within which the Plan Year
ended.
5.2 CODE SECTION 401(M) LIMITATION ON AFTER-TAX CONTRIBUTIONS AND
MATCHING CONTRIBUTIONS. Notwithstanding any provision in the Plan to the
contrary:
(a) The After-Tax Contributions and Matching
Contributions of the Highly Compensated Employees shall be reduced if neither of
the Contribution Percentage Tests set forth in (i) or (ii) below is satisfied:
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<PAGE> 29
(i) The 1.25 Test. The Contribution Percentage
of the Highly Compensated Employees is not more than the Contribution
Percentage of all Nonhighly Compensated Employees multiplied by 1.25.
(ii) The 2.0 Test. The Contribution Percentage of
the Highly Compensated Employees is not more than two percentage points
greater than the Contribution Percentage of all Nonhighly Compensated
Employees, and the Contribution Percentage of the Highly Compensated
Employees is not more than the Contribution Percentage of all Nonhighly
Compensated Employees multiplied by 2.0.
(b) (i) "Contribution Percentage" means the average
of the ratios of each Highly Compensated Employee's or Nonhighly Compensated
Employee's, as the case may be, share of the Matching Contribution and After-Tax
Contributions plus Designated Compensation Deferral Contributions (as defined in
paragraph (c)), if any, which were allocated to the Participant's Accounts with
respect to the Plan Year, to each such Participant's Compensation for the Plan
Year.
(ii) If a Highly Compensated Employee is a member
of a Family Group, such Family Group shall constitute a single Highly
Compensated Employee. The Contribution Percentage of such Family Group
shall be the aggregate Contribution Percentage of all Family Members
and the Contribution Percentage of each Family Member shall be
disregarded for purposes of the Contribution Percentage Tests.
(c) To the extent necessary, and solely for the purpose
of satisfying the Contribution Percentage Test in Section 5.2(a), all or part of
Compensation Deferral Contributions may be treated by the Committee as After-Tax
Contributions ("Designated Compensation Deferral Contributions"), provided that:
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<PAGE> 30
(i) Compensation Deferral Contributions,
including Designated Compensation Deferral Contributions, satisfy the
requirements of Section 4.2(b); and
(ii) Compensation Deferral Contributions,
excluding Designated Compensation Deferral Contributions, satisfy the
requirements of Section 4.2(b).
(d) If neither Contribution Percentage Test is satisfied
as of the end of the Plan Year, the Committee shall cause the After-Tax
Contributions, and if necessary, Matching Contributions, of Highly Compensated
Employees to be reduced and refunded to each affected Highly Compensated
Employee until either Contribution Percentage Test is satisfied. The sequence of
such reductions and refunds shall begin with Highly Compensated Employees who
elected the greatest percentage and then shall proceed with each lesser
percentage until either Contribution Percentage Test is satisfied. Once either
Contribution Percentage Test is satisfied, the Committee shall direct the
Trustee to distribute to the appropriate Highly Compensated Employees the amount
of the reduction of the After-Tax Contribution of each such Highly Compensated
Employee and to treat as a forfeiture the appropriate amount of Matching
Contributions, together with the net earnings or losses allocable thereto, prior
to the end of the Plan Year following the Plan Year in which such excess
After-Tax. Contributions and excess Matching Contributions were made. Any
reduction and refund made to a Highly Compensated Employee in accordance with
this Section shall be withdrawn first from his After-Tax Account, and then, if
necessary, from his Matching Account. Notwithstanding the foregoing, if a
Participant does not have a 100% nonforfeitable right to his Matching Account,
the forfeitable portion of any amount withdrawn from his Matching Account shall
be forfeited and only the vested portion shall be distributed to the
Participant, insofar as is required pursuant to this Section.
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<PAGE> 31
(e) Net earnings or losses to be refunded with the excess
After-Tax Contributions shall be equal to the net earnings or losses on such
Contributions for the Plan Year in which the Contributions were made plus the
net earnings or losses on such After-Tax Contributions during the Gap Period.
Net earnings or losses shall be determined in the same manner as in Section
4.2(c), except that the phrases "After-Tax Contributions" and "After-Tax
Account" shall be substituted for the phrases "Compensation Deferral
Contributions" and "Participant Deferral Account" wherever used therein.
(f) Net earnings or losses to be treated as forfeitures
together with the Matching Contributions shall be equal to the net earnings or
losses on such contributions for the Plan Year in which the contributions were
made plus the net earnings or losses on such Matching Contributions during the
Gap Period. Net earnings or losses shall be determined in the same manner as in
Section 4.2(c), except that the phrases "Matching Contribution" and "Matching
Account" shall be substituted for the phrases "Compensation Deferral
Contribution" and "Participant Deferral Account" wherever used therein.
(g) Any excess contributions distributed to a Family
Group and treated as forfeitures pursuant to the reductions in paragraph (d)
above shall be allocated to each Family Member in the same proportion that such
Family Member's After-Tax Contributions and Matching Contributions bear to the
aggregate After-Tax Contributions and Matching Contributions of the Family
Group.
(h) Any Matching Contributions which are treated as
forfeitures pursuant to paragraph (d) above shall be used to reduce future
Matching Contributions.
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<PAGE> 32
5.3 MULTIPLE USE.
(a) This section will apply if The 2.0 Test is used to
satisfy both the Actual Deferral Percentage Test and the Contribution Percentage
Test. If this section applies, the Committee shall determine whether a Multiple
Use has occurred, and if such a Multiple Use has occurred, the After-Tax
Contributions of the Highly Compensated Employees shall be reduced and refunded
in accordance with the provisions of paragraph (c).
(b) A "Multiple Use" occurs when for the Highly
Compensated Employees, the sum of the Actual Deferral Percentage used to satisfy
The 2.0 Test plus the Contribution Percentage Used to satisfy The 2.0 Test
exceeds the "Aggregate Limit." The Aggregate Limit is the greater of (i) or (ii)
below, determined as follows:
(i) (A) First, multiply 1.25 by the greater
of (I) the Actual Deferral Percentage, or (II) the
Contribution Percentage of the Nonhighly Compensated
Employees;
(B) Second, add 2.0 to the lesser of
(I) or (II) above provided that such sum shall not exceed two
times the lesser of (I) or (II) above;
(C) Finally, add the results from (A)
and (B) to determine the Aggregate Limit;
(ii) (A) First, multiply 1.25 by the lesser
of (I) the Actual Deferral Percentage, or (II) the
Contribution Percentage of the Nonhighly Compensated
Employees;
(B) Second, add 2.0 to the greater of
(I) or (II) above provided that such sum shall not exceed two
times the greater of (I) or (II) above;
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<PAGE> 33
(C) Finally, add the results from (A)
and (B) to determine the Aggregate Limit.
(c) If a Multiple Use has occurred, such Multiple Use
shall be correct by reducing the Contribution Percentage of Highly Compensated
Employees in accordance with the provisions of Section 5.2(d) until the sum of
the Actual Deferral Percentage plus the Actual Contribution Percentage for the
Highly Compensated Employees equals the Aggregate Limit.
(d) Net earnings or losses to be refunded with the excess
After-Tax Contributions shall be equal to the net earnings or losses on such
contributions for the Plan Year in which the contributions were made plus the
net earnings or losses on such After-Tax Contributions during the Gap Period.
Net earnings or losses shall be determined in the same manner as in Section
4.2(c), except that the phrases "After-Tax Contributions" and "After-Tax
Account" shall be substituted for the phrases "Compensation Deferral
Contributions" and "Participant Deferral Account" wherever used therein.
(e) Net earnings or losses to be treated as forfeitures
together with the Matching Contributions shall be equal to the net earnings or
losses on such contributions for the Plan Year in which the contributions were
made plus the net earnings or losses on such Matching Contributions during the
Gap Period. Net earnings or losses shall be determined in the same manner as in
Section 4.2(c), except that the phrases "Matching Employer Contribution" and
"Matching Account" shall be substituted for the phrases "Compensation Deferral
Contribution" and "Participant Deferral Account" wherever used therein.
(f) Any Matching Contributions which are treated as
forfeitures pursuant to paragraph (c), and any income allocable thereto, shall
be used to reduce future Matching Contributions.
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<PAGE> 34
ARTICLE VI
PARTICIPANT ACCOUNTS
6.1 ACCOUNTING PROCEDURES. The Committee and the Trustee shall
establish accounting procedures for die purpose of making the allocations,
valuations and adjustments to Accounts provided for in this Article VI. From
time to time the Committee and Trustee may modify such accounting procedures for
the purpose of achieving equitable, nondiscriminatory, and administratively
feasible allocations among Accounts in accordance with the general concepts of
the Plan and the provisions of this Article V1. Allocations of all assets shall
be made on the basis of, and expressed in terms of, dollar value.
6.2 VALUATION OF ACCOUNTS. As of each Valuation Date, the Trustee
shall value the assets of the Trust on the basis of fair market value. Upon
receipt of this valuation, the Committee shall revalue the Accounts in the
following order: (1) each Account shall be adjusted to reflect any withdrawals
or distributions made therefrom since the last preceding Valuation Date; (2)
each Account shall be adjusted to reflect a proportionate share in any increase
or decrease in the fair market value of the assets in the Trust Fund since the
last preceding Valuation Date; (3) any Compensation Deferral Contributions made
on behalf of a Participant since the last preceding Valuation Date shall be
credited to his Participant Deferral Account; (4) any After-Tax Contributions
made by a Participant since the last preceding Valuation Date shall be credited
to his After-Tax Contributions Account; (5) Matching Contributions shall be
allocated to the Matching Contributions Account of each Participant who made
Compensation Deferral Contributions since the last preceding Valuation Date, and
if such Valuation Date is the last day of a Plan Year, Matching Contributions
shall be allocated to the Matching Contributions Account of any Participant who
made Compensation Deferral Contributions for such year who did not receive the
full amount of Matching Contributions to which he is entitled for such year;
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<PAGE> 35
and (6) any Plan administrative expenses shall be allocated to and deducted from
Participants' Accounts, pursuant to Section 9.16. The Committee shall distribute
to each Participant quarterly statements showing the value of his Account as of
a stated Valuation Date.
The valuation and allocation provisions of this section shall
be applied and implemented in accordance with the following rules:
(a) All gains, losses, dividends and other property
acquisitions and/or transfers that occur with respect to the Trust Fund shall be
held, charged, credited, debited or otherwise accounted for on an unallocated
basis until allocated to Accounts or otherwise us or applied in accordance with
the provisions of the Plan.
(b) The share of the net income (or loss) that will be
allocated to each Account shall reflect the respective net values of the
applicable investment funds established under Section 7.2, based on the
Participant's investment selections for his Account.
(c) The net income (or loss) shall include the increase
(or decrease) in the fair market value of Trust assets; all cash income of the
Trust, whether in the form of interest, cash dividends, or otherwise; and all
expenses not paid by the Company attributable to Trust assets since the
preceding Valuation Date.
(d) The net income (or loss) shall not include any
Company or Employee Contributions to be credited to Accounts as of the current
or a later Valuation Date.
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<PAGE> 36
ARTICLE VII
TRUST FUND
7.1 TRUST FUND. The Sponsor has entered into a Trust Agreement for
the establishment of a Trust Fund to hold the assets of the Plan. The Trustee
has agreed to hold and administer all funds and assets that may be deposited
with the Trustee pursuant to the terms of this Plan. The Trust Fund shall also
hold funds and assets attributable to rollovers from other qualified plans made
pursuant to Section 4.5.
7.2 INVESTMENT OF TRUST ASSETS.
(a) The assets of the Trust Fund shall be invested in the
investment funds established as part of the Trust Fund from time to time at the
discretion of the Board of Directors. Investment funds may be added, suspended
or terminated from time to time at the direction of the Board of Directors. All
or any part of an investment fund may from time to time be invested in cash or
money market instruments.
(b) A Participant shall specify the investment funds
in which his Account are to be invested. A Participant may change the investment
of (i) amounts already allocated to such Account or (ii) future contributions to
such Account. Each such change shall be made in multiples of 25% (10%, effective
January 1, 1994) and on the form and in the manner established by the Committee,
and shall become effective on the next April 1 or October 1 (January 1 or July
1, effective January 1, 1994) or on such other dates as the Committee may
specify, at the time and in accordance with procedures established by the
Committee. Future contributions and previously allocated amounts need not be
invested in the same proportion in each investment fund. The provisions of this
Section shall be subject to such additional limitations as the Committee may
specify, from time to time, including any withdrawal or transfer restrictions
imposed by the issuer of any investment contract.
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<PAGE> 37
7.3 IRREVOCABILITY. The Company shall have no right or title to,
nor interest in, the contributions made to the Trust Fund, and no part of the
Trust Fund shall revert to the Company, except as follows:
(a) If a Company Contribution is made by a mistake of
fact, at the Company's written request that contribution may be returned to the
Company within one year after it is made.
(b) All Company Contributions are conditioned upon
deductibility under Code Section 404. To the extent a deduction is disallowed,
at the written request of the Sponsor or Affiliated Company making the
contribution, such contribution shall be returned to the Sponsor or such
Affiliated Company within one year after the disallowance.
7.4 COMPANY, COMMITTEE AND TRUSTEE NOT RESPONSIBLE FOR ADEQUACY OF
TRUST FUND. Neither the Company, the Committee nor the Trustee shall be liable
or responsible for the adequacy of the Trust Fund to meet and discharge any or
all payments and liabilities hereunder. All Plan benefits will be paid only from
the Trust assets. Except as required under the Plan or Trust or under Part 4 of
Title I of ERISA, the Company shall not be responsible for any decision, act or
omission of the Trustee, the Committee, or any Investment Manager.
36
<PAGE> 38
ARTICLE VIII
VESTING; PAYMENT OF PLAN BENEFITS
8.1 VESTING. Each Participant shall at all times be 100% vested in
his Participant Deferral Account, his After-Tax Contributions Account, and his
Rollover Account. If a Participant's employment with the Company terminates
prior to his Normal Retirement Date for a reason other than death, retirement
after his Early Retirement Date or Total and Permanent Disability, the
nonforfeitable percentage of his Matching Contributions Account shall be
determined in accordance with the following table:
<TABLE>
<CAPTION>
Number of Years of Service Vested Percentage
-------------------------- -----------------
<S> <C>
Less than one 0
At least one but less than two 20
At least two but less than three 40
At least three but less than four 60
At least four but less than five 80
Five or more 100%.
</TABLE>
A Participant shall become 100% vested in his Matching Contributions Account
upon attainment of his Normal Retirement Date while employed by the Company, as
of the date of his termination of employment with the Company as a result of his
Early Retirement Date (if applicable), Total and Permanent Disability, or as of
the date of his death.
8.2 DISTRIBUTION UPON RETIREMENT OR DISABILITY.
(a) A Participant whose employment with the Company and all
Affiliated Companies terminates on or after he has attained his Early Retirement
Date or his Normal Retirement Date or as a result of Total and Permanent
Disability shall be entitled to a distribution of his Account as soon as
practicable after the date of his termination. Such Participant's Account shall
be valued as of the Valuation Date coinciding with or immediately following his
termination of employment, and shall be paid to him in a lump sum, subject to
the provisions of Section 8.5.
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<PAGE> 39
(b) In no event will amounts be distributed to a Participant
prior to his 65th birthday without his written consent if the value of his
vested Account exceeds, or at the time of any prior distribution exceeded,
$3,500.
8.3 DISTRIBUTION UPON DEATH.
(a) Upon the death of a Participant prior to commencement of
the distribution of benefits hereunder, distribution shall be made to the
Participant's Beneficiary as soon as practicable after the value of the
Participant's Account is determined and evidence of the Beneficiary's
entitlement to such benefits is supplied to the Committee. Such distribution
shall be a lump sum in cash of the value of the Participant's Account as of the
Valuation Date coinciding with or immediately following the date on which the
Committee has been furnished with all documents and information necessary to
distribute such Participant's Account.
(b) Each Participant shall have the right to designate or to
change or revoke such designation of a Beneficiary or Beneficiaries to receive
his interest in the Trust Fund in the event of his death. This designation or
redesignation is to be made on the form prescribed by and delivered to the
Committee. If a married Participant designates a Beneficiary other than his
Spouse, no effect shall be given to such designation unless such Spouse provides
written consent in such form as the Committee may require, witnessed by a notary
public, and such designation names a Beneficiary which may not be changed
without the Spouse's consent (or the consent expressly permits designations by
the Participant without requirement of further consent by the Spouse). A
Spouse's consent to a Beneficiary designation is not required if it is
established to the satisfaction of the Committee that there is no Spouse or the
Spouse cannot be located. The Committee shall have absolute discretion as to
whether the consent of a Spouse shall be required. If a deceased Participant
shall have failed to designate a Beneficiary, or if the Committee shall be
38
<PAGE> 40
unable to locate a designated Beneficiary after reasonable efforts have been
made, or if the designated Beneficiary shall have predeceased the Participant
without the Participant having designated a successor Beneficiary, the
Participant's Beneficiary shall be the person or persons having the highest
priority in the following order of priority: (i) first, the Participant's
surviving Spouse; (ii) second, the Participant's surviving children, including
adopted children; (iii) third, the Participant's surviving parents; and (iv)
fourth, the Participant's estate.
(c) The Committee shall not be required to authorize any
payment to be made to any person following a Participant's death, whether or not
such person has been designated by the Participant as a Beneficiary, if the
Committee determines that the Plan may be subject to conflicting claims in
respect of said payment for any reason. In the event the Committee determines in
accordance with this Section 8.3(c) not to make payment to a designated
Beneficiary, the Committee shall take such steps as it determines appropriate to
resolve such potential conflict.
8.4 DISTRIBUTION UPON TERMINATION OF EMPLOYMENT PRIOR TO
RETIREMENT.
(a) The Account of a Participant whose employment with the
Company terminates prior to his Normal Retirement Date for a reason other than
his death, retirement on his Early Retirement Date, or Total and Permanent
Disability, shall be valued as of the Valuation Date coinciding with or
immediately following the date on which the Participant's request for
distribution of his Account is received by the Committee. Any unvested amounts
in his Account shall be forfeited immediately upon the complete distribution of
the vested portion of the Participant's Account, or, if the Participant does not
consent to an immediate distribution, then any such unvested amounts shall be
forfeited on the date on which he sustains five consecutive Breaks in Service.
Subject to the provisions of Section 8.2(b), a Participant's entire
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<PAGE> 41
nonforfeitable interest in his Account shall be paid to him as soon as
practicable after his termination of employment in a lump sum in cash.
(b) Any Participant whose employment terminates and who
receives a distribution of the nonforfeitable percentage of his Account when he
is not fully vested in his Matching Contributions Account and who again becomes
an Employee prior to incurring five consecutive breaks in Service, may repay to
the Plan the full amount of such distribution prior to the earlier of (i) the
date on which he sustains five consecutive Breaks in Service commencing after
such distribution, or (ii) five years after the date of his reemployment. Upon
such repayment, the portion of such Participant's Matching Contributions Account
which was forfeited shall be reinstated without adjustment for gain or loss
between the time of forfeiture and the time of reinstatement. No restoration
shall be made if the Participant is reemployed by the Company after incurring
five (5) consecutive Breaks in Service.
(c) Any restoration required by Section 8.4(b) shall be made
out of the amounts forfeited by Participants in any Plan Year. If forfeitures
are insufficient, the Company shall contribute such additional amount as is
required to make restoration. If such forfeitures exceed the amounts required to
make restoration, the remainder shall be used to reduce the amount of Matching
Contributions required for that Plan Year, or applied to offset administrative
expenses, pursuant to Section 9.16.
(d) 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.
8.5 TIMING OF DISTRIBUTION.
(a) Benefits payable under the Plan shall be distributed as
soon as practicable but, unless the Participant elects to do otherwise in
accordance with provisions of the Plan, not
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<PAGE> 42
later than the 60th day after the Plan Year in which, with respect to the
Participant, occurs the later of his (i) attainment of age 65 or (ii) his
termination of employment with the Company.
(b) Notwithstanding anything to the contrary contained in the
Plan, a Participant's benefit will be distributed in a single payment no later
than April 1 of the calendar year following the calendar year in which the
Participant attains age 70-1/2, whether or not his employment has terminated.
8.6 WITHDRAWALS.
(a) After-Tax Contributions Account. At the times set forth in
the applicable Schedule to Appendix 1, a Participant may withdraw amounts from
his After-Tax Contributions Account, if any. The amount of a Participant's
After-Tax Contributions available for withdrawal shall be the value of the
Participant's After-Tax Contributions Account as of the Valuation Date
immediately following the Committee's determination authorizing such withdrawal.
Withdrawals from a Participant's After-Tax Contributions Account are required to
include a portion which represents taxable earnings, if any have been allocated
to such account.
(b) Hardship Withdrawals.
(i) Each Participant may upon written request at any time
make a hardship withdrawal from his Participant Deferral and/or
Rollover Accounts in an amount determined by the Committee after
finding that the withdrawal is both made on account of an immediate and
heavy financial need of the Participant and necessary to satisfy the
financial need and that the Participant has exhausted all other sources
available to him under all plans maintained by the Company. A
distribution is on account of an immediate and heavy financial need of
the Participant only if it is for the purpose of (A) extraordinary
expenses for medical care described in Code Section 213(d) of the
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Participant or his Spouse or dependents (as defined in Code Section
152), including expenses for medical care previously incurred as well
as expenses necessary to obtain medical care, which are not covered by
insurance, (B) payment of tuition and related educational fees for the
next 12 months of post-secondary education of the Participant or his
Spouse or dependents (as defined in Code Section 152); (C) costs
directly related to the purchase (excluding mortgage payments) of a
principal residence by a Participant; or (D) preventing the eviction of
the Participant from his principal residence or the foreclosure on the
mortgage on that residence.
(ii) The existence of a Participant's financial hardship,
and the amount required to meet the need created by the hardship as
well as to pay taxes and penalties resulting from a hardship
distribution, shall be determined by the Committee on the basis of all
relevant facts and circumstances and in accordance with rules of
uniform application which the Committee may from time to time
prescribe.
(iii) The amount of a Participant's Compensation Deferral
Contributions available for withdrawal shall be the lesser of: (A) the
total of such Compensation Deferral Contributions without any
investment earnings allocated after December 31, 1988, less any such
amounts previously withdrawn, or (B) the value of the Participant's
Compensation Deferral Contributions as of the Valuation Date
immediately following the Committee's determination authorizing such
withdrawal. The amount of a Participant's Rollover Contributions
available for withdrawal shall be the value of such contributions as of
the Valuation Date immediately following the Committee's determination
authorizing such withdrawal. In no event shall the amount available for
withdrawal exceed the amount required to meet the immediate and heavy
financial need.
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(iv) Withdrawals from the fund invested in assets with a
fixed rate of return ("Guaranteed Fund") will be allocated
proportionately among all contracts in which the Guaranteed Fund is
invested as follows: the proportionate share allocated to an investment
contract will be equal to the ratio of the value of the Participant's
fixed dollar investment under the Guaranteed Fund in that investment
contract over the total value of the Participant's fixed dollar
investment in the Guaranteed Income Fund in all investment contracts.
(v) The amount so withdrawn shall be paid to the
Participant in a lump sum in cash as soon as practicable after the
Committee's determination.
(vi) Each time a Participant makes a hardship withdrawal
he shall be placed on a Twelve-Month Suspension from making future
Compensation Deferral Contributions.
(c) Withdrawals After Age 59-1/2. After attaining age 59-1/2 a
Participant may withdraw amounts from his Participant Deferral and/or Rollover
Accounts.
(d) A Participant may specify the investment fund or funds
from which a withdrawal under this Section 8.6 will be taken, and the percentage
of the withdrawal which shall be taken from each fund. All withdrawals shall be
subject to the reasonable administrative rules and procedures established by the
Committee, including reasonable advance notice and minimum amounts. Amounts
withdrawn under this Section 8.6 may not be returned to this Plan.
(e) A Participant shall not be permitted to make withdrawals
from his Matching Account. Except as provided in this Section, no amounts may be
withdrawn by a Participant prior to his or her termination of employment. In no
event may a withdrawal be
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made under this Section 8.6 by a Participant after termination of employment;
rather, in such cases distribution shall be made under other provisions of
Article VIII.
8.7 FACILITY OF PAYMENT. If any payee under the Plan is a minor or
if the Committee reasonably believes that any payee is legally incapable of
giving a valid receipt and discharge for any payment due him, the Committee may
have the payment, or any part thereof, made to the person (or persons or
institution) whom it reasonably believes is caring for or supporting the payee,
unless it has received due notice of claim therefor from a duly appointed
guardian of the payee. Any payment shall be a payment from the Account of the
payee and shall, to the extent thereof, be a complete discharge of any liability
under the Plan to the payee.
8.8 ADDITIONAL DOCUMENTS. The Committee or Trustee, or both, may
require the execution and delivery of such documents, papers and receipts as the
Committee or Trustee may determine necessary or appropriate in order to
establish the fact of death of the deceased Participant and of the right and
identity of any Beneficiary or other person or persons claiming any benefits
under this Article VIII.
8.9 DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS. (a)
Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a Distributee's election under this Section for distributions made on or
after January 1, 1993, a Distributee may elect, at the time and in the manner
prescribed by the Committee, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified by the
Distributee in a Direct Rollover.
(b) For purposes of this Section 8.9, the following
definitions shall apply:
(1) "Eligible Retirement Plan" means an individual
retirement account described in Code Section 408(a), an individual
retirement annuity described in Code Section 408(b), an annuity plan
described in Code
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Section 403(a), or a qualified trust described in Code Section 401(a)
that accepts the Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to the surviving
Spouse, an Eligible Retirement Plan is an individual retirement account
or individual retirement annuity.
(2) "Eligible Rollover Distribution" means any
distribution of all or any portion of a Participant's Accounts except
(i) any distribution to the extent such distribution is required under
Code Section 401(a)(9), and (ii) the portion of any distribution that
is not includable in gross income.
(3) "Direct Rollover" means a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
(4) "Distributee" includes an Employee or former Employee.
In addition, the Employee's or former Employee's surviving Spouse and
the Employee's or former Employee's Spouse or former Spouse who is the
alternate payee under a qualified domestic relations order, as defined
in Section 414(p) of the Code, are Distributees with regard to the
interest of the Spouse or former Spouse.
(c) The Committee shall provide a written explanation of the
Direct Rollover provisions to a Distributee no more than 90 days and no less
than 30 days prior to the date of distribution. Distribution may not commence
until 30 days has elapsed after such notice is provided to the Distributee,
unless such 30 day period is waived pursuant to Section 8.9(d) below.
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(d) If a distribution is one to which Code Sections 401(a)(11)
and 417 do not apply, such distribution may commence less than 30 days after the
notice required under Section 1.411(a)-11(c) of the Income Tax Regulations is
given, provided that:
(i) The Committee clearly informs the Distributee that
the Distributee has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not to
elect a distribution (and, if applicable, a particular distribution
option), and
(ii) The Distributee, after receiving the notice,
affirmatively elects a distribution.
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ARTICLE IX
OPERATION AND ADMINISTRATION OF THE PLAN
9.1 PLAN ADMINISTRATION. Authority to control and manage the
operation and administration of the Plan shall be vested in a Committee as
provided in this Article IX. The members of the Committee (the number of which
shall be determined by the Sponsor) shall be appointed by the Sponsor and shall
hold office until resignation, death or removal by the Sponsor. For purposes of
ERISA Section 402(a), the members of the Committee shall be the named
fiduciaries of the Plan. Notwithstanding the foregoing, a Trustee with whom Plan
assets have been placed in trust or an investment manager appointed pursuant to
Section 9.3 may be granted exclusive authority and discretion to manage and
control all or any portion of the assets of the Plan. Actions by the Sponsor
under this section shall be by written instrument executed by an authorized
officer of the Sponsor.
9.2 COMMITTEE POWERS. The Committee shall have all powers and
discretion necessary to supervise the administration of the Plan and control its
operations. In addition to any powers and authority conferred on the Committee
elsewhere in the Plan or by law, the Committee shall have the following powers,
discretion and authority:
(a) To allocate fiduciary responsibilities (other than trustee
responsibilities) among its members and to designate one or more other persons
to carry out fiduciary responsibilities (other than trustee responsibilities).
However, no allocation or delegation under this Section 9.2(a) shall be
effective until the person or persons to whom the responsibilities have been
allocated or delegated agree to assume the responsibilities. The term "trustee
responsibilities" as used herein shall have the meaning set forth in ERISA
Section 405(c).
(b) To designate agents to carry out responsibilities relating
to the Plan, other than fiduciary responsibilities.
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(c) To employ such legal, medical, accounting, clerical and
other assistance as it may deem appropriate in carrying out the provisions of
the Plan, including one or more persons to render advice with regard to any
responsibility any named fiduciary or any other fiduciary may have under the
Plan.
(d) To establish rules and regulations from time to time for
the conduct of the Committee's business and the administration and effectuation
of this Plan.
(e) To administer, interpret, construe and apply this Plan and
to decide all questions which may arise or which may be raised under this Plan
by any Employee, Participant, former Participant, Beneficiary or other person,
including but not limited to all questions relating to eligibility to
participate in the Plan, the amount of service of any Participant, and the
amount of benefits to which any Participant or his Beneficiary may be entitled.
(f) To perform or cause to be performed such further acts as
it may deem to be necessary, appropriate or convenient in the efficient
administration of the Plan. Any action taken in good faith by the Committee in
the exercise of authority conferred upon it by this Plan shall be conclusive and
binding upon the Participants and their Beneficiaries. All discretionary powers
conferred upon the Committee shall be absolute. However, all discretionary
powers shall be exercised in a uniform and nondiscriminatory manner.
9.3 INVESTMENT MANAGER. The Board of Directors may appoint one or
more "Investment Managers", as defined in ERISA Section 3(38), to manage all or
a portion of the assets of the Plan. An Investment Manager shall have full power
to manage the assets of the Plan for which it has responsibility, and neither
the Company, nor any member of the Committee, nor any Trustee, nor any member of
the Board of Directors shall, while such appointment is in effect, have any
responsibility for the management of those assets.
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9.4 COMMITTEE PROCEDURE. A majority of the members of the
Committee as constituted at any time shall constitute a quorum, and any action
by a majority of the members present at any meeting, or authorized by a majority
of the members in writing without a meeting, shall constitute the action of the
Committee. The Committee may designate certain of its members to execute any
document on behalf of the Committee, to the extent of its authority, in which
event the Committee shall notify each Trustee of this action and the name or
names of the designated members. The Trustees, Company, Participants,
Beneficiaries, and any other party dealing with the Committee may accept and
rely upon any document executed by the designated members as representing action
by the Committee until the Committee shall file with each Trustee a written
revocation of the authorization of the designated members.
9.5 COMPENSATION OF COMMITTEE. Members of the Committee shall
serve without compensation unless the Board of Directors shall otherwise
determine. However, in no event shall any member of the Committee who is an
Employee receive compensation from the Plan for his services as a member of the
Committee. All members shall be reimbursed by the Company for any necessary or
appropriate expenditures incurred in the discharge of duties as members of the
Committee.
9.6 RESIGNATION AND REMOVAL OF MEMBERS. Any member of the
Committee may resign at any time by giving written notice to the other members
and to the Board of Directors effective as therein stated. Any member of the
Committee may, at any time, be removed by the Board of Directors.
9.7 APPOINTMENT OF SUCCESSORS. Upon the death, resignation, or
removal of any Committee member, the Board of Directors may appoint a successor.
Notice of appointment of a successor member shall be given by the Secretary of
the Sponsor in writing to each Trustee and
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to the members of the Committee. Upon termination, for any reason, of a
Committee member, the member's status as a named fiduciary shall be terminated,
and upon the appointment of a successor Committee member the successor shall
assume the status of a named fiduciary.
9.8 RECORDS. The Committee shall keep a record of all its
proceedings and shall keep, or cause to be kept, all such books, accounts,
records or other data as may be necessary or advisable in its judgment for the
administration of the Plan and to properly reflect the affairs thereof.
9.9 RELIANCE UPON DOCUMENTS AND OPINIONS. The members of the
Committee, the Board of Directors, the Company and any person delegated under
the provisions hereof to carry out any fiduciary responsibilities under the Plan
("delegated fiduciary"), shall be entitled to rely upon any tables, valuations,
computations, estimates, certificates and reports furnished by any consultant,
any opinions furnished by legal counsel, and any reports furnished by any
Trustee. The members of the Committee, the Board of Directors, the Company and
any delegated fiduciary shall be fully protected and shall not be liable in any
manner whatsoever for anything done or action taken or suffered in reliance upon
any such consultant, Trustee, or counsel. Any and all such things done or
actions taken or suffered by the Committee, the Board of Directors, the Company
and any delegated fiduciary shall be conclusive and binding on all Employees,
Participants, Beneficiaries, and any other persons except as otherwise provided
by law. The Committee and any delegated fiduciary may, but are not required to,
rely upon all records of the Company, and may likewise treat those records as
conclusive with respect to all Employees, Participants, Beneficiaries, and any
other persons except as otherwise provided by law.
9.10 REQUIREMENT OF PROOF. The Committee or the Company may require
satisfactory proof of any matter under this Plan from or with respect to any
Employee, Participant, or
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Beneficiary, and no person shall acquire any rights or be entitled to receive
any benefits under this Plan until the required proof shall be furnished.
9.11 RELIANCE ON COMMITTEE MEMORANDUM. Any person dealing with the
Committee may rely on and shall be fully protected in relying on a certificate
or memorandum in writing signed by any Committee member or other person so
authorized, or by the majority of the members of the Committee, as evidence of
any action taken or resolution adopted by the Committee.
9.12 MULTIPLE FIDUCIARY CAPACITY. Any person or group of persons
may serve in more than one fiduciary capacity with respect to the Plan.
9.13 LIMITATION ON LIABILITY. Except as provided in Part 4 of Title
I of ERISA, no person shall be subject to any liability with respect to his
duties under the Plan unless he acts fraudulently or in bad faith. No person
shall be liable for any breach of fiduciary responsibility resulting from the
act or omission of any other fiduciary or any person to whom fiduciary
responsibilities have been allocated or delegated, except as provided in Part 4
of Title I of ERISA.
9.14 INDEMNIFICATION. To the extent permitted by law, the Sponsor
shall indemnify each member of the Board of Directors and the Committee, and any
other Employee with duties under the Plan, and save harmless from claims, and
the expenses reasonably incurred by him in defending against such claims
(including any amount paid in settlement) incurred or resulting from any action
or conduct in the performance of his duties under the Plan, except claims
arising from his gross negligence, willful neglect or willful misconduct. The
preceding right of indemnification
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shall pass to the estate of such a person. The preceding right of
indemnification shall be in addition to any other right to which the Board
member or Committee member or such other Employee may be entitled as a matter of
law or otherwise.
9.15 BONDING. Except as is prescribed by the Board of Directors, as
provided in ERISA Section 412, or as may be required under any other applicable
law, no bond or other security shall be required by any member of the Committee,
or any other fiduciary under this Plan. Notwithstanding the foregoing, for
purposes of satisfying its indemnity obligations under Section 9.14, the Company
may (but need not) purchase and pay premiums for one or more policies of
insurance. However, this insurance shall not release the Sponsor of its
liability under the indemnification provisions.
9.16 PLAN EXPENSES. All usual and reasonable expenses of
administration shall be paid from the Plan, first, as provided by Section 8.4(c)
from any forfeitures in excess of amounts required to make restoration of
accounts, and then from investment earnings of the Plan, and finally, if
necessary, from Participants' Accounts, ratably in proportion to the value of
the Accounts determined as of the most recent Valuation Date. All expenses
incurred in the administration and operation of the Plan shall, to the extent
not paid by the Plan, be paid by the Company.
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ARTICLE X
MERGER OF COMPANY; MERGER OF PLAN
10.1 EFFECT OF REORGANIZATION OR TRANSFER OF ASSETS. In the event
of a consolidation, merger, sale, liquidation, or other transfer of
substantially all of the operating assets of the Sponsor to any other company,
the ultimate successor or successors to the business of the Sponsor shall
automatically be deemed to have elected to continue this Plan in full force and
effect, in the same manner as if the Plan had been adopted by resolution of its
Board of Directors, unless the successor(s), by resolution of its Board of
Directors, shall elect not to so continue this Plan in effect, in which case the
Plan shall automatically be deemed terminated as of the applicable effective
date set forth in the Board resolution.
10.2 MERGER RESTRICTION. Notwithstanding any other provision in
this Article, this Plan shall not in whole or in part merge or consolidate with,
or transfer its assets or liabilities to any other plan unless each affected
Participant in this Plan would receive a benefit immediately after the merger,
consolidation, or transfer (if the Plan then terminated) which is equal to or
greater than the benefit he would have been entitled to receive immediately
before the merger, consolidation, or transfer (if the Plan had then terminated).
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ARTICLE XI
PLAN TERMINATION AND DISCONTINUANCE OF CONTRIBUTIONS
11.1 PLAN TERMINATION.
(a) The Sponsor may terminate the Plan at any time by an
instrument in writing executed in the name of the Sponsor by an officer or
officers duly authorized to execute such an instrument and delivered to the
Trustee.
(b) Upon and after the effective date of the termination, the
Company shall make no further contributions under the Plan and no contributions
need be made by the Company applicable to the Plan Year in which the termination
occurs, except as may otherwise be required by law. The termination shall not
accelerate any Participant's or Beneficiary's entitlement to the distribution of
benefits hereunder except as may be determined by the Board of Directors in
accordance with applicable law. Assets of the Trust Fund shall be managed in
accordance with the direction of the Committee.
(c) The rights of all affected Participants to benefits
accrued to the date of termination of the Plan, to the extent funded as of the
date of termination, shall automatically become fully vested as of that date.
11.2 DISCONTINUANCE OF CONTRIBUTIONS.
(a) In the event the Sponsor decides it is impossible or
inadvisable for business reasons to continue to make Company Contributions under
the Plan, the Sponsor by resolution of its Board of Directors may discontinue
contributions to the Plan. Upon and after the effective date of this
discontinuance, no further contributions shall be made under the Plan and no
Company Contributions need be made with respect to the Plan Year in which the
discontinuance occurs, except as may otherwise be required by law.
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(b) The discontinuance of contributions shall not terminate
the Plan as to the funds and assets then held by the Trustee, or operate to
accelerate any payments of distributions to or for the benefit of Participants
or Beneficiaries, and the Trustee shall continue to administer the Trust Fund in
accordance with the provisions of the Plan until all of the obligations under
the Plan shall have been discharged and satisfied.
(c) If discontinuance of contributions shall cause the Plan to
lose its status as a qualified plan under Code Section 401(a), the Plan shall be
terminated in accordance with the provisions of this Article XI.
(d) On and after the effective date of a discontinuance of
contributions, the rights of all affected Participants to benefits accrued to
that date, to the extent funded as of that date, shall automatically become
fully vested as of that date.
11.3 RIGHTS OF PARTICIPANTS. In the event of the termination of the
Plan, all assets of the Plan, after payment of expenses, shall be used for the
exclusive benefit of Participants and their Beneficiaries and no part thereof
shall be returned to the Company, except as provided in Article IV. Termination
of the Plan will not accelerate the right of any Participant to receive a
distribution under the Plan. In no event will amounts attributable to a
Participant's Compensation Deferral Contributions be distributed except to the
extent allowed by Code Section 401(k).
11.4 PARTIAL TERMINATION. In the event of a partial termination of
the Plan within the meaning of Code Section 411(d)(3), the interests of affected
Participants in the Trust Fund shall become fully vested as of the date of the
partial termination.
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11.5 FAILURE TO CONTRIBUTE. The failure of the Company to
contribute to the Trust in any year, if contributions are not required or
permitted under the Plan for that year, shall not constitute a discontinuance of
contributions to the Plan.
11.6 DISTRIBUTIONS UPON SALE OF ASSETS OR SUBSIDIARY. Upon the
sale, to an entity that is not an Affiliated Company of either (a) substantially
all of the assets used by the Company in the trade or business in which a
Participant is employed or (b) the Company's interest in a subsidiary that is
also an Affiliated Company, the Committee may, subject to the consent
requirements of Code Section 411(a)(11), direct the Trustee to make a
distribution of the Participant's distributable benefit in the Trust Fund as
soon as administratively feasible.
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ARTICLE XII
APPLICATION FOR BENEFITS
12.1 APPLICATION FOR BENEFITS. The Committee may require any person
claiming benefits under the Plan to submit an application therefor, together
with such documents and information as the Committee may require. In the case of
any person suffering from a disability which prevents the claimant from making
personal application for benefits, the Committee may, in its discretion, permit
another person acting on his behalf to submit the application.
12.2 ACTION ON APPLICATION.
(a) Within 90 days following receipt of an application and all
necessary documents and information, the Committee shall furnish the claimant
with written notice of its decision. The 90-day period may be extended at the
discretion of the Committee for a second 90-day period provided that written
notice of the extension is furnished to the claimant prior to the termination of
the initial period, indicating that special circumstances requiring such
extension of time. In the case of a denial of the claimant's application, the
notice shall set forth: (i) the specific reasons for the denial, with reference
to the Plan provisions upon which the denial is based; (ii) a description of any
additional information or material necessary for perfection of the application
(together with an explanation specifying why the material or information is
necessary); and (iii) an explanation of the Plan's claim review procedure.
(b) A claimant who wishes to contest the denial of his
application for benefits or the amount of benefits payable to him shall follow
the procedures for an appeal of benefits as set forth in Section 12.3, and shall
exhaust such administrative procedures prior to seeking any other form of
relief.
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12.3 APPEALS.
(a) A claimant may appeal the decision on his claim to the
Committee, in writing, within 60 days after the date of the Committee's
decision. If the application has been neither approved nor denied within the 90
day period provided in Section 12.2, the appeal shall be made within 60 days
after the expiration of the 90-day period.
(b) The request for appeal shall be given full and fair review
by the Committee. The claimant may review all pertinent documents and submit
issues and comments in writing in connection with the appeal.
(c) The decision of the Committee shall be made promptly, and
not later than 60 days after the Committee's receipt of a request for review,
unless special circumstances require an extension of time for processing, in
which case a decision shall be rendered as soon as possible, but not later than
120 days after receipt of a request for review.
(d) The decision on review shall be in writing and shall
include specific reasons for the decision, written in a manner calculated to be
understood by the claimant with specific reference to the pertinent Plan
provisions upon which the decision is based.
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ARTICLE XIII
LIMITATIONS ON CONTRIBUTIONS
13.1 GENERAL RULE.
(a) Notwithstanding anything to the contrary contained in the
Plan, and except as provided in Paragraph (b) below, the total Annual Additions
under the Plan to a Participant's Account for any Plan Year shall not exceed the
lesser of:
(i) the Defined Contribution Dollar Limitation; or
(ii) 25% of the Participant's Compensation for the
Limitation Year.
(b) The "Defined Contribution Dollar Limitation" shall mean
$30,000 or, if greater, one-fourth of the defined benefit dollar limitation set
forth in Code Section 415(b)(1) in effect for the Limitation Year.
(c) The "Limitation Year" is the Plan Year.
(d) The Compensation limitation referred to in Section
13.l(a)(ii) shall not apply to:
(i) any contribution for medical benefits (within the
meaning of Code Section 419A(f)(2)) after separation from service which
is otherwise treated as an Annual Addition; or
(ii) any amount otherwise treated as an Annual Addition
under Code Section 415(l)(1).
13.2 ANNUAL ADDITIONS. For purposes of Section 13.1, the term
"Annual Additions" shall mean, for any Limitation Year, the sum of all
Compensation Deferral Contributions, Matching Contributions, After-Tax
Contributions, and forfeitures which are allocated to a Participant's Account
and to a Participant's account under any other defined contribution plan
maintained by the Company or any Affiliated Company. The term "After-Tax
Contributions,"
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for purposes of the preceding sentence, shall mean amounts considered
contributed by the Employee and which do not qualify for tax deferral treatment
under Code Section 401(k).
13.3 OTHER DEFINED CONTRIBUTION PLANS. If the Company or any
Affiliated Company is contributing to any other defined contribution plan (as
defined in Code Section 415(i)) for Employees, some or all of whom may be
Participants in this Plan, then contributions to the other plan shall be
aggregated with contributions under this Plan for the purposes of applying the
limitations of Section 13.1.
13.4 COMBINED PLAN LIMITATION (DEFINED BENEFIT PLAN). In the event
a Participant hereunder also is a participant in any qualified defined benefit
plan (within the meaning of Code Section 415(k)) of the Company or an Affiliated
Company, then the benefit payable under such other defined benefit plan, or any
of them, shall be reduced for so long and to the extent necessary to provide
that the sum of the "defined benefit fraction" as defined in paragraph (a) below
and the "defined contribution fraction" as defined in paragraph (b) below, for
any Plan Year shall not exceed 1.
(a) "Defined Benefit Fraction" shall be a fraction, the
numerator of which is the projected benefit of a Participant under all qualified
defined benefit plans adopted by the Company and Affiliated Companies expressed
as either an annual straight life annuity or a qualified joint and survivor
annuity providing the maximum permissible survivor benefit (determined as of the
close of the Plan Year), and the denominator of which is the lesser of (i) the
maximum dollar amount otherwise allowable for such Plan Year under applicable
law times 1.25 or (ii) the Percentage of Compensation limit for such Plan Year
times 1.4.
(b) "Defined Contribution Fraction" shall be a fraction, the
numerator of which is the sum of the Annual Addition of the Participant's
Account under this Plan and any
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other defined contribution plans adopted by the Company or an Affiliated Company
for each Plan Year, and the denominator of which is the lesser for each such
Plan Year of (i) the maximum Annual Addition which could have been made under
this Plan and any other defined contribution plans adopted by the Company or an
Affiliated Company for such Plan Year and for each prior Plan Year of Service
with the Company times 25 or (ii) the amount determined under the percentage of
Compensation limit for such Plan Year times 1.4.
Notwithstanding anything to the contrary in this Plan, in the case of a
Participant who was also a participant before January 1, 1982 in a defined
benefit plan which was in existence on July 1, 1982, and with respect to which
the requirements of Code Section 415(b) had been met for all Plan Years, if such
Participant's current accrued benefit under such plan exceeds the limitation of
Code Section 415(b) for Plan Years commencing after January 1, 1983, then for
purposes of that plan and for purposes of this Section 13.4, the limitations of
Code Sections 415(b) and (c) with respect to such individual shall be equal to
the Participant's current accrued benefit under said plan. Solely for purposes
of determining the amount of such limitation, the term "current accrued benefit"
shall mean the Participant's accrued benefit under the defined benefit plan as
of the close of the last Plan Year beginning before January 1, 1983 when
expressed as an annual benefit, within the meaning of Code Section 415(b)(2) as
in effect for such Plan Year; provided, however, that such Participant's current
accrued benefit is not changed after July 1, 1982, and no cost-of-living
adjustment occurring after July 1, 1982 is taken into account.
In applying the provisions of this Section 13.4 in the case of a
defined benefit plan which satisfied the requirements of Code Section 415 for
the last Plan Year commencing prior to January 1, 1983, any reduction in a
Participant's benefit shall be in accordance with Code
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Section 415(e) and my regulations promulgated thereunder by the Secretary of the
Treasury. The reduction of a Participant's benefit due from qualified defined
benefit plans shall be made in accordance with uniform rules adopted jointly by
the parties responsible for the control and management of the operation and
administration of such plans.
13.5 ADJUSTMENTS FOR EXCESS ANNUAL ADDITIONS. In general, the
amount of excess for any Plan Year under this Plan and any other defined
contribution plan (as defined in Code Section 414(i)) or defined benefit plan
(as defined in Code Section 414(j)) maintained by the Company and any Affiliated
Company will be determined so as to avoid Annual Additions in excess of the
limitations set forth in Sections 13.1 through 13.4. However, if, as a result of
an administrative error in calculating contributions, the Annual Additions to a
Participant's Accounts under this Plan (after giving effect to the maximum
permissible adjustments under the other plans) would exceed the applicable
limitations described in Sections 13.1 through 13.4, the excess amount shall be
subject to the following rules:
(a) If the Participant made any voluntary after-tax
contributions to this or any other defined contribution plan that is maintained
by the Company, these contributions shall be returned to the Participant to the
extent of any excess Annual Additions, together with income allocable thereto
(or reasonably estimated to be allocable thereto).
(b) Any remaining excess Annual Additions allocated to the
Participant's Account shall be reduced to the extent necessary to eliminate the
remaining excess Annual Additions.
13.6 DISPOSITION OF EXCESS AMOUNTS. Any excess amounts contributed
by the Company on behalf of a Participant for any Plan Year shall be held
unallocated in a suspense account for the Plan Year and applied to reduce the
Company Contribution on behalf of such
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<PAGE> 64
Participant for succeeding Plan Years. Any amounts held in this suspense account
shall not participate in any allocation of forfeitures, or net income or loss of
other assets of the Trust Fund under Article VI.
Notwithstanding the foregoing, any excess amounts attributable to
Compensation Deferral Contributions on behalf of a Participant for a Plan Year,
together with income allocable thereto (or reasonably estimated to be allocable
thereto), shall be distributed to the Participant to the extent that the
distribution will reduce the excess amounts in the Participant's Account. Such
distribution shall he made in accordance with procedures determined by the
Committee.
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ARTICLE XIV
PLAN AMENDMENTS
14.1 AMENDMENTS. The Board of Directors may at any time, and from
time to time, amend the Plan by an instrument in writing executed in the name of
the Sponsor by an officer or officers duly authorized to execute such
instrument, and delivered to the Trustee. However, no amendment shall (a) cause
any assets of the Trust Fund to be used for, or diverted to purposes other than
providing benefits to Participants and their Beneficiaries, and defraying
reasonable expenses of administering the Plan, except as provided in Articles IV
and V; or (b) increase the responsibilities or liabilities of the Trustee or an
Investment Manager without his written consent.
14.2 RETROACTIVE AMENDMENTS. Notwithstanding any provision of this
Article XIV to the contrary, the Plan may be amended prospectively or
retroactively (as provided in Code Section 401(b)) to make the Plan conform to
any provision of ERISA, any Code provisions dealing with tax-qualified
employees' trusts, or any corresponding regulation.
14.3 AMENDMENT OF VESTING PROVISIONS. If the Plan is amended in any
way that directly or indirectly affects the computation of a Participant's
vested interest in his Account, each Participant who has completed at least
three Years of Service may elect, within a reasonable time after the adoption of
the amendment, to continue to have his vested interest computed under the Plan
without regard to such amendment.
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<PAGE> 66
ARTICLE XV
TOP-HEAVY PLAN RULES
15.1 APPLICABILITY. Notwithstanding any contrary provision in the
Plan, the provisions of this Article XV shall apply in the case of any Plan Year
in which the Plan is determined to be a Top-Heavy Plan.
15.2 DEFINITIONS.
(a) For purposes of this Article XV, the term "Key Employee"
shall mean any Employee who, at any time during the Plan Year or any of the four
preceding Plan Years, is or was:
(i) An officer of the Company or an Affiliated Company
having an annual Compensation greater than 150% of the amount in effect
under Code Section 415(c)(1)(A) for this Plan Year. However, no more
than 50 Employees (or, if less, the greater of three or ten percent of
the Employees) shall be treated as officers;
(ii) One of the ten Employees having annual Compensation
from the Company or an Affiliated Company of more than the limitation
in effect under Code Section 415(c)(1)(A) and owning (or considered as
owning within the meaning of Code Section 318) the largest interests in
the Company. For this purpose, if two Employees have the same interest
in the Company, the Employee having greater annual Compensation from
the Company shall be treated as having a larger interest;
(iii) A Five-Percent Owner of the Company; or
(iv) A One-Percent Owner of the Company having an annual
Compensation from the Company and all Affiliated Companies of more than
$150,000.
(b) For purposes of this Section 15.2, the term "Five-Percent
Owner" means any person who owns (or is considered as owning within the meaning
of Code Section 318) more
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<PAGE> 67
than five percent of the outstanding stock of the Company or stock possessing
more than five percent of the total combined voting power of all stock of the
Company. The rules of paragraphs (b), (c), and of Code Section 414 shall not
apply for purposes of applying these ownership rules.
(c) For purposes of this Section 15.2, the term "One-Percent
Owner" means any person who would be described in paragraph (b) if "one percent"
were substituted for "five percent" each place where it appears therein.
(d) For purposes of this Section 15.2, the rules of Code
Section 318(a)(2)(C) shall be applied by substituting "five percent" for "50%."
(e) For purposes of this Article XV, the term "Non-Key
Employee" shall mean any Employee who is not a Key Employee.
(f) For purposes of this Article XV, the terms "Key Employee"
and "Non-Key Employee" include their Beneficiaries.
15.3 TOP-HEAVY STATUS.
(a) The term "Top-Heavy Plan" means, with respect to any Plan
Year:
(i) Any defined benefit plan if, as of the Determination
Date, the present value of the cumulative accrued benefits under the
plan for Key Employees exceeds 60% of the present value of the
cumulative accrued benefits under the plan for all Employees; and
(ii) Any defined contribution plan if, as of the
Determination Date, the aggregate of the account balances of Key
Employees under the plan exceeds 60% of the aggregate of the account
balances of all Employees under the plan.
For purposes of this Subsection (a), the term "Determination Date" means, with
respect to any Plan Year, the last day of the preceding Plan Year.
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<PAGE> 68
The account balances under a defined contribution plan shall be
determined as of the most recent valuation date that falls within or ends on the
Determination Date. The present value of accrued benefits under a defined
benefit plan shall be determined as of the same valuation date used for
computing plan costs for minimum funding.
(b) Each plan maintained by the Company or an Affiliated
Company required to be included in an Aggregation Group shall be treated as a
Top-Heavy Plan if the Aggregation Group is a Top-Heavy Group.
(i) The term "Aggregation Group" means (A) each plan of
the Company or an Affiliated Company in which a Key Employee is a
participant, and (B) each other plan of the Company or an Affiliated
Company which enables any plan described in Subparagraph (A) to meet
the requirements of Code Section 401(a)(4) or 410. Also, any plan not
required to be included in an Aggregation Group under the preceding
rules may be treated as being part of such group if the group would
continue to meet the requirements of Code Sections 401(a)(4) and 410
with the plan being taken into account.
(ii) The term "Top-Heavy Group" means any Aggregation
Group if the sum (as of the Determination Date) of (A) the present
value of the cumulative accrued benefits for Key Employees under all
defined benefit plans included in the group, and (B) the aggregate of
the account balances of Key Employees under all defined contribution
plans included in the group exceeds 60% of a similar sum determined for
all Employees.
(iii) For purposes of determining (A) the present value of
the cumulative accrued benefit of any Employee, or (B) the amount of
the account balance of any Employee, such present value or amount shall
be increased by the aggregate
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<PAGE> 69
distributions made with respect to the Employee under the plan during
the five-year period ending on the Determination Date. The preceding
rule shall also apply to distributions under a terminated plan which;
if it had not been terminated, would have been required to be included
in an Aggregation Group. Also, any rollover contribution or similar
transfer initiated by the Employee and made after December 31, 1983 to
a plan shall not be taken into account with respect to the transferee
plan for purposes of determining whether such plan is a Top-Heavy Plan
(or whether any Aggregation Group which includes such plan is a
Top-Heavy Group).
(c) If any individual is a Non-Key Employee with respect to
any plan for any Plan Year, but the individual was a Key Employee with respect
to the Plan for any prior Plan Year, any accrued benefit for the individual (and
the account balance of the individual) shall not be taken into account for
purposes of this Section 15.3.
(d) If any individual has not received any Compensation from
the Company or an Affiliated Company (other than benefits under the Plan) at any
time during the five year period ending on the Determination Date, any accrued
benefit for such individual (and the account balance of the individual) shall
not be taken into account for purposes of this Section 15.3.
15.4 MINIMUM CONTRIBUTIONS. For each Plan Year in which the Plan is
Top-Heavy, the minimum contributions for that year shall be determined in
accordance with the rules of this Section 15.4.
(a) Except as provided below, the minimum contribution for
each Non-Key Employee who has not separated from service as of the last day of
the Plan Year shall be not less than three percent of his Compensation,
regardless of whether the Non-Key Employee has
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<PAGE> 70
completed 1,000 Hours of Service during such Plan Year, or whether the Non-Key
Employee has made any withdrawals pursuant to Section 8.6 during such Plan Year.
(b) Subject to the following rules of this paragraph (b), the
percentage set forth in paragraph (a) above shall not be required to exceed the
percentage at which contributions (including amounts deferred under a cash or
deferred arrangement under Code Section 401(k)) are made (or are required to be
made) under the Plan for the year for the Key Employee for whom the percentage
is the highest for the year. For purposes of this paragraph (b), all defined
contribution plans required to be included in an Aggregation Group shall be
treated as one plan. However, the rules of this paragraph (b) shall not apply to
any plan required to be included in an Aggregation Group if the plan enables a
defined benefit plan to meet the requirements of Code Section 401(a)(4) or 410.
(c) The requirements of this Section 15.4 must be satisfied
without taking into account contributions under Chapters 2 or 21 of the Code,
Title II of the Social Security Act, or any other Federal or State law.
(d) In the event a Participant is covered by both a defined
contribution and a defined benefit plan maintained by the Company or an
Affiliated Company, both of which are determined to be Top-Heavy Plans, the
defined benefit minimum, offset by the benefits provided under the defined
contribution plan, shall be provided under the defined benefit plan.
15.5 MAXIMUM ANNUAL ADDITION.
(a) Except as set forth below, in the case of any Top-Heavy
Plan the rules of Sections 13.4(a)(i) and 13.4(b)(i) shall be applied by
substituting "1.0" for " 1.25."
(b) The rule set forth in paragraph (a) above shall not apply
if the requirements of both paragraphs (i) and (ii) below are satisfied.
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<PAGE> 71
(i) The requirements of this paragraph are satisfied if
the rules of Section 15.4(a) above would be satisfied after
substituting "four percent" for "three percent" where it appears
therein with respect to Participants covered only under a defined
contribution plan.
(ii) The requirements of this paragraph are satisfied if
the Plan would not be a Top-Heavy Plan if "90% "were substituted for
"60%" each place it appears in Sections 15.3(a)(ii) and 15.3(b)(ii).
(c) The rules of paragraph (a) shall not apply with respect to
any Employee as long as there are no:
(i) Company Contributions, forfeitures, or voluntary
nondeductible contributions allocated to the Employee under a defined
contribution plan maintained by the Company or an Affiliated Company,
nor
(ii) accruals by the Employee under a defined benefit plan
maintained by the Company or an Affiliated Company.
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ARTICLE XVI
ADOPTION BY AFFILIATED COMPANIES
16.1 ADOPTION OF PLAN. An Affiliated Company may, with the consent
of the Board of Directors, adopt this Plan for the benefit of its Eligible
Employees by resolution of such Affiliated Company's board of directors, a
certified copy of which shall be filed with the Sponsor, the Committee and the
Trustee.
16.2 THE SPONSOR AS AGENT FOR THE COMPANY. Each Affiliated Company
which has adopted this Plan hereby irrevocably grants to the Sponsor full and
exclusive power conferred upon it to take or refrain from taking any and all
action which such Affiliated Company might otherwise take or refrain from taking
with respect to the Plan and the Trust, and each such Affiliated Company, by
adopting this Plan, irrevocably appoints the Sponsor its agent for such
purposes. Neither the trustee nor the Committee nor any other person shall have
any obligation to account to any such affiliated Company or to follow the
instructions of or otherwise deal with any such Affiliated Company, the
intention being that all persons shall deal solely with the Sponsor as if it
were the sole, Company which had adopted this Plan. Each such Affiliated Company
shall contribute such amounts as determined under Article V.
16.3 ADOPTION OF AMENDMENTS. Any Affiliated Company which adopts
the Plan may, with the consent of the Board of Directors, amend the Plan with
respect to its own employees by resolution of its board of directors by
submitting separate provisions as an Appendix to the Plan.
16.4 TERMINATION. Any Affiliated Company which adopts the Plan may,
with the consent of the Board of Directors, terminate this Plan with respect to
its own employees by resolution of its board of directors.
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16.5 DATA TO BE FURNISHED BY EMPLOYERS. Each Affiliated Company
which adopts this Plan shall furnish information and maintain such records with
respect to its Participants as called for hereunder, and its determinations and
notifications with respect thereto shall have the same force and effect as
comparable determinations by the Sponsor with respect to its Participants.
16.6 JOINT EMPLOYEES. If a Participant receives Compensation during
a Plan Year from more than one employer which is part of the Company the total
amount of such Compensation shall be considered for the purposes of the Plan,
and the respective employers shall share in contributions to the Plan on account
of said Participant based on the Compensation paid to such Participant by the
employer.
16.7 EXPENSES. Each employer which is part of the Company shall pay
such part of the necessary expenses incurred in the administration of the Plan
as the Sponsor shall determine.
16.8 WITHDRAWAL. An employer which is part of the Company may
withdraw from the Plan by giving 60 days' written notice to the Sponsor and the
Trustee, unless a shorter notice shall be agreed to by the Sponsor.
16.9 PRIOR PLANS. If an employer adopting the Plan already
maintains a defined contribution plan covering employees who will be covered by
the Plan, it may, with the consent of the Sponsor, provide in its resolution
adopting the Plan for the termination of its own plan or for the merger,
restatement and continuation of its own plan by the Plan.
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ARTICLE XVII
MISCELLANEOUS
17.1 NO ENLARGEMENT OF EMPLOYEE RIGHTS. Nothing contained in this
Plan or the Trust shall be deemed to give any Employee the right to be retained
in the employ of the Company or an Affiliated Company or to interfere with the
right of the Company or an Affiliated Company to discharge or retire any
Employee at any time. No Employee, nor any other person, shall have any right to
or interest in any portion of the Trust Fund other than as specifically provided
in this Plan.
17.2 NONALIENATION.
(a) The interest of any Participant in the benefits hereunder
shall not in any event be subject to sale, assignment, hypothecation, or
transfer. In the event any person attempts to take any action contrary to this
Article XVII, that action shall be void and the Company, the Committee, the
Trustees and all Participants shall suffer no liability for any disregard of
that action, and shall be reimbursed on demand out of the Trust Fund for the
amount of any loss, cost or expense incurred as a result of disregarding or of
acting in disregard of that action.
(b) The rules set forth in paragraph (a) shall not apply with
respect to a Qualified Domestic Relations Order.
(i) A "Qualified Domestic Relations Order" is a judgment,
decree, or order (including approval of a property settlement
agreement) that:
(A) creates or recognizes the existence of an
Alternate Payee's right to, or assigns to an Alternate Payee
the right to, receive all or a portion of the benefits payable
with respect to a Participant;
(B) relates to the provision of child support, alimony
payments, or marital property rights to a spouse, child or
other dependent of a Participant;
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<PAGE> 75
(C) is made pursuant to a state domestic relations law
(including a community property law); and
(D) clearly specifies:
(I) the name and last known mailing address (if
any) of the Participant and the name and mailing address of each
Alternate Payee covered by the order;
(II) the amount or percentage of the
Participant's benefits to be paid to each Alternate Payee, or the
manner in which the amount or percentage is to be determined;
(III) the number of payments or period to which
the order applies; and
(IV) each plan to which the order applies.
For purposes of this section, the term "Alternate Payee" means any spouse,
former spouse, child or other dependent of a Participant who is recognized by a
domestic relations order as having a right to receive all, or a portion of, the
benefits payable with respect to the Participant.
(ii) A domestic relations order is not a Qualified
Domestic Relations Order if it requires:
(A) the Plan to provide any type or form of benefit,
or any option, not otherwise provided under the Plan;
(B) the Plan to provide increased benefits
(determined on the basis of actuarial value); or
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<PAGE> 76
(C) the payment of benefits to an Alternate Payee
that are required to be paid to another Alternate Payee
under a previous Qualified Domestic Relations Order.
(iii) A domestic relations order shall not be considered
to fail to satisfy the requirements of this paragraph solely because
the order requires that payment of benefits be made to an Alternate
Payee:
(A) on or after the date on which the Participant
attains (or would have attained) age 50;
(B) as if the Participant had retired on the date on
which such payment is to begin under the order (based on the
value of the Participant's Account balances at that time); and
(C) in any form in which the benefits may be paid
under the Plan to the Participant.
(iv) In the case of any domestic relations order received
by the Plan:
(A) the Committee shall promptly notify the
Participant and any Alternate Payee of the receipt of the
order and the Plan's procedures for determining the qualified
status of domestic relations orders; and
(B) within a reasonable period after the receipt of
the order, the Committee shall determine whether the order is
a Qualified Domestic Relations Order and shall notify the
Participant and each Alternate Payee of the determination.
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(v) The Committee shall establish reasonable procedures
to determine the qualified status of domestic relations orders and to
administer distributions under Qualified Domestic Relations Orders.
(A) During any period in which the issue of whether a
domestic relations order is a Qualified Domestic Relations
Order is being determined, the Committee shall separately
account for the amounts which would have been payable to the
Alternate Payee during the period if the order had been
determined to be a Qualified Domestic Relations Order.
(B) If within 18 months the order (or modification
thereof) is determined to be a Qualified Domestic Relations
Order, the Committee shall pay the segregated amounts (plus
any interest thereon) to the Alternate Payee entitled thereto.
(C) If within 18 months:
(I) it is determined that the order is not a
Qualified Domestic Relations Order; or
(II) the issue as to whether Qualified Domestic
Relations Order is not resolved, the Committee shall pay
the segregated amounts (plus any interest thereon) to the
person or persons who would have been entitled to the
amounts if there had been no order.
(D) Any determination that an order is a Qualified
Domestic Relations Order that is made after the close of the
18 month period shall be applied prospectively only.
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17.3 MAILING OF PAYMENTS; LAPSED BENEFITS.
(a) All payments under the Plan shall be delivered in person
or mailed to the last address of the Participant or Beneficiary furnished
pursuant to Section 17.4.
(b) In the event that a benefit is payable under the Plan to a
Participant or any other person and after reasonable efforts such person cannot
be located for a period of seven years, the person shall be presumed dead and
the benefit shall be paid to the Participant's Beneficiary. If no Beneficiary
can be located, upon the termination of such seven year period the benefit shall
be forfeited and allocated in the same manner as forfeitures under the Plan.
(c) A Participant's Account shall continue to be maintained
until the it is are paid to the Participant or his Beneficiary. Notwithstanding
the foregoing, in the event that the Plan is terminated, the following rules
shall apply:
(i) all Participants (including Participants who have
not previously claimed their benefits under the Plan) shall be notified
of their right to receive a distribution of their interests in the
Plan;
(ii) all Participants shall be given a reasonable length
of time, which shall be specified in the notice, in which to claim
their benefits; and
(iii) all Participants (and their Beneficiaries) who do
not claim their benefits within the designated time period shall be
presumed to be dead. The Accounts of such Participants shall be
forfeited at such time. These forfeitures shall be disposed of
according to rules prescribed by the Committee, which rules shall be
consistent with applicable law.
(d) Should it be determined that the preceding rules relating
to forfeiture of benefits upon Plan termination are inconsistent with any of the
provisions of the Code or ERISA,
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these provisions shall become inoperative without the need for a Plan amendment
and the Committee shall prescribe rules that are consistent with the applicable
provisions of the Code and ERISA.
17.4 FACILITY OF PAYMENT. Whenever, in the Committee's opinion, a
person entitled to receive any payment of a benefit or installment hereunder is
under a legal disability or is incapacitated in any way so as to be unable to
manage his financial affairs, the Committee may make payments to such person or
to the Participant's legal representative or to a relative or friend of such
person for his benefit, or it may apply the payment for the benefit of such
person in such manner as it considers advisable. Any payment of benefit thereof
in accordance with the provisions of this Section shall be a complete discharge
of any liability for the making of such payment under the provisions of this
Plan.
17.5 ADDRESSES. Each Participant shall be responsible for
furnishing the Committee with current address and the correct current name and
address of his Beneficiary or Beneficiaries.
17.6 NOTICES AND COMMUNICATIONS. All communications from
Participants shall be in writing, on forms prescribed by the Committee and shall
be mailed or delivered to the office designated by the Committee, and shall be
deemed to have been given when received by that office. Each communication
directed to a Participant or Beneficiary shall be in writing and may be
delivered in person or by mail. An item shall be deemed to have been delivered
and received by the Participant when it is deposited in the United States Mail
with postage prepaid, addressed to the Participant or Beneficiary at his last
address of record with the Committee.
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17.7 REPORTING AND DISCLOSURE. The Plan Administrator shall be
responsible for the reporting and disclosure of information required to be
reported or disclosed by the Plan Administrator pursuant to ERISA or any other
applicable law.
17.8 GOVERNING LAW. The Plan shall be governed by the laws of the
United States of America and, to the extent permitted by such laws, by the laws
of the State of Illinois. All contributions made hereunder shall be deemed to
have been made in Illinois.
17.9 INTERPRETATION. Article and section headings are for
convenient reference only and shall not be deemed to be part of the substance of
this instrument or in any way to enlarge or limit the contents of any article or
section. Unless the context clearly indicates otherwise, masculine gender shall
include the feminine, and the singular shall include the plural and the plural
the singular. The provisions of the Plan shall in all cases be interpreted in a
manner that is consistent with the Plan satisfying the requirements of Code
Sections 401(a) and 401(k) and related statutes for a qualified cash or deferred
arrangement.
17.10 WITHHOLDING FOR TAXES. Any payments out of the Trust Fund
shall be subject to Withholding for taxes as may be required by any applicable
Federal or State law.
17.11 LIMITATION ON COMPANY, COMMITTEE AND TRUSTEE LIABILITY. Any
benefits payable under the Plan shall be paid or provided for solely from the
Trust Fund and neither the Company, the Committee nor the Trustee shall assume
any responsibility for the sufficiency of the assets of the Trust to provide the
benefits payable hereunder.
17.12 SUCCESSORS AND ASSIGNS. This Plan and the Trust shall inure to
the benefit of, and be binding upon, the parties hereto and their successors and
assigns.
17.13 COUNTERPARTS. This Plan document may be executed in any number
of identical counterparts, each of which shall be deemed a complete original.
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IN WITNESS WHEREOF, Budget Rent a Car Corporation has caused this
instrument to be executed by its duly authorized officers this 14th day of
December, 1994, effective, however, as of July 1, 1990.
BUDGET RENT A CAR CORPORATION
By: /s/ Jack McEnery
----------------------------------------
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BUDGET RENT A CAR CORPORATION
EMPLOYEE RETIREMENT PLAN
FOR COLLECTIVELY BARGAINED EMPLOYEES
Appendix 1
Schedules of Provisions Applicable to
Specific Collective Bargaining Units
SCHEDULE A: CHICAGO
Effective date of participation: July 1, 1988
4.4 After-Tax Contributions. An Eligible Employee employed with the Chicago
location of the Company may elect to make After-Tax Contributions
effective April 1, 1994, in accordance with the following:
(a) Any election to make After-Tax Contributions shall be made on
such form and in such manner as the Committee may require.
(b) Elections to make After-Tax Contributions must be in whole
percentages from one percent (1%) to ten percent (10%) of
his Compensation per pay period.
(c) The total of a Participant's After-Tax Contributions under
this Plan and any other qualified plan maintained by the
Company may not at any time exceed ten percent (10%) of the
Participant's aggregate Compensation for all Plan Years in
which he participates in this Plan and any other qualified
plan maintained by the Company.
(d) After-Tax Contributions shall be made by means of payroll
deduction.
(e) A Participant may elect to change his rate of After-Tax
Contributions or suspend After-Tax Contributions at the same
time and in the same manner as provided for in Section 4.1(b).
(f) Any Participant who suspends After-Tax Contributions may
recommence such contributions in accordance with Section
4.1(b).
(g) Contributions made pursuant to this provision shall be
allocated to the Participant's After-Tax Account. Such
contributions and earnings thereon shall be one hundred
percent (100%) vested at all times.
Appendix 1
Page 1
<PAGE> 83
5.1(c) Matching Contribution under Section 5. 1 (c)
<TABLE>
<CAPTION>
Maximum
Percentage of Percentage of
Effective Compensation Compensation
Date of Contributed as Deferral
Matching Compensation Contribution
Covered Participants Contribution Deferral Matched
-------------------- ------------ -------------- -------------
<S> <C> <C> <C>
Service Agents 10/1/90 6% 25%
4/1/94 15% 25% of 1st 6%
Customer Service 1/1/91 6% 25%
Representatives
4/1/94 15% 25% of 1st 6%
Accounting Clerks 1/1/94 15% 75% of 1st 6%
50% of 2nd 2%
25% of 3rd 2%
</TABLE>
8.6(a) Non-hardship Withdrawal Frequency. Once per calendar quarter.
Appendix 1
Page 2
<PAGE> 84
SCHEDULE B: DETROIT
Effective date of participation: July 1, 1990.
5.1 (c) Matching Contribution under Section 5.1(c)
<TABLE>
<CAPTION>
Maximum
Percentage of Percentage of
Effective Compensation Compensation
Date of Contributed as Deferral
Matching Compensation Contribution
Covered Participants Contribution Deferral Matched
-------------------- ------------ -------------- ------------
<S> <C> <C> <C>
7/1/90 6% 25%
</TABLE>
4.4 After-tax Contributions.
An Eligible Employee employed with the Detroit location of the Company
may elect to make After-Tax Contributions in accordance with the
following:
(a) Any election to make After-Tax Contributions shall be made on
such form and in such manner as the Committee may require.
(b) Elections to make After-Tax Contributions must be in whole
percentages from one percent (1%) to ten percent (10%) of his
Compensation per pay period.
(c) The total of a Participant's After-Tax Contributions under
this Plan and any other qualified plan maintained by the
Company may not at any time exceed ten percent (10%) of the
Participant's aggregate Compensation for all Plan Years in
which he participates in this Plan and any other qualified
plan maintained by the Company.
(d) After-Tax Contributions shall be made by means of payroll
deduction.
(e) A Participant may elect to change his rate of After-Tax
Contributions or suspend After-Tax Contributions at the same
time and in the same manner as provided for in Section 4.1(b).
(f) Any Participant who suspends After-Tax Contributions may
recommence such contributions in accordance with Section
4.1(b).
(g) Contributions made pursuant to this provision shall be
allocated to the Participant's After-Tax Account. Such
contributions and earnings thereon shall be one hundred
percent (100%) vested at all times.
8.2(a) Early Retirement.
Appendix 1
Page 3
<PAGE> 85
A Participant employed with the Detroit location of the Company may
elect to terminate employment prior to his Normal Retirement Date and
retire on an Early Retirement Date which may be the first day of any
month on or following the date he attains age fifty-five (55).
8.2(a) Disability
"Total and Permanent Disability" for a Participant employed at the
Detroit location of the Company shall be deemed to exist for purposes
of this Plan, notwithstanding the definition of "Total and Permanent
Disability" in Article II of the Plan, if he develops a physical or
mental condition resulting from bodily injury, disease, or mental
disorder which renders him incapable of continuing his usual and
customary employment with the Company. The disability of a Participant
shall be determined by a licensed physician chosen or approved by the
Committee. Such determination shall be applied uniformly to all
Participants eligible for disability benefits as provided in this
Schedule; provided, however, that if Participant meets the requirements
for disability under the Social Security law then in effect, he shall
be deemed to have a Total and Permanent Disability for purposes of this
Plan.
The disability benefit payable to a Participant whose employment with
the Detroit location of the Company is terminated due to disability
shall be equal to the value of his Accounts.
Distribution of a disability benefit shall be made or commence to be
made, at the option of the disabled Participant, at any time subsequent
to the date his employment with the Company is terminated. Such
distribution shall be made in accordance with Section 8.2.
8.6(a) Non-hardship Withdrawal Frequency: Once per month.
Appendix 1
Page 4
<PAGE> 86
SCHEDULE C: NEW ORLEANS
Effective Date of Participation: January 1, 1991
5.1(c) Matching Contribution under Section 5.1(c)
<TABLE>
<CAPTION>
Maximum
Percentage of Percentage of
Effective Compensation Compensation
Date of Contributed as Deferral
Matching Compensation Contribution
Covered Participants Contribution Deferral Matched
-------------------- ------------ -------------- -------------
<S> <C> <C> <C>
1/1/91 6% 15%
1/1/94 6% 25%
</TABLE>
8.2(a) Early Retirement.
A Participant employed with the New Orleans location of the Company may
elect to terminate employment prior to his Normal Retirement Date and
retire on an Early Retirement Date which may be the first day of any
month on or following the date he attains age fifty-five (55).
8.6(a) Non-hardship Withdrawal Frequency: Once per calendar quarter.
Appendix 1
Page 5
<PAGE> 87
SCHEDULE D: NASHVILLE
Effective Date of Participation: April 5, 1991
5.1(c) Matching Contribution under Section 5.1(c)
<TABLE>
<CAPTION>
Maximum
Percentage of Percentage of
Effective Compensation Compensation
Date of Contributed as Deferral
Matching Compensation Contribution
Covered Participants Contribution Deferral Matched
-------------------- ------------ -------------- -------------
<S> <C> <C> <C>
4/5/91 6% 25%
4/1/94 6% 50%
</TABLE>
8.6(a) Non-hardship Withdrawal Frequency: Once per calendar quarter.
Appendix 1
Page 6
<PAGE> 88
SCHEDULE E: LOS ANGELES
Effective Date of Participation: March 1, 1994
4.4 After-tax Contributions. An Eligible Employee employed with the Los
Angeles location of the Company may elect to make After-Tax
Contributions, in accordance with the following:
(a) Any election to make After-Tax Contributions shall be made on
such form and in such manner as the Committee may require.
(b) Elections to make After-Tax Contributions must be in whole
percentages from one percent (1%) to ten percent (10%) of his
Compensation per pay period.
(c) The total of a Participant's After-Tax Contributions under
this Plan and any other qualified plan maintained by the
Company may not at any time exceed ten percent (10%) of the
Participant's aggregate Compensation for all Plan Years in
which he participates in this Plan and any other qualified
plan maintained by the Company.
(d) After-Tax Contributions shall be made by means of payroll
deduction.
(e) A Participant may elect to change his rate of After-Tax
Contributions or suspend After-Tax Contributions at the same
time and in the same manner as provided for in Section 4.1(b).
(f) Any Participant who suspends After-Tax Contributions may
recommence such contributions in accordance with Section
4.1(b).
(g) Contributions made pursuant to this provision shall be
allocated to the Participant's After-Tax Account. Such
contributions and earnings thereon shall be one hundred
percent (100%) vested at all times.
5.1 (c) Matching Contribution under Section 5.1(c)
<TABLE>
<CAPTION>
Maximum
Percentage of Percentage of
Effective Compensation Compensation
Date of Contributed as Deferral
Matching Compensation Contribution
Covered Participants Contribution Deferral Matched
-------------------- ------------ -------------- -------------
<S> <C> <C> <C>
4/1/94 15% 25% of 1st 6%
</TABLE>
8.6(a) Non-hardship Withdrawal Frequency: Once per calendar quarter.
Appendix 1
Page 7
<PAGE> 89
SCHEDULE F: HAWAII
Effective Date of Participation: October 1, 1994
4.4 After-tax Contributions. An Eligible Employee employed with the Hawaii
location of the Company may elect to make After-Tax Contributions in
accordance with the following:
(a) Any election to make After-Tax Contributions shall be made on
such form and such manner as the Committee may require.
(b) Elections to make After-Tax Contributions must be in whole
percentages from one percent (1%) to ten percent (10%) of his
Compensation per pay period.
(c) The total of a Participant's After-Tax Contributions under
this Plan and any other qualified plan maintained by the
Company may not at any time exceed ten percent (10%) of the
Participant's aggregate Compensation for all Plan Years in
which he participates in this Plan and any other qualified
plan maintained by the Company.
(d) After-Tax Contributions shall be made by means of payroll
deduction.
(e) A Participant may elect to change his rate of After-Tax
Contributions or suspend After-Tax Contributions at the same
time and in the same manner as provided for in Section 4.1(b).
(f) Any Participant who suspends After-Tax Contributions may
recommence such contributions in accordance with Section
4.1(b).
(g) Contributions made pursuant to this provision shall be
allocated to the Participant's After-Tax Account. Such
contributions and earnings thereon shall be one hundred
percent (100%) vested at all times.
5.1(c) Matching Contribution under Section 5.1(c)
<TABLE>
<CAPTION>
Maximum
Percentage of Percentage of
Effective Compensation Compensation
Date of Contributed as Deferral
Matching Compensation Contribution
Covered Participants Contribution Deferral Matched
-------------------- ------------ --------------- --------------
<S> <C> <C> <C>
10/1/94 6% 25%
</TABLE>
Appendix 1
Page 8
<PAGE> 90
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I INTRODUCTION.................................................................................1
ARTICLE II DEFINITIONS..................................................................................2
ARTICLE III ELIGIBILITY AND PARTICIPATION................................................................16
3.1 Commencement of Participation................................................................16
3.2 Cessation of Participation...................................................................16
ARTICLE IV EMPLOYEE CONTRIBUTIONS.......................................................................18
4.1 Compensation Deferral Agreement..............................................................18
4.2 Limitations on Compensation Deferral Contributions...........................................19
4.3 Return of Deferrals Over $7,000..............................................................23
4.4 After-Tax Contributions......................................................................24
4.5 Rollovers....................................................................................25
ARTICLE V COMPANY CONTRIBUTIONS........................................................................27
5.1 Amount and Allocation of Contributions.......................................................27
5.2 Code Section 401(m) Limitation on After-Tax Contributions and Matching Contributions.........27
5.3 Multiple Use.................................................................................31
ARTICLE VI PARTICIPANT ACCOUNTS.........................................................................33
6.1 Accounting Procedures........................................................................33
6.2 Valuation of Accounts........................................................................33
ARTICLE VII TRUST FUND...................................................................................35
7.1 Trust Fund...................................................................................35
7.2 Investment of Trust Assets...................................................................35
7.3 Irrevocability...............................................................................36
7.4 Company, Committee and Trustee Not Responsible for Adequacy of Trust Fund....................36
ARTICLE VIII VESTING; PAYMENT OF PLAN BENEFITS............................................................37
8.1 Vesting......................................................................................37
8.2 Distribution Upon Retirement or Disability...................................................37
8.3 Distribution Upon Death......................................................................38
8.4 Distribution Upon Termination of Employment Prior to Retirement..............................39
8.5 Timing of Distribution.......................................................................40
8.6 Withdrawals..................................................................................41
8.7 Facility of Payment..........................................................................44
8.8 Additional Documents.........................................................................44
8.9 Direct Rollover of Eligible Rollover Distributions...........................................44
</TABLE>
i
<PAGE> 91
Table of Contents
(continued)
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE IX OPERATION AND ADMINISTRATION OF THE PLAN.....................................................47
9.1 Plan Administration..........................................................................47
9.2 Committee Powers.............................................................................47
9.3 Investment Manager...........................................................................48
9.4 Committee Procedure..........................................................................49
9.5 Compensation of Committee....................................................................49
9.6 Resignation and Removal of Members...........................................................49
9.7 Appointment of Successors....................................................................49
9.8 Records......................................................................................50
9.9 Reliance Upon Documents and Opinions.........................................................50
9.10 Requirement of Proof.........................................................................50
9.11 Reliance on Committee Memorandum.............................................................51
9.12 Multiple Fiduciary Capacity..................................................................51
9.13 Limitation on Liability......................................................................51
9.14 Indemnification..............................................................................51
9.15 Bonding......................................................................................52
9.16 Plan Expenses................................................................................52
ARTICLE X MERGER OF COMPANY; MERGER OF PLAN............................................................53
10.1 Effect of Reorganization or Transfer of Assets...............................................53
10.2 Merger Restriction...........................................................................53
ARTICLE XI PLAN TERMINATION AND DISCONTINUANCE OF CONTRIBUTIONS.........................................54
11.1 Plan Termination.............................................................................54
11.2 Discontinuance of Contributions..............................................................54
11.3 Rights of Participants.......................................................................55
11.4 Partial Termination..........................................................................55
11.5 Failure to Contribute........................................................................56
11.6 Distributions Upon Sale of Assets or Subsidiary..............................................56
ARTICLE XII APPLICATION FOR BENEFITS.....................................................................57
12.1 Application for Benefits.....................................................................57
12.2 Action on Application........................................................................57
12.3 Appeals......................................................................................58
ARTICLE XIII LIMITATIONS ON CONTRIBUTIONS.................................................................59
13.1 General Rule.................................................................................59
13.2 Annual Additions.............................................................................59
13.3 Other Defined Contribution Plans.............................................................60
13.4 Combined Plan Limitation (Defined Benefit Plan)..............................................60
13.5 Adjustments for Excess Annual Additions......................................................62
13.6 Disposition of Excess Amounts................................................................62
</TABLE>
ii
<PAGE> 92
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE XIV PLAN AMENDMENTS..............................................................................64
14.1 Amendments...................................................................................64
14.2 Retroactive Amendments.......................................................................64
14.3 Amendment of Vesting Provisions..............................................................64
ARTICLE XV TOP-HEAVY PLAN RULES.........................................................................65
15.1 Applicability................................................................................65
15.2 Definitions..................................................................................65
15.3 Top-Heavy Status.............................................................................66
15.4 Minimum Contributions........................................................................68
15.5 Maximum Annual Addition......................................................................69
ARTICLE XVI ADOPTION BY AFFILIATED COMPANIES.............................................................71
16.1 Adoption of Plan.............................................................................71
16.2 The Sponsor as Agent for the Company.........................................................71
16.3 Adoption of Amendments.......................................................................71
16.4 Termination..................................................................................72
16.5 Data to Be Furnished by Employers............................................................72
16.6 Joint Employees..............................................................................72
16.7 Expenses.....................................................................................72
16.8 Withdrawal...................................................................................72
16.9 Prior Plans..................................................................................72
ARTICLE XVII MISCELLANEOUS................................................................................73
17.1 No Enlargement of Employee Rights............................................................73
17.2 Nonalienation................................................................................73
17.3 Mailing of Payments; Lapsed Benefits.........................................................77
17.4 Facility of Payment..........................................................................78
17.5 Addresses....................................................................................78
17.6 Notices and Communications...................................................................78
17.7 Reporting and Disclosure.....................................................................79
17.8 Governing Law................................................................................79
17.9 Interpretation...............................................................................79
17.10 Withholding for Taxes........................................................................79
17.11 Limitation on Company, Committee and Trustee Liability.......................................79
17.12 Successors and Assigns.......................................................................79
17.13 Counterparts.................................................................................79
</TABLE>
iii
