<NOTE>
FEE PAID VIA FEDWIRE
</NOTE>
Washington, D.C.
______________________
Form S-8
Registration Statement
Under
The Securities Act of 1933
______________________
The Colonial BancGroup, Inc.
(Exact name of registrant as specified in its charter)
Delaware 63-0661573
(State of Incorporation) (I.R.S. Employer Identification No.)
One Commerce Street, Suite 800
Montgomery, Alabama 36104 (334) 240-5000
(Address of principal executive offices) (Telephone No.)
The Colonial 401(k) and Profit Sharing Plan
(Full title of plan)
W. Flake Oakley, IV Copies to:
Chief Financial Officer, Treasurer
and Secretary Michael D. Waters
Post Office Box 1108 Miller, Hamilton, Snider & Odom
Montgomery, Alabama 36102 One Commerce Street, Suite 802
(334) 240-6035 Montgomery, Alabama 36103
(Name, address and telephone number (334) 834-5550
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of Securities Amount to be Prop. Max. Offering Prop. Max. Aggregate Amount of Fee
to be Registered Registered Price Per Unit Offering Price
Common Stock par
value $2.50 per 500,000 $29.3125 $14,656,250 $5,053.88(1)
share
Participation
Interests (2)
<FN>
(1) Calculated pursuant to Rule 457(h).
(2) In addition, pursuant to Rule 416(c) under the Securities Act
of 1933, this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
</FN>
</TABLE>
PART I
The documents specified in Part I of Form S-8 are omitted in
accordance with the 'Note' to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant, The Colonial BancGroup, Inc., and The Colonial
401(k) and Profit Sharing Plan (the "Plan"), hereby incorporate,
the following documents by reference in this registration
statement: All documents subsequently filed by the Registrant or
the Plan pursuant to sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") prior to the
filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof
from the date of filing of such documents:
(a) The Registrant's and the Plan's latest annual report filed
pursuant to Section 13(a) or 15(d) of the Exchange Act that
contains audited financial statements for the registrant's and the
Plan's latest fiscal year for which such statements have been filed,
i.e., the Annual Report on Form 10-K for the fiscal year ending
December 31, 1994 except to the extent that items 7, 8 and 14 of such
report are superceded by BancGroup's Form 8-K referred to in item
(b)(4) below and the Plan's Form 11-K for the fiscal year ending
December 31, 1994.
(b) (1) The Registrant's quarterly reports on Form 10-Q for
the quarters ended March 31, 1995 and June 30,
1995;
(2) The Registrant's report on Form 8-K dated February
21, 1995;
(3) The Registrant's report on Form 8-K/A dated April
21, 1995;
(4) The Registrant's report on Form 8-K dated July 10,
1995; and
(c) The Registrant's Form 8-A dated November 22, 1994,
effective February 22, 1995 containing a description of the
Registrant's common stock.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal issues respecting the shares of Common Stock of
the Registrant to be issued are being passed upon by the law firm
of Miller, Hamilton, Snider & Odom, L.L.C. Post Office Box 46,
Mobile, Alabama 36601. John C. H. Miller, Jr., a partner in such
firm, is a director of the Registrant. Mr. Miller owns 11,173
shares of Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers.
Pursuant to Section 145 of the Delaware General Corporation
Law, officers, directors, employees and agents of the Registrant
are entitled to indemnification against liabilities incurred while
acting in such capacities on behalf of the Registrant, including
reimbursement of certain expenses. In addition, the Registrant
maintains an officers' and directors' insurance policy and a
separate indemnification agreement pursuant to which directors and
certain officers of the registrant would be entitled to
indemnification against certain liabilities, including
reimbursement of certain expenses.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.(A) Article 4 of the Restated Certificate of
Incorporation of the Registrant filed as Exhibit
4.1 to the Registrant's Report on Form 8-K, dated
February 21, 1995, and incorporated herein by
reference.
4.(B) Article II of the Bylaws of the Registrant filed as
Exhibit 4.2 to the Registrant's Report on Form 8-K,
dated February 21, 1995, and incorporated herein by
reference.
4.(C) The Colonial 401(k) and Profit Sharing Plan
5. Opinion of Miller, Hamilton, Snider & Odom, L.L.C.
as to certain issues regarding the securities being
registered.
UNDERTAKING: The registrant has submitted a request to the Internal
Revenue Service for a determination that the Plan, as amended, is a
qualified plan under section 401 of the Internal Revenue Code. The
registrant hererby undertakes that it will make all changes required
by the IRS in order to qualify such plan.
23.(A) Consents of Coopers & Lybrand.
23.(B) Consent of Miller, Hamilton, Snider & Odom, L.L.C.
24 Power of attorney filed as Exhibit 25 of the
Registrant's Annual Report on Form 10-K for the
fiscal year ending December 31, 1994 and
incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Exchange Act (and, where applicable, each
filing of the Plan's annual report pursuant to section 15(d) of the
Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
provisions summarized in Item 6 of this Registration Statement, or
otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of
Montgomery, Alabama, on the 2 day of October, 1995.
THE COLONIAL BANCGROUP, INC.
BY: /s/ Robert E. Lowder
Its Chairman of the Board
of Directors, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/ Robert E. Lowder
_____________________________ Chairman of the Board **
Robert E. Lowder of Directors, President
and Chief Executive Officer
/s/ W. Flake Oakley, IV
______________________________ Chief Financial Officer, **
W. Flake Oakley, IV Treasurer and Secretary
*
______________________________ Director **
Young J. Boozer
*
______________________________
William Britton Director **
*
______________________________ Director **
Jerry J. Chesser
______________________________ Director **
Augustus K. Clements, III
*
______________________________ Director **
Robert Craft
*
______________________________ Director **
Patrick F. Dye
*
______________________________ Director **
Clinton O. Holdbrooks
*
______________________________ Director **
D. B. Jones
*
______________________________ Director **
Harold D. King
*
______________________________ Director **
John Ed Mathison
*
______________________________ Director **
Milton McGregor
*
______________________________ Director **
John C. H. Miller, Jr.
*
______________________________ Director **
Joe D. Mussafer
*
______________________________ Director **
William E. Powell, III
*
______________________________ Director **
Jack H. Rainer
*
______________________________ Director **
Frances E. Roper
*
______________________________ Director **
Ed V. Welch
* The undersigned, acting pursuant to a power of attorney, has
signed this registration statement on form S-8 for and on
behalf of the persons indicated above as such persons true and
lawful, attorney-in-fact and in their names, places and stead,
in the capacities indicated above and on the date indicated
below.
/s/ W. Flake Oakley, IV
________________________
W. Flake Oakley, IV
Attorney-in-Fact
**Date: October 2, 1995
EXHIBIT INDEX
EXHIBIT PAGE
Ex-4.(A) Article 4 of the Restated Certificate of
Incorporation of the Registrant filed as Exhibit
4.1 to the Registrant's Report on Form 8-K, dated
February 21, 1995, and incorporated herein by
reference.
Ex-4.(B) Article II of the Bylaws of the Registrant filed as
Exhibit 4.2 to the Registrant's Report on Form 8-K,
dated February 21, 1995, and incorporated herein by
reference.
Ex-4.(C) The Colonial 401(k) and Profit Sharing Plan
Ex-5. Opinion of Miller, Hamilton, Snider & Odom, L.L.C.
as to certain issues regarding the securities being
registered.
Ex-23.(A) Consents of Coopers & Lybrand
Ex-23.(B) Consent of Miller, Hamilton, Snider & Odom, L.L.C.
Ex-24 Power of Attorney filed as Exhibit 25 to the
Registrant's Annual Report on Form 10-K for the
fiscal year ending December 31, 1994, and
incorporated herein by reference.
Ex-4.(A)
Article 4 of the Restated Certificate of Incorporation of the
Registrant, filed as Exhibit 4.1 to the Registrant's Report on Form
8-K, dated February 21, 1995, is incorporated herein by reference.
Ex-4.(B)
Article II of the Bylaws of the Registrant, filed as Exhibit
4.2 to the Registrant's Report on Form 8-K, dated February 21,
1995, is incorporated herein by reference.
Ex-4.(C)
THE COLONIAL 401(k) AND
PROFIT SHARING PLAN
Amended and Restated
Effective January 1, 1991
THE COLONIAL 401(k) AND
PROFIT SHARING PLAN
Introduction
Effective October 1, 1983, The Colonial Company (the Company),
adopted The Colonial Company Thrift Plan and Trust Agreement (the
Plan), which provided for profit sharing contributions and employee
after-tax contributions. Effective January 1, 1986, the Plan was
amended and restated to change the employee after-tax contributions
to before-tax contributions under Section 401(k) of the Internal
Revenue Code (the Code) and to provide for Company matching
contributions. The name of the Plan was changed to The Colonial
Company Employees' Incentive Savings Plan. Effective January 1,
1987, the name of the Plan was changed to The Colonial Company
Profit Sharing Plan. Effective January 1, 1991, the name of the
Plan is again changed to The Colonial 401(k) and Profit Sharing
Plan.
Other amendments to the 1986 restated Plan were as follows: (1)
Amendment No. 1 effective January 1, 1987 and January 1, 1988, (2)
Amendment No. 2 effective January 1, 1987 and January 1, 1988, (3)
Amendment No. 3 effective January 1, 1987, (4) Amendment No. 4
effective August 1, 1988, (5) Amendment No. 5 effective January 1,
1989, and (6) Amendment No. 6 effective January 1, 1988.
Effective January 1, 1991, the Plan is amended and restated to
incorporate the six amendments made since the January 1, 1986
restatement, and to comply with amendments made to the Code and the
Employee Retirement Income Security Act (ERISA) by the Tax Reform
Act of 1986, the Omnibus Budget Reconciliation Act of 1986, the
Technical and Miscellaneous Revenue Act of 1988, the Unemployment
Compensation Act of 1992, the Omnibus Budget Reconciliation Act of
1993, and Treasury Department Regulations, Department of Labor
Regulations, and other publications issued under those statutes.
The procedures for qualifying and administering domestic relations
orders are set forth in Addendum A. The Addendum is attached to
the main document, and is an integral part of the Plan.
The rights of any employee who terminated employment before the
effective date of this restatement of the Plan will be governed by
the Plan as in effect on the employee's termination date. All
other Participants will be entitled to benefits payable under the
Plan as amended and in effect on January 1, 1991.
THE COLONIAL 401(k) AND
PROFIT SHARING PLAN
Table of Contents
Page
ARTICLE 1 - DEFINITIONS
1.1 ACP Test 1
1.2 ADP Test 1
1.3 Accounts 1
(a) Employer Contribution Accounts 1
(b) Employee Contribution Accounts 2
(c) Rollover Account 3
1.4 Actual Contribution Ratio (ACR) 3
1.5 Actual Deferral Ratio (ADR) 3
1.6 Addenda 3
1.7 Adoption Agreement 3
1.8 Affiliated Company 4
1.9 After-Tax Account 4
1.10 Average Contribution Percentage (ACP) 4
1.11 Average Deferral Percentage (ADP) 4
1.12 Before-Tax Account 4
1.13 Before-Tax Contribution 4
1.14 Board 4
1.15 Break in Service 4
1.16 Code 4
1.17 Committee 5
1.18 Company 5
1.19 Company Stock 5
1.20 Compensation 5
(a) Contributions and Nondiscrimination
Testing 5
(b) Code Section 415 Limitations and
Deductibility of Employer Contributions 6
(c) Statutory Cap 6
1.21 Contributions 7
(a) Employer Contributions 7
(b) Before-Tax Contributions 8
(c) Rollover Contributions 9
1.22 Controlled Group 9
1.23 Disability 9
1.24 Effective Date 9
1.25 Eligible Employee (or Employee) 9
1.26 Employer 10
1.27 Employer Contribution Accounts 10
1.28 Employer Contributions 10
1.29 Employment 10
1.30 Employment Date 10
1.31 Enrollment Date 10
1.32 ERISA 11
1.33 Excess ACP Contributions 11
1.34 Excess ADP Deferrals 11
1.35 Excess Dollar Deferrals 11
1.36 Family Unit 11
1.37 Five-Year Break 11
1.38 HCE Group 12
1.39 Highly Compensated Employee (HCE) 12
(a) Applicable Definitions 12
(b) Identifying HCEs 13
(c) Indexing 15
(d) Family Aggregation Rules 15
1.40 Hours of Service 15
(a) Periods of Credit 15
(b) Periods of No Credit 16
(c) Crediting Hours of Service - General Rule 17
(d) Crediting Hours of Service - Special Rules 17
1.41 Matching Account 19
1.42 Matching Contribution 19
1.43 NCE Group 19
1.44 Nonhighly Compensated Employee (NCE) 19
1.45 Normal Retirement Age 19
1.46 One-Year Break 19
1.47 Participant 20
1.48 Plan 20
1.49 Plan Administrator 20
1.50 Plan Year 20
1.51 Pre-1987 Vested Account 20
1.52 Profit Sharing Account 20
1.53 Profit Sharing Contribution 20
1.54 Required Beginning Date 20
(a) Participant 20
(b) Beneficiaries 21
1.55 Rollover Account 21
1.56 Rollover Contribution 21
1.57 Safe Harbor Account 21
1.58 Safe Harbor Contribution 22
1.59 Spouse 22
1.60 Termination Date 22
1.61 Trust (or Trust Fund) 22
1.62 Trustee 22
1.63 Valuation Date 22
1.64 Vested Percentage 23
1.65 Vesting Service 23
1.66 Years of Service 23
(a) Employment With A Controlled Group Member 23
(b) Period Before An Employer Adopted the Plan 23
(c) Employment Before A Five-Year Break 23
ARTICLE 2 - ELIGIBILITY
2.1 Eligibility 25
(a) Before 1991 25
(b) After 1990 25
2.2 Participation Upon Reemployment 25
(a) Fully Vested Participant 25
(b) Partially Vested Participant 26
(c) Nonvested Participants 27
(d) Nonparticipating Employees 28
2.3 Leased Employees 28
ARTICLE 3 - CONTRIBUTIONS
3.1 Employee Contributions 30
(a) Before-Tax Only 30
(b) Vesting 31
(c) Election to Participate 31
3.2 Employer Contributions 34
(a) Matching Contribution 34
(b) Profit Sharing Contribution 34
(c) Safe-Harbor Contribution 34
(d) Vesting 37
(e) Forfeiture 38
(f) Exclusive Benefit of Participants 38
(g) Deductibility 39
(h) Payment to the Trustee 39
(i) Return of Employer Contributions 40
3.3 Rollover Contributions 40
(a) Eligible Rollover Distribution 40
(b) Rollover or Direct Plan Transfer 41
(c) Timing 41
(d) Required Information 41
(e) Prohibited Rollovers and Transfers 42
(f) Refund of Prohibited Rollovers 42
(g) Reliance on Participant's Representations 42
ARTICLE 4 - INDIVIDUAL ACCOUNTS
4.1 Adjustments to Account Balances 44
(a) Regular Valuation Dates 44
(b) Special Valuation Dates 45
(c) Valuations Binding 45
(d) Allocation Date 45
(e) Statement of Account Balances 45
(g) Correction of Mistakes 45
4.2 Investment Election 47
(a) Available Funds 47
(b) Liquidity 48
(c) Participant Elections 48
(d) Failure to Elect 48
(e) Allocation of Earnings 49
(f) Special Election Date 49
(g) Voting of Company Stock 49
ARTICLE 5 - INSERVICE WITHDRAWALS
5.1 Limitation on Frequency of Inservice
Withdrawals 50
5.2 Withdrawal Fee 50
5.3 Inservice Withdrawal from After-Tax
and Pre-1987 Vested Accounts 50
5.4 Inservice Withdrawal After Age 59 1/2 51
5.5 Inservice Withdrawal After Age 70 1/2 51
5.6 Hardship Withdrawals 52
(a) Application 52
(b) Available Amount 53
(c) Immediate and Heavy Financial Need 53
(d) No Other Available Resources 54
(e) Nondiscrimination 55
(f) Reliance on Participant's Representations 55
ARTICLE 6 - POST-EMPLOYMENT DISTRIBUTIONS
6.1 Payment Events 56
(a) Retirement 56
(b) Termination of Employment Before Age 65 57
(c) Disability 57
(d) Death 57
6.2 Amount, Form and Timing of Payment 57
(a) Application for and Timing of Payment 57
(b) Right to Defer Payment 58
(c) Amount of Payment 58
(d) Form of Payment 59
(e) Medium of Payment 59
(f) Withdrawal Fee 59
(g) Direct Rollover 59
(h) Constructive Cash-Out 60
(i) Latest Payment Date 60
(j) Compliance with Code Section 401(a)(9) 61
6.3 Designation of Beneficiaries 61
(a) Procedure 61
(b) Waiver of Spouse's Rights 62
(c) Judicial Determination 62
6.4 Payment to the Participant's Representative 63
6.5 Unclaimed Benefits 63
ARTICLE 7 - LIMITATIONS ON ALLOCATIONS
7.1 Excess Dollar Deferrals 64
(a) Time of Refund 64
(b) Reporting Form 65
(c) Order of Refunds 65
(d) Inclusion of ADP Test 65
(e) Inclusion in Annual Addition 66
(f) Determination of Earnings 66
7.2 Nondiscrimination Tests 66
(a) ADP Test 66
(b) ACP Test 68
(c) Multiple Use 69
(d) Multiple Use Test 69
(e) Correction of Excess ADP Contributions
and Excess ACP Contributions 69
(f) Family Aggregation Rules 72
(g) Excess Annual Addition 74
7.3 Code Section 415 Limitation 74
(a) Applicable Definitions 74
(b) Treatment of Excess Annual Additions 76
(c) Combined Plan Limitation 77
(d) Combining of Plans 79
(e) Controlled Group 79
(f) Compliance With Code Section 415 80
7.4 Top-Heavy Rules 80
(a) Definitions 80
(b) Determination of Top-Heavy Status 83
(c) Plan Operation During Top-Heavy Status 84
ARTICLE 8 - AMENDMENT, TERMINATION AND MERGER
8.1 Amendment 87
(a) Procedure 87
(b) Prohibited Amendments 87
8.2 Termination of the Plan 88
(a) Right to Terminate 88
(b) Full Vesting 88
(c) Provision for Benefits Upon Plan
Termination 89
(d) Surplus Reversion 89
8.3 Plan Merger 90
ARTICLE 9 - ADMINISTRATION
9.1 Allocation of Fiduciary Responsibilities 91
(a) Company and Employers 91
(b) The Committee 91
(c) The Trustee 95
9.2 Expenses 96
9.3 Indemnification 96
9.4 Claims Procedure 96
(a) Application for Benefits 97
(b) Action on Application 97
(c) Claim Review 98
ARTICLE - MISCELLANEOUS
10.1 Headings 100
10.2 Construction 100
10.3 Qualification for Continued Tax-Exempt Status 100
10.4 Nonalienation 100
10.5 No Employment Rights 101
10.6 No Enlargement of Rights 101
10.7 Withholding for Taxes 101
ARTICLE 1
Definitions
As used in the Plan, the following words and phrases and any
derivatives thereof will have the meanings set forth below unless
the context clearly indicates otherwise. Definitions of other
words and phrases are set forth throughout the Plan. Section
references indicate sections of the Plan unless otherwise stated.
The masculine pronoun includes the feminine, and the singular
number includes the plural and the plural the singular, whenever
applicable.
1.1 ACP Test. See Subsection 7.2 (b).
1.2 ADP Test. See Subsection 7.2 (a).
1.3 Accounts. The Committee will maintain the following
Accounts for each Participant for accounting purposes only,
and will not segregate Plan assets among Accounts.
(a) Employer Contribution Accounts. Each Participant will
have one or more of the following Employer Contribution
Accounts, which will be funded from his Employer's
general treasury.
(1) Matching Account. The account to record the
Matching Contributions allocated to the
Participant's Account under Section 3.2, and any
attributable earnings, which will be subject to
the vesting schedule set forth in Subsection
3.2(d).
(2) Profit Sharing Account. The account to record
the Employer's Profit Sharing Contributions made
from time to time within the Employer's
discretion under Section 3.2, and any
attributable earnings, which will be subject to
the vesting schedule set forth in Subsection
3.2(d).
(3) Safe-Harbor Contributions Account. The account
to record the Participant's allocations of any
Safe-Harbor Contributions made from time to time
under Section 3.2 as the Committee determines to
be necessary to avoid violating the ADP Test
and/or the ACP Test, and any attributable
earnings, which will be fully vested at all
times.
(4) Pre-1987 Vested Account. The account to hold the
Participant's allocations of Employer
Contributions made for all Plan Years before
1987, and earnings on those allocations, which
will be fully vested at all times.
(b) Employee Contribution Accounts.
(1) Before-Tax Account. Each Participant will have a
Before-Tax Account to hold his own elected salary
reduction contributions made on a before-tax
basis under Section 3.1, and any attributable
earnings.
(2) After-Tax Account. Each Participant who made
after-tax contributions before the Plan stopped
accepting them effective January 1, 1986, will
have an After-Tax Account to hold those
contributions and any attributable earnings.
(c) Rollover Account. The account to record any Rollover
Contributions made by the Participant under Section
3.3, and any attributable earnings.
1.4 Actual Contribution Ratio (ACR). See Subsection 7.2(b)(1).
1.5 Actual Deferral Ratio (ADR). See Subsection 7.2(a)(1).
1.6 Addenda. Addendum A sets forth the procedures for
qualifying and administering domestic relations orders. The
Addendum is an integral part of the Plan.
1.7 Adoption Agreement. The written document by which an
Employer adopts the Plan, and which specifies any Years of
Service granted for periods before the effective date of the
Employer's adoption.
1.8 Affiliated Company. Each corporation or entity under less
than 80 percent common control with the Company or with a
Controlled Group member, which has adopted and is
maintaining the Plan.
1.9 After-Tax Account. See Subsection 1.3(b)(2).
1.10 Average Contribution Percentage (ACP). See Subsection
7.2(b)(2).
1.11 Average Deferral Percentage (ADP). See Subsection
7.2(a)(2).
1.12 Before-Tax Account. See Subsection 1.3(b)(1).
1.13 Before-Tax Contribution. See Subsection 1.21(b).
1.14 Board. The Board of Directors of the Company.
1.15 Break in Service. See Section 1.37 Five-Year Break and
Section 1.46 One-Year Break.
1.16 Code. The Internal Revenue Code of 1986 as amended from
time to time, and regulations and rulings issued under the
Code.
1.17 Committee. The Administrative Committee, which will serve
as the Plan Administrator and will have primary
responsibility for administering the Plan under Article 9.
1.18 Company. The Colonial Company, a Delaware corporation, and
its successor or assign which adopts the Plan, which is the
sponsor of this Plan as it exists from time to time as a
single employer, and as it exists from time to time as a
multiple employer plan.
1.19 Company Stock. Shares of the common stock of an Employer.
1.20 Compensation. Compensation will have the following meanings
for the following purposes; provided that this definition is
intended to be a safe-harbor definition under Code Section
414(s).
(a) Contributions and Nondiscrimination Testing. The
taxable earnings paid by the Employer to the
Participant and reported on his Form W-2 for the
portion of the Plan Year when he participates in the
Plan. Compensation will include (a) basic salary or
wages, (b) overtime pay, (c) bonuses, (d) commissions,
and (e) amounts deferred under Code Sections 401(k)
and/or 125 pursuant to the Participant's salary
reduction agreement. Compensation will exclude (a)
Employer-paid contributions under this Plan and any
deferred compensation plan to the extent not currently
taxable to the Participant, (b) cash and noncash fringe
benefits, (c) reimbursements and expense allowances,
(d) moving expenses, (e) welfare benefits, and (f)
other amounts which receive special tax benefits.
(b) Code Section 415 Limitations and Deductibility of
Employer Contributions. For purposes of the Code
Section 415 Limitations described in Section 7.3, and
the deduction limitation on Employer Contributions
described in Subsection 3.2(g), Compensation is the
amount paid by the Employer to the Participant and
reported as taxable income on his Form W-2 for the Plan
Year, which amount will exclude Before-Tax
Contributions and Employer Contributions to this Plan
and salary reduction amounts contributed to any other
plan maintained by an Employer under Code Sections 125
and 401(k).
(c) Statutory Cap.
(1) 1989 - 1993 Plan Years. For Plan Years 1989
through 1993, each Participant's Compensation
taken into account for all purposes under the
Plan will be limited to $200,000 (as indexed
under Code Section 415(d)).
(2) Plan Years after 1993. Beginning as of the first
day of the 1994 Plan Year, each Participant's
Compensation taken into account for all purposes
under the Plan will be limited to $150,000 (as
indexed under Code Section 401(a)(17))
(3) Family Unit Aggregation. For purposes of the
statutory cap, the Plan will aggregate the
Compensation of (A) each Employee who either is a
5-per-cent owner or is among the 10 highest-paid
Employees, and (B) his Spouse and/or his lineal
descendants who have not reached age 19 as of the
last day of the Plan Year. The Committee will
allocate the statutory cap among the members of
any Family Unit in proportion to each member's
actual Compensation.
(4) No Proration. The Plan will not prorate the
statutory cap on Compensation for any Participant
who participates in the Plan for less than a full
Plan Year.
1.21 Contributions. The Trustee will accept the following
Contributions to the Plan (the Plan has not permitted
Participants to make after-tax contributions since 1985):
(a) Employer Contributions. The total of the Participant's
allocations of the following Contributions made by an
Employer for the Plan Year:
(1) Matching Contribution. An amount equal to 50
percent of the first 6 percent of Compensation
contributed by each Participant for the Plan Year
and not withdrawn during the Plan Year , provided
that he is in active Employment on the last day
of the Plan Year. The Employer will not match
any Before-Tax Contribution which exceeds 6
percent of the Participant's Compensation for any
pay period.
(2) Profit Sharing Contribution. An amount which, in
the Committee's discretion, may be contributed
from the Employers' profits from time to time
under Subsection 3.2(b) and allocated as a
percentage of Compensation to each Eligible
Employee who is in Employment on the last day of
the Plan Year for which the Contribution is made.
(3) Safe-Harbor Contribution. In any Plan Year, an
Employer may make a Safe-Harbor Contribution in
the amount the Committee determines to be
necessary to avoid violating the ADP Test and/or
the ACP Test, which will be allocated under one
of the methods described in Section 3.2.
(b) Before-Tax Contributions. An amount equal to a whole
percentage not less than 2 percent nor greater than 10
percent of the Participant's Compensation for the Plan
Year, which he elects to contribute under Section 3.1
on a before-tax basis.
(c) Rollover Contributions. An amount transferred to this
Plan from another qualified retirement plan or conduit
individual retirement account or plan, under Section
3.3.
1.22 Controlled Group. Each Employer and each member of the
group of corporations or entities under at least 80 percent
common control by or with the Employer, within the meaning
of Code Sections 414(b) and (c), and any affiliated service
group within the meaning of Code Section 414(m) which
includes an Employer.
1.23 Disability.
A physical or mental incapacity which qualifies the
Participant for benefits under an Employer's long-term
disability plan. The beginning date of the Participant's
Disability is the date he stops earning Compensation.
1.24 Effective Date. The Effective Date of the Plan is October
1, 1983. The Effective Date of this amendment and
restatement of the Plan is January 1, 1991.
1.25 Eligible Employee (or Employee). An Eligible Employee is
any individual employed to perform personal services for an
Employer, who works at least 1,000 per year, whose
performance is subject to the Employer's control, and who
has met the eligibility requirements set forth in Section
2.1. The following individuals will be treated as employees
who are not eligible to participate in the Plan: (a) those
who are in a unit of employees covered by a collective
bargaining agreement between an employee representative and
an Employer, unless otherwise provided in the agreement; (b)
leased employees within the meaning of Code Section 414(n),
and (c) independent contractors.
1.26 Employer. The Company, each Controlled Group member which
has adopted the Plan, and each Affiliated Company which has
adopted the Plan.
1.27 Employer Contribution Accounts. See Subsection 1.3(a).
1.28 Employer Contributions. See Subsection 1.21(a).
1.29 Employment. The period during which an Eligible Employee is
regularly employed by an Employer.
1.30 Employment Date. The date on which the Eligible Employee
earned his first Hour of Service during his initial
Employment, or the date on which he resumed Employment after
a Five-Year Break which caused him to lose his pre-break
Years of Service.
1.31 Enrollment Date. Each January 1, April 1, July 1 and
October 1.
1.32 ERISA. The Employee Retirement Income Security Act of 1974,
as amended from time to time, and regulations and rulings
under ERISA.
1.33 Excess ACP Contributions. Matching Contributions which have
caused the Plan to fail the ACP Test described in Subsection
7.2(b) for the Plan Year.
1.34 Excess ADP Deferrals. Before-Tax Contributions which have
caused the Plan to fail the ADP Test described in Subsection
7.2(a) for the Plan Year.
1.35 Excess Dollar Deferrals. The total annual amount of
Before-Tax Contributions which any Participant makes under
this Plan for any calendar year, which in the aggregate
exceeds $7,000 as indexed to the CPI beginning in 1988.
1.36 Family Unit. An active or former Eligible Employee who is
a 5-percent owner of any Controlled Group member or an
active Eligible Employee who is among the 10 highest-paid
employees in the Controlled Group, and such individual's
Spouse and lineal ascendants and descendants and their
spouses who are also Eligible Employees. An individual who
is an HCE or NCE and is otherwise an Eligible Employee will
be included in the Family Unit although he may be excluded
for purposes of determining the Top-Paid Group under
Subsection 1.39(a)(3).
1.37 Five-Year Break. Five consecutive One-Year Breaks.
1.38 HCE Group. The Committee will determine the HCE Group for
each Employer, with respect to that Employer's Controlled
Group. The HCE Group will include the entire group of
Eligible Employees in each Controlled Group who are Highly
Compensated Employees (HCEs) for the Plan Year.
1.39 Highly Compensated Employee (HCE).
(a) Applicable Definitions. For purposes of this Section,
the following terms will have the meanings set forth
below.
(1) Determination Year. The Plan Year for which the
HCE Group is being identified.
(2) Look-Back Year. The Plan Year preceding the
Determination Year.
(3) Top-Paid Group. The highest-paid 20 percent of
all active employees in the Controlled Group for
the Plan Year; provided that to determine the
number of employees who make up 20 percent (but
not the identity of the highest-paid 20-percent),
the Committee may exclude Controlled Group
employees who either: (A) are under age 21; (B)
have fewer than 6 months of service; (C) normally
work fewer than 17-1/2 hours per week; (D)
normally work no more than 6 months per Plan
Year; (E) are included in a collective bargaining
unit; or (F) are nonresident aliens with no U.S.
source income.
(4) Top-100 Group. The highest-paid 100 Controlled
Group employees who either (A) receive more than
$75,000 Compensation (indexed), (B) receive more
than $50,000 Compensation (indexed) and are in
the Top-Paid Group, or (C) officers as described
below in Subsection (b)(1)(D).
(b) Identifying HCEs. The following three groups of
Employees will be included in the HCE Group for the
Determination Year.
(1) HCE Status in the Look-Back Year. The HCE Group
will include any Employee who, during the
Look-Back Year, either:
(A) was a 5-percent owner of any Controlled
Group member;
(B) received more than $75,000 Compensation
(indexed);
(C) received more than $50,000 Compensation
(indexed), and was in the Top-Paid Group as
defined in Subsection (a); or
(D) was an officer (a high-level policy-making
executive) and received more than $45,000
Compensation (indexed), provided that the
maximum number of officers will be the
lesser of (i) 50, or (ii) the greater of 3
or 10 percent of the total number of
Employees.
(2) HCE Status in the Determination Year. Regardless
of his status in the Look-Back Year, the HCE
Group will include any Employee who, in the
Determination Year, either:
(A) is a 5-percent owner of any Controlled Group
member; or
(B) is in the Top-100 Group.
(3) HCE Status of Former Employees. The Employee who
terminated Employment after 1986 and who was an
HCE at any time after he reached age 55 or when
he terminated, and who resumes Employment, will
be treated as an HCE for the first whole or
partial Plan Year after his rehire. After the
first Plan Year of his rehire, the Committee will
determine his status under Subsection (b)(1) or
(b)(2) as applicable. Until his rehire, the
Committee will not take him into account for
purposes of determining the Top-Paid Group or the
Top-100 Group, or for any other purpose.
(c) Indexing. The $75,000, $50,000 and $45,000
Compensation amounts will be indexed to the CPI under
Code Section 415(d) beginning in 1988.
(d) Family Aggregation Rule. For purposes of determining
HCE status, the group of Employees in a Family Unit
will be treated as if they were a single Employee
receiving the amount of Compensation being received in
the aggregate by all members of the Family Unit. The
Committee will determine the highest-paid 100 employees
and the Top-Paid Group before it aggregates
Compensation, and will apply the aggregation
requirement separately to the Look-Back Year and the
Determination Year.
1.40 Hours of Service.
(a) Periods of Credit. Hours of Service will be credited
for the following:
(1) Working Hours. Each hour for which the Employee
is paid or entitled to payment by an Employer for
the performance of duties.
(2) Nonworking Hours. Each hour for which the
Employee is paid or is entitled to payment by an
Employer on account of a period of time during
which no duties are performed due to vacation,
holiday, illness, incapacity, layoff, jury duty,
military duty, or leave of absence, whether or
not his Employment has terminated.
(3) Back Pay. Each hour for which back pay, without
regard to mitigation of damages, is either
awarded or agreed to by an Employer.
(b) Periods of No Credit. Hours of Service will not be
credited for the following:
(1) Nonpayment. Periods during which the Employee is
neither paid nor entitled to payment by an
Employer.
(2) Limited Number. Hours in excess of 501 in a
single continuous period during which no duties
are performed, except as provided in Subsection
(d).
(3) Statutory Payments. Hours for which payment is
made or due under a plan maintained solely for
the purpose of complying with applicable workers'
compensation, unemployment compensation, or
disability insurance laws.
(4) Back Pay. Back pay where credit has already been
given for the hours to which the back pay
relates.
(5) Medical Expenses. A payment which solely
reimburses an Employee for medical or medically
related expenses incurred by him.
(c) Crediting Hours of Service - General Rule. Hours of
Service will be credited to the period in which the
duties to which they relate are performed, or the
period when no duties are performed, as applicable.
The Plan will use payroll records to determine Hours of
Service for each Employee for whom the Employer records
actual hours worked. For the Employee for whom the
Employer does not record actual hours worked, the Plan
will credit 45 Hours of Service for each week in which
he is credited with any Hours of Service.
(d) Crediting Hours of Service - Special Rules.
(1) Parental Leave. Solely for purposes of
determining whether a One-Year Break has
occurred, the Plan will credit Hours of Service
for periods during which an Employee is absent
from work by reason of pregnancy, child birth,
child adoption, and/or child care immediately
following birth or adoption. The number of Hours
of Service credited to the employee will be the
number of hours that would have been credited if
the absence had not occurred, or if such number
cannot be determined, then 8 Hours of Service
will be credited for each day of the absence,
provided that the total number of such Hours of
Service will not exceed 501. Such Hours of
Service will be credited to the Plan Year in
which the absence begins only if that credit is
necessary to avoid a One-Year Break in that Plan
Year; otherwise credit will be given in the
immediately following Plan Year. No credit will
be given under this subsection unless the
Employee timely provides to the Committee all
information reasonably required to establish (A)
that the absence is for a reason described in
this subsection and (B) the number of days of
absence attributable to such reason.
(2) Military Leave. For purposes of eligibility and
vesting under the Plan, the Plan will credit each
Participant who returns from military leave with
Hours of Service, as if his active Employment had
continued during the period of his military duty
with the Armed Forces of the United States of
America; provided that he retains statutory
reemployment rights and resumes Employment within
90 days after his honorable discharge from active
military duty, or during any other period
prescribed by law.
(3) Authorized Leave of Absence. Solely for purposes
of determining whether a Five-Year Break has
occurred, the Plan will credit each Participant
with Hours of Service as if his active Employment
had continued during the period of his authorized
leave of absence granted under his Employer's
standard, uniformly-applied personnel policies;
provided that he resumes active Employment
promptly upon the expiration of his authorized
leave.
1.41 Matching Account. See Subsection 1.3(a)(1).
1.42 Matching Contribution. See Subsection 1.21(a)(1).
1.43 NCE Group. The entire group of Eligible Employees who are
Nonhighly Compensated Employees (NCEs) for the Plan Year.
1.44 Nonhighly Compensated Employee (NCE). An Eligible Employee
who is not within the HCE group for the Plan Year.
1.45 Normal Retirement Age. The Participant's 65th birthday.
1.46 One-Year Break. A Plan Year during which the Participant is
credited with less than 501 Hours of Service; except that
for purposes of eligibility under Section 2.1, a One-Year
Break is the first 12 consecutive months of the
Participant's Employment during which he is credited with
less than 501 Hours of Service.
1.47 Participant. An Eligible Employee participating in the Plan
under Section 2.1.
1.48 Plan. The Colonial 401(k) and Profit Sharing Plan as
amended from time to time.
1.49 Plan Administrator. The Committee.
1.50 Plan Year. The 12-month period beginning January 1 and
ending December 31 of each year.
1.51 Pre-1987 Vested Account. See Subsection 1.3(a)(4).
1.52 Profit Sharing Account. See Subsection 1.3(a)(2).
1.53 Profit Sharing Contribution. See Subsection 1.21(a)(2).
1.54 Required Beginning Date.
(a) Participant. The Required Beginning Date for the
active and inactive Participant is April 1 following
the calendar year in which he reaches age 70-1/2. A
Participant will be treated as a 5-percent owner if he
owns or owned at least 5 percent of any Employer at any
time during the calendar year in which he reaches age
66-1/2 or any subsequent year.
(b) Beneficiaries. The Required Beginning Date for the
surviving Spouse is the end of the calendar year in
which the Participant would have reached age 70-1/2.
The Required Beginning Date for the non-Spouse
beneficiary is the end of the calendar year following
the calendar year in which the Participant's death
occurs (or the end of the calendar year following the
calendar year in which the surviving Spouse's death
occurs if the Spouse was the primary beneficiary);
provided that if the Committee cannot make payment by
that date, the Required Beginning Date will be extended
until the last day of the fifth calendar year following
the year in which the Participant (or surviving Spouse)
died and the entire Account balance will be distributed
no later than that date.
1.55 Rollover Account. See Subsection 1.3(c).
1.56 Rollover Contribution. See Subsection 1.21(c).
1.57 Safe Harbor Account. See Subsection 1.3(a)(3).
1.58 Safe Harbor Contribution. See Subsection 1.21(a)(3).
1.59 Spouse. The person to whom the Participant is legally
married. In the event of a dispute, the identity of the
surviving spouse will be determined in accordance with
applicable laws of the Participant's state of domicile. The
surviving Spouse is sometimes referred to as a beneficiary.
1.60 Termination Date. The date when the Eligible Employee ends
his Employment for any reason.
1.61 Trust (or Trust Fund). The fund maintained under the trust
agreement executed between the Company and the Trustee, as
amended from time to time, which constitutes a part of this
Plan.
1.62 Trustee. The individual(s) or corporation(s) or other
entity(ies) selected by the Board to administer the Trust,
as provided in Article 9.
1.63 Valuation Date. The last day of each calendar quarter, i.e.
March 31, June 30, September 30 and December 31 of each Plan
Year, and any other day in the Plan Year requested by the
Committee, as of which the Trustee will determine the fair
market value of the Trust Fund and each Account.
1.64 Vested Percentage. The percentage of the Participant's
Matching Account and Profit Sharing Account which is vested
under the schedule set forth in Subsection 3.2(d).
1.65 Vesting Service. See Section 1.66 Years of Service.
1.66 Years of Service. Each Plan Year for which the Employee
earns at least 1,000 Hours of Service, subject to the
following rules:
(a) Employment With A Controlled Group Member. Each
Employee will receive credit for Years of Service for
purposes of eligibility and vesting, for the period of
his employment with any Controlled Group member,
whether or not it has adopted the Plan, beginning on
the date the member became part of the Controlled
Group.
(b) Period Before An Employer Adopted the Plan. The Board
will determine whether and to what extent the Plan will
give credit for purposes of eligibility and/or vesting
for periods of employment with an Employer before it
adopted the Plan, to the extent credit is not required
under Subsection (a).
(c) Employment Before A Five-Year Break. The nonvested
Participant who incurs a Five-Year Break will lose all
his credit for Years of Service earned before his
Five-Year Break. The vested Participant will retain
all his credit for Years of Service regardless of the
number of his One-Year Breaks.
ARTICLE 2
Eligibility
2.1 Eligibility.
(a) Before 1991. Each Employee who was an active
Participant in the Plan on December 31, 1990 will
continue to participate after that date.
(b) After 1990. Each other Employee will become a
Participant as of the first Enrollment Date after he
has completed a 12 month period with at least 1,000
Hours of Service. For purposes of this Subsection (b),
this 12-month period shall be his first 12 months of
Employment or any Plan Year which begins after his
Employment Date.
2.2 Participation Upon Reemployment.
(a) Fully Vested Participant. If a fully vested
Participant terminates and resumes Employment at any
time, he will resume participation in the Plan as of
the first Enrollment Date on or after the date when he
resumes Employment, and will continue to be fully
vested.
(b) Partially Vested Participant.
(1) Before Five-Year Break. If a partially vested
Participant terminates and resumes Employment
before he incurs a Five-Year Break, he will
resume participation in the Plan as of the first
Enrollment Date on or after the date he resumes
Employment, and the Committee will reinstate his
prebreak Years of Service and Vested Percentage.
The Plan will restore the amount he forfeited
from his Matching Account and/or Profit Sharing
Account, without adjustment for gains or losses.
He will be eligible to earn additional vesting
for the reinstated amounts.
(2) After Five-Year Break (Five-Year Freeze Rule).
If a partially vested Participant terminates and
resumes Employment after he incurs a Five-Year
Break, he will resume participation in the Plan
as of the first Enrollment Date on or after the
date he resumes Employment, and the Committee
will reinstate his prebreak Years of Service and
Vested Percentage for future allocations of
Matching Contributions and Profit Sharing
Contributions, but will not reinstate his
forfeited Matching Account and Profit Sharing
Account balances (if any). If he received a
cash-out of his vested Matching Account and
Profit Sharing Account when he terminated, he
will have a zero balance in those Accounts. He
will not be permitted to repay his cash-out.
(c) Nonvested Participants.
(1) Before Five-Year Break. If a nonvested
Participant terminates and resumes Employment
before he incurs a Five-Year Break, he will
resume participation in the Plan as of the first
Enrollment Date on or after the date he resumes
Employment, and the Committee will reinstate his
prebreak Years of Service and Vested Percentage,
and his forfeited Matching Account and Profit
Sharing Account balances, without adjustment for
gains or losses. He will be eligible to earn
additional vesting for the reinstated amounts.
(2) After Five-Year Break. If a nonvested
Participant terminates and resumes Employment
after he incurs a Five-Year Break, the Committee
will not reinstate his prebreak Years of Service
or his forfeited Matching Account and Profit
Sharing Account balances. He will be eligible to
resume participation under Section 2.1 as if he
were a new Employee.
(d) Nonparticipating Employees.
(1) Before Five-Year Break. If the nonparticipating
Employee terminates and resumes Employment before
he incurs a Five-Year Break, the Committee will
reinstate his prebreak Vesting Service for
purposes of eligibility and vesting. If he had
met the eligibility requirement under Section 2.1
as of his Termination Date, he will be eligible
to begin participating in the Plan as of the
first Enrollment Date on or after the date he
resumes Employment.
(2) After Five-Year Break. If the nonparticipating
terminated Employee resumes Employment after he
incurs a Five-Year Break, the Committee will not
reinstate his prebreak Vesting Service. He will
be eligible to begin participating in the Plan
under Section 2.1 as if he were a new Employee.
2.3 Leased Employee. Leased employees will be treated as
Employees to the extent required under Code Section 414(n),
but will not be eligible to participate in this Plan. If a
leased employee becomes an Employee, the Plan will give him
credit for eligibility and Years of Service for the period
when he worked as a leased employee, under the rules
described in Sections 1.66 and 2.1 applied as if he had been
an Employee during that period. However, the Plan will not
give such credit if (a) the leased employee was covered by
a money purchase plan sponsored by the leasing organization,
with 10 percent contributions and immediate participation
and vesting, and (b) leased employees constitute no more
than 20 percent of the Controlled Group's nonhighly
compensated employees.
ARTICLE 3
Contributions
3.1 Employee Contributions. Beginning in the 1986 Plan Year,
the Plan will accept only Before-Tax Contributions.
Participants who made After-Tax Contributions before 1986
will be permitted to maintain those Account balances in the
Plan.
(a) Before-Tax Only. For each Plan Year, each Participant
will elect the percentage of his Compensation to defer
as Before-Tax Contributions, within the limitations
described below in Subsection (3).
(1) Amount. Each Participant may make Before-Tax
Contributions in an amount equal to a whole
percentage not less than 2 percent nor greater
than 10 percent of his Compensation for each Plan
Year. The Participant must elect 2 percent
increments for the first 6 percent, and can elect
1 percent increments from 7 to 10 percent.
However, to the extent that it considers
reductions in percentages necessary to meet the
ADP for any Plan Year, the Committee may limit
the percentages that can be contributed by the
HCE Group, and may apply different limits to
different individuals within the HCE Group.
(2) Amount Matched. The first 6 percent of each
Participant's Compensation contributed for each
payroll period will receive a Matching
Contribution. Any Contribution above 6 percent
will not receive Matching Contributions.
(3) Limitations on Amount. The amount of the
Participant's Contributions may be limited for
any Plan Year to avoid exceeding the $7,000
(indexed) limitations described in Section 7.1,
the ADP Test described in Section 7.2, and/or the
annual addition limitations described in Section
7.3.
(b) Vesting. All Before-Tax Contributions and all earnings
allocated to Before-Tax Contribution Accounts will be
fully vested at all times.
(c) Election to Participate.
(1) Initial Election. To begin making Before-Tax
Contributions, the Eligible Employee must
complete and file with the Committee an election
form designating the whole percentage of his
Compensation to be deferred as his Before-Tax
Contributions for the Plan Year, within the
limitations described in Subsection (a)(3).
The Eligible Employee will begin contributing as
of the first Enrollment Date after he has
submitted his properly completed election form to
the Committee; provided that he must submit his
form no later than the deadline established by
the Committee, uniformly applied and timely
communicated. The Employee who fails to properly
elect to begin participating as of the date when
he is first eligible, may elect to begin
participating as of any subsequent Enrollment
Date; provided that he must submit his properly
completed election form to the Committee no later
than the deadline established by the Committee,
uniformly applied, and timely communicated.
The election will remain effective until the
Participant (A) modifies, suspends, or revokes
his election, or (B) ceases to be an Eligible
Employee. The elected percentage will apply to
increased or decreased Compensation.
(2) Modification. The Participant who has elected to
have contributed a percentage of his Compensation
under Subsection (c)(1) may modify his election
as of the first day of any Enrollment Date by
filing with the Committee, no later than the
deadline established by the Committee and
uniformly applied, a new election form stating
that he elects to have a higher or lower
percentage deducted from his Compensation. Each
modification will remain effective until a new
election form is properly completed and timely
filed with the Committee.
(3) Revocation. The Participant may revoke his
election to participate as of the beginning of
any payroll period; provided that he must submit
his notice to the Committee no later than the
deadline established by the Committee, uniformly
applied and timely communicated.
(4) New Election. The Participant who revokes his
election to make Before-Tax Contributions may
resume participation as of any Enrollment Date.
(5) Committee Regulations. The Committee may from
time to time establish and uniformly apply rules
governing elections, including rules regarding
the frequency with which elections may be
modified, suspended or revoked.
3.2 Employer Contributions.
(a) Matching Contribution. Each Employer will make a
Matching Contribution in an amount equal to 50 percent
of the first 6 percent of Compensation contributed by
each of its Participants for each Plan Year, provided
that the Participant remains in Employment until the
last day of the Plan Year. No Participant will receive
a Matching Contribution for any pay period with respect
to his Before-Tax Contributions that exceeds 6 percent
of his Compensation paid in that pay period. However,
the Participant will not receive a Matching
Contribution to the extent he withdraws his Before-Tax
Contributions under Article 5 in the same Plan Year
when he makes them. For this purpose, the
Participant's withdrawals will come first from the
earliest Contributions and earnings allocated to his
Before-Tax Account.
(b) Profit Sharing Contribution. In any Plan Year when any
Employer has sufficient profits, and in the Committee's
discretion, the Employer may make a Profit Sharing
Contribution to be allocated as a uniform percentage of
Compensation of each of its Eligible Employees who is
in Employment on the last day of the Plan Year.
(c) Safe-Harbor Contribution. For each Plan Year, the
Committee will determine the amount of Safe-Harbor
Contribution, if any, necessary to satisfy the ADP Test
described in Subsection 7.2(a), and/or the ACP Test
described in Subsection 7.2(b). The Committee will
cause each Safe Harbor Contribution to be allocated by
one of the following methods:
(1) Percentage-of-Compensation Method.
(A) If the Safe Harbor Contribution is made to
satisfy the ADP Test, the Committee will
subtract the existing Average Deferral
Percentage (ADP) of the NCEs from the ADP
needed by the NCEs to pass the ADP Test. If
the Safe Harbor Contribution is made to
satisfy the ACP Test, the Committee will
subtract the existing Average Contribution
Percentage (ACP) of the NCEs from the ACP
needed by the NCEs to pass the ACP Test.
The additional percentage needed to meet the
ADP Test and/or the ACP Test is the needed
percentage increase.
(B) The Committee will determine the number of
NCEs eligible to receive the Safe Harbor
Contribution, if fewer than the total, and
the aggregate Compensation of the eligible
NCEs.
(C) The Committee will multiply the needed
percentage increase by the ratio of the
number in the NCE Group to the number of
eligible NCEs, to determine the additional
percentage of Compensation to be allocated
to each eligible NCE (the individual needed
percentage increase).
(D) The Committee will multiply the individual
needed percentage increase by the aggregate
Compensation of the eligible NCEs to
determine the total amount of the Safe
Harbor Contribution.
(E) The Committee will multiply the individual
needed percentage increase by the
Compensation of each eligible NCE to
determine the amount of his Safe Harbor
allocation for the Plan Year.
(2) Fixed-Dollar Method.
(A) The Committee will follow steps (1)(A)
through (1)(D) to determine the maximum
total amount of the Safe Harbor Contribution
needed to satisfy the ADP Test and/or ACP
Test for the Plan Year (the maximum fixed
dollar contribution).
(B) The Committee will divide the maximum fixed
dollar contribution by the number of
eligible NCEs to determine the maximum Safe
Harbor allocation needed for each.
(C) By trial-and-error calculations, the
Committee will determine the fixed dollar
amount of the actual allocation, if lower
than the maximum, that must be allocated to
the Safe Harbor Accounts of all eligible
NCEs.
(3) Additional Matching Contributions. The Committee
will direct the affected Employer(s) to make a
Safe Harbor Contribution to match the Before-Tax
Contributions of all or a selected group of NCE
Participants, in the percentage necessary to meet
the ACP Test for the Plan Year.
(d) Vesting. The Participant will become vested in his
Matching Account and Profit Sharing Account balances
under the following schedule:
Years of Service Vested Percentage
---------------- -----------------
Fewer than 1 0%
1 20%
2 40%
3 60%
4 80%
5 100%
Regardless of the number of his Years of Service, the
Participant will become fully vested in his Matching
Account balance either (1) when he reaches Normal
Retirement Age, (2) on his Disability retirement date
described in Subsection 6.1(c), or (3) on his date of
death. The Participant will be fully vested in his
Safe Harbor Account balance and his Pre-1987 Vested
Account balance at all times.
(e) Forfeiture. The Participant who terminates Employment
before he is fully vested will forfeit the nonvested
portion of his Matching Account balance and Profit
Sharing Account balance unless he resumes Employment
before he incurs a Five-Year Break. The forfeiture
will occur as of his Termination Date and will be used
to reduce Matching Contributions for the same and/or
future Plan Years. However, if the Participant
received a cash-out of the vested portion of his
Matching Account balance and/or Profit Sharing Account
balance after he terminated, the Committee will not
reinstate his forfeited balance(s) unless he resumes
Employment before he incurs a Five-Year Break. If the
Participant incurs a Five-Year Break, his forfeiture
will become irrevocable as of the last day of the Plan
Year in which the Five-Year Break occurs.
(f) Exclusive Benefit of Participants. All Employer
Contributions will be irrevocable when made and will
not revert to the Employers, except as provided in
Sections 3.21(i), 7.2 and 7.3. All Employer
Contributions and attributable earnings will be used
for the exclusive benefit of Participants and their
beneficiaries and for paying the reasonable expenses of
administering the Plan.
(g) Deductibility. Each Employer will limit its Employer
Contributions for each Plan Year so that the sum of all
Before-Tax Contributions and Employer Contributions
does not exceed an amount equal to 15 percent of the
Compensation (as calculated by excluding Before-Tax
Contributions) of all of its Participants for the Plan
Year.
(h) Payment to the Trustee. Each Employer will transfer to
the Trustee, promptly after the end of each month, the
Before-Tax Contributions withheld for all its Employees
during the pay periods ending in that month. Each
Employer will transfer its Matching Contributions to
the Trustee as soon as practicable after each
Contribution is made, in accordance with procedures
established by the Committee. Each Employer will
transfer its Profit Sharing Contributions and
Safe-Harbor Contributions to the Trustee no later than
the extended due date of the Company's federal income
tax return for the fiscal year which ends in the Plan
Year for which the Contribution is made.
(i) Return of Employer Contributions. Employer
Contributions will be returned to the affected
Employer(s) under the following circumstances:
(1) Mistake of Fact. Employer Contributions made by
a mistake of fact will be returned to the
affected Employer(s) within one year after the
Contribution is made.
(2) Nondeductible. All Employer Contributions are
conditioned upon their deductibility under Code
Section 404 and will be returned to the affected
Employer(s) within one year after any
disallowance.
3.3 Rollover Contributions.
(a) Eligible Rollover Distribution. For purposes of this
Section, an Eligible Rollover Distribution means a
payment received by an Employee from another qualified
plan or conduit individual retirement account or plan
(IRA), that is either (1) a lump sum payment, or (2) a
payment other than one that is part of a series of
substantially equal periodic payments, made at least
annually, over a period of at least 10 years, or over
the lifetime or life expectancy of the Participant or
the joint lifetimes or life expectancies of the
Participant and his named beneficiary; provided that
the Committee will not treat any distribution required
under Code Section 401(a)(9), or any refund of
after-tax contributions, as an Eligible Rollover
Distribution.
(b) Rollover or Direct Plan Transfer. An Employee who
receives an Eligible Rollover Distribution may roll
over all or part of the distribution to the Trustee,
provided that the Committee determines that it is in
the best interest of the Plan to accept the rollover.
The Committee may accept the distribution as a direct
plan-to-plan transfer. An Employee can make a Rollover
Contribution before he completes his eligibility period
under Section 2.1, or before he elects to participate,
and will have his Rollover Account as his sole interest
in the Plan until he becomes a Participant.
(c) Timing. A rollover must be made within 60 days after
the Employee receives the Eligible Rollover
Distribution.
(d) Required Information. The Committee will adopt such
procedures, and may require such information from the
Employee who desires to make a Rollover Contribution,
as it considers necessary to determine whether the
proposed rollover or direct plan transfer will meet the
requirements of this Section. The Committee may
require the Employee to submit a written certification
that he received his Eligible Rollover Distribution
from another qualified plan or from a conduit IRA.
Upon approval by the Committee, the Rollover
Contribution will be deposited in the Trust Fund and
will be credited to the Employee's Rollover Account.
(e) Prohibited Rollovers and Transfers. The Committee will
not accept Rollover Contributions from any plan that is
subject to the joint and survivor annuity requirements
set forth in Code Sections 401(a)(11) and 417, unless
the Employee's Spouse consented in writing to the
distribution from such plan in a manner which complies
with the spousal consent requirements prescribed under
Code Section 417. The Committee may require the
Employee to submit a written certification either that
he received his distribution from a qualified plan that
either was not subject to the spousal consent
requirements or contained an exemption for his
distribution, or that his Spouse properly consented to
the distribution. The Committee will not accept as a
Rollover Contribution the portion of a distribution
which constitutes a refund of after-tax contributions.
(f) Refund of Prohibited Rollovers. In the event the
Committee discovers that a Participant has made a
Rollover Contribution to the Plan which fails to comply
with this Section, the Committee will refund the
Contribution and all earnings attributable to it as
soon as practicable.
(g) Reliance on Participant's Representations. The
Committee will in good faith rely on the
representations made by the eligible Employee in his
application to make a Rollover Contribution and will
not be held accountable for any misrepresentation of
which it did not have actual knowledge.
ARTICLE 4
Individual Accounts
4.1 Adjustments to Account Balances.
(a) Regular Valuation Dates. As of each Valuation Date,
the Trustee will determine the fair market value of the
Trust Fund and the Committee will determine the value
of each Account of each Participant. The Account
balances of each Participant will be adjusted to
reflect the following events since the preceding
Valuation Date:
(1) His Before-Tax Contributions and Rollover
Contributions, if any;
(2) His allocations of Employer Contributions;
(3) Payments and inservice withdrawals from his
Accounts, and forfeitures from his Matching
Account and/or Profit Sharing Account;
(4) His pro rata share of gains/losses and expenses
of the investment funds in which his Account
balances are invested; and
(5) His transfers between investment funds under
Section 4.2.
(b) Special Valuation Dates. The Committee will have the
authority to direct special Valuation Dates as it
considers necessary for the proper administration of
the Plan. Each special Valuation Date will be treated
as a regular Valuation Date.
(c) Valuations Binding. In determining the value of the
Trust Fund and each individual Account, the Trustee and
the Committee will exercise their best judgment, and
all determinations of value will be binding upon all
Participants and their beneficiaries.
(d) Allocation Date. All allocations will be considered to
have been made as of the Valuation Date, regardless of
when allocations are actually made.
(e) Statement of Account Balances. As soon as practicable
after the end of each Valuation Date, the Committee may
in its discretion provide to each Participant and other
payee for whom an Account is maintained, a statement of
the Account balance as of the Valuation Date; provided
that statements will be issued at least once in each
Plan Year.
(f) Correction of Mistakes. In the event the Committee
discovers that a mistake has been made in an allocation
to or distribution from any Participant's Account
balance, or any other mistake which affects an Account
balance, it will correct the mistake as soon as
practicable. If an overpayment has been made, the
Committee will seek cash reimbursement. If an
underpayment has been made, the Committee will pay the
amount of the underpayment in a single sum. The
Committee will treat any other addition to the Account
as an expense of the Plan, and will treat any other
subtraction from the Account as a forfeiture and will
use it to reduce the affected Employer's Matching
Contributions and/or Profit Sharing Contributions for
the same or the next Plan Year. To the extent
necessary to correct errors in allocations that result
from release of shares from the Suspense Account, the
Committee may substitute shares of Company Stock for
cash, and may substitute cash for such shares of stock.
To the extent necessary to correct errors in
allocations that result from Contributions, including
Contributions that would have been made except for the
error, the Committee will permit or require adjustments
to the Contributions otherwise described in the Plan,
including make-up Contributions, accelerated
Contributions, suspensions of Contributions, and
similar adjustments. If a Participant timely makes an
election for Employee Contributions under Section 3.1
to be effective in a stated payroll period, but the
Committee is unable to effect the election until the
following payroll period, the Committee will treat the
Contribution as if it had been made in the stated
payroll period, but will allocate earnings to the
Contribution only from the date when it is actually
made. The Committee will correct all other
administrative errors in the manner which it considers
appropriate under the circumstances. However, if the
Committee determines that the burden or expense of
seeking recovery of any overpayment or correcting any
other mistake (except corrections that are necessary to
make a Participant or beneficiary whole) would be
greater than is warranted under the circumstances, it
may in its discretion forego recovery or other
correction efforts. If a mistake in any communication
creates a risk of loss to any Participant or
beneficiary, the Committee will take reasonable steps
to mitigate such risk, such as making de minimis
variances from Plan provisions (including but not
limited to medium and timing of payment), to the extent
any such variance would comply with applicable
qualification requirements if it were set forth in a
written provision of the Plan.
4.2 Investment Election.
(a) Available Funds. The Trustee will maintain the number
and type of investment funds from time to time which it
determines to be in the best interest of Participants,
including but not limited to one or more Company Stock
funds. The Committee will timely inform Participants
with respect to the funds which are available, and will
provide them sufficient information to permit them to
make informed selections among the funds.
(b) Liquidity. Each fund may hold cash and other liquid
investments in such amounts as the Committee and/or
Trustee consider necessary to meet the Plan's liquidity
requirements and to pay administrative expenses.
(c) Participant Elections. Once in each calendar quarter,
each Participant may make an investment election for
his future aggregate Contributions, and an election for
his aggregate existing Account balances. His election
will become effective as of the first day of the
calendar quarter for which it is made, provided that he
must complete his investment election form and submit
it to the Committee no later than the deadline set by
the Committee, uniformly applied and timely
communicated to Participants.
(1) Future Contributions. The Participant may elect
to invest the future allocations to his Accounts
in the aggregate, in 5 percent increments among
the investment funds made available from time to
time.
(2) Existing Account Balances. The Participant may
elect to invest the existing balance in each of
his separate Accounts in 5 percent increments
among the investment funds made available from
time to time.
(d) Failure to Elect. If any Participant fails to timely
submit a properly completed investment election form,
or if his elected investments total less than 100
percent of his Account balances, the Committee will
invest the balances for which no election is made in
the investment fund which carries the least risk of
loss.
(e) Allocation of Earnings. All earnings attributable to
the Account balances invested in each investment fund
will be reinvested in that investment fund.
(f) Special Election Date. The Committee may permit more
frequent elections and/or other election filing dates,
under regulations adopted by the Committee, uniformly
applied, and timely communicated to Participants.
(g) Voting of Company Stock. Each Participant whose
Account balances are invested in a Company Stock fund
may direct the Trustee with respect to the voting of
his shares. The Trustee will vote the shares of any
Participant who fails to timely submit his direction,
in accordance with directions submitted by other
Participants for the majority of shares invested in
that fund.
ARTICLE 5
Inservice Withdrawals
5.1 Limitation on Frequency of Inservice Withdrawals. Each
Participant may make only one inservice withdrawal during
any 12-months period under Sections 5.3, 5.4 or 5.5
collectively. In addition, each Participant may make only
one hardship withdrawal in any 12-months period under
Sections 5.6. The Participant must submit his written
application to the Committee at least 30 days before he
receives his withdrawal.
5.2 Withdrawal Fee. The Trustee will deduct from the amount of
each withdrawal under Section 5.3 (After-Tax and Pre-1987
Vested Accounts), 5.4 (age 59-1/2), 5.5 (age 70-1/2) and 5.6
(hardship), a processing fee in an amount determined from
time to time by the recordkeeper and the Committee and
timely communicated to Participants. The recordkeeper will
reflect the deduction on the statement that it issues with
the payment.
5.3 Inservice Withdrawal from After-Tax and Pre-1987 Vested
Accounts. Each Participant may withdraw all or part of his
After-Tax Account balance and Pre-1987 Vested Account
balance during his Employment. The Participant must submit
a written request to the Committee, specifying the amount to
be withdrawn. The Trustee will pay the amount withdrawn in
a single payment in cash as promptly as practicable after
the Committee approves the request. The Participant may not
withdraw shares of Company Stock. The Trustee will pay each
withdrawal first from the Participant's After-Tax Account to
the extent possible, then from his Pre-1987 Vested Account,
and will withdraw on a pro rata basis from the investment
funds in which each Account is invested.
5.4 Inservice Withdrawal After Age 59-1/2. At any time after
the Participant reaches age 59-1/2, he may submit to the
Committee a written request to withdraw from his Account
balances. The Trustee will pay the withdrawal pro rata from
all the investment funds in which the Participant's Accounts
are invested, and from his Accounts in the following order:
(a) After-Tax Account, (b) Pre-1987 Vested Account, (c)
Rollover Contribution Account, (d) vested Matching Account,
(e) vested Profit Sharing Account, (f) unmatched portion of
Before-Tax Account, and (g) matched portion of Before-Tax
Account, to the extent the Participant has such Accounts.
The Participant may request his withdrawal in the form of
either cash of Company Stock.
5.5 Inservice Withdrawal After Age 70-1/2. Beginning in the
calendar year when the active Participant reaches age
70-1/2, he must withdraw from his Account balances the
minimum annual amount required by the distribution rules
described in Section 6.2 applied as if he had retired. He
must make the withdrawal no later than December 31 of each
year. To determine the required amount of each withdrawal,
the Committee will determine the Participant's aggregate
Account balances as of the last day of the previous calendar
year and divide that amount by the smaller of (a) his life
expectancy or the joint and last survivor life expectancy of
the Participant and beneficiary, or (b) the applicable
divisor required by the incidental benefit rule under Code
Section 401(a)(9). The Trustee will pay the withdrawal pro
rata from all the investment funds in which the
Participant's Accounts are invested, and from his Accounts
in the following order: (A) After-Tax Account, (2) Pre-1987
Vested Account, (3) Rollover Contribution Account, (4)
vested Matching Account, (5) vested Profit Sharing Account,
(6) unmatched portion of Before-Tax Account, and (7) matched
portion of Before-Tax Account, to the extent the Participant
has such Accounts. The Participant may request his
withdrawal in the form of either cash of Company Stock.
5.6 Hardship Withdrawals.
(a) Application. The active Participant who wishes to make
a hardship withdrawal during his Employment must submit
a written request to the Committee, specifying the
amount to be withdrawn. The withdrawal request must
include a full statement of the reasons for the
withdrawal, the amount of any other financial resources
available to the Participant, and such other
information as the Committee may request. The amount
withdrawn will be paid to the Participant as promptly
as practicable after the Committee approves his
request. No Participant who has terminated Employment,
and no beneficiary, will be eligible to make a hardship
withdrawal.
(b) Available Amount. The minimum amount that may be
withdrawn is the lesser of $500.00 or the Participant's
available vested Account balances. The amount
withdrawn may not exceed the actual expenses incurred
or to be incurred by the Participant because of his
hardship, plus (simultaneously with the withdrawal) the
reasonably estimated amount of taxes and penalties he
must pay on the withdrawal. The Participant may
withdraw from his Accounts in the following order: (1)
After-Tax Account, (2) Pre-1987 Vested Account, (3)
Rollover Contribution Account, (4) vested Matching
Account, (5) vested Profit Sharing Account, (6)
unmatched portion of Before-Tax Account, and (7)
matched portion of Before-Tax Account, to the extent
the Participant has such Accounts, provided that the
Participant may not withdraw any earnings allocated to
his Before-Tax Account after 1988. He may not withdraw
any of his Safe-Harbor Contributions Account balance
regardless of the date when allocated.
(c) Immediate and Heavy Financial Need. The Participant
may make a hardship withdrawal only if he incurs a
hardship which creates an immediate and heavy financial
need which he cannot meet without the withdrawal. A
hardship withdrawal must be necessitated by either:
(1) Medical expenses incurred by, or medical care to
be obtained for, the Participant, his Spouse or
dependents,
(2) Purchase of the Participant's principal
residence,
(3) Tuition payments and related educational fees for
the next 12 months of post-secondary education
(including trade school) for the Participant, his
Spouse or dependents, or
(4) Threatened imminent eviction from, or foreclosure
of the mortgage on, the Participant's principal
residence.
(d) No Other Available Resources. The Participant may make
a hardship withdrawal only to the extent that he cannot
meet his hardship from other reasonably available
financial resources.
(1) Loans. He must have first obtained all other
available distributions and nontaxable loans
under all his Employer's plans, if any.
(2) Suspension. After the Participant receives his
hardship withdrawal, the Committee will suspend
his Before-Tax Contributions to this Plan and to
any other plan maintained by any Employer for a
period of 12 months.
(3) $7,000 (Indexed) Limit. The Participant's $7,000
(indexed) annual limit on his Before-Tax
Contributions described in Section 7.1 for the
calendar year following the year in which he
received his hardship withdrawal, will be reduced
by the amount of the Before-Tax Contributions he
made during the year in which he received his
hardship withdrawal, with the effect that the
$7,000 (indexed) dollar limit in effect for the
second calendar year will apply to the two years
as if they were a single year.
(e) Nondiscrimination. The determination of the existence
of the Participant's immediate and heavy financial need
and the necessity of the withdrawal to meet the need,
will be made by the Committee in a uniform and
nondiscriminatory manner.
(f) Reliance on Participant's Representations. The
Committee will in good faith rely on the
representations made by the Participant in his
application for the hardship withdrawal and will not be
held accountable for any misrepresentation of which it
did not have actual knowledge.
ARTICLE 6
Post-Employment Payments
6.1 Payment Events. The Participant who has a payment event
described in this Section may elect to receive or begin
receiving payment of his Account balances under Section 6.2
as of any Valuation Date on or after his Termination Date,
but not later than the Valuation Date on or next following
the date he reaches age 65. Rules governing payment to the
beneficiary of the deceased Participant are set forth in
Subsection (d). Rules governing the amount, form and timing
of payments are set forth in Section 6.2.
(a) Retirement. The Participant's Normal Retirement Age is
his 65th birthday, regardless of the number of his
Years of Service. He will become fully vested in his
Matching Account and Profit Sharing Account balances
on that date, if not earlier under Subsection 3.2 (d).
He may receive his vested Account balances as of any
Valuation Date on or after the later of his Termination
Date or 65th birthday. The Participant who continues
Employment after Normal Retirement Age will continue to
be eligible to participate in the Plan on the same
basis until he retires; provided that he must begin to
make minimum annual inservice withdrawals under Section
5.5 on his Required Beginning Date.
(b) Termination of Employment Before Age 65. The
Participant who terminates Employment before age 65,
and has aggregate Account balances greater than $3,500,
may receive his vested Account balances as of any
Valuation Date on or after his Termination Date, but
not later than age 65.
(c) Disability. The Participant who incurs a Disability
will become fully vested in his Matching Account and
Profit Sharing Account regardless of his age and Years
of Service. He may receive his vested Account balances
as of any Valuation Date on or after his Termination
Date, but not later than age 65.
(d) Death. In the event of the Participant's death while
he has a balance in his Accounts, his Account balances
will become fully vested and will be immediately
payable to his surviving Spouse, or if there is no
surviving Spouse or if the Participant had properly
designated a non-Spouse beneficiary with the Spouse's
written consent under Section 6.3, then to his
beneficiary.
6.2 Amount, Form and Timing of Payment. Each payment of a
Participant's aggregate Account balances will be subject to
the following rules and any other rules adopted by the
Committee from time to time and uniformly applied:
(a) Application for and Timing of Payment. The Participant
or beneficiary must apply for payment by completing a
form provided by the Committee (which will include an
election regarding income tax withholding, and
beginning in 1993 an election regarding direct
rollovers), and by filing the properly completed form
with the Committee no later than the deadline
established by the Committee and uniformly applied.
The Committee will direct the Trustee or other payor to
issue the payment as of the Valuation Date following
the date when it receives the properly completed form;
provided that if the Committee does not receive the
properly completed form by the quarterly deadline, it
will direct payment to be made as of the Valuation Date
for the following calendar quarter.
(b) Right to Defer Payment. Regardless of the reason for
his termination, the Participant whose aggregate
Account balances exceed $3,500 and who terminates
Employment before age 65 may leave his aggregate
Account balances in the Plan until he reaches that age.
As of any Valuation Date after his Termination Date, he
may elect to receive payment. No Beneficiary may defer
payment.
(c) Amount of Payment. The Participant or beneficiary will
receive the amount of the Account balances determined
as of the Valuation Date last preceding the payment
date, plus any Before-Tax Contributions made since that
date, and minus any inservice withdrawals made under
Article 5 since that date.
(d) Form of Payment. Each Participant or beneficiary will
receive payment of the aggregate Account balances in a
lump-sum payment.
(e) Medium of Payment. The Participant or beneficiary may
elect to receive the Account balances either entirely
in cash, or cash for any Account balances invested in
the funds other than Company Stock, and shares of
Company Stock for any Account balances invested in
Company Stock, provided that any fractional shares will
be paid in cash.
(f) Withdrawal Fee. The recordkeeper will deduct from the
amount of each lump sum payment a processing fee in an
amount determined from time to time by the recordkeeper
and the Committee and timely communicated to
Participants. The recordkeeper will reflect the
deduction on the statement that it issues with the
payment.
(g) Direct Rollover. Beginning January-1, 1993, the
retired or terminated vested Participant who receives
a payment before his Required Beginning Date may
instruct the Committee to roll over all or part of his
payment to another qualified retirement plan or to an
individual retirement account (IRA). The Participant
must timely provide in writing all information required
to effect the rollover. A surviving Spouse who
receives a payment before the Spouse's Required
Beginning Date may instruct the Committee to roll over
all or part of the payment to an IRA, and must timely
provide in writing all information required to effect
the rollover. The Committee will provide timely notice
of the right to make a direct rollover. The non-Spouse
beneficiary may not make a direct rollover.
(h) Constructive Cash-Out. Regardless of the amount of his
Account balance(s), each nonvested Participant will be
considered to have received a constructive cash-out of
his Matching Account and Profit Sharing Account
balances as of his Termination Date. In the event such
Participant resumes Employment before he incurs a
Five-Year Break, he will be considered to have repaid
his constructive cash-out as of the date he resumes
Employment.
(i) Latest Payment Date. Unless the Participant or
beneficiary elects later payment under Subsection
6.2(b), the Plan will pay each Participant's aggregate
Account balances no later than the 60th day after the
end of the Plan Year in which occurs the latest of the
date when: (1) he reaches Normal Retirement Age, (2)
the tenth anniversary of the date he began
participating in the Plan, or (3) his Termination Date;
provided that the Trustee will make payment no later
than the Required Beginning Date.
(j) Compliance with Code Section 401(a)(9). The intent of
this Section is that the payment date for each
Participant and beneficiary will be within the
limitations permitted under Code Section 401(a)(9). If
there is any discrepancy between this Section and Code
Section 401(a)(9), that Code Section will prevail.
6.3 Designation of Beneficiaries
(a) Procedure. Each Participant, with the written consent
of his Spouse (if any), may designate one or more
beneficiary(s) to receive any balance in his Accounts
which may be payable in the event of his death. The
Participant may change his designation from time to
time by filing the proper form with the Committee, and
each change will revoke all his prior designations. To
be effective, each designation or revocation must be
made in writing on a form provided by the Committee and
must be signed and filed with the Committee before the
Participant's death. The Participant may name one or
more primary beneficiaries and one or more contingent
beneficiaries. If upon the Participant's death his
Spouse has not consented to his beneficiary designation
or if no designated beneficiary survives him, the
Committee will direct the payment of his benefits to
his surviving Spouse if any, or if none then to his
surviving lineal descendants per stirpes, or if none
then to the Participant's surviving parent(s), or if
none then to the Participant's surviving siblings per
stirpes, or if none then to the Participant's estate.
(b) Waiver of Spouse's Rights. Each married Participant
may elect to have all or any part of his Account
balances that would otherwise be payable to his
surviving Spouse in the event of his death, payable
instead to one or more beneficiary(s) designated under
Subsection (a). Each election must be in writing and
(1) must be signed by the Participant and his Spouse;
(2) the Spouse's consent must acknowledge the effect of
the election; (3) the Spouse's consent must either
specifically approve each named beneficiary and the
elected form of payment, or must permit the Participant
to name any beneficiary and elect any form of payment
without further Spousal consent; and (4) the Spouse's
consent must be witnessed by a notary public. Spousal
consent will not be required if the Participant
provides the Committee with a decree of abandonment or
legal separation, or with satisfactory evidence that he
cannot obtain consent because he has been unable to
locate his Spouse after reasonable effort. If the
Spouse is legally incompetent, the Spouse's
court-appointed guardian may give consent, even if the
guardian is the Participant.
(c) Judicial Determination. In the event the Committee
does not direct a payment as specified in Subsection
(a) or (b), it may have a court of applicable
jurisdiction determine to whom payment should be made,
in which event all expenses incurred in obtaining the
determination may be charged against the payee.
6.4 Payment to the Participant's Representative. If the
Participant is incompetent to handle his affairs at the time
when his Account balances become payable, or has
disappeared, the Committee will make payment to his
court-appointed personal representative, or if none is
appointed the Committee may in its discretion make payment
to his next-of-kin; provided that the Committee may request
a court of competent jurisdiction to determine the payee, in
which event all expenses incurred in obtaining the
determination may be charged against the payee.
6.5 Unclaimed Benefits. In the event the Committee cannot
locate, with reasonable effort and after a period of five
years, any person entitled to receive the Participant's
Account balances, his balances will be forfeited but will be
reinstated, to the extent required by applicable law, in the
event he subsequently makes a claim for benefits.
ARTICLE 7
Limitations on Allocations
7.1 Excess Dollar Deferrals. Effective in the 1987 calendar
year, the Plan will limit each Participant's Before-Tax
Contributions for each calendar year to $7,000, as indexed
under Code Section 402(g) beginning in 1988. Any amount
which the Participant contributes in excess of the dollar
limit in effect for each year will be an Excess Dollar
Deferral. In the event any Participant makes Excess Dollar
Deferrals for any calendar year, the excess amount will be
distributed under the following rules.
(a) Time of Refund. If the Participant made his Excess
Dollar Deferral solely to this Plan, the Committee will
refund the excess amount and attributable earnings as
soon as practicable after it discovers the excess. If
the Participant made his Excess Dollar Deferral in
whole or part to another qualified plan or individual
retirement account but wishes to withdraw his
Before-Tax Contributions from this Plan, he must submit
to the Committee no later than March 1 a written
statement that he made Excess Dollar Deferrals for the
previous calendar year and a request that a specified
amount of the excess be refunded from this Plan. In no
event will the Committee refund Excess Dollar Deferrals
or attributable income later than April 15 following
the calendar year in which the excess was contributed.
In the event any Excess Dollar Deferral is not refunded
by April 15 of the calendar year following the calendar
year in which it was contributed, it will remain in the
Participant's Before-Tax Account until a withdrawal or
payment event occurs under Article 5 or Article 6. The
Committee will not refund any Excess Dollar Deferral
until the Participant has actually contributed the
excess amount to the Plan.
(b) Reporting Form. When the Committee refunds the Excess
Dollar Deferral, it will designate the refund as an
Excess Dollar Deferral on the appropriate form
published by the Internal Revenue Service so that the
Participant can designate the refund as an Excess
Dollar Deferral on his income tax return.
(c) Order of Refunds. The Plan will refund Excess Dollar
Deferrals before it refunds any Before-Tax
Contributions under Section 7.2 to avoid failing the
ADP Test.
(d) Inclusion in ADP Test. Excess Dollar Deferrals made by
HCEs will be included in the ADP Test under Section 7.2
for the Plan Year in which they were made, whether or
not they are refunded in the same or next following
Plan Year; provided that Excess Dollar Deferrals which
are also Excess Annual Additions and which are refunded
under Subsection 7.3(b) as such, will not be included
in the ADP Test. Excess Dollar Deferrals timely
refunded to NCEs will not be included in the ADP Test.
(e) Inclusion in Annual Addition. Excess Dollar Deferrals
made by HCEs and by NCEs which are refunded in the same
Plan Year or by April 15 of the next following Plan
Year will not be included in their Annual Additions
under Section 7.3. Excess Dollar Deferrals which are
also Excess Annual Additions and which are refunded
under Subsection 7.3(b) as such, will not be included
in the Participant's Annual Addition.
(f) Determination of Earnings. The Committee will use the
Plan's normal method of calculating earnings to
determine the amount of earnings attributable to each
Participant's Excess Dollar Deferrals.
7.2 Nondiscrimination Tests. Notwithstanding any other
provision of the Plan, beginning in the 1987 Plan Year the
Committee will limit or refund Before-Tax Contributions for
HCEs in any Plan Year to the extent necessary to meet the
ADP Test, and will limit Matching Contributions for HCEs in
any Plan Year to the extent necessary to meet the ACP Test.
Alternatively, the Committee may direct the Employers to
make the Safe Harbor Contributions described in Subsection
3.2(c).
(a) ADP Test. The Committee will conduct the ADP Test for
each Plan Year to determine whether the Average
Deferral Percentage (ADP) for the HCE Group and the ADP
for the NCE Group for each Plan Year are within the
maximum disparity permitted under Subsection (a)(3).
The Committee will use the following steps to conduct
the ADP Test:
(1) Actual Deferral Ratio (ADR). The Committee will
determine the ratio of the sum of each
Participant's Before-Tax Contributions and any
Safe Harbor Contributions, to his Compensation.
(2) Average Deferral Percentage (ADP). The ADP for
the HCE Group will be the average of their
individual ADRs, calculated separately for each
Employee in the HCE Group. The ADP for the NCE
Group is the average of their individual ADRs,
calculated separately for each Employee in the
NCE Group.
(3) Maximum Disparity. In no Plan Year will the ADP
of the HCE Group exceed the greater of:
(A) the ADP of the NCE Group multiplied by 1.25;
or
(B) the lesser of the ADP of the NCE Group plus
2 percentage points, or the ADP of the NCE
Group multiplied by 2.
(b) ACP Test. The Committee will conduct the ACP Test to
determine whether the Actual Contribution Percentage
(ACP) for the HCE Group and the ACP for the NCE Group
for each Plan Year are within the maximum disparity
permitted under Subsection (b)(3). The Committee will
use the following steps to conduct the ACP Test:
(1) Actual Contribution Ratio (ACR). The Committee
will determine the ratio of the sum of each
Participant's total allocation of Matching
Contributions and any Safe Harbor Contributions,
to his Compensation.
(2) Average Contribution Percentage (ACP). The ACP
for the HCE Group will be the average of their
individual ACRs, calculated separately for each
Employee in the HCE Group. The ACP for the NCE
Group will be the average of their individual
ACRs, calculated separately for each Employee in
the NCE Group.
(3) Maximum Disparity. In no Plan Year will the ACP
of the HCE Group in either the Savings Plan or
the ESOP exceed the greater of:
(A) the ACP of the NCE Group multiplied by 1.25;
or
(B) the lesser of the ACP of the NCE Group plus
2 percentage points, or the ACP of the NCE
Group multiplied by 2.
(c) Multiple Use. The Committee will determine for each
Plan Year whether to use the 2-point-spread-2-times
multiplier in the ADP Test or in the ACP Test, and will
use the 1.25-multiplier in the remaining test for that
Plan Year; provided that in any Plan Year the Committee
either may reclassify ADP amounts as ACP amounts for
testing purposes only, or may use the multiple-use test
described in Subsection (d).
(d) Multiple-Use Test. The combined limit for the HCE
Group may not exceed an amount equal to the sum of (1)
the larger of the ADP or ACP of the NCE Group
multiplied by the 2-point-spread-2-times multiplier,
plus (2) the smaller of the ADP or ACP of the NCE Group
multiplied by the 1.25 multiplier.
(e) Correction of Excess ADP Contributions and Excess ACP
Contributions. The Committee will correct any Excess
ADP Contribution and Excess ACP Contribution, under the
following rules.
(1) Correction before Excess Contributions are Made.
In the event the Committee determines, before
Excess ADP Contributions and/or Excess ACP
Contributions are made, that the Plan will fail
to meet either the ADP Test or the ACP Test or
both tests for that Plan Year, then it will
either make the Safe Harbor Contribution
described in Subsection 3.2(c) or limit the
Before-Tax Contributions and/or Matching
Contributions for the HCE Group by such amount
and beginning as of such pay period as it
considers necessary to prevent failing the ADP
Test and/or ACP Test.
(2) Correction after Excess Contributions are Made.
In the event the Committee determines, after the
Plan has already received Excess ADP
Contributions and/or Excess ACP Contributions,
that the Plan will fail to meet either the ADP
Test or the ACP Test or both Tests for that Plan
Year, then it either will make the Safe Harbor
Contribution described in Subsection 3.2(c) or
will refund the excess amounts and attributable
earnings as necessary to meet the ADP Test and/or
ACP Test. The amount actually refunded will be
reduced to the extent that the amount of the
excess has already been reduced by the refund of
any Before-Tax Contributions in excess of $7,000
(indexed) under Section 7.1. The Committee will
refund excess amounts and attributable earnings
to the affected HCEs no later than the end of the
Plan Year following the Plan Year for which the
excess amount was contributed, and if practicable
by March 15 of that Plan Year.
(A) Excess ADP Contributions. The Committee
will refund Excess ADP Contributions to HCEs
in the order of their Actual Deferral Ratios
(ADRs), beginning with the highest ADR and
continuing the refund, if necessary, until
all HCEs have the same ADR, and then
reducing those ADRs equally (the leveling
method).
(B) Excess ACP Contributions. The Committee
will forfeit nonvested Excess ACP
Contributions of HCEs. The Committee will
refund Excess ACP Contributions to HCEs in
the order of their Actual Contribution
Ratios (ACRs), beginning with the highest
ACR and continuing the refunds, if
necessary, until all HCEs have the same ACR,
and then reducing those ACRs equally.
(3) Determination of Earnings Attributable to the
Excess. The Committee will use the Plan's normal
method of calculating earnings to determine the
amount of earnings attributable to each
Participant's allocation of Excess ADP
Contributions and/or Excess ACP Contributions.
(f) Family Aggregation Rules.
(1) Contributions Used in the ADP Test.
(A) ADP Test. For purposes of the ADP Test, the
Committee will aggregate the Compensation
and Contributions used in the ADP Test of
all Employees in any Family Unit as if the
Family Unit were a single HCE Participant
and the aggregate Actual Deferral Ratio
(ADR) of all members of the Family Unit were
the ADR of a single HCE Participant.
(B) Correcting Excess ADP Contributions for the
Family Unit. The Committee will correct any
Excess ADP Contributions by the following
method.
(i) Leveling Method. The Committee will
reduce the Family Unit ADR by treating
it as the ADR of an HCE Participant and
by reducing the ADR of all HCE
Participants, beginning with the
highest ADR and continuing the
reduction, if necessary, until all HCEs
have the same ADR, and then reducing
those ADRs equally. The Committee will
then determine the dollar amount of the
Excess ADP Contribution.
(ii) Allocation of Excess. The Committee
will allocate the Excess ADP
Contribution for the Family Unit among
the members in proportion to their
Contributions used in the ADP Test for
the Plan Year, i.e., by multiplying the
amount of the excess by the ratio of
each individual member's Contribution
used in the ADP Test to the total
Contributions of all members used in
the ADP Test.
(2) Contributions Used in the ACP Test.
(A) ACP Test. For purposes of the ACP Test, the
Committee will aggregate the Compensation
and Contributions used in the ACP Test of
all Employees in any Family Unit as if the
Family Unit were a single HCE Participant
and the aggregate Actual Contribution Ratio
(ACR) of all members of the Family Unit were
the ACR of a single HCE Participant.
(B) Correcting Excess ACP Contributions. The
Committee will correct any Excess ACP
Contributions of a Family Unit in the same
manner as it corrects Excess ADP
Contributions, described above in Subsection
(f)(1)(B), except that the term Actual
Contribution Ratio (ACR) will be substituted
for the term Actual Deferral Ratio (ADR)
each place it appears.
(g) Excess Annual Addition. Any Before-Tax Contribution or
Employer Contribution which is an Excess Annual
Addition and which is distributed under Subsection
7.3(b)(1) will not be included in the ADP Test or ACP
Test, as applicable.
7.3 Code Section 415 Limitation. In no event will the Maximum
Annual Addition for any Participant exceed the Code Section
415 Limit described in this Section for any Plan Year after
1986.
(a) Applicable Definitions. For purposes of this Section,
the following terms will have the meanings set forth
below.
(1) Annual Addition. Each Participant's Annual
Addition will include the sum of Before-Tax
Contributions and Employer Contributions
allocable to him for the Limitation Year,
including (A) Excess Dollar Deferrals that are
not timely refunded under Section 7.1, and (B)
Excess ADP Contributions and Excess ACP
Contributions, whether or not timely distributed
under Section 7.2; provided that any
Contributions which are distributed as Excess
Annual Additions under Subsection 7.3(b)(1) will
not be included in the Participant's Annual
Addition.
(2) Compensation. The amount paid by the Employer to
the Participant and reported as taxable income on
his Form W-2 for the Limitation Year, which
amount will exclude Before-Tax Contributions and
Employer Contributions to this Plan.
(3) Controlled Group. For purposes of this Section,
all controlled group members which have at least
50 percent common ownership, within the meaning
of Code Sections 414(b) and 415(h), will be
considered to be a single employer.
(4) Excess Annual Addition. Any Before-Tax
Contribution and/or Employer Contribution which
exceeds the Participant's Maximum Annual Addition
for the Limitation Year.
(5) Limitation Year. The Plan Year.
(6) Maximum Annual Addition. For each Participant
during each Limitation Year, an amount which does
not exceed the lesser of (A) $30,000 (or 1/4 of
the defined benefit plan dollar limitation in
effect for the Limitation Year under Code Section
415(b)(1)(A) if greater or such other amount
specified under that Code Section), or (B) 25
percent of his Compensation.
(b) Treatment of Excess Annual Additions. In the event the
Committee determines that, as the result of a
reasonable error in estimating a Participant's annual
Compensation or in determining the amount of Before-Tax
Contributions that he can make for the Plan Year under
the $7,000 (indexed) limit described in Section 7.1, or
under other circumstances that the Internal Revenue
Service approves, the Annual Addition to any
Participant's Accounts for any Plan Year would exceed
his Maximum Annual Addition, the Committee will reduce
his allocations to the extent necessary to equal his
Maximum Annual Addition. The Committee will disregard
the removed Excess Annual Additions for purposes of the
$7,000 (indexed) limitation described in Section 7.1
and for purposes of the ADP Test and the ACP Test. The
Committee will remove Excess Annual Additions from the
Accounts by using the following procedures:
(1) To the extent that any remaining excess results
from Before-Tax Contributions, the Committee will
refund it from the Participant's Before-Tax
Account, with a pro-rata distribution of vested
Matching Contributions, and/or forfeitures of
nonvested Matching Contributions, and a pro-rata
distribution of earnings.
(2) To the extent that any remaining excess results
from Matching Contributions, the Committee will
treat the excess as a Profit Sharing Contribution
and will reallocate it among other Participants
as a uniform percentage of their Compensation (as
defined in Section 1.20), up to their Maximum
Annual Additions.
(4) The Committee will hold in a separate Section 415
suspense account any remaining excess which
cannot be reallocated in the same Limitation
Year. In subsequent Limitation Years, the
Committee will use the balance in the suspense
account to reduce Matching Contributions, to the
extent possible without exceeding the limitations
described in this Section.
(5) Upon Plan termination, any unallocated balance in
the suspense account will revert to the
Employer(s) whose Contributions caused the excess
allocations.
(c) Combined Plan Limitation. If an Employee is a
Participant at any time in both this Plan and any
qualified defined benefit plan maintained by an
Employer, and the sum of his Defined Benefit Fraction
and his Defined Contribution Fraction exceeds 1.0, his
benefit under the defined benefit plan will be reduced
so that the sum of the fractions does not exceed 1.0.
(1) Defined Benefit Fraction. The Participant's
Defined Benefit Fraction for any Plan Year is a
fraction, the numerator of which is his projected
annual benefit under the defined benefit plan
determined as of the close of the Plan Year and
the denominator of which is the lesser of:
(A) 1.25 multiplied by $90,000 (as adjusted) and
the product multiplied by the ratio of the
Participant's years of Employment (not
greater than 10) over 10; or
(B) 1.4 multiplied by his average Compensation
for the three consecutive calendar years
when his Compensation was highest.
(2) Defined Contribution Fraction. The Participant's
Defined Contribution Fraction for any Plan Year
is a fraction, the numerator of which is the sum
of the Annual Additions to his Accounts for the
Plan Year and all prior Plan Years during his
Employment, and the denominator of which is the
sum of the lesser of the following amounts for
the Plan Year and all prior Plan Years during his
Employment:
(A) 1.25 multiplied by $30,000 (as adjusted);
or
(B) 1.4 multiplied by 25 percent of his
Compensation for the Plan Year.
Alternatively, the Committee may authorize the
use of any method permitted by Treasury
Regulations from time to time to compute the
Defined Contribution Fraction.
(d) Combining of Plans. For purposes of applying the
limitations described in this Section, all defined
benefit plans maintained by an Employer (whether or not
terminated) will be treated as one defined benefit
plan, and all defined contribution plans maintained by
an Employer (whether or not terminated) will be treated
as one defined contribution plan.
(e) Controlled Group. For purposes of this Section, all
controlled group members under 50 percent common
control by or with the Company, within the meaning of
Code Sections 414(b) and 415(h), will be considered to
be a single Employer.
(f) Compliance With Code Section 415. The intent of this
Section is that the maximum benefit payable to each
Participant will be exactly equal to the maximum amount
permitted under Code Section 415. If there is any
discrepancy between this Section and Code Section 415,
then Code Section 415 will prevail.
7.4 Top-Heavy Rules.
(a) Definitions. As used in this Section, the following
words and phrases and any derivatives thereof will have
the following meanings:
(1) Aggregation Group.
(A) Required Aggregation Group. Each of the
following qualified plans of the Controlled
Group is required to be aggregated for
purposes of determining top-heavy status:
(i) each plan in which a Key Employee is a
participant, and (ii) each other plan which
enables any plan with Key Employee
participants to meet the requirements of
Code Section 401(a)(4) or 410.
(B) Permissive Aggregation Group. Qualified
plans of the Controlled Group which are
required to be aggregated, plus such plans
which are not part of the Required
Aggregation Group but which satisfy the
requirements of Code Sections 401(a)(4) and
410 when considered together with the
Required Aggregation Group.
(2) Cumulative Account Balances. For purposes of
this Section, the Cumulative Account Balance of
each Participant as of any Determination Date
will include his:
(A) Employer Contribution Account balance as of
the most recent Valuation Date, adjusted by
allocations of his proportionate share of
Employer Contributions actually made and
allocations of investment gains or losses
made or due to be made under Section 4.1 as
of the Determination Date.
(B) Before-Tax Account balances as of the most
recent Valuation Date, adjusted by
allocations of investment gains or losses
made or due to be made under Section 4.1 as
of the Determination Date.
(C) Distributions made to the Participant or to
his Spouse or beneficiary within the Plan
Year that includes the Determination Date
and the four preceding Plan Years, excluding
distributions rolled over to Related Plans.
Account balance(s) of any former Employee who has
not performed any service for any Employer during
the five-year period ending on the Determination
Date will not be considered.
(3) Determination Date. For each Plan Year, the last
day of the preceding Plan Year.
(4) Key Employee. Any Employee or former Employee
who is, or at any time during the Plan Year in
which occurs the Determination Date or any of the
four preceding Plan Years has been either:
(A) One of the 10 highest-paid owners of any
Employer or Controlled Group member, who
both (i) owns more than a 1/2 percent
interest in value of the Employer or
Controlled Group Member, and (ii) earns more
than $30,000 Compensation as indexed under
Code Section 415(d).
(B) A 5-percent owner of an Employer or
Controlled Group member.
(C) A 1-percent owner of an Employer or
Controlled Group member having Compensation
of more than $150,000.
(D) An officer (a high-level policy-making
executive) who receives more than $45,000
Compensation as indexed under Code Section
415(d), provided that the maximum number of
officers will be the lesser of (i) 50, or
(ii) the greater of 3, or 10 percent of the
total number of Controlled Group employees.
(5) Non-Key Employee. Any Employee or former
Employee who is not a Key Employee.
(6) Related Plans. Qualified plans maintained by the
Company or a Controlled Group employer.
(b) Determination of Top-Heavy Status. The Plan will be
top-heavy for any Plan Year if, as of the Determination
Date:
(1) 60 Percent Rule. The sum of the Cumulative
Account Balances of Participants who are Key
Employees, exceeds 60 percent of the sum of the
Cumulative Account Balances of all Participants;
or
(2) Top-Heavy Group Rule. The Plan is part of a
Required Aggregation Group in which more than 60
percent of the sum of (A) aggregated Cumulative
Account Balances, and (B) present values of
accrued benefits under defined benefit plans,
have been accumulated in favor of Key Employees;
provided that the Plan will not be considered a
top-heavy plan with respect to any Plan Year in
which the Plan is part of a Required or
Permissive Aggregation Group that is not
top-heavy.
(c) Plan Operation During Top-Heavy Status.
Notwithstanding any other provision of the Plan, the
following provisions will apply to Participants for any
Plan Year in which the Plan is top-heavy.
(1) Minimum Benefit or Allocation. Each Participant
who is a Non-Key Employee in a top-heavy Plan
Year and who also participates in a defined
benefit plan maintained by a Controlled Group
employer, will receive the minimum benefit under
the defined benefit plan required under Code
Section 416(c)(1). Each Non-Key Employee
Participant who does not participate in a defined
benefit plan, and who has not terminated
Employment as of the last day of the Plan Year,
will receive an allocation of Employer
Contributions in an amount not less than the
lesser of (A) 3 percent of his Compensation,
whether or not he has made any Employee
Contributions for the Plan Year, and regardless
of his level of Compensation for the Plan Year,
or (B) the percentage contributed for the HCE who
receives the greatest percentage for the Plan
Year.
(3) Effect on Aggregate Defined Benefit and Defined
Contribution
Limits. For the purpose of calculating the
denominators of the Defined Benefit Fraction and
Defined Contribution Fraction under Section 7.3,
1.0 will be substituted for l.25 each place it
appears; provided that such substitution will not
be required if:
(A) the Cumulative Account Balances for Key
Employees does not exceed 90 percent of the
Cumulative Account Balances for all
Employees, and
(B) the minimum top-heavy benefit is provided to
the Participant under a defined benefit plan
maintained by a Controlled Group employer;
and provided further that such substitution will
be suspended for any Employee or former Employee
so long as he receives no allocations under this
Plan or any other qualified plan maintained by a
Controlled Group employer.
ARTICLE 8
Amendment, Termination and Merger
8.1 Amendment.
(a) Procedure. The Company will have the right to amend
the Plan from time to time. The Committee will
determine that an amendment is appropriate, and will
determine whether the amendment may significantly alter
the Plan's contribution requirements or expense
provisions. The Committee or its agent will draft the
amendment. Each amendment must be approved by a
majority of the Committee members then in office. The
Company's President, or officer designated by the
President, will adopt each amendment by placing his
signature thereon. If the amendment may significantly
alter the Plan's contribution requirements or expense
provisions, the Board of Directors must approve it by
resolution. Within 30 days after the date when the
amendment is adopted, the Committee will provide a copy
to each Employer.
(b) Prohibited Amendments. No amendment will be permitted
which would have the effect of any of the following:
(1) Exclusive Benefit. No amendment will permit any
part of the Trust Fund to be used for purposes
other than the exclusive benefit of Participants.
(2) Nonreversion. No amendment will cause any
portion of the Trust Fund to revert to any
Employer, except such amount as may remain after
termination of the Plan and satisfaction of all
liabilities.
(3) No Cutback. No amendment will eliminate any
optional form of benefit with respect to Account
balances accrued before the amendment.
8.2 Termination of the Plan.
(a) Right to Terminate. The Company expects this Plan to
be continued indefinitely but necessarily reserves the
right to terminate the Plan and all contributions at
any time, subject to approval by the Board. Each
Employer reserves the right to terminate its
participation in the Plan at any time by appropriate
action of its board of directors.
(b) Full Vesting. In the event of termination or partial
termination, the Account balances of each affected
Participant, to the extent funded, will become fully
vested as of the termination date. For purposes of
accelerated vesting, affected Participants will include
only those who are in active Employment as of the Plan
termination date. All nonvested Participants who
terminated Employment before the Plan termination date
will be considered to have received constructive
cash-outs of their entire Account balances under
Subsection 6.2(g).
(c) Provision for Benefits Upon Plan Termination. In the
event of termination, the Committee may in its
discretion act as follows:
(1) Maintain the Trust. The Committee may continue
the Trust for so long as it considers advisable
and so long as permitted by law, either through
the existing trust agreement(s), or through
successor funding media.
(2) Terminate the Trust. The Committee may terminate
the Trust, pay all expenses, and direct the
payment of the benefits, either in the form of
lump-sum distributions, installment payments,
transfer to another qualified plan, or any other
form selected by the Committee, to the extent not
prohibited by law.
(d) Surplus Reversion. Any assets that remain after all
benefits under the Plan have been allocated will be
returned to the affected Employer(s), to the extent
permitted by applicable law.
8.3 Plan Merger. In the event of any merger or consolidation of
the Plan with any other plan, or the transfer of assets or
liabilities by the Plan to another plan, each Participant
will be entitled to 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.
ARTICLE 9
Administration
9.1 Allocation of Fiduciary Responsibilities. The Plan
fiduciaries will have the powers and duties described below,
and may delegate their duties to the extent permitted under
ERISA Section 402.
(a) Company and Employers. The Company, through its Board,
will be responsible for amending the Plan, terminating
the Plan, appointing Committee members, and appointing
and removing the Trustee. The Company and each
Employer will be responsible for making contributions
to the Plan in the amounts determined by the Committee
based on the Before-Tax Contributions made by
Participants, net profit margins, and ADP Test and ACP
Test results. Each Employer will promptly provide
complete information regarding the Compensation,
Before-Tax Contributions and Employment of each
Participant and such other relevant information as the
Committee may require.
(b) The Committee.
(1) Appointment and Termination of Office. The
Committee will consist of not less than 1 nor
more than 5 individuals who will be appointed by
and serve at the pleasure of the Board. The
Board will have the right to remove any member of
the Committee at any time. A member may resign
at any time by written resignation to the
Committee and the Board. If a vacancy in the
Committee should occur, the Board will appoint a
successor.
(2) Organization of Committee. The Board will appoint
a Chairman from among the Committee members, and
will appoint a Secretary who may or may not be a
Committee member. The Committee may appoint
agents who may or may not be Committee members,
as it considers necessary for the effective
performance of its duties, and may delegate to
the agents ministerial powers and duties as it
considers expedient or appropriate. The
Committee will fix the compensation of the agents
within the limits set by the Board. Employee
Committee members will serve as such without
additional compensation.
(3) Committee Meetings. The Committee will hold
meetings at least annually. A majority of the
members then in office will constitute a quorum.
Each action of the Committee will be taken by a
majority vote of all members then in office,
provided that the Committee may establish
procedures for taking written votes without a
meeting.
(4) Powers of the Committee. The Committee will have
primary responsibility for administering the
Plan, and all powers necessary to enable it to
properly perform its duties, including but not
limited to the following powers and duties:
(A) Rules. The Committee may adopt rules and
regulations necessary for the performance of
its duties under the Plan.
(B) Construction. The Committee will have the
power to construe the Plan and to decide all
questions arising under the Plan.
(C) Right to Benefits. The Committee will have
discretionary authority to determine the
eligibility of Participants or their
beneficiaries to receive benefits and the
amount of benefits to which any Participant
or beneficiary may be entitled under the
Plan, and will enforce the claims procedure
described in Section 9.4.
(D) Employee Data. The Committee will request
from the Employer complete information
regarding the Compensation, Before-Tax
Contributions, and Employment of each
Eligible Employee and other facts as it
considers necessary from time to time, and
will treat Employer records as conclusive
with respect to such information.
(E) Payments. The Committee will direct the
payment of benefits from the Trust, or may
appoint a disbursing agent, and will specify
the payee, the amount and the conditions of
each payment.
(F) Disclosure. The Committee will prepare and
distribute to the Employees plan summaries,
notices and other information about the Plan
in such manner as it deems proper and in
compliance with applicable law.
(G) Application Forms. The Committee will
provide forms for use by Participants in
designating beneficiaries and applying for
benefits.
(H) Agents. The Committee will retain legal
counsel, accountants and such other agents
as it deems necessary to properly administer
the Plan.
(I) Financial Statements. The Committee will
periodically prepare reports of the Plan's
operation, showing its assets and
liabilities in reasonable detail, and will
submit a copy of each report to the Board
and cause a copy to be maintained in the
office of the secretary of the Committee.
(J) Reporting. The Committee will cause to be
filed all reports required under ERISA and
the Code.
(K) Investment Manager. With approval of the
Board, the Company may appoint an investment
manager.
(L) Accounts. The Committee will maintain or
cause to be maintained individual Accounts
for Participants, and to allocate or cause
to be allocated Before-Tax Contributions,
Employer Contributions, and Rollover
Contributions to the proper Accounts.
(M) General. The Committee will perform all
acts reasonably necessary to administer the
Plan.
(c) The Trustee. The Board will appoint a Trustee who will
have the duties and responsibilities described in the
trust agreement executed by the Company and the
Trustee. The trust agreement will be an integral part
of this Plan.
9.2 Expenses. The Committee will determine, in its sole
discretion, whether the expenses incurred in administering
the Plan and Trust will be paid by the Employer(s) or by the
Trustee from the Trust Fund, or will be charged to Accounts
(such as recordkeeping fees for processing elections,
allocations, withdrawals and distributions). Plan expenses
include but are not limited to fees and charges of
actuaries, attorneys, accountants, consultants, investment
managers, recordkeepers, and the Trustee. The Trustee will
pay from the Trust Fund all expenses directly incurred in
connection with the investment of Plan assets. No Employee
will receive any additional Compensation for services
performed in connection with the Plan.
9.3 Indemnification. The Employers will indemnify and hold
harmless the Committee and each member and each person to
whom the Plan Administrator or either Committee has
delegated responsibility under this Article, from all joint
or several liability for their acts and omissions and for
the acts and omissions of their duly appointed agents in the
administration of the Plan, except for their own breach of
fiduciary duty and willful misconduct.
9.4 Claims Procedure.
(a) Application for Benefits. The Committee will furnish
to each Participant, upon his retirement, information
about the benefits to which he is entitled under the
Plan. The Committee may require any person claiming
benefits under the Plan to submit a written
application, together with such documents, evidence,
and information as it considers necessary to process
the claim.
(b) Action on Application. Within 90 days after receipt of
an application and all necessary documents and
information, the Committee will furnish the claimant a
written notice of its decision. If the Committee
denies the claim in whole or in part, the notice will
set forth (1) specific reasons for the denial, with
specific reference to Plan provisions upon which the
denial is based; (2) a description of any additional
information or material necessary to process the
application with an explanation why such material or
information is necessary; and (3) an explanation of the
Plan's claim review procedure.
If special circumstances require an extension of time
for processing the claim, the Committee will furnish
the claimant written notice of the extension before the
end of the initial 90-day period. In no event will the
extension exceed a period of 90 days from the end of
the initial period. The notice will explain the
circumstances requiring an extension of time and the
date by which the Committee expects to render a
decision.
(c) Claim Review. The claimant who does not agree with the
decision rendered on his application may request that
the Committee review the decision. The request must be
made within 60 days after the claimant receives the
decision, or if the application has neither been
approved nor denied within the 90-day period specified
in subsection (b), then the request must be made within
60 days after expiration of the 90-day period.
Each request for review must be in writing and
addressed to the Committee. Concurrently with filing
the request for review, or within the 60-days request
period, the claimant may submit in writing to the
Committee a statement of the issues raised by his
appeal and supporting arguments and comments.
During the pendency of his appeal the claimant may
inspect all documents which are reasonably pertinent to
his case, upon reasonable notice to the Committee.
However, under no circumstance will any Employer be
required to disclose to any claimant information
concerning any person other than the Participant whose
benefit is being claimed, to the extent such
information is normally treated as confidential.
Where the Committee believes that the issues raised by
the claimant's appeal may be more efficiently or fairly
processed by taking testimony of the claimant or
others, it will set the matter for oral hearing and
give the claimant reasonable notice of the time and
place. Whether or not an oral hearing is scheduled,
the Committee will proceed promptly to resolve all
issues raised by the claimant's appeal and will render
a written decision on the merits, with a statement of
the reasons and references to the pertinent supporting
provisions of the Plan, within 60 days following
receipt of the claimant's request for review.
If special circumstances require an extension of time,
the Committee will render a decision as soon as
possible, but not later than 120 days after receipt of
the request for review. If an extension is required,
the Committee will furnish to the claimant written
notice of the extension, including an explanation of
the circumstances requiring the extension, before
commencement of the extension period.
ARTICLE 10
Miscellaneous
10.1 Headings. The headings and subheadings in this Plan have
been inserted for convenient reference, and in the event a
heading or subheading conflicts with the text, the text will
govern.
10.2 Construction. The Plan will be construed in accordance with
the laws of the State of Alabama, except to the extent such
laws are preempted by ERISA and the Code.
10.3 Qualification for Continued Tax-Exempt Status.
Notwithstanding any other provision of the Plan, the
amendment and restatement of the Plan is adopted on the
condition that it will be approved by the Internal Revenue
Service as meeting the requirements of the Code and ERISA
for tax-exempt status, and in the event continued
qualification is denied and cannot be obtained by revisions
satisfactory to the Committee, this amendment and
restatement will be null and void.
10.4 Nonalienation. No benefits payable under the Plan will be
subject to the claim or legal process of any creditor of any
Participant or beneficiary, and no Participant or
beneficiary will alienate, transfer, anticipate or assign
any benefits under the Plan, except that payments will be
made pursuant to (a) qualified domestic relations orders
issued in accordance with Code Section 414(p), (b) judgments
resulting from federal tax assessments, and (c) as otherwise
required by law.
10.5 No Employment Rights. Participation in the Plan will not
give any Employee the right to be retained in the employ of
any Employer, or upon termination any right or interest in
the Plan except as provided in the Plan.
10.6 No Enlargement of Rights. No person will have any right to
or interest in any portion of the Plan except as
specifically provided in the Plan.
10.7 Withholding for Taxes. Payments under the Plan will be
subject to withholding for payroll taxes as required by law.
Beginning in 1993, each Employer will withhold 20 percent
federal income tax from each lump sum payment which is not
rolled over directly into another qualified retirement plan
or individual retirement account under Subsection 6.2(f).
IN WITNESS WHEREOF, The Colonial Company has caused this
amendment and restatement of The Colonial 401(k) and Profit Sharing
Plan to be executed by its duly authorized officer this _________
day of December, 1994, to be effective as of January 1, 1991.
THE COLONIAL COMPANY
By:____________________________
Title:____________________________
ATTEST:
___________________________
Secretary
Corporate Seal
Ex-5.
Miller, Hamilton, Snider & Odom
Attorneys at Law
Suite 802
One Commerce Street
Montgomery, Alabama 36104
334-834-5550
September 27, 1995
Montgomery Office
The Colonial BancGroup, Inc.
Post Office Box 1108
Montgomery, Alabama 36101
Re: Registration Statement on Form S-8 relating to The
Colonial 401(k) and Profit Sharing Plan
Gentlemen:
We are familiar with the proceedings taken and proposed to be
taken by The Colonial BancGroup, Inc., a Delaware corporation (the
"Company"), in connection with the proposed issuance by the Company
of up to 500,000 shares of its Common Stock, par value $2.50 per
share, from authorized but unissued shares pursuant to the Company's
401(k) and Profit Sharing Plan. We have also acted as counsel for
the Company in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of
1933, as amended, of the registration statement on Form S-8
referred to in the caption above. In this connection we have
reviewed such documents and matters of law as we have deemed
relevant and necessary as a basis for the opinions expressed
herein.
Upon the basis of the foregoing, we are of the opinion that:
(i) The Company is a corporation duly organized and existing
under the laws of the State of Delaware;
(ii) The shares of Common Stock of the Company referred to
above, to the extent actually issued pursuant to the Plan from the
Company's authorized but unissued shares of Common Stock, will be
duly and validly authorized and issued and will be fully paid and
nonassessable shares of Common Stock of the Company; and
(iii) Under the laws of the State of Delaware, no personal
liability attaches to the ownership of the shares of Common Stock
of the Company.
We hereby consent to the filing of this opinion as an exhibit
to the above-referenced registration statement. In consenting to
the inclusion of our opinion in the registration statement we do
not thereby admit that we are a person whose consent is required
pursuant to Section 7 of the Securities Act of 1933, as amended.
Sincerely,
MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
By:___________________________
Michael D. Waters
Ex-23.(A)
CONSENTS OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-8 of our report dated
February 24, 1995, on our audits of the restated consolidated
financial statements of The Colonial BancGroup, Inc. and
subsidiaries as of December 31, 1994 and 1993 and for each
of the three years ended December 31, 1994.
/s/ Coopers & Lybrand L.L.P.
Montgomery, Alabama
September 26, 1995
We consent to the incorporation by reference in the registration
statement of The Colonial BancGroup, Inc. (Colonial), on Form S-8 of our
report dated April 25, 1995, on our audits of the financial statements
of The Colonial 401(k) and Profit Sharing Plan (previously presented as
The Colonial Company Profit Sharing Plan) as of December 31, 1994 and
1995 and for each of the three years in the period ended December 31, 1994,
which report is included in Colonial's Form 11-K.
/s/ Coopers & Lybrand L.L.P.
Montgomery, Alabama
September 26, 1995
Ex-24.(B)
CONSENT OF COUNSEL
To: The Colonial BancGroup, Inc.
We hereby consent to the use in this registration statement of
The Colonial BancGroup, Inc., on Form S-8 of our name in item 5.
_____________________________________________
MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
September 27, 1995
Ex-24
Power of attorney, filed as Exhibit 25 to the Registrant's
Annual Report on Form 10-K for the fiscal year ending December 31,
1994, is incorporated herein by reference.
