<PAGE> 1
REGISTRATION NO.______________
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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SINTER METALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 25-1677695
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Terminal Tower
50 Public Square, Suite 3200
Cleveland, Ohio 44113
(Address of principal executive offices including zip code)
SINTER METALS, INC. SAVINGS PLAN
(Full title of the plan)
JOSEPH W. CARRERAS
Chairman of the Board and Chief Executive Officer
Sinter Metals, Inc.
Terminal Tower
50 Public Square, Suite 3200
Cleveland, Ohio 44113
(Name and address of agent for service)
(216) 771-6700
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered(1) registered share(2) price(2) fee
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<S> <C> <C> <C> <C>
Class A Common Stock, par
value $.001 per share 200,000 $19.125 $3,825,000 $1,318.97
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<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of plan
interests to be offered pursuant to the Sinter Metals, Inc. Savings
Plan (the "Plan").
(2) Pursuant to Rule 457(h) under the Securities Act of 1933, this estimate
is made solely for the purpose of calculating the amount of the
registration fee and is based on the average of the high and low prices
of the Class A Common Stock, par value $.001 per share, on the New
York Stock Exchange on June 17, 1996.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Sinter Metals, Inc., a Delaware
corporation (the "Company") with the Securities and Exchange Commission are
incorporated herein by reference:
(1) Annual Report of the Company on Form 10-K for the fiscal year ended
December 31, 1995;
(2) Quarterly Report of the Company on Form 10-Q for the period ended
March 31, 1996; and
(3) The description of the Company's Class A Common Stock, par value $.001
per share, contained in the Company's Registration Statement on Form
8-A filed pursuant to Section 12 of the Securities Exchange Act of
1934 and any amendments and reports filed for the purpose of updating
that description.
All documents that shall be filed by the Company and the Plan pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
subsequent to the filing of this registration statement and prior to the filing
of a post-effective amendment indicating that all securities offered under the
Plan have been sold or deregistering all securities then remaining unsold
thereunder shall be deemed to be incorporated herein by reference and shall be
deemed to be a part hereof from the date of filing thereof.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article SEVENTH of the Company's Restated Certificate of Incorporation (the
"Certificate") provides that Directors and officers, or each person who is or
was serving or who had agreed to serve at the request of the Board of Directors
or an officer of the Company as an employee or agent of the Company or as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person), shall be indemnified by the Company to
the full extent permitted by the Delaware General Corporation Law (the "DGCL")
or any other applicable laws as presently or hereafter in effect. The Company is
authorized under the Certificate to enter into one or more agreements with any
person which provide for indemnification greater or different than that provided
under the Certificate.
In addition, Article EIGHTH of the Certificate provides that, to the full
extent permitted by the DGCL or any other applicable laws presently or hereafter
in effect, no director of the Company will be personally liable to the Company
or its stockholders for or with respect to any acts or omissions in the
performance of his or her duties as a director of the Company. The Certificate
provides that any repeal or modification of either Article SEVENTH or EIGHTH
will not effect any right or protection existing thereunder immediately prior to
such repeal or modification.
The DGCL empowers the Company to indemnify, subject to the standards
therein prescribed, any person in connection with any action, suit or proceeding
brought or threatened by reason of the fact that such person is or was a
director, officer, employee or agent of the Company or is or was serving as such
with respect to another corporation or other entity at the request of the
Company. In addition, the DGCL authorizes corporations to limit or eliminate the
personal liability of directors to corporations and their stockholders for
monetary damages for breach of directors' fiduciary duty of care.
The Directors and officers of the Company are covered by insurance,
indemnifying them against certain civil liabilities, including liabilities under
the federal securities laws, which might be incurred by them in such capacity.
ITEM 8. EXHIBITS.
4(a) Restated Certificate of Incorporation of the Company is
incorporated herein by reference to Exhibit 3.1(i) to the
Company's Quarterly Report on Form 10-Q for the period ended
September 30, 1994 (Commission File No. 1-3366).
<PAGE> 3
(b) Restated By-Laws of the Company are incorporated herein by
reference to Exhibit 3.1(ii) to the Company's Quarterly
Report on Form 10-Q for the period ended September 30, 1994
(Commission File No. 1-3366).
(c) Sinter Metals, Inc. Savings Plan dated January 1, 1992
(formerly known as the Pennsylvania Pressed Metals, Inc.
Savings Plan), up to and including the Fourth Amendment.
23 Consent of Independent Public Accountants.
24 Powers of Attorney.
UNDERTAKING:
The undersigned registrant will submit any amendments to the
Plan to the Internal Revenue Service in a timely manner and will make
all changes required by the Internal Revenue Service in order to
qualify the amended Plan.
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
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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.
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SIGNATURES
The Registrant. 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 this registration statement 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 Cleveland, State
of Ohio, on this 21st day of June, 1996.
SINTER METALS, INC.
By: /s/ Michael T. Kestner
-------------------------------------------
Michael T. Kestner
Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- -----
<S> <C> <C>
* Chairman of the Board and June 21, 1996
- --------------------------------------- Chief Executive Officer
Joseph W. Carreras (Principal Executive Officer)
* Vice President and Chief June 21, 1996
- --------------------------------------- Financial Officer
Michael T. Kestner (Principal Financial Officer)
* Vice President and Treasurer June 21, 1996
- --------------------------------------- (Controller)
Richard A. McLean
* Director June 21, 1996
- ---------------------------------------
Donald L. LeVault
* Director June 21, 1996
- ---------------------------------------
E. Joseph Hochreiter
* Director June 21, 1996
- ---------------------------------------
David Y. Howe
* Director June 21, 1996
- ---------------------------------------
Mary Lynn Putney
* Director June 21, 1996
- ---------------------------------------
William H. Roj
* Director June 21, 1996
- ---------------------------------------
Charles E. Volpe
<FN>
* This registration statement has been signed on behalf of the
above-named directors and officers of the Company by Michael T.
Kestner, Vice President and Chief Financial Officer, as
attorney-in-fact pursuant to powers of attorney filed with the
Securities and Exchange Commission as Exhibit 24 to this registration
statement.
</TABLE>
DATED: June 21, 1996 By: /s/ Michael T. Kestner
---------------------------------------
Michael T. Kestner, Attorney-in-Fact
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The Plan. Pursuant to the requirements of the Securities Act of 1933,
the undersigned, an authorized representative of the Sinter Metals, Inc. Savings
Plan Administrative Committee, has duly caused this registration statement to be
signed on behalf of the Committee by the undersigned, thereunto duly authorized,
in the City of Cleveland, State of Ohio, on this 21st day of June, 1996.
SINTER METALS, INC. SAVINGS PLAN
By: Sinter Metals, Inc.
Savings Plan Administrative Committee
By: /s/ Joseph W. Carreras
---------------------------------------
Joseph W. Carreras,
Committee Chairman
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<S> <C>
4(a) Restated Certificate of Incorporation of the Company is
incorporated herein by reference to Exhibit 3.1(i) to the
Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1994 (Commission File No. 1-3366).
4(b) Restated By-Laws of the Company are incorporated herein by
reference to Exhibit 3.1(ii) to the Company's Quarterly Report on
Form 10-Q for the period ended September 30, 1994
(Commission File No. 1-3366).
4(c) Sinter Metals, Inc. Savings Plan dated January 1, 1992 (formerly
known as the Pennsylvania Pressed Metals, Inc. Savings Plan), up
to and including the Fourth Amendment.
23 Consent of Independent Public Accountants.
24 Powers of Attorney.
</TABLE>
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PENNSYLVANIA PRESSED METALS, INC.
SAVINGS PLAN
EFFECTIVE JANUARY 1, 1992
<PAGE> 2
TABLE OF CONTENTS
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<TABLE>
<S> <C>
PREAMBLE .................................................................. 1
ARTICLE 1 - DEFINITIONS ................................................... 2
ARTICLE 2 - PARTICIPATION ................................................. 11
2.01 Participation ............................................. 11
2.02 Notice and Enrollment ..................................... 12
2.03 Change in Employment Status ............................... 13
ARTICLE 3 - DETERMINATION OF SERVICE ...................................... 15
3.01 Service in General ........................................ 15
3.02 Year of Service for Participation ......................... 17
3.03 Break in Service .......................................... 18
3.04 Disregarded Service ....................................... 18
ARTICLE 4 - EMPLOYER CONTRIBUTIONS ........................................ 20
4.01 Participant Pre-Tax Contributions ......................... 20
4.02 Employer Matching Contributions ........................... 21
4.03 Employer Retirement Contributions ......................... 21
4.04 Rollover Contributions .................................... 22
ARTICLE 5 - LIMITATIONS ON CONTRIBUTIONS .................................. 23
5.01 Maximum Amount of Contributions ........................... 23
5.02 Limitation on Annual Additions ............................ 24
5.03 Nondiscrimination Requirements Applicable
to Participant Pre-Tax Contributions ...................... 25
5.04 Nondiscrimination Requirements Applicable
to Employer Matching Contributions ........................ 26
5.05 Adjustments to Observe Limitations ........................ 28
5.06 Distribution of Excess Contributions ...................... 29
5.07 Distribution of Excess Deferrals .......................... 30
5.08 Distribution of Excess Aggregate Contributions ............ 32
ARTICLE 6 - PARTICIPANT ACCOUNTS .......................................... 34
6.01 Accounts .................................................. 34
6.02 Adjustment of Accounts .................................... 34
6.03 Notice to Participants .................................... 35
</TABLE>
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TABLE OF CONTENTS
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<TABLE>
<S> <C>
ARTICLE 7 - RIGHTS TO BENEFITS ............................................ 36
7.01 Normal and Late Retirement Benefits ....................... 36
7.02 Disability Retirement Benefit ............................. 36
7.03 Death Benefit ............................................. 36
7.04 Early Retirement Benefit .................................. 38
7.05 Other Termination of Employment ........................... 38
7.06 Restriction on In-Service Distributions ................... 39
ARTICLE 8 - DISTRIBUTION OF BENEFITS ...................................... 40
8.01 Distribution of Benefit ................................... 40
ARTICLE 9 - GENERAL PROVISIONS AFFECTING BENEFITS ......................... 42
9.01 Indirect Payment of Benefits .............................. 42
9.02 Application for Benefits .................................. 42
9.03 Claim and Appeal Procedure ................................ 42
9.04 Nonalienability of Benefits ............................... 43
9.05 Joint Employment .......................................... 44
9.06 Receipt and Release ....................................... 44
9.07 Unclaimed Account Procedure ............................... 44
ARTICLE 10 - IN-SERVICE DISTRIBUTIONS ..................................... 46
10.01 Hardship Distributions .................................... 46
10.02 In-Service Distributions After Attainment of Age 59 1/2 ... 48
ARTICLE 11 - TRUST FUND ................................................... 49
11.01 Appointment of Trustee .................................... 49
11.02 Exclusive Benefit of Trust ................................ 49
11.03 Return of Contributions ................................... 49
11.04 Investment of Trust Assets ................................ 50
ARTICLE 12 - ADMINISTRATION OF PLAN ....................................... 52
12.01 Administrative Committee .................................. 52
12.02 Nondiscriminatory Action .................................. 54
12.03 Funding Policy and Method ................................. 54
12.04 Government Forms .......................................... 54
12.05 Administrative Assistance of Employers .................... 55
12.06 Delegation of Powers ...................................... 55
12.07 Expenses of Plan Administration ........................... 55
</TABLE>
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TABLE OF CONTENTS
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<TABLE>
<S> <C>
ARTICLE 13 - RIGHTS AND OBLIGATIONS OF EMPLOYERS .......................... 56
13.01 Adoption of Plan .......................................... 56
13.02 Withdrawal ................................................ 56
13.03 Disclaimer of Employer Liability .......................... 56
13.04 Employer-Employee Relationship ............................ 56
ARTICLE 14 - AMENDMENTS AND TERMINATION ................................... 57
14.01 Amendment of Plan ......................................... 57
14.02 Withdrawal of an Employer ................................. 58
14.03 Termination of Plan ....................................... 59
14.04 Asset Transfers ........................................... 60
14.05 Mergers ................................................... 60
ARTICLE 15 - MISCELLANEOUS ................................................ 62
15.01 Information Between Committee and Trustee ................. 62
15.02 Payment Under Qualified Domestic Relations Order .......... 62
15.03 Action by the Company ..................................... 62
15.04 Construction .............................................. 62
15.05 Governing Law ............................................. 62
15.06 Trust Agreement ........................................... 62
ARTICLE 16 - TOP HEAVY PROVISIONS ......................................... 63
16.01 Applicability ............................................. 63
16.02 Determination of Top Heavy Status ......................... 63
16.03 Definitions ............................................... 63
16.04 Minimum Annual Addition ................................... 67
16.05 Adjustment of Limitation on Annual Addition ............... 67
16.06 Change in Law ............................................. 68
ARTICLE 17 - LOANS ........................................................ 69
17.01 Loans of Rollover and Pre-Tax Contributions ............... 69
</TABLE>
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PENNSYLVANIA PRESSED METALS, INC.
SAVINGS PLAN
EFFECTIVE JANUARY 1,1992
PREAMBLE
- --------------------------------------------------------------------------------
PURPOSE OF THE PLAN.
- --------------------
The purpose of this Plan, is to provide retirement income for Eligible Employees
of Pennsylvania Pressed Metals, Inc. (the "Company") and such of its
subsidiaries and affiliates that adopt the Plan with the approval of the Company
through a program of Participant and Employer Contributions which are invested
by the Trustee until such time as benefits are distributed under the Plan to a
Participant or his Beneficiary.
PLAN AND TRUST INTENDED TO QUALIFY.
- -----------------------------------
This Plan and its related Trust are intended to qualify as a profit sharing plan
and trust under Section 401(a) of the Internal Revenue Code of 1986. Subject to
the provisions of Section 11.03, no part of the corpus or income of the Trust
forming part of the Plan will be used for purposes other than for the exclusive
benefit of Participants and their Beneficiaries.
1
<PAGE> 6
ARTICLE 1- DEFINITIONS
- --------------------------------------------------------------------------------
The following terms shall have the following meanings unless a different meaning
is clearly required by context:
1.01 ACCOUNT means any account established by the Committee with respect to
this Plan under Section 6.01.
1.02 ANNUAL ADDITION means, in the case of any Participant, the sum for any
Limitation Year of all Participant Pre-Tax Contributions, Employer
Retirement Contributions, Employer Matching Contributions and amounts
described under Section 415(l)(1) and 419A(d)(2) of the Code credited
to the Participant's account for such year.
1.03 BENEFIT COMMENCEMENT DATE means, with respect to any distribution, the
first day of the first period for which an amount is paid.
(a) If a Participant does not elect to defer a distribution, the
Benefit Commencement Date with respect to that distribution is
the first day of the first quarter beginning on or after the
date of the event on account of which the distribution is to be
made.
(b) If a Participant does elect to defer a distribution until after
the Benefit Commencement Date described in paragraph (a), the
Benefit Commencement Date for the deferred distribution is the
first day of the first quarter beginning on or after the date to
which the distribution has been deferred.
(c) In no event shall an Benefit Commencement Date occur later than
April 1st of the calendar year following the calendar year in
which the Participant attains the age of 70 1/2.
1.04 APPLICABLE LAW means the Code or ERISA. (Also see Section 15.05 with
respect to applicable State law).
2
<PAGE> 7
1.05 BENEFICIARY means the person or persons (including a trust or the
estate of a Participant) designated by a Participant to receive any
death benefit pursuant to Section 7.03. A Participant may designate one
or more persons as Primary Beneficiaries only or as Primary and
Secondary Beneficiaries. If any Primary Beneficiaries survive the
Participant, the entire death benefit will be paid to such surviving
Primary Beneficiaries. If no Primary Beneficiaries survive the
Participant, the entire death benefit will be paid to the Secondary
Beneficiaries, if any, who survive the Participant.
1.06 BENEFIT means a benefit payable under this Plan ordinarily payable in
the manner described in Section 8.01.
1.07 BOARD means the Board of Directors of the Company.
1.08 BREAK IN SERVICE shall have the meaning set forth in Section 3.03.
1.09 CODE means the Internal Revenue Code of 1986, as amended from time to
time. Reference to any section or subsection of the Code includes
reference to any comparable or succeeding provisions of any legislation
which amends, supplements or replaces such section or subsection.
1.10 COMMITTEE means the Administrative Committee referred to in Article 12.
1.11 COMPANY means Pennsylvania Pressed Metals, Inc., a corporation
organized under the laws of Pennsylvania, and any organization that is
a successor thereto.
1.12 COMPENSATION means, with respect to any Plan Year, a Participant's
wages, salaries, fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash)
for personal services actually rendered in the course of employment
with an Employer to the extent that the amounts are includible in gross
income (including, but not limited to commissions paid salespersons,
compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a nonaccountable plan
(as described in Code Section 1.62-2(c)), plus any amount which is
contributed by the Employer pursuant to a salary reduction agreement
and which is not includible in the gross income of the Participant
under Sections 125, 402(1)(8), or 402(h) of the Code.
3
<PAGE> 8
Notwithstanding the above, Compensation shall not include
(a) Contributions made by the Employer to a plan of deferred
compensation to the extent that, before the application of Code
Section 415 limitations to that plan, the contributions are not
includible in the gross income of the employee for the taxable
year in which contributed.
(b) Employer contributions made on behalf of an Employee to a
simplified employee pension described in Code Section 408(k).
(c) Any distributions from a plan of deferred compensation, regardless
of whether such amounts are includible in the gross income of the
Employee when distributed.
(d) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by an Employee
either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture.
(e) Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option.
(f) Other amounts which receive special tax benefits, such as premiums
for group-term life insurance (but only to the extent that the
premiums are not includible in the gross income of the Employee).
In no event shall a Participant's Compensation exceed, for purposes of
this Plan, $200,000 or such larger amount as the Secretary of the
Treasury may determine for such Plan Year under Section 401(a)(17) of
the Code.
1.13 EARLY RETIREMENT DATE means the date on which a Participant reaches his
55th birthday.
1.14 EFFECTIVE DATE means January 1, 1992.
1.15 ELIGIBLE EMPLOYEE means any Employee who is regularly employed in the
United States by an Employer and who is not an Ineligible Employee.
1.16 EMPLOYEE means an individual employed by an Employer.
4
<PAGE> 9
1.17 EMPLOYER means each of the following business entities (except that, in
adopting the Plan for the benefit of its Employees, such business
entity may, with the approval of the Company, limit the application of
the Plan to one or more of its divisions, locations or operations):
(a) any subsidiary, affiliated or associated corporation (or a
partnership or sole proprietorship) or other Related Company, as
hereinafter defined, that elects to participate herein pursuant to
Section 13.01; and
(b) any predecessor thereof or successor thereto.
1.18 EMPLOYER CONTRIBUTIONS means the sum of Employer Matching Contributions
and Employer Retirement Contributions made for the benefit of a
Participant under Article 4.
1.19 EMPLOYER MATCHING CONTRIBUTION means a contribution made for the
benefit of a Participant under Section 4.02.
1.20 EMPLOYER MATCHING CONTRIBUTION ACCOUNT means an Account established
under Section 6.01 to which Employer Matching Contributions are
credited.
1.21 EMPLOYER RETIREMENT CONTRIBUTION means a contribution made for the
benefit of a participant under Section 4.03.
1.22 EMPLOYER RETIREMENT CONTRIBUTION ACCOUNT means an Account established
under Section 6.01 to which Employer Retirement Contributions are
credited.
1.23 ENTRY DATE mean January 1, April 1, July 1, or October 1 of each Plan
Year
1.24 ERISA means the Employee Retirement Income Security Act of 1974, as
from time to time amended, and any successor statute or statutes of
similar import.
1.25 FORFEITURE means that portion of a Participant's Total Account Balance
which is forfeited before full vesting.
5
<PAGE> 10
1.26 HIGHLY COMPENSATED EMPLOYEE means an Eligible Employee who is
considered a highly compensated employee pursuant to Code Section
414(q).
1.27 HOUR OF SERVICE shall have the meaning set forth in Section 3.01.
1.28 INELIGIBLE EMPLOYEE means an Employee who is ineligible for
participation in the Plan because:
(a) the Employee is employed by a division, location or operation of
the Company or of any Related Company with respect to which the
Plan has not been adopted; or
(b) the employee is covered under a collective bargaining agreement
entered into by his Employer and employee representatives, between
whom retirement benefits were the subject of good faith
bargaining, provided, however, that in no event shall an Employee
be ineligible for participation in the Plan by operation of this
subsection (b) if the collective bargaining agreement provides for
the coverage of such Employee under this Plan; or
(c) the Employee is a "leased employee" (within the meaning of Code
Section 414(n)(2)); or
(d) the Employee is a nonresident alien who receives no earned income
(within the meaning of Code Section 911(d)(2)) from the Company
or a Related company which constitutes income from sources within
the United States (within the meaning of Code Section 861(a)(3));
or
(e) the Employee's normal place of employment is outside the United
States.
1.29 LIMITATION YEAR means the Plan Year.
6
<PAGE> 11
1.30 MILITARY SERVICE means a leave of absence from active employment of an
Employer during which the Employee is in the armed forces of the United
States of America under circumstances which entitle him to
re-employment and other related rights under any applicable federal law
(such as the Selective Service and Training Act of 1940 or the Vietnam
Era Veterans' Readjustment Act of 1974), provided the Employee reenters
the employ of an Employer within the period during which his
re-employment rights are protected by such law without any intervening
employment elsewhere.
In the event a person in Military Service fails to return to the employ
of an Employer, as provided herein, he shall be deemed as having
terminated his employment as of the commencement of such Military
Service.
1.31 NAMED FIDUCIARY means:
(a) with respect to the administration of this Plan (other than the
review procedure under Section 9.03(c) and administration of the
Trust Fund), the Company and the Committee;
(b) with respect to the administration of the Trust Fund, the Trustee.
1.32 NORMAL RETIREMENT DATE means the date on which a Participant reaches
his 60th birthday.
1.33 PARTICIPANT means each Eligible Employee who has become a Participant
as provided in Section 2.01. Except for purposes of Article 4
(Contributions) and Article 16 (Top Heavy Provisions), the term
"Participant" also means each individual who has ceased to be an
Eligible Employee but who continues to have an interest in an Account.
1.34 PARTICIPANT PRE-TAX CONTRIBUTION means a contribution made on behalf of
a Participant pursuant to an election under Section 4.01.
1.35 PARTICIPANT PRE-TAX CONTRIBUTION ACCOUNT means an Account established
under Section 6.01 to which Participant Pre-Tax Contributions are
credited.
7
<PAGE> 12
1.36 PERMANENT DISABILITY means any medically determinable physical or
mental impairment which renders a Participant unable to engage in his
usual occupation or in any substantial gainful activity for an
Employer. A permanent disability will be deemed to exist if a
Participant is receiving disability benefits from any long-term
disability plan sponsored by an Employer.
1.37 PERMITTED LEAVE means any leave of absence approved by an Employer, for
a period which shall not be in excess of one year, provided that upon
termination of such leave of absence the Employee promptly returns to
the employ of an Employer, without employment (other than Military
Service) elsewhere in the meantime, except with the consent of the
Employer. In the granting of any such leave, each Employer shall act in
a uniform and nondiscriminatory manner with respect to all Employees
similarly situated.
In the event a person on a Permitted Leave fails to return to the
employ of an Employer, as provided herein, he shall be considered as
having terminated his employment as of the commencement of the
Permitted Leave.
1.38 PLAN means the Pennsylvania Pressed Metals, Inc. Savings Plan set forth
herein, as amended from time to time.
1.39 PLAN REPRESENTATIVE means a member of the Committee or its delegate
including any individual appointed by an Employer as provided under
Section 12.05 of the Plan.
1.40 PLAN YEAR means the twelve-month period commencing on January 1 and
ending on December 31.
1.41 PRESCRIBED FORM means an administrative form prepared and made
available by the Committee, which is prescribed by the Committee for
use in applying for a Benefit or in filing an election with respect to
a Benefit under this Plan.
1.42 QUALIFIED DOMESTIC RELATIONS ORDER means any judgment, decree or order
that
(1) relates to the provision of child support, alimony payments or
marital property rights to a spouse, former spouse, child or other
dependent of a Participant,
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<PAGE> 13
(2) is made pursuant to a State domestic relations law (including a
community property law), and
(3) constitutes a "qualified domestic relations order" within the
meaning of Section 414(p) of the Code.
1.43 QUALIFIED ROLLOVER DISTRIBUTION means a distribution to a Participant
from a qualified trust in the form of cash which is a "qualified total
distribution" within the meaning of Section 402(a)(5)(E) of the Code.
1.44 RELATED COMPANY means:
(a)(1) any corporation which is a member of a controlled group of
corporations (as defined in Section 414(b) of the Code) which
includes the Company;
(2) any trade or business, whether or not incorporated, which is under
common control (as defined in Section 414(c) of the Code) with the
Company;
(3) any organization (whether or not incorporated) which is a member
of an affiliated service group (as defined in Section 414(m) of
the Code) which includes the Company;
(4) any other entity required to be aggregated with the Company
pursuant to regulations under Section 414(o) of the Code.
(b) For purposes of applying the limitation on Annual Additions under
Section 5.02, the term "Related Company" means any corporation that
would be a member of a controlled group of corporations (as defined in
Section 414(b) of the Code) of which the Company is a member and any
trade or business that would be under common control (as defined in
Section 414(c) of the Code) with the Company if the phrase "more than
50 percent" were substituted for the phrase "at least 80 percent" each
place it appears in Section 1563(a)(1) of the Code.
(c) The term "Related Company" shall not include any corporation or
unincorporated trade or business prior to the date on which such
corporation, trade or business satisfies the affiliation or control
tests of the preceding subsections.
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<PAGE> 14
1.45 ROLLOVER CONTRIBUTION means a Contribution of a Qualified Rollover
Distribution made by a Participant under Section 4.04.
1.46 ROLLOVER CONTRIBUTION ACCOUNT means an Account established under
Section 6.01 to which Rollover Contributions are credited.
1.47 SERVICE and all terms related thereto shall have the meanings set forth
elsewhere in this Article 1 and in Article 3.
1.48 SPOUSE means the person married to a Participant and may include a
former spouse if so provided in a Qualified Domestic Relations Order.
1.49 TOTAL ACCOUNT BALANCE means an amount equal to the value, determined
under Article 6, of the Account established under the Plan for the
benefit of a Participant as of any date of determination.
1.50 TRUST FUND OR FUND means all the assets that are held by the Trustee
for the purposes of this Plan.
1.51 TRUSTEE means the Trustee or Trustees named in the Trust Agreement
referred to in Section 11.01 hereof and any additional or successor
Trustee or Trustees from time to time acting as Trustee of the Trust
Fund as provided in Section 11.01.
1.52 VALUATION DATE means each March 31, June 30, September 30, and December
31. The Committee may, in its discretion, establish more frequent
Valuation Dates.
1.53 YEAR OF SERVICE shall have the meaning set forth in Section 3.01.
1.54 YEAR OF SERVICE FOR PARTICIPATION shall have the meaning set forth in
Section 3.02.
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ARTICLE 2 - PARTICIPATION
- --------------------------------------------------------------------------------
2.01 PARTICIPATION.
(a) IN GENERAL. An Eligible Employee shall become a Participant on the
Entry Date coinciding with or next following the later of (i) the
date on which the Employee satisfies the Participation
Requirements described in subsection (b), or (ii) the date on
which he first performs an Hour of Service as an Eligible
Employee.
(b) PARTICIPATION REQUIREMENTS.
(1) PARTICIPATION FOR PRE-TAX CONTRIBUTIONS. An Employee
shall satisfy the Participation Requirements when the
Employee first performs an Hour of Service as an eligible
employee.
(2) PARTICIPATION FOR COMPANY MATCHING CONTRIBUTIONS AND
EMPLOYER RETIREMENT CONTRIBUTIONS. An employee shall
satisfy the Participation Requirements when the employee
has completed one (1) Year of Service for Participation
for an Employer.
An Employee who satisfies the Participation Requirements
on any date shall satisfy them on any subsequent date
notwithstanding any interruption in employment.
(c) PARTICIPATION AFTER REEMPLOYMENT.
(1) REEMPLOYMENT AFTER SATISFYING PARTICIPATION REQUIREMENTS.
An Eligible Employee who ceases to be an Employee and who
is subsequently reemployed after having satisfied the
Participation Requirements shall become a Participant on
the later of (i) the Entry Date on which the Employee
would have become a Participant but for the interruption
of employment, or (ii) the date on which he first
performs an Hour of Service as an Eligible Employee
following the interruption of employment.
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<PAGE> 16
(2) REEMPLOYMENT BEFORE SATISFYING PARTICIPATION
REQUIREMENTS. An Eligible Employee who ceases to be an
Employee and who is subsequently reemployed before having
satisfied the Participation Requirements shall become a
Participant on the date provided in subsection (a).
2.02 NOTICE AND ENROLLMENT.
(a) NOTICE TO EMPLOYEE. The Committee shall provide notice to each
Eligible Employee who becomes a Participant in the Plan of his
rights under the Plan, including his right to make Participant
Pre-Tax Contributions. Such notice shall be provided to the
Employee before he becomes a Participant or as soon thereafter as
is practicable under the circumstances.
(b) ENROLLMENT IN PLAN. In order to make Participant Pre-Tax
Contributions under the Plan, a Participant must enroll in the
Plan by filing a properly completed enrollment form with the
Committee.
(c) CONTENTS OF ENROLLMENT FORM. The enrollment form shall be a
Prescribed Form which shall include (i) an authorization for the
deduction of Participant Pre-Tax Contributions from the
Participant's Compensation as provided in Section 4.01 and (ii)
such other terms and conditions as the Committee shall deem
appropriate.
(d) COMMENCEMENT OF PARTICIPANT CONTRIBUTIONS. Participant Pre-Tax
Contributions shall begin on the first day of the first pay period
commencing with respect to the Participant after the Participant's
Entry Date provided that the Participant shall have completed and
filed with the Committee an enrollment form at least thirty (30)
days prior to the Entry Date. The Committee may, in its
discretion, waive the thirty (30) day waiting period with respect
to any Participant.
(e) FAILURE TO ENROLL. A Participant who fails to complete and submit
an enrollment form within the time required in order to begin
Participant Pre-Tax Contributions as of a particular Entry Date
may complete and submit an enrollment form to begin Participant
Pre-Tax Contributions as of any subsequent Entry Date.
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<PAGE> 17
(f) REVOCATION OF ENROLLMENT. A Participant may revoke his enrollment
in the Plan or part of the Plan at any time by filing a revocation
with the Committee on a Prescribed Form. Participant Pre-Tax
Contributions shall cease as soon as practicable after the
revocation has been filed with the Committee. A Participant who
revokes his enrollment in the Plan may resume Participant Pre-Tax
Contributions as of any Entry Date occurring after the first day
of the pay period with respect to which Participant Pre-Tax
Contributions ceased by completing and filing a new enrollment
form at least thirty (30) days prior to such Entry Date.
2.03 CHANGE IN EMPLOYMENT STATUS.
(a) CHANGE FROM ELIGIBLE TO INELIGIBLE EMPLOYEE. If an Employee
becomes an Ineligible Employee because of a change in his
employment status (including a transfer to the employ of a Related
Company that is not an Employer)
(1) PARTICIPATION. The Employee shall cease to be a
Participant for purposes of contributions.
(2) SERVICE. The Employee shall continue to earn Service.
(3) TREATMENT OF ACCOUNTS. The Employee's Accounts shall
continue to be invested and revalued as provided in
Article 6.
(b) CHANGE FROM INELIGIBLE TO ELIGIBLE EMPLOYEE. If an Employee
becomes an Eligible Employee because of a change in his employment
status (including transfer to a Related Company that is an
Employer)
(1) PARTICIPATION. The Employee shall become a Participant as
provided in Section 2.01.
(2) SERVICE. Service earned while an Ineligible Employee
shall be counted.
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<PAGE> 18
(c) TRANSFER FROM ONE EMPLOYER TO ANOTHER. If a Participant leaves the
employ of one Employer to enter directly into the employ of
another Employer, he shall continue to be a Participant, shall
continue to make Participant Pre-Tax Contributions in accordance
with his election under Section 4.01, and shall be considered for
all purposes of the Plan as an Employee of the succeeding Employer
after the date of transfer. Any such transferred Participant shall
receive credit for his aggregate Service with all Employers. An
Employer shall base any Employer Contributions to which a
Participant may become entitled under Sections 4.02 and 4.03
solely on the Compensation of the Participant while in the employ
of that Employer.
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<PAGE> 19
ARTICLE 3 - DETERMINATION OF SERVICE
- --------------------------------------------------------------------------------
3.01 SERVICE IN GENERAL.
(a) MEANING OF SERVICE. The term "Service" means employment with an
Employer, including employment with an Employer before the
Employer became part of the Company or a Related Company.
(b) RELATED COMPANIES. MILITARY SERVICE. Terms such as "employment
with an Employer," "Service with an Employer" and "working for an
Employer" also shall include employment with a Related Company
that is not an Employer for the purpose of determining an
Employee's Service. A period of Military Service (during which
period the individual shall be considered to be working on the
same basis as immediately prior to such Military Service) shall be
counted as Service for all purposes hereunder.
(c) YEAR OF SERVICE. The term "Year of Service" means a 12-consecutive
month period during which an Employee has completed not less than
1,000 Hours of Service with an Employer. A "Year of Service" shall
be computed on the basis of the Plan Year.
(d) HOURS OF SERVICE. In determining an Employee's number of Hours of
Service, the Employee shall be credited with one Hour of Service
for each hour for which:
(1) he is paid, or entitled to payment, by the Employer for
the performance of duties during the applicable Plan Year
in which the duties were performed, or
(2) he is directly or indirectly paid, or entitled to
payment, by an Employer for reasons other than the
performance of duties during the applicable Plan Year,
such as -
(A) vacation,
(B) holidays,
(C) sickness,
(D) temporary disability,
(E) temporary layoff,
(F) jury duty, or
(G) Permitted Leave,
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<PAGE> 20
with the particular hour to be counted in the Plan Year
in which either payment is actually made or amounts
payable to the Employee come due, subject to the
provisions of paragraph (e)(1) below, or
(3) Back pay (irrespective of mitigation of damages) is
awarded or agreed to by the Employer, with the particular
hour to be counted in the Plan Year for which payment is
made, but an hour counted under paragraph (1) or (2)
above shall not also be counted under this paragraph (3),
or
(4) in the case of a period of absence for Military Service,
he would have been paid had he continued working on the
same basis as immediately prior to such Military Service,
and
(5) the Employee is absent from work by reason of -
(A) the pregnancy of the Employee,
(B) the birth of a child of the Employee,
(C) the placement of a child with the Employee in
connection with the adoption of such child by
the individual, or
(D) the caring for such child for a period beginning
immediately following such birth or placement;
provided that no more than 501 Hours of Service shall be
credited on account of such absence. Hours will be
credited to the period in which the absence begins if
necessary to prevent a Break in Service in that period
and, in all other cases, to the following period. The
Committee may require such Employee to furnish a
statement certifying that the leave was taken for one of
the aforementioned reasons and stating the total number
of days for which there was such an absence.
(e) ADDITIONAL RULES FOR DETERMINING SERVICE. Notwithstanding the
provisions of (c) and (d) above:
(1) For the purpose of determining the number of hours to be
credited under paragraph (d)(2) above.
(A) An employee shall be credited with the number of hours
determined under Labor Department Regulations
2530.200b-2(b) and (c) dated December 28, 1976.
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<PAGE> 21
(B) A payment shall be deemed to be made by an Employer
regardless of whether such payment is made by the
Employer directly or indirectly through a funded program
(such as a trust fund or insurer) to which the Employer
contributes or pays premiums, other than a program run
or required solely for the purpose of complying with
applicable workman's compensation, unemployment
compensation or disability insurance laws.
(C) An Employee shall not be credited with more than 501
Hours of Service during any continuous period in which
no duties are performed.
(2) If an Employee's work records are not kept in a manner that
permits determination of his actual number of hours worked,
then his actual number of hours worked need not be determined
but, in lieu thereof, an equivalent determination shall be
made by crediting the Employee with eight (8) Hours of
Service for each day for which the Employee would be required
to be credited with at least one Hour of Service under Labor
Department Regulation s 2530.200b-2.
(f) EMPLOYMENT WITH TWO OR MORE EMPLOYERS. Periods of employment with
two or more Employers (or, if applicable, with an Employer and a
Related Company that is not an Employer) at the same time shall
not create more than one period of Service for purposes of this
Section 3.01.
3.02 YEAR OF SERVICE FOR PARTICIPATION. For the purpose of determining
whether an Employee has completed one (1) Year of Service for
Participation -
(a) INITIAL PERIOD. The term "Year of Service for Participation" means
the twelve (12) consecutive month period beginning with the first
day on which an Hour of Service is performed by the Employee
provided that the Employee completes at least 1,000 Hours of
Service during such period.
(b) SUBSEQUENT PERIOD. If an Employee fails to complete 1,000 Hours of
Service during the initial period, then the term "Year of Service
for Participation" means the first Plan Year beginning on or after
the first day on which an Hour of Service is performed by the
Employee during which the Employee completes at least 1,000 Hours
of Service.
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<PAGE> 22
3.03 BREAK IN SERVICE.
(a) DETERMINATION OF A BREAK IN SERVICE. The term "Break in Service"
means an Employee's failure to complete more than 500 Hours of
Service during any Plan Year, whether such failure is the result
of his absence from the employ of an Employer (other than for
Military Service or a Permitted Leave), or of any change in the
nature of his employment.
(b) DURATION OF A BREAK IN SERVICE. A Break in Service shall be deemed
to begin on the first day of the Plan Year in which the Employee
fails to earn more than 500 Hours of Service and shall continue
until the first day of any subsequent Plan Year in which the
Employee completes more than 500 Hours of Service. Any Plan Year
during which an Employee incurs a Break in Service shall be
regarded as a "one year Break in Service" and the record of the
Employee's Break in Service shall be maintained in terms of
"consecutive one year Breaks in Service."
3.04 DISREGARDED SERVICE. In computing the number of Years of Service under
Section 3.01 above, all of a Participant's Years of Service with the
Employer shall be taken into account, except that the following shall
be disregarded:
(a) Plan Years in which a participant incurs a one year Break in
Service.
(b) In the case of a Participant who has five or more consecutive one
year Breaks in Service, the Participant's pre-break Years of
Service will be taken into account in determining the
Participant's interest in his Total Account Balance only if
either:
(1) Such Participant had any nonforfeitable interest in his Total
Account Balance at the time of separation from service, or
(2) Upon reemployment, the number of consecutive one year Breaks
in Service is less than the number of Years of Service
completed before such Break.
(c) Years of Service completed after five consecutive one year Breaks
in Service in determining the nonforfeitable percentage of a
Participant's Total Account Balance for any period prior to such
five consecutive one year Breaks in Service.
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<PAGE> 23
(d) Years of Service completed by a Participant with respect to which
he has received a distribution of his entire nonforfeitable
percentage of his Total Account Balance attributable to such Years
of Service unless such distribution is repaid to the Trust in
accordance with Section 7.05(d).
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<PAGE> 24
ARTICLE 4 - CONTRIBUTIONS
- --------------------------------------------------------------------------------
4.01 PARTICIPANT PRE-TAX CONTRIBUTIONS.
(a) ELECTION TO MAKE PARTICIPANT PRE-TAX CONTRIBUTIONS. Each
Participant may elect to have his Compensation reduced for each
pay period by a number of whole percentage points between one
percent (1%) and fourteen percent (14%) and a like amount
contributed by the Employer to the Plan for his benefit.
(b) MANNER OF ELECTION. A Participant shall make an election under
subsection (a) by completing a Prescribed Form and filing it with
the Committee as provided in Section 2.02. Such an election shall
be irrevocable with respect to Compensation earned while it is in
effect but may be changed with respect to future Compensation as
provided under subsection (c) and may be revoked as provided under
Section 2.02.
(c) PERMITTED CHANGES. A Participant may increase or decrease (to a
nonzero percentage) the rate of his Participant Pre-Tax
Contributions on any Entry Date by filing an appropriate election
with the Committee on a Prescribed Form at least thirty (30) days
before the Entry Date. The change shall become effective on the
first day of the first pay period with respect to the Participant
beginning on or after the Entry Date. A Participant may cease
making Participant Pre-Tax Contributions at any time by filing an
appropriate election with the Committee on a Prescribed Form. The
cessation shall become effective as soon as practicable after such
election has been tiled with the Committee.
(d) PAYMENT TO TRUSTEE. Each Participant Pre-Tax Contribution shall be
paid by the Employer to the Trustee in cash no later than the end
of the calendar month following the calendar month in which ended
the pay period for which the contribution was made and shall be
credited to the Participant's Participant Pre-Tax Contribution
Account in accordance with Section 6.02. Participant Pre-Tax
Contributions shall be fully vested and nonforfeitable at all
times.
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<PAGE> 25
4.02 EMPLOYER MATCHING CONTRIBUTIONS.
(a) DETERMINATION OF AMOUNT. In respect of each Plan Year during which
the Plan is in effect, the Company shall contribute to the Trust
of behalf of each such qualifying Participant an amount equal to
twenty-five percent (25%) of the Participant's Pre-Tax
Contributions up to a maximum of one percent (1)% of his
Compensation.
(b) PAYMENT TO TRUSTEE. The Employer Matching Contribution shall be
paid by the Company to the Trustee in cash on or before the date
prescribed by law for the filing of the Company's federal income
tax return (including any extensions of such date) for the fiscal
year with respect to which such contribution is made. The Employer
Matching Contribution made on behalf of a Participant shall be
credited to the Participant's Employer Matching Contribution
Account in accordance with Section 6.02.
4.03 EMPLOYER RETIREMENT CONTRIBUTIONS.
(a) DETERMINATION OF AMOUNT. In respect of each Plan Year during which
the Plan is in effect, the Company shall contribute to the Trust
on behalf of each of its qualifying Employees who is a Plan
Participant, regardless of whether the Participant makes
Participant Pre-Tax Contributions, an amount equal to four percent
(4%) of the Participant's Covered Compensation.
The Company in its discretion may increase or decrease the rate of
Employer Retirement Contributions (or eliminate Employer
Retirement Contributions) at any time. For purposes of this
subsection, a qualifying Employee is (i) a Plan Participant who
has completed 1,000 or more Hours of Service during such Plan Year
and who is in the employ of an Employer on the last day of such
Plan Year or (ii) a Plan Participant who retired after age 60,
died, or became disabled during such Plan Year.
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<PAGE> 26
(b) PAYMENT TO TRUSTEE. The Company shall pay its Employer Retirement
Contribution made with respect to any Plan Year to the Trustee in
cash on or before the date prescribed by law for the filing of the
Company's federal income tax return (including any extensions of
such date) for the fiscal year with respect to which such
contribution is made. Each Employer Retirement Contribution made
on behalf of a Participant shall be credited to the Participant's
Employer Retirement Contribution Account in accordance with
Section 6.02.
4.04 ROLLOVER CONTRIBUTIONS.
(a) CONTRIBUTIONS PERMITTED. In the event that a Participant has
received a Qualifying Rollover Distribution, he may transfer all
or a portion of such Qualifying Rollover Distribution to the Trust
Fund. Such transfer of assets must be within 60 days after the
Participant has received the distribution. In the event the
Participant has rolled over such Participant's distribution to a
"rollover IRA", such Participant may nevertheless, with the
consent of the Committee, rollover such Participant's "rollover
IRA" to the Trust Fund. Such contributions shall be considered
Rollover Contributions and shall be credited to the Participant's
Rollover Contribution Account in accordance with Section 6.02.
Rollover Contributions shall be fully vested and nonforfeitable at
all times.
(b) CONSENT OF COMMITTEE. No Rollover Contribution shall be made to
the Trust unless the Committee has consented to such Contribution.
The Committee may, in its discretion, consent to the Rollover
Contribution provided that (i) the Participant files a request for
such consent with the Committee on a Prescribed Form at least 45
days in advance of the proposed date of transfer to the Plan and
(ii) the Committee concludes that the Rollover Contribution will
not affect the qualified status of the Plan.
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<PAGE> 27
ARTICLE 5 - LIMITATIONS ON CONTRIBUTIONS
- --------------------------------------------------------------------------------
5.01 MAXIMUM AMOUNT OF CONTRIBUTIONS.
(a) LIMITATION ON ANNUAL ADDITIONS. In no event shall the sum of
Participant Pre-Tax Contributions and Employer Contributions
credited to a Participant's Account for any Limitation Year be in
an amount that would cause the Annual Addition for such
Participant to exceed the amount permitted under Section 5.02.
(b) LIMITATION ON EMPLOYER DEDUCTIONS. In no event shall the sum of
Participant Pre-Tax Contributions and Employer Contributions for
any Plan Year exceed the maximum amount deductible under Code
Section 404(a)(3). All such contributions are hereby conditioned
on their deductibility under Code Section 404(a)(3).
(c) LIMITATION ON PARTICIPANT PRE-TAX CONTRIBUTIONS. In no event shall
Participant Pre-Tax Contributions made on behalf of any
Participant for any calendar year exceed $7,000.00 (or such higher
limit as may be in effect for the calendar year under Section
402(g)(5) of the Code).
(d) NONDISCRIMINATION LIMITATIONS ON PARTICIPANT PRE-TAX
CONTRIBUTIONS. In no event shall Participant Pre-Tax Contributions
made on behalf of a Highly Compensated Employee exceed the amount
permitted under Section 5.03.
(e) NONDISCRIMINATION LIMITATION ON EMPLOYER MATCHING CONTRIBUTIONS.
In no event shall Employer Matching Contributions made on behalf
of a Highly Compensated Employee exceed the amount permitted under
Section 5.04.
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<PAGE> 28
5.02 LIMITATION ON ANNUAL ADDITIONS. Notwithstanding any other provision of
the Plan:
(a) LIMITATION APPLICABLE TO PARTICIPANTS IN DEFINED CONTRIBUTION
PLANS ONLY. The Annual Addition to a Participant's Accounts under
the Plan for any Limitation Year, when added to the annual
additions to his accounts for such year under all other defined
contribution plans (if any) maintained by the Employer or a
Related Company, shall not exceed the lesser of (i) the maximum
dollar limitation or (ii) 25 percent of the Participant's Taxable
Compensation for such Limitation Year. For purposes of this
Section, "maximum dollar limitation" means $30,000 (or, if
greater, one-fourth of the limitation in effect for the Limitation
Year under Section 415(b)(1)(A) of the Code).
(b) ADJUSTMENT TO REDUCE ANNUAL ADDITION. A Participant's Annual
Addition under this Plan shall be reduced to satisfy the
limitation of subsection (a) as follows:
(1) Any Participant Pre-Tax Contribution not yet made to the
Trust for the Limitation Year shall not be made. The
Participant Pre-Tax Contribution shall be paid instead to the
Participant.
(2) Any Employer Contribution not yet made to the Trust for the
Limitation Year shall not be made.
(3) Any Participant Pre-Tax Contribution already made to the
Trust for the Limitation Year shall, to the extent permitted
by the Code and regulations, be withdrawn from the Trust and
distributed to the Participant.
(4) If the Annual Addition for any participant exceeds the
limitations of Section 5.02(a) after the adjustment described
in Section 5.02(b) (1), (2), and (3) the excess amounts in
the Participant's Accounts shall be used to reduce Employer
Contributions for the next Limitation Year (and succeeding
Limitation Years, as necessary) for the Participant if that
Participant is covered by the Plan as of the end of the
Limitation Year.
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<PAGE> 29
However, if the Participant is not covered by the Plan as of
the end of the Limitation Year, then the excess amounts shall
be held unallocated in a suspense account for the Limitation
Year and allocated and reallocated in the next Limitation
Year to all of the remaining Participants in the Plan so as
to reduce Employer Contributions for the next Limitation Year
(and succeeding Limitation Years, as necessary) for all of
the remaining Participants. If a suspense account is in
existence at any time during a particular Limitation Year,
other than the Limitation Year described in the preceding
sentence, all amounts in the suspense account shall be
allocated and reallocated to the Participants before any
Participant Pre-Tax Contributions or Employer Contributions
are made under the Plan for the Limitation Year.
(c) LIMITATION APPLICABLE TO PARTICIPANTS WHO ALSO PARTICIPATE IN A
DEFINED BENEFIT PLAN. In the case of a Participant who also
participates in a defined benefit plan maintained by the Employer
or a Related Company, the sum of the Participant's "defined
contribution plan fraction" (as determined under Section 415(e) of
the Code and the regulations thereunder) and his "defined benefit
plan fraction" (as determined under Section 415(e) of the Code and
regulations thereunder) for such Limitation Year shall not exceed
1.0. The adjustment required to meet this limitation shall be made
in the defined benefit plan. However, if the adjustment required
to meet this limitation cannot be made in the defined benefit
plan, the adjustment shall be made by reducing Participant Pre-Tax
Contributions, under this Plan, and, if necessary, reducing
Employer Contributions under this Plan.
5.03 NONDISCRIMINATION REQUIREMENTS APPLICABLE TO PARTICIPANT PRE-TAX
CONTRIBUTIONS.
(a) PARTICIPANT PRE-TAX CONTRIBUTIONS. Participant Pre-Tax
Contributions for any Plan Year must satisfy at least one of the
following tests:
(1) The average of the individual ratios of Participant Pre-Tax
Contributions to Compensation (the "deferral ratios") for all
Participants who are Highly Compensated Employees does not
exceed the product of 1.25 multiplied times the average of
the deferral ratios for all other Participants, or
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<PAGE> 30
(2) The average of the deferral ratios for all Participants who
are Highly Compensated Employees does not exceed the average
of the deferral ratios for all other Participants by more
than two percentage points AND the average of the deferral
ratios for all participants who are Highly Compensated
Employees is no more than 200% of the average of the deferral
ratios for all other Participants.
(b) PARTICIPATION IN OTHER PLANS. If Participant Pre-Tax Contributions
are made for a Plan Year for a Highly Compensated Employee who
also participates during the same Plan Year in one or more other
plans of the Employer or a Related Company that include cash or
deferred arrangements described in Section 401(k) of the Code, the
deferral ratio of the Highly Compensated Employee for purposes of
this Section 5.03 shall be computed as if all such plans were part
of this Plan.
(c) FAMILY PARTICIPANTS. If any Employee is a spouse, lineal ascendant
or descendant, or the spouse of such lineal ascendants or
descendants, of a Highly Compensated Employee who is either (i) a
5-percent owner (as defined in Section 416(i)(l) of the Code) of
the Employer or a Related Company or (ii) among the ten (10)
Highly Compensated Employees receiving the greatest Compensation
during the Plan Year, such individual shall not be taken into
account separately under this Section 5.03. Instead, the
Compensation of such Employee, and any Participant Pre-Tax
Contributions made for the Employee's benefit, shall be aggregated
with the Compensation and Participant Pre-Tax Contributions for
the Highly Compensated Employee in applying this Section 5.03, as
if the two individuals were a single individual.
(d) TREASURY REGULATIONS. The determination and treatment of the
deferral ratio of any Participant shall satisfy such additional or
different requirements as may be prescribed by the Secretary of
Treasury.
5.04 NONDISCRIMINATION REQUIREMENTS APPLICABLE TO EMPLOYER MATCHING
CONTRIBUTIONS.
(a) EMPLOYER MATCHING CONTRIBUTIONS. Employer Matching Contributions
for any Plan Year must satisfy at least one of the following
tests:
26
<PAGE> 31
(1) The average of the individual ratios of Employer Matching
Contributions to Compensation (the "contribution ratios") for
all Participants who are Highly Compensated Employees does
not exceed the product of 1.25 multiplied times the average
of the contribution ratios for all other Participants, or
(2) The average of the contribution ratios for all Participants
who are Highly Compensated Employees does not exceed the
average of the contribution ratios for all other Participants
by more than two percentage points or such lesser amount as
the Secretary of the Treasury shall prescribe to prevent the
multiple use of this alternative limitation with respect to
any Highly Compensated Employee and the average of the
contribution ratios for all Participants who are Highly
Compensated Employees is no more than 200% of the average of
the contribution ratios for all other Participants.
(b) PARTICIPATION IN OTHER PLANS. If Participant Pre-Tax Contributions
or Employer Matching Contributions are made for a Plan Year for a
Highly Compensated Employee who also participates during the same
Plan Year in one or more other plans of the Employer or a Related
Company described in Section 401(a) of the Code or that include
cash or deferred arrangements described in Section 401(k) of the
Code, the contribution ratio of the Highly Compensated Employee
for purposes of this Section 5.04 shall be computed as if all such
plans were part of this Plan. In the event this Plan satisfies the
requirements of Section 410(b) of the Code only if aggregated with
one or more other plans of the Employer or a Related Company or if
one or more other plans of the Employer or a Related Company
satisfy the requirements of Section 410(b) of the Code only if
aggregated with this Plan, then this Section 5.04 shall be applied
by determining the contribution ratios of Participants as if all
such plans were a single Plan.
(c) FAMILY PARTICIPANTS. If any Employee is a spouse, lineal ascendant
or descendant, or the spouse of such lineal ascendants or
descendants, of a Highly Compensated Employee who is either (i) a
5-percent owner (as defined in Section 416(i)(l) of the Code) of
the Employer or a Related Company or (ii) among the ten (10)
Highly Compensated Employees receiving the greatest Compensation
during the Plan Year, such individual shall not be taken into
account separately under this Section 5.04.
27
<PAGE> 32
Instead, the Compensation of such Employee, and any Employer
Matching Contributions made for the Employee's benefit, shall be
aggregated with the Compensation and Employer Matching
Contributions for the Highly Compensated Employee in applying this
Section 5.04, as if the two individuals were a single individual.
(d) TREASURY REGULATIONS. The determination and treatment of the
contribution ratio of any Participant shall satisfy such
additional or different requirements as may be prescribed by the
Secretary of the Treasury.
5.05 ADJUSTMENTS TO OBSERVE LIMITATIONS
(a) PERMITTED ADJUSTMENTS.
(1) PARTICIPANT PRE-TAX CONTRIBUTIONS. The Committee may modify
any Participant election so as to decrease prospectively any
Participant Pre-Tax Contribution to be made on behalf of any
Participant, if the Committee believes that such a decrease
is appropriate in order to satisfy any limitation in Section
5.01.
(2) RETROACTIVE ADJUSTMENTS. The Committee shall not make any
retroactive adjustments to Participant Pre-Tax Contributions
except as specifically permitted or required in this Article
5.
(b) ORDER OF ADJUSTMENTS. If the Committee decreases any Participant
Pre-Tax Contribution in order to satisfy the nondiscrimination
requirements of Section 5.03, such decrease shall be made first in
the Participant Pre-Tax Contribution for the Highly Compensated
Employee with the highest deferral ratio (as defined in Section
5.03(a)) and all other Highly Compensated Employees with the same
deferral ratio then in effect so that no decrease is made in the
Participant Pre-Tax Contribution for any Highly Compensated
Employee as long as any other Highly Compensated Employee has a
higher deferral ratio in effect. This process shall be repeated
until the average deferral ratio of Highly Compensated Employees
is reduced to an extent deemed acceptable to the Committee.
28
<PAGE> 33
If the Committee decreases any Employer Matching Contribution in
order to satisfy the nondiscrimination requirements of Section
5.04, such decrease shall be made first in the Employer Matching
Contribution for the Highly Compensated Employee with the highest
contribution ratio (as defined in Section 5.04(a)) and all other
Highly Compensated Employees with the same contribution ratio then
in effect so that no decrease is made in the Employer Matching
Contribution for any Highly Compensated Employee as long as any
other Highly Compensated Employee has a higher contribution ratio
in effect. This process shall be repeated until the average
contribution ratio of Highly Compensated Employees is reduced to
an extent deemed acceptable to the Committee.
5.06 DISTRIBUTION OF EXCESS CONTRIBUTIONS.
(a) REQUIRED DISTRIBUTIONS. If, after all contributions for a Plan
Year have been made, the nondiscrimination requirement of Section
5.03(a) has not been satisfied for such Plan Year, the Committee
shall, as soon as practicable but in no event later than the close
of the following Plan Year, distribute the excess contributions
(as defined in Section 401(k)(8)(B) of the Code and Treasury
Regulations thereunder) and the income (or loss) allocable thereto
to the Participant on whose behalf such excess contributions were
made in accordance with Section 401(k)(8) of the Code and Section
1.401(k) - 1(f)(4) of the Regulations.
(b) INCOME (OR LOSS) ALLOCABLE TO EXCESS CONTRIBUTIONS.
(1) ALLOCABLE INCOME FOR THE PLAN YEAR. The income (or loss)
allocable to excess contributions for the Plan Year shall be
determined by multiplying the income (or loss) allocable to
the Participant's Pre-Tax Contribution Account for the Plan
Year by a fraction (i) the numerator of which is the excess
contribution for the Plan Year and (ii) the denominator of
which is the sum of the Participant's Participant Pre-Tax
Contribution Account account balance as of the beginning of
the Plan Year plus the Participant's Pre-Tax Contributions
for the Plan Year plus the Participant's Employer Matching
Contribution for the Plan Year.
(2) ALLOCABLE INCOME FOR THE PERIOD BETWEEN THE END OF THE PLAN
YEAR AND DISTRIBUTION. The income (or loss) allocable to
excess contributions for the period between the end of the
Plan Year and the date of the corrective distribution shall
be equal to ten (10%) percent of the allocable income (or
loss) for the Plan Year determined under Section 5.06(b)(1)
multiplied times the number
29
<PAGE> 34
of calendar months that have elapsed since the end of the
Plan Year. For the purpose of determining the number of
calendar months that have elapsed, a distribution occurring
on or before the 15th day of the month shall be treated as
having been made on the last day of the preceding month, and
a distribution occurring after such 15th day shall be treated
as having been made on the first day of the next month.
(3) ALTERNATIVE ALLOCATION METHOD. As an alternative to the
method of allocating income (or loss) to excess contributions
described in Paragraph (2), the Plan may use any reasonable
method, as determined by the Committee, for computing income
allocable to excess contributions provided that the method
does not violate Code Section 401(a)(4), is used consistently
for all Participants and for all corrective distributions
under the Plan for that Plan Year, is used by the Plan for
allocating income to Participants' Accounts, and/or satisfies
such other requirements as may be set forth in Treasury
Regulations.
5.07 DISTRIBUTION OF EXCESS DEFERRALS.
(a) PERMITTED DISTRIBUTION. If, on or before March 1 of any year, a
Participant notifies the Committee, in accordance with Section
402(g)(2)(A) of the Code and regulations thereunder, that all or
part of the Participant Pre-Tax Contributions made for his benefit
represent an excess deferral (as defined in Section 402(g) of the
Code) for the preceding taxable year of the Participant, the
Committee shall make every reasonable effort to cause such excess
deferral to be distributed to the Participant no later than the
April 15 following such notification.
(b) INCOME (OR LOSS) ALLOCABLE TO EXCESS DEFERRALS.
(1) ALLOCABLE INCOME FOR THE PLAN YEAR. The income (or loss)
allocable to excess deferrals for the Plan Year shall be
determined by multiplying the income (or loss) allocable to
the Participant's Participant Pre-Tax Contribution Account
for the Plan by a fraction (i) the numerator of which is the
excess deferral for the Plan Year and (ii) the denominator of
which is the sum of the Participant's Participant Pre-Tax
Contribution Account account balance as of the beginning of
the Plan Year plus the Participant's Pre-Tax Contributions
for the Plan Year.
30
<PAGE> 35
(2) ALLOCABLE INCOME FOR THE PERIOD BETWEEN THE END OF THE PLAN
YEAR AND DISTRIBUTION. The income (or loss) allocable to
excess deferrals for the period between the end of the Plan
Year and the date of the corrective distribution shall be
equal to ten (10%) percent of the allocable income (or loss)
for the Plan Year determined under Section 5.07(b)(1)
multiplied times the number of calendar months that have
elapsed since the end of the Plan Year. For the purpose of
determining the number of calendar months that have elapsed,
a distribution occurring on or before the 15th day of the
month shall be treated as having been made on the last day of
the preceding month, and a distribution occurring after such
15th day shall be treated as having been made on the first
day of the next month.
(3) ALTERNATIVE ALLOCATION METHOD. As an alternative to the
method of allocating income (or loss) to excess deferrals
described in Paragraph (2), the Plan may use any reasonable
method, as determined by the Committee, for computing income
allocable to excess deferrals provided that the method does
not violate Code Section 401(a)(4), is used consistently for
all Participants and for all corrective distributions under
the Plan for that Plan Year, is used by the Plan for
allocating income to Participants' Accounts, and/or satisfies
such other requirements as may be set forth in Treasury
Regulations.
(c) COORDINATION WITH EXCESS CONTRIBUTIONS.
(1) The amount of Excess Contributions to be distributed under
Section 5.06 with respect to a Participant for a Plan Year
shall be reduced by the amount of Excess Deferrals previously
distributed to the Participant for the Participant's taxable
year ending with or within the Plan Year.
(2) The amount of Excess Deferrals that may be distributed under
this section 5.07 with respect to a Participant for a taxable
year shall be reduced by Excess Contributions previously
distributed with respect to the Participant for the Plan Year
beginning with or within such taxable year.
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<PAGE> 36
5.08 DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS.
(a) REQUIRED DISTRIBUTION. If, after all contributions for a Plan Year
have been made, the nondiscrimination requirement of Section
5.04(a) has not been satisfied for such Plan Year, the Committee
shall, as soon as practicable but in no event later than the close
of the following Plan Year, forfeit if otherwise forfeitable under
the terms of this Plan, or if not forfeitable, distribute the
excess aggregate contributions (as defined in Section 401(m)(6)(B)
of the Code and Treasury Regulations thereunder) and the income
(or loss) allocable thereto to the Participant on whose behalf
such excess aggregate contributions were made in accordance with
Section 401(m)(6) of the Code and Section 1.401(m) - 1(e)(3) of
the Regulations.
(b) INCOME (OR LOSS) ALLOCABLE TO EXCESS AGGREGATE CONTRIBUTIONS.
(1) ALLOCABLE INCOME FOR THE PLAN YEAR. The income (or loss)
allocable to excess aggregate contributions for the Plan Year
shall be determined by multiplying the income (or loss)
allocable to the Participant's Employer Matching Contribution
Account for the Plan Year by a fraction (i) the numerator of
which is the excess aggregate contribution for the Plan Year
and (ii) the denominator of which is the sum of the
Participant's Employer Matching Contribution Account account
balance as of the beginning of the Plan Year plus the
Participant's Employer Matching Contribution for the Plan
Year.
(2) ALLOCABLE INCOME FOR THE PERIOD BETWEEN THE END OF THE PLAN
YEAR AND DISTRIBUTION. The income (or loss) allocable to
excess aggregate contributions for the period between the end
of the Plan Year and the date of the corrective distribution
shall be equal to ten (10%) percent of the allocable income
(or loss) for the Plan Year determined under Section
5.08(1,)(1) multiplied times the number of calendar months
that have elapsed since the end of the Plan Year. For the
purpose of determining the number of calendar months that
have elapsed, a distribution occurring on or before the 15th
day of the month shall be treated as having been made on the
last day of the preceding month, and a distribution occurring
after such 15th day shall be treated as having been made on
the first day of the next month.
32
<PAGE> 37
(3) ALTERNATIVE ALLOCATION METHOD. As an alternative to the
method of allocating income (or loss) to excess aggregate
contributions described in Paragraph (2), the Plan may use
any reasonable method, as determined by the Committee, for
computing income allocable to excess aggregate contributions
provided that the method does not violate Code Section
401(a)(4), is used consistently for all Participants and for
all corrective distributions under the Plan for that Plan
Year, is used by the Plan for allocating income to
Participants' Accounts, and/or satisfies such other
requirements as may be set forth in Treasury Regulations.
33
<PAGE> 38
ARTICLE 6 - PARTICIPANT ACCOUNTS
- --------------------------------------------------------------------------------
6.01 ACCOUNTS. The Committee shall establish and maintain on its books for
each Participant, a Participant Pre-Tax Contribution Account, an
Employer Matching Contribution Account, an Employer Retirement
Contribution Account and a Rollover Contribution Account to record the
interest of the Participant in the Trust. The maintenance of individual
Accounts is for accounting purposes only, and a segregation of the
Trust assets to each Account shall not be required.
6.02 ADJUSTMENT OF ACCOUNTS. The Committee shall, as of each Valuation Date,
make the following adjustments to the Account of each Participant:
(a) OPENING BALANCE. The Committee shall determine the balance of the
Account immediately following the adjustment of such Account as of
the preceding Valuation Date.
(b) DISTRIBUTIONS. The Committee shall reduce the balance of the
Account by the amount of distributions, if any, properly charged
to the Account since the preceding Valuation Date.
(c) CONTRIBUTIONS. The Committee shall increase the balance of the
Account by the amount of Participant Pre-Tax Contributions and
Employer Contributions, if any, properly credited to such Account
since the preceding Valuation Date.
(d) FORFEITURES. The Committee shall increase or decrease the balance
of the Account by the amount of Forfeitures, if any, properly
credited or debited to such Account since the preceding Valuation
Date.
(e) ALLOCATION OF TRUST INCOME OR LOSS. The Committee shall allocate
the net increase or decrease in the fair market value of the Trust
assets (resulting from income, gain, loss and expense since the
preceding Valuation Date) to each Account invested in the Trust on
the basis of Account balances in a uniform and consistent manner.
34
<PAGE> 39
6.03 NOTICE TO PARTICIPANTS. Within a reasonable time after the last day of
each Plan Year, the Committee shall notify each Participant (and the
Beneficiary of each deceased Participant) of the balance in such
Participant's Account as of the last day of such Plan Year. The
Committee may in its discretion notify Participants of the balance in
their Account at more frequent intervals.
35
<PAGE> 40
ARTICLE 7 - RIGHTS TO BENEFITS
- --------------------------------------------------------------------------------
7.01 NORMAL AND LATE RETIREMENT BENEFITS
(a) AMOUNT OF BENEFIT. Any participant who attains his Normal
Retirement Date while in the employ of the Employer or a Related
Company shall have a fully vested and nonforfeitable interest in
his Total Account Balance. If a Participant retires on or after
his Normal Retirement Date, a Benefit equal to his Total Account
Balance, determined as of the Valuation Date coinciding with or
immediately following the date of retirement, shall be distributed
in accordance with Section 8.01.
(b) EMPLOYMENT AFTER NORMAL RETIREMENT DATE. If a Participant
continues in the employ of the Employer or a Related Company after
his Normal Retirement Date, he shall continue to be eligible to
make Participant Pre-Tax Contributions and to receive Employer
Contributions.
7.02 DISABILITY RETIREMENT BENEFIT. Any Participant who, in the judgement of
the Committee, becomes Permanently Disabled and who is separated from
service of the Employer by reason of such disability, shall have a
fully vested and nonforfeitable interest in his Total Account Balance.
Upon separation from service by reason of Permanent Disability, a
Benefit equal to the Participant's Total Account Balance, determined as
of the Valuation Date coinciding with or immediately following the date
of Permanent Disability, shall be distributed in accordance with
Section 8.01.
7.03 DEATH BENEFIT.
(a) AMOUNT OF BENEFIT. Any Participant who dies while in the employ of
the Employer or a Related Company shall have a fully vested and
nonforfeitable interest in his Total Account Balance. A Benefit
equal to the Participant's Total Account Balance, determined as of
the Valuation Date coinciding with or immediately following the
date of death, shall be distributed to his Beneficiary in
accordance with Section 8.01.
36
<PAGE> 41
(b) DESIGNATION OF BENEFICIARY BY MARRIED PARTICIPANT.
(1) PRIMARY BENEFICIARY. If a Participant was married at the time
of death, he shall be deemed to have designated his surviving
spouse as his sole Primary Beneficiary unless prior to his
death he designated as Primary Beneficiary one or more
persons in addition to or other than his surviving spouse.
(2) CONSENT OF SPOUSE. No designation under paragraph (1) shall
be effective unless EITHER (i) the Participant's surviving
spouse consents in writing to the designation, such consent
acknowledges the effect of the designation and identifies the
non-spouse Beneficiary (including any class of Beneficiaries
or any contingent Beneficiaries) or authorizes the
Participant to designate Beneficiaries without further
consent, and such consent is witnessed by a Plan
representative or a notary public, OR (ii) it is established
to the satisfaction of the Committee that the consent
required under (i) above can not be obtained because there is
no spouse, because the spouse cannot be located, or because
of such other circumstances as the Secretary of the Treasury
may prescribe; AND (iii) the non-spouse Beneficiary
designated in accordance with the provisions of this Section
7.04 survives the Participant.
(3) CONSENT LIMITED TO CURRENT SPOUSE. Any consent by a spouse
under paragraph (2) above, or a determination by the
Committee with respect to such spouse under paragraph (2)
above, shall be effective only with respect to such spouse.
Any such consent shall be irrevocable, but shall be effective
only with respect to the specific Beneficiary designation
unless the consent expressly permits designations by the
Participant without any requirement of further consent.
(4) SECONDARY BENEFICIARY. A married Participant may designate
one or more Secondary Beneficiaries with the consent of his
spouse or, if his spouse is the Primary Beneficiary, without
the consent of his spouse.
(c) DESIGNATION OF BENEFICIARY BY UNMARRIED PARTICIPANT. A Participant
who is not married may designate one or more Primary Beneficiaries
and one or more Secondary Beneficiaries.
37
<PAGE> 42
(d) MANNER OF DESIGNATION. The designation of a Beneficiary must be in
writing on a Prescribed Form filed with the Committee before the
Participant's death.
(e) RIGHT TO CHANGE BENEFICIARY. A Participant who has designated a
Beneficiary in accordance with this Section 7.03 may change such
designation at any time by filing with the Committee a new
designation consistent with Section 7.03(b)(2) of this subsection.
A new designation shall not be effective unless it satisfies any
consent requirement under subsection (b).
(f) FAILURE TO DESIGNATE BENEFICIARY. If a Participant dies without a
surviving spouse or other Beneficiary, the full amount payable
upon his death shall be paid to the lawful representative of his
estate.
7.04 EARLY RETIREMENT BENEFITS. Any participant who attains his Early
Retirement Date while in the employ of the Employer or a Related
Company shall have a fully vested and nonforfeitable interest in his
Total Account Balance. If a Participant retires on or after his Early
Retirement Date, a Benefit equal to his Total Account Balance,
determined as of the Valuation Date coinciding with or immediately
following the date of retirement, shall be distributed in accordance
with Section 8.01.
7.05 OTHER TERMINATION OF EMPLOYMENT.
(a) AMOUNT OF BENEFIT. If a Participant ceases to be employed by an
Employer or a Related Company for any reason other than normal or
late retirement, permanent disability retirement, or death, the
participant shall be entitled to a Benefit equal to (i) the full
value of his Participant Pre-Tax Contribution Account, his
Employer Matching Contribution and his Rollover Contribution
Account, plus (ii) the nonforfeitable percentage of his Employer
Retirement Contribution Account, as determined in accordance with
the following vesting schedule:
<TABLE>
<CAPTION>
Nonforfeitable Percentage of
Employer Retirement
Years of Service Contribution Accounts
---------------- ---------------------
<S> <C>
Less than three (3) 0%
Three (3) but less than four (4) 20%
Four (4) but less than five (5) 40%
Five (5) but less than six (6) 60%
Six (6) but less than seven (7) 80%
Seven (7) or more 100%
</TABLE>
38
<PAGE> 43
(b) FORFEITURES. A Participant's non-vested Total Account Balance
shall constitute a Forfeiture as of the end of the Plan Year in
which occurs the earlier of:
(1) distribution to the Participant of his entire nonforfeitable
interest under the Plan on account of separation from
service; or
(2) occurrence of five consecutive one year Breaks-in-Service.
(c) DISPOSITION OF FORFEITURES. Forfeitures shall be used as soon as
practicable to reduce current Employer Retirement Contributions to
the Plan and, if an excess still exists, to reduce future Employer
Retirement Contributions as necessary.
(d) RESTORATIONS. In the event a Participant is less than 100% vested
and receives a distribution of his entire vested Total Account
Balance pursuant to the terms of Section 7.05(a) but later returns
to the service of the Employer or a Related Company prior to
incurring five consecutive one year Breaks in Service, the amount
of his Forfeiture at the time of termination shall be restored,
without adjustment for Trust Fund gains or Losses subsequent to
the date of distribution, to his Employer Contribution Account
provided the full amount distributed pursuant to Section 7.06(a)
is repaid by the Participant to the Trustee before the earlier of:
(1) the close of the first period consisting of five consecutive
one year Breaks in Service, or
(2) the fifth anniversary of the Participant's date of
reemployment.
The restoration of the Forfeiture shall be made, first, from any
other Forfeitures arising in such Plan Year prior to disposition
under Section 7.05(c) and, if not available from such Forfeitures,
from Employer Contributions for such Plan Year.
7.06 RESTRICTION ON IN-SERVICE DISTRIBUTIONS. Except as provided in Section
10.01 (Hardship Distributions), Section 10.02 (In-Service Distributions
After Attainment of Age 59 1/2), and Section 8.01 (attainment of age
70 1/2), no Participant shall be entitled to receive any portion of his
Benefit under the Plan prior to his retirement, death, disability,
other termination of employment as provided in this Article 7, or
termination of the Plan.
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<PAGE> 44
ARTICLE 8 - DISTRIBUTION OF BENEFITS
- --------------------------------------------------------------------------------
8.01 DISTRIBUTION OF BENEFIT. Any Benefit of a Participant that becomes
payable under Article 7 shall be paid in such manner and at such time
as the Participant or Beneficiary directs in accordance with the terms
of this Section.
(a) If the value of the Participant's vested Total Account Balance as
of the Benefit Commencement Date does not exceed $3,500, the
Participant's vested Total Account Balance shall be paid in a
single lump sum as soon as practicable following such Benefit
Commencement Date.
(b) If subsection (a) does not apply, distribution shall be at the
time and in the manner hereinafter described in this Section,
based on the Participant's vested Total Account Balance as of the
Benefit Commencement Date. Anything herein to the contrary
notwithstanding, a Participant whose accounts are less than 100%
vested shall not receive a distribution of less than his entire
vested Total Account Balance prior to having incurred five
consecutive one-year Breaks-in-Service.
(c) All distributions shall be subject to the following rules:
(1) In no event shall distribution begin later than the latest of
the following dates:
(A) The date 60 days following the later of
(i) the close of the Plan Year in which occurs the
Participant's Normal Retirement Date; or
(ii) the close of the Plan Year in which occurs the
tenth anniversary of the year in which the
Participant commenced participation in the Plan; or
(iii) the close of the Plan Year in which the
Participant terminates employment.
(B) The date specified in writing to the Committee by the
Participant (but not later than the April 1 following
the close of the Plan Year in which the Participant
attains age 70 1/2).
40
<PAGE> 45
(2) Notwithstanding any direction by the Participant to the
contrary, all distributions must be made pursuant to a
schedule whereby the Participant's vested Total Account
Balance is paid over a period that does not extend beyond the
life of the Participant or over the lives of the Participant
and any individual he has designated as his Beneficiary (or
over the life expectancies of the Participant and his
designated individual Beneficiary), as determined pursuant to
Code Section 401(a)(9) and regulations thereunder, which
shall override any Plan provision not consistent therewith.
In addition, the payment method selected must satisfy the
minimum distribution incidental benefit requirements of Code
Section 401(a)(9)(G) and regulations thereunder.
(d) In the event of the death of a Participant or Beneficiary while
benefits are being paid under a schedule which meets the
requirements of the preceding paragraph, payments shall continue
pursuant to a schedule which is at least as rapid as the period
selected. In the event of the death of a Participant before
benefit payments have commenced, any death benefit shall be
distributed within five years of death unless the following
conditions are met:
(1) payments are made to an individual Beneficiary designated by
the Participant;
(2) payments are made for the life of such individual Beneficiary
or over a period not extending beyond his life expectancy;
and
(3) payments commence within one year of death. If the designated
Beneficiary is the Participant's spouse, payments may be
delayed until the date the Participant would have attained
70 1/2. If the spouse dies before payments begin, the rules
of this paragraph shall be applied as if the spouse were the
Participant.
(e) The amount which a Participant or Beneficiary is entitled to
receive at any time and from time to time shall be paid by the
Trustee at the direction of the Committee. The payments may be
made in cash and shall be paid in a single sum.
(f) If a Participant elects a Benefit Commencement Date other than the
date defined in Section 1.03(a), the Participant's accounts shall
be invested in an investment fund, as determined by the Committee,
established to preserve capital.
41
<PAGE> 46
ARTICLE 9 - GENERAL PROVISIONS AFFECTING BENEFITS
- --------------------------------------------------------------------------------
9.01 INDIRECT PAYMENT OF BENEFITS. If any Participant or his Beneficiary is,
in the judgment of the Committee, legally, physically or mentally
incapable of personally receiving and receipting for any payment due
hereunder, payment may be made to the guardian or other legal
representative of such Participant or Beneficiary, or if none, to such
other person or institution that, in the opinion of the Committee, is
then maintaining or has custody of such Participant or Beneficiary (or,
if such Beneficiary is a minor, to any person who is custodian for the
benefit of such Beneficiary under the Uniform Gifts to Minors Act of
the state of residence of such minor). Such payments shall constitute a
full discharge with respect thereto.
9.02 APPLICATION FOR BENEFITS. A Participant (or his Beneficiary) must file
an application on a Prescribed Form with the Committee, in order to
receive a benefit under this Plan.
9.03 CLAIM AND APPEAL PROCEDURE.
(a) PROCESSING BENEFIT CLAIM. Within 120 days after its receipt of any
application for a benefit under the Plan, the Committee shall give
written notice to the claimant of its decision of the application.
(b) DENIAL OF BENEFITS. If the Committee denies the claim, in whole or
in part, the written notice of that decision will;
(1) explain why the claim was denied,
(2) cite the Plan section on which the decision was based, and
(3) explain the Plan's review procedure set forth in (c) below.
If the Committee does not deny the claim on its merits, but
merely rejects the application for failure to furnish certain
necessary material or information, the written notice to the
claimant will explain what additional material is needed and
why, and advise the claimant that he may refile a proper
application under the claim procedure set forth in (a) above.
42
<PAGE> 47
(c) APPEAL AND REVIEW PROCEDURE. If a claim has been denied, the
claimant may appeal the denial within 60 days after his receipt of
written notice thereof by submitting in writing to the Committee:
(1) a request for a review of the denial of claim,
(2) a statement of issues and comments, and
(3) a request for an opportunity to review the Plan, the Trust
Agreement and any other pertinent documents (which shall be
made available to him by the Committee, within 30 days after
its receipt of the request, at a convenient location during
regular business hours).
The Committee will make a decision, which shall be in writing
delivered to the claimant, within 60 days after its receipt of the
appeal. But if special circumstances require an extension of time,
such as the need to hold a hearing, the extension may not extend
beyond 120 days after the Committee's receipt of the appeal. The
Committee's written decision will contain specific reasons for the
decision and the pertinent provisions of the Plan on which the
decision is based. The Committee's decision will be final and
binding on all persons concerned.
9.04 NONALIENABILITY OF BENEFITS.
(a) PROVISION WITH RESPECT TO ASSIGNMENT AND LEVY. Except as may be
required to comply with a Qualified Domestic Relations Order in
accordance with Section 414(p) of the Code, no benefit under this
Plan shall be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, levy or charge,
and any attempt to do so shall be void; nor shall any such Benefit
be in any manner liable for or subject to the debts, contracts,
liabilities, engagements or torts of the person entitled to such
Benefit.
(b) ALTERNATE APPLICATION. If any Participant or Beneficiary under
this Plan becomes bankrupt or attempts to anticipate, alienate,
sell, transfer, assign, pledge, encumber or charge any Benefit
under this Plan, except as specifically provided herein, or if any
Benefit shall be levied upon, garnisheed or attached, then such
benefit shall, in the discretion of the Committee, cease and
terminate. In that event the Committee will hold or apply the same
or any part thereof to or for the benefit of such Participant or
Beneficiary, his spouse, children or other dependents or any of
them in such manner and in such proportion as the Committee may
deem proper.
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9.05 JOINT EMPLOYMENT. Any Employee employed by more than one Employer shall
be considered to be an Employee of each such Employer for purposes of
participation in this Plan and for benefits under this Plan.
9.06 RECEIPT AND RELEASE. Any final payment or distribution to any
Participant or his Beneficiary or his legal representative or other
person to whom payment is made in accordance with this Plan shall be in
full satisfaction of all claims against the Trust Fund, the Trustee,
the Committee and the Employer. The Trustee, the Employer, the
Committee or any of them may require a Participant or his Beneficiary
or his legal representative to execute a receipt and release of all
claims under this Plan upon a final payment or distribution or a
receipt to the extent of any partial payment or distribution. The form
of any such receipt and release shall be determined by the Trustee, the
Employer, the Committee or any of them that are concerned with the
payment or distribution to which the receipt and release is applicable.
9.07 UNCLAIMED ACCOUNT PROCEDURE. Neither the Trustee nor the Committee
shall be obliged to search for, or ascertain the whereabouts of, any
Participant or Beneficiary. The Committee, by certified or registered
mail addressed to he last known address of record with the Committee or
the Employer, shall notify any Participant or Beneficiary that he is
entitled to a distribution under this Plan, and the notice shall quote
the provisions of this Section. If the Participant fails to claim his
benefits or make his whereabouts known in writing to the Committee
within a reasonable period of time and the Committee does not know the
whereabouts of the Participant or his Beneficiary, the Committee shall
then notify the Social Security Administration of the Participant's (or
Beneficiary's) failure to claim the distribution to which he is
entitled. The Committee shall request the Social Security
Administration to notify the Participant (or Beneficiary) pursuant to
the procedures it has established for this purpose. If the Participant
or Beneficiary fails to claim his benefits or make his whereabouts
known in writing to the Committee within seven (7) calendar years after
the date of Notification, the benefits under the Plan of the
Participant or Beneficiary will be disposed of as follows:
(a) If the whereabouts of the Participant is unknown but the
whereabouts of the Participant's Beneficiary then is known to the
Committee, distribution will be made to the Beneficiary.
(b) If the whereabouts of the Participant and his Beneficiary are then
unknown to the Committee, the Committee shall direct the Trustee
to distribute the Participant's benefits in the manner provided
under applicable state law with respect to abandoned property.
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While payment is pending the Committee shall direct the Trustee to
hold the Participant's benefits in a segregated account invested
in U.S. Government obligations, Certificates of Deposit, or other
obligations providing a stated rate of return. The segregated
account shall be entitled to all income it earns and shall bear
all expense or loss it incurs. Any payment made pursuant to the
power herein conferred upon the Committee shall operate as a
complete discharge of all obligations of the Trustee and the
Committee, to the extent of the distributions so made.
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ARTICLE 10 - IN-SERVICE DISTRIBUTIONS
- --------------------------------------------------------------------------------
10.01 HARDSHIP DISTRIBUTION.
(a) DISTRIBUTIONS PERMITTED. A Participant who suffers a financial
hardship, as defined in this Section, may request a distribution
from his Participant Pre-Tax Contribution Account and Rollover
Account (subject to the restrictions contained in this Section),
as determined as of the Valuation Date coinciding with or
immediately preceding the date of the Participant's request.
(b) PROCEDURE FOR REQUESTING DISTRIBUTION. The request shall be on a
Prescribed Form and shall set forth the amount requested and the
facts establishing the existence of the hardship. Upon receipt of
the request, the Committee shall determine whether a financial
hardship does exist. If the Committee determines that a hardship
does exist, it shall further determine the amount required to meet
the need created by the hardship (taking into account other
financial resources reasonably available to the Participant), and
shall direct the Trustee to distribute to the Participant in a
single lump sum payment the amount required as soon as
practicable.
(c) RESTRICTIONS ON DISTRIBUTIONS. No distribution made pursuant to
this Section shall exceed the amount of the Participant's
immediate and heavy financial need. No distribution shall be made
pursuant to this Section unless the Participant has obtained all
distributions, other than hardship distributions, and all
nontaxable loans then available under all plans maintained by the
Employer and any Related Company. No distribution shall be made
pursuant to this Section with respect to income or gain earned
with respect to a Participant's Pre-Tax Contribution Account, or
from a Participant's Employer Matching Contribution Account or
Employer Retirement Contribution Account.
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(d) MEANING OF "FINANCIAL HARDSHIP." For purposes of this Section, the
term "financial hardship" means an immediate and heavy financial
need of the Participant on account of (1) medical care within the
meaning of Section 213(d) of the Code incurred by the Participant,
the Participant's spouse, or any dependent of the Participant, or
necessary for these persons to obtain medical care described in
Section 213(d) of the Code, (2) costs directly related to the
purchase (excluding mortgage payments) of a principal residence of
the Participant, (3) payment of tuition and related educational
fees for the next twelve (12) months of post-secondary education
for the Participant, the Participant's spouse, the Participant's
children, or any dependent of the Participant, or (4) the need to
prevent the eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's
principal residence. The amount of an immediate and heavy
financial need may include any amounts necessary to pay any
federal, state, or local income taxes or penalties reasonably
anticipated to result from the hardship distribution.
The Committee shall have full discretionary authority, based on
all the relevant facts and circumstances, to determine the
existence of a financial hardship.
(e) SUSPENSION OF PARTICIPANT CONTRIBUTIONS. A Participant shall not
be eligible to make Participant Pre-Tax Contributions to this Plan
(or any other plans maintained by the Employer) for any portion of
the twelve-month period immediately following the date on which
the Participant receives a hardship distribution. A Participant's
existing elections to make Participant Pre-Tax Contributions shall
be deemed revoked throughout such twelve-month period.
(f) LIMITATION OF PARTICIPANT PRE-TAX CONTRIBUTION FOR TAXABLE YEAR
FOLLOWING HARDSHIP DISTRIBUTION. A Participant shall not make
Participant Pre-Tax Contributions and the Employer shall not
contribute to the Trust a Participant Pre-Tax Contribution on
behalf of a Participant, for the Participant's taxable year
immediately following the taxable year of a hardship distribution
to the Participant from the Participant's Participant Pre-Tax
Contribution Account, in excess of $7,000.00 (or such higher limit
as may be in effect for the Plan Year under Code Section
402(g)(5)) for such next taxable year less the amount of the
Participant's Participant Pre-Tax Contribution and any other
elective deferrals (as defined in Code Section 402(g)(3)) of the
Participant through the Employer or a Related Company for the
taxable year of the hardship distribution from the Participant's
Participant Pre-Tax Contribution Account.
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10.02 IN-SERVICE DISTRIBUTIONS AFTER ATTAINMENT OF AGE 59 1/2.
A Participant may withdraw any portion of his Participant Pre-Tax
Contribution Account and Rollover Contribution Account after the
Participant has attained the age of 59 1/2, regardless of whether the
Participant has terminated employment, as of any Valuation Date, by
filing a request for such withdrawal on a Prescribed Form with the
Committee at least thirty (30) days prior to such Valuation Date. Only
one such withdrawal may be made while the Participant is a Participant
in the Plan. Any Benefit of a Participant that becomes payable under
this Section 10.02 shall be paid in accordance with Section 8.01(e).
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ARTICLE 11 - TRUST FUND
- --------------------------------------------------------------------------------
11.01 APPOINTMENT OF TRUSTEE. The Company shall appoint one or more
individuals or corporations to act as Trustee under the Plan, and at
any time may remove and appoint a successor to any such person or
persons. The Company may enter into a trust agreement with the Trustee
and make such amendments to such trust agreement or such further
agreements as the Company in its sole discretion may deem necessary or
desirable to carry out the Plan.
11.02 EXCLUSIVE BENEFIT OF TRUST. All contributions under this Plan shall be
paid to the Trustee and deposited in the Trust. Except as provided in
Sections 11.03 and 15.02, all assets of the Trust shall be retained for
the exclusive benefit of Participants and Beneficiaries, and shall be
used to pay benefits to such persons or to pay administrative expenses
of the Plan or Trust, and shall not revert to or inure to the benefit
of the Company, any Employer or any Related Company.
11.03 RETURN OF CONTRIBUTIONS.
(a) WHEN CONTRIBUTIONS SHALL BE RETURNED. If a contribution to the
Trust is:
(1) made by reason of a mistake of fact, or
(2) believed by the Company in good faith to be deductible under
Code Section 404(a)(3), but deduction under Code Section
404(a)(3) is disallowed, the Trustee shall, upon request by
the Company, return to the Company the excess of the amount
contributed over the amount, if any, that would have been
contributed had there not occurred a mistake of fact or a
mistake in determining the amount deductible under Code
Section 404(a)(3).
(b) LIMITATION ON RETURN OF CONTRIBUTIONS. In no event shall the
return of a contribution hereunder cause any Participant's Total
Account Balance to be reduced to less than it would have been had
the mistaken or nondeductible amount not been contributed. No
return of a contribution hereunder shall be made more than one
year after the mistaken payment of the contribution or one year
after the final disallowance of the deduction (whether by
agreement with the Internal Revenue Service or by court decision).
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11.04 INVESTMENT OF TRUST ASSETS.
(a) DIRECTION BY COMPANY. The Company shall have full authority to
manage and control the investment of assets of the Plan. The
Company may, in its discretion, delegate some or all of such
authority to the Committee, the Trustee, the Participants (in
accordance with subsection (b)) or one or more investment
managers. It is the Company's investment objective in establishing
this Plan that contributions be invested in a manner designed to
preserve principal and obtain a reasonable return consistent with
such preservation. Nevertheless, the Company reserves the right to
amend the Plan to change its investment objectives.
(b) DIRECTION BY PARTICIPANTS.
(1) PARTICIPANT DIRECTION PERMITTED. The Committee may permit
each Participant to direct the investment of his Participant
Pre-Tax Contribution Account, his Employer Matching
Contribution Account, his Employer Retirement Contribution
Account and (if any) his Rollover Contribution Account. These
Accounts are referred to collectively in this subsection (b)
as "Directed Accounts."
(2) INVESTMENT OPTIONS. In the event that the Committee permits
Participants to direct investments, the Committee shall make
available not less than three investment options and shall
provide reasonably detailed information to the Participants
with respect to each such option. The Committee may change
investment options at any time, as it deems appropriate.
(3) RULES AND PROCEDURES. The Committee shall adopt rules and
procedures regarding the investment and reinvestment of
Directed Accounts and shall make available Prescribed Forms
for Participants to select and to change investment options.
A Participant shall be permitted to change how prospective
contributions made to the Plan on his behalf are invested
among the investment options made available by the Committee
as of any January 1, April 1, July 1, or October 1. Subject
to any rules imposed by a particular investment option, a
Participant shall be permitted to change how all or a portion
of the accumulated amounts then in his accounts are invested
among the investment options made available by the Committee
as of any January 1, April 1, July 1, and October 1. A
Participant's investment directions shall be in multiples of
twenty-five percent (25%).
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(4) SEPARATE ACCOUNTING. Each Participant's investment in each
investment option shall be accounted for separately for
purposes of Section 6.02 (Adjustment of Accounts).
(5) FAILURE TO DIRECT INVESTMENT. In the event that a Participant
fails to direct the investment of all or a portion of his
Directed Accounts the non-directed portion shall be invested
by the Trustee in accordance with investment guidelines
determined by the Committee.
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ARTICLE 12 - ADMINISTRATION OF PLAN
- --------------------------------------------------------------------------------
12.01 ADMINISTRATIVE COMMITTEE.
(a) GENERAL DUTIES OF COMMITTEE. The Plan shall be administered by the
Company which shall be the Plan Administrator for purposes of
ERISA. However, the Board of Directors of the Company shall
appoint a Committee to act on behalf of the Company. The Committee
shall have general responsibility for carrying out the provisions
of the Plan. Except as otherwise provided in subsection (f), the
Committee shall not be responsible in any way for the
administration of the Trust Fund.
THE COMPANY shall discharge its duties under the Plan solely
in the interest of the Participants and their Beneficiaries in
accordance with the provisions of the Plan insofar as they are
consistent with the provisions of Applicable Law, and the
regulations issued thereunder.
THE COMPANY shall discharge its duties under the Plan with
the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent man acting in like capacity and
familiar with such matters would use in the conduct of a similar
enterprise of a like character and with like aims.
(b) MEMBERSHIP OF COMMITTEE. The Committee shall be comprised of at
least three but not more than five members appointed from time to
time by the Company and serving without compensation at the
pleasure of the Company. A Participant in the Plan may serve as a
member of the Committee. The Committee may appoint a secretary,
who may but need not be a member of the Committee, and may appoint
such subcommittees from their own number or otherwise to which
they may delegate such of their powers and duties as they shall
determine.
ANY PERSON appointed a member of the Committee shall signify
his acceptance by filing a written acceptance with the Company.
THE COMPANY may remove or replace a member of the Committee
including its Chair who it shall appoint, by written notice to
such member and to all other members of the Committee, and any
member of the Committee may resign by written notice to the
Company and to all other members of the Committee, to take effect
upon the date specified in any such notice.
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IN ADDITION, a member of the Committee shall automatically be
removed from the Committee, without Company action, upon such
member's termination of employment with the Company or any Related
Company.
(c) PROCEDURES.
(1) The Committee shall hold meetings upon such notice, at such
places and at such times as they may from time to time
determine. Notice may be waived in writing. At any meeting, a
quorum for the transaction of business shall be two-thirds of
the then membership of the Committee.
(2) The Committee shall act by a majority of its membership, and
the action of such majority expressed by a majority vote of
those members present at a meeting, or in writing without a
meeting signed by a majority of the then membership of the
Committee, shall constitute an action taken by the Committee.
(3) The Chair of the Committee (and any one or more of its other
members, or any agent, as from time to time may be
specifically authorized by the Committee) may act between
meetings and sign on behalf of the entire Committee.
(4) The Committee shall keep appropriate books and records. The
Committee shall make available to each member for examination
at reasonable times during business hours such of its records
as pertain to him.
(d) POWERS OF THE COMMITTEE. The Committee is specifically authorized
and empowered, but not by way of limitation,
(1) To construe or interpret the provisions of the Plan whenever
necessary to carry out its intention and purpose.
(2) To engage or employ such accountants, legal counsel, other
advisors, agents, and such clerical, medical and other
services as may be required by Applicable Law or as it may
deem advisable to assist in the administration of the Plan.
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(3) To establish from time to time rules for the administration
of the Plan and the transaction of its business. The
determination of the Committee as to any disputed question
arising hereunder including, but without limitation,
questions of construction, administration and interpretation
shall be final and conclusive upon all persons including, but
not by way of limitation, Employees, Participants and
Beneficiaries; their heirs, distributes and personal
representatives; and any other person claiming an interest
under the Plan.
(e) INDEMNIFICATION. Each member of the Committee shall be indemnified
by the Employers against all such expenses (other than amounts
paid in any settlement not approved by the Company) reasonably
incurred by him in connection with any action to which he may be a
party by reason of his membership in the Committee, except in
relation to matters as to which he shall be adjudged to have
participated in a breach of fiduciary duty. The forgoing right to
indemnification shall be in addition to any other rights to which
any such member may be entitled as a matter of law.
(f) LIABILITY. The members of the Committee shall not be liable for
any action taken by them or by any other fiduciary in the
administration of the Plan or Trust except as provided under
ERISA.
12.02 NONDISCRIMINATORY ACTION. Any discretionary acts to be taken under the
provisions of this Plan by the Committee or by any Employer, with
respect to classification of Employees, contributions or benefits,
shall be uniform in their nature and applicable to all persons
similarly situated, and no discretionary act shall be taken which shall
be discriminatory under the provisions of Section 401(a) of the Code.
12.03 FUNDING POLICY AND METHOD. The Committee shall establish a funding
policy and method and advise the Trustee thereof, so that the
investment of the Trust Fund can be appropriately coordinated with the
Plan's financial needs (such as the requirements for liquidity and
investment performance to meet expected benefit payments) both on a
short-term and long-term basis.
12.04 GOVERNMENT FORMS. The Committee shall have primary responsibility with
respect to the preparation of any forms which, pursuant to Applicable
law, must be filed by or on behalf of the Plan with a government agency
or which must be distributed or made available to any person, and the
Committee shall be primarily responsible for the proper filing,
distribution or availability of such forms.
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12.05 ADMINISTRATIVE ASSISTANCE OF EMPLOYERS. Each Employer shall provide
such assistance in the administration of the Plan with respect to such
Employer as the Committee may reasonably require. Such assistance shall
include but not be limited to the following:
(a) INFORMATION REQUIRED BY COMMITTEE. Each Employer shall promptly
furnish the Committee with such information as the Committee shall
reasonably require to enable it to administer the Plan including,
but not limited to, the names, social security numbers, current
addresses, dates of birth, dates of hire or rehire and current
Compensation and Hours of Service of all Employees, and data
pertaining to Employer Contributions and Participant Pre-Tax
Contributions paid by the Employer to the Trustee.
(b) APPOINTMENT OF AGENT. Each Employer shall appoint one or more of
its Employees as its agent to facilitate communication between the
Employer and the Committee. Such Employee shall carry out such
administrative tasks with respect to the participation in the Plan
by the Employer as the Committee shall reasonably request
including, for example, the distribution of Prescribed Forms and
notices to Employees of the Employer, the explanation of forms and
the collection of forms required to be filed with the Committee.
12.06 DELEGATION OF POWERS. Wherever the Company is given a power or duty
hereunder, the Company may transfer that power or duty to the Committee
or to any committee of the Board, subject to the right of the Company
to terminate such transfer at any time.
12.07 EXPENSES OF PLAN ADMINISTRATION. The expenses incurred by the Committee
in the performance of its duties, including fees for legal, clerical,
medical, accounting and other services rendered to the Committee, shall
be payable from the Trust Fund
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ARTICLE 13 - RIGHTS AND OBLIGATIONS OF EMPLOYERS
- --------------------------------------------------------------------------------
13.01 ADOPTION OF PLAN. Any Related Company that is authorized by the Company
to adopt this Plan may adopt the Plan by action of its managing body.
Adoption of this Plan by any Employer constitutes agreement by the
Employer to observe all terms of the Plan as then in effect and as
subsequently amended by the Company until such time as the Employer
terminates its participation in the Plan.
13.02 WITHDRAWAL. Any Employer may elect to terminate its participation in
the Plan at any time by action of its managing body as provided in
Section 14.02. The Company at any time in its discretion may determine
that an Employer shall no longer participate in the Plan and may direct
that such Employer withdraw from the Plan.
13.03 DISCLAIMER OF EMPLOYER LIABILITY.
(a) It is the intention of each Employer to continue this Plan and
make contributions regularly each year. However, nothing contained
in this Plan or the Trust Agreement shall be deemed to require any
Employer to continue this Plan indefinitely or for any specified
period of time.
(b) No liability shall attach to any Employer for the payment of any
Benefit or claim hereunder, and Participants, their Beneficiaries,
and all person claiming under or through them shall have recourse
only to the Trust Fund for payment of any Benefit hereunder.
(c) No Employer ("first Employer") shall be liable for Employer
Contributions required to be made by another Employer unless the
first Employer assumes such liability in writing.
13.04 EMPLOYER-EMPLOYEE RELATIONSHIP. The establishment of this Plan shall
not be construed as conferring any legal or other rights upon any
Employee or any person for a continuation of employment, nor shall it
interfere with the rights of an Employer to discharge any Employee or
refuse to rehire a former Employee or otherwise act with relation to
him. Each Employer may take any action (including discharge or refusal
to rehire) with respect to any Employee or former Employee or other
person and may treat him without regard to the effect that such action
or treatment might have upon him as a Participant under this Plan.
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ARTICLE 14 - AMENDMENTS AND TERMINATION
- --------------------------------------------------------------------------------
14.01 AMENDMENT OF PLAN.
(a) RIGHT TO AMEND PLAN AND TRUST. The Company shall have the
exclusive right at any time and from time to time to cause any or
all of the provisions of the Plan or Trust to be modified or
amended in any manner, either prospectively or retroactively,
provided, however, that the Company shall not have the right:
(1) To amend the Plan or Trust in such manner as would cause or
permit any part of the Trust to be diverted for purposes
other than for the exclusive benefit of the Participants and
their Beneficiaries including defraying the reasonable
expenses of administering the Plan (except as permitted under
Section 11.03);
(2) To amend the Plan or Trust retroactively in such manner as
would deprive any Participant of any Benefit to which he was
entitled under the Plan by reason of Contributions made prior
to the amendment, unless such amendment is necessary to
conform the Plan or Trust to, or satisfy the conditions of,
any law, governmental regulation or ruling, or to permit the
Trust and the Plan to meet the requirements of Sections
401(a) and 501(a) of the Code; or
(3) To amend the Plan or Trust in such manner as would increase
the duties or liabilities of the Trustee or effect its fee
for services under the Plan and Trust Agreement, unless the
Trustee consents thereto in writing.
(b) AMENDMENT PROCEDURE. The Plan may be amended by written instrument
executed pursuant to authorization by the Company's Board of
Directors. A copy of each amendment shall be filed with each
Employer.
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14.02 WITHDRAWAL OF AN EMPLOYER.
(a) TERMINATION OF PARTICIPATION IN PLAN.
(1) RIGHT TO TERMINATE PARTICIPATION. Any Employer may at any
time terminate its participation in the Plan, but all
contributions theretofore made shall remain the sole property
of the Trustee for use under the Plan. Upon such termination,
each Participant employed by such Employer shall be fully and
nonforfeitably vested in his Total Account Balance.
(2) DISTRIBUTION OF TOTAL ACCOUNT BALANCES. Subject to paragraph
(3), the Total Account Balances of the Participants employed
by a terminating Employer shall be distributed to such
Participants as soon as practicable after the termination
occurs.
(3) DISTRIBUTION PROHIBITED. No distribution shall be made under
paragraph (2) so long as the Employer or any entity related
to the Employer (within the meaning of Code Section 414(b),
(c), (m) or (o)) maintains a defined contribution plan (other
than an employee stock ownership plan as defined in Code
Section 4975(e)(7) or 409 or a simplified employee pension as
defined in Code Section 408(k)) and is reasonably expected to
maintain such a plan within twelve (12) months after the
distribution of assets from the Plan. However, if fewer than
two percent (2%) of the Employees who are eligible to
participate in this plan at the time of its termination are
or were eligible under another defined contribution plan
(other than an employee stock ownership plan as defined in
Code Section 4975(e)(7) or 409 or a simplified employee
pension as defined in Code Section 408(k)) at any time during
the twenty four (24) month period beginning twelve (12)
months before the time of the termination, the preceding
sentence of this paragraph (3) shall not apply.
(b) PARTICIPATION IN A SEPARATE PLAN.
(1) CONTINUATION OF PLAN. Notwithstanding subsection (a), if an
Employer ceases to be a Related Company, the Employer may,
with the approval of the Committee, withdraw from the Plan
and continue the Plan in effect as a separate plan for the
benefit of its Employees, with such modification as the
Employer may deem appropriate. Such withdrawal shall occur as
of the Valuation Date immediately following the date on which
the Employer ceases to be a Related Company.
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(2) TRANSFER OF TRUST ASSETS. Simultaneously with the withdrawal,
the withdrawing Employer shall establish a separate trust for
the holding and administration of funds under the separate
plan. If such action is taken, the Committee shall direct the
Trustee to transfer to the Employer's trust assets equivalent
to the aggregate value of the Total Account Balances of the
Participants employed by the Employer. Upon the transfer of
such assets to the Employer's trust, such Participants shall
cease to be Participants in the Plan. Any transfer of assets
pursuant to this Section shall be subject to the limitations
of Section 14.05.
14.03 TERMINATION OF PLAN.
(a) RIGHT TO TERMINATE PLAN. The Company by action of its Board of
Directors, shall have the exclusive right to terminate the Plan at
any time by filing written notice with the Trustee and each
Employer. Upon such termination or any partial termination, each
affected participant shall be fully and nonforfeitably vested in
his Total Account Balance.
(b) DISTRIBUTION OF TOTAL ACCOUNT BALANCES. In the event of the
complete termination of the Plan, the Total Account Balances of
the Participants shall be distributed to the Participants as soon
as practicable after the termination occurs.
(c) DISTRIBUTION PROHIBITED. No distribution shall be made under
paragraph (b) so long as the Employer or any entity related to the
Employer (within the meaning of Code Section 414(b), (c), (m) or
(o)) maintains a defined contribution plan (other than an employee
stock ownership plan as defined in Code Section 4975(e)(7) or 409
or a simplified employee pension as defined in Code Section
408(k)) is reasonably expected to maintain such a plan within (12)
twelve months after the distribution of assets from the Plan.
However, if fewer than two percent (2%) of the Employees who are
eligible to participate in this plan at the time of its
termination are or were eligible under another defined
contribution plan (other than an employee stock ownership plan as
defined in Code Section 4975(e)(7) or 409 or a simplified employee
pension as defined in Code Section 408(k)) at any time during the
twenty four (24) month period beginning twelve (12) months before
the time of the termination, the preceding sentence of this
paragraph (c) shall not apply.
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14.04 ASSET TRANSFERS.
(a) TRANSFERS TO THE PLAN. In connection with the acquisition by an
Employer of all or a portion of another business, the Committee in
its discretion may, by resolution adopted and filed with the
Trustee, authorize this Plan to accept from another plan qualified
under Section 401(a) of the Code the transfer of assets allocable
to employees of the acquired business who become Employees of such
Employer and to hold such assets for the benefit of such
Employees. However, unless the Committee specifically determines
otherwise, such a transfer shall be accepted only from a profit
sharing plan which is not, either of itself or with respect to any
Participant therein who becomes a Participant in this Plan, a plan
to which the joint and survivor annuity requirements of Section
401(a)(11) of the Code are applicable. The assets received on
behalf of each employee shall be allocated to such Accounts as the
Committee deems appropriate in view of their source under the
transferrer plan. The Committee in its discretion may adopt such
special rules governing the receipt, holding, investment,
administration, and disbursement of assets received from a
particular transferrer plan, and governing the rights of
Participants with respect to such assets, as it deems appropriate
under the circumstances.
(b) TRANSFERS FROM THE PLAN. In like manner, the Committee may
authorize the transfer of assets of this Plan (and the liabilities
related thereto) allocable to persons who were Participants herein
and who become employees of another employer which acquires the
business in which such Participants had been employed, to the
trustee of another plan qualified under Section 401(a) of the Code
maintained by such employer in which such participants will
participate, provided such plan provides for the acceptance of
such assets (and of such liabilities related thereto).
(c) LIMITATION ON TRANSFERS. Transfers pursuant to this Section shall
be subject to the limitations of Section 14.05.
14.05 MERGERS.
(a) MERGER SHALL NOT RESULT IN PLAN TERMINATION. Neither the merger of
any Employer with any other organization, nor the merger,
consolidation or transfer of the assets or liabilities of this
Plan with or to any other retirement plan, shall in and of itself
result in the termination of this Plan or be deemed a termination
of employment as respects any Employee.
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(b) RESTRICTION ON PLAN MERGERS. This Plan may not be merged or
consolidated with, nor its assets or liabilities transferred to,
any other retirement plan unless the benefit to which each
Participant and Beneficiary would be entitled upon termination of
the Plan immediately after such merger, consolidation or transfer
will be equal to or greater than the benefit to which he would be
entitled if this Plan were to terminate immediately prior to such
merger, consolidation or transfer.
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ARTICLE 15 - MISCELLANEOUS
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15.01 INFORMATION BETWEEN COMMITTEE AND TRUSTEE. The Committee shall furnish
to the Trustee, and the Trustee shall furnish to the Committee, such
information relating to the Plan and Trust as may be required under the
Code and any regulations issued or forms adopted by the Treasury
Department thereunder or under the provisions of ERISA and any
regulations issued or forms adopted by the Labor Department thereunder.
15.02 PAYMENT UNDER QUALIFIED DOMESTIC RELATIONS ORDER. Notwithstanding any
provisions of the Plan to the contrary, if there is entered any
Qualified Domestic Relations Order that affects the payment of Benefits
hereunder, such Benefits shall be paid in accordance with the
applicable requirements of such Order.
15.03 ACTION BY THE COMPANY. Any action required or permitted to be taken by
the Company under this Plan shall be taken by the Board or by an
officer of the Company duly authorized under applicable corporation law
and the governing instruments of the Company. The Company may allocate
and delegate its fiduciary responsibilities, and may designate others
to carry out its fiduciary responsibilities, in accordance with Section
405 of ERISA.
15.04 CONSTRUCTION. Section headings are inserted in this document for
convenience only and shall not be construed as terms of the Plan. A
pronoun or adjective in the masculine gender includes the feminine
gender, and the singular includes the plural, unless the context
clearly indicates otherwise.
15.05 GOVERNING LAW. The Plan and Trust shall be construed, administered and
enforced according to the laws of the State of Pennsylvania to the
extent such laws are not inconsistent with or preempted by ERISA. The
authority of the Company and each Employer to take any action or
refrain from taking any action shall be governed by the statue under
which such entity is organized.
15.06 TRUST AGREEMENT. The Trust Agreement shall be deemed attached hereto
and is hereby made a part of this Plan.
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ARTICLE 16 - TOP HEAVY PROVISIONS
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16.01 APPLICABILITY. Notwithstanding anything herein to the contrary, this
Article 16 shall apply in any Plan Year in which the Plan is determined
to be a "Top-Heavy Plan".
16.02 DETERMINATION OF TOP-HEAVY PLAN STATUS.
(a) TOP-HEAVY PLAN STATUS. The Plan will be considered a Top-Heavy
Plan for the Plan Year if as of the last day of the Plan Year
immediately preceding it (hereinafter referred to as the
"Determination Date"):
(1) the aggregate of the Accounts (not including any allocations
to be made as of such determination date, unless the Employer
Contribution was actually made and allocated as of such
determination date) of Participants who are Key Employees
exceeds 60% of the aggregate of the Accounts of all
Participants under the Plan; or
(2) the Plan is part of a Required Aggregation Group and the
Required Aggregation Group is a Top-Heavy Group.
Notwithstanding the provisions of paragraph (1) of this
subsection(a), the Plan shall not be considered a Top-Heavy Plan
for any Plan Year in which it is a part of a Required or
Permissive Aggregation Group that is not a Top-Heavy Group.
(b) VALUE OF ACCOUNTS. The value of a Participant's Account shall be
determined as of the most recent Valuation Date which occurs
within the 12-month period ending on the Determination Date, as if
the Participant terminated his employment on such Valuation Date.
16.03 DEFINITIONS. For purposes of Section 16.02 the following terms shall
have the following meanings:
(a) KEY EMPLOYEE means any Employee or Beneficiary of such Employee
who at any time during the Plan Year or any of the four preceding
Plan Years is:
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(1) an officer of the Employer or a Related Company whose total
annual compensation exceeds 150% of the amount in effect
under Section 415(c)(1)(A) of the Code for any such Plan
Year; provided however, that the number of officers shall be
limited to 50 (or if fewer, the greater of three or 10% of
all Employees of the Employer and a Related Company);
(2) one of the 10 Employees having annual compensation form the
Employer or a Related Company of more than the limitation in
effect under Section 415(1)(A) of the Code and owning (or
considered as owning within the meaning of Section 318 of the
Code) the largest interest in the Employer or a Related
Company;
(3) a 5% owner (as defined in Section 416 (i)(1)(3) of the Code)
of the Employer or a Related Company; or
(4) a 1% owner (as defined in Section 416 (i)(1)(C) of the Code)
of the Employer or a Related Company if his compensation from
such company exceed $150,000.
(b) NON-KEY EMPLOYEE means a Participant who is not a Key Employee.
(c) PERMISSIVE AGGREGATION GROUP means a Required Aggregation Group,
plus one or more plans of the Employer or a Related Company that
are not part of the Required Aggregation Group but which satisfy
the requirements of Section 401(a)(4) and 410 of the Code when
considered together with the Required Aggregation Group.
(d) REQUIRED AGGREGATION GROUP means:
(1) each qualified plan of the Employer and any other plan of a
Related Company in which a Key Employee is a Participant; and
(2) each other plan of the Employer a Related Company which
enables any plan described in a paragraph (1) above to meet
the requirements of Section 401(a)(4) or Section 410 of the
Code.
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(e) TAXABLE COMPENSATION means with respect to any Limitation Year, a
Participant's wages, salaries, fees for professional services
actually rendered in the course of employment with an Employer
(including, but not limited to, commissions paid salespersons,
compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses) paid or made
available to the Participant for the Limitation Year.
(1) Taxable Compensation includes:
(A) Amounts described in Code Section 105(d), whether or not
these amounts are excludable from the gross income of
the Participant under that Code Section;
(B) Amounts described in Code Sections 104(a)(3), 105(a) and
105(h), but only to the extent that those amounts are
includible in the gross income of the Participant;
(C) Amounts paid or reimbursed by the Employer for moving
expenses incurred by the Participant, but only to the
extent that these amounts are not deductible by the
Participant under Code Section 217;
(D) The value of a nonqualified stock option granted to the
Participant by the Employer, but only to the extent that
the value of the option is includible in the gross
income of the Participant for the taxable year in which
granted; and
(E) The amount includible in the gross income of the
Participant upon making the election described in Code
Section 83(b).
(2) Taxable Compensation does not include:
(A) Contributions made by the Employer to a plan of deferred
compensation to the extent, before application of the
Code Section 415 limitations to the plan, the
contributions are not includible in the gross income of
the Participant for the taxable year in which
contributed;
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(B) Any distribution from a plan of deferred compensation
regardless of whether such amounts are includible in the
gross income of the Participant when distributed,
provided, however, that amounts received by the
Participant from unfunded, non-qualified plans shall be
treated as Taxable Compensation in the year in which
such amounts are includible in the gross income of the
Participant;
(C) Amounts realized from the exercise of a nonqualified
stock option, or when restricted stock (or property)
held by the Participant either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(D) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(E) Other amounts which receive special tax benefits such as
premiums on group term life insurance (but only to the
extent that premiums are not includible in gross income
of the Participant).
(3) The definition of Taxable Compensation under this Section
16.03(e) is intended to conform to the definition of
"compensation" under Section 415(c)(3) of the Code and the
Code definition shall control in the case of a conflict
between it and the definition set forth in this Section
16.03(e).
(4) For purposes of this Section 16.03(e) the term "Employer"
includes the Employer and any Related Company.
(5) In no event shall a Participant's Taxable Compensation
exceed, for purposes of the Plan, $200,000 or such larger
amount as the Secretary of the Treasury may determine for
such Limitation Year under Section 401(a)(17) of the Code.
(f) TOP-HEAVY GROUP means any aggregated group if:
(1) the sum as of the Determination Date of -
(i) the aggregate present value of the accrued benefits for
participants who are Key Employees under all defined
benefit plans included in such group, and
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(ii) the aggregate of the accounts of Participants who are
Key Employees under all defined contribution plans
included in such group,
(2) exceeds 60% of a similar sum determined for all Participants.
16.04 MINIMUM ANNUAL ADDITION.
(a) REQUIRED ANNUAL ADDITION. Subject to subsections (b)and (c)
hereof, a Non-Key Employee shall receive at least a minimum
allocation of Employer Contributions in each Plan Year that the
Plan is determined to be a Top-Heavy Plan in accordance with the
provisions of Section 16.02. The minimum allocation shall equal
the lesser of (i) 3% of the Non-Key Employee's Taxable
Compensation for the year or (ii) the highest Annual Addition rate
for any Key Employee, reduced by the amount of the Employer
contribution, if any, made on behalf of the Non-Key Employee for
the Plan Year.
(b) ELIGIBILITY TO SHARE. A Non-Key Employee shall receive the minimum
allocation described in this Section 16.04 provided he has become
a Participant and has not terminated employment with the Employer
as of the last day of the Plan Year.
(c) NONDUPLICATION OF BENEFITS. A Non-Key Employee's minimum
allocation under this Section 16.04 for the Plan Year shall be
reduced by any minimum allocation he receives for such year under
another Top Heavy defined contribution plan maintained by the
Employer or a Related Company.
An Employee shall not receive such minimum allocation if he also
receives in such year a minimum benefit (within the meaning of
Section 416(c)(1) of the Code) under a Top-Heavy defined benefit
plan maintained by the Employer or a Related Company.
Notwithstanding the preceding sentence, if such other defined
benefit plan does not provide a minimum benefit, each Non-Key
Employee covered under this Plan and such other plan shall receive
a minimum allocation under this Section 16.04 of at least 5% of
his Taxable Compensation for the Plan Year.
16.05 ADJUSTMENT OF LIMITATION ON ANNUAL ADDITIONS. For any Limitation Year
that is a Top Heavy Plan Year, the adjustment described in Section
416(h) of the code shall apply for purposes of determining a
Participant's "defined benefit plan fraction" under Section 5.04(c)
unless:
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(a) the Plan and each plan with which the Plan is required to be
aggregated pursuant to Section 16.02 satisfies the requirements of
Section 416(h)(2)(A) of the Code; and
(b) the Plan Year would not be a Top Heavy Plan Year if "90%" were
substituted for "60%" in paragraph (1) of Section 16.02(a).
16.06 CHANGE IN THE LAW. The foregoing provisions have been included in this
Plan in order to comply with Section 416 of the Code. If Code Section
416 is withdrawn, rescinded or revoked, in whole or in part, the
provisions of this Article 16 shall be deemed withdrawn, rescinded or
revoked.
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ARTICLE 17 - LOANS
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17.01 LOANS OF ROLLOVER AND PRE-TAX CONTRIBUTIONS. In its sole discretion,
the Committee may direct the Trustee to make a loan or loans to a
Participant from such Participant's Rollover Contribution Account and
Participant Pre-Tax Contribution Account. A Participant shall be
entitled to receive up to one (1) loan during each twelve-month period
and shall not be permitted to have more than one (1) loan outstanding
at any time.
Such loan shall be in amount which does not exceed the amount set forth
in Section 17.01(1). A loan shall be made only upon the written
applications of the participant on a Prescribed Form and on such terms
and conditions as the Committee may decide, subject to Section 17.01(3)
and Section 17.01(4). In making such loans, the Committee shall apply
uniform policies and shall not discriminate in favor of or against any
Participant of group of Participants.
(1) MAXIMUM LOAN AMOUNT. In no event shall any loan be made pursuant
to this Section be in an amount which shall cause the outstanding
aggregate balance of all loans made under this Plan and all other
qualified plans (as defined in Section 219(e)(3) of the Code
without regard to Subparagraph (D) thereof) maintained by the
Employer or any Related Company to exceed the lesser of:
(a) Fifty thousand dollars ($50,000), reduced by the excess, if
any, of:
(i) the highest outstanding balance of loans from the Plan
during the one (1) year period ending on the day before
the date on which such loan was made, over
(ii) the outstanding balance of loans from the Plan on the
date on which such loan was made, or
(b) one-half of the "Adjusted Balance "in such Participant's
Rollover Contribution Account and Participant Pre-Tax
Contribution Account, or
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Notwithstanding any of the preceding provision of this Section, in
no event shall any loan made under this Section exceed 100% of the
Adjusted Balance in a borrowing Participant's Rollover
Contribution Account and Participant Pre-Tax Contribution Account.
For purposes of this Section 17.01(1)(b), the "Adjusted Balance"
of a Participant's Rollover Contribution Account and Participant
Pre-Tax Contribution Account shall mean the balance in such
Accounts determined as of the last valuation date made within the
twelve (12) month period preceding the date on which an
application for a loan under this Section is made, adjusted for
distributions made after the date of such valuation but not for
earnings, gains or losses subsequent to the date of such
valuation.
(2) MINIMUM LOAN AMOUNT. Notwithstanding any other provision to the
contrary, in no event shall any loan made pursuant to this Section
be in an amount which is less than five hundred dollars ($500).
(3) REPAYMENT OF LOANS. A loan made under this Section shall mature
and be payable within five (5) years from the date such loan is
made. All loans made under this Section must be repaid in level
amortization payments not less frequently than quarterly pursuant
to a payroll withholding.
(4) TERMS. A loan to a Participant shall be made according to the
following terms:
(a) the minimum security for a loan shall be the Adjusted Balance
of the Rollover Contribution Account and Participant Pre-Tax
Contribution Account of the borrowing Participant;
(b) interest shall be charged on a loan at the prime rate plus
two percent (2%) in effect on the first day of the month in
which the loan is made.
(c) a loan shall be evidenced by such forms of obligations, and
shall be made upon such additional terms as to default,
prepayment, security and otherwise as the Committee shall
determine.
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A loan shall be deducted first from the Participant's Rollover
Contribution Account and then from the Participant's Pre-Tax
Contribution Account, on a pro-rata basis, from each of the
investment categories in which the Accounts are invested, and
invested in a special loan account. As the borrowing Participant
repays the loan, his loan account shall be credited with both the
principal and interest. Upon repayment of a loan by a borrowing
Participant, whether partial repayment or full repayment, the
principal and credited earnings in the Participant's loan account
shall be reallocated to the Accounts in the same proportion from
which the amounts were taken and among the investment categories
in which the Accounts are invested in the same proportions as his
investment elections on file at the time of repayment.
The entire unpaid balance of any loan made under this Section and
all interest due thereon, including all arrearages thereon, shall
be the option of the Committee, immediately become due and payable
without further notice or demand, upon the occurrence, with
respect to the borrowing Participant, of any of the following
events of default:
(i) any payment of principal and accrued interest on the loan
remains due and unpaid for a period of thirty (30) days after
the same becomes due and payable under the terms of the loan;
(ii) the commencement of a preceding in bankruptcy, receivership
or insolvency by or against the borrowing Participant;
(iii) the termination of employment of the borrowing Participant
with the Employer for any reason; or
(iv) the borrowing Participant attempts to make an assignment, for
the benefits of creditors, of the Adjusted Balance of his
Rollover Contribution Account or Participant Pre-Tax
Contribution Account under the Plan or of any other security
for the loan.
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Any repayments of principal and interest of the loan not paid when
due shall bear interest thereafter, to the extent permitted by
law, at the rate specified by the terms of the loan. The repayment
and acceptance of any sum or sums at any time on account of the
loan after an event of default, or any failure to act to enforce
the rights granted hereunder upon the event of default, shall not
be a waiver of the right of acceleration set forth in this
paragraph.
If in the event of default an acceleration of the unpaid balance
of the loan and interest due thereon shall occur, the Committee
shall have the right to direct the Trustee to pursue any remedies
available to a creditor at law or under the terms of the loan,
including the right to execute on the security for a loan, and to
apply any amounts credited to the accounts of the borrowing
Participant at the time of execution or at any time thereafter in
satisfaction of the unpaid balance of the loan and interest due
thereon. Notwithstanding the preceding provisions of this
paragraph, the Committee shall have no right to direct the Trustee
to execute on any amounts credited to the Rollover Contribution
Account or the Participant Pre-Tax Contribution Account of the
borrowing Participant during the Plan Year in which the execution
on such security is to occur or during the two preceding Plan
Years.
Each loan shall be a first lien against the Rollover Contribution
Account or the Participant Pre-Tax Contribution Account of the
borrowing Participant. If: (i) any portion of a loan or loans
shall be outstanding; and (ii) an event occurs pursuant to which
the Participant or his estate or his Beneficiaries will receive a
distribution from the Rollover Contribution Account or the
Participant Pre-Tax Contribution Account of such Participant under
the provisions of the Plan, then such distribution shall, to the
extent necessary to liquidate the unpaid portion of the loan or
loans be made to the Trustee as payment on the loan or loans. No
distribution shall be made to a Participant or his estate or his
Beneficiaries in the amount greater than the excess of the portion
of his Rollover Contribution Account and Participant Pre-Tax
Contribution Account otherwise distributable over the aggregate of
the amounts owing with respect to such loan or loans plus
interest, if any, thereon.
(5) ADMINISTRATION OF LOANS. The Committee shall have the sole
responsibility of administering loans.
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IN WITNESS WHEREOF, this instrument, which constitutes the Pennsylvania Pressed
Metals, Inc. Savings Plan, has been executed by a duly authorized officer of the
Company this day of ______________, 1992.
PENNSYLVANIA PRESSED METALS INC.
BY: __________________________
Title: _______________________
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PENNSYLVANIA PRESSED METALS, INC.
SAVINGS PLAN
FIRST AMENDMENT
WHEREAS, Pennsylvania Pressed Metals, Inc. (the "Company") has heretofore
adopted and established, effective January 1, 1992, the Pennsylvania Pressed
Metals, Inc. Savings Plan (the "Plan"); and
WHEREAS, the Company wishes to make changes to the Plan; and
WHEREAS, Section 14.01 of the Plan provides that the Company reserves the
right at any time to amend or modify the Plan;
NOW, THEREFORE, pursuant to the authority reserved to it under said Section
14.01, the Company hereby amends the Plan, effective January 1, 1992, as
follows;
Section 1.12 is amended by replacing the last paragraph in its entirety
with the following:
The Compensation of each participant taken into account under the Plan
for any Plan year shall not exceed $200,000. Such $200,000 limitation
shall be adjusted at the same time and in the same manner as permitted
under Section 415(d) of the Code. In determining the Compensation of a
Participant for purposes of this $200,000 limitation, the rules of
Section 414(q)(6) of the Code shall apply, except, in applying such
rules, the term "family" shall include only the spouse of the
Participant and any lineal descendants of the Participant who have not
attained age 19 before the close of the Plan Year. If, as a result of
the application of such rules, the adjusted $200,000 limitation is
exceeded, then the limitation shall be prorated among the affected
individuals in proportion to each individual's Compensation as
determined under this section prior to the application of this
limitation.
Section 1.26 is amended in its entirety by replacing it with the following:
1.26 HIGHLY COMPENSATED EMPLOYEE means an Eligible Employee who, with
respect to the Company, (A) performs services during the Determination
Year and (B) is included in any one or more of the groups described
for purposes of the Look-Back Year calculation in subparagraph (i) or
the Determination Year calculation in subparagraph (ii).
(i) LOOK-BACK YEAR CALCULATION. For purposes of this paragraph, the
following employees shall be Highly Compensated Employees with
respect to the Look-Back Year:
(A) employees who were 5-percent owners at any time during the
Look-Back Year;
(B) employees who receive Compensation in excess of $75,000
during the Look-Back Year;
<PAGE> 79
(C) employees who receive Compensation in excess of $50,000
during the Look-Back Year and are members of the Top-Paid
for the Look-Back Year; and
(D) employees who are Includible Officers during the Look-Back
Year.
The $75,000 and $50,000 amounts under this subparagraph
shall be adjusted at the same time and in the same manner as
under Section 415(d) of the Code.
(ii) DETERMINATION YEAR CALCULATION. For purposes of this paragraph,
the following employees shall be Highly Compensated Employees
with respect to the Determination Year:
(A) employees who are both (I) described in Sections 1.26
(i)(B)(C) and/or (D), when such paragraphs are modified
to substitute the Determination Year for the Look-Back year,
and (II) one of the 100 employees who receive the most
compensation from the Company during the Determination Year;
and
(B) employees who were 5-percent owners at any time during the
Determination Year.
(iii) LOOK-BACK YEAR. The term "Look-Back Year" means the 12-month
period immediately preceding the Determination Year.
(iv) DETERMINATION YEAR. The term "Determination Year" means the Plan
Year.
(v) TOP-PAID GROUP. The term "Top-Paid Group" means, with respect to
a particular year, the group consisting of the top 20 percent of
the Company's employees when ranked on the basis of Compensation
received from the Company during such year. The number of
employees in the Top-Paid Group for a particular year is equal to
20 percent of the total number of active employees of the Company
for such year, reduced by those active employees excluded under
Sections 1.414(q)-1T, Q & A- 9(b)(1)(i), (ii) and (iii) of the
Treasury Regulation.
(vi) INCLUDIBLE OFFICERS. The term "Includible Officer" means an
employee who is (A) an officer of the Company (within the meaning
of Section 416(i) of the Code and the regulations thereunder) at
any time during the Determination Year or Look-Back Year and (B)
receives compensation during such year that is greater than 50
percent of the dollar limitation in effect under section
415(b)(1)(A) of the Code for the calendar year in which the
Determination Year or Look-Back Year begins. If no officer of the
Company satisfies the Compensation requirement of (B) above, the
highest paid officer of the Company for such year that is treated
as a Highly Compensated Employee. Notwithstanding the foregoing,
the determination of which employees are Includible Officers
shall be subject to the maximum inclusion limitations of Section
1.414(q)-IT, Q & A-10(b) of the Treasury Regulations.
<PAGE> 80
(vii) FAMILY AGGREGATION. If an employee is, during a Determination
Year or a Look-Back Year, a Family Member of either a (A)
5-percent owner who is an active or former employee or (B) a
Highly Compensated Employee who is one of the ten most highly
compensated employees ranked on the basis of Compensation paid by
the Company during such year, then the Family Member and the
5-percent owner or top-ten Highly Compensated Employee shall be
aggregated and shall be treated as a single employee receiving
Compensation and Plan contributions equal to the sum of such
Compensation and contributions for the Family Member and
5-percent owner or top-ten Highly Compensated Employee.
(viii) FAMILY MEMBER. The term "Family Member" means the spouse,
lineal ascendants and descendants of the employee or former
employees, and the spouses of such lineal ascendants and
descendants.
(ix) COMPENSATION. For purposes of this paragraph Compensation means
compensation within the meaning of Section 415 (c)(3) including
elective or salary reduction contributions to a cafeteria plan,
cash or deferral arrangement or tax-sheltered annuity.
(x) SPECIAL RULES. For purposes of this paragraph, Employers
aggregated under section 414(b), (c), (m), or (o) are treated as
a single employer.
Section 5.03 is amended by adding the following subparagraph:
(e) For purposes of this Section, if the Plan and one or more other
plans which include cash or deferred arrangements actually are
aggregated for purposes of Section 410(b) (other than for
purposes of the average benefit percentage test) of the Code, the
cash or deferred arrangements included in the Plan and such other
plans shall be treated as a single cash or deferred arrangement
for purposes of Section 401(k) of the Code and Section
1.401(k)-1(b) of the Treasury Regulations. Plans are aggregated
under this paragraph only if they have the same plan year.
Section 5.06 is amended by adding the following subparagraph:
(c) FAMILY AGGREGATION. The determination and correction of
excess contributions of a Highly Compensated Employee whose
average deferral ratio is determined in accordance with the
family aggregation rules of Section 5.03(c) is accomplished
by reducing the average deferral ratio as required by
subsection (a) and allocating the Excess Contributions for
the family group among the family members in proportion to
the Participant Pre-Tax Contributions of each family member
that is combined to determine the average deferral ratio.
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Section 5.08 is amended by adding the following subparagraph:
(c) FAMILY AGGREGATION. The determination and correction of excess
aggregate contributions of a Highly Compensated Employee whose
average contribution ratio is determined in accordance with the
family aggregation rules of section 5.04(c) is accomplished by
reducing the average contribution ratio as required by this
subsection (a) and allocating the excess aggregate contributions
for the family group among the family members in proportion to
the Matching Contributions of each family member that is combined
to determine the average contribution ratio.
Article 5 is amended by adding the following Section:
5.09 MULTIPLE USE.
If (i) the sum of the average deferral ratio of the entire group of
eligible Highly Compensated Employees under the Plan and the average
contribution ratio of the entire group of eligible Highly Compensated
Employees under the Plan exceeds the Aggregate Limit, (ii) the average
deferral ratio of the entire group of eligible Highly Compensated
Employees exceeds the amount described in the 125% test under Section
5.03(a)(1), and (iii) the average contribution ratio of the entire
group of eligible Highly Compensated Employees exceeds the amount
described in the 125% test under Section 5.04(a)(1), then the average
deferral ratio of those Highly Compensated Employees will be reduced
so that the Aggregate Limit is not exceeded. The amount of the
reduction of the average deferral ratio of the entire group of Highly
Compensated Employees needed to satisfy the Aggregate Limit is
calculated in the manner described in Section 5.06(a) and shall be
treated as Excess Contributions. For purposes of the multiple use
test, the average deferral ratio and the average contribution ratio
are determined after any corrections required to meet the average
deferral ratio test and the average contribution ratio test.
The "Aggregate Limit" shall mean the greater of :
(A) the sum of (i) 1.25 times the greater of (I) the average
deferral ratio of the participants who are not Highly
Compensated Employees for the Plan Year (the "Relevant ADR")
or (II) the average contribution ratio of the participants
who are not Highly Compensated Employees for the Plan Year
(the "Relevant ACR"), and (ii) two percentage points plus
the lesser of the Relevant ADR or the Relevant ACR, provided
that this amount does not exceed two times the lesser of the
Relevant ADR or the Relevant ACR; or
(B) the sum of (i) 1.25 times the lesser of the Relevant ADR or
the Relevant ACR, and (ii) two percentage points plus the
greater of the Relevant ADR or the Relevant ACR above,
provided that this amount does not exceed two times the
greater of the Relevant ADR or the Relevant ACR.
<PAGE> 82
Section 7.05 is amended by adding the following subsection:
(e) AMENDMENTS TO VESTING SCHEDULE. If the vesting schedule of a plan
is amended, then as of the date such amendment is adopted, in the
case of an employee who is, a participant on:
(1) The date the amendment is adopted, or
(2) The date the amendment is effective, if later,
The nonforfeitable percentage (determined as of such date) of
such Employee right to the Employee's employer-derived benefit is
not less than the Employee's percentage computed under the plan
without regard to such amendment.
Any Participant whose non forfeitable percentage is determined
under the vesting schedule as amended and who has completed at
least 3 years of service with the Employer, may elect to have the
non forfeitable percentage determined under the vesting schedule
without regard to such amendment.
The Plan is amended by adding the following Article:
ARTICLE 18 - DIRECT ROLLOVER
18.01 DIRECT ROLLOVERS
----------------
(a) IN GENERAL. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Distributee's election
under Articles 8 and 10, a Distributee may elect, at the time and
in the manner prescribed by the Plan Administrator, to have any
portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan specified by the Distributee in a Direct
Rollover.
(b) DEFINITIONS. The following definitions shall apply for purposes
of this Section:
(1) ELIGIBLE ROLLOVER DISTRIBUTION means any distribution of all
of any portion of the balance to the credit of the
Distributee, except that an Eligible Rollover Distribution
does not include: any distribution that is one of a series
of substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint
life expectancies) of the Distributee and the Distributee's
designated beneficiary, or for a specified period of ten
years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the
Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
<PAGE> 83
(2) ELIGIBLE RETIREMENT PLAN means an individual retirement
account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of
the Code, an annuity plan described in Section 403(a) of the
Code, or a qualified trust described in Section 401(a) of
the Code, that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving spouse, an Eligible Retirement
Plan is an individual retirement account or individual
retirement annuity.
(3) DISTRIBUTEE means an employee or former employee. In
addition, the employee's or former employee's surviving
spouse and the employee's or former employee's spouse of
former spouse who is the Alternate Payee under a Qualified
Domestic Relations Order, as defined in Section 414(p) of
the Code, are Distributees with regard to the interest of
the spouse or former spouse.
(4) DIRECT ROLLOVER means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
IN WITNESS WHEREOF, the Company, by its authorized officer, has caused this
amendment to be executed on 9th day of December, 1993.
--- --------
Pennsylvania Pressed Metals, Inc.
By /s/ R. A. McLean
--------------------------
<PAGE> 84
WILLIAM M.
MERCER
INCORPORATED
- --------------------------------------------------------------------------------
November 23, 1993
RETURN RECEIPT REQUESTED
Mr. Joseph Rotundo
Internal Revenue Service
EP/EO Division
Group 7111
P.O. Box 13163
Baltimore, Maryland 21203
Subject: PENNSYLVANIA PRESSED METALS, INC. SAVINGS PLAN EP:7111:JR
---------------------------------------------------------
Dear Mr. Rotundo:
Enclosed is the first amendment to the above referenced plan incorporating
information requested in your letter of October 27, 1993. An executed copy of
the document will be forwarded to you directly from the plan sponsors.
Please feel free to call me at (716)325-2870 if you require any additional
information.
Yours very truly,
/s/ Rita C. Straker
Rita C. Straker
Associate
RCS/688/san
Enclosure
cc: Rick McLean
- --------------------------------------------------------------------------------
120 East Avenue
Rochester NY 14604
716 325 2870
A Marsh & McLennan Company
<PAGE> 85
PENNSYLVANIA PRESSED METALS, INC. SAVINGS PLAN
SECOND AMENDMENT
WHEREAS, Pennsylvania Pressed Metals, Inc. (the "Company") has heretofore
adopted and established, effective January 1, 1992, the Pennsylvania Pressed
Metals, Inc. Savings Plan (the "Plan"'); and
WHEREAS, the Company wishes to make changes to the Plan; and
WHEREAS, Section 14.01 of the Plan provides that the Company reserves the
right at any time to amend or modify the Plan;
NOW, THEREFORE, pursuant to the authority reserved to it under said Section
14.01, the Company hereby amends the Plan, effective January 1, 1994, as
follows;
Section 1.12 of the Plan is amended by adding the following paragraphs to the
end of the Section:
In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provision of the plan to the contrary, the plan
years beginning on or after January 1, 1994, the annual compensation of
each employee taken into account under the plan shall not exceed the OBRA
'93 annual compensation limit. The OBRA '93 annual compensation limit is (
$150,000, as adjusted by the Commissioner for increases in the cost of
living in accordance with Section 401(a)(17)(B) of the Internal Revenue
Code. The cost-of-living adjustment in effect for a calendar year applies
to any period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of which
is the number of months in the determination period, and the denominator of
which is 12.
For plan years beginning on or after January 1, 1994, any reference in
this plan to the limitation under section 401(a)(17) of the Code shall mean
the OBRA '93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current plan
year, the compensation for that prior determination period is subject to
the OBRA '93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination periods beginning
before the first day of the first plan year beginning on or after January
1, 1994, the OBRA '93 annual compensation limit is $150,000.
<PAGE> 86
IN WITNESS WHEREOF, the Company, by its authorized officer, has caused this
amendment to be executed on 27th day of April, 1995.
---- -----
Pennsylvania Pressed Metals, Inc.
By /s/ R. A. McLean
----------------------
<PAGE> 87
PENNSYLVANIA PRESSED METALS, INC. SAVINGS PLAN
THIRD AMENDMENT
WHEREAS, Pennsylvania Pressed Metals, Inc. (the "Company") has
heretofore adopted and established, effective January 1, 1992, the Pennsylvania
Pressed Metals, Inc. Savings Plan (the "Plan"); and
WHEREAS, the Company wishes to make changes to the Plan; and
WHEREAS, Section 14.01 of the Plan provides that the Company reserves
the right at any time to amend or modify the Plan.
NOW, THEREFORE, pursuant to the authority reserved to it under said
Section 14.01, the Company hereby amends the Plan, effective as of January 1,
1995 (except as specifically stated herein), as follows:
Section 1
---------
Section 1.03 of the Plan is hereby amended by deleting Subsections (a),
(b) and (c) thereof.
Section 2
---------
Effective as of October 26, 1994, a new Section 1.11A is hereby added
to the Plan, immediately following Section 1.11, to read as follows:
"1.11A COMPANY STOCK means the Class A Common Stock of the Company."
Section 3
---------
The first paragraph of Section 1.12 of the Plan is hereby amended by
deleting the phrase "Sections 125, 402(l)(8) and 402(h) of the Code" and
replacing it with the phrase "Sections 125, 402(g) and 402(h) of the Code."
Section 4
---------
Section 1.12(a) of the Plan is hereby amended by adding the following
parenthetical phrase to the end thereof: "(excluding, however, contributions
pursuant to a salary
<PAGE> 88
2
reduction agreement under Sections 125, 402(g) or 402(h) of the Code)."
Section 5
---------
Section 1.17 of the Plan is hereby amended by adding the following
sentence to the end thereof:
"The only Employer under the Plan is the Company."
Section 6
---------
Section 1.22 of the Plan is hereby amended by deleting the phrase
"Employer Pension Contributions" and replacing it with the phrase "Employer
Retirement Contributions."
Section 7
---------
Section 1.31(a) of the Plan is hereby amended by deleting the phrase
"(other than the review procedure under Section 9.03(c) and the administration
of the Trust Fund)" and replacing it with the phrase "(other than the
administration of the Trust Fund)."
Section 8
---------
Effective January 1, 1993, Section 1.43 of the Plan is hereby amended
in its entirety to read as follows:
"1.43 QUALIFIED ROLLOVER DISTRIBUTION means a distribution to a
Participant of cash from a trust held under another plan in
which the Participant participated, or an individual
retirement account described in Code Section 408(d)(3)(A)(ii),
in a distribution which constitutes an "eligible rollover
distribution" under Code Section 401(a) (31) or Code Section
402(c) (4)."
Section 9
---------
Section 4.03(a) of the Plan is hereby amended in its entirety to read
as follows:
"(a) DETERMINATION OF AMOUNT. In respect of each Plan Year during which the
Plan is in effect, the Employers may contribute to the Trust on behalf
of each of their
<PAGE> 89
3
"qualifying Employees" (as defined below) who are Plan Participants, an
amount equal to a percentage of the Compensation of each such
qualifying Employee, such percentage to be determined by the Board of
Directors of the Company each Plan Year. For purposes of this
Subsection, a "qualifying Employee" is (i) a Plan Participant who has
completed 1,000 or more Hours of Service during such Plan Year and who
is in the employ of an Employer on the last day of such Plan Year or
(ii) a Plan Participant who retired on or after age 60, died or
suffered a Permanent Disability during such Plan Year."
Section 10
----------
Effective January 1, 1993, Section 4.04(a) of the Plan is hereby
amended in its entirety to read as follows:
"(a) CONTRIBUTIONS PERMITTED. In the event that a Participant has received a
Qualifying Rollover Distribution, he may, with the consent of the Committee, (i)
directly transfer all or a portion of such Qualifying Rollover Distribution to
the Plan in a "direct transfer" as described in Code Section 401(a) (31) or (ii)
contribute all or a portion of such Qualifying Rollover Distribution to the Plan
within sixty days of the Participant's receipt of such Qualifying Rollover
Distribution. Such contributions shall be considered Rollover Contributions and
shall be credited to the Participant's Rollover Contribution Account in
accordance with Section 6.02. Rollover Contributions shall be fully vested and
nonforfeitable at all times."
Section 11
----------
The last sentence of Section 5.02(a) of the Plan is hereby amended in
its entirety to read as follows:
"For purposes of this Section, "maximum dollar limitation" means $30,000 (as
adjusted pursuant to Code Section 415(d))."
Section 12
----------
Section 6.03 of the Plan is hereby amended by deleting the phrase "last
day of each Plan Year" and replacing it with the phrase "last day of each
calendar quarter."
<PAGE> 90
4
Section 13
----------
Section 7.05(a) of the Plan is hereby amended by (1) deleting the
phrase "disability" and replacing it with the phrase "Permanent Disability", and
(2) deleting the phrase "Nonforfeitable Percentage of Employer Matching, Pension
and Profit Sharing Contribution Accounts" and replacing it with the phrase
"Nonforfeitable Percentage of Employer Retirement Contribution Accounts."
Section 14
----------
Sections 8.01(a) and (b) of the Plan are hereby amended in their
entirety to read as follows:
"(a) If the value of the Participant's vested Total Account Balance as of
his termination of employment does not exceed $3,500 (and never
exceeded $3,500 at the time of any previous withdrawal or
distribution), the Participant's vested Total Account Balance shall be
paid to him (or his Beneficiary) in a single lump sum as soon as
practicable following such termination of employment.
(b) If Subsection (a) does not apply, the Participant will be entitled to
receive a distribution of his vested Total Account Balance at any time
following his termination of employment, provided he has filed the
Prescribed Form with the Committee. Distribution shall be in the form
of a single lump sum payment, based on the Participant's vested Total
Account Balance as of his Benefit Commencement Date."
Section 15
----------
Effective as of October 26, 1994, Section 8.01(e) of the Plan is hereby
amended in its entirety to read as follows:
"(e) The amount which a Participant or Beneficiary is entitled to receive at
any time and from time to time shall be paid by the Trustee at the
direction of the Committee. Effective October 26, 1994, the payments
shall be made in cash or in whole shares of Company Stock (to the
extent that all or any portion of the vested Total Account Balance is
invested in shares of Company Stock), as elected by the Participant or
Beneficiary.
<PAGE> 91
5
Section 16
----------
Effective on the date of execution of this Amendment, Section 8.01(f)
of the Plan is hereby deleted in its entirety.
Section 17
----------
The second paragraph of Section 9.03(c) of the Plan is hereby amended
by deleting the phrase ",such as the need to hold a hearing," therefrom.
Section 18
----------
Section 9.07 of the Plan is hereby amended by (1) deleting Subsection
(b) thereof, and (2) deleting the last paragraph thereof.
Section 19
----------
Section 10.01(a) of the Plan is hereby amended by deleting the phrase
"A Participant who suffers a financial hardship" in the first line thereof and
replacing it with the phrase "A Participant who is an Employee and who suffers a
financial hardship."
Section 20
----------
Section 10.01(d) (3) of the Plan is hereby amended by adding the phrase
"and room and board expenses" after the phrase "related educational fees"
therein.
Section 21
----------
The first sentence of Section 10.02 of the Plan is hereby amended by
deleting the phrase "A Participant may withdraw" and replacing it with the
phrase "A Participant who is an Employee may withdraw."
Section 22
----------
Effective October 26, 1994, Section 1l.04(b)(2) of the Plan is hereby
amended by adding the following sentence to the end thereof:
<PAGE> 92
6
"The Committee has designated a Company Stock Fund as an investment
fund under the Plan."
Section 23
----------
The last sentence of Section 11.04(b)(3) of the Plan is hereby amended
by deleting the phrase "twenty-five percent (25%)" and replacing it with the
phrase "five percent (5%)."
Section 24
----------
Effective for the period between October 26, 1994 and September 30,
1995, a new Section 11.05 is hereby added to the Plan, immediately following
Section 11.04, to read as follows:
"11.05 VOTING, CONSENTS AND TENDER OFFERS. (a) Company Stock held by the
Trustee in Participant Accounts shall be voted by the Trustee at each
meeting of stockholders of the Company as instructed in writing by the
Participant (or Beneficiary) to whose Account such Company Stock is
credited, subject to the provisions of this Section. The Company shall
cause each Participant (or Beneficiary) to be provided with a copy of
the notice of each meeting of stockholders and the proxy statement
relating thereto, together with an appropriate form for the Participant
(or Beneficiary) to indicate his voting or consent instructions to the
Trustee. If instructions are not received by the Trustee with respect
to any Company Stock prior to such meeting, such Company Stock shall be
voted by the Trustee in the same proportion as the instructions
received with respect to other Company Stock.
(b) In the event of a tender or exchange offer for shares of Company
Stock, the Committee shall utilize its best efforts to timely
distribute or cause to be distributed to each Participant (or, in the
event of his death, his Beneficiary) such information as will be
distributed to stockholders of the Company in connection with any such
tender or exchange offer, together with a form requesting confidential
instructions as to whether or not shares of Company Stock in such
Participant's Accounts shall be tendered or exchanged by the Trustee.
Each Participant (or his Beneficiary) shall have the right, to the
extent of shares of Company Stock in the Participant's Accounts, to
direct the Trustee in writing as to the manner in which to respond to
such tender or exchange offer, and the Trustee shall respond in
accordance with the
<PAGE> 93
7
instructions so received. If the Trustee shall not receive timely
direction from a Participant (or his Beneficiary) as to the manner in
which to respond to such tender or exchange offer, the Trustee shall
not tender or exchange any shares of Company Stock held in such
Participant's Accounts and the Trustee shall have no discretion in such
matter. The Trustee shall not divulge to the Company the instructions
of any Participant. In the event of a tender or exchange offer for
shares or units (other than Company Stock), the Trustee shall tender or
exchange any shares or units held in Participants' Accounts in its
discretion."
Section 25
----------
Effective on the date of execution of this Amendment, Section 11.05 of
the Plan is hereby amended in its entirety, to read as follows:
"11.05 VOTING, CONSENTS AND TENDER OFFERS. (a) Company Stock held by the
Trustee in Participant Accounts shall be voted by the Trustee at each
meeting of stockholders of the Company as instructed in writing by the
Participant (or Beneficiary) to whose Account such Company Stock is
credited, subject to the provisions of this Section. The Company shall
cause each Participant (or Beneficiary) to be provided with a copy of
the notice of each meeting of stockholders and the proxy statement
relating thereto, together with an appropriate form for the Participant
(or Beneficiary) to indicate his voting or consent instructions to the
Trustee, at least twenty (20) days prior to such meeting. If
instructions are not received by the Trustee with respect to any
Company Stock at least ten (10) days prior to such meeting, such
Company Stock shall be voted by the Trustee in accordance with
instructions received from the Committee.
(b) In the event of a tender or exchange offer for shares of Company
Stock, the Committee shall utilize its best efforts to timely
distribute or cause to be distributed to each Participant (or, in the
event of his death, his Beneficiary) such information as will be
distributed to stockholders of the Company in connection with any such
tender or exchange offer, together with a form requesting confidential
instructions as to whether or not shares of Company Stock in such
Participant's Accounts shall be tendered or exchanged by the Trustee.
Each Participant (or his
<PAGE> 94
8
Beneficiary) shall have the right, to the extent of shares of Company
Stock in the Participant's Accounts, to direct the Trustee in writing
as to the manner in which to respond to such tender or exchange offer,
and the Trustee shall respond in accordance with the instructions so
received. If the Trustee shall not receive timely direction from a
Participant (or his Beneficiary) as to the manner in which to respond
to such tender or exchange offer, the Trustee shall not tender or
exchange any shares of Company Stock held in such Participant's
Accounts and the Trustee shall have no discretion in such matter. The
Trustee shall not divulge to the Company the instructions of any
Participant. In the event of a tender or exchange offer for shares or
units (other than Company Stock), the Trustee shall tender or exchange
any shares or units held in Participants' Accounts in its discretion."
EXECUTED this 3rd day of October, 1995.
--- -------
PENNSYLVANIA PRESSED METALS, INC.
By: /s/ R. A. McLean
---------------------------
Title: V.P. Finance, Sect., Treasurer
<PAGE> 95
PENNSYLVANIA PRESSED METALS, INC. SAVINGS PLAN
FOURTH AMENDMENT
WHEREAS, Pennsylvania Pressed Metals, Inc. (the "Company") has
heretofore adopted and established, effective January 1, 1992, the Pennsylvania
Pressed Metals, Inc. Savings Plan (the "Plan"); and
WHEREAS, the Company wishes to make changes to the Plan; and
WHEREAS, Section 14.01 of the Plan provides that the Company reserves
the right at any time to amend or modify the Plan; and
WHEREAS, on or prior to December 31, 1995, the Company will be merged
into, and become a part of, Sinter Metals, Inc. ("Sinter"), and Sinter will
therefore become the sponsor of the Plan.
NOW, THEREFORE, pursuant to the authority reserved to it under said
Section 14.01, the Company and Sinter hereby amend the Plan, effective on the
dates indicated below, as follows:
SECTION 1
---------
Effective on the date of the merger of the Company into Sinter, the
first paragraph of the Preamble to the Plan is hereby amended in its entirety to
read as follows:
"PURPOSE OF THE PLAN. The purpose of the Plan is to provide retirement
income for Eligible Employees of Sinter Metals, Inc. (the "Company") and such of
its subsidiaries that adopt the Plan with the approval of the Company through a
program of Participant and Employer Contributions which are invested by the
Trustee until such time as benefits are distributed under the Plan to a
Participant or his Beneficiary."
SECTION 2
---------
Effective on the date of the merger of the Company into Sinter, Section
1.11 of the Plan is hereby amended in its entirety to read as follows:
"1.11 COMPANY means Sinter Metals, Inc. and any organization that is a
successor thereto."
<PAGE> 96
2
SECTION 3
---------
Effective January 1, 1996, Section 1.15 of the Plan is hereby amended
in its entirety to read as follows:
"1.15 ELIGIBLE EMPLOYEE means any Employee (1) who is regularly employed
in the United States by an Employer, (2) who is designated as an
Eligible Employee in an Instrument of Adoption executed in
accordance with Section 13.01 hereof, and (3) who is not an
Ineligible Employee.
SECTION 4
---------
Effective on the date of the merger of the Company into Sinter, the
last sentence of Section 1.17 of the Plan is hereby amended in its entirety to
read as follows:
"The only Employer under the Plan is the Pennsylvania Pressed Metals
and American Powdered Metals divisions of the Company."
SECTION 5
---------
Effective January 1, 1996, the last sentence of Section 1.17 of the
Plan is hereby amended in its entirety to read as follows:
"Effective January 1, 1996, the only Employer under the Plan is the
Company."
SECTION 6
---------
Effective on the date of the merger of the Company into Sinter, Section
1.38 of the Plan is hereby amended in its entirety to read as follows:
"1.38 PLAN means the Sinter Metals, Inc. Savings Plan (previously known
as the Pennsylvania Pressed Metals, Inc. Savings Plan) set forth
herein, as amended from time to time."
<PAGE> 97
3
SECTION 7
---------
Effective January 1, 1996, Section 2.01(b) of the Plan is hereby
amended in its entirety to read as follows:
"(b) PARTICIPATION REQUIREMENTS.
(1) PARTICIPATION FOR PRE-TAX CONTRIBUTIONS. An Eligible Employee
shall satisfy the Participation Requirements for Pre-Tax
Contributions when the Employee first performs an Hour of Service
as an Eligible Employee.
(2) PARTICIPATION FOR COMPANY MATCHING AND EMPLOYER RETIREMENT
CONTRIBUTIONS. An Eligible Employee shall satisfy the
Participation Requirements for Company Matching and Employer
Retirement Contributions when the Employee has completed one (1)
Year of Service for Participation for an Employer.
An Eligible Employee who satisfies the Participation Requirements on
any date shall satisfy them on any subsequent date notwithstanding any
interruption in employment."
SECTION 8
---------
Effective January 1, 1996, Section 4.02 of the Plan is hereby amended
by deleting the word "Company" and replacing it with the word "Employer" each
time it appears therein.
SECTION 9
---------
Effective January 1, 1996, the first sentence of Section 4.03(a) of the
Plan is hereby amended in its entirety to read as follows:
"In respect of each Plan Year during which the Plan is in effect, the
Employers may contribute to the Trust on behalf of each of their
"qualifying Employees" (as defined below) who are Plan Participants, an
amount equal to a percentage of the Compensation of each such
qualifying Employee, such percentage to be determined by the Board of
Directors of each Employer each Plan Year."
<PAGE> 98
4
SECTION 10
----------
Effective January 1, 1996, Section 4.03(b) of the Plan is hereby
amended by deleting the words "Company" and "Company's" and replacing them with
the words "Employer" and "Employer's" each time they appear therein.
SECTION 11
----------
Effective January 1, 1996, Section 11.03(a) of the Plan is hereby
amended by deleting the word "Company" and replacing it with the word "Employer"
each time it appears therein.
EXECUTED this 12th day of December, 1995.
---- --------
PENNSYLVANIA PRESSED METALS, INC.
By: /s/ Joseph W. Carreras
-----------------------------
Title: Chairman
SINTER METALS, INC.
By: /s/ Joseph W. Carreras
-----------------------------
Title: Chairman
<PAGE> 1
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 7, 1996
incorporated by reference in Sinter Metals, Inc.'s Form 10-K for the year ended
December 31, 1995 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Cleveland, Ohio,
June 21, 1996.
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
Directors and officers of Sinter Metals, Inc., a Delaware corporation (the
"Company"), hereby (1) constitutes and appoints Joseph W. Carreras, Michael T.
Kestner and Ronald G. Campbell, and each of them, as the true and lawful
attorney or attorneys-in-fact, with full power of substitution and revocation,
for each of the undersigned and in the name, place and stead of each of the
undersigned, to sign on behalf of each of the undersigned (i) a Registration
Statement on Form S-8 (the "Registration Statement") with respect to the
registration under the Securities Act of 1933, as amended, of participation
interests issuable under the Sinter Metals, Inc. Savings Plan (the "Plan") and
up to 200,000 shares of the Company's Class A Common Stock, par value $.001 per
share, for issuance under the Plan, (ii) any and all amendments, including
post-effective amendments, and exhibits to the Registration Statement and (iii)
any and all applications or other documents to be filed with the Securities and
Exchange Commission or any state securities commission or other regulatory
authority with respect to the securities covered by the Registration Statement
and to do and perform any and all other acts and deeds whatsoever that may be
necessary or required in the premises and (2) ratifies and approves any and all
actions that may be taken pursuant hereto by any of the above-named agents and
attorneys-in-fact or their substitutes.
This Power of Attorney may be executed in multiple counterparts, each
of which shall be deemed an original with respect to the person executing it.
Executed as of this 28th day of February, 1996.
/s/ Joseph W. Carreras /s/ Donald L. LeVault
- ------------------------------------ -----------------------------------
Joseph W. Carreras, Chairman Donald L. LeVault, President and
of the Board and Chief Executive Director
Officer (Principal Executive
Officer)
/s/ Richard A. McLean /s/ Michael T. Kestner
- ------------------------------------ -----------------------------------
Richard A. McLean, Vice President Michael T. Kestner, Vice President
and Treasurer (Controller) and Chief Financial Officer
(Principal Financial Officer)
/s/ David Y. Howe /s/ William H. Roj
- ------------------------------------ -----------------------------------
David Y. Howe, Director William H. Roj, Director
/s/ E. Joseph Hochreiter /s/ Charles E. Volpe
- ------------------------------------ -----------------------------------
E. Joseph Hochreiter, Director Charles E. Volpe, Director
/s/ Mary Lynn Putney
-----------------------------------
Mary Lynn Putney, Director
CLCORP01 Doc: 197478_1
