<PAGE> 1
File No. 33-
As filed with the Securities and Exchange Commission on September 23, 1994
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
STATE STREET BOSTON CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts 04-2456637
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
225 FRANKLIN STREET, BOSTON, MASSACHUSETTS 02110
(Address of Principal Executive Offices)
WENDOVER FUNDING, INC. EMPLOYEES' SAVINGS PLUS AND PROFIT SHARING PLAN
(Full Title of the Plan)
--------------------
ROBERT J. MALLEY
Senior Vice President and General Counsel
STATE STREET BOSTON CORPORATION
225 Franklin Street
Boston, Massachusetts 02110
(Name and Address of Agent for Service)
(617) 654-3104
(Telephone Number, Including Area Code, of Agent for Service)
--------------------
with a copy to:
MARIAN A. TSE, ESQ.
Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109-2881
(617) 570-1000
--------------------
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<TABLE>
================================================================================
Calculation of Registration Fee
- --------------------------------------------------------------------------------
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registra-
be Registered(1) Registered(2) Per Share(3) Price tion Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$1.00 par value 100,000 $37.75 $3,775,000 $1,302
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Wendover Funding inc.
Employees' Savings Plus and Profit Sharing Plan (the "Plan").
(2) Plus such additional number of shares as may be required pursuant to the
plan in the event of a stock dividend, reverse stock split, split-up,
recapitalization or other similar event.
(3) This estimate is made pursuant to Rule 457(c) and (h)(1) under the
Securities Act of 1993, as amended, solely for purposes of determining the
registration fee and is based upon the market value of outstanding shares
of the Company's common stock on September 20, 1994, utilizing the average
of the high and low sale prices reported on the NASDAQ National Market
System on that date.
================================================================================
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
State Street Boston Corporation (the "Company") and the Plan hereby
incorporate by reference the documents listed in (a) through (d) below, which
have previously been filed with the Securities and Exchange Commission.
(a) The Company's Annual Report on Form 10-K filed under Exchange
Act of 1934, as amended (the "Exchange Act"), for the fiscal year
ended December 31, 1993;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1994;
(d) The Company's Current Report on Form 8-K dated February 1, 1994;
(e) The description of the Company's Common Stock contained in its
registration statement on Form 10 under the Exchange Act and any
amendments or reports filed for the purpose of updating such
description;
(f) The description of the Company's Preferred Share Purchase Rights
included in the Company's effective registration statement on Form
8-A filed with the Securities and Exchange Commission on September
30, 1988 as amended by Amendment dated as of September 20, 1990
filed with the Securities and Exchange Commission on Form 8 on
October 19, 1990; and
(g) The Plan's Annual Report for the plan year ended December 31,
1993, which is filed simultaneously herewith.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Company pursuant to Sections 13(a) and 13(c),
Section 14 and Section 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
--------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
The validity of the shares to be offered hereby will be passed upon for
the Company by Goodwin, Procter & Hoar.
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<PAGE> 4
Item 6. Indemnification of Directors and Officers.
------------------------------------------
The Company is a Massachusetts corporation. Reference is made to
Chapter 156B, Section 13(b)(1 1/2) of the Massachusetts Business Corporation
Law (the "MBCL"), which enables a corporation in its original articles of
organization or an amendment thereto to eliminate or limit the personal
liability of a director for monetary damages for violations of the director's
fiduciary duty, except (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Sections 61 and 62 of the MBCL (providing for liability of
directors for authorizing unauthorized distributions and for making loans to
directors, officers and certain shareholders) or (iv) for any transaction from
which a director derived an improper personal benefit.
Reference also is made to Chapter 156B, Section 67 of the MBCL, which
provides that a corporation may indemnify directors, officers, employees and
other agents and persons who serve at its request as directors, officers,
employees or other agents of another organization or who serve at its request
in any capacity with respect to any employee benefit plan, to the extent
specified or authorized by the articles of organization, a by-law adopted by
the stockholders or a vote adopted by the holders of a majority of the shares
of stock entitled to vote on the election of directors. Such indemnification
may include payment by the corporation of expenses incurred defending a civil
or criminal action or proceeding in advance of the final disposition of such
action or proceeding, upon receipt of an undertaking by the person indemnified
to repay such payment if he shall be adjudicated to be not entitled to
indemnification under Section 67 which undertaking may be accepted without
reference to the financial ability of such person to make repayment. Any such
indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of such
other organization or no longer serves with respect to any such employee
benefit plan. No indemnification shall be provided, however, for any person
with respect to any matter as to which he shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interest of the corporation or to the extent that such
matter relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
The Restated Articles of Organization of the Company provide the
following:
The Corporation shall to the fullest extent legally permissible
indemnify each person who is or was a director, officer, employee or other
agent of the corporation and each person who is or was serving at the request
of the corporation as a director, trustee, officer, employee or other agent of
another corporation or of any partnership, joint venture, trust, employee
benefit plan or other enterprise or organization against all liabilities, costs
and expenses, including but not limited to amounts paid in satisfaction of
judgments, in settlement or as fines and penalties, and counsel fees and
disbursements, reasonably incurred by him in connection with the defense or
disposition of or otherwise in connection with or resulting from any action,
suit or other proceeding, whether civil, criminal, administrative or
investigative, before any court or administrative or legislative or
investigative body, in which he may be or may have been involved as a party or
otherwise or with which he may be or may have been threatened, while in office
or thereafter, by reason of his being or having been such a director, officer,
employee, agent or trustee, or by reason of any action taken or not taken in
any such capacity, except with respect to any matter as to which he shall have
been finally adjudicated by a court of competent jurisdiction not to have acted
in good faith in the reasonable belief that his action was in the best interest
of the corporation (any person serving another organization in one or more of
the indicated capacities at the request of the corporation who shall have been
adjudicated in any proceeding not to have acted in good faith in the reasonable
belief that his action was in the best interest of such other organization
shall be deemed so to have acted in good faith with respect to the corporation)
or to the extent that such matter related to service with respect to an
employee benefit plan, in the best interest of the participants or beneficiaries
of such employee benefit plan. Expenses, including but not limited to counsel
fees and disbursements, so incurred by any such person in defending any such
action, suit or proceeding shall be paid from time to time by the corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking
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by or on behalf of the person indemnified to repay the amounts so paid if it
shall ultimately be determined that indemnification of such expenses is not
authorized hereunder.
If, in an action, suit or proceeding brought by or in the name of the
corporation, a director of the corporation is held not liable for monetary
damages, whether because that director is relieved of personal liability under
the provisions of this Article Six of the Articles of Organization, or
otherwise, that director shall be deemed to have met the standard of conduct
set forth above and to be entitled to indemnification for expenses reasonably
incurred in the defense of such action, suit or proceeding.
As to any matter disposed of by settlement by any such person, pursuant
to a consent decree or otherwise, no such indemnification either for the amount
of such settlement or for any other expenses shall be provided unless such
settlement shall be approved as in the best interests of the corportion after
notice that it involves such indemnification, (a) by vote of a majority of the
disinterested directors then in office (even though the disinterested directors
be less than a quorum), or (b) by any disinterested person or persons to whom
the question may be referred by vote of a majority of such disinterested
directors, or (c) by vote of the holders of a majority of the outstanding stock
at the time entitled to vote for directors, voting as a single class, exclusive
of any stock owned by any interested person, or (d) by any disinterested person
or persons to whom the question may be referred by vote of the holders of a
majority of such stock. No such approval shall prevent the recovery from any
such officer, director, employee, agent or trustee of any amounts paid to him
or on his behalf as indemnification in accordance with the preceding sentence
if such person is subsequently adjudicated by a court of competent jurisdiction
not to have acted in good faith in the reasonable belief that his action was in
the best interests of the corporation.
The right of indemnification hereby provided shall not be exclusive of
or affect any other rights to which any director, officer, employee, agent or
trustee may be entitled or which may lawfully be granted to him. As used
herein, the terms "director", "officer", "employee", "agent" and "trustee"
include their respective executors, administrators and other legal
representatives, an "interested" person is one against whom the action, suit or
other proceeding in question or another action, suit or other proceeding on the
same or similar grounds is then or had been pending or threatened, and a
"disinterested" person is a person against whom no such action, suit or other
proceeding is then or had been pending or threatened.
By action of the board of directors, notwithstanding any interest of
the directors in such action, the corporation may purchase and maintain
insurance, in such amounts as the board of directors may from time to time deem
appropriate, on behalf of any person who is or was a director, officer,
employee or other agent of the corporation, or is or was serving at the request
of the corporation as a director, trustee, officer, employee or other agent of
another corporation or of any partnership, joint venture, trust, employee
benefit plan or other enterprise or organization against any liability incurred
by him in any such capacity, or arising out of his status as such, whether or
not the corporation would have the power to indemnify him against such
liability.
In addition the Company maintains a directors' and officers' liability
insurance policy.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Securities and Exchange Commission
has expressed its opinion that such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
5
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(a) The following is a complete list of exhibits filed or incorporated
by reference as part of this registration statement.
Exhibit
- -------
4.1 Restated Articles of Organization (filed with the Securities and
Exchange Commission as Exhibit 3.1 to Registrant's Annual Report
on Form 10-K for the year ended December 31, 1988 and incorporated
by reference).
4.2 By-Laws, as amended (filed with the Securities and Exchange
Commission as Exhibit 3.2 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1991 and incorporated by
reference).
4.3 Certificate of Designation, Preferences and Rights (filed with the
Securities and Exchange Commission as Exhibit 3.1 to Registrant's
Annual Report on Form 10-K for the year ended December 31, 1991 and
incorporated by reference).
4.4 Rights Agreement dated as of September 15, 1988 between State Street
Boston Corporation and The First National Bank of Boston, Rights
Agent (filed with the Securities and Exchange Commission as Exhibit
4 to Registrant's Current Report on From 8-K dated September 30,
1988 and incorporated by reference).
4.5 Amendment to Rights Agreement dated as of September 20, 1990 between
State Street Boston Corporation and The First National Bank of
Boston, Rights Agent (filed with the Securities and Exchange
Commission as Exhibit 4 to Registrant's Quarterly Report on From
10-Q for the quarter ended September 30, 1990 and incorporated by
reference).
4.6 Wendover Funding, Inc. Employees' Savings Plus and Profit Sharing
Plan, as amended.
5.1 Opinion of Goodwin, Procter & Hoar as to the legality of the
securities being registered.
5.2 IRS Determination Letter.
15.1 Independent Accountants' Acknowledgement Letter.
23.1 Consent of Counsel (included in Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young, Independent Auditors.
23.3 Consent of Ernst & Young, Independent Auditors.
24.1 Powers of Attorney (included in Part II of this registration
statement).
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; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is
6
<PAGE> 7
contained in periodic reports filed by the undersigned 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; and
(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 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the 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.
7
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boston, Commonwealth of Massachusetts, on
September 15, 1994.
STATE STREET BOSTON CORPORATION
By: /s/ Marshall N. Carter
------------------------------
Marshall N. Carter
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOWN ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Marshall N. Carter, George J. Fesus and
Robert J. Malley, and each of them, as his or her true and lawful
attorney-in-fact and agent, with full power of substitution, for him or her and
in his or her name, place and stead, in any and all capacities to sign any or
all amendments or post- effective amendments to this registration statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent or his or her substitute, may lawfully do or cause to be done by
virtue hereof.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Marshall N. Carter Chairman, President and September 15, 1994
- ------------------------------ Chief Executive Officer
Marshall N. Carter (Principal Executive Officer)
/s/ George J. Fesus Chief Financial Officer September 15, 1994
- ------------------------------ (Principal Financial Officer)
George J. Fesus
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Tenley E. Albright, M.D. Director September 15, 1994
- ------------------------------
Tenley E. Albright, M.D.
/s/ Joseph A. Baute Director September 15, 1994
- ------------------------------
Joseph A. Baute
/s/ I. Macallister Booth Director September 15, 1994
- ------------------------------
I. Macallister Booth
/s/ Truman S. Casner Director September 15, 1994
- ------------------------------
Truman S. Casner
/s/ James I. Cash, Jr. Director September 15, 1994
- ------------------------------
James I. Cash, Jr.
/s/ Nader F. Darehshori Director September 15, 1994
- ------------------------------
Nader F. Darehshori
/s/ Lois D. Juliber Director September 15, 1994
- ------------------------------
Lois D. Juliber
/s/ Charles F. Kaye Director September 15, 1994
- ------------------------------
Charles F. Kaye
/s/ John M. Kucharski Director September 15, 1994
- ------------------------------
John M. Kucharski
/s/ Charles R. LaMantia Director September 15, 1994
- ------------------------------
Charles R. LaMantia
/s/ David B. Perini Director September 15, 1994
- ------------------------------
David B. Perini
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Dennis J. Picard Director September 15, 1994
- ------------------------------
Dennis J. Picard
/s/ Alfred Poe Director September 15, 1994
- ------------------------------
Alfred Poe
/s/ Bernard W. Reznicek Director September 15, 1994
- ------------------------------
Bernard W. Reznicek
/s/ David A. Spina Director September 15, 1994
- ------------------------------
David A. Spina
/s/ Robert E. Weissman Director September 15, 1994
- ------------------------------
Robert E. Weissman
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the members
of the Plan Administrative Committtee, which committee is authorized to take
action on behalf of and in the name of Wendover Funding, Inc. Employees' Savings
Plus and Profit Sharing Plan have duly caused this Registration Statement to be
signed on their behalf by the undersigned, thereunto duly authorized, in the
city of Greensboro, State of North Carolina, on the 21st day of September,
1994.
WENDOVER FUNDING, INC.
EMPLOYEES' SAVINGS PLUS AND
PROFIT SHARING PLAN,
/s/ Jeffrey S. Taylor
------------------------------
Jeffrey S. Taylor,
Member of Plan
Administrative Committee
September 21, 1994
/s/ Kenneth L. Austin
------------------------------
Kenneth L. Austin,
Member of Plan
Administrative Committee
September 21, 1994
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<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit No. Description Page+
- ----------- ----------- ----
<S> <C> <C>
4.1 Restated Articles of Organization (filed with the Securities
and Exchange Commission as Exhibit 3.1 to Registrant's
Annual Report on Form 10-K for the year ended December
31, 1988 and incorporated by reference) -
4.2 By-Laws, as amended (filed with the Securities and Exchange
Commission as Exhibit 3.2 to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1991 and
incorporated by reference) -
4.3 Certificate of Designation, Preferences and Rights (filed with the
Securities and Exchange Commission as Exhibit 3.1 to Registrant's
Annual Report on Form 10-K for the year ended December 31, 1991
and incorporated by reference) -
4.4 Rights Agreement dated as of September 15, 1988 between State
Street Boston Corporation and The First National Bank of Boston,
Rights Agent (filed with the Securities and Exchange Commission as
Exhibit 4 to Registrant's Current Report on From 8-K dated
September 30, 1988 and incorporated by reference) -
4.5 Amendment to Rights Agreement dated as of September 20, 1990
between State Street Boston Corporation and The First National
Bank of Boston, Rights Agent (filed with the Securities and
Exchange Commission as Exhibit 4 to Registrant's Quarterly Report
on From 10-Q for the quarter ended September 30, 1990 and
incorporated by reference) -
4.6 Wendover Funding, Inc. Employees' Savings Plus and Profit Sharing
Plan, as amended
5.1 Opinion of Goodwin, Procter & Hoar as to the legality of the securities
being registered
5.2 IRS Determination Letter
15.1 Independent Accountants' Acknowledgement Letter
23.1 Consent of Counsel (included in Exhibit 5.1 hereto) -
23.2 Consent of Ernst & Young, Independent Auditors
23.3 Consent of Ernst & Young, Independent Auditors
24.1 Powers of Attorney (included in Part II of this
registration statement).
</TABLE>
+ Refers to sequentially numbered copy.
11
<PAGE> 1
Exhibit 4.6
WENDOVER FUNDING, INC.
EMPLOYEES' SAVINGS PLUS AND PROFIT SHARING PLAN
Effective
September 1, 1990
1
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I - NATURE OF PLAN . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - DEFINITIONS AND CONSTRUCTION . . . . . . . . . . . . . . . 2
ARTICLE III - ELIGIBILITY AND PARTICIPATION . . . . . . . . . . . . . . 10
ARTICLE IV - EMPLOYEE CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 12
ARTICLE V - EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 17
ARTICLE VI - ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VII - TERMINATION OF SERVICE-PARTICIPANT VESTING . . . . . . . 27
ARTICLE VIII - TIME AND METHOD OF PAYMENT OF BENEFITS . . . . . . . . . 31
ARTICLE IX - EMPLOYER ADMINISTRATIVE PROVISIONS . . . . . . . . . . . . 38
ARTICLE X - ADMINISTRATIVE COMMITTEE . . . . . . . . . . . . . . . . . 39
ARTICLE XI - PARTICIPANT ADMINISTRATIVE PROVISIONS . . . . . . . . . . 42
ARTICLE XII - FIDUCIARIES DUTIES . . . . . . . . . . . . . . . . . . . 45
ARTICLE XIII - DISCONTINUANCE, AMENDMENT, AND TERMINATION . . . . . . . 48
ARTICLE XIV - THE TRUST FUND . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE XV - PARTICIPATION BY AFFILIATE OF COMPANY AND
EMPLOYMENT WITH A MEMBER OF A CONTROLLED GROUP . . . . . 52
ARTICLE XVI - DIRECTED INVESTMENT OPTIONS . . . . . . . . . . . . . . . 53
ARTICLE XVII - TOP-HEAVY RULES . . . . . . . . . . . . . . . . . . . . 54
ARTICLE XVIII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 58
<PAGE> 3
ARTICLE I - NATURE OF PLAN
The Board of Directors of Wendover Funding, Inc. ("Employer") has by
appropriate resolution of said Board adopted the Wendover Funding, Inc.
Employees' Savings Plus and Profit Sharing Plan ("Plan") as hereinafter stated
to he effective as of September 1, 1990.
The purpose of this Plan is to provide additional incentive and
retirement security for eligible Employees of the Employer.
WHEREAS, effective September 1, 1990, the Employer has adopted this
Plan;
WHEREAS, it is the intention of the Employer to establish a Savings Plus
and Profit Sharing Plan and Trust for the sole and exclusive benefit of its
eligible Employees who qualify as Participants hereunder and their
beneficiaries, as herein provided, under the provisions of Section 401 of the
Internal Revenue Code, as amended by the Employee Retirement Income Security Act
of 1974, and to make contributions thereto under the provisions of Section 404
of said Internal Revenue Code, as amended; and
WHEREAS, it is the intention of the Employer and the Trustees to operate
this Plan and Trust in accordance with the provisions of the Internal Revenue
Code as amended by the Employee Retirement Income Security Act of 1974, as
interpreted by regulations prescribed by the Department of the Treasury and the
Secretary of Labor; and
WHEREAS, this Plan embodied herein has been duly approved and authorized
by the Board of Directors of said Company;
NOW, THEREFORE, THIS AGREEMENT,
CREATION AND NAME
-----------------
This Plan is effective September 1, 1990. The name of the Plan shall be
designated as WENDOVER FUNDING, INC. EMPLOYEES SAVINGS PLUS AND PROFIT SHARING
PLAN, hereinafter referred to as "Plan."
<PAGE> 4
ARTICLE II - DEFINITIONS AND CONSTRUCTION
Definitions. For the purpose of this Plan, the following definitions
shall apply unless the context requires otherwise.
2.01 "Accounts" shall mean the separate accounts maintained to record
the interest of a Participant under the Plan, consisting of the following
Accounts.
(a) Employee Savings Plus Account - shall mean a separate
account maintained for each Participant consisting of all Employee Salary
Deferral Contributions, earnings of the Trust, adjustments for withdrawals, and
realized and unrealized gains and losses attributable thereto.
(b) Employer Matching Account - shall mean a separate account
maintained for each Participant who makes an Employee Salary Deferral
Contribution and consisting of his allocable share of Employer Matching
Contributions and earnings of the Trust, and realized and unrealized gains and
losses allocable to such account.
(c) Employer Discretionary Matching Account - shall mean a
separate account maintained for each Participant who makes an Employee Salary
Deferral Contribution and consisting of his allocable share of any Employer
Discretionary Matching Contributions, and earnings of the Trust, and realized
and unrealized gains and losses allocable to such account.
(d) Employer Profit Sharing Account - shall mean a separate
account maintained for each Participant and consisting of his allocable share
of Employer Profit Sharing contributions, earnings of the Trust, forfeitures,
realized and unrealized gains and losses allocable to such account.
(e) Employee Rollover Account - shall mean a separate account
maintained for each Participant who makes a Rollover Contribution to the Plan
consisting of such contribution, earnings of the Trust, adjustments for
withdrawals and realized and unrealized gains and losses attributable thereto.
2.02 "Accrued Benefit" shall mean the amount of a Participant's
Accounts as defined in Section 2.01.
2.03 "Act" shall mean the "Employee Retirement Income Security Act of
1974," as amended.
2.04 "Adjustment Factor" shall mean the cost of living adjustment
factor prescribed by the Secretary of the Treasury under Section 415(d) of the
Code for Plan Years beginning after December 31, 1987, as applied to such items
and in such manner as the Secretary shall provide.
2.05 "Affiliated Employer" shall mean the Employer and any corporation
which is a member of a controlled group of corporations (as defined in Section
414(b) of the (Code) which includes the Employer; any trade or business (whether
or not incorporated) which is under common control (as defined in Section 414(c)
of the Code) with the Employer, 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 Employer; and any other entity required to be
aggregated with the Employer pursuant to regulations under Section 414(o) of the
Code.
For purposes of this Section 2.05, the term "controlled group" means any
two or more corporations, trades or businesses under common control of which the
Employer is a member, or two or more "affiliated organizations" under Code
Section 414(m). The term "two or more corporations, trades or businesses under
common control" will include any group of corporations, trades or businesses
which is either:
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<PAGE> 5
(a) a parent-subsidiary group, or
(b) a brother-sister group, or
(c) a combined group
within the meaning under Code Sections 414(b), 414(c), and 414(m) and their
Regulations.
All Employees of a controlled group he treated as employed by a single
Employer for purposes of applying the provisions of qualification of this Plan;
of minimum participation standards of this Plan; of minimum vesting standards of
this Plan; and of limitation of benefits and contributions under this Plan.
2.06 "Annual Addition" shall mean the sum of the following additions to
a Participant's Account for the Limitation Year:
(a) Employer Contributions,
(b) Forfeitures,
(c) Employee Contributions, and
(d) Amounts allocated, after March 31, 1984, to an individual
medical account as defined in Section 415(l)(2) of the Code, which is part of
a pension or annuity plan maintained by the Employer and amount derived from
contributions paid or accrued after December 31, 1985, in taxable years ending
after such date, which are attributable to post-retirement medical benefits,
allocated to the separate account of a Key Employee, as defined in Section
419(A)(d)(3) of the Code, under a welfare benefit fund, as defined in Section
419(e) of the Code, maintained by the Employer.
2.07 "Beneficiary" shall mean any person or fiduciary designated by a
Participant who is or may become entitled to a benefit under the Plan following
the death of the Participant.
2.08 "Board of Directors" shall mean the Board of Directors of Wendover
Funding, Inc. unless otherwise indicated or the context otherwise requires.
2.09 "Break in Service" shall mean a Plan Year in which an Employee is
credited with not more than 500 Hours of Service, as measured by the vesting
computation period.
2.10 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.11 "Company" shall mean the Employer as defined in Section 2.17.
2.12 "Compensation" shall mean an Employee's Compensation for any Plan
Year consisting of the total annual compensation (excluding bonuses) actually
paid to the Employee by the Employer for the Plan Year concerned, including any
amount of earnings deferred under any other qualified Employer sponsored plan
under Code Sections 125, 401(k), 403(h), 408(k), or any other qualified Cash or
Deferred Arrangement, but excluding any reimbursements for the use of an
automobile, any reimbursements due to moving expenses, and the taxable value of
any Employer paid group term life insurance, or other taxable fringe benefit
provided by the Employer. For Plan Years beginning after December 31, 1988,
annual Compensation used shall not exceed $200,000, (or other amount as approved
by the Secretary of the Treasury). Notwithstanding the foregoing, Compensation
shall flow include deferred compensation, stock options, and other distributions
which receive special Federal income tax benefit within the meaning of Section
415 of the Code. For the purposes of a contribution or an
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<PAGE> 6
allocation under the Plan based on compensation, Compensation shall only
include amounts actually paid an Employee during the period he is a Participant
in the Plan.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Compensation of each employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Code. The cost-of-living adjustment in effect
for a calendar year applies to any period, not exceeding 12 months, beginning in
such calendar year over which compensation is determined (determination period).
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.
2.13 "Computation Periods"
(a) Eligibility Computation Period - the 12 consecutive month
period in which the Employee is credited at least 1,000 Hours of Service. The
initial, period begins on the employment or re-employment commencement date on
which an Employee first performs one "Hour of Service" for the Employer. His
subsequent Eligibility Computation Period shall be measured from succeeding
Plan Years, the first of which begins with the first day of the Plan Year that
includes the first anniversary of such Employee's Employment Commencement Date.
An Employee who is credited with 1,000 Hours of Service in both
the initial Eligibility Computation Period and the first Plan Year which
commences prior to the first anniversary of the Employee's initial Eligibility
Computation Period will be credited with two (2) Years of Service for purposes
of eligibility to Participate.
(b) Vesting Computation Period - the 12 consecutive month period
beginning with the first day of the Plan Year and ending with the last day of
the Plan Year in which an Employee is credited with at least 1,000 Hours of
Service. Thus, if an Employee is not credited with at least 1,000 Hours of
Service during a Plan Year, he is not given credit for a Year of Service for
vesting purposes.
2.14 "Contributions" shall mean contributions to this Plan from one of
the following sources:
(a) Employee Salary Deferral Contribution - shall mean the
amount which the Employee contributes under Section 4.01(a) of the Plan.
(b) Employer Matching Contribution - shall mean the Employer's
required contributions to the Plan under Section 5.01(a) for Participants
making Employee Salary Deferral Contributions.
(c) Employer Discretionary Matching Contribution - shall mean
the Employer's discretionary contributions to the Plan under Section 5.01(b)
for Participants making Employer Salary Deferral Contributions.
(d) Employer Profit Sharing Contribution - shall mean the
Employer's discretionary contribution to the Plan under Section 5.01(b).
(e) Rollover Contribution - shall mean a contribution to the
Plan of any part or all (in excess of employee contributions) of a distribution
from an employee's trust described in Section 401(a) of the
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<PAGE> 7
Code which is exempt from tax under Section 501(a) thereof (other than a trust
forming a part of a plan under which the Employee was an employee within the
meaning of Section 401(c) at the time contributions were made on his behalf
under the plan) or an annuity plan described in Section 403(a) of the Code
(other than a plan under which the Employee was a employee within the meaning of
Section 401(c) at the time contributions were made on his behalf under the plan)
and any earnings thereon (whether such contribution is paid directly by the
Employee, from such other trust or annuity plan, or from an individual
retirement account, individual retirement annuity, or retirement bond) in a
manner which would constitute a rollover contribution within the meaning of
Section 402(a)(5), 403(a)(4), 408(d)(3), or 409(b)(C) of the Code.
2.15 "Dates":
(a) Effective Date - The effective date of the Plan is September
1, 1990.
(b) Anniversary Date - March 31. Effective December 31, 1992
and thereafter the Anniversary Date is December 31.
(c) Plan Entry Dates - April 1 and October 1. However, the
initial Entry Date is September 1, 1990. Effective January 1, 1993, Plan
Entry Dates are January 1 and July 1.
(d) Valuation Date of Assets. Effective January 1, 1994, the
last day of each calendar quarter and each other date selected by the
Administrative Committee from time to time.
2.16 "Employee" shall mean any person on the payroll of the Employer
(including "leased" employees as defined by Code Section 414(n)(2)), or on
approved Leave of Absence who is subject to withholding for purposes of Federal
income taxes and for purposes of the Federal Insurance Contributions Act with
the following exceptions:
(a) leased employees shall not be included if such employees
constitute less than 20% of the Employer's non-highly compensated work force
within the meaning of Code Section 414(n)(1)(C)(ii), and
(b) any Employee of the Employer who is included in a unit of
employees covered by an agreement which the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and the
Employer, if there is evidence that retirement benefits were the subject of
good faith bargaining between such employee representatives and the Employer.
2.17 "Employer" shall mean WENDOVER FUNDING, INC., (a corporation).
The term Employer shall also apply to any subsidiary or Affiliated Employer who
adopts the Plan and who, at the time such reference applies, are included in the
list of Affiliated Employers set forth below. For the purpose of this Plan,
Wendover Funding, Inc. shall deal exclusively with the funding agent and shall
be deemed the representative of each Employer, and any action taken by Wendover
Funding, Inc. shall be binding on all Employers.
List of Affiliated Employers Date of Plan Adoption
---------------------------- ---------------------
None N/A
An Employer may be removed from the above list as of the date on which
it ceases to be subsidiary to, affiliated with, or allied with Wendover Funding,
Inc., or such Employer loses its status as a legal entity by means of
dissolution, merger, consolidation, bankruptcy, or otherwise. An Employer shall
also be removed from the list of Employers upon the termination of the Plan for
that Employer.
As used in the further provisions of the Plan, the term Employer shall
be deemed to apply to each Employer independently. The requirement that
Wendover Funding, Inc. deal exclusively with the funding agent
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<PAGE> 8
is for administrative convenience only. In no event shall this Plan be
interpreted to be a multiemployer plan as defined in Section 3(37) of the
Employee Retirement Income Security Act of 1971.
2.18 "Employment Commencement Date" shall mean the date on which an
Employee first performs an Hour of Service for the Employer.
2.19 "Fiscal Year: shall mean the Employer's taxable year for Federal
income tax purposes.
2.20 "Forfeiture" shall mean the portion of a Participant's Employer
funded Account which does not become part of the Participant's vested Accrued
Benefit when his employment with the Employer ends.
2.21 "Hour of Service" shall mean:
(a) Each Hour of Service for which the Employer, either directly
or indirectly, pays an Employee, or for which the Employee is entitled to
payment, for the performance of duties during the Plan Year. The Administrative
Committee shall credit Hours of Service under this paragraph (a) to the
Employee for the Plan Year in which the Employee performs the duties,
irrespective of when paid.
(b) Each Hour of Service for back pay, (irrespective of
mitigation of damages), to which the Employer has agreed or for which the
Employee has received an award. The Administrative Committee shall credit
Hours of Service under this paragraph (b) to the Employee for the Plan Year(s)
to which the award or the agreement pertains rather than for the Plan Year in
which the award, agreement or payment is made; and
(c) Each Hour of Service for which the Employer, either directly
or indirectly, pays an Employee, or for which the Employee is entitled to
payment (irrespective of whether the employment relationship is terminated), for
reasons other than for the performance of duties during a Plan Year, such as
Leave of Absence, vacation, holiday, sick leave, illness, incapacity (including
disability), layoff, jury duty or military duty. Notwithstanding the preceding
provisions of this paragraph (c), the Administrative Committee shall not credit:
(1) More than Five hundred one (501) Hours of Service under
this paragraph (c) to an Employee on account of any single continuous period
during which the Employee does not perform any duties (whether or not such
period occurs during a single Plan Year);
(2) An Hour of Service to an Employee on account of a period
during which the Employee does not perform any duties if the payment the
Employer makes (or the payment due) is under a plan maintained solely for the
purpose of complying with the applicable workman's compensation law,
unemployment compensation law or disability insurance law; and
(3) An Hour of Service for a payment to an Employee which
solely reimburses the Employee for medical or medically related expenses
incurred by the Employee.
(d) The Administrative Committee shall not credit an Hour of
Service under more than one (1) of the above paragraphs. Furthermore, if the
Administrative Committee is to credit Hours of Service to an Employee for the
twelve (12) month period beginning with the Employee's Employment Commencement
Date, then the twelve (12) month period shall be substituted for the term "Plan
Year" wherever the latter term appears in this paragraph. The Administrative
Committee shall resolve any ambiguity with respect to the crediting of an Hour
of Service in favor of the Employee. Furthermore, in crediting Hours of Service
under this paragraph, the Administrative Committee shall apply the rules of
paragraphs (b) and (c) of Labor Reg. Section 2530.200b-2, which the Plan, by
this reference, specifically incorporates in full within this paragraph.
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(e) An Employee or Participant for whom hourly records are not
maintained shall be credited with ninety-five (95) Hours of Service
semi-monthly, if compensated semi-monthly, or one hundred ninety (190) Hours of
Service monthly, if compensated on a monthly basis, for each period described
above which if the Employee were hourly rated would have been credited with one
Hour of Service under paragraphs (a), (b) or (c).
(f) Maternity - Solely for purposes of determining whether a
Break in Service (as defined in Section 2.09) for participation and vesting
purposes, has occurred in a Computation Period, an individual who is absent from
work for maternity or paternity reasons shall receive credit for the Hours of
Service which would otherwise have been credited to such individual but for
such absence, or in any case in which such hours cannot be determined, 8 Hours
of Service per day of such absence subject to a maximum of 501 Hours of Service
for such Plan Year. For purposes of this paragraph, an absence from work for
maternity or paternity reasons means an absence (1) by reason of the pregnancy
of the individual (2) by reason of a birth of a child of the individual, (3) by
reason of the placement of a child with the individual in connection with the
adoption of such child by such individual, or (4) for purposes of cuing for
such child for a period beginning immediately following such birth or
placement. The Hours of Service credited under this paragraph shall be credited
(1) in the computation period in which the absence begins if the crediting is
necessary to prevent a Break in Service in that period, or (2) in all other
cases, in the following computation period.
2.22 "Leave of Absence" shall mean any period of absence from the
active employment of the Employer due to jury duty and compulsory service in the
Armed Forces of the United States if the Employee returns to active Service with
the Employer within 90 days after he first becomes eligible for release from
such active duty. A Leave of Absence may be granted by the Employer for
sickness, vacations, disability, or other similar reasons under rules
established by it and uniformly applied by it to all individuals similarly
situated. If the Employee does not return to active Service with the Employer
within ninety (90) days of the termination of his Leave of Absence, his Service
will be deemed to have ceased on the date his absence first commenced.
2.23 "Limitation Year" shall mean each 12 month period beginning
January 1 and ending the following December 31. Execution of this Plan (or any
amendment to this Plan changing the Limitation Year) constitutes adopting a
written resolution by the Employer electing a Limitation Year pursuant to
governmental regulations.
2.24 "Net Profits" shall mean the Employer's current or accumulated
earnings as determined in accordance with generally accepted accounting
practices.
2.25 "Normal Retirement" shall mean the Valuation Date coinciding
with or next following the Participant's sixty-fifth (65th) birthday.
2.26 "Participant" shall mean any Employee who becomes a participant as
provided in Article III and has not for any reason become ineligible to
participate further in the Plan. An "Inactive Participant" shall mean any
Employee or former Employee who has ceased to be a Participant but on whose
behalf an Account is still maintained under the Plan.
2.27 "Party in Interest" shall mean:
(a) the Trustee of the Plan;
(b) a person providing services to the Plan;
(c) an Employer, any of whose Employees are covered by the Plan;
(d) an Employee organization, any of whose members are covered
by the Plan;
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<PAGE> 10
(e) an owner of the Employer as defined in Section 3(14)(E) of
the Employee Retirement Income Security Act of 1974;
(f) a relative (as defined in Section 3(15) of the Employee
Retirement Income Security Act of 1974) of any individual referred to in (a)
through (e) above;
(g) an Employee, officer, director or 10% or more shareholder of
a person described in (b), (c), (d), and (e) above;
(h) any other person, individual, corporation, partnership,
trust or estate who is considered a "partly in interest" within the meaning of
Section 3(14) of the Employee Retirement Income Security Act of 1974.
2.28 "Plan" shall mean the Wendover Funding, Inc. Employees' Savings
Plus and Profit Sharing Plan as established herein and amended from time to
time.
2.29 "Plan Administrator" shall mean the Employer or the person or
persons who have been or are in the future named by the Employer to administer
the Plan.
2.30 "Plan Year" shall mean the 12 month period beginning April 1 and
ending 12 months later on March 31. However, the first Plan Year shall begin
September 1, 1990 and end on March 31, 1991. Effective January 1, 1993, the
Plan Year shall begin each January 1 and end the following December 31 with a
short 9-month transitional Plan Year of April 1, 1992 to December 31, 1992.
Effective January 1, 1993, Plan Entry Dates are January 1 and July 1.
2.31 "Qualifying Year of Service" shall mean an Eligibility Computation
Period as defined in Section 2.13(a) during which an Employee completes at least
1,000 Hours of Service and shall commence on such Employee's latest date of
employment.
2.32 "Service" shall mean any period of time the Employee is in the
employ of the Employer, including any period the Employee is on Leave of Absence
authorized by the Employer under a uniform nondiscriminatory policy applicable
to all Employees. Service with any predecessor Employer that maintained this
Plan shall be recognized for all purposes hereunder.
2.33 "Suspense Account" shall mean an account established pursuant to
Section 615.
2.34 "Trust" shall mean the trust established to hold, administer, and
invest the contributions made under the Plan.
2.35 "Trust Agreement" shall mean the agreement between the Employer
and the Trustee or any successor Trustee establishing the Trust and specifying
the duties of the Trustee.
2.36 "Trustee" shall mean the person, persons or entity from time to
time appointed a Trustee under the Trust Agreement.
2.37 "Trust Fund" shall mean all property of every kind held or
acquired by the Trustee under the Trust Agreement.
2.38 "Vested Interest" shall mean a nonforfeitable right to all or a
portion of the Accrued Benefit.
2.39 "Year of Service" - The term "Year of Service" means a 12
consecutive month period during the applicable computation period in which the
Employee has completed at least 1,000 Hours of Service.
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Word Usage. Words used in the masculine shall apply to the feminine
where applicable, and wherever the context of the Plan dictates, the plural
shall be read as the singular and the singular as the plural.
Construction. It is the intention of the Employer that the Plan be
qualified under the provisions of the Code and the Act and all provisions
hereof shall be construed to that result.
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<PAGE> 12
ARTICLE III - ELIGIBILITY AND PARTICIPATION
3.01 Eligibility. Eligibility to participate shall be as follows:
(a) Participants at Effective Date. Each Employee who as of
September 1, 1990 has attained the age of twenty-one (21) and has completed
six (6) Months of Service, shall become a Participant as of September 1, 1990.
(b) Participants Subsequent to Effective Date. Each other
Employee shall become a Participant in the Plan on the Plan Entry Date (if he
is employed on that date) coincident with or immediately following his
employment date provided he has attained age twenty-one (21) and has completed
one (1) Qualifying Year of Service. However, effective April 1, 1992, all
Employees are eligible to join the Plan on the Plan Entry Date coinciding with
or next following the completion of six (6) Months of Service and the attainment
of age 21. A Month of Service is any month an employee completes one (1) or
more Hours of Service.
3.02 Participation Upon Re-Employment. A re-employed Employee who was
a prior Plan Participant and who has incurred a Break-in-Service shall re-enter
the Plan as a Participant on the first Plan Entry Date after he performs his
first Hour of Service as a result of his re-employment, if he had previously
been a Participant in the Plan. Provided, however, any Plan Participant who
terminates employment, and is rehired prior to having incurred a
Break-in-Service, shall re-enter the Plan as a Participant effective the date of
such re-employment. Any other Employee whose employment terminates and who is
subsequently re-employed shall commence participation in accordance with the
provisions of Section 3.01.
3.03 Employee Salary Deferral Contribution Application. Participation
in the Employee Salary Deferral Contribution option of the Plan shall not be
compulsory. A Participant as a condition for participation must file an
Employee Salary Deferral Contribution election on a written form provided by the
Administrative Committee on or before the time prescribed by the Administrative
Committee before each Plan Entry Date. A Participant who elects not to make an
Employee Salary Deferral Contribution will not participate in any Employer
Matching Contributions.
3.04 Transferred Participants.
(a) A Participant who is transferred to any Affiliated Employer
which is not an Employer as defined in Section 2.17 or to a class of employees
not covered by this Plan shall be considered a Transferred Participant. The
Accrued Benefit of such Transferred Participant shall be determined as of the
date of transfer and shall be held under the Plan until such time as the
Transferred Participant becomes eligible to receive it. If such Transferred
Participant is not fully vested in his Accrued Benefit as of he date of
transfer, such service after the date of transfer shall be used in determining
Vesting Service. In no event, however, shall service with the Affiliated
Employer or in a class of employees not covered by this Plan be used to accrue
further benefit under this Plan.
(b) A Participant whose employment changes to a class of
employment which is not covered by this Plan shall be considered a Transferred
Participant and shall be treated as described in Section 3.04(a) above.
(c) An Employee, previously excluded from coverage under the
Plan because his employment with the Employer was employment not covered by
this Plan, shall enter (or re-enter, as the case may be) the Plan in the Plan
Year during which he no longer has this excluded employment. All such Employees
shall accrue benefits under this Plan only with respect to those Years of
Service not deemed to be performed while under such excluded employment.
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If such Employee is not fully vested in his Accrued Benefit as of the
date on which he no longer has this excluded employment, service while the
Employee was previously excluded from Participation will be counted for vesting
purposes.
If an Employee transfers from employment not covered under this Plan,
and if such transfer occurs at any time during a Plan Year, all Hours of Service
earned during such Plan Year, regardless of whether or not they were worked
under excluded employment, shall be considered in determining Service for such
year.
3.05 Provisions Relating to Leased.
(a) Safe Harbor. Notwithstanding any other provisions of the
Plan, for purposes of the pension requirements of Section 414(n)(3) of the Code,
the employees of the Employer shall include individuals defined as Employees
in Section 2.16 of this Plan.
(b) Participation and Accrual. A leased employee within the
meaning of Section 414(n)(2) of the Code shall become a Participant in, or
accrue benefits under, this Plan based on service as a leased employee only as
provided in provisions of this Plan other than this Section 3.05.
(c) Effective Date. This Section 3.05 shall be effective for
services performed after December 31, 1986.
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ARTICLE IV - EMPLOYEE CONTRIBUTIONS
4.01 Employee Salary Deferral Contribution. A Participant may elect to
defer receipt of a portion of his Compensation, and have the Employer contribute
to the Plan on his behalf for each Limitation Year an Employee Salary Deferral
Contribution of from two percent (2%) to ten percent (10%) of his Compensation,
in accordance with this Section and such other rules as the Administrative
Committee may prescribe; provided, however, all such Employee Salary Deferral
Contributions shall be subject to the provisions of Section 4.05 and Section
6.09.
(a) No Participant shall be permitted to have Employee Salary
Deferral Contributions made under this Plan, or any other qualified plan
maintained by the Employer during any taxable year, in excess of the dollar
limitation contained in Section 402(g) of the Code in effect at the beginning
of the Plan Year.
(b) "Employee Salary Deferral Contribution" shall mean any
Employer contributions made to the Plan at the election of the Participant, in
lieu of cash compensation, and shall include contributions made pursuant to a
salary reduction agreement or other deferral mechanism. With respect to any
taxable year, a Participant's Employee Salary Deferral Contribution is the sum
of all Employer contributions made on behalf of such Participant pursuant to
an election to defer under any qualified CODA, as described in Section 401(k)
of the Code, any simplified employee pension cash or deferred arrangement, as
described in Section 402(h)(1)(B), any eligible deferred compensation plan under
Section 457, any plan as described under Section 501(c)(18), and any employer
contributions made on behalf of a Participant for the purchase of an annuity
contract under Section 403(b) pursuant to a salary reduction agreement.
Rollover Contributions. A Participant, with the Administrative
Committee's written consent and after filing with the Trustee the form
prescribed by the Administrative Committee, may make a Rollover Contribution to
the Plan. The Administrative Committee shall allocate and credit a Rollover
Contribution to the contributing Participant's Employee Rollover Account as of
the Valuation Date for the Plan Year in which the Rollover Contribution is made.
If a Participant makes a Rollover Contribution, the Participant may direct the
Trustee to invest the amount contributed as provided in Section 16.01.
In all other respect, the Trustee and the Committee shall hold,
administer, and distribute a Rollover Contributions in the same manner as any
Employee contribution made to the Trust.
4.02 How Paid or Deducted. Employee Salary Deferral Contributions may
be made by regular payroll deductions from the Participant's Compensation, or in
any other manner approved by the Administrative Committee.
4.03 Modification of Employee Contributions. A Participant may modify
his Employee Salary Deferral Contributions at any time on such forms as the
Administrative Committee may prescribe, and such modification shall become
effective upon the next following Plan Entry Date and will have prospective
effect only for the Employee Salary Deferral Contributions. Such modification
shall be in accordance with such rules as the Administrative Committee may
prescribe.
4.04 Termination of Employee Contributions. A Participant may
terminate his Salary Deferral Agreement at any time with respect to Compensation
not yet earned by delivering written notice of termination to the Plan
Administrator. Any Participant who terminates his Salary Deferral Agreement may
be permitted, in accordance with uniform and nondiscriminatory rules prescribed
by the Plan Administrator, to execute a new Salary Deferral Agreement and resume
having Salary Deferral Contributions made to the Trust on his behalf on the next
following Plan Entry Date.
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4.05 Maximum Deferral Percentage. The Average Actual Deferral
Percentage for Highly Compensated Participants for each Plan Year shall not
exceed the relationship to the Average Actual Deferral Percentage of all
Non-Highly Compensated Participants for the Plan Year of either of the following
specified tests:
(a) Primary Test. The Average Actual Deferral Percentage for
Eligible Participants who are Highly Compensated Employees for the Plan Year
shall not exceed the Average Actual Deferral Percentage for Eligible
Participants who are Non-Highly Compensated Employees for the Plan Year
multiplied by 1.25; or
(b) Alternate Test. The Average Actual Deferral Percentage for
Eligible Participants who are Highly Compensated Employees for the Plan Year
shall not exceed the Average Actual Deferral Percentage for Eligible
Participants who are Non-Highly, Compensated Employees for the Plan Year
multiplied by 2, provided that the Average Actual Deferral Percentage for
Eligible Participants who are Highly Compensated Employees does not exceed the
Average Actual Deferral Percentage for Eligible Participants who are Non-Highly
Compensated Employees by more than two (2) percentage points or such lesser
amount as the Secretary of the Treasury shall prescribe to prevent the multiple
use of this alternative limitation with respect to any Highly Compensated
Employee.
Definitions: For purposes of this Section 4.05, and for purposes of
this Plan, the following definitions shall be used:
(1) "Actual Deferral Percentage" shall mean the ratio
(expressed as a percentage), of Employee Salary Deferral Contributions and
Qualified Employer Deferral Contributions on behalf of the Eligible Participant
for the Plan Year to the Eligible Participant's Compensation for the Plan Year.
(2) "Average Actual Deferral Percentage" shall mean the
average (expressed as a percentage) of the Actual Deferral Percentage of the
Eligible Participants in a group.
(3) "Qualified Employer Deferral Contributions" shall
mean Employer Contributions which are allocated to a Participant's Employer
Contribution Account that are non-forfeitable when contributed by the Employer
as a matching Employer contribution.
(4) "Eligible Participant" shall mean any Employee of
the Employer who is otherwise eligible under the terms of the Plan to have
Employee Salary Deferral Contributions or Qualified Employer Deferral
Contributions allocated to his account for the Plan Year.
(5) "Family Member" shall mean any person as described
in Section 414(q)(6)(B) of the Code who is the spouse of the Employee, the
lineal ascendant or descendent of the Employee or spouse of a lineal ascendant
or descendent of the Employee.
(6) "Highly Compensated Participant" means any
Participant, or former Participant, who at any time during the current Plan
Year, or immediately preceding Plan Year, is a Highly Compensated Employee, as
defined in Code Section 414(q), who:
(i) Owned 5% or more of the Employer (subject to
the attribution rules of Code Section 318),
(ii) Earned more than $75,000 (as adjusted by a
Cost of Living Index as approved by the Secretary of the Treasury),
(iii) Earned more than $50,000 (as adjusted by a
Cost of Living Index as approved by the Secretary of the Treasury) and
was one of the top 20% paid Employees for the year,
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(iv) Was an officer of the Employer and was paid
more than 50% of the annual benefit limit for defined benefit plans, as
indexed, pursuant to Section 415(b)(1)(A). If no officer earned more
than this amount during the Plan year in question, then the highest paid
officer will be considered highly compensated.
(v) Subsections (i), (ii), (iii), and (iv) above
notwithstanding, it during the immediately preceding Plan Year a
Participant did not fall under any of subparagraphs (ii), (iii) or (iv),
then he shall not fall under those subparagraphs during the current
Plan Year regardless of his Compensation unless during the current year
he is one of the 100 highest paid Participants.
(vi) A Highly Compensated Employee shall include a
former Employee who had a "separation year" prior to the determination
year and who was a Highly Compensated active Employee for either: (1)
such Employee's "separation year" or (2) any determination year ending
on or after the Employee's 55th birthday. A "separation year" is the
determination year the Employee separates from service. With respect
to an Employee who separated from service before January 1, 1987, such
Employee will be included as a Highly Compensated Employee only if the
Employee was a 5% owner or received compensation in excess of $50,000
during: (1) the Employee's separation year (or the year preceding such
separation year), or (2) any year ending on or after such individual's
55th birthday (or the last year ending before such Employee's 55th
birthday).
The "determination year" shall be the Plan Year. The
"look-back year" shall be the twelve month period immediately preceding the
determination year.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of the Employees in the
top-paid group, the top 100 Employees, the number of Employees treated as
officers and the compensation that is considered, will be made in accordance
with Section 414(q) of the Code and the regulations thereunder.
(7) "Non-Highly Compensated Employee" shall mean an
Employee of the Employer who is neither a Highly Compensated Employee nor a
Family Member. If an Employee is, during the current or immediately preceding
Plan Year, a Family Member of either a 5-percent owner or one of the 10 most
Highly-Compensated Employees ranked on the basis of Compensation paid by the
Employer during such year, then said Employee shall not be treated as a
separate eligible Employee, but shall be subject to the family aggregation rules
of Section 414(q)(6) of the Code.
(c) Special Rules.
(1) For purposes of this Section 4.05, the Actual Deferral
Percentage for any Eligible Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Employee Salary Deferral or
Qualified Employer Deferral Contributions allocated to his Account under two
or more plans or arrangements described in Section 401(k) of the Code that are
maintained by the Employer or an Affiliated Employer shall be determined as if
all such Employee Salary Deferral Contributions and Qualified Employer Deferral
Contributions were made under a single arrangement.
(2) For purposes of determining the Actual Deferral
Percentage of a Participant who is a Highly Compensated Employee, because he is
either a 5% or more owner of the Employer, or because he is one of the ten
highest paid Employees during the determination year or the look-back year, the
Employee Salary Deferral Contributions, Qualified Employer Deferral
Contributions and Compensation of such Participant shall include the Employee
Salary Deferral Contributions, Qualified Employer Deferral Contributions and
Compensation of Family Members, and such Family Members shall be disregarded
in determining the Actual Deferral Percentage for Participants who are
Non-Highly Compensated Employees.
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(3) In the event that this Plan satisfies the requirements
of Section 410(b) of the Code only if aggregated with one or more other plans,
or if one or more other plans satisfy the requirements of Section 410(b) of the
Code only if aggregated with this Plan, then this Section 4.05 shall be applied
by determining the Actual Deferral Percentages of Eligible Participants as if
all such plans were a single plan.
(4) The determination and treatment of the Employee Salary
Deferral Contributions, Qualified Nonelective Contributions and Actual Deferral
Percentage of any Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(5) The Employer shall maintain records sufficient to
demonstrate satisfaction of the Average Actual Deferral Percentage test of this
Section 4.05, satisfaction of the Average Actual Contribution Percentage test
of Section 5.05, and the amount of Qualified Employer Deferral Contribution
used in such test.
4.06 Automatic Adjustments to Employee Salary Deferral Contributions.
Within a reasonable period after the beginning of each Plan Year, the
Administrative Committee shall cause the Employee Salary Deferral Contributions
to be tested for electing Participants to determine if the Maximum Deferral
Percentage of Section 4.05 has not been exceeded. Should it be determined that
the Actual Deferral Percentage of Highly Compensated Participants exceeds the
Maximum Deferral Percentage as set forth in Section 4.05, the Administrative
Committee shall be with the Highly Compensated Participant having the highest
"Actual Deferral Percentage", reduce the Employee Salary Deferral Contribution
of each Highly Compensated Participant electing to participate whose deferred
amount exceeds the Maximum Deferral Percentage in order to comply with the
maximum permissible Actual Deferral Percentage for the Plan Year. Any
adjustments that are made to the Accounts of Family Members who are aggregated
pursuant to Section 4.05(c)(2) shall be made in accordance with regulations
under Code Section 401(k). The Administrative Committee shall again, prior to
the end of the Plan Year, cause the Employee Salary Deferral Contributions of
Participants to be tested under Section 4.05 to determine if the Actual Deferral
Percentage for Highly Compensated Participants does not exceed the Maximum
Deferral Percentage set forth in Section 4.05. To the extent the Administrative
Committee deems necessary to insure that the specified tests set forth in
Section 4.05 are satisfied, the Administrative Committee may further reduce the
Employee Salary Deferral Contribution of each Highly Compensated Participant in
the same manner as set forth in this Section and shall also have the specific
right to refund Employee Salary Deferral Contributions of such Participants
under the Plan within 75 days after the end of the Plan Year as provided in
Section 4.07 below. The Administrative Committee shall have the authority to
adopt such additional rules and procedures as it deems necessary to insure that
the Plan meets the specified tests as set forth in Section 4.05.
4.07 Distribution of Excess Employee Salary Deferral Contributions.
(a) In General. Notwithstanding any other provision of this
Plan, Excess Employee Salary Deferral Contribution Amounts and income allocable
thereto shall be distributed no later than each April 15 to Participants who
claim such allocable Excess Employee Salary Deferral Contribution Amounts for
the preceding calendar year.
(b) Excess Employer Salary Deferral Contribution Amount. For
purposes of this Plan, the "Excess Employer Salary Deferral Contribution Amount"
shall mean the amount of Employee Salary Deferral Contributions for a calendar
year that the Participant requests be allocated to and distributed from this
Plan pursuant to the claim procedure set forth in Section 4.07 (c).
(c) Claims. The Participant's claim shall be in writing, shall
be submitted to the Plan Administrator no later than March 1; shall specify the
Participant's Excess Employee Salary Deferral Contribution Amount for the
preceding calendar year; and shall be accompanied by the Participant's written
statement that ff such amounts are not distributed, such Excess Employee Salary
Deferral Contribution Amount,
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when added to amounts deferred under other plans or arrangements described in
Sections 401(k), 408(k) or 403(b) of the Code, exceeds the limit imposed on
the Participant by Section 402(g) of the Code for the year in which deferral
occurred.
(d) Maximum Distribution Amount. The Excess Employee Salary
Deferral Contribution Amount distributed to a Participant with respect to a
calendar year shall be adjusted for income and, if there is a loss allocable
to the Excess Employer Salary Deferral Contribution, shall in no event be less
than the lesser of the Participant's Account under the Plan or the Participant's
Employee Salary Deferral Contributions for the Plan Year.
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<PAGE> 19
ARTICLE V - EMPLOYER CONTRIBUTIONS
5.01 Employer Contributions.
(a) Employer Matching Contribution. Subject to the limitations
of Sections 4.05 and 6.09, the Employer shall contribute to the Trust an amount
equal to fifty percent (50%) of the first six percent (6%) of the Participant's
Compensation deferred as an Employee Salary Deferral Contribution. The total
amount of such Employer Matching Contributions shall be reduced by any
forfeitures arising under Section 7.09.
(b) Employer Discretionary Matching Contribution. Subject to
the limitations of Section 4.05 and 6.09, for each Plan Year that ends with or
within the Employees taxable Year, the Employer may contribute to the Trust,
an Employer Discretionary Matching Contribution that the Board of Directors may
from time to time deem advisable. Such Employer Discretionary Matching
Contribution shall be determined by the Board of Directors within 75 days of
the end of the Plan Year. The total amount of such Employer Discretionary
Contributions shall be reduced by any forfeitures arising under Section 7.09.
(c) Employer Profit Sharing Contribution. Subject to the
limitations of Section 6.09, for each Plan Year that ends with or within the
Employees taxable Year, the Employer may contribute to the Trust from its
current or accumulated Net Profits an amount that the Board of Directors may
from time to time deem advisable.
5.02 Determination of Contribution. The Employer, from its records,
shall determine the amount of any contributions to be made by it to the Trust
under the terms of the Plan.
5.03 Time and Method of Payment of Contribution. The Employer may pay
its contribution for each Limitation Year in one (1) or more installments. The
Employees contribution for any Limitation Year shall be due on the last day of
its taxable year coinciding with or within which such Limitation Year ends, and,
unless paid before, shall be payable then or as soon thereafter as practicable,
but not later than the time prescribed by law for filing the Employees Federal
income tax return (including extensions thereof) for such taxable year, without
interest. If the contribution is on account of the Employees preceding taxable
year, the contribution shall be accompanied by the Employees signed statement to
the Trustee that payment is on account of such taxable year. Contributions may
be paid in cash. All contributions for each Limitation Year shall be deemed to
be paid as of the last day of such Limitation Year if not allocated before the
last day of the Limitation Year.
5.04 Return of Employer Contribution. Notwithstanding any provision
herein to the contrary, upon the Employer's request, a contribution which was
made upon a mistake of fact, or conditioned upon initial qualification of the
Plan, shall be returned to the Employer within one year after payment of the
contribution, or denial of the qualification, as the case may be.
5.05 Maximum Contribution Percentage. The Average Contribution
Percentage for Eligible Participants who are Highly Compensated Participants for
the Plan Year shall not exceed the relationship to the Average Actual
Contribution Percentage of all Non-Highly Compensated Participants for the Plan
Year of either of the following specified tests:
(a) Primary Test: The Average Actual Contribution Percentage
for Eligible Participants who are Highly Compensated Employees for the Plan Year
shall not exceed the Average Actual Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees for the Plan Year
multiplied by 1.25, or
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<PAGE> 20
(b) Alternative Test: The Average Actual Contribution Percentage
for Eligible Participants who are Highly Compensated Employees for the Plan Year
shall not exceed the Average Actual Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees for the Plan Year
multiplied by 2, provided that the Average Actual Contribution Percentage for
Eligible Participants who are Highly Compensated Employees does not exceed the
Average Actual Contribution Percentage for Eligible Participants who are
Non-Highly Compensated Employees by more than two (2) percentage points or such
lesser amount as the Secretary of the Treasury shall prescribe to prevent the
multiple use of this alternative limitation with respect to any Highly
Compensated Employee.
Definitions: For purposes of this Section 5.05, and for purposes of
this Plan, the following definitions shall be used:
(1) "Average Contribution Percentage" shall mean the
average (expressed as a percentage) of the Contribution Percentages of the
Eligible Participants in a group.
(2) "Actual Contribution Percentage" shall mean the
ratio (expressed as a percentage), of the sum of the Employee Non-Deductible
Contributions and Employer Matching Contributions under the Plan on behalf of
the Eligible Participant for the Plan Year to the Eligible Participant's
Compensation for the Plan Year.
(3) "Eligible Participant" shall mean any Employee of
the Employer who is otherwise authorized under the terms of the Plan to have
Non-Deductible Contributions or Employer Matching Contributions allocated to
his Account for the Plan Year.
(4) "Qualified Nonelective Contributions" shall mean
contributions (other than Matching Contributions) made by the Employer and
allocated to Participants' accounts that the Participant may not elect to
receive in cash until distributed from the plan; that are 100 percent vested
and nonforfeitable when made, and that are not distributable under the terms of
the plan to Participants or their beneficiaries earlier than the earlier of:
(i) separation from service, death, or disability of
the Participant;
(ii) attainment of the age 59 1/2 by the Participant;
(iii) termination of the Plan without establishment of a
successor plan;
(iv) the events specified in those of Section 13.10,
13.11, or 13.12 of this Plan adopted by the
Employer; or,
(v) for Plan Years beginning before January 1, 1989,
upon hardship of the Participant.
(c) Special Rules.
(1) For purposes of this Section 5.05, the Actual
Contribution Percentage for any Eligible Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to make
Non-Deductible Employee Contributions or to receive Employer Matching
Contributions, Qualified Non-Elective Contributions or have Employee Salary
Deferral Contributions allocated to his Account under two or more plans as
described in Section 401(a) of the Code or arrangements described in
Section 401(k) of the Code that are maintained by the Employer or an Affiliated
Employer shall be determined as if all such contributions and Employee Salary
Deferral Contributions were made under a single Plan.
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<PAGE> 21
(2) In the event that this Plan satisfies the requirements
of Section 410(b) of the Code only if aggregated with one or more other plans,
or if one or more other plans satisfy the requirements of Section 410(b) of the
Code only if aggregated with this Plan, then this Section 5.05 shall be applied
by determining the Actual Contribution Percentages of Eligible Participants as
if all such plans were a single plan.
(3) For purposes of determining the Actual Contribution
Percentage of an Eligible Participant who is a Highly Compensated Employee, the
Non-Deductible Employee Contributions, Employer Matching Contributions and
Compensation of such Participant shall include the Non-Deductible Employee
Contributions, Employer Matching Contributions and Compensation of Family
Members, and such Family Members shall be disregarded in determining the Actual
Contribution Percentage for Participants who are Non-Highly Compensated
Employees.
(4) The determination and treatment of the Actual
Contribution Percentage of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
5.06 Adjustment for Excessive Average Actual Contribution Percentage.
In the event that the Average Actual Contribution Percentage for the Highly
Compensated Participant group exceeds the Average Actual Contribution Percentage
for the Non-Highly Compensated Participant group pursuant to Section 5.05, the
Plan Administrator (on or before the fifteenth day of the third month following
the end of the Plan Year, but in no event later than the close of the following
Plan Year) shall direct the Trustee to distribute to the Highly Compensated
Participant group the amount of "Excess Aggregate Contributions" (and any income
allocable to such contributions) or, if forfeitable, forfeit such "Excess
Aggregate Contributions". Such distribution or Forfeiture shall be made on
behalf of the Highly Compensated Participant group in order of their Average
Actual Contribution Percentages beginning with the highest of such percentages.
Forfeitures of "Excess Aggregate Contributions" shall be treated in accordance
with Section 7.07. However, no such Forfeiture may be allocated to a Highly
Compensation Participant whose contributions are reduced pursuant to this
Section. If there is a loss allocable to such excess amount, the distribution
or Forfeiture shall in no event be less than the lesser of the Participant's
Account attributable to Employer Matching Contributions and the Participant's
Voluntary Contribution Account or the Employer's Matching Contributions and the
Participant's voluntary contributions for the Plan Year.
5.07 Distribution of Excess Contributions.
(a) In General. Notwithstanding any other provision of the Plan,
Excess Contributions and income allocable thereto shall be distributed, to
Participants on whose behalf such Excess Contributions were made, no later than
the end of the Plan Year next following the Plan Year for which they were made.
(b) Excess Contributions. For purposes of this Section 5.07,
"Excess Contributions" shall mean the amount described in Section 401(k)(8)(B)
of the Code.
(c) Determination of Income. The income allocable to Excess
Contributions shall be determined by multiplying income allocable to the
Participant's Employee Salary Deferral Contributions and Qualified Employer
Deferral Contributions for the Plan Year by a fraction, the numerator of which
is the Excess Contribution on behalf of the Participant for the preceding Plan
Year and denominator of which is the sum of the Participant's Account Balances
attributable to Employee Salary Deferral Contributions and Qualified Employer
Deferral Contributions on the last day of the preceding Plan Year.
(d) Maximum Distribution Amount. The Excess Contributions which
would otherwise be distributed to the Participant shall be adjusted for income;
shall be reduced, in accordance with regulations, by the amount of Excess
Deferrals distributed to the Participant; shall, if there is a loss allocable
to the Excess Contributions, in no event be less than the lesser of the
Participant's Account under the Plan or the Participant's Employee Salary
Deferral Contributions and Qualified Employer Deferral Contributions for the
Plan Year.
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<PAGE> 22
(e) Accounting for Excess Contribution. Amounts distributed
under this Section 5.07 shall first be treated as distributions from the
Participant's Employee Savings Plus Account and shall be treated as distributed
from the Qualified Employer Deferral Contribution Account only to the extent
such Excess Contributions exceed the balance in the Participant's Employee
Savings Plus Account.
(f) The amount of Excess Contributions to be distributed (or
recharacterized, if the Plan so permits), shall be reduced by Excess
Contributions previously distributed for the taxable year ending in the same
Plan Year and Excess Contributions to be distributed for a taxable year shall be
reduced by Excess Contributions previously distributed (or recharacterized, if
applicable) for the Plan Year beginning in such taxable year.
5.08 Distribution of Excess "Aggregate" Contributions.
(a) In General. Excess Aggregate Contributions and income
allocable thereto, attributed to Employer Matching Contributions or Employee
Non-Deductible Contributions, shall be forfeited, if otherwise forfeitable under
the terms of this Plan, or if not forfeitable, distributed to Participants on
whose behalf such Aggregate Excess Contributions were made, no later than the
end of the Plan Year next following the Plan Year for which they were made.
(b) Excess Aggregate Contributions. For purposes of this
Section 5.08, "Excess Aggregate Contributions" shall mean the amount described
in Section 401(m)(6)(B) of the Code.
(c) Determination of Income. The income allocable to Excess
Aggregate Contributions shall be determined by multiplying the income allocable
to the Participants Employee Non-Deductible Contributions and Employer Matching
Contributions for the Plan Year by a fraction, the numerator of which is the
Excess Aggregate Contributions on behalf of the Participant for the preceding
Plan Year and the denominator of which is the sum of the Participant's account
balances attributable to Employee Non-Deductible Contributions and Employer
Matching Contributions on the last day of the preceding Plan Year.
(d) Maximum Distribution Amount. The Excess Aggregate
Contributions to be distributed to a Participant shall be adjusted for income,
and, if there is a loss allocable to the Excess Aggregate Contribution, shall
in no event be less than the lesser of the Participant's Account under the Plan
or the Participant's Employee Non-Deductible Contributions and Employer Matching
Contributions for the Plan Year.
(e) Accounting for Excess Aggregate Contribution. Excess
Aggregate Contributions shall be distributed from the Participant's Employee
Non-Deductible Account, and forfeited if otherwise forfeitable under the terms
of the Plan (or, if not forfeitable), distributed from the Participant's
Employer Matching Contribution Account, in proportion to the Participant's
Employer Non-Deductible Contributions and Employer Matching Contributions for
the Plan Year.
(f) Allocation of Forfeitures under this Section 5.08. Amounts
forfeited by Highly Compensated Employees under this Section shall be applied
to reduce Employer Matching Contributions.
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ARTICLE VI - ALLOCATIONS
6.01 Participant's Accounts. For each Participant the Administrative
committee shall establish an:
(a) Employee Savings Plus Account
(b) Employer Matching Account
(c) Employer Discretionary Matching Account
(d) Employer Profit Sharing Account
(e) Employee Rollover Account
which will reflect the Participants share of contributions and the income,
losses, appreciation, depreciation, and forfeitures, if applicable,
attributable to all such Accounts. The establishment of separate Accounts shall
not require a separation of the Trust assets.
6.02 Valuation of Accounts. As of each Valuation Date, prior to
allocating contributions and forfeitures, if any, for the Plan Year, the
Administrative Committee shall:
(a) First, charge to the proper Accounts all payments or
distributions made from Participants' Accounts since the last preceding
Valuation Date that have not been charged previously, as provided in Section
6.03;
(b) Next, adjust the net credit balances in Participants'
Accounts upward or downward, on a time-weighted pro rata basis, according to the
net credit balances so that the totals of the net credit balances will equal
the then net worth of the Trust Fund, less an amount equal to the sum of
contributions, if any, paid to the Trustee for the period elapsed since the last
preceding Valuation Date.
The Suspense Account if any, shall not be adjusted to reflect any Trust earnings
or losses.
6.03 Charging of Payments and Distributions. As of each Valuation
Date, all payments and distributions made under the Plan since the last
preceding Valuation Date to or for the benefit of a Participant or his
Beneficiary will be charged to the proper Account of such Participant.
6.04 Method for Allocating and Crediting Employee and Employer
Contributions. Subject to the conditions and limitations of this Article VI, as
of each Valuation Date:
(a) The Employee Salary Deferral Contributions and Rollover
Contributions shall be credited to each Employee Savings Plus Account and
Employee Rollover Account, respectively.
(b) The Employer's Matching Contribution shall be credited to
each Participant's Employer Matching Account in an amount equal to fifty percent
(50%) of the first six percent (6%) of the Participant's Compensation deferred
as an Employee Salary Deferral Contribution.
(c) The Employer's Discretionary Matching Contribution shall be
allocated and credited to Employer Discretionary Matching Accounts of eligible
Participants entitled to share in Employer Discretionary Matching
Contributions. Any Employer Discretionary Matching Contributions shall be
allocated pro-rata to each Participant's Discretionary Matching Account, based
on the ratio of the Participant's Employee Salary Deferral for that Plan Year
to the total of all Employee Salary Deferral Contributions of all Participants
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<PAGE> 24
for that Plan Year, subject to the first five percent (5%) of the Participant's
Compensation deferred as an Employee Salary Deferral Contribution for that Plan
Year.
The Employer Discretionary Matching Contributions for any Plan Year will
be allocated among and credited to the Employer Discretionary Matching Accounts
of Participants who during the Limitation Year completed at least 1,000 Hours of
Service, are in the employ (includes Employees granted a Leave of Absence) of
the Employer on the last day of the Plan Year, and who made an Employee Deferral
Contribution during the Plan Year. Provided, however, if the Participant
terminated employment with the Employer during the Plan Year due to death,
disability or retirement, his Employer Discretionary Matching Account shall
receive an allocable share of any Employer Discretionary Contribution for the
Plan Year, regardless of his number of Hours of Service performed during the
Plan Year.
(d) The Employer's Profit Sharing Contribution plus any
Forfeitures, shall be allocated among and credited to Employer Profit Sharing
Accounts of eligible Participants who during the Limitation Year completed at
least 1,000 Hours of Service and are in the employ (includes Employees granted
a Leave of Absence) of the Employer on the last day of the Plan Year. Any
Profit Sharing Contribution shall be allocated pro-rata to each Participant,
based on the ratio of the Participant's Compensation to the Compensation of
all Participants eligible for a Profit Sharing Contribution.
Separate Accounts - Breaks in Service. If a Participant re-enters the
Plan subsequent to his having incurred 5 consecutive 1-Year Breaks in Service,
the Administrative Committee shall maintain, or cause to be maintained, a
separate Employer Profit Sharing Contribution Account for the Participant's
pre-Break in Service Accrued Benefit derived from Employer Profit Sharing
Contributions and Forfeitures, and a separate Employer Profit Sharing
Contribution Account for his post-Break in Service Accrued Benefit derived from
Employer Profit Sharing Contributions and Forfeitures unless the Participant's
entire Accrued Benefit under the Plan is one hundred percent (100%)
nonforfeitable.
6.05 Suspense Account. The excess amount allocated to each Participant
shall by reason of Section 6.09 be held in this Account and not distributed to a
Participant but shall be reapplied to reduce further Employer Matching
Contributions or Employer Profit Sharing Contributions under the Plan for the
next Limitation Year (and for each succeeding Limitation Year, if necessary) for
such Participant, so that in each such year the sum of actual Employer Matching
Contributions or Employer Profit Sharing Contributions which would otherwise be
allocated to each Participant's Employer Matching Account or Employer Profit
Sharing Account will be made from this Suspense Account. In the event the
Participant is not employed by the Employer at the end of any Limitation Year,
then the excess amounts shall not be distributed to the Participant but shall be
reapplied to reduce future such Employer Matching Contributions for all
remaining Participants in the Limitation Year and each succeeding year, if
necessary.
6.06 Employer Contributions Considered Made on Last Day of Plan Year.
For purposes of this Article VI, the Employer's contribution which remains
unallocated on the last day of any Plan Year will be considered to have been
made on the last day of that year, regardless of when paid to the Trustee.
6.07 Accrual of Benefits. The Administrative Committee shall determine
a Participant's Accrued Benefit on the basis of the Limitation Year. The
Administrative Committee shall only take into account the Compensation earned
during that part of the Limitation Year the Employee is actually a Participant
in the Plan.
6.08 Equitable Allocations. If the Administrative Committee determines
in making a valuation, an allocation, or by adding interest to any Account under
the provisions of the Plan, that the strict application of the provisions of the
Plan will not produce an equitable and nondiscriminatory allocation among the
Accounts of the Participants, it may modify any procedure specified in the Plan
for the purpose of achieving an equitable and nondiscriminatory allocation in
accordance with the general concepts of the Plan; provided, however, that any
such modification shall not reduce any Participant's Accrued Benefits and shall
be consistent with the provisions
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of Section 401(a)(4) of the Code. Should the Administrative Committee in good
faith determine that certain expenses of administration paid by the Trustee
during the Plan Year under consideration are not general, ordinary, and usual
and should not equitably be borne by all Participants, but should be borne only
by one or more Participants, for whom or because of whom such specific expenses
were incurred, the net earnings and adjustments in value of the Accounts shall
be increased by the amounts of such expenses and the Administrative Committee
shall make suitable adjustments by debiting the particular Account or Accounts
of such one or more Participants, Former Participants, or Beneficiaries;
provided, however, that any such adjustment must be nondiscriminatory and
consistent with the provisions of Section 401(a) of the Code.
6.09 Limitation on Annual Additions. Notwithstanding any other
provision of the Plan, the Annual Addition to a Participant's Account for any
Limitation Year may not exceed in any Limitation Year an amount equal to the
lesser of the:
(a) Defined Contribution Dollar Limitation (which means the
greater of $30,000 (or such larger amount as the Commissioner of Internal
Revenue may prescribe) or 25% of the Defined Benefit Dollar Limitation set
forth in Code Section 415(b)(1) as in effect for the Limitation Year); or
(b) Twenty-five percent (25%) of the Compensation (within the
meaning of Code Section 415(c)(3)). However, the compensation limitation in
this subsection (h) shall not apply to (a) any contributions for medical
benefits (within the meaning of Code Section 419(A)(f)(2)) after separation from
service which is otherwise treated as an Annual Addition, or (b) any amount
otherwise treated as an Annual Addition under Code Section 415(l)(1).
Special Rules for Plans Subject to Overall Limitations Under Code
Section 415(e).
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(a) Recomputation Not Required. The Annual Addition for any
Limitation Year beginning prior to January 1, 1987 shall not be recomputed to
treat all Employee Contributions as an Annual Addition.
(b) Adjustment of Defined Contribution Plan Fraction. If the
Plan satisfied the applicable requirements of Section 415 of the Code as in
effect for all Limitation Years beginning before January 1, 1987, an amount
shall be subtracted from the numerator of the Defined Contribution Plan Fraction
(not exceeding such numerator) as prescribed by the Secretary of the Treasury
so that the sum of the Defined Benefit Plan Fraction and Defined Contribution
Plan Fraction computed under Section 415(e)(1) of the Code (as revised by this
Section 6.09) does not exceed 1.0 for such Limitation Year.
If the Participant presently participates, or has ever participated
under a Defined Benefit Plan maintained by the Employer, then the sum of the
Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction for the
Participant for that Limitation Year shall not exceed 1.0. If in any Limitation
Year the sum of the Defined Benefit Plan Fraction and the Defined Contribution
Plan Fraction on behalf of a Participant does exceed 1.0, then the Employer
shall reduce its contribution on behalf of such Participant to the Defined
Contribution Plan to the extent necessary to prevent the sum of the Defined
Contribution Plan Fraction and the Defined Benefit Plan fraction from exceeding
1.0.
Notwithstanding the above, if the Participant was a Participant as of
the first day of the first Limitation Year beginning after December 31, 1986, in
one or more defined benefit plans maintained by the Employer which were in
existence on May 6, 1986, the denominator of this fraction will not be less than
125 percent of the sum of the annual benefits under such plans which the
Participant had accrued as of the end of the close of die last Limitation Year
beginning before January 1, 1987, disregarding any changes in the terms and
conditions of the plan after May 5, 1986. The preceding sentence applies only
if the defined benefit plans individually and in the aggregate satisfied the
requirements of Code Section 415 for all Limitation Years beginning before
January 1, 1987.
23
<PAGE> 26
For purposes of this Section, the following terms shall mean:
-------------------------------------------------------------
(a) "Defined Benefit Plan" A retirement plan which does not
provide for individual accounts for Employer contributions. The Administrative
Committee shall treat all defined benefit plans (whether or not terminated)
maintained by the Employer as a single plan and the Administrative Committee
shall treat all defined contribution plans (whether or not terminated)
maintained by the Employer as a single plan.
(b) "Defined Benefit Plan Fraction"
projected annual benefit of the Participant
under the defined benefit plan(s) (divided by)
----------------------------------------------
The lesser of (i) 125% of the dollar
limitation in effect under Code Section 415(b)(1)(A)
for the Limitation Year, or (ii) 140% of the
Participant's average Compensation for his
highest paid three (3) consecutive Years of Service
If the Employee was a Participant in one or more defined benefit plans
maintained by the Employer which were in existence on July 1, 1982, the
denominator of this fraction will not be less than 125% of the sum of the annual
benefits under such plans which the Employee had accrued as of the end of the
1982 Limitation Year (the last Limitation Year beginning before January 1,
1983). The preceding sentence only applies if the defined benefit plans
individually and in the aggregate satisfied the requirements of Code Section 415
as in effect at the end of the 1982 limitation Year.
(c) "Defined Contribution Plan Fraction"
the sum of the Annual Additions to the Participant's
Account under the defined contribution plan(s)
as of the close of the Limitation Year (divided by)
---------------------------------------------------
the sum of the lesser of the following amounts
determined for the Limitation Year and for each
prior Year of Service with the Employer: (i) 125%
of the dollar limitation in effect under Code
Section 415(c)(1)(A) for the Limitation Year (determined
without regard to the special dollar limitations
for employee stock ownership plans), or (ii) 35%
of the Participant's Compensation for the
Limitation Year
If the Employee was a Participant in one or more defined contribution
plans maintained by the Employer which were in existence on July 1, 1982, the
Administrative Committee will redetermine the Defined Contribution Plan Fraction
and the Defined Benefit Plan Fraction, as of the end of the 1982 limitation Year
(the last Limitation Year beginning before January 1, 1983), under this Section.
If the sum of the redetermined fractions exceeds 1.0, the Administrative
Committee will subtract permanently from the numerator of this fraction an
amount equal to the product of (1) the excess of the sum of the fractions over
1.0, times (2) the denominator of this fraction. The Administrative Committee
also may use any transitional rules (see Section 6.09(d) below) provided by law
which are applicable in computing the Participant's Defined Contribution Plan
Fraction.
The Administrative Committee will make a similar adjustment to the
numerator of this fraction if the sum of the fractions exceeds 1.0, as of the
end of the 1983 Limitation Year (the last Limitation Year beginning before
January 1, 1984), because (a) the Plan is Top-Heavy in the first Plan Year
beginning after December 31,
24
<PAGE> 27
1983, and the Administrative Committee must apply Article XVII or (b) the terms
of one or more July 1, 1982, plans required Annual Additions or accruals during
the 1983 Limitation Year in excess of the Code Section 415 limitations as
amended by the Tax Equity and Fiscal Responsibility Act of 1982.
Notwithstanding the above, if the Employee was a Participant as of the
first day of the first Limitation Year beginning after December 31, 1986, in one
or more defined contribution plans maintained by the Employer which were in
existence on May 6, 1986, the numerator of this fraction will be adjusted if the
sum of this fraction and the Defined Benefit Fraction would otherwise exceed 1.0
under the terms of this Plan. Under the adjustment, an amount equal to the
product of (1) the excess of the sum of the fractions over 1.0 times (2) the
denominator of this fraction, will be permanently subtracted from the numerator
of this fraction. The adjustment is calculated using the fractions as they
would be computed as of the end of the last Limitation Year beginning before
January 1, 1987, and disregarding any changes in the terms and conditions of the
Plan made after May 5, 1986, but using the Code Section 415 limitation
applicable to the first Limitation Year beginning on or after January 1, 1987.
The preceding sentence applies only if the defined benefit plans individually
and in the aggregate satisfied the requirements of Code Section 415 for all
Limitation Years beginning before January 1, 1987.
(d) "Projected Annual Benefit. The annual retirement benefit
(adjusted to an actuarial equivalent straight life annuity if the plan expresses
such benefit in a form other than a straight life annuity or qualified joint and
survivor annuity) of the Participant under the terms of the Defined Benefit Plan
on the assumptions he continues employment until his normal retirement age as
stated in the Defined Benefit Plan, his compensation continues at the same rate
as in effect in the Limitation Year under consideration until the date of his
normal retirement age and all other relevant factors used to determine benefits
under the Defined Benefit Plan remain constant as of the current Limitation
Year for all future Limitation Years.
(e) "Compensation" - The Participant's earned income, wages,
salaries, fees for professional service and other amounts received for personal
services actually rendered in the course of employment with the Employer
maintaining the Plan (including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of profits, commissions
on insurance premiums, tips and bonuses). The term "Compensation" shall not
include:
(1) Employer contributions to a plan of deferred
compensation to the extent the contributions are not included in the gross
income of the Employee for the taxable year in which contributed, on behalf of
an Employee to a Simplified Employee Pension Plan described in Code Sec. 408(k)
to the extent such contributions are deductible by the Employee under Code
Sec. 219(b)(7), and any distributions from a plan of deferred compensation,
regardless of whether such amounts are includable in the gross income of the
Employee when distributed.
(2) 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.
(3) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option.
(4) 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 includable in the gross income of the Employee), or
contributions made by an Employer (whether or not under a salary reduction
agreement) towards the purchase of an annuity contract described in Code Sec.
403(b) (whether or not the contributions are excludable from the gross income
of the Employee).
25
<PAGE> 28
For purposes of applying the limitations of Section 6.04 through this
Section 6.09, amounts included as Compensation are those amounts actually paid
to a Participant or includable in his gross income within the limitation Year.
(f) "Employer" - The Employer that adopts this Plan. In the
case of a group of employers which constitutes a controlled group of
corporations (as defined in Code Sec. 414(b) as modified by Code Sec. 415(h)),
which constitutes trades or businesses (whether or not incorporated) which are
under common control (as defined in Code Sec. 414(c) as modified by Code Sec.
415(h)), which constitutes an "affiliated service" group within the meaning of
Code Sec 414(m), the Committee shall consider all such employers as a single
employer for purposes of applying the limitations of this Article 6.
(g) "Limitation Year" - For purposes of this Section 6.09,
"Limitation Year" shall mean the limitation year specified in the Plan, or if
none is specified, the Calendar Year.
(h) "Effective Date of Section 6.09 Provisions" - The provisions
of this Section 6.09 shall be effective for Limitation Years beginning after
December 31, 1986.
(i) The preceding Sections of this Article VI are intended to
comply with the provisions of Code Section 415 and the Regulations thereunder.
Code Section 415 and the relevant Regulations are hereby incorporated by
reference.
26
<PAGE> 29
ARTICLE VII - TERMINATION OF SERVICE-PARTICIPANT VESTING
7.01 Normal Retirement. A Participant's Normal Retirement Age under
the Plan is age sixty-five (65). At such time he shall be 100% vested in, and
shall have a nonforfeitable right to his Accrued Benefit. A Participant who
remains in the employ of the Employer after attaining Normal Retirement Age
shall continue to participate in Employer contributions until the date of his
actual retirement. Upon termination of a Participant's employment for any
reason after attaining Normal Retirement Age, the Administrative Committee shall
direct the Trustee to make payment of the full value of the Participant's
Accrued Benefit to him at such times and in such manner as provided in Article
VIII hereof. The value of the Participant's Accrued Benefit shall be determined
as of the Valuation Date which coincides with, or next follows the date of the
Participant's employment termination.
7.02 Early Retirement. A Participant may retire prior to his Normal
Retirement Age upon the completion of (a) ten (10) or more Years of Service and
(b) the attainment of age fifty-five (55). Such retirement may begin on or
after the beginning of the Plan Year following the completion of requirements
(a) and (b). Upon such Early Retirement, the Administrative Committee shall
direct the Trustee to make payment of the non-forfeitable value of the
Participant's vested Accrued Benefit to him at such times and in such manner as
provided in Article VIII hereof. The value of the Participant's Accrued Benefit
shall be determined as of the Valuation Date which coincides with, or, which
next follows the date of the Participant's employment termination.
7.03 Disability. A Participant who becomes permanently disabled shall
be 100% vested in and shall have a nonforfeitable right to his Accrued Benefit
paid to him at such time and in such manner as provided in Article VIII hereof,
The value of a disabled Participant's Accrued Benefit shall be determined as of
the Valuation Date which coincides with, or which next follows the date of the
Participant's termination of employment due to disability. A Participant shall
be considered "disabled" when the Administrative Committee determines the
Participant is not able to engage in any gainful activity by reason of any
medically determinable physical or mental impairment, which the Administrative
Committee expects to result in death or which the Administrative Committee
expects to last for a continuous period of not less than twelve (12) months.
Furthermore, the disabling condition must exist for a period of at least six (6)
months before the Administrative Committee makes a determination of disability,
and the Participant must be eligible for and must actually receive disability
benefits under the Social Security Act. The Administrative Committee shall
apply the provisions of this Section 7.03 in a non-discriminatory, consistent
and uniform manner.
7.04 Death. Upon the death of a Participant, his Accrued Benefit shall
be 100% vested, and his Surviving Spouse, if he is married, or in the event
there is no surviving Spouse, or if the Spouse has waived, in writing, the right
to such death benefits, his other named Beneficiary shall be entitled to receive
the full value of the deceased Participant's Accrued Benefit (reduced by any
security interest held by the Plan by reason of a loan outstanding to such
Participant) determined as of the Valuation Date which coincides with, or which
next follows the date of such Participant's death. The death benefit so
provided shall be payable at such time and ha such manner as provided in Article
VIII hereof In the event the Spouse completes a valid Waiver, and a beneficiary
is named other than the Spouse, the Spouse must consent to and acknowledge the
specific non-spouse beneficiary. The nonspouse beneficiary so named may not be
subsequently changed without the Spouse's written consent. The number of
revocations of prior beneficiary designations made by the Participant and so
consented to by the Spouse shall not be limited.
7.05 Distribution to Certain Terminated Participants. A Participant
who has satisfied the service requirements for Early Retirement under 7.02(a)
but who separates from service with any nonforfeitable right to an Accrued
Benefit prior to satisfying the age requirement under 7.02(b) for such Early
Retirement, shall be entitled, upon satisfaction of such age requirement, to
receive a distribution of his Accrued Benefit as if he were retiring under Early
Retirement.
27
<PAGE> 30
7.06 No Distributions Prior to Separation From Service. Except as
provided in Sections 8.01, 8.09, 13.10, 13.11 and 13.12 a Participant shall
receive no distribution from the Plan or Trust prior to separation from Service.
7.07 Vesting on termination of Employment - If a Participant shall
terminate employment for reasons other than death, disability or retirement, his
Accounts shall be vested as follows:
(a) Employee Savings Plus Account and Employee Rollover Account -
shall be 100% Vested and Non-forfeitable at all times.
<TABLE>
(b) Employer Matching Accounts - the amount of this Account
funded by the Employer shall be vested based on the following schedule:
<CAPTION>
Years of Service Vesting Percent
--------------------------------------------
<S> <C>
Less than 1 year 0%
1 year 20%
2 year 40%
3 year 60%
4 year 80%
5 years or more 100%
</TABLE>
<TABLE>
(c) Employer Profit Sharing Account - the amount of this Account
funded by the Employer shall be vested based on the following schedule:
<CAPTION>
Years of Service Vesting Percent
--------------------------------------------
<S> <C>
Less than 5 years 0%
5 years or more 100%
</TABLE>
Provided, however, any Employer Matching Contributions not already 100% vested,
will be 100% vested immediately, if they are Qualified Employer Deferral
Contributions that are taken into account for purposes of meeting the Actual
Deferral Percentage test described in Section 4.05.
7.08 Years of Service for Testing - For purposes of determining his
vested percentage an Employee shall be credited with one Year of Service as
follows:
(a) Years of Service prior to September 1, 1990, shall mean all
full years of continuous employment.
(b) Years of Service on or after September 1, 1990, shall mean
all Plan Years during which a Participant completed 1,000 or more Hours of
Service with the Employer or any Affiliated Employer of the Employer provided
that the following special provisions shall apply:
(1) Except as otherwise provided in paragraph (2)
immediately following, if an Employee who has a Break in Service after September
1, 1990 shall reenter service following such break, Years of Service of such
Employee prior to such break shall not be taken into account unless and until
he shall have a Year of Service following such recommencement of service; and
(2) Notwithstanding the provisions of paragraph (1)
immediately preceding, with respect to an Employee who shall have a Break in
Service after September 1, 1990 and before he shall have any Vested Interest
in his Accrued Benefit under the Plan, all such Years of Service prior to such
break shall be
28
<PAGE> 31
disregarded if the number of consecutive Plan Years in which the Break in
Service continues, equals or exceeds the greater of (a) five (5) consecutive one
Year Breaks in Service, or (b) the aggregate number of Years of Service earned
before the consecutive Breaks in Service. For the purpose of determining Years
of Service prior to such break, there shall be excluded any Years of Service
previously disregarded under this paragraph (2).
(3) For the initial Plan Year (September 1, 1990 to March
31, 1991) an Employee shall receive a Year of Service for vesting purposes
provided he has completed at least 583 Hours of Service during that period.
(c) Service of any Employee who is a leased Employee to any
Employer aggregated under Section 414(b), (c), or (m) of the Internal Revenue
Code must be credited for vesting purposes whether or not such individual is
eligible to participate in the Plan.
(d) If a Participant returns to work before incurring a Break
in Service, he win continue to vest starting at the point in the vesting
schedule where he left employment in both his pre-separation and post-separation
accrued benefit.
7.09 Forfeiture. If a Participant terminates employment, and is not
100% vested in his Accrued Benefit his; non-vested Accounts shall be held until
the earlier of: (1) the Anniversary Date coincident with or next following the
distribution to the Participant of his entire vested portion of his Account, or
(2) the last day of the Plan Year in which the Participant incurs five (5)
consecutive 1-Year Breaks in Service. At such time, the nonvested amount
(Forfeiture) in the Employer Matching Account WILL be used to reduce the
Employer Matching Contribution. Any non-vested amount in the Employer Profit
Sharing Account shall become a Forfeiture and shall be reallocated to remaining
eligible Participants' Profit Sharing Accounts.
If the present value of the Participant's vested Accrued Benefit derived
from Employer and Employee contributions is $3,500 or less, a lump sum cash
payment will be made to the Participant, within a reasonable time after the end
of the Plan Year coinciding with or immediately following the Participant's
termination of employment. However, if the present value of the Participant's
vested Accrued Benefit derived from Employer and Employee contributions is more
than $3,500, the written consent of the Participant is necessary before such
lump sum cash payment can be made.
However, if any former Participant shall be re-employed by the Employer
before he has incurred five (5) consecutive 1-Year Breaks-in-Service, and such
former Participant had received a distribution of all or part of his vested
interest prior to his reemployment his forfeited Account balance shall be
reinstated only if he repays the full amount distributed to him from his
Employer funded Accounts. Provided, however, such repayment shall not be
required before the earlier of a period of (a) five consecutive 1-year
Breaks-in-Service or (b) five (5) years after the former Participant is rehired.
In the event the former Participant does repay the full amount distributed to
him, the undistributed portion of the Participant's Account must be restored in
full unadjusted by any gains or losses occurring subsequent to the Valuation
Date preceding his termination. The amount necessary to restore such previously
forfeited non-vested amounts shall be provided, in order, from the following
sources: (a) other non-vested Accounts currently being forfeited, (b) the
Employees current contribution and, to the extent necessary, (c) an additional
Employer contribution.
If a distribution is made at a time when a Participant is less than 100%
vested in his Account balances derived from Employer Contributions, a Separate
Account shall be established for the Participant's interest in the Plan as of
the time of distribution and at any relevant time the Participant's
nonforfeitable portion of Employer derived Account shall be equal to an amount
("X') determined by the formula:
X = P [AB + (R*D)] - (R*D)
29
<PAGE> 32
For the purposes of applying the formula: P is the nonforfeitable
percentage at the relevant time; AB is the "Account balances" at the relevant
time; D is the amount of the distribution; and R is the ratio of the "Account
balances" at the relevant time to the "Account balances" after distribution.
7.10 No Divestment for Cause. Under no circumstances shall a
Participant be divested of any vested benefit for any cause.
30
<PAGE> 33
ARTICLE VIII - TIME AND METHOD OF PAYMENT OF BENEFITS
8.01 Time of Payment. Subject to the exceptions found in Sections
8.09, 8.10, 13.10, 13.11 and 13.12, no distribution of a Participant's Savings
Plus Account (comprised of Employee Salary Deferral Contributions) shall occur
prior to age 59 1/2 "except for Retirement, Death, Disability, or termination
of employment.
(a) Retirement. In the event of Normal or Early Retirement,
payment of a Participant's Accrued Benefit shall commence not later than sixty
(60) days after the Valuation Date the Participant becomes eligible to receive
benefits, unless the Participant otherwise elects.
(b) Death or Disability. In the event of death or permanent
disability, payment of the Participant's Accrued Benefit shall commence no later
than sixty (60) days after the Valuation Date (unless the Participant or his
Beneficiary otherwise elects) following receipt by the Administrative Committee
of proof of death, or after the determination by the Administrative Committee
that permanent disability exists.
(c) Other Termination of Service. Upon a Participant's
termination of employment for any reason other than retirement, permanent
disability or death, the Trustee shall continue to hold the Participant's vested
Accrued Benefit in Trust until the Valuation Date (March 31 or September 30)
which coincides with, or immediately follows the date on which the Participant
terminates employment, with payment of his vested Accrued Benefit to commence
no later than sixty (60) days after such date, unless the Participant otherwise
elects. If the Participant dies or becomes permanently disabled after
terminating employment but prior to receiving his Accrued Benefit the
Administrative Committee, upon confirmation of the death or disability, shall
direct the Trustee to make payment of the Accrued Benefit to the Participant
(or to his Beneficiary if the Participant is deceased) in accordance with the
provisions of Section 8.02 within sixty (60) days after the Valuation Date,
following receipt by the Administrative Committee of proof of death, or after
the determination by the Administrative Committee that permanent disability
cost.
(d) Time of Payment of Benefits. Payment of benefits must begin
no later than 60 days after the close of the Plan Year in which the latest of
the following events occur:
(1) the Participant attains age 65 or earlier Normal
Retirement Age specified under the Plan,
(2) the termination of the Participant's service with the
Employer,
(3) the 10th anniversary of the year in which the
Participant commenced participation in the Plan (the 5th anniversary of the
year in which the Participant commenced participation in the Plan, in the case
of a Participant who commences participation in the Plan within 5 years before
attaining Normal Retirement Age under the Plan), or
(4) a later date elected by the Participant.
(e) Distributions. Notwithstanding subsection (d) immediately
preceding, distribution to a Participant must commence no later than the first
day of April following the calendar year in which the Participant attains age
70 1/2, regardless as to whether he has retired.
(f) Death Distribution Provisions. Upon the death of the
Participant, the following distribution provisions shall take effect:
31
<PAGE> 34
(1) If the Participant dies after distribution of his or
her interest has commenced, the remaining portion of such interest win continue
to be distributed at least as rapidly as under the method of distribution being
used prior to the Participant's death.
(2) If the Participant dies before distribution of his or
her interest commences, the Participant's entire interest will be distributed
no later than five (5) years after the Participant's death except to the extent
that an election is made to receive distributions in accordance with (i) or
(ii) below:
(i) If any portion of the Participant's interest is
payable to a designated Beneficiary, distributions may be made in
substantially equal installments over the life or life expectancy of
the designated Beneficiary commencing no later than one (1) year after
the Participant's death;
(ii) If the designated Beneficiary is the Participant's
surviving Spouse, the date distributions are required to begin in
accordance with (i) above shall not be earlier than the date on which
the Participant would have attained age 70 1/2, and, if the Spouse dies
before payments begin, subsequent distributions shall be made as if the
Spouse had been the Participant.
(3) For purposes of 8.01(f)(2) above, payments will be
calculated by use of the return multiples specified in section 1.72-9 of the
regulations. Life expectancy of a surviving Spouse may be recalculated
annually; however, in the case of any other designated Beneficiary, such life
expectancy will be calculated at the time payment first commences without
further recalculation.
(4) For Purposes of (1), (2) and (3) above, any amount paid
to a child of the Participant will be treated as if it had been paid to the
surviving Spouse if the amount becomes payable to the surviving Spouse when
the child reaches the age of majority.
(g) Transitional Rule. Notwithstanding the above distribution
requirements of Section 8.01, distribution on behalf of any Employee, including
a Five Percent (5%) Owner, may be made in accordance with all of the following
requirements (regardless of when such distribution commences):
(1) The distribution by the Plan and Trust is one which
would not have disqualified such Trust under section 401(a)(9) of the Code as
in effect prior to amendment by the Deficit Reduction Act of 1984.
(2) The distribution is in accordance with a method of
distribution designated by the Participant whose interest in the Trust is being
distributed or, if the Participant is deceased, by a Beneficiary of such
Participant.
(3) Such designation was in writing, was signed by the
Participant or the Beneficiary and was made before January 1, 1984.
(4) The Participant had accrued a benefit under the plan
as of December 31, 1983.
(5) The method of distribution designated by the Participant
or the Beneficiary specifies the time at which distribution will commence, the
period over which distributions will be made and in the case of any distribution
upon the Participant's death, the Beneficiaries of the Participant listed in
order of priority.
32
<PAGE> 35
Unless paid to a surviving Spouse under a Qualified Joint and Survivor
Annuity, the method of distribution selected must assure that more than fifty
percent (50%) of the present value of the amount available for distribution is
paid within the life expectancy of the Participant.
A distribution upon death will not be covered by this Transitional Rule
unless the information in the designation contains the required information
described above, with respect to the distributions to be made upon the death of
the Employee.
For any distribution which commences before January 1, 1984, but
continues after December 31, 1983, the Participant, or the Beneficiary, to whom
such distribution is being made will be presumed to have designated the method
of distribution under which the distribution is being made if the method of
distribution was specified in writing and the distribution satisfies the
requirements in subsections (1) and (5) above.
If a designation is revoked, any subsequent distribution must satisfy
the requirements of section 401(a)(9) of the Code as amended. Any changes in
the designation will be considered to be a revocation of the designation.
However, the mere substitution or addition of another beneficiary (one not
named in the designation) under the designation will not be considered to be a
revocation of the designation, so long as such substitution or addition does
not alter the period over which distributions are to be made under the
designation, directly or indirectly (for example, by altering the relevant
measuring life).
8.02 Method of Payment. After all required accounting adjustments,
the Trustee, in accordance with the direction of the Administrative Committee,
shall make payment of the Participant's Accrued Benefit in a lump sum, or at
the request of a Participant, in substantially equal monthly, quarterly, or
annual installments over a fixed reasonable period of time, or by the purchase
of a term certain nontransferable annuity.
Limitation on Settlement Options. The Distributions, if not made in a
lump sum, may only be made over one of the following periods (or a combination
thereof):
(a) a period certain not extending beyond the life expectancy
of the Participant, or
(b) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a designated beneficiary.
If the Participant's entire interest is to be distributed in other than
a lump sum, then the amount to be distributed each year must be at least an
amount equal to the quotient obtained by dividing the Participant's entire
interest by the life expectancy of the Participant or joint and last survivor
expectancy of the Participant and designated beneficiary. Life expectancy and
joint and last survivor expectancy are computed by the use of the return
multiples contained in section 1.72-9 of the Income Tax Regulations. For
purposes of this computation, a Participant's life expectancy may be
recalculated no more frequently than annually; however, the life expectancy of
a nonspouse beneficiary may not be recalculated. If the Participant's spouse
is not the designated beneficiary, the method of distribution selected must
assure that more than fifty percent (50%) of the present value of the amount
available for distribution is paid within the life expectancy of the
Participant.
A Participant may not elect an optional form of payment providing
monthly benefits to a contingent annuitant who is other than his Spouse, or to
a Beneficiary, unless the actuarial value of the payments expected to be made
to the Participant at the time the payment is to commence is more than fifty
percent (50%) of the actuarial value of the total payments expected to be made
under such optional form. In no event, however, can the amount of each monthly
payment to a contingent annuitant or Beneficiary exceed that payable to the
Participant. To the extent that a Participant's Accounts is invested in the
State Street Boston Corporation Stock Fund, he may elect to receive his
distribution in shares of common stock of State Street Boston Corporation.
33
<PAGE> 36
8.03 Deferral of Payments. Should a Participant's Accounts be
retained in the Trust after the date on which his participation ends, the
Accounts may continue to be treated as a part of the Trust Fund. The Accounts
win be credited (or debited) with their share of the net income (or loss)
attributable to the investments of such Accounts. Notwithstanding the
foregoing, the Administrative Committee at its sole discretion may direct that
the Former Participant's Accounts be segregated and placed in insured
interest-bearing savings accounts or time deposit(s) (or a combination of
both), or invested in a single premium deferred nontransferable annuity. Once
Accounts are segregated, they will no longer share in income, increases, or
decreases, if any, of the Trust. A segregated account alone shall share in any
income it earns, and it alone shall bear any expense or loss it incurs.
8.04 Limitation on Distributions. Except as otherwise provided in
this Article VIII, a Participant, Former Participant, or Beneficiary is not
entitled to any payment, withdrawal, or distribution under the Plan.
8.05 Payment in the Event of Legal Disability. Payments to any
Participant, Former Participant, or Beneficiary shall be made to the recipient
entitled thereto in person or upon his personal receipt, in form satisfactory
to the Administrative Committee, except when the recipient entitled thereto
shall be under a legal disability, or, in the sole judgment of the
Administrative Committee, shall otherwise be unable to apply such payment in
furtherance of his own interest and advantage. The Administrative Committee
may, in such event, at its sole discretion, direct all or any portion of such
payments to be made in any one or more of the following ways:
(a) To such person directly;
(b) To the guardian of his person or his estate;
(c) To a relative or friend of such person to be expended for
his benefit; or
(d) To a custodian for such person under any Uniform Gifts to
Minors Act.
The decision of the Administrative Committee, in each case, will be
final, binding, and conclusive upon all persons ever interested hereunder. The
Administrative Committee shall not be obliged to see to the proper application
or expenditure of any payment so made. Any payment made pursuant to the power
herein conferred upon the Administrative Committee shall operate as a complete
discharge of all obligations of the Trustee and the Administrative Committee,
to the extent of the distributions so made.
8.06 Accounts Charged. The Administrative Committee shall charge all
distributions made to a Participant or to his Beneficiary from his Accounts
against the Accounts of the Participant when made.
8.07 Payments Only from Trust Fund. All benefits of the Plan shall be
payable solely from the Trust Fund and neither the Employer, Administrative
Committee, nor Trustee shall have any liability or responsibility therefor
except as expressly provided herein.
8.08 Participant Benefit Payment Election. The Administrative
Committee may permit a Participant who terminates employment after attaining
Normal Retirement Age to elect any of the forms of payment of retirement
benefits prescribed by Section 8.02. Upon the Participant's request, the
Administrative Committee shall furnish the Participant an appropriate form for
the using of the election. The Participant shall make an election under this
Section 8.08 by filing the election form with the Plan Administrator on or
before the last day of the Plan Year following which the Trustee would
otherwise commence to pay a Participant's vested Accrued Benefit in accordance
with the requirements of Section 8.01. The Participant shall not make any
election for an optional form of retirement benefit under which the present
value of the retirement benefits payable solely to the Participant will not be
greater than fifty percent (50%) of the present value of the total retirement
benefits payable to the Participant and hi Beneficiaries. The Administrative
Committee shall determine "present value"
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as of the date the Trustee is to commence payment of the retirement benefits
to the Participant. The Administrative Committee shall charge the electing
Participant's Account for any expense incurred in making the "present value"
determination. If the Administrative Committee determines not to permit the
Participant's election, it shall direct the Trustee in writing to make
distribution of the Participant's Vested Accrued Benefit to him in accordance
with Section 8.02. The Administrative Committee shall apply the Provisions of
this Section 8.08 in a nondiscriminatory and uniform manner. Should the
Administrative Committee reject the Participant's claim in whole or in part the
appeal procedures in Section 11.09 shall apply.
8.09 Hardship Withdrawals.
(a) Definition of Hardship. A Participant shall be entitled to a
Hardship Withdrawal from his separate Employee Saving Plus Account established
for Employee Salary Deferral Contributions if:
(1) There is an immediate and heavy financial need, and
(2) Other resources are not reasonably available to meet
the need, and
With regard to satisfaction of requirement 8.09(a)(1) above, the
following expenses am: deemed to constitute immediate and heavy financial
needs:
(i) Medical expenses described in Code Section 213(d)
which are incurred by the Employee, his spouse or any dependents, and
which are not covered by insurance or expenses necessary for these
persons to obtain medical care;
(ii) Purchase (excluding mortgage payments) of a
principal residence for the Employee;
(iii) Payment of tuition for the next twelve months for
post-secondary education for the Employee, his spouse or children; and
(iv) Payment of amounts necessary to prevent the
eviction of the Employee from his principal residence or foreclosure on
the mortgage of the Employee's principal residence.
In determining whether expenses constitute an "immediate and heavy
financial need", or if the requirement of 8.09(a)(2) above is met, the
Administrative Committee, acting in a uniform and nondiscriminatory manner, can
reasonably rely upon the representations of the Employee regarding the
Employee's financial affairs, and the Administrative Committee shall not be
required to make an independent investigation of the Employee's financial
affairs.
The Administrative Committee in so relying upon such financial
representations of the Employee shall consider all relevant facts and
circumstances. A distribution will be treated as necessary to satisfy a
financial need of an Employee if such need cannot be relieved by:
a. Reimbursement or compensation by insurance or otherwise,
b. Reasonable liquidation of the Employee's assets to the
extent such liquidation would not itself cause an immediate and heavy
financial need,
c. Cessation of elective contributions or Employee Contributions
under the Plan, or
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d. Other distribution or nontaxable (at the time of the loan)
loans from plans maintained by the Employer or any other employer, or
by borrowing from commercial sources on reasonable terms.
The above listed possible sources of other financial remedies available
to the Employee shall be deemed to include those assets of the Employee's
Spouse and minor children that are reasonably available to the Employee,
excluding such property held for the Employee's child under an irrevocable
trust or under the Uniform Gifts to Minors Act.
(b) Amount of Hardship Withdrawal. The amount of any approved
Hardship Withdrawal shall not exceed the lesser of the Participant's:
(1) Employee Savings Plus Account balance, without
earnings, or
(2) his cumulative Employee Salary Deferral Contributions,
or
(3) the amount of the Employee's immediate and heavy
financial need.
The amount of any approved Hardship Withdrawal shall include
amounts necessary to pay any Federal, state or local taxes or penalties
reasonably anticipated to result from such withdrawal.
(c) Prior Withdrawal of Employee Non-Deductible Contributions
Required. A Participant shall not be permitted to make a Hardship Withdrawal
unless he has already withdrawn any amount credited to his separate Account
established for Employee Non-Deductible Contributions (if applicable).
(d) Manner of Making Withdrawals. Any request for a Hardship
Withdrawal by a Participant must be filed with the Administrative Committee in
writing specifying the nature of the withdrawal (and the reasons therefore, if
a Hardship Withdrawal), the amount of funds requested to be withdrawn, and the
investment Account (if applicable) which should be redeemed to make the
withdrawal. Upon approving any withdrawal, the Plan Administrator shall furnish
the Trustee with written instructions directing the Trustee to make the
withdrawal in a lump sum payment of cash to the Participant. In making any
such withdrawal payment, the Trustee shall be fully entitled to rely on the
instructions furnished by the Plan Administrator, and shall be under no duty
to make any inquiry or investigation with respect thereto.
8.10 Direct Rollover. This Section applies to distributions made on
or after January 1, 1993. Notwithstanding any provision of the plan to the
contrary that would otherwise limit a distributee's election under this Section,
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.
Definitions.
(a) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under section 401(a)(9) of the Code; and the portion
of any distribution that is not includible in gross income unrealized
appreciation with respect to employer securities).
(b) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in section 408(a) of the Code, an
individual retirement annuity described in section 408(b) of
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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.
(c) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's surviving spouse
and the employee's or former employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined in
section 414(p) of the Code, are distributees with regard to the interest of the
spouse or former spouse.
(d) Direct rollover: A direct rollover is a payment by the plan
to the eligible retirement plan specified by the distributee.
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ARTICLE IX - EMPLOYER ADMINISTRATIVE PROVISIONS
9.01 Information. The Employer shalL upon request, or as may be
specifically required hereunder, furnish or cause to be furnished, all of the
information or documentation which is necessary or required by the
Administrative Committee and Trustee to perform their respective duties and
functions under the Plan. The Employer's records as to the current information
the Employer furnishes to the Administrative Committee and Trustee shall be
conclusive to all persons.
9.02 No Liability. Subject to Article XII hereof, the Employer assumes
no obligation or responsibility to any of the Employees, Participants, or
Beneficiaries for any act of, or failure to act, on the part of the
Administrative Committee or the Trustee.
9.03 Employer Action. Any action required of the Employer shall be by
resolution of its Board of Directors or by a person authorized to act by Board
resolution.
9.04 Indemnity. The Employer agrees it will indemnify and hold
harmless the Board of Directors, individual Trustees, and the members of the
Administrative Committee, and each of then; from and against any and an loss
resulting from liability to which the Board of Directors, individual Trustees,
and the Administrative Committee, or the members of the Board of Directors and
Administrative Committee, may be subjected by reason of any act or conduct
(except willful or reckless misconduct) in their official capacities in the
administration of this Plan or Trust or both, including all expenses reasonably
incurred in their defense, in case the Employer fails to provide such defense.
The indemnification provisions of this Section 9.04 shall not relieve the Board
of Directors, individual Trustee(s), or any members of the Administrative
Committee from any liability they may have under the Act for breach of a
fiduciary duty.
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ARTICLE X - ADMINISTRATIVE COMMITTEE
10.01 Appointment of Committee. The Employees Board of Directors shall
appoint an Administrative (Retirement) Committee consisting of not less than 3
members to administer the Plan, the members of which may also be Participants
in the Plan.
10.02 Term. Each member of the Administrative Committee shall serve
until his successor is appointed. Any member of the Administrative Committee
may be removed by the Board of Directors, with or without cause. The Board of
Directors shall have the power to fill any vacancy which may occur. An
Administrative Committee member may resign upon written notice to the Employer.
10.03 Compensation. The members of the Administrative Committee shall
serve without compensation for services in behalf of the Plan, but the Employer
shall pay all expenses, including the expenses for any bond required under Act
Section 412. To the extent such expenses are not paid by the Employer, they
shall be paid by the Trustee from the Trust Fund.
10.04 Powers of Administrative Committee. Subject to Article XII
hereof, the Administrative Committee shall have the following powers and duties:
(a) To direct the administration of the Plan in accordance with
the provisions herein set forth;
(b) To adopt rules of procedure and regulations necessary for the
administration of the Plan, provided the rules are not inconsistent with the
terms of the Plan;
(c) To determine all questions with regard to rights of
Employees, Participants, and Beneficiaries under the Plan, including but not
limited to rights of eligibility of an Employee to participate in the Plan and
the value of the Accrued Benefit of each Participant;
(d) To enforce the terms of the Plan and the rules and
regulations it adopts;
(e) To direct the Trustee as respects the crediting and
distribution of the Trust and all other matters within its discretion as
provided in the Trust Agreement;
(f) To review and render decisions respecting a claim for (or
denial of a claim for) a benefit under the Plan;
(g) To furnish the Employer with information which the Employer
may require for tax or other purposes;
(h) To engage the service of counsel (who may, if appropriate,
be counsel for the Employer) and agents whom it may deem advisable to assist
it with the performance of its duties;
(i) To prescribe procedures to be followed by distributees in
obtaining benefits;
(j) To receive from the Employer and from Employees such
information as shall be necessary for the proper administration of the Plan;
(k) To receive and review reports of the financial condition and
of the receipts and disbursements of the Trust Fund from the Trustee;
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(l) To maintain, or cause to be maintained, separate Accounts
in the name of each Participant to reflect the Participant's Accrued Benefits
under the Plan;
(m) To select a secretary, who need not be a member of the
Administrative Committee;
(n) To interpret and construe the Plan;
(o) To select the issuing company or companies from which
Insurance Contracts shall be purchased as may be provided herein; and to
determine the type, and kind of such contract;
(p) To engage the services of an Investment Manager or Managers
(as defined in Act Section 3 (38)) each of whom shall have full power and
authority to manage, acquire or dispose (or direct the Trustee with respect to
acquisition or disposition) of any Plan Asset under its control; and
(q) To direct the Trustee in the investment reinvestment and
disposition of the Trust Fund as provided in the Trust Agreement.
10.05 Manner of Action. The decision of a majority of the members of
the Administrative Committee appointed and qualified shall control. In case of
a vacancy in the membership of the Administrative Committee, the remaining
members of the Administrative Committee may exercise any and all of the powers,
authorities, duties and discretion conferred upon such Administrative
Committee, pending the filling of the vacancy. The Administrative Committee
may, but need not, call or hold formal meetings. Any decisions made or action
taken pursuant to written approval of a majority of the then members shall be
sufficient. The Administrative Committee shall maintain adequate records of
its decisions.
10.06 Authorized Representative. The Administrative Committee may
authorize any one of its members, or its secretary, to sign on its behalf any
notices, directions, applications, certificates, consents, approvals, waivers,
letters, or other documents. The Administrative Committee must evidence this
authority by an instrument signed by all its respective members and filed with
the Trustee.
10.07 Nondiscrimination. The Administrative Committee shall administer
the Plan in a uniform nondiscriminatory manner for the exclusive benefit of the
Participants and their Beneficiaries.
10.08 Interested Member. No member of the Administrative Committee may
decide or determine any matter concerning the distribution, nature, or method
of settlement of his omit benefits under the Plan unless there is only one
person acting alone in the capacity as the Administrative Committee.
10.09 Funding Policy. The Administrative Committee shall review, not
less often than annually, all pertinent Employee information and Plan data in
order to establish the funding policy of the Plan to determine the appropriate
methods of carrying out the Plan's objectives. The Administrative Committee
shall communicate annually to the Trustee or to any Plan Investment Manager
(herein so-called), if any, the Plan's short-term and long-term financial needs
so investment policy can be coordinated with Plan financial requirements.
10.10 Individual Statement. As soon as practicable after the Valuation
Dates of each Plan Year, but within the time prescribed by the Act and the
regulations under the Act, the Administrative Committee will deliver to each
Participant (and to each Beneficiary) a statement reflecting the condition of
his Accrued Benefit in the Trust as of that date and such other information the
Act requires be furnished the Participant or Beneficiary. No Participant,
except a member of the Administrative Committee, shall have the right to
inspect the records reflecting the Account of any other Participant.
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10.11 Books and Records. The Administrative Committee shall maintain,
or cause to be maintained, records which will adequately disclose at all times
the state of the Trust Fund and of each separate interest therein. The books,
forms, and methods of accounting shall be the responsibility of the
Administrative Committee.
10.12 Unclaimed Account Procedure. Neither the Trustee nor the
Administrative Committee shall be obliged to search for, or ascertain the
whereabouts of, any Participant or Beneficiary. The Administrative Committee,
by certified or registered mail addressed to his last known address of record
with the Administrative 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, or Beneficiary, fails to claim his distributive share or make his
whereabouts known in writing to the Administrative Committee within six (6)
months from the date of mailing of the notice, or before this Plan is
terminated or discontinued, whichever should first occur, the Administrative
Committee shall direct the Trustee to segregate the Participant's unclaimed
Accrued Benefit in a nontransferable deferred annuity or in a segregated
interest bearing Account in the name of the Participant or Beneficiary. The
Administrative Committee shall then notify the Social Security Administration
of the Participants (or Beneficiary's) failure to claim the distribution to
which he is entitled. The Administrative Committee shall request the Social
Security Administration to notify the Participant (or Beneficiary) in
accordance with procedures it has established for this purpose. The segregated
Account shall be entitled to all income it earns and shall bear all expense or
loss it incurs.
10.13 Valuation. Within a reasonable time after the close of each Plan
Year, the Trustee shall prepare or cause to be prepared a statement of the
condition of the Trust Fund, setting forth all investments, receipts, and
disbursements, and other transactions effected by it during such Plan Year, and
showing all the asset of the Trust Fund and the cost and fair market value
thereof. This statement shall be delivered to the Administrative Committee.
The Administrative Committee shall then cause to be prepared, and shall deliver
to each Participant or Former Participant an annual report disclosing the
status of his Accounts in the Trust. the Trustee's determination of the fair
market value of the assets of the Trust Fund and the Administrative Committee
charges or credits to Accounts shall be final and conclusive on all persons
ever interested hereunder, subject to Section 11.09.
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ARTICLE XI - PARTICIPANT ADMINISTRATIVE PROVISIONS
11.01 Beneficiary Designation. Each Participant may from time to time
designate, in writing, a Beneficiary and/or a Contingent Beneficiary to whom
the Trustee shall pay his Accrued Benefit in the Trust Fund in the event of his
death. The Administrative Committee shall prescribe the form for the written
designation of Beneficiary and, upon the Participant's filing the form with the
Administrative Committee, it effectively shall revoke all designations filed
prior to that date by the same Participant. As a condition to any married
Participant designating a Beneficiary other than his spouse, the Administrative
Committee shall require the spouse's written consent. The spouse's signature
must be notarized by a notary public or witnessed by a plan representative.
The spouse's consent must acknowledge the effect of waiving his (her) rights
under the Plan and specifically consent to the election of any alternate
beneficiary other than the spouse.
11.02 No Beneficiary Designation. With respect to any death benefit
provided hereunder, the Participant shall file a beneficiary designation with
the Committee and the Participant, during his lifetime, shall have the right,
which may be successively exercised by written instrument filed with and
received by the Committee, to request a change of his designated beneficiary.
In the event the designated beneficiary is not living at the death of the
Participant, or if no beneficiary has been designated, the death benefit shall
be payable to the spouse of the Participant, if living; otherwise to his
children, equally per stirpes; if none, then to the estate of the Participant.
11.03 Personal Data to Administrative Committee. Each Participant and
Beneficiary must furnish to the Administrative Committee evidence, data, or
information as the Administrative Committee considers necessary or desirable
for the purpose of administering the Plan. The provisions of this Plan are
effective for the benefit of each Participant upon the condition precedent that
each Participant will furnish promptly full, true, and complete evidence, data,
and information when requested by the Administrative Committee, provided the
Administrative Committee shall advise each Participant of the effect of his
failure to comply with its request.
11.04 Address for Notification. Each Participant and each Beneficiary
of a deceased Participant shall file with the Administrative Committee, in
writing, his post office address, and each subsequent change of such post
office address. Any payment or distribution hereunder, and any communication
addressed to a Participant or his Beneficiary, shall be sent to the last
address filed with the Administrative Committee, or if no such address has been
filed, then the last address indicated on the records of the Employer, shall be
deemed to have been delivered to the Participant or his Beneficiary on the date
that such distribution or communication is deposited in the United States mail,
postage prepaid.
11.05 Assignment or Alienation. To the extent permitted by law, the
Participant may not anticipate, encumber, alienate or assign any of his rights,
claims, or interests in this Plan or any part thereof, or any payments,
benefits, or rights arising by reason of this Plan shall in any way be subject
to the Participant's debts, contracts, or engagements, or to any judicial
processes to levy upon or attach the same for payment thereof.
Notwithstanding the above, in the event of a Qualified Domestic
Relations Order. No violation of the non-alienation provisions of ERISA
occurs where a portion of the benefits of a Participant is required to be paid
to the Participant's spouse pursuant to a Qualified Domestic Relations Order.
A "Qualified Domestic Relations Order" is a judgment or decree (including
approval of the property settlement agreement that relates to the provisions of
child support, alimony payments or marital property, rights to a spouse, former
spouse, child or other dependent of a Participant and is made pursuant to a
state domestic relations law. The Qualified Domestic Relations Order may not
alter the amount, time, or form of payment of plan benefits.
11.06 Litigation Against the Trust. If any legal action is filed
against the Trustee, Board of Directors, or the Committee, or against any
member or members of the Committee or Board of Directors, by or on behalf of
any Participant or Beneficiary, the Employer shall reimburse the Trust, the
Board of Directors,
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Administrative Committee and any member or members of the Administrative
Committee or Board of Directors, for all costs and fees expended by it or them
by surcharging all costs and fees against the same payable under the Plan to
the Participant or to the Beneficiary, but only to the extent a court of
competent jurisdiction specifically authorizes and directs any such surcharges.
11.07 Information Available. Any Participant in the Plan or any
Beneficiary may examine copies of the summary plan descriptions latest annual
report, any bargaining agreement, this Plan, trust, or any other instrument
under which the Plan was established or is operated. The Administrative
Committee will maintain all of the items listed in this Section in its office,
or in such other place or places as it may designate from time to time in order
to comply with the regulations issued under the Act for examination during
reasonable business hours. Upon the written request of a Participant or
Beneficiary, the Administrative Committee shall furnish him with a copy of any
item listed in this Section. The Administrative Committee may make a
reasonable charge to the requesting person for the copy so furnished.
11.08 Beneficiary's Right to Information. A Beneficiaries right to
(and the Administrative Committee's duty to provide to the Beneficiary)
information or data concerning the Plan shall not arise until he first becomes
entitled to receive a benefit under the Plan.
11.09 Appeal Procedure for Denial of Benefits. The Administrative
Committee shall provide adequate notice in writing to any Participant or to any
Beneficiary (claimant) whose claim for benefits under this Plan has been
denied. The Administrative Committee notice to the claimant shall set forth:
(a) The specific reason for the denial;
(b) Specific reference to pertinent Plan provisions on which the
Administrative Committee based its denial;
(c) A description of any additional material and information
needed for the claimant to perfect his claim and an explanation of why the
material or information is needed;
(d) A statement that the claimant may:
(1) request a review upon written application to the
Committee;
(2) review pertinent Plan documents; and
(3) submit issues and comments in writing; and
(e) That any appeal the claimant wishes to make of the adverse
determination must be in writing to the Administrative Committee within
seventy-five (75) days after receipt of the Administrative Committee's notice
of denial of benefits. The Administrative Committee's notice must further
advise the claimant that his failure to appeal the action to the Administrative
Committee in writing within the seventy-five (75) day period will render the
Administrative Committee's determination final, binding, and conclusive.
If the claimant should appeal to the Administrative Committee, he, or
his duly authorized representative, may submit, in writing, whatever issues and
comments he, or his duly authorized representative, feels are pertinent. The
Administrative Committee shall re-examine all facts related to the appeal and
make a final determination as to whether the denial of benefits is justified
under the circumstances. The Administrative Committee shall advise the
claimant of its decision within sixty (60) days of the claimant's written
request for review, unless special circumstances (such as a hearing) would make
the rendering of a decision within the st, (60) day limit infeasible, but in no
event shall the Administrative Committee render a decision respecting a denial
for a claim for benefits later than one hundred twenty (120) days after its
receipt of a request for review.
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A written statement stating the decision on review, the specific reasons for
the decision and the specific Plan provisions on which the decision is based
shall be mailed or delivered to the claimant within such st, (60) (or one
hundred twenty (120)) day period.
The Administrative Committee's notice of denial of benefits shall
identify the name of each member of the Administrative Committee and the name
and address of the Administrative Committee member to whom the claimant may
forward his appeal.
11.10 No Rights Implied. Nothing contained in this Plan, or any
modification or amendment to the Plan, or in the creation of any benefit, or
the payment of any benefit, shall give any Employee, Participant, or any
Beneficiary any right to continue employment, any legal or equitable right
against the Employer or any officer, director, or Employee of the Employer, or
its agents or employees.
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ARTICLE XII - FIDUCIARIES DUTIES
12.01 Named Fiduciary. The "Named Fiduciary" of the Plan shall consist
of the following:
(a) The Employer;
(b) The Administrative Committee;
(c) The Trustee; and
(d) Such other person or persons that are designated to carry out
fiduciary responsibilities under the Plan in accordance with Section 12.03 (c)
hereof.
Any person or group of persons may serve in more than one fiduciary
capacity with respect to the Plan. A Named Fiduciary may employ one or more
persons to render advice with regard to any responsibility such Named Fiduciary
has under the Plan.
12.02 Allocation of Responsibilities. The powers and responsibilities
of the Named Fiduciary are hereby allocated as indicated below:
(a) Employer. The Employer shall be responsible for all
functions assigned or reserved to it under the Plan and Trust Agreement. Any
authority assigned or reserved to the Employer under the Plan and Trust
Agreement shall be exercised by resolution of the Employer's Board of Directors.
(b) Administrative Committee. The Administrative Committee shall
have the responsibility and authority to control the operation and
administration of the Plan in accordance with the terms of the Plan and Trust
Agreement, except with respect to dudes and responsibilities specifically
allocated to other fiduciaries. The Administrative Committee shall have the
authority to issue written directions to the Trustee to the extent provided in
the Trust Agreement. The Trustee shall follow the Administrative Committee's
directions, unless it is clear that the actions to be taken under those
directions would be violations of applicable fiduciary standards, or would be
contrary to the terms of the Plan or Trust Agreement.
The Administrative Committee shall have the responsibility and authority
to control the investment of the Trust Fund in accordance with the terms of the
Plan and Trust Agreement, except with respect to duties and responsibilities
specifically allocated to other fiduciaries. The Administrative Committee shall
have the authority to issue written directions to the Trustee to the extent
provided in the Trust Agreement.
The Trustee shall follow the Administrative Committee's directions,
unless it is clear that the actions to be taken under those directions would be
violations of applicable fiduciary standards or would be contrary to the terms
of the Plan or Trust Agreement.
(c) Trustee. The Trustee shall have the dudes and
responsibilities set out in the Trust Agreement, sublet however, to direction
by the Committee as set out in the Trust Agreement.
(d) Allocation. Powers and responsibilities may be allocated to
other Fiduciaries in accordance with Section 12.03 hereof, or as otherwise
provided herein or in the Trust Agreement.
This Article is intended to allocate to each Named Fiduciary the
individual responsibility for the prudent execution of the functions assigned
to it, and none of such responsibilities or any other responsibility shall be
shared by two or more of such Named Fiduciaries, unless such sharing shall be
provided by a specified provision of the Plan or Trust Agreement.
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12.03 Procedures for Delegation and Allocation of Responsibilities.
Fiduciary responsibilities may be allocated as follows:
(a) The Administrative Committee may specifically allocate
responsibilities to a specified member or members of the Administrative
Committee.
(b) The Administrative Committee may designate a person or
persons other than a Named Fiduciary to carry out fiduciary responsibilities
under the Plan (this authority shall not cause any person or persons employed
to perform ministerial acts and services for the Plan to be deemed fiduciaries
of the Plan).
(c) The Administrative Committee may appoint an Investment
Manager or managers to manage (including the power to acquire and dispose of)
the assets of the Plan (or a portion thereof).
(d) If at any time there be more than one Trustee serving under
the Trust Agreement, such Trustees may allocate specific responsibilities,
obligations, or dudes among themselves in such manner as they shall agree.
Any allocation of responsibilities pursuant to this Section shall be
made by filing a written notice thereof with the Administrative Committee
specifically designating the person or persons to whom such responsibilities or
duties are allocated and specifically setting out the particular duties and
responsibilities with respect to which the allocation or designation is made.
12.04 General Fiduciary Standards. Subject to Section 12.05 hereof, a
Named Fiduciary shall discharge his duties with respect to the Plan solely in
the interest of the Participants and their Beneficiaries and:
(a) For the exclusive purpose of providing benefits to
Participants and their Beneficiaries and defraying reasonable expenses of
administering the Plan;
(b) With the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims;
(c) By diversifying the investments of the Plan so as to minimize
the risk of large losses, unless under the circumstances it is clearly prudent
not to do so; and
(d) In accordance with documents and instruments governing the
Plan, insofar as such documents and instruments are consistent with the
provisions of Title I of the Act.
12.05 Liability Among Co-Named Fiduciaries.
(a) General. Except for any liability which he may have under
the Act, a fiduciary shall not be liable for the breach of a fiduciary duty or
responsibility by another fiduciary of the Plan except in the following
circumstances:
(1) He participates knowingly in, or knowingly undertakes
to conceal, an act or omission of such other fiduciary, knowing such act or
omission is a breach;
(2) By his failure to comply with the general fiduciary
standards set out in Section 12.04 hereof in the administration of his specific
responsibilities which give rise to his status as a fiduciary to commit a
breach; or
46
<PAGE> 49
(3) He has knowledge of a breach by such other fiduciary
and he does not undertake reasonable efforts under the circumstances to remedy
the breach.
(b) Co-Trustees. In the event that there are two or more
Trustees serving under the Trust Agreement each should use reasonable care to
prevent a Co-Trustee from committing a breach of fiduciary responsibility and
they shall jointly manage and control assets of the Plan, except that in the
event of an allocation of responsibilities, obligations, or duties, a Trustee
to whom such responsibilities, obligations, or duties have not been allocated
shall not be liable to any person by reason of this Section, either individually
or as a Trustee, for any loss resulting to the Plan arising from the acts or
omissions on the part of the Trustee to whom such responsibilities, obligations,
or duties have been allocated.
(c) Liability Where Allocation is in Effect. To the extent that
fiduciary responsibilities axe specifically allocated by a Named Fiduciary, or
pursuant to the express terms hereof, to any person or persons, then such Named
Fiduciary shall not be liable for any act or omission of such person in carrying
out such responsibility, except to the extent that the Named Fiduciary violated
Section 12.04 hereof (i) with respect to such allocation or designation, (ii)
with respect to the establishment or implementation of the procedure for making
such an allocation or designation, (iii) in continuing the allocation or
designation or (iv) the Named Fiduciary would otherwise be liable in accordance
with this Section 12.05.
(d) Liability of Trustee Following Administrative Committee
Directions. No Trustee shall be liable for following instructions of the
Administrative Committee given pursuant to Section 12.02 (b) and (c) hereof.
(e) No Responsibility for Employer Action. Neither the Trustee,
nor the Administrative Committee, shall have any obligation nor responsibility
with respect to any action required by the Plan to be taken by the Employer,
any Participant or eligible Employee, nor the failure of any of the above
persons to act or make any payment or contribution, or to otherwise provide any
benefit contemplated under this Plan, nor shall the Trustee, nor the
Administrative Committee be required to collect any contribution required under
the Plan, or determine the correctness of the amount of any Employer
contribution.
(f) No Duty to Inquire. Neither the Trustee nor the
Administrative Committee shall have any obligation to inquire into or be
responsible for any action or failure to act on the part of others.
(g) Liability of Trustee Where Investment Manager Appointed. If
an Investment Manager has been appointed pursuant to Section 12.03 (c) hereof
then neither the Trustee nor the Administrative Committee shall be liable for
the acts or omissions of such Investment Manager, or be under any obligation
to invest or otherwise manage any assets of the Plan which are subject to the
management of such Investment Manager.
(h) Successor Fiduciary. No Named Fiduciary shall be liable
with respect to any breach of fiduciary duty if such breach was committed before
he became a Named Fiduciary or after he ceased to be a Named Fiduciary.
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<PAGE> 50
ARTICLE XIII - DISCONTINUANCE, AMENDMENT, AND TERMINATION
13.01 Discontinuance. The Employer shall have the right at any time,
to suspend or discontinue its contributions under the Plan.
13.02 Amendment. The Employer shall have the right at any time to
amend the Plan in any manner it deems necessary or advisable in order to quit,
(or maintain qualification of) the Plan and Trust under the provisions of Code
Section 401(a) and to amend the Plan in any other manner, provided no amendment
shall:
(a) Authorize or permit any of the Trust Find (other than the
part which is requited to pay taxes and administration expenses) to be used for
or diverted to purposes other than for the exclusive benefit of the Participants
or their Beneficiaries;
(b) Cause or permit any portion of the Trust Fund to revert to
or become the property of the Employer;
(c) Increase duties or responsibilities of the Trustee or the
Administrative Committee without the written consent of the affected Trustee or
the affected member of the Administrative Committee.
(d) Revise the vesting schedule under the Plan unless each
Participant having three (3) years or more of Service is permitted to elect
within a reasonable period after the adoption of such amendment to have his
vested benefit computed under the Plan without regard to such amendment; a
reasonable period for purposes of this Section shall be a period which begins
no later than the date the Plan amendment is adopted and ends no later than the
last to occur of the following:
(1) sixty (60) days after the date of Plan amendment is
adopted;
(2) sixty (60) days after the day on which the Plan
amendment becomes effective; or
(3) sixty (60) days after a Participant is issued written
notice of the Plan amendment
(e) Revise the vested benefit of a Participant determined as of
the later of the date such amendment is adopted, or the date such amendment
becomes effective, ff such revised vested benefit is less than that computed
under the Plan without regard to such amendment.
The Employer shall make all amendments in writing. Each amendment shall
state the date to which it is either retroactively or prospectively effective.
13.03 Termination. The Employer shall have the right to terminate the
Plan at any time. The Plan shall terminate upon the first to occur of the
following:
(a) The date terminated by action of the Board of Directors;
(b) The date the Employer shall be judicially declared bankrupt
or insolvent; or
(c) The dissolution, merger, consolidation, or reorganization of
the Employer or the sale by the Employer of all or substantially all of its
assets, unless the successor or purchaser makes provisions to continue the Plan,
in which event the successor or purchaser shall be substituted as the Employer
under this Plan.
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<PAGE> 51
13.04 Vesting on Termination or Suspension. Notwithstanding any other
provision of the Plan to the contrary, upon the date of full or partial
termination of the Plan, or, upon complete discontinuance of contributions to
the Plan, an affected Participant's right to his Accrued Benefit shall be one
hundred percent (100%) vested and nonforfeitable. The Administrative Committee
shall interpret and administer this Section 13.04 in accordance with the intent
and scope of the Regulations issued under Code Section 411(d)(3).
13.05 Procedure on Termination. In the event of termination of the
Plan or permanent discontinuance of Employer contributions, the Employer shalt
at its sole discretion, authorize any one of the following procedures:
(a) Continue Trust. To continue the Trust in operation in all
respects until the Trustee has distributed all benefits under the Plan, except
that no further persons shall become Participants, no further contributions
shall be made, all Accounts shall be fully vested, and no further payments shall
be made, except in distribution of the Trust Fund and payment of administration
expenses; or
(b) Liquidate Plan. To wind up and liquidate the Plan and Trust
and distribute the assets thereof after deduction of all expenses to the
Participants, Former Participants, and Beneficiaries in accordance with their
respective Accounts as then constituted. If the Employer makes no election
before termination, then this subsection (b) will govern distribution of the
Trust Fund.
13.06 Merger. The Trustee shall not consent to, or be a party to, any
merger or consolidation with another plan, unless immediately after the merger,
consolidation or transfer, the surviving Plan provides each Participant a
benefit equal to or greater than the benefit each Participant would have
received had the Plan terminated immediately before the merger, consolidation,
or transfer.
13.07 Notice of Change in Terms. The Administrative Committee, within
the time prescribed by the Act and applicable regulations, shall furnish all
Participants and Beneficiaries a summary plan description of any material
amendment to the Plan or notice of discontinuance of the Plan and all other
information required by the Act to be furnished without charge.
13.08 Initial Qualification. Notwithstanding any other provisions of
this Plan, the Employees adoption of this Plan is subject to the condition
precedent that the Plan initially shall be approved and deemed qualified by the
Internal Revenue Service as satisfying the requirements of Section 401(a) of
the Code and that the Trust shall be entitled to exemption under the provisions
of Section 501(a). In the event the Employer shall fail to secure such initial
determination, the contributions made by the Employer together with any income
received or accrued thereon less any expenses paid shall be returned to the
Employer and the Plan and Trust shall terminate. No Participant or Beneficiary
shall have any right or claim to the Trust Fund, or to any benefit under the
Plan, before the Internal Revenue Service initially determines that the Plan
and Trust quit, under the provisions of Sections 401(a) and 501(a) of the Code.
13.09 Reversion of Suspense Account. Notwithstanding any provisions
contained herein to the contrary, the Employer reserves the right to recover,
upon the termination of the Plan and Trust Fund, any amounts held in a Suspense
Account that cannot be allocated to the accounts of Participants and their
Beneficiaries in the year of termination, because of the limitations contained
in Section 6.09 of the Plan and Section 415 of the Code, after the satisfaction
of all fixed and contingent obligations to Participants and their Beneficiaries
under the Plan.
13.10 Distributions Upon Plan Termination. All Elective Deferrals,
Qualified Employer Deferral Contributions, and income attributable thereto,
shall be distributed to Participants or their Beneficiaries as soon as
administratively feasible after the termination of the Plan, provided that
neither the Employer nor an Affiliated Employer maintains a successor plan.
49
<PAGE> 52
13.11 Distributions Upon Sale Of Assets. All Elective Deferrals,
Qualified Employer Deferral Contributions, and income attributable thereto,
shall be distributed to Participants as soon as administratively feasible after
the sale, to an entity that is not an Affiliated Employer, of substantially all
of the assets used by the Employer in the trade or business in which the
Participant is employed.
13.12 Distributions Upon Sale Of Subsidiary. All Elective Deferrals,
Qualified Employer Deferral Contributions, and income attributable thereto
shall be distributed to Participants as soon as administratively feasible after
the sale, to an entity that is not an Affiliated Employer, of an incorporated
Affiliated Employer's interest in a subsidiary to Participants employed by such
subsidiary.
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<PAGE> 53
ARTICLE XIV - THE TRUST FUND
14.01 Purpose of the Trust Fund. A Trust Fund has been created and
will be maintained for the purposes of the Plan, and the assets thereof shall
be invested in accordance with the terms of the Trust Agreement or Group
Annuity Contract. All contributions to be paid into the Trust Fund, and all
benefits under the Plan will be paid from the Trust Fund.
14.02 Appointment of Trustee. (If applicable) trustee(s) shall be
appointed by the Board of Directors to administer the Trust Fund. The
Trustee's obligations, duties, and responsibilities shall be governed solely by
the terms of the Trust Agreement.
14.03 Exclusive Benefit of Participant. Subject to Sections 5.04 and
13.08 hereof the Trust Fund will be used and applied only in accordance with
the provisions of the Plan to provide the benefits thereof, and no part of the
corpus or income of the Trust Fund shall be used for or diverted to purposes
other than for the exclusive benefit of the Participants and their
Beneficiaries or for expenses of administration. Notwithstanding the preceding
sentence, as provided in Section 13.09 hereof, the Employer reserves the right
to recover any amounts held in a Suspense Account at the termination of the
Trust Fund that cannot be allocated to the Accounts of Participants and their
Beneficiaries in the year of termination because of the limitations contained
in Section 6.09 of the Plan and Section 415 of the Code.
14.04 Benefits Supported Only By the Trust Fund. Any person having any
claim under the Plan will look solely to the assets of the Trust Fund for
satisfaction.
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<PAGE> 54
ARTICLE XV - PARTICIPATION BY AFFILIATE OF COMPANY AND
EMPLOYMENT WITH A MEMBER OF A CONTROLLED GROUP
15.01 Employment With a Member of a Controlled Group. Any employment
service completed by an Employee with an Affiliated Employer, shall be credited
as service with the Employer for purposes of determining "participation" and
"vesting" under the Plan. Determination of membership within the controlled
group shall be determined under the provisions of Section 1563(a) of the Code,
but without regard to Section 1563(a)(4) and (e)(3)(c).
15.02 Adoption by Affiliates. Any corporation or other business entity
which is a member of an affiliated group (as defined in Section 1504(a) of the
Code, or any successor provision), which includes the Company, may, with the
consent of the Company, adopt the Plan for its Employees. Such adoption shall
be made by resolution of such corporation's Board of Directors and an
instrument executed by its officers pursuant thereto. The provisions of the
Plan shall apply to each Employer, except as provided in the instrument
adopting the Plan and Trust otherwise specifically provided herein.
15.03 Amendment. If the Plan and Trust are amended by the Company,
after they are adopted by such affiliate, unless otherwise expressly provided,
they shall be treated as so amended by such other business entity without the
necessity of any action on its part.
15.04 Withdrawal by Affiliated Employers.
(a) Any one or more of the Employers included in the Plan may
withdraw from the Plan at any time by giving six months' advance notice in
writing of the intention to withdraw, (unless a shorter notice shall be agreed
to by the Board of Directors).
(b) After an Employer has given notice as provided in subsection
(a), the Plan Administrator shall establish an amount of the Trust Fund to be
allocated to such Employer's portion of the Plan. No Participant of the Plan,
including Participants who are Employees of the withdrawing Employer, shall
receive a benefit immediately after such withdrawal, determined as if the Plan
had terminated at that time, which is less than the benefit such Participants
would have received immediately prior to such withdrawal had the Plan terminated
at that time.
(c) If the Trust is not to be terminated with respect to the
withdrawing Employer, then as of the date of withdrawal, the Trustee shall
distribute securities, property or money of the Trust Fund representing the
portion of the Trust Fund allocated to the withdrawing Employer and such
securities, property or money shall thereafter be held and invested as a
separate trust fund pursuant to the terms of the plan adopted by the withdrawing
Employer.
(d) If the Plan is to be terminated with respect to the
withdrawing Employer, then the amount set aside pursuant to subsection (b) shall
be dealt with according to the provisions of Article XIII.
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<PAGE> 55
ARTICLE XVI - DIRECTED INVESTMENT OPTIONS
16.01 Authorized Investment Funds. The Administrative Committee will
provide for the investment of Plan assets in funds and will permit the
Participant designate to which funds his Accounts are to be invested.
Investment funds will be developed by the Trustee to accommodate this
direction. Should the Administrative Committee authorize such Participant
directed investment options, the investment funds to accommodate this direction
shall include at least the following:
(a) "Income Fund" which is a fund consisting of various
investments which may include a. portfolio of United States Government
obligations, Certificates of Deposit, and investment grade corporate bonds of
reasonably short maturity, fixed income mutual funds and, from time to time,
money market investments. The investment goal of this fund is to earn a
competitive short-term rate of return with little or no risk of capital loss.
(b) "Equity Fund" which is a broadly diversified portfolio of
common stock and similar equities growth mutual funds and, from time to time,
money market investments. The investment goal of this fund is long-term growth.
The Administrative Committee may increase the number of authorized
investment funds by agreement with the Trustee.
Effective July 1, 1994, the Administrative Committee may direct the
Trustee to establish an investment fund to be known as the 'State Street Boston
Corporation Stock Fund' which shall be invested in shares of common stock of
State Street Boston Corporation. Such fund may also be invested in cash or
cash-equivalent short-term investments.
16.02 Participant Direction. In accordance with Section 16.01 above,
each Participant may direct, on forms provided by the Administrative Committee,
that contributions to his Account be invested in the various investment funds
provided under Section 16.01. A Participant may redirect the investment of his
Accounts as well as future contributions. The election to direct or redirect
the investment of Accounts will be made during such times as the Administrative
Committee shall determine, after consultation with the Trustee. The
Administrative Committee may impose such limitations on such direction of
Account investments as it deemed appropriate for example, limitations on
minimum percentage investments in an investment fund or minimum notice periods
when Accounts may be redirected.
16.03 Participant Non-Direction. If a Participant fails to direct the
investment of his Accounts, such Accounts shall be invested in the investment
fund selected on a uniform basis by the Administrative Committee from time to
time.
16.04 Notwithstanding any other provisions of Sections 16.01, 16.02, or
16.03, the Employer Profit Sharing Contributions shall be invested as the
Administrative Committee may direct. Participants shall neither direct nor
redirect the investment of any such Employer Profit Sharing Contributions or
Profit Sharing Accounts.
16.05 Employee Salary Deferral Contributions, Employee Rollover
Contributions and Employer Matching Contributions may be invested in one or
more of the investment funds in multiples of 25%, 50%, 75% or 100% of such
allowable contributions.
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ARTICLE XVII - TOP-HEAVY RULES
17.01 Top-Heavy Status. If the Plan is or becomes Top-Heavy in any
Plan Year beginning after December 31, 1983, the provisions of this Article
will supersede any conflicting provision in the Plan. The following
definitions apply in making this determination:
(a) Key Employee. Any Employee or former Employee (and the
Beneficiaries of such Employee) who at any time during the determination period
was (i) an officer of the Employer, (if such officers Compensation exceeds 50%
of the annual benefit limit for defined benefit plans, as indexed, pursuant to
Section 415(b)(1)(A)), (ii) an owner (or considered wa owner under Section 318
of the Code) of one of the ten largest interests in the Employer, (if such
individual's Compensation exceeds the dollar Limit on Annual Additions to a
Defined Contribution Plan under Section 415 of the Code), (iii) a five percent
Owner of the Employer, or (iv) a one percent Owner of the Employer who has an
annual compensation of more than $150,000. The determination period is the
Plan Year containing the Determination Date and the four preceding Plan Years.
The determination of who is a Key Employee will be made in accordance with
Section 416(i) (1) of the Code and the regulations thereunder. A Non-Key
Employee is any Employee who does not meet the definition of Key Employee
contained herein.
(b) Top-Heavy Plan. For any Plan Year after December 31, 1983,
this Plan is Top-Heavy if any of the following conditions exists:
(1) If the Top-Heavy Ratio for this Plan exceeds 60 percent,
and this Plan is not part of any Required Aggregation Group or Permissive
Aggregation Group of plans, or
(2) If this Plan is a part of a Required Aggregation Group
of plans, but not part of a Permissive Aggregation Group, and the Top-Heavy
Ratio for the group of plans exceeds 60 percent, or
(3) If this Plan is a part of a Required Aggregation Group,
and part of a Permissive Aggregation Group of plans, and the Top-Heavy Ratio
for the Permissive Aggregation Group exceeds 60 percent.
(c) Top-Heavy Ratio.
(1) If the Employer maintains one or more Defined
Contribution Plans (including any Simplified Employee Pension Plan) and the
Employer has never maintained any Defined Benefit Plan which has covered or
could cover a Participant in this Plan, the Top-Heavy Ratio is a fraction, the
numerator of which is the sum of the Account balances of all Key Employees as
of the Determination Date (including any part of any Account balance distributed
in the five-year period ending on the Determination Date), and the denominator
of which is the sum of all Account balances (including any part of any Account
balance distributed in the five-year period ending on the Determination Date) of
all Participants as of the Determination Date. Both the numerator and
denominator of the Top-Heavy Ratio are adjusted to reflect any distributions of
any Account balances or any Accrued Benefits made in the five-year period ending
on the Determination Date and contribution which is due but unpaid as of the
Determination Date.
(2) If the Employer maintains one or more Defined
Contribution Plans (including any Simplified Employee Pension Plan) and the
Employer maintains or has maintained one or more Defined Benefit Plan would have
covered or could cover a Participant in this Plan, the Top-Heavy Ratio is a
fraction, the numerator of which is the sum of the Account balances under the
Defined Contribution Plans for all Key Employees and the present value of
Accrued Benefits under the Defined Benefit Plans for all Key Employees, and the
Denominator of which is the sum of the Account balances under the Defined
Contribution Plans for all Participants and the present value of the Accrued
Benefits under the Defined Benefit Plans for all Participant.
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<PAGE> 57
Both the numerator and denominator of the Top-Heavy Ratio are adjusted for any
distributions of any Account balances or any Accrued Benefits made in the
five-year period ending on the Determination Date and any contribution due but
unpaid as of the Determination Date.
(3) For purposes of (2) and (3) above, the value of Account
balances and the Present Value of Accrued Benefits will be determined as of the
most recent Valuation Date that falls within or ends with the twelve-month
period ending on the Determination Date. The Account balances and Accrued
Benefits of a Participant who is not a Key Employee but who was a Key Employee
in a prior year will be disregarded, provided he had performed no service with
the Employer during the last five Plan Years. The calculation of the Top-Heavy
Ratio, and the extent to which distributions, Followers, and the transfers are
taken into account will be made in accordance with Section 416 of the Code and
the regulations thereunder. Deductible employee contributions will not be taken
into account for purposes of computing the Top-Heavy Ratio. When aggregating
plans, the value of Account balances and Accrued Benefits will be calculated
with reference to the Determination Dates that fall within the same calendar
year
(d) Permissive Aggregation Group. The Required Aggregation Group
of plans plus any other plan or plans of the Employer, which when considered as
a group with the Required Aggregation Group, would continue to satisfy the
requirements of Sections 401(a)(4)410 of the Code.
(e) Required Aggregation. (i) Each qualified plan of the
Employer in which at least one Key Employee participates, and (ii) any other
qualified plan of the Employer which enables a plan described in (i) to meet
the requirements of sections 401(a)(4) and 410 of the Code.
Solely for the purpose of determining if the Plan, or any other plan
included in a Required Aggregation Group of which this Plan is a part is
Top-Heavy, the Accrued Benefit of an Employee other than a Key Employee (within
the meaning of Section 416(i)(1) of the Code) shall be determined under (a) the
method, if any, that uniformly applies for accrual purposes under all Plans
maintained by the Affiliated Employers, or (b) if there is no such method, as
if such benefit accrued not more rapidly than the slowest accrual rate
permitted under the fractional accrual rate of Section 411(b)(1)(C) of the
Code.
(f) Determination Date. For any Plan Year subsequent to the
first Plan Year, the last day of the preceding Plan Year. For the first Plan
Year of the Plan, the last day of that year.
(g) Valuation Date. The last day of the Limitation Year for
which Account balances or Accrued Benefits are valued for purposes of
calculating the Top-Heavy Ratio.
(h) Present Value. Present value shall be based upon assumptions
provided for under Section 416 of the Code and regulations.
17.02 Minimum Allocation.
(a) Except as otherwise provided in (c) and (d) below, the
Employer Profit Sharing Contributions, and Forfeitures attributed to previously
allocated Employer Profit Sharing Contribution, allocated on behalf of any
Participant who is not a Key Employee shall not be less than the lesser of 3%
of such Participant's Compensation, or in the case where the Employer has no
Defined Benefit Plan which designates this plan to satisfy section 401 of the
Code, the largest percentage of Employer Contributions and Forfeitures, as a
percentage of the first $200,000 of the Key Employee's Compensation, allocated
on behalf of any Key Employee for that year. If the highest rate allocated to
a Key Employee for a year in which the Plan is Top-Heavy is less than 3%, then
amounts contributed as a result of a Salary Deferral Agreement must be included
in determining contributions made on behalf of Key Employees. The Minimum
Allocation is determined without regard to any Social Security contribution.
This Minimum Allocation shall be made even though, under other Plan provisions,
the Participant would not otherwise be entitled to receive an allocation, or
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<PAGE> 58
would have received a lesser allocation for the Plan Year because of (i) the
Participant's failure to complete 1,000 Hours of Service (or any equivalent
provided in the Plan), or (ii) the Participant's failure to make mandatory
Employee Contributions to the Plan, or (iii) Compensation less than a stated
amount.
(b) For purposes of computing the Minimum Allocation,
Compensation will mean Compensation as defined in Section 2.12.
(c) The provision in (a) above shall not apply to any Participant
who was not employed by the Employer on the last day of the Plan Year.
(d) The provision in (a) above shall not apply to any Participant
to the extent the Participant is covered under may, other plan or plans of the
Employer and the Employer has provided the Minimum Allocation or benefit
requirement applicable to Top-Heavy plans will be met in the other plan or
plans.
17.03 Minimum Vesting. For any Plan Year in which this Plan is
Top-Heavy, one of the minimum vesting schedules will automatically apply to the
Plan. The minimum vesting schedule applies to all benefits within the meaning
of Section 411(a)(7) of the Code, including benefits accrued before the
effective date of Section 416 and benefit accrued before the Plan became
Top-Heavy.
Further, no reduction in vested benefits may occur in the event the
Plan's status as Top-Heavy changes for any Plan Year. However, this Section
does not apply to the Account balances of any Employee who does not have an
Hour of Service after the Plan has initially become Top-Heavy, and such
Employee's Account balance attributable to Employer Contributions and
Forfeitures will be determined without regard to this Section.
<TABLE>
The nonforfeitable interest of each Employee in his or her Account
balance attributable to Employer Contributions shall be determined on the
basis of the following:
<CAPTION>
Years of Service Vesting Percent
--------------------------------------------
<S> <C>
Less than 2 years 0%
2 years 20%
3 years 40%
4 years 60%
5 years or more 100%
</TABLE>
Provided, however, ff the Plan should become Top-Heavy, for purposes of
applying the above listed table, any Employer Contributions not already 100%
vested will be 100% vested immediately, for such Plan Year, if such
contributions are Qualified Employer Deferral Contributions that are taken into
account for purposes of meeting the Actual Deferral Percentage test described
in Section 4.05.
If the vesting schedule under the plan shifts in or out of the
preceding schedule for any Plan Year because of the Plan's Top-Heavy status,
such shift is an amendment to the vesting schedule, and the election in Section
13.02(d) of the Plan applies.
17.04 Limitation on Allocations. If, during any Limitation Year, the
Participant is a participant in both a Defined Contribution Plan and a Defined
Benefit Plan, which are a part of a Top-Heavy group, the Administrative
Committee shall apply the limitations of Article VI to such Participant by
substituting "100%" for "125%" each place it appears in Section 6.09. This
Section 17.04 shall not apply if:
(a) The Plan would satisfy Section 17.02 if the guaranteed
minimum contribution was one percent (l%) greater than the guaranteed minimum
contribution the Administrative Committee otherwise would calculate;
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<PAGE> 59
(b) The Top-Heavy Ratio does not exceed ninety percent (90%).
17.05 Compensation Limitations. Shall mean the first $200,000 (or,
beginning January 1, 1988, such larger amount as the (Commissioner of Internal
Revenue may prescribe) of Compensation pursuant to Code Section 416(d).
17.06 Participation In More Than One Plan. If a Non-Key Employee
participates in a Top-Heavy Defined Benefit Plan maintained by the Employer,
Section 17.02 will not apply to the Non-Key Employee and the Top-Heavy Defined
Benefit Plan will provide the "minimum benefit accrual," offset by the benefit
provided in this Defined Contribution Plan.
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<PAGE> 60
ARTICLE XVIII - MISCELLANEOUS
18.01 Execution of Receipts and Releases, Any payment to any
Participant, or to his legal representative or Beneficiary, in accordance with
the provisions of the Plan, shall to the extent thereof be in full satisfaction
of all claims hereunder against the Plan and Trust Fund. The Administrative
Committee may require such a Participant, legal representative, or Beneficiary,
as a condition precedent to such payment, to execute a receipt and release
therefore in such form as it shall determine.
18.02 No Guarantee of Interests. Neither the Trustee (if applicable),
the Insurer, the Administrative Committee, nor the Employer guarantee the Trust
Fund from loss or depreciation. The Employer does not guarantee the payment of
any money which may be or becomes due to any person from the Trust Fund. The
liability of the Administrative Committee and the Trustee or Insurer to make
any payment from the Trust Fund is limited to the then available assets of the
Trust Fund.
18.03 Payment of Expenses. All expenses incident to the
administration, termination, protection of the Plan and Trust Fund, including
but not limited to legal, accounting, and Trustee or investment management fees
shall be paid by the Employer, except that in case of failure of Employer to
pay the expenses they will be paid from the Trust Fund, and until paid, shall
constitute a first and prior claim and lien against the Trust Fund.
18.04 Employer Records. Records of the Employer as to an Employee's or
Participant's period of employment, termination of employment and the reason
therefore, leaves of absence, re-employment and compensation will be conclusive
for all persons, unless determined to be incorrect.
18.05 Interpretations and Adjustments. To the extent permitted by law,
an interpretation of the Plan and a decision of any matter within the Named
Fiduciary's discretion made in good faith is binding on all persons. A
misstatement or other mistake of fact shall be corrected when it becomes known
and the person responsible shall make such adjustment on account thereof as he
considers equitable and practicable.
18.06 Uniform Rules. In the administration of the Plan, uniform rules
will be applied to all Participants similarly situated.
18.07 Evidence. Evidence required of anyone under the Plan may be by
certificate, affidavit, document or other information, which the person acting
on it considers pertinent and reliable, and signed, made or presented by the
proper party or parties.
18.08 Severability. In the event any provision of the Plan shall be
held to be illegal or invalid for any reason, the illegal or invalid provisions
of the Plan shall be fully severable and the Plan shall be construed and
enforced as if the illegal or invalid provision had never been included herein.
18.09 Notice. Any notice required to be given herein by the Trustee,
the Employer, or the Administrative Committee, shall be deemed delivered, when
personally delivered, or placed in the United States mail, in an envelope
addressed to the last known address of the person to whom the notice is given.
18.10 Waiver of Notice. Any person entitled to notice under the Plan
may waive the notice.
18.11 Successors. The Plan shall be binding upon all persons entitled
to benefits under the Plan, their respective heirs and legal representatives,
upon the Employer, its successors and assigns, and upon the Trustee, the
Administrative Committee, and their successors.
18.12 Headings. The titles and headings of Articles and sections are
included for convenience of reference only and are not to be considered in
construction of the provisions hereof.
58
<PAGE> 61
18.13 Governing Law. All questions arising with respect to the
provisions of this Agreement shall be determined by application of the laws of
the State of North Carolina, except to the extent North Carolina law is
preempted by Federal statute.
59
<PAGE> 62
Signed the ____ day of _______, 1990, but effective as of the 1st day
of September 1990.
WENDOVER FUNDING, INC.
---------------------------------------
Jeffrey S. Taylor - President
Attest:
- ---------------------------------------
Secretary
60
<PAGE> 1
Exhibit 5.1
September 23, 1994
State Street Boston Corporation
225 Franklin Street
Boston, Massachusetts 02110
Re: Wendover Funding, Inc. Employees' Savings Plus and Profit Sharing Plan
----------------------------------------------------------------------
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Act"), of 100,000 shares (the
"Shares") of Common Stock, par value $1.00 per share (the "Common Stock"), of
State Street Boston Corporation (the "Company") which may be acquired by
eligible employees of Wendover Funding, Inc. and certain of its affiliates
under the provisions of the Wendover Funding, Inc. Employees' Savings Plus and
Profit Sharing Plan (the "Plan") and of interests in the Plan.
We have acted as counsel to the Company in connection with the
registration of the Shares and interests in the Plan under the Act. We have
examined the Articles of Organization and the By-laws of the Company; such
records of the corporate proceedings of the Company as we deemed necessary; a
Registration Statement on Form S-8 under the Act relating to the Shares (the
"Registration Statement"); the Plan; and such other certificates, receipts,
records and documents as we considered necessary for the purposes of this
opinion.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and the Commonwealth of
Massachusetts.
Based upon the foregoing, we are of the opinion that eligible employees
who participate in the Plan as provided therein will have valid interests in
the Plan in accordance with the terms of the Plan; and that upon the issuance
and sale of authorized but unissued shares of Common Stock to the Trustee under
the Plan for consideration in accordance with the terms of the Plan but not
less than par value, such Shares will be validly issued, fully paid and
non-assessable shares of the Company's Common Stock and such Shares will, upon
distribution thereof to eligible employees or their beneficiaries in accordance
with the terms of the Plan, be validly issued, fully paid and non-assessable in
the hands of such employees and beneficiaries.
<PAGE> 2
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the above-
referenced Registration Statement.
Very truly yours,
GOODWIN, PROCTER & HOAR
<PAGE> 1
INTERNAL REVENUE SERVICE Exhibit 5.2
DISTRICT DIRECTOR
P.O. BOX 941
ATLANTA, GA 30370
Employer Identification Number:
Date: October 22, 1993 56-1505554
File Folder Number:
WENDOVER FUNDING, INC. 560038032
C/O PAUL A. JALAZO Person to Contact:
P.O. BOX 14967 TERRY BATES
GREENSBORO, NC 27415 Contact Telephone Number:
(404) 331-7638
Plan Name:
WENDOVER FUNDING, INC. EMPLOYEES'
SAVINGS PLUS & PROFIT SHARING PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b) (3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal
or local statutes.
This determination letter is applicable for the amendment(s) adopted on
5/6/91 & 10/28/91.
This determination letter is also applicable for the amendment(s)
adopted on 9/24/92 & 4/14/92.
This determination letter is applicable for the plan adopted on 8/14/90.
Letter 835 (DO/CG)
<PAGE> 2
WENDOVER FUNDING, INC.
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore, the certification and
demonstrations are considered an integral part of this letter. Accordingly,
YOU MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD OR YOU WILL NOT
BE ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE 91-66.
Effective January 1, 1993, all qualified plans must comply with Code
section 401(a) (31). In general, section 401(a) (31) requires plans to permit
participants to elect to have an eligible retirement distribution paid directly
to an eligible retirement plan in a direct rollover. This requirement applies
to distributions made on or after January 1, 1993, even if the plan isnot
amended to comply with the provisions until the last date allowed for making
such amendments. Because you did not specifically ask that this issue be
considered, the Service did not review the plan for compliance with section
401(a)(31). Accordingly, the scope of this determination letter does not extend
to the plan's compliance with section 401(a)(31), and this determination letter
may not be relied upon with respect to that issue. For more details, see
Revenue Procedure 93-12, 1993-3 I.R.B. 14.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have any questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Paul Williams
Paul Williams
District Director
Enclosures
Publication 794
<PAGE> 1
Exhibit 15
STATE STREET BOSTON CORPORATION
Independent Accountants' Acknowledgement Letter
The Stockholders and Board of Directors
State Street Boston Corporation
We are aware of the incorporation by reference in the Registration Statement on
Form S-8 dated September 22, 1994 of State Street Boston Corporation pertaining
to the Wendover Funding, Inc. Employees' Savings Plus and Profit Sharing Plan
of Wendover Funding, Inc. a subsidiary of State Street Boston Corporation for
the registration of 100,000 shares of its common stock of our reports dated
April 15, 1994 and July 18, 1994 relating to the unaudited consolidated interim
financial statements of State Street Boston Corporation which are included in
its Forms 10-Q for the quarters ended March 31, 1994 and June 30, 1994.
Pursuant to Rule 435(c) of the Securities Act of 1933, our report is not a part
of the registrations statements prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
Ernst & Young LLP
Boston, Massachusetts
September 21, 1994
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Company's Registration
Statement on Form S-8 dated September 22, 1994 pertaining to the Wendover
Funding, Inc. Employees' Savings Plus and Profit Sharing Plan of Wendover
Funding, Inc., a subsidiary of State Street Boston Corporation, of our report
dated January 13, 1994, with respect to the consolidated financial statements
of State Street Boston Corporation included in its Annual Report (Form 10-K)
for the year ended December 31, 1993, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
September 21, 1994
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 dated September 22, 1994 pertaining to the Wendover
Funding, Inc. Employees' Savings Plus and Profit Sharing Plan of Wendover
Funding, Inc. of our report dated July 19, 1994 with respect to the financial
statements and schedules of the Wendover Funding, Inc. Employees' Savings Plus
and Profit Sharing Plan included in the Annual Report (Form 11-K) for the
year ended December 31, 1993.
ERNST & YOUNG LLP
Winston-Salem, North Carolina
September 21, 1994
