As filed with the Securities and Exchange Commission on September 30, 1997
Registration No. 333-________
_________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_________________________________________________________________
STATE STREET CORPORATION.
(Exact name of registrant as specified in its charter)
Massachusetts 04-2456637
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of Principal Executive Offices) (Zip Code)
INVESTORS FIDUCIARY TRUST COMPANY INVESTMENT SAVINGS PLAN
(Full title of the Plan)
JOHN R. TOWERS, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
225 FRANKLIN STREET, BOSTON, MA 02110
_________________________________________
(Name and address of agent for service)
(617) 786-3000
(Telephone number, including area code, of agent for service)
Please send copies of all correspondence to:
INVESTORS FIDUCIARY TRUST
COMPANY
127 West 10th Street
Kansas City, Missouri 64105-1716
Attention: Marvin Rau, Esq.
(816) 435-5619
ROPES & GRAY
One International Place
Boston, Massachusetts 02110-2624
Attention: Champe A. Fisher, Esq.
(617) 951-7000
STINSON, MAG & FIZZELL, P.C.
1201 Walnut Street
Kansas City, Missouri 64106
Attention: James W. Allen, Esq.
(816) 842-8600
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount to offering aggregate Amount of
to be be price per offering registration
registered/1/ registered/1/ share /2/ price /2/ fee
Common Stock,
$1.00 par
value 5000 shares/2/ $58.13 $290,650 $100.00
/1/ Includes Preferred Share Purchase Rights. Prior to the
occurrence of certain events the Preferred Share Purchase
Rights will not be evidenced separately from the Common
Stock. The provisions of Rule 416 of the Securities Act of
1933 (the "Act") shall apply to this Registration Statement
and the number of shares registered under this Registration
Statement automatically shall increase or decrease as a
result of stock splits, stock dividends, recapitalization or
other changes in the Registrant's capital stock. In
addition, pursuant to Rule 416(c) under the Act, this
Registration Statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the employee
benefit plan herein described.
/2/ Estimated solely for purposes of calculating the amount of
the registration fee, based on the average of the high and
low prices of the Common Stock on September 26, 1997 as quoted
on the New York Stock Exchange, pursuant to Rule 457(h) of the
Securities Act of 1933.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
State Street Corporation (the "Registrant") and the
Investors Fiduciary Trust Company Investment Savings Plan (the
"Plan") hereby incorporate by reference into this Registration
Statement the following documents: (i) the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1996; (ii)
the Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997 and June 30, 1997, respectively; and (iii)
the description of the Registrant's Common Stock, $1.00 par
value, included in the Registrant's registration statement on
Form 8-A; (iv) the Registrant's Current Report on Form 8-K dated
December 20, 1996; (v) the Registrant's Current Report on Form 8-K
dated March 11, 1997; and (vi) all other reports filed by the
Registrant with the Commission pursuant to Section 13(a) and
Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since the end of the fiscal year covered by the
Registrant's Annual Report referred to above. All documents
filed by the Registrant and the Plan pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange after the date
hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered 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, except that any information included in any such
document in response to Item 402(i), (k) or (l) of Regulation S-K
shall not be deemed to constitute a part of this Registration
Statement. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes
such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements of the Registrant at
December 31, 1996 and 1995, and for each of the three years in
the period ended December 31, 1996, incorporated by reference in
the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report therein
incorporated by reference and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority
of such firm as experts in auditing and accounting.
<PAGE>
With respect to the unaudited interim consolidated financial
information for the three month periods ended March 31, 1997 and
June 30, 1997, incorporated by reference in this Registration
Statement, Ernst & Young LLP have reported that they applied
limited procedures in accordance with professional standards for
review of such information. However, their separate reports,
included in the Registrant's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1997 and June 30, 1997 and
incorporated herein by reference, state that they did not audit
and do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their report
on such information should be the liability provisions of Section
11 of the Securities Act of 1933 for their reports on the
unaudited interim financial information because those reports are
not "reports" or "parts" of the Registration Statement prepared
or certified by the auditors within the meaning of Sections 7 and
11 of the Securities Act of 1933.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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 a corporation may indemnify directors,
officers, employees and other agents of the corporation (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.
<PAGE>
The Restated Articles of Organization of the Registrant
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
not 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 relates 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 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.
<PAGE>
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 corporation 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.
A director of this corporation shall not be
personally liable to the corporation or its
stockholders for monetary damages for breach of
fiduciary <PAGE> duty as a director notwithstanding any
provision of law imposing such liability, provided,
however, that this paragraph of Article Six shall not
eliminate the liability of a director to the extent
such liability is imposed by applicable law (i) for any
breach of the director's duty of loyalty to this
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) for any transaction from which the director
derived an improper personal benefit, or (iv) for
paying a dividend, approving a stock repurchase or
making loans which are illegal under certain provisions
of Massachusetts law, as the same exists or hereafter
may be amended. If Massachusetts law is hereafter
amended to authorize the further limitation of the
legal liability of the directors of this corporation,
the liability of the directors shall then be deemed to
be limited to the fullest extent then permitted by
Massachusetts law as so amended. Any repeal or
modification of this paragraph of this Article Six
which may hereafter be effected by the stockholders of
this corporation shall be prospective only, and shall
not adversely affect any limitation on the liability of
a director for acts or omissions prior to such repeal
or modification.
In addition, the Registrant maintains a directors' and
officers' liability insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in
the Exhibit Index on page 13 of this Registration Statement,
which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to
this Registration Statement:
(i) To include any prospectus
required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus
any facts or events arising after the
effective date of the Registration Statement
(or the most recent post-effective amendment
thereof) which, individually or in the
aggregate, represent a fundamental change in
the information set forth in the Registration
Statement;
<PAGE>
(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 (1)(i) and
(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant, 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.
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
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 18, 1997.
STATE STREET CORPORATION
By /s/ Rex S. Schuette
Rex S. Schuette
Senior Vice President and
Comptroller
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities indicated on September 18, 1997.
We, the undersigned officers and directors of State Street
Corporation (the "Corporation") hereby severally constitute and
appoint Ronald L. O'Kelley, John R. Towers and Rex S. Schuette,
and each of them singly, our true and lawful attorneys with full
to them, and each of them singly, to sign for us and in our names
in the capacities as indicated, any and all amendments or
supplements to the Registration Statement on Form S-8 of the
Corporation, and generally to do all such things in our name and
on our behalf in our capacities as indicated to enable the
Corporation to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our
signatures as they may be required by our said attorneys or any
of them, to any and all amendments.
<PAGE>
Signature Title
/s/ Marshall N. Carter
MARSHALL N. CARTER Chairman and Chief Executive
Officer and Director
(Principal Executive Officer)
/s/ Ronald L. O'Kelley
RONALD L. O'KELLEY Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
/s/ Rex S. Schuette
REX S. SCHUETTE Senior Vice President and
Comptroller (Principal
Accounting Officer)
/s/ Tenley E. Albright
TENLEY E. ALBRIGHT Director
/s/ Joseph A. Bautte
JOSEPH A. BAUTE Director
/s/ I. MacAllister Booth
I. MACALLISTER BOOTH Director
/s/ James I. Cash, Jr.
JAMES I. CASH, JR. Director
/s/ Truman S. Casner
TRUMAN S. CASNER Director
/s/ Nader F. Darehshori
NADER F. DAREHSHORI Director
/s/ Arthur L. Goldstein
ARTHUR L. GOLDSTEIN Director
/s/ Charles F. Kaye
CHARLES F. KAYE Director
/s/ John M. Kucharski
JOHN M. KUCHARSKI Director
/s/ Charles R. Lamantia
CHARLES R. LAMANTIA Director
<PAGE>
/s/ David B. Perini
DAVID B. PERINI Director
/s/ Dennis J. Picard
DENNIS J. PICARD Director
_______________________
ALFRED POE Director
/s/ Bernard W. Reznicek
BERNARD W. REZNICEK Director
/s/ David A. Spina
DAVID A. SPINA Director
/s/ Robert E. Weissman
ROBERT E. WEISSMAN Director
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee
benefit plan) have duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Kansas City, Missouri, on the 29th day
of September, 1997.
INVESTORS FIDUCIARY TRUST
COMPANY INVESTMENT
SAVINGS PLAN,
By /s/ Stephen Hilliard
Name: Stephen Hilliard
Title: Executive Vice President
Chief Financial Officer
Trustee
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
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, 1995, 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 Form of Common Stock Certificate (filed *
as Exhibit 4.3 to the Registrant's
Registration Statement on Form S-3
dated June 20, 1995)
4.4 The description of the Registrant's *
Common Stock included in the Company's
effective registration statement report
on Form 10, as filed with the Securities
and Exchange Commission on September 3,
1970 and amended on May 12, 1971 and
incorporated by reference
4.5 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 Form 8-K dated September 30, 1988 and
incorporated by reference)
<PAGE>
4.6 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 Form
10-Q for the quarter ended September 30, 1990
and incorporated by reference)
4.7 Indenture dated as of May 1, 1983 between *
State Street Boston Corporation and Morgan
Guaranty Trust Company of New York, Trustee,
relating to the Company's 7 3/4% Convertible
Subordinated Debentures due 2008 (filed with
the Securities and Exchange Commission as
Exhibit 4 to the Registrant's Registration
Statement on Form S-3 filed on April 22, 1983,
Commission File No. 2-83251 and incorporated by
reference)
4.8 Indenture dated as of August 2, 1993 between *
State Street Boston Corporation and The First
National Bank of Boston, as trustee (filed
with the Securities and Exchange Commission as
Exhibit 4 to the Registrant's Current Report on
Form 8-K dated October 8, 1993 and incorporated
by reference)
4.9 Instrument of Resignation, appointment, and *
acceptance, dated as of February 14, 1996
between State Street Boston Corporation,
The First National Bank of Boston (resigning
trustee) and Fleet National Bank of
Massachusetts (successor trustee) (filed
with the Securities and Exchange Commission as
Exhibit 4.6 to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1995
and incorporated by reference)
<PAGE>
4.10.1 Investors Fiduciary Trust Company Investment
Savings Plan Adoption Agreement
4.10.2 Amendment to Investors Fiduciary Trust
Company Investment Savings Plan
4.10.3 Second Amendment to Investors Fiduciary
Trust Company Investment Savings Plan
4.10.4 Third Amendment to Investors Fiduciary
Trust Company Investment Savings Plan
4.10.5 Fourth Amendment to Investors Fiduciary
Trust Company Investment Savings Plan
4.10.6 Investors Fiduciary Trust Company Investment
Savings Plan Document (contained on Aon
Consulting Prototype Profit Sharing and
Employee Savings Plan and Trust)
5. IRS Determination Letter for the Investors
Fiduciary Trust Company Investment Savings
Plan, as amended.
15.1 Letter from Ernst & Young LLP re unaudited
interim financial information.
23.1 Consent of Ernst & Young LLP, the Registrant's
independent public accountants.
24. Power of Attorney (included on signature page *
hereto).
____________
* Incorporated herein by reference
EXHIBIT 4.10.1
GODWINS BOOKE & DICKENSON
PROTOTYPE PROFIT SHARING
AND
EMPLOYEE SAVINGS PLAN AND TRUST
STANDARDIZED FORM/CUSTOMIZED
ADOPTION AGREEMENT - 001
The Employer hereby makes the following declarations,
designations, and elections for purposes of the plan and trust:
I. EMPLOYER INFORMATION
A. Name: Investors Fiduciary Trust Company
B. Address: 127 West 10th Street, Kansas City, MO 64105
C. Telephone: (816) 435-8980
D. Employer Identification (or Social Security) Number:
43-0995254
E. Type of entity: [Select one]
X (1) Corporation
____ (2) Partnership
____ (3) Sole Proprietorship
____ (4) S Corporation
F. Nature of Employer's Business: Financial Services
G. Primary Standard Industry Code (SIC): 7300
H. Date of Incorporation or Commencement of Business: 1972
I. State of Incorporation or State of Principal Business
Activity: Missouri
J. Fiscal Year End: December 31
<PAGE>
K. Other corporations or trades or businesses affiliated with
or in the same controlled group of corporations or trades or
businesses as the Employer:
(1) Name: State Street Boston Corp
Address: 225 Franklin Street, Boston, MA 02110
Employer Identification Number: 04-2456637
(2) Name:
Address:
Employer Identification Number:
(3) Name:
Address:
Employer Identification Number:
If there are additional members of the same affiliated or
controlled group of corporations or trades or businesses as
the Employer, please attach a statement containing the above
information for each additional member.
II. PLAN FIDUCIARIES
[Numbers shown in parenthesis throughout the remainder of
this Adoption Agreement are references to sections of the
accompanying plan document.]
A. Committee (1.12, 10; 12.1.2): [Insert the names of the
individuals to be appointed by the Board]
David Fishman
Stephen Hilliard
Michelle Warner
<PAGE>
B. Plan Administrator (1.44; 10; 12.1.3): [Select one and
complete, if necessary]
____ (1) The chairman of the Committee.
X (2) The Committee.
____ (3) Other:
C. Trustee(s) (1.61; 12.1.4; 20):
(1) Name: Investors Fiduciary Trust Company
Address: 127 West 10th Street, Kansas City, MO
Telephone: (816) 435-8980
Employer Identification Number or Social Security
Number:
(2) Name:
Address:
Telephone:
Employer Identification Number or Social Security
Number:
(3) Name:
Address:
Telephone:
Employer Identification Number or Social Security
Number:
III. STATUS OF THE PLAN
A. Name of the plan (1.43): Investors Fiduciary Trust Company
Investment Savings Plan
B. Original effective date (1.19): January 1, 1996
<PAGE>
C. If this plan is an amendment and restatement of an existing
plan, except as otherwise provided in the plan document, the
effective date of this amendment and restatement shall be
(1.19; 17):
N/A
D. Plan year end (1.45): December 31
E. Limitation year (23.5.9): December 31
F. Plan number: 001
G. Governing state law (24.9): Missouri
IV. PARTICIPATION
A. All employees of the Employer shall be eligible to
participate in the plan, except the following (1.21):
[Select the desired exclusions]
X (1) No exclusions will apply.
____ (2) Employees included in a unit of employees
covered by a collective bargaining agreement
between the Employer and employee
representatives, if retirement benefits were
the subject of good faith bargaining and if
two percent or less of the employees who are
covered pursuant to that agreement are
professionals as defined in Section
1.410(b)-9 of the Regulations. For this
purpose, the term "employee representatives"
does not include any organization more than
half of whose members are employees who are
owners, officers, or executives of the
Employer.
____ (3) Employees who are nonresident aliens (within
the meaning of Section 7701(b)(1)(B) of the
Code) and receive no earned income (within
the meaning of Section 911(d)(2) of the Code)
from the Employer which constitutes income
from sources within the United States (within
the meaning of Section 861(a)(3) of the
Code).
B. Number of years of service required to participate (1.40):
[Select one]
____ (1) 0 Years of Service.
X (2) 1 Year of Service.
<PAGE>
X (3) Other: Employees as of 12/31/95 will enter
1/l/96 with credit for prior years of
service. Employees hired from other members
of the controlled group will have their years
there counted for eligibility and vesting
purposes
[not to exceed one year of service].
C. Minimum age required to participate (1.40): [Select one]
____ (1) No minimum age required.
X (2) 21 years of age.
____ (3) ___ years of age [not to exceed 20 1/2 years of
age].
D. Entry date (1.28): [Select one]
____ (1) First day of the first payroll period
beginning after the employee's date of hire.
____ (2) First day of the first payroll period after
the completion of any minimum age and service
requirements chosen above.
____ (3) First day of the month coincident with or
next following the completion of any minimum
age and service requirements chosen above.
____ (4) First day of the plan year or seventh month
of the plan year, whichever is earlier,
coincident with or next following the
completion of any minimum age and service
requirements chosen above.
X (5) First day of the plan year quarter coincident
with or next following the completion of any
minimum age and service requirements chosen
above.
____ (6) First day of the plan year coincident with or
next following the completion of any minimum
age and service requirements chosen above.
[Note: This option (6) may only be
selected if the number of months of
service required to participate is
six or less.]
____ (7) First day of the plan year in which any
minimum age and service requirements chosen
above are completed.
[Note: This option (7) is a retroactive
entry date.]
<PAGE>
V. SERVICE
A. Method for determining service for each employee (1.34,
1.41): [Select one]
X (1) Service will be determined on the basis of hours
of service calculated as follows: [Select one]
X (a) On the basis of actual hours for which
an employee is paid or entitled to
payment.
____ (b) On the basis of days worked. An employee
shall be credited with 10 hours of
service for each day if he would be
credited with at least one hour of
service for such day under the plan.
____ (c) On the basis of weeks worked. An
employee shall be credited with 45 hours
of service for each week if he would be
credited with at least one hour of
service for such week under the plan.
____ (d) On the basis of semi-monthly payroll
periods. An employee shall be credited
with 95 hours of service for each
payroll period if he would be credited
with at least one hour of service for
such payroll period under the plan.
____ (e) On the basis of calendar months worked.
An employee shall be credited with 190
hours of service for each month if he
would be credited with at least one hour
of service for the month under the plan.
____ (2) Service will be determined on the basis of
elapsed time.
B. Prior service with certain affiliated employers (1.52.2):
[Select one]
____ (1) Service with an employer prior to such
employer becoming an affiliated employer
shall not be recognized.
X (2) Service with an employer prior to such
employer becoming an affiliated employer
shall be recognized.
<PAGE>
VI. COMPENSATION
A. Compensation defined (1.13; 23.5.2):
A participant's "compensation" used in determining the
amount of contributions and forfeitures, if any, allocable
to such participant's account under the plan shall mean all
of his: [Select one]
X (1) W-2 earnings (Box 1), as defined in Section
23.5.2(i) of the plan.
____ (2) Code Section 3401(a) wages, as defined in
Section 23.5.2(ii) of the plan.
____ (3) Code Section 415 safe-harbor compensation, as
defined in Section 23.5.2(iii) of the plan.
B. In determining the amount of a participant's compensation to
be used in calculating the amount of contributions and
forfeitures, if any, allocable to such participant's
account, certain salary reduction amounts shall be treated
as follows (1.13): [Select one]
____ (1) Compensation shall not include Employer
contributions made pursuant to a salary -
reduction agreement which are not includable
in the gross income of the employee under
Sections 125, 402(g)(3), 402(h), or 403(b) of
the Code.
X (2) Compensation shall include Employer
contributions made pursuant to a salary
reduction agreement which are not includible
in the gross income of the employee under
Sections 125, 402(g)(3), 402(h), or 403(b) of
the Code.
C. Compensation considered (1.13):
The compensation of a participant used in determining the
amount of contributions and forfeitures, if any, allocable
to such participant's account under the plan shall include
compensation actually paid to such participant during: [
Select one]
X (1) The plan year. [Note: This option must be
elected if the Employer elects for the plan
to include a Cash or Deferred Arrangement
under item VII below.]
____ (2) The taxable year ending with or within the
plan year.
____ (3) The limitation year ending with or within the
plan year.
<PAGE>
VII. CASH OR DEFERRED ARRANGEMENT
A. ____ The plan shall not include a Cash or Deferred
Arrangement described in Section 401(k) of the Code
(2.1).
[If the above option is selected, do not complete the
remaining questions of item VII.]
X The plan shall include a Cash or Deferred
Arrangement described in Section 401(k) of the
Code.
[If the above option is selected, please complete
the remaining questions of item VII.]
B. Elective deferrals (1.20; 2.1):
(1) Amount of elective deferrals: [Select any applicable
options and complete as appropriate]
A participant may elect to have his compensation (as
selected under Item VI. above) reduced by the following
percentage or amount per payroll period, as designated
in writing to the plan administrator: [Select and
complete one or both options below]
X (a) Up to 14% of the employee's compensation
considered under the plan.
____ (b) An amount not in excess of $______.
(2) Change of elective deferrals (2.1.1):
A participant may modify the amount of elective
deferrals contributed to the plan on his behalf
effective as of the first full payroll period beginning
on or after the: [Select one]
____ (a) First day of the next succeeding plan year.
____ (b) First day of the plan year and the first day
of the seventh month of the plan year.
X (c) First day of the next plan year quarter.
____ (d) First day of the next succeeding month.
<PAGE>
____ (e) Receipt by the Committee of the participant's
election to modify the amount of his elective
deferrals.
(3) Distribution of elective deferrals (3.8; 6.5):
Elective deferrals (and any qualified non-elective
contributions and qualified matching contributions) and
income allocable to such amounts shall be distributable
upon termination of service, death, or disability, and
upon: [Select one or more]
____ (a) No other events.
X (b) Termination of the plan without the
establishment of another defined
contribution plan (other than an
employee stock ownership plan as defined
in Section 4975(e) of the Code).
X (c) The disposition by the Employer to an
unrelated corporation of substantially
all of the assets (within the meaning of
section 409(d)(2) of the Code) used in a
trade or business of the Employer, where
(i) the participant is employed by such
trade or business and continues
employment with the entity acquiring
such assets, and (ii) the Employer
continues to maintain the plan after the
sale or other disposition.
X (d) The disposition by the Employer to an
unrelated entity of the Employer's
interest in a subsidiary (within the
meaning of section 409(d)(3) of the
Code), where (i) the participant is
employed by such subsidiary and
continues employment with such
subsidiary following such sale or other
disposition, and (ii) the Employer
continues to maintain the plan after the
sale or other disposition.
X (e) The participant's attainment of age 59
1/2.
X (f) The hardship of the participant as
described in Section 6.3 of the plan.
[If elected, this option shall not apply
to (i) qualified non-elective
contributions, (ii) qualified matching
contributions, (iii) income allocable to
such amounts, or (iv) income allocable
to elective deferrals after the end of
the last plan year ending before July 1,
1989.]
<PAGE>
C. Qualified non-elective contributions (1.47; 2.1.5):
(1) Qualified non-elective contributions made by the
Employer to enable the plan to satisfy the actual
deferral percentage ("ADP") test and the average
contribution percentage ("ACP") test shall be allocated
to the accounts of: [Select one]
____ (a) All participants.
____ (b) Only non-highly compensated
participants.
X (c) A group of non-highly compensated
participants designated by
the Committee.
(2) The formula for allocating qualified non-elective
contributions among those participants selected in Item
VII.C.(1) above shall be as follows: [Select one]
X (a) In the ratio which each participant's
compensation for the plan year bears to
the total compensation of all
participants for such plan year.
____ (b) In the ratio which each participant's
compensation not in excess of $_______
for the plan year bears to the total
compensation of all participants not in
excess of $_______ for such plan year.
____ (c) $______ for each participant.
(3) In order to share in any qualified non-elective
contribution made with respect to a plan year, an
employee must be a participant during such plan year,
and must (2.1.5; 2.1.8): [Select one]
X (a) Fulfill no additional requirements.
____ (b) Complete a year of service within the
plan year.
____ (c) Be in the service of the Employer on the
adjustment date as of which the
qualified non-elective contribution is
allocated.
____ (d) Complete a year of service within the
plan year and be in the service of the
Employer on the year-end adjustment date
as of which the qualified non-elective
contribution is allocated.
<PAGE>
D. Qualified matching contributions (1.46; 2.1.4; 2.3.2):
(1) Qualified matching contributions made by the Employer
to enable the plan to satisfy the ADP test and/or the
ACP test shall be allocated to the accounts of: [Select
one]
____ (a) All participants who make elective
deferrals or employee after-tax
contributions for the plan year.
____ (b) Only non-highly compensated participants
who make elective deferrals or employee
after-tax contributions for the plan
year.
X (c) A group of non-highly compensated
participants designated by the
Committee.
(2) In order to share in any qualified matching
contributions made with respect to a plan year, an
employee must be a participant with respect to such
plan year, and must (2.3.2): [Select one]
X (a) Fulfill no additional requirements.
____ (b) Complete a year of service within the
plan year.
____ (c) Be in the service of the Employer on the
adjustment date as of which the
qualified matching contribution is
allocated.
____ (d) Complete a year of service within the
plan year and be in the service of the
Employer on the year-end adjustment date
as of which the qualified matching
contribution is allocated.
VIII. EMPLOYEE AFTER-TAX CONTRIBUTIONS
A. X (1) Participants shall not be permitted to make
employee after-tax contributions to the plan
(2.2).
[If the above option is selected, do not
complete the remaining questions in this item
VIII.]
____ (2) Participants shall be permitted to make
employee after-tax contributions to the plan.
[If the above option is selected, please
complete the remaining questions in this item
VIII.]
<PAGE>
B. Amount of employee after-tax contributions (2.2.1): [Select
one or both and complete as appropriate]
A participant may elect to make employee after-tax
contributions to the plan each payroll period, subject
to the following limitations:
____ (a) Up to __% of the employee's compensation
considered under the plan.
____ (b) An amount not in excess of $_______.
C. Change of employee after-tax contributions (2.2.2):
A participant may modify the amount of his employee
after-tax contributions to the plan effective as of the
first full payroll period beginning on or after the:
[Select one]
____ (a) First day of the next following plan
year.
____ (b) First day of the plan year and the first
day of the seventh month of the plan
year.
____ (c) First day of the next plan year quarter.
____ (d) First day of the next succeeding month.
____ (e) Receipt by the Committee of the
participant's election to modify the
amount of his employee after-tax
contributions.
D. Withdrawals from employee after-tax contribution account
(6.2): [Select one and complete as appropriate]
____ (1) Except as otherwise provided in XI. E. or G.,
amounts allocated to a participant's employee
after-tax contribution account shall not be
withdrawn prior to his termination of
service, death, or disability.
____ (2) In addition to any withdrawal rights provided
in XI. E. or G., at a participant's request,
amounts allocated to his employee after-tax
contribution account may be withdrawn prior
to his termination of service, death, or
disability, subject to the following
conditions: [Complete (a); also complete (b)
if daily adjustment dates have been selected,
also complete (c) through (f) as appropriate]
<PAGE>
(a) A participant may not request more
than ______ [not to exceed four]
withdrawals during a plan year.
(b) No withdrawal shall exceed
________% of the amount in the
participant's employee after-tax
contribution account, determined on
the date the withdrawal request is
actually processed.
(c) No withdrawal shall be made in an
amount less than $______ [Insert
amount not in excess of $1,000]
(d) No withdrawal may be made until the
Participant has taken all available
withdrawals from the following
accounts:
(e) A withdrawal may only be made if
the Participant incurs a financial
hardship. For purposes of this
paragraph, a "financial hardship"
is defined as .
(f) A participant who receives a
withdrawal shall not be eligible to
contribute to the plan
[Insert type of contribution
affected and period of suspension]
IX. MATCHING CONTRIBUTIONS AND DISCRETIONARY EMPLOYER
Contributions
A. Matching contributions (1.36; 2.3):
____ The Employer shall not make matching contributions to
the plan.
[If the above option is selected, do not complete
the remaining questions in this item IX.A.;
proceed to item IX.B.]
X The Employer shall make matching contributions to the
plan.
[If the above option is selected. please complete
the remaining questions in this item IX.]
(1) Employer matching contributions shall be allocated
according to the terms of the plan among: [Select one]
X (a) All participants
<PAGE>
____ (b) All participants who are non-highly
compensated employees who have made elective
deferrals and/or employee after-tax
contributions, as appropriate, to the plan
for such plan year.
(2) The amount of matching contributions contributed to the
plan by the Employer with respect to each participant's
elective deferrals and/or employee after-tax
contributions made during a plan year shall equal:
[Select one or more]
X (a) 100% of the first 3 % of the
participant's elective deferrals,
______% of the next ___% of the participant's
elective deferrals, and
______% of the remaining ____% of the
participant's elective deferrals, but
not to exceed a total matching contribution
of $_______.
____ (b) ____% of the first ____% of the participant's
employee after-tax contributions,
______% of the next ___% of the participant's
employee after-tax contributions, and
______% of the remaining ____% of the
participant's employee after-tax
contributions, but
not to exceed a total matching contribution
of $_______.
____ (c) __% of the aggregate of the participant's
elective deferrals and employee after-tax
contributions, not to exceed the first ___%
of the participant's compensation, but not to
exceed a total matching contribution of
$_________.
____ (d) ___% of the first _____% of the aggregate of
the participant's elective deferrals and
employee after-tax contributions,
___% of the next ___% of the aggregate of the
participant's elective deferrals and employee
after-tax contributions, and
___% of the remaining ___% of the aggregate
of the participant's elective deferrals and
employee after-tax contributions, but not to
exceed a total matching contribution of
$______.
<PAGE>
____ (e) A uniform amount or percentage of elective
deferrals and/or employee after-tax
contributions determined with respect to each
plan year by the Employer prior to the first
day of such plan year, but not to exceed a
total matching contribution of $_____.
____ (f) A uniform amount or percentage of elective
deferrals and/or employee after-tax
contributions determined each plan year by
the Employer in its discretion.
____ (g) $_______ for each participant making elective
deferrals during the plan year.
____ (h) $_______ for each participant making employee
after-tax contributions during the plan year.
____ (i) $________ for each participant making
elective deferrals and/or employee after-tax
contributions during the plan year.
____ (j) Such additional amount or percentage as the
Employer in its discretion shall determine to
be allocated in the same manner as chosen
above.
(3) In order to share in any matching contribution made
with respect to a plan year, an employee must be a
participant with respect to such plan year, and must
(2.3): [Select one]
X (a) Fulfill no additional requirements.
____ (b) Either be in the service of the Employer on
the adjustment date as of which the matching
contribution is allocated, or complete more
than 500 hours of service during the plan
year.
(4) ____ The requirements of item IX.A.(3) above shall not
apply with respect to a participant who retires,
including disability retirement, or dies while in
service during a plan year.
____ The requirements of item IX.A.(3) above shall
apply with respect to a participant who retires,
including disability retirement, or dies while in
service during a plan year.
<PAGE>
(5) Withdrawals from matching contribution account (6.1):
[Select one]
X (a) Except or otherwise provided in XI.E. or G.,
amounts allocated to a participant's matching
contribution account shall not be withdrawn prior
to his termination of service, death, or
disability.
____ (b) In addition to any withdrawal rights provided in
XI.E. or G., at a participant's request, amounts
allocated to his matching contribution account may
be withdrawn prior to his termination of service,
death, or disability, subject to the following
conditions: [Complete (i), complete (ii) if daily
adjustment dates have been selected, and select
(iii) or (iv), or both]
(i) A participant may not request more than
_______ [not to exceed four] withdrawals
during a plan year.
(ii) No withdrawal shall exceed ______% of
the vested amount in the participant's
matching contribution account,
determined on the date the withdrawal
request is actually processed.
____ (iii) The participant must have attained at
least the fifth anniversary of his
initial participation in the plan.
____ (iv) The participant cannot withdraw any
matching contributions that have not
been in the plan for at least 2 years
unless he has attained at least the
fifth anniversary of his initial
participation in the plan.
____ (v) The Participant cannot withdraw any
matching contributions that have not
been in the plan for at least 2 years.
____ (vi) No withdrawal shall be made in an amount
less than $______ [Insert amount not in
excess of $1,000]
____ (vii) No withdrawal may be made until the
Participant has taken all available
withdrawals from the following accounts:
____ (viii) A withdrawal may only be made if the
Participant incurs a financial hardship.
For purposes of this paragraph, a
"financial hardship" is defined as
[Specify clear, objective criteria for
determining a financial hardship that
precludes employer discretion]
<PAGE>
____ (ix) A Participant who receives a withdrawal
shall not be eligible to contribute to
the plan
[Insert type of contribution affected
and period of suspension.]
B. Discretionary Employer contributions (2.4; 2.8):
____ The Employer shall not make discretionary Employer
contributions to the plan.
[If the above option is selected, do not
complete the remaining questions in this item
IX.B.]
X The Employer may make discretionary Employer
contributions to the plan.
[If the above option is selected, please complete
the remaining questions in this item IX.B.]
(1) Any discretionary Employer contributions made to the
plan shall be determined as follows: [Select one and
complete as appropriate]
____ (a) An amount out of the current or accumulated
net profit of the Employer for such year as
the Employer in its discretion shall
determine.
____ (b) ___% of the net profit of the Employer for
such year plus such additional amount, if
any, out of the current or accumulated net
profit of the Employer as the Employer in its
discretion shall determine.
____ (c) An amount of the net profit of the Employer
for such year determined as follows: _____%
of the first $______ of such net profit, plus
____% of the next $______ of such net profit,
plus _____% of all such net profit over
$_______.
____ (d) ______% of the net profit of the Employer for
such year.
X (e) Such amount as the Employer in its discretion
shall determine without regard to current or
accumulated net profit.
[If option (e) above is selected, do not
complete item IX.B.(2) below.]
<PAGE>
(2) The Employer's net profit for purposes of determining
the amount of any discretionary Employer contribution
to the plan shall (1.37): [Select one]
____ (a) Exclude a return on the net worth of the
Employer of ___% of such net worth.
____ (b) Exclude $______ from such net profit as
computed for other purposes.
____ (c) Not provide for any exclusions.
(3) Discretionary Employer contributions shall be allocated
as of the adjustment date for which such contribution
was made among the participants entitled to share
therein in the manner determined as follows (2.4):
[Select one]
X (a) The discretionary Employer contribution shall
be allocated in the same ratio that each
participant's compensation bears to the
compensation for all participants entitled to
share in such discretionary Employer
contribution.
____ (b) The discretionary Employer contribution shall
be allocated as follows:
(i) If the plan is top-heavy and the
minimum allocation is required in
this plan, there shall be allocated
to the account of each participant
(including for this purpose each
employee entitled to the minimum
allocation provided in Section
22.2.1 of the plan) the amount
determined by multiplying the
minimum allocation percentage times
his compensation. [If the plan is
not top-heavy, or the minimum
allocation is not required in this
plan, disregard paragraph (ii)
below.]
(ii) If any portion of the discretionary
Employer contribution shall remain
to be allocated, the remaining
portion, not exceeding the amount
determined by multiplying the
minimum allocation percentage times
the excess compensation of
participants, shall be allocated in
the ratio that each participant's
excess compensation bears to the
excess compensation for all
participants, but not in excess of
3% of each participant's
compensation. For purposes of this
paragraph (ii), in the case of any
participants who has exceeded the
cumulative permitted disparity
limit described below, such
participant's total compensation
for the plan year will be taken
into account.
<PAGE>
(iii) If any portion of the discretionary
Employer contribution shall remain
to be allocated, the remaining
portion, not exceeding the amount
determined by multiplying (a) times
(b), where (a) is the
profit-sharing disparity rate and
(b) is the sum of the compensation
plus the excess compensation of
participants, shall be allocated in
the ratio that the sum of each
participant's compensation plus
excess compensation bears to the
sum of the compensation plus excess
compensation for all participants.
For purposes of this paragraph
(iii), in the case of any
participant who has exceeded the
cumulative permitted disparity
limited described below, two times
such participant's total
compensation for the plan year will
be taken into account.
(iv) If any portion of the discretionary
Employer contributions shall remain
to be allocated, the remaining
portion shall be allocated in the
ratio that the compensation of each
participant bears to the
compensation for all participants.
For this purpose, the following definitions shall
apply:
(a) "Compensation" shall mean compensation as
defined in Section 1.13.
(b) "Excess compensation" shall mean compensation
in excess of the integration level.
(c) "Integration level" shall mean: [Select one
and complete as appropriate]
____ (i) The taxable wage base.
____ (ii) $________ [a dollar amount less
than the taxable wage base].
____ (iii) ___% of the taxable wage base
[not to exceed 100%].
(d) "Maximum profit-sharing disparity rate" shall
mean the lesser of 5.7% (or, if greater, the
percentage equal to the portion of the rate
of tax under Section 3111(a) of the Code (as
of the beginning of the plan year) which is
attributable to old-age insurance), or the
<PAGE>
applicable percentage determined in
accordance with the following table:
(I) If the integration level is:
more than but not more than the applicable
percentage is
$ 0 X 5.7%
X of TWB 80% of TWB 4.3%
80% of TWB Y 5.4%
X = the greater of $10,000 or 20%
of TWB
Y = any amount more than 80% of
TWB but less than 100% of TWB.
(II) If the integration level is equal to the
taxable wage base, the applicable
percentage is 5.7% (or, if greater, the
percentage equal to the portion of the
rate of tax under Section 3111(a) of the
Code (as of the beginning of the plan
year) which is attributable to old-age
insurance).
(e) "Minimum allocation percentage" shall mean
the percentage specified in item XVII.B of
the Adoption Agreement.
(f) "Profit-sharing disparity rate" shall mean a
percentage equal to ______%. [Insert the
desired percentage not to exceed the maximum
profit-sharing disparity rate.] If the
minimum allocation percentage is allocated in
Item IX.B.(3)(b)(i) above, the profit-sharing
disparity rate must be reduced (but not below
zero) by the minimum allocation percentage
before applying Item IX.B.(3)(b)(iii).
(g) "Taxable wage base" or "TWB" shall mean the
maximum amount of earnings which may be
considered wages for a year under Section
3121(a)(1) of the Code as in effect as of the
first day of the plan year.
Overall permitted disparity limits
Annual overall permitted disparity limit:
Notwithstanding the preceding paragraphs, for any
plan year this plan benefits any participant who
benefits under another qualified plan or
simplified employee pension, as <PAGE> defined in section
408(k) of the Code, maintained by the employer
that provides for permitted disparity (or imputes
disparity), employer contributions and forfeitures
will be allocated to the account of each
participant who either completes more than 500
hours of service during the plan year or who is
employed on the last day of the plan year in the
ratio that such participant's total compensation
bears to the total compensation of all
participants.
Cumulative permitted disparity limit: Effective
for plan years beginning on or after January 1,
1995, the cumulative permitted disparity limit for
a participant is 35 total cumulative permitted
disparity years. Total cumulative permitted years
means the number of years credited to the
participant for allocation or accrual purposes
under this plan, any other qualified plan or
simplified employee pension plan (whether or not
terminated) ever maintained by the employer. For
purposes of determining the participant's
cumulative permitted disparity limit, all years
ending in the same calendar year are treated as
the same year. If the participant has not
benefited under a defined benefit or target
benefit plan for any year beginning on or after
January 1, 1994, the participant has no cumulative
disparity limit.
____ (c) Each such participant shall receive an
allocation of $________.
(4) In order to share in any discretionary Employer
contribution made with respect to a plan year, an
employee must be a participant during such plan year,
must not have a break in service during such plan year,
and must (2.4): [Select one]
____ (a) Fulfill no additional requirements.
____ (b) Either be in the service of the Employer on
the last day of such plan year, or complete
more than 500 hours of service during such
plan year.
X (c) Complete a year of service within the plan
year and be in the service of the Employer on
the last day of such plan year. [If this item
IX.B.(4)(d) is selected, the condition that
an employee complete a year of service within
the plan year will not apply in any plan year
in which the plan is top-heavy.]
(5) X The requirements of item IX.B.(4) above shall not
apply with respect to a participant who retires,
including disability retirement, or dies while in
service during a plan year.
<PAGE>
____ The requirements of item IX.B.(4) above shall
apply with respect to a participant who retires,
including disability retirement, or dies while in
service during a plan year.
If the Employer does not elect under item XII.C below to
apply forfeitures to reduce future discretionary Employer
contributions, forfeitures of discretionary Employer
contributions shall be allocated to the accounts of
participants eligible to share in discretionary Employer
contributions for a plan year in the same manner as the
Employer shall elect above.
(6) Withdrawals from discretionary Employer contribution
account (6.1): [Select one]
X (a) Except as otherwise provided in XI.E. or G.,
amounts allocated to a participant's
discretionary Employer contribution account
shall not be withdrawn prior to his
termination of service, death, or disability.
____ (b) In addition to any withdrawal rights provided
in XI.E. or G., at a participant's request,
amounts allocated to his discretionary
Employer contribution account may be
withdrawn prior to his termination of
service, death, or disability, subject to the
following conditions: [Complete (i), complete
(ii) if daily adjustment dates have been
selected, and select (iii) or (iv), or both]
(i) A participant may not request more
than _____ [not to exceed four]
withdrawals during a plan year.
(ii) No withdrawal shall exceed ______%
of the vested amount in the
participant's discretionary
Employer contribution account,
determined on the date the
withdrawal request is actually
processed.
____ (iii) The participant must have attained
at least the fifth anniversary of
his initial participation in the
plan.
____ (iv) The participant cannot withdraw any
discretionary Employer
contributions that have not been in
the plan for at least 2 years
unless he has attained at least the
fifth anniversary of his initial
participation in the plan.
____ (v) The Participant cannot withdraw any
discretionary contributions that
have not been in the plan for at
least 2 years.
____ (vi) No withdrawal shall be made in an
amount less than $_____ [Insert
amount not in excess of $1,000]
<PAGE>
____ (vii) No withdrawal may be made until the
Participant has taken all available
withdrawals from the following
accounts: ________________________
__________________________________
____ (viii) A withdrawal may only be made if
the Participant incurs a financial
hardship. For purposes of this
paragraph, a "financial hardship"
is definedas
[Specify clear, objective criteria
for determining a financial
hardship that precludes employer
discretion]
____ (ix) A Participant who receives a
withdrawal shall not be eligible to
contribute to the plan ____________
[Insert type of contribution
affected and period of suspension.]
X. ADJUSTMENT DATE AND METHOD
A. The separate accounts of each participant shall be adjusted
on the last day of each plan year and such other times as
may be designated below (1.4; 7; 8.1.2): [Select any
additional dates desired]
____ (1) The last day of each month during the plan year.
____ (2) The last day of each third month during the plan
year.
____ (3) The last day of each sixth month during the plan
year.
____ (4) The last day of each week during the plan year.
X (5) On each day shares are traded on a national stock
exchange, except for regularly scheduled holidays
of the Sponsor or Trustee ("daily adjustment
dates").
B. The separate accounts of each participant shall be adjusted
as of each adjustment date under the method designated below
(7): [Select one. Note: Item X.B.(2) below must be elected
if the Employer chooses daily adjustment dates in item
X.A.(5) above.]
____ (1) Balance forward method.
(a) Payments: Prior to the allocation of net
income or loss of the trust, there shall be
subtracted from the account any payments made
from the account subsequent to the preceding
adjustment date.
<PAGE>
(b) Forfeitures: Prior to the allocation of net
income or loss of the trust, there shall be
subtracted from the account any amounts
forfeited by the participant pursuant to
Section 5.3 or Section 23 of the plan
subsequent to the preceding adjustment date.
(c) Loans: Prior to the allocation of net income
or loss of the trust, there shall be
subtracted from the account the total amount
of any loans made from such account
subsequent to the preceding adjustment date.
(d) Elective deferrals: Prior to the allocation
of net income or loss of the trust, there
shall be added to the participant's elective
deferral account ___% [indicate a percentage
not to exceed 100%] of any elective deferrals
made by the participant subsequent to the
preceding adjustment date. After the
allocation of net income or loss of the
trust, there shall be added to the
participant's elective deferral account any
elective deferrals made subsequent to the
preceding adjustment date that were not added
in by the preceding sentence.
(e) Employee after-tax contributions: Prior to
the allocation of net income or loss of the
trust, there shall be added to the
participant's employee after-tax contribution
account _____% [indicate a percentage not to
exceed 100%] of any employee after-tax
contributions made by the participant
subsequent to the preceding adjustment date.
After the allocation of net income or loss of
the trust, there shall be added to the
participant's employee after-tax contribution
account any employee after-tax contributions
made subsequent to the preceding adjustment
date that were not added in by the preceding
sentence.
(f) Employer contributions:
(i) Prior to the allocation of net
income or loss of the trust, there
shall be added to the participant's
matching contribution account ____%
[indicate a percentage not to
exceed 100%] of the Employer
matching contributions made on the
participant's behalf subsequent to
the preceding adjustment date.
After the allocation of net income
or loss of the trust, there shall
be added to the participant's
matching contribution account any
Employer matching contributions
made on the participant's behalf
subsequent to the preceding
adjustment date that were not added
in by the preceding sentence.
<PAGE>
(ii) Prior to the allocation of net
income or loss of the trust, there
shall be added to the participant's
discretionary Employer contribution
account _____% [indicate a
percentage not to exceed 100%] of
the discretionary Employer
contributions made on the
participant's behalf subsequent to
the preceding adjustment date.
After the allocation of net income
or loss of the trust, there shall
be added to the participant's
discretionary Employer contribution
account any discretionary Employer
contributions made on the
participant's behalf subsequent to
the preceding adjustment date that
were not added in by the preceding
sentence.
(iii) Prior to the allocation of net
income or loss of the trust, there
shall be added to the participant's
qualified matching contribution
account ___% [indicate a percentage
not to exceed 100%] of the Employer
qualified matching contributions
made on the participant's behalf
subsequent to the preceding
adjustment date. After the
allocation of net income or loss of
the trust, there shall be added to
the participant's qualified
matching contribution account any
Employer qualified matching
contributions made on the
participant's behalf subsequent to
the preceding adjustment date that
were not added in by the preceding
sentence.
(iv) Prior to the allocation of net
income or loss of the trust, there
shall be added to the participant's
qualified non-elective contribution
account ___% [indicate a percentage
not to exceed 100%] of the Employer
qualified non-elective
contributions made on the
participant's behalf subsequent to
the preceding adjustment date.
After the allocation of net income
or loss of the trust, there shall
be added to the participant's
qualified non-elective contribution
account any Employer qualified
non-elective contributions made on
the participant's behalf subsequent
to the preceding adjustment date
that were not added in by the
preceding sentence.
(g) Loan repayments: Prior to the allocation of
net income or loss of the trust, there shall
be added to the participant's account ___%
[indicate a percentage not to exceed 100%] of
any loan repayments, including interest, made
by the participant subsequent to the
preceding adjustment date. After the
allocation of net income or loss of the
trust, there shall be added to the
participant's account any loan repayments,
including interest, made by the participant
subsequent to the preceding adjustment date
that were not added in the preceding
sentence.
<PAGE>
(h) Employee rollovers: Prior to the allocation
of net income or loss of the trust, there
shall be added to the participant's rollover
account ___% [indicate a percentage not to
exceed 100%] of any rollover contributions
made subsequent to the preceding adjustment
date. After the allocation of net income or
loss of the trust, there shall be added to
the participant's rollover account any
rollover contribution made subsequent to the
preceding adjustment date that were not added
in by the preceding sentence.
(i) Direct transfers: Prior to the allocation of
the net income or loss of the trust, there
shall be added to the participant's direct
transfer account ____% [indicate a percentage
not to exceed 100%] of any amounts
transferred to the plan on behalf of the
participant pursuant to Section 18 of the
plan subsequent to the preceding adjustment
date. After the allocation of net income or
loss of the trust, there shall be added to
the participant's direct transfer account any
amounts directly transferred to the plan on
behalf of the participant subsequent to the
preceding adjustment date that were not added
in by the preceding sentence.
(j) Reallocation of forfeitures: After the
allocation of net income or loss of the
trust, there shall be added to the
participant's matching contribution account
and/or discretionary Employer contribution
account, as applicable, any forfeitures
derived from matching contributions and/or
discretionary Employer contributions in the
manner prescribed by Section 5.3 or Section
23 of the plan.
(k) Net income or loss: There shall be credited
or debited to each separate account that
portion of the net income or net loss of the
trust since the last preceding adjustment
date which the basic credit as of the last
preceding adjustment date, as adjusted in the
manner prescribed in the above paragraphs,
bears to the total of all the basic credits
as of such preceding adjustment date, as so
adjusted. The net income or net loss of the
trust shall be ascertained by the Trustee and
shall mean the profits and income actually
realized and received, less the losses and
expenses actually incurred and paid, plus any
net increase or minus any net decrease in the
fair market value of the assets of the trust
not actually realized and received or
incurred and paid. Net income or net loss
shall not include elective deferrals,
qualified non-elective contributions,
employee after-tax contributions, matching
contributions, qualified matching
contributions, or discretionary Employer
contributions. In ascertaining such value,
the expense of liquidation shall not be taken
in account. "Basic credit as of the last
preceding adjustment date" shall be such
credit after the adjustments described in the
above paragraphs have been made. Any
<PAGE>
qualified nonelective contributions, matching
contributions, qualified matching
contributions, or discretionary Employer
contributions made after the close of a plan
year, but allocated to a participant's
account as of the last day of such prior plan
year, shall be considered part of the basic
credit, as of the adjustment date immediately
preceding the date such contributions are
actually made. For purposes of this
paragraph, to the extent a participant's
account shall be invested in a group annuity
contract or guaranteed investment contract
issued by a legal reserve life insurance
company, such contracts shall be valued using
an estimated daily earnings rate, if accurate
earnings are not otherwise available to the
Committee. The determination of net income
or net loss to be allocated to the separate
accounts of a participant shall be further
subject to the requirements of Section 8 of
the plan to the extent such accounts are
subject to the participant's investment
direction.
(l) Employee buyback: After the allocation of net
income or loss of the trust, there shall be
added to the participant's account any
amounts repaid by the participant in order to
restore his account pursuant to Section 5.3
of the plan.
(m) Transfer of investment: Any change in the
investment direction by the participant shall
become effective on each adjustment date
after all adjustments above have been made.
There shall be added or subtracted any
amounts transferred from one investment fund
to another.
X (2) Unit adjustment method. [This option must be
elected if the Employer chooses daily adjustment
dates in item X.A.(4) above.]
The value of each participant's account shall be
converted to units or shares. Thereafter, when the
participant's account is credited with an allocation of
any employee and/or Employer contributions, direct
transfers from another qualified plan, rollover
contributions, principal and interest payments on any
loans made to the participant, and/or reallocated
forfeitures in accordance with the terms of the plan,
the value of such allocation shall be used to purchase
units or shares and added to such participant's
account. When any distributions, participant loans,
withdrawals, transfers between investment funds, and/or
administrative fees are charged against the
participant's account in accordance with the terms of
the plan, the number of units or shares equal in value
to the amount paid from the participant's account shall
be deducted from the outstanding units or shares.
<PAGE>
XI. DISTRIBUTIONS TO PARTICIPANTS
A. Normal retirement age shall mean the date a participant
(1.38; 3.1): [Select one and complete as appropriate]
X (1) Attains age 65 [not to exceed 65].
____ (2) Attains age ____ [not to exceed 65] or the ____
[not to exceed fifth] anniversary of the first day
of the plan year in which the participant
commenced his participation in the plan.
B. Early retirement (3.2): [Select one]
____ (1) Early retirement shall not be applicable under the
plan.
X (2) A participant may elect to retire prior to his
normal retirement date as of the first day of any
calendar month following his: [Select one and
complete as appropriate]
____ (a) Attainment of age ____.
____ (b) Completion of ____ years of service.
X (c) Attainment of age 55 and completion of
5 years of service.
C. Distributions to terminated participants (3.6):
A participant who terminates service before he is eligible
to retire may elect to have his vested accrued benefit
valued as of the adjustment date specified below (the
"termination adjustment date") and distributed as soon as
practicable thereafter: [Select one]
____ (1) The adjustment date coincident with or next
following the termination of service of the
participant.
____ (2) The adjustment date coincident with the close of
the plan year in which the participant incurs a
one year break in service.
____ (3) The adjustment date coincident with the close of
the plan year in which the participant incurs five
consecutive one year breaks in service.
____ (4) The adjustment date coincident with or next
following the normal retirement date of the
participant.
<PAGE>
____ (5) The adjustment date next preceding the termination
of the participant; provided that such
participant's vested accrued benefit shall include
any elective deferrals and employee after-tax,
contributions made and attributable to the period
after such adjustment date and allocable to the
participant's account, but shall not include any
earnings or losses thereon after such adjustment
date.
[Note: If option (5) above is elected and the
participant is entitled to an allocation of
qualified non-elective contributions,
matching contributions, qualified matching
contributions, or discretionary Employer
contributions under the plan for any period
after his termination adjustment date, an
additional distribution of the vested portion
of any such contribution shall be made to the
participant as soon as practicable after the
adjustment date as of which such
contributions are made.]
[Note: A prior plan cannot be amended to eliminate or
reduce an existing optional form of benefit, including
payment schedule, time of commencement, and medium of
distribution.]
X (6) The adjustment date the distribution is actually
processed. [This item must be selected if daily
adjustment dates have been elected.]
D. Segregation of terminated participant's vested benefit
(3.6.3): [Select one]
[Complete this item XI.D only if a participant is not
permitted to direct the investment of his entire account.]
____ (1) The Trustee shall not segregate for investment
purposes that portion of the terminated
participant's vested accrued benefit which is not
credited to his directed separate accounts (as
defined in Section 8.1).
X (2) The Trustee shall segregate for investment
purposes that portion of the terminated
participant's vested accrued benefit which is not
credited to his directed separate accounts (as
defined in Section 8.1). The segregated portion
shall be held in a deferred payment account
pursuant to Section 3.6.3.
E. Distributions on or after attainment of age 59 1/2 (6.4):
[If you select this option a participant may withdraw all or
any portion of his account on or after attaining age 59 1/2,
regardless of whether he is still in service.]
X If this option is selected, a participant may withdraw
all or any portion of the following separate accounts
which are a part of his entire account on or after
<PAGE>
attainment of age 59 1/2, provided that a participant may
not request more than 4 [not to exceed four]
withdrawals during a plan year. [Select one or more]
X (a) the discretionary Employer contribution
account;
X (b) the mandatory contribution account;
X (c) the elective deferral account;
X (d) the qualified non-elective contribution
account;
X (e) the employee after-tax contribution account;
X (f) the matching contribution account;
X (g) the qualified matching contribution account;
X (h) the rollover account; and
X (i) the direct transfer account.
F. Determination of life expectancies for minimum distributions
(4.4):
Required minimum distributions under Section 4.4 will be
determined based on the life expectancy of: [Select one]
X (1) The participant only.
____ (2) The participant and his or her designated
beneficiary.
G. Hardship withdrawals (6.5): [Select one]
____ (1) Hardship distributions shall not be permitted
under the plan.
X (2) Hardship distributions shall be permitted
under the plan. Hardship distributions shall
be available from the vested portion of the
following accounts of the participant:
[Select one]
____ (a) All of his accounts (other than his
qualified matching contribution account
and his qualified non-elective
contribution account);
<PAGE>
____ (b) His elective deferral account only
(excluding earnings credited as of any
plan year ending after July 1, 1989);
X (c) The elective deferrals credited to his
elective deferral account only
(excluding all earnings).
H. Mode of distribution (4.1):
All distributions pursuant to Section 4.1.1 of the plan
shall be made in accordance with one of the following
optional forms of payment. [Select one or more]
X (1) Term certain as described in 4.1.1(i).
X (2) Lump sum as described in 4.1.1(ii).
XII. VESTING OF MATCHING AND DISCRETIONARY EMPLOYER CONTRIBUTIONS
A. Vesting schedule (2.3.4; 2.4; 5.1; 5.2):
The nonforfeitable percentage of each participant in his
matching contribution account and discretionary Employer
contribution account shall be determined according to the
following schedules: [Select one]
x (1) 100% vesting after 5 [not to exceed 5] years
of service for the discretionary employer
contribution account. Participants with at least
one year of vesting credit in the DST Systems
profit sharing and 401(k) plans shall continue to
be credited with that vested percent, and shall
earn an additional year of vesting according to
the DST Systems plans vesting schedule until they
shall attain 5 years of service, when they shall
become 100% vested in their employer discretionary
profit sharing account.
____ (2) Number of Years Vesting
of Service Percentage
Less than 1 _____
1 _____
2 _____
3 _____ (at lease 20%)
4 _____ (at least 40%)
5 _____ (at least 60%)
6 _____ (at least 80%)
7 or more _____%
<PAGE>
X (3) Immediate 100% vesting for the employer matching
contribution account.
B. Years of service counted for vesting purposes (1.62; 5.2):
All years of service with the Employer shall be counted to
determine the vested percentage of the participant's accrued
benefit derived from matching contributions and
discretionary Employer contributions except: [Select the
desired exclusions, if any]:
X (1) No exclusions.
____ (2) Years of service before age [not to exceed
age 18].
____ (3) Years of service during a period for which the
participant made no mandatory contributions, if
required under a prior plan.
____ (4) Years of service before the Employer maintained
this plan.
____ (5) Years of service before January 1, 1971, unless
the employee has had at least three years of
service after December 31, 1970.
____ (6) Years of service before the effective date of
ERISA, if such service would have been disregarded
under the break in service rules of a prior plan
in effect from time to time before such date. For
this purpose, the break in service rules are rules
which result in the loss of prior vesting or
benefit accruals, or which deny an employee
eligibility to participate, by reason of
separation or failure to complete a required
period of service within a specified period of
time.
____ (7) Years of service before a participant's one year
break in service, provided that the participant
shall be credited with such years of service upon
his completion of a year of service following his
date of reemployment.
C. Allocation of forfeitures of matching contributions and
discretionary Employer contributions (5.3): [Select one]
[Note: Forfeitures of excess aggregate contributions shall
be treated in the same manner as elected in this item XII.C.
with respect to forfeitures of matching contributions,
except that if such forfeitures are reallocated, they shall
only be reallocated among the accounts of non-highly
compensated participants.]
____ (1) All forfeitures of matching contributions shall be
reallocated to the matching contribution account
of each participant eligible to share in matching
contributions for the plan year in which the
forfeiture occurs in the same <PAGE> proportion that the
matching contributions allocated to the
participant's matching contribution account bears
to the matching contributions allocated to the
matching contribution accounts of all participants
eligible to share in such matching contributions
for such plan year. All forfeitures of
discretionary Employer contributions under the
plan shall be reallocated to the discretionary
Employer contribution account of all participants
who are entitled to share in such discretionary
Employer contributions for the plan year in which
the forfeiture occurs in the same proportion that
the discretionary Employer contributions allocated
under the plan for such plan year (or would have
been allocated if a contribution had been made).
____ (2) All forfeitures of matching contributions and
discretionary Employer contributions under the
plan shall be allocated to a participant's
discretionary Employer contribution account in the
same ratio that each participant's compensation
bears to the compensation for all participants
entitled to share in the discretionary Employer
contributions.
X (3) All forfeitures of matching contributions and
discretionary Employer contributions under the
plan shall be applied to reduce future matching
and discretionary Employer contributions, if any.
____ (4) All forfeitures of matching contributions under
the plan shall be applied to reduce future
matching contributions, if any. All forfeitures
of discretionary Employer contributions under the
plan shall be reallocated among all participants
who are entitled to share in such discretionary
Employer contributions for the plan year in which
the forfeiture occurs in the same manner as
discretionary Employer contributions are allocated
under the plan for such plan year (or would have
been allocated if a contribution had been made).
XIII. PARTICIPANT LOANS
A. Permissibility of participant loans (6.4): [Select one]
____ Loans to participants or beneficiaries shall not be
permitted under the plan.
[If the above option is selected, do not complete
the remaining question in this item XIII.]
<PAGE>
X Loans to participants or beneficiaries (but not
owner-employees or shareholder-employees of S
corporations) shall be permitted under the plan.
[If the above option is selected, please complete
the remainder of this item XIII as applicable.]
B. Amount of participant loans:
The minimum amount of a participant loan that may be
obtained under the plan shall be: [Select one]
____ (1) $500
X (2) $1,000.
C. Sources of participant loans:
The principal amount of a participant loan may be obtained
from the vested portion of the following accounts of the
participant: [Select one]
X (1) His entire account (other than his deductible
contribution account).
____ (2) His elective deferral account only.
____ (3) The following separate accounts which are a part
of his entire account:
[Select one or more]
____ (a) the discretionary Employer contribution
account;
____ (b) the mandatory contribution account;
____ (c) the elective deferral account;
____ (d) the qualified non-elective contribution
account;
____ (e) the employee after-tax contribution account;
____ (f) the matching contribution account;
____ (g) the qualified matching contribution account;
____ (h) the rollover account; and
<PAGE>
____ (i) the direct transfer account.
D. Loans from separate accounts invested in Employer stock:
[Select one]
____ (1) Notwithstanding the above, amounts allocated to a
participant's separate account that are required
to be invested or reinvested in Employer stock
shall not be sold or applied to fund the principal
amount of a participant loan under the plan.
____ (2) Amounts allocated to a participant's separate
account that are required to be invested or
reinvested in Employer stock may be sold or
applied to fund the principal amount of a
participant loan under the plan.
XIV. PARTICIPANT DIRECTED INVESTMENTS
A. Permissibility of participant directed investments (8. 1):
[Select one. If option (3) is selected, complete option (3)
as instructed.]
____ (1) Each participant shall not be permitted to direct
the investment or reinvestment of any portion of
his account.
[If the above option is selected, do not complete
the remaining questions in this item XIV.]
____ (2) Each participant shall be permitted to direct the
investment and reinvestment of his entire account
among the directed investment funds, including, if
elected by the Employer in item XV below, the
Employer stock fund.
[If the above option is selected, please complete
the remaining questions in this item XIV. See
item XV below for an election to permit directed
investments in Employer stock.]
X (3) Each participant shall be permitted to direct the
investment and reinvestment of one or more of the
following separate accounts, which are a part of
his entire account, among the directed investment
funds, including, if elected by the Employer in
item XV below, the Employer stock fund: [Select
one or more as desired]
____ (a) the discretionary Employer contribution
account;
____ (b) the deductible contribution account;
<PAGE>
____ (c) the mandatory contribution account;
X (d) the elective deferral account;
____ (e) the qualified non-elective contribution
account;
____ (f) the employee after-tax contribution account;
X (g) the matching contribution account;
____ (h) the qualified matching contribution account.
X (i) the rollover account; and
____ (j) the direct transfer account.
[If the above option is selected, please complete
the remaining questions in this item XIV. See
item XV below for an election to permit directed
investments in Employer stock.]
B. Direction by terminated participants and beneficiaries
(3.6.3; 8.1): [Select one]
X (1) Following a participant's termination of service
for any reason, such participant or his
beneficiary shall not be entitled to continue to
direct the investment of the participant's
directed separate accounts. If the participant's
vested accrued benefit will be held under the plan
for future payment to him or his beneficiary
pursuant to Section 3.6.3, Section 4.1, or Section
4.2, the amounts credited to the participant's
directed separate accounts will be transferred as
of the adjustment date coincident with or next
following the date of his termination of service
to the most conservative directed investment fund
as designated by the Committee.
____ (2) Following a participant's termination of service
for any reason, such participant or his
beneficiary shall be entitled to continue to
direct the investment of the participant's
directed separate accounts until the participant's
benefit is paid to him or his beneficiary in full
as provided in Section 3.6.3, Section 4.1, or
Section 4.2.
C. Allocation among investment funds (8.1.3; 8.1.4):
Each participant shall be permitted to direct the investment
of future contributions allocated to his directed separate
accounts among the available directed investment funds in
multiples of the following percentage: [Select one and
complete, if necessary]
<PAGE>
X (1) 10%
____ (2) 25%
____ (3) _____% [Insert any whole percentage that divides
evenly into 100]
Each participant shall be permitted to reallocate the
amounts credited to his directed separate accounts among the
available directed investment funds as follows: [Select one
or more and complete as appropriate]
X (1) In multiples of the following percentage:
X (a) 10%
____ (b) 25%
____ (c) _____% [Insert any whole percentage that
divides evenly into 100].
____ (2) In units.
____ (3) In dollars.
D. Frequency of investment directions (8.1.3; 8.1.4):
Each participant shall be permitted to change his direction
of the future contributions allocated to his directed
separate accounts or to reallocate the amounts credited to
his directed separate accounts among the available directed
investment funds as of the following adjustment dates:
[Select one. Note: The dates selected under this item XIV.D
should coincide with the adjustment date(s) selected in item
X.A above. Participants should not be permitted to give
investment directions more frequently than the adjustment
dates selected for the plan.]
X (1) Each day during the plan year.
[Note: Item XIV.D(1) above should not be elected
unless daily adjustment dates have been elected.]
____ (2) The last day of each month during the plan year.
____ (3) The last day of each third month during the plan
year.
____ (4) The last day of each sixth month during the plan
year.
<PAGE>
____ (5) The last day of each week during the plan year.
____ (6) The last day of each plan year.
____ (7) Other:
_________________________________________________
_________________________________________________
XV. INVESTMENTS IN EMPLOYER STOCK
A. Permissibility of investments in Employer stock (1.26; 9;
20). [Select one]
X (1) The Trustee shall not be authorized to invest plan
assets in Employer stock.
[If the above option is selected, do not complete
the remaining questions in this item XV.]
____ (2) The Committee shall be authorized to direct the
Trustee to invest and reinvest plan assets in
shares of Employer stock as a general investment
of the trust in accordance with Section 20.
[Note: This option should be selected if the
Employer does not intend to make matching
contributions and/or discretionary Employer
contributions to the plan in shares of Employer
stock and participants are not permitted to direct
the investment of any portion of their accounts
(i.e., if item XIV.A.(1) above was selected).]
[If the above option is selected, do not
complete the remaining questions in this item
XV.]
____ (3) The Committee shall be authorized to direct the
Trustee to establish an Employer stock fund (as
described in Section 9.1) for the purpose of
receiving and holding any shares of Employer stock
contributed to the plan as matching contributions
and/or discretionary Employer contributions.
[Note: This option should be selected if the
Employer intends to make matching contributions
and/or discretionary Employer contributions to the
plan in shares of Employer stock.]
<PAGE>
If this option (3) is selected and participants are
permitted to direct the investment of any portion of their
accounts among the other directed investment funds (i.e., if
either item XIV.A.(2) or item XIV.A.(3) above was selected),
select one of the following additional options:
____ (A) Each participant shall not be permitted to
direct the investment or reinvestment of any
portion of his account in the Employer stock
fund.
____ (B) Each participant shall be permitted to direct
the investment and reinvestment of his entire
account in the Employer stock fund.
____ (C) Each participant shall be permitted to direct
the investment and reinvestment of one or
more of the following separate accounts which
are a part of his entire account in the
Employer stock fund: [Select one or more as
desired]
____ (a) the discretionary Employer contribution
account;
____ (b) the deductible contribution account;
____ (c) the mandatory contribution account;
____ (d) the elective deferral account;
____ (e) the qualified non-elective contribution
account;
____ (f) the employee after-tax contribution
account;
____ (g) the matching contribution account;
____ (h) the qualified matching contribution
account;
____ (i) the rollover account; and
____ (j) the direct transfer account.
[If item XV.A.(3) is selected, please
complete the remaining questions in this item
XV.]
____ (4) The Committee shall be authorized to direct the
Trustee to establish an Employer stock fund (as
described in Section 9.1) for the purpose of
allowing participants to direct the investment or
reinvestment of all or a portion of their accounts
in Employer stock as designated below.
<PAGE>
[Note: This option should be selected if the
Employer does not intend to make matching
contributions and/or discretionary Employer
contributions to the plan in shares of Employer
stock, but wants to permit participants to invest
and reinvest all or a portion of their accounts in
Employer stock.]
If this item XV.A.(4) is selected, select one of the
following additional options:
____ (A) Each participant shall be permitted to direct
the investment or reinvestment of his entire
account in the Employer stock fund.
____ (B) Each participant shall be permitted to direct
the investment and reinvestment of one or
more of the following separate accounts,
which are a part of his entire account, in
the Employer stock fund: [Select one or more
as desired]
____ (a) the discretionary Employer contribution
account;
____ (b) the deductible contribution account;
____ (c) the mandatory contribution account;
____ (d) the elective deferral account;
____ (e) the qualified non-elective contribution
account;
____ (f) the employee after-tax contribution
account;
____ (g) the matching contribution account;
____ (h) the qualified matching contribution
account;
____ (i) the rollover account; and
____ (j) the direct transfer account.
[If this item XV.A.(4) is selected, please
complete the remaining questions in this item
XV.]
<PAGE>
B. Medium of payment (4.8).
To the extent amounts allocated to a participant's separate
account are invested in Employer stock, the distribution of
such amounts shall be made in: [Select one]
____ (1) Cash.
____ (2) Shares of Employer stock.
____ (3) Cash or shares of Employer stock, as elected
by the participant or beneficiary.
[If item XV.B.(1) is selected, please proceed to item XV.D.
Do not complete item XV.C.]
C. Right of first refusal (9.3): [Select one]
____ (1) Any participant who receives a distribution
of Employer stock under the plan and desires
to dispose of such Employer stock shall not
be required to first offer to sell such
Employer stock to the Employer.
____ (2) Any participant who receives a distribution
of Employer stock under the plan and desires
to dispose of such Employer stock shall be
required to first offer to sell such Employer
stock to the Employer.
D. Voting of Employer stock (9.4).
(1) Readily tradable Employer stock (9.4.1): [Select one]
[Complete this item XV.D.(1) only if the Employer stock
held by the Trustee is readily tradable on an
established market. If it is not readily tradable,
please proceed to item XV.D.(2). See Section 9.4.1 for
a definition of "readily tradable on an established
market."]
____ (a) Each participant or his beneficiaries shall
not be entitled to direct the Trustee as to
the manner in which shares of Employer stock
allocated to the participant's separate
accounts shall be voted with respect to any
corporate matter that involves voting the
Employer stock allocated to the participant's
separate accounts.
<PAGE>
____ (b) Each participant or his beneficiaries shall
be entitled to direct the Trustee as to the
manner in which shares of Employer stock
allocated to the participant's separate
accounts shall be voted with respect to any
corporate matter that involves voting the
Employer stock allocated to the participant's
separate accounts.
[Note: It may be advisable to amend this item XV.D
if the Employer stock allocated to a participant's
separate accounts should become not readily
tradable in the future.]
(2) Not readily tradable Employer stock (9.4.2): [Select
one]
[Complete this item XV.D.(2) only if the Employer stock
held by the Trustee is not readily tradable on an
established market.]
____ (a) Each participant or his beneficiaries shall
not be entitled to direct the Trustee as to
the manner in which shares of Employer stock
allocated to the participant's separate
accounts shall be voted with respect to any
corporate matter that involves voting the
Employer stock allocated to the participant's
separate accounts.
____ (b) Each participant or his beneficiaries shall
be entitled to direct the Trustee as to the
manner in which shares of Employer stock
allocated to the participant's separate
accounts shall be voted with respect to any
corporate matter that involves voting the
Employer stock allocated to the participant's
separate accounts.
____ (c) Each participant or his beneficiaries shall
be entitled to direct the Trustee as to the
manner in which shares of Employer stock
allocated to the participant's separate
accounts shall be voted with respect to any
corporate matter involving the approval or
disapproval of any corporate merger or
consolidation, recapitalization,
reclassification, liquidation, dissolution,
or sale of substantially all of the assets of
the Employer's trade or business.
[Note: It may be advisable to amend this item XV.D if
the Employer stock allocated to a participant's
separate accounts should become readily tradable in the
future.]
<PAGE>
XVI. ROLLOVERS
A. Permissibility of rollovers to the plan (19.1): [Select one]
____ Rollovers to the plan shall not be permitted.
[If the above option is selected, do not
complete the remaining question in this item
XVI.]
X Rollovers to the plan shall be permitted by the
individuals designated in item XVI.B below.
[If the above option is selected, please
complete item XVI.B.]
B. Persons eligible to make rollovers to the plan (19.1):
[Select one.]
____ All employees eligible to participate in the plan under
Item IV.A, including employees who have not completed
the participation requirements under the plan.
X All participants.
C. Withdrawals from rollover account: [Select one]
X (a) Except as otherwise provided in XI. E. or G.,
amounts allocated to a participant's rollover
account shall not be withdrawn prior to his
termination of service, death, or disability.
____ (b) In addition to any withdrawal rights provided in
XI. E. or G., at a participant's request, amounts
allocated to his rollover contribution account may
be withdrawn prior to his termination of service,
death, or disability, subject to the following
conditions: [Complete (i); also complete (b) if
daily adjustment dates have been selected; also
complete (iii) through (v) as appropriate]
(i) A participant may not request more than
___ [not to exceed four] withdrawals
during a plan year.
(ii) No withdrawal shall exceed _____% of the
amount in the participant's rollover
contribution account, determined on the
date the withdrawal request is actually
processed.
<PAGE>
(iii) No withdrawal shall be made in an amount
less than $________ [Insert amount not
in excess of $1,000]
(iv) No withdrawal may be made until the
Participant has taken all available
withdrawals from the following accounts:
(v) A withdrawal may only be made if the
Participant incurs a financial hardship.
For purposes of the paragraph, a
"financial hardship" is defined as .
XVII. TOP-HEAVY PROVISIONS
A. Top-heavy ratio (22.1.7):
For purposes of establishing present value to compute the
top-heavy ratio, any benefit shall be discounted only for
interest and mortality based on the following: [Complete
both]
(1) Interest rate: 8 %
(2) Mortality table: UP '84
B. Minimum top-heavy allocations (22.2.1):
For purposes of minimum top-heavy allocations, contributions
and forfeitures equal to 3 % of each non-key employee's
compensation will be allocated to the employee's account
when the plan is top-heavy.
[Insert a percentage that is not less than 3%; provided
that "0" may be inserted if the minimum allocation will
be provided to participants under any other plan or
plans of the Employer. If permitted pursuant to
Section 22.2.1 of the plan, such percentage shall in no
event exceed the largest percentage of Employer
contributions and forfeitures allocated on behalf of
any key employee. Neither elective deferrals nor
matching contributions may be taken into account for
the purpose of satisfying the minimum top-heavy
allocation requirement. The Employer may attach
additional provisions as necessary to satisfy Section
416 of the Code because of the required aggregation of
multiple plans.]
<PAGE>
C. Top-heavy vesting schedule (22.2.2):
[Complete this question if option (3) of item XII.A is not
selected and either (a) option (1) of item XII.A is selected
and the number of years of service is greater than three, or
(b) option (2) of item XII.A is selected and the vested
percentage for any year under such option is less than the
vested percentage for the same year under option (2) of this
item.]
The nonforfeitable percentage of each participant in his
accrued benefit attributable to matching contributions and
discretionary Employer contributions for any top-heavy plan
year shall be determined as follows: [Select one]
X (1) 100% vesting after 3 [not to exceed 3]
years of service.
____ (2) Number of Years Vesting
of Service Percentage
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
XVIII. MAXIMUM ALLOCATIONS
A. Correction of excess allocations (23.1.4; 23.2.6):
If, as a result of the allocation of forfeitures, a
reasonable error in estimating a particular compensation, a
reasonable effort in determining the amount of elective
deferrals that may be _____ by a participant under the
limitations of Section 23 of the plan, or other limited
factual circumstances, the maximum permissible amount would
be exceeded for any limitation year ____ excess amount with
respect to a participant for such limitation year shall be
disposed of _______ following order:
(1) Any employee after-tax contributions (and any gains
attributable thereto) to the extent such excess shall
be returned to the participant.
(2) If further reductions are necessary, any elective
deferrals to the extent of such excess be returned to
the participant.
<PAGE>
(3) If further reductions are necessary, then the Committee
shall reduce the excess amount ________ the following
manner: [Select one]
____ (a) First, such participant's share of the
discretionary Employer contributions then his
share of the matching contributions, and
finally his share of forfeitures for the
limitation year shall be reduced in that
order ________ extent of such remaining
excess. Such excess amount shall be credi___ a
separate special account for the participant
designated as a "sus_______ account," and
shall be applied in the next limitation year
(and _______ limitation years if necessary to
reduce matching contributory discretionary
Employer contributions for the participant,
provided _______ covered under the plan as of
the adjustment date such matching
contributions or discretionary Employer
contributions are allocated ______________
participant is not covered under the plan at
such time, the balance __________ suspense
account shall be reallocated among the
remaining participa______ the ratio which
each of such participant's compensation
during ______ limitation year in question bears
to the aggregate compensation of all
participants during such limitation year, and
before any employee tax contribution,
elective deferrals, qualified non-elective _____
matching contributions, qualified matching
contributions, or _________ Employer
contributions for such limitation year are
allocated.
The suspense account shall be adjusted
annually for additions ________ distributions
therefrom, but not for any net income or net
loss attributable thereto. In the event the
plan is terminated, any balance in the _______
account shall be returned to the Employer.
X (b) First, such participant's share of the
discretionary Employer contributions, then
his share of the matching contributions, and
finally, his share of any forfeitures for the
limitation year shall be reduced in that
order to the extent of such remaining excess.
The amount of the reduction shall be
reallocated among the remaining participants
in the ratio which each of such participant's
compensation during the limitation year in
question bears to the aggregate compensation
of all such participants during such
limitation year and before any employee
after-tax contributions, elective deferrals,
qualified non-elective contributions,
matching contributions, qualified <PAGE> matching
contributions, or discretionary Employer
contributions for such limitation year are
allocated. If all of the amount of such
reduction cannot be reallocated without
causing the account of each other participant
to exceed the maximum permissible amount,
then such remaining amount shall be credited
to a suspense account.
The suspense account shall contain the excess
amounts of Employer contributions and
forfeitures from all limitation years. Such
excess amounts shall be allocated for each
succeeding limitation year among the accounts
of participants in the ratio which each of
such participant's compensation for the
limitation year in question bears to the
aggregate compensation of all such
participants during such limitation year and
before any employee after-tax contributions,
elective deferrals, qualified non-elective
contributions, matching contributions,
qualified matching contributions, or
discretionary Employer contributions for such
year are allocated. The suspense account
shall be adjusted annually for additions
thereto and distributions therefrom, but not
for any net income or net loss attributable
thereto. In the event the plan is
terminated, any balance in the suspense
account shall be returned to the Employer.
Notwithstanding anything above or in the plan to the
contrary, if all or part of a participant's elective
deferrals or employee after-tax contributions are
distributed to the participant pursuant to the provisions of
Section 23 of the plan, the matching contribution made with
respect to such elective deferrals or employee after-tax
contributions, adjusted for income and losses allocable
thereto, shall be forfeited by the participant on or before
the March 15 next following the end of the plan year for
which the matching contribution was made. The income and
losses allocable to the forfeited matching contributions for
the plan year shall be determined in the same manner as
income and losses allocable to excess aggregate contribution
are determined pursuant to Section 2.3.6. Forfeitures of
matching contributions (including income and losses
allocable thereto) shall be applied in the current or next
succeeding plan year in the same manner as elected by the
Employer in item XII.C of this Adoption Agreement.
<PAGE>
B. Limits for multiple plans:
If the Employer maintains another qualified defined
contribution plan, other than a regional prototype plan:
[Select one]
X (1) The provisions of Section 23.2.1 through 23.2.6
will apply as if the other plan were a regional
prototype plan.
____ (2) [Provide the method under which the plans will
limit total annual additions to the maximum
permissible amount, and will properly reduce any
excess amounts, in a manner that precludes
Employer discretion].
C. If the participant is or has ever been a participant in a
defined benefit plan maintained by the Employer: [Insert
provision which satisfies 1.0 limitation of Section 415(e)
of the Code. See Treasury Regulation Section 1.415-1 for
guidance.]
NOTE: THIS IS AN IMPORTANT DOCUMENT HAVING COMPLEX TAX AND
OTHER LEGAL IMPLICATIONS. THE SPONSOR RECOMMENDS THAT ANY
ADOPTING EMPLOYER CONSULT WITH AN ATTORNEY KNOWLEDGEABLE IN
EMPLOYEE BENEFIT MATTERS BEFORE SIGNING THIS ADOPTION AGREEMENT.
XIX. SUBSTITUTE TRUST OR CUSTODIAL ACCOUNT AGREEMENT (20.7)
[Complete this Item XVIII only if you are adopting a
separate trust or custodial account agreement that
overrides the trust provisions of Section 20 of this
plan.]
____ The attached trust or custodial agreement
overrides the trust provisions of Section 20 of
the plan.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed by
the parties hereto on the 15th day of December, 1995.
INVESTORS FIDUCIARY TRUST COMPANY
Name of Employer
By: /s/ Stephen Hilliard,
Executive Vice President
Officer, Partner, or Sole
Proprietor
Attest/Witness:
/s/ Marvin Rau
[Corporate Seal]
Name of Trustee(s) INVESTORS FIDUCIARY
TRUST COMPANY
By: /s/ Stephen Hilliard,
Executive Vice President
Individual/Authorized Officer
Attest:
/s/ Marvin Rau
[Corporate Seal]
NOTE: The Employer may not rely on the notification
letter issued by the National or District Office of Internal
Revenue Service as evidence that this plan is qualified under
Section 401 of the Code. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the
appropriate Key District Office for a determination letter.
EXHIBIT 4.10.2
AMENDMENT TO THE
INVESTORS FIDUCIARY TRUST COMPANY INVESTMENT SAVINGS PLAN
THIS AMENDMENT, made as of February 26, 1996, is made by
Investors Fiduciary Trust Company (herein referred to as the
Employer).
WHEREAS, the Employer heretofore established the Investors
Fiduciary Trust Company Investment Savings Plan ("Plan")
effective January 1, 1996 (herein referred to as the Effective
Date); and
WHEREAS, pursuant to Section 11.1.2 of the Plan, the
Employer reserved the right to amend the Plan;
WHEREAS, the Employer now desires to amend the Plan
effective January 1, 1996 (herein referred to as the Amendment
Effective Date);
NOW, THEREFORE, IFTC as Employer and Trustee hereby amends
the Plan in the following respects:
Section VI, Item A(1) of the Adoption Agreement of the
Plan shall be amended to exclude any compensation paid
as a signing bonus or relocation compensation upon
initial employment with the Employer, separation pay
and unused vacation pay, stock dividend equivalent
payments, and earnings from any recognition awards
programs.
IN WITNESS WHEREOF, IFTC has caused this amendment to be
executed as of the date first above written.
INVESTORS FIDUCIARY TRUST COMPANY, EMPLOYER AND TRUSTEE
By: /s/ Thomas J. McCrossan
Title: President and Chief Executive Officer
EXHIBIT 4.10.3
SECOND AMENDMENT
TO
INVESTORS FIDUCIARY TRUST COMPANY
INVESTMENT SAVINGS PLAN
WHEREAS, effective January 1, 1996, Investors Fiduciary
Trust Company ("IFTC") as the employer established the "Investors
Fiduciary Trust Company Investment Savings Plan" ("Plan") by
executing on December 15, 1995, that certain "Standardized
Form/Customized Adoption Agreement-001" ("Adoption Agreement")
under that certain prototype plan known as the "Godwins Booke &
Dickenson Prototype Profit Sharing and Employee Savings Plan and
Trust" ("Prototype Plan Document");
WHEREAS, IFTC also serves as trustee of the Plan;
WHEREAS, by written instrument dated February 26, 1996, IFTC
as employer adopted the First Amendment to the Plan, which
amendment was in the form of an amendment to the Adoption
Agreement, and such amendment had the effect of withdrawing the
Plan from the aforesaid prototype plan program and making the
Plan an "individually designed plan" under Section 11.1.2 of the
Prototype Plan Document;
WHEREAS, once the Plan became an "individually designed
plan," it was the intention of IFTC to maintain the Plan under
the following documents taken together: (1) Prototype Plan
Document, (2) Adoption Agreement and (3) the First Amendment,
which said documents taken together shall hereinafter be referred
to as the "Plan";
WHEREAS, under Section 11.1.2 of the Prototype Plan Document
IFTC reserved the right to amend the Plan;
WHEREAS , IFTC now desires to further amend the Plan by
amending the Prototype Plan Document and the Adoption Agreement.
NOW, THEREFORE, IFTC as employer and trustee hereby amends
the Investors Fiduciary Trust Company Investment Savings Plan
effective January 1, 1996, as follows:
A. AMENDMENTS TO THE ADOPTION AGREEMENT
1. Sections IV.B. and C. are hereby deleted in their
entirety and new Sections IV. B. and C. are hereby
substituted in lieu thereof to provide as follows:
B. Number of years of service and minimum age
required to participate (1.40):
<PAGE>
Each employee becomes a participant in the
plan on the entry date specified in D. below
(if hired on that date) immediately following
the later of the date on which he completes
one Year of Service or attains age 21. The
eligibility conditions of this Section IV. B.
apply only to an employee hired after
December 31, 1995, or to an employee who was
hired before December 31, 1995, but who had
not attained age 21 by that date. Any
employee employed on or before December 31,
1995, who had attained age 21 by that date
becomes a participant in the plan on January
1, 1996.
C. [RESERVED]
2. Section V.B. is hereby deleted in its entirety and a
new Section V.B. is hereby substituted in lieu thereof
to provide as follows:
B. Prior service with certain affiliated or
related employers (1.52.2):
Service with IFTC and DST Systems, Inc. and
its affiliates shall be recognized as service
under the Plan. Moreover, if IFTC is a
member of a related group, the term
"Employer" includes the related group members
for purposes of crediting Hours of Service,
determining Years of Service and Breaks in
Service under the Plan, applying the
limitations on allocations in Section 23,
applying the top heavy rules and the minimum
allocation requirements of Section 22, the
definitions of employee, highly compensated
employee, compensation and leased employee,
and for any other purpose required by the
applicable Code section or by a Plan
provision. However, only IFTC may contribute
to the Plan and only an employee employed by
IFTC is eligible to participate in this Plan.
A related group is a controlled group of
corporations (as defined in Code Section 414(b)),
trades or businesses (whether or not
incorporated) which are under common control
(as defined in Code Section 414(c)) or an affiliated
service group (as defined in Code Section 414(m) or
in Code Section 414(o)).
3. Section VI.A. as amended by the First Amendment of the
Plan dated February 26, 1996 is hereby deleted in its
entirety and Section VI.A. shall read as originally
stated in the Adoption Agreement executed December 15,
1995, and the following special definition for salary
reduction contributions is hereby added to provide as
follows:
Special definition for salary reduction
contributions: For purposes of determining
the employee's salary reduction contributions
under a salary reduction agreement,
"compensation" shall not include any <PAGE> payments
other than (1) regular salary or wages, (2)
overtime pay and (3) the IFTC Bonus Program.
4. Section XI.G. is hereby deleted in its entirety and a
new Section XI.G. is hereby substituted in lieu thereof
to provide as follows:
G. Hardship withdrawals (6.5): [Select one]
____ (1) Hardship distributions shall
not be permitted under the
plan.
X (2) Hardship distributions shall
be permitted under the plan.
Hardship distributions shall
be available from the vested
portion of the following
accounts of the participant:
[Select one]
X (a) All of his accounts
(other than his qualified
matching contribution
account and his qualified
non-elective contribution
account);
____ (b) His elective deferral
account only (excluding
earnings credited as of
any plan year ending
after July 1, 1989);
____ (c) The elective deferrals
credited to his elective
deferral account only
(excluding all earnings).
5. Section XIII.A. is hereby deleted in its entirety and a
new Section XIII.A. is hereby substituted in lieu
thereof to provide as follows:
A. Permissibility of participant loans
(6.4):
Loans to participants who are active
employees of the Employer shall be
permitted under the plan.
6. Section IX.A.(2) is hereby deleted in its entirety and
a new Section IX.A.(2) is hereby substituted in lieu
thereof to provide as follows:
(2) The amount of matching contributions to the
plan by the Employer with respect to each
participant's elective deferrals made during
a plan year shall equal: 100% of the
participant's elective deferrals not in
excess of 3% of the participant's
compensation as defined in Section VI.A. for
purposes of a participant's salary reduction
contribution.
<PAGE>
7. Section XI.B. is hereby amended to add a proviso at the
end of the section to read as follows:
PROVIDED, that any participant having an
account balance that was transferred from
either the DST Systems, Inc. Profit Sharing
Plan or the DST Systems, Inc. 401(k) Plan
shall be entitled to retire following
attainment of age 60 without any minimum
service requirement.
8. Section XII.A. is hereby deleted in its entirety and a
new Section XII.A. is hereby substituted in lieu
thereof to provide as follows:
A. Vesting schedule (2.3.4; 2.4; 5.1; 5.2):
The nonforfeitable percentage of each
participant in his matching contribution
account and discretionary Employer
contribution account shall be determined
according to the following schedules:
(1) Discretionary employer contribution
account: 100% vesting after 5 years of
service
(2) Employer matching contribution account:
immediate 100% vesting
(3) Special vesting schedule for
participants with prior vesting credit
under the DST Systems, Inc. Profit
Sharing Plan: for purposes of the
discretionary employer contribution
account and any accounts transferred to
the plan pursuant to Section 18.2 of the
Prototype Plan Document which are not
100% vested immediately prior to
transfer to this plan, the following
vesting schedule will apply:
Years of Service Vesting Percentage
Less than 1 0
1 10
2 20
3 30
4 40
5 100
9. Section XIV.A.(3) is hereby deleted in its entirety and
a new Section XIV.A.(3) is hereby substituted in lieu
thereof to provide as follows:
<PAGE>
X (3) Each participant shall be
permitted to direct the
investment and reinvestment of
one or more of the following
separate accounts, which are a
part of his entire account,
among the directed investment
funds:
____ (a) the discretionary
Employer contribution
account;
____ (b) the deductible
contribution account;
____ (c) the mandatory
contribution account;
X (d) the elective deferral
account;
X (e) the qualified
non-elective contribution
account;
____ (f) the employee after-tax
contribution account;
X (g) the matching contribution
account;
X (h) the qualified matching
contribution account;
X (i) the rollover account; and
X (j) the direct transfer
account, EXCEPT to the
extent of account
balances attributable to
discretionary employer
contributions under the
DST Systems, Inc. Profit
Sharing Plan.
10. Section XIV.B.(1) is hereby deleted in its entirety and
in lieu thereof Section XIV.B.(2) is hereby elected.
B. AMENDMENTS TO THE PROTOTYPE PLAN DOCUMENT
1. Section 6.6.10 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 6.6.10 is
hereby substituted in lieu thereof to provide as
follows:
6.6.10 The occurrence of any one or
more of the following events of default shall
constitute a default by the borrower under
the terms of the loan, whereupon the unpaid
balance of the note, together with accrued
interest, will immediately become due and
payable without presentment, demand, protest,
or notice of any kind. Events <PAGE> of default
include: (i) failure to make any payment
within 90 days when due, whether by
acceleration or otherwise; (ii) termination
of service of the borrower; (iii) bankruptcy
or insolvency of the borrower and (iv) death,
dissolution, insolvency, business failure,
appointment of a receiver of any part of the
property of, assignment for the benefit of
creditors by, or the commencement of any
proceeding under any bankruptcy or insolvency
laws of, by or against the borrower. Prior
to the foreclosure and attachment, the unpaid
principal and interest of the loan shall bear
interest at a rate two percentage points
greater than the rate set forth in a note.
If the unpaid principal and interest exceed
the amount of the defaulting borrower's
account that is pledged as security, all or
any part of any additional security pledged
to secure the loan, in the discretion of the
Committee, may be sold at private or public
sale. The proceeds of such sale shall be
applied first to pay the expenses of
conducting the sale, including reasonable
attorneys' fees, then to accrued interest,
and then to principal of the loan. The
borrower shall remain liable for any
deficiency. Any surplus shall be paid to the
borrower. No distribution under the plan to
or on behalf of the borrower shall be made
unless and until all unpaid loans, including
interest thereon, are satisfied.
2. Section 8 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 8 is hereby
substituted in lieu thereof to provide as follows:
Section 8. Participant Directed Investments:
8.1 Participant directed investments:
Notwithstanding any other provisions of the
plan, each participant having an amount to
his credit under the plan may, acting through
the Committee, direct the Trustee as to the
investment or reinvestment of his account to
the extent permitted by the Employer in the
Adoption Agreement, subject to the following
provisions of this Section 8 and Section 9:
8.1.1 Directed investment funds:
The investment manager appointed
pursuant to Section 20.1.3 hereof shall
determine from time to time the
investment options ("directed investment
funds") available to participants. Each
participant shall be entitled to direct
the investment and reinvestment of such
of his separate accounts as shall be
permitted in the Adoption Agreement
("directed separate accounts") among the
directed investment funds. Each
directed separate account of a
participant shall be divided into
sub-accounts reflecting <PAGE> the portion of
such directed separate account invested
in each directed investment fund ("fund
accounts").
8.1.2. Adjustment of fund
accounts: Except as otherwise
specifically provided herein, each fund
account shall be adjusted as of each
adjustment date in the manner provided
in Section 7, as if it were the entire
directed separate account of the
participant to which it is subsidiary,
with respect to distributions,
withdrawals, loans, contributions and
forfeitures allocated to it and with
respect to its share of the net income
or net loss of the directed investment
fund of which it is a part.
8.1.3 Direction of future
contributions: In accordance with
procedures adopted by the Committee,
contributions allocated to a
participant's directed separate accounts
shall be apportioned among the directed
investment funds in the manner
designated by the participant. Any such
designation for future contributions
shall be made in multiples of the
percentage chosen by the Employer in the
Adoption Agreement. Any designation
among the directed investment funds
shall remain in effect unless and until
the participant shall file a timely
application providing for a different
designation. A participant may change
his investment direction at such
intervals during the plan year as
designated by the Employer in the
Adoption Agreement. If for any reason a
participant shall not have made an
effective designation with respect to
any portion of a contribution allocated
to a directed separate account, such
contribution for which no designation
was made shall be invested by the
investment manager.
8.1.4 Reallocations among directed
investment funds: In accordance with
procedures adopted by the Committee, a
participant shall be entitled to
reallocate the amount credited to each
of his directed separate accounts among
the available directed investment funds
in multiples of the percentage
designated by the Employer in the
Adoption Agreement. Such reallocations
may be made at such intervals during the
plan year as designated by the Employer
in the Adoption Agreement.
8.1.5 Notification of Trustee:
The Committee shall notify the Trustee
of all directions made in accordance
with <PAGE> Section 8.1.3 and 8.1.4 as soon as
practicable following their receipt.
8.2 Rights in directed investment
funds: Notwithstanding the fact that all or
a portion of a participant's account may be
invested in directed investment funds
selected by the investment manager and may be
expressed in dollars, shares, or units in a
particular directed investment fund, such
references shall mean the aggregate of the
dollar amount credited to the participant's
account at any point in time. Nothing
contained in this Section 8 shall be deemed
to give any participant any interest in any
specific property in any directed investment
fund or any interest in the plan, other than
(i) the right to receive payments or
distributions in accordance with the plan,
(ii) the right to instruct the Trustee how to
vote the securities in the directed
investment funds as permitted under Section
8.7; (iii) the right to instruct the Trustee
with respect to the sale, exchange, or
transfer of the securities in the directed
investment funds as permitted under Section
8.8, or (iv) to exercise any other right
specifically granted to the participant under
the plan.
8.3 Effect of participant loans: In the
event the participant's separate account from
which an amount is borrowed pursuant to
Section 6.6 is also a directed separate
account, the amount borrowed from such
account shall be withdrawn from the fund
accounts with respect to such directed
separate account on a pro rata basis. Any
repayment of principal and interest on such
borrowed amount shall be reinvested in the
participant's fund accounts in accordance
with the participant's investment direction
in effect on the adjustment date as of which
such repayment is credited to the
participant's directed separate account.
8.4 Distributions from directed
separate accounts: In the event the
participant's separate accounts from which an
amount is to be distributed or withdrawn are
also directed separate accounts, the amount
distributed from such accounts shall be
withdrawn from the fund accounts with respect
to each such directed separate account on a
pro rata basis.
8.5 Accounts not subject to participant
direction: In the event a participant is not
permitted to direct the investment and
reinvestment of one or more of his separate
accounts, such separate accounts shall remain
subject to the investment discretion of the
investment manager.
<PAGE>
8.6 Authority of Trustee and Committee:
The Trustee shall have and may exercise all
powers necessary or advisable in order to
implement the provisions of this Section 8.
The Committee may promulgate rules or by-laws
supplementing and implementing the provisions
of this Section 8, including such rules or
by-laws as may be necessary from time to time
in order to provide a participant or
beneficiary, within the meaning of Section
404(c) of ERISA and the regulations
thereunder, an opportunity (i) to exercise
control over assets in his account, and (ii)
to choose, from a broad range of investment
alternatives, the manner in which some or all
of the assets in his account are invested.
If it is not practicable for the Trustee to
effect the transfer of funds on any date
provided in this Section 8, the Trustee shall
effect such transfer on the first practicable
date thereafter.
8.7 Voting of stock held in directed
investment funds: The Employer elects to
pass-through voting of stock allocated to a
participant's separate accounts to such
participants or their beneficiaries under the
plan, and the following provisions shall
apply:
8.7.1 Participant voting of
stock: Each participant or beneficiary
shall be entitled to direct the Trustee
as to the manner in which shares of
stock allocated to the participant's
separate accounts shall be voted with
respect to any corporate matter that
involves voting the stock allocated to
the participant's separate accounts as
of any record date.
8.7.2 Trustee's
responsibilities: The Trustee shall
vote the stock held by the trust on the
record date only as directed by the
participants or investment manager.
8.7.3 Voting instructions from
participants: The Trustee shall vote
such stock in accordance with the timely
instructions of the respective
participants and beneficiaries. The
Trustee shall be responsible for
soliciting and tabulating such votes.
Prior to the voting of stock, the
Committee shall distribute to each
participant and beneficiary the same
information concerning the vote as is
furnished by the issuer to its
shareholders. If the issuer does not
furnish any such information within the
appropriate time period under applicable
state corporate law prior to the
shareholders' meeting, the Committee
shall, as soon as practicable, provide
each participant and beneficiary with an
explanation of those <PAGE> matters that to the
best knowledge of the Committee are to
be presented at such meeting for action
by shareholders and are subject to
direction by the participant or
beneficiary and an appropriate form on
which the participant or beneficiary may
direct voting on such matters. If the
Trustee does not receive participant or
beneficiary instructions with respect to
any stock or such instructions are not
timely received, such stock shall be
voted by the Trustee only as directed by
the investment manager.
8.8 Tendering: The following
provisions shall apply in the event a tender
offer or exchange offer, including but not
limited to a tender offer or exchange offer
within the meaning of the Securities Exchange
Act of 1934, as amended, for any stock held
by the trust in a directed investment fund (a
"tender offer") is commenced.
8.8.1 Independent recordkeeper;
Trustee's responsibilities: In the
event a tender offer for the stock held
by the trust is commenced, the functions
under the plan applicable to
participation of such stock in the
tender offer shall be undertaken by the
independent recordkeeper appointed by
the Committee at the time the tender
offer is commenced, and the Committee
shall not undertake any recordkeeping
function under the plan that would serve
to violate the confidentiality of any
directions given by the participants or
beneficiaries in connection with the
tender offer. The independent
recordkeeper shall use its best efforts
to timely distribute or cause to be
distributed to each participant and
beneficiary such information as is being
distributed to other shareholders in
connection with the tender offer. The
Trustee shall have no discretion or
authority to sell, exchange or transfer
any of the stock held in the
participant's separate accounts pursuant
to such tender offer except to the
extent, and only to the extent, that the
Trustee is timely directed to do so in
writing as follows:
(i) Each participant and
beneficiary shall be entitled
to direct the independent
recordkeeper with respect to
the sale, exchange, or
transfer of the stock
allocated to the participant's
separate accounts. The
independent recordkeeper shall
then instruct the Trustee as
to the number of shares to be
tendered, in <PAGE> accordance with
the above directions. The
Committee shall instruct the
Trustee to follow the
directions of the independent
recordkeeper pursuant to the
terms of the tender offer.
Instructions received from
participants and beneficiaries
by the independent
recordkeeper shall be held in
the strictest confidence and
shall not be divulged or
released to any person
including the Committee, or
the officers, directors, or
employees of the Employer.
(ii) The independent recordkeeper
shall instruct the Committee
and the Trustee as to the
number of shares for which it
did not receive any
instructions or instructions
were not timely received. The
Trustee shall tender or not
tender such shares of stock
only as directed by the
investment manager.
8.8.2 Records: Following any tender
offer that has resulted in the sale or
exchange or any shares of stock held by the
trust, the independent recordkeeper to which
responsibility has been transferred shall
continue to maintain on a confidential basis
a record of the separate account of each
participant or beneficiary to which shares of
stock were allocated at any time during such
offer, until complete distribution of such
stock. The recordkeeper shall keep
confidential any instructions that it may
receive from participants or beneficiaries
relating to the tender offer.
3. Sections 11.1.1 and 11.1.2 of the Prototype Plan
Document are hereby deleted in their entirety and new
Sections 11.1.1 and 11.1.2 are hereby substituted in
lieu thereof to provide as follows:
11.1.1 [RESERVED]
11.1.2 The Employer acting through
its Board has the right at any time and from
time to time to amend this plan in any
manner.
4. Section 12 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 12 is hereby
substituted in lieu thereof to provide as follows:
Section 12. Allocation of Responsibilities
Among Named Fiduciaries:
<PAGE>
12.1 Duties of named fiduciaries: The
named fiduciaries with respect to the plan
and the fiduciary duties and other
responsibilities allocated to each, which
shall be carried out in accordance with the
other applicable terms and provisions of the
plan, are as follows:
12.1.1 Board:
(i) To amend the plan;
(ii) To appoint and remove
members of the Committee,
including the plan
administrator;
(iii) To appoint and remove any
investment managers;
(iv) To appoint and remove the
Trustee under the plan;
(v) To determine the amount
to be contributed to the
plan each year by the
Employer; and
(vi) To terminate the plan.
12.1.2 Committee:
(i) To interpret the
provisions of the plan
and to determine the
rights of participants
under the plan, except to
the extent otherwise
provided in Section 16
relating to claims
procedure;
(ii) To administer the plan in
accordance with its
terms, except to the
extent powers to
administer the plan are
specifically delegated to
another named fiduciary
or other person or
persons as provided in
the plan;
(iii) To account for the
accrued benefits of
participants;
(iv) To direct the Trustee in
the distribution of trust
assets; and
<PAGE>
(v) To establish such
procedures as it may be
advisable for the proper
administration of the
plan, including, but not
limited to, procedures
for changes in investment
directions, transfers of
assets between fund
accounts, and
applications for elective
deferrals, employee
after-tax contributions,
participant loans,
withdrawals,
distributions, direct
transfers, and rollover
contributions.
12.1.3 Plan Administrator:
(i) To file such reports as
may be required with the
United States Department
of Labor, the Internal
Revenue Service, and any
other government agencies
to which reports may be
required to be submitted
from time to time;
(ii) To comply with
requirements of law for
disclosure of plan
provisions and other
information relating to
the plan participants and
other interested parties;
and
(iii) To administer the claims
procedure to the extent
provided in Section 16.
12.1.4 Trustee:
(i) To invest and reinvest
trust assets pursuant to
direction of the
participants or any
investment manager(s)
appointed by the Board;
(ii) To make distributions to
plan participants as
directed by the
Committee;
(iii) To render annual
accountings to the
Employer as provided in
the plan; and
(iv) Otherwise to hold,
administer and control
the assets of the trust
as provided in Section 20
of the plan.
<PAGE>
12.1.5 Investment Manager: The
duties of the investment manager shall be to
manage, acquire and dispose of assets of the
trust, or to direct the Trustee in the
management, acquisition, and disposition of
assets of the trust.
12.1.6 Custodian: If the Trustee
appoints a custodian to hold and manage the
assets of the trust under the plan, then
notwithstanding the foregoing provisions of
this Section 12.1 or any other provisions of
the plan, the duties of the custodian shall
be to receive, hold, sell, exchange, and
otherwise deal with the assets of the trust
as instructed by the Trustee (or by the
investment manager, if any, to the extent of
the authority of the investment manager), to
make distributions to participants as
directed by the Committee, and to render
accounts to the Trustee as provided in
Section 20.2.
12.2 Co-fiduciary liability: Except as
otherwise provided in ERISA, a named fiduciary
shall not be responsible or liable for any act or
omission of another named fiduciary with respect
to fiduciary responsibilities allocated to such
other named fiduciaries, and a named fiduciary of
the plan shall be responsible and liable only for
its own acts or omissions with respect to
fiduciary duties specifically allocated to it and
designated as its responsibility.
5. Section 18.2 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 18.2 is
hereby substituted in lieu thereof to provide as
follows:
18.2 Special provision respecting assets
transferred from DST plans: It is
anticipated that assets will be transferred
to the plan from the DST Systems, Inc. Profit
Sharing Plan and the DST Systems, Inc. 401(k)
Plan with respect to participants in this
plan who were previously participants in such
DST plans. Such transferred assets shall at
the time of transfer be nonforfeitable and
vested in the respective participants to the
same extent as such assets were
nonforfeitable and vested under such
transferor plans immediately before the
transfers. Thereafter, such participants
shall continue to vest in such assets under
this Plan according to the "special vesting
schedule" set forth in the Adoption Agreement
Section XII.A.(3).
6. Section 18.5 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 18.5 is
hereby substituted in lieu thereof to provide as
follows:
18.5 Separate accounts: The Trustee
shall keep a separate and identifiable
account with respect to the transferred
assets of each participant (which may be
commingled for investment purposes with <PAGE> other
assets of the trust), designated as the
"direct transfer account," and moreover,
shall subdivide such direct transfer account
into subaccounts so as to be able to account
separately for amounts transferred from the
following DST plans' accounts: discretionary
employer contribution and employee elective
401(k) contribution. The direct transfer
account of each participant shall be adjusted
in the manner specified in Section 7.
7. Section 20.1.2 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 20.1.2 is
hereby substituted in lieu thereof to provide as
follows:
20.1.2 [RESERVED]
8. Section 20.1.3 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 20.1.3 is
hereby substituted in lieu thereof to provide as
follows:
20.1.3 The Board shall direct the
Trustee to segregate all or a specified
portion of the trust assets into a separate
fund (the "directed fund") and invest it in
accordance with the directions of one or more
investment managers appointed by the Board,
subject to the following provisions:
(i) Any investment manager so
appointed shall be (a)
registered as an investment
advisor under the Investment
Advisers Act of 1940; (b) a
bank, as defined in the
Investment Advisers Act of
1940; or (c) an insurance
company qualified under the
laws of more than one state to
manage, acquire, and dispose
of assets of the trust under
the plan.
(ii) The Board shall deliver to the
Trustee a copy of a written
acknowledgment by the
investment manager that it
meets the requirements of
paragraph (i), that it is a
fiduciary with respect to the
plan, and that it has accepted
appointment as an investment
manager. The Trustee shall be
protected in assuming that the
appointment of an investment
manager remains in effect
until the Trustee shall be
notified in writing by the
Board that such investment
manager has been removed or
has resigned.
(iii) The Trustee shall invest and
reinvest the directed funds
only to the extent and in the
manner directed by <PAGE> the
investment manager. Moreover,
the Trustee is not liable for
the acts or omissions of any
investment manager appointed
by the Board, nor is the
Trustee under any obligation
to invest or otherwise manage
any asset of the Plan which is
subject to the management of
the appointed investment
manager. If the Trustee has
not received instructions from
an investment manager with
respect to the investment of
all or a part of the directed
fund, the Trustee shall invest
such amounts in interest
bearing obligations having
maturities of 90 days or less,
or in a common fund comprised
substantially of such
obligations, until directed
otherwise by the investment
manager.
(iv) Any investment manager may
from time to time issue orders
for the purchase or sale of
securities directly to a
broker or dealer, and the
Trustee, upon direction from
the investment manager, shall
execute and deliver
appropriate trading
authorization. Written notice
of the issuance of each order
and of execution of each order
shall be authority to the
Trustee to receive securities
purchased against payment
therefor and to deliver
securities sold against
receipt of the proceeds
therefrom, as the case may be.
(v) Upon removal or resignation of
an investment manager, and
pending appointment of a
substitute investment manager,
the Trustee shall invest any
uninvested cash in the manner
described in paragraph (iii),
and shall not sell or
liquidate any investments of
the directed fund.
(vi) No plan fiduciary other than
an investment manager shall be
liable for any act or omission
of such investment manager
unless such fiduciary
participates knowingly in, or
knowingly undertakes to
conceal, such act or omission
which such fiduciary knows to
be a breach of the fiduciary
responsibility of the
investment manager with
respect to the plan. Further,
no plan fiduciary other than
an investment manager shall be
under any obligation to invest
or otherwise manage the assets
of the plan that are subject
to the management of the
investment manager and, to the
<PAGE>
maximum extent permitted by
ERISA, the plan fiduciaries
other than the investment
manager shall have no
liability or responsibility
for acts or failures to act as
directed by the investment
manager, or, subject to
paragraph (iii), failing to
act in the absence of any such
direction.
IN WITNESS WHEREOF, IFTC has caused this Second Amendment to
be executed this 12th day of July, 1996.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ Thomas J. McCrossan
Name: Thomas J. McCrossan
Title: President and Chief Executive Officer
EMPLOYER AND TRUSTEE
EXHIBIT 4.10.4
THIRD AMENDMENT
TO
INVESTORS FIDUCIARY TRUST COMPANY
INVESTMENT SAVINGS PLAN
WHEREAS, effective January 1, 1996, Investors Fiduciary
Trust Company ("IFTC") as the employer established the "Investors
Fiduciary Trust Company Investment Savings Plan" ("Plan") by
executing on December 15, 1995, that certain "Standardized
Form/Customized Adoption Agreement-001" ("Adoption Agreement")
under that certain prototype plan known as the "Godwins Booke &
Dickenson Prototype Profit Sharing and Employee Savings Plan and
Trust" ("Prototype Plan Document");
WHEREAS, IFTC also serves as trustee of the Plan;
WHEREAS, by written instrument dated February 26, 1996,
IFTC as employer adopted the First Amendment to the Plan, which
amendment was in the form of an amendment to the Adoption
Agreement, and such amendment had the effect of withdrawing the
Plan from the aforesaid prototype plan program and making the
Plan an "individually designed plan" under Section 11.1.2 of the
Prototype Plan Document in the amount of 68*
WHEREAS, once the Plan became an "individually designed
plan," it was the intention of IFTC to maintain the Plan under
the following documents taken together: (1) Prototype Plan
Document, (2) Adoption Agreement, and (3) the First Amendment,
which said documents taken together shall hereinafter be referred
to as the "Plan;"
WHEREAS, under Section 11.1.2 of the Prototype Plan
Document IFTC reserved the right to amend the Plan and pursuant
to that reserved right amended the Plan on July 12, 1996, by
adopting that certain Second Amendment effective January 1, 1996;
and
WHEREAS, IFTC now desires to further amend the Plan by
amending the Prototype Plan Document and the Adoption Agreement.
NOW, THEREFORE, IFTC as employer and trustee hereby
amends the Investors Fiduciary Trust Company Investment Savings
Plan effective January 1, 1996, as follows:
A. AMENDMENT TO THE ADOPTION AGREEMENT
1. Section XI.D is hereby deleted in its entirety and
a new Section XI.D is hereby substituted in lieu thereto to
provide as follows:
<PAGE>
D. Segregation of terminated participant's
vested benefit (3.6.3): [Select one]
[Complete this item XI.D only if a
participant is not permitted to direct the
investment of his entire account.]
X (1) The Trustee shall not segregate for
investment purposes that portion of
the terminated participant's vested
accrued benefit which is not
credited to his directed separate
accounts (as defined in Section
8.1).
____ (2) The Trustee shall segregate for
investment purposes that portion of
the terminated participant's vested
accrued benefit which is not
credited to his directed separate
accounts (as defined in Section
8.1). The segregated portion shall
be held in a deferred payment
account pursuant to Section 3.6.3.
B. AMENDMENTS TO THE PROTOTYPE PLAN DOCUMENT
1. Section 3.6.2 of the Prototype Plan Document is
hereby deleted in its entirety and a new Section 3.6.2 is
hereby substituted in lieu thereof to provide as follows:
3.6.2 Deferred distribution election: If the
participant has elected not to receive his vested
accrued benefit pursuant to Section 3.6.1, he may
reconsider an election at any time and elect to receive
his vested accrued benefit as of the adjustment date
coincident or next following his written election
delivered to the Committee. The Committee shall notify
such participant of his rights under this Section
3.6.2, and the participant shall make the election
provided in this Section 3.6.2, at the time and in the
manner described in Section 3.6.1.
2. Section 3.6.3 of the Prototype Plan Document is
hereby amended to delete the first sentence in such section
and to substitute in lieu thereof a new sentence to provide
as follows:
3.6.3 Distribution in the absence of an
election: If the vested accrued benefit of the
participant is not distributed pursuant to Section
3.6.1 or 3.6.2, it <PAGE> shall be held under the plan for
future payment until the first to occur of: (i) his
death; or (ii) the later of his normal retirement age
or 62, whereupon it shall be distributed to him or his
beneficiary as the case may be, in the manner provided
in Section 4.
IN WITNESS WHEREOF, IFTC has caused this Third
Amendment to be executed this 20th day of December, 1996.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ Stephen R. Hilliard
Name: Stephen R. Hilliard
Title: Executive Vice President
EMPLOYER AND TRUSTEE
EXHIBIT 4.10.5
FOURTH AMENDMENT
TO
INVESTORS FIDUCIARY TRUST COMPANY
INVESTMENT SAVINGS PLAN
WHEREAS, effective January 1, 1996, Investors Fiduciary
Trust Company ("IFTC") as the employer established the "Investors
Fiduciary Trust Company Investment Savings Plan" ("Plan") by
executing on December 5, 1995, that certain "Standardized
Form/Customized Adoption Agreement-001" ("Adoption Agreement")
under that certain prototype plan known as the "Godwins Booke &
Dickenson Prototype Profit Sharing and Employee Savings Plan and
Trust" ("Prototype Plan Document");
WHEREAS, under Section 11.1.2 of the Prototype Plan
Document IFTC reserved the right to amend the Plan;
WHEREAS, IFTC also serves as trustee of the Plan;
WHEREAS, by written instrument dated February 26, 1996,
IFTC as employer adopted the First Amendment to the Plan ("First
Amendment"), which amendment was in the form of an amendment to the
Adoption Agreement; the First Amendment had the effect of
withdrawing the Plan from the aforesaid prototype plan program and
making the Plan an "individually designed plan" under Section
11.1.2 of the Prototype Plan Document;
WHEREAS, once the Plan became an "individually designed
plan," it was the intention of IFTC to maintain the Plan under the
following documents taken together: (1) Prototype Plan Document,
(2) Adoption Agreement and (3) the First Amendment and all further
amendments to any of them, which said documents taken together
shall hereinafter be referred to as the "Plan";
WHEREAS, IFTC has amended the Plan by the First
Amendment, that certain Second Amendment dated July 12, 1996, and
that certain Third Amendment dated December 20, 1996;
WHEREAS, IFTC now desires to further amend the Plan by
amending the Prototype Plan Document and the Adoption Agreement.
NOW, THEREFORE, IFTC as employer and trustee hereby
amends the Investors Fiduciary Trust Company Investment Savings
Plan effective August 29, 1997, as follows:
A. AMENDMENTS TO THE ADOPTION AGREEMENT
1. Section V.B. is hereby deleted in its entirety and
a new Section V.B. is hereby substituted in lieu
thereof to provide as follows:
<PAGE>
B. Prior service with certain affiliated or related
employers (1.52.2):
Effective September 1, 1997, service with DST
Systems, Inc. and its affiliates shall not be
recognized as service under the Plan for employees
whose service commences on or after such date. If
IFTC is a member of a related group, the term
"Employer" includes the related group members for
purposes of crediting Hours of Service, determining
Years of Service and Breaks in Service under the
Plan, applying the limitations on allocations in
Section 23, applying the top heavy rules and the
minimum allocation requirements of Section 22, the
definitions of employee, highly compensated
employee, compensation and leased employee, and for
any other purpose required by the applicable Code
section or by a Plan provision. However, only IFTC
may contribute to the Plan and only an employee
employed by IFTC is eligible to participate in this
Plan. A related group is a controlled group of
corporations (as defined in Code 414(b)) trades or
businesses (whether or not incorporated) which are
under common control (as defined in Code 414(c))
or an affiliated service group (as defined in Code
414(m) or in Code 414(o)).
2. Section XV.A.(1) is hereby deleted in its entirety
and in lieu thereof Section XV.A.(4) is hereby
elected to provide as follows:
X (4) The Committee shall be authorized to
direct the Trustee to establish an
Employer stock fund (as described in
Section 9.1) for the purpose of allowing
participants to direct the investment or
reinvestment of all or a portion of their
accounts in Employer stock as designated
below.
If this item XV.A.(4) is selected, select one of the
following additional options:
(A) Each participant shall be permitted to
direct the investment or reinvestment of
his entire account in the Employer stock
fund.
X (B) Each participant shall be permitted to
direct the investment and reinvestment of
one or more of the following separate
accounts which are a part of his entire
account in the Employer stock fund:
____ (a) the discretionary Employer contribution
account;
____ (b) the deductible contribution account;
____ (c) the mandatory contribution account;
<PAGE>
x (d) the elective deferral account;
x (e) the qualified non-elective
contribution account;
(f) the employee after-tax contribution
account;
x (g) the matching contribution account;
x (h) the qualified matching contribution
account;
x (i) the rollover account; and
x (j) the direct transfer account.
2. Section XV.B.(1) is hereby elected.
3. Section XV.D.(1)(b) is hereby elected.
B. AMENDMENTS TO THE PROTOTYPE PLAN DOCUMENT
1. Section 8 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 8 is
hereby substituted in lieu thereof to provide as
follows:
Section 8. Participant Directed Investments:
8.1 Participant directed investments: Notwithstanding
any other provisions of the plan, each participant having an amount
to his credit under the plan may, acting through the Committee,
direct the Trustee as to the investment or reinvestment of his
account to the extent permitted by the Employer in the Adoption
Agreement, subject to the following provisions of this Section 8
and Section 9:
8.1.1 Directed investment funds: The investment
manager appointed pursuant to Section 20.1.3 hereof shall
determine from time to time the investment options
("directed investment funds") available to participants.
In addition, the Committee may select as a directed
investment fund any mutual fund for which State Street
global Advisors serves as an investment advisor. If
elected by the Employer in the Adoption Agreement, the
directed investment funds may include an Employer stock
fund (as defined in Section 9.1). Each participant shall
be entitled to direct the investment and reinvestment of
such of his separate accounts as shall be permitted in
the Adoption Agreement ("directed separate accounts")
among the directed investment funds. Each directed
separate account of a participant shall be divided into
sub-accounts reflecting the portion of such directed
separate account invested in each directed investment
fund ("fund accounts").
<PAGE>
8.1.2 Adjustment of fund accounts: Except as
otherwise specifically provided herein, each fund account
shall be adjusted as of each adjustment date in the
manner provided in Section 7, as if it were the entire
directed separate account of the participant to which it
is subsidiary, with respect to distributions,
withdrawals, loans, contributions and forfeitures
allocated to it and with respect to its share of the net
income or net loss of the directed investment fund of
which it is a part.
8.1.3 Direction of future contributions: In
accordance with procedures adopted by the Committee,
contributions allocated to a participant's directed
separate accounts shall be apportioned among the directed
investment funds in the manner designated by the
participant. Any such designation for future
contributions shall be made in multiples of the
percentage chosen by the Employer in the Adoption
Agreement. Any designation among directed investment
funds shall remain in effect unless and until the
participant shall file a timely application providing for
a different designation. A participant may change his
investment direction at such intervals during the plan
year as designated by the Employer in the Adoption
Agreement. If for any reason a participant shall not
have made an effective designation with respect to any
portion of a contribution allocated to a directed
separate account, such contribution for which no
designation was made shall be invested by the investment
manager.
8.1.4 Reallocations among directed investment
funds: In accordance with procedures adopted by the
Committee, a participant shall be entitled to reallocate
the amount credited to each of his directed separate
accounts among the available directed investment funds in
multiples of the percentage designated by the Employer in
the Adoption Agreement. Such reallocations may be made
at such intervals during the plan year as designated by
the Employer in the Adoption Agreement.
8.1.5 Notification of Trustee: The Committee
shall notify the Trustee of all directions made in
accordance with Section 8.1.3 and 8.1.4 as soon as
practicable following their receipt.
8.2 Rights in directed investment
funds: Notwithstanding the fact that all or a portion of a
participant's account may be invested in directed investment funds
selected by the investment manager or the Committee and may be
expressed in dollars, shares, or units in a particular directed
investment fund, such references shall mean the aggregate of the
dollar amount and the number of shares of Employer stock, if any,
which are credited to the participant's account at any point in
time. Nothing contained in this Section 8 shall be deemed to give
any participant any interest in any specific property in any
directed investment fund or any interest in the plan, other than
(i) the right to receive payments or distributions in accordance
with the plan, (ii) the right to instruct the Trustee how to vote
Employer stock as permitted under Section 9.4, (iii) the right <PAGE> to
instruct the Trustee how to vote the securities in the directed
investment funds as permitted under Section 8.7; (iv) the right to
instruct the Trustee with respect to the sale, exchange, or
transfer of Employer stock as permitted under Section 9.5, (v) the
right to instruct the Trustee with respect to the sale, exchange or
transfer of the securities in the directed investment funds as
permitted under Section 8.8, or (vi) to exercise any other right
specifically granted to the participant under the plan.
8.3 Effect of participant loans: In the event the
participant's separate account from which an amount is borrowed
pursuant to Section 6.6 is also a directed separate account, the
amount borrowed from such account shall be withdrawn from the fund
accounts with respect to such directed separate account on a pro
rata basis. Any repayment of principal and interest on such
borrowed amount shall be reinvested in the participant's fund
accounts in accordance with the participant's investment direction
in effect on the adjustment date as of which such repayment is
credited to the participant's directed separate account.
8.4 Distributions from directed separate accounts: In
the event the participant's separate accounts from which an amount
is to be distributed or withdrawn are also directed separate
accounts, the amount distributed from such accounts shall be
withdrawn from the fund accounts with respect to each such directed
separate account on a pro rata basis.
8.5 Accounts not subject to participant direction: In
the event a participant is not permitted to direct the investment
and reinvestment of one or more of his separate accounts, such
separate accounts shall remain subject to the investment discretion
of the investment manager.
8.6 Authority of Trustee and Committee: The Trustee
shall have and may exercise all powers necessary or advisable in
order to implement the provisions of this Section 8. The Committee
may promulgate rules or by-laws supplementing and implementing the
provisions of this Section 8, including such rules or by-laws as
may be necessary from time to time in order to provide a
participant or beneficiary, within the meaning of Section 404(c) of
ERISA and the regulations thereunder, an opportunity (i) to
exercise control over assets in his account, and (ii) to choose,
from a broad range of investment alternatives, the manner in which
some or all of the assets in his account are invested. If it is
not practicable for the Trustee to effect the transfer of funds on
any date provided in this Section 8, the Trustee shall effect such
transfer on the first practicable date thereafter.
8.7 Voting of stock held in directed investment
funds: The Employer elects to pass-through voting of stock
allocated to a participant's separate accounts to such participants
or their beneficiaries under the plan, and the following provisions
shall apply:
<PAGE>
8.7.1 Participant voting of stock: Each
participant or beneficiary shall be entitled to direct
the Trustee as to the manner in which shares of stock
allocated to the participant's separate accounts shall be
voted with respect to any corporate matter that involves
voting the stock allocated to the participant's separate
accounts as of any record date.
8.7.2 Trustee's responsibilities: The Trustee
shall vote the stock held by the trust on the record date
only as directed by the participants or investment
manager.
8.7.3 Voting instructions from
participants: The Trustee shall vote such stock in
accordance with the timely instructions of the respective
participants and beneficiaries. The Trustee shall be
responsible for soliciting and tabulating such votes.
Prior to the voting of stock, the Committee shall
distribute to each participant and beneficiary the same
information concerning the vote as is furnished by the
issuer to its shareholders. If the issuer does not
furnish any such information within the appropriate time
period under applicable state corporate law prior to the
shareholders' meeting, the Committee shall, as soon as
practicable, provide each participant and beneficiary
with an explanation of those matters that to the best
knowledge of the Committee are to be presented at such
meeting for action by shareholders and are subject to
direction by the participant or beneficiary and an
appropriate form on which the participant or beneficiary
may direct voting on such matters. If the Trustee does
not receive participant or beneficiary instructions with
respect to any stock or such instructions are not timely
received, such stock shall be voted by the Trustee only
as directed by the investment manager.
8.8 Tendering: The following provisions shall apply in
the event a tender offer or exchange offer, including but not
limited to a tender offer or exchange offer within the meaning of
the Securities Exchange Act of 1934, as amended, for any stock held
by the trust in a directed investment fund (a "tender offer") is
commenced.
8.8.1 Independent recordkeeper; Trustee's
responsibilities: In the event a tender offer for the
stock held by the trust is commenced, the functions under
the plan applicable to participation of such stock in the
tender offer shall be undertaken by the independent
recordkeeper appointed by the Committee at the time the
tender offer is commenced, and the Committee shall not
undertake any recordkeeping function under the plan that
would serve to violate the confidentiality of any
directions given by the participants or beneficiaries in
connection with the tender offer. The independent
recordkeeper shall use its best efforts to timely
distribute or cause to be distributed to each participant
and beneficiary such information as is being distributed
to other shareholders in connection with the tender
offer. The Trustee shall have no discretion or authority
to sell, exchange or transfer any of the <PAGE> stock held in
the participant's separate accounts pursuant to such
tender offer except to the extent, and only to the
extent, that the Trustee is timely directed to do so in
writing as follows:
(i) Each participant and beneficiary shall be entitled
to direct the independent recordkeeper with respect
to the sale, exchange, or transfer of the stock
allocated to the participant's separate accounts.
The independent recordkeeper shall then instruct
the Trustee as to the number of shares to be
tendered, in accordance with the above directions.
The Committee shall instruct the Trustee to follow
the directions of the independent recordkeeper
pursuant to the terms of the tender offer.
Instructions received from participants and
beneficiaries by the independent recordkeeper shall
be held in the strictest confidence and shall not
be divulged or released to any person including the
Committee, or the officers, directors, or employees
of the Employer.
(ii) The independent recordkeeper shall instruct the
Committee and the Trustee as to the number of
shares for which it did not receive any
instructions or instructions were not timely
received. The Trustee shall tender or not tender
such shares of stock only as directed by the
investment manager.
8.8.2 Records: Following any tender offer that has
resulted in the sale or exchange of any shares of stock held
by the trust, the independent recordkeeper to which
responsibility has been transferred shall continue to maintain
on a confidential basis a record of the separate account of
each participant or beneficiary to which shares of stock were
allocated at any time during such officer, until complete
distribution of such stock. The recordkeeper shall keep
confidential any instructions that it may receive from
participants or beneficiaries relating to the tender offer.
2. Section 12 of the Prototype Plan Document is hereby
deleted in its entirety and a new Section 12 is hereby
substitute in lieu thereof to provide as follows:
Section 12. Allocation of Responsibilities Among
Named Fiduciaries:
12.1 Duties of named fiduciaries: The named fiduciaries
with respect to the plan and the fiduciary duties and other
responsibilities allocated to each, which shall be carried out in
accordance with the other applicable terms and provisions of the
plan, are as follows:
<PAGE>
12.1.1 Board:
(i) To amend the plan:
(ii) To appoint and remove members of the
Committee, including the plan administrator;
(iii) To appoint and remove any investment
managers;
(iv) To appoint and remove the Trustee under
the plan:
(v) To determine the amount to be contributed
to the plan each year by the Employer;
(vi) To authorize the Committee to invest
assets of the trust in Employer stock or to
establish an Employer stock fund as described in
Section 9.1; and
(viii) To terminate the plan.
12.1.2 Committee:
(i) To interpret the provisions of the plan
and to determine the rights of participants under
the plan, except to the extent otherwise provided
in Section 16 relating to claims procedure;
(ii) To administer the plan in accordance with
its terms, except to the extent powers to
administer the plan are specifically delegated to
another named fiduciary or other person or persons
as provided in the plan;
(iii) To designate and approve any
investment funds for participant directed
investments to the extent permitted under Section
8.1.1;
(iv) To account for the accrued benefits of
participants;
(v) To direct the Trustee in the distribution
of trust assets;
(vi) To direct the Trustee in the purchase and
sale of Employer stock for the trust, subject to
the provisions of Section 8 and Section 9; and
(vii) To establish such procedures as it
may be advisable for the proper administration of
the plan, including, but not limited to, procedures
for changes in investment directions, transfers of
assets between fund <PAGE> accounts, and applications for
elective deferrals, employee after-tax
contributions, participant loans, withdrawals,
distributions, direct transfers, and rollover
contributions.
12.1.3 Plan Administrator:
(i) To file such reports as may be required
with the United States Department of Labor, the
Internal Revenue Service, and any other government
agencies to which reports may be required to be
submitted from time to time;
(ii) To comply with requirements of law for
disclosure of plan provisions and other information
relating to the plan to participants and other
interested parties; and
(iii) To administer the claims procedure
to the extent provided in Section 16.
12.1.4 Trustee:
(i) To invest and reinvest trust assets
pursuant to direction of the participants or any
investment manager(s) appointed by the Board;
(ii) To invest and reinvest trust assets in
Employer stock, if authorized by the Board and
directed by the Committee;
(iii) To make distributions to plan
participants as directed by the Committee;
(iv) To render annual accountings to the
Employer as provided in the plan; and
(iv) Otherwise to hold, administer and control
the assets of the trust as provided in Section 20
of the plan.
12.1.5 Investment Manager: The duties of the
investment manager shall be to manage, acquire and
dispose of assets of the trust, or to direct the Trustee
in the management, acquisition, and disposition of assets
of the trust.
12.1.6 Custodian: If the Trustee appoints a
custodian to hold and manage the assets of the trust
under the plan, then notwithstanding the foregoing
provisions of this Section 12.1 or any other provisions
of the plan, the duties of the custodian shall be to
receive, hold, sell, exchange, and otherwise deal with
the assets of the trust as instructed by the Trustee (or
by the investment manager, if any, to the extent of the
authority of the investment manger), to make
distributions to participants as directed by the
Committee, and to render accounts to the Trustee as
provided in Section 20.2.
12.2 Co-fiduciary liability: Except as otherwise
provided in ERISA, a named fiduciary shall not be responsible or
liable for any act or omission of another named fiduciary with
respect to fiduciary responsibilities allocated to such other named
fiduciaries, and a named fiduciary of the plan shall be responsible
<PAGE>
and liable only for its own acts or omissions with respect to
fiduciary duties specifically allocated to it and designated as its
responsibility.
IN WITNESS WHEREOF, IFTC has caused this Fourth Amendment
to be executed this 29th day of August, 1997.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ Thomas J. McCrossan
Thomas J. McCrossan
President and Chief Executive Officer
EMPLOYER AND TRUSTEE
AON CONSULTING EXHIBIT 4.10.6
PROTOTYPE PROFIT SHARING
AND
EMPLOYEE SAVINGS PLAN AND TRUST
PLAN DOCUMENT
SECTION 1. DEFINITIONS:
As used in the plan, including this Section 1,
references to one gender shall include the other and, unless
otherwise indicated by the context:
1.1 "ACCOUNT" shall mean the aggregate of the separate
accounts maintained by the Committee with respect to each
participant. To the extent applicable, the separate accounts so
maintained shall include the following:
(i) the elective deferral account described in
Section 2.1.6;
(ii) the qualified non-elective contribution
account described in Section 2.1.6;
(iii) the employee after-tax contribution account
described in Section 2.2.3;
(iv) the matching contribution account described
in Section 2.3.3;
(v) the qualified matching contribution account
described in Section 2.3.3;
(vi) the discretionary Employer contribution
account described in Section 2.4;
(vii) the deductible contribution account described
in Section 2.5;
(viii) the mandatory contribution account described
in Section 2.6;
(ix) the direct transfer account described in
Section 18; and
(x) the rollover account described in Section 19.
1.2 "ACCRUED BENEFIT" shall mean with respect to each
participant the balance in his account (including all of the
separate accounts described in Section 1.1) as of the applicable
adjustment date following adjustment thereof as provided in
Section 7.
1.3 "ACTUAL DEFERRAL PERCENTAGE" or "ADP" shall mean
with respect to a participant for a plan year, the average of the
ratio (calculated to the nearest one-hundredth of a percentage
point) of (i) the amount of Employer contributions actually paid
over to the trust on behalf of such participant for the plan year
(other than elective deferrals distributed to the participant
pursuant to Section 23.1.4) to (ii) the participant's testing
compensation for such plan year. Employer contributions on
behalf of any participant shall include: <PAGE> (a) any elective
deferrals made pursuant to the participant's deferral election
(including excess elective deferrals of highly compensated
participants), but excluding (1) excess elective deferrals of
non-highly compensated participants that arise solely from
elective deferrals made under the plan or plans of the Employer
and (2) elective deferrals that are taken into account in the ACP
test (provided the ADP test is satisfied both with and without
exclusion of these elective deferrals); and (b) at the election
of the Employer, qualified non-elective contributions and
qualified matching contributions. The ADP of an employee who is
eligible to make elective deferrals under the plan but fails to
do so, and who does not receive an allocation of any qualified
non-elective contributions or qualified matching contributions
that are taken into account in the ADP test, shall be zero. The
ADP of a specified group of participants for a plan year shall be
the average (expressed as a percentage and calculated to the
nearest one-hundredth of a percentage point) of the ADPs
calculated separately for each participant in such group. For
purposes of determining the ADP of a participant who is a five
percent owner or one of the ten most highly compensated
employees, the elective deferrals and testing compensation of
such participant shall include the elective deferrals and testing
compensation for the plan year of family members (as defined in
Section 1.33.6). The determination and treatment of the ADP of
any participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
1.4 "ADJUSTMENT DATE" shall mean the last day of each
plan year (the "year-end adjustment date"), and such other days
during a plan year as shall be designated in the Adoption
Agreement. If the Employer shall designate daily adjustment
dates under the Adoption Agreement, adjustments to the accounts
of participants shall be made on each day securities are traded
on a national stock exchange, except regularly scheduled holidays
of the Sponsor or Trustee.
1.5 "ADOPTION AGREEMENT" shall mean the written
agreement pursuant to which the Employer adopts the plan, which
agreement shall be between the Employer and the Trustee. The
Adoption Agreement is a part of the plan as applied to the
Employer and is expressly incorporated herein by reference.
1.6 "AFFILIATED EMPLOYER" shall mean (i) 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; (ii) any trade or business (whether or not
incorporated) that is under common control (as defined in Section
414(c) of the Code) with the Employer; (iii) 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 (iv) any other entity required to be
aggregated with the Employer pursuant to regulations prescribed
by the Secretary of the Treasury under Section 414(o) of the
Code.
1.7 "AGGREGATE LIMIT" shall mean the sum of (i) 125%
of the greater of the ADP of the non-highly compensated
participants for the plan year or the ACP of the non-highly
compensated participants under the plan subject to Section 401(m)
of the Code for the plan year beginning with or within the plan
year of the cash or deferred arrangement, as described in Section
401(k) of the Code ("CODA"), and (ii) the lesser of 200% or two
plus the lesser of such ADP or ACP. "Lesser" is substituted for
"greater" in "(i)", above, and "greater" is substituted for
"lesser" after "two plus the" in "(ii)" if such substitutions
would result in a larger aggregate limit.
1.8 "AVERAGE CONTRIBUTION PERCENTAGE" or "ACP" shall
mean, for a specified group of participants for a plan year, the
average of the contribution percentages of the eligible
participants in such group (calculated separately for each
participant in such group to the nearest one-hundredth of a
percentage point).
1.9 "BOARD" shall mean the Board of Directors of the
Employer if the Employer is a corporation. If the Employer is an
unincorporated employer, "Board" shall mean the Employer.
<PAGE>
1.10 A "BREAK IN SERVICE" shall mean, with respect to
an employee, the following:
1.10.1 If the Employer shall not designate the
elapsed time method of crediting hours of service in the Adoption
Agreement, the computation period in which the employee shall not
have completed more than 500 hours of service. Such period shall
be the plan year unless otherwise specifically provided in
Section 1.14.1.
1.10.2 If the Employer shall designate the elapsed
time method of crediting hours of service in the Adoption
Agreement, a break in service shall mean a period of severance of
at least 12-consecutive months. Solely for purposes of
determining whether a break in service has occurred, in the case
of an employee who is absent from work for maternity or paternity
reasons, the 12-consecutive month period beginning on the first
anniversary of the first date of such absence shall not
constitute a break in service. For purposes of this Section
1.10.2, an absence from work for maternity or paternity reasons
shall have the same meaning as set forth in Section 1.34.5.
1.11 "CODE" shall mean the Internal Revenue Code of
1986, as amended, and the rules and regulations issued
thereunder.
1.12 "COMMITTEE" shall mean the administrative
committee provided for in Section 10.
1.13 "COMPENSATION" shall mean, for purposes of
allocating contributions and forfeitures under the plan,
compensation as that term is designated by the Employer in the
Adoption Agreement. For any self-employed individual covered
under the plan, "compensation" shall mean earned income, as
defined in Section 1.18. Compensation shall include only that
compensation which is actually paid to the participant during the
determination period (as described in this Section 1.13).
1.13.1 Except as otherwise provided in the plan, the
determination period shall be the period elected by the Employer
in the Adoption Agreement. If the Employer makes no election,
the determination period shall be the plan year. If the
determination year is the plan year, compensation shall be
measured only during the portion of the plan year during which
the employee is eligible to participate in the plan, provided
that if such information is not readily available, compensation
for the entire plan year shall be used.
1.13.2 Notwithstanding the foregoing, if elected by
the Employer in the Adoption Agreement, compensation shall
include any amount which is contributed by the Employer pursuant
to a salary reduction agreement and which is not includable in
the gross income of the employee under Section 125, 402(e)(3),
402(h), or 403(b) of the Code.
1.13.3 In additional 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, 1989 and before January 1, 1994, the annual
Compensation of each Employee taken into account under this Plan
for any such Plan Year shall not exceed $200,000, as adjusted for
increases in the cost of living pursuant to Code Section
401(a)(17). 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 of the Internal Revenue for
increases in the cost of living in accordance with Code Section
401(a)(17)(B). The cost-of-living adjustment in effect for a
calendar year applies to any period, not exceeding 12 <PAGE> months,
over which Compensation is determined (determination period)
beginning in such calendar year. If a determination period
consists of fewer than 12 months, the 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.
1.13.4 For Plan Years beginning on or after January 1,
1994, any reference in this Plan to the limitation under Code
Section 401(a)(17) shall mean the OBRA '93 annual compensation
limit set forth in the preceding paragraph. If Compensation for
any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan
Year, the Compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in effect for
that prior determination period. For this purpose, for
determination periods beginning before the first day of the first
Plan Year beginning on or after January 1, 1994, the OBRA '93
annual compensation limit is $150,000.
1.13.5 In determining the Compensation of a Participant
for purposes of the above Compensation limitation, the family
aggregation rules of Code Section 414(q)(6) shall apply, except
in applying such rules, the term "family" shall include only the
spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of the
Plan Year. If, as a result of the application of this paragraph,
the Compensation limitation applies to a family aggregation unit,
the limitation shall be prorated among the affected individuals
in proportion to each such affected individual's Compensation as
determined under this Section prior to the application of this
limitation, or in accordance with any other method permitted by
the Commissioner of Internal Revenue.
1.14 "COMPUTATION PERIOD" shall mean a 12-consecutive
month period, as follows:
1.14.1 For purposes of plan participation, the
computation period initially shall be the 12-consecutive month
period beginning on the date an employee first completes an hour
of service. Thereafter, the computation period shall be the plan
year, beginning with the plan year containing the first
anniversary of the date the employee first completes an hour of
service, regardless of whether the employee is entitled to be
credited with 1,000 hours of service during the initial 12-month
period.
1.14.2 For purposes of determining years of service,
the computation period shall be the plan year (and the
12-consecutive month period which is substantially the same as
the plan year for periods prior to the effective date of the
plan), unless otherwise specifically provided herein.
1.15 "CONTRIBUTION PERCENTAGE" shall mean with respect
to a participant for a plan year the ratio (expressed as a
percentage and calculated to the nearest one-hundredth of a
percentage point) of the participant's contribution percentage
amounts to the participant's testing compensation for the plan
year. Pursuant to regulations issued by the Secretary of the
Treasury, the Committee may elect to take into account elective
deferrals made on behalf of any participant to any qualified plan
maintained by the Employer for purposes of determining the
contribution percentage of such participant. For purposes of
determining the contribution percentage of a participant who is a
five percent owner or one of the ten most highly compensated
employees, the contribution percentage amounts (including
elective deferrals if taken into account for purposes of
determining the contribution percentage) and testing compensation
of such participant shall include the contribution percentage
amounts (including elective deferrals, if applicable) and testing
compensation for the plan year of family members (as defined in
Section 1.33.6). Family members with respect to highly
compensated participants shall be disregarded as separate
employees in determining the contribution percentage both for
non-highly compensated participants and highly compensated
participants. The determination and treatment of <PAGE> the
contribution percentage of any participant shall satisfy such
other requirements as may be prescribed by the Secretary of the
Treasury.
1.16 "CONTRIBUTION PERCENTAGE AMOUNTS" shall mean the
sum of the employee after-tax contributions, matching
contributions, and qualified matching contributions (to the
extent not taken into account (including excess contributions
recharacterized as employee after-tax contributions) for purposes
of the ADP test) made under the plan on behalf of the participant
for the plan year. An excess contribution that is
recharacterized is taken into account in the Plan Year in which
the excess contribution is includable in the employee's gross
income. Such contribution percentage amounts shall not include
(i) employee after-tax contributions that are returned to the
participant pursuant to Section 23.1.4, or (ii) matching
contributions that are forfeited either to correct excess
aggregate contributions or because the contributions to which
they relate are excess deferrals, excess contributions, or excess
aggregate contributions. The Employer may include qualified
non-elective contributions in the contribution percentage
amounts. The Employer also may elect to use elective deferrals
in the contribution percentage amounts so long as the ADP test is
met before the elective deferrals are used in the ACP test and
continues to be met following the exclusion of those elective
deferrals that are used to meet the ACP test. Notwithstanding
the foregoing, elective deferrals distributed to a participant
pursuant to the provisions of Section 23.1.4 may not be taken
into account for purposes of determining the contribution
percentage amount of such participant.
1.17 "DISABILITY" shall mean the permanent and total
inability of a participant to perform his regular duties with the
Employer, or any other duties the Employer is willing to assign
him. The determination of the existence or nonexistence of
disability shall be made by the Committee in a nondiscriminatory
manner pursuant to a medical examination by a medical doctor
selected or approved by the Committee.
1.18 "EARNED INCOME" shall mean the net earnings from
self-employment in the trade or business with respect to which
the plan is established for which personal services of the
individual are a material income-producing factor. Net earnings
will be determined without regard to items not included in gross
income and the deductions allocable to such items. Net earnings
are reduced by contributions by the Employer to a qualified plan
to the extent deductible by the Employer under Section 404 of the
Code. Net earnings shall be determined with regard to the
deduction allowed to the Employer by Section 164(f) of the Code
for taxable years beginning after December 31, 1989.
1.19 "EFFECTIVE DATE OF THE PLAN" shall mean the date
that the plan becomes effective with respect to the Employer, as
specified by the Employer in the Adoption Agreement.
1.20 "ELECTIVE DEFERRALS" shall mean contributions made
to the plan during the plan year by the Employer, at the election
of the participant, in lieu of cash compensation and shall
include contributions that are made pursuant to a salary
reduction agreement or other deferral mechanism. Such
contributions must be nonforfeitable when made and distributable
only as specified in Section 3.8. With respect to any taxable
year, a participant's elective deferral is the sum of all
Employer contributions made on behalf of such participant
pursuant to an election to defer under any qualified CODA, any
simplified employee pension that includes a 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 the behalf of a participant for the
purchase of an annuity contract under Section 403(b) pursuant to
a salary reduction agreement. Elective deferrals shall not
include any deferrals properly distributed as excess annual
additions.
1.21 "ELIGIBLE EMPLOYEE" shall mean each employee of
the Employer; provided, that if the plan is not a standardized
form plan, "eligible employee" shall mean each employee of the
Employer except those excluded pursuant to the Adoption
Agreement.
<PAGE>
1.22 "ELIGIBLE PARTICIPANT" shall mean, for purposes of
the ACP test, any employee of the Employer who is eligible to
make an employee after-tax contribution, or an elective deferral
(if the Employer takes such contributions into account in the
calculation of the contribution percentage), or to receive a
matching contribution (including forfeitures) or a qualified
matching contribution. If an employee after-tax contribution or
an elective deferral is required as a condition of participation
in the plan, any employee who would be a participant in the plan
if such employee made such a contribution shall be treated as an
eligible participant on behalf of whom no employee after-tax
contributions or elective deferrals are made.
1.23 "EMPLOYEE" shall mean, except as otherwise
provided in this Section 1.23, an individual in the service of
the Employer if the relationship between him and the Employer is
the legal relationship of employer and employee. In determining
who is an employee for the purposes of this plan, the following
special provisions shall apply:
1.23.1 Except as provided in Section 23.5.6 and the
Adoption Agreement, all employees of an affiliated employer shall
be treated as employees of the Employer.
1.23.2 All leased employees deemed to be employees
of the Employer or an affiliated employer as provided in Section
414(n) or 414(o) of the Code and the regulations thereunder shall
be treated as employees of the Employer.
1.23.3 All employees included in a unit of employees
covered by a collective bargaining agreement, if retirement
benefits were the subject of good faith bargaining, shall not be
treated as employees of the Employer, unless representatives of
the bargaining unit and the Employer mutually agree to the
inclusion of members of such bargaining unit in the plan.
1.23.4 All employees who are nonresident aliens and
who receive no earned income (within the meaning of Section
911(d)(2) of the Code) from the Employer which constitutes income
from sources within the United States (within the meaning of
Section 861(a)(3) of the Code) shall not be treated as employees
of the Employer.
See Sections 1.21 and 1.40 for provisions governing eligibility
of an employee to become a participant in the plan. See
Section 1.6 for definition of an affiliated employer.
1.24 "EMPLOYEE AFTER-TAX CONTRIBUTION" shall mean any
contribution made to the plan by or on behalf of a participant
that is included in the participant's gross income in the year in
which made.
1.25 "EMPLOYER" shall mean each employer entering into
an Adoption Agreement. All references herein to the "Employer"
shall be applied to each such Employer as if the plan were solely
the plan of that Employer. The Employer entering into an
Adoption Agreement together with the Trustee may be a
corporation, or a partnership or sole proprietorship (herein, an
"unincorporated employer"). If the plan is a standardized form
plan, each affiliated employer must become a party to the plan by
entering into the Adoption Agreement together with the Trustee.
If the plan is not a standardized form plan, each affiliated
employer may become a party to the plan, if desired, by entering
into the Adoption Agreement together with the Trustee. With
respect to each affiliated employer which becomes a party to the
plan, the following special provisions shall apply:
1.25.1 As used in the plan, unless otherwise
indicated by the context, the term "Employer" shall mean
collectively all employer-parties to the plan.
1.25.2 The plan shall be applied as a single plan
with respect to all employer-parties as if there were only one
employer-party, and service for purposes of the plan shall be
interchangeable among employer-parties to the plan and shall not
be deemed to be interrupted <PAGE> by the transfer at anytime of an
employee from the service of one employer-party to the plan to
the service of another employer-party.
1.25.3 Notwithstanding anything to the contrary,
there shall be a single Committee with respect to all
employer-parties to the plan, which shall be the Committee
designated under the Adoption Agreement.
1.25.4 If this plan is adopted by two or more
affiliated employers, one Employer shall be designated as the
"sponsoring Employer," and shall be authorized to amend the
Adoption Agreement on behalf of itself and all affiliated
employers, subject to Section 11.1.2 of the plan.
1.26 "EMPLOYER STOCK" shall mean shares of any class of
stock issued by the Employer or any other corporation which is a
member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) which includes the
Employer.
1.27 "EMPLOYMENT COMMENCEMENT DATE" shall mean the date
on which an employee first completes an hour of service.
1.28 "ENTRY DATE" shall mean the date designated by the
Employer in the Adoption Agreement on which an eligible employee
shall enter the plan and become a participant.
1.29 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended (including amendments of the
Code affected thereby), and the rules and regulations issued
thereunder.
1.30 "EXCESS AGGREGATE CONTRIBUTIONS" shall mean, with
respect to any plan year, the excess of: (i) the aggregate
contribution percentage amounts which are taken into account in
computing the numerator of the contribution percentage and are
actually made on behalf of highly compensated employees for such
plan year, over (ii) the maximum contribution percentage amounts
permitted by the ACP test (determined in accordance with Section
1.401(m)-1(e)(2) of the Income Tax Regulations by reducing
contributions made on behalf of highly compensated employees in
order of their contribution percentages, beginning with the
highest of such percentages).
1.31 "EXCESS CONTRIBUTIONS" shall mean, with respect to
any plan year, the excess of: (i) the aggregate amount of the
Employer contributions which are actually taken into account in
computing the ADP of highly compensated participants for such
plan year and are actually made on behalf of highly compensated
employees for such plan year, over (ii) the maximum amount of
such contributions permitted under the ADP test (determined in
accordance with Section 1.401(k)-1(f)(2) of the Income Tax
Regulations by reducing contributions made on behalf of highly
compensated participants in order of their ADPs, beginning with
the highest of such percentages).
1.32 "EXCESS ELECTIVE DEFERRALS" shall mean those
elective deferrals that are includable in a participant's gross
income under Section 402(g) of the Code to the extent such
elective deferrals exceed the dollar limitation under Section
402(g) of the Code.
1.33 "HIGHLY COMPENSATED PARTICIPANT" shall mean any
participant who is a highly compensated employee. A "non-highly
compensated participant" shall mean any participant who is
neither a highly compensated participant nor a family member
(within the meaning of Section 1.33.6) of a highly compensated
participant. Any individual who has been a highly compensated
participant but who has ceased to be a participant for any reason
shall be treated as a highly compensated participant if he is a
former employee within the meaning of Section 1.33.7. A "highly
compensated employee" shall mean any employee who, during the
determination year (as defined in Section 1.33.3) or the
look-back year (as defined in Section 1.33.3):
<PAGE>
(i) was at any time a five percent owner (as
defined in Section 416(i)(1)(iii) of the Code);
(ii) received compensation from the Employer and
affiliated employers in excess of $75,000 (adjusted pursuant
to Section 415(d) of the Code);
(iii) received compensation from the Employer and
affiliated employers in excess of $50,000 (adjusted pursuant
to Section 415(d) of the Code) and was in the top-paid group
of employees for such year; or
(iv) was at any time an officer and received
compensation greater than 50% of the dollar limitation in
effect under Section 415(b)(1)(A) of the Code for such year.
No more than 50 employees (or, if lesser, the greater of
three employees or ten percent of the employees) shall be
treated as officers. If for any year no officer of the
Employer receives compensation greater than 50% of the
dollar limitation in effect for such year, the highest paid
officer of the Employer for such year shall be treated as a
highly compensated employee.
For purposes of this Section 1.33, the following special
provisions shall apply:
1.33.1 If the Employer at all times during the plan
year maintains significant business activities (and employs
employees in such activities) in at least two significantly
separate geographic areas and satisfies such other conditions as
the Secretary of the Treasury may prescribe, the Committee may
elect to apply a simplified definition of highly compensated
participant under the plan by substituting "$50,000" for
"$75,000" in paragraph (ii) above, and disregarding paragraph
(iii) above.
1.33.2 Notwithstanding the provisions of Section
1.23, the term "employee" shall mean an individual in the service
of the Employer if the relationship between him and the Employer
is the legal relationship of employer and employee.
1.33.3 The determination year shall be the plan
year. The look-back year shall be the 12-month period
immediately preceding the determination year. The Committee may
elect to make the look-back year calculation for a determination
year on the basis of the calendar year ending with or within the
applicable determination year.
1.33.4 An employee not described in paragraph (ii),
(iii), or (iv) above for the look-back year (without regard to
this Section 1.33.4) shall not be treated as described in
paragraph (ii), (iii) or (iv) in the current plan year unless he
is one of the 100 employees paid the greatest compensation during
the current plan year.
1.33.5 An employee who performs services for the
Employer any time during the year is in the top-paid group of
employees for any year if such employee is in the group
consisting of the top 20% of the employees when ranked on the
basis of compensation paid during such year. For purposes of
determining the number of employees in the top-paid group (but
not for identifying the particular employees in the top-paid
group), the following employees shall be excluded:
<PAGE>
(i) employees who have not completed six
months of service;
(ii) employees who normally work less than
17_1/2 hours per week;
(iii) employees who normally work not more
than six months during any year;
(iv) employees who have not attained age_21;
(v) employees who are included in a unit of
employees covered by a bona fide collective bargaining
agreement with the Employer; and
(vi) employees who are nonresident aliens and
who receive no earned income (within the meaning of Section
911(d)(2) of the Code) from the Employer which constitutes
income from sources within the United States (within the
meaning of Section 861(a)(3) of the Code).
The Committee may elect to apply paragraph (i), (ii), (iii),
or (iv) of this Section 1.33.5 by substituting a shorter
period of service, smaller number of hours or months, or
lower age for that specified in such subparagraphs.
1.33.6 If any individual is a member of the family
of a five percent owner or of a highly compensated employee who
is one of the ten most highly compensated employees during the
plan year, then (i) such individual shall not be considered a
separate employee, and (ii) any compensation paid to such
individual (and any contribution or benefit on behalf of such
individual) shall be treated as if it were paid to (or on behalf
of) the five percent owner or highly compensated employee. For
purposes of this Section 1.33.6, the term "family" or "family
member" means, with respect to any employee, such employee's
spouse and lineal ascendants or descendants and the spouses of
lineal ascendants or descendants.
1.33.7 A former employee shall be treated as a
highly compensated employee if he was a highly compensated
employee when he separated from service, or at any time after
attaining age 55.
The determination of who is a highly compensated employee,
including any calendar year calculation election and any
determination of the number and identity of employees in the
top-paid group, the 100 employees paid the greatest compensation,
the number of employees treated as officers, and the compensation
considered for purposes of this Section 1.33, shall be made in
accordance with Section 414(q) of the Code and the regulations
thereunder.
1.34 "HOUR OF SERVICE" shall mean the following:
1.34.1 Each hour for which an employee is paid or
entitled to payment by the Employer or an affiliated employer for
the performance of service. Each such hour shall be credited to
the employee for the computation period (as defined in Section
1.14) in which the service is performed.
1.34.2 Each hour for which an employee is paid, or
entitled to payment, by the Employer or an affiliated employer on
account of a period of time during which no service is performed,
irrespective of whether the employment relationship has
terminated, such as vacation, holiday, illness, incapacity
(including disability), lay-off, jury duty, military duty, or
leave of absence. Each such hour shall be credited to the
employee for the computation period in which no duties are
performed. In applying this Section 1.34.2, the following
provisions shall apply for periods in which an employee is not
actually in service:
<PAGE>
(i) The number of hours to be credited with
respect to any single continuous period (whether or not such
period occurs in a single computation period for which hours
are credited) shall be the lesser of: (a) 501 hours, or (b)
the number of hours for which the employee is paid with
respect to such single continuous period; provided, that in
determining whether an employee has incurred a break in
service, the provisions of this paragraph (i) shall not
limit the number of hours to be credited to such employee on
account of a leave of absence;
(ii) No hours shall be credited with respect
to payments made to the employee for the purpose of
complying with applicable worker's compensation,
unemployment compensation or disability insurance laws, or
payments solely to reimburse an employee for medical or
medically related expenses incurred by the employee; and
(iii) An amount paid to an employee by the
Employer or an affiliated employer indirectly, such as by a
trust, fund, or insurer to which the Employer makes
contributions or pays premiums, shall be deemed to be paid
by the Employer.
1.34.3 Each hour (to the extent not included in
Section 1.34.1 or 1.34.2) for which back pay, irrespective of
mitigation of damages, has been either awarded or agreed to by
the Employer or an affiliated employer. Each such hour shall be
credited to the employee for the computation period or periods to
which the award or agreement pertains rather than the computation
period in which the award, agreement, or payment is made.
1.34.4 Each hour for which an employee is not
actually in service but is required to be given credit for
service under any law of the United States. Each such hour shall
be credited to the employee for the computation period for which
the employee is required to be given credit for service.
1.34.5 Notwithstanding the foregoing provisions of
this Section 1.34, solely for the purpose of determining whether
an employee has incurred a break in service for participation and
vesting purposes in a computation period, the following special
provisions shall apply:
(i) In addition to hours for which an
employee is entitled to credit under the preceding
paragraphs of this Section 1.34, such employee shall also
receive credit for each hour with respect to the period that
he is on a leave of absence approved by the Employer for
which he is not paid or entitled to payment.
(ii) An employee 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 employee but for such absence, or in any case in which
such hours cannot be determined, eight hours of service per
day of such absence. For purposes of this paragraph (ii),
an absence from work for maternity or paternity reasons
means an absence (a) by reason of the pregnancy of the
employee, (b) by reason of a birth of a child of the
employee, (c) by reason of the placement of a child with the
employee in connection with the adoption of such child by
such employee, or (d) for purposes of caring for such child
for a period beginning immediately following such birth or
placement. The hours of service credited under this
paragraph (ii) shall be <PAGE> credited with respect to the
computation period used in determining years of service and
breaks in service in which the absence begins, if the
crediting is necessary to prevent a break in service in that
period; in all other cases, such hours of service shall be
credited in the following computation period. No more than
501 hours of service are required to be credited for
maternity or paternity reasons. No credit shall be given
under this Section 1.34.5 unless the employee furnishes to
the Committee such timely information as the Committee
reasonably may require to establish that the absence is for
a reason described in this Section 1.34.5 and the number of
days for which there was such an absence.
1.34.6 Notwithstanding the foregoing, if the
Employer shall elect the elapsed time method of crediting hours
of service under the Adoption Agreement, an hour of service shall
mean each hour for which an employee is paid, or entitled to
payment, by the Employer for the performance of duties for the
Employer.
Hours of service for all employees shall be determined on the
basis of actual hours worked or such equivalency as may be
designated by the Employer in the Adoption Agreement. The
provisions of this Section 1.34 shall be applied in accordance
with the provisions of Section 1.52 of the plan and United States
Department of Labor Regulations Sections 2530.200b-2(b) and (c)
(which provisions are incorporated herein by reference). The
method used for determining hours of service shall be as elected
by the Employer in the Adoption Agreement.
1.35 "LEASED EMPLOYEE" shall mean any individual, other
than an employee of the Employer or an affiliated employer (the
"recipient employer"), who, pursuant to an agreement between the
recipient employer and any other person (the "leasing
organization") has performed services for the recipient employer
(or the recipient employer and related persons determined in
accordance with Section 414(n) of the Code) on a substantially
full-time basis for a period of at least one year, and such
services are of a type historically performed by employment in
the business field of the recipient employer. Contributions or
benefits provided a leased employee by the leasing organization
which are attributable to services performed for the recipient
employer shall be treated as provided by the recipient employer.
A leased employee shall not be considered an employee of the
recipient employer if: (i) such individual is covered by a money
purchase pension plan providing: (a) a nonintegrated employer
contribution rate of at least ten percent of compensation, as
defined in Section 23.5.2 of the Code, but including amounts
contributed pursuant to a salary reduction agreement which are
excludable from the employee's gross income under Section 125,
402(e)(3), 402(h), or 403(b) of the Code, (b) immediate
participation, and (c) full and immediate vesting; and (ii)
leased employees do not constitute more than 20% of the recipient
employer's non-highly compensated work force, as defined in
Section 414(n)(5)(C)(ii) of the Code.
1.36 "MATCHING CONTRIBUTION" shall mean an Employer
contribution made to this or any other defined contribution plan
maintained by the Employer on behalf of a participant on account
of an employee after-tax contribution made by such participant,
or on account of a participant's elective deferrals.
1.37 "NET PROFIT" shall mean the current or accumulated
earnings of the Employer as determined according to generally
accepted accounting principles and practices by the accountant of
the Employer, subject to the following adjustments: (i) gains or
losses arising from the sale or other disposition of fixed or
capital assets of the Employer shall be excluded; (ii) taxes
based upon income shall not be deducted; and (iii) contributions
of the Employer under this plan or any other defined contribution
plan maintained by the Employer shall not be deducted; provided,
that by so specifying in the Adoption Agreement the Employer may
exclude from "net profit" a stated base amount, or a specified
return on the net worth of the Employer.
<PAGE>
1.38 "NORMAL RETIREMENT AGE" of a participant shall
mean the age specified in the Adoption Agreement. The "normal
retirement date" of a participant shall mean the date he attains
his normal retirement age.
1.39 "OWNER-EMPLOYEE" shall mean an individual who is a
sole proprietor, or who is a partner owning more than ten percent
of either the capital interest or profits interest in a
partnership. If this plan provides contributions or benefits for
one or more owner-employees who control both the business for
which this plan is established and one or more other trades or
businesses, this plan and the plan established for such other
trades or businesses must, when looked at as a single plan,
satisfy Sections 401(a) and (d) of the Code for the employees of
this and all other trades or businesses. If the plan provides
contributions or benefits for one or more owner-employees who
control one or more other trades or businesses, the employees of
the other trades or businesses must be included in a plan which
satisfies Sections 401(a) and (d) of the Code and which provides
contributions and benefits not less favorable than provided for
owner-employees under this plan. If an individual is covered as
an owner-employee under the plans of two or more trades or
businesses which are not controlled and the individual controls a
trade or business, then the contributions or benefits of the
employees under the plan of the trades or businesses which are
controlled must be as favorable as those provided for him under
the most favorable plan of the trade or business which is not
controlled. For purposes of the preceding provisions of this
Section 1.39, an owner-employee, or two or more owner-employees,
will be considered to control a trade or business if the
owner-employee, or two or more owner-employees together: (i) own
the entire interest in an unincorporated trade or business, or
(ii) in the case of a partnership, own more than 50% of either
the capital interest or the profits interest in the partnership.
For purposes of the preceding sentence, an owner-employee, or two
or more owner-employees, shall be treated as owning any interest
in a partnership which is owned, directly or indirectly, by a
partnership which such owner-employee, or such two or more
owner-employees, are considered to control within the meaning of
the preceding sentence.
1.40 "PARTICIPANT" shall mean with respect to any plan
year an eligible employee who has entered the plan and any former
employee who has an accrued benefit which is not wholly
forfeitable for the plan year pursuant to Section 5. An eligible
employee or former employee on the effective date of the plan who
was a participant in a prior plan (as specified in Section 17)
immediately preceding such effective date shall automatically be
a participant in this plan as of such effective date. An
eligible employee who was not such a participant in a prior plan
and has not otherwise entered the plan shall enter the plan and
become a participant in accordance with the provisions elected in
the Adoption Agreement. For purposes of determining eligibility
to participate, the following special provisions shall apply to
the extent applicable:
1.40.1 An eligible employee who is not in service on
the date he is eligible to enter the plan shall not enter the
plan until he reenters service as an eligible employee, whereupon
he shall immediately enter the plan.
1.40.2 If an employee incurs a one year break in
service before satisfying the plan's requirements for eligibility
to participate, service before such break will not be taken into
account for eligibility purposes.
1.40.3 In the case of a participant who does not
have any nonforfeitable right to his accrued benefit attributable
to elective deferrals, matching contributions, or discretionary
Employer contributions, years of service before a period of
consecutive one year breaks in service will not be taken into
account in computing eligibility service if the number of
consecutive one year breaks in service in such period equals or
exceeds the greater of five or the aggregate number of his years
of service. Such aggregate number of years of service will not
include any years of service disregarded under the preceding
sentence by reason of prior breaks in service. If a
participant's <PAGE> years of service are disregarded pursuant to this
Section 1.40.3, such participant will be treated as a new
employee for eligibility purposes. If such participant's years
of service are not disregarded pursuant to this Section 1.40.3,
he shall continue to participate in the plan if such breaks in
service were not accompanied by a termination of service, or, if
the participant had terminated service, he shall reenter the plan
immediately upon his return to service.
1.40.4 A participant who terminates service shall
reenter the plan immediately upon his return to service if such
participant has a nonforfeitable right to any portion of his
accrued benefit attributable to elective deferrals, matching
contributions, or discretionary Employer contributions, at the
time of such termination of service.
1.40.5 In the event a participant shall lose his
status as an eligible employee, but shall not incur a break in
service, such employee shall reenter the plan immediately upon
his return to such eligible class. If such employee incurs a
break in service, his eligibility to reenter the plan shall be
determined pursuant to this Section 1.40. In the event an
employee who is not a member of the eligible class of employees
becomes a member of such eligible class, such employee shall
enter the plan immediately if he has satisfied the participation
requirements designated by the Employer in the Adoption Agreement
and would have previously entered the plan had he been in the
eligible class.
1.40.6 Notwithstanding the foregoing, if the
Employer shall designate the elapsed time method of crediting
hours of service under the Adoption Agreement, an eligible
employee who otherwise has not entered the plan shall enter the
plan and become a participant as of the entry date designated by
the Employer in the Adoption Agreement coincident with or next
following the completion of a period or periods of service which
when aggregated equal at least 365 days, provided he is in
service on such entry date. For the purpose of applying the
foregoing provisions of this Section 1.40.6, the following
provisions shall apply: (i) an eligible employee who has
incurred a severance from service date on or before the date he
is eligible to enter the plan and later reenters service before
he incurs a break in service shall enter the plan on the date
that he reenters service as an eligible employee; (ii) an
eligible employee who is absent from service on the date he is
eligible to enter the plan and later reenters service before he
incurs a severance from service date, shall enter the plan
effective as of the first entry date that occurred during his
period of absence; and (iii) a participant who has incurred a
break in service and later reenters service shall reenter the
plan as of the date he reenters service as an eligible employee.
1.41 A "PERIOD OF SERVICE" shall mean a continuous
period of time during which the employee is in service with the
Employer. A period of service shall begin on the employee's
employment commencement date or reemployment commencement date,
whichever is applicable, and shall end on the date of the
employee's severance from service. Notwithstanding the
foregoing, a period of severance of less than 12-consecutive
months shall be included in an employee's period of service.
1.42 A "PERIOD OF SEVERANCE" shall mean a continuous
period of time during which the employee is not in service with
the Employer. A period of severance shall begin on the
employee's severance from service date and shall end on the date
on which the employee again completes or is credited with an hour
of service.
1.43 "PLAN" shall mean the AON CONSULTING Prototype
Profit Sharing and Employee Savings Plan and Trust as herein set
out or as duly amended. The name of the plan as applied to the
Employer shall be as set forth in the Adoption Agreement. The
plan is intended to be a profit sharing plan, and to permit the
Employer to elect under the Adoption Agreement to include a CODA.
<PAGE>
1.44 "PLAN ADMINISTRATOR" shall mean the person (or
persons) or entity designated by the Employer in the Adoption
Agreement to serve as plan administrator, and any successors
thereto.
1.45 "PLAN YEAR" shall mean the 12-consecutive month
period ending with the last day of the month specified by the
Employer in the Adoption Agreement.
1.46 "QUALIFIED MATCHING CONTRIBUTIONS" shall mean any
contributions that are (i) made to the plan by the Employer for
the plan year and allocated to a participant's account by reason
of elective deferrals or employee after-tax contributions, (ii)
nonforfeitable when made, and (ii) distributable only as
specified in Section 3.8.
1.47 "QUALIFIED NON-ELECTIVE CONTRIBUTIONS" shall mean
contributions (other than matching contributions or qualified
matching contributions) that are (i) made by the Employer and
allocated to a participant's account that the participant may not
elect to currently receive in cash, (ii) nonforfeitable when
made, and (iii) distributable only as specified in Section_3.8.
1.48 "REEMPLOYMENT COMMENCEMENT DATE" shall mean the
first date, following a break in service, on which an employee
completes an hour of service.
1.49 "RETIRE" or "RETIREMENT" shall mean retirement
within the meaning of Section 3.1, 3.2, 3.3, or 3.5.
1.50 "SALARY REDUCTION AGREEMENT" shall mean the
written agreement entered into by a participant pursuant to the
provisions of Section 2.1.
1.51 "SELF-EMPLOYED INDIVIDUAL" shall mean an
individual who has earned income for the taxable year, or an
individual who would have had earned income but for the fact that
the trade or business had no net profit for the taxable year.
1.52 "SERVICE" shall mean employment by the Employer as
an employee. In determining service, all employees of an
affiliated employer and individuals deemed to be employees for
purposes of the plan under Section 414(n) or 414(o) of the Code
and the regulations thereunder shall be deemed to be in the
service of the Employer. For purposes of this Section 1.52, the
following special provisions shall apply:
1.52.1 Nothing in this Section 1.52 shall be
construed as including as a participant an individual who is in
the service of an affiliated employer which is not a party to the
plan. See Section 1.25 for requirement that each affiliated
employer must become a party to a standardized form plan.
1.52.2 Unless otherwise elected by the Employer in
the Adoption Agreement, service with an employer prior to
becoming an affiliated employer shall be disregarded for all
purposes of the plan.
1.52.3 In any case in which the Employer maintains
the plan of a predecessor employer, service with such predecessor
employer shall be treated as service with the Employer.
1.53 "SEVERANCE FROM SERVICE DATE" shall mean, with
respect to an employee, the earlier of (i) the date he quits, is
discharged, retires, or dies; or (ii) the first anniversary of
the date he is absent from service (with or without pay) for any
other reason (including but not limited to vacation, holiday,
sickness, disability, leave of absence, and layoff).
<PAGE>
1.54 "SHAREHOLDER-EMPLOYEE" shall mean an individual
owning (or considered as owning within the meaning of Section
318(a)(1) of the Code) more than five percent of the outstanding
stock of the Employer if, with respect to any taxable year of the
Employer, the Employer is an S Corporation within the meaning of
Section 1361(a) of the Code.
1.55 "SPONSOR" shall mean AON CONSULTING, which has
caused the plan to be established.
1.56 "SPOUSE" or "SURVIVING SPOUSE" shall mean, except
as otherwise provided in the plan, the legally married spouse or
surviving spouse of a participant; provided that a former spouse
shall be treated as the spouse or surviving spouse to the extent
provided under a qualified domestic relations order described in
Section 414(p) of the Code.
1.57 "STANDARDIZED FORM PLAN" shall mean a regional
prototype plan which satisfies the requirements of Section 4.11
of Revenue Procedure 89-13. This plan is a standardized form
plan if so designated in the Adoption Agreement.
1.58 "TAXABLE WAGE BASE" shall mean the maximum amount
of earnings which may be considered wages for a year under
Section 3121(a)(1) of the Code, as in effect as of the first day
of the plan year.
1.59 "TESTING COMPENSATION" shall mean any of the
definitions of compensation which are set forth in Section
23.5.2, as designated by the Committee. If elected by the
Committee, each such definition of compensation may be modified
to include any amounts excludable from the employee's gross
income under Section 125, 402(e)(3), 402(h), or 403(b) of the
Code. The amount of testing compensation with respect to any
participant shall include his testing compensation for the entire
plan year or, if elected by the Committee, that portion of the
plan year in which the employee was eligible to participate in
the plan. Notwithstanding the above, a participant's testing
compensation shall be subject to the annual compensation
limitation set forth in Section 1.13.3.
1.60 "TRUST" or "TRUST FUND" shall mean the assets of
the plan and trust held by the Trustee.
1.61 "TRUSTEE" shall mean the person (or persons) or
entity designated by the Employer in the Adoption Agreement to
serve as trustee, and any successors thereto.
1.62 A "YEAR OF SERVICE" shall mean 1,000 or more hours
of service during a computation period.
1.62.1 Notwithstanding the foregoing provisions of
this Section 1.62, with respect to service prior to the
computation date (as defined in this Section 1.62.1), a year of
service shall mean uninterrupted service for a full plan year.
Service prior to the computation date shall be taken into account
only with respect to employees in service on such date, and with
respect to each such employee only to the extent of full plan
years of uninterrupted service preceding such date (or his normal
retirement age, if earlier). For this purpose, the "computation
date" shall mean the later of (i) the first day of the plan year
beginning in 1976, or (ii) the effective date of the plan (or, if
the Employer was a party to a prior plan within the meaning of
Section 17, the effective date of the prior plan).
1.62.2 Notwithstanding any provision of this Section
1.62 to the contrary, if the Employer shall designate the elapsed
time method of crediting hours of service in the Adoption
Agreement, the number of whole years of the employee's period or
periods of service shall be subject to the following special
provisions:
<PAGE>
(i) All periods of service of the employee
shall be aggregated (including nonsuccessive periods of
service), and 365 days shall be deemed to equal a whole year
of service. Following such aggregation, any fractional year
shall be disregarded.
(ii) To the extent not otherwise included in
the employee's period or periods of service, the time during
which an employee is on a leave of absence approved by the
Employer shall be included in determining his years of
service.
1.62.3 Years of service shall include any period for
which an employee would have been a leased employee but for the
requirement that a leased employee perform service for the
Employer, or the Employer and related persons determined in
accordance with Section 414(n)(6) of the Code, on a substantially
full-time basis for a period of a least one year.
SECTION 2. CONTRIBUTIONS TO THE TRUST AND
ALLOCATION THEREOF:
2.1 ELECTIVE DEFERRALS: If elected by the Employer in
the Adoption Agreement, a CODA, which satisfies the requirements
of Section 401(k) of the Code, shall apply and be a part of the
plan.
2.1.1 Administrative rules governing salary
reduction agreements:
(i) To the extent provided in the Adoption
Agreement, a participant may elect to make elective
deferrals under this plan by executing and delivering to the
Committee a salary reduction agreement in accordance with
such rules and procedures as are adopted by the Committee
from time to time. Elective deferrals shall be made through
payroll deduction pursuant to the participant's salary
reduction agreement. A participant may elect to commence
elective deferrals as of any entry date, and such election
shall remain in effect until modified or terminated. A
participant shall be afforded a reasonable period at such
times as shall be specified by the Employer in the Adoption
Agreement to modify the amount or frequency of his elective
deferrals. A participant may terminate his election to make
elective deferrals at any time to be effective on the first
day of the next full payroll period. If not sooner
terminated, a participant's salary reduction agreement shall
terminate automatically as of the last day of the payroll
period in which the participant shall terminate his service
with the Employer.
(ii) The Committee may amend or revoke a
salary reduction agreement with a participant at any time if
the Committee determines that such amendment or revocation
is necessary to ensure that the annual additions (as defined
in Section 23.5.1) to the account of a participant do not
exceed the annual addition limitations (described in Section
23.1.1) for such participant or that the requirements of
Section 2.1.4 are met for such plan year.
2.1.2 Maximum amount of elective deferrals: A
participant's elective deferrals are subject to any limitations
imposed in the Adoption Agreement and any further limitations
under the plan. No participant shall be permitted to make
elective deferrals under this plan during any taxable year of the
participant in excess of the dollar limitation contained in
Section 402(g) of the Code in effect at the beginning of such
taxable year.
<PAGE>
2.1.3 Distribution of excess elective deferrals:
(i) Notwithstanding any other provisions of
the plan, excess elective deferrals, plus any income and
minus any loss allocable thereto, shall be distributed no
later than each April 15 to participants to whose accounts
excess elective deferrals were allocated for the preceding
taxable year and who claim excess elective deferrals for
such taxable year. Excess elective deferrals shall be
treated as annual additions under the plan, unless such
amounts are distributed no later than April 15 following the
close of the participant's taxable year. The participant's
claim under this Section 2.1.3 shall be in writing; shall be
submitted to the plan administrator not later than March 1;
shall specify the amount of the participant's excess
elective deferrals for the preceding taxable year; and shall
be accompanied by the participant's written statement that
if such amounts are not distributed, such excess elective
deferrals, when added to amounts deferred under other plans
or arrangements described in Section 401(k), 408(k), or
403(b) of the Code, will exceed the limit imposed on the
participant by Section 402(g) of the Code for the taxable
year in which the deferral occurred. A participant is
deemed to notify the plan administrator of any excess
elective deferrals that arise by taking into account only
those elective deferrals made to this plan and any other
plan of the Employer. The amount of a Participant's excess
elective deferrals that must be distributed for a taxable
year pursuant to this Section shall be reduced by any Excess
Contributions previously distributed or recharacterized with
respect to the Participant for the Plan year beginning with
or within such taxable year.
(ii) Excess elective deferrals shall be
adjusted for income or loss up to the date of distribution,
provided that the Committee may disregard income or loss
allocable to the period between the end of the taxable year
and the date such excess elective deferrals are distributed
(the "gap period") in determining income or loss. The
amount of income or loss allocable to a participant's excess
elective deferrals for a taxable year shall be determined
under one of the following methods selected by the
Committee:
(a) General method: The income or loss
allocable to a participant's excess elective deferrals
for a taxable year shall be determined by multiplying
the income or loss allocable to the participant's
elective deferral account for the taxable year (and the
gap period, if so elected by the Committee) by a
fraction, the numerator of which is the participant's
excess elective deferrals for the taxable year and the
denominator is the sum of: (I) the participant's
elective deferral account balance as of the beginning
of the taxable year, plus (II) the participant's
elective deferrals for the taxable year (and the gap
period, if so elected by the Committee);
(b) Safe harbor method: The income or loss
allocable to a participant's excess elective deferrals
for a taxable year shall be determined by adding (I)
the amount <PAGE> determined in paragraph (a) above with
respect to the participant for the taxable year
(without regard to the gap period), plus (II) the
amount determined by multiplying ten percent of the
amount determined under "(I)" above by the number of
whole calendar months in the gap period, counting the
month of distribution if distribution occurs after the
15th of such month; or
(c) Other alternative methods: The income
or loss allocable to a participant's excess elective
deferrals for a taxable year (and the gap period, if so
elected by the Committee) may be determined by applying
any reasonable method selected by the Committee,
provided such method is used consistently for all
participants and for all corrective distributions under
the plan for the taxable year, and is used by the plan
for allocating income or loss to participants'
accounts.
Notwithstanding the above, the determination of income or
loss attributable to a participant's excess elective
deferrals shall be made in all respects in accordance with
Section 1.402(g)-1(e)(5) of the Income Tax Regulations.
2.1.4 Limitations on elective deferrals:
(i) Actual deferral percentage: With
respect to any plan year beginning on or after January 1,
1987, the ADP for the group of highly compensated
participants for each plan year shall bear to the ADP for
the group of all non-highly compensated participants for the
same plan year a relationship that satisfies either of the
following tests:
(a) The ADP for the group of highly compensated
participants for the plan year is not more than the ADP
for the group of non-highly compensated participants
for the same plan year multiplied by 1.25; or
(b) The ADP for the group of highly compensated
participants for the plan year is not more than the ADP
for the group of non-highly compensated participants
for the same plan year multiplied by 2.0, and the
excess of the ADP for the group of highly compensated
participants over that of all non-highly compensated
participants is not more than two percentage points (or
such lesser amount as the Secretary of the Treasury
shall prescribe by regulation to prevent the multiple
use of this alternative limitation with respect to any
highly compensated participant).
(ii) Special rules for calculating the ADP:
(a) The ADP for any highly compensated
participant for the plan year who is eligible to have
elective <PAGE> deferrals (and qualified non-elective
contributions or qualified matching contributions, or
both, if treated as elective deferrals for purposes of
the ADP test) allocated to his account under two or
more arrangements described in Section 401(k) of the
Code that are maintained by the Employer shall be
determined as if such elective deferrals (and if
applicable, qualified matching contributions or
qualified non-elective contributions or both) were made
under a single arrangement. If a highly compensated
employee participates in two or more cash or deferred
arrangements that have different plan years, all cash
or deferred arrangements ending with or within the same
calendar year shall be treated as a single arrangement.
Notwithstanding the foregoing, certain plans shall be
treated as separate if mandatorily disaggregated under
regulations under Section 401(k) of the Code.
(b) In the event that this plan satisfies the
requirements of Sections 401(k), 401(a)(4), or 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 such sections of the Code only if
aggregated with this plan, then the ADP test shall be
applied by determining the actual deferral percentages
of employees as if all such plans were a single plan.
For plan years beginning after December 31, 1989, plans
may be aggregated in order to satisfy Section 401(k) of
the Code only if they have the same plan year.
(c) For purposes of determining the ADP test,
elective deferrals, qualified non-elective
contributions, and qualified matching contributions
must be made before the last day of the 12-month period
immediately following the plan year to which such
contributions relate.
(d) The Employer shall maintain records
sufficient to demonstrate satisfaction of the ADP test
and the amount of qualified non-elective contributions
or qualified matching contributions, or both, used in
such test.
(e) Notwithstanding anything to the contrary in
the plan, the determination and treatment of elective
deferrals and the ADP of any participant shall satisfy
Section 1.401(k)-1(b) of the Income Tax Regulations and
such other requirements as may be prescribed by the
Secretary of the Treasury.
(iii) Distribution of excess contributions:
(a) Notwithstanding any other provisions of the
plan and except as otherwise provided in Section
2.1.4(iii)(e), excess contributions, plus any income
and <PAGE> minus any loss allocable thereto, shall be
distributed no later than the last day of each plan
year to participants to whose accounts such excess
contributions were allocated for the preceding plan
year. If such excess amounts are distributed more than
two and one-half months after the last day of the plan
year in which such excess amounts arose, a ten percent
excise tax will be imposed on the Employer with respect
to such amounts. Such distributions shall be made to
highly compensated participants on the basis of the
respective portions of the excess contributions
attributable to each of such employees. Excess
contributions of participants who are subject to the
family member aggregation rules shall be allocated
among the family members in proportion to the elective
deferrals (and amounts treated as elective deferrals)
of each family member that is combined to determine the
combined ADP.
(b) Excess contributions (including the amounts
recharacterized as employee after-tax contributions)
shall be treated as annual additions under the plan.
(c) The amount of a Participant's Excess
Contributions to be distributed or recharacterized
pursuant to this Section for a Plan Year shall be
reduced by any Excess Elective Deferrals previously
distributed to the Participant for the Participant's
taxable year ending with or within such Plan Year.
(d) Determination of income or loss: Excess
contributions shall be adjusted for income or loss up
to the date of distribution, provided that the
Committee may disregard income or loss allocable to the
period between the end of the plan year and the date
such excess contributions are distributed (the "gap
period") in determining income or loss. The income or
loss allocable to a participant's excess contributions
for a plan year shall be determined under one of the
following methods selected by the Committee:
(I) General method: The income or loss
allocable to a participant's excess
contributions for a plan year shall be
determined by multiplying the income or loss
allocable to the participant's account
attributable to elective deferrals (and
qualified non-elective contributions and/or
qualified matching contributions, if any of
such contributions are included in the ADP
test) for the plan year (and the gap period,
if so elected by the Committee) by a
fraction. The numerator of such fraction is
the participant's excess contributions for
<PAGE>
the plan year and the denominator is the sum
of: (A) the balance of the participant's
account attributable to elective deferrals
(and qualified non-elective contributions
and/or qualified matching contributions, if
any of such contributions are included in the
ADP test) as of the beginning of the plan
year, plus (B) the participant's elective
deferrals (and qualified non-elective
contributions and/or qualified matching
contributions, if any of such contributions
are included in the ADP test) for the plan
year (and the gap period, if so elected by
the Committee);
(II) Safe harbor method: The income or
loss allocable to a participant's excess
contributions for a plan year shall be
determined by adding (A) the amount
determined in subparagraph (I) above with
respect to the participant for the plan year
(without regard to the gap period), plus (B)
the amount determined by multiplying ten
percent of the amount determined under "(A)"
above by the number of whole calendar months
in the gap period, counting the month of
distribution if distribution occurs after the
15th of such month; or
(III) Other alternative methods: The
income or loss allocable to a participant's
excess contributions for a plan year (and the
gap period, if so elected by the Committee)
may be determined by applying any reasonable
method for computing the income or loss
allocable to excess contributions, provided
such method is used consistently for all
participants and for all corrective
distributions under the plan for the plan
year, and is used by the plan for allocating
income or loss to participants' accounts.
Notwithstanding the above, the determination of income
or loss attributable to a participant's excess
contributions shall be made in all respects in
accordance with Section 1.401(k)-1(f)(4) of the Income
Tax Regulations.
(d) Accounting for excess contributions: Unless
otherwise prescribed by the Committee, amounts
distributed under Section 2.1.4(iii) shall first be
treated as <PAGE> distributions from the participant's
elective deferral account and qualified matching
contribution account (if applicable) in proportion to
the participant's elective deferrals and qualified
matching contributions (to the extent used in the ADP
test) for the plan year. Excess contributions shall be
distributed from the participant's qualified
non-elective contribution account only to the extent
that such excess contributions exceed the balance in
the participant's elective deferral account and
qualified matching contribution account.
(e) Recharacterization: If the Employer elects
in the Adoption Agreement to allow employee after-tax
contributions, the Employer may treat a participant's
excess contributions (without adjustment for income or
loss allocable thereto) as an amount distributed to the
participant and then contributed by the participant to
the plan. Recharacterized amounts will remain
allocated to a participant's elective deferral account,
together with any earnings allocated to such
recharacterized amounts, and will continue to be
subject to the same distribution requirements as
elective deferrals. Amounts may not be recharacterized
by a highly compensated participant to the extent that
such amounts in combination with other employee
after-tax contributions made by that employee would
exceed any stated limit under the plan for employee
after-tax contributions. Recharacterization must occur
no later than two and one-half months after the last
day of the plan year in which such excess contributions
arose and is deemed to occur no earlier than the date
the last highly compensated participant is informed in
writing of the amount recharacterized and the
consequences thereof. Recharacterized amounts will be
taxable to the participant for the participant's
taxable year in which the participant would have
received them in cash.
2.1.5 Qualified non-elective contributions: In
lieu of distributing or recharacterizing excess contributions as
provided in Section 2.1.4 above, the Employer shall be authorized
to make such qualified non-elective contributions on behalf of
those employees designated in the Adoption Agreement as shall be
needed to satisfy the ADP test described in Section 2.1.4(i) of
the plan or the ACP test described in Section 2.3.6(i) of the
plan, or both, pursuant to the Income Tax Regulations. Qualified
non-elective contributions may be treated as elective deferrals
under the ADP test only if the conditions described in Section
1.401(k)-1(b)(5) of the Income Tax Regulations are satisfied.
2.1.6 Separate accounts: The Committee shall
maintain a separate account, designated as the participant's
"elective deferral account," with respect to that portion of the
participant's accrued benefit that is attributable to elective
deferrals. The Committee shall maintain a separate account,
designated as the participant's "qualified non-elective
contribution account," with respect to that portion of the
participant's accrued benefit that is attributable to qualified
non-elective contributions. Each separate account shall be
credited with the applicable contributions, earnings and losses,
distributions, and other adjustments in the manner provided in
Section 7.
<PAGE>
2.1.7 Vesting: A participant's elective deferral
account and qualified non-elective contribution account shall be
nonforfeitable at all times.
2.1.8 Allocation of elective deferral and qualified
non-elective contributions: The Employer shall contribute and
allocate to each participant's elective deferral account on each
adjustment date an amount equal to the amount of the
participant's elective deferrals made pursuant to his salary
reduction agreement since the preceding adjustment date.
Qualified non-elective contributions shall be allocated to the
accounts of those employees designated in the Adoption Agreement
in the manner elected by the Employer in the Adoption Agreement.
Under no circumstances may elective deferrals be contributed and
allocated to the trust under the plan later than 30 days after
the close of the plan year for which the contributions are deemed
to be made, or such other time as provided in applicable Income
Tax Regulations. Qualified non-elective contributions must
actually be paid to the trust no later than the end of the
12-month period immediately following the plan year with respect
to which the contribution is allocated.
2.2 EMPLOYEE AFTER-TAX CONTRIBUTIONS:
2.2.1 Employee after-tax contributions: If the
Employer so specifies in the Adoption Agreement, each participant
may at his option make employee after-tax contributions to the
plan in the form of cash through payroll deduction, subject to
such limitations and requirements as shall be determined by the
Committee. The Employer shall deliver such contributions to the
Trustee as soon as practicable following each payroll date, along
with a designation of the participants to whose employee
after-tax contribution accounts the contributions are to be
credited and such other information as the Trustee shall
reasonably require. Employee after-tax contributions made with
respect to plan years beginning on and after January 1, 1987 must
comply with the average contribution percentage test described in
Section 401(m) of the Code.
2.2.2 Administrative rules governing employee
after-tax contributions:
(i) A participant may elect to commence
employee after-tax contributions as of any entry date
specified by the Employer in the Adoption Agreement. A
participant's election to commence employee after-tax
contributions shall remain in effect until modified or
terminated. A participant shall be afforded a reasonable
period at such times as shall be specified by the Employer
in the Adoption Agreement to modify the amount or frequency
of his employee after-tax contributions. A participant may
terminate his election to make employee after-tax
contributions at any time to be effective on the first day
of the next full payroll period. If not sooner terminated,
a participant's election to make employee after-tax
contributions shall terminate automatically as of the last
day of the payroll period in which the participant shall
terminate his service with the Employer.
(ii) The Committee may amend or revoke a
participant's election to make employee after-tax
contributions at any time if the Committee determines that
such amendment or revocation is necessary to ensure that the
annual additions (as defined in Section 23.5.1) to the
account of a participant do not exceed the annual addition
limitations (described in Section 23.1.1) for such
participant or that the requirements of Section 2.3.6 are
met for such plan year.
<PAGE>
2.2.3 Separate accounts: The Committee shall
maintain a separate account, designated as the participant's
"employee after-tax contribution account," with respect to that
portion of a participant's accrued benefit that is attributable
to his employee after-tax contributions. The employee after-tax
contribution account of a participant shall be credited with the
participant's employee after-tax contributions, earnings and
losses, distributions, and adjustments in the manner provided in
Section 7. In no event shall any forfeiture under the plan be
allocated to the participant's employee after-tax contribution
account.
2.2.4 Vesting: The employee after-tax contribution
account of each participant shall be nonforfeitable at all times.
2.3 MATCHING CONTRIBUTIONS:
2.3.1 Matching contributions: If elected by the
Employer in the Adoption Agreement, the Employer shall make
matching contributions to the plan in cash and/or shares of
Employer stock, if the Employer shall elect in the Adoption
Agreement to permit plan assets to be invested in Employer stock.
The amount of such matching contributions shall be calculated by
reference to the participant's elective deferrals and/or employee
after-tax contributions as specified by the Employer in the
Adoption Agreement.
2.3.2 Qualified matching contributions: The
Employer shall be authorized to make such qualified matching
contributions to the accounts of those employees designated in
the Adoption Agreement as shall be needed to satisfy the ADP test
described in Section 2.1.4 of the plan. The amount of such
qualified matching contributions to be taken into account for the
ADP test shall be determined each plan year by the Employer.
Qualified matching contributions may be treated as elective
deferrals under the ADP test only if the conditions described in
Section 1.401(k)-1(b)(5) of the Income Tax Regulations are
satisfied.
2.3.3 Separate accounts: The Committee shall
maintain a separate account, designated as the participant's
"matching contribution account," with respect to that portion of
a participant's accrued benefit that is attributable to matching
contributions. If all matching contributions made by the
Employer do not satisfy the requirements of qualified matching
contributions, then the Committee shall maintain a separate
account, designated as the participant's "qualified matching
contribution account," with respect to that portion of the
participant's accrued benefit that is attributable to qualified
matching contributions. Each separate account shall be credited
with the applicable contributions, earnings and losses,
distributions, and other adjustments in the manner provided in
Section 7.
2.3.4 Vesting: Matching contributions shall be
vested in accordance with the Employer's election in the Adoption
Agreement. In any event, matching contributions shall be
nonforfeitable upon the occurrence of an event described in
Section 5.1. A participant's qualified matching contribution
account shall be nonforfeitable at all times.
2.3.5 Forfeitures of matching contributions:
Forfeitures of matching contributions other than excess aggregate
contributions shall be made in accordance with the forfeiture
provisions elected by the Employer in the Adoption Agreement.
Notwithstanding any provision in the plan to the contrary, if all
or part of a participant's elective deferrals or employee
after-tax contributions is treated as an excess elective
deferral, an excess contribution, or an excess aggregate
contribution, any matching contribution made with respect to such
elective deferral <PAGE> or employee after-tax contribution, as
appropriate, adjusted for income and losses allocable thereto,
and which is not distributed or forfeited in order to enable the
plan to comply with the ACP test in Section 2.3.6, shall be
forfeited by the participant on or before the March 15 next
following the end of the plan year for which the matching
contribution was made (the "forfeiture date"). The income or
loss allocable to the forfeited matching contribution for the
plan year of such matching contribution shall be determined in
the same manner as for excess aggregate contributions under
Section 2.3.6.
2.3.6 Limitations on matching contributions and
employee after-tax contributions:
(i) Average contribution percentage: With
respect to any plan year beginning on or after January 1,
1987, the ACP for the group of highly compensated
participants for each plan year shall bear to the ACP for
the group of all non-highly compensated participants for the
same plan year a relationship that satisfies either of the
following tests:
(a) The ACP for the group of highly
compensated participants for the plan year is not more
than the ACP for the group of all non-highly
compensated participants for the same plan year
multiplied by 1.25; or
(b) The ACP for the group of highly
compensated participants for the plan year is not more
than the ACP for the group of all non-highly
compensated participants for the plan year multiplied
by 2.0, and the excess of the ACP for highly
compensated participants over that of all non-highly
compensated participants is not more than two
percentage points (or such lesser amount as the
Secretary of the Treasury shall prescribe by
regulations to prevent the multiple use of this
alternative limitation with respect to any highly
compensated participant).
(ii) Special rules for calculating the ACP:
(a) The following rules shall be applied to
prevent the multiple use of the alternative limitation
(as defined Section 1.402(m)-2 of the Income Tax
Regulations) with respect to any plan year. If one or
more highly compensated participants participate in
both a CODA and a plan subject to the ACP test
maintained by the Employer, and the sum of the ADP and
ACP of those highly compensated employees subject to
either or both tests exceeds the aggregate limit, then
the ACP of those highly compensated participants who
also participate in a CODA will be reduced (beginning
with the highly compensated employee whose ACP is the
highest) so that the limit is not exceeded. The amount
by which each highly compensated participant's
contribution percentage amount is reduced shall be
treated as an excess aggregate contribution. The ADP
and ACP of the highly compensated participants are
determined after any corrections required to meet the
ADP and ACP <PAGE> tests. Multiple use of the alternative
limitation does not occur if both the ADP and ACP of
the highly compensated participants do not exceed 1.25
multiplied by the ADP and ACP of the group of
non-highly compensated participants.
(b) For purposes of this Section 2.3.6, the
contribution percentage for any highly compensated
participant who is eligible to have contribution
percentage amounts allocated to his account under two
or more plans described in Section 401(a) of the Code,
or arrangements described in Section 401(k) of the
Code, that are maintained by the Employer, shall be
determined as if the total of such contribution
percentage amounts was made under each plan. If a
highly compensated employee participates in two or more
cash or deferred arrangements that have different plan
years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as the
same arrangement. Notwithstanding the foregoing,
certain plans shall be treated as separate if
mandatorily disaggregated under regulations under
Section 401(m) of the Code.
(c) In the event that this plan satisfies
the requirements of Section 401(m), 401(a)(4), or
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 such Sections of the Code only if
aggregated with this plan, then the ACP test shall be
applied by determining the contribution percentages of
participants as if all such plans were a single plan.
For plan years beginning after December 31, 1989, plans
may be aggregated in order to satisfy Section 401(m) of
the Code only if they have the same plan year.
(d) For purposes of the ACP test, employee
after-tax contributions are considered to have been
made in the plan year in which contributed to the
trust. Matching contributions and qualified
non-elective contributions will be considered made for
a plan year if made no later than the end of the
12-month period beginning on the day after the close of
the plan year.
(e) The Sponsor shall maintain records that
enable it (i) to monitor the Employer's compliance with
the requirements of Section 401(m) of the Code, (ii) to
perform the ACP test for the Employer for the plan
year, and (iii) to notify the Employer if it is
required to correct any excess aggregate contributions.
(f) Notwithstanding anything to the contrary
in the plan, the determination and treatment of
employee after-tax contributions and matching
contributions and the contribution percentage of any
participant shall satisfy <PAGE> Section 1.401(m)-1(b) of the
Income Tax Regulations and such other requirements as
may be prescribed by the Secretary of the Treasury.
(iii) Distribution of excess aggregate
contributions:
(a) General rule: Notwithstanding any other
provision of this plan, excess aggregate contributions,
plus any income and minus any loss allocable thereto,
shall be forfeited, if forfeitable, or if not
forfeitable, distributed no later than the last day of
each plan year to participants to whose accounts such
excess aggregate contributions were allocated for the
preceding plan year. Excess aggregate contributions of
participants who are subject to the family member
aggregation rules shall be allocated among the family
members in proportion to the contribution percentage
amount of each family member that is combined to
determine the combined ACP. If such excess aggregate
contributions are distributed more than two and
one-half months after the last day of the plan year in
which such excess amounts arose, a ten percent excise
tax will be imposed on the Employer maintaining the
plan with respect to those amounts. Excess aggregate
contributions shall be treated as annual additions
under the plan. The distribution (or forfeiture, if
applicable) of excess aggregate contributions shall be
made on the basis of the respective portions of such
amounts attributable to each highly compensated
employee.
(b) Determination of income or loss: Excess
aggregate contributions shall be adjusted for income or
loss up to the date of distribution, provided that the
Committee may disregard income or loss allocable to the
period between the end of the plan year and the date
such excess aggregate contributions are distributed in
determining income or loss (the "gap period"). The
income or loss allocable to a participant's excess
aggregate contributions for a plan year shall be
determined under one of the following methods selected
by the Committee:
(I) General method: The income or
loss allocable to a participant's excess
aggregate contributions for a plan year shall
be determined by multiplying the income or
loss allocable to the participant's account
attributable to contribution percentage
amounts for the plan year (and the gap
period, if so elected by the Committee) by a
fraction. The numerator of such fraction is
the participant's excess aggregate
contributions for the plan year and the
denominator is the sum of: (A) the <PAGE> balance
of the participant's account attributable to
the contribution percentage amounts as of the
beginning of the plan year, plus (B) the
participant's contribution percentage amounts
for the plan year (and the gap period, if so
elected by the Committee);
(II) Safe harbor method: The
income or loss allocable to a participant's
excess aggregate contribution for a plan year
shall be determined by adding (A) the amount
determined in subparagraph (I) above with
respect to the participant for the plan year
(without regard to the gap period), plus (B)
the amount determined by multiplying ten
percent of the amount determined under "(A)"
above by the number of whole calendar months
in the gap period, counting the month of
distribution if distribution occurs after the
15th of such month; or
(III) Other alternative methods:
The income or loss allocable to a
participant's excess aggregate contribution
for a plan year (and the gap period, if so
elected by the Committee) may be determined
by applying any reasonable method for
computing the income or loss allocable to
excess aggregate contributions, provided such
method is used consistently for all
participants and for all corrective
distributions under the plan for the plan
year, and is used by the plan for allocating
income or loss to participants' accounts.
Notwithstanding the above, the determination of income
or loss attributable to a participant's excess
aggregate contributions shall be made in all respects
in accordance with Section 1.401(m)-1(e)(3) of the
Income Tax Regulations.
(c) Treatment of forfeitures of excess aggregate
contributions: Forfeitures of excess aggregate
contributions shall be treated in the same manner as
elected by the Employer in the Adoption Agreement with
respect to forfeitures of matching contributions,
except that if such forfeitures are reallocated, they
shall only be reallocated among the accounts of
non-highly compensated participants. Amounts forfeited
by highly compensated participants under this Section
2.3 shall be treated as annual additions under the
plan.
<PAGE>
(d) Accounting for excess aggregate
contributions: Unless otherwise prescribed by the
Committee, excess aggregate contributions shall be
forfeited, if forfeitable, or distributed on a pro rata
basis from the participant's employee after-tax
contribution account, matching contribution account,
and qualified matching contribution account (and, if
applicable, the participant's qualified non-elective
contribution account or elective deferral account, or
both).
(e) Order of determination: The determination of
the excess aggregate contributions shall be made after
first determining the excess elective deferrals, and
then determining the excess contributions under the
plan.
2.4. DISCRETIONARY EMPLOYER CONTRIBUTIONS: The
Employer shall contribute to the trust for the taxable year of
the Employer that ends with or within the plan year such amount
as provided in the Adoption Agreement. Discretionary Employer
contributions may be made in cash and/or shares of Employer
stock, if the Employer shall elect in the Adoption Agreement to
permit plan assets to be invested in Employer stock. The
Committee shall maintain a separate account, designated as the
participant's "discretionary Employer contribution account," with
respect to that portion of the participant's accrued benefit that
is attributable to discretionary Employer contributions under the
plan. Subject to the provisions of Sections 22 and 23, any
discretionary Employer contribution shall be allocated as of each
adjustment date as specified by the Employer in the Adoption
Agreement. The discretionary Employer contribution account shall
be vested in accordance with the Employer's election in the
Adoption Agreement, and adjusted as of each adjustment date in
accordance with the provisions of Section 7.
2.5 VOLUNTARY DEDUCTIBLE EMPLOYEE CONTRIBUTIONS: A
participant may not make voluntary deductible employee
contributions to the plan with respect to his taxable years
beginning after December 31, 1986. The Committee shall maintain
a separate account, designated as the participant's "deductible
contribution account," with respect to each participant who had
made such voluntary deductible employee contributions under a
predecessor plan prior to January 1, 1987. The deductible
contribution account of each participant shall be nonforfeitable
and shall be adjusted as of each adjustment date in accordance
with the provisions of Section 7. In no event shall any
forfeiture under the plan be allocated to the participant's
deductible contribution account. Assets in the participant's
deductible contribution account may be commingled for investment
with other funds of the trust.
2.6 MANDATORY EMPLOYEE CONTRIBUTIONS: A participant
shall not be required to make contributions to the trust for any
plan year beginning on or after the effective date of the plan.
The Committee shall maintain a separate account, designated as
the participant's "mandatory contribution account," with respect
to each participant having made mandatory contributions under a
predecessor plan. The mandatory contribution account of each
participant shall be nonforfeitable and shall be adjusted as of
each adjustment date in accordance with the provisions of
Section 7. In no event shall any forfeiture under the plan be
allocated to the participant's mandatory contribution account.
Assets in the participant's mandatory contribution account may be
commingled for investment with other funds of the trust.
2.7 MAXIMUM CONTRIBUTION PERMITTED: In no event shall
the total contribution made under this Section 2 for any plan
year exceed the maximum amount deductible for federal income tax
purposes by the Employer for the taxable year. Each contribution
to the plan shall be made conditional upon being deductible <PAGE> under
Section 404 of the Code and upon the plan being qualified under
Section 401(a) of the Code for the plan year for which such
contribution is made.
2.8 REQUIREMENT OF CURRENT OR ACCUMULATED NET PROFITS:
Elective deferrals, qualified non-elective contributions,
matching contributions, and qualified matching contributions
shall be made by the Employer to the plan without regard to the
current or accumulated net profits of the Employer. If elected
by the Employer in the Adoption Agreement, discretionary Employer
contributions may be made pursuant to Section 2.4 without regard
to the current or accumulated net profits of the Employer.
SECTION 3. RETIREMENT; TERMINATION OF SERVICE;
DEATH; ENTRY OF QUALIFIED DOMESTIC
RELATIONS ORDER:
3.1 NORMAL RETIREMENT: A participant who is in
service may retire from service at his normal retirement date.
3.2 EARLY RETIREMENT: If so specified by the Employer
in the Adoption Agreement, and subject to the requirements for
early retirement set forth therein, a participant may elect early
retirement effective as of any adjustment date prior to his
normal retirement date by filing written notice with the
Committee on or before such adjustment date. Such election shall
be irrevocable when filed.
3.3 DELAYED RETIREMENT: If a participant shall remain
in service following his normal retirement date, his retirement
date shall be the date he shall actually retire. During the
period that such participant remains in service pursuant to this
Section 3.3, he shall continue to participate for and including
each plan year in which he meets the requirements therefor. If
an employee not otherwise a participant becomes eligible to enter
the plan following his normal retirement date, the provisions of
this Section 3.3 shall apply in determining his retirement date.
3.4 DEATH: If a participant dies, his vested accrued
benefit shall be paid to his beneficiary pursuant to the
provisions of Section 4.2.
3.5 DISABILITY: If a participant suffers disability
while in service, he may elect to retire as of any adjustment
date following the establishment of his disability by filing
written notice with the Committee on or before such adjustment
date. Such election shall be irrevocable when filed.
3.6 TERMINATION OF SERVICE: The following provisions
shall apply in the event a participant terminates service before
he is eligible to retire under the plan:
3.6.1 Distribution election: Such participant may
elect to receive a distribution of his vested accrued benefit as
of the termination adjustment date specified in the Adoption
Agreement, or to defer such distribution until a later date
provided in this Section 3.6. The Committee shall notify the
participant of his rights under this Section 3.6.1 at least 30
days, but in no event more than 90 days, prior to the termination
adjustment date. Such notification shall include a general
description of the material features and an explanation of the
relative values of the optional forms of benefit available under
the plan. The participant's election shall be submitted in
writing to the Committee on or before the participant's
termination adjustment date. Such election shall be irrevocable
when filed, except that the election shall be disregarded if the
participant is in service when benefit payments are to commence.
If the participant elects to receive a distribution of his vested
accrued benefit as of the termination adjustment date, the manner
of distribution shall be determined under Section 4.1 as if the
termination adjustment date were the normal retirement date of
the participant. The Committee shall advise each participant
that the taxable portion of his distribution may be subject to
mandatory 20% federal <PAGE> income tax withholding, unless the
participant elects to make a direct transfer of the taxable
portion of such distribution to another qualified retirement plan
or individual retirement arrangement in accordance with Section
19.2. In addition, if a distribution is made to a participant
pursuant to Section 4.1 before he attains age 55, the Committee
shall advise him that the taxable portion of the distribution may
be subject to an additional ten percent income tax.
3.6.2 Deferred distribution election: If the
participant has elected not to receive his vested accrued benefit
pursuant to Section 3.6.1, he may elect to receive his vested
accrued benefit as of the adjustment date coincident with or next
following the date on which he satisfies the age requirement for
early retirement (the "early retirement adjustment date"). This
Section 3.6.2 shall only apply if the plan permits early
retirement and the participant has satisfied any service
requirement but not the age requirement therefor at the time of
his termination from service. The Committee shall notify such
participant of his rights under this Section 3.6.2, and the
participant shall make the election provided in this
Section_3.6.2, at the time and in the manner described in Section
3.6.1, treating for this purpose the early retirement adjustment
date as if it were the termination adjustment date.
3.6.3 Distribution in the absence of an election:
If the vested accrued benefit of the participant is not
distributed pursuant to Section 3.6.1, it shall be held under the
plan for future payment until the first to occur of: (i) his
death; (ii) his election to receive his vested accrued benefit as
of his early retirement adjustment date pursuant to Section
3.6.2; or (iii) the later of his normal retirement age or age 62,
whereupon it shall be distributed to him or his beneficiary, as
the case may be, in the manner provided in Section 4. If elected
by the Employer in the Adoption Agreement, the amount of the
vested accrued benefit which shall be held for the participant
under this Section 3.6.3 shall be set aside in a special account
(the "deferred payment account"). The Trustee shall segregate
the deferred payment account from the general assets of the trust
as of the participant's termination adjustment date. The
deferred payment account shall be invested by the Trustee in
short-term, interest-bearing securities or certificates which may
be readily converted to cash without penalty, and which provide
for maximum safety of principal (the "conservative investments").
The deferred payment account shall be subject to adjustment as of
each adjustment date in the manner specified in the applicable
provisions of Section_7, treating for this purpose the assets in
which the deferred payment account are invested as if they
composed the entire trust fund. If a deferred payment account is
established pursuant to this Section 3.6.3 and the Trustee
maintains directed investment funds (as defined in Section
8.1.1), in lieu of investing the deferred payment account in the
conservative investments, at the direction of the Committee the
deferred payment account may be invested by the Trustee in the
most conservative directed investment fund as designated by the
Committee and adjusted in the manner provided in Section 8.1.2.
Notwithstanding the foregoing, if the Employer has authorized
participant directed investments under the plan, only that
portion of the terminated participant's vested accrued benefit
which is not credited to his directed separate accounts (as
defined in Section 8.1) as of his termination adjustment date, if
any, shall be transferred to a deferred payment account and
invested in the manner provided in this Section 3.6.3. If
elected by the Employer in the Adoption Agreement, such
terminated participant may be permitted to continue to direct the
investment of his directed separate accounts in accordance with
Section 8, until his vested accrued benefit is paid to him or his
beneficiary in full as provided in this Section 3.6.3. If a
participant is not permitted to direct the investment of his
directed separate accounts following his termination of service,
the amounts credited to the participant's directed separate
accounts will be transferred as of his termination adjustment
date to the most conservative directed investment fund designated
by the Committee.
<PAGE>
3.7 CASH-OUT DISTRIBUTIONS: Notwithstanding any other
provision of the plan, if the vested accrued benefit of a
participant does not exceed $3,500 as of the adjustment date
coincident with or next following the date of his termination of
service for any reason, including death, and such vested accrued
benefit has never exceeded $3,500 as of the date of any prior
distribution under the plan, then his vested accrued benefit
shall be automatically paid in a lump sum as soon as
administratively feasible after such adjustment date to the
person entitled thereto without regard to any election made by
the participant and without the consent of the participant or the
participant's spouse. For purposes of this Section 3.7, if the
value of a participant's vested accrued benefit is zero, the
participant shall be deemed to have received distribution of such
vested accrued benefit. The Committee shall advise each
participant that the taxable portion of his cash-out distribution
may be subject to mandatory 20% federal income tax withholding,
unless the participant elects to make a direct transfer of the
taxable portion of such distribution to another qualified
retirement plan or individual retirement arrangement in
accordance with Section 19.2. In addition, if a distribution is
made to a participant before he attains age 59 1/2, the Committee
shall advise him that the taxable portion of the distribution may
be subject to an additional ten percent income tax.
3.8 LIMITATIONS ON CERTAIN DISTRIBUTIONS: Except as
provided in the Adoption Agreement, elective deferrals, qualified
non-elective contributions, qualified matching contributions, and
income allocable thereto are not distributable to the
participant, or the participant's beneficiary, earlier than upon
separation from service, death, or disability of the participant.
3.9 ENTRY OF A QUALIFIED DOMESTIC RELATIONS ORDER: If
the participant's accrued benefit becomes subject to a qualified
domestic relations order within the meaning of Section 414(p) of
the Code, the alternate payee's benefit shall be paid pursuant to
the provisions of Section 4.5.
SECTION 4. PAYMENT OF BENEFITS:
4.1 DISTRIBUTION OF ACCRUED BENEFITS: Subject to the
provisions of Section 9 relating to the distribution of Employer
stock, the following provisions of this Section 4 shall apply to
any distribution of a participant's accrued benefit under the
plan:
4.1.1 Payment of benefits following retirement: A
participant may elect to have the value of his vested accrued
benefit determined as of the close of business of the plan on the
adjustment date coincident with or next following the date he
retires pursuant to Section 3.1, 3.2, 3.3, or 3.5, or as of such
later adjustment date as he may elect pursuant to Section 4.1.2,
and to have such amount paid to him, or applied for his benefit,
in one of the following options, as designated by the Employer in
the Adoption Agreement:
(i) Term certain: Subject to the provisions
of Section 4.1.2, payment of the vested accrued benefit to
him in approximately equal monthly installments over a whole
number of years not exceeding the life expectancy of the
participant or the joint life expectancy of the participant
and his designated beneficiary, provided that, if this plan
is not an amendment of a prior plan and is not the
transferee of assets from another plan maintained by the
Employer, the maximum number of years over which installment
distributions will be made under the plan shall be ten.
(ii) Lump sum: Payment of the vested accrued
benefit to him in a single lump sum.
<PAGE>
4.1.2 Special distribution rules: In applying the
foregoing provisions of Section 4.1.1, the following special
provisions shall apply:
(i) Any election of a distribution option
described in Section 4.1.1 shall be made in writing on a
form to be provided by the Committee and filed with the
Committee on or before the adjustment date as of which
payment is to commence. Such election shall be irrevocable
on or after such adjustment date (except as otherwise
provided in paragraph (v) of this Section 4.1.2). If a
participant shall fail to designate one of the distribution
options described in Section 4.1.1, his vested accrued
benefit shall be paid to him in a single lump sum.
(ii) Any distribution made pursuant to
Section 4.1.1 shall commence as soon as practicable
following the adjustment date as of which the participant's
vested accrued benefit is determined. A participant must be
informed of his right to defer the commencement of the
distribution of his vested accrued benefit to any adjustment
date following his retirement. Prior to any adjustment date
elected by a participant, such participant may elect to
defer commencement thereof to a subsequent adjustment date.
Such election shall be filed in writing with the Committee
prior to the adjustment date as of which his benefit would
otherwise commence. Such election may be revoked or changed
as of any adjustment date between the date filed and the
adjustment date to which the vested accrued benefit is
deferred by filing a written revocation or change with the
Committee prior to the adjustment date as of which the
revocation or change is to be effective. If a participant
shall fail to designate an adjustment date as of which the
distribution of his vested accrued benefit shall begin, he
shall be deemed to have elected to defer such distribution
until the adjustment date coincident with or immediately
following the later of (a) his attainment of his normal
retirement age or (b) his termination of service.
Notwithstanding any such election (or deemed election) to
defer the distribution of his vested accrued benefit, a
participant's vested accrued benefit must be distributed, or
begin to be distributed, no later than his required
beginning date (as defined in Section 4.4.6) in one of the
distribution options described in Section 4.1.1, as elected
by the participant.
(iii) Unless a participant shall elect to
defer the commencement of payment of his vested accrued
benefit, such payment must commence within 60 days following
the last adjustment date for the plan year in which occurs
the latest of: (a)_the participant's attainment of age 65
(or normal retirement age, if earlier); (b) the tenth
anniversary of the year in which the participant commenced
participation in the plan; or (c)_the participant's
retirement or termination of service for any other reason.
In the event that, within the applicable 60-day period, the
amount of the payment to commence cannot be determined or
the recipient thereof cannot be located after a reasonable
effort has been made to locate him, payments retroactive to
the close of such 60-day period shall be made within 60 days
after the amount has been determined or the recipient has
been located, whichever shall be applicable.
Notwithstanding the foregoing, the failure of a participant
to elect to receive a distribution under Sections 3.6.1 or
3.6.2 shall be deemed to be an election to defer
commencement of payment sufficient to satisfy the
requirements of this paragraph (iii).
<PAGE>
(iv) If a participant's vested accrued
benefit is to be distributed pursuant to the term certain
option described in Section 4.1.1(i), each annual
distribution made pursuant to such option must satisfy the
following requirements:
(a) The amount required to be distributed
for each calendar year, beginning with the first
distribution calendar year (as defined in Section
4.4.3), must at least equal the quotient obtained by
dividing the participant's benefit (as defined in
Section 4.4.5) by the applicable life expectancy (as
defined in Section 4.4.1).
(b) For calendar years beginning before
January 1, 1989, if the participant's spouse is not the
designated beneficiary (as defined in Section 4.4.2),
the term certain option elected must assure that at
least 50% of the present value of the amount available
for distribution is paid within the life expectancy of
the participant.
(c) For calendar years beginning after
December 31, 1988, the amount to be distributed each
year, beginning with the distribution for the first
distribution calendar year shall not be less than the
quotient obtained by dividing the participant's benefit
by the lesser of the applicable life expectancy or, if
the participant's spouse is not the designated
beneficiary, the applicable divisor determined from the
table set forth in Q&A-4 of Section 1.401(a)(9)-2 of
the Income Tax Regulations. Distributions after the
death of the participant shall be distributed using the
applicable life expectancy determined for purposes of
subparagraph (a) above as the relevant divisor without
regard to Section 1.401(a)(9)-2 of the Income Tax
Regulations.
(d) The minimum distribution required for
the participant's first distribution calendar year must
be made on or before the participant's required
beginning date. The minimum distributions for other
calendar years, including the minimum distributions for
the distribution calendar year in which the
participant's required beginning date occurs, must be
made on or before December_31 of that distribution
calendar year.
(v) Upon a written direction to the
Committee prior to any adjustment date by a participant who
is receiving benefit payments pursuant to the term certain
option described in Section 4.1.1(i), the participant may
direct that the balance of the participant's vested accrued
benefit be paid in a single lump sum payment as of the
adjustment date such written direction becomes effective.
If a participant marries or remarries following the
adjustment date as of which payments commenced under Section
4.1.1(i), his "spouse" for purposes of Section 4.2 shall
mean the spouse on such adjustment date.
<PAGE>
(vi) Notwithstanding the foregoing provisions
of this Section 4.1, if a participant who is receiving
benefit payments pursuant to the term certain option
described in Section 4.1.1(i) shall reenter service prior to
his normal retirement date, such payments shall cease during
the period that he is in service. When he subsequently
retires, dies, or otherwise terminates service, his then
vested accrued benefit shall be payable to or with respect
to him pursuant to the applicable provisions of the plan;
provided, however, that payments must recommence no later
than the participant's required beginning date.
4.2 PAYMENT OF DEATH BENEFITS:
4.2.1 Payment of death benefits restricted to lump
sums: This Section 4.2.1 shall only apply if this plan is (i) a
newly adopted plan, or (ii) an amendment of a prior plan of the
Employer or the transferee of assets from another plan maintained
by the Employer that did not permit the distribution of death
benefits in any form other than a single lump sum. Upon the
death of a participant before or after the distribution of his
vested accrued benefit has begun, the value of the remaining
portion of such benefit shall be determined as of the adjustment
date coincident with or next following the date of the
participant's death, and such amount shall be distributed to his
designated beneficiary (as defined in Section 4.2.2(iii)) in a
single lump sum as soon as practicable following such adjustment
date.
4.2.2. Payment of death benefits for amended plans:
This Section 4.2.2 shall apply if this plan amends a prior plan
of the Employer or is the transferee of assets from another plan
maintained by the Employer and either such prior or transferee
plan permitted the distribution of death benefits in forms other
than a single lump sum. Upon the death of the participant, the
following provisions shall apply:
(i) If the participant dies after
distribution of his vested accrued benefit has begun, the
remaining portion of such benefit shall be distributed to
his designated beneficiary at least as rapidly as under the
method of distribution in effect at his death. Should the
beneficiary die before receiving all the payments due him,
any remaining payment shall continue to the recipient
determined in accordance with Section 4.2.2(iii).
(ii) If the participant dies before
distribution of his vested accrued benefit begins, the
participant's vested accrued benefit must be distributed no
later than December 31 of the calendar year in which occurs
the fifth anniversary of the participant's death, except to
the extent that an election is made to receive distributions
under (a) or (b), as follows:
(a) If any portion of the participant's
vested accrued benefit is payable to a designated
beneficiary, distributions may be made in substantially
equal installments over the life or over a term certain
not greater than the life expectancy of the designated
beneficiary commencing on or before December 31 of the
calendar year immediately following the calendar year
in which the participant died.
<PAGE>
(b) If the designated beneficiary is the
participant's surviving spouse, the date distributions
are required to begin in accordance with (a) above
shall not be before the later of December 31 of the
calendar year immediately following the calendar year
in which the participant died, or December 31 of the
calendar year in which the participant would have
attained age 70 1/2.
If the surviving spouse dies before payments begin,
subsequent distributions shall be made pursuant to this
paragraph_(ii) (except for subparagraph (b) hereof) as if
the spouse had been the participant.
(iii) A participant's beneficiary shall be his
surviving spouse, if any; provided, that if he has no
surviving spouse or files a qualified election with the
Committee, the participant may designate another beneficiary
(which may include more than one person, natural or
otherwise, and more than one contingent beneficiary). A
"qualified election" means a beneficiary designation by the
participant on a form provided by the Committee, which
contains a consent and acknowledgment of the effect of such
consent executed by the participant's spouse and witnessed
by a representative of the Committee or a notary public.
Consent of the spouse shall not be required if the spouse
cannot be located or other circumstances exist which excuse
obtaining spousal consent under applicable law or
regulations. A participant's qualified election may be
revoked at any time by action of the participant alone, in
which case the participant's spouse shall be the
beneficiary. Any other change in beneficiary must be made
pursuant to a new qualified election. If a participant
fails to designate a beneficiary (other than his surviving
spouse), the death benefit shall be payable to the
participant's estate. If a beneficiary is receiving or
entitled to receive payments from the trust fund and dies
before receiving all payments due him, any remaining
payments shall be made to the contingent beneficiary, or, if
there is no contingent beneficiary, to the estate of the
beneficiary. Any beneficiary may disclaim part or all of
any benefit to which he is entitled by filing a written
disclaimer with the Committee at least ten days before
payment of such benefit is to commence, in a form which
shall be satisfactory to the Committee and irrevocable when
filed. Any benefit disclaimed shall be payable as if the
beneficiary who filed the disclaimer had died on the date of
such filing.
(iv) The vested accrued benefit of the
participant shall be payable in the manner provided in
Section 4.1 (treating the beneficiary for this purpose as
the participant), as elected by the participant before his
death in writing to the Committee or, if the participant
shall not have made such election, as elected by the
beneficiary in writing to the Committee no later than the
first to occur of: (a) December 31 of the calendar year in
which distributions are required to commence under paragraph
(b) above, or (b) December 31 of the calendar year in which
occurs the fifth anniversary of the participant's death. If
the participant has no designated beneficiary or if the
designated beneficiary fails to elect a method of
distribution, distribution of the participant's vested
accrued benefit must be completed by December 31 of the
calendar year in which occurs the fifth anniversary of the
participant's death.
<PAGE>
(v) For purposes of this Section 4.2.2, any
amount paid to a child of the participant shall 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.
(vi) Upon a written direction to the
Committee prior to any adjustment date by a beneficiary who
is receiving benefit payments pursuant to the term certain
option described in Section 4.1.1(i), the designated
beneficiary may direct that an alternative method of payment
of the balance of the participant's vested accrued benefit
be made, commencing with the first payment following such
adjustment date; provided, that distribution of such balance
under any alternative method of payment must be completed at
least as rapidly as under the method of payment in effect
prior to such adjustment date.
(vii) For purposes of this Section 4.2.2,
distribution of a participant's vested accrued benefit is
considered to begin on the participant's required beginning
date (or if the last sentence of paragraph (b) above is
applicable, the date distribution is required to begin to
the surviving spouse pursuant to paragraph (ii)(b) above).
4.3 TRANSITIONAL RULE FOR REQUIRED DISTRIBUTIONS:
Notwithstanding any other requirements of this Section 4,
distribution on behalf of any participant, including a five
percent owner in a top-heavy plan, may be made in accordance with
the following requirements (regardless of when such distribution
commences):
4.3.1 The distribution is one which would not have
disqualified the plan under Section 401(a)(9) of the Code as in
effect prior to amendment by the Deficit Reduction Act of 1984
("DEFRA").
4.3.2 The distribution is in accordance with a
method of distribution designated in a written instrument signed
by the participant whose interest in the trust is being
distributed or, if the participant is deceased, by a beneficiary
of such participant prior to January 1, 1984.
4.3.3 The participant had an accrued benefit under
the plan as of December 31, 1983.
4.3.4 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.
4.3.5 A distribution upon death will not be covered
by this Section 4.3 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 participant.
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 Sections 4.3.1 and 4.3.4 above. If
a designation made pursuant to this Section 4.3 is revoked, any
subsequent distribution must satisfy the requirements of Section
401(a)(9) of the Code and the regulations thereunder. If a
designation is revoked subsequent to the date distributions are
<PAGE>
required to begin, the trust must distribute by the end of the
calendar year in which the revocation occurs the total amount not
yet distributed to satisfy Section 401(a)(9) of the Code and the
regulations thereunder, but for the Section 242(b)(2) election.
4.3.7 For calendar years beginning after
December 31, 1988, such distributions must meet the minimum
distribution incidental benefit requirements in Section
1.401(a)(9)-2 of the Income Tax Regulations. Any change 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
directly or indirectly alter the period over which distributions
are to be made under the designation. In the case in which an
amount is transferred or rolled over from one plan to another
plan, the rules in Q&A J-2 and Q&A J-3 of Sections 1.401(a)(9)-2
of the Income Tax Regulations shall apply.
4.4 DEFINITIONS APPLICABLE TO PLAN DISTRIBUTIONS: The
following definitions shall apply for purposes of Section 4:
4.4.1 "Applicable life expectancy" shall mean the
life expectancy (or joint and last survivor expectancy)
calculated using the attained age of the participant (or
designated beneficiary) as of the participant's (or designated
beneficiary's) birthday in the applicable calendar year reduced
by one for each calendar year which has elapsed since the date
life expectancy was first calculated. The Employer shall specify
in the Adoption Agreement whether the life expectancy of a
designated beneficiary will be used to determine distributions
under this Section 4. If life expectancy is being recalculated,
the applicable life expectancy shall be the life expectancy as so
recalculated. The applicable calendar year shall be the first
distribution calendar year, and, if life expectancy is being
recalculated, each succeeding calendar year.
4.4.2 "Designated beneficiary" shall mean the
individual who is designated as the beneficiary under the plan in
accordance with Section 401(a)(9) of the Code and the Income Tax
Regulations thereunder.
4.4.3 "Distribution calendar year" shall mean a
calendar year for which a minimum distribution is required. For
distributions beginning before the participant's death, the first
distribution calendar year is the calendar year immediately
preceding the calendar year which contains the participant's
required beginning date. For distributions beginning after the
participant's death, the first distribution calendar year is the
calendar year in which distributions are required to begin
pursuant to Section 4.2 above.
4.4.4 "Life expectancy" shall mean life expectancy
and joint and last survivor expectancy as computed by use of the
expected return multiples in Tables V and VI of Section 1.72-9 of
the Income Tax Regulations. Unless otherwise elected by the
participant (or spouse, in the case of distributions described in
Section 4.2.2(b)(ii) above) by the time distributions are
required to begin, life expectancies shall be recalculated
annually. Such election shall be irrevocable as to the
participant (or spouse) and shall apply to all subsequent years.
The life expectancy of a nonspouse beneficiary may not be
recalculated.
4.4.5 "Participant's benefit" shall mean his
accrued benefit as of the last adjustment date in the calendar
year immediately preceding the distribution calendar year
("valuation calendar year") increased by the amount of any
contributions or forfeitures allocated to the <PAGE> accrued benefit as
of dates in the valuation calendar year after the adjustment date
and decreased by distributions made in the valuation calendar
year after the adjustment date. Notwithstanding the foregoing,
if any portion of the minimum distribution for the first
distribution calendar year is made in the second distribution
calendar year on or before the required beginning date, the
amount of the minimum distribution made in the second
distribution calendar year shall be treated as if it had been
made in the first distribution calendar year.
4.4.6 "Required beginning date" shall generally
mean the first day of April of the calendar year following the
calendar year in which the participant attains age 70 1/2.
Notwithstanding the foregoing, the following special provisions
shall apply:
(i) The required beginning date of a
participant who attains age 70 1/2 before January 1, 1988,
shall be determined in accordance with (a) or (b) below:
(a) The required beginning date of a
participant who is not a five percent owner is the
first day of April of the calendar year following the
calendar year in which the later of retirement or
attainment of age 70 1/2 occurs. The required
beginning date of a participant who is not a five
percent owner who attains age 70 1/2 during 1988 and
who has not retired as of January 1, 1989, is April 1,
1990.
(b) The required beginning date of a
participant who is a five percent owner during any year
beginning after December 31, 1979 is the first day of
April following the later of: (1) the calendar year in
which the participant attains age 70 1/2, or (2) the
earlier of the calendar year with or within which ends
the plan year in which the participant becomes a five
percent owner, or the calendar year in which the
participant retires.
(ii) A participant is treated as a five
percent owner for purposes of this Section 4.4.6 if such
participant is a five percent owner as defined in Section
416(i) of the Code (determined in accordance with Section
416 but without regard to whether the plan is top-heavy) at
any time during the plan year ending with or within the
calendar year in which such owner attains age 66 1/2 or any
subsequent plan year.
(iii) Once distributions have begun to a five
percent owner under this Section 4.4.6, they must continue
even if the participant ceases to be a five percent owner in
a subsequent year.
All distributions under this Section 4 shall be determined and
made in accordance with Section 401(a)(9) of the Code and the
Income Tax Regulations thereunder, including the minimum
distribution incidental benefit requirement of Section
1.401(a)(9)-2 of the Income Tax Regulations, which are
incorporated herein by reference.
4.5 DISTRIBUTIONS TO ALTERNATE PAYEES: If the
participant's accrued benefit under the plan shall become subject
to any "domestic relations order" which (i) is a "qualified
domestic relations order" within the meaning of Section 414(p) of
the Code, and (ii) requires the immediate distribution in a
single lump sum of the entire portion of the participant's
accrued benefit required to be segregated for the benefit of an
alternate <PAGE> payee, then the entire interest of such alternate payee
shall be distributed in a single lump sum as soon as practicable
following the adjustment date coinciding with or immediately
following the Committee's notification to the participant and the
alternate payee that the domestic relations order is qualified
under Section 414(p) of the Code. Such distribution to an
alternate payee shall be made even if the participant has not
separated from the service of the Employer. Any other
distribution pursuant to a qualified domestic relations order
shall not be made earlier than the participant's termination of
service, or his attainment of age 50, if earlier, and only in a
manner permitted under Section 4.1. For purposes of this Section
4.5, "alternate payee" shall mean any spouse, former spouse,
child, or other dependent of the participant who is recognized by
a domestic relations order as having a right to receive all or a
portion of the accrued benefit payable under the plan with
respect to such participant.
4.6 INTERIM PAYMENTS: At the request of a participant
or his designated beneficiary, the Committee may in a
nondiscriminatory manner cause one or more interim payments to be
made to such participant or beneficiary, as the case may be,
between the date the participant shall retire, or the date of
death of the participant, and the adjustment date as of which
retirement or death benefits would ordinarily be paid or commence
to be paid; provided, that in no event shall the aggregate of
such interim payments exceed 50% of the vested accrued benefit of
such participant as of the close of business of the plan on the
adjustment date next preceding the date he shall retire or die.
This Section 4.6 shall not apply if the Employer has designated
daily adjustment dates in the Adoption Agreement.
4.7 CONTINUED SHARE IN PROFITS OR LOSSES OF TRUST
FUND: If all or any part of the accrued benefit of any
individual is being paid to him from the trust in installments,
or is being held in the trust for future payment to him, his
account shall continue to be adjusted as provided in Section 7.
With respect to an individual who is receiving installment
payments from the trust, the amount of the installment payments
shall be adjusted as of each adjustment date to reflect the
adjusted amount in his account (or deferred payment account as
the case may be) as of such adjustment date. Notwithstanding the
above, no adjustment for earnings or losses shall be made to the
amount of any lump sum or individual installment distribution
under the plan between the adjustment date as of which the
distribution is valued and the actual date of such distribution.
4.8 MEDIUM OF DISTRIBUTIONS: All distributions from
the plan shall be made in cash or units as allowed by the
investment fund established within the trust or in which plan
assets are invested, except, if elected by the Employer in the
Adoption Agreement, amounts invested in Employer stock and
allocated to a participant's separate account may be distributed
in whole shares of Employer stock, with a cash adjustment for any
fractional share.
4.9 DAILY ADJUSTMENT DATES: Notwithstanding any
provision in this Section 4 to the contrary, if daily adjustment
dates are designated by the Employer in the Adoption Agreement,
the value of the participant's vested accrued benefit for
purposes of any distribution made pursuant to this Section 4
shall be determined as of the adjustment date such distribution
is actually processed.
SECTION 5. VESTING:
5.1 VESTING UPON THE OCCURRENCE OF CERTAIN EVENTS:
Notwithstanding the vesting schedule elected by the Employer in
the Adoption Agreement and subject to the provisions of Section
5.3, the matching contribution account and discretionary Employer
contribution account of each participant shall be nonforfeitable
immediately following the first to occur of:
5.1.1 Completion by the participant of his first
hour of service on or after attainment of his normal retirement
age;
5.1.2 Retirement of the participant under Section
3, including early retirement, if permitted, and disability
retirement;
<PAGE>
5.1.3 Death of the participant while in service;
5.1.4 Termination or partial termination of the
plan by the Employer;
5.1.5 Termination by the Employer of contributions
to the plan, or a suspension or reduction of such contributions
which amounts in effect to a termination of contributions; and
5.1.6 A final determination of disqualification of
the plan at any time following initial determination by the
Internal Revenue Service that the plan is qualified.
5.2 SERVICE REQUIREMENT FOR VESTING: A participant
whose matching contribution account or discretionary Employer
contribution account is subject to forfeiture, as provided in
Section 5.1 and 5.3, shall be vested in all or a percentage of
such matching contribution account and/or discretionary Employer
contribution account based upon the number of his years of
service at the time such vested percentage is determined, as
specified by the Employer in the Adoption Agreement. For
purposes of determining the vested percentage of a participant in
his matching contribution account and discretionary Employer
account, the following special provisions shall apply:
5.2.1 All years of service shall be taken into
account except as otherwise elected by the Employer in the
Adoption Agreement.
5.2.2 With respect to any participant who shall
have had a prior break in service:
(i) If a participant shall have a break in
service following the computation date (as defined in
Section 1.62) and shall not have any vested interest in his
accrued benefit (excluding for this purpose that portion of
his accrued benefit that is attributable to his employee
after-tax contributions) at the time of such break in
service, and the period of consecutive one year breaks in
service equals or exceeds the greater of (a) five, or (b)
the aggregate number of years of service before such period,
all years of such service prior to such period shall be
disregarded. For the purpose of determining years of
service prior to such period, there shall be excluded any
years of service previously disregarded under this paragraph
(i).
(ii) No years of service following five
consecutive one year breaks in service shall be taken into
account in determining the vested percentage of his matching
contribution account or discretionary Employer contribution
account with respect to his service prior to such break.
5.2.3 In the event the Employer shall amend the
provisions of the plan for determining the vested percentages of
participants, or if the plan is deemed amended by an automatic
change to or from a top-heavy vesting schedule as provided in
Section 22.2.2, each participant with at least three years of
service with the Employer may elect, within a reasonable period
after the adoption of the amendment, to have his vested
percentage determined without regard to such amendment. For
participants who do not have at least one hour of service in any
plan year beginning after December 31, 1988, the preceding
sentence shall be applied by substituting "five years of service"
for "three years of service" where such language appears. The
period during which the election may be made shall commence with
the date the amendment is adopted or deemed to be made and shall
end on the latest of: (i) 60 days after the amendment <PAGE> is
adopted; (ii) 60 days after the amendment becomes effective; or
(iii) 60 days after the participant is issued written notice of
the amendment by the Employer or the Committee.
5.3 FORFEITURE OF NON-VESTED BENEFITS: A participant
whose matching contribution account or discretionary Employer
contribution account is subject to forfeiture shall forfeit the
portion of such account or accounts, as appropriate, which is not
vested for the plan year in which first occurs the following:
(i) he shall have five consecutive one year breaks in service,
(ii) he shall terminate service and die following such
termination and prior to having a break in service, or (iii) he
shall terminate service and receive or be deemed to receive a
distribution pursuant to Section 3.6 or 3.7 (regardless of
whether he had incurred a break in service). The portion of his
matching contribution account or discretionary Employer
contribution account so forfeited shall be used first to restore
any previously forfeited account in accordance with the
provisions of this Section, and then shall be treated as provided
in the Adoption Agreement. No forfeitures will occur solely as a
result of an employee's withdrawal of employee after-tax
contributions. Notwithstanding the foregoing provisions of this
Section 5.3, if the participant receives a distribution pursuant
to Section 3.6 or 3.7 and subsequently reenters service, the
participant's matching contribution account and discretionary
Employer contribution account shall be restored to the balance
that existed in such accounts as of the distribution date if the
participant repays to the trust the full amount of the
distribution attributable to the matching contribution account
and discretionary Employer contribution account before the
earlier of (i) five years after the participant first reenters
service or (ii) the last day of the plan year in which the
participant incurs his fifth consecutive one year break in
service following the distribution date. If a participant is
deemed to receive a distribution pursuant to Section 3.7, his
matching contribution account and discretionary Employer
contribution account shall be restored to the balance that
existed in such accounts as of the deemed distribution date if
the participant reenters the service of the Employer before the
last day of the plan year in which the participant incurs his
fifth consecutive one year break in service following the deemed
distribution date. In either case, such amount shall be restored
not later than the last adjustment date for the plan year in
which the participant reenters service, and shall be taken first
from available forfeitures of any matching contributions or
discretionary Employer contributions, as appropriate. If such
forfeitures are insufficient for this purpose, such amount shall
be contributed by the Employer to the Trustee on or before such
date.
SECTION 6. IN-SERVICE WITHDRAWALS AND LOANS:
6.1 WITHDRAWAL OF MATCHING CONTRIBUTIONS AND
DISCRETIONARY EMPLOYER CONTRIBUTIONS: If elected by the Employer
in the Adoption Agreement with respect to a participant's
matching contribution account and/or discretionary Employer
contribution account, a participant in the service of the
Employer who is eligible to make a withdrawal in accordance with
the Employer's election in the Adoption Agreement may at his
option make one or more withdrawals from his matching
contribution account and/or discretionary Employer contribution
account subject to the following provisions:
6.1.1 Except as provided in Section 6.1.2, no
withdrawal hereunder shall exceed the vested amount in the
matching contribution account or discretionary Employer
contribution account of the participant, as appropriate, as of
the adjustment date next preceding the date of the withdrawal.
6.1.2 For purposes of this Section 6.1, if daily
adjustment dates are designated by the Employer in the Adoption
Agreement, no withdrawal shall exceed the percentage specified by
the Employer in the Adoption Agreement of the vested amount in
the matching contribution account or discretionary Employer
contribution account of the participant, as appropriate,
determined on the date the withdrawal request is actually
processed.
6.1.3 The maximum number of withdrawals that may be
requested by a participant during a plan year shall not exceed
the number designated by the Employer in the Adoption Agreement.
<PAGE>
6.1.4 Application for a withdrawal shall be made by
the participant in writing on a form approved by the Committee
and filed with the Committee.
6.1.5 If any portion of a participant's matching
contribution account or discretionary Employer contribution
account, as appropriate, is distributed to him at a time when he
has a nonforfeitable right to less than 100% of the applicable
account(s), at any subsequent relevant time the participant's
nonforfeitable portion of his matching contribution account or
discretionary Employer contribution account shall not be less
than an amount ("X") determined by the following formula:
X = P (AB + D) - D. For purposes of applying the formula: P is
the nonforfeitable percentage at the relevant time; AB is the
account balance in the participant's matching contribution
account or discretionary Employer contribution account at the
relevant time; D is the amount of the distribution, and the
relevant time is the time under the plan at which the
nonforfeitable percentage of such account balance cannot
increase.
6.1.6 The Committee from time to time may adopt
additional uniform and nondiscriminatory policies or rules to
assist in the administration of the withdrawal requests for
matching contributions and discretionary Employer contributions,
including, but not limited to, permitting such withdrawals only
on account of financial hardship (as defined in Section 6.3).
6.2 WITHDRAWAL OF EMPLOYEE AFTER-TAX CONTRIBUTIONS:
If elected by the Employer in the Adoption Agreement, a
participant may at his option make a withdrawal from his employee
after-tax contribution account during a plan year subject to the
following provisions:
6.2.1 No withdrawal hereunder shall exceed the
amount in the employee after-tax contribution account of the
participant as of the adjustment date next preceding the date of
the withdrawal.
6.2.2 For purposes of this Section 6.2, if daily
adjustment dates are designated by the Employer in the Adoption
Agreement, no withdrawal shall exceed the percentage specified by
the Employer in the Adoption Agreement of the amount in the
employee after-tax contribution account of the participant
determined on the date the withdrawal request is actually
processed.
6.2.3 A participant may not withdraw any portion of
an employee after-tax contribution made during a plan year if a
matching contribution is allocable to the participant's account
with respect to such employee after-tax contribution for such
plan year.
6.2.4 The maximum number of withdrawals that may be
requested by a participant during a plan year shall not exceed
the number designated by the Employer in the Adoption Agreement.
6.2.5 Application for a withdrawal shall be made by
the participant in writing on a form approved by the Committee
and filed with the Committee.
6.2.6 The Committee from time to time may adopt
additional uniform and nondiscriminatory policies or rules to
assist in the administration of the withdrawal requests for
employee after-tax contributions.
<PAGE>
6.3 WITHDRAWAL OF ROLLOVER CONTRIBUTIONS: If elected
by the Employer in the Adoption Agreement, a participant may at
his option make a withdrawal from his rollover account during a
plan year subject to the following provisions:
6.3.1 No withdrawal hereunder shall exceed the
amount in the rollover account of the participant as of the
adjustment date next preceding the date of the withdrawal.
6.3.2 For purposes of this Section 6.3, if daily
adjustment dates are designated by the Employer in the Adoption
Agreement, no withdrawal shall exceed the percentage specified by
the Employer in the Adoption Agreement of the amount in the
rollover account of the participant determined on the date the
withdrawal request is actually processed.
6.3.3 The maximum number of withdrawals that may be
requested by a participant during a plan year shall not exceed
the number designated by the Employer in the Adoption Agreement.
6.3.4 Application for a withdrawal shall be made by
the participant in writing on a form approved by the Committee
and filed with the Committee.
6.3.5 The Committee from time to time may adopt
additional uniform and nondiscriminatory policies or rules to
assist in the administration of the withdrawal requests for
rollover contributions.
6.4 DISTRIBUTIONS ON OR AFTER ATTAINMENT OF AGE 59
1/2: If elected by the Employer in the Adoption Agreement, a
participant who has attained age 59 1/2 may at his option make a
withdrawal of all or any portion of his vested interest in all of
his amounts, subject to the following provisions:
6.4.1 No withdrawal shall exceed the vested amount
in the accounts of the participant as of the adjustment date next
preceding the date of the withdrawal.
6.4.2 For purposes of this Section 6.4, if daily
adjustment dates are designated by the Employer in the Adoption
Agreement, no withdrawal shall exceed the percentage specified by
the Employer in the Adoption Agreement of the vested amount in
the account if the participant determined on the date the
withdrawal request is actually processed.
6.4.3 The maximum number of withdrawals that may be
requested by a participant shall not exceed the number designated
by the Employer in the Adoption Agreement.
6.4.4 Application for a withdrawal may be made by
the participant in writing on a form approved by the Committee
and filed with the Committee.
6.4.5 The Committee from time to time may adopt
additional uniform and nondiscriminatory policies or rules to
assist in the administration of the withdrawal requests pursuant
to this Section.
6.5 HARDSHIP DISTRIBUTIONS: If elected by the
Employer in the Adoption Agreement, a participant may file a
written request with the Committee for a distribution on account
of financial hardship. A distribution will be on account of
financial hardship only if the distribution is on account of an
immediate and heavy financial need of the participant, is
necessary to satisfy such financial need, and such need cannot be
satisfied through other financial resources reasonably available
to the participant. The request must specify the nature of the
hardship, the total amount requested, and the total amount of the
actual expense incurred, or to be <PAGE> incurred, on account of the
hardship. Subject to the provisions of this Section 6.5, the
Committee in its discretion shall determine whether a hardship
constitutes an immediate and heavy financial need, and its
decision to grant or deny a hardship distribution shall be final.
If the Committee determines that a hardship exists, the Committee
shall direct the Trustee to make a distribution to the
participant in cash of the amount approved by the Committee. The
amount available for such distribution shall be determined as of
the adjustment date coincident with or next preceding receipt by
the Trustee of such direction from the Committee. The portion of
a participant's elective deferral account available for a
hardship distribution shall not exceed the amount in the
participant's elective deferral account (reduced by any previous
hardship distribution not reflected as of such adjustment date),
excluding any earnings credited to his elective deferral account
as of any plan year ending after July 1, 1989. Amounts allocated
to a participant's qualified non-elective contribution account or
qualified matching contribution account shall not be available
for distribution under this Section 6.5.
6.5.1 Notwithstanding the above, for purposes of
this Section 6.5, if daily adjustment dates are designated by the
Employer in the Adoption Agreement, the value of a participant's
account or accounts subject to a hardship withdrawal shall be
determined on the date the withdrawal request is processed.
6.5.2 Special rules for hardship withdrawals:
(i) The following are the only financial
needs considered immediate and heavy: expenses incurred or
necessary for medical care (as defined in Section 213(d) of
the Code) of the participant, the participant's spouse,
children, or dependents (as defined in Section 152 of the
Code); costs directly related to the purchase (excluding
mortgage payments) of a principal residence for the
participant; payment of tuition and related educational fees
for the next 12 months of post-secondary education for the
participant, the participant's spouse, children, or
dependents; or the need to prevent the eviction of the
participant from, or a foreclosure on the mortgage of, the
participant's principal residence.
(ii) A distribution will be considered as
necessary to satisfy an immediate and heavy financial need
of the participant only if:
(a) The participant has obtained all
distributions, other than hardship distributions, and
all nontaxable loans under all plans maintained by the
Employer;
(b) All plans maintained by the Employer
provide that, if any portion of the hardship
distribution is attributable to a participant's
elective deferrals, the participant's elective
deferrals and employee after-tax contributions will be
suspended for 12 months after the receipt of the
hardship distribution;
(c) The distribution is not in excess of the
amount of an immediate and heavy financial need
(including amounts necessary to pay any federal, state,
or local income taxes or penalties reasonably
anticipated to result from the distribution); and
<PAGE>
(d) All plans maintained by the Employer
provide that the participant may not make elective
deferrals for the participant's taxable year
immediately following the taxable year of the hardship
distribution in excess of the applicable limit under
Section 402(g) of the Code for such taxable year less
the amount of such participant's elective deferrals for
the taxable year of the hardship distribution.
6.5.3 If a participant's termination of service
occurs after a request for a hardship distribution is approved in
accordance with the provisions of this Section 6.5, but prior to
the actual payment of such distribution, such approval shall be
void, and the accrued benefit of such participant shall be
payable hereunder as if such approval had not been made.
6.5.4 The Committee from time to time may adopt
additional uniform and nondiscriminatory policies or rules to
assist in the administration of hardship distribution requests,
including, but not limited to, establishing limits on the maximum
number of hardship distributions that may requested by plan
participants during a plan year.
6.6 Loans: If elected by the Employer in the Adoption
Agreement, upon the written application of any participant or
beneficiary who is a party-in-interest as defined in Section
3(14) of ERISA (other than an owner-employee or
shareholder-employee) (the "borrower"), the Committee in
accordance with its uniform, nondiscriminatory policy may direct
the Trustee to permit the borrower to borrow from such of his
separate accounts designated by the Employer in the Adoption
Agreement as available sources for loan proceeds, subject to the
following provisions:
6.6.1 Loans shall be available to all borrowers on
a reasonably equivalent basis. Loans shall not be available to
highly compensated participants in an amount greater than to
non-highly compensated participants.
6.6.2 The minimum principal amount of any loan made
to a participant shall not be less than the amount designated by
the Employer in the Adoption Agreement. The maximum principal
amount of any loan made to the borrower, when added to the then
unpaid balance on all loans previously made to the borrower,
shall not exceed the lesser of:
(i) $50,000, reduced by the excess (if any)
of the highest outstanding balance of loans during the
one-year period ending on the day before the loan is
made, over the outstanding balance of loans from the
plan on the day the loan is made; or
(ii) 50% of the vested accrued benefit of the
borrower, other than amounts credited to his deductible
contribution account.
For purposes of this Section 6.6, the borrower's vested
accrued benefit shall be determined as of the adjustment
date next preceding the date the loan is processed.
Notwithstanding the foregoing sentence, if daily adjustment
dates are designated by the Employer in the Adoption
Agreement, the borrower's vested accrued benefit shall be
determined as of the date the loan paperwork is generated.
If a borrower shall have a vested accrued benefit in more
than one tax-qualified retirement plan of the Employer or an
affiliated employer, the limitation in (i) or (ii) shall be
applied both with respect to this plan only and with respect
to all such plans in the <PAGE> aggregate. In applying the
limitations with respect to this plan, only loans to the
borrower under this plan and his vested accrued benefit
under this plan shall be taken into account. In applying
the limitations with respect to all such plans in the
aggregate, all loans to the borrower under all such plans
and the sum of his vested accrued benefits under all such
plans shall be taken into account.
6.6.3 All loans made under this Section 6.6 shall
be considered earmarked investments of the borrower's account,
and any repayment of principal and interest on such loan shall be
credited to the borrower's account.
6.6.4 The principal amount of a loan shall be
derived from the borrower's separate accounts designated in the
Adoption Agreement as available sources for such loan proceeds in
the following order of priority:
(i) Qualified non-elective contribution
account;
(ii) Qualified matching contribution account;
(iii) Elective deferral account;
(iv) Mandatory contribution account;
(v) Discretionary Employer contribution
account;
(vi) Matching contribution account;
(vii) Direct transfer account;
(viii) Rollover account; and
(ix) Employee after-tax contribution account.
Any repayment of principal and interest on a loan shall be
credited to the borrower's separate accounts in the reverse
order from which the proceeds were first obtained. See
Section 8.3 for special provisions that apply in the event
the participant's separate account from which an amount is
borrowed is also a directed separate account (as defined in
Section 8.1.1).
6.6.5 Notwithstanding the provisions of Section
6.6.4 above, if daily adjustment dates are elected by the
Employer in the Adoption Agreement, the principal amount of a
loan shall be derived on a pro rata basis from the borrower's
separate accounts designated in the Adoption Agreement as
available sources for such loan proceeds. Any repayment of
principal and interest on a loan shall be credited to such
separate accounts on a pro rata basis. See Section 8.3 for
special provisions that apply in the event the participant's
separate account from which an amount is borrowed is also a
directed separate account (as defined in Section 8.1.1).
6.6.6 All loans shall by their terms require that
repayment be amortized in level payments of principal and
interest, not less frequently than quarterly, over a period not
exceeding five years from the date the loan is made.
Notwithstanding the five-year repayment obligation of the
preceding sentence, in the case of loan made to a borrower for
the purpose of acquiring any dwelling unit which is used, or will
be used, within a reasonable time (determined at the time the
loan is made), as the primary residence of the borrower, the
repayment period <PAGE> may exceed five years, but shall not extend for
more than 15 years from the date the loan is made. The Employer
shall establish a procedure for withholding at appropriate
intervals from a participant's regular payroll checks amounts
necessary to satisfy the borrowing participant's repayment
obligations under the note. All amounts so withheld shall be
transferred immediately to the Trustee.
6.6.7 Each borrower making an application for a
loan shall receive from the Trustee a statement of the charges
involved in the loan transaction. This statement shall include
the amount financed and the annual interest rate.
6.6.8 Each loan shall be secured by the pledge of
50% of the borrower's vested accrued benefit, other than amounts
credited to his deductible contribution account (determined at
the time the loan is processed), and by the pledge of such
further security as the Committee, in its discretion, deems
necessary or desirable to assure repayment of the borrowed amount
and all interest payable thereon in accordance with the terms of
the loan.
6.6.9 Each loan shall be evidenced by a negotiable
promissory note (the "note") in form acceptable to the Trustee,
payable to the order of the Trustee, bearing interest at a rate
commensurate with the prevailing rate charged by commercial
lenders in the geographic region of the Employer, as determined
by the Trustee, and, except as provided in Section 6.6.6, payable
in full not more than five years from the date thereof. The
borrower shall execute any additional documents as shall be
deemed necessary or advisable by the Committee to consummate the
loan and to provide reasonable safeguards.
6.6.10 The occurrence of any one or more of the
following events of default shall constitute a default by the
borrower under the terms of the loan, whereupon the unpaid
balance of the note, together with accrued interest, will
immediately become due and payable without presentment, demand,
protest, or notice of any kind. Events of default include: (i)
failure to make any payment when due, whether by acceleration or
otherwise; (ii) termination of service of a participant who is
not a party-in-interest as defined in Section 3(14) of ERISA;
(iii) bankruptcy or insolvency of the borrower; and (iv) death of
the borrower. Prior to foreclosure and attachment, the unpaid
principal and interest of the loan shall bear interest at a rate
two percentage points greater than the rate set forth in the
note. If the unpaid principal and interest exceed the amount of
the defaulting borrower's account that is pledged as security,
all or any part of any additional security pledged to secure the
loan, in the discretion of the Committee, may be sold at private
or public sale. The proceeds of such sale shall be applied first
to pay the expenses of conducting the sale, including reasonable
attorneys' fees, then to accrued interest, and then to principal
of the loan. The borrower shall remain liable for any
deficiency. Any surplus shall be paid to the borrower. No
distribution under the plan to or on behalf of the borrower shall
be made unless and until all unpaid loans, include interest
thereon, are satisfied.
6.6.11 If an event of default shall occur with
respect to a borrower, the entire unpaid principal amount of the
note, plus accrued and unpaid interest shall immediately become
due and payable; provided, that foreclosure on the note and
attachment of the borrower's vested accrued benefit shall not
occur until a distributable event occurs under the plan.
6.6.12 If any portion of the accrued benefit of a
participant is applied to repay a loan under this Section 6.6 at
a time when such participant's accrued benefit is subject to
forfeiture, the participant's vested accrued benefit at any
subsequent time until he has a nonforfeitable right to his entire
accrued benefit shall not be less than an amount ("X") determined
by the formula: X + P(AB + D) - D. For purposes of applying the
formula: P is the vested percentage at the <PAGE> relevant time; AB is
the accrued benefit at the relevant time; and D is the amount of
such participant's vested accrued benefit applied to repay the
loan.
6.6.13 During the period a participant's loan
request is pending, the participant shall not be permitted to
request any distributions or withdrawals (including hardship
withdrawals) from his account.
6.6.14 If a participant's termination of service
occurs after a request for a loan is approved in accordance with
the provisions of this Section 6.6, but prior to the actual
payment of such loan proceeds, such approval shall be void, and
the vested accrued benefit of such participant shall be payable
hereunder as if such approval had not been made.
6.6.15 The Committee from time to time may adopt
additional uniform and nondiscriminatory policies or rules to
assist in the administration of participant loan requests,
including, but not limited to, establishing limits on the maximum
number of loans that may be requested during a plan year or
outstanding at one time.
SECTION 7. ADJUSTMENT OF PARTICIPANT ACCOUNTS:
7.1 ESTABLISHMENT OF ACCOUNTS: The Committee shall
cause an account to be maintained under the plan with respect to
each participant, which account shall include to the extent
applicable the separate accounts described in Section_1.1. The
fair market value of each separate account with respect to the
participant shall be determined and adjusted as of each
adjustment date under one of the adjustment methods designated by
the Employer in the Adoption Agreement.
7.2 GENERAL: The Committee shall have and may
exercise all powers necessary or advisable in order to implement
the provisions of this Section 7 and to ensure that the accounts
maintained under the plan are fairly and accurately adjusted as
of each adjustment date.
SECTION 8. PARTICIPANT DIRECTED INVESTMENTS:
8.1 PARTICIPANT DIRECTED INVESTMENTS: Notwithstanding
any other provisions of the plan, each participant having an
amount to his credit under the plan may, acting through the
Committee, direct the Trustee as to the investment or
reinvestment of his account to the extent permitted by the
Employer in the Adoption Agreement, subject to the following
provisions of this Section 8 and Section 9:
8.1.1 Directed investment funds: The Committee
shall determine from time to time the investment options
("directed investment funds") available to participants. If
elected by the Employer in the Adoption Agreement, the directed
investment funds may include an Employer stock fund (as defined
in Section 9.1). Each participant shall be entitled to direct
the investment and reinvestment of such of his separate accounts
as shall be permitted in the Adoption Agreement ("directed
separate accounts") among the directed investment funds. Each
directed separate account of a participant shall be divided into
sub-accounts reflecting the portion of such directed separate
account invested in each directed investment fund ("fund
accounts").
8.1.2 Adjustment of fund accounts: Except as
otherwise specifically provided herein, each fund account shall
be adjusted as of each adjustment date in the manner provided in
Section 7, as if it were the entire directed separate account of
the participant to which it is subsidiary, with respect to
distributions, withdrawals, loans, contributions and forfeitures
allocated to it and with respect to its share of the net income
or net loss of the directed investment fund of which it is a
part.
<PAGE>
8.1.3 Direction of future contributions: In
accordance with procedures adopted by the Committee,
contributions allocated to a participant's directed separate
accounts shall be apportioned among the directed investment funds
in the manner designated by the participant. Any such
designation for future contributions shall be made in multiples
of the percentage chosen by the Employer in the Adoption
Agreement. Any designation among directed investment funds shall
remain in effect unless and until the participant shall file a
timely application providing for a different designation. A
participant may change his investment direction at such intervals
during the plan year as designated by the Employer in the
Adoption Agreement. If for any reason a participant shall not
have made an effective designation with respect to any portion of
a contribution allocated to a directed separate account, such
contribution for which no designation was made shall be invested
by the Trustee at the direction of the Committee.
8.1.4 Reallocations among directed investment
funds: In accordance with procedures adopted by the Committee, a
participant shall be entitled to reallocate the amount credited
to each of his directed separate accounts among the available
directed investment funds in multiples of the percentage
designated by the Employer in the Adoption Agreement. The
Committee specifically reserves the right to restrict transfers
out of a directed investment fund to the extent that such
transfers will endanger the value and liquidity of the Fund.
Such reallocations may be made at such intervals during the plan
year as designated by the Employer in the Adoption Agreement.
8.1.5 Notification of Trustee: The Committee shall
notify the Trustee of all directions made in accordance with
Section 8.1.3 and 8.1.4 as soon as practicable following their
receipt.
8.2 RIGHTS IN DIRECTED INVESTMENT FUNDS:
Notwithstanding the fact that all or a portion of a participant's
account may be invested in directed investment funds selected by
the Committee and may be expressed in dollars, shares, or units
in a particular directed investment fund, such references shall
mean the aggregate of the dollar amount and the number of shares
of Employer stock, if any, which are credited to the
participant's account at any point in time. Nothing contained in
this Section 8 shall be deemed to give any participant any
interest in any specific property in any directed investment fund
or any interest in the plan, other than (i) the right to receive
payments or distributions in accordance with the plan, (ii) the
right to instruct the Trustee how to vote Employer stock as
permitted under Section 9.4, (iii) the right to instruct the
Trustee with respect to the sale, exchange, or transfer of
Employer stock as permitted under Section 9.5, or (iv) to
exercise any other right specifically granted to the participant
under the plan.
8.3 EFFECT OF PARTICIPANT LOANS: In the event the
participant's separate account from which an amount is borrowed
pursuant to Section 6.6 is also a directed separate account, the
amount borrowed from such account shall be withdrawn from the
fund accounts with respect to such directed separate account on a
pro rata basis. Any repayment of principal and interest on such
borrowed amount shall be reinvested in the participant's fund
accounts in accordance with the participant's investment
direction in effect on the adjustment date as of which such
repayment is credited to the participant's directed separate
account.
8.4 DISTRIBUTIONS FROM DIRECTED SEPARATE ACCOUNTS: In
the event the participant's separate accounts from which an
amount is to be distributed or withdrawn are also directed
separate accounts, the amount distributed from such accounts
shall be withdrawn from the fund accounts with respect to each
such directed separate account on a pro rata basis.
<PAGE>
8.5 ACCOUNTS NOT SUBJECT TO PARTICIPANT DIRECTION: In
the event a participant is not permitted to direct the investment
and reinvestment of one or more of his separate accounts, such
separate accounts shall remain subject to the investment
discretion of the Trustee pursuant to Section 20 of the plan.
8.6 AUTHORITY OF TRUSTEE AND COMMITTEE: The Trustee
shall have and may exercise all powers necessary or advisable in
order to implement the provisions of this Section 8. To the
extent approved by the Trustee, the Committee may promulgate
rules or by-laws supplementing and implementing the provisions of
this Section 8, including such rules or by-laws as may be
necessary from time to time in order to provide a participant or
beneficiary, within the meaning of Section 404(c) of ERISA and
the regulations thereunder, an opportunity (i) to exercise
control over assets in his account, and (ii) to choose, from a
broad range of investment alternatives, the manner in which some
or all of the assets in his account are invested. If it is not
practicable for the Trustee to effect the transfer of funds on
any date provided in this Section 8, the Trustee shall effect
such transfer on the first practicable date thereafter.
SECTION 9. INVESTMENTS IN EMPLOYER STOCK:
9.1 EMPLOYER STOCK FUND: If elected by the Employer
in the Adoption Agreement, at the direction of the Committee, the
Trustee shall establish a special investment fund for the purpose
of holding shares of Employer stock which shall be designated as
the "Employer stock fund." The Employer may elect under the
Adoption Agreement to designate the Employer stock fund as a
directed investment fund under Section 8. A portion of the
Employer stock fund may be invested in short-term United States
Government obligations, other short-term obligations guaranteed
by the United States Government, commercial paper, or money
market funds for qualified employee benefit trusts while awaiting
investment in Employer stock, or to provide sufficient liquidity
to satisfy participants' requests for withdrawals, loans, and
distributions.
9.2 COMPLIANCE WITH THE SECURITIES ACT OF 1933 AND THE
SECURITIES EXCHANGE ACT OF 1934: The Committee shall adopt and
implement such procedures as shall be necessary (i) to comply
with any applicable registration requirements for the
participants' interests in the plan under the Securities Act of
1933, and (ii) to qualify any intra-plan transactions by
officers, directors, and ten percent owners of any Employer stock
who are participants under the plan from short-swing profit
liability under Section 16 of the Securities Exchange Act of
1934.
9.3 RIGHT OF FIRST REFUSAL: If elected by the
Employer in the Adoption Agreement, any Employer stock
distributed under the plan shall be subject to the terms of this
Section 9.
9.3.1 Terms and conditions of offer to the
Employer: If any participant during his lifetime shall desire to
sell, transfer (by gift or otherwise), encumber or otherwise
dispose of any Employer stock distributed to him under the plan,
the participant shall first offer in writing to sell all of such
stock to the Employer. If the Employer does not purchase all of
the stock within 14 days after the receipt of such offer, the
stock not so purchased may be sold, transferred, encumbered or
otherwise disposed of free from the restrictions of this Section
9.3.1 for 30 days following the close of the 14-day period.
After the close of such 30-day period, the restrictions of this
Section 9.3.1 again shall apply to any of the Employer stock not
so sold, transferred, encumbered, or otherwise disposed of. If
any Employer stock is encumbered or otherwise disposed of for a
temporary period, and the recipient of such stock under the plan
receives all or a portion of such stock back at or after the
close of such temporary period, such stock again shall be subject
to the restrictions of this Section 9.3.1. The purchase price of
each share of Employer stock purchased hereunder shall be the
fair market value thereof as determined by the Employer pursuant
to Section 9.3.2, but in no event less than the amount of any
good faith (as determined by the Employer) and then outstanding
offer that has been received by the participant desiring to
dispose of the stock. The purchase price of any Employer stock
purchased in accordance with this Section 9.3.1 shall be paid in
full in cash at the time of the <PAGE> closing. The closing shall take
place at such time and place agreed upon between the Employer and
the participant, but not later than ten days after the Employer
notifies such recipient of the exercise of the right of first
refusal. At the closing, the participant shall deliver
certificates representing the offered Employer stock duly
endorsed in blank for transfer, or with stock powers duly
executed in blank with all required transfer tax stamps attached
or provided for, and the Employer shall deliver the purchase
price.
9.3.2 Valuation of Employer stock: Subject to the
provisions of Section 9.3.1, all purchases of Employer stock by
the Employer shall be made at a price not in excess of fair
market value. Any sale of Employer stock to a disqualified
person (as defined in Section 4975(e)(2) of the Code) or a
party-in-interest (as defined in Section 3(14) of ERISA) shall
conform to the requirements of Section 408(e) of ERISA. For all
purposes of the plan, the fair market value of Employer stock
shall be determined by the Employer in good faith. If there is a
generally recognized market for Employer stock, the fair market
value shall be a price not less favorable to the plan than the
offering price for the Employer stock established by the current
bid and asked prices quoted by persons independent of the
Employer and any party-in-interest or disqualified person. If
there is no generally recognized market for Employer stock, the
determination of fair market value by the Employer shall be based
on a valuation by an independent appraiser appointed by the
Employer. In the case of a transaction between the plan and a
disqualified person or a party-in-interest, fair market value
shall be determined as of the date of the transaction. For all
other purposes, fair market value shall be determined as of the
adjustment date coincident with or next preceding the date of the
transaction.
9.3.3 Legend: If recommended by legal counsel for
the Employer, certificates representing ownership of Employer
stock distributed from the plan shall bear an appropriate legend
approved by such counsel to ensure that Employer stock is issued
in compliance with all applicable federal and state securities
laws.
9.4 VOTING OF EMPLOYER STOCK: The following
provisions shall apply in the event the Employer elects in the
Adoption Agreement to pass-through voting of Employer stock
allocated to a participant's separate accounts to such
participants or their beneficiaries under the plan.
9.4.1 Readily tradeable Employer stock: If the
Employer stock allocated to a participant's separate accounts is
readily tradable on an established market, each participant or
beneficiary shall be entitled to direct the Trustee as to the
manner in which shares of Employer stock allocated to the
participant's separate accounts shall be voted with respect to
any corporate matter that involves voting the Employer stock
allocated to the participant's separate accounts as of any record
date. For purposes of this Section 9, Employer stock is "readily
tradeable on an established market" if it is listed on a national
securities exchange registered under Section 6 of the Securities
Exchange Act of 1934 or quoted on a system sponsored by a
national securities association registered under Section 15A(b)
of the Securities Exchange Act and readily tradeable on either
such market.
9.4.2 Not readily tradeable Employer stock: If the
Employer stock allocated to a participant's separate accounts is
not readily tradable on an established market, each participant
or beneficiary shall be entitled to direct the Trustee as to the
manner in which shares of Employer stock allocated to the
participant's separate accounts shall be voted with respect to
such matters designated by the Employer in the Adoption Agreement
that involve voting the Employer stock allocated to the
participant's separate accounts as of any record date.
<PAGE>
9.4.3 Trustee's responsibilities: Except as
otherwise provided in Sections 9.4.1 and 9.4.2, the Trustee shall
vote the Employer stock held by the trust on the record date as
directed by the Committee.
9.4.4 Voting instructions from participants: If
participants and beneficiaries are entitled to direct the Trustee
in voting Employer stock pursuant to Section 9.4.1 or 9.4.2, the
Trustee shall vote such Employer stock in accordance with the
timely instructions of the respective participants and
beneficiaries. The Trustee shall be responsible for soliciting
and tabulating such votes. Prior to the voting of Employer
stock, the Committee shall distribute to each participant and
beneficiary the same information concerning the vote as is
furnished by the Employer to its shareholders. If the Employer
does not furnish any such information within the appropriate time
period under applicable state corporate law prior to the
shareholders' meeting, the Committee shall as soon as practicable
provide each participant and beneficiary with an explanation of
those matters that to the best knowledge of the Committee are to
be presented at such meeting for action by shareholders and are
subject to direction by the participant or beneficiary and an
appropriate form on which the participant or beneficiary may
direct voting on such matters. If the Trustee does not receive
participant or beneficiary instructions with respect to any
Employer stock or such instructions are not timely received, such
stock shall be voted by the Trustee as directed by the Committee.
Instructions received from participants and beneficiaries by the
Trustee shall be held in the strictest confidence and shall not
be divulged or released to any person, including the Committee,
or the officers, directors or employees of the Employer.
9.5 TENDERING: The following provisions of this
Section 9.5 shall apply in the event the Employer elects in the
Adoption Agreement to pass-through voting of Employer stock to
participants and beneficiaries, and a tender offer or exchange
offer, including but not limited to a tender offer or exchange
offer within the meaning of the Securities Exchange Act of 1934,
as amended, for the Employer stock held by the trust (a "tender
offer") is commenced.
9.5.1 Independent record keeper; Trustee's
responsibilities: In the event a tender offer for the Employer
stock held by the trust is commenced, the functions under the
plan applicable to participation of such Employer stock in the
tender offer shall be undertaken by the independent record keeper
appointed by the Committee at the time the tender offer is
commenced, and the Committee shall not undertake any record
keeping function under the plan that would serve to violate the
confidentiality of any directions given by the participants or
beneficiaries in connection with the tender offer. The
independent record keeper shall use its best efforts to timely
distribute or cause to be distributed to each participant and
beneficiary such information as is being distributed to other
shareholders of the Employer in connection with the tender offer.
The Trustee shall have no discretion or authority to sell,
exchange or transfer any of the Employer stock held in the
participant's separate accounts pursuant to such tender offer
except to the extent, and only to the extent, that the Trustee is
timely directed to do so in writing as follows:
(i) Each participant and beneficiary shall
be entitled to direct the independent record keeper with
respect to the sale, exchange, or transfer of the Employer
stock allocated to the participant's separate accounts. The
independent record keeper shall then instruct the Trustee as
to the number of shares to be tendered, in accordance with
the above directions. The Committee shall instruct the
Trustee to follow the directions of the independent record
keeper pursuant to the terms of the tender offer.
Instructions received from participants and beneficiaries by
the independent record keeper shall be held in the strictest
confidence and shall not be divulged or released to any
person <PAGE> including the Committee, or the officers, directors,
or employees of the Employer.
(ii) The independent record keeper shall
instruct the Committee and the Trustee as to the number of
shares for which it did not receive any instructions or
instructions were not timely received. The Trustee shall
tender or not tender such shares of Employer stock as
directed by the Committee.
9.5.2 Records: Following any tender offer that has
resulted in the sale or exchange or any shares of Employer stock
held by the trust, the independent record keeper to which
responsibility has been transferred shall continue to maintain on
a confidential basis a record of the separate account of each
participant or beneficiary to which shares of Employer stock were
allocated at any time during such offer, until complete
distribution of such Employer stock. The record keeper shall
keep confidential any instructions that it may receive from
participants or beneficiaries relating to the tender offer.
SECTION 10. ADMINISTRATION BY COMMITTEE:
10.1 MEMBERSHIP OF COMMITTEE: The Committee shall
consist of such individuals who shall be appointed by the Board
to serve at the pleasure of the Board from time to time. Any
member of the Committee may resign, and his successor, if any,
shall be appointed by the Board. The composition of the
Committee may be changed by the Board at any time without
amending the Adoption Agreement. The Committee shall be
responsible for the general administration and interpretation of
the plan and for carrying out its provisions, except to the
extent all or any of such obligations are specifically imposed on
the Trustee or the Board. The Committee shall furnish to the
Trustee such information as the Trustee shall require for the
proper administration of the trust. The plan administrator shall
be the person designated by the Employer in the Adoption
Agreement. The Board may designate another plan administrator at
any time without amending the Adoption Agreement. The plan
administrator shall be agent for service of legal process on the
plan.
10.2 COMMITTEE OFFICERS; SUBCOMMITTEE: The members of
the Committee shall elect a chairman and may elect an acting
chairman. They shall also elect a secretary and may elect an
acting secretary, either of whom may be but need not be a member
of the Committee. The Committee may appoint from its membership
such subcommittees with such powers as the Committee shall
determine, and may authorize one or more of its members or any
agent to execute or deliver any instruments or to make any
payment in behalf of the Committee.
10.3 COMMITTEE MEETINGS: The Committee shall hold such
meetings upon such notice, at such places and at such intervals
as it may from time to time determine. Notice of meetings shall
not be required if notice is waived in writing by all the members
of the Committee at the time in office, or if all such members
are present at the meeting.
10.4 TRANSACTION OF BUSINESS: A majority of the
members of the Committee at the time in office shall constitute a
quorum for the transaction of business. All resolutions or other
actions taken by the Committee at any meeting shall be by vote of
a majority of those present at any such meeting and entitled to
vote. Resolutions may be adopted or other action taken without a
meeting upon written consent thereto signed by all of the members
of the Committee.
10.5 COMMITTEE RECORDS: The Committee shall maintain
full and complete records of its deliberations and decisions.
The minutes of its proceedings shall be conclusive proof of the
facts of the operation of the plan. The records of the Committee
shall contain all relevant data pertaining to individual
participants and their rights under the plan and in the trust
fund.
<PAGE>
10.6 ESTABLISHMENT OF RULES: Subject to the
limitations of the plan and of ERISA, the Committee may from time
to time establish rules or by-laws for the administration of the
plan and the transaction of its business.
10.7 CONFLICTS OF INTEREST: No individual member of
the Committee shall have any right to vote or decide upon any
matter relating solely to himself or to any of his rights or
benefits under the plan (except that such member may sign
unanimous written consent to resolutions adopted or other action
taken without a meeting), except to the extent such right shall
be generally provided to participants pursuant to the terms of
the plan.
10.8 CORRECTION OF ERRORS: The Committee may correct
errors and, so far as practicable, may adjust any benefit or
credit or payment accordingly. The Committee may in its
discretion waive any notice requirements in the plan; provided,
that a waiver of a requirement to notify the Trustee shall be
made only with the consent of the Trustee. A waiver of notice in
one or more cases shall not be deemed to constitute a waiver of
notice in any other case. With respect to any power or authority
which the Committee has discretion to exercise under the plan,
such discretion shall be exercised in a nondiscriminatory manner.
10.9 AUTHORITY TO INTERPRET PLAN: Subject to the
claims procedure set forth in Section_15, the Committee and the
plan administrator shall have the duty, authority, and discretion
to interpret and construe the provisions of the plan and to
decide any dispute which may arise regarding the rights of
participants hereunder, including the authority to construe
uncertain provisions of the plan and to make determinations as to
the eligibility of employees for plan participation and of
employees and beneficiaries for benefits under the plan.
Determinations by the Committee or plan administrator shall apply
uniformly to all persons similarly situated and shall be binding
and conclusive upon all interested persons. Such determinations
shall only be set aside if the Committee or plan administrator is
found to have acted arbitrarily and capriciously in interpreting
and construing the terms of the plan.
10.10 THIRD PARTY ADVISORS: The Committee may
engage an attorney, accountant or any other technical advisor on
matters regarding the operation of the plan and to perform such
other duties as shall be required in connection therewith, and
may employ such clerical and related personnel as the Committee
shall deem requisite or desirable in carrying out the provisions
of the plan. The Committee shall from time to time, but no less
frequently than annually, review the financial condition of the
plan and determine the financial and liquidity needs of the plan
as required by ERISA. The Committee shall communicate such needs
to the Employer and to the Trustee so that the funding policy and
investment policy may be appropriately coordinated to meet such
needs.
10.11 COMPENSATION OF MEMBERS: No fee or
compensation shall be paid to any member of the Committee for his
service as such.
10.12 COMMITTEE EXPENSES: The Committee shall be
entitled to reimbursement out of the trust fund for its
reasonable expenses properly and actually incurred in the
performance of its duties in the administration of the plan;
provided, that the Employer may, in the discretion of the Board,
pay such expenses.
10.13 REQUIREMENT OF WRITING: All requests,
directions, requisitions, and instructions of the Committee to
the Trustee shall be in writing and signed by such person or
persons as shall be designated in writing by the Committee.
10.14 INDEMNIFICATION OF COMMITTEE: To the maximum
extent permitted by ERISA, no member of the Committee shall be
personally liable by reason of any contract or other instrument
executed by him or on his behalf as a member of the Committee nor
for any mistake of judgment made in good faith, and the <PAGE> Employer
shall indemnify and hold harmless, directly from its own assets
(including the proceeds of any insurance policy the premiums for
which are paid from the Employer's own assets), each member of
the Committee and each other officer, employee, or director of
the Employer to whom any duty or power relating to the
administration or interpretation of the plan may be delegated or
allocated, against any unreimbursed or uninsured cost or expense
(including any sum paid in settlement of a claim with the prior
written approval of the Board) arising out of any act or omission
to act in connection with the plan, unless arising out of such
person's own fraud, bad faith, willful misconduct, or gross
negligence.
SECTION 11. MANAGEMENT OF FUNDS AND AMENDMENT OR
TERMINATION OF PLAN:
11.1 FIDUCIARY DUTIES: All assets of the plan shall be
held in a trust forming part of the plan, which shall be
administered as a trust fund to provide for the payment to the
participants or their successors in interest, out of the income
and principal of the trust, of benefits as provided in the plan.
All fiduciaries (as defined in ERISA) with respect to the plan
shall discharge their duties as such solely in the interest of
the participants and their successors in interest, and (i) for
the exclusive purposes of providing benefits to participants and
their successors in interest and defraying reasonable expenses of
administering the plan, including the trust which is a part of
the plan, (ii) 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 like character and with like aims,
and (iii) in accordance with the plan, except to the extent such
document may be inconsistent with the then applicable federal
laws relating to fiduciary responsibility. The trust fund shall
be used for the exclusive benefit of the participants and
beneficiaries and to pay administrative expenses of the plan and
trust to the extent not paid by the Employer, and no portion of
the trust fund shall ever revert to or inure to the benefit of
the Employer (except as otherwise provided in this Section 11.1
and in Section 23). Notwithstanding the foregoing provisions of
this Section 11.1, the following special provisions shall apply:
11.1.1 The Sponsor expressly reserves the right to
amend or terminate the plan and liquidate the trust, and the
Employer, by execution of the Adoption Agreement, delegates to
the Sponsor the authority to amend or terminate the plan and to
liquidate the trust by written instrument signed by the duly
authorized representative of the Sponsor, and the Employer shall
be deemed to have consented to any such amendments or
termination. No amendment to the plan shall be effective to the
extent that it has the effect of decreasing a participant's
accrued benefit. Notwithstanding the preceding sentence, a
participant's accrued benefit may be reduced to the extent
permitted under Section 412(c)(8) of the Code. For purposes of
this Section 11.1.1, a plan amendment which has the effect of
decreasing a participant's accrued benefit or eliminating an
optional form of benefit, with respect to benefits attributable
to service before the amendment, shall be treated as reducing an
accrued benefit. Furthermore, if the vesting schedule of a plan
is amended, in the case of an employee who is a participant as of
the later of the date such amendment is adopted or the date it
becomes effective, the nonforfeitable percentage (determined as
of such date) of such employee's right to his matching
contribution account or discretionary Employer account will not
be less than his percentage computed under the plan without
regard to such amendment.
11.1.2 An Employer acting through its Board may
amend the plan by (i) changing the choice of options in the
Adoption Agreement, (ii) adding overriding plan language to the
Adoption Agreement where such language is necessary to satisfy
Sections 415 or 416 of the Code because of the required
aggregation of multiple plans under these sections, and (iii)
adding certain model amendments published by the Internal Revenue
Service which specifically provide that their adoption will not
cause the plan to be treated as individually designed. The
Employer shall be considered to have an individually designed
plan if the Employer amends the plan or nonelective portions of
the Adoption Agreement for any other <PAGE> reason. The Employer may
terminate the plan as applicable to it at any time, subject to
the provisions of Sections 14.1 and 14.2.
11.1.3 Notwithstanding any other provisions of the
plan, the following provisions shall apply:
(i) If the plan receives an adverse
determination with respect to the initial qualification of
the plan under Section 401(a) of the Code, on written
request of the Employer, the Trustee shall return to the
Employer the amount of such contribution (increased by
earnings attributable thereto and reduced by losses
attributable thereto) within one calendar year after the
date that qualification of the plan is denied; provided,
that the application for the determination is made by the
time prescribed by law for filing the Employer's federal
income tax return for the taxable year in which the plan is
adopted or such later date as the Secretary of the Treasury
may prescribe;
(ii) On written request of the Employer, the
Trustee shall return a disallowed contribution to the extent
the deduction is disallowed under Section 404 of the Code
(reduced by losses attributable thereto, but not increased
by earnings attributable thereto) to the Employer within one
year after the date the deduction is disallowed; and
(iii) If a contribution or any portion thereof
is made by the Employer by mistake of fact, on written
request of the Employer, the Trustee shall return the
contribution or such portion (reduced by losses attributable
thereto, but not increased by earnings attributable thereto)
to the Employer within one year after the date of payment to
the Trustee.
11.2 ADOPTION OF PLAN: The Employer shall, upon proper
authorization, adopt the plan and execute the Adoption Agreement.
When such Adoption Agreement has been accepted and executed by
the Trustee and an initial contribution has been received by the
Trustee from the Employer, the plan as applied to the Employer
shall become effective as of the date specified in the Adoption
Agreement.
11.3 REQUIREMENT OF WRITING: All requests, directions,
requisitions, and instructions of the Committee to the Trustee
shall be in writing, signed by such person or persons as
designated by the Committee.
SECTION 12. ALLOCATION OF RESPONSIBILITIES AMONG
NAMED FIDUCIARIES:
12.1 DUTIES OF NAMED FIDUCIARIES: The named
fiduciaries with respect to the plan and the fiduciary duties and
other responsibilities allocated to each, which shall be carried
out in accordance with the other applicable terms and provisions
of the plan, are as follows:
12.1.1 BOARD:
(i) To amend the plan (subject to Sections
11.1.1 and 11.1.2);
(ii) To appoint and remove members of the
Committee, including the plan administrator;
(iii) To appoint and remove any investment
managers;
<PAGE>
(iv) To appoint and remove the Trustee under
the plan;
(v) To determine the amount to be
contributed to the plan each year by the Employer;
(vi) To authorize the Committee to invest
assets of the trust in Employer stock or to establish an
Employer stock fund as described in Section 9.1; and
(vii) To terminate the plan.
12.1.2 COMMITTEE:
(i) To interpret the provisions of the plan
and to determine the rights of participants under the plan,
except to the extent otherwise provided in Section 16
relating to claims procedure;
(ii) To administer the plan in accordance
with its terms, except to the extent powers to administer
the plan are specifically delegated to another named
fiduciary or other person or persons as provided in the
plan;
(iii) To designate and approve any investment
funds for participant directed investments, if permitted by
the Employer under the Adoption Agreement;
(iv) To account for the accrued benefits of
participants;
(v) To direct the Trustee in the
distribution of trust assets;
(vi) To direct the Trustee in the voting and
tendering of Employer stock held by the trust to the extent
provided in Section 9;
(vii) To direct the Trustee in the purchase
and sale of Employer stock for the trust, subject to the
provisions of Section 8 and Section 9; and
(viii) To establish such procedures as it may
be advisable for the proper administration of the plan,
including, but not limited to, procedures for changes in
investment directions, transfers of assets between fund
accounts, and applications for elective deferrals, employee
after-tax contributions, participant loans, withdrawals,
distributions, direct transfers, and rollover contributions.
12.1.3 Plan Administrator:
(i) To file such reports as may be required
with the United States Department of Labor, the Internal
Revenue Service, and any other government agencies to which
reports may be required to be submitted from time to time;
(ii) To comply with requirements of law for
disclosure of plan provisions and other information relating
to the plan to participants and other interested parties;
and
<PAGE>
(iii) To administer the claims procedure to
the extent provided in Section 16.
12.1.4 Trustee:
(i) To invest and reinvest trust assets, if
authorized by the Board, or pursuant to direction of any
investment manager(s) appointed by the Board;
(ii) To invest and reinvest trust assets in
Employer stock, if authorized by the Board and directed by
the Committee;
(iii) To make distributions to plan
participants as directed by the Committee;
(iv) To render annual accountings to the
Employer as provided in the plan; and
(v) Otherwise to hold, administer and
control the assets of the trust as provided in Section_20 of
the plan.
12.1.5 Investment Manager: In the event the Board
shall appoint an investment manager to manage (including the
power acquire and dispose of) assets of the trust, as provided in
Section 20.1.3 of the plan, the duties of the investment manager
shall be to manage, acquire and dispose of assets of the trust,
or to direct the Trustee in the management, acquisition, and
disposition of assets of the trust.
12.1.6 Custodian: If the Trustee appoints a
custodian to hold and manage the assets of the trust under the
plan, then notwithstanding the foregoing provisions of this
Section 12.1 or any other provisions of the plan, the duties of
the custodian shall be to receive, hold, sell, exchange, and
otherwise deal with the assets of the trust as instructed by the
Trustee (or by the investment manager, if any, to the extent of
the authority of the investment manager), to make distributions
to participants as directed by the Committee, and to render
accounts to the Trustee as provided in Section 20.2.
12.2 CO-FIDUCIARY LIABILITY: Except as otherwise
provided in ERISA, a named fiduciary shall not be responsible or
liable for any act or omission of another named fiduciary with
respect to fiduciary responsibilities allocated to such other
named fiduciaries, and a named fiduciary of the plan shall be
responsible and liable only for its own acts or omissions with
respect to fiduciary duties specifically allocated to it and
designated as its responsibility.
SECTION 13. BENEFITS NOT ASSIGNABLE; FACILITY OF
PAYMENTS:
13.1 BENEFITS NOT ASSIGNABLE: No portion of any
benefit held or paid under the plan with respect to any
participant shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, and any attempt so to anticipate, alienate, sell,
transfer, assign, pledge, encumber, or charge the same shall be
void, nor shall any portion of such accrued benefit be in any
manner payable to any assignee, receiver or trustee, or be liable
for his debts, contracts, liabilities, engagements, or torts, or
be subject to any legal process to levy upon or attach; provided,
that this Section 13.1 shall not apply to the creation,
assignment, or recognition of a right to any benefit payable with
respect to a participant pursuant to a qualified domestic
relations order, as defined in Section 414(p) of the Code, or any
domestic relations order entered before January 1, 1985.
<PAGE>
13.2 PAYMENT TO MINORS AND OTHERS: If any individual
entitled to receive any payments under the plan shall be
physically, mentally, or legally incapable of receiving or
acknowledging receipt of such payment, the Committee, upon the
receipt of satisfactory evidence of his incapacity and
satisfactory evidence that another person or institution is
maintaining him and that no guardian or committee has been
appointed for him, may cause any payment otherwise payable to him
to be made to such person or institution so maintaining him.
Payment to such person or institution shall be in full
satisfaction of all claims by or through the participant to the
extent of the amount thereof.
SECTION 14. TERMINATION OF PLAN AND TRUST; REMOVAL
OF TRUSTEE; MERGER OR CONSOLIDATION OF
PLAN:
14.1 COMPLETE TERMINATION: In the event of termination
of the plan, all contributions shall cease and no additional
participants shall enter the plan. The assets under the plan
shall thereupon vest (that is, become nonforfeitable) in the
participants, beneficiaries, or other successors in interest, as
their interests may appear, and such vested benefit of each such
individual shall be held in the plan for distribution in
accordance with the provisions of Sections 3 and 4 of the plan;
provided, that the Committee may in its discretion provide for a
liquidation of the trust and distributions to the participants of
their vested accrued benefits in cash, in kind, or in any
combination thereof. In addition, the participant's accrued
benefit may, without the participant's consent, be distributed to
the participant or transferred to another defined contribution
plan (other than an employee stock ownership plan defined in
Section 4975(e)(7) of the Code) of an affiliated employer. For
purposes of the plan, a termination of Employer contributions or
a suspension or reduction of such contributions which amounts in
effect to a termination of contributions shall be regarded as a
termination of the plan.
14.2 PARTIAL TERMINATION: In the event of a partial
termination of the plan, the provisions of Section 14.1 regarding
a complete termination shall apply in determining interests and
rights of the participants and their beneficiaries with respect
to whom the partial termination shall occur, and shall apply to
the portion of the trust fund allocable to such participants and
beneficiaries.
14.3 REMOVAL AND RESIGNATION OF TRUSTEE: The Employer,
at any time by written notice of at least 30 days to the Trustee,
may remove the Trustee as trustee under the plan. The Trustee
may resign at any time upon 30_days notice in writing to the
Employer. As of the date of any such removal or resignation of
the Trustee, the Trustee shall transfer the assets of the trust
attributable to the plan as applied to the Employer to the
successor trustee or custodian named in the notice. Prior to
such transfer, the accounts of the Trustee shall be finally
settled. Following such transfer, the Trustee shall be released
and discharged from all further accountability or liability with
respect to the assets of the trust fund and shall not be
responsible in any way for further disposition of such assets or
any part thereof.
14.4 MERGER OR CONSOLIDATION: In the event of any
merger or consolidation of the plan with any other plan, or a
transfer of assets or liabilities of the plan to any other plan
(which merged, consolidated, or transferee plan shall be referred
to in this Section 14.4 as the "successor plan"), the amount
which each participant would receive if the successor plan (and
this plan, if he has any interest remaining therein) were
terminated immediately after the merger, consolidation, or
transfer shall be equal to or greater than the amount he would
have received if this plan (and the successor plan, if he had any
interest therein immediately prior to the merger, consolidation,
or transfer) had been terminated immediately preceding the
merger, consolidation, or transfer.
<PAGE>
SECTION 15. COMMUNICATION TO PARTICIPANTS:
In accordance with the requirements of ERISA, the plan
administrator shall communicate the principal terms of the plan
to the participants. The plan administrator shall make available
for inspection by participants and their beneficiaries during
reasonable hours, at the principal office of the Employer and at
such other places as may be required by ERISA, a copy of the
plan, the trust agreement, and such other documents as may be
required by ERISA.
SECTION 16. CLAIMS PROCEDURE:
The following claims procedure shall apply with respect
to the plan:
16.1 FILING OF A CLAIM FOR BENEFITS: If a participant
or beneficiary (the "claimant") believes that he is entitled to
benefits under the plan which are not being paid to him or which
are not being accrued for his benefit, he shall file a written
claim therefor with the plan administrator. In the event the
plan administrator shall be the claimant, all actions which are
required to be taken by the plan administrator pursuant to this
Section 16 shall be taken instead by another member of the
Committee designated by the Committee.
16.2 NOTIFICATION TO CLAIMANT OF DECISION: Within 90
days after receipt of a claim by the plan administrator (or
within 180 days if special circumstances require an extension of
time), the plan administrator shall notify the claimant of his
decision with regard to the claim. In the event of such special
circumstances requiring an extension of time, there shall be
furnished to the claimant prior to expiration of the initial
90-day period written notice of the extension, which notice shall
set forth the special circumstances and the date by which the
decision shall be furnished. If such claim shall be wholly or
partially denied, notice thereof shall be in writing and worded
in a manner calculated to be understood by the claimant, and
shall set forth: (i) the specific reason or reasons for the
denial; (ii) specific reference to pertinent provisions of the
plan on which the denial is based; (iii) a description of any
additional material or information necessary for the claimant to
perfect the claim and an explanation of why such material or
information is necessary; and (iv) an explanation of the
procedure for review of the denial. If the plan administrator
fails to notify the claimant of the decision in a timely manner,
the claim shall be deemed denied as of the close of the initial
90-day period (or the close of the extension period, if
applicable).
16.3 PROCEDURE FOR REVIEW: Within 60 days following
receipt by the claimant of notice denying his claim, in whole or
in part, or, if such notice shall not be given, within 60 days
following the latest date on which such notice could have been
timely given, the claimant shall appeal denial of the claim by
filing a written application for review with the Committee.
Following such request for review, the Committee shall fully and
fairly review the decision denying the claim. Prior to the
decision of the Committee, the claimant shall be given an
opportunity to review pertinent documents and to submit issues
and comments in writing.
16.4 DECISION ON REVIEW: The decision on review of a
claim denied in whole or in part by the plan administrator shall
be made in the following manner:
16.4.1 Within 60 days following receipt by the
Committee of the request for review (or within 120 days if
special circumstances require an extension of time), the
Committee shall notify the claimant in writing of its decision
with regard to the claim. In the event of such special
circumstances requiring an extension of time, written notice of
the extension shall be furnished to the claimant prior to the
commencement of the extension. If the decision on review is not
furnished in a timely manner, the claim shall be deemed denied as
of the close of the initial 60-day period (or the close of the
extension period, if applicable).
16.4.2 With respect to a claim that is denied in
whole or in part, the decision on review shall set forth specific
reasons for the decision, shall be written in a manner calculated
to be understood by the claimant, and shall cite specific
references to the pertinent plan provisions on which the decision
is based.
<PAGE>
16.4.3 The decision of the Committee shall be final
and conclusive.
16.5 ACTION BY AUTHORIZED REPRESENTATIVE OF CLAIMANT:
All actions set forth in this Section 16 to be taken by the
claimant may likewise be taken by a representative of the
claimant duly authorized by him to act in his behalf on such
matters. The plan administrator and the Committee may require
such evidence as either may reasonably deem necessary or
advisable of the authority to act of any such representative.
SECTION 17. PREVIOUSLY EXISTING QUALIFIED PLANS OF
THE EMPLOYER:
By so designating in the Adoption Agreement, adoption
of the plan shall amend and supersede in its entirety a
previously existing defined contribution plan of the Employer
which is qualified under Section 401(a) of the Code immediately
prior to such adoption, as evidenced by a current favorable
determination letter or opinion letter issued by the Commissioner
of Internal Revenue or his delegate (which previously existing
plan shall be referred to herein as the "prior plan"). Adoption
of the instant plan shall be deemed to amend and supersede the
prior plan and shall not be deemed to be a termination thereof.
Except as permitted by regulations, no plan amendment or
transaction having the effect of a plan amendment shall be
effective if it eliminates or reduces any benefit protected under
Section 411(d)(6) of the Code, or adds or modifies conditions
relating to Section 411(d)(6) protected benefits, the result of
which is a further restriction on such benefit, unless such
protected benefits are preserved with respect to benefits accrued
as of the later of the adoption date or effective date of the
amendment. In applying the provisions of Section 5.2 following
adoption of this plan, each participant in this plan on the
effective date of adoption of this plan who was a participant in
the prior plan immediately before such effective date shall have
a vested percentage in his accrued benefit which shall not be
less than the percentage of his benefit in the prior plan which
would have been vested in him if the prior plan had continued in
effect through the adjustment date for the plan year in which the
vested percentage is being determined.
SECTION 18. SPECIAL PROVISIONS RELATING TO TRANSFERS
FROM QUALIFIED PLANS:
With the written approval of the Committee in
accordance with procedures approved by the Committee, the Trustee
shall receive and hold, as a part of the trust fund, assets
(hereinafter referred to as the "transferred assets," which shall
be deemed to include all increments allocable to such transferred
assets) transferred directly from the trustee or custodian of any
other retirement plan (hereinafter referred to as the "transferor
plan") which is qualified under Section 401(a) of the Code. Such
transferred assets may include cash or other types of property
allowed as an investment under the plan. In applying the
provisions of this Section_18, the following special provisions
shall apply:
18.1 CERTAIN TRANSFERS TO THE PLAN NOT PERMITTED: The
Committee shall not permit nor the Trustee accept any transfer
from the trustee of a defined benefit plan, a defined
contribution plan which is subject to the funding standards of
Section 412 of the Code, or any defined contribution plan that
would cause this plan to be the direct or indirect transferee of
a plan which is subject to the joint and survivor annuity
requirements of Section 401(a)(11) of the Code, or would
otherwise cause this plan to become subject to such requirements.
18.2 NONFORFEITABILITY OF TRANSFERRED ASSETS: The
transferred assets and all rights to or derived therefrom shall
be at the time of the transfer and at all times thereafter fully
nonforfeitable and vested in the respective participants (and in
the proportions) to whom such transferred assets had been
allocated under the transferor plan.
18.3 PROTECTED BENEFITS UNDER SECTION 411(D)(6) OF THE
CODE: The protected benefits of the transferor plan, as defined
in Section 411(d)(6) of the Code, shall be preserved with respect
to the direct transfer account of each participant.
<PAGE>
18.4 LIABILITY OF TRUSTEE: The Trustee under this plan
shall not be liable or responsible for any acts or omissions in
the administration of any transferor plan and the trust
thereunder of any other person or entity who was trustee,
custodian, or other fiduciary under any such transferor plan, and
the Trustee shall be held harmless from such liability or
responsibility.
18.5 SEPARATE ACCOUNTS: The Trustee shall keep a
separate and identifiable account with respect to the transferred
assets of each participant (which may be commingled for
investment purposes with other assets of the trust), designated
as the "direct transfer account." The direct transfer account of
each participant shall be adjusted in the manner specified in
Section 7.
18.6 GENERAL: To the extent not inconsistent with the
provisions of this Section 18, the Committee may promulgate rules
or by-laws supplementing and implementing the provisions of this
Section_18.
SECTION 19. ROLLOVERS:
19.1 ACCEPTANCE OF ROLLOVERS BY THIS PLAN: To the
extent elected by the Employer in the Adoption Agreement, an
employee or participant who receives, or deemed to receive, a
distribution of all or part of his interest from another
retirement plan which is qualified under Section 401(a) of the
Code on the date of such distribution may, with the written
consent of the Committee and in accordance with procedures
approved by the Committee, transfer all or a part of such
distribution to the Trustee under this plan. The amount so
transferred may include cash or other types of property allowed
as an investment under the plan. In applying the provisions of
this Section 19, the following special provisions shall apply:
19.1.1 The transfer to the Trustee must occur on or
before the 60th day following the receipt by the employee or
participant of such distribution or, if such distribution has
previously been deposited in an individual retirement account or
individual retirement annuity (as defined in Section 408 of the
Code), the transfer must occur on or before the 60th day
following the receipt by the employee or participant of the
balance to his credit under such individual retirement account or
individual retirement annuity.
19.1.2 For distributions made to the employee or
participant prior to January 1, 1993, the distribution must be a
qualified total distribution within the meaning of Section
402(a)(5)(E)(i) of the Code. For distributions made to the
employee or participant after December 31, 1992, the distribution
must be an eligible rollover distribution within the meaning of
Section 402(c)(4) of the Code.
19.1.3 The amount transferred to the Trustee is
limited to the maximum rollover amount as provided in Section
402(a)(5)(B) of the Code (Section 402(c)(2) of the Code for
distributions made to an employee or participant after December
31, 1992).
19.1.4 The amount transferred to the Trustee shall
be credited to a separate account with respect to the employee or
participant, designated as the "rollover account." With respect
to each rollover account, the following special provisions shall
apply:
(i) Except as provided in paragraph (iii)
below, each rollover account shall be adjusted in the manner
specified in Section 7.
(ii) Each employee or participant having a
rollover account shall have a nonforfeitable interest
therein.
<PAGE>
(iii) Except as otherwise provided in this
Section 19, the assets in the rollover account shall be
administered by the Trustee in the same manner as other
trust assets. Assets of the rollover account may be
commingled for investment with other assets of the trust
fund; provided, that with respect to a rollover contribution
made other than on an adjustment date, such contribution
shall not be commingled until immediately following the next
adjustment date, and for the period preceding such
adjustment date the rollover account of an employee or
participant shall be adjusted under Section_7 as if such
account constituted the entire trust fund.
19.1.5 If an eligible employee shall be permitted
under the Adoption Agreement to make such a transfer prior to his
completion of the participation requirements of Section 1.40, his
rollover account shall represent his sole interest in the plan
until he becomes a participant.
19.2 ROLLOVER DISTRIBUTIONS: This Section 19.2 shall
be effective with respect to distributions made to a participant
or beneficiary after December 31, 1992. Subject to the
provisions of this Section 19.2, a participant who becomes
entitled to receive a distribution of all or part of his account
may, in accordance with procedures adopted by the Committee,
elect to have such distribution treated as a rollover
distribution and transferred by the Trustee directly to the
trustee or custodian of another retirement plan or individual
retirement arrangement (the "transferee plan"). In applying the
provisions of this Section 19.2, the following provisions shall
apply:
19.2.1 The distribution to be made to the
participant must be an eligible rollover distribution within the
meaning of Section 402(c)(4) of the Code.
19.2.2 The amount transferred to the transferee plan
may not exceed the amount that would otherwise be includable in
the gross income of the participant if not transferred as
provided in this Section 19.2.
19.2.3 The transferee plan must be an eligible
retirement plan within the meaning of Section 401(a)(31)(D) of
the Code.
19.2.4 The election provided for in this Section
19.2 shall also apply to (i) the surviving spouse of a
participant who becomes entitled to receive a distribution from
the plan upon the death of the participant, and (ii) the spouse
or former spouse of a participant who becomes entitled to receive
a distribution from the plan pursuant to a qualified domestic
relations order (within the meaning of Section 414(p) of the
Code). Notwithstanding the foregoing, a surviving spouse of a
participant may only elect to have an eligible rollover
distribution transferred directly to the trustee or custodian of
an individual retirement arrangement that qualifies as an
eligible retirement plan under Section 401(a)(31)(D) of the Code.
19.2.5 At least 30 days, but no more than 90 days,
before a distribution is to be made from a participant's account,
the plan administrator shall provide the participant or other
distributee with a written statement advising him of his rights
under this Section 19.2, and of the requirement that federal
income taxes be withheld on the distribution if he does not elect
to have the distribution transferred directly to a transferee
plan. The written statement shall contain such other information
as is required by Section 402(f) of the Code.
19.2.6 Notwithstanding anything contained in this
Section 19.2 to the contrary, the provisions of this Section 19.2
shall at all times be construed and enforced according to the
requirements of Section 401(a)(31) of the Code, as the same may
be amended from time to time.
<PAGE>
SECTION 20. TRUST PROVISIONS:
20.1 TRUSTEE'S POWERS:
20.1.1 The Trustee shall receive, hold, manage,
convert, sell, exchange, invest, reinvest, disburse, and
otherwise deal with the assets of the trust, including
contributions made by the Employer and employees to the trust and
the income and profits therefrom, in the manner and for the uses
and purposes in the plan and as herein provided. Subject to the
fiduciary responsibilities imposed upon the Trustee by ERISA, the
plan, and the trust, and subject further to the provisions of
Sections 8, 9, 10.1, 20.1.2, and 20.1.3, in the investment,
reinvestment and management of the fund constituting the trust,
and the Trustee is hereby authorized and empowered:
(i) To receive all rents, issues, dividends,
income, profits and properties of every nature due the
trust, and to hold or make distribution thereof in
accordance with the terms of the plan and this trust
agreement.
(ii) To retain the properties now or
hereafter received by the trust, or to dispose of them as
and when deemed advisable by public or private sale or
exchange or otherwise, for cash or upon credit, or partly
upon cash and partly upon credit, and upon such terms and
conditions as shall be deemed proper.
(iii) To participate in any plan of
liquidation, reorganization, consolidation, merger, or other
financial adjustment of any corporation or business in which
the trust is or shall be financially interested, and to
exchange any property held in the trust for property issued
under any such plan.
(iv) To invest or reinvest principal and
income of the funds belonging to the trust in (a) common or
preferred stocks or options to buy and sell such stocks, (b)
bonds, notes or other securities (including commercial paper
and other short-term obligations), (c) mutual funds, (d)
guaranteed investment contracts issued by a legal reserve
life insurance company, (e) real or personal properties or
interests therein, (f) cash equivalent deposits,
certificates of deposit or accounts (including such deposits
or accounts issued by the Trustee), or any combination of
(a) through (f), as shall from time to time be approved by
the Trustee, or to hold any part of such principal or income
in cash as may from time to time be determined by the
Trustee.
(v) If authorized by the Board and directed
by the Committee, to invest or reinvest principal and income
of the funds belonging to the trust in Employer stock.
(vi) To hold any investment belonging to the
trust in bearer form, or to register and hold the same in
the name of the Trustee or in the name of its duly
authorized nominee.
(vii) To borrow for the benefit of the trust
for such periods of time and upon such terms and conditions
as may be deemed proper, any sum or sums of money, and to
secure such loans by mortgage or pledge of any property
belonging to the trust, without personal liability therefor.
<PAGE>
(viii) To execute such deeds, leases,
contracts, bills of sale, notes, proxies, and other
instruments in writing as shall be deemed requisite or
desirable in the proper administration of the trust.
(ix) To compromise, arbitrate, or otherwise
adjust or settle claims in favor of or against the trust,
except to the extent the plan provides otherwise with
respect to claims for benefits under the plan.
(x) To make distributions to participants or
their beneficiaries at the direction of the Committee.
(xi) To renew or extend or participate in the
renewal or extension of any mortgage, upon such terms as may
be deemed advisable, and to agree to a reduction in the rate
of interest on any mortgage or to any other modification or
change in the terms of any mortgage or of any guarantee
pertaining thereto, in any manner and to any extent that may
be deemed advisable for the protection of the trust fund or
the preservation of the value of any investment of the trust
fund; to waive any default, whether in the performance of
any covenant or condition of any mortgage or in the
performance of any guarantee, or to enforce any such default
in such manner and to such extent as may be deemed
advisable; to exercise and enforce any and all rights of
foreclosure, to bid in property on foreclosure, to take a
deed in lieu of foreclosure with or without paying a
consideration therefor, and in connection therewith to
release the obligation on the bond secured by such mortgage;
and to exercise and enforce in any action, suit, or
proceeding at law or in equity any rights or remedies in
respect to any mortgage or guarantee.
(xii) To repair, alter, or improve any
buildings which may be on any real estate forming part of
the trust fund or to erect entirely new structures thereon.
(xiii) To exercise the right to vote or tender
any securities held in the trust, or to grant proxies to
vote such securities, except to the extent that the right to
vote or tender any such securities may specifically be
designated to another hereunder.
(xiv) To make loans from the trust to
participants in accordance with the provisions of Section
6.6.
(xv) To receive and hold, as part of the
trust fund, direct transfers (as described in Section 18)
and rollovers (as described in Section 19), subject to all
limitations and requirements set forth in the plan.
(xvi) In accordance with the provisions of
Section 8 and subject to the direction of the Committee, to
invest and reinvest amounts credited to participants'
directed separate accounts in such directed investment funds
selected by the Committee, including an Employer stock fund
established pursuant to Section 9.
<PAGE>
(xvii) To transfer, at any time and from time
to time, a portion of the assets held by it pursuant to this
plan to any common trust fund within the meaning of Section
584 of the Code or to any trust which is qualified under
Section 401(a) and exempt under Section 501(a) of the Code,
and which common trust fund is maintained as a medium for
the pooling of funds of pension and profit-sharing trusts
for diversifying investments. The terms and provisions of
any such trust shall, upon such transfer and execution, be
incorporated by reference into this plan to the extent of
the assets so transferred.
(xviii) To transfer monies of this trust to a
separate fund or funds maintained solely for the assets of
the trust established with respect to the plan maintained by
the Employer, which fund or funds shall not be commingled,
pooled, or consolidated for investment with assets of
another qualified trust. Each such fund shall be referred
to herein as an "investment fund" and collectively as
"investment funds." Assets transferred to an investment
fund shall be invested and reinvested by the Trustee in
accordance with the provisions of this Section 20.
(xix) When and to the extent directed by the
Committee, to invest all or a portion of the funds of the
trust in a group annuity or guaranteed investment contract
issued by a legal reserve life insurance company; provided,
that if the Trustee requests, the Employer shall provide the
Trustee with satisfactory indemnification against any loss,
damage or expense (including expenses of defense) incurred
by the Trustees with respect to such investment.
(xx) At the direction of the Board, to
appoint a custodian designated by the Board who shall have
the authority and responsibilities set forth in Section
12.1.6.
(xxi) To do all acts and to exercise any and
all powers, although not specifically set forth herein, as
the Trustee may deem are for and in the best interest of the
plan, the participants, and beneficiaries.
20.1.2 In carrying out the powers and duties
specified in Section 20.1.1 regarding the investment and
reinvestment of trust assets, the Trustee shall consider any
general investment guidelines which may be communicated to the
Trustee from time to time by the Committee; provided, that the
Trustee shall not be required or obligated to follow any such
general guidelines, and all investment decisions shall be the
sole responsibility of the Trustee unless specifically provided
to the contrary in the trust agreement or the plan.
20.1.3 The Board may at any time direct the Trustee
to segregate all or a specified portion of the trust assets into
a separate fund (the "directed fund") and invest it in accordance
with the directions of one or more investment managers appointed
by the Board, subject to the following provisions:
(i) Any investment manager so appointed
shall be (a) registered as an investment advisor under the
Investment Advisers Act of 1940; (b) a bank, as defined in
the Investment Advisers Act of 1940; or (c) an insurance
company qualified under the laws of more than one state to
manage, acquire, and dispose of assets of the trust under
the plan.
<PAGE>
(ii) The Board shall deliver to the Trustee a
copy of a written acknowledgement by the investment manager
that it meets the requirements of paragraph (i), that it is
a fiduciary with respect to the plan, and that it has
accepted appointment as an investment manager. The Trustee
shall be protected in assuming that the appointment of an
investment manager remains in effect until the Trustee shall
be notified in writing by the Board that such investment
manager has been removed or has resigned.
(iii) The Trustee shall invest and reinvest
the directed funds only to the extent and in the manner
directed by the investment manager. If the Trustee has not
received instructions from an investment manager with
respect to the investment of all or a part of the directed
fund, the Trustee shall invest such amounts in interest
bearing obligations having maturities of 90 days or less, or
in a common fund comprised substantially of such
obligations, until directed otherwise by the investment
manager.
(iv) Any investment manager may from time to
time issue orders for the purchase or sale of securities
directly to a broker or dealer, and the Trustee, upon
direction from the investment manager, shall execute and
deliver appropriate trading authorization. Written notice
of the issuance of each order and of execution of each order
shall be authority to the Trustee to receive securities
purchased against payment therefor and to deliver securities
sold against receipt of the proceeds therefrom, as the case
may be.
(v) Upon removal or resignation of an
investment manager, and pending appointment of a substitute
investment manager, the Trustee shall invest any uninvested
cash in the manner described in paragraph (iii), and shall
not sell or liquidate any investments of the directed fund.
(vi) No plan fiduciary other than an
investment manager shall be liable for any act or omission
of such investment manager unless such fiduciary
participates knowingly in, or knowingly undertakes to
conceal, such act or omission which such fiduciary knows to
be a breach of the fiduciary responsibility of the
investment manager with respect to the plan. Further, no
plan fiduciary other than an investment manager shall be
under any obligation to invest or otherwise manage the
assets of the plan that are subject to the management of the
investment manager and, to the maximum extent permitted by
ERISA, the plan fiduciaries other than the investment
manager shall have no liability or responsibility for acts
or failures to act as directed by the investment manager,
or, subject to paragraph (iii), failing to act in the
absence of any such direction.
20.1.4 Notwithstanding any other provisions of
Section 20, in no event shall the Trustee exercise any powers
under the plan in a manner that will constitute a prohibited
transaction as defined in Section 4975 of the Code and in Section
406 of ERISA.
20.1.5 Whenever a direction or authorization is
required or permitted by the plan or trust to be given to the
Trustee, such direction or authorization shall be duly made by
the Trustee's receipt of: (i) a copy of the corporate resolution
or resolutions of the Board certified <PAGE> by the Secretary of the
Employer, in the case of any action taken by the Board; (ii) a
written instrument signed in the name of the Employer, by its
President or Secretary, in the case of any action taken by the
Employer; or (iii) a written instrument signed by the duly
authorized representative of the Committee, in the case of any
action taken by the Committee. Notwithstanding the foregoing,
the Trustee, in its sole discretion, may accept such other
evidence of the direction or authorization or may require such
further evidence of the direction or authorization as it deems
reasonable and necessary. The Trustee shall be fully protected
in acting upon any instrument, notice, resolution, order,
certificate, opinion, facsimile, letter, or other document that
the Trustee believes to be genuine. No person dealing with the
Trustee in any transaction shall be required to inquire into the
decisions or authority of the Trustee or see to the application
by the Trustee of any property involved in such transaction;
provided, that this provision shall not relieve any plan
fiduciary dealing with the Trustee from fulfilling his fiduciary
duty. For the purposes of this trust agreement, the "fiduciary
duty" of the plan fiduciaries (including the Trustee) shall
include the obligation not to enter into prohibited transactions
as described in Section 20.1.4 and all other duties imposed on
plan fiduciaries by the plan, the trust, and ERISA.
20.1.6 In the management of the trust fund, the
Trustee may employ agents and delegate to them such ministerial
and limited discretionary duties as the Trustee shall see fit,
and the Trustee shall not be responsible for any loss occasioned
by any such agent unless the Trustee shall commit a breach of its
fiduciary duty (as defined in Section_20.1.5) in the designation
of such agent, in establishing or implementing a procedure for
making such designation, or in continuing such designation in
effect. The Trustee may consult with counsel of its own
selection, who may also be of counsel to the Sponsor. The
reasonable compensation or fees charged by all such persons for
their services shall be deemed to be expenses of administration
of the trust.
20.1.7 All real and personal property taxes, income
taxes, and other taxes of any and all kinds whatsoever upon or in
respect of the trust hereby created or any money, income, or
property forming a part thereof, and all expenses actually and
properly incurred in the administration of the trust, shall be
paid by the Trustee out of principal or income of the trust, as
the Trustee shall determine; provided, that the Employer may, in
the discretion of the Board, pay any of the expenses incurred in
the administration of the trust. The payment out of the trust of
any taxes and expenses authorized in this Section_20.1.7, and the
payment of all other costs, expenses, or compensation authorized
by this plan to be paid out of the trust, shall be deemed to be
for the exclusive benefit of the participants under the plan.
20.2 ACCOUNTINGS: The Trustee shall keep accurate and
detailed accounts of all investments, receipts, disbursements,
and other transactions and proceedings of the trust and all such
accounts and other records relating thereto shall be open to
inspection and audit at all reasonable times by any person
designated by the Board or the Committee. Within 90 days after
the end of each plan year, and at such other times as the Board
may reasonably require, the Trustee shall prepare and deliver to
the Committee a statement of its accounts and proceedings for
such plan year. Each such statement shall be certified as
accurate by the Trustee and, with respect to the plan year in
question, shall contain the following:
20.2.1 A statement of assets and liabilities
aggregated by categories and valued at fair market value as of
the close of the plan year in question.
20.2.2 A statement setting forth changes in the net
assets available for plan benefits, including a statement of
receipts and disbursements during the plan year, aggregated by
general source and application.
<PAGE>
20.2.3 A statement setting forth all assets held for
investment purposes aggregated and identified by issuer,
borrower, lessor, or similar party to the transaction, maturity
date, rate of interest, collateral, par or maturity value, cost,
and current fair market value.
20.2.4 A statement setting forth all loans or fixed
income obligations which were in default as of the close of the
plan year or were classified during the plan year as
uncollectible, and such detailed information with respect thereto
as is required by ERISA to be included in the annual report to be
filed with the Internal Revenue Service.
20.2.5 A statement setting forth all leases which
were in default as of the close of the plan year or were
classified during the plan year as uncollectible, and such
detailed information with respect thereto as is required by ERISA
to be included in the annual report to be filed with the Internal
Revenue Service.
20.2.6 If some or all of the assets of the trust are
held in a guaranteed investment contract issued by a legal
reserve life insurance company, such information as is required
by the plan administrator to comply with the requirement to file
an annual report with the Internal Revenue Service.
20.2.7 A statement setting forth each reportable
transaction (as defined in ERISA), including such detailed
information with respect thereto as is required by ERISA to be
included in the annual report to be filed with the Internal
Revenue Service.
20.2.8 If some or all of the assets of the trust are
held in a common or collective trust maintained by the Trustee,
the most recent annual statement of assets and liabilities of
said common or collective trust.
20.2.9 Such other information as may reasonably be
required by the plan administrator to comply with the
requirements to file an annual report with the Internal Revenue
Service.
20.3 COMPENSATION OF TRUSTEE: If the Trustee is a bank
or corporation qualified to serve as a trustee under state law,
it shall be entitled to retain or receive out of the trust fund
(subject to the provisions of Section_20.1.6) as compensation for
its services hereunder, compensation in accordance with its usual
schedule of fees in effect at the time of performance of such
services, but not in excess of reasonable compensation for such
services. If the Trustees are individuals, whether or not
employees of the Employer, they shall not receive any
compensation for their services as Trustees.
20.4 RESPONSIBILITIES AND SCOPE OF DUTIES OF TRUSTEE:
The Trustee hereby agrees to hold in trust and administer the
fund hereunder, subject to all of the terms and conditions of the
plan, and to render an annual accounting as provided in Section
20.2. The Trustee shall act in accordance with written
instructions or directions of the Committee made in conformity
with ERISA and the terms of the plan, and signed by an authorized
representative of the Committee. In carrying out such
instructions or directions, the Trustee shall not be obligated to
inquire into the purpose or purposes for such instructions or
directions or whether such instructions or directions are
consistent with the plan or are otherwise proper.
20.5 FAILURE TO DIRECT TRUSTEE: If at any time the
Employer or the Committee shall be incapable for any reason of
giving instructions, directions, or authorizations to the Trustee
as herein provided, the Trustee may act without such
instructions, directions, or authorizations as it, in its
discretion, shall deem appropriate or advisable under the
circumstances for carrying out the provisions of the plan and
trust. The <PAGE> Trustee shall be fully protected with respect to any
action taken or omitted consistent with the terms of the plan and
trust or at the direction of the Employer, the Committee, or any
participant or beneficiary pursuant to Section 8 or Section 9, or
any action taken or omitted upon the failure of the Employer or
the Committee to give directions to the Trustee as required or
permitted by the plan and trust.
20.6 INDEMNIFICATION OF TRUSTEE: If the Trustee shall
be one or more individuals and not a corporation or banking
institution, the Employer shall indemnify the Trustee, directly
from the Employer's general assets (including the proceeds of any
insurance policy, the premiums for which are paid from the
Employer's assets), from and against any and all claims, demands,
losses, damages, expenses (including, by way of illustration and
not limitation, reasonable attorneys' fees and other legal and
litigation costs), judgments, and liabilities arising from, out
of, or in connection with the administration of the plan or trust
(including without limitation, any action taken or omitted
pursuant to directions contained in the plan or trust, at the
direction of the Employer, the Committee, or any participant or
beneficiary pursuant to Section 8 or Section_9, or any action
taken or omitted upon the failure of the Employer or the
Committee to give directions to the Trustee as required by or
permitted by this trust or the plan) or the Trustee's fiduciary
duties under the plan or trust, except when the same are
judicially determined to be due to the gross negligence or
willful misconduct of the Trustee (the "exception"). The
exception shall not apply with respect to any action or failure
to act by the Trustee if the action or failure to act was
directed by the Employer or the Committee (either directly or by
failing to provide directions when requested). The Trustee shall
notify the Employer of any claim, demand, loss, damage, expense,
judgment, or liability asserted against the Trustee that may give
rise to the right of indemnification provided for in this Section
20.6 as soon as practicable after the Trustee has actual
knowledge thereof. With the prior written consent of the
Trustee, the Employer shall have the right, at its expense, to
conduct the defense of the Trustee in any proceeding to which
this Section 20.6 applies. The Employer also agrees to reimburse
the Trustee for any expense (including, by way of illustration
and not limitation, reasonable attorneys' fees and other legal
and litigation costs) incurred by the Trustee in enforcing the
provisions of this Section 20.6.
20.7 MODIFICATION OF THIS SECTION: An Employer may
amend or modify the administrative provisions of this Section 20
by adopting a separate trust or custodial account document,
provided that such other document does not cause the plan to fail
to satisfy the requirements of Section 401(a) of the Code. The
provisions of such other document shall override any contrary
provisions in this Plan. This subsection shall not apply,
however, if the plan as adopted by the Employer is a standardized
plan.
SECTION 21. QUALIFICATION OF PLAN:
21.1 NON-STANDARDIZED PLANS: If the plan is not a
standardized form plan, the Employer shall promptly submit the
plan (including the Adoption Agreement and all necessary
supporting documents), and all amendments permitted under Section
11.1.2 which are made by the Employer to the plan, to the
Internal Revenue Service with a request for a determination
letter that the plan as applied to the Employer meets the
qualification requirements of Section 401(a) of the Code and that
the trust constituting a part of the plan is exempt under Section
501(a) of the Code.
21.2 DENIAL OF QUALIFICATION: Should the Internal
Revenue Service determine pursuant to such initial submission
that the plan as applied to the Employer does not so qualify, the
following procedures shall be followed:
21.2.1 Notwithstanding any other provisions of the
plan, the plan as applied to the Employer shall be deemed
canceled, the Employer shall not be a party to the plan, and no
employee of the Employer or person claiming under any such
employee shall have any right or claim to any asset or benefit of
the trust fund, except as provided in Section 21.2.3.
<PAGE>
21.2.2 The Trustee shall liquidate the trust of the
Employer and, after paying or making provision for the
compensation of the Trustee and any expenses of administration or
liquidation of the trust, shall pay the balance of the proceeds
of such liquidation to the Employer.
21.2.3 The Employer shall refund to each employee
the amount of any contribution made by him (or, if less, the
amount of such contribution then in his account).
21.3 NOTIFICATION OF SPONSOR: The Employer shall
promptly advise the Sponsor should it be notified by the Internal
Revenue Service that the plan as applied to the Employer is no
longer qualified as specified in Section 21.1. If the plan as
applied to the Employer is disqualified, such plan will no longer
participate in this prototype plan and will be considered an
individually designed plan.
SECTION 22. SPECIAL TOP-HEAVY PROVISIONS:
The following special provisions shall apply and
supersede any conflicting provisions in the plan or Adoption
Agreement with respect to any plan year beginning after December
31, 1983 in which the plan is determined to be top-heavy:
22.1 DEFINITIONS: The following definitions shall
apply for purposes of this Section 22:
22.1.1 "Determination date" shall mean 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 shall be the determination date.
22.1.2 "Key employee" shall mean any employee or
former employee (and the beneficiaries of such employee) who at
any time during the determination period was an officer of the
Employer if such individual's annual compensation exceeds 50% of
the dollar limitation under Section 415(b)(1)(A) of the Code, an
owner (or considered an owner under Section 318 of the Code) of
one of the ten largest interests in the Employer if such
individual's compensation exceeds 100% of the dollar limitation
under Section 415(c)(1)(A) of the Code, a five percent owner of
the Employer, or a one percent owner of the Employer who has an
annual compensation of more than $150,000. Annual compensation
means compensation as defined in Section 23.5.2, but including
amounts contributed by the Employer pursuant to a salary
reduction agreement which are excludable from the employee's
gross income under Sections 125, 402(e)(3), 402(h) or 403(b) of
the Code. The determination period is the plan year containing
the determination date and the preceding four 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" shall mean any employee or
former employee who is not a key employee.
22.1.3 "Permissive aggregation group" shall mean 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) and 410 of the Code.
22.1.4 "Present value" shall mean the present value
determined by reference to the interest and mortality rates
specified in Adoption Agreement.
22.1.5 "Required aggregation group" shall mean (i)
each qualified plan of the Employer in which at least one key
employee participates or participated at any time during the
determination period (regardless of whether the plan has
terminated), and (ii) any other qualified plan of the Employer
which enables a plan described in (i) to meet the requirements of
Sections 401(a)(4) or 410 of the Code.
22.1.6 "Top-heavy plan" shall mean, for any plan
year beginning after December 31, 1983, this plan if any of the
following conditions exists:
(i) The top-heavy ratio for this plan
exceeds 60% and this plan is not part of any required
aggregation group or permissive aggregation group of plans.
(ii) 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%.
<PAGE>
(iii) 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%.
22.1.7 "Top-heavy ratio" shall mean the following:
(i) If the Employer maintains one or more
defined contribution plans (including any simplified
employee pension plan) and the Employer has not maintained
any defined benefit plan which during the five-year period
ending on the determination date(s) has or has had accrued
benefits, the top-heavy ratio for this plan alone or for the
required or permissive aggregation group as appropriate is a
fraction, the numerator of which is the sum of the accrued
benefits of all key employees as of the determination
date(s) [including any part of any accrued benefit
distributed in the five-year period ending on the
determination date(s)], and the denominator of which is the
sum of all accrued benefits [including any part of any
accrued benefit distributed in the five-year period ending
on the determination date(s)], both computed in accordance
with Section 416 of the Code and the regulations thereunder.
Both the numerator and denominator of the top-heavy ratio
are increased to reflect any contribution not actually made
as of the determination date, but which is required to be
taken into account on that date under Section 416 of the
Code and the regulations thereunder.
(ii) If the Employer maintains one or more
defined contribution plans (including any simplified
employee pension plan) and the Employer maintains or has
maintained one or more defined benefit plans which during
the five-year period ending on the determination date(s) has
or has had any accrued benefits, the top-heavy ratio for any
required or permissive aggregation group as appropriate is a
fraction, the numerator of which is the sum of accrued
benefits under the aggregated defined contribution plan or
plans for all key employees, determined in accordance with
paragraph (i) above, and the present value of accrued
benefits under the aggregated defined benefit plan or plans
for all key employees as of the determination date(s), and
the denominator of which is the sum of the accrued benefits
under the aggregated defined contribution plan or plans for
all participants, determined in accordance with paragraph
(i) above, and the present value of accrued benefits under
the defined benefit plan or plans for all participants as of
the determination date(s), all determined in accordance with
Section 416 of the Code and the regulations thereunder. The
accrued benefits under a defined benefit plan in both the
numerator and denominator of the top-heavy ratio are
increased for any distribution of an accrued benefit made in
the five-year period ending on the determination date.
(iii) For purposes of paragraphs (i) and (ii)
above, the value of account balances and the present value
of accrued benefits will be determined as of the most recent
valuation date that falls within or ends with the 12-month
period ending on the determination date, except as provided
in Section 416 of the Code and the regulations thereunder
for the first and second plan years of a defined benefit
plan. The account balances and accrued benefits of a
<PAGE>
participant (a) who is a non-key employee but who was a key
employee in a prior year, or (b) who has not been credited
with at least one hour of service with any employer
maintaining the plan at any time during the five-year period
ending on the determination date will be disregarded. The
calculation of the top-heavy ratio, and the extent to which
distributions, rollovers, and transfers are taken into
account will be made in accordance with 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. The accrued benefit of
a participant who is a non-key employee shall be determined
under (a) the method, if any, that uniformly applies for
accrual purposes under all defined benefit plans maintained
by the Employer, or (b) if there is no such method, as if
such benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional rule of Section
411(b)(1)(C) of the Code.
22.1.8 "Valuation date" shall mean the adjustment
date defined in Section 1.4.
22.2 TOP-HEAVY REQUIREMENTS: Notwithstanding any other
provisions of the plan, the plan must satisfy the following
requirements for any plan year in which the plan is a top-heavy
plan:
22.2.1 Minimum allocation requirements: Except as
otherwise provided in (a) and (b) below, the Employer
contributions and forfeitures allocated on behalf of any
participant who is a non-key employee shall not be less than the
lesser of three percent 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 percentage of Employer contributions and
forfeitures allocated to a key employee is less than three
percent, elective deferrals shall be considered when determining
the amount of 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 would have
received a lesser allocation for the year, because of (i) the
participant's failure to complete 1,000 hours of service (or any
equivalent provided in the plan), (ii) the participant's failure
to make mandatory employee contributions to the plan, or (iii)
compensation less than a stated amount. For purposes of
computing the minimum allocation, compensation shall mean
compensation as defined in Section 23.5.2 of the plan.
The provisions of this Section_22.2.1 shall not apply:
(a) to any participant who was not employed by the Employer on
the last day of the plan year, or (b) to any participant to the
extent the participant is covered under any other plan or plans
of the Employer and the Employer has provided in Section XVII. B.
of the Adoption Agreement that the minimum allocation or benefit
requirement applicable to top-heavy plans will be met in the
other plan or plans. The minimum allocation required (to the
extent required to be nonforfeitable under Section 416(b) of the
Code) may not be forfeited under Section 411(a)(3)(B) or
411(a)(3)(D) of the Code. Neither elective deferrals nor
matching contributions made by the Employer under Section 2 of
the plan shall be taken into account for purposes of the minimum
allocation required under this Section 22.2.1 in the event this
plan is top-heavy and another plan of the Employer is not
designated to satisfy the top-heavy requirements of Section 416
of the Code. <PAGE> If any additional contribution is required to be
made by the Employer on behalf of a participant to satisfy the
provisions of this Section 22.2.1, such contribution shall be
allocated to the participant's matching contribution account or
discretionary Employer contribution account, as determined by the
Committee. The treatment of any elective deferrals or matching
contributions for purposes of the minimum allocation requirement
shall be made in accordance with Section 1.416-1 of the Income
Tax Regulations.
22.2.2 Minimum vesting requirements: For any plan
year in which this plan is top-heavy, one of the minimum vesting
schedules as elected by the Employer in the Adoption Agreement
shall automatically apply to the plan. The minimum vesting
schedule applies to all benefits within the meaning of Section
411(a)(7) of the Code, except those attributable to elective
deferrals and employee after-tax contributions, including
benefits accrued before the effective date of Section 416 and
benefits 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 22.2.2 does not apply to the accrued benefits of any
employee who does not have an hour of service after the plan has
initially become top-heavy and such employee's accrued benefit
attributable to matching contributions, discretionary Employer
contributions, and forfeitures will be determined without regard
to this Section.
22.2.3 Adjustment to limitations on allocations:
Notwithstanding the provisions of Section 23, if, during any
limitation year in which this plan is top-heavy, the Employer
maintains a qualified defined benefit plan covering any
participant in this plan, the denominator of the participant's
defined contribution fraction (as defined in Section 23.5.5) and
defined benefit fraction (as defined in Section 23.5.3) shall be
determined by substituting "100%" for "125%" each place that it
appears in Section 23.5. The provisions of this Section 22.2.3
shall not apply, however, if the plan would not be top-heavy for
such limitation year if "90%" were substituted for "60%" each
place that it appears in Section 22.1.6 and the minimum
contribution allocated to the account of each non-key employee
who is otherwise entitled to share in the Employer contribution
for such year is one percent greater than the minimum
contribution required under Section 22.2.1.
SECTION 23. LIMITATIONS ON ALLOCATIONS:
Limitations on allocations: In administering the plan,
the following special provisions shall apply:
23.1 LIMITATIONS ON ALLOCATIONS: The following
provisions shall apply if the participant does not participate
in, and has never participated in, another qualified plan,
welfare benefit fund defined in Section 419(e) of the Code, or an
individual medical account defined in Section 415(l)(2) of the
Code, maintained by the Employer, which provides an annual
addition defined in Section 23.5.1:
23.1.1 The amount of annual additions (as defined in
Section 23.5.1) which may be credited to the participant's
account for any limitation year (as defined in Section 23.5.9)
shall not exceed the lesser of the maximum permissible amount (as
defined in Section 23.5.10) or any other limitation contained in
this plan. If the Employer contribution that would otherwise be
contributed or allocated to the participant's account would cause
the annual additions for the limitation year to exceed the
maximum permissible amount, the amount contributed or allocated
shall be reduced so that the annual additions for the limitation
year will equal the maximum permissible amount.
<PAGE>
23.1.2 Prior to determining the participant's actual
compensation (as defined in Section 23.5.2) for the limitation
year, the Employer may determine the maximum permissible amount
for a participant on the basis of a reasonable estimation of the
participant's compensation for the limitation year, uniformly
determined for all participants similarly situated.
23.1.3. As soon as administratively feasible after
the end of the limitation year, the maximum permissible amount
for the limitation year shall be determined on the basis of the
participant's actual compensation for the limitation year.
23.1.4. If pursuant to Section 23.1.3 or as a result
of an allocation of forfeitures there is an excess amount (as
defined in Section 23.5.7), the excess will be disposed of as
provided in the Adoption Agreement.
23.2 PARTICIPATION IN MULTIPLE REGIONAL PROTOTYPE
DEFINED CONTRIBUTION PLANS: The following provisions shall apply
if, in addition to this plan, the participant is covered under
another qualified regional prototype defined contribution plan, a
welfare benefit fund defined in Section 419(e) of the Code, or an
individual medical account defined in Section 415(l)(2) of the
Code, maintained by the Employer, which provides an annual
addition as defined in Section 23.5.1 during any limitation year:
23.2.1 The annual additions which may be credited to
a participant's account under this plan for any such limitation
year shall not exceed the maximum permissible amount reduced by
the annual additions credited to a participant's account under
the other plans and welfare benefit funds for the same limitation
year. If the annual additions with respect to the participant
under other defined contribution plans and welfare benefit funds
maintained by the Employer are less than the maximum permissible
amount and the Employer contribution that would otherwise be
contributed or allocated to the participant's account under this
plan would cause the annual additions for the limitation year to
exceed this limitation, the amount contributed or allocated shall
be reduced so that the annual additions under all such plans and
funds for the limitation year will equal the maximum permissible
amount. If the annual additions with respect to the participant
under such other defined contribution plans and welfare benefit
funds in the aggregate are equal to or greater than the maximum
permissible amount, no amount shall be contributed or allocated
to the participant's account under this plan for the limitation
year.
23.2.2 Prior to determining the participant's actual
compensation for the limitation year, the Employer may determine
the maximum permissible amount for a participant in the manner
described in Section 23.1.2.
23.2.3 As soon as administratively feasible after
the end of the limitation year, the maximum permissible amount
for the limitation year shall be determined on the basis of the
participant's actual compensation for the limitation year.
23.2.4 If, pursuant to Section 23.2.3 or as a result
of the allocation of forfeitures, a participant's annual
additions under this plan and such other plans would result in an
excess amount for a limitation year, the excess amount shall be
deemed to consist of the annual additions last allocated, except
that annual additions attributable to a welfare benefit fund or
individual medical account will be deemed to have been allocated
first regardless of the actual allocation date.
23.2.5 If an excess amount was allocated to a
participant on an adjustment date of this plan which coincides
with an adjustment date of another plan, the excess amount
attributed to this plan will be the product of (A) multiplied by
(B), where (A) is the total excess amount <PAGE> allocated as of such
date, and (B) is the ratio of (i) the annual additions allocated
to the participant for the limitation year as of such date under
this plan to (ii) the total annual additions allocated to the
participant for the limitation year as of such date under this
and all other qualified regional prototype defined contribution
plans.
23.2.6 Any excess amount attributed to this plan
will be disposed in the manner described in Section 23.1.4.
23.3 PARTICIPATION IN TWO OR MORE DEFINED CONTRIBUTION
PLANS: If the participant is covered under another qualified
defined contribution plan maintained by the Employer which is not
a regional prototype plan (as defined in Section 23.5.12), annual
additions which may be credited to the participant's account
under this plan for any limitation year shall be limited in
accordance with Sections 23.2.1 through 23.2.6 as though the
other plan were a regional prototype plan unless the Employer
provides other limitations in the Adoption Agreement.
23.4 PARTICIPATION IN THIS PLAN AND A DEFINED BENEFIT
PLAN: If the Employer maintains, or at any time maintained, a
qualified defined benefit plan covering any participant in this
plan, the sum of the participant's defined benefit fraction (as
defined in Section 23.5.3) and defined contribution fraction (as
defined in Section 23.5.5) shall not exceed 1.0 in any limitation
year. The annual additions which may be credited to the
participant's account under this plan for any limitation year
shall be limited in accordance with the Adoption Agreement.
23.5 DEFINITIONS: For purposes of this Section 23, the
following definitions shall apply:
23.5.1 "Annual additions" shall mean the sum of the
following amounts credited to a participant's account for the
limitation year:
(a) Employer contributions;
(b) forfeitures; and
(c) employee after-tax contributions.
For this purpose, any excess amount applied under Sections
23.1.4 or 23.2.6 in the limitation year to reduce Employer
contributions will be considered annual additions for such
limitation year. Amounts allocated, after March 31, 1984,
to an individual medical account, as defined in Section
415(1)(1) of the Code, which is part of a pension or annuity
benefit plan maintained by the Employer, shall be treated as
annual additions to a defined contribution plan. Also,
amounts derived from contributions paid or accrued after
December 31, 1985, in taxable years ending after such date,
which are attributable to post-retirement medical benefits
allocated to the separate account of a key employee, as
defined in Section 419A(d)(3) of the Code, under a welfare
benefit fund, as defined in Section 419(e) of the Code,
maintained by the Employer, are treated as annual additions
to a defined contribution plan. Excess contributions
(including amounts recharacterized as employee after-tax
contributions) shall be treated as annual additions under
the plan.
23.5.2 "Compensation" shall mean one of the
following as elected by the Employer in the Adoption Agreement:
(i) Information required to be reported
under Sections 6041 and 6051 of the Code (Wages, Tips and
Other Compensation Box on Form W-2.): <PAGE> Compensation is
defined as wages as defined in Section 3401(a) of the Code
and all other payments of compensation to an employee by the
Employer (in the course of the Employer's trade or business)
for which the Employer is required to furnish the employee a
written statement under Sections 6041(d) and 6051(a)(3) of
the Code. Compensation must be determined without regard to
any rules under Section 3401(a) of the Code that limit the
remuneration included in wages based on the nature or
location of the employment or the services performed (such
as the exception for agricultural labor in Section
3401(a)(2) of the Code).
(ii) Section 3401(a) wages: Compensation is
defined as wages within the meaning of Section 3401(a) of
the Code for the purposes of income tax withholding at the
source but determined without regard to any rules that limit
the remuneration included in wages based on the nature or
location of the employment or the services performed (such
as the exception for agricultural labor in Section
3401(a)(2) of the Code).
(iii) 415 safe harbor compensation:
Compensation is defined as a participant's earned income,
wages, salaries, and fees for professional services 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, bonuses, fringe benefits, and reimbursements
or other expenses allowances under a nonaccountable plan (as
described in Section 1.62-2(c) of the Income Tax
Regulations), and excluding the following:
(a) Employer contributions to a plan of
deferred compensation which are not includable in the
employee's gross income for the taxable year in which
contributed, Employer contributions under a simplified
employee pension plan to the extent such contributions
are deductible by the employee, or any distributions
from a plan of deferred compensation;
(b) Amounts realized from the exercise of a
non-qualified stock option, or when restricted stock
(or property) held by the employee either becomes
freely transferable or is no longer subject to a
substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange
or other disposition of stock acquired under a
qualified stock option; and
(d) Other amounts which receive special tax
benefits, contributions made by the Employer (whether
or not under a salary reduction agreement) toward the
purchase of an annuity contract described in Section
403(b) of the Code (whether or not the contributions
are actually excludable from the gross income of the
employee).
<PAGE>
For limitation years beginning after December 31, 1991, for
purposes of applying the limitations of this Section 23,
compensation for a limitation year is the compensation
actually paid or made available during such limitation year.
Notwithstanding the preceding sentence, compensation for a
participant in a defined contribution plan who is
permanently and totally disabled (as defined in Section
22(e)(3) of the Code) is the compensation such participant
would have received for the limitation year if the
participant had been paid at the rate of compensation paid
immediately before becoming permanently and totally
disabled; such imputed compensation for the disabled
participant may be taken into account only if the
participant is not a highly compensated employee (as defined
in Section 414(q) of the Code) and contributions made on
behalf of such participant are nonforfeitable when made.
23.5.3 "Defined benefit fraction" shall mean a
fraction, the numerator of which is the sum of the participant's
projected annual benefits (as defined in Section 23.5.11) under
all the defined benefit plans (whether or not terminated)
maintained by the Employer, and the denominator of which is the
lesser of 125% of the dollar limitation determined for the
limitation year under Sections 415(b) and (d) of the Code or 140%
of the highest average compensation (as defined in Section
23.5.8), including any adjustments under Section 415(b) of the
Code. 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 shall not be less
than 125% of the sum of the annual benefits under such plans
which the participant had accrued as of the close of the last
limitation year beginning before January 1, 1987, disregarding
any changes in the terms and conditions of the plan after May 5,
1986. The preceding sentence applies only if the defined benefit
plans individually and in the aggregate satisfied the
requirements of Section 415 of the Code for all limitation years
beginning before January 1, 1987.
23.5.4 "Defined contribution dollar limitation"
shall mean $30,000 or, if greater, 25% of the defined benefit
dollar limitation set forth in Section 415(b)(1) of the Code as
in effect for the limitation year.
23.5.5 "Defined contribution fraction" shall mean a
fraction, the numerator of which is the sum of the annual
additions to the participant's account under all the defined
contribution plans (whether or not terminated) maintained by the
Employer for the current and all prior limitation years
(including the annual additions attributable to the participant's
employee after-tax contributions to all defined benefit plans,
whether or not terminated, maintained by the Employer, and the
annual additions attributable to all welfare benefit funds
defined in Section 419(e) of the Code, and individual medical
accounts defined in Section 415(l)(2) of the Code, maintained by
the Employer), and the denominator of which is the sum of the
maximum aggregate amounts for the current and all prior
limitation years of service with the Employer (regardless of
whether a defined contribution plan was maintained by the
Employer). The maximum aggregate amount in any limitation year
is the lesser of 125% of the dollar limitation in effect under
Section 415(c)(1)(A) of the Code or 35% of the participant's
compensation for such year. If the employee was a participant as
of the end of the first day of the 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 shall 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 (A)
<PAGE>
multiplied by (B), where (A) is the excess of the sum of the
fractions over 1.0, and (B) is 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 Section 415 limitation applicable to the first
limitation year beginning on or after January 1, 1987. The
annual addition for any limitation year beginning before
January 1, 1987, shall not be recomputed to treat all employee
after-tax contributions as annual additions.
23.5.6 "Employer" shall mean (for purposes of this
Section 23) the Employer that adopts this plan, and all
affiliated employers. For purposes of this Section 23,
determination of the members of a controlled group of employers
and employers under common control pursuant to Sections 414(b)
and (c) of the Code shall be made by substituting the phrase
"more than 50%" for the phrase "at least 80%" where it appears in
such Code sections.
23.5.7 "Excess amount" shall mean the excess of the
participant's annual additions for the limitation year over the
maximum permissible amount.
23.5.8 "Highest average compensation" shall mean the
average compensation for the three consecutive years of service
with the Employer that produces the highest average. A year of
service with the Employer is the 12-consecutive month period
defined in Section 1.62.
23.5.9 "Limitation year" shall mean a calendar year
or the 12-consecutive month period elected by the Employer in the
Adoption Agreement. All qualified plans maintained by the
Employer must use the same limitation year. If the limitation
year is amended to a different 12-consecutive month period, the
new limitation year must begin on a date within the limitation
year in which the amendment is made.
23.5.10 "Maximum permissible amount" shall mean the
maximum annual addition that may be contributed or allocated to a
participant's account under the plan for any limitation year,
which shall not exceed the lesser of (a) the defined contribution
dollar limitation, or (b) 25% of the participant's compensation
for the limitation year. The compensation limitation referred to
in clause (b) of the preceding sentence shall not apply to any
contribution for medical benefits (within the meaning of Sections
401(h) or 419A(f)(2) of the Code) which is otherwise treated as
an annual addition under Section 415(l)(1) or 419A(d)(2) of the
Code. If a short limitation year is created because of an
amendment changing the limitation year to a different
12-consecutive month period, the maximum permissible amount shall
not exceed the defined contribution dollar limitation multiplied
by the following fraction:
Number of months
in the short limitation year
12
23.5.11 "Projected annual benefit" shall mean the
annual retirement benefit (adjusted to an actuarially equivalent
straight life annuity if such benefit is expressed in a form
other than a straight life annuity or qualified joint and
survivor annuity) to which the participant would be entitled
under the terms of the plan assuming:
(i) the participant will continue employment
until normal retirement age under the plan (or current age,
if later), and
<PAGE>
(ii) the participant's compensation for the
current limitation year and all other relevant factors used
to determine benefits under the plan will remain constant
for all future limitation years.
23.5.12 "Regional prototype plan" shall mean a plan
which is the subject of a favorable notification letter from the
Internal Revenue Service.
SECTION 24. MISCELLANEOUS PROVISIONS:
24.1 NOTICES: Each participant who is not in service
and each beneficiary shall be responsible for furnishing the plan
administrator with his current address for the mailing of
notices, reports, and benefit payments. Any notice required or
permitted to be given to such participant or beneficiary shall be
deemed given if directed to such address and mailed by regular
United States mail, first class, postage prepaid. If any check
mailed to such address is returned as undeliverable to the
addressee, mailing of checks will be suspended until the
participant or beneficiary furnishes the proper address. This
provision shall not be construed as requiring the mailing of any
notice or notification otherwise permitted to be given by posting
or by other publication.
24.2 LOST DISTRIBUTEES: A benefit shall be deemed
forfeited if the plan administrator is unable after a reasonable
period of time, as determined by the Committee, to locate the
participant or beneficiary to whom payment is due; provided,
however, that such benefit shall be restored from current
forfeitures if a valid claim is later made by or on behalf of the
participant or beneficiary for the forfeited benefit.
24.3 RELIANCE ON DATA: The Employer, Trustee, and plan
administrator shall have the right to rely on any data provided
by the participant or any beneficiary, including representations
as to age, health, and marital status. Such representations
shall be binding upon any party seeking to claim a benefit
through a participant, and the Employer, Trustee, and plan
administrator shall have no obligation to inquire into the
accuracy of any representation made at any time by a participant
or beneficiary.
24.4 BONDING: Each fiduciary shall be bonded for each
plan year to the extent required by ERISA. The bond shall
provide protection to the plan against any loss by reason of acts
of fraud or dishonesty by the fiduciary alone or in connivance
with others. The cost of the bond shall be an expense of the
trust and shall be paid from the trust fund unless the Board
shall elect for such cost to be paid by the Employer.
24.5 RECEIPT AND RELEASE FOR PAYMENTS: Any payment
made from the plan to or with respect to any participant or
beneficiary, or pursuant to a disclaimer by a beneficiary, shall,
to the extent thereof, be in full satisfaction of all claims
hereunder against the plan, the Employer and all fiduciaries with
respect to the plan. The recipient of any payment from the plan
may be required by the Committee, as a condition precedent to
such payment, to execute a receipt and release with respect
thereto in such form as shall be acceptable to the Committee.
24.6 NO GUARANTEE: The Trustee, the Committee, and the
Employer in no way guarantee the trust fund from loss or
depreciation, nor do they guarantee the payment of any money or
other assets from the trust fund that may be or become due to any
person. Nothing herein contained shall give any participant or
beneficiary an interest in any specific part of the trust fund or
any other interest except the right to receive benefits from the
trust fund in accordance with the provisions of the plan and
trust.
24.7 HEADINGS: The headings and subheadings of the
plan have been inserted for convenience of reference and are to
be ignored in any construction of the provisions hereof.
<PAGE>
24.8 CONTINUATION OF EMPLOYMENT: The establishment of
the plan shall not be construed as conferring any legal or other
rights upon any employee or any persons for continuation of
employment, nor shall it interfere with the right of the Employer
to discharge any employee or to deal with him without regard to
the effect thereof under the plan.
24.9 CONSTRUCTION: The provisions of the plan shall be
construed and enforced according to the laws of the state
indicated in the Adoption Agreement, except to the extent such
laws shall be superseded by the provisions of ERISA.
<PAGE>
AON CONSULTING
PROTOTYPE PROFIT SHARING
AND
EMPLOYEE SAVINGS PLAN AND TRUST
<PAGE>
TABLE OF CONTENTS
PROTOTYPE PROFIT SHARING
AND
EMPLOYEE SAVINGS PLAN AND TRUST
Page
Section 1. Definitions 1
Section 2. Contributions to the Trust and Allocation
Thereof 20
2.1 Elective deferrals 20
2.2 Employee after-tax contributions 27
2.3 Matching contributions 28
2.4. Discretionary Employer contributions 34
2.5 Voluntary deductible employee contributions 34
2.6 Mandatory employee contributions 34
2.7 Maximum contribution permitted 34
2.8 Requirement of current or accumulated net profits 34
Section 3. Retirement; Termination of Service; Death;
Entry of Qualified Domestic Relations Order 35
3.1 Normal retirement 35
3.2 Early retirement 35
3.3 Delayed retirement 35
3.4 Death 35
3.5 Disability 35
3.6 Termination of service 35
3.7 Cash-out distributions 37
3.8 Limitations on certain distributions 37
3.9 Entry of a qualified domestic relations order 37
Section 4. Payment of Benefits 37
4.1 Distribution of accrued benefits 37
4.2 Payment of death benefits 40
4.3 Transitional rule for required distributions 43
4.4 Definitions applicable to plan distributions 44
4.5 Distributions to alternate payees 46
4.6 Interim payments 46
4.7 Continued share in profits or losses of trust
fund 46
4.8 Medium of distributions 46
4.9 Daily adjustment dates 47
Section 5. Vesting 47
5.1 Vesting upon the occurrence of certain events 47
5.2 Service requirement for vesting 47
5.3 Forfeiture of non-vested benefits 48
Section 6. In-Service Withdrawals and Loans 49
6.1 Withdrawal of matching contributions and
discretionary Employer contributions 49
6.2 Withdrawal of employee after-tax contributions 50
6.3 Withdrawal of rollover contributions 50
<PAGE>
6.4 Distributions on or after attainment of age 59 1/2 51
6.5 Hardship distributions 51
6.6 Loans 53
Section 7. Adjustment of Participant Accounts 57
7.1 Establishment of accounts 57
7.2 General 57
Section 8. Participant Directed Investments 57
8.1 Participant directed investments 57
8.2 Rights in directed investment funds 58
8.3 Effect of participant loans 58
8.4 Distributions from directed separate accounts 58
8.5 Accounts not subject to participant direction 59
8.6 Authority of Trustee and Committee 59
Section 9. Investments in Employer stock 59
9.1 Employer stock fund 59
9.2 Compliance with the Securities Act of 1933 and
the Securities Exchange Act of 1934 59
9.3 Right of first refusal 59
9.4 Voting of Employer stock 60
9.5 Tendering 61
Section 10. Administration by Committee 63
10.1 Membership of Committee 63
10.2 Committee officers; Subcommittee 63
10.3 Committee meetings 63
10.4 Transaction of business 63
10.5 Committee records 63
10.6 Establishment of rules 63
10.7 Conflicts of interest 63
10.8 Correction of errors 64
10.9 Authority to interpret plan 64
10.10 Third party advisors 64
10.11 Compensation of members 64
10.12 Committee expenses 64
10.13 Requirement of writing 64
10.14 Indemnification of Committee 64
Section 11. Management of Funds and Amendment or Termination
of Plan 65
11.1 Fiduciary duties 66
11.2 Adoption of plan 66
11.3 Requirement of writing 66
Section 12. Allocation of Responsibilities Among Named
Fiduciaries 66
12.1 Duties of named fiduciaries 66
12.2 Co-fiduciary liability 69
<PAGE>
Section 13. Benefits Not Assignable; Facility of Payments 69
13.1 Benefits not assignable 69
13.2 Payment to minors and others 69
Section 14. Termination of Plan and Trust; Removal of
Trustee; Merger or Consolidation of Plan 69
14.1 Complete termination 69
14.2 Partial termination 70
14.3 Removal and resignation of Trustee 70
14.4 Merger or consolidation 70
Section 15. Communication to Participants 70
Section 16. Claims Procedure 70
16.1 Filing of a claim for benefits 70
16.2 Notification to claimant of decision 70
16.3 Procedure for review 71
16.4 Decision on review 71
16.5 Action by authorized representative of claimant 71
Section 17. Previously Existing Qualified Plans of the
Employer 72
Section 18. Special Provisions Relating to Transfers From
Qualified Plans 72
18.1 Certain transfers to the plan not permitted 72
18.2 Nonforfeitability of transferred assets 72
18.3 Protected benefits under Section 411(d)(6) of
the Code 72
18.4 Liability of Trustee 72
18.5 Separate accounts 73
18.6 General 73
Section 19. Rollovers 73
19.1 Acceptance of rollovers by this plan 73
19.2 Rollover distributions 74
Section 20. Trust Provisions 75
20.1 Trustee's powers 75
20.2 Accountings 80
20.3 Compensation of Trustee 81
20.4 Responsibilities and scope of duties of Trustee 81
20.5 Failure to direct Trustee 82
20.6 Indemnification of Trustee 82
20.7 Modification of this Section 82
Section 21. Qualification of Plan 82
21.1 Non-standardized plans 83
21.2 Denial of qualification 83
21.3 Notification of Sponsor 83
Section 22. Special Top-Heavy Provisions 84
22.1 Definitions 84
22.2 Top-heavy requirements 87
<PAGE>
Section 23. Limitations on Allocations 88
23.1 Limitations on allocations 88
23.2 Participation in multiple regional prototype
defined contribution plans 89
23.3 Participation in two or more defined
contribution plans 90
23.4 Participation in this plan and a defined
benefit plan 90
23.5 Definitions 90
Section 24. Miscellaneous Provisions 94
24.1 Notices 94
24.2 Lost distributees 95
24.3 Reliance on data 95
24.4 Bonding 95
24.5 Receipt and release for payments 95
24.6 No guarantee 95
24.7 Headings 95
24.8 Continuation of employment 95
24.9 Construction 96
EXHIBIT 5
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
1100 COMMERCE STREET
DALLAS, TX 75242
Date: FEB 18 1997
Employer Identification Number:
INVESTORS FIDUCIARY TRUST COMPANY 43-0995254
ATTN: MR. STEPHEN R. HILLIARD File Folder Number:
C/0 THOMAS R. BROUS 430002772
STINSON, MAG & FIZZELL Person to Contact:
1201 WALNUT STREET, STE 2800 CUSTOMER SERVICE DIVISION(sic)
KANSAS CITY, MO 64106 Contact Telephone Number:
(800) 829-1040
Plan Name:
INVESTORS FIDUCIARY TRUST
COMPANY INVESTMENT
SAVINGS 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 December 15, 1995.
This plan has been mandatorily disaggregated, permissively
aggregated, or restructured to satisfy the nondiscrimination
requirements.
This plan satisfies the nondiscrimination in amount
requirement of section 1.401(a)(4)-l(b)(2) of the regulations on
the basis of a design-based safe harbor described in the
regulations.
This letter is issued under Rev. Proc. 93-39 and considers
the amendments required by the Tax Reform Act of 1986 except as
otherwise specified in this letter.
This plan satisfies the nondiscriminatory current
availability requirements of section 1.401(a)(4)-4(b) of the
regulations with respect to those benefits, rights, and features
that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's coverage group
consists of those employees treated as currently benefiting for
purposes of demonstrating that the plan satisfies the minimum
coverage requirements of <PAGE> section 410(b) of the Code.
This letter may not be relied upon with respect to whether
the plan satisfies the qualification requirements as amended by
the Uruguay Round Agreements Act, Pub. L. 103-465.
The information on the enclosed addendum is an integral part
of this determination. Please be sure to read and keep it with
this letter.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact
the person whose name and telephone number are shown above.
Sincerely yours,
/s/ Bobby E. Scott
Bobby E. Scott
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans Addendum
<PAGE>
This Determination Letter also applies to the following
Amendements (sic): Amendment # 1 adopted February 26, 1996;
Amendment # 2 adopted July 12, 1996; and Amendment 3 adopted
December 20, 1996.
EXHIBIT 15.1
The Stockholders and Board of Directors
State Street Corporation
We are aware of the incorporation by reference in the
Registration Statement on Form S-8 of State Street Corporation
pertaining to the Investors Fiduciary Trust Company Investment
Savings Plan of our reports dated April 11, 1997 and July 14,
1997 relating to the unaudited consolidated interim financial
statements of State Street Corporation that are included in its
Forms 10-Q for the quarters ended March 31, 1997 and June 30,
1997.
Pursuant to Rule 436(c) of the Securities Act of 1933, our
reports are not a part of the registration statement prepared or
certified by accountants within the meaning of Section 7 or 11 of
the Securities Act of 1933.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Boston, Massachusetts
September 24, 1997
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to this reference to our firm under the caption
"Interests of Named Experts and Counsel" in the Registration
Statement on Form S-8 to be filed on September 30, 1997,
pertaining to the Investors Fiduciary Trust Company Investment
Savings Plan and to the incorporation by reference therein to our
report dated January 14, 1997, with respect to the consolidated
financial statements of State Street Corporation incorporated by
reference in its annual report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Boston, Massachusetts
September 24, 1997
