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As filed with the Securities and Exchange Commission on June 13, 1997
File No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Hub Group, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 36-4007085
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
377 East Butterfield Road, Suite 700
Lombard, Illinois 60148
(Address of Principal Executive Offices) (Zip Code)
Hub Group Employee Profit Sharing Plan and Trust*
Hub City North Central, L.P. 401(k) Profit Sharing Plan
(Full Title of Each of the Plans)
*Additional registrants are listed on the attached page.
Mark A. Yeager
Hub Group, Inc.
377 East Butterfield Road, Suite 700
Lombard, Illinois 60148
(Name and Address of Agent For Service)
(630) 271-3600
(Telephone Number, Including Area Code, of Agent For Service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Title Of Amount Offering Aggregate Amount of
Securities To Be Price Per Offering Registration
To Be Registered(1) Registered Share(2) Price Fee
- ------------------------------------------------------------------------------
Class A Common Stock,
par value $.01 per
share . . . . . . . 200,000 Shares(3) $27.44 $5,488,000 $1,663.03
==============================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
(2) Pursuant to Rule 457(h)(1), computed on the basis of the average of the
high and low sales prices on June 10, 1997.
(3) The number of shares of Class A Common Stock to be registered may be
adjusted in accordance with the provisions of the Plans in the event
that, during the periods that the Plans are in effect, the number of
shares of Class A Common Stock is increased or decreased or such shares
are changed into or exchanged for a different number or kind of
shares of stock or other securities of the Company through
reorganization, merger or consolidation, recapitalization, stock
split, split-up, combination, exchange of shares, declaration of any
Class A Common Stock dividends or similar events without receipt of
consideration by the Company. Accordingly, this Registration Statement
covers, in addition to the number of shares of Class A Common Stock
stated above, an indeterminate number of shares which by reason of
any such events may be issued in accordance with the provisions of the
Plans.
</TABLE>
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ADDITIONAL REGISTRANTS
(Exact Names of Registrants as Specified in Their Respective Charters)
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub Group, Inc.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Atlanta, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Mid-Atlantic, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Alabama, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Boston, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Terminals, INC.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Cleveland, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Dallas, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Detroit, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Houston, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Indianapolis, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Florida, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Kansas City, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Los Angeles, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Tennessee, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City New Orleans, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City New York/New Jersey, L.P.
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Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Philadelphia, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Pittsburgh, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Portland, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City New York State, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Rio Grande, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Golden Gate, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City St. Louis, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City Ohio, L.P.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub Group Distribution Services
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by HLX Company, L.L.C.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Quality Services, L.L.C.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Quality Services of Michigan, L.L.C.
Hub Group Employee Profit Sharing Plan and Trust, as maintained
by Hub City New Haven, L.P.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by
Hub Group, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission (the "Commission") pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), File No. 0-27754, are incorporated by reference herein and
shall be deemed to be a part hereof:
(a) Annual Report on Form 10-K for the Year ended December 31,
1996;
(b) Quarterly Report on Form 10-Q for the Quarter ended March 31,
1997; and
(c) The description of Class A Common Stock included in the
Company's Registration Statement on Form 8-A filed with
the Commission on February 13, 1996.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated herein by reference and shall be deemed a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) The Delaware General Corporation Law ("GCL") (Section
145) gives Delaware corporations broad powers to indemnify their
present and former directors and officers and those of affiliated
corporations against expenses incurred in the defense of any
lawsuit to which they are made parties by reason of being or
having been such directors or officers, subject to specified
conditions and exclusions, gives a director or officer who
successfully defends an action the right to be so indemnified,
and authorizes the Registrant to buy directors' and officers'
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liability insurance. Such indemnification is not exclusive of
any other rights to which those indemnified may be entitled under
any by-laws, agreement, vote of stockholders or otherwise.
(b) Article Eleventh of the Certificate of Incorporation of
the Registrant permits, and Article VI of the By-Laws of the
Registrant provides for, indemnification of directors, officers,
employees and agents to the fullest extent permitted by law.
(c) In accordance with Section 102(b)(7) of the Delaware
GCL, the Registrant's Certificate of Incorporation provides that
directors shall not be liable for monetary damages for breaches
of their fiduciary duty as directors except to the extent such
exemption from liability or limitation thereof is not permitted
under the Delaware GCL as the same exists or may be amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits which is incorporated herein by
reference.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii)
do not apply if the registration statement is on Form
S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the registrant pursuant to section 13 or section 15(d)
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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.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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 Securities Act of 1933 and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Lombard, Illinois, on
June 13, 1997.
HUB GROUP, INC.
By /s/ David P. Yeager
------------------------------
David P. Yeager
Chief Executive Officer
and Vice Chairman
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes
and appoints David P. Yeager, Mark A. Yeager, William L. Crowder
and Thomas L. Hardin and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place
and stead of the undersigned, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to
this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and hereby grants to
such attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and
purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
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Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons in the capacities indicated on June 13, 1997.
Title
-----
/s/ David P. Yeager
- ------------------------------------ Vice-Chairman, Chief Executive Officer
David P. Yeager and Director
/s/ William L. Crowder
- ------------------------------------ Vice President - Finance and Chief
William L. Crowder Financial Officer (Principal Financial
and Accounting Officer)
/s/ Phillip C. Yeager
- ------------------------------------ Chairman and Director
Phillip C. Yeager
/s/ Thomas L. Hardin
- ------------------------------------ President, Chief Operating Officer
Thomas L. Hardin and Director
/s/ Charles R. Reaves
- ----------------------------------- Director
Charles R. Reaves
/s/ Martin P. Slark
- ----------------------------------- Director
Martin P. Slark
/s/ Gary D. Eppen
- ----------------------------------- Director
Gary D. Eppen
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Pursuant to the requirements of the Securities Act of 1933,
as amended, the trustees (or other persons who administer the
employee benefit plans) have duly caused this Registration
Statement to be signed on the plans' behalf by the undersigned,
thereunto duly authorized, in the City of Lombard, Illinois, on
June 13, 1997.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB GROUP, INC.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY ATLANTA, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY MID-ATLANTIC, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY ALABAMA, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY BOSTON, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY TERMINALS, INC.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY CLEVELAND, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY DALLAS, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY DETROIT, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY HOUSTON, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY INDIANAPOLIS, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY FLORIDA, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY KANSAS CITY, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY LOS ANGELES, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY TENNESSEE, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY NEW ORLEANS, L.P.
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HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY NEW YORK/NEW JERSEY, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY PHILADELPHIA, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY PITTSBURGH, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY PORTLAND, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY NEW YORK STATE, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY RIO GRANDE, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY GOLDEN GATE, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY ST. LOUIS, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY OHIO, L.P.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB GROUP DISTRIBUTION SERVICES
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HLX COMPANY, L.L.C.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY QUALITY SERVICES, L.L.C.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY QUALITY SERVICES OF MICHIGAN,
L.L.C.
HUB GROUP EMPLOYEE PROFIT SHARING PLAN AND TRUST,
AS MAINTAINED BY HUB CITY NEW HAVEN, L.P.
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HUB CITY NORTH CENTRAL, L.P. 401(K) PROFIT SHARING
PLAN
By /s/ David P. Yeager
----------------------------------
David P. Yeager
Chief Executive Officer
and Vice Chairman of Hub
Group, Inc.
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EXHIBIT INDEX
Exhibit Sequential
Number Description of Exhibit Page Number
- ------- ---------------------- -----------
4.1 Restated Certificate of Incorporation
(incorporated by reference to Exhibits 3.1
and 3.3 to Registration Statement on Form S-1,
Registration Statement No. 33-90210)
4.2 By-Laws (incorporated by reference to
Exhibit 3.2 to Registration Statement on
Form S-1, Registration Statement No. 33-90210)
4.3 Hub City North Central, L.P. 401(k) Profit
Sharing Plan . . . . . . . . . . . . . . . . .
4.4 Form of Hub Group Employee Profit Sharing
Plan and Trust for each of the other
registrants. . . . . . . . . . . . . . . . . .
5.1 Opinion of Mayer, Brown & Platt. . . . . . . .
23.1 Consent of Mayer, Brown & Platt (included in
Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP . . . . . . . .
24.1 Powers of Attorney (included on the
signature page of the registration
statement)
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ADOPTION AGREEMENT #005
NONSTANDARDIZED CODE SECTION 401(k) PROFIT SHARING PLAN
The undersigned, HUB CITY NORTH CENTRAL, L.P. ("Employer"), by
executing this Adoption Agreement, elects to become a participating
Employer in the ASSOCIATED BANK, N.A. Defined Contribution Prototype Plan
(basic plan document #01) by adopting the accompanying Plan and Trust in
full as if the Employer were a signatory to that Agreement. The Employer
makes the following elections granted under the provisions of the Prototype
Plan.
ARTICLE I
DEFINITIONS
1.02 TRUSTEE. The Trustee executing this Adoption Agreement is:
(Choose (a) or (b))
[X] (a) A discretionary Trustee. See Section 10.03[A] of the Plan.
[ ] (b) A nondiscretionary Trustee. See Section 10.03[B] of the
Plan. [Note: The Employer may not elect Option (b) if a Custodian
executes the Adoption Agreement.]
1.03 PLAN. The name of the Plan as adopted by the Employer is
HUB CITY NORTH CENTRAL, L.P. 401(K) PROFIT SHARING PLAN.
1.07 EMPLOYEE. The following Employees are not eligible to
participate in the Plan: (Choose (a) or at least one of (b) through (g))
[ ] (a) No exclusions.
[ ] (b) Collective bargaining employees (as defined in Section
1.07 of the Plan). [Note: If the Employer excludes union
employees from the Plan, the Employer must be able to provide
evidence that retirement benefits were the subject of good
faith bargaining.]
[ ] (c) Nonresident aliens who do not receive any earned income (as
defined in Code Section 911(d)(2)) from the Employer which constitutes
United States source income (as defined in Code Section 861(a)(3)).
[ ] (d) Commission Salesmen.
[ ] (e) Any Employee compensated on a salaried basis.
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[ ] (f) Any Employee compensated on an hourly basis.
[X] (g) (Specify) EMPLOYEES WHO ARE SCHEDULED TO WORK LESS THAN
1000 HOURS DURING THE YEAR.
Leased Employees. Any Leased Employee treated as an Employee under
Section 1.31 of the Plan, is: (Choose (h) or (i))
[X] (h) Not eligible to participate in the Plan.
[ ] (i) Eligible to participate in the Plan, unless excluded by
reason of an exclusion classification elected under this Adoption
Agreement Section 1.07.
Related Employers. If any member of the Employer's related group (as
defined in Section 1.30 of the Plan) executes a Participation Agreement to
this Adoption Agreement, such member's Employees are eligible to
participate in this Plan, unless excluded by reason of an exclusion
classification elected under this Adoption Agreement Section 1.07. In
addition: (Choose (j) or (k))
[X] (j) No other related group member's Employees are eligible to
participate in the Plan.
[ ] (k) The following nonparticipating related group member's
Employees are eligible to participate in the Plan unless excluded
by reason of an exclusion classification elected under this
Adoption Agreement Section 1.07:___________________________________.
1.12 COMPENSATION.
Treatment of elective contributions. (Choose (a) or (b))
[X] (a) "Compensation" includes elective contributions made by
the Employer on the Employee's behalf.
[ ] (b) "Compensation" does not include elective contributions.
Modifications to Compensation definition. (Choose (c) or at least
one of (d) through (j))
[ ] (c) No modifications other than as elected under Options (a)
or (b).
[ ] (d) The Plan excludes Compensation in excess of $_________.
[X] (e) In lieu of the definition in Section 1.12 of the Plan,
Compensation means any earnings reportable as W-2 wages for
Federal income tax withholding purposes, subject to any other
election under this Adoption Agreement Section 1.12.
[ ] (f) The Plan excludes bonuses.
[ ] (g) The Plan excludes overtime.
[ ] (h) The Plan excludes Commissions.
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[ ] (i) Compensation will not include Compensation from a related
employer (as defined in Section 1.30 of the Plan) that has not
executed a Participation Agreement in this Plan unless, pursuant
to Adoption Agreement Section 1.07, the Employees of that related
employer are eligible to participate in this Plan.
[X] (j) (Specify) THE PLAN EXCLUDES CAR EXPENSES______________________
___________________________________________________.
If, for any Plan Year, the Plan uses permitted disparity in the
contribution or allocation formula elected under Article III, any election
of Options (f), (g), (h) or (j) is ineffective for such Plan Year with
respect to any Nonhighly Compensated Employee.
Special definition for matching contributions. "Compensation" for
purposes of any matching contribution formula under Article III
means: (Choose (k) or (l) only if applicable)
[X] (k) Compensation as defined in this Adoption Agreement
Section 1.12.
[ ] (l) (Specify)____________________________________________________
____________________.
Special definition for salary reduction contributions. An Employee's
salary reduction agreement applies to his Compensation determined prior to
the reduction authorized by that salary reduction agreement, with the
following exceptions: (Choose (m) or at least one of (n) or (o), if
applicable)
[X] (m) No exceptions.
[ ] (n) If the Employee makes elective contributions to another plan
maintained by the Employer, the Advisory Committee will determine
the amount of the Employee's salary reduction contribution for the
withholding period: (Choose (1) or (2))
[ ] (1) After the reduction for such period of elective
contributions to the other plan(s).
[ ] (2) Prior to the reduction for such period of elective
contributions to the other plan(s).
[ ] (o) (Specify)____________________________________________________
__________________.
1.17 PLAN YEAR/LIMITATION YEAR.
Plan Year. Plan Year means: (Choose (a) or (b))
[X] (a) The 12 consecutive month period ending every December 31.
[ ] (b) (Specify)_____________________________________________________
____________________.
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Limitation Year. The Limitation Year is: (Choose (c) or (d))
[X] (c) The Plan Year.
[ ] (d) The 12 consecutive month period ending every ___.
1.18 EFFECTIVE DATE.
New Plan. The "Effective Date" of the Plan is _______________.
Restated Plan. The restated Effective Date is January 1, 1987.
This Plan is a substitution and amendment of an existing retirement
plan(s) originally established January 1, 1985. [Note: See the
Effective Date Addendum.]
1.27 HOUR OF SERVICE. The crediting method for Hours of
Service is: (Choose (a) or (b))
[X] (a) The actual method.
[ ] (b) The _ equivalency method, except:
[ ] (1) No exceptions.
[ ] (2) The actual method applies for purposes of: (Choose
at least one)
[ ] (i) Participation under Article II.
[ ] (ii) Vesting under Article V.
[ ] (iii) Accrual of benefits under Section 3.06.
[Note: On the blank line, insert "daily," "weekly," "semi-monthly payroll
periods" or "monthly."]
1.29 SERVICE FOR PREDECESSOR EMPLOYER. In addition to the
predecessor service the Plan must credit by reason of Section 1.29
of the Plan, the Plan credits Service with the following
predecessor employer(s): _____N/A____. Service with the designated
predecessor employer(s) applies: (Choose at least one of (a) or
(b); (c) is available only in addition to (a) or (b))
[ ] (a) For purposes of participation under Article II.
[ ] (b) For purposes of vesting under Article V.
[ ] (c) Except the following Service:_____________.
[Note: If the Plan does not credit any predecessor service under
this provision, insert "N/A" in the first blank line. The Employer
may attach a schedule to this Adoption Agreement, in the same
format as this Section 1.29, designating additional predecessor
employers and the applicable service crediting elections.]
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1.31 LEASED EMPLOYEES. If a Leased Employee is a Participant
in the Plan and also participates in a plan maintained by the leasing
organization: (Choose (a) or (b))
[X] (a) The Advisory Committee will determine the Leased Employee's
allocation of Employer contributions under Article III without
taking into account the Leased Employee's allocation, if any,
under the leasing organization's plan.
[ ] (b) The Advisory Committee will reduce a Leased Employee's
allocation of Employer nonelective contributions (other than
designated qualified nonelective contributions) under this Plan by
the Leased Employee's allocation under the leasing organization's
plan, but only to the extent that allocation is attributable to
the Leased Employee's service provided to the Employer. The
leasing organization's plan:
[ ] (1) Must be a money purchase plan which would satisfy the
definition under Section 1.31 of a safe harbor plan,
irrespective of whether the safe harbor exception applies.
[ ] (2) Must satisfy the features and, if a defined benefit
plan, the method of reduction described in an addendum to
this Adoption Agreement, numbered 1.31.
ARTICLE II
EMPLOYEE PARTICIPANTS
2.01 ELIGIBILITY.
Eligibility conditions. To become a Participant in the Plan, an Employee
must satisfy the following eligibility conditions: (Choose (a) or (b) or
both; (c) is optional as an additional election)
[X] (a) Attainment of age 18 (specify age, not exceeding 21).
[X] (b) Service requirement. (Choose one of (1) through (3))
[ ] (1) One Year of Service.
[ ] (2) __ months (not exceeding 12) following the Employee's
Employment Commencement Date.
[X] (3) One Hour of Service.
[ ] (c) Special requirements for non-401(k) portion of plan.
(Make elections under (1) and under (2))
(1) The requirements of this Option (c) apply to
participation in: (Choose at least one of (i) through
(iii))
[ ] (i) The allocation of Employer nonelective
contributions and Participant forfeitures.
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[ ] (ii) The allocation of Employer matching
contributions (including forfeitures allocated as
matching contributions).
[ ] (iii) The allocation of Employer qualified nonelective
contributions.
(2) For participation in the allocations described in (1),
the eligibility conditions are: (Choose at least one of
(i) through (iv))
[ ] (i) _ (one or two) Year(s) of Service, without
an intervening Break in Service (as described in
Section 2.03(A) of the Plan) if the requirement
is two Years of Service.
[ ] (ii) _ months (not exceeding 24) following the
Employee's Employment Commencement Date.
[ ] (iii) One Hour of Service.
[ ] (iv) Attainment of age _ (Specify age, not exceeding 21).
Plan Entry Date. "Plan Entry Date" means the Effective Date and:
(Choose (d), (e) or (f))
[ ] (d) Semi-annual Entry Dates. The first day of the Plan Year
and the first day of the seventh month of the Plan Year.
[ ] (e) The first day of the Plan Year.
[X] (f) (Specify entry dates) THE FIRST DAY OF EACH MONTH.
Time of Participation. An Employee will become a Participant (and, if
applicable, will participate in the allocations described in Option
(c)(1)), unless excluded under Adoption Agreement Section 1.07, on the Plan
Entry Date (if employed on that date): (Choose (g), (h) or (i))
[X] (g) immediately following
[ ] (h) immediately preceding
[ ] (i) nearest
the date the Employee completes the eligibility conditions described in
Options (a) and (b) (or in Option (c)(2) if applicable) of this Adoption
Agreement Section 2.01. [Note: The Employer must coordinate the selection
of (g), (h) or (i) with the "Plan Entry Date" selection in (d), (e) or (f).
Unless otherwise excluded under Section 1.07, the Employee must become a
Participant by the earlier of: (1) the first day of the Plan Year beginning
after the date the Employee completes the age and service requirements of
Code Section 410(a); or (2) 6 months after the date the Employee completes
those requirements.]
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<PAGE>
Dual eligibility. The eligibility conditions of this Section 2.01
apply to: (Choose (j) or (k))
[X] (j) All Employees of the Employer, except: (Choose (1) or (2))
[X] (1) No exceptions.
[ ] (2) Employees who are Participants in the Plan as of the
Effective Date.
[ ] (k) Solely to an Employee employed by the Employer
after_______________. If the Employee was employed by the
Employer on or before the specified date, the Employee will
become a Participant: (Choose (1), (2) or (3))
[ ] (1) On the latest of the Effective Date, his Employment
Commencement Date or the date he attains age _ (not to
exceed 21).
[ ] (2) Under the eligibility conditions in effect under the
Plan prior to the restated Effective Date. If the
restated Plan required more than one Year of Service to
participate, the eligibility condition under this Option
(2) for participation in the Code Section 401(k) arrangement
under this Plan is one Year of Service for Plan Years
beginning after December 31, 1988. [For restated plans
only]
[ ] (3) (Specify)________________________________________________.
2.02 YEAR OF SERVICE - PARTICIPATION.
Hours of Service. An Employee must complete: (Choose (a) or (b))
[ ] (a) 1,000 Hours of Service
[X] (b) 1 Hours of Service
during an eligibility computation period to receive credit for a
Year of Service. [Note: The Hours of Service requirement may not
exceed 1,000.]
Eligibility computation period. After the initial eligibility
computation period described in Section 2.02 of the Plan, the Plan
measures the eligibility computation period as: (Choose (c) or (d))
[ ] (c) The 12 consecutive month period beginning with each
anniversary of an Employee's Employment Commencement Date.
[X] (d) The Plan Year, beginning with the Plan Year which includes the
first anniversary of the Employee's Employment Commencement Date.
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<PAGE>
2.03 BREAK IN SERVICE - PARTICIPATION. The Break in Service
rule described in Section 2.03(B) of the Plan: (Choose (a) or (b))
[X] (a) Does not apply to the Employer's Plan.
[ ] (b) Applies to the Employer's Plan.
2.06 ELECTION NOT TO PARTICIPATE. The Plan: (Choose (a) or (b))
[X] (a) Does not permit an eligible Employee or a Participant to
elect not to participate.
[ ] (b) Does permit an eligible Employee or a Participant to
elect not to participate in accordance with Section 2.06 and
with the following rules: (Complete (1), (2), (3) and (4))
(1) An election is effective for a Plan Year if filed no
later than _________________.
(2) An election not to participate must be effective for
at least __ Plan Year(s).
(3) Following a re-election to participate, the Employee
or Participant:
[ ] (i) May not again elect not to participate for any
subsequent Plan Year.
[ ] (ii) May again elect not to participate, but not
earlier than the _______ Plan Year following the Plan
Year in which the re-election first was effective.
(4) (Specify) N/A [Insert "N/A" if no other rules apply].
ARTICLE III
EMPLOYER CONTRIBUTIONS AND FORFEITURES
3.01 AMOUNT.
Part I. [Options (a) through (g)] Amount of Employer's contribution. The
Employer's annual contribution to the Trust will equal the total amount of
deferral contributions, matching contributions, qualified nonelective
contributions and nonelective contributions, as determined under this
Section 3.01. (Choose any combination of (a), (b), (c) and (d), or choose (e))
[X] (a) Deferral contributions (Code Section 401(k) arrangement).
(Choose (1) or (2) or both)
[X] (1) Salary reduction arrangement. The Employer must
contribute the amount by which the Participants have reduced
their Compensation for the Plan Year, pursuant to their
salary reduction agreements on file with the Advisory
Committee. A reference in the Plan to salary reduction
contributions is a reference to these amounts.
21
<PAGE>
[ ] (2) Cash or deferred arrangement. The Employer will
contribute on behalf of each Participant the portion of
the Participant's proportionate share of the cash or
deferred contribution which he has not elected to receive
in cash. See Section 14.02 of the Plan. The Employer's
cash or deferred contribution is the amount the Employer
may from time to time deem advisable which the Employer
designates as a cash or deferred contribution prior to
making that contribution to the Trust.
[X] (b) Matching contributions. The Employer will make matching
contributions in accordance with the formula(s) elected in Part II
of this Adoption Agreement Section 3.01.
[X] (c) Designated qualified nonelective contributions. The
Employer, in its sole discretion, may contribute an amount
which it designates as a qualified nonelective contribution.
[X] (d) Nonelective contributions. (Choose any combination of (1)
through (4))
[X] (1) Discretionary contribution. The amount (or
additional amount) the Employer may from time to time deem
advisable.
[ ] (2) The amount (or additional amount) the Employer may
from time to time deem advisable, separately determined for
each of the following classifications of Participants: (Choose
(i) or (ii))
[ ] (i) Nonhighly Compensated Employees and Highly
Compensated Employees.
[ ] (ii) (Specify classifications) ___________________.
Under this Option (2), the Advisory Committee will allocate
the amount contributed for each Participant classification in
accordance with Part II of Adoption Agreement Section 3.04, as
if the Participants in that classification were the only
Participants in the Plan.
[ ] (3) ___% of the Compensation of all Participants under
the Plan, determined for the Employer's taxable year for
which it makes the contribution. [Note: The percentage
selected may not exceed 15%.]
[ ] (4) ___% of Net Profits but not more than $__________.
[ ] (e) Frozen Plan. This Plan is a frozen Plan effective ______. The
Employer will not contribute to the Plan with respect to any
period following the stated date.
Net Profits. The Employer: (Choose (f) or (g))
[X] (f) Need not have Net Profits to make its annual contribution
under this Plan.
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<PAGE>
(g) Must have current or accumulated Net Profits exceeding $______
to make the following contributions: (Choose at least one)
[ ] (1) Cash or deferred contributions described in Option
(a)(2).
[ ] (2) Matching contributions described in Option (b),
except: _______________.
[ ] (3) Qualified nonelective contributions described in
Option (c).
[ ] (4) Nonelective contributions described in Option (d).
The term "Net Profits" means the Employer's net income or profits for any
taxable year determined by the Employer upon the basis of its books of
account in accordance with generally accepted accounting practices
consistently applied without any deductions for Federal and state taxes
upon income or for contributions made by the Employer under this Plan or
under any other employee benefit plan the Employer maintains. The term "Net
Profits" specifically excludes___________________________________________
___________________. [Note: Enter "N/A" if no exclusions apply.]
If the Employer requires Net Profits for matching contributions and the
Employer does not have sufficient Net Profits under Option (g), it will
reduce the matching contribution under a fixed formula on a prorata basis for
all Participants. A Participant's share of the reduced contribution will bear
the same ratio as the matching contribution the Participant would have
received if Net Profits were sufficient bears to the total matching
contribution all Participants would have received if Net Profits were
sufficient. If more than one member of a related group (as defined in
Section 1.3 execute this Adoption Agreement, each participating member will
determine Net Profits separately but will not apply this reduction unless,
after combining the separately determined Net Profits, the aggregate Net
Profits are insufficient to satisfy the matching contribution liability.
"Net Profits" includes both current and accumulated Net Profits.
Part II. [Options (h) through (j)] Matching contribution formula. [Note:
If the Employer elected Option (b), complete Options (h), (i) and (j).]
[X] (h) Amount of matching contributions. For each Plan Year,
the Employer's matching contribution is: (Choose any
combination of (1), (2), (3), (4) and (5))
[ ] (1) An amount equal to ___% of each Participant's eligible
contributions for the Plan Year.
[ ] (2) An amount equal to ___% of each Participant's first tier of
eligible contributions for the Plan Year, plus the following
matching percentage(s) for the following subsequent tiers of
eligible contributions for the Plan _________________________
_____________________________________________________________.
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<PAGE>
[X] (3) Discretionary formula.
[X] (i) An amount (or additional amount) equal to a
matching percentage the Employer from time to
time may deem advisable of the Participant's
eligible contributions for the Plan Year.
[ ] (ii) An amount (or additional amount) equal to
a matching percentage the Employer from time to
time may deem advisable of each tier of the
Participant's eligible contributions for the
Plan Year.
[ ] (4) An amount equal to the following percentage of each
Participant's eligible contributions for the Plan Year,
based on the Participant's Years of Service:
Number of Years of Service Matching Percentage
-------------------------- -------------------
---- ----
---- ----
---- ----
---- ----
The Advisory Committee will apply this formula by
determining Years of Service as follows:__________________
_______________________________________________.
[X] (5) A Participant's matching contributions may not:
(Choose (i) or (ii))
[X] (i) Exceed ___1,250.00___.
[ ] (ii) Be less than __________________________________
______________________.
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<PAGE>
Related Employers. If two or more related employers (as defined in
Section 1.30) contribute to this Plan, the related employers may
elect different matching contribution formulas by attaching to the
Adoption Agreement a separately completed copy of this Part II.
Note: Separate matching contribution formulas create separate
current benefit structures that must satisfy the minimum
participation test of Code Section 401(a)(26).]
[X] (i) Definition of eligible contributions. Subject to the
requirements of Option (j), the term "eligible contributions"
means: (Choose any combination of (1) through (3))
[X] (1) Salary reduction contributions.
[ ] (2) Cash or deferred contributions (including any part of
the Participant's proportionate share of the cash or
deferred contribution which the Employer defers without the
Participant's election).
[ ] (3) Participant mandatory contributions, as designated
in Adoption Agreement Section 4.01. See Section 14.04 of
the Plan.
[X] (j) Amount of eligible contributions taken into account.
When determining a Participant's eligible contributions taken
into account under the matching contributions formula(s), the
following rules apply: (Choose any combination of (1) through
(4))
[ ] (1) The Advisory Committee will take into account all
eligible contributions credited for the Plan Year.
[X] (2) The Advisory Committee will disregard eligible
contributions exceeding 6% OF A PARTICIPANTS COMPENSATION.
[ ] (3) The Advisory Committee will treat as the first tier of
eligible contributions, an amount not exceeding:
__________________________________________________________.
The subsequent tiers of eligible contributions are:
__________________________________________________________.
[ ] (4) (Specify)_________________________________________
_____________________________________________________.
Part III. [Options (k) and (l)]. Special rules for Code Section 401(k)
Arrangement. (Choose (k) or (l), or both, as applicable)
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<PAGE>
[X] (k) Salary Reduction Agreements. The following rules and
restrictions apply to an Employee's salary reduction agreement:
(Make a selection under (1), (2), (3) and (4))
(1) Limitation on amount. The Employee's salary reduction
contributions: (Choose (i) or at least one of (ii) or (iii))
[ ] (i) No maximum limitation other than as provided
in the Plan.
[X] (ii) May not exceed 15% of Compensation for the
Plan Year, subject to the annual additions
limitation described in Part 2 of Article III and
the 402(g) limitation described in Section 14.07
of the Plan.
[ ] (iii) Based on percentages of Compensation must
equal at least_________________________________________
_______________________.
(2) An Employee may revoke, on a prospective basis, a salary
reduction agreement: (Choose (i), (ii), (iii) or (iv))
[X] (i) Once during any Plan Year but not later than THE
LAST DAY of the Plan Year.
[ ] (ii) As of any Plan Entry Date.
[ ] (iii) As of the first day of any month.
[ ] (iv) (Specify, but must be at least once per Plan Year)
_____________________________________________________.
(3) An Employee who revokes his salary reduction agreement may file a new
salary reduction agreement with an effective date:
(Choose (i), (ii), (iii) or (iv))
[ ] (i) No earlier than the first day of the next Plan Year.
[ ] (ii) As of any subsequent Plan Entry Date.
[ ] (iii) As of the first day of any month subsequent to the
month in which be revoked an Agreement.
[X] (iv) (Specify, but must be at least once per Plan Year
following the Plan Year of revocation) FIRST PAY PERIOD IN
THE NEXT PLAN YEAR.
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<PAGE>
(4) A Participant may increase or may decrease, on a prospective
basis, his salary reduction percentage (Choose (i), (ii), (iii) or
(iv))
[ ] (i) As of the beginning of each payroll period.
[ ] (ii) As of the first day of each month.
[ ] (iii) As of any Plan Entry Date.
[X] (iv) (Specify, but must permit an increase or a decrease
at least once per Plan Year) TWO TIMES PER YEAR EFFECTIVE
ON THE PAY PERIOD FOLLOWING THE DAY IN WHICH THE COMPANY
RECEIVES WRITTEN NOTICE.
[ ] (l) Cash or deferred contributions. For each Plan Year for which
the Employer makes a designated cash or deferred contribution, a
Participant may elect to receive directly in cash not more than
the following portion (or, if less, the 402(g) limitation
described in Section 14.07 of the Plan) of his proportionate share
of that cash or deferred contribution:
(Choose (1) or (2))
[ ] (1) All or any portion.
[ ] (2) ______________________%.
3.04 CONTRIBUTION ALLOCATION. The Advisory Committee will
allocate deferral contributions, matching contributions, qualified
nonelective contributions and nonelective contributions in accordance with
Section 14.06 and the elections under this Adoption Agreement Section 3.04.
Part I. [Options (a) through (d)]. Special Accounting Elections.
(Choose whichever elections are applicable to the Employer's Plan)
[X] (a) Matching Contributions Account. The Advisory Committee
will allocate matching contributions to a Participant's:
(Choose (1) or (2); (3) is available only in addition to (1))
[X] (1) Regular Matching Contributions Account.
[ ] (2) Qualified Matching Contributions Account.
[ ] (3) Except, matching contributions under Option(s) _____
of Adoption Agreement Section 3.01 are allocable to the
Qualified Matching Contributions Account.
[X] (b) Special Allocation Dates for Salary Reduction Contributions.
The Advisory Committee will allocate salary reduction
contributions as of the Accounting Date and as of the following
additional allocation dates: MARCH 31, JUNE 30, SEPTEMBER 30 AND
DECEMBER 31.
[X] (c) Special Allocation Dates for Matching Contributions. The
Advisory Committee will allocate matching contributions as of the
Accounting Date and as of the following additional allocation
dates: MARCH 31, JUNE 30, SEPTEMBER 30 AND DECEMBER 31.
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<PAGE>
[X] (d) Designated Qualified Nonelective Contributions -
Definition of Participant. For purposes of allocating the
designated qualified nonelective contribution, "Participant"
means: (Choose (1), (2) or (3))
[ ] (1) All Participants.
[X] (2) Participants who are Nonhighly Compensated Employees
for the Plan Year.
[ ] (3) (Specify)___________________________________.
Part II. Method of Allocation - Nonelective Contribution. Subject to any
restoration allocation required under Section 5.04, the Advisory Committee
will allocate and credit each annual nonelective contribution (and
Participant forfeitures treated as nonelective contributions) to the
Employer Contributions Account of each Participant who satisfies the
conditions of Section 3.06, in accordance with the allocation method
selected under this Section 3.04. If the Employer elects Option (e)(2),
Option (g)(2) or Option (h), for the first 3% of Compensation allocated to
all Participants, "Compensation" does not include any exclusions elected
under Adoption Agreement Section 1. 12 (other than the exclusion of
elective contributions), and the Advisory Committee must take into account
the Participant's Compensation for the entire Plan Year. (Choose an
allocation method under (e), (f, (g) or (h); (i) is mandatory if the
Employer elects (f, (g) or (h); (j) is optional in addition to any other
election.)
[X] (e) Nonintegrated Allocation Formula. (Choose (1) or (2))
[X] (1) The Advisory Committee will allocate the annual nonelective
contributions in the same ratio that each Participant's
Compensation for the Plan Year bears to the total Compensation of
all Participants for the Plan Year.
[ ] (2) The Advisory Committee will allocate the annual
nonelective contributions in the same ratio that each
Participant's Compensation for the Plan Year bears to the
total Compensation of all Participants for the Plan Year. For
purposes of this Option (2), "Participant" means, in addition
to a Participant who satisfies the requirements of Section
3.06 for the Plan Year, any other Participant entitled to a
top heavy minimum allocation under Section 3.04(B), but such
Participant's allocation will not exceed 3% of his
Compensation for the Plan Year.
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<PAGE>
[ ] (f) Two-Tiered Integrated Allocation Formula - Maximum
Disparity. First, the Advisory Committee will allocate the
annual Employer nonelective contributions in the same ratio
that each Participant's Compensation plus Excess Compensation
for the Plan Year bears to the total Compensation plus Excess
Compensation of all Participants for the Plan Year. The
allocation under this paragraph, as a percentage of each
Participant's Compensation plus Excess Compensation, must not
exceed the applicable percentage (5.7%, 5.4% or 4.3%) listed
under the Maximum Disparity Table following Option (i).
The Advisory Committee then will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation
for the Plan Year bears to the total Compensation of all
Participants for the Plan Year.
[ ] (g) Three-Tiered Integrated Allocation Formula. First, the Advisory
Committee will allocate the annual Employer nonelective contributions
in the same ratio that each Participant's Compensation for the Plan
Year bears to the total Compensation of all Participants for the Plan
Year. The allocation under this paragraph, as a percentage of each
Participant's Compensation may not exceed the applicable percentage
(5.7%, 5.4% or 4.3%) listed under the Maximum Disparity Table
following Option (i). Solely for purposes of the allocation in this
first paragraph, "Participant" means, in addition to a Participant
who satisfies the requirements of Section 3.06 for the Plan Year:
(Choose (1) or (2))
[ ] (1) No other Participant.
[ ] (2) Any other Participant entitled to a top heavy minimum
allocation under Section 3.04(B), but such Participant's
allocation under this Option (g) will not exceed 3% of his
Compensation for the Plan Year.
As a second tier allocation, the Advisory Committee will allocate the
nonelective contributions in the same ratio that each Participant's Excess
Compensation for the Plan Year bears to the total Excess Compensation of
all Participants for the Plan Year. The allocation under this paragraph, as
a percentage of each Participant's Excess Compensation, may not exceed the
allocation percentage in the first paragraph.
Finally, the Advisory Committee will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation for
the Plan Year bears to the total Compensation of all Participants for the
Plan Year.
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<PAGE>
[ ] (h) Four-Tiered Integrated Allocation Formula. First, the Advisory
Committee will allocate the annual Employer nonelective contributions in
the same ratio that each Participant's Compensation for the Plan Year
bears to the total Compensation of all Participants for the Plan Year,
but not exceeding 3% of each Participant's Compensation. Solely for
purposes of this first tier allocation, a "Participant" means, in
addition to any Participant who satisfies the requirements of Section
3.06 for the Plan Year, any other Participant entitled to a top heavy
minimum allocation under Section 3.04(B) of the Plan.
As a second tier allocation, the Advisory Committee will allocate the
nonelective contributions in the same ratio that each Participant's
Excess Compensation for the Plan Year bears to the total Excess
Compensation of all Participants for the Plan Year, but not exceeding
3% of each Participant's Excess Compensation.
As a third tier allocation, the Advisory Committee will allocate the
annual Employer contributions in the same ratio that each Participant's
Compensation plus Excess Compensation for the Plan Year bears to the
total Compensation plus Excess Compensation of all Participants for
the Plan Year. The allocation under this paragraph, as a percentage
of each Participant's Compensation plus Excess Compensation, must not
exceed the applicable percentage (2.7%, 2.4% or 1.3%) listed under the
Maximum Disparity Table following Option (i).
The Advisory Committee then will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation
for the Plan Year bears to the total Compensation of all Participants
for the Plan Year.
[ ] (i) Excess Compensation. For purposes of Option (f), (g) or (h),
"Excess Compensation" means Compensation in excess of the following
Integration Level: (Choose (1) or (2))
[ ] (1) ___% (not exceeding 100%) of the taxable wage base, as
determined under Section 230 of the Social Security Act, in effect
on the first day of the Plan Year: (Choose any combination of (i)
and (ii) or choose (iii))
[ ] (i) Rounded to _________________________________ (but not
exceeding the taxable wage base).
[ ] (ii) But not greater than $___.
[ ] (iii) Without any further adjustment or limitation.
[ ] (2) $________ [Note: Not exceeding the taxable wage base
for the Plan Year in which this Adoption Agreement first is
effective.]
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<PAGE>
Maximum Disparity Table. For purposes of Options (f), (g) and (h),
the applicable percentage is:
Applicable Percentages Applicable
Integration Level (as for Option (f) or Percentages
percentage of taxable wage base) Option (g) for Option (h)
- -------------------------------- --------------------- ----------------
100% 5.7% 2.7%
More than 80% but less than 100% 5.4% 2.4%
More than 20% (but not less than
$10,001) and not more than 80% 4.3% 1.3%
20% (or $10,000, if greater) or less 5.7% 2.7%
[ ] Allocation offset. The Advisory Committee will reduce a Participant's
allocation otherwise made under Part II of this Section 3.04 by the
Participant's allocation under the following qualified plan(s)
maintained by the Employer: _____________________________________
_________________________________.
The Advisory Committee will determine this allocation reduction:
(Choose (1) or (2))
[ ] (1) By treating the term "nonelective contribution" as
including all amounts paid or accrued by the Employer during
the Plan Year to the qualified plan(s) referenced under this
Option (j). If a Participant under this Plan also participates
in that other plan, the Advisory Committee will treat the
amount the Employer contributes for or during a Plan Year on
behalf of a particular Participant under such other plan as an
amount allocated under this Plan to that Participant's Account
for that Plan Year. The Advisory Committee will make the
computation of allocation required under the immediately
preceding sentence before making any allocation of nonelective
contributions under this Section 3.04.
[ ] (2) In accordance with the formula provided in an addendum to
this Adoption Agreement, numbered 3.04(j).
Top Heavy Minimum Allocation - Method of Compliance. If a Participant's
allocation under this Section 3.04 is less than the top heavy minimum
allocation to which he is entitled under Section 3.04(B): (Choose (k)
or (l))
[X] (k) The Employer will make any necessary additional
contribution to the Participant's Account, as described in
Section 3.04(B)(7)(a) of the Plan.
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<PAGE>
[ ] (l) The Employer will satisfy the top heavy minimum allocation
under the following plan(s) it maintains: _________________________
____________________________________________________________________.
However, the Employer will make any necessary additional contribution
to satisfy the top heavy minimum allocation for an Employee covered
only under this Plan and not under the other plan(s) designated in
this Option (l). See Section 3.04(B)(7)(b) of the Plan.
If the Employer maintains another plan, the Employer may provide in an
addendum to this Adoption Agreement, numbered Section 3.04, any
modifications to the Plan necessary to satisfy the top heavy require-
ments under Code Section 416.
Related employers. If two or more related employers (as defined in Section
1.30) contribute to this Plan, the Advisory Committee must allocate all
Employer nonelective contributions (and forfeitures treated as nonelective
contributions) to each Participant in the Plan, in accordance with the
elections in this Adoption Agreement Section 3.04: (Choose (m) or (n))
[X] (m) Without regard to which contributing related group member
employs the Participant.
[ ] (n) Only to the Participants directly employed by the contributing
Employer. If a Participant receives Compensation from more than
one contributing Employer, the Advisory Committee will determine
the allocations under this Adoption Agreement Section 3.04 by
prorating among the participating Employers the Participant's
Compensation and, if applicable, the Participant's Integration
Level under Option (i).
3.05 FORFEITURE ALLOCATION. Subject to any restoration
allocation required under Sections 5.04 or 9.14, the Advisory
Committee will allocate a Participant forfeiture in accordance with
Section 3.04: (Choose (a) or (b); (c) and (d) are optional in
addition to (a) or (b))
[ ] (a) As an Employer nonelective contribution for the Plan
Year in which the forfeiture occurs, as if the Participant
forfeiture were an additional nonelective contribution for
that Plan Year.
[X] (b) To reduce the Employer matching contributions and
nonelective contributions for the Plan Year: (Choose (1) or
(2))
[X] (1) in which the forfeiture occurs.
[ ] (2) immediately following the Plan Year in which
the forfeiture occurs.
[X] (c) To the extent attributable to matching contributions:
(Choose (1), (2) or (3))
[ ] (1) In the manner elected under Options (a) or (b).
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<PAGE>
[ ] (2) First to reduce Employer matching contributions for
the Plan Year: (Choose (i) or (ii))
[ ] (i) in which the forfeiture occurs,
[ ] (ii) immediately following the Plan Year in which the
forfeiture occurs,
then as elected in Options (a) or (b).
[X] (3) As a discretionary matching contribution for the Plan
Year in which the forfeiture occurs, in lieu of the manner
elected under Options (a) or (b).
[ ] (d) First to reduce the Plan's ordinary and necessary administrative
expenses for the Plan Year and then will allocate any remaining
forfeitures in the manner described in Options (a), (b) or (c),
whichever applies. If the Employer elects Option (c), the forfeitures
used to reduce Plan expenses: (Choose (1) or (2))
[ ] (1) relate proportionately to forfeitures described in Option (c)
and to forfeitures described in Options (a) or (b).
[ ] (2) relate first to forfeitures described in Option ___.
Allocation of forfeited excess aggregate contributions. The Advisory
Committee will allocate any forfeited excess aggregate contributions (as
described in Section 14.09): (Choose (e), (f) or (g))
[X] (e) To reduce Employer matching contributions for the Plan
Year: (Choose (1) or (2))
[ ] (1) in which the forfeiture occurs.
[X] (2) immediately following the Plan Year in which the
forfeiture occurs.
[ ] (f) As Employer discretionary matching contributions for the Plan
Year in which forfeited, except the Advisory Committee will not
allocate these forfeitures to the Highly Compensated Employees who
incurred the forfeitures.
[ ] (g) In accordance with Options (a) through (d), whichever applies,
except the Advisory Committee will not allocate these forfeitures
under Option (a) or under Option (c)(3) to the Highly Compensated
Employees who incurred the forfeitures.
3.06 ACCRUAL OF BENEFIT.
Compensation taken into account. For the Plan Year in which the Employee
first becomes a Participant, the Advisory Committee will determine the
allocation of any cash or deferred contribution, designated qualified
nonelective contribution or nonelective contribution by taking into
account: (Choose (a) or (b))
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[ ] (a) The Employee's Compensation for the entire Plan Year.
[X] (b) The Employee's Compensation for the portion of the Plan Year
in which the Employee actually is a Participant in the Plan.
Accrual Requirements. Subject to the suspension of accrual requirements of
Section 3.06(E) of the Plan, to receive an allocation of cash or deferred
contributions, matching contributions, designated qualified nonelective
contributions, nonelective contributions and Participant forfeitures, if
any, for the Plan Year, a Participant must satisfy the conditions described
in the following elections: (Choose (c) or at least one of (d) through (f))
[ ] (c) Safe harbor rule. If the Participant is employed by the Employer
on the last day of the Plan Year, the Participant must complete at
least one Hour of Service for that Plan Year. If the Participant is
not employed by the Employer on the last day of the Plan Year, the
Participant must complete at least 501 Hours of Service during the
Plan Year.
[ ] (d) Hours of Service condition. The Participant must complete
the following minimum number of Hours of Service during the
Plan Year: (Choose at least one of (1) through (5))
[X] (1) 1,000 Hours of Service.
[ ] (2) (Specify, but the number of Hours of Service may not
exceed 1,000) _____________________.
[X] (3) No Hour of Service requirement if the Participant
terminates employment during the Plan Year on account of.
(Choose (i), (ii) or (iii))
[X] (i) Death.
[X] (ii) Disability.
[X] (iii) Attainment of Normal Retirement Age in the
current Plan Year or in a prior Plan Year.
[ ] (4) ___ Hours of Service (not exceeding 1,000) if the
Participant terminates employment with the Employer during
the Plan Year, subject to any election in Option (3).
[X] (5) No Hour of Service requirement for an allocation of the
following contributions: EMPLOYER MATCHING CONTRIBUTIONS.
[X] (e) Employment condition. The Participant must be employed by the
Employer on the last day of the Plan Year, irrespective of whether
he satisfies any Hours of Service condition under Option (d), with
the following exceptions: (Choose (1) or at least one of (2)
through (5))
[ ] (1) No exceptions.
[ ] (2) Termination of employment because of death.
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[ ] (3) Termination of employment because of disability.
[ ] (4) Termination of employment following attainment of
Normal Retirement Age.
[X] (5) No employment condition for the following
contributions: EMPLOYER MATCHING CONTRIBUTIONS.
(f) (Specify other conditions, if applicable):___________________
______________________________________.
Suspension of Accrual Requirements. The suspension of accrual requirements
of Section 3.06(E) of the Plan: (Choose (g), (h) or (i))
[X] (g) Applies to the Employer's Plan.
[ ] (h) Does not apply to the Employer's Plan.
[ ] (i) Applies in modified form to the Employer's Plan, as
described in an addendum to this Adoption Agreement, numbered
Section 3.06(E).
Special accrual requirements for matching contributions. If the Plan
allocates matching contributions on two or more allocation dates for a Plan
Year, the Advisory Committee, unless otherwise specified in Option (l),
will apply any Hours of Service condition by dividing the required Hours of
Service on a prorata basis to the allocation periods included in that Plan
Year. Furthermore, a Participant who satisfies the conditions described in
this Adoption Agreement Section 3.06 will receive an allocation of matching
contributions (and forfeitures treated as matching contributions) only if
the Participant satisfies the following additional condition(s): (Choose (j)
or at least one of (k) or (l))
[X] (j) No additional conditions.
[ ] (k) The Participant is not a Highly Compensated Employee for
the Plan Year. This Option (k) applies to: (Choose (1) or (2))
[ ] (1) All matching contributions.
[ ] (2) Matching contributions described in Option(s) _____ of
Adoption Agreement Section 3.01.
[ ] (l) (Specify) _______________________________________________.
3.15 MORE THAN ONE PLAN LIMITATION. If the provisions of Section
3.15 apply, the Excess Amount attributed to this Plan equals: (Choose (a),
(b) or (c))
[ ] (a) The product of:
(i) the total Excess Amount allocated as of such date (including
any amount which the Advisory Committee would have allocated
but for the limitations of Code Section 415), times
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(ii) the ratio of (1) the amount allocated to the Participant
as of such date under this Plan divided by (2) the total
amount allocated as of such date under all qualified defined
contribution plans (determined without regard to the
limitations of Code Section 415).
[ ] (b) The total Excess Amount.
[X] (c) None of the Excess Amount.
3.18 DEFINED BENEFIT PLAN LIMITATION.
Application of limitation. The limitation under Section 3.18 of the Plan:
(Choose (a) or (b))
[X] (a) Does not apply to the Employer's Plan because the Employer
does not maintain and never has maintained a defined benefit plan
covering any Participant in this Plan.
[ ] (b) Applies to the Employer's Plan. To the extent necessary to
satisfy the limitation under Section 3.18, the Employer will reduce:
(Choose (1) or (2))
[ ] (1) The Participant's projected annual benefit under the
defined benefit plan under which the Participant participates.
[ ] (2) Its contribution or allocation on behalf of the Partici-
pant to the defined contribution plan under which the
Participant participates and then, if necessary, the
Participant's projected annual benefit under the defined
benefit plan under which the Participant participates.
[Note: If the Employer selects (a), the remaining options in this Section
3.18 do not apply to the Employer's Plan.]
Coordination with top heavy minimum allocation. The Advisory Committee will
apply the top heavy minimum allocation provisions of Section 3.04(B) of the
Plan with the following modifications: (Choose (c) or at least one of (d)
or (e))
[ ] (c) No modifications.
[ ] (d) For Non-Key Employees participating only in this Plan, the top
heavy minimum allocation is the minimum allocation described in
Section 3.04(B) determined by substituting __% (not less than 4%)
for "3%," except: (Choose (i) or (ii))
[ ] (i) No exceptions.
[ ] (ii) Plan Years in which the top heavy ratio exceeds 90%.
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[ ] (e) For Non-Key Employees also participating in the defined benefit
plan, the top heavy minimum is: (Choose (1) or (2))
[ ] (1) 5% of Compensation (as determined under Section 3.04(B)
of the Plan) irrespective of the contribution rate of any
Key Employee, except: (Choose (i) or (ii))
[ ] (i) No exceptions.
[ ] (ii) Substituting "7-1/2%" for "5%" if the top heavy ratio
does not exceed 90%.
[ ] (2) 0%. [Note: The Employer may not select this Option (2)
unless the defined benefit plan satisfies the top heavy
minimum benefit requirements of Code Section 416 for these
Non-Key Employees.]
Actuarial Assumptions for Top Heavy Calculation. To determine the top heavy
ratio, the Advisory Committee will use the following interest rate and
mortality assumptions to value accrued benefits under a defined benefit
plan: __________________________________________________________________
_____________________.
If the elections under this Section 3.18 are not appropriate to satisfy the
limitations of Section 3.18, or the top heavy requirements under Code
Section 416, the Employer must provide the appropriate provisions in an
addendum to this Adoption Agreement.
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
4.01 PARTICIPANT NONDEDUCTIBLE CONTRIBUTIONS. The Plan: (Choose
(a) or (b); (c) is available only with (b))
[X] (a) Does not permit Participant nondeductible contributions.
[ ] (b) Permits Participant nondeductible contributions, pursuant to
Section 14.04 of the Plan.
[ ] (c) The following portion of the Participant's nondeductible
contributions for the Plan Year are mandatory contributions under
Option (i)(3) of Adoption Agreement Section 3.01: (Choose (1)
or (2))
[ ] (1) The amount which is not less than: ___________________.
[ ] (2) The amount which is not greater than: ________________.
Allocation dates. The Advisory Committee will allocate nondeductible
contributions for each Plan Year as of the Accounting Date and the
following additional allocation dates: (Choose (d) or (e))
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[ ] (d) No other allocation dates.
[ ] (e) (Specify) ______________________________________________
___________________________________.
As of an allocation date, the Advisory Committee will credit all
nondeductible contributions made for the relevant allocation period. Unless
otherwise specified in (e), a nondeductible contribution relates to an
allocation period only if actually made to the Trust no later than 30 days
after that allocation period ends.
4.05 PARTICIPANT CONTRIBUTION - WITHDRAWAL/DISTRIBUTION. Subject to
the restrictions of Article VI, the following distribution options apply to
a Participant's Mandatory Contributions Account, if any, prior to his
Separation from Service: (Choose (a) or at least one of (b) through (d))
[ ] (a) No distribution options prior to Separation from Service.
[ ] (b) The same distribution options applicable to the Deferral
Contributions Account prior to the Participant's Separation from
Service, as elected in Adoption Agreement Section 6.03.
[ ] (c) Until he retires, the Participant has a continuing election to
receive all or any portion of his Mandatory Contributions Account if:
(Choose (1) or at least one of (2) through (4))
[ ] (1) No conditions.
[ ] (2) The mandatory contributions have accumulated for at least
___ Plan Years since the Plan Year for which contributed.
[ ] (3) The Participant suspends making nondeductible
contributions for a period of ___ months.
[ ] (4) (Specify) ___________________________________.
[X] (d) (Specify) N/A.
ARTICLE V
TERMINATION OF SERVICE - PARTICIPANT VESTING
5.01 NORMAL RETIREMENT. Normal Retirement Age under the Plan is:
(Choose (a) or (b))
[X] (a) 65 [State age, but may not exceed age 65].
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[ ] (b) The later of the date the Participant attains _____ years of age
or the ____ anniversary of the first day of the Plan Year in which the
Participant commenced participation in the Plan. [The age selected may
not exceed age 65 and the anniversary selected may not exceed the
5th.]
5.02 PARTICIPANT DEATH OR DISABILITY. The 100% vesting rule under
Section 5.02 of the Plan: (Choose (a) or choose one or both of (b) and (c))
[ ] (a) Does not apply.
[X] (b) Applies to death.
[X] (c) Applies to disability.
5.03 VESTING SCHEDULE.
Deferral Contributions Account/Qualified Matching Contributions
Account/Qualified Nonelective Contributions Account/Mandatory Contributions
Account. A Participant has a 100% Nonforfeitable interest at all times in
his Deferral Contributions Account, his Qualified Matching Contributions
Account, his Qualified Nonelective Contributions Account and in his
Mandatory Contributions Account.
Regular Matching Contributions Account/Employer Contributions Account. With
respect to a Participant's Regular Matching Contributions Account and
Employer Contributions Account, the Employer elects the following vesting
schedule: (Choose (a) or (b); (c) and (d) are available only as additional
options)
[ ] (a) Immediate vesting. 100% Nonforfeitable at all times. [Note: The
Employer must elect Option (a) if the eligibility conditions under
Adoption Agreement Section 2.01 (c) require 2 years of service or
more than 12 months of employment.]
[X] (b) Graduated Vesting Schedules.
Top Heavy Schedule Non Top Heavy Schedule
(Mandatory) (Optional)
Years of Nonforfeitable Years of Nonforfeitable
Service Percentage Service Percentage
Less than 1 0% Less than 1 %
1 0% 1 %
2 20% 2 %
3 40% 3 %
4 60% 4 %
5 80% 5 %
6 or more 100% 6 %
7 or more 100%
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[ ] (c) Special vesting election for Regular Matching Contributions
Account. In lieu of the election under Options (a) or (b), the
Employer elects the following vesting schedule for a Participant's
Regular Matching Contributions Account: (Choose (1) or (2))
[ ] (1) 100% Nonforfeitable at all times.
[ ] (2) In accordance with the vesting schedule described in the
addendum to this Adoption Agreement, numbered 5.03(c). [Note:
If the Employer elects this Option (c)(2), the addendum must
designate the applicable vesting schedule(s) using the same
format as used in Option (b).]
[Note: Under Options (b) and (c)(2), the Employer must complete a Top Heavy
Schedule which satisfies Code Section 416. The Employer, at its option, may
complete a Non Top Heavy Schedule. The Non Top Heavy Schedule must
satisfy Code Section 411(a)(2). Also see Section 7.05 of the Plan.]
[ ] (d) The Top Heavy Schedule under Option (b) (and, if applicable,
under Option (c)(2)) applies: (Choose (1) or (2))
[ ] (1) Only in a Plan Year for which the Plan is top heavy.
[ ] (2) In the Plan Year for which the Plan first is top heavy and
then in all subsequent Plan Years. [Note: The Employer may not
elect Option (d) unless it has completed a Non Top Heavy
Schedule.]
Minimum vesting. (Choose (e) or (f))
[X] (e) The Plan does not apply a minimum vesting rule.
[ ] (f) A Participant's Nonforfeitable Accrued Benefit will never be
less than the lesser of $__ or his entire Accrued Benefit, even
if the application of a graduated vesting schedule under
Options (b) or (c) would result in a smaller Nonforfeitable
Accrued Benefit.
Life Insurance Investments. The Participant's Accrued Benefit attributable
to insurance contracts purchased on his behalf under Article XI is:
(Choose (g) or (h))
[X] (g) Subject to the vesting election under Options (a), (b) or (c).
[ ] (h) 100% Nonforfeitable at all times, irrespective of the vesting
election under Options (b) or (c)(2).
5.04 CASH-OUT DISTRIBUTIONS TO PARTIALLY-VESTED PARTICIPANTS/
RESTORATION OF FORFEITED ACCRUED BENEFIT. The deemed cash-out rule
described in Section 5.04(C) of the Plan: (Choose (a) or (b))
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[ ] (a) Does not apply.
[X] (b) Will apply to determine the timing of forfeitures for 0%
vested Participants. A Participant is not a 0% vested Participant
if he has a Deferral Contributions Account.
5.06 YEAR OF SERVICE - VESTING.
Vesting computation period. The Plan measures a Year of Service on the
basis of the following 12 consecutive month periods: (Choose (a) or (b))
[X] (a) Plan Years.
[ ] (b) Employment Years. An Employment Year is the 12 consecutive
month period measured from the Employee's Employment Commencement
Date and each successive 12 consecutive month period measured from
each anniversary of that Employment Commencement Date.
Hours of Service. The minimum number of Hours of Service an Employee must
complete during a vesting computation period to receive credit for a Year
of Service is: (Choose (c) or (d))
[X] (c) 1,000 Hours of Service.
[ ] (d) ___ Hours of Service. [Note: The Hours of Service requirement
may not exceed 1,000.]
5.08 INCLUDED YEARS OF SERVICE - VESTING. The Employer specifically
excludes the following Years of Service: (Choose (a) or at least one of (b)
through (e))
[X] (a) None other than as specified in Section 5.08(a) of the Plan.
[ ] (b) Any Year of Service before the Participant attained the
age of ___. [Note: The age selected may not exceed age 18.]
[ ] (c) Any Year of Service during the period the Employer did not
maintain this Plan or a predecessor plan.
[ ] (d) Any Year of Service before a Break in Service if the number of
consecutive Breaks in Service equals or exceeds the greater of 5 or
the aggregate number of the Years of Service prior to the Break. This
exception applies only if the Participant is 0% vested in his Accrued
Benefit derived from Employer contributions at the time he has a Break
in Service. Furthermore, the aggregate number of Years of Service
before a Break in Service do not include any Years of Service not
required to be taken into account under this exception by reason of
any prior Break in Service.
[ ] (e) Any Year of Service earned prior to the effective date of ERISA
if the Plan would have disregarded that Year of Service on account
of an Employee's Separation from Service under a Plan provision in
effect and adopted before January 1, 1974.
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ARTICLE VI
TIME AND METHOD OF PAYMENTS OF BENEFITS
Code Section 411(d)(6) Protected Benefits. The elections under this Article VI
may not eliminate Code Section 411(d)(6) protected benefits. To the extent the
elections would eliminate a Code Section 411(d)(6) protected benefit, see
Section 13.02 of the Plan. Furthermore, if the elections liberalize the
optional forms of benefit under the Plan, the more liberal options apply on
the later of the adoption date or the Effective Date of this Adoption
Agreement.
6.01 TIME OF PAYMENT OF ACCRUED BENEFIT.
Distribution date. A distribution date under the Plan means MARCH 1, JUNE 1,
SEPTEMBER 1, AND DECEMBER 1. [Note: The Employer must specify the
appropriate date(s). The specified distribution dates primarily establish
annuity starting dates and the notice and consent periods prescribed by the
Plan. The Plan allows the Trustee an administratively practicable period of
time to make the actual distribution relating to a particular distribution
date.]
Nonforfeitable Accrued Benefit Not Exceeding $3,500. Subject to the
limitations of Section 6.01(A)(1), the distribution date for distribution
of a Nonforfeitable Accrued Benefit not exceeding $3,500 is: (Choose (a),
(b), (c), (d) or (e))
[ ] (a) ______________________________________________________________
of the _____________________________ Plan Year beginning after the
Participant's Separation from Service.
[X] (b) AS SOON AS ADMINISTRATIVELY FEASIBLE AFTER THE VALUATION DATE
following the Participant's Separation from Service.
[ ] (c)___________________________________________________________ of the
Plan Year after the Participant incurs __ Break(s) in Service (as
defined in Article V).
[ ] (d) following the Participant's attainment of Normal Retirement Age,
but not earlier than _________days following his Separation from
Service.
[ ] (e) (Specify) ________________________________________________________.
Nonforfeitable Accrued Benefit Exceeds $3,500. See the elections under
Section 6.03.
Disability. The distribution date, subject to Section 6.01(A)(3), is:
(Choose (f), (g) or (h))
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[ ] (f) ___________________________ after the Participant terminates
employment because of disability.
[X] (g) The same as if the Participant had terminated employment without
disability.
[ ] (h) (Specify)_______________________________________________________
Hardship. (Choose (i) or (j))
[X] (i) The Plan does not permit a hardship distribution to a Participant
who has separated from Service.
[ ] (j) The Plan permits a hardship distribution to a Participant who has
separated from Service in accordance with the hardship distribution
policy stated in: (Choose (1), (2) or (3))
[ ] (1) Section 6.01(A)(4) of the Plan.
[ ] (2) Section 14.11 of the Plan.
[ ] (3) The addendum to this Adoption Agreement, numbered
Section 6.01.
Default on a Loan. If a Participant or Beneficiary defaults on a loan made
pursuant to a loan policy adopted by the Advisory Committee pursuant to
Section 9.04, the Plan: (Choose (k), (l) or (m))
[ ] (k) Treats the default as a distributable event. The Trustee, at the
time of the default, will reduce the Participant's Nonforfeitable
Accrued Benefit by the lesser of the amount in default (plus accrued
interest) or the Plan's security interest in that Nonforfeitable
Accrued Benefit. To the extent the loan is attributable to the
Participant's Deferral Contributions Account, Qualified Matching
Contributions Account or Qualified Nonelective Contributions Account,
the Trustee will not reduce the Participant's Nonforfeitable Accrued
Benefit unless the Participant has separated from Service or unless
the Participant has attained age 59-1/2.
[X] (l) Does not treat the default as a distributable event. When an
otherwise distributable event first occurs pursuant to Section 6.01 or
Section 6.03 of the Plan, the Trustee will reduce the Participant's
Nonforfeitable Accrued Benefit by the lesser of the amount in default
(plus accrued interest) or the Plan's security interest in that
Nonforfeitable Accrued Benefit.
[ ] (m) (Specify)______________________________________________________
6.02 METHOD OF PAYMENT OF ACCRUED BENEFIT. The Advisory Committee will
apply Section 6.02 of the Plan with the following modifications: (Choose
(a) or at least one of (b), (c), (d) and (e))
[X] (a) No modifications.
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<PAGE>
[ ] (b) Except as required under Section 6.01 of the Plan, a lump sum
distribution is not available: ____________________________________
__________________________________________________.
[ ] (c) An installment distribution: (Choose (1) or at least one of (2)
or (3))
[ ] (1) Is not available under the Plan.
[ ] (2) May not exceed the lesser of ______ years or the maximum
period permitted under Section 6.02.
[ ] (3) (Specify) ______________________________________________.
[ ] (d) The Plan permits the following annuity options: _______________
________________________________.
Any Participant who elects a life annuity option is subject to the
requirements of Sections 6.04(A), (B), (C) and (D) of the Plan.
See Section 6.04(E). [Note: The Employer may specify additional
annuity options in an addendum to this Adoption Agreement, numbered
602(d).]
[ ] (e) If the Plan invests in qualifying Employer securities, as described
in Section 10.03(F), a Participant eligible to elect distribution under
Section 6.03 may elect to receive that distribution in Employer
securities only in accordance with the provisions of the addendum to
this Adoption Agreement, numbered 6.02(e).
6.03 BENEFIT PAYMENT ELECTIONS.
Participant Elections After Separation from Service. A Participant who is
eligible to make distribution elections under Section 6.03 of the Plan may
elect to commence distribution of his Nonforfeitable Accrued Benefit:
(Choose at least one of (a) through (c))
[ ] (a) As of any distribution date, but not earlier than _______________
________________ of the ___________ Plan Year beginning after the
Participant's Separation from Service.
[ ] (b) As of the following date(s): (Choose at least one of Options (1)
through (6))
[ ] (1) Any distribution date after the close of the Plan Year in
which the Participant attains Normal Retirement Age.
[ ] (2) Any distribution date following his Separation from Service
with the Employer.
[ ] (3) Any distribution date in the _______________ Plan Year(s)
beginning after his Separation from Service.
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[ ] (4) Any distribution date in the Plan Year after the Participant
incurs _________ Break(s) in Service (as defined in Article V).
[ ] (5) Any distribution date following attainment of age ____ and
completion of at least ___ Years of Service (as defined in
Article V).
[ ] (6) (Specify)_________________________________________________
_________________________.
[X] (c) (Specify) AS OF ANY DISTRIBUTION DATE, BUT NOT EARLIER THAN THE FIRST
DISTRIBUTION DATE AFTER THE VALUATION DATE FOLLOWING THE
PARTICIPANT'S SEPARATION FROM SERVICE.
The distribution events described in the election(s) made under
Options (a), (b) or (c) apply equally to all Accounts maintained for the
Participant unless otherwise specified in Option (c).
Participant Elections Prior to Separation from Service - Regular Matching
Contributions Account and Employer Contributions Account. Subject to the
restrictions of Article VI, the following distribution options apply
to a Participant's Regular Matching Contributions Account and Employer
Contributions Account prior to his Separation from Service: (Choose (d) or
at least one of (e) through (h))
[ ] (d) No distribution options prior to Separation from Service.
[X] (e) Attainment of Specified Age. Until he retires, the Participant has
a continuing election to receive all or any portion of his Non-
forfeitable interest in these Accounts after he attains: (Choose (1)
or (2))
[ ] (1) Normal Retirement Age.
[X] (2) 59.5 years of age and is at least 100% vested in these
Accounts. [Note: If the percentage is less than 100%, see the
special vesting formula in Section 5.03.]
[ ] (f) After a Participant has participated in the Plan for a period of
not less than __ years and he is 100% vested in these Accounts, until
he retires, the Participant has a continuing election to receive all
or any portion of the Accounts. [Note: The number in the blank space
may not be less than 5.]
[X] (g) Hardship. A Participant may elect a hardship distribution prior to
his Separation from Service in accordance with the hardship
distribution policy: (Choose (1), (2) or (3); (4) is available only as
an additional option)
[ ] (1) Under Section 6.01(A)(4) of the Plan.
[X] (2) Under Section 14.11 of the Plan.
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[ ] (3) Provided in the addendum to this Adoption Agreement,
numbered Section 6.03.
[ ] (4) In no event may a Participant receive a hardship distribution
before he is at least ___% vested in these Accounts. [Note: If the
percentage in the blank is less than 100%, see the special vesting
formula in Section 5.03.]
[ ] (h) (Specify) ________________________________________________________
_________________________.
[Note: The Employer may use an addendum, numbered 6.03, to provide
additional language authorized by Options (b)(6), (c), (g)(3) or (h) of
this Adoption Agreement Section 6.03.]
Participant Elections Prior to Separation from Service - Deferral
Contributions Account, Qualified Matching Contributions Account and
Qualified Nonelective Contributions Account. Subject to the restrictions of
Article VI, the following distribution options apply to a Participant's
Deferral Contributions Account, Qualified Matching Contributions Account
and Qualified Nonelective Contributions Account prior to his Separation
from Service: (Choose (i) or at least one of (j) through (l))
[ ] (i) No distribution options prior to Separation from Service.
[X] (j) Until he retires, the Participant has a continuing election to
receive all or any portion of these Accounts after he attains:
(Choose (1) or (2))
[ ] (1) The later of Normal Retirement Age or age 59-1/2.
[X] (2) Age 59.5 (at least 59-1/2).
[X] (k) Hardship. A Participant, prior to this Separation from Service,
may elect a hardship distribution from his Deferral Contributions
Account in accordance with the hardship distribution policy under
Section 14.11 of the Plan.
[ ] (l) (Specify) _______________________________________________________
____. [Note: Option (l) may not permit in service distributions prior to
age 59-1/2 (other than hardship) and may not modify the hardship policy
described in Section 14.11]
Sale of trade or business/subsidiary. If the Employer sells substantially
all of the assets (within the meaning of Code Section 409(d)(2)) used in a
trade or business or sells a subsidiary (within the meaning of Code Section
409(d)(3)), a Participant who continues employment with the acquiring
corporation is eligible for distribution from his Deferral Contributions
Account, Qualified Matching Contributions Account and Qualified Nonelective
Contributions Account: (Choose (m) or (n))
[X] (m) Only as described in this Adoption Agreement Section 6.03 for
distributions prior to Separation from Service.
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[ ] (n) As if he has a Separation from Service. After March 31, 1988, a
distribution authorized solely by reason of this Option (n) must
constitute a lump sum distribution, determined in a manner consistent
with Code Section 401(k)(10) and the applicable Treasury regulations.
6.04 ANNUITY DISTRIBUTIONS TO PARTICIPANTS AND SURVIVING SPOUSES. The
annuity distribution requirements of Section 6.04: (Choose (a) or (b))
[X] (a) Apply only to a Participant described in Section 6.04(E) of the
Plan (relating to the profit sharing exception to the joint and
survivor requirements).
(b) Apply to all Participants.
ARTICLE IX
ADVISORY COMMITTEE - DUTIES WITH RESPECT TO PARTICIPANTS' ACCOUNTS
9.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. If a distribution (other
than a distribution from a segregated Account and other than a collective
distribution described in Sections 14.07, 14.08, 14.09 or 14.10 of the
Plan) occurs more than 90 days after the most recent valuation date, the
distribution will include interest at: (Choose (a), (b) or (c))
[X] (a) 0% per annum. [Note: The percentage may equal 0%.]
[ ] (b) The 90 day Treasury bill rate in effect at the beginning of
the current valuation period.
[ ] (c) (Specify)__________________________________________________.
9.11 ALLOCATION AND DISTRIBUTION OF NET INCOME GAIN OR LOSS. Pursuant
to Section 14.12, to determine the allocation of net income, gain or loss:
(Complete only those items, if any, which are applicable to the Employer's
Plan)
[X] (a) For salary reduction contributions, the Advisory Committee will:
(Choose (1), (2), (3), (4) or (5))
[ ] (1) Apply Section 9.11 without modification.
[ ] (2) Use the segregated account approach described in Section 14.12.
[ ] (3) Use the weighted average method described in Section 14.12,
based on a ______________________ weighting period.
[X] (4) Treat as part of the relevant Account at the
beginning of the valuation period 50% of the salary
reduction contributions: (Choose (i) or (ii))
[X] (i) made during that valuation period.
[ ] (ii) made by the following specified
time:__________________________________.
47
<PAGE>
[ ] (5) Apply the allocation method described in the
addendum to this Adoption Agreement numbered 9.11(a).
[X] (b) For matching contributions, the Advisory Committee
will: (Choose (1), (2), (3) or (4))
[ ] (1) Apply Section 9.11 without modification.
[ ] (2) Use the weighted average method described in
Section 14.12, based on a _______ weighting period.
[X] (3) Treat as part of the relevant Account at the
beginning of the valuation period 50% of the matching
contributions allocated during the valuation period.
[ ] (4) Apply the allocation method described in the
addendum to this Adoption Agreement numbered 9.11(b).
[ ] (c) For Participant nondeductible contributions, the
Advisory Committee will: (Choose (1), (2), (3), (4) or (5))
[ ] (1) Apply Section 9.11 without modification.
[ ] (2) Use the segregated account approach described in
Section 14.12.
[ ] (3) Use the weighted average method described in
Section 14.12, based on a _________ weighting period.
[ ] (4) Treat as part of the relevant Account at the
beginning of the valuation period____% of the
Participant nondeductible contributions: (Choose (i) or
(ii))
[ ] (i) made during that valuation period.
[ ] (ii) made by the following specified
time:__________.
[ ] (5) Apply the allocation method described in the
addendum to this Adoption Agreement numbered 9.11(c).
48
<PAGE>
ARTICLE X
TRUSTEE AND CUSTODIAN, POWERS AND DUTIES
10.03 INVESTMENT POWERS. Pursuant to Section 10.03[F] of
the Plan, the aggregate investments in qualifying Employer
securities and in qualifying Employer real property: (Choose (a)
or (b))
[X] (a) May not exceed 10% of Plan assets.
[ ] (b) May not exceed ____% of Plan assets. [Note: The
percentage may not exceed 100%.]
10.14 VALUATION OF TRUST. In addition to each Accounting
Date, the Trustee must value the Trust Fund on the following
valuation date(s): (Choose (a) or (b))
[ ] (a) No other mandatory valuation dates.
[X] (b) (Specify) MARCH 31, JUNE 30 AND SEPTEMBER 30.
EFFECTIVE DATE ADDENDUM
(Restated Plans Only)
The Employer must complete this addendum only if the restated
Effective Date specified in Adoption Agreement Section 1.18 is different
than the restated effective date for at least one of the provisions listed
in this addendum. In lieu of the restated Effective Date in Adoption
Agreement Section 1.18, the following special effective dates apply:
(Choose whichever elections apply)
[ ] (a) Compensation definition. The Compensation definition of Section
1.12 (other than the $200,000 limitation) is effective for Plan Years
beginning after _________. [Note: May not be effective later than the
first day of the first Plan Year beginning after the Employer executes
this Adoption Agreement to restate the Plan for the Tax Reform Act of
1986, if applicable.]
[ ] (b) Eligibility conditions. The eligibility conditions specified in
Adoption Agreement Section 2.01 are effective for Plan Years beginning
after ______________.
[ ] (c) Suspension of Years of Service. The suspension of Years of
Service rule elected under Adoption Agreement Section 2.03 is
effective for Plan Years beginning after __________.
[ ] (d) Contribution/allocation formula. The contribution formula
elected under Adoption Agreement Section 3.01 and the method of
allocation elected under Adoption Agreement Section 3.04 is effective
for Plan Years beginning after ____________.
49
<PAGE>
[ ] (e) Accrual requirements. The accrual requirements of Section 3.06
are effective for Plan Years beginning after ____________.
[ ] (f) Employment condition. The employment condition of Section 3.06
is effective for Plan Years beginning after _____________.
[ ] (g) Elimination of Net Profits. The requirement for the Employer not
to have net profits to contribute to this Plan is effective for Plan
Years beginning after _________. [Note: The date specified may not
be earlier than December 31, 1985.]
[ ] (h) Vesting Schedule. The vesting schedule elected under Adoption
Agreement Section 5.03 is effective for Plan Years beginning
after _________.
[ ] (i) Allocation of Earnings. The special allocation provisions
elected under Adoption Agreement Section 9.11 are effective for Plan
Years beginning after __________.
[ ] (j) (Specify) _______________________________________________.
For Plan Years prior to the special Effective Date, the terms of the
Plan prior to its restatement under this Adoption Agreement will control
for purposes of the designated provisions. A special Effective Date may not
result in the delay of a Plan provision beyond the permissible Effective
Date under any applicable law requirements.
50
<PAGE>
Execution Page
The Trustee (and Custodian, if applicable), by executing this
Adoption Agreement, accepts its position and agrees to all of the
obligations, responsibilities and duties imposed upon the Trustee (or
Custodian) under the Prototype Plan and Trust. The Employer hereby agrees
to the provisions of this Plan and Trust, and in witness of its agreement,
the Employer by its duly authorized officers, has executed this Adoption
Agreement, and the Trustee (and Custodian, if applicable) signified its
acceptance, on this 14TH day of June, 1990.
Name and EIN of Employer: HUB CITY NORTH CENTRAL, L.P. 39-1245297
Signed:________________________________________________
ROLAND HAZLETT
Name(s) of Trustee: ASSOCIATED COMMERCE BANK
Signed:__________________________________________________
__________________________________________________
Name of Custodian:____________________________
Signed:_______________________________________
[Note: A Trustee is mandatory, but a Custodian is optional. See Section
10.03 of the Plan.]
Plan Number. The 3-digit plan number the Employer assigns to this Plan for
ERISA reporting purposes (Form 5500 Series) is: 001.
Use of Adoption Agreement. Failure to complete properly the elections in
this Adoption Agreement may result in disqualification of the Employer's
Plan. The 3-digit number assigned to this Adoption Agreement (see page 1)
is solely for the Regional Prototype Plan Sponsor's recordkeeping purposes
and does not necessarily correspond to the plan number the Employer
designated in the prior paragraph.
Reliance on Notification Letter. The Employer may not rely on the Regional
Prototype Plan Sponsor's notification letter covering this Adoption
Agreement. For reliance on the Plan's qualification, the Employer must
obtain a determination letter from the applicable IRS Key District office.
51
<PAGE>
PARTICIPATION AGREEMENT
For Participation by Related Group Members (Plan Section 1.30)
The undersigned Employer, by executing this Participation
Agreement, elects to become a Participating Employer in the Plan identified
in Section 1.03 of the accompanying Adoption Agreement, as if the
Participating Employer were a signatory to that Agreement. The
Participating Employer accepts, and agrees to be bound by, all of the
elections granted under the provisions of the Prototype Plan as made by _____
____________________, the Signatory Employer to the Execution Page of the
Adoption Agreement.
1. The Effective Date of the undersigned Employer's participation
in the designated Plan is: ________________.
2. The undersigned Employer's adoption of this Plan constitutes:
[ ] (a) The adoption of a new plan by the Participating Employer.
[HUB CITY NORTH CENTRAL, L.P.] (b) The adoption of an amendment and
restatement of a plan currently maintained
by the Employer, identified as ___________,
and having an original effective date of ___.
Dated this ___ day of _____________________, 19___.
Name of Participating Employer: ___________
Signed: ___________________________________
Participating Employer's EIN: ____
Acceptance by the Signatory Employer to the Execution Page of the Adoption
Agreement and by the Trustee.
Name of Signatory Employer: ____________________
________________________________________________
52
<PAGE>
Accepted: ____________
[Date] Signed: ________________________________________
Name(s) of Trustee: ____________________________
Accepted: ____________
[Date] Signed: ________________________________________
[Note: Each Participating Employer must execute a separate Participation
Agreement. See the Execution Page of the Adoption Agreement for important
Prototype Plan information.]
53
<PAGE>
LOAN POLICY
EXHIBIT A
The Advisory Committee of the HUB CITY NORTH CENTRAL, L.P. 401(K)
PROFIT SHARING PLAN adopts the following loan policy pursuant to the terms
of the Plan.
1. LOAN APPLICATION. Any Plan participant may apply for a loan from
the Plan. For purposes of this loan policy, the term "participant" means
any participant or beneficiary who is party in interest (as determined
under ERISA Section 3(14)) with respect to the Plan. A participant must apply
for each loan in writing with an application which specifies the amount of
the loan desired, the requested duration for the loan and the source of
security for the loan. The Advisory Committee will not approve any loan if
a participant is not creditworthy.
In order to be creditworthy, the participant must have established in
his or her community, a reputation which would entitle him or her to a
similar loan from a commercial or business lender. In applying for the loan
from the Plan, each participant must give full authority to investigate his
of her creditworthiness.
2. LIMITATION ON LOAN AMOUNT/PURPOSE OF LOAN. The Advisory Committee
will not approve any loan to a participant in an amount which exceeds 50%
of his or her nonforfeitable accrued benefit (account balance), as
reflected by the books and records of the Plan. The maximum aggregate
dollar amount of loans outstanding to any participant may not exceed
$50,000 as aggregated with all participant loans from other employer
qualified plans, reduced by the excess of the participant's highest
outstanding participant loan balance during the 12-month period ending on
the date of the loan over the participant's current outstanding participant
loan balance on the date of the loan. A participant may not request a loan
for less than $1000.00.
3. EVIDENCE AND TERMS OF LOAN. The Advisory Committee will document
every loan in the form of a promissory note signed by the participant for
the face amount of the loan, together with a commercially reasonable rate
of interest. The Advisory Committee will determine the appropriate interest
rate by obtaining at least one quote from a financial institution, as
chosen by the Advisory Committee, that is in the business of lending money.
The interest rate quote(s) must take into account the term of the loan, the
security on that loan, the creditworthiness of the participant, whether the
interest rate is adjustable during the term of the loan, and the intended
use of the loan proceeds, if known, and must reflect a commercially
reasonable rate for the geographical region in which the participant lives.
If participants in the Plan live in different geographical regions, the
Advisory Committee may establish a uniform commercially reasonable interest
rate applicable to all regions based on information obtained from at least
one region in which participants live. The Advisory Committee must
reevaluate interest rates for loans made more than one month since the last
loan made by the Plan.
A loan may provide a fixed rate of interest of one and one half
percent above the current Prime Rate. The Advisory Committee will determine
54
<PAGE>
whether the interest rate is commercially reasonable at the time it
approves the loan and, in the case of an adjustable rate loan, at the time
of each scheduled adjustment. The loan must provide at least quarterly
payments under a level amortization schedule. All loan payments must be
under payroll deduction.
The loan may permit a suspension of payments for a period not
exceeding one year which occurs during an approved leave of absence. The
Advisory Committee will fix the term for repayments of any loan, however,
in no instance may the term of repayment be greater than five years, unless
the loan qualifies as a home loan. `The Advisory Committee may fix the term
for repayment of a home loan for a period not to exceed 15 years. A "home
loan" is a loan used to acquire a dwelling unit which, within a reasonable
time, the participant will use as a principal residence.
Participants should note the law treats the amount of any loan (other
than a "home loan") not repaid five years after the date of the loan as a
taxable distribution on the last day of the five year period or, if sooner,
at the time the loan is in default. If a participant extends a non-home
loan having a five year or less repayment term beyond five years, the
balance of the loan at the time of the extension is a taxable distribution
to the participant.
4. SECURITY FOR LOAN. A participant must secure each loan with an
irrevocable pledge and assignment of 50% of the nonforfeitable amount of
the borrowing participant's accrued benefit under the Plan or other
security (e.g., principal residence) the Advisory Committee accepts and
finds to be adequate, or both 50% of the participant's accrued benefit and
other security. The Advisory Committee may request the borrowing
participant to secure each loan with additional collateral acceptable to
the Advisory Committee or to substitute collateral given for the loan.
5. FORM OF PLEDGE. If the participant secures the loan wholly or
partly with 50% of his vested accrued benefit, the pledge and assignment of
that portion of his accrued benefit will be in the form attached to this
Loan Policy.
6. DEFAULT/RISK OF LOSS. The Advisory Committee will treat this loan
in default if:
(a) any scheduled payment remains unpaid more than 90 days;
(b) the making or furnishing of any representation or statement to
the Plan by or on behalf of the participant which proves to have
been false in any material respect when made or furnished;
(c) loss, theft, damage, destruction, sale or encumbrance to or of
any of the collateral, or the making of any levy seizure or
attachment thereof or thereon;
(d) death, dissolution, insolvency, business failure, appointment
of 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
participant.
55
<PAGE>
The participant will have the opportunity to repay the loan, resume
current status of the loan by paying any missed payment plus interest or,
if distribution is available under the plan, request distribution of the
note. If the loan remains in default, the Advisory Committee has the option
of foreclosing on any other security it holds or, to the extent a
distribution to the participant is permissible under the Plan, offset the
participant's vested account balance by the outstanding balance of the
loan. The Advisory Committee will treat the note as repaid to the extent of
any permissible offset. Pending final disposition of the note, the
participant remains obligated for any unpaid principal and accrued
interest.
The Plan intends this loan program not to place other participants at
risk with respect to their interests in the Plan. In this regard, the
Advisory Committee will administer any participant loan as a participant
directed investment of that portion of the participant's vested account
balance equal to the outstanding principal balance of the loan. The Plan
will credit that portion of the participant's interest with the interest
earned on the note and with principal payments received by the participant.
The Plan also will charge that portion of the participant's account balance
with expenses directly related to the organization, maintenance and
collection of the note.
Dated this 14th day of June, 1990.
"ADVISORY COMMITTEE"
_______________________________
ROLAND HAZLETT
_______________________________
ROBERTA HAZLETT
56
<PAGE>
SOLUTION OF BOARD OF DIRECTORS
OF THE
HUB CITY NORTH CENTRAL, L.P.
I hereby certify that the following is a true copy of resolutions duly
adopted by the Board of Directors of the Employer at a special meeting held
on June 14, 1990.
WHEREAS, The Employer has previously adopted the Hub City North Central,
L.P. 401(k) Profit-Sharing Plan and Trust (hereinafter called the "Plan
and Trust") effective as of January 1, 1985.
WHEREAS, The Employer desires to amend and restate the Plan and Trust.
WHEREAS, The Board of Directors deems it in the best interest of the
Company and the Participants in the Plan and Trust to remove First
Interstate Bank as Trustee and appoint a Successor as indicated below:
NOW THEREFORE, Be it resolved, that First Interstate Bank is hereby removed
as Trustee of the Plan and Trust and that Associated Commerce Bank is hereby
named Successor Trustee of the Plan and Trust effective as of the date
signed below.
RESOLVED, That Associated Commerce Bank has been named Investment Manager
of the Plan and Trust with full investment authority.
RESOLVED, That effective immediately funds are to be transferred or paid
to Associated Commerce Bank as Successor Trustee of the Plan and Trust
effective as of the date signed below.
RESOLVED, That the Employer hereby amends and restates the Plan and Trust
under the terms of the Associated Commerce Bank Prototype Cash or Deferred
Profit-Sharing Plan effective for the Plan year beginning 01/01/87.
RESOLVED, That the Plan shall hereafter be known as the Hub City North
Central, Inc. 401(k) Profit-Sharing Plan and Trust (the "Plan and Trust").
FURTHER RESOLVED, That the proper officers of the Employer are hereby
authorized and directed to execute an Adoption Agreement setting forth
the terms and conditions of the Employer's amended and restated Plan.
FURTHER RESOLVED, That the Treasurer is hereby authorized and directed
to pay to the Trustee under the Employer's Plan, such sum or sums in
accordance with the terms of said plan from year to year until otherwise
directed by this board.
57
<PAGE>
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
said Employer on this 14 day of June, 1990.
CORPORATE SEAL HUB CITY NORTH CENTRAL, L.P.
BY _____________________________
58
<PAGE>
<PAGE>
HUB GROUP EMPLOYEE PROFIT SHARING TRUST AND PLAN
(May 1, 1997 Restatement)
Fidelity Management Trust Company, its affiliates and employees may not
provide you with legal or tax advice in connection with the execution of
this document. It should be reviewed by your attorney and/or accountant
prior to execution.
CORPORATEplan for RETIREMENT(SM)
VOLUME SUBMITTER
PLAN DOCUMENT SYSTEMS(TM)
59
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
-----------
1.1 - Plan Definitions
1.2 - Interpretation
ARTICLE II
SERVICE
-------
2.1 - Definitions
2.2 - Crediting of Hours of Service
2.3 - Hours of Service Equivalencies
2.4 - Limitations on Crediting of Hours of Service
2.5 - Department of Labor Rules
2.6 - Years of Eligibility Service
2.7 - Years of Vesting Service
2.8 - Crediting of Service on Transfer or Amendment
ARTICLE III
ELIGIBILITY
-----------
3.1 - Eligibility
3.2 - Transfers of Employment
3.3 - Reemployment
3.4 - Notification Concerning New Eligible Employees
3.5 - Effect and Duration
ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
--------------------------
4.1 - Tax-Deferred Contributions
4.2 - Amount of Tax-Deferred Contributions
4.3 - Changes in Reduction Authorization
4.4 - Suspension of Tax-Deferred Contributions
4.5 - Resumption of Tax-Deferred Contributions
4.6 - Delivery of Tax-Deferred Contributions
4.7 - Vesting of Tax-Deferred Contributions
ARTICLE V
AFTER-TAX AND ROLLOVER CONTRIBUTIONS
------------------------------------
5.1 - No After-Tax Contributions
5.2 - Rollover Contributions
5.3 - Vesting of Rollover Contributions
60
<PAGE>
ARTICLE VI
EMPLOYER CONTRIBUTIONS
----------------------
6.1 - Contribution Period
6.2 - Profit-Sharing Contributions
6.3 - Allocation of Profit-Sharing Contributions
6.4 - Matching Contributions
6.5 - Allocation of Matching Contributions
6.6 - Verification of Amount of Employer Contributions by the Sponsor
6.7 - Payment of Employer Contributions
6.8 - Eligibility to Participate in Allocation
6.9 - Vesting of Employer Contributions
6.10 - Election of Former Vesting Schedule
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
----------------------------
7.1 - Definitions
7.2 - Code Section 402(g) Limit
7.3 - Distribution of Excess Deferrals
7.4 - Limitation on Tax-Deferred Contributions of Highly Compensated
Employees
7.5 - Distribution of Excess Tax-Deferred Contributions
7.6 - Limitation on Matching Contributions of Highly Compensated Employees
7.7 - Distribution of Excess Contributions
7.8 - Multiple Use Limitation
7.9 - Determination of Income or Loss
7.10 - Code Section 415 Limitations on Crediting of Contributions and
Forfeitures
7.11 - Coverage Under Other Qualified Defined Contribution Plan
7.12 - Coverage Under Qualified Defined Benefit Plan
7.13 - Scope of Limitations
ARTICLE VIII
TRUST FUNDS AND SEPARATE ACCOUNTS
---------------------------------
8.1 - General Fund
8.2 - Investment Funds
8.3 - Loan Investment Fund
8.4 - Income on Trust
8.5 - Separate Accounts
8.6 - Sub-Accounts
ARTICLE IX
LIFE INSURANCE CONTRACTS
------------------------
9.1 - No Life Insurance Contracts
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<PAGE>
ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
---------------------------------------
10.1 - Future Contribution Investment Elections
10.2 - Deposit of Contributions
10.3 - Election to Transfer Between Funds
ARTICLE XI
CREDITING AND VALUING SEPARATE ACCOUNTS
---------------------------------------
11.1 - Crediting Separate Accounts
11.2 - Valuing Separate Accounts
11.3 - Plan Valuation Procedures
11.4 - Finality of Determinations
11.5 - Notification
ARTICLE XII
LOANS
-----
12.1 - Application for Loan
12.2 - Reduction of Account Upon Distribution
12.3 - Requirements to Prevent a Taxable Distribution
12.4 - Administration of Loan Investment Fund
12.5 - Default
12.6 - Special Rules Applicable to Loans
12.7 - Loans Granted Prior to Amendment
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
--------------------------
13.1 - Withdrawals of Rollover Contributions
13.2 - Withdrawals of Tax-Deferred Contributions
13.3 - Conditions and Limitations on Hardship Withdrawals
13.4 - Order of Withdrawal from a Participant's Sub-Accounts
ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
---------------------------------------------
14.1 - Termination of Employment and Settlement Date
ARTICLE XV
DISTRIBUTIONS
-------------
15.1 - Distributions to Participants
15.2 - Distributions to Beneficiaries
15.3 - Cash Outs and Participant Consent
15.4 - Required Commencement of Distribution
15.5 - Reemployment of a Participant
15.6 - Restrictions on Alienation
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15.7 - Facility of Payment
15.8 - Inability to Locate Payee
15.9 - Distribution Pursuant to Qualified Domestic Relations Orders
ARTICLE XVI
FORM OF PAYMENT
---------------
16.1 - Normal Form of Payment
16.2 - Optional Form of Payment
16.3 - Change of Option Election
16.4 - Direct Rollover
16.5 - Notice Regarding Forms of Payment
16.6 - Reemployment
ARTICLE XVII
BENEFICIARIES
-------------
17.1 - Designation of Beneficiary
17.2 - Spousal Consent Requirements
ARTICLE XVIII
ADMINISTRATION
--------------
18.1 - Authority of the Sponsor
18.2 - Action of the Sponsor
18.3 - Claims Review Procedure
18.4 - Qualified Domestic Relations Orders
18.5 - Indemnification
18.6 - Actions Binding
ARTICLE XIX
AMENDMENT AND TERMINATION
-------------------------
19.1 - Amendment
19.2 - Limitation on Amendment
19.3 - Termination
19.4 - Reorganization
19.5 - Withdrawal of an Employer
ARTICLE XX
ADOPTION BY OTHER ENTITIES
--------------------------
20.1 - Adoption by Other Entities
20.2 - Effective Plan Provisions
ARTICLE XXI
MISCELLANEOUS PROVISIONS
------------------------
21.1 - No Commitment as to Employment
21.2 - Benefits
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21.3 - No Guarantees
21.4 - Expenses
21.5 - Precedent
21.6 - Duty to Furnish Information
21.7 - Withholding
21.8 - Merger, Consolidation, or Transfer of Plan Assets
21.9 - Back Pay Awards
21.10 - Condition on Employer Contributions
21.11 - Return of Contributions to an Employer
21.12 - Validity of Plan
21.13 - Trust Agreement
21.14 - Parties Bound
21.15 - Application of Certain Plan Provisions
21.16 - Leased Employees
21.17 - Transferred Funds
ARTICLE XXII
TOP-HEAVY PROVISIONS
--------------------
22.1 - Definitions
22.2 - Applicability
22.3 - Minimum Employer Contribution
22.4 - Adjustments to Section 415 Limitations
ARTICLE XXIII
EFFECTIVE DATE
--------------
23.1 - Effective Date of Amendment and Restatement
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<PAGE>
PREAMBLE
The Hub Group Employee Profit Sharing Trust and Plan, originally effective
as of January 1, 1986, is hereby amended and restated in its entirety. The
Plan, as amended and restated hereby, is intended to qualify as a
profit-sharing plan under Section 401(a) of the Code, and includes a cash
or deferred arrangement that is intended to qualify under Section 401(k) of
the Code. The Plan is maintained for the exclusive benefit of eligible
employees and their beneficiaries.
Notwithstanding any other provision of the Plan to the contrary, a
Participant's vested interest in his Separate Account under the Plan on and
after the effective date of this amendment and restatement shall be not
less than his vested interest in his account on the day immediately
preceding the effective date. In addition, notwithstanding any other
provision of the Plan to the contrary, the forms of payment and other Plan
provisions that were available under the Plan immediately prior to the
later of the effective date of this amendment and restatement or the date
this amendment and restatement is adopted and that may not be eliminated
under Section 411(d)(6) of the Code shall continue to be available to
Participants who had an account under the Plan on the day immediately
preceding the later of the effective date or the date this amendment and
restatement is adopted.
ARTICLE I
DEFINITIONS
1.1 - Plan Definitions
As used herein, the following words and phrases have the meanings
hereinafter set forth, unless a different meaning is plainly required by
the context:
The "Administrator" means the Sponsor unless the Sponsor designates another
person or persons to act as such.
An "After-Tax Contribution" means any after-tax employee contribution made
by a Participant as may be permitted under Article V.
The "Beneficiary" of a Participant means the person or persons entitled
under the provisions of the Plan to receive distribution hereunder in the
event the Participant dies before receiving distribution of his entire
interest under the Plan.
The "Code" means the Internal Revenue Code of 1986, as amended from time to
time. Reference to a section of the Code includes such section and any
comparable section or sections of any future legislation that amends,
supplements, or supersedes such section.
The "Compensation" of a Participant for any period means the wages as
defined in Section 3401(a) of the Code, determined without regard to any
rules that limit compensation included in wages based on the nature or
65
<PAGE>
location of the employment or services performed, and all other payments
made to him for such period for services as an Employee for which his
Employer is required to furnish the Participant a written statement under
Sections 6041(d), 6051(a)(3), and 6052 of the Code, and excluding
reimbursements or other expense allowances, fringe benefits, moving
expenses, deferred compensation, and welfare benefits, but determined prior
to any exclusions for amounts deferred under Section 125, 402(e)(3),
402(h)(1)(B), 403(b), or 457(b) of the Code or for certain contributions
described in Section 414(h)(2) of the Code that are picked up by the
employing unit and treated as employer contributions.
In no event, however, shall the Compensation of a Participant taken into
account under the Plan for any Plan Year exceed (1) $200,000 for Plan Years
beginning prior to January 1, 1994, or (2) $150,000 for Plan Years
beginning on or after January 1, 1994 (subject to adjustment annually as
provided in Section 401(a)(17)(B) and Section 415(d) of the Code; provided,
however, that the dollar increase in effect on January 1 of any calendar
year, if any, is effective for Plan Years beginning in such calendar year).
If the Compensation of a Participant is determined over a period of time
that contains fewer than 12 calendar months, then the annual compensation
limitation described above shall be adjusted with respect to that
Participant by multiplying the annual compensation limitation in effect for
the Plan Year by a fraction the numerator of which is the number of full
months in the period and the denominator of which is 12; provided, however,
that no proration is required for a Participant who is covered under the
Plan for less than one full Plan Year if the formula for allocations is
based on Compensation for a period of at least 12 months. In determining
the Compensation, for purposes of applying the annual compensation
limitation described above, of a Participant who is a five percent owner or
among the ten Highly Compensated Employees receiving the greatest
Compensation for the Plan Year, the Compensation of the Participant's
spouse and of his lineal descendants who have not attained age 19 as of the
close of the Plan Year shall be included as Compensation of the Participant
for the Plan Year. If as a result of applying the family aggregation rule
described in the preceding sentence the annual compensation limitation
would be exceeded, the limitation shall be prorated among the affected
family members in proportion to each member's Compensation as determined
prior to application of the family aggregation rules.
A "Contribution Period" means the period specified in Article VI for which
Employer Contributions shall be made.
An "Eligible Employee" means any Employee who has met the eligibility
requirements of Article III to have Tax-Deferred Contributions made to the
Plan on his behalf.
The "Eligibility Service" of an employee means the period or periods of
service credited to him under the provisions of Article II for purposes of
determining his eligibility to participate in the Plan as may be required
under Article III or Article VI.
An "Employee" means any employee of an Employer other than an employee who
is covered by a collective bargaining agreement that does not specifically
provide for coverage under the Plan.
An "Employer" means the Sponsor and any entity which has adopted the Plan
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as may be provided under Article XX, including Hub City Atlanta, L.P., Hub
City Mid-Atlantic, L.P., Hub City Alabama, L.P., Hub City Boston, L.P., Hub
City Terminals, Inc., Hub City Cleveland, L.P., Hub City Dallas, L.P., Hub
City Detroit, L.P., Hub City Houston, L.P., Hub City Indianapolis, L.P.,
Hub City Florida, L.P., Hub City Kansas City, L.P., Hub City Los Angeles,
L.P., Hub City Tennessee, L.P., Hub City New Orleans, L.P., Hub City New
York/New Jersey, L.P., Hub City Philadelphia, L.P., Hub City Pittsburgh,
L.P., Hub City Portland, L.P., Hub City New York State, L.P., Hub City Rio
Grande, L.P., Hub City Golden Gate, L.P., Hub City St. Louis, L.P., Hub
City Ohio, L.P., Hub Group Distribution Services, HLX Company, L.L.C.,
Quality Services, L.L.C., Quality Services of Michigan, L.L.C. and Hub City
New Haven, L.P.
An "Employer Contribution" means the amount, if any, that an Employer
contributes to the Plan as may be provided under Article VI or Article
XXII.
An "Enrollment Date" means the first day of each Plan Year quarter.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to a section of ERISA includes such
section and any comparable section or sections of any future legislation
that amends, supplements, or supersedes such section.
The "General Fund" means a Trust Fund maintained by the Trustee as required
to hold and administer any assets of the Trust that are not allocated among
any separate Investment Funds as may be provided in the Plan or the Trust
Agreement. No General Fund shall be maintained if all assets of the Trust
are allocated among separate Investment Funds.
A "Highly Compensated Employee" means an Employee or former Employee who is
a highly compensated active employee or highly compensated former employee
as defined hereunder.
A "highly compensated active employee" includes any Employee who performs
services for an Employer during the determination year and who (i) was a
five percent owner at any time during the determination year or the look
back year, (ii) received compensation from an Employer during the look back
year in excess of $75,000 (subject to adjustment annually at the same time
and in the same manner as under Section 415(d) of the Code), (iii) was in
the top paid group of employees for the look back year and received
compensation from an Employer during the look back year in excess of
$50,000 (subject to adjustment annually at the same time and in the same
manner as under Section 415(d) of the Code), (iv) was an officer of an
Employer during the look back year and received compensation during that
year in excess of 50 percent of the dollar limitation in effect for that
year under Section 415(b)(1)(A) of the Code or, if no officer received
compensation in excess of that amount for the look back year or the
determination year, received the greatest compensation for the look back
year of any officer, or (v) was one of the 100 employees paid the greatest
compensation by an Employer for the determination year and would be
described in (ii), (iii), or (iv) above if the term "determination year"
were substituted for "look back year".
A "highly compensated former employee" includes any Employee who separated
from service from an Employer and all Related Companies (or is deemed to
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have separated from service from an Employer and all Related Companies)
prior to the determination year, performed no services for an Employer
during the determination year, and was a highly compensated active employee
for either the separation year or any determination year ending on or after
the date the Employee attains age 55.
The determination of who is a Highly Compensated Employee hereunder,
including determinations as to the number and identity of employees in the
top paid group, the 100 employees receiving the greatest compensation from
an Employer, the number of employees treated as officers, and the
compensation considered, shall be made in accordance with the provisions of
Section 414(q) of the Code and regulations issued thereunder. For purposes
of this definition, the following terms have the following meanings:
(a) The "determination year" means the Plan Year or, if the Administrator
makes the election provided in paragraph (b) below, the period of time, if
any, which extends beyond the look back year and ends on the last day of
the Plan Year for which testing is being performed (the "lag period"). If
the lag period is less than 12 months long, the dollar amounts specified
in (ii), (iii), and (iv) above shall be prorated based upon the number of
months in the lag period.
(b) The "look back year" means the 12-month period immediately preceding the
determination year; provided, however, that the Administrator may elect
instead to treat the calendar year ending with or within the determination
year as the "look back year".
An "Hour of Service" with respect to a person means each hour, if any, that
may be credited to him in accordance with the provisions of Article II.
An "Investment Fund" means any separate investment Trust Fund maintained by
the Trustee as may be provided in the Plan or the Trust Agreement or any
separate investment fund maintained by the Trustee, to the extent that
there are Participant Sub-Accounts under such funds, to which assets of the
Trust may be allocated and separately invested.
A "Matching Contribution" means any Employer Contribution made to the Plan
on account of a Participant's Tax-Deferred Contributions as provided in
Article VI.
The "Normal Retirement Date" of an employee means the date he attains age
65.
A "Participant" means any person who has a Separate Account in the Trust.
The "Plan" means Hub Group Employee Profit Sharing Trust and Plan, as from
time to time in effect.
A "Plan Year" means the 12-consecutive-month period ending December 31.
A "Predecessor Employer" means Hub City Atlanta, L.P., Hub City
Mid-Atlantic, L.P., Hub City Alabama, L.P., Hub City Boston, L.P., Hub City
Terminals, Inc., Hub City Cleveland, L.P., Hub City Dallas, L.P., Hub City
Detroit, L.P., Hub City Houston, L.P., Hub City Indianapolis, L.P., Hub
City Florida, L.P., Hub City Kansas City, L.P., Hub City Los Angeles, L.P.,
Hub City Tennessee, L.P., Hub City New Orleans, L.P., Hub City New York/New
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Jersey, L.P., Hub City Philadelphia, L.P., Hub City Pittsburgh, L.P., Hub
City Portland, L.P., Hub City New York State, L.P., Hub City Rio Grande,
L.P., Hub City Golden Gate, L.P., Hub City St. Louis, L.P., Hub City Ohio,
L.P., Hub Group Distribution Services, HLX Company, L.L.C., Quality
Services, L.L.C., Quality Services of Michigan, L.L.C. and Hub City New
Haven, L.P.
A "Profit-Sharing Contribution" means any Employer Contribution made to the
Plan as provided in Article VI, other than Matching Contributions.
A "Related Company" means any corporation or business, other than an
Employer, which would be aggregated with an Employer for a relevant purpose
under Section 414 of the Code.
A "Rollover Contribution" means any rollover contribution to the Plan made
by a Participant as may be permitted under Article V.
A "Separate Account" means the account maintained by the Trustee in the
name of a Participant that reflects his interest in the Trust and any
Sub-Accounts maintained thereunder, as provided in Article VIII.
The "Settlement Date" of a Participant means the date on which a
Participant's interest under the Plan becomes distributable in accordance
with Article XV.
The "Sponsor" means Hub Group, Inc., and any successor thereto.
A "Sub-Account" means any of the individual sub-accounts of a Participant's
Separate Account that is maintained as provided in Article VIII.
A "Tax-Deferred Contribution" means the amount contributed to the Plan on a
Participant's behalf by his Employer in accordance with his reduction
authorization executed pursuant to Article IV.
The "Trust" means the trust maintained by the Trustee under the Trust
Agreement.
The "Trust Agreement" means the agreement entered into between the Sponsor
and the Trustee relating to the holding, investment, and reinvestment of
the assets of the Plan, together with all amendments thereto.
The "Trustee" means the trustee or any successor trustee which at the time
shall be designated, qualified, and acting under the Trust Agreement. The
Sponsor may designate a person or persons other than the Trustee to perform
any responsibility of the Trustee under the Plan, other than trustee
responsibilities as defined in Section 405(c)(3) of ERISA, and the Trustee
shall not be liable for the performance of such person in carrying out such
responsibility except as otherwise provided by ERISA. The term Trustee
shall include any delegate of the Trustee as may be provided in the Trust
Agreement.
A "Trust Fund" means any fund maintained under the Trust by the Trustee.
A "Valuation Date" means the date or dates designated by the Sponsor and
communicated in writing to the Trustee for the purpose of valuing the
General Fund and each Investment Fund and adjusting Separate Accounts and
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Sub-Accounts hereunder, which dates need not be uniform with respect to the
General Fund, each Investment Fund, Separate Account, or Sub-Account;
provided, however, that the General Fund and each Investment Fund shall be
valued and each Separate Account and Sub-Account shall be adjusted no less
often than once annually.
The "Vesting Service" of an employee means the period or periods of service
credited to him under the provisions of Article II for purposes of
determining his vested interest in his Employer Contributions Sub-Account,
if Employer Contributions are provided for under either Article VI or
Article XXII.
1.2 - Interpretation
Where required by the context, the noun, verb, adjective, and adverb forms
of each defined term shall include any of its other forms. Wherever used
herein, the masculine pronoun shall include the feminine, the singular
shall include the plural, and the plural shall include the singular.
ARTICLE II
SERVICE
2.1 - Definitions
For purposes of this Article, the following terms have the following
meanings.
(a) A "break in service" means any computation period during which a person
completes less than 501 Hours of Service except that no person shall incur
a break in service solely by reason of temporary absence from work not
exceeding 12 months resulting from illness, layoff, or other cause if
authorized in advance by an Employer or a Related Company pursuant to its
uniform leave policy, if his employment shall not otherwise be terminated
during the period of such absence.
(b) A "computation period" for purposes of determining an employee's years
of Eligibility Service means (i) the 12-consecutive-month period beginning
on the first date he completes an Hour of Service, and (ii) each
12-consecutive-month period beginning on an anniversary of such date.
(c) A "maternity/paternity absence" means a person's absence from employment
with an Employer or a Related Company because of the person's pregnancy,
the birth of the person's child, the placement of a child with the person
in connection with the person's adoption of the child, or the caring for
the person's child immediately following the child's birth or adoption. A
person's absence from employment will not be considered a
maternity/paternity absence unless the person furnishes the Administrator
such timely information as may reasonably be required to establish that
the absence was for one of the purposes enumerated in this paragraph and
to establish the number of days of absence attributable to such purpose.
2.2 - Crediting of Hours of Service
A person shall be credited with an Hour of Service for:
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(a) each hour for which he is paid, or entitled to payment, for the
performance of duties for an Employer, a Predecessor Employer, or a
Related Company during the applicable computation period; provided,
however, that hours compensated at a premium rate shall be treated as
straight-time hours;
(b) subject to the provisions of Section 2.4, each hour for which he is
paid, or entitled to payment, by an Employer, a Predecessor Employer, or a
Related Company on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), lay-off, jury duty, military duty, or leave of absence;
(c) each hour for which he would have been scheduled to work for an
Employer, a Predecessor Employer, or a Related Company during the period
that he is absent from work because of service with the armed forces of
the United States provided he is eligible for reemployment rights under
the Uniformed Services Employment and Reemployment Rights Act of 1994 and
returns to work with an Employer or a Related Company within the period
during which he retains such reemployment rights; and
(d) each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by an Employer, a Predecessor Employer, or a
Related Company; provided, however, that the same Hour of Service shall
not be credited both under paragraph (a) or (b) or (c) of this Section,
as the case may be, and under this paragraph (d); and provided, further,
that the crediting of Hours of Service for back pay awarded or agreed to
with respect to periods described in such paragraph (b) shall be subject
to the limitations set forth therein and in Section 2.4.
Notwithstanding the foregoing and solely for purposes of determining
whether a person who is on a maternity/paternity absence beginning on or
after the first day of the first Plan Year that commences on or after
January 1, 1985, has incurred a break in service, Hours of Service shall
include those hours with which such person would otherwise have been
credited but for such maternity/paternity absence, or shall include eight
Hours of Service for each day of maternity/paternity absence if the actual
hours to be credited cannot be determined; except that not more than 501
hours are to be credited by reason of any maternity/paternity absence. Any
hours included as Hours of Service pursuant to the immediately preceding
sentence shall be credited to the computation period in which the absence
from employment begins, if such person otherwise would incur a break in
service in such computation period, or, in any other case, to the
immediately following computation period.
2.3 - Hours of Service Equivalencies
Notwithstanding any other provision of the Plan to the contrary, an
Employer may elect to credit Hours of Service to its employees in
accordance with one of the following equivalencies, and if an Employer does
not maintain records that accurately reflect actual hours of service such
Employer shall credit Hours of Service to its employees in accordance with
one of the following equivalencies:
(a) If the Employer maintains its records on the basis of days worked, an
employee shall be credited with 10 Hours of Service for each day on which
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he performs an Hour of Service.
(b) If the Employer maintains its records on the basis of weeks worked, an
employee shall be credited with 45 Hours of Service for each week in which
he performs an Hour of Service.
(c) If the Employer maintains its records on the basis of semi-monthly
payroll periods, an employee shall be credited with 95 Hours of Service
for each semi-monthly payroll period in which he performs an Hour of
Service.
(d) If the Employer maintains its records on the basis of months worked, an
employee shall be credited with 190 Hours of Service for each month in
which he performs an Hour of Service.
2.4 - Limitations on Crediting of Hours of Service
In the application of the provisions of paragraph (b) of Section 2.2, the
following shall apply:
(a) An hour for which a person is directly or indirectly paid, or entitled
to payment, on account of a period during which no duties are performed
shall not be credited to him if such payment is made or due under a plan
maintained solely for the purpose of complying with applicable workers'
compensation, unemployment compensation, or disability insurance laws.
(b) Hours of Service shall not be credited with respect to a payment which
solely reimburses a person for medical or medically-related expenses
incurred by him.
(c) A payment shall be deemed to be made by or due from an Employer, a
Predecessor Employer, or a Related Company (i) regardless of whether such
payment is made by or due from such employer directly or indirectly,
through (among others) a trust fund or insurer to which any such employer
contributes or pays premiums, and (ii) regardless of whether contributions
made or due to such trust fund, insurer, or other entity are for the
benefit of particular persons or are on behalf of a group of persons in
the aggregate.
(d) No more than 501 Hours of Service shall be credited to a person on
account of any single continuous period during which he performs no duties
(whether or not such period occurs in a single computation period), unless
no duties are performed due to service with the armed forces of the United
States for which the person retains reemployment rights as provided in
paragraph (c) of Section 2.2.
2.5 - Department of Labor Rules
The rules set forth in paragraphs (b) and (c) of Department of Labor
Regulations 2530.200b-2, which relate to determining Hours of Service
attributable to reasons other than the performance of duties and crediting
Hours of Service to computation periods, are hereby incorporated into the
Plan by reference.
2.6 - Years of Eligibility Service
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An employee shall be credited with a year of Eligibility Service for each
computation period in which he completes at least 1,000 Hours of Service.
2.7 - Years of Vesting Service
There shall be no years of Vesting Service credited under the Plan.
2.8 - Crediting of Service on Transfer or Amendment
Notwithstanding any other provision of the Plan to the contrary, if an
Employee is transferred from employment covered under a qualified plan
maintained by an Employer or a Related Company for which service is
credited based on elapsed time in accordance with Treasury Regulations
1.410(a)-7 to employment covered under the Plan or, prior to amendment, the
Plan provided for crediting of service on the basis of elapsed time, an
affected Employee shall be credited with Eligibility Service hereunder
equal to:
(a) the number of one year periods of service credited to the Employee under
the elapsed time method before the transfer date or the effective date of
the amendment, plus
(b) his service under the Hours of Service method provided hereunder for the
computation period in which the transfer or the effective date of the
amendment occurs applying one of the equivalencies set forth in Section
2.3 to any fractional part of a year credited to the Employee under the
elapsed time method as of the transfer date or the effective date of the
amendment; provided, however that the same equivalency shall be used for
all similarly situated Employees, plus
(c) the service credited to such Employee under the Hours of Service method
provided hereunder for computation periods beginning after the computation
period in which the transfer or the effective date of the amendment occurs.
ARTICLE III
ELIGIBILITY
3.1 - Eligibility
Each Employee who was an Eligible Employee immediately prior to the
effective date of this amendment and restatement shall continue to be an
Eligible Employee. Each other Employee shall become an Eligible Employee
as of the Enrollment Date coinciding with or next following the date on
which he has both attained age 21 and completed one year of Eligibility
Service.
3.2 - Transfers of Employment
If a person is transferred directly from employment with an Employer or
with a Related Company in a capacity other than as an Employee to
employment as an Employee, he shall become an Eligible Employee as of the
date he is so transferred if prior to an Enrollment Date coinciding with or
preceding such transfer date he has met the eligibility requirements of
Section 3.1. Otherwise, the eligibility of a person who is so transferred
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to elect to have Tax-Deferred Contributions made to the Plan on his behalf
shall be determined in accordance with Section 3.1.
3.3 - Reemployment
If a person who terminated employment with an Employer and all Related
Companies is reemployed as an Employee and if he had been an Eligible
Employee prior to his termination of employment, he shall again become an
Eligible Employee on the date he is reemployed. Otherwise, the eligibility
of a person who terminated employment with an Employer and all Related
Companies and who is reemployed by an Employer or a Related Company to
elect to have Tax-Deferred Contributions made to the Plan on his behalf
shall be determined in accordance with Section 3.1 or 3.2.
3.4 - Notification Concerning New Eligible Employees
Each Employer shall notify the Administrator as soon as practicable of
Employees becoming Eligible Employees as of any date.
3.5 - Effect and Duration
Upon becoming an Eligible Employee, an Employee shall be entitled to elect
to have Tax-Deferred Contributions made to the Plan on his behalf and shall
be bound by all the terms and conditions of the Plan and the Trust
Agreement. A person shall continue as an Eligible Employee eligible to
have Tax-Deferred Contributions made to the Plan on his behalf only so long
as he continues employment as an Employee.
ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
4.1 - Tax-Deferred Contributions
Effective as of the date he becomes an Eligible Employee, or any subsequent
Enrollment Date, each Eligible Employee may elect in writing in accordance
with rules prescribed by the Administrator to have Tax-Deferred
Contributions made to the Plan on his behalf by his Employer as hereinafter
provided. An Eligible Employee's written election shall include his
authorization for his Employer to reduce his Compensation and to make
Tax-Deferred Contributions on his behalf and his election as to the
investment of his contributions in accordance with Article X. Tax-Deferred
Contributions on behalf of an Eligible Employee shall commence with the
first payment of Compensation made on or after the date on which his
election is effective.
4.2 - Amount of Tax-Deferred Contributions
The amount of Tax-Deferred Contributions to be made to the Plan on behalf
of an Eligible Employee by his Employer shall be an integral percentage of
his Compensation of not less than 1 percent nor more than 15 percent. In
the event an Eligible Employee elects to have his Employer make
Tax-Deferred Contributions on his behalf, his Compensation shall be reduced
for each payroll period by the percentage he elects to have contributed on
his behalf to the Plan in accordance with the terms of his currently
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effective reduction authorization.
4.3 - Changes in Reduction Authorization
An Eligible Employee may change the percentage of his future Compensation
that his Employer contributes on his behalf as Tax-Deferred Contributions
at such time or times during the Plan Year as the Administrator may
prescribe by filing an amended reduction authorization with his Employer
such number of days prior to the date such change is to become effective as
the Administrator shall prescribe. An Eligible Employee who changes his
reduction authorization shall be limited to selecting a percentage of his
Compensation that is otherwise permitted hereunder. Tax-Deferred
Contributions shall be made on behalf of such Eligible Employee by his
Employer pursuant to his amended reduction authorization filed in
accordance with this Section commencing with Compensation paid to the
Eligible Employee on or after the date such filing is effective, until
otherwise altered or terminated in accordance with the Plan.
4.4 - Suspension of Tax-Deferred Contributions
An Eligible Employee on whose behalf Tax-Deferred Contributions are being
made may have such contributions suspended at any time by giving such
number of days advance written notice to his Employer as the Administrator
shall prescribe. Any such voluntary suspension shall take effect
commencing with Compensation paid to such Eligible Employee on or after the
expiration of the required notice period and shall remain in effect until
Tax-Deferred Contributions are resumed as hereinafter set forth.
4.5 - Resumption of Tax-Deferred Contributions
An Eligible Employee who has voluntarily suspended his Tax-Deferred
Contributions may have such contributions resumed at such time or times
during the Plan Year as the Administrator may prescribe, by filing a new
reduction authorization with his Employer such number of days prior to the
date as of which such contributions are to be resumed as the Administrator
shall prescribe.
4.6 - Delivery of Tax-Deferred Contributions
As soon after the date an amount would otherwise be paid to an Employee as
it can reasonably be separated from Employer assets, each Employer shall
cause to be delivered to the Trustee in cash all Tax-Deferred Contributions
attributable to such amounts.
4.7 - Vesting of Tax-Deferred Contributions
A Participant's vested interest in his Tax-Deferred Contributions
Sub-Account shall be at all times 100 percent.
ARTICLE V
AFTER-TAX AND ROLLOVER CONTRIBUTIONS
5.1 - No After-Tax Contributions
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There shall be no After-Tax Contributions made to the Plan.
5.2 - Rollover Contributions
An Employee who was a participant in a plan qualified under Section 401 or
403 of the Code and who receives a cash distribution from such plan that he
elects either (i) to roll over immediately to a qualified retirement plan
or (ii) to roll over into a conduit IRA from which he receives a later cash
distribution, may elect to make a Rollover Contribution to the Plan if he
is entitled under Section 402(c), Section 403(a)(4), or Section
408(d)(3)(A) of the Code to roll over such distribution to another
qualified retirement plan. The Administrator may require an Employee to
provide it with such information as it deems necessary or desirable to show
that he is entitled to roll over such distribution to another qualified
retirement plan. An Employee shall make a Rollover Contribution to the
Plan by delivering, or causing to be delivered, to the Trustee the cash
that constitutes the Rollover Contribution amount within 60 days of receipt
of the distribution from the plan or from the conduit IRA in the manner
prescribed by the Administrator. If the Employee does not already have an
investment election on file with the Administrator, the Employee shall also
deliver to the Administrator his election as to the investment of his
contributions in accordance with Article X.
5.3 - Vesting of Rollover Contributions
A Participant's vested interest in his Rollover Contributions Sub-Account
shall be at all times 100 percent.
ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1 - Contribution Period
The Contribution Period for Employer Contributions under the Plan shall be
each Plan Year.
6.2 - Profit-Sharing Contributions
Each Employer may, in its discretion, make a Profit-Sharing Contribution to
the Plan for the Contribution Period in an amount determined by the
Sponsor.
6.3 - Allocation of Profit-Sharing Contributions
Any Profit-Sharing Contribution made for a Contribution Period shall be
allocated among the Employees who are eligible to participate in the
allocation of Profit-Sharing Contributions for the Contribution Period, as
determined under this Article. The allocable share of each such Employee
shall be in the ratio which his Compensation from the Employers for the
Contribution Period bears to the aggregate of such Compensation for all
such Employees. Notwithstanding any other provision of the Plan to the
contrary, Compensation with respect to any period ending prior to the date
on which an Employee first became eligible to participate in the allocation
of Profit-Sharing Contributions shall be disregarded in determining the
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amount of the Employee's allocable share.
6.4 - Matching Contributions
Each Employer shall make a Matching Contribution to the Plan for each
Contribution Period in an amount equal to 20 percent of the Tax-Deferred
Contributions for the Contribution Period made on behalf of its Employees
during the Contribution Period who are eligible to participate in the
allocation of Matching Contributions for the Contribution Period, as
determined under this Article; provided, however, that that Matching
Contribution made on behalf of any such Employee for the Contribution
Period shall not exceed $100.
6.5 - Allocation of Matching Contributions
Any Matching Contribution made by an Employer for the Contribution Period
shall be allocated among its Employees during the Contribution Period who
are eligible to participate in the allocation of Matching Contributions for
the Contribution Period, as determined under this Article. The allocable
share of each such Employee shall be an amount equal to 20 percent of the
Tax-Deferred Contributions; provided, however, that the allocable share of
the Matching Contribution of any such Employee for the Contribution Period
shall not exceed $100.
6.6 - Verification of Amount of Employer Contributions by the Sponsor
The Sponsor shall verify the amount of Employer Contributions to be made by
each Employer in accordance with the provisions of the Plan.
Notwithstanding any other provision of the Plan to the contrary, the
Sponsor shall determine the portion of the Employer Contribution to be made
by each Employer with respect to an Employee who transfers from employment
with one Employer as an Employee to employment with another Employer as an
Employee.
6.7 - Payment of Employer Contributions
Employer Contributions made for a Contribution Period shall be paid in cash
or in qualifying employer securities, as defined in Section 407(d)(5) of
ERISA, to the Trustee within the period of time required under the Code in
order for the contribution to be deductible by the Employer in determining
its Federal income taxes for the Plan Year.
6.8 - Eligibility to Participate in Allocation
Each Employee shall be eligible to participate in the allocation of
Employer Contributions beginning on the date he becomes, or again becomes,
an Eligible Employee in accordance with the provisions of Article III.
Notwithstanding the foregoing, no person shall be eligible to participate
in the allocation of Profit-Sharing Contributions for a Contribution Period
unless he is employed by an Employer or a Related Company on the last day
of the Contribution Period; provided, however, that if the Plan would not
otherwise meet the minimum coverage requirements of Section 410(b) of the
Code in any Plan Year, the group of Employees eligible to participate in
the allocation of Profit-Sharing Contributions shall be expanded to include
the minimum number of Employees who are not employed by an Employer or a
Related Company on the last day of the Contribution Period that is
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necessary to meet the minimum coverage requirements. The Employees who
become eligible to participate under the provisions of the immediately
preceding clause shall be those Employees who have completed the greatest
number of Hours of Service during the Contribution Period.
6.9 - Vesting of Employer Contributions
A Participant's vested interest in his Employer Contributions Sub-Account
shall be at all times 100 percent.
6.10 - Election of Former Vesting Schedule
If the Sponsor adopts an amendment to the Plan that directly or indirectly
affects the computation of a Participant's vested interest in his Employer
Contributions Sub-Account, any Participant with three or more years of
Vesting Service shall have a right to have his vested interest in his
Employer Contributions Sub-Account continue to be determined under the
vesting provisions in effect prior to the amendment rather than under the
new vesting provisions, unless the vested interest of the Participant in
his Employer Contributions Sub-Account under the Plan as amended is not at
any time less than such vested interest determined without regard to the
amendment. A Participant shall exercise his right under this Section by
giving written notice of his exercise thereof to the Administrator within
60 days after the latest of (i) the date he receives notice of the
amendment from the Administrator, (ii) the effective date of the amendment,
or (iii) the date the amendment is adopted. Notwithstanding the foregoing,
a Participant's vested interest in his Employer Contributions Sub-Account
on the effective date of such an amendment shall not be less than his
vested interest in his Employer Contributions Sub-Account immediately prior
to the effective date of the amendment.
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 - Definitions
For purposes of this Article, the following terms have the following
meanings:
(a) The "actual deferral percentage" with respect to an Eligible Employee
for a particular Plan Year means the ratio of the Tax-Deferred
Contributions made on his behalf for the Plan Year to his test
compensation for the Plan Year; provided, however, that contributions
made on a Participant's behalf for a Plan Year shall be included in
determining his actual deferral percentage for such Plan Year only if the
contributions are made to the Plan prior to the end of the 12-month period
immediately following the Plan Year to which the contributions relate.
The determination and treatment of the actual deferral percentage amounts
for any Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(b) The "aggregate limit" means the sum of (i) 125 percent of the greater of
the average contribution percentage for eligible participants other than
Highly Compensated Employees or the average actual deferral percentage for
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Eligible Employees other than Highly Compensated Employees and (ii) the
lesser of 200 percent or two plus the lesser of such average contribution
percentage or average actual deferral percentage, or, if it would result
in a larger aggregate limit, the sum of (iii) 125 percent of the lesser of
the average contribution percentage for eligible participants other than
Highly Compensated Employees or the average actual deferral percentage for
Eligible Employees other than Highly Compensated Employees and (iv) the
lesser of 200 percent or two plus the greater of such average contribution
percentage or average actual deferral percentage.
(c) The "annual addition" with respect to a Participant for a limitation
year means the sum of the Tax-Deferred Contributions and Employer
Contributions allocated to his Separate Account for the limitation year
(including any excess contributions that are distributed pursuant to this
Article), the employer contributions, employee contributions, and
forfeitures allocated to his accounts for the limitation year under any
other qualified defined contribution plan (whether or not terminated)
maintained by an Employer or a Related Company concurrently with the Plan,
and amounts described in Sections 415(l)(2) and 419A(d)(2) of the Code
allocated to his account for the limitation year; provided, however, that
the annual addition for limitation years beginning prior to January 1,
1987 shall not be recalculated to treat all employee contributions as
annual additions.
(d) The "Code Section 402(g) limit" means the dollar limit imposed by
Section 402(g)(1) of the Code or established by the Secretary of the
Treasury pursuant to Section 402(g)(5) of the Code in effect on January 1
of the calendar year in which an Eligible Employee's taxable year begins.
(e) The "contribution percentage" with respect to an eligible participant
for a particular Plan Year means the ratio of the matching contributions
made to the Plan on his behalf for the Plan Year to his test compensation
for such Plan Year, except that, to the extent permitted by regulations
issued under Section 401(m) of the Code, the Sponsor may elect to take
in to account in computing the numerator of each eligible participant's
contribution percentage the Tax-Deferred Contributions made to the Plan on
his behalf for the Plan Year; provided, however, that any Tax-Deferred
Contributions that were taken into account in computing the numerator of
an eligible participant's actual deferral percentage may not be taken into
account in computing the numerator of his contribution percentage; and
provided, further, that contributions made by or on a Participant's behalf
for a Plan Year shall be included in determining his contribution
percentage for such Plan Year only if the contributions are made to the
Plan prior to the end of the 12-month period immediately following the
Plan Year to which the contributions relate. The determination and
treatment of the contribution percentage amounts for any Participant shall
satisfy such other requirements as may be prescribed by the Secretary of
the Treasury.
(f) An "elective contribution" means any employer contribution made to a
plan maintained by an Employer or any Related Company on behalf of a
Participant in lieu of cash compensation pursuant to his written election
to defer under any qualified CODA as described in Section 401(k) of the
Code, any simplified employee pension cash or deferred arrangement as
described in Section 402(h)(1)(B) of the Code, any eligible deferred
compensation plan under Section 457 of the Code, or any plan as described
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in Section 501(c)(18) of the Code, and any contribution made on behalf of
the Participant by an Employer or a Related Company for the purchase of an
annuity contract under Section 403(b) of the Code pursuant to a salary
reduction agreement.
(g) An "eligible participant" means any Employee who is eligible to have
Tax-Deferred Contributions made on his behalf (if Tax-Deferred
Contributions are taken into account in computing contribution
percentages) or to participate in the allocation of matching
contributions.
(h) An "excess deferral" with respect to a Participant means that portion of
a Participant's Tax-Deferred Contributions that when added to amounts
deferred under other plans or arrangements described in Sections 401(k),
408(k), or 403(b) of the Code, would exceed the Code Section 402(g) limit
and is includable in the Participant's gross income under Section 402(g)
of the Code.
(i) A "family member" of an Employee means the Employee's spouse, his lineal
ascendants, his lineal descendants, and the spouses of such lineal
ascendants and descendants.
(j) A "limitation year" means the calendar year.
(k) A "matching contribution" means any employer contribution allocated to
an Eligible Employee's account under the Plan or any other plan of an
Employer or a Related Company solely on account of elective contributions
made on his behalf or employee contributions made by him.
(l) The "test compensation" of an Eligible Employee for a Plan Year means
compensation as defined in Section 414(s) of the Code and regulations
issued thereunder, limited, however, to (1) $200,000 for Plan Years
beginning prior to January 1, 1994, or (2) $150,000 for Plan Years
beginning on or after January 1, 1994 (subject to adjustment annually as
provided in Section 401(a)(17)(B) and Section 415(d) of the Code;
provided, however, that the dollar increase in effect on January 1 of any
calendar year, if any, is effective for Plan Years beginning in such
calendar year). If the test compensation of a Participant is determined
over a period of time that contains fewer than 12 calendar months, then
the annual compensation limitation described above shall be adjusted with
respect to that Participant by multiplying the annual compensation
limitation in effect for the Plan Year by a fraction the numerator of
which is the number of full months in the period and the denominator of
which is 12; provided, however, that no proration is required for a
Participant who is covered under the Plan for less than one full Plan Year
if the formula for allocations is based on Compensation for a period of at
least 12 months. In determining the test compensation, for purposes of
applying the annual compensation limitation described above, of a
Participant who is a five-percent owner or among the ten Highly
Compensated Employees receiving the greatest test compensation for the
limitation year, the test compensation of the Participant's spouse and of
his lineal descendants who have not attained age 19 as of the close of the
limitation year shall be included as test compensation of the Participant
for the limitation year. If as a result of applying the family
aggregation rule described in the preceding sentence the annual
compensation limitation would be exceeded, the limitation shall be
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prorated among the affected family members in proportion to each member's
test compensation as determined prior to application of the family
aggregation rules.
7.2 - Code Section 402(g) Limit
In no event shall the amount of the Tax-Deferred Contributions made on
behalf of an Eligible Employee for his taxable year, when aggregated with
any elective contributions made on behalf of the Eligible Employee under
any other plan of an Employer or a Related Company for his taxable year,
exceed the Code Section 402(g) limit. In the event that the Administrator
determines that the reduction percentage elected by an Eligible Employee
will result in his exceeding the Code Section 402(g) limit, the
Administrator may adjust the reduction authorization of such Eligible
Employee by reducing the percentage of his Tax-Deferred Contributions to
such smaller percentage that will result in the Code Section 402(g) limit
not being exceeded. If the Administrator determines that the Tax-Deferred
Contributions made on behalf of an Eligible Employee would exceed the Code
Section 402(g) limit for his taxable year, the Tax-Deferred Contributions
for such Participant shall be automatically suspended for the remainder, if
any, of such taxable year.
If an Employer notifies the Administrator that the Code Section 402(g)
limit has nevertheless been exceeded by an Eligible Employee for his
taxable year, the Tax-Deferred Contributions that, when aggregated with
elective contributions made on behalf of the Eligible Employee under any
other plan of an Employer or a Related Company, would exceed the Code
Section 402(g) limit, plus any income and minus any losses attributable
thereto, shall be distributed to the Eligible Employee no later than the
April 15 immediately following such taxable year. Any Tax-Deferred
Contributions that are distributed to an Eligible Employee in accordance
with this Section shall not be taken into account in computing the Eligible
Employee's actual deferral percentage for the Plan Year in which the
Tax-Deferred Contributions were made, unless the Eligible Employee is a
Highly Compensated Employee. If an amount of Tax-Deferred Contributions is
distributed to a Participant in accordance with this Section, matching
contributions that are attributable solely to the distributed Tax-Deferred
Contributions, plus any income and minus any losses attributable thereto,
shall be forfeited by the Participant. Any such forfeited amounts shall be
applied against the Employer Contribution obligations for the Plan Year of
the Employer for which the Participant last performed services as an
Employee. Notwithstanding the foregoing, however, should the amount of all
such forfeitures for any Plan Year with respect to any Employer exceed the
amount of such Employer's Employer Contribution obligation for the Plan
Year, the excess amount of such forfeitures shall be held unallocated in a
suspense account established with respect to the Employer and shall for all
Plan purposes be applied against the Employer's Employer Contribution
obligations for the following Plan Year.
7.3 - Distribution of Excess Deferrals
Notwithstanding any other provision of the Plan to the contrary, if a
Participant notifies the Administrator in writing no later than the March 1
following the close of the Participant's taxable year that excess deferrals
have been made on his behalf under the Plan for such taxable year, the
excess deferrals, plus any income and minus any losses attributable
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thereto, shall be distributed to the Participant no later than the April 15
immediately following such taxable year. Any Tax-Deferred Contributions
that are distributed to a Participant in accordance with this Section shall
nevertheless be taken into account in computing the Participant's actual
deferral percentage for the Plan Year in which the Tax-Deferred
Contributions were made. If an amount of Tax-Deferred Contributions is
distributed to a Participant in accordance with this Section, matching
contributions that are attributable solely to the distributed Tax-Deferred
Contributions, plus any income and minus any losses attributable thereto,
shall be forfeited by the Participant. Any such forfeited amounts shall be
applied against the Employer Contribution obligations for the Plan Year of
the Employer for which the Participant last performed services as an
Employee. Notwithstanding the foregoing, however, should the amount of all
such forfeitures for any Plan Year with respect to any Employer exceed the
amount of such Employer's Employer Contribution obligation for the Plan
Year, the excess amount of such forfeitures shall be held unallocated in a
suspense account established with respect to the Employer and shall for all
Plan purposes be applied against the Employer's Employer Contribution
obligations for the following Plan Year.
7.4 - Limitation on Tax-Deferred Contributions of Highly Compensated
Employees
Notwithstanding any other provision of the Plan to the contrary, the
Tax-Deferred Contributions made with respect to a Plan Year on behalf of
Eligible Employees who are Highly Compensated Employees may not result in
an average actual deferral percentage for such Eligible Employees that
exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average actual deferral
percentage for all other Eligible Employees; or
(b) a percentage that is not more than 200 percent of the average actual
deferral percentage for all other Eligible Employees and that is not more
than two percentage points higher than the average actual deferral
percentage for all other Eligible Employees.
In order to assure that the limitation contained herein is not exceeded
with respect to a Plan Year, the Administrator is authorized to suspend
completely further Tax-Deferred Contributions on behalf of Highly
Compensated Employees for any remaining portion of a Plan Year or to adjust
the projected actual deferral percentages of Highly Compensated Employees
by reducing their percentage elections with respect to Tax-Deferred
Contributions for any remaining portion of a Plan Year to such smaller
percentages that will result in the limitation set forth above not being
exceeded. In the event of any such suspension or reduction, Highly
Compensated Employees affected thereby shall be notified of the reduction
or suspension as soon as possible and shall be given an opportunity to make
a new Tax-Deferred Contribution election to be effective the first day of
the next following Plan Year. In the absence of such an election, the
election in effect immediately prior to the suspension or adjustment
described above shall be reinstated as of the first day of the next
following Plan Year.
For purposes of applying the limitation contained in this Section, the
Tax-Deferred Contributions and test compensation of any Eligible Employee
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who is a family member of another Eligible Employee who is a five percent
owner or among the ten Highly Compensated Employees receiving the greatest
test compensation for the Plan Year shall be aggregated with the
Tax-Deferred Contributions and test compensation of such other Eligible
Employee, and such family member shall not be considered an Eligible
Employee for purposes of determining the average actual deferral percentage
for all other Eligible Employees.
In determining the actual deferral percentage for any Eligible Employee who
is a Highly Compensated Employee for the Plan Year, elective contributions
made to his accounts under any other plan of an Employer or a Related
Company shall be treated as if all such contributions were made to the
Plan; provided, however, that if such a plan has a plan year different from
the Plan Year, any such contributions made to the Highly Compensated
Employee's accounts under the plan for the plan year ending with or within
the same calendar year as the Plan Year shall be treated as if such
contributions were made to the Plan. Notwithstanding the foregoing, such
contributions shall not be treated as if they were made to the Plan if
regulations issued under Section 401(k) of the Code do not permit such plan
to be aggregated with the Plan.
If one or more plans of an Employer or Related Company are aggregated with
the Plan for purposes of satisfying the requirements of Section 401(a)(4)
or 410(b) of the Code, then actual deferral percentages under the Plan
shall be calculated as if the Plan and such one or more other plans were a
single plan. For Plan Years beginning after December 31, 1991, plans may
be aggregated to satisfy Section 401(k) of the Code only if they have the
same plan year.
The Administrator shall maintain records sufficient to show that the
limitation contained in this Section was not exceeded with respect to any
Plan Year.
7.5 - Distribution of Excess Tax-Deferred Contributions
Notwithstanding any other provision of the Plan to the contrary, in the
event that the limitation contained in Section 7.4 is exceeded in any Plan
Year, the Tax-Deferred Contributions made with respect to a Highly
Compensated Employee that exceed the maximum amount permitted to be
contributed to the Plan on his behalf under Section 7.4, plus any income
and minus any losses attributable thereto, shall be distributed to the
Highly Compensated Employee prior to the end of the next succeeding Plan
Year. If excess amounts are attributable to Participants aggregated under
the family aggregation rules described in Section 7.4, the excess shall be
allocated among family members in proportion to the Tax-Deferred
Contributions made with respect to each family member. If such excess
amounts are distributed more than 2 1/2 months after the last day of the
Plan Year for which the excess occurred, an excise tax may be imposed under
Section 4979 of the Code on the Employer maintaining the Plan with respect
to such amounts.
The maximum amount permitted to be contributed to the Plan on a Highly
Compensated Employee's behalf under Section 7.4 shall be determined by
reducing Tax-Deferred Contributions made on behalf of Highly Compensated
Employees in order of their actual deferral percentages beginning with the
highest of such percentages. The determination of the amount of excess
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Tax-Deferred Contributions shall be made after application of Section 7.3,
if applicable.
If an amount of Tax-Deferred Contributions is distributed to a Participant
in accordance with this Section, matching contributions that are
attributable solely to the distributed Tax-Deferred Contributions, plus any
income and minus any losses attributable thereto, shall be forfeited by the
Participant. Any such forfeited amounts shall be applied against the
Employer Contribution obligations for the Plan Year of the Employer for
which the Participant last performed services as an Employee.
Notwithstanding the foregoing, however, should the amount of all such
forfeitures for any Plan Year with respect to any Employer exceed the
amount of such Employer's Employer Contribution obligation for the Plan
Year, the excess amount of such forfeitures shall be held unallocated in a
suspense account established with respect to the Employer and shall for all
Plan purposes be applied against the Employer's Employer Contribution
obligations for the following Plan Year.
7.6 - Limitation on Matching Contributions of Highly Compensated Employees
Notwithstanding any other provision of the Plan to the contrary, the
matching contributions made with respect to a Plan Year on behalf of
eligible participants who are Highly Compensated Employees may not result
in an average contribution percentage for such eligible participants that
exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average contribution
percentage for all other eligible participants; or
(b) a percentage that is not more than 200 percent of the average
contribution percentage for all other eligible participants and that is
not more than two percentage points higher than the average contribution
percentage for all other eligible participants.
For purposes of applying the limitation contained in this Section, the
matching contributions, Tax-Deferred Contributions (to the extent that such
Tax-Deferred Contributions are taken into account in computing contribution
percentages), and test compensation of any eligible participant who is a
family member of another eligible participant who is a five percent owner
or among the ten Highly Compensated Employees receiving the greatest test
compensation for the Plan Year shall be aggregated with the matching
contributions, Tax-Deferred Contributions, and test compensation of such
other eligible participant, and such family member shall not be considered
an eligible participant for purposes of determining the average
contribution percentage for all other eligible participants.
In determining the contribution percentage for any eligible participant who
is a Highly Compensated Employee for the Plan Year, matching contributions,
employee contributions, and elective contributions (to the extent that
elective contributions are taken into account in computing contribution
percentages) made to his accounts under any other plan of an Employer or a
Related Company shall be treated as if all such contributions were made to
the Plan; provided, however, that if such a plan has a plan year different
from the Plan Year, any such contributions made to the Highly Compensated
Employee's accounts under the plan for the plan year ending with or within
the same calendar year as the Plan Year shall be treated as if such
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contributions were made to the Plan. Notwithstanding the foregoing, such
contributions shall not be treated as if they were made to the Plan if
regulations issued under Section 401(m) of the Code do not permit such plan
to be aggregated with the Plan.
If one or more plans of an Employer or a Related Company are aggregated
with the Plan for purposes of satisfying the requirements of Section
401(a)(4) or 410(b) of the Code, the contribution percentages under the
Plan shall be calculated as if the Plan and such one or more other plans
were a single plan. For Plan Years beginning after December 31, 1989,
plans may be aggregated to satisfy Section 401(m) of the Code only if they
have the same plan year.
The Administrator shall maintain records sufficient to show that the
limitation contained in this Section was not exceeded with respect to any
Plan Year and the amount of the elective contributions taken into account
in computing contribution percentages for any Plan Year.
7.7 - Distribution of Excess Contributions
Notwithstanding any other provision of the Plan to the contrary, in the
event that the limitation contained in Section 7.6 is exceeded in any Plan
Year, the matching contributions made on behalf of a Highly Compensated
Employee that exceed the maximum amount permitted to be contributed to the
Plan on behalf of such Highly Compensated Employee under Section 7.6, plus
any income and minus any losses attributable thereto, shall be distributed
to the Participant prior to the end of the next succeeding Plan Year. If
excess amounts are attributable to Participants aggregated under the family
aggregation rules described in Section 7.5, the excess shall be allocated
among family members in proportion to the matching contributions made with
respect to each family member. If such excess amounts are distributed more
than 2 1/2 months after the last day of the Plan Year for which the excess
occurred, an excise tax may be imposed under Section 4979 of the Code on
the Employer maintaining the Plan with respect to such amounts.
The maximum amount permitted to be contributed to the Plan on behalf of a
Highly Compensated Employee under Section 7.6 shall be determined by
reducing matching contributions made on behalf of Highly Compensated
Employees in order of their contribution percentages beginning with the
highest of such percentages.
The determination of the amount of excess matching contributions shall be
made after application of Section 7.3, if applicable, and after application
of Section 7.5, if applicable.
7.8 - Multiple Use Limitation
Notwithstanding any other provision of the Plan to the contrary, the
following multiple use limitation as required under Section 401(m) of the
Code shall apply: the sum of the average actual deferral percentage for
Eligible Employees who are Highly Compensated Employees and the average
contribution percentage for eligible participants who are Highly
Compensated Employees may not exceed the aggregate limit. In the event
that, after satisfaction of Section 7.5 and Section 7.7, it is determined
that contributions under the Plan fail to satisfy the multiple use
limitation contained herein, the multiple use limitation shall be satisfied
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by further reducing the contribution percentages of eligible participants
who are Highly Compensated Employees (beginning with the highest such
percentage) to the extent necessary to eliminate the excess, with such
further reductions to be treated as excess contributions and disposed of as
provided in Section 7.7, or in an alternative manner, consistently applied,
that may be permitted by regulations issued under Section 401(m) of the
Code.
7.9 - Determination of Income or Loss
The income or loss attributable to excess contributions that are
distributed pursuant to this Article shall be determined for the preceding
Plan Year under the method otherwise used for allocating income or loss to
Participant's Separate Accounts.
7.10 - Code Section 415 Limitations on Crediting of Contributions and
Forfeitures
Notwithstanding any other provision of the Plan to the contrary, the annual
addition with respect to a Participant for a limitation year shall in no
event exceed the lesser of (i) $30,000 (adjusted as provided in Section
415(d) of the Code, with the first adjustment being made for limitation
years beginning on or after January 1, 1996) or (ii) 25 percent of the
Participant's compensation, as defined in Section 415(c)(3) of the Code and
regulations issued thereunder, for the limitation year. If the annual
addition to the Separate Account of a Participant in any limitation year
would otherwise exceed the amount that may be applied for his benefit under
the limitation contained in this Section, the limitation shall be satisfied
by reducing contributions made on behalf of the Participant to the extent
necessary in the following order:
Tax-Deferred Contributions made on the Participant's behalf for the
limitation year that have not been matched, if any, shall be reduced.
Tax-Deferred Contributions made on the Participant's behalf for the
limitation year that have been matched and the matching contributions
attributable thereto, if any, shall be reduced pro rata.
Employer Contributions (other than matching contributions) otherwise
allocable to the Participant's Separate Account for the limitation year
shall be reduced.
The amount of any reduction of Tax-Deferred Contributions (plus any income
attributable thereto) shall be returned to the Participant. The amount of
any reduction of Employer Contributions shall be deemed a forfeiture for
the limitation year. Amounts deemed to be forfeitures under this Section
shall be held unallocated in a suspense account established for the
limitation year and shall be applied against the Employer's contribution
obligation for the next following limitation year (and succeeding
limitation years, as necessary). If a suspense account is in existence at
any time during a limitation year, all amounts in the suspense account must
be allocated to Participants' Separate Accounts (subject to the limitations
contained herein) before any further Tax-Deferred Contributions or Employer
Contributions may be made to the Plan on behalf of Participants. No
suspense account established hereunder shall share in any increase or
decrease in the net worth of the Trust. For purposes of this Article,
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excesses shall result only from the allocation of forfeitures, a reasonable
error in estimating a Participant's annual compensation (as defined in
Section 415(c)(3) of the Code and regulations issued thereunder), a
reasonable error in determining the amount of Tax-Deferred Contributions
that may be made with respect to any Participant under the limits of
Section 415 of the Code, or other limited facts and circumstances that
justify the availability of the provisions set forth above.
7.11 - Coverage Under Other Qualified Defined Contribution Plan
If a Participant is covered by any other qualified defined contribution
plan (whether or not terminated) maintained by an Employer or a Related
Company concurrently with the Plan, and if the annual addition for the
limitation year would otherwise exceed the amount that may be applied for
the Participant's benefit under the limitation contained in Section 7.10,
such excess shall be reduced first by returning the employee contributions
made by the Participant for the limitation year under all of the defined
contribution plans other than the Plan and the income attributable thereto
to the extent necessary. If the limitation contained in Section 7.10 is
still not satisfied after returning all of the employee contributions made
by the Participant under all such other plans, the excess shall be reduced
by returning the elective contributions made on the Participant's behalf
for the limitation year under all such other plans and the income
attributable thereto to the extent necessary on a pro rata basis among all
of such plans. If the limitation contained in Section 7.10 is still not
satisfied after returning all of the elective contributions made on the
Participant's behalf under all such other plans, the procedure set forth in
Section 7.10 shall be invoked to eliminate any such excess. If the
limitation contained in Section 7.10 is still not satisfied after
invocation of the procedure set forth in Section 7.10, the portion of the
employer contributions and of forfeitures for the limitation year under all
such other plans that has been allocated to the Participant thereunder, but
which exceeds the limitation set forth in Section 7.10, shall be deemed a
forfeiture for the limitation year and shall be disposed of as provided in
such other plans; provided, however, that if the Participant is covered by
a money purchase pension plan, the forfeiture shall be effected first under
any other defined contribution plan that is not a money purchase pension
plan and, if the limitation is still not satisfied, then under such money
purchase pension plan.
7.12 - Coverage Under Qualified Defined Benefit Plan
If a Participant in the Plan is also covered by a qualified defined benefit
plan (whether or not terminated) maintained by an Employer or a Related
Company, in no event shall the sum of the defined benefit plan fraction (as
defined in Section 415(e)(2) of the Code) and the defined contribution plan
fraction (as defined in Section 415(e)(3) of the Code) exceed 1.0 in any
limitation year. If, before October 3, 1973, the Participant was an active
participant in a qualified defined benefit plan maintained by an Employer
or a Related Company and otherwise satisfies the requirements of Section
2004(d)(2) of ERISA, then for purposes of applying this Section, the
defined benefit plan fraction shall not exceed 1.0. If the Plan satisfied
the applicable requirements of Section 415 of the Code as in effect for all
limitation years beginning before January 1, 1987, an amount shall be
subtracted from the numerator of the defined contribution plan fraction
(not exceeding such numerator) as prescribed by the Secretary of the
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Treasury so that the sum of the defined benefit plan fraction and the
defined contribution plan fraction computed under Section 415(e)(1) of the
Code, as revised by the Tax Reform Act of 1986, does not exceed 1.0 for
such limitation year. In the event the special limitation contained in
this Section is exceeded, the benefits otherwise payable to the Participant
under any such qualified defined benefit plan shall be reduced to the
extent necessary to meet such limitation.
7.13 - Scope of Limitations
The limitations contained in Sections 7.10, 7.11, and 7.12 shall be
applicable only with respect to benefits provided pursuant to defined
contribution plans and defined benefit plans described in Section 415(k) of
the Code.
ARTICLE VIII
TRUST FUNDS AND SEPARATE ACCOUNTS
8.1 - General Fund
The Trustee shall maintain a General Fund as required to hold and
administer any assets of the Trust that are not allocated among the
Investment Funds as provided in the Plan or the Trust Agreement. The
General Fund shall be held and administered as a separate common trust
fund. The interest of each Participant or Beneficiary under the Plan in
the General Fund shall be an undivided interest. The General Fund may be
invested in whole or in part in equity securities issued by an Employer or
a Related Company that are publicly traded and are "qualifying employer
securities" as defined in Section 407(d)(5) of ERISA.
8.2 - Investment Funds
The Sponsor shall determine the number and type of Investment Funds and
select the investments for such Investment Funds. The Sponsor shall
communicate the same and any changes therein in writing to the
Administrator and the Trustee. Each Investment Fund shall be held and
administered as a separate common trust fund. The interest of each
Participant or Beneficiary under the Plan in any Investment Fund shall be
an undivided interest.
The Sponsor may determine to offer one or more Investment Funds that are
invested in whole or in part in equity securities issued by an Employer or
a Related Company that are publicly traded and are "qualifying employer
securities" as defined in Section 407(d)(5) of ERISA.
8.3 - Loan Investment Fund
If a loan from the Plan to a Participant is approved in accordance with the
provisions of Article XII, the Sponsor shall direct the establishment and
maintenance of a loan Investment Fund in the Participant's name. The
assets of the loan Investment Fund shall be held as a separate trust fund.
A Participant's loan Investment Fund shall be invested in the note
reflecting the loan that is executed by the Participant in accordance with
the provisions of Article XII. Notwithstanding any other provision of the
Plan to the contrary, income received with respect to a Participant's loan
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Investment Fund shall be allocated and the loan Investment Fund shall be
administered as provided in Article XII.
8.4 - Income on Trust
Any dividends, interest, distributions, or other income received by the
Trustee with respect to any Trust Fund maintained hereunder shall be
allocated by the Trustee to the Trust Fund for which the income was
received.
8.5 - Separate Accounts
As of the first date a contribution is made by or on behalf of an Employee,
there shall be established a Separate Account in his name reflecting his
interest in the Trust. Each Separate Account shall be maintained and
administered for each Participant and Beneficiary in accordance with the
provisions of the Plan. The balance of each Separate Account shall be the
balance of the account after all credits and charges thereto, for and as of
such date, have been made as provided herein.
8.6 - Sub-Accounts
A Participant's Separate Account shall be divided into individual
Sub-Accounts reflecting the portion of the Participant's Separate Account
that is derived from Tax-Deferred Contributions, Rollover Contributions, or
Employer Contributions. Each Sub-Account shall reflect separately
contributions allocated to each Trust Fund maintained hereunder and the
earnings and losses attributable thereto. Such other Sub-Accounts may be
established as are necessary or appropriate to reflect a Participant's
interest in the Trust.
ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1 - No Life Insurance Contracts
There shall be no life insurance contracts purchased under the Plan.
ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 - Future Contribution Investment Elections
Each Eligible Employee shall make an investment election in the manner and
form prescribed by the Administrator directing the manner in which his
Tax-Deferred Contributions, Rollover Contributions, and Employer
Contributions shall be invested. An Eligible Employee's investment
election shall specify the percentage, in the percentage increments
prescribed by the Administrator, of such contributions that shall be
allocated to one or more of the Investment Funds with the sum of such
percentages equaling 100 percent. The investment election by a Participant
shall remain in effect until his entire interest under the Plan is
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distributed or forfeited in accordance with the provisions of the Plan or
until he files a change of investment election with the Administrator, in
such form as the Administrator shall prescribe. A Participant's change of
investment election may be made effective as of the date or dates
prescribed by the Administrator.
10.2 - Deposit of Contributions
All Tax-Deferred Contributions, Rollover Contributions, and Employer
Contributions shall be deposited in the Trust and allocated among the
Investment Funds in accordance with the Participant's currently effective
investment election; provided, however, that any contributions made to the
Plan in qualifying employer securities shall be allocated to the Employer
securities Investment Fund established by the Sponsor, pending directions
to the Administrator regarding their future investment. If no investment
election is on file with the Administrator at the time contributions are to
be deposited to a Participant's Separate Account, the Participant shall be
notified and an investment election form shall be provided to him. Until
such Participant shall make an effective election under this Section, his
contributions shall be allocated among the Investment Funds as directed by
the Administrator.
10.3 - Election to Transfer Between Funds
A Participant may elect to transfer investments from any Investment Fund to
any other Investment Fund. The Participant's transfer election shall
specify either (i) a percentage, in the percentage increments prescribed by
the Administrator, of the amount eligible for transfer, which percentage
may not exceed 100 percent, or (ii) a dollar amount that is to be
transferred. Subject to any restrictions pertaining to a particular
Investment Fund, a Participant's transfer election may be made effective as
of the date or dates prescribed by the Administrator.
ARTICLE XI
CREDITING AND VALUING SEPARATE ACCOUNTS
11.1 - Crediting Separate Accounts
All contributions made under the provisions of the Plan shall be credited
to Separate Accounts in the Trust Funds by the Trustee, in accordance with
procedures established in writing by the Administrator, either when
received or on the succeeding Valuation Date after valuation of the Trust
Fund has been completed for such Valuation Date as provided in Section
11.2, as shall be determined by the Administrator.
11.2 - Valuing Separate Accounts
Separate Accounts in the Trust Funds shall be valued by the Trustee on the
Valuation Date, in accordance with procedures established in writing by the
Administrator, either in the manner adopted by the Trustee and approved by
the Administrator or in the manner set forth in Section 11.3 as Plan
valuation procedures, as determined by the Administrator.
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11.3 - Plan Valuation Procedures
With respect to the Trust Funds, the Administrator may determine that the
following valuation procedures shall be applied. As of each Valuation Date
hereunder, the portion of any Separate Accounts in a Trust Fund shall be
adjusted to reflect any increase or decrease in the value of the Trust Fund
for the period of time occurring since the immediately preceding Valuation
Date for the Trust Fund (the "valuation period") in the following manner:
(a) First, the value of the Trust Fund shall be determined by valuing all of
the assets of the Trust Fund at fair market value.
(b) Next, the net increase or decrease in the value of the Trust Fund
attributable to net income and all profits and losses, realized and
unrealized, during the valuation period shall be determined on the basis
of the valuation under paragraph (a) taking into account appropriate
adjustments for contributions, loan payments, and transfers to and
distributions, withdrawals, loans, and transfers from such Trust Fund
during the valuation period.
(c) Finally, the net increase or decrease in the value of the Trust Fund
shall be allocated among Separate Accounts in the Trust Fund in the ratio
of the balance of the portion of such Separate Account in the Trust Fund
as of the preceding Valuation Date less any distributions, withdrawals,
loans, and transfers from such Separate Account balance in the Trust Fund
since the Valuation Date to the aggregate balances of the portions of all
Separate Accounts in the Trust Fund similarly adjusted, and each Separate
Account in the Trust Fund shall be credited or charged with the amount of
its allocated share. Notwithstanding the foregoing, the Administrator may
adopt such accounting procedures as it considers appropriate and equitable
to establish a proportionate crediting of net increase or decrease in the
value of the Trust Fund for contributions, loan payments, and transfers to
and distributions, withdrawals, loans, and transfers from such Trust Fund
made by or on behalf of a Participant during the valuation period.
11.4 - Finality of Determinations
The Trustee shall have exclusive responsibility for determining the balance
of each Separate Account maintained hereunder. The Trustee's
determinations thereof shall be conclusive upon all interested parties.
11.5 - Notification
Within a reasonable period of time after the end of each Plan Year, the
Administrator shall notify each Participant and Beneficiary of the balances
of his Separate Account and Sub-Accounts as of a Valuation Date during the
Plan Year.
ARTICLE XII
LOANS
12.1 - Application for Loan
A Participant who is a party in interest may make written application to
the Administrator for a loan from his Separate Account.
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As collateral for any loan granted hereunder, the Participant shall grant
to the Plan a security interest in his vested interest under the Plan equal
to the amount of the loan; provided, however, that in no event may the
security interest exceed 50 percent of the Participant's vested interest
under the Plan determined as of the date as of which the loan is originated
in accordance with Plan provisions. In the case of a Participant who is an
active employee, the Participant also shall enter into an agreement to
repay the loan by payroll withholding. No loan in excess of 50 percent of
the Participant's vested interest under the Plan shall be made from the
Plan. Loans shall not be made available to Highly Compensated Employees in
an amount greater than the amount made available to other employees.
A loan shall not be granted unless the Participant consents in writing to
the charging of his Separate Account for unpaid principal and interest
amounts in the event the loan is declared to be in default.
12.2 - Reduction of Account Upon Distribution
Notwithstanding any other provision of the Plan, the amount of a
Participant's Separate Account that is distributable to the Participant or
his Beneficiary under Article XIII or XV shall be reduced by the portion of
his vested interest that is held by the Plan as security for any loan
outstanding to the Participant, provided that the reduction is used to
repay the loan. If distribution is made because of the Participant's death
prior to the commencement of distribution of his Separate Account and less
than 100 percent of the Participant's vested interest in his Separate
Account (determined without regard to the preceding sentence) is payable to
his surviving spouse, then the balance of the Participant's vested interest
in his Separate Account shall be adjusted by reducing the vested account
balance by the amount of the security used to repay the loan, as provided
in the preceding sentence, prior to determining the amount of the benefit
payable to the surviving spouse.
12.3 - Requirements to Prevent a Taxable Distribution
Notwithstanding any other provision of the Plan to the contrary, the
following terms and conditions shall apply to any loan made to a
Participant under this Article:
(a) The interest rate on any loan to a Participant shall be a reasonable
interest rate commensurate with current interest rates charged for loans
made under similar circumstances by persons in the business of lending
money.
(b) The amount of any loan to a Participant (when added to the outstanding
balance of all other loans to the Participant from the Plan or any other
plan maintained by an Employer or a Related Company) shall not exceed the
lesser of:
(i) $50,000, reduced by the excess, if any, of the highest outstanding
balance of any other loan to the Participant from the Plan or any
other plan maintained by an Employer or a Related Company during the
preceding 12-month period over the outstanding balance of such loans
on the date a loan is made hereunder; or
(ii) 50 percent of the vested portions of the Participant's Separate
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Account and his vested interest under all other plans maintained by
an Employer or a Related Company.
(c) The term of any loan to a Participant shall be no greater than five
years, except in the case of a loan used to acquire any dwelling unit
which within a reasonable period of time is to be used (determined at
the time the loan is made) as a principal residence of the Participant.
(d) Except as otherwise permitted under Treasury regulations, substantially
level amortization shall be required over the term of the loan with
payments made not less frequently than quarterly.
12.4 - Administration of Loan Investment Fund
Upon approval of a loan to a Participant, the Administrator shall direct
the Trustee to transfer an amount equal to the loan amount from the
Investment Funds in which it is invested, as directed by the Administrator,
to the loan Investment Fund established in the Participant's name. Any
loan approved by the Administrator shall be made to the Participant out of
the Participant's loan Investment Fund. All principal and interest paid by
the Participant on a loan made under this Article shall be deposited to his
Separate Account and shall be allocated upon receipt among the Investment
Funds in accordance with the Participant's currently effective investment
election. The balance of the Participant's loan Investment Fund shall be
decreased by the amount of principal payments and the loan Investment Fund
shall be terminated when the loan has been repaid in full.
12.5 - Default
If a Participant fails to make or cause to be made, any payment required
under the terms of the loan within 90 days following the date on which such
payment shall become due or there is an outstanding principal balance
existing on a loan after the last scheduled repayment date, the
Administrator shall direct the Trustee to declare the loan to be in
default, and the entire unpaid balance of such loan, together with accrued
interest, shall be immediately due and payable. In any such event, if such
balance and interest thereon is not then paid, the Trustee shall charge the
Separate Account of the borrower with the amount of such balance and
interest as of the earliest date a distribution may be made from the Plan
to the borrower without adversely affecting the tax qualification of the
Plan or of the cash or deferred arrangement.
12.6 - Special Rules Applicable to Loans
Any loan made hereunder shall be subject to the following rules:
(a) Loans limited to Eligible Employees: No loans shall be made to an
Employee who makes a Rollover Contribution in accordance with Article V,
but who is not an Eligible Employee as provided in Article III.
(b) Minimum Loan Amount: A Participant may not request a loan for less than
$1,000.
(c) Maximum Number of Outstanding Loans: A Participant with an outstanding
loan may not apply for another loan until the existing loan is paid in
full and may not refinance an existing loan or attain a second loan for
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the purpose of paying off the existing loan. A Participant may not apply
for more than one loan during the Plan Year. The provisions of this
paragraph shall not apply to any loans made prior to the effective date of
this amendment and restatement; provided, however, that a Participant may
not apply for a new loan hereunder until all outstanding loans made to
the Participant prior to the effective date of this amendment and
restatement have been paid in full.
(d) Maximum Period for Real Estate Loans: The term of any loan to a
Participant that is used to acquire any dwelling unit which within a
reasonable period of time is to be used (determined at the time the loan
is made) as a principal residence of the Participant shall be no greater
than ten years.
(e) Pre-Payment Without Penalty: A Participant may pre-pay the balance of
any loan hereunder prior to the date it is due without penalty.
(f) Effect of Termination of Employment: Upon a Participant's termination
of employment, the balance of any outstanding loan hereunder shall
immediately become due and owing.
12.7 - Loans Granted Prior to Amendment
Notwithstanding any other provision of this Article to the contrary, any
loan made under the provisions of the Plan as in effect prior to this
amendment and restatement shall remain outstanding until repaid in
accordance with its terms or the otherwise applicable Plan provisions.
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1 - Withdrawals of Rollover Contributions
A Participant who is employed by an Employer or a Related Company and is
determined by the Administrator to have incurred a hardship as defined in
this Article may elect in writing, subject to the limitations and
conditions prescribed in this Article, to make a cash withdrawal from his
Rollover Contributions Sub-Account.
13.2 - Withdrawals of Tax-Deferred Contributions
A Participant who is employed by an Employer or a Related Company and who
is determined by the Administrator to have incurred a hardship as defined
in this Article may elect in writing, subject to the limitations and
conditions prescribed in this Article, to make a cash withdrawal from his
Tax-Deferred Contributions Sub-Account. The maximum amount that a
Participant may withdraw pursuant to this Section because of a hardship is
the balance of his Tax-Deferred Contributions Sub-Account, exclusive of any
earnings credited to such Sub-Account as of a date that is after December
31, 1988.
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13.3 - Conditions and Limitations on Hardship Withdrawals
A Participant must file a written application for a hardship withdrawal
with the Administrator such number of days prior to the date as of which it
is to be effective as the Administrator may prescribe. Hardship
withdrawals may be made effective as soon as reasonably practicable
following the Administrator's receipt of the Participant's directions. The
Administrator shall grant a hardship withdrawal only if it determines that
the withdrawal is necessary to meet an immediate and heavy financial need
of the Participant. An immediate and heavy financial need of the
Participant means a financial need on account of:
(a) expenses previously incurred by or necessary to obtain for the
Participant, the Participant's spouse, or any dependent of the
Participant (as defined in Section 152 of the Code) medical care
described in Section 213(d) of the Code;
(b) costs directly related to the purchase (excluding mortgage payments) of
a principal residence for the Participant;
(c) payment of tuition, related educational fees, and room and board
expenses for the next 12 months of post-secondary education for the
Participant, the Participant's spouse, or any dependent of the
Participant; or
(d) the need to prevent the eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's principal
residence.
A withdrawal shall be deemed to be necessary to satisfy an immediate and
heavy financial need of a Participant only if all of the following
requirements are satisfied:
The withdrawal is not in excess of the amount of the immediate and heavy
financial need of the Participant.
The Participant has obtained all distributions, other than hardship
distributions, and all non-taxable loans currently available under all
plans maintained by an Employer or any Related Company.
The Participant's Tax-Deferred Contributions and the Participant's elective
tax-deferred contributions and employee after-tax contributions under all
other tax-qualified plans maintained by an Employer or any Related Company
shall be suspended for at least twelve months after his receipt of the
withdrawal.
The Participant shall not make Tax-Deferred Contributions or elective
tax-deferred contributions under any other tax-qualified plan maintained by
an Employer or any Related Company for the Participant's taxable year
immediately following the taxable year of the withdrawal in excess of the
applicable limit under Section 402(g) of the Code for such next taxable
year less the amount of the Participant's Tax-Deferred Contributions and
elective tax-deferred contributions under any other plan maintained by an
Employer or any Related Company for the taxable year of the withdrawal.
The minimum hardship withdrawal that a Participant may make is $1,000. The
amount of a hardship withdrawal may include any amounts necessary to pay
any Federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution. A Participant shall not fail
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to be treated as an Eligible Employee for purposes of applying the
limitations contained in Article VII of the Plan merely because his
Tax-Deferred Contributions are suspended in accordance with this Section.
13.4 - Order of Withdrawal from a Participant's Sub-Accounts
Distribution of a withdrawal amount shall be made from a Participant's
Sub-Accounts, to the extent necessary, in the order prescribed by the
Administrator, which order shall be uniform with respect to all
Participants and non-discriminatory. If the Sub-Account from which a
Participant is receiving a withdrawal is invested in more than one
Investment Fund, the withdrawal shall be charged against the Investment
Funds as directed by the Administrator.
ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 - Termination of Employment and Settlement Date
A Participant's Settlement Date shall occur on the date he terminates
employment with an Employer and all Related Companies because of death,
disability, retirement, or other termination of employment. Written notice
of a Participant's Settlement Date shall be given by the Administrator to
the Trustee.
ARTICLE XV
DISTRIBUTIONS
15.1 - Distributions to Participants
A Participant whose Settlement Date occurs shall receive distribution of
his vested interest in his Separate Account in the form provided under
Article XVI beginning as soon as reasonably practicable following his
Settlement Date or the date his application for distribution is filed with
the Administrator, if later. In addition, a Participant who continues in
employment with an Employer or a Related Company after his Normal
Retirement Date may elect to receive distribution of all or any portion of
his Separate Account in the form provided under Article XVI at any time
following his Normal Retirement Date.
15.2 - Distributions to Beneficiaries
If a Participant dies prior to the date distribution of his vested interest
in his Separate Account begins under this Article, his Beneficiary shall
receive distribution of the Participant's vested interest in his Separate
Account in the form provided under Article XVI beginning as soon as
reasonably practicable following the date the Beneficiary's application for
distribution is filed with the Administrator. Unless distribution is to be
made over the life or over a period certain not greater than the life
expectancy of the Beneficiary, distribution of the Participant's entire
vested interest shall be made to the Beneficiary no later than the end of
the fifth calendar year beginning after the Participant's death. If
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distribution is to be made over the life or over a period certain no
greater than the life expectancy of the Beneficiary, distribution shall
commence no later than:
(a) If the Beneficiary is not the Participant's spouse, the end of the first
calendar year beginning after the Participant's death; or
(b) If the Beneficiary is the Participant's spouse, the later of (i) the end
of the first calendar year beginning after the Participant's death or (ii)
the end of the calendar year in which the Participant would have attained
age 70 1/2.
If distribution is to be made to a Participant's spouse, it shall be made
available within a reasonable period of time after the Participant's death
that is no less favorable than the period of time applicable to other
distributions. If a Participant dies after the date distribution of his
vested interest in his Separate Account begins under this Article, but
before his entire vested interest in his Separate Account is distributed,
his Beneficiary shall receive distribution of the remainder of the
Participant's vested interest in his Separate Account beginning as soon as
reasonably practicable following the Participant's date of death in a form
that provides for distribution at least as rapidly as under the form in
which the Participant was receiving distribution.
15.3 - Cash Outs and Participant Consent
Notwithstanding any other provision of the Plan to the contrary, if a
Participant's vested interest in his Separate Account does not exceed
$3,500, distribution of such vested interest shall be made to the
Participant in a single sum payment as soon as reasonably practicable
following his Settlement Date. If a Participant's vested interest in his
Separate Account exceeds $3,500, distribution shall not commence to such
Participant prior to his Normal Retirement Date without the Participant's
written consent. If at the time of a distribution or deemed distribution
to a Participant from his Separate Account, the Participant's vested
interest in his Separate Account exceeded $3,500, then for purposes of this
Section, the Participant's vested interest in his Separate Account on any
subsequent date shall be deemed to exceed $3,500.
15.4 - Required Commencement of Distribution
Notwithstanding any other provision of the Plan to the contrary,
distribution of a Participant's vested interest in his Separate Account
shall commence to the Participant no later than the earlier of:
(a) 60 days after the close of the Plan Year in which (i) the Participant's
Normal Retirement Date occurs, (ii) the 10th anniversary of the year in
which he commenced participation in the Plan occurs, or (iii) his
Settlement Date occurs, whichever is latest; or
(b) the April 1 following the close of the calendar year in which he attains
age 70 1/2, whether or not his Settlement Date has occurred, except that
if a Participant attained age 70 1/2 prior to January 1, 1988, and was
not a five-percent owner (as defined in Section 416 of the Code) at any
time during the five-Plan-Year period ending within the calendar year in
which he attained age 70 1/2, distribution of such Participant's vested
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interest in his Separate Account shall commence no later than the April 1
following the close of the calendar year in which he attains age 70 1/2
or retires, whichever is later.
Distributions required to commence under this Section shall be made in the
form provided under Article XVI and in accordance with Section 401(a)(9) of
the Code and regulations issued thereunder, including the minimum
distribution incidental benefit requirements.
15.5 - Reemployment of a Participant
If a Participant whose Settlement Date has occurred is reemployed by an
Employer or a Related Company, he shall lose his right to any distribution
or further distributions from the Trust arising from his prior Settlement
Date and his interest in the Trust shall thereafter be treated in the same
manner as that of any other Participant whose Settlement Date has not
occurred.
15.6 - Restrictions on Alienation
Except as provided in Section 401(a)(13) of the Code relating to qualified
domestic relations orders and Section 1.401(a)-13(b)(2) of Treasury
regulations relating to Federal tax levies and judgments, no benefit under
the Plan at any time shall be subject in any manner to anticipation,
alienation, assignment (either at law or in equity), encumbrance,
garnishment, levy, execution, or other legal or equitable process; and no
person shall have power in any manner to anticipate, transfer, assign
(either at law or in equity), alienate or subject to attachment,
garnishment, levy, execution, or other legal or equitable process, or in
any way encumber his benefits under the Plan, or any part thereof, and any
attempt to do so shall be void.
15.7 - Facility of Payment
If the Administrator finds that any individual to whom an amount is payable
hereunder is incapable of attending to his financial affairs because of any
mental or physical condition, including the infirmities of advanced age,
such amount (unless prior claim therefor shall have been made by a duly
qualified guardian or other legal representative) may, in the discretion of
the Administrator, be paid to another person for the use or benefit of the
individual found incapable of attending to his financial affairs or in
satisfaction of legal obligations incurred by or on behalf of such
individual. The Trustee shall make such payment only upon receipt of
written instructions to such effect from the Administrator. Any such
payment shall be charged to the Separate Account from which any such
payment would otherwise have been paid to the individual found incapable of
attending to his financial affairs and shall be a complete discharge of any
liability therefor under the Plan.
15.8 - Inability to Locate Payee
If any benefit becomes payable to any person, or to the executor or
administrator of any deceased person, and if that person or his executor or
administrator does not present himself to the Administrator within a
reasonable period after the Administrator mails written notice of his
eligibility to receive a distribution hereunder to his last known address
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and makes such other diligent effort to locate the person as the
Administrator determines, that benefit will be forfeited. However, if the
payee later files a claim for that benefit, the benefit will be restored.
15.9 - Distribution Pursuant to Qualified Domestic Relations Orders
Notwithstanding any other provision of the Plan to the contrary, if a
qualified domestic relations order so provides, distribution may be made to
an alternate payee pursuant to a qualified domestic relations order, as
defined in Section 414(p) of the Code, regardless of whether the
Participant's Settlement Date has occurred or whether the Participant is
otherwise entitled to receive a distribution under the Plan.
ARTICLE XVI
FORM OF PAYMENT
16.1 - Normal Form of Payment
Unless the Participant, or his Beneficiary, if the Participant has died,
elects the optional form of payment, distribution shall be made to the
Participant, or his Beneficiary, as the case may be, in a single sum
payment. Distribution of the fair market value of the Participant's
Separate Account under either the normal or optional forms of payment shall
be made in cash or in kind, as elected by the Participant, except that
distribution shall not be made in Employer stock.
16.2 - Optional Form of Payment
A Participant, or his Beneficiary, as the case may be, may elect to receive
distribution in a series of installments over a period not exceeding the
life expectancy of the Participant, or the Participant's Beneficiary, if
the Participant has died, or a period not exceeding the joint life and last
survivor expectancy of the Participant and his Beneficiary. Each
installment shall be equal in amount except as necessary to adjust for any
changes in the value of the Participant's Separate Account. The
determination of life expectancies shall be made on the basis of the
expected return multiples in Table V and VI of Section 1.72-9 of the
Treasury regulations and shall be calculated either once at the time
installment payments begin or annually for the Participant and/or his
Beneficiary, if his Beneficiary is his spouse, as determined by the
Participant at the time installment payments begin.
16.3 - Change of Option Election
A Participant or Beneficiary who has elected the optional form of payment
may revoke or change his election at any time prior to the date as of which
his benefit commences by filing with the Administrator a written election
in the form prescribed by the Administrator.
16.4 - Direct Rollover
Notwithstanding any other provision of the Plan to the contrary, in lieu of
receiving distribution in the form of payment provided under this Article,
a "qualified distributee" may elect in writing, in accordance with rules
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prescribed by the Administrator, to have any portion or all of a
distribution made on or after January 1, 1993, that is an "eligible
rollover distribution" paid directly by the Plan to the "eligible
retirement plan" designated by the "qualified distributee"; provided,
however, that this provision shall not apply if the total distribution is
less than $200 and that a "qualified distributee" may not elect this
provision with respect to a portion of a distribution that is less than
$500. Any such payment by the Plan to another "eligible retirement plan"
shall be a direct rollover. For purposes of this Section, the following
terms have the following meanings:
(a) An "eligible retirement plan" means an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in Section
401(a) of the Code that accepts rollovers; provided, however, that, in
the case of a direct rollover by a surviving spouse, an eligible
retirement plan does not include a qualified trust described in Section
401(a) of the Code.
(b) An "eligible rollover distribution" means any distribution of all or any
portion of the balance of a Participant's Separate Account; provided,
however, that an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic
payments made not less frequently than annually for the life or life
expectancy of the qualified distributee or the joint lives or joint life
expectancies of the qualified distributee and the qualified distributee's
designated beneficiary, or for a specified period of ten years or more;
and any distribution to the extent such distribution is required under
Section 401(a)(9) of the Code.
(c) A "qualified distributee" means a Participant, his surviving spouse, or
his spouse or former spouse who is an alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of the Code.
16.5 - Notice Regarding Forms of Payment
Within the 60 day period ending 30 days before the date as of which
distribution of a Participant's Separate Account commences, the
Administrator shall provide the Participant with a written explanation of
his right to defer distribution until his Normal Retirement Date, or such
later date as may be provided in the Plan, his right to make a direct
rollover, and the forms of payment available under the Plan. Distribution
of the Participant's Separate Account may commence less than 30 days after
such notice is provided to the Participant if (i) the Administrator clearly
informs the Participant of his right to consider his election of whether or
not to make a direct rollover or to receive a distribution prior to his
Normal Retirement Date and his election of a form of payment for a period
of at least 30 days following his receipt of the notice and (ii) the
Participant, after receiving the notice, affirmatively elects an early
distribution.
16.6 - Reemployment
If a Participant is reemployed by an Employer or a Related Company prior to
receiving distribution of the entire balance of his vested interest in his
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Separate Account, his prior election of a form of payment hereunder shall
become ineffective.
ARTICLE XVII
BENEFICIARIES
17.1 - Designation of Beneficiary
A married Participant's Beneficiary shall be his spouse, unless the
Participant designates a person or persons other than his spouse as
Beneficiary with his spouse's written consent. A Participant may designate
a Beneficiary on the form prescribed by the Administrator. If no
Beneficiary has been designated pursuant to the provisions of this Section,
or if no Beneficiary survives the Participant and he has no surviving
spouse, then the Beneficiary under the Plan shall be the Participant's
estate. If a Beneficiary dies after becoming entitled to receive a
distribution under the Plan but before distribution is made to him in full,
and if no other Beneficiary has been designated to receive the balance of
the distribution in that event, the estate of the deceased Beneficiary
shall be the Beneficiary as to the balance of the distribution.
17.2 - Spousal Consent Requirements
Any written spousal consent given pursuant to this Article must acknowledge
the effect of the action taken and must be witnessed by a Plan
representative or a notary public. In addition, the spouse's written
consent must either (i) specify any non-spouse Beneficiary designated by
the Participant and that such Beneficiary may not be changed without
written spousal consent or (ii) acknowledge that the spouse has the right
to limit consent to a specific Beneficiary, but permit the Participant to
change the designated Beneficiary without the spouse's further consent. A
Participant's spouse will be deemed to have given written consent to the
Participant's designation of Beneficiary if the Participant establishes to
the satisfaction of a Plan representative that such consent cannot be
obtained because the spouse cannot be located or because of other
circumstances set forth in Section 401(a)(11) of the Code and regulations
issued thereunder. Any written consent given or deemed to have been given
by a Participant's spouse hereunder shall be valid only with respect to the
spouse who signs the consent.
ARTICLE XVIII
ADMINISTRATION
18.1 - Authority of the Sponsor
The Sponsor, which shall be the administrator for purposes of ERISA and the
plan administrator for purposes of the Code, shall be responsible for the
administration of the Plan and, in addition to the powers and authorities
expressly conferred upon it in the Plan, shall have all such powers and
authorities as may be necessary to carry out the provisions of the Plan,
including the power and authority to interpret and construe the provisions
of the Plan, to make benefit determinations, and to resolve any disputes
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which arise under the Plan. The Sponsor may employ such attorneys, agents,
and accountants as it may deem necessary or advisable to assist in carrying
out its duties hereunder. The Sponsor shall be a "named fiduciary" as that
term is defined in Section 402(a)(2) of ERISA. The Sponsor may:
(a) allocate any of the powers, authority, or responsibilities for the
operation and administration of the Plan (other than trustee
responsibilities as defined in Section 405(c)(3) of ERISA) among named
fiduciaries; and
(b) designate a person or persons other than a named fiduciary to carry out
any of such powers, authority, or responsibilities;
except that no allocation by the Sponsor of, or designation by the Sponsor
with respect to, any of such powers, authority, or responsibilities to
another named fiduciary or a person other than a named fiduciary shall
become effective unless such allocation or designation shall first be
accepted by such named fiduciary or other person in a writing signed by it
and delivered to the Sponsor.
18.2 - Action of the Sponsor
Any act authorized, permitted, or required to be taken under the Plan by
the Sponsor and which has not been delegated in accordance with Section
18.1, may be taken by a majority of the members of the board of directors
of the Sponsor, either by vote at a meeting, or in writing without a
meeting, or by the employee or employees of the Sponsor designated by the
board of directors to carry out such acts on behalf of the Sponsor. All
notices, advice, directions, certifications, approvals, and instructions
required or authorized to be given by the Sponsor as under the Plan shall
be in writing and signed by either (i) a majority of the members of the
board of directors of the Sponsor or by such member or members as may be
designated by an instrument in writing, signed by all the members thereof,
as having authority to execute such documents on its behalf, or (ii) the
employee or employees authorized to act for the Sponsor in accordance with
the provisions of this Section.
18.3 - Claims Review Procedure
Whenever a claim for benefits under the Plan filed by any person (herein
referred to as the "Claimant") is denied, whether in whole or in part, the
Sponsor shall transmit a written notice of such decision to the Claimant
within 90 days of the date the claim was filed or, if special circumstances
require an extension, within 180 days of such date, which notice shall be
written in a manner calculated to be understood by the Claimant and shall
contain a statement of (i) the specific reasons for the denial of the
claim, (ii) specific reference to pertinent Plan provisions on which the
denial is based, and (iii) a description of any additional material or
information necessary for the Claimant to perfect the claim and an
explanation of why such information is necessary. The notice shall also
include a statement advising the Claimant that, within 60 days of the date
on which he receives such notice, he may obtain review of such decision in
accordance with the procedures hereinafter set forth. Within such 60-day
period, the Claimant or his authorized representative may request that the
claim denial be reviewed by filing with the Sponsor a written request
therefor, which request shall contain the following information:
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(a) the date on which the Claimant's request was filed with the Sponsor;
provided, however, that the date on which the Claimant's request for
review was in fact filed with the Sponsor shall control in the event
that the date of the actual filing is later than the date stated by the
Claimant pursuant to this paragraph;
(b) the specific portions of the denial of his claim which the Claimant
requests the Sponsor to review;
(c) a statement by the Claimant setting forth the basis upon which he
believes the Sponsor should reverse the previous denial of his claim
for benefits and accept his claim as made; and
(d) any written material (offered as exhibits) which the Claimant desires
the Sponsor to examine in its consideration of his position as stated
pursuant to paragraph (c) of this Section.
Within 60 days of the date determined pursuant to paragraph (a) of this
Section or, if special circumstances require an extension, within 120 days
of such date, the Sponsor shall conduct a full and fair review of the
decision denying the Claimant's claim for benefits and shall render its
written decision on review to the Claimant. The Sponsor's decision on
review shall be written in a manner calculated to be understood by the
Claimant and shall specify the reasons and Plan provisions upon which the
Sponsor's decision was based.
18.4 - Qualified Domestic Relations Orders
The Sponsor shall establish reasonable procedures to determine the status
of domestic relations orders and to administer distributions under domestic
relations orders which are deemed to be qualified orders. Such procedures
shall be in writing and shall comply with the provisions of Section 414(p)
of the Code and regulations issued thereunder.
18.5 - Indemnification
In addition to whatever rights of indemnification the members of the board
of directors of the Sponsor or any employee or employees of the Sponsor to
whom any power, authority, or responsibility is delegated pursuant to
Section 18.2, may be entitled under the articles of incorporation or
regulations of the Sponsor, under any provision of law, or under any other
agreement, the Sponsor shall satisfy any liability actually and reasonably
incurred by any such person or persons, including expenses, attorneys'
fees, judgments, fines, and amounts paid in settlement (other than amounts
paid in settlement not approved by the Sponsor), in connection with any
threatened, pending or completed action, suit, or proceeding which is
related to the exercising or failure to exercise by such person or persons
of any of the powers, authority, responsibilities, or discretion as
provided under the Plan, or reasonably believed by such person or persons
to be provided hereunder, and any action taken by such person or persons in
connection therewith, unless the same is judicially determined to be the
result of such person or persons' gross negligence or willful misconduct.
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18.6 - Actions Binding
Subject to the provisions of Section 18.3, any action taken by the Sponsor
which is authorized, permitted, or required under the Plan shall be final
and binding upon the Employers, the Trustee, all persons who have or who
claim an interest under the Plan, and all third parties dealing with the
Employers or the Trustee.
ARTICLE XIX
AMENDMENT AND TERMINATION
19.1 - Amendment
Subject to the provisions of Section 19.2, the Sponsor may at any time and
from time to time, by action of its board of directors, amend the Plan,
either prospectively or retroactively. Any such amendment shall be by
written instrument executed by the Sponsor.
19.2 - Limitation on Amendment
The Sponsor shall make no amendment to the Plan which shall decrease the
accrued benefit of any Participant or Beneficiary, except that nothing
contained herein shall restrict the right to amend the provisions of the
Plan relating to the administration of the Plan and Trust. Moreover, no
such amendment shall be made hereunder which shall permit any part of the
Trust to revert to an Employer or any Related Company or be used or be
diverted to purposes other than the exclusive benefit of Participants and
Beneficiaries.
19.3 - Termination
The Sponsor reserves the right, by action of its board of directors, to
terminate the Plan as to all Employers at any time (the effective date of
such termination being hereinafter referred to as the "termination date").
Upon any such termination of the Plan, the following actions shall be taken
for the benefit of Participants and Beneficiaries:
(a) As of the termination date, each Investment Fund shall be valued and
all Separate Accounts and Sub-Accounts shall be adjusted in the manner
provided in Article XI, with any unallocated contributions or forfeitures
being allocated as of the termination date in the manner otherwise
provided in the Plan. The termination date shall become a Valuation Date
for purposes of Article XI. In determining the net worth of the Trust,
there shall be included as a liability such amounts as shall be necessary
to pay all expenses in connection with the termination of the Trust and
the liquidation and distribution of the property of the Trust, as well as
other expenses, whether or not accrued, and shall include as an asset all
accrued income.
(b) All Separate Accounts shall then be disposed of to or for the benefit of
each Participant or Beneficiary in accordance with the provisions of
Article XV as if the termination date were his Settlement Date; provided,
however, that notwithstanding the provisions of Article XV, if the Plan
does not offer an annuity option and if neither his Employer nor a Related
Company establishes or maintains another defined contribution plan (other
than an employee stock ownership plan as defined in Section 4975(e)(7) of
the Code), the Participant's written consent to the commencement of
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distribution shall not be required regardless of the value of the vested
portions of his Separate Account.
(c) Notwithstanding the provisions of paragraph (b) of this Section, no
distribution shall be made to a Participant of any portion of the balance
of his Tax-Deferred Contributions Sub-Account prior to his separation from
service (other than a distribution made in accordance with Article XIII
or required in accordance with Section 401(a)(9) of the Code) unless (i)
neither his Employer nor a Related Company establishes or maintains
another defined contribution plan (other than an employee stock ownership
plan as defined in Section 4975(e)(7) of the Code, a tax credit employee
stock ownership plan as defined in Section 409 of the Code, or a
simplified employee pension as defined in Section 408(k) of the Code)
either at the time the Plan is terminated or at any time during the period
ending 12 months after distribution of all assets from the Plan; provided,
however, that this provision shall not apply if fewer than two percent
of the Eligible Employees under the Plan were eligible to participate at
any time in such other defined contribution plan during the 24-month
period beginning 12 months before the Plan termination, and (ii) the
distribution the Participant receives is a "lump sum distribution" as
defined in Section 402(e)(4) of the Code, without regard to clauses (i),
(ii), (iii), and (iv) of sub-paragraph (A), sub-paragraph (B), or
sub-paragraph (H) thereof.
Notwithstanding anything to the contrary contained in the Plan, upon any
such Plan termination, the vested interest of each Participant and
Beneficiary in his Employer Contributions Sub-Account shall be 100 percent;
and, if there is a partial termination of the Plan, the vested interest of
each Participant and Beneficiary who is affected by the partial termination
in his Employer Contributions Sub-Account shall be 100 percent. For
purposes of the preceding sentence only, the Plan shall be deemed to
terminate automatically if there shall be a complete discontinuance of
contributions hereunder by all Employers.
19.4 - Reorganization
The merger, consolidation, or liquidation of any Employer with or into any
other Employer or a Related Company shall not constitute a termination of
the Plan as to such Employer. If an Employer disposes of substantially all
of the assets used by the Employer in a trade or business or disposes of a
subsidiary and in connection therewith one or more Participants terminates
employment but continues in employment with the purchaser of the assets or
with such subsidiary, no distribution from the Plan shall be made to any
such Participant prior to his separation from service (other than a
distribution made in accordance with Article XIII or required in accordance
with Section 401(a)(9) of the Code), except that a distribution shall be
permitted to be made in such a case, subject to the Participant's consent
(to the extent required by law), if (i) the distribution would constitute a
"lump sum distribution" as defined in section 402(e)(4) of the Code,
without regard to clauses (i), (ii), (iii), or (iv) of sub-paragraph (A),
sub-paragraph (B), or sub-paragraph (H) thereof, (ii) the Employer
continues to maintain the Plan after the disposition, (iii) the purchaser
does not maintain the Plan after the disposition, and (iv) the distribution
is made by the end of the second calendar year after the calendar year in
which the disposition occurred.
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19.5 - Withdrawal of an Employer
An Employer other than the Sponsor may withdraw from the Plan at any time
upon notice in writing to the Administrator (the effective date of such
withdrawal being hereinafter referred to as the "withdrawal date"), and
shall thereupon cease to be an Employer for all purposes of the Plan. An
Employer shall be deemed automatically to withdraw from the Plan in the
event of its complete discontinuance of contributions. Upon the withdrawal
of an Employer, the withdrawing Employer shall determine whether a partial
termination has occurred with respect to its Employees. In the event that
the withdrawing Employer determines a partial termination has occurred, the
action specified in Section 19.3 shall be taken as of the withdrawal date,
as on a termination of the Plan, but with respect only to Participants who
are employed solely by the withdrawing Employer, and who, upon such
withdrawal, are neither transferred to nor continued in employment with any
other Employer or a Related Company. The interest of any Participant
employed by the withdrawing Employer who is transferred to or continues in
employment with any other Employer or a Related Company, and the interest
of any Participant employed solely by an Employer or a Related Company
other than the withdrawing Employer, shall remain unaffected by such
withdrawal; no adjustment to his Separate Accounts shall be made by reason
of the withdrawal; and he shall continue as a Participant hereunder subject
to the remaining provisions of the Plan.
ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1 - Adoption by Other Entities
Any other entity that is not an Employer may, with the consent of the
Sponsor, adopt the Plan and become an Employer hereunder by causing an
appropriate written instrument evidencing such adoption to be executed in
accordance with the requirements of its organizational authority. Any such
instrument shall specify the effective date of the adoption.
20.2 - Effective Plan Provisions
An Employer who adopts the Plan shall be bound by the provisions of the
Plan in effect at the time of the adoption and as subsequently in effect
because of any amendment to the Plan.
ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 - No Commitment as to Employment
Nothing contained herein shall be construed as a commitment or agreement
upon the part of any person to continue his employment with an Employer or
Related Company, or as a commitment on the part of any Employer or Related
Company to continue the employment, compensation, or benefits of any person
for any period.
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21.2 - Benefits
Nothing in the Plan nor the Trust Agreement shall be construed to confer
any right or claim upon any person, firm, or corporation other than the
Employers, the Trustee, Participants, and Beneficiaries.
21.3 - No Guarantees
The Employers, the Administrator, and the Trustee do not guarantee the
Trust from loss or depreciation, nor do they guarantee the payment of any
amount which may become due to any person hereunder.
21.4 - Expenses
The expenses of administration of the Plan, including the expenses of the
Administrator and fees of the Trustee, shall be paid from the Trust as a
general charge thereon, unless the Sponsor elects to make payment.
Notwithstanding the foregoing, the Sponsor may direct that administrative
expenses that are allocable to the Separate Account of a specific
Participant shall be paid from that Separate Account and the costs incident
to the management of the assets of an Investment Fund or to the purchase or
sale of securities held in an Investment Fund shall be paid by the Trustee
from such Investment Fund.
21.5 - Precedent
Except as otherwise specifically provided, no action taken in accordance
with the Plan shall be construed or relied upon as a precedent for similar
action under similar circumstances.
21.6 - Duty to Furnish Information
The Employers, the Administrator, and the Trustee shall furnish to any of
the others any documents, reports, returns, statements, or other
information that the other reasonably deems necessary to perform its duties
hereunder or otherwise imposed by law.
21.7 - Withholding
The Trustee shall withhold any tax which by any present or future law is
required to be withheld, and which the Administrator notifies the Trustee
in writing is to be so withheld, from any payment to any Participant or
Beneficiary hereunder.
21.8 - Merger, Consolidation, or Transfer of Plan Assets
The Plan shall not be merged or consolidated with any other plan, nor shall
any of its assets or liabilities be transferred to another plan, unless,
immediately after such merger, consolidation, or transfer of assets or
liabilities, each Participant in the Plan would receive a benefit under the
Plan which is at least equal to the benefit he would have received
immediately prior to such merger, consolidation, or transfer of assets or
liabilities (assuming in each instance that the Plan had then terminated).
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21.9 - Back Pay Awards
The provisions of this Section shall apply only to an Employee or former
Employee who becomes entitled to back pay by an award or agreement of an
Employer without regard to mitigation of damages. If a person to whom this
Section applies was or would have become an Eligible Employee after such
back pay award or agreement has been effected, and if any such person who
had not previously elected to make Tax-Deferred Contributions pursuant to
Section 4.1 shall within 30 days of the date he receives notice of the
provisions of this Section make an election to make Tax-Deferred
Contributions in accordance with such Section 4.1 (retroactive to any
Enrollment Date as of which he was or has become eligible to do so), then
such Participant may elect that any Tax-Deferred Contributions not
previously made on his behalf but which, after application of the foregoing
provisions of this Section, would have been made under the provisions of
Article IV, shall be made out of the proceeds of such back pay award or
agreement. In addition, if any such Employee or former Employee would have
been eligible to participate in the allocation of Employer Contributions
under the provisions of Article VI for any prior Plan Year after such back
pay award or agreement has been effected, his Employer shall make an
Employer Contribution equal to the amount of the Employer Contribution
which would have been allocated to such Participant under the provisions of
Article VI as in effect during each such Plan Year. The amounts of such
additional contributions shall be credited to the Separate Account of such
Participant. Any additional contributions made by such Participant and by
an Employer pursuant to this Section shall be made in accordance with, and
subject to the limitations of the applicable provisions of Articles IV, VI,
and VII.
21.10 - Condition on Employer Contributions
Notwithstanding anything to the contrary contained in the Plan or the Trust
Agreement, any contribution of an Employer hereunder is conditioned upon
the continued qualification of the Plan under Section 401(a) of the Code,
the exempt status of the Trust under Section 501(a) of the Code, and the
deductibility of the contribution under Section 404 of the Code. Except as
otherwise provided in this Section and Section 21.11, however, in no event
shall any portion of the property of the Trust ever revert to or otherwise
inure to the benefit of an Employer or any Related Company.
21.11 - Return of Contributions to an Employer
Notwithstanding any other provision of the Plan or the Trust Agreement to
the contrary, in the event any contribution of an Employer made hereunder:
(a) is made under a mistake of fact, or
(b) is disallowed as a deduction under Section 404 of the Code,
such contribution may be returned to the Employer within one year after the
payment of the contribution or the disallowance of the deduction to the
extent disallowed, whichever is applicable. In the event the Plan does not
initially qualify under Section 401(a) of the Code, any contribution of an
Employer made hereunder may be returned to the Employer within one year of
the date of denial of the initial qualification of the Plan, but only if an
application for determination was made within the period of time prescribed
under Section 403(c)(2)(B) of ERISA.
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21.12 - Validity of Plan
The validity of the Plan shall be determined and the Plan shall be
construed and interpreted in accordance with the laws of the State or
Commonwealth in which the Sponsor has its principal place of business,
except as preempted by applicable Federal law. The invalidity or
illegality of any provision of the Plan shall not affect the legality or
validity of any other part thereof.
21.13 - Trust Agreement
The Trust Agreement and the Trust maintained thereunder shall be deemed to
be a part of the Plan as if fully set forth herein and the provisions of
the Trust Agreement are hereby incorporated by reference into the Plan.
21.14 - Parties Bound
The Plan shall be binding upon the Employers, all Participants and
Beneficiaries hereunder, and, as the case may be, the heirs, executors,
administrators, successors, and assigns of each of them.
21.15 - Application of Certain Plan Provisions
A Participant's Beneficiary, if the Participant has died, or alternate
payee under a qualified domestic relations order shall be treated as a
Participant for purposes of directing investments as provided in Article X.
For purposes of the general administrative provisions and limitations of
the Plan, a Participant's Beneficiary or alternate payee under a qualified
domestic relations order shall be treated as any other person entitled to
receive benefits under the Plan. Upon any termination of the Plan, any
such Beneficiary or alternate payee under a qualified domestic relations
order who has an interest under the Plan at the time of such termination,
which does not cease by reason thereof, shall be deemed to be a Participant
for all purposes of the Plan.
21.16 - Leased Employees
Any leased employee, other than an excludable leased employee, shall be
treated as an employee of the Employer for which he performs services for
all purposes of the Plan; provided, however, that contributions to a
qualified plan made on behalf of a leased employee by the leasing
organization that are attributable to services for the Employer shall be
treated as having been made by the Employer and there shall be no
duplication of benefits under this Plan. A "leased employee" means any
person who performs services for an Employer or a Related Company (the
"recipient") (other than an employee of the recipient) pursuant to an
agreement between the recipient and any other person (the "leasing
organization") on a substantially full-time basis for a period of at least
one year, provided that such services are of a type historically performed,
in the business field of the recipient, by employees. An "excludable
leased employee" means any leased employee of the recipient who is covered
by a money purchase pension plan maintained by the leasing organization
which provides for (i) a nonintegrated employer contribution on behalf of
each participant in the plan equal to at least ten percent of compensation,
(ii) full and immediate vesting, and (iii) immediate participation by
employees of the leasing organization (other than employees who perform
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substantially all of their services for the leasing organization or whose
compensation from the leasing organization in each plan year during the
four-year period ending with the plan year is less than $1,000); provided,
however, that leased employees do not constitute more than 20 percent of
the recipient's nonhighly compensated work force. For purposes of this
Section, contributions or benefits provided to a leased employee by the
leasing organization that are attributable to services performed for the
recipient shall be treated as provided by the recipient.
21.17 - Transferred Funds
If funds from another qualified plan are transferred or merged into the
Plan, such funds shall be held and administered in accordance with any
restrictions applicable to them under such other plan to the extent
required by law and shall be accounted for separately to the extent
necessary to accomplish the foregoing.
ARTICLE XXII
TOP-HEAVY PROVISIONS
22.1 - Definitions
For purposes of this Article, the following terms shall have the following
meanings:
(a) The "compensation" of an employee means compensation as defined in
Section 415 of the Code and regulations issued thereunder. In no event,
however, shall the compensation of a Participant taken into account under
the Plan for any Plan Year exceed (1) $200,000 for Plan Years beginning
prior to January 1, 1994, or (2) $150,000 for Plan Years beginning on or
after January 1, 1994 (subject to adjustment annually as provided in
Section 401(a)(17)(B) and Section 415(d) of the Code; provided, however,
that the dollar increase in effect on January 1 of any calendar year, if
any, is effective for Plan Years beginning in such calendar year). If the
compensation of a Participant is determined over a period of time that
contains fewer than 12 calendar months, then the annual compensation
limitation described above shall be adjusted with respect to that
Participant by multiplying the annual compensation limitation in effect
for the Plan Year by a fraction the numerator of which is the number of
full months in the period and the denominator of which is 12; provided,
however, that no proration is required for a Participant who is covered
under the Plan for less than one full Plan Year if the formula for
allocations is based on Compensation for a period of at least 12 months.
In determining the compensation, for purposes of applying the annual
compensation limitation described above, of a Participant who is a
five-percent owner or one of the ten Highly Compensated Employees
receiving the greatest compensation for the Plan Year, the compensation of
the Participant's spouse and of his lineal descendants who have not
attained age 19 as of the close of the Plan Year shall be included as
compensation of the Participant for the Plan Year. If as a result of
applying the family aggregation rule described in the preceding sentence
the annual compensation limitation would be exceeded, the limitation
shall be prorated among the affected family members in proportion to each
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member's compensation as determined prior to application of the family
aggregation rules.
(b) The "determination date" with respect to any Plan Year means the last
day of the preceding Plan Year, except that the determination date with
respect to the first Plan Year of the Plan, shall mean the last day of
such Plan Year.
(c) A "key employee" means any Employee or former Employee who is a key
employee pursuant to the provisions of Section 416(i)(1) of the Code and
any Beneficiary of such Employee or former Employee.
(d) A "non-key employee" means any Employee who is not a key employee.
(e) A "permissive aggregation group" means those plans included in each
Employer's required aggregation group together with any other plan or
plans of the Employer, so long as the entire group of plans would
continue to meet the requirements of Sections 401(a)(4) and 410 of
the Code.
(f) A "required aggregation group" means the group of tax-qualified plans
maintained by an Employer or a Related Company consisting of each plan
in which a key employee participates and each other plan that enables a
plan in which a key employee participates to meet the requirements of
Section 401(a)(4) or Section 410 of the Code, including any plan that
terminated within the five-year period ending on the relevant
determination date.
(g) A "super top-heavy group" with respect to a particular Plan Year means
a required or permissive aggregation group that, as of the determination
date, would qualify as a top-heavy group under the definition in
paragraph (i) of this Section with "90 percent" substituted for "60
percent" each place where "60 percent" appears in the definition.
(h) A "super top-heavy plan" with respect to a particular Plan Year means a
plan that, as of the determination date, would qualify as a top-heavy
plan under the definition in paragraph (j) of this Section with "90
percent" substituted for "60 percent" each place where "60 percent"
appears in the definition. A plan is also a "super top-heavy plan" if
it is part of a super top-heavy group.
(i) A "top-heavy group" with respect to a particular Plan Year means a
required or permissive aggregation group if the sum, as of the
determination date, of the present value of the cumulative accrued
benefits for key employees under all defined benefit plans included in
such group and the aggregate of the account balances of key employees
under all defined contribution plans included in such group exceeds 60
percent of a similar sum determined for all employees covered by the plans
included in such group.
(j) A "top-heavy plan" with respect to a particular Plan Year means (i),
in the case of a defined contribution plan (including any simplified
employee pension plan), a plan for which, as of the determination date,
the aggregate of the accounts (within the meaning of Section 416(g) of
the Code and the regulations and rulings thereunder) of key employees
exceeds 60 percent of the aggregate of the accounts of all participants
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under the plan, with the accounts valued as of the relevant valuation
date and increased for any distribution of an account balance made in the
five-year period ending on the determination date, (ii), in the case of a
defined benefit plan, a plan for which, as of the determination date, the
present value of the cumulative accrued benefits payable under the plan
(within the meaning of Section 416(g) of the Code and the regulations and
rulings thereunder) to key employees exceeds 60 percent of the present
value of the cumulative accrued benefits under the plan for all employees,
with the present value of accrued benefits to be determined under the
accrual method uniformly used under all plans maintained by an Employer
or, if no such method exists, under the slowest accrual method permitted
under the fractional accrual rate of Section 411(b)(1)(C) of the Code
and including the present value of any part of any accrued benefits
distributed in the five-year period ending on the determination date,
and (iii) any plan (including any simplified employee pension plan)
included in a required aggregation group that is a top-heavy group. For
purposes of this paragraph, the accounts and accrued benefits of any
employee who has not performed services for an Employer or a Related
Company during the five-year period ending on the determination date
shall be disregarded. For purposes of this paragraph, the present value
of cumulative accrued benefits under a defined benefit plan for purposes
of top-heavy determinations shall be calculated using the actuarial
assumptions otherwise employed under such plan, except that the same
actuarial assumptions shall be used for all plans within a required or
permissive aggregation group. A Participant's interest in the Plan
attributable to any Rollover Contributions, except Rollover Contributions
made from a plan maintained by an Employer or a Related Company, shall
not be considered in determining whether the Plan is top-heavy.
Notwithstanding the foregoing, if a plan is included in a required or
permissive aggregation group that is not a top-heavy group, such plan
shall not be a top-heavy plan.
(k) The "valuation date" with respect to any determination date means the
most recent Valuation Date occurring within the 12-month period ending
on the determination date.
22.2 - Applicability
Notwithstanding any other provision of the Plan to the contrary, the
provisions of this Article shall be applicable during any Plan Year in
which the Plan is determined to be a top-heavy plan as hereinafter defined.
22.3 - Minimum Employer Contribution
If the Plan is determined to be a top-heavy plan, the Employer
Contributions allocated to the Separate Account of each non-key employee
who is an Eligible Employee and who is employed by an Employer or a Related
Company on the last day of such top-heavy Plan Year shall be no less than
the lesser of (i) three percent of his compensation or (ii) the largest
percentage of compensation that is allocated as an Employer Contribution
and/or Tax-Deferred Contribution for such Plan Year to the Separate Account
of any key employee; except that, in the event the Plan is part of a
required aggregation group, and the Plan enables a defined benefit plan
included in such group to meet the requirements of Section 401(a)(4) or 410
of the Code, the minimum allocation of Employer Contributions to each such
non-key employee shall be three percent of the compensation of such non-key
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employee. Any minimum allocation to a non-key employee required by this
Section shall be made without regard to any social security contribution
made on behalf of the non-key employee, his number of hours of service, his
level of compensation, or whether he declined to make elective or mandatory
contributions. Notwithstanding the minimum top-heavy allocation
requirements of this Section, if the Plan is a top-heavy plan, each non-key
employee who is an Eligible Employee and who is employed by an Employer or
a Related Company on the last day of a top-heavy Plan Year and who is also
covered under a top-heavy defined benefit plan maintained by an Employer or
a Related Company will receive the top-heavy benefits provided under the
defined benefit plan in lieu of the minimum top-heavy allocation under the
Plan offset by the benefits provided under the Plan.
22.4 - Adjustments to Section 415 Limitations
If the Plan is determined to be a top-heavy plan and an Employer maintains
a defined benefit plan covering some or all of the Employees that are
covered by the Plan, the defined benefit plan fraction and the defined
contribution plan fraction, described in Article VII, shall be determined
as provided in Section 415 of the Code by substituting "1.0" for "1.25"
each place where "1.25" appears, except that such substitutions shall not
be applied to the Plan if (i) the Plan is not a super top-heavy plan, (ii)
the Employer Contribution for such top-heavy Plan Year for each non-key
employee who is to receive a minimum top-heavy benefit hereunder is not
less than four percent of such non-key employee's compensation, and (iii)
the minimum annual retirement benefit accrued by a non-key employee who
participates under one or more defined benefit plans of an Employer or a
Related Company for such top-heavy Plan Year is not less than the lesser of
three percent times years of service with an Employer or a Related Company
or thirty percent.
ARTICLE XXIII
EFFECTIVE DATE
23.1 - Effective Date of Amendment and Restatement
This amendment and restatement is effective as of May 1, 1997.
* * *
EXECUTED AT ________________________________________,
________________________, this _________ day of ________________, 19__.
HUB GROUP, INC.
By: _________________________________
Title:
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ARTICLE XXIII
EFFECTIVE DATE
23.1 - Effective Date of Amendment and Restatement
This amendment and restatement is effective as of May 1, 1997.
* * *
EXECUTED AT ________________________________________,
________________________, this _________ day of ________________, 19__.
HUB GROUP, INC.
By: _________________________________
Title:
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[MAYER, BROWN & PLATT LETTERHEAD]
June 13, 1997
Hub Group, Inc.
377 East Butterfield Road, Suite 700
Lombard, Illinois 60148
Ladies and Gentlemen:
We are acting as special counsel to Hub Group, Inc. (the
"Company") in connection with the registration under the
Securities Act of 1933, as amended, of 200,000 shares of its
Class A Common Stock, $.01 par value (the "Shares"), to be
offered pursuant to the Hub Group Employee Profit Sharing Plan
and Trust, as maintained by Hub Group City Terminals, Inc. and
each of the limited partnerships for which it acts as general
partner, as well as the Hub City North Central, Inc. 401(k)
Profit Sharing Plan (together, the "Plans"). In connection
therewith, we have examined or are otherwise familiar with the
Company's Certificate of Incorporation, the Company's By-Laws,
the Plans, the Company's Registration Statement on Form S-8 (the
"Registration Statement") relating to the Shares, relevant
resolutions of the Board of Directors of the Company, and such
other documents and instruments as we have deemed necessary for
the purposes of this opinion.
Based upon the foregoing, we are of the opinion that the
Shares are duly authorized for issuance and when issued in
accordance with the provisions of the Plan will be legally
issued, fully paid and non-assessable shares of the Company.
We hereby consent to the filing of this opinion as an
Exhibit to the Registration Statement.
Very truly yours,
MAYER, BROWN & PLATT
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement
on Form S-8 (File No. 333- ) of our reports dated February
6, 1997 included in Hub Group, Inc's Form 10-K for the
year ended December 31, 1996 and to all references to our
Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
June 12, 1997
