<PAGE>
As filed with the Securities and Exchange Commission on November 27, 1996
Commission File No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________________
SPEEDFAM INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
Illinois 36-2421613
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7406 West Detroit
Chandler, Arizona 85226
(602) 961-2175
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
SPEEDFAM EMPLOYEES' SAVINGS AND PROFIT
SHARING PLAN AND TRUST
(Full title of the plan)
James N. Farley
Chairman of the Board and Chief Executive Officer
7406 West Detroit
Chandler, Arizona 85226
(602) 961-2175
(Name, address and telephone number including area code, of agent for service)
COPIES OF COMMUNICATIONS TO:
Jonathan A. Koff
Chapman and Cutler
111 West Monroe Street
Chicago, Illinois 60603
(312) 845-3000
________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per aggregate offering registration fee
share/(1)/ price
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no
par value 330,000 Shares 19.50 $6,435,000 $1,950
====================================================================================================
</TABLE>
/(1)/ Estimated pursuant to Rule 457 of the General Rules and Regulations under
the Securities Act of 1933 solely for the purpose of computing the
registration fee, based on the average of the high and low sale prices of
the Common Stock on the Nasdaq National Market on November 21, 1996.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below which have been filed with the Securities and
Exchange Commission (the "Commission") by SpeedFam International, Inc. (the
"Company") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") are incorporated herein by reference to the extent not modified
or superseded by documents subsequently filed or furnished:
(a) The Company's Annual Report on Form 10-K/A for the fiscal year
ended May 31, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended August 31, 1996;
(c) The Company's Current Report on Form 8-K dated July 8, 1996; and
(d) Description of the Common Stock of the Company contained in the
Registrant's Form 8-A (File No. 0-26784) filed with the Commission on
September 18, 1995.
All documents subsequently filed by the Company pursuant to Sections
13(a) and (c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing such documents.
The Company undertakes to provide without charge to each person to
whom a copy of the Prospectus relating to this Registration Statement has been
delivered, upon the written or oral request of such person, a copy of any or all
of the documents referred to above which have been or may be incorporated in
such Prospectus by reference, other than exhibits to such documents. Requests
for such copies should be directed to SpeedFam International, Inc., 7406 West
Detroit, Chandler, Arizona 85226, Attention: H. Richard Osgood (telephone:
602-961-2175).
ITEM 4. NOT APPLICABLE
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Chapman and Cutler, Chicago, Illinois. Mr.
Charles A. Kelly, a partner of Chapman and Cutler, serves as Secretary of the
Company and owns 51,000 shares of the Company's Common Stock. In addition, Mr.
Kelly has sole voting and dispositive power
II-1
<PAGE>
over 717,400 shares of Common Stock held in the Nancy Jo Farley Trust, a
revocable trust, of which he serves as co-trustee. Mr. Kelly also shares voting
and dispositive power over 762,780 shares of Common Stock held in the Makoto
Kouzuma Trust, a revocable trust, of which he serves as co-trustee and over
327,708 shares of Common Stock held in the SpeedFam Employees' Profit Sharing
Plan and Trust, of which he serves as co-trustee.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.75 of the Illinois Business Corporation Act of 1983, as amended
(the "BCA") sets forth the conditions and limitations governing the
indemnification of officers, directors, and other persons.
The Company's Bylaws provides for indemnification of directors, officers,
employees or agents of the Company to the full extent permitted by the above-
mentioned section of the Act.
Section 8.75(g) of the BCA and Article X, Section (g) of the Bylaws also
authorize the Company to purchase and maintain insurance on behalf of any
director, officer, employee or agent of the Company against any liability
asserted against or incurred by them in such capacity or arising out of their
status was such whether or not the Company would have the power to indemnify
such director, officer, employee or agent against such liability under the
applicable provisions of the Act or Bylaws. The Company currently maintains a
directors and officers liability policy in the amount of $10 million.
ITEM 7. NOT APPLICABLE
ITEM 8. EXHIBITS
See List of Exhibits on page II-5 hereof.
ITEM 9. UNDERTAKINGS
(a) The 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, as amended (the "Securities Act");
(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;
II-2
<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for the purpose of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Chandler, County of Maricopa, Arizona on November 26,
1996.
SpeedFam International, Inc.
By /s/ James N. Farley
----------------------------------
James N. Farley, Chairman of the
Board and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ James N. Farley, Chairman, Chief Executive November 26, 1996
- --------------------------- Officer and Director
James N. Farley
/s/ Makoto Kouzuma, President, Chief Operating November 26, 1996
- --------------------------- Officer and Director
Makoto Kouzuma
/s/ Roger K. Marach, Treasurer, Assistant Secretary November 26, 1996
- --------------------------- and Chief Financial Officer
Roger K. Marach (Principal financial and
accounting officer)
Director November 26, 1996
- ---------------------------
Neil R. Bonke
/s/ Thomas J. McCook, Director November 26, 1996
- ---------------------------
Thomas J. McCook
/s/ Stuart Meyer, Director November 26, 1996
- ---------------------------
Stuart Meyer
/s/ Robert Miller, Director November 26, 1996
- ---------------------------
Robert Miller
/s/ Carl S. Pedersen, Director November 26, 1996
- ---------------------------
Carl S. Pedersen
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Numbered
Page
<S> <C> <C>
4.1 SpeedFam Employee's Savings and Profit Sharing Plan
and Trust............................................
4.2 Specimen Certificate (incorporated by reference from
the Registrant's Form 8-A (File No. 0-26784) filed
with the Commission on September 18, 1995)...........
5.1 Opinion of counsel for the Registrant, regarding the
legality of the securities registered hereunder......
23.1 Consent of counsel for the Registrant (included in
Exhibit 5.1 hereto)..................................
23.2 Consent of KPMG Peat Marwick LLP.....................
</TABLE>
II-5
<PAGE>
EXHIBIT 4.1
FAMTEC EMPLOYEES' SAVINGS AND PROFIT SHARING PLAN AND TRUST
(As Amended and Restated Effective
as of June 1, 1989)
- --------------------------------------------------------------------------------
Chapman and Cutler
Chicago
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
1 General 1
History, Purpose and Effective Date 1
The Employers and Related Companies 1
Plan Administration, Trust Agreement 2
Plan Year 2
Accounting Date 2
Applicable Laws 2
Gender and Number 2
Notices 2
Evidence 2
Action by Employers 2
No Reversion to Employers 3
Prior Elections 3
Spousal Consent 3
2 Participation 3
Participants 3
Participation Upon Re-Employment 3
Participation Not Contract of Employment 4
3 Service 4
Years of Service 4
Hour of Service 4
One-Year Break-in-Service 6
Leased Employees 6
4 Participant Contributions 6
Pre-Tax Contributions 6
After-Tax Contributions 7
Variation, Discontinuance or Resumption
of Participant Contributions 7
Form of Election 7
Compensation 7
5 Employer Contributions
Employer Pre-Tax Contributions 8
Employer Matching Contributions 8
Profit Sharing Contribution 8
Time for Making Profit Sharing
and Matching Contributions 8
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
6 Transfers From Related Plans 8
7 Participant Accounts 9
Accounts to be Established 9
Adjustments to Participants' Accounts 9
8 Allocation of Contributions 10
Allocation of Profit Sharing
Contributions 10
Allocation of Pre-Tax or Matching
Contributions 11
9 Limitations on Compensation, Contributions and
Allocations 11
Compensation 11
Limitations on Annual Additions 12
Combined Plan Limitation 12
Reduction of Contribution Rates 13
Excess Annual Additions 13
Limitations Under Code Section 402(g) 13
Disposition of Excess Elective Deferrals 14
Limitations Under Code Section 401(k)(3) 14
Disposition of Excess Pre-Tax Contributions 15
Limitations Under Code Section 401(m)(2) 16
Disposition of Excess Aggregate
Contributions 17
Multiple Use of Alternative Limitation 17
Highly Compensated Employee 18
10 Trust Assets 19
Trust Exclusive Owner 19
Investment of Trust Fund by Trustee 19
Fixed Income Fund 20
11 Vesting 21
Vesting of Accounts 21
Forfeitures 22
12 Pre-Termination Withdrawals and Loans 23
Pre-Termination Withdrawals 23
Hardship 23
Loans to Participants 24
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
13 Distribution on Termination or Transfer
of Employment 26
Limits on Commencement and Duration
of Distributions 26
Form of Distribution on Termination of
Employment 28
Special Rules Governing Annuity Elections 30
Small Account Balances 31
Reemployment 32
Distributions to Persons Under Disability 32
Interests Not Transferable 32
Absence of Guaranty 32
Designation of Beneficiary 32
Missing Recipients 33
Transfers to Related Plans 34
14 The Committee 34
Membership 34
Rights, Powers and Duties 35
Application of Rules 35
Remuneration and Expenses 35
Indemnification of the Committee 35
Exercise of Committee's Duties 35
Information to be Furnished to Committee 36
Resignation or Removal of Committee Member 36
Appointment of Successor Committee Members 36
15 Powers, Rights and Duties of Trustee 36
Administration of Trust Assets 36
Individual Trustees 37
Employment of Investment Manager 37
Expenses 38
Qualification Under Internal Revenue Laws 38
Removal of Trustee; Appointment of Successor 38
Trustee's Duties Limited 38
Finality of Trustee's Decision or Acts 39
Trustee Indemnification 39
16 No Reversion to Employers 39
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
17 Amendment and Termination 40
Amendment 40
Limitations on Right to Amend 40
Termination 41
Merger and Consolidation of Plan,
Transfer of Plan Assets 41
Vesting and Distribution on Termination
and Partial Termination 41
Notice of Amendment, Termination or
Partial Termination 42
18 Execution of Agreement 42
Counterparts 42
Acceptance by Trustee 42
Execution 42
</TABLE>
SUPPLEMENT A
<PAGE>
FAMTEC EMPLOYEES' SAVINGS AND PROFIT SHARING PLAN AND TRUST
(As Amended and Restated Effective as of June 1, 1989)
-----------------------------------------------------------
THIS AGREEMENT is made this 22nd day of August, 1989, by and between FamTec
International, Inc. (the "Company"), and James N. Farley, James V. Keefe and
Charles A. Kelly {collectively the "Trustee").
SECTION 1
General
1.1. History, Purpose and Effective Date. Effective May 31, 1964, Speedfam
Corporation established the Speedfam Employees' Profit Sharing Plan and Trust to
assist its eligible employees in providing for their future security. In June,
1988, Speedfam Corporation was restructured and renamed FamTec International,
Inc. The following provisions constitute an amendment, restatement and
continuation of the Speedfam Employees' Profit Sharing Plan and Trust as in
effect immediately prior to June 1, 1989, the "Effective Date" of the savings
and profit sharing plan as set forth herein, which on and after the Effective
Date shall be known as the FamTec Employees' Savings and Profit Sharing Plan and
Trust (the "Plan"). The Plan is intended to qualify under Sections 401(a) and
401(k) of the Internal Revenue Code of 1986, as amended (the "Code"). The
provisions of the Plan as applied to any group of employees, with the consent of
the Company, may be modified or supplemented from time to time by the adoption
of one or more Supplements. Each such Supplement shall form a part of the Plan
as of the Supplement's effective date. In the event of any inconsistency between
a Supplement and the Plan document, the terms of the Supplement shall govern.
1.2. The Employers and Related Companies. The Company and each Related
Company which, with the consent of the Company, adopts the Plan are referred to
below collectively as the "Employers" and individually as an "Employer". The
term "Related Company" means any corporation or trade or business during any
period that it is, along with the Company, a member of a controlled group of
corporations or a controlled group of trades or businesses (as described in
sections 414(b) and 414(c), respectively, of the Code), and, if so designated by
the Company, any other corporation during any period that 50% or more of its
voting stock is owned directly or indirectly by the Company.
<PAGE>
1.3. Plan Administration, Trust Aqreement. The authority to control and
manage the operation and administration of the Plan shall be vested in the
committee ("Committee") described in Section 14. The Company shall be the
Administrator of the Plan, and shall have the rights duties and obligations of
an "administrator" as that term is defined in section 3(16)(A) of the Employee
Retirement Income Security Act of 1974 ("ERISA") and of a "plan administrator"
as that term is defined in section 414(g) of the Code. All contributions made
under the Plan will be held, managed and controlled by one or more trustees (the
"Trustee") acting under the Trust which forms a part of the Plan and, to the
extent provided herein, by one or more investment managers.
1.4. Plan Year. The term "Plan Year" means the twelve-consecutive-month
period beginning on each June 1.
1.5. Accounting Date. The term "Accounting Date" means the last day of
each Plan Year.
1.6. Applicable Laws. The Plan shall be construed and administered
according to the internal laws of the State of Illinois to the extent that such
laws are not preempted by the laws of the United States of America.
1.7. Gender and Number. Where the context admits, words in any gender
shall include all other genders, words in the singular shall include the plural
and the plural shall include the singular.
1.8. Notices. Except as otherwise provided by the Committee, any notice or
document required to be filed with the Committee under the Plan will be properly
filed if delivered or mailed by registered mail, postage prepaid, to the
Committee, in care of the Company at its principal business offices. Any notice
required under the Plan may be waived by the person entitled to notice.
1.9. Evidence. Evidence required of anyone under the Plan may be by
certificate, affidavit, document or other information which the person acting on
it considers pertinent and reliable, and signed, made or presented by the proper
parties.
1.10. Action bY Employers. Any action required or permitted to be taken by
the Company or any other Employer under the Plan shall be by resolution of its
Board of Directors or by a person or persons authorized by resolution of its
Board of Directors or, if such Employer is not a corporation, by action of its
governing body or by a person or persons authorized by such governing body.
-2-
<PAGE>
1.11. No Reversion to Employee. Except as otherwise specifically provided
herein, no part of the corpus or income of the Trust shall revert to any
Employer or be used for, or diverted to, purposes other than for the exclusive
benefit of Participants and other persons entitled to benefits under the Plan.
1.12. Prior Elections. Except to the extent otherwise provided by the
Committee or by the following provisions of the Plan, all elections and
designations in effect under the Plan immediately prior to the Effective Date
shall continue in effect thereafter until changed by the person making the
election.
1.13. Spousal Consent. Any election by a Participant under the Plan which,
by its terms, requires Spousal Consent, shall be effective only if:
(a) the Participant's spouse consents in writing to such election and the
consent acknowledges the effect of the election and is witnessed by a
notary public or a Plan representative appointed or approved by the
Committee; or
(b) it is established to the satisfaction of a Plan representative
appointed or approved by the Committee that the consent required under
paragraph (a) above cannot be obtained because there is no spouse,
because the spouse cannot be located or because of such other
circumstances as the Secretary of the Treasury may prescribe in
regulations.
SECTION 2
Participation
2.1. Participants. Each employee of an Employer who was employed by an
Employer immediately prior to the Effective Date shall become a Participant as
of the Effective Date, subject to the conditions and limitations of the Plan.
Each other employee of the Employers will become a Participant on the first day
of any subsequent December or June on which he has completed one Year of Service
(as defined in subsection 3.1).
2.2. Participation Upon Re-Employment. A Participant whose employment
terminates and who is subsequently re-employed shall re-enter the Plan as a
Participant on the date of his re-employment. In the event that an employee
completes the eligibility requirements set forth in Section 2.1 above his
employment terminates prior to becoming a Participant and he is
-3-
<PAGE>
subsequently re-employed, such employee shall be deemed to have met said
eligibility requirements as of the date of his re-employment and shall become a
Participant on the date of his re-employment; provided, however, that if he is
re-employed prior to the date he would have become a Participant if his
employment had not terminated, he shall become a Participant as of the date he
would have become a Participant if his employment had not terminated. Any other
employee whose employment terminates and who is subsequently reemployed shall
become a Participant in accordance with the provisions of said Section 2.1.
2.3. Participation Not Contract of Employment. The Plan does not
constitute a contract of employment, and participation in the Plan will not give
any employee the right to be retained in the employ of any Employer nor any
right or claim to any benefit under the terms of the Plan unless such right or
claim is specifically accrued under the terms of the Plan.
SECTION 3
Service
3.1. Years of Service. The term "Year of Service" means, with respect to
any employee or Participant, any Plan Year during which he completes at least
1,000 Hours of Service (as defined in subsection 3.2); provided that the twelve-
consecutive-month period commencing on the date on which the employee first
completes an Hour of Service shall be deemed to be a Year of Service if he
completes at least 1,000 Hours of Service during such twelve-consecutive-month
period.
3.2. Hour of Service. The term "Hour of Service" means, with respect to
any employee or Participant, each hour for which he is paid or entitled to
payment for the performance of duties for an Employer or a Related Company or
for which back pay, irrespective of mitigation of damages, has been awarded to
the employee or Participant or agreed to by an Employer or a Related Company,
subject to the following:
(a) an employee or Participant shall be credited with 8 Hours of Service
per day (to a maximum of 40 Hours of Service per week) for any period
during which he performs no duties for an Employer or a Related
Company (irrespective of whether the employment relationship has
terminated) by reason of a vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty or leave or
absence but for which he is directly or indirectly paid or entitled to
payment by an Employer or a Related Company; provided,
-4-
<PAGE>
however, that an employee or Participant shall not be credited with
more than 501 Hours of Service under this paragraph (a) for any single
continuous period during which he performs no duties for an Employer
or a Related Company. Payments considered for purposes of the
foregoing sentence shall include payments unrelated to the length of
the period during which no duties are performed but shall not include
payments made solely as reimbursement for medically related expenses
or solely for the purpose of complying with the applicable workmen's
compensation, unemployment compensation or disability insurance laws.
(b) Solely for purposes of determining whether an employee or Participant
has incurred a One-Year Break-in-Service, the employee or Participant
shall be credited, to the extent not otherwise credited in accordance
with the foregoing provisions of this subsection 3.2, with 8 Hours of
Service for each day (to a maximum of 40 Hours of Service for each
calendar week) for any period during which an employee is absent from
active employment with an Employer or Related Company by reason of the
employee's pregnancy, the birth of a child of the employee, or the
placement of a child with the employee in connection with the
employee's adoption of such child, and, in each case, the care of such
child immediately after its birth or placement; provided that in no
event shall more than 501 Hours of Service be credited under this
paragraph (b). Hours of Service credited in accordance with the
foregoing sentence shall be credited for the Plan Year during which
the absence begins to the extent that such crediting would prevent the
employee from incurring a One-Year Break-in-Service during that year
and, in each other case, shall be credited in the immediately
following Plan Year.
(c) Solely for purposes for determining whether he has incurred a One-Year
Break-in-Service, an employee or Participant shall be credited, to the
extent not credited in accordance with the foregoing provisions of
this subsection 3.2, with 8 Hours of Service per day (to a maximum of
40 Hours of Service per week) that he is absent from active employment
with the Employer or a Related Company by reason of a leave of absence
approved or granted by the Employer or the Related Company in
accordance with rules uniformly applied by it.
-5-
<PAGE>
3.3. One-Year Break-in-Service. The term "One-Year Breakin-Service" means,
with respect to any employee or Participant, any Plan Year during which he
completes less than 501 Hours of Service.
3.4. Leased Employees. If, pursuant to one or more agreements between an
Employer or a Related Company and one or more leasing organizations (within the
meaning of section 414(n) of the Code), a person provides services to the
Employer or Related Company, in a capacity other than as an employee, on a
substantially full-time basis for a period of at least one year, and such
services are of a type historically performed by employees in the business field
of the Employer or Related Company, such person shall be a "Leased Employee".
Leased Employees shall not be eligible to participate in this Plan or in any
other plan maintained by the Employer or Related Company which is qualified
under section 401(a) of the Code. A Leased Employee shall be treated as if the
services performed by him in such capacity (including service performed during
such initial one-year period) were performed by him as an employee of a Related
Company which has not adopted the Plan; provided, however, that no such service
shall be credited:
(a) for any period during which less than 20% of the workforce of the
Employers and the Related Companies consists of Leased Employees and
the Leased Employee is a participant in a money purchase pension plan
maintained by the leasing organization which (i) provides for a
nonintegrated employer contribution of at least 10 percent of
compensation, (ii) provides for full and immediate vesting, and (iii)
covers all employees of the leasing organization (beginning with the
date they become employees), other than those employees excluded under
section 414(n)(5) of the Code; or
(b) for any other period unless the Leased Employee provides satisfactory
evidence to the Employer or Related Company that he meets all of the
conditions of this subsection 3.4 and applicable law required for
treatment as a Leased Employee.
SECTION 4
ParticiPant Contributions
4.1. Pre-Tax Contributions. Subject to the limitations set forth in Section
9, each Participant may make an election in writing to reduce his Compensation
(as defined in subsection 4.5) by an amount that is not less than two percent
(2%) and not more
-6-
<PAGE>
than fifteen percent (15%) for that year, and have such amount contributed by
the Employer to the Plan ("Pre-Tax Contribution"). A Participant's Pre-Tax
Contributions shall be made through regular payroll deductions. The Employer may
impose reasonable limitations in a uniform, nondiscriminatory manner on the
amounts which may be so contributed in order to satisfy applicable legal
requirements and to assure the deductibility of amounts contributed by the
Employer to the Plan.
4.2. After-Tax Contributions. Effective June 1, 1989, no Participant may
make any After-Tax Contributions to the Trust. After-Tax Contributions
previously made shall be held and administered as provided hereunder.
4.3. Variation, Discontinuance or Resumption of Participant Contributions.
Effective the first day of the first payroll beginning on or after the next June
1 or December 1, a Participant may elect to change his Pre-Tax Contribution rate
(but not retroactively) or to resume making contributions within the limit
specified above. A Participant may discontinue Pre-Tax Contributions at any time
with 30 days prior written notice to the Committee.
4.4. Form of Election. Each election by a Participant under this Section 4
shall be made by writing filed with the Committee at such time and in such form
as the Committee may require.
4.5. Compensation. A Participant's "Compensation" means the total gross
compensation paid and accrued by the Employer to or for a Participant on account
of each calendar year before deductions required by law or Pre-Tax Contributions
pursuant to subsection 4.1, including commissions, bonuses, overtime pay and
taxable fringe benefits, but excluding deferred compensation, reimbursement of
medical expenses, premiums on insurance policies, and contributions to this or
any other deferred compensation plan (except Pre-Tax Contributions); provided
that with regard to the Plan Year during which a Participant commences
participation, "Compensation" shall only include the total gross compensation
paid by the Employer from the date his participation commences; and provided
further that the annual gross compensation taken into account for purposes of
the Plan shall not exceed $200,000, as such amount may be adjusted from time to
time in accordance with regulations issued by the Secretary of the Treasury.
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SECTION 5
Employer Contributions
5.1. Employer Pre-Tax Contributions. Subject to the provisions of Section
9, as soon as practicable after the last day of each calendar month, each
Employer shall make a contribution to the Trustee on behalf of each of its
Participants in an amount equal to the amount of the Participant's Pre-Tax
Contributions for each payroll period ending during that month.
5.2. Employer Matching Contributions. Subject to the provisions of Section
9, the Employer may contribute to the Trust for each Participant a Matching
Contribution in an amount equal to a portion of the Participant's Pre-Tax
Contribution election ("Matching Contribution"). Annually, the Employer shall
determine the amount of the Matching Contribution, if any.
5.3. Profit Sharing Contribution. The Employer may contribute to the Trust
Fund for each Plan Year such amount as it shall determine from time to time
("Profit Sharing Contribution"); provided, however, that the contribution for
any Plan Year shall not exceed the maximum amount deductible from the Employer's
income for such Plan Year for federal income tax purposes.
5.4. Time for Making Profit Sharinq and Matching Contributions. All Profit
Sharing and Matching Contributions shall be remitted by the Employer as soon as
practicable following the close of the Plan Year, and in no event later than the
time prescribed by law (including extensions thereof) for filing the Employer's
federal income tax return for its taxable year in or with which such Plan Year
ends.
SECTION 6
Transfers From Related Plans
Any individual who becomes an employee of an Employer by reason of a
transfer of employment from a Related Company may elect, at such time and in
such manner as the Committee may provide, to have the Plan accept a transfer of
his fully vested interest under any defined contribution plan maintained by an
Employer or Related Company and qualified under section 401(a) of the Code, in
accordance with the provisions of that plan. Upon receipt by the Trustee of such
assets, the Trustee shall place such assets in a Rollover Account for the
individual and he shall be deemed to be fully vested in such assets. Immediately
following the next May 31 coinciding with or next following the
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<PAGE>
receipt of such assets by the Trustee, such assets shall be added to the Trust
Fund and allocated to the individual's Account in such manner as the Committee
determines best reflects the contribution source of the amounts transferred.
SECTION 7
Participant Accounts
7.1. Accounts to be Established. All income, profits, recoveries,
contributions and any and all monies, securities and properties of any kind at
any time received or held by the Trustee shall be held as a single Trust. For
accounting purposes, the Committee shall establish and maintain certain Accounts
for each Participant. A Profit Sharing Account shall be established and
maintained for each Participant, to which shall be added the Participant's share
of forfeitures and Profit Sharing Contributions. A Pre-Tax and Matching
Contribution Account shall be established and maintained for each Participant,
to which shall be added the Participant's Pre-Tax Contributions and the Matching
Contributions. The Committee shall establish and maintain an After-Tax
Contribution Account for each Participant who made After-Tax Contributions to
the Plan prior to the Effective Date. Participants' Accounts shall be adjusted
at the times and in the order and manner provided in subsection 7.2 below.
7.2. Adjustments to Participants' Accounts. As of each May 31, the balances
in each of the Participant's Accounts shall be adjusted as hereinafter provided.
(a) Distributions. Any distribution made to or on behalf of a Participant
since the last day of the prior adjustment shall be deducted from the
Participant's Account with respect to which said distribution was
made.
(b) Valuation of Accounts to Fair Market Value. The value of all monies,
securities and other property in the Trust shall be appraised by the
Trustee at the then fair market value. In determining such value, all
accrued and unpaid income shall be included and there shall be
deducted all accrued and unpaid expenses and contributions, if any,
received by the Trustee from the Employer or Participants on account
of such annual adjustment.
If the total net value of the Trust so determined exceeds (or is less
than) the total amount of the
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balances in the Accounts of all Participants, the excess (or
deficiency) shall be added to (or deducted from) the respective
Accounts of all Participants in the ratio that the Average Balance of
each such Participant's Account bears to the total amount of the
Average Balances in all such Accounts. The Average Balance with
respect to an Account shall mean the sum of the balances of the
account for the previous November 30 and the May 31 for which
adjustments are being made (prior to crediting Profit Sharing or
Matching Contributions or forfeitures), divided by two.
(c) Profit Sharing Contributions. Each Participant's Profit Sharing
Account shall be increased by all amounts contributed by the Employer
pursuant to a Profit Sharing Contribution.
(d) Pre-Tax and Matching Contributions. Each Participant's Pre-Tax
Contribution Account shall be increased by all amounts contributed by
the Employer pursuant to an Employee's Pre-Tax Contribution election
and by all amounts contributed by the Employer as a Matching
Contribution.
(e) Time of Adjustments. Every adjustment provided to be made pursuant to
this Section 7.2 shall be considered as having been made as of each
May 31, or, in case of crediting Pre-Tax Contributions, as of each
November 30 and May 31, regardless of the actual dates of entries,
receipt by the Trustee of contributions by the Participant or the
Employer for such period. The Trustee's determination as to valuation
of trust assets and charges or credits to the individual Accounts of
the respective Participants as hereinbefore provided shall be
conclusive and binding on all persons.
SECTION 8
Allocation of Contributions
8.1. Allocation of Profit Sharing Contributions.
(a) As of each Accounting Date, the Profit Sharing Contributions and
forfeitures for each Plan Year shall be allocated among the Profit
Sharing Accounts of the Participants eligible to share in such
contributions as described in subsection (b) in the same proportion
that such Participant's Units bear to the total Units of all eligible
Participants. A Participant shall receive one Unit for each One
Hundred Dollars ($100.00) of Compensation or major fraction thereof
received from
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the Company during the Year plus five (5) Units for each Year of
Service.
(b) A Participant shall be eligible to share in the contributions and
forfeitures as provided in subsection (a) above
(i) if he is actively employed and a Participant on the last day of
such Plan Year, or
(ii) if he was a Participant on the first day of the Plan Year and
shall have terminated employment by reason of retirement, death
or disability.
8.2. Allocation of Pre-Tax or Matching Contributions. Pre-Tax Contributions
by a Participant shall be allocated to the Pre-Tax and Matching Contribution
Account of such Participant as of November 30 and May 31 of each Plan Year to
which the contribution pertains. Matching Contributions on behalf of a
Participant shall be allocated to the Pre-Tax and Matching Contribution Account
of such Participant as of May 31 of each Plan Year to which the contribution
pertains, but only if such Participant --
(a) is actively employed and a Participant on the last day of the Plan
Year, or
(b) was a Participant on the first day of the Plan Year and shall have
terminated employment by reason of retirement, death or disability.
SECTION 9
---------
Limitations on Compensation,
Contributions and Allocations
-----------------------------
9.1. Compensation. Except as otherwise specifically provided, a
Participant's "Compensation" for purposes of this Section 9 shall mean the sum
of:
(a) the compensation (as described in Treas. Reg. (S) 1.415-2(d)(1)) paid
to him during the Plan Year for personal services actually rendered in
the course of his employment with any Employer or Section 415
Affiliate (as defined below), excluding deferred compensation and
other amounts that receive special tax treatment (as described in
Treas. Reg. (S) 1.415-2(d)(2)); plus
(b) any Pre-Tax Contributions and salary reduction contributions made on
his behalf for the year to the Plan or a plan within the meaning of
section 125 of the Code.
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<PAGE>
Notwithstanding the foregoing provisions of this subsection 10.1, "Compensation"
for purposes of subsection 10.2 shall be calculated without regard to clause (b)
above and for all purposes of this Section 10 except clause 10.2(a)(i) shall be
limited to $200,000 or such larger amount as may be permitted for any Plan Year
under Code section 401(a)(17). "Section 415 Affiliate" means any trade or
business (whether or not incorporated) that is, along with the Company, a member
of a controlled group of corporations or trades or businesses within the meaning
of sections 414(b) and (c) of the Code, as modified by section 415(h) of the
Code.
9.2. Limitations on Annual Additions. Notwithstanding any other provisions
of the Plan to the contrary, a Participant's Annual Additions (as defined below)
for any Plan Year shall not exceed an amount equal to the lesser of:
(a) $30,000 (or, if greater, 1/4 of the dollar limitation in effect for
that Plan Year under section 415(b)(1)(A) of the Code); or
(b) 25 percent of the Participant's Compensation for that Plan Year.
The term "Annual Additions" means, with respect to any Participant for the Plan
Year, the sum of all contributions (including Participant Contributions) and all
forfeitures allocated to his Accounts for that Plan Year under this Plan and all
Related Defined Contribution Plans. The term "Related Defined Contribution Plan"
means any other defined contribution plan (as defined in section 415(k) of the
Code) maintained by an Employer or any other trade or business which, together
with an Employer, is a member of a controlled group of corporations or a
controlled group of trades or businesses as described in sections 415(b) and (c)
of the Code, as modified by section 415(h) of the Code.
9.3. Combined Plan Limitation. If a Participant also participates in any
defined benefit plan (as defined in section 415(k) of the Code) maintained by an
Employer or a Related Company, the aggregate benefits payable to, or on account
of, the Participant under such plan together with this Plan shall be determined
in a manner consistent with section 415(e) of the Code. The benefit provided for
the Participant under the defined benefit plan shall be adjusted to the extent
necessary so that the sum of the "defined benefit fraction" and the "defined
contribution fraction" (as such terms are defined in section 415(e) of the Code
and applicable regulations thereunder) calculated with regard to such
Participant does not exceed 1.0.
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<PAGE>
For purposes of this subsection 9.3, all qualified defined benefit plans
(whether or not terminated) of the Employers and Related Companies shall be
treated as one defined benefit plan.
9.4. Reduction of Contribution Rates. To conform the operation of the Plan
to sections 401(k)(3), 401(m)(2), 402(g) and 415(c) of the Code, the Committee
may unilaterally modify or revoke any election of Pre-Tax Contributions made by
a Participant pursuant to subsections 4.1 or 4.2; provided that the contribution
reductions effected under this subsection 9.4 shall be made in the following
order: Employee Contributions in excess of 6% of Compensation, Employer Matching
Contributions (including forfeitures) and Employee Contributions of 6% or less
of Compensation.
9.5. Excess Annual Additions. If a Participant's Annual Additions for any
Plan Year would otherwise exceed the limitations imposed by the foregoing
provisions of subsection 9.2, the amount of the contributions and forfeitures
which would, otherwise be credited to the Participant's Accounts under this Plan
and any Related Defined Contribution Plan shall be reduced to the extent
necessary to comply with such limitations. To the extent permitted under a
Related Defined Contribution Plan, Annual Additions under such plan shall be
reduced prior to any reduction under this Plan. Reductions under this Plan shall
be made in the order set forth in subsection 9.4. Subject to the following
provisions of this subsection 9.5, amounts attributable to Pre-Tax Contributions
and Employer Matching Contributions (including forfeitures thereof) shall be
credited to a (S)415 Suspense Account maintained in the Participant's name.
Amounts credited to a Participant's (S)415 Suspense Account shall be credited to
his contribution accounts in the following Plan Year or Plan Years, to the
extent permitted by the foregoing provisions of this Section 9, and shall be
used to reduce Employer Contributions otherwise required for such Plan Years
with respect to that Participant. If any amount remains in a Participant's
(S)415 Suspense Account after the Plan Year in which he ceases to participate in
the Plan, such amount shall be used to reduce Employer Contributions in the
following Plan Year or Plan Years. In no event will the sum of the value of all
amounts credited to all (S)415 Suspense Accounts for any Plan Year (determined
as of the date such amounts are credited) exceed the amount thereof attributable
to forfeitures which arose under the Plan during the year and the amount
contributed for that year as a result of estimating the Compensation of
Participants or as a result of such other circumstances as the Commissioner of
Internal Revenue may permit.
9.6. Limitations Under Code Section 402(g). In no event shall the Pre-Tax
Contributions for a Participant under the Plan
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(together with elective deferrals, as defined in Code section 402(g)(3), under
any other cash-or-deferred arrangement maintained by an Employer or a Related
Company) for any taxable year exceed $7,000 or such larger amount as may be
permitted for that year under section 402(g) of the Code.
9.7. Disposition of Excess Elective Deferrals. No distribution of Pre-Tax
Contributions shall be made to such Participant because during any taxable year
in which a Participant is also a participant in any other salary reduction or
cash or deferred arrangement, his elective deferrals (as defined in section
402(g)(3) of the Code) under such other arrangement together with Pre-Tax
Contributions made on his behalf exceed the maximum amount permitted for the
Participant for that year under section 402(g) of the Code.
9.8. Limitations Under Code Section 401(k)(3). For any Plan Year, the
difference between (a) the average of the Deferral Percentages (as defined
below) of each eligible employee who is Highly Compensated (as defined in
subsection 9.13), referred to hereinafter as the "Highly Compensated Group
Deferral Percentage" and (b) the average of the Deferral Percentages of each
eligible employee who is not Highly Compensated, referred to hereinafter as the
"Non-highly Compensated Group Deferral Percentage", must satisfy one of the
following:
(a) the Highly Compensated Group Deferral Percentage does not exceed the
Non-highly Compensated Group Deferral Percentage by more than a factor
of 1.25; or
(b) the Highly Compensated Group Deferral Percentage does not exceed the
Non-highly Compensated Group Deferral Percentage by more than both 2
percentage points and a factor of 2.
"Deferral Percentage" for any eligible employee for a Plan Year shall be
determined by dividing the Pre-Tax Contributions made on his behalf for such
year by his Compensation for the year, subject to the following special rules:
(i) any employee eligible to participate in the Plan at any time during a
Plan Year pursuant to subsection 2.1 shall be counted, regardless of
whether any Pre-Tax Contributions are made on his behalf for the year;
(ii) the Deferral Percentage for any Highly Compensated Participant who is
eligible to participate in the Plan and who is also eligible to make
other elective deferrals under one or more other arrangements
(described in section 401(k) of the Code) maintained by
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<PAGE>
an Employer or a Related Company shall be determined as if all such
elective deferrals were made on his behalf under the Plan;
(iii) for purposes of determining the Deferral Percentage of a Highly
Compensated Participant who is a 5-percent owner of an Employer or a
Related Company or one of the ten most highly-paid employees of all
the Employers and Related Companies, the Pre-Tax Contributions and
Compensation of such Participant shall include the Pre-Tax
Contributions and Compensation for the Plan Year of his family members
(as defined in section 414(q)(6) of the Code), and any such family
members shall be disregarded as separate employees in determining the
Highly Compensated and Non-highly Compensated Group Deferral
Percentages;
(iv) in the event that this Plan satisfies the requirements of sections
401(k), 401(a)(4), or 410(b) of the Code only if aggregated with one
or more other plans, or if one or more other plans satisfy the
requirements of such sections of the Code only if aggregated with this
Plan, then this subsection 9.8 shall be applied as if all such plans
were a single plan; provided, however, that such plans may be
aggregated in order to satisfy section 401(k) of the Code only if they
have the same plan year; and
(v) in the case of any Participant who is not Highly Compensated, Pre-Tax
Contributions (and elective deferrals under any other plan of an
Employer or a Related Company) that exceed the applicable limit under
Code section 402(g) shall not be counted in calculating such
Participant's Deferral Percentage.
Application of the provisions of this subsection 9.8 shall be made in accordance
with the requirements of section 401(k)(3) of the Code and the regulations
thereunder.
9.9. Disposition of Excess Pre-Tax Contributions. In the event that the
Highly Compensated Group Deferral Percentage for any Plan Year does not
initially satisfy one of the tests set forth in subsection 9.8, then the amount
of excess (hereinafter referred to as Excess Contributions and determined by
reducing the Pre-Tax Contributions on behalf of Highly Compensated Participants
in order of the Participants with the highest Deferral Percentages), plus any
income and minus any loss allocable thereto, shall be distributed to
Participants to whose accounts Excess Contributions were allocated. The income
or loss allocable to Excess Contributions shall be determined by the Committee
in accordance with applicable rules and regulations.
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<PAGE>
9.10. Limitations Under Code Section 401(m)(2). For any Plan Year, the
difference between (a) the average of the Contribution Percentages (as defined
below) of each eligible employee who is Highly Compensated (as defined in
subsection 9.13), referred to hereinafter as the "Highly Compensated Group
Contribution Percentage" and (b) the average of the Contribution Percentages of
each eligible employee who is not Highly Compensated, referred to hereinafter as
the "Non-highly Compensated Group Contribution Percentage", must satisfy one of
the following:
(a) the Highly Compensated Group Contribution Percentage does not exceed
the Non-highly Compensated Group Contribution Percentage by more than
a factor of 1.25; or
(b) the Highly Compensated Group Contribution Percentage does not exceed
the Non-highly Compensated Group Contribution Percentage by more than
both 2 percentage points and a factor of 2.
"Contribution Percentage" for any eligible employee for a Plan Year shall be
determined by dividing the Employer Matching Contributions (described in
subsections 5.2 and 9.5) made by or for him for such year by his Compensation
for the year, subject to the following special rules:
(i) any employee eligible to participate in the Plan at any time during a
Plan Year pursuant to subsection 2.1 shall be counted, regardless of
whether any Employer Matching Contributions are made by or for him for
the year;
(ii) the Contribution Percentage for any Highly Compensated Participant who
is eligible to participate in the Plan and who is also eligible to
participate in one or more other qualified plans maintained by an
Employer or a Related Company under which matching contributions
(within the meaning of section 401(m) of the Code) can be made by or
for him shall be determined as if all such contributions were made by
or for him under the Plan;
(iii) for purposes of determining the Contribution Percentage of a Highly
Compensated Participant who is a 5-percent owner of an Employer or a
Related Company or one of the ten most highly-paid employees of all
the Employers and Related Companies, Employer Matching Contributions
and Compensation of such Participant shall include the
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Employer Matching Contributions and Compensation for the Plan Year of
his family members (as defined in section 414(q)(6) of the Code), and
any such family members shall be disregarded as separate employees in
determining the Highly Compensated and Non-Highly Compensated Group
Contribution Percentages; and
(iv) in the event that this Plan satisfies the requirements of sections
401(m), 401(a)(4), or 410(b) of the Code only if aggregated with one
or more other plans, or if one or more other plans satisfy the
requirements of such sections of the Code only if aggregated with this
Plan, then this subsection 9.10 shall be applied as if all such plans
were a single plan; provided, however, that for Plan Years beginning
after December 31, 1989, such plans may be aggregated in order to
satisfy section 401(m) of the Code only if they have the same plan
year.
Application of the provisions of this subsection 9.10 shall be made in
accordance with the requirements of section 401(m) of the Code and the
regulations thereunder.
9.11. Disposition of Excess Aqqregate Contributions. In the event that
the Highly Compensated Group Contribution Percentage for any Plan Year does not
initially satisfy one of the tests set forth in subsection 9.10, the Committee,
notwithstanding any other provision of the Plan except subsection 9.12, shall
distribute Employer Matching Contributions (with income allocable thereto,
determined in accordance with Treas. Reg. (S) 1.401(m)-l(e)(3)(ii) utilizing the
safe harbor method for the period between the end of the Plan Year and the date
of distribution) to Highly Compensated Participants by or for whom such
contributions were made, starting with the Participant with the highest
Contribution Percentage and continuing with the Participant with the next
highest Contribution Percentage (and so forth), under the leveling method of
Treas. Reg. (S) 1.401(m)-l(e)(2). The Committee shall make such distribution no
later than the close of the Plan Year following the Plan Year in which such
contributions were contributed.
9.12. Multiple Use of Alternative Limitation. Notwithstanding the
foregoing provisions of this Section 9, if both the limitation in clause 9.8 and
the limitation in clause 9.10 are exceeded for a Plan Year, the sum of the
Highly Compensated Group Deferral Percentage and the Highly Compensated Group
Contribution Percentage may not exceed:
(a) 125% of the greater of the Non-highly Compensated Group Deferral
Percentage or the Non-highly Compensated Group Contribution
Percentage, plus
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(b) the sum of 2 and the lesser of the Non-highly Compensated Group
Deferral Percentage or the Non-highly Compensated Group Contribution
Percentage, up to a maximum of 200% of the lesser of such percentages.
If the foregoing combined limitation is exceeded, the leveling method of
correction prescribed in subsection 9.11 shall be continued until the combined
limitation set forth in this subsection 9.12 is satisfied.
9.13. Highly Compensated Employee. An employee shall be "Highly
Compensated" for any Plan Year if during the coincident calendar year he:
(a) was at any time a 5 percent owner of an Employer or a Related Company;
(b) received Compensation (as defined in subsection 10.1) in excess of
$50,000 (indexed for cost-of-living adjustments under section 415(d)
of the Code); or
(c) was at any time an officer and received Compensation greater than 50
percent of the amount in effect under section 415(b)(1)(A) of the Code
for such year, provided that the officers taken into account under
this paragraph (c) shall be limited to 50, or if less, the greater of
3 or 10% of the employees of all the Employers and Related Companies;
provided, however, that an employee in category (b) or (c) above for the current
Plan Year who does not fall within at least one such category for the preceding
Plan Year shall not be considered Highly Compensated for the current Plan Year
unless he is also among the 100 most highly-paid employees of all the Employers
and Related Companies for such current year. For purposes of this subsection
9.13, a family member of one of the 10 most highly-compensated employees of all
the Employers and Related Companies shall not be treated as a separate employee,
and any Compensation paid to such family member shall be deemed to be paid
instead to the related highly-compensated employee.
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SECTION 10
----------
Trust Assets
------------
10.1. Trust Exclusive Owner. All assets held by the Trust shall be
owned exclusively by the Trust and no Participant or Beneficiary shall have any
individual ownership thereof. Participants and their Beneficiaries shall share
in the assets of the Trust, its net earnings, profits and losses, only as
provided in this Agreement.
10.2. Investment of Trust Fund By Trustee. The portion of the Trust
Fund attributable to the combination of all Pre-Tax and Employer Matching
Contributions shall be invested separately from all other contributions. The
Trustee shall invest and reinvest the Trust Fund without distinction between
income or principal in one or more of the following ways as the Trustee shall
from time to time determine:
(a) The Trustee may invest the Trust Fund or any portion thereof in
obligations issued or guaranteed by the United States of America or of
any instrumentalities thereof, or in other bonds, notes, debentures,
mortgages, preferred or common stocks, options to buy or sell stocks
or other securities, mutual fund shares, or in such other property,
real or personal, as the Trustee shall determine.
(b) The Trustee may cause the Trust Fund or any portion thereof to be
invested in a common trust fund established and maintained by a
national bank for the collective investment of fiduciary funds,
providing such common trust fund is a qualified trust under the
applicable section of the Code or corresponding provisions of future
federal internal revenue laws and is exempt from income tax under the
applicable section of the Code.
In the event any assets of the Trust Fund are invested in such a
common trust fund, the Declaration of Trust creating such common trust
fund, as it may be amended from time to time, shall be incorporated
into this Agreement by reference and made a part hereof.
(c) The Trustee may deposit any portion of the Trust Fund in savings
accounts in federally insured banks or savings and loan associations
or invest in certificates of deposit issued by any such bank or
savings and loan association. The Trustee may, without liability for
interest, retain any portion of the Trust Fund in cash
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balances pending investment thereof or payment of expenses.
10.3. Fixed Income Fund.
(a) The Trustee shall establish a Fixed Income Fund Which shall be a fund,
the property in which, notwithstanding any other provision of this
Plan, shall be invested in investments designed to produce a fixed
income, including, but not limited to, certificates of deposit,
interest bearing savings accounts, money market funds, bonds,
commercial paper, mortgages or United States treasury obligations. Any
Account not invested in the Fixed Income Fund shall be invested by the
Trustee as provided in Section 10.2.
(b) Each Participant may, effective as of each Accounting Date, elect to
have the Trustee invest all of his Pre-Tax and Matching Contribution
Account and all subsequent contributions thereto either in the Fixed
Income Fund or pursuant to Section 10.2. Such election may be changed
annually by the Participant.
(c) All elections made pursuant to paragraph (b) of this Section 10.3
shall be made at such time and in such manner as shall be determined
in accordance with uniform rules established by the Committee.
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SECTION 11
----------
Vesting
-------
11.1. Vesting of Accounts. A Participant shall at all times be one
hundred percent (100%) vested in his Pre-Tax and Matching Contribution Account.
The vested portion of the balance in a Participant's Profit Sharing Account
shall be determined as hereinafter provided.
(a) Normal Retirement. Normal Retirement Date under the Plan shall mean
the first day of June following the Participant's attainment of age
65. If a Participant shall terminate employment at his Normal
Retirement Date, he shall be one hundred percent (100%) vested in the
balance in his Profit Sharing Account.
(b) Deferred Retirement. If a Participant continues in active employment
following his Normal Retirement Date, he shall continue to participate
under the Plan. Upon actual retirement, he shall be one hundred
percent (100%) vested in the balance in his Profit Sharing Account.
(c) Death or Disability. In the event of the death or disability of a
Participant, he shall be one hundred percent (100%) vested in the
balance in his Profit Sharing Account.
(d) Termination of Plan. In the event of termination of this Plan
(including termination resulting from a complete discontinuance of
contributions hereunder by the Employer), each Participant of the
terminating Employer shall be one hundred percent (100%) vested in the
balance in his Profit Sharing Account. In the event of a partial
termination of this Plan, each Participant with respect to whom such
partial termination has occurred shall be one hundred percent (100%)
vested in the balance of his Profit Sharing Account.
(e) Resignation or Discharge. If the employment of a Participant
terminates by reason of resignation or discharge which does not result
from retirement as
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provided in sub-sections (a) or (b), disability as provided in Article
XVI, death as provided in subsection (c) or termination of the Plan as
provided in subsection (d), he shall be vested in a percentage of the
balance in his Profit Sharing Account determined by the number of his
completed Years of Service with the Employer as of such termination
date in accordance with the following schedule:
<TABLE>
<CAPTION>
Years of Service Percentage
---------------- ----------
<S> <C>
Less than 2 0
2 20%
3 40%
4 60%
5 80%
6 or more 100%
</TABLE>
For purposes of vesting, all Years of Service with the Employer or Related
Company shall be counted. If a Participant who has a vested interest in his
Profit Sharing Account separates from employment, upon his subsequent
reemployment he will continue to vest in his Profit Sharing Account starting at
the point in the vesting schedule where he left employment. If a Participant who
has no vested interest in his Profit Sharing Account separates from employment,
upon his subsequent reemployment, prior Years of Service shall be counted if
such Participant returns to the employ of the Employer before incurring the
greater of five consecutive One-Year Breaks-in-Service or a consecutive period
of One-Year Breaks equal to the aggregate number of Years of Service before such
termination.
11.2. Forfeitures. Upon termination of a Participant, any portion of the
balance in a Participant's Profit Sharing Account with respect to which he is
not vested pursuant to Section 11.1 above shall be deemed a forfeiture as of the
last day of the Plan Year. Such forfeiture shall be allocated as provided in
Section 8.1. If the Participant returns to the employ of the Employer before
five (5) consecutive One-Year Breaks-in-Service, the portion of his Profit
Sharing Account that had been forfeited shall be reinstated only if such
Participant repays the full amount distributed to him from his Profit Sharing
Account before he incurs five (5) consecutive One-Year Breaks-in-Service
following the date of distribution. In such case, the forfeited amount shall be
restored in full, unadjusted by any gains or losses occurring subsequent to the
last day of the Plan Year preceding his termination. The forfeited amount shall
be restored to the Participant's Profit Sharing Account by a contribution by the
Employer.
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SECTION 12
----------
Pre-Termination Withdrawals and Loans
-------------------------------------
12.1. Pre-Termination Withdrawals. (a) A Participant may at any time
withdraw all or a portion of the amounts credited to his After-Tax Contribution
Account except to the extent provided otherwise by uniform rules prescribed by
the Committee. Such withdrawal shall be made upon thirty (30) days written
notice to the Committee and the approval of the Committee. Such approval shall
be granted or denied by the Committee on a uniform, nondiscriminatory basis
applied to all Participants.
(b) A Participant may elect in writing to withdraw all or any portion
of his Pre-Tax Contributions after attaining age 59-1/2 and all or any portion
of his Pre-Tax Contributions which are necessary to meet a Hardship (as defined
in subsection 12.2). Any such request must be submitted at least fifteen days
prior to the effective date of the withdrawal and must be in a form approved by
the Committee.
(c) At any time after a Participant attains age 59-1/2 and is fully
vested in his Accounts in accordance with subsection 11.1, he may elect in
writing to withdraw the entire balance of his Accounts. Any such request must be
submitted at least fifteen days prior to the effective date of the withdrawal
and must be in a form approved by the Committee.
(d) In the case of a Participant who is married at the time a
withdrawal is requested, the Committee shall not permit a withdrawal hereunder,
unless during the 90-day period ending on the date such withdrawal is made, such
Participant's Spouse (as described in subsection 13.3) has consented to the
withdrawal in the manner described in subsection 1.13 above.
12.2. Hardship. A distribution based on financial hardship cannot exceed
the amount required to meet the immediate financial need created by the hardship
and the money to be withdrawn must not be reasonably available from other
resources of the Participant. Hardship includes (i) extraordinary medical
expense; (ii) need for funds to purchase a home for occupancy by the
Participant; (iii) payment of tuition for the next semester or quarter of post-
secondary education of the Employee, the Employee's spouse, children and
dependents; and (iv) payments necessary to prevent the eviction of the Employee
from his principal residence or foreclosure of the mortgage on the Employee's
principal residence. In making determinations hereunder, the Committee shall act
in a uniform and nondiscriminatorv manner. Any distributions for a hardship
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withdrawal shall not include any income allocable to Pre-Tax Contributions. The
Committee may rely on a signed written statement by the Participant that the
financial need cannot be met through reimbursement or compensation by insurance
or otherwise, reasonable liquidation of assets, cessation of Pre-Tax
Contributions under this Plan, loans from this Plan, or borrowing from
commercial sources on reasonable terms.
12.3. Loans to Participants. Upon application by a Participant, the
Committee may, in accordance with the Committee's uniform, nondiscriminatory
policy, make a loan or loans to such Participant subject to the following
conditions:
(a) Except to the extent permitted by law, in no event shall the amount
loaned to any Participant exceed the lesser of (a) $50,000, reduced by
the excess, if any, of the highest outstanding balance of loans from
the Plan during the one year period ending on the day before the date
on which such loan was made over the outstanding balance of loans from
the Plan on the date on which such loan was made, or (b) the greater
of (i) one-half of the vested sum of the balance in his Accounts, or
(ii) $10,000. For the purposes hereof, the balance in the Accounts
shall be determined as of the last day of the Plan Year coinciding
with or immediately preceding such loan.
(b) Loans to Participants shall be made according to the following terms:
(i) the security for such loans shall not be more than 50% of the
borrowing Participant's Account as of the date the loan is made;
(ii) interest shall be charged on each loan at rates the Committee
shall determine are reasonable at the time each loan at made;
(iii) payments of principal and interest may be made through payroll
deductions, which deductions shall be irrevocably authorized by
the borrowing Participant in writing on a form supplied by the
Committee at the time the loan is made to him, and such payroll
deductions shall be sufficient to amortize the principal and
interest payable pursuant to the loan during the term thereof in
equal monthly (or more frequent) installments;
(iv) the borrowing Participant shall have the right to prepay all or
any portion of the interest and principal of such loan without
penalty;
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(v) the loans shall be evidenced by such forms of obligations, and
shall be made upon such additional terms as to default,
prepayment, security and otherwise as the Committee shall
determine;
(vi) the Committee may charge a borrowing Participant such reasonable
administrative fees with respect to each loan as the Employer,
in its discretion, shall decide; and
(vii) the maximum number of new loans which a Participant may initiate
in a Plan Year is two.
(c) The entire unpaid balance of any loan made under this Article and all
interest due thereon, including all arrearages thereon, shall, at the
option of the Committee, immediately become due and payable without
further notice or demand, upon the occurrence, with respect to the
borrowing Participant, of any of the following events of default:
(i) any payment of principal or accrued interest on the loan remain
due and unpaid for a period of ten days after they become due and
payable under the terms of the loan;
(ii) the termination of the employment of the borrowing Participant
with the Employer for any reason; or
(iii) the borrowing Participant attempts to make an assignment, for
the benefit of creditors, of any security for the loan.
(d) Any payments of principal or interest on the loan not paid when due
shall bear interest thereafter, to the extent permitted by law, at the
rate specified by the terms of the loan. The payment and acceptance of
any sum at any time on account of the loan after an event of default,
or any failure to act or enforce the rights granted hereunder upon an
event of default, shall not be a waiver of the right of acceleration
set forth in this subsection.
(e) If an event of default and an acceleration of the unpaid balance of
the loan and interest due thereon occur, the Committee shall have the
right to direct the Trustee to pursue any remedies available to a
creditor
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at law or under the terms of the loan, including the right to execute
on the security for the loan. Neither the Trustee nor the Committee,
however, may execute on any amounts credited to the borrowing
Participants Profit Sharing Account during the Plan Year in which the
execution of such security is to occur or during the two preceding
Plan Years.
(f) Each such loan shall be a first lien against the Account of the
borrowing Participant. If (i) any portion of a loan is outstanding and
(ii) an event occurs pursuant to which the Participant, his spouse,
his estate, or his beneficiaries will receive a distribution from the
Account of such Participant under the provisions of the Plan, then
such distribution shall, to the extent necessary to liquidate the
unpaid portion of the loan, be made to the Trustee as payment on the
loan. No distribution shall be made to a Participant or his estate,
his spouse, or his beneficiaries from his Account in an amount greater
than the excess of the portion of his Account otherwise distributable
over the aggregate of the amounts owing with respect to the loan plus
interest, if any, thereon.
(g) In the case of a Participant that is married at the time a loan is
made, the Committee shall not permit a loan hereunder unless during
the 90-day period ending on the date on which the loan is to be made,
such Participant's Spouse has consented to the loan in the manner
described in sub-section 1.13 above.
(h) The Committee shall establish such further written rules and
procedures as are required for the proper administration of
Participant Loans.
SECTION 13
----------
Distribution on Termination
or Transfer of Employment
---------------------------
13.1. Limits on Commencement and Duration of Distributions. The following
distribution rules shall be applied in accordance with sections 401(a)(9) and
401(a)(14) of the Code and applicable regulations thereunder, including the
minimum distribution incidental benefit requirement of Treas. Reg. (S) 1.401(a)
(9)-2, and shall supersede any other provision of the Plan to the contrary:
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(a) If a Participant terminates employment prior to attainment of age 65,
distribution of his accounts shall commence within 90 days after the
end of the valuation period in which termination occurs so long as the
Participant and his Spouse consent in writing to such distribution.
(b) In no event shall distribution commence later than 60 days after the
close of the Plan Year in which the Participant attains age 65 or, if
later, in which his termination of employment occurs.
(c) Notwithstanding any other provision herein to the contrary, the
Participant's Accounts shall be distributed no later than his
"Required Beginning Date", that is, April 1 of the calendar year
following the calendar year in which he attains age 70-1/2, unless the
Participant attained age 70-1/2 prior to January 1, 1988, in which
case his Required Beginning Date will be delayed until his termination
of employment.
(d) Distribution payments shall be made over the life of the Participant
or over the lives of such Participant and his Beneficiary (or over a
period not extending beyond the life expectancy of such Participant or
the life expectancy of such Participating and his Beneficiary).
(e) If a Participant dies after distribution of his vested interest in the
Plan has begun, the remaining portion of such vested interest, if any,
shall be distributed to his Beneficiary at least as rapidly as under
the method of, distribution used prior to the Participant's death.
(f) If a Participant dies before distribution of his vested interest in
the Plan has begun, distribution of such vested interest to his
Beneficiary shall be completed by December 31 of the calendar year in
which the fifth anniversary of the Participant's death occurs;
provided, however, that this five-year rule shall not apply to a
natural person designated as Beneficiary by the Participant or under
the specific terms of the Plan, if
(i) such vested interest will be distributed over the life of such
designated Beneficiary (or over a period not extending beyond the
life expectancy of such Beneficiary), and
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(ii) such distribution to the Beneficiary begins not later than
December 31 of the calendar year following the calendar year in
which the Participant died or, if such Beneficiary is the
Participant's surviving spouse, not later than December 31 of the
calendar year following the calendar year in which the
Participant would have attained age 70-1/2.
(g) If the Participant's surviving spouse is his Beneficiary and such
spouse dies before the distributions to such spouse begins, paragraph
(f) shall be applied as if the surviving spouse were the Participant.
(h) For purposes of paragraphs (e) and (f), distribution of a
Participant's vested interest in the Plan is considered to begin on
his Required Beginning Date; provided, however, that distribution
irrevocably begun in the form of an annuity shall be considered to
begin on the date it actually commences.
(i) For purposes of this subsection 13.1, the life expectancy of a
Participant or a Beneficiary will be determined in accordance with
Tables V and VI of Treas. Reg. (S) 1.72-9, and will not be
recalculated.
13.2. Form of Distribution on Termination of Employment.
(a) The distribution shall be made in the form of a Joint and Survivor
Annuity; provided that if the Participant shall not be married or if
the Participant and his Spouse shall file a Waiver (as defined in
subsection 13.3) the distribution may be made in such one or more of
the following forms as shall be approved by the Committee (who shall
advise the Trustee) -
(i) in one lump sum in cash, in property, or both:
(ii) by payment of his entire interest in a series of installments not
less frequently than once each calendar year;
(iii) by the purchase of a single premium nontransferable annuity
contract from a legal reserve life insurance company authorized
to do business in Illinois. If the contract provides for
continuance of
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annuity payments after a Participant's death to a beneficiary
other than the Participant's spouse, the actuarial value of
such death benefit at the time the contract is purchased shall
be less than the value of the Participant's annuity;
(iv) In lieu of the distribution under paragraphs (i) (ii) and (iii)
above, each Participant shall have the right, for a period ending
on the date of his retirement or discharged, to elect (on forms
supplied, upon request, by the Committee) to defer the payment of
his interest hereunder, and the Committee shall have the right to
elect to defer the distribution of a Participant's interest
hereunder (by notifying the Participant in writing within six (6)
months of the Participant's retirement or discharge) until the
earlier of the Participant's death or attainment of age 65, but
in no event later than the Participant's attainment of age
70-1/2. The Participant's election may be revoked, and reelected,
at any time during the period for which an election is permitted,
but shall become irrevocable on the day following the last day of
said period. If a distribution is delayed as a result of such
election or such decision by the Committee, then Accounts shall
continue to participate in the expenses, gains and losses of the
Trust Fund.
(b) Distribution of a Participant's share of the Profit Sharing
Contribution where the Participant's termination of service during the
Year of reference is by reason of retirement, death or disability and
where a lump sum distribution is made during said Year, shall be by
payment in a lump sum within a reasonable period after such
contribution is determined and allocated, and otherwise such amount
shall be distributed in accordance with paragraph (a).
(c) Notwithstanding any other provision of the Plan, any Beneficiary of a
Participant shall have the right at any time after the death of the
Participant to instruct the Trustee to distribute to him benefits to
which such Beneficiary is entitled under the Plan, either in a lump
sum or in such other form as shall be available under the Plan at such
time.
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13.3. Special Rules Governing Annuity Elections.
(a) The following definitions shall apply with respect to the Joint and
Survivor Annuity.
(i) "Election Period" shall mean, with respect to the filing of a
Waiver, the period commencing not less than ninety (90) days
prior to the Annuity Starting Date and ending on the Annuity
Starting Date; provided that if the Participant shall not be
notified of his right to file a Waiver (and to receive Waiver
Information) within the first seven (7) days of said Election
Period or if he shall properly request Waiver Information and
such is not supplied within seven (7) days of his request, the
Election Period shall not end (and shall be extended to the
extent, if any, that is necessary) prior to the ninetieth
(90th) day following the later of the date on which he receives
such notice or the date on which he receives the Waiver
Information.
(ii) "Joint and Survivor Annuity" shall mean an Annuity which shall
pay equal monthly installments to the Participant for life and
upon his death shall provide monthly payments for the life of
the Participant's Surviving Spouse in an amount equal to at
least fifty percent (50%) and not more than one hundred percent
(100%) of the monthly amount payable to the Participant under
such Annuity during the joint lives of the Participant and the
Participant's Surviving Spouse.
(iii) "Spouse" shall mean the person to whom the Participant was
married (and from whom he was not divorced by decree of court)
at the time of reference, provided that the Committee may, but
is not required to, rely on the Participant's written statement
as to the existence and identity of a Spouse.
(iv) "Surviving Spouse" shall mean a Spouse who was married to the
Participant for the twelve month period immediately preceding
the earlier of the date of the Participant's death, or the
Participant's Annuity Starting Date and who is living on the
day following the date of the Participant's death.
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(v) "Waiver" shall mean the written election by both the
Participant and his Spouse, which is witnessed by a notary
public or a Plan representative and which is filed with the
Committee during the Election Period and is not revoked at the
time of reference, not to receive his benefit in the form of a
Joint and Survivor Annuity; provided that the Participant and
his Spouse acknowledge in the election the effect of such
election; and provided, further, that each Participant who has
not been married throughout the twelve (12) month period
immediately preceding his Annuity Starting Date shall be deemed
to have filed such a written election (and not have revoked it)
within the Election Period. This Waiver need not be executed by
the Spouse if there is no Spouse or if it is established to the
Plan representative's satisfaction that the Spouse cannot be
located.
(vi) "Waiver Information" shall mean the written explanation from
the Committee to the Participant and his Spouse, prepared in
non-technical language, of the terms and conditions of the
Joint and Survivor Annuity, the financial effect of filing a
Waiver upon the Participant's benefit and the Spouse's rights
to such Accrued Benefit or the revocation of a Waiver if one
has been filed and the rights of the Participant's Spouse to
the Joint and Survivor Annuity hereunder.
(b) Notwithstanding any provision hereof to the contrary, each Participant
who shall have filed a Waiver may file a written revocation of such
Waiver with the Committee at any time prior to the close of the
Election Period, and may thereafter file a new Waiver prior to the
close of the Election Period in the same manner and to the same extent
as though no prior Waiver(s), or revocation(s) or reelection(s)
thereof, had been filed. Whenever there is reference in this Plan to
the filing of a Waiver, or a revocation or reelection thereof, it
shall be deemed to refer to the status of the Participant with respect
to such filing at the time of reference.
13.4. Small Account Balances. Notwithstanding any other provision of the
Plan to the contrary, if a Participant's vested Account balances are less than
$3,500, such balances shall be
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distributed as soon as practicable after his termination of employment in a
lump sum payment.
13.5. Reemployment. If a former Participant who is receiving installment
distributions under the Plan or for whom a lump sum or annuity distribution is
being processed (but has not yet been completed) is reemployed by an Employer or
Related Company, payment of his Plan interest will cease. The unpaid portion of
such individual's installments or Account balance shall be merged with the
Participant Contributions and Employer Contributions made subsequent to
reemployment. Such combined Account shall be subject to all provisions of the
Plan including, but not limited to, withdrawals, loans and distributions.
13.6. Distributions to Persons Under Disability. Notwithstanding the
foregoing provisions of this Section, in the event that a Participant or
Beneficiary is declared incompetent and the Committee receives evidence
satisfactory to it that a conservator or other person legally charged with the
care of his person or of his estate has been appointed, the amount of any
benefit to which such Participant or Beneficiary is then entitled from the Trust
Fund shall be paid to such conservator or other person legally charged with the
care of his person or estate.
13.7. Interests Not Transferable. The interests of Participants and their
Beneficiaries under the Plan are not subject to the claims of their creditors
and may not be voluntarily or involuntarily assigned, alienated or encumbered,
except in the case of certain qualified domestic relations orders which relate
to the provision of child support, alimony or marital rights of a spouse, child
or other dependent and which meet such other requirements as may be imposed by
section 414(p) of the Code or regulations issued thereunder.
13.8. Absence of Guaranty. None of the Trustees, the Committee or the
Employers in any way guarantee the Trust Fund from loss or depreciation. The
Employers do not guarantee any payment to any person. The liability of the
Trustee to make any payment is limited to the available assets of the Trust
Fund.
13.9. Designation of Beneficiary. Subject to the provisions of subsection
13.7, each Participant, from time to time, by signing a form furnished by the
Committee, may designate any legal or natural person or persons (who may be
designated contingently or successively) to whom his benefits are to be paid if
he dies before he receives all of his benefits ("Beneficiary Designation Form");
provided, however, that if a Participant is married on the date of his death,
any designation as Beneficiary of a person other than his spouse shall be
effective only if:
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(a) his spouse acknowledges the effect of that designation and consents to
it and to the specific person or persons or class of persons so
designated in a writing which is filed with the Committee in such form
as the Committee may require, which writing is witnessed by a notary;
or
(b) it is established to the satisfaction of the Committee that the
consent required under paragraph (a) next above cannot be obtained
because there is no spouse, because the spouse cannot be located or
because of such other circumstances as the Secretary of the Treasury
may prescribe in regulations.
A Beneficiary Designation Form will be effective only when the signed form is
filed with the Committee while the Participant is alive and will cancel all
Beneficiary designation forms signed earlier. Except as otherwise specifically
provided in this Section, if a deceased Participant failed to designate a
Beneficiary as provided above, or if the designated Beneficiary of a deceased
Participant dies before him, or before complete payment of the Participant's
benefits, benefits shall be paid to the Participant's surviving spouse or, if
there is no surviving spouse, to the legal representative or representatives of
the estate of the last to die of the Participant and his Beneficiary. If there
is any question as to the right of any Beneficiary to receive a distribution
under the Plan, the Committee, in its sole discretion, may direct the Trustee to
make payment, to the legal representative of the Participant's estate. The term
"Beneficiary" as used in the Plan means the person or persons to whom a deceased
Participant's benefits are payable under this subsection.
13.10. Missing Recipients. Each Participant and each Beneficiary must file
with the Committee from time to time in writing his post office address and each
change of post office address. Any communication, statement or notice addressed
to a Participant or Beneficiary at his last post office address filed with the
Committee, or if no address is filed with the Committee then, in the case of a
Participant, at his last post office address as shown on the Employers records,
will be binding on the Participant and his Beneficiary for all purposes of the
Plan. None of the Employers, the Committee or the Trustee will be required to
search for or locate a Participant or Beneficiary. If a Participant or
Beneficiary entitled to benefits under the Plan fails to claim such benefits and
the Committee determines that it is unable to reasonably find his whereabouts,
such benefits shall be forfeited and shall be used until exhausted to reduce the
Employer Contributions otherwise required under Section 5 of the Employer which
last employed the Participant.
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If the whereabouts of the Participant or Beneficiary is subsequently determined,
such forfeiture shall be restored by the Employer whose contributions were so
reduced and such restoration shall not be treated as an Annual Addition for
purposes of Section 9.
13.11. Transfers to Related Plans. In the event that a Participant ceases
to be covered under the Plan by reason of a transfer of employment to a Related
Company, the Participant may elect, by writing filed with the Committee, at such
time and in such manner as the Committee may require, to have his entire
interest under the Plan transferred to any other defined contribution plan
maintained by the Related Company which is qualified under Section 401(a) of the
Code to the extent permitted by such plan.
SECTION 14
----------
The Committee
-------------
14.1. Membership. The membership of the Committee referred to in subsection
1.3 shall consist of one or more employees appointed by the Company. The members
of the Committee shall be the "named fiduciaries" (as described in Section 402
of ERISA) under the Plan. In controlling and managing the operation and
administration of the Plan, the Committee shall act by the concurrence of a
majority of its then members by meeting or by writing without a meeting. The
Committee may authorize any one of its members to execute any document,
instrument or direction on its behalf. A written statement by a majority of the
Committee members or by an authorized Committee member shall be conclusive in
favor of any person (including the Trustee) acting in reliance thereon.
14.2. Rights, Powers and Duties. The Committee shall have such authority as
may be necessary to discharge its responsibilities under the Plan, including the
following powers, rights and duties:
(a) to adopt such rules of procedure and regulations as, in its opinion,
may be necessary for the proper and efficient administration of the
Plan and as are consistent with the provisions of the Plan;
(b) to enforce the Plan in accordance with its terms and with such rules
and regulations as may be adopted by the Committee;
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(c) to determine all questions arising under the Plan, including questions
relating to the eligibility, benefits and other Plan rights of
Participants and Beneficiaries and to remedy ambiguities,
inconsistencies or omissions;
(d) to direct all benefit payments under the Plan;
(e) to furnish the Employers with such information with respect to the
Plan as may be required by them for tax or other purposes;
(f) to employ agents and counsel (who also may be employed by the
Employers or the Trustee); and
(g) to delegate to employees of the Employers and the agents or counsel
employed by the Committee such powers as the Committee considers
desirable.
14.3. Application of Rules. In operating and administering the Plan, the
Committee shall apply all rules of procedure and regulations adopted by it in a
uniform and nondiscriminatory manner.
14.4. Remuneration and Expenses. No remuneration shall be paid to any
Committee member as such. However, the reasonable expenses of a Committee member
incurred in the performance of Committee functions shall be reimbursed by the
Company.
14.5. Indemnification of the Committee. The Committee and the individual
members thereof and any employees to whom the Committee has delegated
responsibility in accordance with paragraph 14.2(h) shall be indemnified by the
Employers against any and all liabilities, losses, costs and expenses (including
legal fees and expenses) of whatsoever kind and nature which may be imposed on,
incurred by or asserted against the Committee, its members or such employees by
reason of the performance of a Committee function if the Committee, such members
or employees did not act dishonestly or in willful violation of the law or
regulation under which such liability, loss, cost or expense arises.
14.6. Exercise of Committee's Duties. Notwithstanding any other
provisions of the Plan, the Committee shall discharge its duties hereunder
solely in the interests of the Participants in the Plan and other persons
entitled to benefits thereunder, and
(a) for the exclusive purpose of providing benefits to Participants and
other persons entitled to benefits thereunder; and
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(b) with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims.
14.7. Information to be Furnished to Committee. The Employers shall furnish
the Committee such data and information as may be reasonably required. The
records of the Employers as to a Participant's period of employment, termination
of employment and the reasons therefor, leave of absence, reemployment and
Compensation will be conclusive on all persons unless determined to be
incorrect. Participants and other persons entitled to benefits under the Plan
must furnish to the Committee such evidence, data or information as it considers
desirable to carry out the Plan.
14.8. Resignation or Removal of Committee Member. A Committee member may
resign at any time by giving 30 days advance written notice to the Company, the
Trustee and the other Committee members. The Board of Directors of the Company
may remove a Committee member by giving advance written notice to him, the
Trustee and the other Committee members.
14.9. Appointment of Successor Committee Members. With the approval of the
Board of Directors of the Company, the President of the Company may fill any
vacancy in the membership of the Committee and shall give prompt written notice
thereof to the other Committee members, the other Employers and the Trustee.
While there is a vacancy in the membership of the Committee, the remaining
Committee members shall have the same powers as the full Committee until the
vacancy is filled.
SECTION 15
----------
Powers, Rights and Duties of Trustee
------------------------------------
15.1. Administration of Trust Assets. Subject to the limitations herein
expressly set forth, the Trustee shall have the following powers and authority
in connection with the administration of the assets of the Trust:
(a) to sell, exchange, convey, transfer or otherwise dispose of any
property held by the Trustee by private sale or at public auction, and
no person dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the validity,
expediency or propriety of any such sale or other disposition;
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(b) to vote upon any stocks, bonds, or other securities (including stock
of the Employer); to give general or special proxies or power of
attorney with or without power of substitution; to exercise any
conversion privileges, subscription rights or other options and to
make any payments incidental thereto; to consent to or otherwise
participate in corporate reorganizations or other changes affecting
corporate securities and to delegate discretionary powers and to pay
any assessments or charges in connection therewith; and generally to
exercise any of the powers of an owner with respect to stocks, bonds,
securities or other property held in the Trust;
(c) to make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be
necessary or appropriate to carry out the powers herein granted;
(d) to register any investment held in the Trust in the Trustee's own name
or in the name of a nominee and to hold any investment in bearer form,
but the books and records of the Trustee shall at all times show that
all such investments are part of the Trust; and
(e) to do all acts whether or not expressly authorized which the Trustee
may deem necessary or proper for the protection of the property held
hereunder.
15.2. Individual Trustees. At any time that a group of individuals is
acting as Trustee, the number of such persons who shall act in such capacity
from time to time shall consist of at least three individuals and shall be
determined by the Employer. Such persons shall be appointed by the Employer and
may or may not be Participants or employees of the Employer. Any action taken by
a group of individuals acting as Trustee shall be taken at the direction of a
majority of such persons.
15.3. Employment of Investment Manager. The Trustee may employ as an
investment manager or managers to manage all or any part of the Trust Fund any
(i) investment advisor registered under the Investment Advisors Act of 1940;
(ii) bank as defined in said Act; or (iii) insurance company qualified to
perform investment management services in more than one state, which investment
manager shall have all powers of the Trustee in the management of such part of
the Fund, including the power to acquire or dispose of assets. In the event an
investment manager is so appointed, the Trustee shall not be liable for the acts
or omissions of such investment manager or be under any obligation
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to invest or otherwise manage that part of the Trust Fund which is subject to
the management of the investment manager. The Trustee shall notify the Employer
in writing of any appointment of an investment manager, and shall provide the
Employer with the investment manager's written acknowledgment that it is a
fiduciary with respect to the Plan.
15.4 Expenses. Expenses incurred by the Trustee in the administration of
the Trust Fund, including fees for legal services rendered to the Trustee, such
compensation to the Trustee as may be agreed upon in writing from time to time
between the Employer and the Trustee, and all other proper charges and expenses
of the Trustee and of their agents and counsel shall be paid by the Employer, or
at its election at any time or from time to time, may be charged against the
assets of the Trust, but until so paid shall constitute a charge upon the assets
of the Trust. All taxes of any and all kind whatsoever which may be levied or
assessed under existing or future laws upon the assets of the Trust or the
income thereof shall be paid from such assets. Notwithstanding the foregoing, no
compensation shall be paid to any Employee for services rendered under this Plan
and Trust as a Trustee.
15.5 Qualification Under Internal Revenue Laws. The Employer intends that
the Trust qualify under the applicable provisions of the Code. Until advised to
the contrary, the Trustee may assume that the Trust is so qualified and is
entitled to tax exemption under the Code.
15.6 Removal of Trustee; Appointment of Successor. The Trustee, or any
member of a group of individuals acting as Trustee, may be removed by the
Employer at any time upon thirty (30) days' notice in writing to the Trustee
being removed and to any other individuals then acting as Trustee. Any Trustee,
or any member of a group of individuals acting as Trustee, may resign at any
time upon thirty (30) days' prior written notice to the Employer. Upon such
removal or resignation of a Trustee, the Board of Directors shall either appoint
a successor Trustee, who shall have the same powers and duties as those
conferred upon the resigning or removed Trustee, or determine that a successor
shall not be appointed and the number of Trustees shall be reduced by one (1).
15.7 Trustee's Duties Limited. The duties and responsibilities of the
Trustee shall be limited to those expressly set forth in this Agreement; and
nothing contained in the Plan, either expressly or by implication, shall be
deemed to impose any additional duties or responsibilities on the Trustee.
-38-
<PAGE>
15.8 Finality of Trustee's Decision or Acts. Any decision or action of the
Trustee made or done in good faith upon any matter within the scope of authority
and discretion of the Trustee shall be final and binding upon all persons.
15.9 Trustee Indemnification. The Employer shall indemnify and hold
harmless the Trustee for and from the assertion or occurrence of any liability
to a Participant or Beneficiary for any action taken or omitted by the Trustee
pursuant to any written direction to the Trustee from the Employer's officers or
the Board of Directors. The Employer shall also indemnify and hold harmless the
Trustee, other than a corporate Trustee, for and from any liabilities asserted
or incurred in the exercise or performance of the rights, powers, obligations
and discretions hereunder, unless such liabilities shall arise out of the gross
negligence, fraud or bad faith of the Trustee. The Trustee may consult with
legal counsel selected by the Trustee, who may be counsel for the Employer, with
respect to the construction and administration of this Trust and shall not be
liable for any action taken or omitted in good faith reliance on advice of such
counsel. Such indemnification obligation of the Employer shall not be applicable
to the extent that any such liability is covered by insurance.
SECTION 16
----------
No Reversion to Employers
-------------------------
No part of the corpus or income of the Trust Fund shall revert to any
Employer or be used for, or diverted to, purposes other than for the exclusive
benefit of Participants and other persons entitled to benefits under the Plan,
except as provided below:
(a) Employer contributions under the Plan are conditioned on the initial
qualification of the Plan under section 401(a) of the Code, and, if
the Plan receives an adverse determination with respect to its initial
qualification, then the Trustees shall, upon written request of an
Employer, return to that Employer the value of the Plan assets
attributable to the contributions made by that Employer under the
Plan, within one year after the date that qualification of the Plan is
denied. The preceding sentence shall apply only if the application for
the determination is made by the time prescribed by law for filing the
Employer's return for the taxable year in which the Plan is adopted,
or such later date as may be prescribed by the Secretary of the
Treasury.
-39-
<PAGE>
(b) If a contribution or any portion thereof is made by an Employer by a
mistake of fact, the Trustee shall, upon written request of the
Employer, return the contribution or such portion, reduced by the
amount of any losses thereon, to that Employer within one year after
the date of payment to the Trustees.
(c) The contribution of each Employer under the Plan are conditioned upon
the deductibility thereof under section 404 of the Code, and, to the
extent any such deduction is disallowed, the Trustees shall, to the
extent cash is available and upon written request of that Employer,
return the amount of the contribution (to the extent disallowed),
reduced by the amount of any losses thereon, to that Employer within
one year after the date the deduction is disallowed.
(d) If all liabilities to participants and other persons entitled to
benefit under the Plan have been satisfied and there remain any assets
in the Trust Fund, any residual assets shall be returned to the
Employers.
SECTION 17
----------
Amendment and Termination
-------------------------
17.1. Amendment. While the Employers expect and intend to continue the
Plan, the Company reserves the right to amend the Plan at any time, provided,
that no amendment shall reduce a Participant's benefits to less than the amount
he would be entitled to receive if he had resigned from the employ of all of the
Employers and the Related Companies on the day of the amendment.
17.2. Limitations On Right to Amend. No amendment shall be made to this
Plan which shall:
(a) Directly or indirectly operate to give the Company any interest
whatsoever in the assets of the Trust or to deprive any Participant or
Beneficiary of his vested interest in the assets of the Trust as then
constituted, or cause any part of the income or corpus of the Trust to
be used for or diverted to purposes other than the exclusive benefit
of employees or their Beneficiaries;
(b) Increase the duties or liabilities of the Trustee without the
Trustee's prior written consent.
-40-
<PAGE>
The Company specifically reserves the right to amend this Plan retroactively.
17.3. Termination. The Plan will terminate as to all employees on any day
specified by the Company. The Plan will terminate as to any Employer on the
first to occur of the following:
(a) the date it is terminated by that Employer if 30 days, advance written
notice of the termination is given to the Trustee, the Committee and
the other Employers;
(b) the date that Employer completely and permanently discontinues its
contributions under the Plan;
(c) the date that Employer is judicially declared bankrupt or insolvent;
or
(d) the dissolution, merger, consolidation or reorganization of that
Employer, or the sale by that Employer of all or substantially all of
its assets, except that, subject to the provisions of subsection 17.4,
with the consent of the Company, in any such event arrangements may be
made whereby the Plan will be continued by any successor to that
Employer or any purchaser of all or substantially all of that
Employer's assets, in which case the successor or purchaser will be
substituted for that Employer under the Plan.
17.4. Merger and Consolidation of Plan, Transfer of Plan Assets. In the
case of any merger or consolidation with, or transfer of assets and liabilities
to, any other plan, provisions shall be made so that each affected Participant
in the Plan on the date thereof (if the Plan then terminated) would receive a
benefit immediately after the merger, consolidation or transfer which is equal
to or greater than the benefit he would have been entitled to receive
immediately prior to the merger, consolidation or transfer if the Plan had then
terminated.
17.5. Vesting and Distribution on Termination and Partial Termination. On
termination of the Plan in accordance with subsection 17.3, on partial
termination of the Plan by operation of law, or in the event of a complete
discontinuance of Employer, contributions to the Plan, each affected
Participant's benefits will be nonforfeitable. If, on termination or partial
termination of the Plan, a Participant remains in the employ of an Employer or a
Related Company, the amount of his benefits shall be retained in the Trust until
after his termination of employment with all of the Employers and Related
Companies and
-41-
<PAGE>
shall be paid to him in accordance with the provisions of Section 13. The
benefits payable to an affected Participant whose employment with all of the
Employers and Related Companies is terminated coincident with the termination or
partial termination of the Plan (and the benefits payable to an affected
Participant on partial termination of the Plan) shall be paid to him in
accordance with the provisions of Section 13. All appropriate accounting
provisions of the Plan will continue to apply until the benefits of all affected
Participants have been distributed to them.
17.6. Notice of Amendment, Termination or Partial Termination. Affected
Participants and Beneficiaries will be notified of an amendment, termination or
partial termination of the Plan as required by law.
SECTION 18
----------
Execution of Agreement
----------------------
18.1. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original, and no other
counterpart need be produced.
18.2. Acceptance by Trustee. The Trustee, by joining in the execution of
this Agreement, hereby signifies the Trustee's acceptance thereof.
18.3. Execution. To record the adoption of this Plan the Employer has
caused this Agreement to be executed by its duly
-42-
<PAGE>
qualified officers and the Trustees have executed this Agreement, as of the day
and year first above written.
FAMTEC INTERNATIONAL, INC.
By: /s/ James N. Farley
---------------------------
Its: President
---------------------------
ATTEST:
/s/ Charles A. Kelly
- ---------------------------------
Secretary
TRUSTEES:
/s/ James N. Farley
---------------------------
/s/ James V. Keefe
---------------------------
/s/ Charles A. Kelly
---------------------------
-43-
<PAGE>
UNANIMOUS CONSENT TO THE ADOPTION
OF RESOLUTIONS BY THE
BOARD OF DIRECTORS OF
FAMTEC INTERNATIONAL, INC.
June 1, 1989
The undersigned, being all of the directors of Famtec International, Inc.
("FamTec") do hereby unanimously consent and agree to the following resolutions,
which resolutions shall be of the same force and effect as if they were adopted
at a meeting, to-wit:
RESOLVED, That the Board of Directors of Famtec approves and adopts
an amendment and restatement of the SpeedFam Corporation Profit Sharing
Plan and Trust, renamed the FamTec Employees' Savings and Profit Sharing
Plan and Trust (hereinafter referred to as the "Plan"), effective June 1,
1989. All of the terms and conditions of the amendment and restatement of
the Plan are hereby incorporated in this resolution by reference.
FURTHER RESOLVED, That the President of FamTec is hereby authorized,
empowered and directed to execute the amendment and restatement of the Plan
on behalf of FamTec and to take such further action as may be necessary or
convenient to make the amendment and restatement effective.
IN WITNESS WHEREOF, the undersigned, being all of the Directors of FamTec,
have this 1st day of June, 1989, affixed
-44-
<PAGE>
their signatures hereunto in acknowledgment of their consent and agreement to
the adoption of the resolutions hereinabove set forth.
APPROVED:
/s/ James N. Farley
- -----------------------------------
James N. Farley, Director
/s/ James V. Keefe
- -----------------------------------
James V. Keefe, Director
/s/ Carl S. Pedersen
- -----------------------------------
Carl S. Pedersen, Director
/s/ Stuart L. Meyer
- -----------------------------------
Stuart L. Meyer, Director
/s/ Makoto Kouzuma
- -----------------------------------
Makoto Kouzuma, Director
/s/ Thomas J. McCook
- -----------------------------------
Thomas J. McCook, Director
-45-
<PAGE>
AMENDMENT TO THE
FAMTEC EMPLOYEES' SAVINGS AND
PROFIT SHARING PLAN AND TRUST
Pursuant to Section 17.1 of the FamTec Employees' Savings and Profit
Sharing Plan and Trust (the "Plan"), the Plan is hereby amended effective June
1, 1991, as follows:
Replace Section 2.1 of the Plan with new Section 2.1 to read as follows:
2.1 Participants. Each employee of an Employer who was employee by an
Employer immediately prior to the Effective Date shall become a Participant
as of the Effective Date, subject to the conditions and limitations of the
Plan. Each other employee of the Employer, shall become a Participant in
the Plan for purposes of making Pre-Tax Contributions and receiving
Employer Matching Contributions under Section 4 and 5, as of the next
December 1 if he is hired on or after December 1 and prior to June 1 of any
Plan Year, or as of the next June 1 if he is hired on or after June 1 but
prior to December 1 of any Plan Year.
Each other employee of the Employer shall become a Participant in the
Plan for purposes of receiving a Profit Sharing Contribution under Section
5.3 as of the June 1 immediately following the date on which he commences
employment. Subject to Section 8.1(b), such employee shall be entitled to
receive a Profit Sharing Contribution on the next May 31 after the June 1
following the date on which he commences employment.
<PAGE>
IN WITNESS WHEREOF, this Amendment has been signed by the President and
attested by the Secretary and the corporate seal has been firmly affixed on
behalf of FamTec International, Inc., and the Trustees have executed this
Amendment to indicate acceptance of the Trusts and duties hereby imposed on them
as of this 22nd day of May, 1992.
FAMTEC INTERNATIONAL, INC.
By /s/ James N. Farley
-------------------------------
Its President
ATTEST
/s/ Charles A. Kelly
- --------------------------------
Secretary
(SEAL)
TRUSTEES
By /s/ James N. Farley
-------------------------------
James N. Farley
By /s/ James V. Keefe
-------------------------------
James V. Keefe
By /s/ Charles A. Kelly
-------------------------------
Charles A. Kelly
<PAGE>
UNANIMOUS CONSENT TO THE ADOPTION
OF RESOLUTIONS BY THE
BOARD OF DIRECTORS OF
FAMTEC INTERNATIONAL, INC.
The undersigned, being all of the directors of FamTec International, Inc.
("FamTec") do hereby unanimously consent and agree to the following resolutions,
which resolutions shall be of the same force and effect as if they were adopted
at a meeting, to-wit:
RESOLVED, That the Board of Directors of FamTec approves and adopts an
amendment to Section 2.1 of the FamTec Employees' Savings and Profit
Sharing Plan and Trust (the "Plan"), effective June 1, 1991, to change the
dates upon which employees shall become eligible to become a Participant in
the Plan. The terms and conditions of the amendment are hereby incorporated
in this resolution by reference.
FURTHER RESOLVED, That the President of FamTec is hereby authorized,
empowered and directed to execute the amendment on behalf of FamTec and to
take such further action as may be necessary or convenient to make the
amendment effective.
<PAGE>
IN WITNESS WHEREOF, the undersigned, being all of the Directors of FamTec,
have this 23rd day of May, 1992, affixed their signatures hereunto in
acknowledgment of their consent and agreement to the adoption of the resolutions
hereinabove set forth.
APPROVED:
/s/ James N. Farley
- -------------------------------
James N. Farley, Director
/s/ James V. Keefe
- -------------------------------
James V. Keefe, Director
/s/ Carl S. Pedersen
- -------------------------------
Carl S. Pedersen, Director
/s/ Stuart A. Meyer
- -------------------------------
Stuart A. Meyer, Director
/s/ Makoto Kouzuma
- -------------------------------
Makoto Kouzuma, Director
/s/ Thomas J. McCook
- -------------------------------
Thomas J. McCook, Director
/s/ Robert Miller
- -------------------------------
Robert Miller, Director
<PAGE>
SECOND AMENDMENT
TO THE
FAMTEC EMPLOYEES' SAVINGS
AND PROFIT SHARING PLAN AND TRUST
Pursuant to Section 17.1 of the FamTec Employees' Savings and Profit
Sharing Plan and Trust (the "Plan"), the Plan is hereby amended as follows:
1. Effective June 1, 1994, add the following language to the end of
subsection 4.5 of the Plan:
In addition to other applicable limitations set forth in the Plan,
and notwithstanding any other provision of the Plan to the contrary, for
Plan Years beginning on or after January 1, 1994, the annual compensation
of each Employee taken into account under the Plan shall not exceed the
OBRA '93 annual compensation limit. The OBRA '93 annual compensation limit
is $150,000, as adjusted by the Commissioner for increases in the cost of
living in accordance with section 401(a)(17)(B) of the Internal Revenue
Code. The cost-of-living adjustment in effect for a calendar year applies
to any period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period, and the
denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference
in this Plan to the limitation under section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current Plan
Year, the compensation for that prior determination period is subject to
the OBRA '93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination periods
beginning before the first day of the first Plan Year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit is $150,000.
<PAGE>
2. Effective January 1, 1993, replace Section 6 with the following new
Section 6:
SECTION 6
TRANSFERS FROM RELATED PLANS AND ROLLOVER CONTRIBUTIONS
Section 6.1. Transfers from Related Plans. Any individual who becomes
an employee of an Employer by reason of a transfer of employment from a
Related Company may elect, at such time and in such manner as the Committee
may provide, to have the Plan accept a transfer of his fully vested
interest under any defined contribution plan maintained by an Employer or
Related Company and qualified under section 401(a) of the Code, in
accordance with the provisions of the plan. Upon receipt by the Trustee of
such assets, the Trustee shall place such assets in a Rollover Account for
the individual and he shall be deemed to be fully vested in such assets.
Immediately following the next May 31 coinciding with or next following the
receipt of such assets by the Trustee, such assets shall be added to the
Trust Fund and allocated to the individual's Account in such manner as the
Committee determines best reflects the contribution source of the amounts
transferred.
Section 6.2. Direct Rollovers. Subsections 6.2 and 6.3 apply to
distributions made on or after January 1, 1993. Notwithstanding any
provision of the Plan to the contrary that would otherwise limit a
distributee's election under subsections 6.2 and 6.3, a distributee may
elect, at the time and in the manner prescribed by the plan administrator,
to have any portion of an eligible rollover distribution paid directly to
an eligible retirement plan specified by the distributee in a direct
rollover.
Section 6.3. Definitions. (a) Eligible rollover distribution: An
eligible rollover distribution is any distribution of all or any portion of
the balance to the credit of the distributee, except that an eligible
rollover distribution does not include: any distribution that is one of a
series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the distributee or the
joint lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period of ten
years or more; any distribution to the extent such distribution is required
under Section 401(a)(9) of the Code; and the portion of any distribution
that is not includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities).
(b) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that accepts the
distributee's eligible rollover distribution. However, in the case of an
eligible rollover distribution to the Surviving Spouse, an eligible
retirement plan is an individual retirement account or individual
retirement annuity.
-2-
<PAGE>
(c) Distributee: A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's Surviving Spouse
and the Employee's or former Employee's Spouse or former Spouse who is the
alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, are distributees with regard to the interest of
the Spouse or former Spouse.
(d) Direct rollover: a direct rollover is a payment by the Plan to the
eligible retirement plan specified by the distributee.
3. Add the following language to the end of subsection 9.1 of the Plan:
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan
Years beginning on or after January 1, 1994, the annual compensation of
each Employee taken into account under the Plan shall not exceed the OBRA
'93 annual compensation limit. The OBRA '93 annual compensation limit is
$150,000, as adjusted by the Commissioner for increases in the cost of
living in accordance with section 401(a)(17)(B) of the Internal Revenue
Code. The cost-of-living adjustment in effect for a calendar year applies
to any period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of which
is the number of months in the determination period, and the denominator of
which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under section 401(a)(17) of the Code shall mean
the OBRA '93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current Plan
Year, the compensation for that prior determination period is subject to
the OBRA '93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination periods beginning
before the first day of the first Plan Year beginning on or after January
1, 1994, the OBRA '93 annual compensation limit is $150.000.
-3-
<PAGE>
IN WITNESS WHEREOF, this Amendment has been executed by the Company on
this 30 day of May, 1995.
FAMTEC INTERNATIONAL, INC.
By: /s/ James N. Farley
----------------------------------------
Its: Chairman and Chief Executive Officer
Attest
/s/ Charles A. Kelly
- -------------------------------
Secretary
TRUSTEES
/s/ James N. Farley
----------------------------------------
James N. Farley
/s/ Roger K. Marach
----------------------------------------
Roger K. Marach
/s/ Charles A. Kelly
----------------------------------------
Charles A. Kelly
-4-
<PAGE>
THIRD AMENDMENT
TO THE
FAMTEC EMPLOYEES' SAVINGS
AND PROFIT SHARING PLAN AND TRUST
Pursuant to Section 17.1 of the FamTec Employees' Savings and Profit
Sharing Plan and Trust (the "Plan"), the Plan is hereby amended as follows:
1. Section 1.1 of the Plan shall be amended by adding the following
sentence after the second sentence in such section and the name "SpeedFam" shall
be substituted for "FamTec" each place it appears in the Plan.
The Company's name was changed to SpeedFam International, Inc. effective
as of July 27, 1995.
2. Effective June 1, 1995, Section 9.5 of the Plan shall be amended by
replacing it with a new Section 9.5 as follows:
Section 9.5. Excess Annual Additions. If a Participant's Annual
Additions for any Plan Year would otherwise exceed the limitations imposed
by the foregoing provisions of subsection 9.2, the amount of the
contributions and forfeitures which would otherwise be credited to the
Participant's Accounts under this Plan and any Related Defined
Contribution Plan shall be reduced as follows to the extent necessary to
comply with such limitations. To the extent permitted under a Related
Defined Contribution Plan, Annual Additions under such plan shall be
reduced prior to any reduction under this Plan. Reductions under this Plan
shall be made in the following manner. First, any excess Annual Additions
(and income thereon) shall be returned to the Participant. If excess Annual
Additions still remain, amounts attributable to Profit Sharing
Contributions or Employer Matching Contributions (including forfeitures
thereof) shall be credited to a (S)415 Suspense Account maintained in the
Participant's name. Amounts credited to a Participant's (S)415 Suspense
Account shall be credited to his contribution accounts in the following
Plan Year or Plan Years, to the extent permitted by the foregoing
provisions of this Section 9, and shall be used to reduce Profit Sharing
Contributions or Employer Matching Contributions otherwise required for
such Plan Years with respect to that Participant. If any amount remains in
a Participant's (S)415 Suspense Account after the Plan Year in which he
ceases to participate in the Plan, such amount shall be used to reduce
Profit Sharing Contributions and Matching Contributions in the following
Plan Year or Plan Years for all Participant's. In no event will the amount
of returned Pre-Tax Contributions and sum of the value of all amounts
credited to all (S)415 Suspense Accounts for any Plan Year
<PAGE>
(determined as of the date such amounts are credited) exceed the amount
thereof attributable to: (1) forfeitures which arose under the Plan during
the year, (2) the amount contributed for that year as a result of a
reasonable error in estimating the Compensation of Participants, (3) the
amount of Pre-Tax Contributions contributed as a result of a reasonable
error in determining the amount of Pre-Tax Contributions or (4) as a result
of such other circumstances as the Commissioner of Internal Revenue may
permit.
IN WITNESS WHEREOF, this Amendment has been executed by the Company on
this 11th day of October, 1996.
SPEEDFAM INTERNATIONAL, INC
By: /s/ James N. Farley
----------------------------------------
Its: Chairman and Chief Executive Officer
Attest
/s/ Charles A. Kelly
- ----------------------------------
Secretary
TRUSTEES
/s/ James N. Farley
------------------------------------------
James N. Farley
/s/ Roger K. Marach
------------------------------------------
Roger K. Marach
/s/ Charles A. Kelly
------------------------------------------
Charles A. Kelly
-2-
<PAGE>
EXHIBIT 5.1
November 26, 1996
SpeedFam International, Inc.
7406 West Detroit
Chandler, Arizona 85226
Re: SpeedFam International, Inc.
Form S-8 Registration Statement
-------------------------------------------------
Gentlemen:
We have acted as counsel for SpeedFam International, Inc. (the
"Company") in connection with the registration statement on Form S-8 (the
"Registration Statement") of the Company which is being filed with the
Securities and Exchange Commission on November 27, 1996 covering up to 330,000
shares of the Company's Common Stock, without par value (the "Shares"), issuable
to eligible employees of the Company who are participants in the SpeedFam
Employees' Savings and Profit Sharing Plan and Trust (the "Plan").
As such counsel, we have examined such corporate records and other
documents and matters of law as we have deemed necessary in order to enable us
to express the opinion hereinafter set forth.
Based upon the foregoing, we are of the opinion that the Shares, when
issued and sold pursuant to, and for the consideration expressed in the Plan,
will constitute legally issued, fully paid and nonassessable shares of Common
Stock, without par value, of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Chapman and Cutler
SP/mat
<PAGE>
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
SpeedFam International, Inc.:
We consent to incorporation by reference in this registration statement on Form
S-8 of SpeedFam International, Inc. of our reports dated July 3, 1996, relating
to the consolidated balance sheets of SpeedFam International, Inc. and
subsidiaries as of May 31, 1996 and 1995, and the related consolidated
statements of earnings, stockholders' equity, and cash flows for each of the
years in the three-year period ended May 31, 1996, and related schedules, and
the consolidated balance sheets of SpeedFam Co., Ltd. and subsidiaries as of
April 30, 1996 and 1995, and the related consolidated statements of earnings,
stockholders' equity and cash flows for each of the years in the three-year
period ended April 30, 1996, which reports appear in the 1996 annual report on
Form 10-K of SpeedFam International, Inc.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
November 25, 1996
