COUSINS PROPERTIES INCORPORATED
PROFIT SHARING PLAN
AS AMENDED AND RESTATED
EFFECTIVE AS OF
January 1, 1996
TABLE OF CONTENTS
ss. 1. DEFINITIONS .......................................................... 1
1.1. Account ........................................................... 1
1.2. Actual Deferral Percentage ........................................ 1
1.3. Adjustment ........................................................ 1
1.4. Affiliate ......................................................... 2
1.5. Average Actual Deferral Percentage ................................ 2
1.6. Beneficiary ....................................................... 2
1.7. Board ............................................................. 2
1.8. Break in Service .................................................. 2
1.9. Brokerage Account ................................................. 2
1.10. Code ............................................................. 2
1.11. Company .......................................................... 3
1.12. Company Account .................................................. 3
1.13. Company Contribution ............................................. 3
1.14. Compensation...................................................... 3
1.15. Contributory Account ............................................. 3
1.16. Distributable Account ............................................ 4
1.17. Elective Deferrals ............................................... 4
1.18. Employee ......................................................... 4
1.19. ERISA ............................................................ 4
1.20. Employment Commencement Date ..................................... 4
1.21. Employment Termination Date ...................................... 4
1.22. Excess Contributions ............................................. 5
1.23. Excess Deferrals ................................................. 5
1.24. Forfeiture ....................................................... 5
1.25. 401(k) Account.................................................... 5
1.26. 401(k) Contributions.............................................. 5
1.27. Fund ............................................................. 5
1.28. Highly Compensated Employee ...................................... 5
1.29. Leave of Absence ................................................. 7
1.30. Maternity or Paternity ........................................... 8
1.31. Nonhighly Compensated Employee ................................... 8
1.32. OBRA'93 Annual Compensation Limit ................................ 8
1.33. Participant ...................................................... 8
1.34. Plan ............................................................. 8
1.35. Plan Sponsor ..................................................... 8
1.36. Plan Year ........................................................ 8
1.37. Trust Agreement................................................... 8
1.38. Trustee .......................................................... 9
1.39. Valuation Date ................................................... 9
1.40. W-2 Compensation ................................................. 9
ss. 2. PARTICIPATION ........................................................ 9
2.1. Participation Requirements........................................ 9
2.2. Reemployment ..................................................... 9
2.3. Not a Contract of Employment ..................................... 9
ss. 3. CONTRIBUTIONS ........................................................ 9
3.1. Company Contribution .............................................. 9
3.2. 401(k) Contributions ............................................. 10
3.3. Contribution Limitations ......................................... 10
3.4. No After-Tax or Rollover Contributions ........................... 11
ss. 4. ALLOCATIONS TO ACCOUNTS ............................................. 11
4.1. Administrative Action ............................................ 11
4.2. Allocation of Investment Gains or Losses ......................... 11
4.3. Allocation of 401(k) Contributions ............................... 11
4.4. Annual Allocation of Forfeitures and Company
Contribution ..................................................... 11
4.5. Statutory Allocation Restrictions ................................ 12
4.6. Allocation Report ................................................ 17
4.7. Allocation Corrections ........................................... 17
ss. 5. PLAN BENEFITS ....................................................... 17
5.1. Retirement Benefit ............................................... 17
5.2. Disability Benefit ............................................... 17
5.3. Death Benefit .................................................... 18
5.4. Vested Benefit ................................................... 19
5.5. Missing Claimant ................................................. 22
ss. 6. BENEFIT DISTRIBUTION ................................................ 22
6.1. Lump Sum Distribution ............................................ 22
6.2. Distribution Deadlines and Consent Requirement ................... 23
6.3. Distributions Procedure .......................................... 24
6.4. Hardship Distributions ........................................... 26
ss. 7. ADMINISTRATION ...................................................... 28
7.1. Plan Sponsor Powers and Duties ................................... 28
7.2. Liquidity Requirements ........................................... 29
7.3. Records .......................................................... 29
7.4. Information from Others .......................................... 29
ss. 8. TRUST FUNDS AND TRUSTEE ............................................. 29
8.1. Trust Funds ...................................................... 29
8.2. Notification to Trustee .......................................... 32
8.3. Loans ............................................................ 33
ss. 9. AMENDMENT, TERMINATION AND INDEMNIFICATION .......................... 35
9.1. Amendment ........................................................ 35
9.2. Termination ...................................................... 35
9.3. Indemnification .................................................. 35
ss. 10. MISCELLANEOUS ...................................................... 36
10.1. Headings and References ......................................... 36
10.2. Construction .................................................... 36
10.3. Spendthrift Clause .............................................. 36
10.4. Legally Incompetent ............................................. 36
10.5. Benefits Supported Only by Funds ................................ 36
10.6. No Discrimination ............................................... 36
10.7. Claims .......................................................... 37
10.8. Nonreversion .................................................... 37
10.9. Merger or Consolidation ......................................... 37
10.10. Agent for Service of Process ................................... 37
10.11. Qualified Domestic Relations Order ............................. 38
COUSINS PROPERTIES INCORPORATED
PROFIT SHARING PLAN
-------------------
The Cousins Properties Incorporated Profit Sharing Plan, which was (1) first
adopted effective as of January 1, 1966, (2) last amended and restated in its
entirety effective as of January 1, 1991, and (3) thereafter amended by
amendments adopted on December 22, 1992, November 4, 1994 and September 21,
1995, is hereby amended and restated in its entirety effective as of January 1,
1996 to add a cash or deferred arrangement described in Code ss. 401(k). Unless
otherwise expressly set forth in this Plan, the terms of this Plan shall apply
only to Employees whose employment as such terminates on or after January 1,
1996. The rights and benefits, if any, of a former Employee whose employment
terminated before such date, and who is not reemployed after such date, shall be
determined solely in accordance with the terms of this Plan as in effect on the
date his or her employment as such terminated. This Plan has been a profit
sharing plan, and this amended and restated Plan shall continue to be a profit
sharing plan, up to 100% of the assets of which may be invested in common stock
issued by the Plan Sponsor.
ss. 1. DEFINITIONS
------------------
The following terms shall have the meanings set forth opposite such terms for
purposes of this Plan.
1.1. Account - means such amount of money, if any, as is evidenced by the last
balance posted to the individual bookkeeping account of each Participant and
each Beneficiary in accordance with this Plan. Each Account may consist of more
than one sub-Account, and the record of each such individual account shall be
maintained by the Plan Sponsor. An Account shall cease to exist when the money
evidenced thereby is exhausted through distributions or Forfeitures made in
accordance with this Plan.
1.2. Actual Deferral Percentage -- means for each Plan Year for each Participant
who is eligible to make 401(k) Contributions at any time during such Plan Year
the ratio (expressed as a percentage) of (a) the 401(k) Contributions, if any,
made on his or her behalf for such Plan Year to (b) his or her Compensation for
such Plan Year. The Actual Deferral Percentage of a Participant who is eligible
to make, but does not make, 401(k) Contributions shall be zero.
1.3. Adjustment - means for each Valuation Date the net increase or decrease in
the fair market value of the Funds attributable to investments (after deducting
expenses) for the period beginning immediately after the preceding Valuation
Date and ending on such Valuation Date as such increase or decrease is
determined by the Plan Sponsor, excluding the net increase or decrease
attributable to the assets of Brokerage Accounts.
1.4. Affiliate - means for each calendar year (a) any parent, subsidiary or
sister corporation which during such year is a member of a controlled group of
corporations (as defined in Code ss. 1563(a), disregarding Code ss.ss.
1563(a)(4) and 1563(e)(3)(C)) of which the Plan Sponsor is a member, (b) any
trade or business, whether or not incorporated, which during such year is
considered to be under common control with the Plan Sponsor under Code ss.
414(c), (c) any member of an affiliated service group (under Code ss. 414(m))
which includes the Plan Sponsor, and (d) any entity required to be aggregated
with the Plan Sponsor under Code ss. 414(o).
1.5. Average Actual Deferral Percentage - means for each Plan Year the average
(expressed as a percentage) of the Actual Deferral Percentages computed
separately (a) for the group of Participants who are Highly Compensated
Employees during such Plan Year and (b) for the group of Participants who are
Nonhighly Compensated Employees during such Plan Year.
1.6. Beneficiary - means the person or persons so designated as such in
accordance with ss. 5.3 by a Participant or by operation of this Plan.
1.7. Board - means the Plan Sponsor's Board of Directors.
1.8. Break in Service - means any 12 consecutive month period which begins on an
Employee's Employment Termination Date during which the Employee is neither paid
nor entitled to payment for the performance of duties as an Employee; provided,
however, if an Employee is absent from service for Maternity or Paternity
reasons, the 12 consecutive month period beginning on the first anniversary of
the first date of the absence shall neither constitute a Break in Service nor a
period of severance or a period of service.
1.9. Brokerage Account - means an account which the Plan Sponsor directs one, or
more than one, Trustee to establish pursuant to a Participant's direction at a
brokerage firm (selected by the Plan Sponsor) through which such Participant can
exercise investment discretion over his or her Account (other than his or her
401(k) Account) upon the transfer of the assets of such Account (in accordance
with ss. 8.1(b)) to such brokerage account.
1.10. Code - means the Internal Revenue Code of 1986, as amended, and, if the
Code is amended, any reference to a section of the Code in this Plan
automatically shall be deemed amended to conform to the related amendment to the
Code.
1.11. Company - means the Plan Sponsor, Cousins Real Estate Corporation, Cousins
MarketCenters, Inc. (which formerly was known as Cousins/New Market Development
Company, Inc.), and each other Affiliate which the Board designates as such for
such calendar year.
1.12. Company Account - means the sub-Account which reflects a Participant's
share of Forfeitures, Company Contributions and the related investment gains and
losses.
1.13. Company Contribution - means any payment by a Company to the Fund with
respect to a calendar year in accordance with ss. 3.1.
1.14. Compensation - means for each Employee for each calendar year the lesser
of
(a) the OBRA'93 Annual Compensation Limit or
(b) the actual compensation which is paid to such Employee by a
Company for such calendar year and which is subject to federal
income tax withholding,
(1) plus his or her 401(k) Contributions and any other
amount which is contributed on his or her behalf for such
calendar year by a Company to a plan pursuant to a salary
reduction agreement and which is not includable in his or
her gross income for federal income tax purposes under Code
ss.ss. 125 or 401(k), and
(2) minus all of the following (to the extent subject to
federal income tax withholding): (A) expense reimbursements
and other expense allowances, (B) fringe benefits (cash and
noncash), (C) reimbursements for moving expenses, (D)
deferred compensation benefits (including, without
limitation, contributions to this Plan and income
attributable to the exercise of any stock options or stock
appreciation rights or similar arrangements) and (E) welfare
benefits (including, without limitation, contributions to
group insurance plans and any other employee welfare benefit
plans which are not made pursuant to a salary reduction
agreement and compensation paid to such Employee
specifically for the purchase of life insurance and other
welfare benefits).
1.15. Contributory Account - means the fully vested sub-Account which reflects
the amounts contributed by a Participant as a Minimum Contribution (as defined
in this Plan as in effect on December 31, 1981 and as made on or before such
date) and as a Voluntary Contribution (as defined in this Plan as in effect on
December 31, 1986 and as made on or before such date), and the related
investment gains and losses.
1.16. Distributable Account - means the 401(k) Contribution Account and
Contributory Account, if any, and the vested percentage of a Company Account
which is distributable to a Participant or Beneficiary under ss. 6 as a result
of an event described in ss. 5.
1.17. Elective Deferrals - means the 401(k) Contributions made on a
Participant's behalf under this Plan and the employer contributions made on his
or her behalf pursuant to an election to defer under any qualified cash or
deferred arrangement as described in Code ss. 401(k), any simplified employee
pension cash or deferred arrangement as described in Code ss. 402(h)(1)(B), any
plan described under Code ss. 501(c)(18), any salary reduction agreement for the
purchase of an annuity contract under Code ss. 403(b) and, to the extent
required under Code ss. 402(g)(8)(A)(ii), any eligible deferred compensation
plan under Code ss. 457.
1.18. Employee - means each person who is an employee of a Company or an
Affiliate (which is not a Company) under such organization's uniform and
nondiscriminatory personnel policy and each person who is treated as such as a
result of the "leased employee" rules under Code ss. 414(n).
1.19. ERISA - means the Employee Retirement Income Security Act of 1974, as
amended and, if ERISA is amended, any reference to a section of ERISA in this
Plan automatically shall be deemed amended to conform to the related amendment
to ERISA.
1.20. Employment Commencement Date - means the first date for which a new
Employee is paid or is entitled to payment as an Employee for the performance of
duties as an Employee or, in the event such person subsequently incurs a Break
in Service, the first date for which such Employee thereafter is paid or is
entitled to payment as an Employee for the performance of duties as a result of
his or her reemployment as such; provided, further, that the Employment
Commencement Date for a person who is an employee of an organization on the date
such organization becomes an Affiliate shall be treated as the date such
organization becomes an Affiliate.
1.21. Employment Termination Date - means for each Employee the first to occur
of (a) the earlier of the date his or her employment terminates either on
account of a quit, discharge, death or retirement or (b) the date on which ends
a 12 consecutive month period of absence from active employment during which
period such Employee is neither on a Leave of Absence nor paid nor entitled to
payment for the performance of duties as an Employee; provided, further, that
the Employment Termination Date for a person who is an Employee of an Affiliate
on the date on which its status as an Affiliate terminates (other than by reason
of a merger into a Company or another Affiliate) shall be treated as the date
such organization terminates its status as an Affiliate unless such person
remains an Employee after such date.
1.22. Excess Contributions - means for each Highly Compensated Employee for each
Plan Year the excess of (a) the 401(k) Contributions actually taken into account
in determining his or her Actual Deferral Percentage for such Plan Year over (b)
the maximum amount of such contributions permitted for such Plan Year under Code
ss. 401(k)(3)(A), where such maximum shall be determined by reducing such
contributions made on behalf of such Highly Compensated Employees in order of
their Actual Deferral Percentages, beginning with the highest of such
percentages.
1.23. Excess Deferrals - means for each Participant for each taxable year the
401(k) Contributions for such taxable year that exceed $9,500 (or, after 1996,
the dollar limit under Code ss. 402(g) in effect at the beginning of such
taxable year) and that the Participant elects to be refunded from this Plan
pursuant to the procedures set forth in ss. 4.5(b).
1.24. Forfeiture - means the balance of a Participant's Company Account which is
forfeited under this Plan as a result of a termination of his or her employment
as an Employee.
1.25. 401(k) Account - means the fully vested sub-Account which reflects a
Participant's 401(k) Contributions and the related investment gains and losses.
1.26. 401(k) Contributions - means the contributions made by a Company on a
Participant's behalf in lieu of cash compensation pursuant to his or her
election under ss. 3.2.
1.27. Fund - means the trust fund which is established and maintained as part of
and in accordance with this Plan under each Trust Agreement.
1.28. Highly Compensated Employee -
(a) General. The term "Highly Compensated Employee" means for each
Plan Year each Participant who performs service for the Plan
Sponsor or an Affiliate during the determination year and who is
described in any one or more of the following groups:
(1) an Employee who is a 5% owner as defined in Code ss.
416(i)(1)(A)(iii) at any time during the determination year
or the look back year;
(2) an Employee who receives compensation in excess of
$100,000 (indexed after 1996 in accordance with Code
ss. 415(d)) during the look back year;
(3) an Employee who receives compensation in excess of
$66,000(indexed after 1996 in accordance with Code
ss. 415(d)) during the look back year and is a member of the
top-paid group for the look back year, where the top-paid
group consists of the top 20% of Employees ranked on the
basis of compensation received during the applicable year,
and for purposes of determining the number of Employees in
the top-paid group, the following Employees shall be
excluded:
(A) Employees who have not completed 6 months of
service,
(B) Employees who normally work less than 17 1/2
hours per week,
(C) Employees who normally work during less than 6
months during any year,
(D) Employees who have not attained age 21, and
(E) except to the extent provided in regulations,
Employees who are included in a unit of Employees
covered by an agreement which the Secretary of Labor
finds to be a collective bargaining agreement between
employee representatives and the Plan Sponsor or an
Affiliate, which agreement does not provide for
participation in this Plan;
(4) an Employee who is an officer, within the meaning of
Code ss. 416(i), during the look back year and who receives
compensation in the look back year greater than $60,000 (or,
after 1996, 50% of the dollar limitation in effect under
Code ss. 415(b)(1)(A) for the calendar year in which the
look back year begins), where
(A) the number of officers taken into account is
limited to 50 (or if less, the greater of 3 Employees
or 10% of Employees) excluding those Employees who
may be excluded in determining the top-paid group as
set forth in (3) above; and
(B) when no officer has compensation in excess of 50%
of the dollar limitation in effect under Code ss.
415(b)(1)(A), the highest paid officer is treated as
a Highly Compensated Employee; and
(5) an Employee who is described in ss. 1.28(a)(2), (3)
or (4), when such sections are modified to substitute the
determination year for the look-back year, and who is one of
the 100 Employees who received the most compensation from
the Plan Sponsor and the Affiliates during the determination
year.
(b) Additional Rules. For purposes of this ss. 1.28:
(1) the determination of which Employees are Highly
Compensated Employees shall at all times be subject to Code
ss. 414(q) and any related regulations, rulings, notices or
procedures;
(2) the determination year is the Plan Year for which the
determination of who is highly compensated is being made,
and the look-back year is the 12-month period immediately
preceding the determination year;
(3) "compensation" means W-2 Compensation, plus elective or
salary reduction contributions to a cafeteria plan under
Code ss. 125, a cash or deferred arrangement under Code
ss.ss. 402(e)(3) or 402(h), or a tax sheltered annuity under
Code ss. 403(b);
(4) employers aggregated under Code ss. 414(b), (c), (m)
or (o) shall be treated as a single employer;
(5) a Highly Compensated Employee who is either a 5% owner
or one of the ten most highly compensated employees is
subject to the family aggregation rules under Code ss.
414(q)(6) and, with respect to any such Highly Compensated
Employee or former Highly Compensated Employee, "family
member" means such person's spouse and lineal ascendants or
descendents and the spouses of such lineal ascendants and
descendents; and
(6) in determining whether an Employee is a Highly
Compensated Employee for any Plan Year, the Plan Sponsor
shall use the calendar year calculation election described
in the regulations under Code ss. 414(q) and may make any
other elections authorized under the applicable
regulations, rulings or revenue procedures, including the
simplified method and snapshot day determination authorized
under Revenue Procedure 93-42.
1.29. Leave of Absence - means an approved leave of absence granted in writing
to an Employee by a Company or, where appropriate, an Affiliate (which is not a
Company) in accordance with applicable federal or state law or such
organization's personnel policy for a period during which such Employee is
expected to cease actively performing duties for which such Employee is paid or
entitled to payment as an Employee under circumstances which do not involve a
quit, discharge or retirement.
1.30. Maternity or Paternity - means an Employee's absence from work by reason
of the Employee's pregnancy, the birth of a child of the Employee, the placement
of a child with the Employee in connection with the adoption of such child by
such Employee, or for purposes of caring for such child for a period beginning
immediately following such birth or placement.
1.31. Nonhighly Compensated Employee - means an individual who is neither a
Highly Compensated Employee nor a family member (as described in Code ss.
414(q)(6)) of a Highly Compensated Employee.
1.32. OBRA'93 Annual Compensation Limit - means $150,000, as adjusted after 1996
for increases in the cost of living in accordance with Code ss. 401(a)(17)(B).
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. Any reference
in this Plan to the limitation under Code ss. 401(a)(17) shall mean the OBRA'93
Annual Compensation Limit set forth in this ss. 1.32.
If Compensation for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the OBRA'93
Annual Compensation Limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994, the OBRA'93 Annual
Compensation Limit is $150,000.
1.33. Participant - means for any calendar year each salaried Employee of a
Company who satisfies the requirements described in ss. 2 and who is not treated
as an Employee solely by reason of the "leased employee" rules under Code ss.
414(n) and each former Employee from whom an Account is maintained.
1.34. Plan - means this Cousins Properties Incorporated Profit Sharing Plan as
effective as of January 1, 1996 and all amendments to such plan or, when
required by the context, this Plan as in effect before January 1, 1996.
1.35. Plan Sponsor - means Cousins Properties Incorporated and any successor to
such organization.
1.36. Plan Year - means the calendar year.
1.37. Trust Agreement - means each separate agreement that establishes a
separate trust fund which is a part of this Plan.
1.38. Trustee - means the individual or individuals appointed by the Plan
Sponsor and designated to serve as the trustee or trustees of each Fund and any
successor to such individual or individuals.
1.39. Valuation Date - means (a) for each Company Account and Contributory
Account that is not invested in a Brokerage Account, the last day of each
calendar month, (b) for each Company Account and Contributory Account that is
invested in a Brokerage Account, the last day of each Plan Year and each other
date, if any, as agreed upon between the Plan Sponsor and the Trustees for
valuing such accounts, and (c) for each 401(k) Account, the last day of each
calendar month and each other date, if any, as agreed upon between the Plan
Sponsor and the Trustees for valuing such accounts.
1.40. W-2 Compensation - means for each Participant his or her wages and other
payments required to be reported as "wages, tips and other compensation" on his
or her Form W-2 under Code ss.ss. 6041, 6051 and 6052 as determined in
accordance with the regulations under Code ss. 415.
ss. 2. PARTICIPATION
--------------------
2.1. Participation Requirements. Each salaried Employee of a Company shall
satisfy the participation requirements of this Plan on his or her Employment
Commencement Date if he or she is a salaried Employee of a Company on such date
and is not treated as an employee solely by reason of the "leased employee"
rules under Code ss. 414(n).
2.2. Reemployment. A salaried Employee who terminates employment and is
reemployed as a salaried Employee of a Company shall be treated as satisfying
the participation requirements under ss. 2.1 upon his or her reemployment by
such Company.
2.3. Not a Contract of Employment. This Plan is not a contract of employment and
participation in this Plan shall not give any person the right to be retained in
the employ of a Company or any Affiliate or, upon the termination of such
employment, to have any interest or right in the Funds other than as expressly
set forth in this Plan.
ss. 3. CONTRIBUTIONS
--------------------
3.1. Company Contribution. Subject to ss. 4.5, the Plan Sponsor contemplates
that each Company for each calendar year will contribute the same overall
percentage of Compensation for Participants who are employed by that Company on
the last day of such calendar year as the overall percentage of Compensation
which the Plan Sponsor contributes for Participants who are employed by the Plan
Sponsor on the last day of such calendar year. If a Company for any calendar
year elects to contribute a different overall percentage of such Compensation
for Participants, the Company Contribution made by such Company and the
Forfeitures attributable to Participants employed by such Company thereafter
shall be allocated exclusively to Participants employed by such Company and no
other Company Contributions or Forfeitures shall be allocated to such
Participants. If a Participant has Compensation from more than one Company and
his or her total Compensation under ss. 1.14(b) exceeds the OBRA'93 Annual
Compensation Limit, each Company's contribution under this ss. 3.1 with respect
to such Participant shall be based on a fraction of the OBRA'93 Annual
Compensation Limit, where the numerator of such fraction shall be his or her
Compensation attributable under ss. 1.14(b) to such Company and the denominator
of which shall be his or her total Compensation under ss. 1.14(b).
3.2. 401(k) Contributions.
(a) General Rule. Subject to the rules set forth in this ss. 3.2
and the limitations set forth in ss. 4.5, each Participant who is
an Employee may elect that the Company employing such Participant
make 401(k) Contributions from his or her Compensation for each
payroll period for which such election is effective. All such
401(k) Contributions shall be made exclusively through payroll
withholding and shall be transferred to the Trustees as soon as
practicable after the end of the payroll period during which such
contributions are withheld.
(b) Election Procedure. The Plan Sponsor from time to time shall
establish and shall communicate in writing to Participants such
procedures for making the elections described in this ss. 3.2 as
the Plan Sponsor deems appropriate under the circumstances for the
uniform and proper administration of this Plan. A Participant's
election shall be made on an election form provided for this
purpose and no election shall be effective unless such election
form is properly completed and timely filed in accordance with such
procedures. An election shall remain in effect until revised or
terminated in accordance with such procedures. The Plan Sponsor
shall have the right at any time unilaterally to reduce the amount
or percentage of 401(k) Contributions which a Participant has
elected be made on his or her behalf if the Plan Sponsor determines
that such reduction might be necessary to satisfy the limitations
under ss. 4.5.
3.3. Contribution Limitations. The 401(k) Contributions and Company Contribution
for each calendar year in no event shall exceed the limitations described in ss.
4.5 for such calendar year. Furthermore, in the event a suspense account under
ss. 4.5(a)(3) is in existence on the first day of a calendar year, no Company
Contribution for such year shall be made if the allocation in such year of the
amount in such suspense account then would be precluded by Code ss. 415.
3.4. No After-Tax or Rollover Contributions. The only contributions that a
Participant can elect to make are 401(k) Contributions under ss. 3.2. No other
elective contributions shall be made by Participants or Employees under this
Plan either directly or through a rollover from an individual retirement account
or any other employee benefit plan.
ss. 4. ALLOCATIONS TO ACCOUNTS
------------------------------
4.1. Administrative Action. As soon as practicable after each Valuation Date,
Participants and Beneficiaries who as of such Valuation Date are entitled to one
or more of the allocations called for in this ss. 4 shall be identified and the
information which the Plan Sponsor (in its judgment) needs to make such
allocations shall be furnished to the Plan Sponsor by each Company as a
condition to the Plan Sponsor making such allocations.
4.2. Allocation of Investment Gains or Losses. The Plan Sponsor shall allocate
the Adjustment for each Valuation Date among the applicable sub- Accounts of
each Participant and Beneficiary in the proportion that each such sub-Account
bears to all such sub-Accounts in order that each such sub-Account will
proportionately benefit from any earnings or appreciation in the value of the
assets of the Funds in which such sub-Account is invested or proportionately
suffer any losses or depreciation in the value of such assets. This allocation
shall be made in accordance with such reasonable and equitable procedures as may
be established from time to time by the Plan Sponsor, which procedures may
include allocations based on units, and shall be made wholly without reference
to the suspense account referred to in ss. 4.5(a)(3) or to Brokerage Accounts.
Notwithstanding the foregoing, all investment gains and losses attributable to
the assets of a Brokerage Account shall be allocated exclusively to such account
as of each Valuation Date.
4.3. Allocation of 401(k) Contributions. Subject to the restrictions set forth
in ss. 4.5, as of each Valuation Date the Plan Sponsor shall credit any 401(k)
Contributions made for the period ending on such Valuation Date to the 401(k)
Account of each Participant on whose behalf such contributions are made.
4.4. Annual Allocation of Forfeitures and Company Contribution.
(a) Forfeitures. Subject to the restrictions set forth in ss. 4.5,
the Plan Sponsor as the first allocation step in the annual
allocations shall allocate the Forfeitures for each calendar year
as of the last day of such calendar year among the Company Accounts
of each Participant described in ss. 4.4(c) in the same proportion
that his or her Compensation for such calendar year bears to the
total Compensation of all such Participants for such year.
(b) Company Contribution. Subject to the restrictions set forth in
ss. 4.5, the Plan Sponsor as the second allocation step in the
annual allocations shall allocate the Company Contribution for each
calendar year as of the last day of such calendar year among the
Company Accounts of each Participant described in ss. 4.4(c) in the
same proportion that his or her Compensation for such calendar year
bears to the total Compensation of all such Participants for such
year.
(c) Eligible Participants. A Participant shall be eligible to
share in the allocations of the Forfeitures and Company
Contribution for a Plan Year only if he or she
(1) is a salaried Employee of a Company on the last day of
such Plan Year and
(2) was a salaried Employee of a Company on or before the
first day of such Plan Year and either (A) he or she has not
had 5 or more consecutive Breaks in Service since such date
or (B) his or her Account was vested at least in part before
he or she had 5 or more consecutive Breaks in Service.
A salaried Employee who is reemployed by a Company after he or she
has 5 or more consecutive Breaks in Service shall be treated under
ss. 4.4(c)(2) as if he or she had never been an Employee unless his
or her interest in his or her Account was vested at least in part
before such Employee had such Breaks in Service.
4.5. Statutory Allocation Restrictions.
(a) Code ss. 415 Limitations.
(1) General Rule. The sum of the 401(k) Contributions
(including any Excess Contributions distributed to the
Participant under ss. 4.5(c)), Forfeitures and the Company
Contribution allocated for any calendar year to the Account
of any Participant shall (after taking in account the
special rules under ss. 4.5(a)(2)) under no circumstances
exceed the lesser of:
(A) 25% of the Participant's W-2 Compensation for
such calendar year; or
(B) the greater of $30,000 or one-fourth of the
defined benefit dollar limit set forth in Code
ss. 415(b)(1) as in effect for such calendar year.
(2) Special Rules.
(A) A contribution made by or on behalf of an
Employee under any other defined contribution
plan (as defined in Code ss. 414(i)) which is
maintained by a Company or an Affiliate (which is
not a Company) shall be treated as made under this
Plan by or on behalf of such Employee.
(B) No contribution shall be made under this Plan on
behalf of an Employee who has accrued a benefit under
any defined benefit plan (as defined in Code
ss. 414(j)) which is maintained by a Company or an
Affiliate (which is not a Company) to the extent
that making such contribution would result in
the sum of the defined benefit plan fraction (as
defined in Code ss. 415(e)(3)) and the defined
contribution plan fraction (as defined in Code
ss. 415(e)(3)) for such Employee exceeding 1.0.
(C) The figure "1.0" shall be substituted for the
figure "1.25" in Code ss.ss. 415(e)(2)(B) and
415(e)(3)(B) for any calendar year if, as of the
December 31 which immediately precedes the beginning
of that calendar year, the sum of (i) the
Accounts of all "key employees" (as defined in
Code ss. 416(i)) under this Plan and all other defined
contribution plans (as defined in Code ss. 414(i))
maintained by a Company and any Affiliate, (which
is not a Company) and (ii) the present value of the
accumulated accrued benefits for each such "key
employee" under each defined benefit plan (as
defined in Code ss. 414(j)) maintained by a
Company and any Affiliate (which is not a Company)
exceeds in the aggregate 90% of such accounts and such
present values under such plans for all Employees
of a Company and such Affiliates (which are not a
Company) who participate in such plans, all as
determined in accordance to the rules set forth in
Code ss. 416.
(D) A contribution which is credited under a welfare
benefit fund maintained by a Company or any Affiliate
(which is not a Company) for any year to a reserve
for post-retirement medical benefits for an Employee
who is a "key employee" (as defined in Code ss.
416(i)) shall be treated as part of the Company
Contribution made on his or her behalf under this
Plan when, and to the extent, required under Code ss.
419A(d).
(3) Excess Amount. In the event that ss. 4.5(a)(1) actually
restricts the amount otherwise allocable in any allocation
step to any Account, the total amount which was unallocable
in such step ("Excess Amount") shall be disposed of as
follows. First, the Participant's 401(k) Contributions, if
any, shall be refunded to the extent that such refund would
satisfy such limitation. If an Excess Amount still exists
after such refund, the amount otherwise allocable in any
allocation step shall be deemed to be a Forfeiture and shall
be allocated and reallocated (subject to ss. 4.5(a)(1)) in
successive allocation steps by the Plan Sponsor among the
Accounts of the remaining Participants according to the
allocation procedure described ss. 4.4(a) until such Excess
Amount has been allocated in its entirety. If the
restriction set forth in ss. 4.5(a)(1) applies to all
Participants before such Excess Amount has been allocated in
its entirety, the Plan Sponsor shall transfer such
unallocable amount to a suspense account which (1) shall not
be subject to any Adjustment, (2) shall be deemed to be a
Forfeiture for purposes of the annual allocations for the
succeeding calendar year and (3) shall be added to the
Adjustment as an investment gain in the event that there is
a termination of this Plan (within the meaning of ss. 9.2)
before the date as of which such suspense account becomes
allocable in its entirety as a Forfeiture.
(b) Dollar Limitations on 401(k) Contributions.
(1) General. No Participant shall be permitted to have
Elective Deferrals made on his or her behalf under this
Plan or any other qualified plan maintained by the Plan
Sponsor or an Affiliate during any taxable year in excess of
$9,500 (or, after 1996, the dollar limit under Code ss.
402(g) in effect at the beginning of such taxable year).
If a Participant's 401(k) Contributions under this Plan
exceed such dollar limit, such Participant shall be
deemed to have made a request for a refund under
ss. 4.5(b)(2) and such excess shall be refunded in
accordance with ss. 4.5(b)(3).
Although a Participant's 401(k) Contributions under this
Plan cannot exceed such dollar limit, his or her aggregate
Elective Deferrals nevertheless can exceed such dollar limit
in a calendar year if he or she participates in at least one
other plan that provides for Elective Deferrals. In that
event, such Participant may request a refund in accordance
with ss. 4.5(b)(2) and his or her Excess Deferrals shall be
refunded in accordance with ss. 4.5(b)(3).
(2) Refund Election. A Participant may request a refund
from this Plan of any Excess Deferrals made during a taxable
year by filing a claim with the Plan Sponsor on or before
March 1 of the next taxable year. Such claim shall be in
writing, shall specify the dollar amount of the
Participant's Excess Deferrals assigned to this Plan for
such taxable year and shall include a written statement
that such amounts, if not distributed to such
Participant, will exceed the limit imposed on the
Participant by Code ss. 402(g) for the taxable year in which
the deferral occurred.
(3) Distribution of Excess Deferrals. Excess Deferrals, plus
any income and minus any loss allocable to such Excess
Deferrals for the taxable year in which such Excess
Deferrals were made (as determined in accordance with ss.
4.2 and the regulations under Code ss. 402(g)), shall be
distributed no later than April 15 of any calendar year to
Participants whose Excess Deferrals for the preceding Plan
Year were assigned to this Plan under ss. 4.5(b)(2).
(c) Limitations on 401(k) Contributions for Highly Compensated
Employees.
(1) General. The Average Actual Deferral Percentage for
Participants who are Highly Compensated Employees for any
Plan Year shall not exceed the greater of
(A) the Average Actual Deferral Percentage for
Participants who are Nonhighly Compensated Employees
for such Plan Year multiplied by 1.25, or
(B) the Average Actual Deferral Percentage for
Participants who are Nonhighly Compensated Employees
for such Plan Year multiplied by 2, provided that the
Average Actual Deferral Percentage for Participants
who are Highly Compensated Employees does not exceed
the Average Actual Deferral Percentage for
Participants who are Nonhighly Compensated
Employees by more than 2 percentage points.
(2) Special Rules.
(A) Other Plan or Arrangements. For purposes of
this ss. 4.5(c), the Actual Deferral Percentage for
any Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to
have "elective deferrals" as described in Code ss.
402(g)(3)(A) allocated to his or her account under
two or more plans or arrangements described in
Code ss. 401(k) that are maintained by the Plan
Sponsor or an Affiliate shall be determined as
if all such contributions were made under this
Plan.
(B) Code ss. 410(b) Aggregation. If this Plan
satisfies the requirements of Code ss.ss. 401(k),
401(a)(4) or 410(b) only if aggregated with one
or more other plans, or if one or more other plans
satisfy the requirements of such Code sections only
if aggregated with this Plan, then this ss. 4.5(c)
shall be applied by determining the Actual Deferral
Percentages of Participants as if all such plans were
a single plan.
(C) Family Members. For purposes of determining the
Actual Deferral Percentage of a Participant who
is a Highly Compensated Employee described in Code
ss. 414(q)(6)(A), the 401(k) Contributions and
Compensation of such Participant shall include
the 401(k) Contributions and Compensation of his or
her "family members" (as such family members are
determined under Code ss. 414(q)(6)(B)), and such
family members shall be disregarded as separate
Participants in determining the Actual Deferral
Percentage both for Participants who are Nonhighly
Compensated Employees and for Participants who are
Highly Compensated Employees. In the case of a
Highly Compensated Employee whose Actual Deferral
Percentage is determined under the family
aggregation rules described in this ss. 4.5(c)(2)(C),
the determination of the amount of Excess
Contributions under ss. 4.5(c) shall be made by
reducing the Actual Deferral Percentage in
accordance with the "leveling" method described in
ss. 1.401(k)-1(f)(2) of the regulations under Code
ss. 401(k) and allocating the Excess Contributions
among the family members in proportion to the
contributions of each family member that have been
combined.
(D) Other Requirements. The determination and
treatment of the 401(k) Contributions and Actual
Deferral Percentage and Excess Contributions of any
Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
(3) Distribution of Excess Contributions. Excess
Contributions made for any Plan Year, plus any income and
minus any loss allocable to such Excess Contributions for
such Plan Year (as determined in accordance with ss. 4.2
and the regulations under Code ss. 401(k)), shall be
distributed no later than the last day of the immediately
following Plan Year to Participants on whose behalf such
Excess Contributions were made. Such distributions shall
be made to such Participants on the basis of the respective
portions of the Excess Contributions attributable to
each such Participant.
(4) Order for Determining Excess Contributions.
Excess Contributions shall be determined after first
determining Excess Deferrals. The Excess Contributions which
would otherwise be distributed to the Participant shall be
reduced, in accordance with federal income tax regulations,
by the Excess Deferrals distributed to the Participant
under ss. 4.5(b).
4.6. Allocation Report. After the Plan Sponsor has made the allocations for any
Valuation Date described in this ss. 4, the Plan Sponsor shall deliver to each
Company a report which lists each Participant and states the balance credited to
each Account maintained for each such person. The Plan Sponsor also shall
deliver at least annually to each Company an individual statement for each
Participant which states the balance credited to his or her Account and which
may be forwarded to that person.
4.7. Allocation Corrections. If an error or omission is discovered in any
Account, the Plan Sponsor shall make such adjustment as it, acting in its
discretion, deems appropriate to correct such error or omission.
ss. 5. PLAN BENEFITS
--------------------
5.1. Retirement Benefit. The Company Account of a Participant who is an Employee
on the date he or she reaches age 65 shall become fully vested not later than
such date, and his or her Distributable Account thereafter shall be payable to
such Participant under ss. 6 upon his or her retirement.
5.2. Disability Benefit.
(a) In order to compensate for a disability and to provide a
measure of security to the disabled Participant and his or her
family, the Company Account of a Participant whose employment with
a Company or an Affiliate is terminated by reason of his or her
being disabled shall become nonforfeitable on the date his or her
employment is so terminated, and his or her Distributable Account
shall be payable to such Participant in accordance with ss. 6 upon
his or her termination of employment.
(b) A person shall be treated as disabled for purposes of this ss.
5.2 if he or she is unable to engage in any substantially gainful
activity at his or her customary level of compensation, competence
or responsibility as an Employee due to any medically determinable
physical or mental impairment or impairments which may be expected
to result in death or to be permanent.
(c) The Plan Sponsor shall have exclusive responsibility for
determining whether a person is disabled and they may consider
whether a person is disabled upon their own motion or upon the
written request of such person. The Plan Sponsor's determination
shall be based on a consideration of all the facts and
circumstances which in its absolute discretion it deems pertinent,
including reports from one or more licensed physicians or
psychiatrists appointed by the Plan Sponsor and paid by the Company
(which employs or had employed the Participant) to examine the
Participant. Any determination by the Plan Sponsor of whether a
person is disabled for purposes of this Plan shall be conclusive.
5.3. Death Benefit.
(a) In order to provide a measure of security in the event of a
Participant's death, the Company which employs (or which last
employed) a Participant immediately before his or her death
promptly shall notify the Plan Sponsor of the name of his or her
Beneficiary, and his or her Account shall be changed to the name of
his or her Beneficiary and shall be paid to such Beneficiary under
ss. 6. Furthermore, if a Participant dies while he or she is an
Employee, his or her Company Account shall become fully vested on
his or her date of death.
(b) If a Participant under applicable law has a spouse on his or
her date of death, such spouse automatically shall (unless
otherwise permissible under Code ss. 401(a)(11)) be treated as his
or her Beneficiary under this Plan absent such spouse's written and
notarized consent to the designation by the Participant of any
other person as his or her Beneficiary or to the designation of any
other person as his or her Beneficiary in accordance with the terms
of this Plan. On the other hand, if a Participant has no such
spouse or if his or her spouse so consents, such Participant's
Beneficiary shall be a person or persons so designated in writing
by a Participant on a form satisfactory to the Plan Sponsor or, in
the event no such designation is made, or if no person so
designated survives the Participant, or if after checking his or
her last known mailing address the whereabouts of the person so
designated is unknown and no death benefit claim is submitted to
the Plan Sponsor by such person within one year after the date of
his or her death, the personal representative of such Participant,
if any has qualified within twelve (12) months from the date of his
or her death or, if no personal representative has so qualified,
any heirs at law of the Participant whose whereabouts are known by
the Plan Sponsor.
5.4. Vested Benefit.
(a) General. A Participant who (as of the date of the termination
of his or her employment as an Employee) is ineligible for any
other benefit payment under this Plan shall be eligible for the
payment of his or her 401(k) Account and Contributory Account, if
any, and the vested percentage, if any, of his or her Company
Account under ss. 6. The vested percentage, if any, of his or her
Company Account shall be determined under this ss. 5.4.
(b) Vesting Schedule. The Plan Sponsor shall determine the vested
percentage of a Participant's Company Account as of the date his or
her employment as an Employee terminates in accordance with the
vesting schedule set forth in this ss. 5.4(b). Such determination
shall be made based on the Participant's Years of Service under ss.
5.4(c). The vested percentage of his or her Company Account shall
be maintained as a separate special Account until distributed by
the Plan Sponsor under ss. 6. The balance, or the nonvested
percentage, of his or her Company Account shall become a Forfeiture
as of the earlier of (1) the date as of which payment of the vested
portion of the Participant's Company Account is made or, if such
vested portion is zero, the date payment otherwise would have been
made under ss. 6 if such vested portion at the Participant's
termination of employment was $3,500 or less, (2) the last day of
the Plan Year in which the Participant terminates employment, or
(3) the date as of which the Participant has 5 consecutive Breaks
in Service.
Full Years Vested Percentage of
of Service Company Account
---------- ---------------
Less than 2 0
2 20%
3 40%
4 60%
5 80%
6 or More 100%
If a Participant's employment terminates after he or she has completed
at least two Years of Service plus some fractional Year of Service, the
vested percentage of his or her Company Account shall equal the sum of
(1) the percentage figure shown on the vesting schedule (set forth in
this ss. 5.4(b)) opposite the number of full Years of Service which
such Participant had then completed and (2) a fractional amount of the
difference between such percentage figure and the percentage figure
opposite one additional full Year of Service, where the numerator of
such fraction shall be the number of full months which such Participant
had completed in such fractional Year of Service and the denominator
shall be 12.
(c) Year of Service.
(1) General. Subject to the exceptions set forth in ss.
5.4(c)(2) and (3), a Participant's Years of Service shall
equal his or her full years of service as an Employee
completed during the period from his or her Employment
Commencement Date to his or her Employment Termination Date
which coincides with the first day of his or her first Break
in Service following that Employment Commencement Date.
If an Employee has two or more periods of employment, the
number of days in each such period in excess of the full years
of employment in each such period shall be aggregated into
additional full years of service on the assumption that 365
days of service equal one full year of service.
(2) Former New Market Employees. With respect to an
Employee of Cousins MarketCenters, Inc. (which formerly was
known as Cousins/New Market Development Company, Inc.), such
Employee's employment by New Market Development Company, Ltd.
or one of its affiliates for periods after October 31,
1987 shall be treated as employment by a Company under this
ss. 5.4(c) if such Employee became an employee of Cousins/New
Market Development Company, Inc. on November 1, 1992 and he
or she had been an employee of New Market Development Company,
Ltd. or one of its affiliates on October 31, 1992.
(3) Breaks in Service. If an Employee is reemployed after he
or she has 5 or more consecutive Breaks in Service and
the vested percentage of his or her Account before the first
such Break in Service had been zero, Year of Service credit
shall be carried forward from his or her prior period of
employment only if the number of his or her full Years of
Service completed before the first such Break in Service
exceeds the number of consecutive Breaks in Service which such
Employee had immediately before his or her reemployment.
(d) Reemployment.
(1) If a Participant is reemployed before he or she has 5
consecutive Breaks in Service and before the balance, or
nonvested percentage, of his or her Company Account is
treated as a Forfeiture under ss. 5.4(b), his or her vested
interest in that part of his or her Company Account thereafter
shall be determined in accordance with the formula set forth
in ss. 5.4(d)(3).
(2) If a Participant is reemployed before he or she has 5
consecutive Breaks in Service and while this Plan remains in
effect but after the balance, or nonvested percentage, of his
or her Company Account has been treated as a Forfeiture under
ss. 5.4(b), the Plan Sponsor shall cause the Trustees, upon
the Participant's completion of one Year of Service (after his
or her reemployment) to restore such balance to a special
Company Account for such Participant (subject to the
Adjustment which the Plan Sponsor determines would have been
allocable to that balance on the assumption that such balance
were invested in the Funds as described in ss. 8.1(a) and not
in a Brokerage Account as described in ss. 8.1(b) or other
individually directed investments as described in ss. 8.1(c)),
and his or her vested interest in such special Company Account
thereafter shall be determined in accordance with the formula
set forth in ss. 5.4(d)(3). Such restoration shall be made
from Company Contributions or from an assessment against each
Company, whichever the Plan Sponsor deems reasonable and
appropriate under the circumstances.
(3) For purposes of ss. 5.4(d)(1) and ss. 5.4(d)(2),
X = P (AB + D) - D, where
X = the dollar amount, if any, of the vested
percentage of the Participant's existing or
restored special Company Account;
P = the vested percentage of his or her existing or
restored special Company Account as determined under
the vesting schedule in ss. 5.4(b);
AB = the then balance of his or her existing or restored
special Company Account; and D = the dollar amount, if
any, distributed to the former Employee from the vested
percentage of his or her Company Account as a result of
his or her previous termination of employment.
5.5. Missing Claimant. If no Beneficiary of a deceased Participant is identified
and located pursuant to the procedure set forth in ss. 5.3(b), or if the Account
of a Participant becomes payable under ss. 5 for any reason other than his or
her death and the Plan Sponsor is unable to locate such Participant after
sending written notice to his or her last known mailing address and the last
known mailing address of any Beneficiaries such Participant may have designated,
the Plan Sponsor, in its discretion, may treat his or her Account as a
Forfeiture as of the last day of the calendar year which includes the second
anniversary of the date his or her Account first became payable, or as of the
last day of any subsequent calendar year. However, if such missing Beneficiary
or Participant in a subsequent calendar year files a written claim with the Plan
Sponsor while this Plan remains in effect for the Account forfeited and proves
to the satisfaction of the Plan Sponsor his or her identity as the person then
entitled to such benefit under the terms of this Plan, the Plan Sponsor shall
direct the payment to such Beneficiary or Participant in accordance with ss. 6
of an amount which equals dollar for dollar the amount treated as a Forfeiture.
Such payment at the Plan Sponsor's discretion may come from Company
Contributions or directly from one, or more than one, Company, or from an
assessment against each Company, whichever the Plan Sponsor deems reasonable and
appropriate under the circumstances.
ss. 6. BENEFIT DISTRIBUTION
---------------------------
6.1. Lump Sum Distribution.
(a) General. A Participant's Distributable Account shall be paid only
as a result of an event described in ss. 5 or in ss. 6.4 and, further,
shall be paid only to such Participant or, in the case of his or her
death before payment has been made, only to his or her Beneficiary in a
lump sum.
(b) Direct Rollovers.
(1) Election. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election
under this ss. 6, a distributee (as described in ss.
6.1(b)(4)) may elect, at the time and in the manner prescribed
by the Plan Sponsor, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
(2) 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 Code ss. 401(a)(9); 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).
(3) Eligible retirement plan. An eligible retirement plan is
an individual retirement account described in Code ss.
408(a), an individual retirement annuity described in Code
ss. 408(b), an annuity plan described in Code ss. 403(a), or
a qualified trust described in Code ss. 401(a), 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.
(4) 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 Code ss.
414(p), are distributees with regard to the interest of
the spouse or former spouse.
(5) Direct rollover. A direct rollover is a payment by
the Plan to the eligible retirement plan specified by the
distributee.
6.2. Distribution Deadlines and Consent Requirement.
(a) General Rule. A Participant's Distributable Account automatically
shall be paid as soon as practicable after his or her employment as an
Employee terminates unless his or her Distributable Account exceeds
$3,500. If his or her Distributable Account exceeds $3,500, his or her
Distributable Account shall be paid (1) as soon as practicable after
the Plan Sponsor determines that the Code ss. 411(a)(11) consent
requirements for a Distributable Account in excess of $3,500 have been
satisfied with respect to such account or, if earlier, (2) when
required under ss. 6.2(b). The distribution of each Distributable
Account shall be made no later than the later of 60 days after the end
of the calendar year in which a Participant reaches age 65 or retires
unless such consent requirements prohibit such a distribution or ss.
6.2(b) requires an earlier distribution.
(b) Statutory Deadlines.
(1) Participant.
(A) Initial Deadline. A Participant's Distributable
Account shall in any event be distributed to such
Participant no later than April 1 of the calendar
year which follows the calendar year in which he
or she reaches age 70 1/2.
(B) Additional Contributions. Any contributions
credited to a Participant's Distributable Account
after the date payment is required to be made to
such Participant under this ss. 6.2(b)(1) shall
be paid to such Participant in a lump sum in cash
no later than 270 days after the date as of which
such contributions are credited to such account.
(2) Beneficiary. If a distribution is made to a Participant's
Beneficiary, such distribution shall be made by December
31 of the calendar year containing the fifth anniversary
of the date of the Participant's death.
6.3. Distributions Procedure.
(a) General. The amount of a Distributable Account to be distributed
under this ss. 6 shall be determined by the Plan Sponsor on the basis
of the Valuation Date which immediately precedes the date that such
distribution is made, and no distribution shall be made to a
Participant or Beneficiary on the basis of a Valuation Date which comes
before the event which triggers such distribution under ss. 5.
(b) Special Rule for Large Distributions or Transfers.
(1) If a distribution (including a hardship distribution under
ss. 6.4, but excluding a distribution from a Brokerage Account
or other individually directed investments under ss. 8.1) to
be made under this ss. 6 as of a Valuation Date or a transfer
to a Brokerage Account or other individually directed
investments to be made under ss. 8.1 as of a Valuation Date
equals or exceeds $10,000.00, such distribution or transfer
shall (subject to ss. 6.3(b)(2) and ss. 6.3(d)) be made in a
combination of property and cash in accordance with the
following rules:
(A) Step One. Before any distributions or transfers
are made, all of the assets of all of the Funds
(excluding assets held in Brokerage Accounts or other
individually directed investments) shall be divided
for purposes of this ss. 6.3(b) into two accounts,
one of which shall consist exclusively of common
stock issued by the Plan Sponsor ("Employer Stock
Account") and the other of which shall consist of all
the other assets of all of the Funds ("Other Assets
Account").
(B) Step Two. The portion of each class of common
stock in the Employer Stock Account to be
distributed to, or transferred on behalf of,
each Participant whose distribution or transfer
equals or exceeds $10,000 and each Participant who
has elected under ss. 6.3(c) to treat his or her
distribution or transfer as subject to this
ss. 6.3(b), shall be determined by multiplying
the value as of such Valuation Date of each class
of common stock in the Employer Stock Account by a
fraction, the numerator of which shall be the total
value as of such Valuation Date of the
distribution or transfer to be made as of such
date for such Participant and the denominator of
which shall be the total value of all of the assets
of the Funds (excluding assets held in Brokerage
Accounts or other individually directed
investments) as of such date; provided, however, no
fractional share of common stock shall be paid or
transferred under this Step Two and, if a
fractional share is distributable or
transferable under this Step Two, the value of such
fractional share shall be distributed from the
Other Assets Account in cash in Step Three of this
ss. 6.3(b).
(C) Step Three. The balance of each remaining
distribution or transfer shall be made in cash.
(2) A Participant may elect (on the form provided for this
purpose) at any time prior to a Valuation Date that any
distribution or transfer which otherwise would be subject to
ss. 6.3(b)(1) as of such Valuation Date be made either (A) i
cash or (B) in a higher proportion of cash than provided in
ss. 6.3(b)(1), and the Plan Sponsor shall, on or before such
Valuation Date, direct the Trustees either (i) to make such
distribution or transfer from the cash available in the Fund;
(ii) to sell the applicable portion of the Participant's
Account's pro rata share (in whole shares) of Employer Stock
to the Plan Sponsor as of such Valuation Date; or (iii) to
sell the applicable portion of the Participant's Account's
pro rata share (in whole shares) of Employer Stock on the open
market as soon as practicable after such Valuation Date, and
deduct the cost of such sale from the Participant's Account.
(c) Special Rule for Other Distributions or Transfers. If ss. 6.3(b)
does not automatically apply to a distribution or transfer, a
Participant nevertheless may elect that the Plan Sponsor treat any such
distribution or transfer (except a distribution described in ss.
6.2(b)(1)(B)) as subject to ss. 6.3(b), and the Plan Sponsor (subject
to ss. 6.3(d)) shall do so if the Participant satisfies such reasonable
requirements as the Plan Sponsor may set for such an election.
(d) Exception to Special Rules for Certain Distributions and Transfers.
If either the Plan Sponsor or the Trustee determines that a
distribution of common stock issued by the Plan Sponsor under ss.
6.3(b) or ss. 6.3(c) might result in "Excess Shares" under Article 11
of the Plan Sponsor's Articles of Incorporation or might violate any
applicable law or any other provision in the Plan Sponsor's Articles of
Incorporation, or might cause the Plan Sponsor to lose its status as a
real estate investment trust under the Code, such distribution shall be
made in cash or in cash and other property (in lieu of such stock) in
accordance with this ss. 6.3(d). If such a determination is made, the
Trustee shall as of the first day of the calendar month which follows
such determination set aside the Participant's entire Distributable
Account in a Brokerage Account. Only the Trustee shall have the right
to make investment decisions regarding buying or selling of the Plan
Sponsor's common stock in such Brokerage Account, and the Trustee shall
begin an orderly liquidation of the Plan Sponsor's common stock
allocated to such account with a view towards completing such
liquidation on or before the third anniversary of the establishment of
such Brokerage Account. The affected Participant shall have the right
(subject to ss. 6.2(b), Statutory Deadlines) to direct the Trustee
respecting the timing of distributions from such account.
(e) Statutory Restrictions. The Plan Sponsor shall have the right to
unilaterally direct the Trustee to make part or all of any distribution
under this ss. 6.3 in the form of common stock issued by the Plan
Sponsor and held by the Funds if the Plan Sponsor determines (on the
advice of counsel) that any statute, rule or regulation makes it
impermissible or imprudent for the Trustee to sell such common stock in
order to effect a distribution or transfer.
(f) No Annuities. In no event shall a Participant's Distributabl
Account be distributed to such Participant in the form of a life
annuity.
6.4. Hardship Distributions.
(a) Hardship Distribution of Contributory Account. Upon the request of
an Employee who has a Contributory Account, the Plan Sponsor may
distribute all or a part of a Participant's Contributory Account to
such Participant during any calendar month (based on the immediately
preceding Valuation Date) to the extent that the Plan Sponsor
determines that such a distribution (1) is necessary in order to avoid
a hardship due to a death, serious illness or accident in his or her
immediate family or (2) is for use by the Participant in acquiring a
personal residence or (3) is needed to pay his or her educational
expenses of educating members of his or her immediate family.
(b) Hardship Distribution of 401(k) Account. A Participant shall have
the right to request a withdrawal of all or any portion of his or her
401(k) Account (other than the investment gains or losses allocated to
such 401(k) Account) at any time before he or she terminates employment
with the Plan Sponsor and all Affiliates, and the Plan Sponsor shall
grant such request if, and to the extent that, it determines (based on
all the relevant facts and circumstances and in accordance with the
regulations under Code ss. 401(k)) that the withdrawal is "necessary"
(as described in ss. 6.4(b)(1)) to satisfy an "immediate and heavy
financial need" (as described in ss. 6.4(b)(2)).
Any request for a withdrawal for a financial hardship shall be made in
writing and shall set forth in detail the nature of such hardship and
the amount of the withdrawal needed as a result of such hardship, and
the Participant shall supplement such request with such additional
information as the Plan Sponsor requests consistent with this ss.
6.4(b).
(1) Amount Necessary to Satisfy Need. A withdrawal shall be
deemed to be "necessary" to satisfy an immediate and heavy
financial need only if
(A) the withdrawal is not in excess of the amount of
such need, including any amounts necessary to pay any
federal, state or local income taxes or penalties
reasonably anticipated to result from such
withdrawal, and
(B) the Participant has obtained all distributions
(other than hardship distributions) and all
nontaxable loans currently available from this Plan
and all other plans maintained by the Plan Sponsor
and all Affiliates. Notwithstanding the foregoing, a
Participant will not be required to obtain a loan
from this Plan or any other plan maintained by the
Plan Sponsor or an Affiliate if the effect of the
loan would be to increase the amount of the need.
A Participant who receives a withdrawal for a financial
hardship under this ss. 6.4(b) shall not be eligible to make
any 401(k) Contributions under this Plan or any elective
contributions or employee contributions under any other
qualified plan or nonqualified plan of deferred compensation
maintained by the Plan Sponsor or an Affiliate for the twelve
month period following the date of such withdrawal. Further,
such Participant's 401(k) Contributions under this Plan and
any elective contributions under any other plan maintained by
the Plan Sponsor or an Affiliate for the calendar year
immediately following the calendar year in which such
withdrawal occurred shall not exceed the dollar limitation
under Code ss. 402(g) for such following calendar year (as
described in ss. 4.5(b)) reduced by the amount of his or her
401(k) Contributions under this Plan and any elective
contributions under any other plan maintained by the Plan
Sponsor or an Affiliate for the calendar year in which such
withdrawal occurred.
(2) Immediate and Heavy Financial Need. An "immediate
and heavy financial need" shall mean
(A) expenses for medical care described in Code ss.
213(d) previously incurred by the Participant or his
or her spouse or dependents (as defined in Code ss.
152) or amounts necessary for such individuals to
obtain such medical care,
(B) costs directly related to the purchase (excluding
mortgage payments) of a principal residence for the
Participant,
(C) the payment of tuition, related educational fees
and room and board for the next twelve months of
post-secondary education for the Participant or his
or her spouse, children or dependents,
(D) payments necessary to prevent the eviction
of the Participant from his or her principal
residence or foreclosure on the mortgage of the
Participant's principal residence, or
(E) such other events as the Internal Revenue Service
deems to constitute an "immediate and heavy
financial need" under Code ss. 401(k).
ss. 7. ADMINISTRATION
---------------------
7.1. Plan Sponsor Powers and Duties. The Plan Sponsor shall have the exclusive
responsibility and complete discretionary authority to control the operation,
management and administration of this Plan, with all powers necessary to enable
it properly to carry out its duties in that respect, including but not limited
to, the power to construe the terms of this Plan and the Trust Agreements, to
determine status, coverage and eligibility for benefits, and to resolve all
interpretative, equitable, and other questions that shall arise in the operation
and administration of this Plan. The Plan Sponsor ordinarily shall act through
its Chief Financial Officer. All actions and decisions of the Plan Sponsor on
all matters within the scope of its authority shall be final, conclusive and
binding on all persons.
7.2. Liquidity Requirements. The Plan Sponsor shall determine anticipated
liquidity requirements to meet projected benefit payments for each calendar year
and, if any adjustment from previous annual liquidity requirements is
appropriate, the Plan Sponsor shall appropriately coordinate the Trustees' Fund
investment policies with Plan needs.
7.3. Records. All records of this Plan, together with such other documents as
may be necessary for the administration of this Plan shall be maintained for at
least six years in the custody of the Plan Sponsor.
7.4. Information from Others. The Plan Sponsor, the Trustee, and the officers
and directors of each Company shall be entitled to rely upon all information and
data contained in any certificate or report or other material prepared by any
actuary, accountant, attorney or other consultant or adviser selected by the
Plan Sponsor or the Trustee to perform services on behalf of this Plan or any
Fund.
ss. 8. TRUST FUNDS AND TRUSTEE
------------------------------
8.1. Trust Funds.
(a) General. The assets of this Plan shall be held in one or more
separate Funds, as determined by the Plan Sponsor. Each of the Funds
shall be held and managed by one, or more than one, individual Trustee
appointed by the Plan Sponsor pursuant to a separate Trust Agreement
and shall be invested up to 100% in the common stock of the Plan
Sponsor, or any successor to the Plan Sponsor, except to the extent
that a Participant who is an Employee exercises his or her right under
ss. 8.1(b) to direct the investment of his or her Account (other than
his or her 401(k) Account) through a Brokerage Account or to the extent
Accounts are invested in other individually directed investments under
ss. 8.1(c). No individual shall at any time serve as the Trustee for
more than one Fund. The Plan Sponsor shall determine how assets of this
Plan are to be allocated among the Funds and shall have the power to
direct the Trustee of any Fund to transfer assets of such Fund to the
Trustee of any other Fund or Funds.
(b) Brokerage Account. A Participant who desires to manage the
investment of his or her own Account (other than his or her 401(k)
Account) may file a written election to do so with the Plan Sponsor,
and the Plan Sponsor will direct one, or more than one, Trustee to
establish a Brokerage Account on behalf of such Participant and to
transfer the assets of his or her Account (other than his or her 401(k)
Account) to such Brokerage Account as of the first day of the calendar
month which follows the date the Plan Sponsor actually receives such
Participant's election. The cash or other assets to be transferred to a
Participant's Brokerage Account shall be determined under ss. 6.3 as if
the Participant's employment had terminated on the date the Plan
Sponsor receives his or her election under this ss. 8.1(b). A
Participant upon the establishment of his or her Brokerage Account
shall be exclusively responsible for the management of the assets of
such Brokerage Account subject to the following terms and conditions:
(1) All investments shall be made through the broker
designated by the Plan Sponsor as the broker for all Brokerage
Accounts,
(2) Investments shall be made only in securities which are
ordinarily and customarily available through the brokerage
firm which maintains the Brokerage Account,
(3) No investment shall be made under any circumstances on
"margin" or in any "naked" option,
(4) Investments shall be made only if such investments will be
shown on the standard monthly account statements
prepared by the brokerage firm which maintains the Brokerage
Account, and
(5) The Participant agrees to such other terms and conditions
as the Trustee, the Plan Sponsor and the brokerage firm
(whether individually or collectively) shall establish from
time to time for Brokerage Accounts.
All transaction fees, commissions and any annual maintenance fee for a
Participant's Brokerage Account will be paid directly from such
Brokerage Account. If a Brokerage Account is maintained for a
Participant and the Participant desires that the Trustee resume the
management of his or her Account (other than his or her 401(k)
Account), a Participant can request the Plan Sponsor in writing that
the Trustee does so, and the Plan Sponsor shall direct the Trustee to
do so on the Valuation Date which first follows the date the
Participant converts all of his or her investments in his or her
Brokerage Account to cash; provided, however, a Participant shall not
have the right to make more than one such request in any 12 consecutive
month period. No part of an Adjustment shall be allocated to a
Brokerage Account, but all investment gains and losses (whether
realized or unrealized) from the investment of the assets of a
Brokerage Account shall be allocated exclusively to such account as of
each Valuation Date. Finally, if a Participant's employment terminates
as an Employee (for any reason, including death) while he or she has a
Brokerage Account, his or her Brokerage Account shall be payable under
ss. 6 subject to the following special rules:
(A) if such Participant's Account exceeds $3,500
and is fully vested, he or she shall have the right
to maintain his or her Brokerage Account or to
request a distribution of the assets of his or her
Brokerage Account when his or her employment
terminates, and
(B) if such Participant's Account is less than $3,500
and is fully vested, he or she shall have the
right to request a distribution of the assets of
his or her Brokerage Account when his or her
employment terminates but, if he or she fails to do
so, the Plan Sponsor shall convert the assets in
his or her Brokerage Account to cash, and
(C) if his or her Account is less than fully vested,
the Participant shall, within 20 days after the
end of the calendar month in which his or her
employment terminates, convert assets in his or her
Brokerage Account to cash in an amount equal to no
less than the dollar amount of the nonvested
portion of his or her Company Account (as
determined as of the end of such calendar
month). If the Participant fails to convert
sufficient assets in his or her Brokerage Account
within such time period, the Plan Sponsor shall
direct one, or more than one, Trustee to convert
sufficient assets to cash by selling assets in such
amounts and at such times as it determines in its
sole discretion as necessary or appropriate to
effectuate the Forfeiture of the Participant's
nonvested Company Account. The Plan Sponsor
thereafter shall direct one, or more than one,
Trustee to transfer cash equal to the nonvested
portion of the Participant's Company Account
from his or her Brokerage Account to one or more of
the funds described in ss. 8.1(a) as soon as
practicable after such cash is available in such
Brokerage Account, and such transferred amounts
shall remain in the Participant's Company Account
until it becomes a Forfeiture under ss. 5.4(b).
A Beneficiary of a Participant described in clause (A) above
shall also have the right to maintain and direct the
investment of a Brokerage Account.
(c) Other Individually Directed Investments. The Plan Sponsor may at
any time establish procedures to allow individuals to direct the
investment of their Accounts. The Plan Sponsor as part of establishing
any such procedures shall direct one, or more than one, Trustee to
establish the investment alternatives designated by the Plan Sponsor
and to accept directions to invest all or any specified portion of the
individual's Account among such alternatives. The Plan Sponsor shall
establish as part of such procedures such rules for effecting the
investment elections as it deems necessary or appropriate, which rules
shall be applied on a uniform and nondiscriminatory basis to all
similarly situated individuals. Except as required under ERISA, neither
a Company nor a Trustee shall be responsible for any investment
decisions made by an individual with respect to his or her Account. If
an individual fails to direct the investment of his or her Account, the
Trustee shall assume the investment responsibility for such Account.
(d) ERISA 404(c). To the extent that the Plan Sponsor chooses to do so,
the Plan Sponsor may take advantage of any relief afforded to Plan
fiduciaries under ERISA ss. 404(c) and the related regulations. If
Participants, Beneficiaries or alternate payees are permitted to direct
the investment of their Accounts, the Plan Sponsor shall designate a
fiduciary who shall implement such individuals' directions and shall
determine the manner and frequency of investment instructions, any
limitations on such instructions and such other procedures as may be
necessary or appropriate to implement such individuals' directions or
to satisfy the requirements of ERISA ss. 404(c). Any such procedures
may be amended or modified from time to time by the Plan Sponsor in its
discretion and all such procedures and any amendments or modifications
to such procedures are incorporated into and made a part of this Plan.
8.2. Notification to Trustee. Any action of the Plan Sponsor pursuant to any of
the provisions of this Plan shall be communicated to each Trustee in accordance
with such procedures as the Plan Sponsor deems appropriate under the
circumstances.
8.3. Loans.
(a) Administration and Procedures. The Plan Sponsor shall establish
objective nondiscriminatory procedures for the administration of the
loan program under this Plan and such procedures and any amendments to
such procedures are incorporated by this reference as a part of this
Plan. Such procedures shall include, but are not limited to:
(1) the class of Participants and Beneficiaries who are
eligible for a loan;
(2) the identity of the person or position authorized to
administer the loan program;
(3) the procedures for applying for a loan;
(4) the basis on which loans will be approved or denied;
(5) the limitations, if any, on the types and amounts of
loans offered;
(6) the procedures for determining a reasonable rate of
interest;
(7) the types of collateral that may be used as security
for a loan; and
(8) the events constituting default and the steps that will be
taken to preserve Plan assets in the event of such default.
(b) General Statutory Requirements. All loans made under this
Plan shall
(1) be made available to Participants and Beneficiaries
who are eligible for a loan on a reasonably equivalent basis;
(2) not be made available to Highly Compensated Employees
in an amount greater than the amount made available to other
Employees;
(3) be made in accordance with specific provisions
regarding loans set forth in this Plan and the procedures
described above;
(4) bear a reasonable rate of interest; and
(5) be adequately secured.
(c) Other Conditions. All loans made under this Plan shall be
subject to the following additional conditions.
(1) Principal and interest on the loan shall be repaid in
substantially level installments with payments not less
frequently than quarterly over a period of 5 years or less.
However, if so provided in the loan procedures described
above, the repayment period may exceed 5 years if the loan is
classified as a "home loan" (as described in Code ss. 72(p)).
(2) If the loan is secured by any portion of the Participant's
Account, the Account balance shall not be reduced as a
result of a default until a distributable event occurs under
the Plan.
(3) The Participant or Beneficiary must agree to any other
terms and conditions required under the procedures described
above.
(d) Statutory Limitation on Amounts. The principal amount of any loan
to a Participant (when added to the outstanding principal balance of
any outstanding loans made to the Participant under this Plan and all
other plans maintained by the Plan Sponsor or an Affiliate that are tax
exempt under Code ss. 401) may not exceed the lesser of:
(1) $50,000 reduced by the excess, if any, of
(A) the highest outstanding principal balance of
previous loans to the Participant from the Plan (and
all other plans described above) during the one year
period ending immediately before the date the current
loan is made, over
(B) the current outstanding principal balance of
those previous loans on the date the current loan
is made; or
(2) 50% of the vested interest in the Participant's
Account at the time the loan is made.
(e) Distributions. The vested Account balance actually payable to an
individual who has an outstanding loan shall be determined by reducing
the vested Account balance by the amount of the security interest in
the Account (if any). The Trustee may cancel the Plan's security
interest in the Account and distribute the note in full satisfaction of
that portion of the Participant's Account equal to the outstanding
balance of the loan or the amount that would have been outstanding but
for a discharge in bankruptcy or through any other legal process.
Notwithstanding anything to the contrary in this Plan or the loan
procedures described above, in the event of default, foreclosure on the
note and execution of the Plan's security interest in the Account shall
not occur until a distributable event occurs under this Plan and
interest shall continue to accrue only to the extent permissible under
applicable law.
ss. 9. AMENDMENT, TERMINATION AND INDEMNIFICATION
-------------------------------------------------
9.1. Amendment. The Plan Sponsor reserves the right at any time and from time to
time to amend this Plan in writing, provided that no amendment shall be made
which would divert any of the assets of the Funds to any purpose other than the
exclusive benefit of Participants and Beneficiaries unless such amendment is
necessary to cause this Plan to continue to be exempt from income taxes under
the Code.
9.2. Termination. The Plan Sponsor expects this Plan to be continued
indefinitely but, of necessity, reserves the right to completely or partially
terminate this Plan or to discontinue contributions at any time by action of the
Board. If this Plan is completely or partially terminated under this ss. 9.2, or
if the Plan Sponsor declares a permanent discontinuance of contributions to this
Plan, the Company Account of each affected Participant who then is an Employee
shall become fully vested on the date of such complete or partial termination or
on the date of such declaration of discontinuance, as the case may be.
In the case of such a complete termination of this Plan or such a permanent
discontinuance of contributions, the Trustees shall liquidate Fund investments
as necessary and distribute Accounts to Participants and Beneficiaries after the
receipt of a favorable determination letter from the Internal Revenue Service
respecting such termination or discontinuance.
9.3. Indemnification. Each Company (to the extent permissible under applicable
law) shall indemnify each of its officers and Employees from and against any
liability, assessment, loss, expense or other cost of any kind or description
whatsoever, including legal fees and expenses, actually incurred by such person
on account of any action or proceeding, actual or threatened, which arises as a
result of his or her acting on behalf of a Company under this Plan, provided (1)
such action or proceeding does not arise as a result of his or her own
negligence, willful misconduct or lack of good faith and (2) such protection is
not otherwise provided through insurance. Each Trustee shall (to the extent
permissible under law) be indemnified and held harmless by the Plan Sponsor
(subject to a right of contribution against each Company) for any expenses,
including legal fees, incurred in the defense of any actual or threatened legal
action which arises as a result of his or her appointment as a Trustee, provided
that he or she is not ultimately determined in such action to be liable for a
breach of his or her fiduciary (as distinguished from his or her co-fiduciary)
duty under this Plan.
ss. 10. MISCELLANEOUS
---------------------
10.1. Headings and References. The headings and subheadings in this Plan have
been inserted for convenience of reference only and are to be ignored in
construction of the provisions of this Plan. All references to sections and
subsections shall be to sections and subsections in this Plan unless otherwise
set forth in this Plan.
10.2. Construction. In the construction of this Plan, the masculine shall
include the feminine and the singular the plural in all cases where such
meanings would be appropriate. This Plan shall be construed in accordance with
the laws of the State of Georgia to the extent that such laws are not preempted
by federal law.
10.3. Spendthrift Clause. Except to the extent permitted by law or ss. 10.11, no
Account, benefit, payment or distribution under this Plan shall be subject to
the claim of any creditor of a Participant or Beneficiary, or to any legal
process by any creditor of such person and no Participant or Beneficiary shall
have any right to alienate, commute, anticipate, or assign (either at law or
equity) all or any portion of his or her Account, benefit, payment or
distribution under this Plan.
10.4. Legally Incompetent. The Plan Sponsor in its discretion shall direct the
Trustee to make payment on such direction directly to (i) an incompetent or
disabled person, whether because of minority or mental or physical disability,
(ii) to the guardian of such person or to the person having custody of such
person, or (iii) to any person designated or authorized under any state statute
to receive such payment on behalf of such incompetent or disabled person,
without further liability either on the part of the Plan Sponsor or the Trustee
for the amount of such payment to the person on whose account such payment is
made.
10.5. Benefits Supported Only by Funds. Any person having any claim for any
benefit under this Plan shall (except to the extent required under ERISA) look
solely and exclusively to the assets of the Funds for satisfaction. In no event
will a Company, or any of its officers, members of its board of directors or a
Trustee in his or her individual capacity be liable to any person whomsoever for
the payment of benefits under this Plan.
10.6. No Discrimination. The Plan Sponsor shall administer this Plan in a
uniform and consistent manner with respect to all Participants and
Beneficiaries.
10.7. Claims. Any payment to a Participant or Beneficiary or to their legal
representative, or heirs-at-law, made in accordance with the provisions of this
Plan shall to the extent of such payment be in full satisfaction of all claims
under this Plan against the Trustees and each Company, either of whom may
require such person, his or her legal representative or heirs-at-law, as a
condition precedent to such payment, to execute a receipt and release therefor
in such form as shall be determined by the Trustees or the Plan Sponsor, as the
case may be.
10.8. Nonreversion.
(a) Except as provided in ss. 10.8(b), no Company shall have any
present or prospective right, claim, or interest in the Fund or in
any Company Contribution made to the Trustee.
(b) To the extent permitted by Code and ERISA, the Company
Contributions, plus any earnings and less any losses on such
contributions, shall be returned by the Trustee to a Company in the
event that:
(1) A Company Contribution is made by such Company by a
mistake of fact, provided such return is effected within one
year after the payment of such contribution; or
(2) A deduction for a Company Contribution is disallowed
under Code ss. 404, in which event such contribution shall
be returned to the Company which made such contribution
within one year after such disallowance, all contributions
being hereby conditioned upon being deductible under Code
ss. 404.
The Trustee shall have no obligation or responsibility whatsoever
to determine whether the return of any such Company Contribution is
permissible under the Code or ERISA and shall be indemnified and
held harmless by each Company for their actions in accordance with
this ss. 10.8.
10.9. Merger or Consolidation. In the case of any merger or consolidation of
this Plan with, or transfer of assets or liabilities of this Plan to, any other
employee benefit plan, each person for whom an Account is maintained shall be
entitled to receive a benefit from such other employee benefit plan, if it is
then terminated, which is equal to or greater than the benefit such person would
have been entitled to receive immediately before the merger, consolidation or
transfer, if this Plan had been terminated.
10.10. Agent for Service of Process. The agent for service of process for
this Plan shall be the person currently listed in the records of the Secretary
of State of Georgia as the agent for service of process for the Plan Sponsor.
10.11. Qualified Domestic Relations Order. In accordance with uniform and
nondiscriminatory procedures established by the Plan Sponsor from time to time,
the Plan Sponsor upon the receipt of a domestic relations order which seeks to
require the distribution of a Participant's Account in whole or in part to an
"alternate payee" (as that term is defined in Code ss. 414(p)(8)) shall
(a) promptly notify the Participant and such "alternate payee" of
the receipt of such order and of the procedure which the Plan
Sponsor will follow to determine whether such order constitutes a
"qualified domestic relations order" within the meaning of Code ss.
414(p),
(b) determine whether such order constitutes a "qualified domestic
relations order", notify the Participant and the "alternate payee"
of the results of such determination and, if the Plan Sponsor
determines that such order does constitute a "qualified domestic
relations order",
(c) direct the Trustee to transfer such amounts, if any, as the
Plan Sponsor determines necessary or appropriate from the
Participant's Account to a special Account for such "alternate
payee", and
(d) direct the Trustee to make such distribution to such "alternate
payee" from such special Account as the Plan Sponsor deems called
for under the terms of such order in accordance with Code ss.
414(p).
An "alternate payee's" special Account shall be distributed in accordance with
ss. 6 as if the "alternate payee" was a Beneficiary as soon as practicable after
that Account has been established under this ss. 10.11, without regard to
whether the date of such distribution is prior to the earliest date that a
distribution could be made to a Participant under the terms of this Plan and
prior to a Participant's "earliest retirement age" under Code ss. 414(p). An
"alternate payee" shall have the right to designate (in the same manner as a
Participant who has no spouse) a Beneficiary for the payment of his or her
special Account in the event of the alternate payee's death before such special
Account is paid.
The determinations and the distributions made by, or at the direction of, the
Plan Sponsor under this ss. 10.11 shall be final and binding on the Participant,
the "alternate payee" and all other persons interested in such order.
IN WITNESS WHEREOF, the Plan Sponsor has caused this Plan to be executed by its
duly authorized officers and its seal to be affixed to this Plan this ______ day
of ________________, 1995.
COUSINS PROPERTIES INCORPORATED
(CORPORATE SEAL) By:_________________________________
Title:______________________________
ATTEST:
By:______________________________
Title:___________________________
ACKNOWLEDGMENT BY PARTICIPATING COMPANIES. To acknowledge its acceptance of this
amended and restated Plan, each Company has caused this Plan to be executed by
its duly authorized officers and its seal to be affixed to this Plan.
COUSINS REAL ESTATE CORPORATION
(CORPORATE SEAL) By:_________________________________
Title:______________________________
Date:_______________________________
ATTEST:
By:______________________________
Title:___________________________
COUSINS MARKETCENTERS, INC.
(CORPORATE SEAL) By:_________________________________
Title:______________________________
Date:_______________________________
ATTEST:
By:______________________________
Title:___________________________