Exhibit 10.37
4/11/94
The CORPORATEplan for Retirement Select Plan
BASIC PLAN DOCUMENT
IMPORTANT NOTE
This document is NOT an IRS approved Prototype Plan. An Adopting Employer may
not rely solely on this Plan to ensure that the Plan is "unfunded and maintained
primarily for the purpose of providing deferred compensation to a select group
of management or highly compensated employees" and exempt from parts 2 through 4
of Title I of the Employee Retirement Income Security Act of 1974 with respect
to the Employer's particular situation. Fidelity Management Trust Company, its
affiliates and employees may not provide you with legal advice in connection
with the execution of this document. This document should be reviewed by your
attorney and/or accountant prior to execution.
4/11/94
CPR SELECT
BASIC PLAN DOCUMENT
ARTICLE 1
ADOPTION AGREEMENT
ARTICLE 2
DEFINITIONS
2.01 - Definitions
ARTICLE 3
PARTICIPATION
3.01 - Date of Participation
3.02 - Resumption of Participation Following Re employment
3.03 - Cessation or Resumption of Participation Following a Change in Status
ARTICLE 4
CONTRIBUTIONS
4.01 - Deferral Contributions
4.02 - Matching Contributions
4.03 - Time of Making Employer Contributions
ARTICLE 5
PARTICIPANTS' ACCOUNTS
5.01 - Individual Accounts
ARTICLE 6
INVESTMENT OF CONTRIBUTIONS
6.01 - Manner of Investment
6.02 - Investment Decisions
ARTICLE 7
RIGHT TO BENEFITS
7.01 - Normal or Early Retirement
7.02 - Death
7.03 - Other Termination Of Employment
7.04 - Separate Account
7.05 - Forfeitures
7.06 - Adjustment for Investment Experience
7.07 - Hardship Withdrawals
ARTICLE 8
DISTRIBUTION OF BENEFITS PAYABLE AFTER TERMINATION OF SERVICE
8.01 - Distribution of Benefits to Participants and Beneficiaries
8.02 - Determination of Method of Distribution
8.03 - Notice to Trustee
8.04 - Time of Distribution
ARTICLE 9
AMENDMENT AND TERMINATION
9.01 - Amendment by Employer
9.02 - Retroactive Amendments
9.03 - Termination
9.04 - Distribution Upon Termination of the Plan
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ARTICLE 10
MISCELLANEOUS
10.01 - Communication to Participants
10.02 - Limitation of Rights
10.03 - Nonalienability of Benefits
10.04 - Facility of Payment
10.05 - Information between Employer and Trustee
10.06 - Notices
10.07 - Governing Law
ARTICLE 11
PLAN ADMINISTRATION
11.01 - Powers and Responsibilities of the Administrator
11.02 - Nondiscriminatory Exercise of Authority
11.03 - Claims and Review Procedures
11.04 - Cost of Administration
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PREAMBLE
It is the intention of the Employer to establish herein an unfunded plan
maintained solely for the purpose of providing deferred compensation for a
select group of management or highly compensated employees for purposes of Title
I of ERISA.
Article 1. ADOPTION AGREEMENT.
Article 2. DEFINITIONS.
2.01. DEFINITIONS.
(a) Wherever used herein, the following terms have the meanings set
forth below, unless a different meaning is clearly required by the
context:
(1) "Account" means an account established on the books of the
Employer for the purpose of recording amounts credited on behalf
of a Participant and any income, expenses, gains or losses
included thereon.
(2) "Administrator" means the Employer adopting this Plan, or
other person designated by the Employer in Section 1.01(b).
(3) "Adoption Agreement" means Article 1 under which the Employer
establishes and adopts or amends the Plan and designates the
optional provisions selected by the Employer. The provisions of
the Adoption Agreement shall be an integral part of the Plan.
(4) "Beneficiary" means the person or persons entitled under
Section 7.02 to receive benefits under the Plan upon the death of
a Participant.
(5) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(6) "Compensation" shall mean for purposes of Article 4
(Contributions) wages as defined in Section 3401(a) of the Code
and all other payments of compensation to an employee by the
employer (in the course of the employers trade or business) for
which the employer is required to finish the employee a written
statement under Section 6041(d) and 6051(a)(3) of the Code,
excluding any items elected by the Employer in Section 1.04,
reimbursements or other expense allowances, fringe benefits (cash
and non-cash), moving expenses, deferred compensation and welfare
benefits, but including amounts that are not includable in the
gross income of the participant under a salary reduction agreement
by reason of the application of Sections 125, 402(a)(8), 402(h),
or 403(b) of the Code. Compensation must be determined without
regard to any rules under Section 3401(a) of the Code that limit
the remuneration included in wages based on the nature or location
of the employment or the services performed (such as the exception
for agricultural labor in Section 3401(a)(2) of the Code).
Compensation shall generally be based on the amount that would
have been actually paid to the Participant during the Plan year
but for an election under Section 4.01.
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In the case of any Self-Employed Individual or an
Owner-Employee Compensation shall mean the Individual's Earned
Income.
(7) "Earned Income" means the net earnings of a Self-Employed
Individual derived from the trade or business with respect to
which the Plan is established and for which the personal services
of such individual are a material income-providing factor,
excluding any items not included in gross income and the
deductions allocated to such items, except that for taxable years
beginning after December 31, 1989 net earnings shall be determined
with regard to the deduction allowed under Section 164(f) of the
Code, to the extent applicable to the Employer. Net earnings shall
be reduced by contributions of the Employer to any qualified plan,
to the extent a deduction is allowed to the Employer for such
contributions under Section 404 of the Code.
(8) "Employee" means any employee of the Employer, Self-Employed
Individual or Owner-Employee.
(9) "Employer" means the employer named in Section 1.02(a) and
any Related Employers designated in Section 1.02(b).
(10) "Employment Commencement Date" means the date on which the
Employee first performs an Hour of Service.
(11) "ERISA" means the Employee Retirement Income Security Act
of 1974, as from time to time amended.
(12) "Fidelity Fund" means any Registered Investment Company
which is made available to plans utilizing the CORPORATEplan for
Retirement Select Plan.
(13) "Fund Share" means the share, unit, or other evidence of
ownership in a Fidelity Fund.
(14) "Hour of Service" means, with respect to any Employee,
(A) Each hour for which the Employee is directly or
indirectly paid, or entitled to payment, for the performance
of duties for the Employer or a Related Employer, each such
hour to be credited to the Employee for the computation period
in which the duties were performed;
(B) Each hour for which the Employee is directly or
indirectly paid, or entitled to payment, by the Employer or
Related Employer (including payments made or due from a trust
fund or insurer to which the Employer contributes or pays
premiums) on account of a period of time during which no
duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday,
illness, incapacity, disability, layoff, jury duty, military
duty, or leave of absence, each such hour to be credited to
the Employee for the Eligibility Computation Period in which
such period of time occurs, subject to the following rules:
(i) No more than 501 Hours of Service shall be credited
under this paragraph (B) on account of any single
continuous period during which the Employee performs no
duties;
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(ii) Hours of Service shall not be credited under this
paragraph (B) for a payment which solely reimburses the
Employee for medically-related expenses, or which is made
or due under a plan maintained solely for the purpose of
complying with applicable workmen's compensation,
unemployment compensation or disability insurance laws;
and
(iii) If the period during which the Employee performs no
duties falls within two or more computation periods and if
the payment made on account of such period is not
calculated on the basis of units of time, the Hours of
Service credited with respect to such period shall be
allocated between not more than the first two such
computation periods on any reasonable basis consistently
applied with respect to similarly situated Employees; and
(C) Each hour not counted under paragraph (A) or (B) for
which back pay, irrespective of mitigation of damages, has
been either awarded or agreed to be paid by the Employer or a
Related Employer, each such hour to be credited to the
Employee for the computation period to which the award or
agreement pertains rather than the computation period in which
the award agreement or payment is made.
For purposes of determining Hours of Service, Employees of
the Employer and of all Related Employers will be treated as
employed by a single employer. For purposes of paragraphs (B)
and (C) above, Hours of Service will be calculated in
accordance with the provisions of Section 2530.200b-2(b) of
the Department of Labor regulations which are incorporated
herein by reference.
Solely for purposes of determining whether a break in
service for participation purposes has occurred in a
computation period, an individual who is absent from work for
maternity or paternity reasons shall receive credit for the
hours of service which would otherwise have been credited to
such individual but for such absence, or in any case in which
such hours cannot be determined, 8 hours of service per day of
such absence. For purposes of this paragraph, an absence from
work for maternity reasons means an absence (1) by reason of
the pregnancy of the individual, (2) by reason of a birth of a
child of the individual, (3) by reason of the placement of a
child with the individual in connection with the adoption of
such child by such individual, or (4) for purposes of caring
for such child for a period beginning immediately following
such birth or placement. The hours of service credited under
this paragraph shall be credited (1) in the computation period
in which the absence begins if the crediting is necessary to
prevent a break in service in that period, or (2) in all other
cases, in the following computation period.
(15) "Normal Retirement Age" means the normal retirement age
specified in Section 1.06(a) of the Adoption Agreement.
(16) "Owner-Employee" means, if the Employer is a sole
proprietorship, the individual who is the sole proprietor, or if
the Employer is a partnership, a partner who owns more than 10
percent of either the capital interest or the profits interest of
the partnership.
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(17) "Participant" means any Employee who participates in the
Plan in accordance with Article 3 hereof.
(18) "Plan" means the plan established by the Employer as set
forth herein as a new plan or as an amendment to an existing plan,
by executing the Adoption Agreement, together with any and all
amendments hereto.
(19) "Plan Year" means the 12-consecutive month period designated
by the Employer in Section 1.01(d).
(20) "Registered Investment Company" means any one or more
corporations, partnerships or trusts registered under the
Investment Company Act of 1940 for which Fidelity Management and
Research Company serves as investment advisor.
(21) "Related Employer" means any employer other than the
Employer named in Section 1.02(a), if the Employer and such other
employer are members of a controlled group of corporations (as
defined in Section 414(b) of the Code) or an affiliated service
group (as defined in Section 414(m)), or are trades or businesses
(whether or not incorporated) which are under common control (as
defined in Section 414(c)), or such other employer is required to
be aggregated with the Employer pursuant to regulations issued
under Section 414(o).
(22) "Self-Employed Individual" means an individual who has
Earned Income for the taxable year from the Employer or who would
have Earned Income but for the fact that the trade or business had
no net profits for the taxable year.
(23) "Trust" means the trust created by the Employer.
(24) "Trust Agreement" means the agreement between the Employer
and the Trustee, as set forth in a separate agreement, under which
assets are held, administered, and managed subject to the claims
of the Employer's creditors in the event of the Employer's
insolvency, until paid to plan Participants and their
Beneficiaries as specified in the Plan.
(25) "Trust Fund" means the property held in the Trust by the
Trustee.
(26) "Trustee" means the corporation or individuals appointed by
the Employer to administer the Trust in accordance with the Trust
Agreement.
(27) "Years of Service for Vesting" means, with respect to any
Employee, the number of whole years of his periods of service with
the Employer or a Related Employer (the elapsed time method to
compute vesting service), subject to any exclusions elected by the
Employer in Section 1.07(b). An Employee will receive credit for
the aggregate of all time period(s) commencing with the Employee's
Employment Commencement Date and ending on the date a break in
service begins, unless any such years are excluded by Section
1.07(b). An Employee will also receive credit for any period of
severance of less than 12 consecutive months. Fractional periods
of a year will be expressed in terms of days.
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In the case of a Participant who has 5 consecutive 1-year
breaks in service, all years of service after such breaks in
service will be disregarded for the purpose of vesting the
employer-derived account balance that accrued before such breaks,
but both pre-break and post-break service will count for the
purposes of vesting the Employer-derived account balance that
accrues after such breaks. Both accounts will share in the
earnings and losses of the fund.
In the case of a participant who does not have 5 consecutive
l-year breaks in service, both the pre-break and post-break
service will count in vesting both the pre-break and post-break
employer-derived account balance.
A break in service is a period of severance of at least 12
consecutive months. Period of severance is a continuous period of
time during which the Employee is not employed by the Employer.
Such period begins on the date the Employee retires, quits or is
discharged, or if earlier, the 12 month anniversary of the date on
which the Employee was otherwise first absent from service.
In the case of an individual who is absent from work for
maternity or paternity reasons, the 12-consecutive month period
beginning on the first anniversary of the first date of such
absence shall not constitute a break in service. For purposes of
this paragraph, an absence from work for maternity or paternity
reasons means an absence (1) by reason of the pregnancy of the
individual, (2) by reason of the birth of a child of the
individual, (3) by reason of the placement of a child with the
individual in connection with the adoption of such child by such
individual, or (4) for purposes of caring for such child for a
period beginning immediately following such birth or placement.
If the plan maintained by the Employer is the plan of a
predecessor employer, an Employee's Years of Service for Vesting
shall include years of service with such predecessor employer. In
any case in which the Plan maintained by the Employer is not the
plan maintained by a predecessor employer, service for such
predecessor shall be treated as service for the Employer to the
extent provided in Section 1.08.
(b) Pronouns used in the Plan are in the masculine gender but include
the feminine gender unless the context clearly indicates otherwise.
Article 3. PARTICIPATION.
3.01. DATE OF PARTICIPATION. An eligible Employee (as set forth in Section
1.03(a)) will become a Participant in the Plan on the first Entry Date after
which he becomes an eligible Employee if he has filed an election pursuant to
Section 4.01. If the eligible Employee does not file an election pursuant to
Section 4.01 prior to his first Entry Date, then the eligible Employee will
become a Participant in the Plan as of the first day of a Plan Year for which he
has filed an election.
3.02. RESUMPTION OF PARTICIPATION FOLLOWING RE EMPLOYMENT. If a Participant
ceases to he an Employee and thereafter returns to the employ of the Employer he
will again become a Participant as of an Entry Date following the date on which
he completes an Hour of Service for the Employer following his re employment, if
he is an eligible Employee as defined in Section 1.03(a), and has filed an
election pursuant to Section 4.01.
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3.03. CESSATION OR RESUMPTION OF PARTICIPATION FOLLOWING A CHANGE IN STATUS. If
any Participant continues in the employ of the Employer or Related Employer but
ceases to be an eligible Employee as defined in Section 1.03(a), the individual
shall continue to be a Participant until the entire amount of his benefit is
distributed; however, the individual shall not be entitled to make Deferral
Contributions or receive an allocation of Matching contributions during the
period that he is not an eligible Employee. Such Participant shall continue to
receive credit for service completed during the period for purposes of
determining his vested interest in his Accounts. In the event that the
individual subsequently again becomes an eligible Employee, the individual shall
resume full participation in accordance with Section 3.01.
Article 4. CONTRIBUTIONS.
4.01. DEFERRAL CONTRIBUTIONS. Each Participant may elect to execute a salary
reduction agreement with the Employer to reduce his Compensation by a specified
percentage not exceeding the percentage set forth in Section 1.05(a) and equal
to a whole number multiple of one (1) percent. Such agreement shall become
effective on the first day of the period as set forth in the Participant's
election. The election will be effective to defer Compensation relating to all
services performed in a Plan Year subsequent to the filing of such an election.
An election once made will remain in effect until a new election is made. A new
election will be effective as of the first day of the following Plan Year and
will apply only to Compensation payable with respect to services rendered after
such date. Amounts credited to a Participant's account prior to the effective
date of any new election will not be affected and will be paid in accordance
with that prior election. The Employer shall credit an amount to the account
maintained on behalf of the Participant corresponding to the amount of said
reduction. Under no circumstances may a salary reduction agreement be adopted
retroactively. A Participant may not revoke a salary reduction agreement for a
Plan year during that year.
4.02. MATCHING CONTRIBUTIONS. If so provided by the Employer in Section
1.05(b),the Employer shall make a Matching Contribution to be credited to the
account maintained on behalf of each Participant who had Deferral Contributions
made on his behalf during the year and who meets the requirement, if any, of
Section 1.05(b)(3). The amount of the Matching Contribution shall be determined
in accordance with Section l.05(b).
4.03. TIME OF MAKING EMPLOYER CONTRIBUTIONS. The Employer will from time to
time make a transfer of assets to the Trustee for each Plan Year. The Employer
shall provide the Trustee with information on the amount to be credited to the
separate account of each Participant maintained under the Trust.
Article 5. PARTICIPANTS' ACCOUNTS.
5.01. INDIVIDUAL ACCOUNTS. The Administrator will establish and maintain an
Account for each Participant which will reflect Matching and Deferral
Contributions credited to the Account on behalf of the Participant and earnings,
expenses, gains and losses credited thereto, and deemed investments made with
amounts in the Participant's Account. The Administrator will establish and
maintain such other accounts and records as it decides in its discretion to be
reasonably required or appropriate in order to discharge its duties under the
Plan. Participants will be furnished statements of their Account values at least
once each Plan Year.
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Article 6. INVESTMENT OF CONTRIBUTIONS.
6.01. MANNER OF INVESTMENT. All amounts credited to the Accounts of
Participants shall be treated as though invested and reinvested only in eligible
investments selected by the Employer in Section 1.11(b).
6.02. INVESTMENT DECISIONS. Investments in which the Accounts of
Participants shall be treated as invested and reinvested shall be directed by
the Employer or by each Participant, or both, in accordance with the Employer's
election in Section 1.11(a).
(a) All dividends, interest, gains and distributions of any nature
earned in respect of Fund Shares in which the Account is treated
as investing shall be credited to the Account as though reinvested
in additional shares of that Fidelity Fund.
(b) Expenses attributable to the acquisition of investments shall
be charged to the Account of the Participant for which such
investment is made.
Article 7. RIGHT TO BENEFITS.
7.01. NORMAL OR EARLY RETIREMENT. If provided by the Employer in Section
1.07(d), each Participant who attains his Normal Retirement Age or Early
Retirement Age will have a nonforfeitable interest in his Account in accordance
with the vesting schedule elected in Section l.07. If a Participant retires on
or after attainment of Normal or Early Retirement Age, such retirement is
referred to as a normal retirement. On or after his normal retirement, the
balance of the Participant's Account, plus any amounts thereafter credits to his
Account, subject to the provisions of Section 7.06, will be distributed to him
in accordance with Article 8.
If provided by the Employer in Section 1.06, a Participant who separates
from service before satisfying the age requirements for early retirement, but
has satisfied the service requirement will be entitled to the distribution of
his Account, subject to the provisions of Section 7.06, in accordance with
Article 8, upon satisfaction of such age requirement.
7.02. DEATH. If a Participant dies before the distribution of his Account
has commenced, or before such distribution has been completed, his Account shall
become vested in accordance with the vesting schedule elected in Section 1.07
and his designated Beneficiary or Beneficiaries will be entitled to receive the
balance or remaining balance of his Account, plus any amounts thereafter
credited to his Account, subject to the provisions of Section 7.06. Distribution
to the Beneficiary or Beneficiaries will be made in accordance with Article 8.
A Participant may designate a Beneficiary or Beneficiaries, or change any
prior designation of Beneficiary or Beneficiaries by giving notice to the
Administrator on a form designated by the Administrator. If more than one person
is designated as the Beneficiary, their respective interests shall he as
indicated on the designation form.
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A copy of the death notice or other sufficient documentation must be filed
with and approved by the Administrator. If upon the death of the Participant
there is, in the opinion of the Administrator, no designated Beneficiary for
part or all of the Participant's Account, such amount will be paid to his
surviving spouse or, if none, to his estate (such spouse or estate shall be
deemed to be the Beneficiary for purposes of the Plan). If a Beneficiary dies
after benefits to such Beneficiary have commenced, but before they have been
completed, and, in the opinion of the Administrator, no person has been
designated to receive such remaining benefits, then such benefits shall be paid
to the deceased Beneficiary's estate.
7.03. OTHER TERMINATION OF EMPLOYMENT. If provided by the Employer in
Section 1.06, if a Participant terminates his employment for any reason other
than death or normal retirement, he will be entitled to a termination benefit
equal to (i) the vested percentage(s) of the value of the Matching Contributions
to his Account, as adjusted for income, expense, gain, or loss, such
percentage(s) determined in accordance with the vesting schedule(s) selected by
the Employer in Section 1.07, and (ii) the value of the Deferral Contributions
to his Account as adjusted for income, expense, gain or loss. The amount payable
under this Section 7.03 will be subject to the provisions of Section 7.06 and
will be distributed in accordance with Article 8.
7.04. SEPARATE ACCOUNT. If a distribution from a Participant's Account has
been made to him at a time when he has a nonforfeitable right to less than 100
percent of his Account, the vesting schedule in Section 1.07 will thereafter
apply only to amounts in his Account attributable to Matching Contributions
allocated after such distribution. The balance of his Account immediately after
such distribution will be transferred to a separate account which will be
maintained for the purpose of determining his interest therein according to the
following provisions.
At any relevant time prior to a forfeiture of any portion thereof under
Section 7.05, a Participant's nonforfeitable interest in his Account held in a
separate account described in the preceding paragraph will be equal to P(AB +
(RxD))-(RxD), where P is the nonforfeitable percentage at the relevant time
determined under Section 7.O5; AB is the account balance of the separate account
at the relevant time; D is the amount of the distribution; and R is the ratio of
the account balance at the relevant time to the account balance after
distribution. Following a forfeiture of any portion of such separate account
under Section 7.05 below, any balance in the Participant's separate account will
remain fully vested and nonforfeitable.
7.05. FORFEITURES. If a Participant terminates his employment, any portion
of his Account (including any amounts credited after his termination of
employment) not payable to him under Section 7.03 will be forfeited by him. For
purposes of this paragraph, if the value of a Participant's vested account
balance is zero, the Participant shall be deemed to have received a distribution
of his vested interest immediately following termination of employment. Such
forfeitures will be applied to reduce the contributions of the Employer under
the Plan (or administrative expenses of the Plan).
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7.06. ADJUSTMENT FOR INVESTMENT EXPERIENCE. If any distribution under this
Article 7 is not made in a single payment, the amount remaining in the Account
after the distribution will be subject to adjustment until distributed to
reflect the income and gain or loss on the investments in which such amount is
treated as invested and any expenses properly charged under the Plan and Trust
to such amounts.
7.07. HARDSHIP WITHDRAWALS. Subject to the provisions of Article 8, a
Participant shall not be permitted to withdraw his Account (and earnings
thereon) prior to retirement or termination of employment, except if permitted
under Section 1.09, a Participant may apply to the Administrator to withdraw
some or all of his Account if such withdrawal is made on account of a hardship
as determined by the Employer.
Article 8. DISTRIBUTION OF BENEFITS PAYABLE AFTER TERMINATION OF SERVICE.
8.01. DISTRIBUTION OF BENEFITS TO PARTICIPANTS AND BENEFICIARIES.
(a) Distributions under the Plan to a Participant or to the
Beneficiary of the Participant shall be made in a lump sum in cash or,
if elected by the Employer in Section 1.10 and specified in the
Participant's deferral election, under a systematic withdrawal plan
(installment(s)) not exceeding 10 years upon retirement, death or
other termination of employment.
(b) Distributions under a systematic withdrawal plan must be made in
substantially equal annual, or more frequent, installments, in cash,
over a period certain which does not extend 10 years. The period
certain specified in a Participant's first deferral election specifying
distribution under a systematic withdrawal plan shall apply to all
subsequent elections of distributions under a systematic withdrawal
plan made by the Participant.
8.02. DETERMINATION OF METHOD OF DISTRIBUTION. The Participant will
determine the method of distribution of benefit's to himself and the method of
distribution to his Beneficiary. Such determination will be made at the time the
Participant makes a deferral election. If the Participant does not determine the
method of distribution to him or his Beneficiary, the method shall be a lump
sum.
8.03. NOTICE TO TRUSTEE. The Administrator will notify the Trustee in
writing whenever any Participant or Beneficiary is entitled to receive benefits
under the plan. The administrator's notice shall indicate the form, amount and
frequency of benefits that such Participant or Beneficiary shall receive.
8.04. TIME OF DISTRIBUTION. In no event will distribution to a Participant be
made later than the date specified by the Participant in his salary reduction
agreement.
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Article 9. AMENDMENT AND TERMINATION.
9.01. AMENDMENT BY EMPLOYER. The Employer reserves the authority to amend
the Plan by filing with the Trustee an amended Adoption Agreement, executed by
the Employer only, on which said Employer has indicated a change or changes in
provisions previously elected by it. Such changes are to be effective on the
effective date of such amended Adoption Agreement. Any such change
notwithstanding, no Participant's Account shall be reduced by such change below
the amount to which the Participant would have been entitled if he had
voluntarily left the employ of the Employer immediately prior to the date of the
change. The Employer may from time to time make any amendment to the Plan that
may he necessary to satisfy the Code or ERISA. The Employer's board of directors
or other individual specified in the resolution adopting this Plan shall act on
behalf of the Employer for purposes of this Section 9.01.
9.02. RETROACTIVE AMENDMENTS. An amendment made by the Employer in
accordance with Section 9.01 may be made effective on a date prior to the first
day of the Plan Year in which it is adopted if such amendment is necessary or
appropriate to enable the Plan and Trust to satisfy the applicable requirements
of the Code or ERISA or to conform the Plan to any change in federal law or to
any regulations or ruling thereunder. Any retroactive amendment by the Employer
shall be subject to the provisions of Section 9.01.
9.03. TERMINATION. The Employer has adopted the Plan with the intention and
expectation that contributions will be continued indefinitely. However, said
Employer has no obligation or liability whatsoever to maintain the Plan for any
length of time and may discontinue contributions under the Plan or terminate the
Plan at any time by written notice delivered to the Trustee without any
liability hereunder for any such discontinuance or termination.
9.04. DISTRIBUTION UPON TERMINATION OF THE PLAN. Upon termination of the Plan,
no further Deferral Contributions or Matching Contributions shall be made under
the Plan, but Accounts of Participants maintained under the Plan at the time of
termination shall continue to be governed by the terms of the Plan until paid
out in accordance with the terms of the Plan.
Article 10. MISCELLANEOUS.
10.01. COMMUNICATION TO PARTICIPANTS. The Plan will be communicated to all
Participants by the Employer promptly after the Plan is adopted.
10.02. LIMITATION OF RIGHTS. Neither the establishment of the Plan and the
Trust, nor any amendment thereof, nor the creation of any fund or account, nor
the payment of any benefits, will be construed as giving to any Participant or
other person any legal or equitable right against the Employer, Administrator or
Trustee, except as provided herein; and in no event will the terms of employment
or service of any Participant be modified or in any way affected hereby.
10.03. NONALIENABILITY OF BENEFITS. The benefits provided hereunder will
not he subject to alienation, assignment, garnishment, attachment, execution or
levy of any kind, either voluntarily or involuntarily, and any attempt to cause
such benefits to be so subjected will not be recognized, except to such extent
as may be required by law.
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10.04. FACILITY OF PAYMENT. In the event the Administrator determines, on
the basis of medical reports or other evidence satisfactory to the
Administrator, that the recipient of any benefit payments under the Plan is
incapable of handling his affairs by reason of minority, illness, infirmity or
other incapacity, the Administrator may direct the Trustee to disburse such
payments to a person or institution designated by a court which has jurisdiction
over such recipient or a person or institution otherwise having the legal
authority under state law for the care and control of such recipient. The
receipt by such person or institution of any such payments shall be complete
acquittance therefore, and any such payment to the extent thereof, shall
discharge the liability of the Trust for the payment of benefits hereunder to
such recipient.
10.05. INFORMATION BETWEEN EMPLOYER AND TRUSTEE. The Employer agrees to
furnish the Trustee, and the Trustee agrees to furnish the Employer with such
information relating to the Plan and Trust as may be required by the other in
order to carry out their respective duties hereunder, including without
limitation information required under the Code or ERISA and any regulations
issued or forms adopted thereunder.
10.06. NOTICES. Any notice or other communication in connection with this Plan
shall be deemed delivered in writing if addressed as provided below and if
either actually delivered at said address or, in the case of a letter, three
business days shall have elapsed after the same shall have been deposited in the
United States mails, first-class postage prepaid and registered or certified:
(a) If to the Employer or Administrator, to it at the address set
forth in the Adoption Agreement, to the attention of the person
specified to receive notice in the Adoption Agreement;
(b) If to the Trustee, to it at the address set forth in the Trust
Agreement;
or, in each case at such other address as the addressee shall have specified by
written notice delivered in accordance with the foregoing to the addressor's
then effective notice address.
10.07. GOVERNING LAW. The Plan and the accompanying Adoption Agreement will
be construed, administered and enforced according to ERISA, and to the extent
not preempted thereby, the laws of the Commonwealth of Massachusetts.
Article 11. PLAN ADMINISTRATION.
11.01. POWERS AND RESPONSIBILITIES OF THE ADMINISTRATOR. The Administrator
has the full power and the full responsibility to administer the Plan in all of
its details, subject, however, to the applicable requirements of ERISA. The
Administrator's powers and responsibilities include, but are not limited to, the
following:
(a) To make and enforce such rules and regulations as it deems
necessary or proper for the efficient administration of the Plan;
(b) To interpret the Plan, its interpretation thereof in good
faith to be final and conclusive on all persons claiming benefits
under the Plan;
(c) To decide all questions concerning the Plan and the eligibility
of any person to participate in the Plan;
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(d) To administer the claims and review procedures specified in
Section 11.03;
(e) To compute the amount of benefits which will be payable to any
Participant, former Participant or Beneficiary in accordance with
the provisions of the Plan;
(f) To determine the person or persons to whom such benefits will be
paid;
(g) To authorize the payment of benefits;
(h) To comply with the reporting and disclosure requirements of
Part 1 of Subtitle B of Title I of ERISA;
(i) To appoint such agents, counsel, accountants, and consultants as
may be required to assist in administering the Plan;
(j) By written instrument, to allocate and delegate its
responsibilities including the formation of an Administrative
Committee to administer the Plan.
11.02. NONDISCRIMINATORY EXERCISE OF AUTHORITY. Whenever, in the
administration of the Plan, any discretionary action by the Administrator is
required, the Administrator shall exercise its authority in a nondiscriminatory
manner so that all persons similarly situated will receive substantially the
same treatment.
11.03. CLAIMS AND REVIEW PROCEDURES
(a) CLAIMS PROCEDURE. If any person believes he is being denied
any rights or benefits under the Plan, such person may file a
claim in writing with the Administrator. If any such claim is
wholly or partially denied, the Administrator will notify such
person of its decision in writing. Such notification will contain
(i) specific reasons for the denial, (ii) specific reference to
pertinent Plan provisions, (iii) a description of any additional
material or information necessary for such person to perfect such
claim and an explanation of why such material or information is
necessary, and (iv) information as to the steps to be taken if the
person wishes to submit a request for review. Such notification
will be given within 90 days after the claim is received by the
Administrator (or within 180 days, if special circumstances
require an extension of time for processing the claim, and if
written notice of such extension and circumstances is given to
such person within the initial 90-day period). If such
notification is not given within such period, the claim will be
considered denied as of the last day of such period and such
person may request a review of his claim.
(b) REVIEW PROCEDURE. Within 60 days after the date on which a
person receives a written notice of a denied claim (or, if
applicable, within 60 days after the date on which such denial is
considered to have occurred), such person (or his duly authorized
representative) may (i) file a written request with the
Administrator for a review of his denied claim and of pertinent
documents and (ii) submit written issues and comments to the
Administrator. The Administrator will notify such person of its
decision in writing. Such notification will be written in a manner
calculated to be understood by such person and will contain
specific reasons for the decision as well as specific references
to pertinent Plan provisions. The decision on review will be made
within 6O days after the request for review is received by the
Administrator (or within 120 days, if special circumstances
require an extension of time for processing the request, such
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as an election by the Administrator to hold a hearing. and if
written notice of such extension and circumstances is given to
such person within the initial 60-day period). If the decision on
review is not made within such period, the claim will be
considered denied.
11.04. COSTS OF ADMINISTRATION. Unless some or all costs and expenses are
paid by the Employer, all reasonable costs and expenses (including legal,
accounting, and employee communication fees) incurred by the Administrator and
the Trustee in administering the Plan and Trust will be paid first from the
forfeitures (if any) resulting under Section 7.05, then from the remaining Trust
Fund. All such costs and expenses paid from the Trust Fund will, unless
allocable to the Accounts of particular Participants, be charged against the
Accounts of all participants on a prorata basis or in such other reasonable
manner as may be directed by the Employer.
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