Exhibit 10.12
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.
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
ARTICLE 10
MISCELLANEOUS
10.01 - Communication to Participants
10.02 - Llimitation 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
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 furninish 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.
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 employ-ment 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 contin-uous period during
which the Employee performs no duties;
(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 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.
(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 had 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.
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 1-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 be 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.
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 1.05(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.
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 1.07. 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 credited 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 be as indicated on the
designation form.
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 7.05; 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).
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
benefits 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.
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 be 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 be 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.
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;
(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 60 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 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.