EX-99.3-1
COMPOSITE
CHECKER EMPLOYEES' 401(k)
RETIREMENT BENEFIT PLAN
REFLECTING ALL AMENDMENTS TO DATE
EX-99.3-2
TABLE OF CONTENTS
PAGE
----
ARTICLE I - General........................................................ 1
1.1 Establishment and Effective Date................................ 1
1.2 Applicability................................................... 1
ARTICLE II - Definitions................................................... 1
2.1 Account or Accounts............................................. 1
2.2 Accrued Benefit................................................. 2
2.3 Active Participant.............................................. 2
2.4 Authorized Leave of Absence..................................... 2
2.5 Beneficiary..................................................... 2
2.6 Beneficiary Designation Form.................................... 3
2.7 Board of Directors.............................................. 3
2.8 Code............................................................ 3
2.9 Committee....................................................... 3
2.10 Commonly Controlled Entity...................................... 3
2.11 Company......................................................... 3
2.12 Compensation.................................................... 3
2.13 Disability or Disabled.......................................... 5
2.14 Effective Date.................................................. 5
2.15 Eligibility Computation Period.................................. 5
2.16 Eligible Employee............................................... 5
2.17 Employee........................................................ 6
2.18 Employer........................................................ 6
2.19 Employer Contributions.......................................... 6
2.20 Entry Date...................................................... 6
2.21 ERISA........................................................... 6
2.22 Family Member................................................... 6
2.23 401(k) Election................................................. 6
2.24 401(k) Election Form............................................ 6
2.25 Forfeiture...................................................... 7
2.26 Highly Compensated Employee..................................... 7
2.27 Hour of Service................................................. 9
2.28 Investment Fund................................................. 10
2.29 Non-highly Compensated Employee................................. 10
2.30 Normal Retirement Date.......................................... 10
2.31 One Year Break in Service....................................... 10
2.32 Parental Leave.................................................. 10
2.33 Participant..................................................... 11
2.34 Plan............................................................ 11
2.35 Plan Administrator.............................................. 11
2.36 Plan Year....................................................... 11
2.37 Related Plan.................................................... 11
2.38 Required Beginning Date......................................... 11
2.39 Rollover Contribution........................................... 11
2.40 Termination of Employment....................................... 12
2.41 Trust........................................................... 12
2.42 Trust Agreement................................................. 12
2.43 Trust Fund...................................................... 12
-i-
EX-99.3-3
TABLE OF CONTENTS
(Continued)
PAGE
----
2.44 Trustee......................................................... 12
2.45 Valuation Date.................................................. 12
2.46 Year of Eligibility Service..................................... 12
2.47 Year of Vesting Service......................................... 12
ARTICLE III - Participation................................................ 14
3.1 Participation................................................... 14
3.2 Certification of Participation and Compensation to
Committee...................................................... 14
3.3 Participation Upon Change of Job Status......................... 14
3.4 Participation Upon Reemployment................................. 14
ARTICLE IV - Contributions................................................. 15
4.1 401(k) Contributions............................................ 15
4.2 Matching Contributions.......................................... 16
4.3 Special Employer Contributions.................................. 16
4.4 Profit Sharing Contributions.................................... 17
4.5 401(k) Elections................................................ 17
4.6 Prevented Contributions......................................... 18
4.7 Rollover Contributions.......................................... 18
ARTICLE V - Restrictions and Limitations on Contributions.................. 19
5.1 Order of Application of the Restrictions and
Limitations on Contributions................................... 19
5.2 Restrictions on 401(k) Contributions............................ 19
5.3 401(k) Discrimination Limits.................................... 22
5.4 Restrictions on Matching Contributions.......................... 25
5.5 Multiple Use of Section 5.3 and Section 5.4..................... 28
ARTICLE VI - Allocations of Contributions.................................. 29
6.1 401(k) Contributions............................................ 29
6.2 Matching Contributions and Forfeitures.......................... 29
6.3 Special Employer Contributions.................................. 30
6.4 Profit Sharing Contributions.................................... 30
6.5 Limitations on Contributions.................................... 30
ARTICLE VII - Trustee and Trust Fund....................................... 33
7.1 Trust Agreement................................................. 33
7.2 Selection of Trustee............................................ 33
7.3 Trustee's Duties................................................ 33
7.4 Trust Expenses.................................................. 34
7.5 Trust Entity.................................................... 34
7.6 Separate Accounts............................................... 34
7.7 Investment Funds................................................ 34
7.8 Trust Income.................................................... 36
7.9 Correction of Error............................................. 37
7.10 Right of the Employers to Trust Assets.......................... 37
-ii-
EX-99.3-4
TABLE OF CONTENTS
(Continued)
PAGE
----
ARTICLE VIII - Benefits.................................................... 38
8.1 Payment of Benefits in General.................................. 38
8.2 Payment of Vested Accrued Benefit on Termination of
Employment..................................................... 39
8.3 Payment of Vested Accrued Benefit on Death...................... 39
8.4 Lump Sum Payment Without Election............................... 41
8.5 Vested Interests................................................ 41
8.6 Deduction of Taxes from Amounts Payable......................... 43
8.7 Deadline for Payment of Benefits................................ 44
8.8 Facility of Payment............................................. 44
8.9 Spousal Consent to a Waiver..................................... 44
8.10 Form of Payment................................................. 45
8.11 Improper Payment of Benefits.................................... 45
ARTICLE IX - Administration................................................ 45
9.1 Board of Directors Duties....................................... 45
9.2 Committee Membership............................................ 45
9.3 Committee Structure............................................. 45
9.4 Committee Actions............................................... 46
9.5 Committee Duties................................................ 46
9.6 Allocations and Delegations of Responsibility................... 47
9.7 Committee Bonding and Expenses.................................. 48
9.8 Information to be Supplied by Employer.......................... 48
9.9 Records......................................................... 48
9.10 Fiduciary Capacity.............................................. 48
9.11 Plan Administrator.............................................. 48
9.12 Committee/Plan Administrator Decisions Final.................... 49
9.13 Company, Committee and Trustee as Agent......................... 49
9.14 Fiduciary Responsibility........................................ 49
ARTICLE X - Claims Procedure............................................... 50
10.1 Initial Claim for Benefits...................................... 50
10.2 Review of Claim Denial.......................................... 50
ARTICLE XI - Amendment and Termination of the Plan......................... 51
11.1 Discontinuance of Contributions................................. 51
11.2 Amendments...................................................... 51
11.3 Plan Termination................................................ 52
11.4 Payment Upon Termination........................................ 52
11.5 Withdrawal from the Plan by an Employer......................... 52
ARTICLE XII - Top Heavy Provisions......................................... 52
12.1 Application..................................................... 52
12.2 Special Top Heavy Definitions................................... 53
12.3 Special Top Heavy Provisions.................................... 60
-iii-
EX-99.3-5
TABLE OF CONTENTS
(Continued)
PAGE
----
ARTICLE XIII - Miscellaneous Provisions.................................... 63
13.1 Employer Joinder................................................ 63
13.2 Company Merger.................................................. 63
13.3 Plan Merger..................................................... 64
13.4 Indemnification................................................. 64
13.5 Unclaimed Amounts............................................... 64
13.6 Plan Governs.................................................... 64
13.7 Nonalienation of Benefits....................................... 65
13.8 Qualified Domestic Relations Order.............................. 65
13.9 Contract of Employment.......................................... 66
13.10 Source of Benefits.............................................. 66
13.11 Employees' Trust................................................ 67
13.12 Gender and Number............................................... 67
13.13 Headings........................................................ 67
13.14 Uniform and Non-Discriminatory Application of
Provisions..................................................... 67
13.15 Invalidity of Certain Provisions................................ 67
13.16 Law Governing................................................... 67
ARTICLE XIV - Direct Rollovers............................................. 67
14.1 Direct Rollovers............................................... 67
14.2 Definitions.................................................... 68
-iv-
EX-99.3-6
ARTICLE I
GENERAL
1.1 ESTABLISHMENT AND EFFECTIVE DATE. The Checker Employees' 401(k)
Retirement Benefit Plan (the "Plan") is established effective January 1, 1990,
as set forth herein. [THE FOLLOWING SENTENCE IS EFFECTIVE PRIOR TO JULY 1,
1994] It is intended that this Plan shall qualify under Sections 401(a) and
401(k) of the Code. [THE FOLLOWING SENTENCE IS EFFECTIVE AFTER JUNE 30, 1994]
The Plan is intended to be a profit sharing plan qualified under Sections
401(a) and 401(k) of the Internal Revenue Code, and is intended to meet the
requirements relating to participant directed accounts contained in the
Department of Labor regulations promulgated under Section 404(c) of the
Employee Retirement Income Security Act of 1974 (ERISA), as amended.
1.2 APPLICABILITY. The Plan shall apply to persons who are Employees of
an Employer on or after January 1, 1990, except as otherwise specifically
provided herein.
ARTICLE II
DEFINITIONS
When used herein the following words shall have the following meanings
unless the context clearly indicates otherwise.
2.1 "ACCOUNT" or "ACCOUNTS" means a Participant's share in the Trust.
Each Participant shall have the following Accounts:
(a) A "401(k) ACCOUNT" to which shall be credited the
Participant's 401(k) Contributions made to the Trust in accordance with
Section 4.1, and Special Employer Contributions made to the Trust in
accordance with Sections 4.3 and 5.3(b), plus income and gains and less
expenses and losses attributable thereto. A Participant's 401(k) Account
shall be reduced by any distributions therefrom and shall be fully vested
and nonforfeitable.
(b) A "MATCHING CONTRIBUTION ACCOUNT" to which shall be credited
the Participant's Matching Contributions and Forfeitures made to the Trust
in accordance with Sections 4.2 and 8.5(e), and Special Employer
Contributions made to the Trust in accordance with Sections 4.3 and
5.4(b), plus income and gains and less expenses and losses attributable
thereto. A Participant's Matching Contribution Account shall be reduced
by any distributions therefrom and shall vest in accordance with Sections
8.5 and 11.4.
-1-
EX-99.3-7
(c) A "PROFIT SHARING CONTRIBUTION ACCOUNT" to which shall be
credited the Participant's Profit Sharing Contributions made to the Trust
in accordance with Section 4.4 and Minimum Employer Contributions, if any,
made to the Plan pursuant to Section 12.3(a), plus income and gains and
less expenses and losses attributable thereto. A Participant's Profit
Sharing Contribution Account shall be reduced by any distributions
therefrom and shall be vested in accordance with Sections 8.5 and 11.4.
(d) A "ROLLOVER CONTRIBUTION ACCOUNT" to which shall be credited
the Participant's Rollover Contributions made to the Trust in accordance
with Section 4.7 plus income and gains and less expenses and losses
attributable thereto. A Participant's Rollover Contribution Account shall
be reduced by any distributions therefrom and shall be fully vested and
nonforfeitable.
2.2 "ACCRUED BENEFIT" means a Participant's interest in the Trust
composed of such Participant's Accounts. The value of an Accrued Benefit at
any time during any Plan Year shall be its value as adjusted on the coinciding
or immediately preceding Valuation Date.
2.3 "ACTIVE PARTICIPANT" means
(a) with respect to Profit Sharing Contributions, Matching
Contributions, and Special Employer Contributions made pursuant to
Sections 4.3 and 5.4(b), a Participant
(1) who is an Eligible Employee as of the last day of the
Plan Year or
(2) who was an Eligible Employee as of any day of the Plan
Year and had a Termination of Employment during the Plan Year on
account of death, Disability or on or after Normal Retirement Date;
or
(b) for all other purposes, a Participant who is an Eligible
Employee on any day of the Plan Year.
2.4 "AUTHORIZED LEAVE OF ABSENCE" means any absence authorized by an
Employer under the Employer's standard personnel practices. An absence due to
service in the Armed Forces of the United States shall be considered an
Authorized Leave of Absence provided that the Employee returns to employment
with the Employer with reemployment rights provided by law.
2.5 "BENEFICIARY" means any person designated by the Plan or by a
Participant in accordance with Section 8.3 to receive any benefits which shall
be payable under the Plan on the Participant's death.
-2-
EX-99.3-8
2.6 "BENEFICIARY DESIGNATION FORM" means the form provided or permitted
by the Committee on which the Participant, in accordance with Section 8.3, may
(a) designate his Beneficiary, (b) select the form of his Beneficiary's benefit
and (c) elect to permit his Beneficiary to change the form of the Beneficiary's
benefit.
2.7 "BOARD OF DIRECTORS" means the board of directors of Checker Motors
Corporation, as general partner of the Company.
2.8 "CODE" means the Internal Revenue Code of 1986, as amended from time
to time and any subsequent Internal Revenue Code. References to any section of
the Code shall be deemed to include similar sections of the Code as renumbered
or amended.
2.9 "COMMITTEE" means the committee appointed pursuant to Article IX to
administer the Plan.
2.10 "COMMONLY CONTROLLED ENTITY" means a corporation, trade, or
business if it and an Employer are members of a controlled group of
corporations as defined in Section 414(b) of the Code or under common control
as defined in Section 414(c) of the Code or members of an affiliated service
group as defined in Section 414(m) of the Code or members of a group the
members of which are required to be aggregated pursuant to regulations under
Section 414(o) of the Code.
2.11 "COMPANY" means Checker Motors Co., L.P., or any successor entity
by merger, consolidation, purchase, or otherwise which elects to adopt the Plan
and Trust.
2.12 "COMPENSATION" means the amounts described below.
(a) Except as provided in (b) and (c), Compensation means the
total amount of cash compensation paid during the Plan Year to a
Participant, while a Participant in the Plan, by the Employer including
regular salary, wages, commissions, bonus, and overtime and any amounts by
which the Employee's compensation is reduced by salary reduction or any
similar arrangement under the Plan, any Related Plan or any cafeteria plan
(as described in Code Section 125) maintained by an Employer, but
excluding any other benefits paid under the Plan or under any other
qualified plan described in Section 401(a) of the Code, or other deferred
compensation, stock options, or any other distributions which receive
special tax benefit.
(b) For purposes of determining the limitations under Section 6.5
and Article XII (except for determining a Key Employee under Section
12.2(d)), Compensation means total compensation paid to the Employee by an
Employer or a Commonly Controlled Entity in the Plan Year, not increased
by
-3-
EX-99.3-9
any amount by which the Employee's compensation is reduced by salary
reduction or any similar arrangement under the Plan, any Related Plan or
any cafeteria plan (as described in Code Section 125) maintained by an
Employer or Commonly Controlled Entity, and excluding any benefits under
the Plan or any other qualified plan described in Section 401(a) of the
Code, or other deferred compensation, stock options, or any other
distributions which receive special tax benefit;
(c) For purposes of determining Highly Compensated Employees under
Section 2.26, Key Employees under Section 12.2(d), the Actual Deferral
Percentage under Section 5.3 and the Average Contribution Percentage under
Section 5.4, Compensation means total compensation paid to an Employee by
an Employer or Commonly Controlled Entity during the Plan Year, increased
by any amounts by which the Employee's compensation is reduced by salary
reduction or similar arrangement under the Plan, any Related Plan or any
cafeteria plan (as described in Code Section 125) maintained by an
Employer or a Commonly Controlled Entity, and excluding any benefits paid
under the Plan or under any other qualified plan described in Section
401(a) of the Code, and excluding other deferred compensation, stock
options and any other distributions which receive special tax benefit.
[EFFECTIVE FOR PLAN YEARS COMMENCING ON OR AFTER JANUARY 1, 1992]
Notwithstanding the foregoing provisions of this Section 2.12(c), for the
purpose of determining the Actual Deferral Percentage under Section 5.3
and the Average Contribution Percentage under Section 5.4, the Plan
Administrator may, for any Plan Year, limit the period used to determine
an Employee's compensation to that portion of the Plan Year in which the
Employee was an Eligible Employee, provided that such limit is applied
uniformly to all Eligible Employees under the Plan for the Plan Year. The
Plan Administrator may change such determination from Plan Year to Plan
Year.
(d) Notwithstanding any other provision of the Plan to the
contrary, except for purposes of determining Highly Compensated Employees
under Section 2.26 and except for purposes of Section 6.5, the amount of
an Employee's annual Compensation taken into account under the Plan shall
not exceed the following limitations:
(i) for Plan Years ending on or before December 31, 1993,
$200,000, adjusted from time to time by the Secretary of the
Treasury at the same time and in the same manner as under Section
415(d) of the Code; and
(ii) for Plan Years beginning on or after January 1, 1994,
$150,000 as adjusted by the Commissioner of the Internal Revenue
Service for increases in the cost of living in accordance with
-4-
EX-99.3-10
Section 401(a)(17)(B) of the Code, and prorated for any period that
consists of fewer than 12 months.
For purposes of the preceding sentence, in determining the Compensation of
any Employee who is a Highly Compensated Employee in the group consisting
of the top ten persons employed by the Company and all Commonly Controlled
Entities who are paid the greatest compensation (without regard to this
sentence), or any Five Percent Owner, there shall be included the
Compensation paid to such Employee's spouse and any lineal descendant of
the Highly Compensated Employee who has not attained age 19 before the end
of the applicable Plan Year.
2.13 "DISABILITY" or "DISABLED" means an injury or illness which
qualifies the Participant for permanent disability insurance payments in
accordance with the Federal Social Security Act, provided that if the
Participant is not entitled to receive permanent disability insurance payments
under the Federal Social Security Act for reasons not associated with the
seriousness and permanency of his incapacity, the Committee may, in its
discretion, make a determination of whether the Participant has incurred a
Disability by applying those standards applied to determine whether a
Participant is entitled to receive permanent disability payments under the
Federal Social Security Act, other than those not associated with the
seriousness or permanency of the Participant's incapacity.
2.14 "EFFECTIVE DATE" means January 1, 1990.
2.15 "ELIGIBILITY COMPUTATION PERIOD" means the 12 consecutive month
period commencing with the date that an Employee is employed (or reemployed
after a One Year Break in Service) by an Employer or other Commonly Controlled
Entity, and, thereafter, each Plan Year commencing with the Plan Year which
includes the first anniversary of the employment (or reemployment after a
One-Year Break in Service) by the Employer or Commonly Controlled Entity.
2.16 "ELIGIBLE EMPLOYEE" means any Employee who is employed by an
Employer, including a person on an Authorized Leave of Absence, but excluding
(a) any Employee who is a member of a collective bargaining unit represented by
a collective bargaining agent with which the Employer has or has had a
bargaining agreement, unless an agreement between the Employer and the
collective bargaining agent requires that members of the collective bargaining
unit participate in the Plan, and (b) those Employees who were eligible to
participate in the Yellow Cab Company - Local 777 DUOC Pension Plan and those
Employees who are in the same job category as those Employees who were so
eligible.
-5-
EX-99.3-11
2.17 "EMPLOYEE" means any person who is employed by the Company or
Commonly Controlled Entity excluding an independent contractor and any leased
employee (as defined in Section 414(n) of the Code).
2.18 "EMPLOYER" means the Company and any other Commonly Controlled
Entity which, pursuant to Section 13.1 of the Plan, elects to adopt the Plan
and the Trust Agreement.
2.19 "EMPLOYER CONTRIBUTIONS" means the following payments made from
time to time by an Employer to the Trustee:
(a) "401(k) CONTRIBUTIONS" made pursuant to Section 4.1;
(b) "MATCHING CONTRIBUTIONS" made pursuant to Section 4.2;
(c) "PROFIT SHARING CONTRIBUTIONS" made pursuant to Section 4.4;
(d) "SPECIAL EMPLOYER CONTRIBUTIONS" made pursuant to Section
4.3; and
(e) "MINIMUM EMPLOYER CONTRIBUTIONS", if any, made pursuant to
Section 12.3(a).
2.20 "ENTRY DATE" means April 1, 1990 and July 1, 1990, and thereafter,
January 1 and July 1 of each Plan Year.
2.21 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
2.22 "FAMILY MEMBER" shall mean an Employee who is a spouse, a lineal
ascendant or descendant, or the spouse of a lineal ascendant or descendant of
any Highly Compensated Employee who is in the group consisting of the ten
persons employed by the Company or Commonly Controlled Entity paid the greatest
Compensation (without regard to this sentence) or any Five Percent Owner and
such spouse, lineal ascendants or descendants, or their spouses. A Family
Member shall not be treated as an individual for purposes of determining
Compensation under the Plan.
2.23 "401(k) ELECTION" means the election to have Compensation reduced
which has been made on a properly completed and executed form which has been
filed by the Participant with the Committee in accordance with Sections 4.1 and
4.5.
2.24 "401(k) ELECTION FORM" means the form provided by the Committee to
the Participant for the purpose of making 401(k) Elections, as provided in
Sections 4.1 and 4.5.
-6-
EX-99.3-12
2.25 "FORFEITURE" means the portion of a Participant's Accrued Benefit
which is forfeited as provided in Section 8.5 or Section 13.5.
2.26 "HIGHLY COMPENSATED EMPLOYEE" means the individuals described
below.
(a) For any Plan Year (subject to subsections (b) and (c)), a
Highly Compensated Employee is any Participant who at any time during the
Plan Year or the preceding Plan Year:
(1) was an Employee and at any time a more than five percent
(5%) owner, as defined in Code Section 416(i)(1) (or was considered
as owning more than five percent (5%) within the meaning of Section
318 of the Code) ("Five Percent Owner"), of the Company or Commonly
Controlled Entity who was employed by the Company or a Commonly
Controlled Entity;
(2) received Compensation in excess of $85,485 (in 1990,
adjusted from time to time by the Secretary of Treasury at the same
time and in the same manner as under Section 415(d) of the Code);
(3) (A) received Compensation in excess of $56,990 (in 1990,
adjusted from time to time by the Secretary of Treasury at the same
time and in the same manner as under Section 415(d) of the Code) and
(B) was in the group consisting of the top 20% of the total number
of Employees of the Company and Commonly Controlled Entities when
ranked on the basis of Compensation paid during such year; provided
that, for purposes of determining the total number of Employees of
the Company and Commonly Controlled Entities, the following
individuals shall be excluded:
individuals who have not completed six months of
service,
individuals who normally work less than 17-1/2 hours
per week,
individuals who normally work during not more than six
months during any year,
individuals who have not attained age 21,
except to the extent provided in regulations,
individuals who are members of a collective bargaining unit
represented by a collective bargaining agent with which the
Company
-7-
EX-99.3-13
or Commonly Controlled Entity has or has had a bargaining
agreement, and
individuals who are non-resident aliens and who
receive no earned income (within the meaning of Code Section
911(d)(2)) from the Company or a Commonly Controlled Entity
which constitutes income from sources within the United States
(within the meaning of Code Section 861(a)(3)); or
(4) was at any time an officer of the Company or a Commonly
Controlled Entity and received Compensation greater than 50% of the
amount (the "Dollar Limit") in effect under Section 415(b)(1)(a) of
the Code ($102,582 in 1990, adjusted in subsequent years as
determined in accordance with regulations prescribed by the
Secretary of the Treasury or his delegate pursuant to the provisions
of Section 415(d) of the Code); provided that no more than a total
of 50 individuals (or, if less, the greater of 3 individuals or 10%
of the Employees of the Company and Commonly Controlled Entities)
shall be treated as officers; and further provided that the
individuals excluded under Section 2.26(a)(3) shall also be excluded
under this Section 2.26(a)(4). If, for the Plan Year for which the
determination is being made and the preceding Plan Year, no officer
of the Company or Commonly Controlled Entity receives Compensation
greater than 50% of the applicable Dollar Limit, then the highest
paid officer of the Company or Commonly Controlled Entity shall be
treated as a Highly Compensated Employee for the Plan Year for which
the determination is being made.
(b) Any individual not described in subsection (2), (3) or (4) for
the preceding Plan Year shall not be treated as described in subsection
(2), (3), or (4) for the Plan Year unless such individual is a member of
the group consisting of the 100 Employees of the Company and Commonly
Controlled Entities who were paid the greatest Compensation during the
Plan Year for which such determination is being made.
(c) A former Employee shall be treated as a Highly Compensated
Employee if such individual was a Highly Compensated Employee at the time
of his Termination of Employment or at any time after attaining age 55.
The Committee may elect to apply Section 2.26(a)(3)(i), (ii), (iii) or
(iv) by substituting a shorter period of service, smaller number of hours or
months, or lower age for period of service, number of hours or months, or age
(as applicable) than that specified in such Sections.
-8-
EX-99.3-14
Solely for purposes of this Section, the Compensation of (1) any Highly
Compensated Employee in the group consisting of the ten (10) persons employed
by the Company or Commonly Controlled Entity paid the greatest Compensation
(without regard to this sentence), or (2) any Five Percent Owner of the Company
or Commonly Controlled Entity, shall include any Compensation paid to a Family
Member.
2.27 "HOUR OF SERVICE" means each hour for which an Employee is paid, or
entitled to payment, by an Employer or a Commonly Controlled Entity:
(a) for the performance of duties;
(b) on account of a period of time during which no duties were
performed; provided that, no more than 1,000 Hours of Service shall be
credited for any single continuous period during which an Employee
performs no duty, and provided that Hours of Service shall not be credited
for payments made or due under a plan maintained solely for the purpose of
complying with applicable worker's compensation, unemployment compensation
or disability insurance laws, or for reimbursement of medical expenses;
and
(c) for which back pay, irrespective of mitigation of damages, is
awarded or agreed to by the Employer; provided that the same Hours of
Service have not already been credited under (a) or (b) above.
For Employees who are paid on other than an hourly basis, Hours of Service
shall be credited for each payroll period of the Employee for which the
Employee
receives or is entitled to receive compensation according to the following
chart:
Payroll Period Hours of Service Credited
-------------- -------------------------
(1) Daily 10
(2) Weekly 45
(3) Bi-Monthly 95
(4) Monthly 190
To the extent not credited above, for periods of Authorized Leave of
Absence, an Employee shall be credited with the number of hours for which he
would have been regularly scheduled for such periods if he had not been on such
Authorized Leave of Absence.
To the extent not credited above, solely for purposes of avoiding a One
Year Break in Service, for periods of absence from work on account of Parental
Leave, an Employee shall be credited, but not in excess of the number of Hours
of Service required to
-9-
EX-99.3-15
bring the total of Hours of Service for the Eligibility Computation Period or
Plan Year, as applicable, to 501, with
(1) the Hours of Service which normally would have been credited to
such individual but for the Parental Leave or
(2) 8 Hours of Service per day of such absence if the Plan is
unable to determine the Hours of Service which would have been credited to
such individual but for the Parental Leave.
An Employee's Hours of Service for absence on account of Parental Leave
shall be credited to the Eligibility Computation Period or Plan Year, as
applicable, in which absence because of a Parental Leave commenced, except that
if such Hours of Service are not needed to prevent a One Year Break in Service
in the Eligibility Computation Period or Plan Year, as applicable, in which the
absence because of Parental Leave commenced and if such Parental Leave
continues into a subsequent Eligibility Computation Period or Plan Year, as
applicable, the Hours of Service shall be credited to the subsequent
Eligibility Computation Period or Plan Year, as applicable.
The determination of Hours of Service for reasons other than the
performance of duties shall be determined in accordance with the provisions of
Labor Department Regulations Section 2530.200b-2(b), and Hours of Service shall
be credited to computation periods in accordance with the provisions of Labor
Department Regulations Section 2530.200b-2(c).
2.28 "INVESTMENT FUND" means any of the funds designated from time to
time by the Committee pursuant to Section 7.7 for the investment of Trust Fund
assets.
2.29 "NON-HIGHLY COMPENSATED EMPLOYEE" means an Employee who is neither
a Highly Compensated Employee nor a Family Member.
2.30 "NORMAL RETIREMENT DATE" means the date on which a Participant
attains age 65.
2.31 "ONE YEAR BREAK IN SERVICE" means (a) for purposes of determining
Years of Eligibility Service, an Eligibility Computation Period during which
the Employee is not credited with at least 501 Hours of Service; and (b) for
purposes of determining Years of Vesting Service, a Plan Year during which a
Participant is credited with less than 501 Hours of Service.
2.32 "PARENTAL LEAVE" means a period of time during which an Employee is
absent from work: (a) by reason of the pregnancy of the Employee, (b) by
reason of the birth of a child of the Employee, (c) by reason of the placement
of a child with the Employee in connection with the adoption of such child by
such
-10-
EX-99.3-16
Employee, or (d) for purposes of caring for such child for a period beginning
immediately following such birth or placement. An absence from work shall not
be a Parental Leave unless the Employee furnishes the Committee such timely
information as may reasonably be required to establish that the absence from
work was for one of the reasons specified in this Section 2.33 and the number
of days for which there was such an absence. Nothing contained herein shall be
construed to establish an Employer policy of treating a Parental Leave as an
Authorized Leave of Absence.
2.33 "PARTICIPANT" means an Eligible Employee participating in the Plan
as provided in Article III.
2.34 "PLAN" means the Checker Employees' 401(k) Retirement Benefit Plan,
as set forth herein and as from time to time amended.
2.35 "PLAN ADMINISTRATOR" means the person, persons or group appointed
to act as Plan Administrator under Section 9.11, and in the absence of such
appointment, the Committee.
2.36 "PLAN YEAR" means the calendar year.
2.37 "RELATED PLAN" means any other defined contribution plan or a
defined benefit plan (as defined in Section 415(k) of the Code) maintained by
an Employer or a Commonly Controlled Entity, respectively called a "Related
Defined Contribution Plan" and a "Related Defined Benefit Plan."
2.38 "REQUIRED BEGINNING DATE" means April 1 of the calendar year
following:
(a) for a Participant to whom Section 2.38(b) does not apply, the
calendar year in which the Participant reaches age 70-1/2, and
(b) for a Participant who reached age 70-1/2 prior to January 1,
1988 and who is not a Five Percent Owner of the Employer (as defined in
Section 2.26(e)) at any time during the calendar year in which he reached
age 70-1/2 or any of the four (4) prior Plan Years, the calendar year in
which he has a Termination of Employment, provided that if any such
Participant becomes a Five Percent Owner during any Plan Year after he
reaches age 70-1/2, the "REQUIRED BEGINNING DATE" for such Participant
shall be the April 1 of the calendar year following the calendar year in
which such Plan Year ends.
2.39 "ROLLOVER CONTRIBUTION" shall mean a rollover contribution as
described in Code Section 402(a)(5) [CODE SECTION
-11-
EX-99.3-17
402(c), EFFECTIVE JANUARY 1, 1993], Code Section 403(a)(4), or Code Section
408(d)(3).
2.40 "TERMINATION OF EMPLOYMENT" means (a) a resignation by an Employee
for any reason, (b) a dismissal or layoff of an Employee for any reason, (c)
death or retirement, (d) a failure to return to work without reasonable cause,
as determined by the Employer, after the conclusion of an Authorized Leave of
Absence or (e) any other termination of employment. The transfer of an
Employee from employment by an Employer or a Commonly Controlled Entity to
employment by another Employer or a Commonly Controlled Entity shall not be a
Termination of Employment.
2.41 "TRUST" means the trust established and maintained for the purposes
of the Plan, which is administered by the Trustee in accordance with the
provisions of the Trust Agreement.
2.42 "TRUST AGREEMENT" means the agreement between the Company and the
Trustee establishing the Checker Employees' 401(k) Retirement Benefit Trust,
and any amendments thereto.
2.43 "TRUST FUND" means all property, real or personal, received or held
by the Trustee plus all income and gains and minus all losses, expenses, and
distributions chargeable thereto.
2.44 "TRUSTEE" means any corporation, individual or individuals who
shall accept the appointment as trustee to execute the duties of the Trustee,
as specifically set forth in the Trust Agreement.
2.45 "VALUATION DATE" means the last business day of the Plan Year and
such additional dates as the Committee shall deem appropriate.
2.46 "YEAR OF ELIGIBILITY SERVICE" means an Eligibility Computation
Period during which an Employee is credited with at least 1,000 Hours of
Service.
2.47 "YEAR OF VESTING SERVICE" means
(a) Except as otherwise provided below, each calendar year during
which an Employee is credited with at least 1,000 Hours of Service.
(b) Except as otherwise provided below, an Employee's years and
fractions of years of service in the armed forces of the United States, if
he retains employment rights with the Employer or a Commonly Controlled
Entity under the laws of the United State and if he resumes employment
with the Employer or a Commonly Controlled Entity following the expiration
of such military service but only to the extent required by law to be
recognized by this Plan.
-12-
EX-99.3-18
(c) With respect to an Employee who, immediately prior to December
31, 1989, was employed by International Controls Corp. and who became an
Employee on January 11, 1989, for periods prior to January 11, 1989, a
number of Years of Vesting Service equal to his full years of service
credited for vesting purposes under the Retirement Plan for Great Dane
Trailers, Inc. as of January 11, 1989.
(d) With respect to any other Employee whose service prior to 1990
was determined on the basis of elapsed time, the number of full years of
service credited to the employee prior to 1990; provided that for periods
prior to January 1, 1986, a Participant who was a participant in the
Checker Taxi Company, Inc. Pension Plan for Salaried Employees or the
Calumet Insurance Company Salaried Pension Plan (collectively, the "Merged
Plans") on December 31, 1985 shall not be credited with Years of Vesting
Service as provided above, but shall be credited with his years of vesting
service credited under the Merged Plans as of December 31, 1985.
Notwithstanding the foregoing, in determining a Participant's Years of
Vesting Service, the following shall be excluded:
(e) If a Participant who has no vested interest in any Employer
Contributions incurs five (5) or more consecutive One Year Breaks in
Service, Years of Vesting Service accrued prior to such consecutive One
Year Breaks in Service shall be excluded;
(f) If a Participant has a One Year Break in Service, the
Participant's Vesting Service prior to the One Year Break in Service shall
be excluded until the Participant has completed one year of Vesting
Service after the One Year Break in Service;
(g) If a Participant has a Termination of Employment and receives a
distribution of less than 100% of his Accrued Benefit, then, upon his
reemployment, the Vesting Service with which he was credited for the
period prior to such Termination of Employment shall be excluded unless
the Participant repays such distribution in accordance with Section
8.5(d);
(h) Years of Vesting Service accrued prior to attainment of age 18
shall be excluded.
-13-
EX-99.3-19
ARTICLE III
PARTICIPATION
3.1 PARTICIPATION. Each Eligible Employee shall become a Participant on
the first Entry Date coinciding with or next following the date on which he
completes one (1) Year of Eligibility Service and attains age twenty-one (21).
Each Participant shall continue to be a Participant until the later of his
Termination of Employment or the date his entire vested Accrued Benefit is
distributed from the Plan.
Admission to participation in the Plan shall only be made when an Eligible
Employee is not on an Authorized Leave of Absence or serving with the Armed
Forces of the United States.
3.2 CERTIFICATION OF PARTICIPATION AND COMPENSATION TO COMMITTEE. Each
Employer shall certify to the Committee, within a reasonable time after each
Entry Date, the names of all new Participants. Each Employer, within a
reasonable time after the last day of each Plan Year, shall certify to the
Committee each Participant's Compensation during such Plan Year and such other
information as the Committee may request.
3.3 PARTICIPATION UPON CHANGE OF JOB STATUS. An Employee who has
satisfied the age and service requirements of Section 3.1, but who is not a
Participant because he is not an Eligible Employee, shall become a Participant
on the Entry Date coincident with or next following his becoming an Eligible
Employee, but not earlier than the date he would have become a Participant had
he been an Eligible Employee at all times, provided that such Eligible
Employee's 401(k) Election shall not become effective prior to the first day of
the payroll period coinciding with or next following the date on which he
becomes a Participant.
3.4 PARTICIPATION UPON REEMPLOYMENT. An Employee who has a Termination
of Employment and thereafter becomes an Eligible Employee shall become a
Participant immediately upon becoming an Eligible Employee; provided, however,
that in the case of an Employee who was not a Participant immediately before
such Termination of Employment the Employee shall not become a Participant
earlier than the date he would have become a Participant had he been an
Eligible Employee at all times, and further provided that such Eligible
Employee's 401(k) Election shall not become effective prior to the first day of
the payroll period coinciding with or next following the date on which he
becomes a Participant.
-14-
EX-99.3-20
ARTICLE IV
CONTRIBUTIONS
4.1 401(k) CONTRIBUTIONS.
(a) 401(k) CONTRIBUTIONS. Each Active Participant shall,
commencing as of the first day of the payroll period coinciding with or
next following the date on which he becomes a Participant, have his
Compensation reduced for each Plan Year by the amount (if any) specified
in his 401(k) Election made in accordance with this Section 4.1(a) and
Section 4.5. Each Employer shall contribute to the Trust, as a 401(k)
Contribution on behalf of each Active Participant employed by the
Employer, the amount by which such Participant's Compensation has been
reduced under such Participant's 401(k) Election. For each Plan Year
[COMMENCINIG PRIOR TO JANUARY 1, 1991], the 401(k) Election, if any, of a
Participant shall equal a minimum of one percent (1%) up to a maximum of
six percent (6%) of his Compensation, except that, for the Plan Year
commencing January 1, 1990, a Participant making a 401(k) Election on or
before March 30, 1990 shall have his Compensation reduced commencing with
Compensation paid on or after April 1, 1990, and the 401(k) Election, if
any, of the Participant shall equal a minimum of one and one third percent
(1-1/3%) up to a maximum of eight percent (8%) of his Compensation paid on
or after April 1, 1990. For each Plan Year [COMMENCING ON OR AFTER
JANUARY 1, 1991], the 401(k) Election, if any, of a Participant shall
equal a minimum of one percent (1%) up to a maximum of ten percent (10%)
(or such greater or lesser percentage as teh Committee may from time to
time determine) of his Compensation. A Participant's 401(k) Election, if
any, shall be made by written authorization in increments of 1% (for Plan
Years beginning on or after January 1, 1991), in accordance with such
rules as the Committee, in its discretion, shall from time to time
specify; provided that 401(k) Contributions for any calendar year or Plan
Year shall be subject to Section 5.2 and shall not exceed an amount which
may from time to time be established by the Committee or a pro rata
portion of said amount for any partial Plan Year or calendar year of
contributions.
(b) DEADLINE FOR 401(k) CONTRIBUTIONS. Each Employer shall
contribute the 401(k) Contributions for each Plan Year to the Trustee as
soon as reasonably possible after the Participant's Compensation has been
reduced for each pay period at such time as the Committee shall from time
to time determine, but not later than twelve (12) months after the last
day of the Plan Year to which such 401(k) Contribution relates or, with
the approval of the Committee, by such later
-15-
EX-99.3-21
date as may be permitted under applicable law, Treasury Regulations and
Rulings of the Internal Revenue Service.
4.2 MATCHING CONTRIBUTIONS.
(a) MATCHING CONTRIBUTIONS. For each Plan Year, each Employer
shall contribute on behalf of each Active Participant employed by the
Employer a Matching Contribution in an amount equal to twenty-five percent
(25%) (or such lesser or greater percentage as the Board may determine) of
that portion of such Active Participant's 401(k) Contribution made
pursuant to Section 4.1 which does not exceed four percent (4%) of such
Active Participant's Compensation. Notwithstanding the foregoing, for the
Plan Year beginning January 1, 1990 the amount of the Matching
Contribution shall be equal to twenty-five percent (25%) (or such lesser
or greater percentage as the Board may determine) of that portion of such
Active Participant's 401(k) Contribution made pursuant to Section 4.1
which does not exceed five and one-third percent (5-1/3%) of such Active
Participant's Compensation paid on or after April 1, 1990.
(b) DEADLINE FOR CONTRIBUTIONS. Matching Contributions for each
Plan Year shall be delivered to the Trustee as soon as reasonably possible
after the end of the Plan Year on or before such date as the Committee
shall specify, but not later than the due date for the filing of the
federal income tax return (including any extensions) of the Employer for
the tax year during which the last day of such Plan Year occurs.
4.3 SPECIAL EMPLOYER CONTRIBUTIONS.
(a) SPECIAL EMPLOYER CONTRIBUTIONS. For each Plan Year, the
Company may, on or before the due date (including extensions) for filing
the Company's federal income tax return for the tax year during which the
last day of such Plan Year occurs, elect to have the Company and the other
Employers make Special Employer Contributions to the Trust in such amounts
(if any) as the Company may determine. In any Plan Year in which the
Company elects to have such Special Employer Contributions made, each
Employer shall contribute a fractional portion of the Special Employer
Contribution in an amount equal to the total Special Employer Contribution
multiplied by a fraction, (a) in the case of a Special Employer
Contribution made for purposes of Section 5.3(b), the numerator of which
is the 401(k) Contributions made for all Active Participants of the
Employer who are Non-highly Compensated Employees for the Plan Year, and
the denominator of which is the total of all 401(k) Contributions for the
Plan Year made for Active Participants who are Non-highly Compensated
Employees, and (b) in the case of a Special Employer Contribution made for
purposes of Section 5.4(b),
-16-
EX-99.3-22
the numerator of which is the Matching Contribution made for all Active
Participants of the Employer who are Non-highly Compensated Employees for
the Plan Year, and the denominator of which is the total of all Matching
Contributions for the Plan Year made for Active Participants who are
Non-highly Compensated Employees.
(b) DEADLINE FOR SPECIAL EMPLOYER CONTRIBUTIONS. Special
Employer Contributions for each Plan Year shall be delivered to the
Trustee on or before such date as the Committee shall specify, but not
later than the due date for the filing of the federal income tax return
(including extensions) of the Employer for the tax year during which the
last day of such Plan Year occurs.
4.4 PROFIT SHARING CONTRIBUTIONS.
(a) PROFIT SHARING CONTRIBUTIONS. For each Plan Year the Company shall
contribute to the Trust for Active Participants who are Employees of the
Company as Profit Sharing Contributions such amount, if any, as may be
determined by the Board of Directors, but in no event shall the Company
contribute an amount for any Plan Year greater than the maximum amount
deductible from income by the Company under the provisions of the Code.
(b) OTHER PROFIT SHARING CONTRIBUTIONS. Each other Employer shall
contribute to the Trust for each Plan Year for each Active Participant who is
an Employee of that Employer as Profit Sharing Contributions an amount which is
equal to the product of (1) the total Compensation for the Plan Year paid to
Active Participants by such Employer, multiplied by (2) a fraction, the
numerator of which is the Company's Profit Sharing Contribution for the Plan
Year and the denominator of which is the total Compensation for the Plan Year
paid to Active Participants by the Company.
(c) DEADLINE FOR PROFIT SHARING CONTRIBUTIONS. The Profit Sharing
Contributions for each Plan Year shall be delivered to the Trustee on or before
the due date (including extensions thereof) for the filing of the federal
income tax return of the Employer for the tax year within which or during which
the last day of such Plan Year occurs. If the Employer makes Profit Sharing
Contributions to the Plan for a Plan Year prior to the end of a Plan Year, the
contributions shall be held in a separate suspense account until allocated
pursuant to Section 5.1.
4.5 401(k) ELECTIONS. [EFFECTIVE PRIOR TO JULY 1, 1994] A
Participant may make, change or revoke a 401(k) Election by filing with the
Committee written notice of such election, change or revocation on such form
and in such manner as the Committee may prescribe, provided that a 401(k)
Election or a change or revocation shall apply solely to Compensation not yet
payable as of the date of such election, change or revocation. A 401(k)
-17-
EX-99.3-23
Election or change in a Participant's 401(k) Election shall be made as of
January 1 or July 1 of any Plan Year ("Election Date"), and shall be effective
on the first day of the payroll period which commences following such Election
Date, except that the initial 401(k) Election of persons becoming eligible to
participate in the Plan on April 1, 1990 shall be effective as provided in
Section 4.1(a). A revocation of a Participant's 401(k) Election may be made at
any time and shall be effective on the first day of the payroll period which
commences after such revocation is filed or at such later date as the
Participant shall specify. Thereafter a new 401(k) Election may not be made
until the next Election Date. The 401(k) Election by the Participant shall
continue in effect, notwithstanding any change in Compensation, until such
Participant shall change or revoke such 401(k) Election or until he shall cease
to be an Active Participant.
[EFFECTIVE AFTER JUNE 30, 1994] A Participant may make, change or revoke
a 401(k) Election by filing with the Committee written notice of such election,
change or revocation on such form and in such manner as the Committee may
prescribe, provided that a 401(k) Election or a change or revocation shall
apply solely to Compensation not yet payable as of the date of such election,
change or revocation. A 401(k) Election or change in a Participant's 401(k)
Election may be made as of the first day of any calendar quarter ("Election
Date"), and shall be effective on the first day of the payroll period which
commences following such Election Date. A revocation of a Participant's 401(k)
Election may be made at any time and shall be effective on the first day of the
payroll period which commences after such revocation is filed or at such later
date as the Participant shall specify. Thereafter a new 401(k) Election may
not be made until the next Election Date. Except as provided in Section 4.1,
the 401(k) Election by the Participant shall continue in effect,
notwithstanding any change in Compensation, until such Participant shall change
or revoke such 401(k) Election or until he shall cease to be an Active
Participant.
4.6 PREVENTED CONTRIBUTIONS. Notwithstanding the provisions of Sections
4.1, 4.2, 4.3, and 4.4 no Employer shall make any contribution for any Plan
Year in excess of the maximum amount deductible from income by the Employer for
the Plan Year under the provisions of the Code.
4.7 ROLLOVER CONTRIBUTIONS. [THE FOLLOWING SENTENCE IS EFFECTIVE PRIOR
TO DECEMBER 15, 1994] Notwithstanding the provisions of Section 3.1, the
Committee may, at the request of an Eligible Employee, direct the Trustee to
accept a Rollover Contribution to the Plan for such Eligible Employee provided
the Committee reasonably anticipates he will meet the requirements of Section
3.1, to be held in the Rollover Contribution Account for such person,
regardless of whether he has fulfilled the
-18-
EX-99.3-24
requirements for participation under Section 3.1; provided, however, that if
any such Rollover Contribution includes property other than money, the
Committee may in its sole discretion refuse to accept such Rollover
Contribution or may condition its acceptance of such Rollover Contribution upon
such terms and conditions as the Committee in its sole discretion may deem
reasonable. [THE FOLLOWING SENTENCE IS EFFECTIVE AFTER DECEMBER 14, 1994]
Notwithstanding the provisions of Section 3.1, the Committee may, at the
request of an Eligible Employee, direct the Trustee to accept a cash Rollover
Contribution (including a direct rollover from another qualified plan) to the
Plan for such Eligible Employee provided the Committee reasonably anticipates
he will meet the requirements of Section 3.1, to be held in the Rollover
Contribution Account for such person, regardless of whether he has fulfilled
the requirements for participation under Section 3.1. Prior to the acceptance
of a Rollover Contribution, the Committee may require the submission of
evidence so that it may be reasonably satisfied that such Rollover Contribution
qualifies as a Rollover Contribution. If the Committee shall determine
subsequent to any Rollover Contribution that such contribution did not in fact
constitute a qualified Rollover Contribution, the amount of his Rollover
Contribution Account shall be returned to the Eligible Employee or Participant.
An Eligible Employee making a Rollover Contribution who is otherwise ineligible
to be a Participant shall be a Participant solely for the purpose of making and
withdrawing such contributions until he meets the other requirements for
participation in the Plan.
All Rollover Contributions are fully vested and nonforfeitable.
ARTICLE V
RESTRICTIONS AND LIMITATIONS ON CONTRIBUTIONS
5.1 ORDER OF APPLICATION OF THE RESTRICTIONS AND LIMITATIONS ON
CONTRIBUTIONS. Sections 5.2, 5.3, 5.4, 5.5, and 6.5 shall be applied in
sequential order to contributions under the Plan.
5.2 RESTRICTIONS ON 401(k) CONTRIBUTIONS. Notwithstanding the
provisions of Section 4.1, 401(k) Contributions for any Participant or group of
Participants shall not exceed either the maximum dollar amount permitted under
Section 402(g) of the Code as set forth in Sections 5.2(a) or 5.2(b) or the
amounts permitted under the non-discrimination rules of Section 401(k) of the
Code as set forth in Section 5.3 and in Section 5.5:
(a) DEFERRAL LIMITS. Notwithstanding anything in Sections 4.1,
4.2 or 4.5 to the contrary, (1) an Active Participant's 401(k)
Contributions under the Plan and his elective deferrals (as defined in
Section 402(g) of the Code)
-19-
EX-99.3-25
under any Related Plan for any taxable year shall not exceed $7,979 (in
1990, adjusted in subsequent years as determined in accordance with
regulations prescribed by the Secretary of Treasury or his delegate and
increased in accordance with the provisions of Sections 402(g)(4) and
402(g)(8) of the Code) with respect to any Participant who participates in
a plan described in Section 403(b) of the Code or who is a qualified
employee in a plan of a qualified organization (as defined in Code Section
402(g)(8)); and (2) the Committee may, in its discretion, limit the
periodic amount of 401(k) Contributions for Active Participants to a pro
rata portion of such annual limit with such rounding and other
administratively desirable provisions as it from time to time deems
appropriate.
(b) AGGREGATE DEFERRAL. [EFFECTIVE FOR PLAN YEARS COMMENCING
BEFORE JANUARY 1, 1994] If for any taxable year, the Participant notifies
the Committee in writing prior to March 1 (or such later date as the
Committee permits, but no later than April 15) of the succeeding taxable
year that the sum of (1) the Participant's 401(k) Contributions, (2) any
elective deferrals (as defined in Section 402(g) of the Code) under a
Related Plan, and (3) other elective deferrals (as defined in Section
402(g) of the Code) exceeds $7,979 (in 1990, adjusted in subsequent years
as determined in accordance with regulations prescribed by the Secretary
of Treasury or his delegate, and increased in accordance with the
provisions of Sections 402(g)(4) and 402(g)(8) of the Code as applicable),
then the Committee shall, not later than the April 15 following the
receipt of such notice, distribute to the Participant all or such portion
of the Participant's 401(k) Contributions for such taxable year as
requested in writing, but no more than the amount necessary to eliminate
the excess. Any income allocable to such excess amount, determined under
Section 5.2(c), shall also be distributed.
[EFFECTIVE FOR PLAN YEARS COMMENCING ON OR AFTER JANUARY 1, 1994]
If for any taxable year, the Participant notifies the Committee in writing
prior to March 1 (or such later date as the Committee permits, but no
later than April 15) of the succeeding taxable year that the sum of (1)
the Participant's 401(k) Contributions, (2) any elective deferrals (as
defined in Section 402(g) of the Code) under a Related Plan, and (3) other
elective deferrals (as defined in Section 402(g) of the Code) exceeds
$7,979 (in 1990, adjusted in subsequent years as determined in accordance
with regulations prescribed by the Secretary of Treasury or his delegate,
and increased in accordance with the provisions of Sections 402(g)(4) and
402(g)(8) of the Code as applicable), then the Committee shall, not later
than the April 15 following the receipt of such notice, distribute to the
Participant all or such portion of the Participant's 401(k) Contributions
(by first distributing unmatched Participant 401(k) Contributions and
-20-
EX-99.3-26
then matched Participant 401(k) Contributions) for such taxable year as
requested in writing, but no more than the amount necessary to eliminate
the excess. Any income allocable to such excess amount, determined under
Section 5.2(c), shall also be distributed. Any Matching Contributions
(including any net income allocable to such forfeited Matching
Contributions determined in accordance with Section 5.2(c)) made with
respect to such distributed Participant 401(k) Contributions shall be
forfeited and allocated in accordance with Section 6.2.
(c) ALLOCATION OF INCOME. [EFFECTIVE FOR PLAN YEARS COMMENCING
BEFORE JANUARY 1, 1994] Income equal to the sum of the amounts determined
under (1) and (2) below shall be allocated to and distributed with any
amounts distributed to a Participant as follows:
(1) INCOME FOR PLAN YEAR. Income for a completed Plan Year
shall equal the net income for the Plan Year allocable to a
Participant's 401(k) Account multiplied by a fraction, the numerator
of which is the amount of 401(k) Contributions so distributed and
the denominator of which is the balance of such Account as of the
last day of the Plan Year (prior to distribution of any 401(k)
Contribution for such taxable year and prior to allocation of
income, gains, losses and expenses thereto).
(2) INCOME FOR PERIOD BETWEEN END OF PLAN YEAR AND
Distribution. Income for the period between the end of a Plan Year
and the date of a distribution shall equal the product of the number
of months which has elapsed since the end of the preceding Plan Year
and the date of the distribution, multiplied by ten percent (10%),
multiplied by the income allocated to such distributed amounts under
subsection (1) above. For this purpose, a distribution made on or
before the 15th day of a month shall be deemed to be made on the
last day of the prior month, and a distribution made after the 15th
day of a month shall be deemed to be made on the first day of the
next month.
[EFFECTIVE FOR PLAN YEARS COMMENCING ON OR AFTER JANUARY 1, 1994]
Income equal to the sum of the amounts determined under (1) and (2) below
shall be allocated to and distributed (or forfeited, as applicable) with
any amounts distributed to a Participant or forfeited as follows:
(1) INCOME FOR TAXABLE YEAR. Income for a completed
taxable year shall equal the net income for the taxable year
allocable to a Participant's 401(k) Account (or Matching
Contribution Account, as
-21-
EX-99.3-27
applicable) multiplied by a fraction, the numerator of which is the
amount of 401(k) Contributions so distributed (or Matching
Contributions so forfeited) and the denominator of which is the
balance of such Account as of the last day of the taxable year
(prior to distribution of any 401(k) Contribution or forfeiture of
any Matching Contribution for such taxable year and prior to
allocation of income, gains, losses and expenses thereto).
(2) INCOME FOR PERIOD BETWEEN END OF TAXABLE YEAR AND
DISTRIBUTION. Income for the period between the end of a taxable
year and the date of a distribution or forfeiture shall equal the
product of the number of months which has elapsed since the end of
the preceding taxable year and the date of the distribution or
forfeiture, multiplied by ten percent (10%), multiplied by the
income allocated to such distributed or forfeited amounts under
subsection (1) above. For this purpose, a distribution or
forfeiture occurring on or before the 15th day of a month shall be
deemed to occur on the last day of the prior month, and a
distribution or forfeiture occurring after the 15th day of a month
shall be deemed to occur on the first day of the next month.
5.3 401(k) DISCRIMINATION LIMITS.
(a) LIMITS ON DEFERRAL PERCENTAGES. For any Plan Year, Section
401(k)(3) Contributions, as defined below, shall in all events be caused
to comply with the requirements of Section 401(k)(3) of the Code. The
requirements of Section 401(k)(3) of the Code are as follows:
(1) either the excess of the actual deferral percentage (as
defined below) for such Plan Year for Active Participants who are
Highly Compensated Employees over that of Active Participants who
are Non-highly Compensated Employees is not more than two (2)
percentage points, and the actual deferral percentage for such Plan
Year for Active Participants who are Highly Compensated Employees is
not more than the actual deferral percentage for such Plan Year of
Active Participants who are Non-highly Compensated Employees
multiplied by two (2), or
(2) the actual deferral percentage for such Plan Year for
the Active Participants who are Highly Compensated Employees is not
more than the actual deferral percentage for such Plan Year of
Active Participants who are Non-highly Compensated Employees
multiplied by 1.25.
-22-
EX-99.3-28
(b) SECTION 401(k)(3) CONTRIBUTIONS. "Section 401(k)(3)
Contributions" include 401(k) Contributions and, at the Committee's
election, all or any portion of the Special Employer Contributions, or the
matching contributions (as defined in Section 401(m)(4)(a)) and/or
qualified nonelective contributions (as defined in Section 401(m)(4)(c) of
the Code) made under any Related Plan to the extent permitted in
applicable regulations and to the extent the Committee separately accounts
therefor (including separate accounting for income, gains, losses,
withdrawals, and other credits or charges).
(c) ACTUAL DEFERRAL PERCENTAGE. The actual deferral percentage
for a specified group of Participants for a Plan Year shall be the average
of the ratios (calculated separately for each Active Participant in such
group) of the amount of Section 401(k)(3) Contributions actually made on
behalf of each such Active Participant for such Plan Year (excluding
excess deferrals of Non-highly Compensated Employees to the Plan or any
Related Plan) divided by the Active Participant's Compensation. Such
ratios and the actual deferral percentage for each group shall be
calculated to the nearest one-hundredth of one percent.
(d) LIMITS ON SECTION 401(k)(3) CONTRIBUTIONS. The Committee may
establish, from time to time, such rules, restrictions, and limitations as
it may deem appropriate to insure that Section 401(k)(3) Contributions
made to the Plan satisfy the requirements of Section 401(k)(3) of the Code
as set forth herein. If the Committee determines that it is necessary or
desirable, the Committee may reduce or completely disallow 401(k)
Contributions for Highly Compensated Employees, including 401(k)
Contributions already made to the Plan for that Plan Year.
Upon reduction or disallowance by the Committee, the amount by which
the 401(k) Contributions of Highly Compensated Employees exceed the
Committee's determination of allowable 401(k) Contributions for Highly
Compensated Employees for the Plan Year shall be reduced under the
following leveling method: the unmatched 401(k) Contributions and, if
necessary, the matched 401(k) Contributions with respect thereto of the
Highly Compensated Employee with the highest actual deferral percentage
shall be reduced to the extent necessary to enable the Plan to satisfy the
requirement of Section 401(k)(3) of the Code or to reduce such Highly
Compensated Employee's actual deferral percentage to equal that of the
Highly Compensated Employee with the next highest actual deferral
percentage. This process shall be repeated until the Plan satisfies the
requirements of Section 401(k)(3) of the Code. The Committee shall, after
the close of the Plan Year, and no later than 12 months
-23-
EX-99.3-29
following the close of the Plan Year in which the reduced 401(k)
Contributions were deferred, distribute the amount of such contributions,
including any income earned on such amounts (determined under Section
5.3(f)), to the Highly Compensated Employees on whose behalf such
contributions were made. [EFFECTIVE FOR PLAN YEARS COMMENCING ON OR AFTER
JANUARY 1, 1994] Any Matching Contributions (including any net income
allocable thereto determined in accordance with Section 5.3(f)) made with
respect to such distributed matched 401(k) Contributions shall be
forfeited and allocated in accordance with Section 6.2.
(e) AGGREGATION RULES. Notwithstanding the foregoing provisions
in this Section 5.3, if a Related Plan which contains a cash or deferred
arrangement and the Plan are treated as one plan for purposes of Section
401(a)(4) or 410(b) of the Code, such plans shall be treated as one
arrangement under this Section 5.3, and if a Highly Compensated Employee
is a participant under a cash or deferred arrangement under the Plan and a
Related Plan, such plans shall be treated as one arrangement for purposes
of determining the actual deferral percentage for such Participant.
For purposes of determining the actual deferral percentage of an
Active Participant who is a Five Percent Owner or an Employee who is a
Highly Compensated Employee in the group consisting of the top ten (10)
persons employed by the Company and all Commonly Controlled Entities who
are paid the greatest compensation, the Section 401(k)(3) Contributions
and Compensation of such Active Participant shall include the Section
401(k)(3) Contributions and Compensation of Family Members, and Family
Members shall be disregarded as Active Participants in determining the
actual deferral percentage both for Active Participants who are Highly
Compensated Employees and Active Participants who are Non-highly
Compensated Employees.
(f) ALLOCATION OF INCOME. Income equal to the sum of the amounts
determined under (1) and (2) below shall be allocated to and distributed
with any amounts distributed to a Participant as follows:
(1) INCOME FOR PLAN YEAR. Income for a completed Plan Year
shall equal the net income for the Plan Year allocable to each of a
Participant's respective Accounts to which his Section 401(k)(3)
Contributions for the Plan Year are allocated prior to distribution
of any excess contributions, multiplied by a fraction, the numerator
of which is the amount of 401(k) Contributions so distributed and
the denominator of which is the total of such Account balances as of
the last day of the Plan
-24-
EX-99.3-30
Year (prior to distribution of any excess contribution for such Plan
Year and prior to allocation of income, gains, losses and expenses
thereto).
(2) INCOME FOR PERIOD BETWEEN END OF PLAN YEAR AND
DISTRIBUTION. Income for the period between the end of the Plan
Year and the date of a distribution shall equal the product of the
number of months which has elapsed since the end of the preceding
Plan Year and the date of the distribution, multiplied by ten
percent (10%), multiplied by the income allocated to such
distributed amounts under subsection (1) above. For this purpose, a
distribution made on or before the 15th day of a month shall be
deemed to be made on the last day of the prior month, and a
distribution made after the 15th day of a month shall be deemed to
be made on the first day of the next month.
5.4 RESTRICTIONS ON MATCHING CONTRIBUTIONS.
(a) LIMITS ON CONTRIBUTION PERCENTAGES. For any Plan Year,
Section 401(m) Contributions, as defined below, shall in all events be
caused to comply with the requirements of Section 401(m) of the Code. The
requirements of Section 401(m) of the Code are as follows:
(1) either the excess of the average contribution percentage
(as defined below) for the Plan Year for the group of Active
Participants who are Highly Compensated Employees over that of all
Active Participants who are Non-highly Compensated Employees is not
more than two (2) percentage points, and the average contribution
percentage for the Plan Year for the group of Active Participants
who are Highly Compensated Employees is not more than the average
contribution percentage for the Plan Year of all Active Participants
who are Non-highly Compensated Employees multiplied by two (2), or
(2) the average contribution percentage for the Plan Year for
Active Participants who are Highly Compensated Employees is not more
than the average contribution percentage for the Plan Year of all
Active Participants who are Non-highly Compensated Employees
multiplied by 1.25.
(b) SECTION 401(m) CONTRIBUTIONS. "Section 401(m) Contributions"
include Matching Contributions and, at the Committee's election (to the
extent they are not treated as Section 401(k)(3) Contributions under
Section 5.3), (1) all or any portion of the Special Employer
Contributions, or the qualified nonelective contributions (as defined in
Section 401(m)(4)(c) of the Code) made under the Plan or any
-25-
EX-99.3-31
Related Plan and (2) all or any portion of the elective deferrals (as
defined in Section 402(g) of the Code) made under any Related Plan to the
extent permitted in applicable regulations and to the extent the Committee
separately accounts therefor (including separate accounting for income,
gains, losses, withdrawals, and other credits or charges).
(c) AVERAGE CONTRIBUTION PERCENTAGE. The average contribution
percentage for a specified group of Participants for a Plan Year shall be
the average of the ratios (calculated separately for each Active
Participant in such group) of the amount of Section 401(m) Contributions
actually paid over to the Plan on behalf of each Active Participant
divided by the Active Participant's Compensation. Such ratios and the
average contribution percentage for each group shall be calculated to the
nearest one-hundredth of one percent.
(d) LIMITS ON SECTION 401(m) CONTRIBUTIONS. The Committee may
establish, from time to time, such rules, restrictions and limitations as
it may deem appropriate to insure that Section 401(m) Contributions made
to the Plan satisfy the requirements of Section 401(m) of the Code set
forth herein. If the Committee determines that it is necessary or
desirable, the Committee may reduce or disallow Matching Contributions or
401(k) Contributions for Highly Compensated Employees, including Matching
Contributions or 401(k) Contributions already made for that Plan Year.
Upon reduction or disallowance by the Committee, the amount by which
the 401(k) Contributions or Matching Contributions of Highly Compensated
Employees exceed the Committee's determination of allowable 401(k)
Contributions or Matching Contributions for Highly Compensated Employees
for the Plan Year shall be reduced under the following leveling method:
the Matching Contributions and, if necessary, the matched 401(k)
Contributions with respect thereto and the unmatched 401(k) Contributions
of the Highly Compensated Employee with the highest average contribution
percentage shall be reduced to the extent necessary to enable the Plan to
satisfy the requirement of Section 401(m) of the Code or to reduce such
Highly Compensated Employee's average contribution percentage to equal
that of the Highly Compensated Employee with the next highest average
contribution percentage. This process shall be repeated until the Plan
satisfies the requirements of Section 401(m) of the Code. The Committee
shall, after the close of the Plan Year, and no later than 12 months
following the close of the Plan Year in which the reduced 401(k)
Contributions were deferred or the reduced Matching Contributions arose,
distribute the amount of such contributions to the extent such
contributions are vested, including any income earned on
-26-
EX-99.3-32
such amounts (determined under Section 5.4(f)), to the Highly Compensated
Employees on whose behalf such contributions were made. Any unvested
Matching Contributions which are reduced under this Section 5.4(d) shall
be forfeited as of the last day of the Plan Year in which such unvested
reduced Matching Contributions arose.
(e) AGGREGATION. Notwithstanding any provision in this Section
5.4 to the contrary, if a Related Plan to which matching contributions and
employee contributions are made and the Plan are treated as one plan for
purposes of Code Section 401(a)(4) or Code Section 410(b), such plans
shall be treated as one arrangement under this Section, and if a Highly
Compensated Employee is a participant under any Related Plan to which
matching contributions and employee contributions are made, such plan and
the Plan shall be treated as one arrangement for purposes of determining
the average contribution percentage of such Highly Compensated Employee.
For purposes of determining the average contribution percentage of
an Active Participant who is a Five Percent Owner or an Employee who is a
Highly Compensated Employee in the group consisting of the top ten (10)
persons employed by the Company and all Commonly Controlled Entities who
are paid the greatest compensation, the Section 401(m) Contributions and
Compensation of such Active Participant shall include the Section 401(m)
Contributions and Compensation of Family Members, and Family Members shall
be disregarded as Active Participants in determining the average
contribution percentage both for Active Participants who are Highly
Compensated Employees and Active Participants who are Non-highly
Compensated Employees.
(f) ALLOCATION OF INCOME. Income equal to the sum of the amounts
determined under (1) and (2) below shall be allocated to and distributed
with any amounts distributed to a Participant as follows:
(1) INCOME FOR PLAN YEAR. Income for a completed Plan Year
shall equal the net income for the Plan Year allocable to each of a
Participant's respective Accounts to which his Section 401(m)
Contributions for the Plan Year are allocated prior to distribution
of any excess contributions, multiplied by a fraction, the numerator
of which is the amount of 401(k) Contributions and Matching
Contributions so distributed and the denominator of which is the
total of such Account balances as of the last day of the Plan Year
(prior to distribution of any excess contribution for such Plan Year
and prior to allocation of income, gains, losses and expenses
thereto).
-27-
EX-99.3-33
(2) INCOME FOR PERIOD BETWEEN END OF PLAN YEAR AND
DISTRIBUTION. Income for the period between the end of a Plan Year
and the date of a distribution shall equal the product of the number
of months which has elapsed since the end of the preceding Plan Year
and the date of the distribution, multiplied by ten percent (10%),
multiplied by the income allocated to such distributed amounts under
subsection (1) above. For this purpose, a distribution made on or
before the 15th day of a month shall be deemed to be made on the
last day of the prior month, and a distribution made after the 15th
day of a month shall be deemed to be made on the first day of the
next month.
5.5 MULTIPLE USE OF SECTION 5.3 AND SECTION 5.4. Notwithstanding
Section 5.3 and Section 5.4, the sum of the actual deferral percentages and the
average contribution percentages, for a Plan Year, of the Highly Compensated
Employees who are Active Participants shall not exceed the greater of (i) the
sum of (a) plus (b) or (ii) the sum of (c) plus (d) where:
(a) is one hundred and twenty-five percent (125%) of the greater of
(1) the actual deferral percentages for such Plan Year of the Non-highly
Compensated Employees who are Active Participants, or (2) the average
contribution percentage for such Plan Year of such Non-highly Compensated
Employees;
(b) is two (2) plus the lesser of the amount determined under
Section 5.5(a)(1) or the amount determined under Section 5.5(a)(2), but in
no event shall this amount exceed two hundred percent (200%) of the lesser
of the amount determined under Section 5.5(a)(1) or the amount determined
under Section 5.5(a)(2);
(c) is one hundred and twenty-five percent (125%) of the lesser of
the amount determined under Section 5.5(a)(1) or the amount determined
under Section 5.5(a)(2); and
(d) is two (2) plus the greater of the amount determined under
Section 5.5(a)(1) or the amount determined under Section 5.5(a)(2), but in
no event shall this amount exceed two hundred percent (200%) of the
greater of the amount determined under Section 5.5(a)(1) or the amount
determined under Section 5.5(a)(2).
The Committee may establish, from time to time, such rules, restrictions and
limitations as it may deem appropriate to insure that the above limitations are
met. If the Committee determines that the reduction or disallowance of 401(k)
Contributions or Matching Contributions is necessary or desirable with respect
to Highly Compensated Employees, the Committee may reduce or disallow 401(k)
Contributions or Matching Contributions for such
-28-
EX-99.3-34
Highly Compensated Employees, including 401(k) Contributions or Matching
Contributions already made for that Plan Year, as provided in Section 5.3(d)
and (f) or Section 5.4(d) and (f).
ARTICLE VI
ALLOCATIONS OF CONTRIBUTIONS
6.1 401(k) CONTRIBUTIONS. All 401(k) Contributions shall be allocated
as soon as practicable to the 401(k) Account of the Active Participant on whose
behalf they were made.
6.2 MATCHING CONTRIBUTIONS AND FORFEITURES. [EFFECTIVE FOR PLAN YEARS
COMMENCING BEFORE JANUARY 1, 1994] As of the last day of the Plan Year, (a)
Matching Contributions shall be allocated to the Matching Contribution Account
of each Active Participant on whose behalf they were made, and (b) Forfeitures
allocable under this Section 6.2 shall be allocated to the Matching
Contribution Account of each Active Participant in an amount determined by
multiplying the amount of such Forfeitures by a fraction, the numerator of
which is the amount of Matching Contributions allocated to such Active
Participant's Account for the Plan Year, and the denominator of which is the
amount of Matching Contributions allocated to all Active Participants' Accounts
for the Plan Year.
[EFFECTIVE FOR PLAN YEARS COMMENCING ON AFTER JANUARY 1, 1994] As of the
last day of the Plan Year, (a) Matching Contributions shall be allocated to the
Matching Contribution Account of each Active Participant on whose behalf they
were made, and (b) Forfeitures allocable under this Section 6.2 shall be
allocated to the Matching Contribution Account of each Active Participant in an
amount determined by multiplying the amount of such Forfeitures by a fraction,
the numerator of which is the amount of Matching Contributions allocated to
such Active Participant's Account for the Plan Year, and the denominator of
which is the amount of Matching Contributions allocated to all Active
Participants' Accounts for the Plan Year; provided, however, that Forfeitures
arising under the provisions of Section 5.3 shall be allocated to the Matching
Contribution Account of each Active Participant who is a Non-highly Compensated
Employee in an amount determined by multiplying the amount of the Forfeitures
arising under Section 5.3 by a fraction, the numerator of which is the amount
of Matching Contributions allocated to such Active Participant's Account for
the Plan Year, and the denominator of which is the amount of Matching
Contributions allocated to the Accounts of all Active Participants who are
Non-highly Compensated Employees for the Plan Year.
-29-
EX-99.3-35
6.3 SPECIAL EMPLOYER CONTRIBUTIONS. As of the last day of the Plan
Year, (a) all Special Employer Contributions for the Plan Year made in
accordance with Sections 4.3 and 5.3(b) shall be allocated to the 401(k)
Account of each Active Participant who is a Non-highly Compensated Employee in
an amount equal to the Special Employer Contributions multiplied by a fraction,
the numerator of which is such Active Participant's 401(k) Contributions for
the Plan Year, and the denominator of which is the total of all 401(k)
Contributions for the Plan Year made for Active Participants who are Non-highly
Compensated Employees, and (b) all Special Employer Contributions for the Plan
Year made in accordance with Sections 4.3 and 5.4(b) shall be allocated to the
Matching Contribution Account of each Active Participant who is a Non-highly
Compensated Employee in an amount equal to the Special Employer Contributions
multiplied by a fraction, the numerator of which is such Active Participant's
Matching Contribution for the Plan Year, and the denominator of which is the
total of all Matching Contributions for the Plan Year made by Active
Participants who are Non-highly Compensated Employees.
6.4 PROFIT SHARING CONTRIBUTIONS. As of the last day of the Plan Year,
Profit Sharing Contributions shall be allocated to the Profit Sharing
Contribution Account of each Active Participant in an amount equal to the
product of the aggregate amount of the Profit Sharing Contributions multiplied
by a fraction, the numerator of which is the Active Participant's Compensation
and the denominator of which is the Compensation of all Active Participants.
6.5 LIMITATIONS ON CONTRIBUTIONS.
(a) LIMITATIONS ON CONTRIBUTIONS. Any of the provisions herein
to the contrary notwithstanding, a Participant's Annual Additions (as
defined in Section 6.5(b)(1) below) for any Plan Year shall not exceed his
Maximum Annual Additions (as defined in Section 6.5(b)(2) below) for the
Plan Year. If a Participant's Annual Additions exceed his Maximum Annual
Additions, the Participant's Annual Additions for the Plan Year shall be
reduced according to Section 6.5(c) by the amount necessary to eliminate
such excess (the "Annual Excess").
(b) DEFINITIONS.
(1) "ANNUAL ADDITIONS" of a Participant for a Plan Year
means the sum of the following:
(A) Profit Sharing Contributions for the Plan Year
allocated to his Profit Sharing Contribution Account,
-30-
EX-99.3-36
(B) Matching Contributions and Forfeitures for the
Plan Year allocated to his Matching Contribution Account,
(C) Minimum Employer Contributions for the Plan Year
allocated to his Profit Sharing Contribution Account,
(D) 401(k) Contributions for the Plan Year allocated
to his 401(k) Account,
(E) Special Employer Contributions for the Plan Year
allocated to his 401(k) Account and to his Matching
Contribution Account,
(F) all employer contributions, non-deductible
employee contributions and forfeitures allocated to such
Participant's accounts under any Related Defined Contribution
Plan for the Plan Year of the Related Defined Contribution
Plan ending with or within the Plan Year, and
(G) solely for purposes of the limit described in
Section 6.5(b)(2)(B), contributions allocated to any
individual medical account established for the Participant,
which is part of a Related Defined Benefit Plan, as provided
in Code Section 415(1) and any amount attributable to
post-retirement medical benefits allocated to an account,
established under Code Section 419A(d)(1) for the Participant.
Rollover Contributions to the Plan shall not be included as a part
of a Participant's Annual Additions. Employer Contributions distributed
pursuant to Sections 5.2(b), 5.3(d), and 5.4(d) in any Plan Year shall be
included as a part of a Participant's Annual Additions. Any income on
Profit Sharing Contributions held in a suspense account pursuant to
Section 6.5 shall not be included as part of the Participant's Annual
Additions.
(2) "MAXIMUM ANNUAL ADDITIONS" of a Participant for a Plan
Year means the lesser of (A) and (B) below:
(A) 25% of the Participant's Compensation or
(B) the greater of (i) $30,000 or (ii) one-fourth
(1/4) of the amount in effect under Section 415(b)(1)(A) of
the Code ($102,582 in 1990, adjusted in subsequent years as
determined in accordance with regulations prescribed by the
-31-
EX-99.3-37
Secretary of Treasury or his delegate pursuant to the
provisions of Section 415(d) of the Code).
(c) ELIMINATION OF ANNUAL EXCESS. If a Participant has an Annual
Excess for a Plan Year, such excess shall not be allocated to the
Participant's Accounts but shall be eliminated as follows:
(1) The Participant's 401(k) Contributions which are credited
to his 401(k) Account and which are not matched by the Employer
pursuant to Section 4.1 and his Special Employer Contributions
allocated to his 401(k) Account shall be reduced by first reducing
his Special Employer Contributions and thereafter his unmatched
401(k) Contributions to the extent necessary to eliminate the
remaining Annual Excess.
(2) If any Annual Excess remains, the Participant's 401(k)
Contributions which are matched by the Employer pursuant to Section
4.1, his Matching Contributions, and Special Employer Contributions
allocated to his Matching Contribution Account shall be reduced in
proportionate amounts to the extent necessary to eliminate the
remaining Annual Excess.
(3) If any Annual Excess remains, the Participant's Profit
Sharing Contributions and his Forfeitures made pursuant to Section
4.4 shall be reduced by first reducing his Forfeitures and
thereafter his Profit Sharing Contributions to the extent necessary
to eliminate the remaining Annual Excess.
Any 401(k) Contributions reduced or eliminated under this Section
6.5 shall be distributed to the Participant. Any allocations of Profit
Sharing Contributions, Matching Contributions, Special Employer
Contributions or Forfeitures reduced or eliminated under this Section 6.5
shall, subject to the limits of this Section 6.5, be reallocated to the
Accounts of the other Participants as of the last day of that Plan Year in
the same manner as such Profit Sharing Contributions, Matching
Contributions, Special Employer Contributions and Forfeitures were
initially allocated. Profit Sharing Contributions, Matching
Contributions, Special Employer Contributions and Forfeitures which
cannot, under the limits of this Section 6.5, be reallocated to the
Accounts of other Participants in the Plan Year shall be held, subject to
the limits of this Section 6.5, in a suspense account and reallocated in
the subsequent Plan Year prior to making any Employer Contributions in any
subsequent Plan Year. On Plan termination any amounts held in a suspense
account which, under the limits of this Section 6.5, cannot be reallocated
to Participants in the Plan Year of the
-32-
EX-99.3-38
termination shall be returned to the Employers in such proportions as
shall be determined by the Committee.
(d) If a Participant participates or has participated in any
Related Defined Benefit Plan, the sum of the Defined Benefit Plan Fraction
(as defined in Section 415(e)(2) of the Code) and the Defined Contribution
Plan Fraction (as defined in Section 415(e)(3) of the Code) for such
Participant shall not exceed 1.0 (called the "Combined Fraction"). If the
Combined Fraction of such Participant exceeds 1.0, the Participant's
Defined Benefit Plan Fraction shall be reduced (a) first, by limiting the
Participant's annual benefits payable from the Related Defined Benefit
Plan in which he participates to the extent provided therein and (b)
second, by reducing the Participant's Annual Additions to the extent
necessary to reduce the Combined Fraction of such Participant to 1.0.
(e) For purposes of this Section 6.5, the standard of control for
determining a Commonly Controlled Entity under Sections 414(b) and 414(c)
of the Code (and thus also Related Plans) shall be deemed to be "more than
50%" rather than "at least 80%".
ARTICLE VII
TRUSTEE AND TRUST FUND
7.1 TRUST AGREEMENT. The Company and the Trustee have entered into a
Trust Agreement which provides for the investment of the assets of the Plan and
administration of the Trust Fund. The Trust Agreement, as from time to time
amended, shall continue in force and shall be deemed to form a part of the
Plan, and any and all rights or benefits which may accrue to any person under
the Plan shall be subject to all the terms and provisions of the Trust
Agreement.
7.2 SELECTION OF TRUSTEE. The Board of Directors shall adopt the Trust
Agreement and thereby appoint the Trustee. Thereafter, the resignation or
removal of a Trustee, the appointment of a Trustee, and the approval of a
Trustee's accounts shall be accomplished in the manner provided in the Trust
Agreement.
7.3 TRUSTEE'S DUTIES. The powers, duties and responsibilities of the
Trustee shall be as stated in the Trust Agreement, and nothing contained in
this Plan either expressly or by implication shall be deemed to impose any
additional powers, duties or responsibilities upon the Trustee. All Employer
Contributions and Rollover Contributions shall be paid into the Trust, and all
benefits payable under the Plan shall be paid from
-33-
EX-99.3-39
the Trust. An Employer shall have no rights or claims of any nature in or to
the assets of the Trust Fund except the right to require the Trustee to hold,
use, apply and pay such assets held by the Trustee, in accordance with the
directions of the Committee, for the exclusive benefit of the Participants and
their Beneficiaries, except as otherwise provided in Sections 6.5 and 7.10.
7.4 TRUST EXPENSES. All clerical, legal and other expenses of the Plan
and the Trust and Trustee's fees, if any, shall be paid by the Trust except to
the extent paid by an Employer.
7.5 TRUST ENTITY. The Trust under this Plan from its inception shall be
a separate entity aside and apart from Employers or their assets. The Trust,
and the corpus and income thereof, shall in no event and in no manner
whatsoever
be subject to the rights or claims of any creditor of any Employer.
7.6 SEPARATE ACCOUNTS. The Committee, or the Trustee on the Committee's
behalf, shall create and maintain separate Accounts for each Participant as
described in Section 2.1 hereof. Every adjustment to a Participant's Accounts
shall be considered as having been made on the relevant Valuation Date
regardless of the date of actual entry or receipt by the Trustee of Employer
Contributions or Rollover Contributions for a Plan Year.
7.7 INVESTMENT FUNDS.
[PRIOR TO JULY 1, 1994, SECTION 7.7 READS AS FOLLOWS]
(a) The Committee may permit each Participant (or Beneficiary) to
elect, at such times, on such forms and in accordance with such rules and
procedures as the Committee may establish, to have his Accounts invested
in such Investment Funds (including but not limited to mutual funds or
annuity contracts) providing for investment in accordance with the
direction of individual Participants for whose account such Investment
Funds are maintained as the Committee shall from time to time establish,
subject to such conditions and limitations as it shall impose.
(b) PARTICIPANT ELECTIONS. If the Committee, in its discretion,
permits Participants to direct the investment of their Accounts, a
Participant's (or Beneficiary's) investment election (if any) or change of
election shall be made not less than 30 days prior to any December 31 or
such other times as Committee may permit and shall be effective as of the
following January 1 or as soon thereafter as reasonably practicable,
provided that the Committee, in its discretion, may permit elections to be
made or to become effective at any additional times as it may designate.
A Participant's (or Beneficiary's) investment election shall remain
effective
-34-
EX-99.3-40
until such time as the Participant (or Beneficiary) files a new investment
election and it becomes effective. The investment election of a deceased
Participant shall remain effective until such time as his Beneficiary
files a new investment election and it becomes effective. If a
Participant (or Beneficiary) fails to make an investment election at such
times as the Committee may provide, his Accounts shall be invested in the
Investment Fund deemed by Committee to provide greatest safety of
principal.
(c) If the Committee, in its discretion, does not permit
Participants to direct the investment of their Accounts, the assets of the
Plan shall be invested in a commingled Investment Fund.
[AFTER JUNE 30, 1994, SECTION 7.7 READS AS FOLLOWS]
(a) The Committee shall designate the Investment Funds in which a
Participant's Account may be invested provided, however, that if the
Committee permits Participants to direct the investment of their Accounts
in accordance with paragraph (b) hereof, there shall be at least three
Investment Funds which shall be designated "core funds" within the meaning
of the regulations promulgated under Section 404(c) of ERISA.
(b) PARTICIPANT ELECTIONS. The Committee may permit each
Participant (or Beneficiary) to elect, at such times, on such forms and in
accordance with such rules and procedures as the Committee may establish,
to have his Accounts invested in such Investment Funds providing for
investment in accordance with the direction of individual Participants for
whose account such Investment Funds are maintained. If the Committee, in
its discretion, permits Participants to direct the investment of their
Accounts,
(i) each Participant (or Beneficiary) shall be provided, as
soon as reasonably practicable, a description of each Investment
Fund (including any withdrawal or other limitations associated with
such Fund and the fees and expenses, if any, which are charged
directly to a Participant's or Beneficiary's Account), the identity
of any designated investment manager and an explanation of the
procedures for giving investment instructions;
(ii) each Participant or Beneficiary shall be advised that he
or she is entitled to receive, within a reasonable time following a
request therefor, a description of annual operating expenses of each
Investment Fund which reduce the rate of return, copies of
prospectuses, financial statements and other materials provided to
the Plan regarding the Investment
-35-
EX-99.3-41
Funds, a list of the assets comprising each Investment Fund and the
value of each, and the value of shares or units of each Investment
Fund held under the Plan and in his or her own Accounts; and
(iii) a Participant's (or Beneficiary's) investment election
(if any) or change of election shall be permitted to be made not
less frequently than quarterly or at such other times as the
Committee may permit, and shall be effective as of the first day of
the payroll period following the date of such election or as soon
thereafter as reasonably practicable, provided that the Committee,
in its discretion, may permit elections to be made or to become
effective at any additional times as it may designate.
A Participant's (or Beneficiary's) investment election shall remain
effective until such time as the Participant (or Beneficiary) files a new
investment election and it becomes effective. If a Participant (or
Beneficiary) fails to make an investment election at such times as the
Committee may provide, his Accounts shall be invested in the Investment
Fund deemed by Committee to provide greatest safety of principal.
(c) If the Committee, in its discretion, does not permit
Participants to direct the investment of their Accounts, the assets of the
Plan shall be invested by the Trustees, as directed by the Committee, in
accordance with the terms of the Trust Agreement.
7.8 TRUST INCOME. As of each Valuation Date the fair market value of
the Trust shall be determined, recorded and communicated in writing to the
Committee by the Trustee. The Trustee shall also determine the fair market
value of each Investment Fund (if any). The Trustee's determination of fair
market value shall be final and conclusive on all persons. As of each
Valuation Date the Committee shall determine the net income, gains or losses of
the Trust Fund and of each Investment Fund (if any) since the preceding
Valuation Date. The net income, gains or losses thus derived from the Trust
shall be accumulated and shall from time to time be invested as a part of the
Trust Fund. The net income, gains or losses of each separate Investment Fund
(if any) shall be credited (or charged) to such separate Investment Fund. The
Committee shall proportionately allocate the net income, gains or losses of
each Investment Fund among (a) the sum of all Participants' Accounts invested
in such Investment Fund, and (b) the suspense account maintained under Section
6.5(c), all as valued as of the preceding Valuation Date (reduced by any
distributions therefrom since the preceding Valuation Date) by crediting (or
charging) each such account by an amount equal to the net income, gains or
losses of each Investment Fund
-36-
EX-99.3-42
multiplied by a fraction, the numerator of which is the balance of such Account
invested in such Investment Fund as of the preceding Valuation Date (reduced by
any distributions therefrom since the preceding Valuation Date) and the
denominator of which is the total value of all Accounts invested in such
Investment Fund, as of the preceding Valuation Date (reduced by any
distributions therefrom since the preceding Valuation Date); provided however
that for the purpose of allocating such income as of the first Valuation Date,
the numerator and denominator of the preceding fraction shall be determined by
using Account balances as of the first Valuation Date after all contributions
are credited thereto and before income is allocated as provided in this
Section.
For purposes of the preceding sentence, if valuations are less
frequent than every business day, an amount equal to one-half (1/2) of 401(k)
Contributions made between the preceding Valuation Date and the current
Valuation Date and which has not been distributed since the preceding Valuation
Date shall be treated as if it had been allocated to the 401(k) Account on the
preceding Valuation Date. Funds withdrawn from the Plan as of a Valuation Date
shall not share in income of the Trust for such Valuation Date.
7.9 CORRECTION OF ERROR. In the event of an error in the adjustment of
a Participant's Account, the Employer may in its sole discretion elect to
contribute such amount as it shall determine to correct the error, or the
Committee, in its sole discretion, may correct such error by either crediting
or charging the adjustment required to make such correction to or against
income or as an expense of the Trust for the Plan Year in which the correction
is made. Except as provided in this Section, the accounts of other
Participants shall not be readjusted on account of such error.
7.10 RIGHT OF THE EMPLOYERS TO TRUST ASSETS. Except as provided in
Section 6.5, the Employers shall have no right or claims of any nature in or to
the Trust Fund except the right to require the Trustee to hold, use, apply, and
pay such assets in its possession in accordance with the Plan for the exclusive
benefit of the Participants or their Beneficiaries and for defraying the
reasonable expenses of administering the Plan and Trust; provided that:
(a) if an Employer Contribution is conditioned upon initial
qualification of the Plan under Sections 401(a) or 401(k) of the Code and
if the Plan does not initially so qualify, 401(k) Contributions
conditioned on such qualification shall be distributed to the appropriate
Participant and other Employer Contributions shall be returned to the
appropriate Employer within one year of the denial of qualification of the
Plan;
-37-
EX-99.3-43
(b) if, and to the extent that, a deduction for Employer
Contributions under Section 404 of the Code is disallowed, 401(k)
Contributions conditioned on deductibility shall be distributed to the
appropriate Participant and other Employer Contributions conditioned upon
deductibility shall be returned to the appropriate Employer within one
year after the disallowance of the deduction; and
(c) if, and to the extent that, an Employer Contribution is made
through mistake of fact, 401(k) Contributions shall be distributed to the
appropriate Participant and other Employer Contributions shall be returned
to the appropriate Employer within one year of the payment of the
contribution.
All Employer Contributions are conditioned on the Plan's being
initially qualified under Section 401(a) of the Code, all 401(k) Contributions
are conditioned on the Plan's being initially qualified under Section 401(k) of
the Code and all Employer Contributions are conditioned upon their being
deductible under Section 404 of the Code.
ARTICLE VIII
BENEFITS
8.1 PAYMENT OF BENEFITS IN GENERAL. A Participant's benefits under this
Plan shall be payable in accordance with the provisions of this Article.
(a) If a Participant has a Termination of Employment for any
reason other than death, the vested portion of the Participant's Accrued
Benefit shall be payable in a lump sum, in accordance with and subject to
the limitations of Section 8.2.
(b) If a Participant dies, the vested portion of his Accrued
Benefit shall be payable to his surviving spouse if he was married on his
date of death, or to his other Beneficiary or Beneficiaries if he was not
married on his date of death or to the extent he designates a Beneficiary
other than his surviving spouse with his spouse's consent, in a lump sum,
in accordance with and subject to the limitations of Section 8.3.
(c) If a Participant is otherwise entitled to a distribution due
to retirement on or after Normal Retirement Date, Disability, death or
other Termination of Employment, the Committee shall require the immediate
distribution of small vested Accrued Benefits in accordance with and
subject
-38-
EX-99.3-44
to the limitations of Section 8.4, notwithstanding the provisions of
Sections 8.2, 8.3, and 8.9.
(d) [EFFECTIVE DECEMBER 15, 1994] A distribution to which a
Participant is entitled pursuant to this Article VIII may commence less
than 30 days after the notice required under Treasury Regulations Section
1.411(a)-11(c) is given if (1) the Committee clearly informs the
Participant that the Participant has a right to a period of at least 30
days after receiving the notice to consider the decision of whether or not
to elect a distribution and (2) the Participant after receiving the notice
affirmatively elects a distribution; provided, however, that nothing in
this Section 8.1(d) shall be construed to provide for the distribution of
benefits prior to the distribution date otherwise provided in this Article
VIII.
8.2 PAYMENT OF VESTED ACCRUED BENEFIT ON TERMINATION OF EMPLOYMENT.
(a) METHOD AND FORM OF PAYMENT.
[FOR PLAN YEARS COMMENCING PRIOR TO JANUARY 1, 1993]
If a Participant has a Termination of Employment for any reason
other than the unpaid portion of the Participant's death, the Participant
may, upon written notice to the Committee at least thirty (30) days (or
such lesser period as the Committee may from time to time permit) prior to
a Valuation Date, elect a distribution of his vested Accrued Benefit
valued as of such Valuation Date in one (1) lump sum. Such distribution
shall be made or shall commence as soon as reasonably practicable after
such Valuation Date.
[FOR PLAN YEARS COMMENCING ON OR AFTER JANUARY 1, 1993]
If a Participant has a Termination of Employment for any reason
other than the Participant's death, the Participant may, upon written
notice to the Committee at least thirty (30) days (or such lesser period
as the Committee may from time to time permit) prior to a Valuation Date,
elect a lump sum distribution (within the meaning of Section 402(d)(4) of
the Code) of his vested Accrued Benefit, valued as of such Valuation Date.
Such distribution shall be made as soon as practicable after such
Valuation Date.
(b) Payment of benefits shall be made not later than the Required
Beginning Date, regardless of whether the Participant has elected to defer
such payment under this Section 8.2.
8.3 PAYMENT OF VESTED ACCRUED BENEFIT ON DEATH.
-39-
EX-99.3-45
(a) PAYMENT TO SPOUSE OR OTHER BENEFICIARY. On the death of a
Participant before his entire vested Accrued Benefit has been paid from
the Plan, the Trustees shall pay the unpaid portion of the Participant's
vested Accrued Benefit to the Participant's surviving spouse (who shall be
deemed to be the Participant's designated Beneficiary) if the Participant
is married, subject to the following sentence. If the Participant is not
married, or to the extent the Participant named a Beneficiary other than
his surviving spouse to receive some or all of his vested Accrued Benefit
under the Plan (and in accordance with Section 8.9 his surviving spouse
consented to the naming of the other Beneficiary), the Trustees shall pay
the Participant's vested Accrued Benefit to his Beneficiary.
(b) METHOD AND FORM OF PAYMENT. The Participant's vested Accrued
Benefit shall be paid in one lump sum as soon as reasonably practicable
after the Valuation Date coinciding with or next following the death of
the Participant and shall be valued as of such Valuation Date. The
surviving spouse, or other Beneficiary or Beneficiaries, may elect (if
they are not prohibited by an election of the Participant from so
electing) to defer the receipt of the vested Accrued Benefit, but in no
event shall such receipt be deferred beyond December 31 of the year in
which the fifth anniversary of the date of the Participant's death occurs.
(c) BENEFICIARY DESIGNATION. The Participant may designate a
Beneficiary or Beneficiaries to receive the Participant's vested Accrued
Benefit, if any, on the Participant's death. Such Beneficiary or
Beneficiaries shall be designated by the Participant on a Beneficiary
Designation Form provided or permitted by the Committee, and may be
changed from time to time by filing a new Beneficiary Designation Form
with the Committee. No designation of Beneficiary or change of
Beneficiary shall be effective until filed with the Committee. If (i) a
Participant fails to file a valid Beneficiary Designation Form, or (ii)
all persons designated on the Beneficiary Designation Form predecease the
Participant (or, in the case of a Beneficiary other than an individual,
ceases to exist prior to the Participant's death, or (iii) any Beneficiary
other than the surviving spouse survives the Participant but dies (or
ceases to exist) prior to the receipt of the total amount to which such
Beneficiary was entitled, and if there are no remaining contingent
Beneficiaries, then the Trustees shall distribute the portion of such
Participant's vested Accrued Benefit which is subject to the Beneficiary
Designation Form in one lump sum to his surviving spouse, or if there is
no surviving spouse, then to his estate.
-40-
EX-99.3-46
(d) Any amount paid to a child, in accordance with regulations
prescribed by the Secretary of the Treasury, shall be treated as if it had
been paid to the Participant's surviving spouse if such amount will become
payable to the surviving spouse upon such child reaching majority (or such
other events as the Secretary of the Treasury may by regulations
prescribe).
8.4 LUMP SUM PAYMENT WITHOUT ELECTION. Notwithstanding the provisions
of this Article to the contrary, if the Participant or Beneficiary is entitled
to a distribution due to the Participant's retirement on or after his Normal
Retirement Date, death, Disability or other Termination of Employment, and if
the value of the Participant's Accrued Benefit before such distribution does
not exceed $3,500, the Committee shall direct the immediate distribution of
such benefit, if any, as soon as practicable following the next Valuation Date,
regardless of any election or consent of the Participant, his spouse, or other
Beneficiary.
8.5 VESTED INTERESTS.
(a) A Participant shall be one-hundred percent (100%) vested in
his Accrued Benefit if on or before the date he has a Termination of
Employment he attains his Normal Retirement Date, is Disabled or dies.
(b) Except as otherwise provided in Section 8.5(a), the vested
portion of the Participant's Accrued Benefit is the sum of the following:
(1) 100% of his 401(k) Account;
(2) 100% of his Rollover Contribution Account;
(3) with respect to his Profit Sharing Contribution Account
and his Matching Contribution Account, respectively, a percentage
determined in accordance with the following schedule:
Years of Vesting Vested
Service Interest
----------------- --------
Less than 5 years 0%
5 years or more 100%
(c) TIME OF FORFEITURE. If a Participant has a Termination of
Employment, then except as otherwise provided in Section 8.5(a) and (d),
that portion of the Participant's Accrued Benefit which is not vested as
of the date of such Participant's Termination of Employment shall become a
Forfeiture as of the earlier of the date on which the vested
-41-
EX-99.3-47
portion of the Participant's Accrued Benefit is fully distributed or as of
the end of the Plan Year in which the Participant's Termination of
Employment occurs. If a Participant has no vested Accrued Benefit, the
Participant shall be deemed to have received a distribution of his vested
Accrued Benefit on the date of his Termination of Employment, and
accordingly, the unvested portion of the Accrued Benefit shall become a
Forfeiture on such date.
(d) REINSTATEMENT OF UNVESTED AMOUNTS. The provisions of this
Section 8.5(d) apply with respect to a Participant who has a Termination
of Employment and who resumes service with the Employer or a Commonly
Controlled Entity before having five consecutive One Year Breaks in
Service.
(1) If such Participant resumes service without having
received a distribution of any portion of his Accrued Benefit, the
amount of Matching Contributions, if any, forfeited under Section
8.5(c) shall be reinstated to the Participant's Matching
Contribution Account, and the amount of Profit Sharing
Contributions, if any, forfeited under Section 8.5(c) shall be
reinstated to the Participant's Profit Sharing Contribution Account.
(2) If such Participant has received a distribution of a
portion (but less than all) of his Accrued Benefit no later than the
close of the second Plan Year following the Plan Year in which such
Termination of Employment occurred, the amount of Matching
Contributions, if any, forfeited under Section 8.5(c) shall not be
reinstated to the Participant's Matching Contribution Account, and
the amount of Profit Sharing Contributions, if any, forfeited under
Section 8.5(c) shall not be reinstated to the Participant's Profit
Sharing Contribution Account, and the Participant's Years of Vesting
Service credited prior to his Termination of Employment shall be
excluded, unless the Participant repays the amount of any such
distribution to the Plan before the earlier of
(A) the end of the five-year period beginning
with the date the Participant, following such
distribution, again becomes an Employee, or
(B) the date the Participant has incurred five
(5) consecutive One Year Breaks in Service following
such distribution.
(3) If such Participant received a distribution of his vested
Accrued Benefit after the close of the second
-42-
EX-99.3-48
Plan Year following the Plan Year in which his Termination of
Employment occurred, the amount of Matching Contributions, if any,
forfeited under Section 8.5(c) shall not be reinstated to the
Participant's Matching Contribution Account, and the amount of
Profit Sharing Contributions, if any, forfeited under Section 8.5(c)
shall not be reinstated to the Participant's Profit Sharing
Contribution Account, and the Participant's Years of Vesting Service
credited prior to the date of such distribution shall be excluded,
unless the Participant repays the amount of any such distribution to
the Plan before the end of the five-year period beginning on the
date of such distribution.
(4) Amounts which must be reinstated pursuant to Section
8.5(d)(1) or (2) (other than amounts repaid by the Participant),
unless contributed by the Employers, shall be reinstated from
Forfeitures in the Plan Year in which service with an Employer or
Commonly Controlled Entity is resumed (or if later, in which such
amounts are repaid), and, to the extent such Forfeitures are less
than the amounts to be reinstated, as an expense of the Trust in the
Plan Year in which service is resumed.
(e) NO REINSTATEMENT AFTER FIVE ONE YEAR BREAKS IN SERVICE. If a
Participant who had a Termination of Employment resumes service with an
Employer or Commonly Controlled Entity after having five consecutive One
Year Breaks in Service, the amount, if any, forfeited under Section 8.5(c)
shall not be reinstated.
(f) ALLOCATION OF FORFEITURES. [EFFECTIVE FOR PLAN YEARS
COMMENCING PRIOR TO JANUARY 1, 1994] Forfeitures arising under the
provisions of Section 8.5 and 13.5 shall be allocated as Matching
Contributions under Section 6.5, in addition to Matching Contributions
made to the Plan under Section 4.2, for the Plan Year in which such
Forfeitures occurred.
[EFFECTIVE FOR PLAN YEARS COMMENCING ON OR AFTER JANUARY 1, 1994]
Forfeitures arising under the provisions of Sections 5.2, 5.3, 8.5 and
13.5 shall be allocated as Matching Contributions under Section 6.2, in
addition to Matching Contributions made to the Plan under Section 4.2, for
the Plan Year in which such Forfeitures occurred.
8.6 DEDUCTION OF TAXES FROM AMOUNTS PAYABLE. The Trustee may deduct
from the amount to be distributed such amount as the Trustee, in his or its
sole discretion, deems proper to protect the Trustee and the Trust against
liability for the payment of death, succession, inheritance, income, or other
taxes, and out
-43-
EX-99.3-49
of the money so deducted, the Trustee may discharge any such liability and pay
the amount remaining to the Participant or his Beneficiary, as the case may be.
8.7 DEADLINE FOR PAYMENT OF BENEFITS. Notwithstanding any other
provision herein, payment of a Participant's benefits shall be made (unless the
Participant elects otherwise) not later than sixty (60) days after the latest
of the close of the Plan Year in which (a) the Participant attains age
sixty-five (65), (b) occurs the tenth (10th) anniversary of the date on which
the Participant commenced participation in the Plan, and (c) the Participant
had a Termination of Employment, provided, however, payment of benefits shall
commence or be made not later than a Participant's Required Beginning Date.
8.8 FACILITY OF PAYMENT. If a Participant or Beneficiary is declared an
incompetent or is a minor, and a conservator, guardian, or other person legally
charged with his care has been appointed, any benefits to which such
Participant or Beneficiary is entitled shall be payable to such conservator,
guardian, or other person legally charged with his care.
If a Participant or Beneficiary is incompetent, is a minor, or, in
the opinion of the Committee would fail to derive benefit from distribution of
funds, and if a conservator, guardian, or other person charged with his care
has not been appointed, the Committee, in its sole and exclusive discretion,
may (a) require the appointment of a conservator or guardian; (b) distribute
the Participant's Accrued Benefit to relatives of the Participant or
Beneficiary for the benefit of the Participant or Beneficiary, or (c)
distribute such Accrued Benefit directly to or for the benefit of the
Participant or Beneficiary.
The decision of the Committee in such matters shall be final,
binding, and conclusive upon the Employer and the Trustee and upon each
Employee, Participant, Beneficiary, and every other person or party interested
or concerned. An Employer, the Trustee and the Committee shall not be under
any duty to see to the proper application of such payments made to a
Participant, conservator, guardian, or relatives of a Participant.
8.9 SPOUSAL CONSENT TO A WAIVER. A spousal consent to the Participant's
naming of a Beneficiary other than his spouse shall:
(a) be in a writing acknowledging the effect of the consent;
(b) be witnessed by the Committee or a notary public;
(c) be effective only for the spouse who executes the consent; and
-44-
EX-99.3-50
(d) designate a Beneficiary which may be further changed without
spousal consent only if the consent of the spouse expressly so permits;
provided that the consent of a Participant's spouse shall not be required if it
is established to the satisfaction of the Committee that such consent may not
be obtained because there is no spouse, because the spouse cannot be located or
because of such other circumstances as the Secretary of the Treasury may by
regulations prescribe; and further provided that the Committee may provide a
spousal consent form which provides that such consent once given is
irrevocable.
8.10 FORM OF PAYMENT. A Participant's Accrued Benefit payable under
this Article shall be distributed in cash.
8.11 IMPROPER PAYMENT OF BENEFITS. The Committee shall require
reimbursement of any amount of payment subsequently determined not to have been
properly payable to a Participant or Beneficiary.
ARTICLE IX
ADMINISTRATION
9.1 BOARD OF DIRECTORS DUTIES. The Board of Directors shall have
overall responsibility for the establishment, amendment, termination,
administration and operation of the Plan, which responsibility it shall
discharge by the appointment and removal (with or without cause) of the members
of the Committee, to which is delegated the overall responsibility for the
administration and operation of the Plan, and for appointing, supervising and
terminating the Trustee and any Investment Manager in accordance with the Trust
Agreement.
9.2 COMMITTEE MEMBERSHIP. The Committee shall consist of three (3) or
more members, who shall be appointed by the Board of Directors. In the absence
of such appointment, if the Trustee is one or more individuals, the Trustee
shall serve as the Committee and if the Trustee is not one or more individuals,
the Company shall serve as the Committee. The members of the Committee shall
remain in office at the will of the Board of Directors, and the Board of
Directors may from time to time remove any of said members with or without
cause and shall appoint their successors. The Committee shall have the general
responsibility for the administration of the Plan and for carrying out its
provisions.
9.3 COMMITTEE STRUCTURE. Each member of the Committee may (but need
not) be an officer, director or Employee of an Employer hereunder, a
Participant
or Beneficiary. Each person, upon becoming a member of the Committee, shall
file an acceptance
-45-
EX-99.3-51
thereof in writing with the secretary of Checker Motors Corporation, acting as
general partner of the Company, and the secretary of the Committee. Any member
of the Committee may resign by delivering his written resignation to the
secretary of Checker Motors Corporation, acting as general partner of the
Company, and the secretary of the Committee, and such resignation shall become
effective upon the date specified therein. In the event of a vacancy in
membership, the remaining members shall constitute the Committee with full
power to act until said vacancy is filled.
9.4 COMMITTEE ACTIONS. The action of the Committee shall be determined
by the vote or other affirmative expression of a majority of its members.
Action may be taken by the Committee at a meeting or in writing without a
meeting. The Board of Directors of the Company shall choose a chairman who
shall be a member of the Committee and a secretary who may (but need not) be a
member of the Committee. The secretary shall keep a record of all meetings and
acts of the Committee and shall have custody of all records and documents
pertaining to its operations. Either the chairman or secretary may execute any
certificate or other written direction on behalf of the Committee.
9.5 COMMITTEE DUTIES. The Committee on behalf of the Participants and
all other Beneficiaries of the Plan and the Trust shall enforce the Plan and
the Trust Agreement in accordance with the terms of the Plan and the Trust
Agreement and shall have all powers necessary to accomplish that purpose,
including, but not by way of limitation, the following:
(a) To appoint and remove, as it deems advisable, a Plan
Administrator;
(b) To issue rules and regulations necessary for the proper
conduct and administration of the Plan and to change, alter, or amend such
rules and regulations;
(c) To construe the Plan and Trust Agreement;
(d) To determine all questions arising in the administration of
the Plan, including those relating to the eligibility of persons to become
Participants, the rights of Participants and their Beneficiaries, and
Employer Contributions, and its decision thereon shall be final and
binding upon all persons hereunder;
(e) To compute and certify to the Trustee the amount and kind of
benefits payable to Participants or their Beneficiaries;
(f) To authorize all disbursements of the Trustee from the Trust
Fund in accordance with the provisions of the Plan;
-46-
EX-99.3-52
(g) To employ and suitably compensate such accountants, attorneys
(who may but need not be the accountants or attorneys of the Company), and
other persons to render advice and clerical employees as it may deem
necessary to the performance of its duties;
(h) To hear, review and determine claims for benefits;
(i) To exercise any rights, powers or privileges granted to it by
the terms of the Trust Agreement;
(j) To communicate the Plan and its eligibility requirements to
the Employees and notify Employees when they become eligible to
participate;
(k) To make available to Participants upon request, for
examination during business hours, such records as pertain exclusively to
the examining Participant; and
(l) To establish and communicate to the Trustee and any Investment
Managers the investment objectives and guidelines and to periodically
review and monitor the performance of the Trustee and any Investment
Manager.
9.6 ALLOCATIONS AND DELEGATIONS OF RESPONSIBILITY.
(a) The Board of Directors, the Committee and, if the Trustee is
one or more individuals, the Trustee, respectively, shall have the
authority to delegate, from time to time, by instrument in writing filed
in their respective minute books, all or any part of their respective
responsibilities under the Plan to such person or persons as it may deem
advisable (and may authorize such person, upon receiving written consent
of the delegating entity, to delegate such responsibilities to such other
person or persons as the delegating entity shall authorize) and in the
same manner to revoke any such delegation of responsibility. Any action
of the delegate in the exercise of such delegated responsibilities shall
have the same force and effect for all purposes hereunder as if such
action had been taken by the delegating entity. Any Employer, the Board
of Directors, the Committee and, if the Trustee is one or more
individuals, the Trustee shall not be liable for any acts or omissions of
any such delegate. The delegate shall periodically report to the
delegating authority concerning the discharge of the delegated
responsibilities.
(b) The Board of Directors, the Committee and, if the Trustee is
one or more individuals, the Trustee shall have the authority to allocate,
from time to time, by instrument in writing filed in their respective
minute books, all or any part of their respective responsibilities under
the Plan to
-47-
EX-99.3-53
one or more of their respective members as they may deem advisable, and in
the same manner to revoke such allocation of responsibilities. Any action
of the member to whom responsibilities are allocated in the exercise of
such allocated responsibilities shall have the same force and effect for
all purposes hereunder as if such action had been taken by the allocating
entity. An Employer, the Board of Directors, the Committee and, if the
Trustee is one or more individuals, the Trustee shall not be liable for
any acts or omissions of such member. The member to whom responsibilities
have been allocated shall periodically report to the allocating authority
concerning the discharge of the allocated responsibilities.
9.7 COMMITTEE BONDING AND EXPENSES. The members of the Committee shall
serve without bond (except as otherwise required by federal law). A member of
the Committee who is receiving full-time pay from an Employer or Commonly
Controlled Entity as an Employee shall serve without compensation for services
as a member of the Committee. Any other member of the Committee may receive
compensation for services as a member of the Committee from the Employer, but
may not receive such compensation for services from the Plan. All expenses of
the Committee shall be paid by the Trust except to the extent paid by an
Employer.
9.8 INFORMATION TO BE SUPPLIED BY EMPLOYER. Each Employer shall provide
the Committee and the Trustee or their delegate with such information as it
shall from time to time need in the discharge of its duties. The Committee and
the Trustee may rely conclusively on the information certified to it by an
Employer.
9.9 RECORDS. The regularly kept records of the Committee, any Employer
and, if the Trustee is one or more individuals, the Trustee shall be conclusive
evidence of the service of a Participant, his Compensation, his age, his
marital status, his status as an Employee, and all other matters contained
therein applicable to this Plan; provided that a Participant may request a
correction in the record of his age at any time prior to retirement, and such
correction shall be made if within 90 days after such request he furnishes in
support thereof a birth certificate, baptismal certificate, or other
documentary proof of age satisfactory to the Committee.
9.10 FIDUCIARY CAPACITY. Any person or group of persons may serve in
more than one fiduciary capacity with respect to the Plan.
9.11 PLAN ADMINISTRATOR. The Committee may appoint a Plan Administrator
who may (but need not) be a member of the Committee; and in absence of such
appointment, the Committee shall be the Plan Administrator.
-48-
EX-99.3-54
9.12 COMMITTEE/PLAN ADMINISTRATOR DECISIONS FINAL. The Committee and
Plan Administrator shall have full discretion to construe and interpret the
Plan and to decide all matters within their respective jurisdictions, including
factual matters, all questions concerning eligibility for participation, and
all questions relating to the amount and manner of providing benefits, and
including full discretion to resolve benefit appeals, and their decisions shall
be final, binding and conclusive upon the Employers, each Employee,
Participant, former Participant, Beneficiary and every other person or party
interested or concerned for all purposes.
9.13 COMPANY, COMMITTEE AND TRUSTEE AS AGENT. The Company, the
Committee and, if the Trustee is one or more individuals, the Trustee, shall
act as agent for each Employer in the administration of the Plan.
9.14 FIDUCIARY RESPONSIBILITY. If a Plan fiduciary acts in accordance
with ERISA, Title I, Subtitle B, Part 4,
(a) in determining that the Participant's spouse has consented to
the Participant's naming of a Beneficiary other than his spouse or that
the consent of the Participant's spouse may not be obtained because there
is no spouse, the spouse cannot be located or other circumstances
prescribed by the Secretary of the Treasury by regulations, then to the
extent of payments made pursuant to such consent or determination, the
Plan and its fiduciaries shall have no further liability; or
(b) in treating a domestic relations order as being (or not being)
a Qualified Domestic Relations Order (defined in Section 13.7), or, during
any period in which the issue of whether a domestic relations order is a
Qualified Domestic Relations Order is being determined (by the Committee,
by a court of competent jurisdiction, or otherwise), in separately
accounting for the amounts ("Segregated Amounts") which would have been
payable to the alternate payee during such period if the order had been
determined to be a Qualified Domestic Relations Order, in paying the
Segregated Amounts (including any interest thereon) to the person entitled
thereto if within the 18-month period beginning with the date on which the
first payment would be required to be made under the domestic relations
order (the "18-Month Period") the domestic relations order (or a
modification thereof) is determined to be a Qualified Domestic Relations
Order, in paying the Segregated Amounts (including any interest thereon)
to the person entitled thereto if there had been no order if within the
18-Month Period the domestic relations order is determined not to be
qualified or if the issue is not resolved within the 18-Month Period and
in prospectively applying a domestic relations order which is determined
to be
-49-
EX-99.3-55
qualified after the close of the 18-Month Period, then the obligation of
the Plan and its fiduciaries to the Participant and each alternate payee
shall be discharged to the extent of any payment made pursuant to such
acts.
ARTICLE X
CLAIMS PROCEDURE
10.1 INITIAL CLAIM FOR BENEFITS. Each Participant or Beneficiary
("Claimant") may submit his application for +benefits ("Claim") to the
Committee (or to such other person as may be designated by the Committee) in
writing in such form as is provided or approved by the Committee. A Claimant
shall have no right to seek review of a denial of benefits, or to bring any
action in any court to enforce a Claim prior to his filing a Claim and
exhausting his rights to review under Sections 10.1 and 10.2.
When a Claim has been filed properly, such Claim shall be evaluated
and the Claimant shall be notified of the approval or the denial of the Claim
within ninety (90) days after the receipt of such Claim unless special
circumstances require an extension of time for processing the Claim. If such
an extension of time for processing is required, written notice of the
extension shall be furnished to the Claimant prior to the termination of the
initial ninety (90) day period, which notice shall specify the special
circumstances requiring an extension and the date by which a final decision
will be reached (which date shall not be later than one hundred and eighty
(180) days after the date on which the Claim was filed). A Claimant shall be
given a written notice in which the Claimant shall be advised as to whether the
Claim is granted or denied, in whole or in part. If a Claim is denied, in
whole or in part, the notice shall contain (1) the specific reasons for the
denial, (2) references to pertinent Plan provisions upon which the denial is
based, (3) a description of any additional material or information necessary to
perfect the Claim and an explanation of why such material or information is
necessary, and (4) the Claimant's rights to seek review of the denial.
10.2 REVIEW OF CLAIM DENIAL. If a Claim is denied, in whole or in part,
the Claimant shall have the right to (i) request that the Committee (or such
other person as shall be designated in writing by the Committee) review the
denial, (ii) review pertinent documents, and (iii) submit issues and comments
in writing, provided that the Claimant files a written request for review with
the Committee within sixty (60) days after the date on which the Claimant
received written notification of the denial. Within sixty (60) days after a
request for review is received, the review shall be made and the Claimant shall
be
-50-
EX-99.3-56
advised in writing of the decision on review, unless special circumstances
require an extension of time for processing the review, in which case the
Claimant shall be given a written notification within such initial sixty (60)
day period specifying the reasons for the extension and when such review shall
be completed (provided that such review shall be completed within one hundred
and twenty (120) days after the date on which the request for review was
filed). The decision on review shall be forwarded to the Claimant in writing
and shall include specific reasons for the decision and references to Plan
provisions upon which the decision is based. A decision on review shall be
final and binding on all persons for all purposes.
If a Claimant shall fail to file a request for review in accordance
with the procedures herein outlined, such Claimant shall have no rights to
review and shall have no right to bring action in any court and the denial of
the Claim shall become final and binding on all persons for all purposes.
ARTICLE XI
AMENDMENT AND TERMINATION OF THE PLAN
11.1 DISCONTINUANCE OF CONTRIBUTIONS. It is the expectation of the
Company that it will continue the Plan and the payment of contributions
hereunder indefinitely, but the continuation of the Plan and the payment of
Employer Contributions hereunder is not assumed as a contractual obligation of
the Company or any other Employer; and the right is reserved by the Company or
any other Employer at any time to reduce, suspend or discontinue its
contributions hereunder, provided, however, that the Employer Contributions
accrued or determined for any Plan Year shall not be retroactively reduced,
suspended or discontinued.
11.2 AMENDMENTS.
(a) The Company by resolution of the Board of Directors or any
entity appointed for such purpose by the Board of Directors, may amend,
modify, change, revise or discontinue the Plan or the Trust Agreement, at
any time; provided, that, except as provided in Sections 6.5 and 7.10, no
amendment shall (i) increase the duties or liabilities of the Trustee, the
Committee or the Plan Administrator without written consent of the entity
affected; (ii) have the effect of vesting in any Employer any interest in
any funds, securities or other property subject to the terms of this Plan
and the Trust Agreement; (iii) authorize or permit at any time any part of
the corpus or income of the Trust Fund to be used or diverted to purposes
other than for the exclusive benefit of Participants and their
Beneficiaries; or (iv) have any
-51-
EX-99.3-57
retroactive effect as to deprive any Participant or Beneficiary of any
benefit already accrued; provided that no amendment made in conformance to
provisions of the Code, or any other statute relating to employee's
trusts, or any official regulations or rulings issued pursuant thereto,
shall be considered prejudicial to the rights of any Participant or
Beneficiary, or to have violated the provisions hereof.
(b) If a person is not an Employee on or after the effective date
of any amendment to the Plan, the amendment shall be deemed as having no
effect on the amount of such person's benefits or other rights under the
Plan unless the amendment specifically provides otherwise.
11.3 PLAN TERMINATION. Although it is the intention of the Company that
this Plan be permanent, the Company shall have the right to terminate the Plan
and the Trust at any time, by resolution of the Board of Directors.
11.4 PAYMENT UPON TERMINATION. Upon termination of the Plan or complete
discontinuance of Employer Contributions hereunder, each Participant's Accrued
Benefit shall become fully vested. Upon a partial termination of the Plan, the
Accrued Benefit of each former Participant who lost status as a Participant
because of such partial termination shall become fully vested. In the event of
termination of the Plan and after payment of all expenses and proportional
adjustment of accounts to reflect such expenses, fund losses or profits and
reallocation to the date of termination, except to the extent that the Board of
Directors shall otherwise direct, each Participant and each Beneficiary of a
deceased Participant shall be entitled to receive his entire Accrued Benefit as
soon as reasonably possible. If such amounts are not immediately distributed,
then continued allocations of the net earnings, losses and expenses of the
Trust.
11.5 WITHDRAWAL FROM THE PLAN BY AN EMPLOYER. While it is not the
present intention of any Employer to withdraw from the Plan and Trust
Agreement, any Employer other than the Company may withdraw from the Plan and
Trust Agreement, under such terms and conditions as the Board of Directors may
prescribe, by delivery to the Trustee and the Company of a resolution of its
board of directors electing to so withdraw.
ARTICLE XII
TOP HEAVY PROVISIONS
12.1 APPLICATION. The definitions in Section 12.2 shall apply under
this Article XII and the special rules in Section 12.3 shall apply,
notwithstanding any other provisions of
-52-
EX-99.3-58
the Plan, for any Plan Year in which the Plan is a Top Heavy Plan and for such
other Plan Years as may be specified herein.
12.2 SPECIAL TOP HEAVY DEFINITIONS. The following special definitions
shall apply under this Article XII.
(a) "AGGREGATE EMPLOYER CONTRIBUTIONS" means the sum of all
Employer Contributions under this Plan allocated for a Participant to the
Plan and employer contributions and forfeitures allocated for the
Participant to all Related Defined Contribution Plans in the Aggregation
Group.
(b) "AGGREGATION GROUP" means the group of plans in a Mandatory
Aggregation Group, if any, that includes the Plan, unless inclusion of
Related Plans in the Permissive Aggregation Group in the Aggregation Group
would prevent the Plan from being a Top Heavy Plan, in which case
"Aggregation Group" means the group of plans consisting of the Plan and
each other Related Plan in a Permissive Aggregation Group with the Plan.
(i) "MANDATORY AGGREGATION GROUP" means each plan
(considering the Plan and Related Plans) that, during the Plan Year
that contains the Determination Date or any of the four preceding
Plan Years,
(A) had a participant who was a Key Employee, or
(B) was necessary to be considered with a plan in
which a Key Employee participated in order to enable the plan
in which the Key Employee participated to meet the
requirements of Section 401(a)(4) or Section 410 of the Code.
If the Plan is not described in (A) or (B) above, it shall not
be part of a Mandatory Aggregation Group.
(ii) "PERMISSIVE AGGREGATION GROUP" means the group of plans
consisting of (A) the plans, if any, in a Mandatory Aggregation
Group with the Plan, and (B) any other Related Plan, that, when
considered as a part of the Aggregation Group, does not cause the
Aggregation Group to fail to satisfy the requirements of Section
401(a)(4) and Section 410 of the Code. A Related Plan in (B) of the
preceding sentence may include a simplified employee pension plan,
as defined in Code Section 408(k), and a collectively bargained
plan, if when considered as a part of the Aggregation Group such
plan does not cause the Aggregation Group to fail to satisfy the
requirements of Section 401(a)(4)
-53-
EX-99.3-59
and Section 410 of the Code considering, if the plan is a
multiemployer plan as described in Code Section 414(f) or a multiple
employer plan as described in Code Section 413(c), benefits under
the plan only to the extent provided to employees of the employer
because of service with the employer and, if the plan is a
simplified employee pension plan, only the employer's contribution
to the plan.
(c) "DETERMINATION DATE" means, with respect to a plan year, the
last day of the preceding plan year or, in the case of the first plan
year, the last day of such plan year. If the Plan is aggregated with
other plans in the Aggregation Group, the Determination Date for each
other plan shall be, with respect to any plan year, the Determination Date
for each such other plan which falls in the same calendar year as the
Determination Date for the Plan.
(d) "KEY EMPLOYEE" means, for the Plan Year containing the
Determination Date, any person or the beneficiary of any person who is an
employee or former employee of an Employer or a Commonly Controlled Entity
as determined under Code Section 416(i) and who, at any time during the
Plan Year containing the Determination Date or any of the four (4)
preceding Plan Years (the "Measurement Period"), is a person described in
paragraph (i), (ii), (iii) or (iv), subject to paragraph (v).
(i) An officer of the Employer or Commonly Controlled Entity
who:
(A) in any Measurement Period, in the case of a Plan
Year beginning after December 31, 1983, is an officer during
the Plan Year and has annual Compensation for the Plan Year in
an amount greater than fifty percent (50%) of the amount in
effect under Section 415(c)(1)(A) of Internal Revenue Code for
the calendar year in which such Plan Year ends ($30,000 in
1989, adjusted in subsequent years as determined in accordance
with regulations prescribed by the Secretary of the Treasury
or his delegate pursuant to the provisions of Section 415(d)
of the Internal Revenue Code); and
(b) in any Measurement Period, in the case of a Plan
Year beginning on or before December 31, 1983, is an officer
during the Plan Year, regardless of Compensation (except to
the extent that applicable law, regulations and rulings
indicate that the fifty percent (50%) requirement set forth in
subparagraph (A) is applicable).
-54-
EX-99.3-60
No more than a total of fifty (50) persons (or, if lesser, the
greater of three (3) persons or ten percent (10%) of all persons or
beneficiaries of persons who are employees or former employees)
shall be treated as Key Employees under this paragraph (i) for any
Measurement Period. In the case of an Employer or Commonly
Controlled Entity which is not a corporation:
(A) in any Measurement Period, in the case of a Plan
Year beginning on or before February 28, 1985, no persons
shall be treated as Key Employees under this paragraph (i);
and
(B) in any Measurement Period, in the case of a Plan
Year beginning after February 28, 1985, the term "officer" as
used in this subsection (d) shall include administrative
executives as described in Section 1.416-1(T-13) of the
Treasury Regulations.
(ii) One (1) of the ten (10) persons who, during a Plan Year
in the Measurement Period:
(a) have annual Compensation from the Employer or a
Commonly Controlled Entity for such Plan Year greater than the
amount in effect under Section 415(c)(1)(A) of the Code for
the calendar year in which such Plan Year ends (the greater of
$30,000 or one-fourth (1/4) of the dollar limitation in effect
under Section 415(b)(1)(A) of the Code, adjusted as determined
in accordance with regulations prescribed by the Secretary of
the Treasury or his delegate pursuant to the provisions of
Section 415(d) of the Code); and
(b) own (or are considered as owning within the
meaning of Code Section 318) in such Plan Year, the largest
percentage interests in the Employer or a Commonly Controlled
Entity, in such Plan Year, provided that no person shall be
treated as a Key Employee under this paragraph unless he owns
more than one-half percent (1/2%) interest in the Employer or
a Commonly Controlled Entity.
No more than a total of ten (10) persons or beneficiaries of persons
who are employees or former employees shall be treated as Key
Employees under this paragraph (ii) for any Measurement Period.
A person who, for a Plan Year in the Measurement Period, is a
more than five percent (5%) owner (or is considered as owning more
than five percent (5%) within
-55-
EX-99.3-61
the meaning of Code Section 318) of the Employer or a Commonly
Controlled Entity.
A person who, for a Plan Year in the Measurement Period, is a
more than one percent (1%) owner (or is considered as owning more
than one percent (1%) within the meaning of Code Section 318) of the
Employer or a Commonly Controlled Entity and has an annual
Compensation for such Plan Year from the Employer and Commonly
Controlled Entities of more than $150,000.
If the number of persons who meet the requirements to be
treated as Key Employees under paragraph (i) or (ii) exceed the
limitation on the number of Key Employees to be counted under
paragraph (i) or (ii), those persons with the highest annual
Compensation in a Plan Year in the Measurement Period for which the
requirements are met and who are within the limitation on the number
of Key Employees will be treated as Key Employees.
If the requirements of paragraph (i) or (ii) are met by a person in
more than one (1) Plan Year in the Measurement Period, each person
will be counted only once under paragraph (i) or (ii):
(A) under paragraph (i), the Plan Year in the
Measurement Period in which a person who was an officer and
had the highest annual Compensation shall be used to determine
whether the person will be treated as a Key Employee under the
preceding sentence;
(B) under paragraph (ii), the Plan Year in the
Measurement Period in which the ownership percentage interest
is the greatest shall be used to determine whether the person
will be treated as a Key Employee under the preceding
sentence.
Notwithstanding the above provisions of paragraph (v), a person may
be counted in determining the limitation under both paragraphs (i)
and (ii). In determining the sum of the Present Value of Accrued
Benefits for Key Employees under subsection (h) of this Section, the
Present Value of Accrued Benefits for any person shall be counted
only once.
(e) "NON-KEY EMPLOYEE" means a person or the beneficiary of a
person who, at any time during the Measurement Period, has an account
balance in the Plan or an account balance or accrued benefit in any
Related Plan in the Aggregation Group and who is not a Key Employee.
-56-
EX-99.3-62
(f) "PRESENT VALUE OF ACCRUED BENEFITS" means, for any Plan Year,
an amount equal to the sum of (i), (ii) and (iii) for each person who, in
the Plan Year containing the Determination Date, was a Key Employee or a
Non-Key Employee.
Subject to (iv) below, the value of a person's Accrued Benefit
under the Plan and each Related Defined Contribution Plan in the
Aggregation Group, determined as of the valuation date coincident
with or immediately preceding the Determination Date, adjusted for
contributions due as of the Determination Date, as follows:
(A) in the case of a plan not subject to the minimum
funding requirements of Section 412 of the Code, by including
the amount of any contributions actually made after the
valuation date but on or before the Determination Date, and,
in the first plan year of a plan, by including contributions
made after the Determination Date that are allocated as of a
date in that first plan year; and
(B) in the case of a plan that is subject to the
minimum funding requirements, by including the amount of any
contributions that would be allocated as of a date not later
than the Determination Date, plus adjustments to those amounts
as required under applicable rulings, even though those
amounts are not yet required to be contributed or allocated
(e.g., because they have been waived) and by including the
amount of any contributions actually made (or due to be made)
after the valuation date but before the expiration of the
extended payment period in Section 412(c)(10) of the Code.
Subject to (iv) below, the sum of the actuarial present values
of a person's accrued benefits under each Related Defined Benefit
Plan in the Aggregation Group, determined, for any person who is
employed by an Employer maintaining the Plan on the Determination
Date, expressed as a benefit commencing at Normal Retirement Date
(or the person's attained age, if later), and further determined
using the same method which is used for accrual purposes under all
Related Defined Benefit Plans in the Aggregation Group, and if the
same method is not used for all Related Defined Benefit Plans then
as if such benefit accrued no more rapidly than at the slowest
permitted accrual rate under Code Section 411(b)(1)(C) determined
based on the following actuarial assumptions:
(A) Interest rate 5%; and
-57-
EX-99.3-63
(B) Mortality: 1984 Unisex Pension Table;
and determined in accordance with Code Section 416(g), provided,
however, that if a Related Defined Benefit Plan in the Aggregation
Group provides for different or additional actuarial assumptions to
be used in determining the present value of accrued benefits
thereunder for the purpose of determining the top heavy status
thereof, then such different or additional actuarial assumptions
shall apply with respect to each Related Defined Benefit Plan in the
Aggregation Group.
The present value of an accrued benefit for any person who is
employed by an employer maintaining a plan on the Determination Date
is determined as of the most recent valuation date which is within a
12-month period ending on the Determination Date, provided however
that:
(A) for the first plan year of the plan, the present
value for an employee is determined as if the employee had a
Termination of Employment (1) on the Determination Date or (2)
on such valuation date but taking into account the estimated
accrued benefit as of the Determination Date; and
(B) for the second and subsequent plan years of the
plan, the accrued benefit taken into account for an employee
is not less than the accrued benefit taken into account for
the first plan year unless the difference is attributable to
using an estimate of the accrued benefit as of the
Determination Date for the first plan year and using the
actual accrued benefit as of the Determination Date for the
second plan year.
For purposes of this paragraph (ii), the valuation date is the
valuation date used by the plan for computing plan costs for minimum
funding, regardless of whether a valuation is performed that year.
If the plan provides for a nonproportional subsidy as
described in Treasury Regulations Section 1.416-1(T-27), the present
value of accrued benefits shall be determined taking into account
the value of nonproportional subsidized early retirement benefits
and nonproportional subsidized benefit options.
Subject to (iv) below, the aggregate value of amounts
distributed from the Plan and each Related Plan in the Aggregation
Group during the Plan Year that includes the Determination Date or
any of the four preceding Plan Years including amounts distributed
under
-58-
EX-99.3-64
a terminated plan which, if it had not been terminated, would have
been in the Aggregation Group.
The following rules shall apply in determining the Present
Value of Accrued Benefits:
(A) Amounts attributable to qualified voluntary
employee contributions, as defined in Section 219(e) of the
Code, shall be excluded.
(B) In computing the Present Value of Accrued Benefits
with respect to rollovers or plan-to-plan transfers, the
following rules shall be applied to determine whether amounts
which have been distributed during the five (5) year period
ending on the Determination Date from or accepted into this
Plan or any plan in the Aggregation Group shall be included in
determining the Present Value of Accrued Benefits:
(1) Unrelated Transfers accepted into the Plan or
any plan in the Aggregation Group after December 31,
1983 shall not be included.
(2) Unrelated Transfers accepted on or before
December 31, 1983 and all Related Transfers accepted at
any time into the Plan or any plan in the Aggregation
Group shall be included.
(3) Unrelated Transfers made from the Plan or any
plan in the Aggregation Group shall be included.
(4) Related Transfers made from the Plan or any
plan in the Aggregation Group shall not be included by
the transferor plan (but shall be counted by the
accepting plan).
The Accrued Benefit of any individual who has not performed services
for an Employer maintaining the Plan or from a Commonly Controlled Entity
maintaining a Related Plan in the Aggregation Group at any time during the
five (5) year period ending on the Determination Date shall be excluded in
computing the Present Value of Accrued Benefits.
(g) "RELATED TRANSFER" means a rollover or a plan-to-plan
transfer which is either not initiated by the Employee or is made between
plans each of which is maintained by a Commonly Controlled Entity.
-59-
EX-99.3-65
(h) A "TOP HEAVY AGGREGATION GROUP" exists in any Plan Year for
which, as of the Determination Date, the sum of the Present Value of
Accrued Benefits for Key Employees under all plans in the Aggregation
Group exceeds sixty percent (60%) of the sum of the Present Value of
Accrued Benefits for all employees under all plans in the Aggregation
Group; provided that, for purposes of determining the sum of the Present
Value of Accrued Benefits for all employees under all plans in the
Aggregation Group, there shall be excluded the Present Value of Accrued
Benefits of any Non-Key Employee who was a Key Employee for any Plan Year
preceding the Plan Year that contains the Determination Date. For
purposes of applying the special rules herein with respect to a Super Top
Heavy Plan, a Top Heavy Aggregation Group will also constitute a "Super
Top Heavy Aggregation Group" if in any Plan Year as of the Determination
Date, the sum of the Present Value of Accrued Benefits for Key Employees
under all plans in the Aggregation Group exceeds ninety percent (90%) of
the sum of the Present Value of Accrued Benefits for all employees under
all plans in the Aggregation Group.
(i) "TOP HEAVY PLAN" means the Plan in any Plan Year in which it
is a member of a Top Heavy Aggregation Group, including a Top Heavy
Aggregation Group consisting solely of the Plan. For purposes of applying
the rules herein with respect to a Super Top Heavy Plan, a Top Heavy Plan
will also constitute a "SUPER TOP HEAVY PLAN" if the Plan in any Plan
Year is a member of a Super Top Heavy Aggregation Group, including a Super
Top Heavy Aggregation Group consisting solely of the Plan.
(j) "UNRELATED TRANSFER" means a rollover or a plan-to-plan
transfer which is both initiated by the Employee and (a) made from a plan
maintained by a Commonly Controlled Entity to a plan maintained by an
employer which is not a Commonly Controlled Entity or (b) made to a plan
maintained by a Commonly Controlled Entity from a plan maintained by an
employer which is not a Commonly Controlled Entity.
12.3 SPECIAL TOP HEAVY PROVISIONS. For each Plan Year in which the Plan
is a Top Heavy Plan, the following rules shall apply, except that the special
provisions of this Section 12.3 shall not apply with respect to any employee
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 one or more Employers if there is evidence that retirement
benefits were the subject of good faith bargaining between such employee
representative and the Employer or Employers:
(a) MINIMUM EMPLOYER CONTRIBUTIONS. In any Plan Year in which
the Plan is a Top Heavy Plan, the Employers shall
-60-
EX-99.3-66
make additional Employer Contributions to the Plan as necessary for each
Participant who is employed on the last day of the Plan Year and who is a
Non-Key Employee to bring the amount of his Aggregate Employer
Contributions (excluding such Participant's 401(k) Contributions and
Matching Contributions used for purposes of determining the actual
contribution percentage under Section 5.4(c)) for the Plan Year up to at
least three percent (3%) of his Compensation, or if the Plan is not
required to be included in an aggregation group in order to permit a
defined benefit plan in the aggregation group to satisfy the requirements
of Section 401(a)(4) or Section 410 of the Code, such lesser amount as is
equal to the largest percentage of a Key Employee's Compensation allocated
to the Key Employee as Aggregate Employer Contributions, unless such
Participant is a Participant in a Related Defined Benefit Plan and
receives a minimum benefit thereunder in accordance with Section 416(c) of
the Code in which case such Participant shall not receive a minimum
contribution under this Section 12.3(a).
For purposes of determining whether a Non-Key Employee is a Participant
entitled to have minimum Employer Contributions made on his behalf, a
Non-Key Employee will be treated as a Participant even if he is not
otherwise a Participant (or accrues no benefit) under the Plan because:
he has failed to complete the requisite number of hours of
service (if any) after becoming a Participant in the Plan,
he is excluded from participation in the Plan (or accrues no
benefit) merely because his compensation is less than a stated
amount, or
he is excluded from participation in the Plan (or accrues no
benefit) merely because of a failure to make mandatory employee
contributions or, if the Plan is a 401(k) plan, because of a failure
to make elective 401(k) contributions.
(b) VESTING. For each Plan Year in which the Plan is a Top Heavy
Plan and for each Plan Year thereafter, the Participant's vested Accrued
Benefit shall be determined in accordance with the following schedule:
Years of Vesting Service Vested Percentage
------------------------ -----------------
Less than 3 years 0%
3 years or more 100%
-61-
EX-99.3-67
(c) LIMITATIONS. In computing the limitations under Section 6.5
hereof for years in which the Plan is a Top Heavy Plan, the special rules
of Section 416(h) of the Code shall be applied in accordance with
applicable regulations and rulings so that, in determining the denominator
of the Defined Contribution Plan Fraction and the Defined Benefit Plan
Fraction, at each place at which "1.25" would have been used, "1.00" shall
be substituted, unless the Plan is not a Super Top Heavy Plan and the
special requirements of Section 416(h)(2) of the Code have been satisfied.
(d) TRANSITION RULE FOR A TOP HEAVY PLAN. Notwithstanding the
provisions of Section 12.3(c), for each Plan Year in which the Plan is a
Top Heavy Plan and in which the Plan does not meet the special
requirements of Section 416(h)(2) of the Code in order to use 1.25 in the
denominator of the Defined Contribution Plan Fraction and the Defined
Benefit Plan Fraction, if an Employee was a participant in one or more
defined benefit plans and in one or more defined contribution plans
maintained by the employer before the plans became Top Heavy Plans and if
such Participant's Combined Fraction exceeds 1.00 because of accruals and
additions that were made before the plans became Top Heavy Plans, a factor
equal to the lesser of 1.25 or such lesser amount (but not less than 1.00)
as shall be needed to make the Employee's Combined Fraction equal to 1.00
shall be used in the denominator of the Defined Benefit Plan Fraction and
the Defined Contribution Plan Fraction if there are no further accruals or
annual additions under any Top Heavy Plans until the Participant's
Combined Fraction is not greater than 1.00 when a factor of 1.00 is used
in the denominators of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction. Any provisions herein to the contrary
notwithstanding, if the Plan is a Top Heavy Plan and the Plan does not
meet the special requirements of Section 416(h)(2) of the Code in order to
use 1.25 in the denominator of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction, there shall be no further Annual
Additions for a Participant whose Combined Fraction is greater than 1.00
when a factor of 1.00 is used in the denominator of the Defined Benefit
Plan Fraction and the Defined Contribution Plan Fraction, until such time
as the Participant's Combined Fraction is not greater than 1.00.
(e) TRANSITION RULE FOR A SUPER TOP HEAVY PLAN. Notwithstanding
the provisions of Sections 12.3(c) and 12.3(d), for each Plan Year in
which the Plan is a Super Top Heavy Plan, (1) if an Employee was a
participant in one or more defined benefit plans and in one or more
defined contribution plans maintained by the employer before the plans
became Super Top Heavy Plans, and (2) if such Participant's Combined
Fraction exceeds 1.00 because of
-62-
EX-99.3-68
accruals and additions that were made before the plans became Super Top
Heavy Plans and if immediately before the plans became Super Top Heavy
Plans the Combined Fraction as then computed did not exceed 1.00, then a
factor equal to the lesser of 1.25 or such lesser amount (but not less
than 1.00) as shall be needed to make the Employee's Combined Fraction
equal to 1.00 shall be used in the denominator of the Defined Benefit Plan
Fraction and the Defined Contribution Plan Fraction if there are no
further accruals or annual additions under any Super Top Heavy Plans until
the Participant's Combined Fraction is not greater than 1.00 when a factor
of 1.00 is used in the denominators of the Defined Benefit Plan Fraction
and the Defined Contribution Plan Fraction. Any provisions herein to the
contrary notwithstanding, if the Plan is a Super Top Heavy Plan, there
shall be no further Annual Additions for a Participant whose Combined
Fraction is greater than 1.00 when a factor of 1.00 is used in the
denominator of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction until the Participant's Combined Fraction is
not greater than 1.00.
(f) TERMINATED PLAN. If the Plan becomes a Top Heavy Plan after
it has formally been terminated, has ceased crediting for benefit accruals
and vesting and has been or is distributing all plan assets to
participants and their beneficiaries as soon as administratively feasible
or if the Plan has distributed all benefits of participants and their
beneficiaries, the provisions of Section 12.3 shall not apply to the Plan.
(g) FROZEN PLANS. If the Plan becomes a Top Heavy Plan after
contributions have ceased under the Plan but all assets have not been
distributed to participants or their beneficiaries, the provisions of
Section 12.3 shall apply to the Plan.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 EMPLOYER JOINDER. Any Commonly Controlled Entity may, with the
approval of the Board of Directors and subject to such terms and conditions as
the Board of Directors may prescribe, adopt the Plan and Trust Agreement.
13.2 COMPANY MERGER. In the event that a corporation or other entity
becomes a successor corporation to the Company or an Employer, by merger,
consolidation, purchase or otherwise, such successor corporation shall be
substituted hereunder for the Company or the Employer.
-63-
EX-99.3-69
13.3 PLAN MERGER. The Plan shall not merge or consolidate with, or
transfer any assets or liabilities to any other plan, unless each Participant
would receive a benefit immediately after the merger, consolidation or transfer
(if the Plan were then terminated) which is equal to or greater than the
benefit he would have been entitled to immediately before the merger,
consolidation, or transfer (if the Plan were then terminated).
13.4 INDEMNIFICATION. Each Employer shall indemnify and hold harmless
each member of the Board of Directors, each member of the Committee, the Plan
Administrator and, if the Trustees are one or more individuals, the Trustees,
and each officer and employee of an Employer to whom are delegated duties,
responsibilities, and authority with respect to the Plan, from and against all
claims, liabilities, fines and penalties, and all expenses reasonably incurred
by or imposed upon him (including, but not limited to, reasonable attorney
fees) which arise as a result of his actions or failure to act in connection
with the operation and administration of the Plan to the extent lawfully
allowable and to the extent that such claim, liability, fine, penalty, or
expense is not paid for by liability insurance purchased or paid for by an
Employer. Notwithstanding the foregoing, an Employer shall not indemnify any
person for any such amount incurred through any settlement or compromise of any
action unless the Employer consents in writing to such settlement or
compromise.
13.5 UNCLAIMED AMOUNTS. Unclaimed amounts shall consist of the amounts
of the Accounts of a Participant which cannot be distributed because of the
Committee's inability, after a reasonable search, to locate a Participant or
his Beneficiary within a period of two (2) years after the payment of benefits
becomes due. Unclaimed amounts for a Plan Year shall become a Forfeiture and
shall be allocated in accordance with Section 8.5(e) hereof, within a
reasonable time after the close of the Plan Year in which such two-year period
shall end. If an unclaimed amount is subsequently properly claimed by the
Participant or the Participant's Beneficiary, said amount shall be paid to such
Participant or Beneficiary, and shall, unless contributed by the Employers, be
accounted for by charging Forfeitures in the Plan Year such amount is paid and,
to the extent such Forfeitures are less than the amounts paid, as an expense of
the Trust in the Plan Year in which paid.
13.6 PLAN GOVERNS. In the event of a conflict between the provisions of
the Plan and of the provisions of any group annuity arrangement or other
contract entered into for purposes of this Plan, the provisions of the Plan
shall govern.
-64-
EX-99.3-70
13.7 NONALIENATION OF BENEFITS.
(a) Benefits payable under this Plan shall not be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution or levy of any kind, either
voluntary or involuntary, prior to actually being received by the person
entitled to the benefit under the terms of the Plan; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge,
garnish, execute on, levy or otherwise dispose of any right to benefits
payable hereunder, shall be void. The Trust Fund shall not in any manner
be liable for, or subject to, the debts, contracts, liabilities,
engagements or torts of any person entitled to benefits hereunder.
(b) Notwithstanding Section 13.7(a), the Trustee shall comply with
an order determined by the Committee to be a Qualified Domestic Relations
Order as provided in Section 13.8.
13.8 QUALIFIED DOMESTIC RELATIONS ORDER.
(a) "QUALIFIED DOMESTIC RELATIONS ORDER" means any judgment,
decree, or order (including approval of a property settlement agreement):
(1) which is made pursuant to a state domestic relations law
(including a community property law),
(2) which relates to the provision of child support, alimony
payments, or marital property rights to a spouse, former spouse,
child, or other dependent of a Participant,
(3) which creates or recognizes the existence of an alternate
payee's right to receive all or a portion of the Participant's
Accrued Benefit under the Plan, and
(4) with respect to which the requirements of paragraphs (b)
and (c) are met.
(b) A domestic relations order can be a Qualified Domestic
Relations Order only if such order clearly specifies:
(1) the name and the last known mailing address, if any, of
the Participant and the name and mailing address of each alternate
payee covered by the order,
(2) the amount or percentage of the Participant's Accrued
Benefit to be paid by the Plan to each such
-65-
EX-99.3-71
alternate payee, or the manner in which such amount or percentage is
to be determined,
(3) the number of payments or period to which such order
applies, and
(4) each Plan to which such order applies.
(c) A domestic relations order can be a Qualified Domestic
Relations Order only if such order does not:
(1) require the Plan to provide any type or form of benefit,
or any option not otherwise provided under the Plan,
(2) require the Plan to provide increased benefits
(determined on the basis of actuarial value), or
(3) require the payment of benefits to an alternate payee
which are required to be paid to another alternate payee under
another order previously determined to be a Qualified Domestic
Relations Order.
(d) A domestic relations order shall not be treated as failing to
meet the requirements of Section 13.8(c)(1) solely because such order
requires that payment of benefits be made to an alternate payee:
(1) before a Participant has had a Termination of Employment,
(2) as if the Participant had retired on the date on which
such payment is to begin under such order (but taking into account
only the present value of the benefits actually accrued and not
taking into account the present value of any employer subsidy for
early retirement), and
(3) in any form in which such benefits may be paid under the
Plan to the Participant (other than in the form of a qualified joint
and survivor annuity with respect to the alternate payee and his or
her subsequent spouse).
13.9 CONTRACT OF EMPLOYMENT. Nothing contained herein shall be
construed to constitute a contract of employment between an Employer and any
Employee.
13.10 SOURCE OF BENEFITS. All benefits payable under the Plan shall be
paid or provided for solely from the Trust and the Employers assume no
liability
or responsibility therefore.
-66-
EX-99.3-72
13.11 EMPLOYEES' TRUST. The Plan and Trust are created for the
exclusive purpose of providing benefits to the Participants in the Plan and
their Beneficiaries and defraying reasonable expenses of administering the Plan
and Trust. The Plan and Trust shall be interpreted in a manner consistent with
their being a Plan described in Section 401(a) of the Code and a Trust exempt
under Section 501(a) of the Code. At no time shall the Trust Fund be diverted
from the above purpose.
13.12 GENDER AND NUMBER. Except when the context indicates to the
contrary, when used herein, masculine terms shall be deemed to include the
feminine, and singular the plural.
13.13 HEADINGS. The headings of Articles and Sections are included
solely for convenience of reference, and if there is any conflict between such
headings and the text of this Plan, the text shall control.
13.14 UNIFORM AND NON-DISCRIMINATORY APPLICATION OF PROVISIONS. The
provisions of this Plan shall be interpreted and applied in a uniform and
non-discriminatory manner with respect to all Participants, former
Participants,
and Beneficiaries.
13.15 INVALIDITY OF CERTAIN PROVISIONS. If any provision of this Plan
shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof and the Plan shall be construed
and enforced as if such provisions, to the extent invalid or unenforceable, had
not been included.
13.16 LAW GOVERNING. The Plan shall be construed and enforced according
to the laws of Illinois, other than its laws with respect to choice of law, to
the extent not preempted by ERISA.
ARTICLE XIV
DIRECT ROLLOVERS
14.1 DIRECT ROLLOVERS. This Article applies to distributions made on
or after January 1, 1993. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Distributee's election under this
Article, a Distributee may elect, at the time and in the manner prescribed by
the Plan Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified by the
Distributee in a Direct Rollover.
-67-
EX-99.3-73
14.2 DEFINITIONS.
(a) ELIGIBLE ROLLOVER DISTRIBUTION: An "Eligible Rollover
Distribution" is any distribution of all or any portion of the balance to
the credit of the Distributee, except that an Eligible Rollover
Distribution does not include: any distribution that is one of a series
of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the Distributee or the
joint lives (or joint life expectancies) of the Distributee and the
Distributee's designated beneficiary, or for a specified period of ten
years or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income) determined without
regard to the exclusion for net unrealized appreciation with respect to
employer securities).
(b) ELIGIBLE RETIREMENT PLAN: An "Eligible Retirement Plan" is
an individual retirement account described in Section 408(a) of the Code,
an individual retirement annuity described in Section 408(b) of the Code,
an annuity plan described in Section 403(a) of the Code, or a qualified
trust described in Section 401(a) of the Code, that accepts 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.
(c) DISTRIBUTEE: A "Distributee" includes an Employee or former
Employee. In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse or former spouse who
is the alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, are Distributees with regard to the
interest of the spouse or former spouse.
(d) DIRECT ROLLOVER: A "Direct Rollover" is a payment by the
Plan to the Eligible Retirement Plan specified by the Distributee.
-68-
EX-99.3-74
Executed this ____ day of _______________, 1990.
CHECKER MOTORS CORPORATION, as general
partner of Checker Motors Co., L.P.
BY:___________________________________
ATTEST:
__________________________
-69-