EXHIBIT 10.4
Employee Stock Ownership and Pension Plan of the Company
ESOP Pension Plan
The Company maintains a money purchase employee stock ownership
pension plan (the "Pension Plan"), which is designed to meet the
requirements of an employee stock ownership plan under Section
4975(e)(7) of the Internal Revenue Code and Section 407(d)(6) of
the Employee Retirement Income Security Act of 1974. The Pension
Plan provides for mandatory contributions by the Company in the
form of either common stock or cash which will be used
predominantly to purchase common stock of the Company. All
employees of the Company and its subsidiaries are eligible to
participate in the Pension Plan after they attain the age of 21
and have completed one year of service during which the employee
is credited with at least 1,000 hours of service. The Company
credits each eligible participant's account with cash or common
stock of the Company equal to six percent of the employee's
compensation earned during the year with respect to which the
contribution is made. Contributions credited to a participant's
account are generally not vested until the completion of the
fifth year of service, at which time the contributions become
fully vested. Pension Plan participants are entitled to receive
distributions from their Pension Plan accounts only upon
retirement, death, total disability, termination of service, or a
change in control. Distributions may be made in either cash or
common stock of the Company and may be paid in lump sum or in the
form of an annuity.
Participating employees are entitled to instruct the trustee of
the Pension Plan how to vote the shares of the Company's common
stock held in their account. The trustee of the Pension Plan, Mid
American National Bank, purchases the shares of the Company's
common stock either directly from the Company or on the open
market, and has dispositive powers over the shares.
The ESOP Pension Plan, as amended, follows this description.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS................................... 2
1.01 Acquired Employer............................. 2
1.02 Anniversary Date.............................. 2
1.03 Annual Compensation........................... 2
1.04 Code.......................................... 2
1.05 Company....................................... 2
1.06 Employee...................................... 2
1.07 Employer...................................... 2
1.08 Entry Date.................................... 2
1.09 ERISA......................................... 3
1.10 ESOP.......................................... 3
1.11 Hour of Service............................... 3
1.12 Named Fiduciary............................... 4
1.13 Normal Retirement Age......................... 4
1.14 Normal Retirement Date........................ 4
1.15 Participant................................... 4
1.16 Plan.......................................... 4
1.17 Plan Administrator............................ 4
1.18 Plan Year..................................... 5
1.19 Qualified Election............................ 5
1.20 Qualifying Employer Securities................ 5
1.21 Self-Employed Person.......................... 5
1.22 Trustee....................................... 5
1.23 Trust Fund.................................... 5
1.24 Year of Service............................... 5
ARTICLE II ELIGIBILITY................................... 7
2.01 Eligibility................................... 7
2.02 Eligibility Upon Re-Employment................ 7
2.03 Eligibility for Employees of an Acquired Employer 7
ARTICLE III CONTRIBUTIONS................................. 8
3.01 Employer Contributions........................ 8
ARTICLE IV ALLOCATIONS................................... 9
4.01 Participant Accounts.......................... 9
4.02 Annual Allocations............................ 9
4.03 Annual Report to Participants................. 9
ARTICLE V BENEFITS TO PARTICIPANTS....................... 10
5.01 Upon Retirement or Disability.................. 10
5.02 Upon Death.................................... 10
5.03 Upon Termination of Employment................ 11
5.04 Certification by Plan Administrator........... 13
ARTICLE VI DISTRIBUTIONS................................. 14
6.01 Method and Medium of Payment.................. 14
6.02 Special ESOP Distribution Requirements........ 17
6.03 Mandatory Commencement of Benefits............ 18
6.04 Distribution After Death of a Participant..... 19
6.05 Right to Have Accounts Transferred............ 20
6.06 Cash Dividend Option.......................... 20
ARTICLE VII LIMITATION ON CONTRIBUTIONS AND BENEFITS...... 21
7.01 Limitation of Benefits........................ 21
ARTICLE VIII TOP HEAVY PROVISIONS.......................... 25
8.01 Definitions................................... 25
8.02 Determination of Top Heavy Status............. 26
8.03 Combination of Defined Benefit and Defined
Contribution Plan.......................... 27
8.04 Minimum Contribution.......................... 27
8.05 Minimum Vesting............................... 27
ARTICLE IX AMENDMENT OR TERMINATION...................... 29
9.01 Amendment..................................... 29
9.02 Plan Termination or Discontinuance of
Contributions.............................. 29
9.03 Merger, Consolidation or Transfer of Assets... 30
ARTICLE X ADMINISTRATION................................ 31
10.01 Plan Administrator............................ 31
10.02 Records and Reports........................... 32
10.03 Claims Procedure.............................. 32
10.04 Participant's Right to Vote Employer Stock.... 33
ARTICLE XI EXEMPT LOAN................................... 34
11.01 Definition of Exempt Loan..................... 34
11.02 Requirements for an Exempt Loan............... 34
11.03 Right of First Refusal........................ 35
ARTICLE XII TRUSTEE....................................... 36
12.01 Fiduciary Status.............................. 36
12.02 Establishment and Acceptance of Trust......... 36
12.03 Trustee's General Powers...................... 36
12.04 Payment of Compensation, Expenses and Taxes... 38
12.05 Accounting.................................... 38
12.06 Trustee's General Powers...................... 38
12.07 Voting Employer Stock......................... 38
12.08 Removal, Resignation and Appointment of
Successor Trustee.......................... 39
12.09 Investment Manager............................ 39
12.10 Payment of Expenses........................... 40
ARTICLE XIII INVESTMENT OF THE TRUST FUND.................. 41
13.01 General Investment Fund....................... 41
13.02 Appraisal of Employer Stock................... 42
13.03 Diversification of Investments................ 42
ARTICLE XIV MISCELLANEOUS................................. 44
14.01 Participant's Rights.......................... 44
14.02 Assignment or Alienation of Benefits.......... 44
14.03 Reversion of Funds to Employer................ 44
14.04 Third Party Immunity.......................... 45
14.05 Delegation of Authority by Employer........... 45
14.06 Allocation of Responsibilities................ 46
14.07 Construction of Plan.......................... 46
14.08 Gender and Number............................. 46
14.09 Headings...................................... 46
APPENDIX A LIST OF PARTICIPATING EMPLOYERS............... 47
MID AM, INC.
EMPLOYEE STOCK OWNERSHIP PENSION PLAN
AS AMENDED AND RESTATED
THIS AGREEMENT, made and executed at Bowling Green, Ohio on the
17th day of September, 1993, to be effective as of July 1, 1989,
by and between MID AM, INC., a corporation organized and existing
under the laws of the State of Ohio (hereinafter referred to as
"Employer"), and MID AMERICAN NATIONAL BANK & TRUST (hereinafter
referred to as "Trustee").
WITNESSETH:
WHEREAS, the Employer established the "Mid Am, Inc. Employee
Stock Ownership Pension Plan" (hereinafter referred to as the
"Plan") which became effective July 1, 1989; and
WHEREAS, the Employer deems it necessary to amend the Plan to
comply with the Tax Reform Act of 1986 and make certain other
changes;
NOW, THEREFORE, in consideration of these premises and the mutual
covenants herein contained, it is mutually agreed by and between
the Employer and the Trustee, that the Plan and Trust shall read
as follows:
ARTICLE I
DEFINITIONS
1.01 Acquired Employer. "Acquired Employer" means any
organization, corporate or otherwise, which is acquired by
purchase, merger, consolidation or any other method.
1.02 Anniversary Date. "Anniversary Date" means the last day of
each Plan Year.
1.03 Annual Compensation. "Annual Compensation" means the total
wages, salary, bonuses, commissions, overtime pay and other extra
remunerations received from the Employer during the Plan Year,
but excluding amounts received based on allocable contributions
to the Plan. Annual Compensation includes a Participant's
voluntary reductions in cash consideration made in accordance
with arrangements established by the Employer under Section 125
and Section 401(k) of the Code.
A Participant's Annual Compensation in excess of $200,000 shall
be excluded for purposes of the Plan. This $200,000 limitation
will be adjusted at the same time and in the same manner as is
provided in Section 415(d) of the Code.
1.04 Code. "Code" means the Internal Revenue Code of 1986, as
amended.
1.05 Company. "Company" means the Employer and any other
corporation which is a member of a controlled group of
corporations (as defined in Section 414(b) of the Code) which
includes the Employer; any trade or business (whether or not
incorporated) which is under common control (as defined in
Section 414(c) of the Code) with the Employer; any organization
(whether or not incorporated) which is a member of an affiliated
service group (as defined in Section 414(m) of the Code) which
includes the Employer; and any other entity required to be
aggregated with the Employer pursuant to regulations under
Section 414(o) of the Code.
1.06 Employee. "Employee" means any person employed by the
Employer.
1.07 Employer. "Employer" means Mid Am, Inc. or any subsidiary,
affiliate or other facility of Mid Am, Inc. to which this Plan
has been extended, as listed in Appendix A hereof.
1.08 Entry Date. "Entry Date" means the date the Employee
becomes a Participant hereunder, pursuant to the eligibility
requirements of Section 2.01 hereof.
1.09 ERISA. "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended.
1.10 ESOP. "ESOP" means an Employee Stock Ownership Plan as
defined in Section 4975(e)(7) of the Code.
1.11 Hour of Service. "Hour of Service" means:
(a) Each hour for which an Employee is directly or indirectly
paid or entitled to payment by either the Company or the Employer
for the performance of duties; and
(b) Each hour for which an Employee is directly or indirectly
paid, or entitled to payment, by either the Company or the
Employer for reasons (such as vacation, sickness, disability, or
similar leave of absence) other than for the performance of
duties, and for military leaves, Maternity/Paternity Leaves or
leaves for jury duty; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by either the
Company or the Employer provided that the same Hours of Service
shall not be credited under this subsection (c) and subsection
(a) or (b) above, as the case may be.
Hours of Service computed hereunder shall be computed in
accordance with Section 2530.200 b-2 (b) and (c) of the
Department of Labor Regulations which is incorporated herein by
reference.
In no event shall more than 501 Hours of Service be credited for
any one continuous period of absence during or for which the
Employee receives payment for nonperformance of duties whether or
not such period occurs in a single computation period.
For purposes of this Section 1.11, Maternity/Paternity Leave
means absence in accordance with the Employer's or Company's
preapproved leave policy which may permit such leaves:
(a) by reason of the pregnancy of an individual,
(b) by reason of the birth of a child of an individual,
(c) by reason of the placement of a child with an individual in
connection with the adoption of such child by such individual, or
(d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
The Hours of Service credited under this paragraph shall be
credited:
(a) in the computation period in which the absence begins if the
crediting is necessary in order to give the Participant 501
Hours, or
(b) in all other cases, in the following computation period.
If the number of hours which would have been credited cannot be
determined, such person shall receive credit for eight Hours of
Service per day of such absence.
For purposes of this Section 1.11, "computation period" shall
mean a 12 consecutive month period commencing on the date of an
Employee's first Hour of Service with either the Company or the
Employer, or any anniversary thereof.
1.12 Named Fiduciary. "Named Fiduciary" means a fiduciary named
in this document, or who, pursuant to a procedure specified in
the Plan, is identified as a Named Fiduciary.
1.13 Normal Retirement Age. "Normal Retirement Age" means age
sixty-five (65).
1.14 Normal Retirement Date. "Normal Retirement Date" means the
first day of the month coinciding with or next following the date
on which a Participant attains Normal Retirement Age.
1.15 Participant. "Participant" means an Employee who has
satisfied the eligibility requirements for participation in the
Plan.
1.16 Plan. "Plan" means the Mid Am, Inc. Employee Stock
Ownership Pension Plan.
1.17 Plan Administrator. "Plan Administrator" means the
Committee appointed pursuant to Article X hereof.
1.18 Plan Year. "Plan Year" means the 12-month period beginning
on January 1 and ending on the following December 31 of each
year. There will be a short Plan Year which begins on July l,
1989 and ends on December 31, 1989.
1.19 Qualified Election. "Qualified Election" means a waiver of
a Qualified Joint and Survivor Annuity or a Qualified
Pre-retirement Survivor Annuity. The waiver must be in writing
and must be consented to by the Participant's spouse. The
spouse's consent to a waiver must be witnessed by a Plan
representative or notary public and must be limited to a benefit
for a specific alternate beneficiary (or a specific form of
benefit). Notwithstanding this consent requirement, if the
Participant establishes to the satisfaction of a Plan
representative that such written consent may not be obtained
because there is no spouse or the spouse cannot be located, a
waiver will be deemed a Qualified Election. Any consent necessary
under this provision will not be valid with respect to any other
spouse. Additionally, a revocation of a prior waiver may be made
by a Participant without the consent of the spouse at any time
before the commencement of benefits. The number of revocations
shall not be limited. Any new waiver or change of beneficiary
will require a new spousal consent.
1.20 Qualifying Employer Securities. "Qualifying Employer
Securities" means an Employer security which is common stock
issued by the Employer having a combination of voting power and
dividend rights equal to or in excess of the class of Employer
common stock having the greatest voting power and the class of
Employer common stock having the greatest dividend rights.
1.21 Self-Employed Person. "Self-Employed Person" means a
self-employed individual who performs personal services for the
Employer and who owns an interest in the Employer.
1.22 Trustee. "Trustee" means Mid American National Bank & Trust
Company or its successors as appointed under the Plan, which
shall be a Named Fiduciary.
1.23 Trust Fund. "Trust Fund" means all assets of whatever kind
or nature held by the Trustee pursuant to the terms of the Plan.
1.24 Year of Service. For purposes of determining eligibility to
participate in the Plan in accordance with Section 2.01 hereof,
"Year of Service" means the completed 12 consecutive month period
commencing on the date of an Employee's first Hour of Service
with either the Company or the Employer, or any anniversary date
thereof, during which such Employee is credited with at least one
thousand (1,000) Hours of Service.
For purposes of determining a Participant's nonforfeitable
interest pursuant to Section 5.03 hereof, "Year of Service" means
a Plan Year during which such Participant is credited with at
least 1,000 Hours of Service. For purposes of Section 5.03, a
Participant will be credited with a Year of Service if he
completes 1,000 Hours of Service during said period, even though
he is not employed for the full 12-month period.
Service of an Employee with the Armed Forces of the United States
shall be deemed to be service with the Employer for purposes of
Sections 2.01 and 5.03 hereof, provided the Employee returns to
active employment with the Employer within the prescribed time
limits during which he retains re-employment rights by law. If
such Employee does not return during such period, his employment
will be deemed to have been terminated when he entered the Armed
Forces.
An Employee who does not initially meet the eligibility
requirements of Section 2.01 and later becomes a Participant,
will have all Years of Service counted for Plan purposes, both
prior to and subsequent to becoming a Participant.
In the event a terminated Participant is re-hired, all Years of
Service with either the Company or the Employer shall be counted
for purposes of Sections 2.01 and 5.03 hereof.
Employees of an acquired employer shall be granted Years of
Service credit under the conditions and standards of this Section
1.24 for all service which they had with the acquired employer.
ARTICLE II
ELIGIBILITY
2.01 Eligibility
Each Employee shall participate in the Plan on the January 1 or
July 1 coinciding with or next following the date he meets all of
the following criteria:
(a) is credited with one Year of Service;
(b) has attained age twenty-one (21); and
(c) is not a member of a collective bargaining unit unless the
agreement between the Employer and the union provides for
participation hereunder.
2.02 Eligibility Upon Re-Employment
A former Participant, or former Employee who met the eligibility
requirements of Section 2.01 for participation in the Plan at the
time he terminated employment, who is subsequently rehired shall
participate hereunder on the Entry Date coinciding with or next
following his re-employment by the Employer.
2.03 Eligibility for Employees of an Acquired Employer
Employees of an Acquired Employer will be eligible for this Plan
under the conditions of Article II as of such dates as determined
by any of the corporate officers. Such group of employees and
dates of entry shall be described in Appendix A of this Plan.
ARTICLE III
CONTRIBUTIONS
3.01 Employer Contributions
The Employer shall contribute to the Trust Fund on behalf of each
Participant, including a Participant who continues in the employ
of the Employer after his Normal Retirement Date, an amount equal
to six percent (6 percent) of his Annual Compensation.
An allocation will be made only if the Participant was employed
on the last day of such Plan Year and was credited with at least
1,000 Hours of Service during such Plan Year, subject to the
provisions of Section 8.04 hereof, except that any Participant
who became totally and permanently disabled, died or retired
during such Plan Year shall receive an allocation.
Employer contributions shall be paid in cash or shares of
Employer stock. Shares of Employer stock will be valued at their
then fair market value. To the extent that the Trust has
obligations arising from an extension of credit to the Trust
which is payable in cash within one year of the date of the
Employer's contribution is made, such contribution will be paid
to the Trust in cash.
These contributions are intended to qualify as employee stock
ownership contributions under Section 4975(e)(7) of the Code and
the regulations thereunder, and are intended to be invested
primarily in Qualifying Employer Securities. At any time up to
100 percent of the assets may be invested in Qualifying Employer
Securities.
The annual contribution of the Employer shall be made to the
Trustee in full within such time as may be permitted for Federal
income tax purposes to obtain a deduction for the contribution by
the Employer for such taxable year.
ARTICLE IV
ALLOCATIONS
4.01 Participant Accounts
A separate account shall be maintained by the Trustee for each
Participant as follows:
(a) General Account. The amount of the Employer's contribution to
the Trust Fund pursuant to Section 3.01 hereof and allocated
pursuant to Section 4.02(a) hereof, together with such
Participant' share of all income, gains and accumulations
therefrom, shall be credited and losses debited to each
Participant's General Account.
Said General Account will sometimes hereinafter be referred to as
"Account".
4.02 Annual Allocations
(a) Employer Contribution: Effective as of the last day of each
Plan Year, any amount contributed by the Employer pursuant to
Section 3.01 hereof shall be allocated and credited to the
General Account of each eligible Participant as provided in
Section 3.01 hereof.
(b) Investment Gain or Loss: Any net gain or net loss resulting
from the operation of the Investment Funds of the Trust for such
year, determined in accordance with Article XIII hereof, shall be
allocated by the Trustee to the respective Participant's Account
in proportion to the value of the respective interests in the
Investment Fund immediately preceding such revaluation.
(c) Allocation of Cash Dividends: Cash dividends on Employer
Stock allocated to a Participant's Account shall be credited to
the Participant's Account.
4.03 Annual Report to Participants
The Plan Administrator shall notify each Participant in writing
of the financial status of his Account as of the last day of each
Plan Year.
ARTICLE V
BENEFITS TO PARTICIPANTS
5.01 Upon Retirement or Disability
When a Participant retires (whether it be Early Retirement, at
Normal Retirement Date or after Normal Retirement Date) or
becomes totally and permanently disabled, the entire interest in
his Account, including the amount of any additional credit as
finally determined, representing his participation and
contributions for the year in which his disability or retirement
occurred, shall become nonforfeitable and his participation
hereunder shall thereupon cease. The Plan Administrator, in
accordance with the provisions of Section 6.01 hereof, shall then
direct the Trustee to distribute to such Participant the entire
interest in his Account.
Normal Retirement. Each Participant's Account shall be
nonforfeitable upon the attainment of his Normal Retirement Age
and the Participant may retire on his Normal Retirement Date.
Late Retirement. A Participant who remains in the employment of
the Employer after his Normal Retirement Date shall continue to
participate hereunder. No distribution shall be made to the
Participant until his actual retirement, subject to the mandatory
commencement of benefit provisions of Section 6.02 hereof.
Early Retirement. A Participant may retire early at any time
after attaining age fifty-five (55) if at that time he is
credited with at least five (5) Years of Service.
Total and Permanent Disability. "Total and permanent disability"
means a physical or mental condition of a Participant resulting
from a bodily injury or disease or mental disorder which renders
him incapable of continuing in the employment of the Employer.
The total and permanent disability of any Participant shall be
determined by the Plan Administrator, in accordance with uniform
principles consistently applied, upon the basis of such evidence
as the Plan Administrator deems necessary or advisable.
5.02 Upon Death
Upon the death of a Participant, the entire interest in the
Account of such Participant, including the amount of any
additional credit as finally determined, representing his
participation and contributions for the Plan Year in which his
death occurs, shall become nonforfeitable and the Plan
Administrator in accordance with the provisions of Section 6.01
hereof shall then direct the Trustee to distribute the entire
interest in his Account to such Participant's designated
beneficiary or beneficiaries, or if none, as provided in this
Section 5.02. The Plan Administrator may require such proper
proof of death and such evidence of the right of any person to
receive payment of the entire interest in the Account of such
deceased Participant as the Plan Administrator deems desirable
and the Plan Administrator's determination shall be conclusive.
Such distribution shall be made as soon as administratively
feasible following the Participant's death and in accordance with
the rules and procedures established by the Plan Administrator.
Each Participant, by written instrument delivered to the Plan
Administrator, shall have the unqualified right, subject to a
Qualified Election, to designate and from time to time change the
beneficiary or beneficiaries to receive in the event of his death
the entire interest in his Account.
In the event the Participant fails to designate a beneficiary or
beneficiaries, the entire interest in his Account shall be
distributed first to his spouse if then living, or second to his
estate.
5.03 Upon Termination of Employment
(a) Nonforfeitable Interest. Upon termination of a Participant's
employment for any reason other than retirement, total and
permanent disability or death, the Trustee shall, in accordance
with the provisions of Section 6.01 hereof and at the instruction
of the Plan Administrator, distribute to the Participant the
nonforfeitable interest in his General Account based on his Years
of Service determined in accordance with the following schedule:
Years of Service Nonforfeitable Interest
Less than 5 0 percent
5 or more 100 percent
Normal Retirement Age 100 percent
In the event the nonforfeitable interest schedule is hereby
amended, or the nonforfeitable interest schedule of an existing
plan is amended by the Plan, then any Participant who has
completed at least three Years of Service on the later of the
date the amendment is adopted, or the date the amendment is
effective may elect, in writing, beginning on the date the Plan
amendment is adopted and ending on the later of:
(1) his termination of employment,
(2) the date which is 60 days after the day the Plan amendment is
adopted,
(3) the date which is 60 days after the day the Plan amendment
becomes effective, or
(4) the date which is 60 days after the day the Participant is
issued written notice of the Plan amendment by the Plan
Administrator
to have his nonforfeitable interest in his Account determined
without regard to such amendment by notifying the Plan
Administrator.
(b) Forfeiture.
(1) If a Participant terminates service, and the value of his
vested Account is not greater than $3,500, the Participant will
receive a distribution of the value of the entire vested portion
of his Account and the nonvested portion will be treated as a
forfeiture.
(2) If a Participant terminates and elects to receive, pursuant
to Section 6.01 hereof, the vested portion of his Account, the
nonvested portion will be treated as a forfeiture. If the
Participant receives a distribution of less than the entire
vested portion of his Account, the part of the nonvested portion
that will be treated as a forfeiture is the total nonvested
portion multiplied by a fraction, the numerator of which is the
amount of the distribution and the denominator of which is the
total value of the vested Account.
(3) If a Participant receives a distribution pursuant to Section
6.01 hereof which is less than the value of the Participant's
Account, and resumes employment within the five consecutive Plan
Years following the Plan Year in which termination of employment
occurs, the Participant's Account will be restored to the amount
on the date of distribution if the Participant repays to the Plan
the full amount of the distribution.
(4) If a Participant does not receive a distribution pursuant to
Section 6.01 hereof, no forfeiture will occur until the
expiration of five consecutive Plan Years following the Plan Year
in which termination of employment occurs during which the
Participant is not re-employed.
Forfeitures shall be used to reduce the contribution due from the
Employer for the current Plan Year following the Plan Year in
which the forfeiture occurs.
For purposes of this Section 5.03(b), if a Participant does not
have any nonforfeitable interest in his Account, he will be
deemed to have received a distribution of the entire vested
portion of his Account in accordance with the provisions of
subparagraph (2) above without having submitted any application
for benefits to the Plan Administrator. If such Participant
returns to active service with the Employer prior to the
expiration of five consecutive Plan Years following the Plan Year
in which his termination of employment occurred, said Participant
will be deemed to have paid back the distribution and his Account
will be restored as provided in subparagraph (3) above.
(c) In the event that there is a Change in Control of the
Employer, the nonforfeitable interest of each Participant in his
Account pursuant to Section 5.03(a) shall be 100 percent as of
the effective date of the Change in Control. For the purposes of
the Plan, any one or more of the following events shall
constitute a Change in Control: (i) the merger or consolidation
of Employer with or into any other corporation and Employer is
not the surviving corporation; (ii) in excess of 24.99 percent of
the outstanding common stock of Employer is owned, held or
controlled by an entity, person or group acting in concert with
the power to control the company as that term is defined in Rule
405 of the Securities Act of 1933; (iii) the sale or exchange of
in excess of 24.99 percent of the assets of Employer to any
entity, person or group acting in concert; (iv) the
recapitalization, reclassification of securities or
reorganizations of Employer which has the effect of either
subpart (ii) or (iii) above; (v) the issuance by Employer of
securities in an amount in excess of 24.99 percent of the
outstanding common stock of Employer to any entity, person or
group acting in concert and intending to exercise control of
Employer; or (vi) the removal, termination or retirement of more
than 50 percent of the members of the Board of Directors during any
consecutive 12-month period.
5.04 Certification by Plan Administrator
The Plan Administrator shall certify to the Trustee all pertinent
facts and information required to determine its proper action in
connection with retirement, disability, death and termination of
employment of Participants, and the Trustee may rely fully upon
information so certified and shall be fully protected in so
doing; but in the absence of appropriate certificates as to any
such facts or pertinent related facts, the Trustee may rely and
act upon other information which it reasonably believes to be
true.
ARTICLE VI
DISTRIBUTIONS
6.01 Method and Medium of Payment
The distribution of a Participant's nonforfeitable interest in
his Account shall be subject to the consent, in writing, of the
Participant and the Participant's spouse, if any. However, if the
value of the Participant's vested Account is not greater than
$3,500, the Plan Administrator shall require a distribution of
the value of the entire vested portion of the Participant's
Account. If a lump sum distribution is to be made after the
Annuity Starting Date, such distribution must be consented to in
writing by the Participant and the Participant's spouse, if any,
or where the Participant is dead, the surviving spouse,
regardless of the amount of the distribution.
(a) Definitions: The following definitions shall apply for
purposes of this Section 6.01:
(1) "Annuity Starting Date." Annuity Starting Date means the
first day of the first period for which an amount is payable as
an annuity, regardless of when or whether payment is actually
made. In the case of benefits not payable as an annuity, the
Annuity Starting Date is the date on which all events have
occurred which entitle the Participant to a benefit.
(2) "Election Period." Election Period means the period which
begins on the first day of the Plan Year in which the Participant
attains age 35 and ends on the date of the Participant's death.
If a Participant separates from service prior to the first day of
the Plan Year in which age 35 is attained, with respect to
benefits accrued prior to separation, the Election Period shall
begin on the date of separation.
(3) "Qualified Joint and Survivor Annuity." Qualified Joint and
Survivor Annuity means an annuity for the life of the Participant
with a survivor annuity for the life of the spouse which is not
less than 50 percent and not more than 100 percent of the amount
of the annuity which is payable during the joint lives of the
Participant and the spouse which is the actuarial equivalent of
the normal form of benefit, or if greater, any optional form of
benefit. A Qualified Joint and Survivor Annuity for a Participant
who is not married shall be an annuity for the life of such
Participant.
(b) Joint and Survivor Benefits
All Participants shall have their benefits distributed in the
form of an automatic joint and survivor annuity. This provision
shall apply to any Participant who:
(1) begins to receive payments under the Plan on or after Early
or Normal Retirement Age; or
(2) dies on or after Normal Retirement Age while still working
for the Employer; or
(3) separates from service on or after becoming vested in his
Account and thereafter dies before beginning to receive such
benefits.
The above provision is subject to a Qualified Election executed
during the Election Period.
Qualified Joint and Survivor Annuity: Unless an optional form of
benefit is selected within the Election Period pursuant to a
Qualified Election within the 90- day period ending on the date
benefit payments would commence, a Participant's vested Account
will be paid in the form of a Qualified Joint and Survivor
Annuity.
Qualified Pre-Retirement Survivor Annuity: Absent a Qualified
Election to the contrary, if a vested Participant dies, the
Participant's vested Account balance shall be applied toward the
purchase of an annuity for the life of the Participant's
surviving spouse, if any. The spouse of the deceased Participant
may elect to receive the full value of such Participant's Account
in a lump sum in lieu of the Qualified Pre-Retirement Survivor
Annuity.
The surviving spouse shall begin to receive payments immediately,
unless such surviving spouse elects a later date.
Failure to waive any joint and survivor annuity form of payment
will not result in a decrease in any Plan benefit with respect to
such Participant.
The Plan Administrator shall provide each Participant within the
applicable period, a written explanation of the Qualified
Pre-Retirement Survivor Annuity which shall contain the
following: 1) the terms and conditions of a Qualified
Pre-Retirement Survivor Annuity; 2) the Participant's right to
make and the effect of an election to waive this form of benefit;
3) the rights of the Participant's spouse; and 4) the right to
make, and the effect of, a revocation of a previous election to
waive the Qualified Pre-Retirement Survivor Annuity. In the case
of a Participant who enters the Plan after the first day of the
Plan Year in which the Participant attained age 32, the Plan
Administrator shall provide the required notice no later than the
close of the second Plan Year succeeding the entry of the
Participant in the Plan. For purposes of this notice, "applicable
period" means, with respect to a particular Participant, the
latest of the following:
(1) The period which begins with the first day of the Plan Year
in which the Participant attains age 32 and ending with the close
of the Plan Year preceding the Plan Year in which the Plan Year
in which the Participant attains age 35;
(2) a reasonable period after the Employee becomes a Participant;
(3) a reasonable period after this Section 6.01(b) no longer
applies to the Participant; or
(4) a reasonable period after the Participant's separation from
service in the case of a Participant who separates from service
before attaining age 35.
(c) Optional Forms of Benefit
Except as provided in paragraph (b) above, the distribution of a
Participant's nonforfeitable interest in his Account shall be
made by the Trustee to such Participant or his beneficiaries upon
his retirement, disability, death or termination of employment,
as the case may be, in cash or in kind, or part in cash and part
in kind, in one or a combination of two or more of the following
methods as such Participant or beneficiary, subject to a
Qualified Election, may request:
(1) in one sum, or
(2) in periodic distributions.
If any portion of a Participant's Account is to be distributed
pursuant to this Section 6.01 over a period of years, such
portion shall be distributed in substantially equal installments
over such number of years as shall not exceed:
(1) a period certain not extending beyond the life expectancy of
the Participant, or
(2) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a designated
beneficiary.
6.02 Special ESOP Distribution Requirements
This Section 6.02 shall apply to distributions of a Participant's
General Account and shall not act to eliminate any form or time
of distribution otherwise available under the Plan.
(a) Time of Distribution. Notwithstanding any other provision of
this Plan, other than such provisions as require the consent of
the Participant and the Participant's spouse to a distribution
with a present value in excess of $3,500, a Participant may elect
to have the portion of his General Account attributable to
Qualifying Employer Securities distributed as follows:
(1) If the Participant separates from service by reason of the
attainment of Normal Retirement Age, death or disability, the
distribution of such portion of the Participant's General Account
will begin not later than one year after the close of the Plan
Year in which such event occurs unless the Participant otherwise
elects pursuant to Section 6.01 hereof.
(2) If the Participant separates from service for any reason
other than those enumerated in paragraph (1) above, and is not
re-employed by the Employer at the end of the fifth Plan Year
following the Plan Year of such separation from service,
distribution of such portion of the Participant's General Account
will begin not later than one year after the close of the fifth
Plan Year following the Plan Year in which the Participant
separated from service unless the Participant otherwise elects
pursuant to Section 6.01 hereof.
(3) If the Participant separates from service for a reason other
than those described in paragraph (1) above, and is employed by
the Employer as of the last day of the fifth Plan Year following
the Plan Year of such separation from service, distribution to
the Participant, prior to any subsequent separation from service,
shall be in accordance with Section 6.01 hereof.
For purposes of this Section 6.02, Qualified Employer Securities
shall not include any Employer securities acquired with the
proceeds of a loan described in Article XII hereof until the
close of the Plan Year in which such loan is repaid in full.
(b) Form of Distribution. Distributions may be made either in
whole shares of Employer stock or in cash as the Plan
Administrator shall decide, provided that any distribution in
cash shall only be made after a Participant has been offered the
right to receive such distribution in shares of Employer stock.
In the event the distribution is to be made in Employer stock,
any balance in a Participant's Account will be applied to acquire
for distribution the maximum number of whole shares of Employer
stock at the applicable value. Any fractional share value
unexpended balance will be distributed in cash. If the Employer
stock is not available for purchase by the Trustee, then the
Trustee shall hold such balance until Employer stock is acquired
and then make such distribution. The Trustee will make
distribution from the Trust only on instructions from the Plan
Administrator.
(c) Period for Payment. Distributions required under this Section
6.02 shall be made in substantially equal annual payments over a
period of five years unless the Participant otherwise elects
under the provisions of Section 6.01 hereof. In no event shall
such distribution period exceed the period permitted in Section
401(a)(9) of the Code.
6.03 Mandatory Commencement of Benefits
Distribution hereunder shall commence not later than the 60th day
after the end of the Plan Year in which the later of the
following event occurs:
(a) the Participant attains the earlier of age 65, or Normal
Retirement Age;
(b) the 10th anniversary of the year in which the Participant
commences participation in the Plan; or
(c) the Participant terminates his employment with the Employer.
A Participant may elect to defer the commencement of distribution
hereunder to a date later than set forth above, provided,
however, that any such election must be made by submitting to the
Plan Administrator a written statement, signed by the
Participant, which written statement describes the method and
medium of distribution and the date on which such distribution
shall commence. If the Participant's entire interest is to be
distributed in other than a lump sum, then the amount to be
distributed each year must be at least an amount equal to the
quotient obtained by dividing the Participant's entire interest
by the life expectancy of the Participant or joint and last
survivor expectancy of the Participant and designated
beneficiary. Life expectancy and joint and last survivor
expectancy are computed by the use of the return multiples
contained in Section 1.72-9 of the Income Tax Regulations. For
purposes of this computation, a Participant's life expectancy may
be recalculated no more frequently than annually, however, the
life expectancy of a non-spouse beneficiary may not be
recalculated. If the Participant's spouse is not the designated
beneficiary, the method of distribution selected must assure that
more than 50 percent of the present value of the amount available for
distribution is paid within the life expectancy of the
Participant.
Anything above to the contrary notwithstanding, distributions of
a Participant's benefits must commence by April 1 of the calendar
year following the calendar year in which the Participant attains
age 70-1/2 in accordance with the minimum distribution
requirements of Section 401 (a)(9) of the Code . For purposes of
this minimum distribution, the Participant may elect prior to the
date of the first required distribution to have his life
expectancy and his spouse's life expectancy recalculated
annually. Such election shall be irrevocable once made, and shall
apply for all subsequent Plan Years. The Participant and his
spouse shall have the right to separately elect as to whether
each wants his life expectancy recalculated, and the election of
one shall not affect the election of the other. In the event that
either the Participant or his spouse fails to make an election,
his life expectancy shall be recalculated annually.
6.04 Distribution After Death of a Participant
If a Participant dies before any of his interest in the Plan has
been distributed, the Participant's interest shall be distributed
in one of the following methods:
(a) The entire interest of the Participant shall be distributed
no later than December 31 of the calendar year which contains the
fifth anniversary of the date of the Participant's death,
regardless of who is to receive the distribution.
(b) If the distribution is to be made to a designated
beneficiary, the distribution of a Participant's interest shall
commence not later than December 31 of the calendar year
immediately following the calendar year in which the Participant
died, and payments shall occur over a period not extending beyond
the life expectancy of such designated beneficiary. If
distribution is to be made to the Participant's surviving spouse,
distributions must commence on or before the later of: 1)
December 31 of the calendar year immediately following the
calendar year in which the Participant died, or 2) December 31 of
the calendar year in which the Participant would have attained
age 70 1/2. Such distributions shall occur over a period not
extending beyond the life expectancy of such designated
beneficiary.
A Participant or his spouse or designated beneficiary, subject to
a Qualified Election, may elect the method of distribution
described in subparagraph (b) above. Such election must be made
no later than the earlier of 1) the date which distribution would
have to occur according to the provisions of subparagraph (a)
above; or 2) the date which distribution would have to occur
according to the provisions of subparagraph (b) above. As of such
date, the election is irrevocable and shall apply for all
subsequent years and any subsequent beneficiaries. If no such
election is made, distribution shall be made in accordance with
subparagraph (a) above.
If the surviving spouse dies before the distribution to such
spouse begins, the payment of the Participant's interest shall be
made as if the surviving spouse were the Participant.
6.05 Right to Have Accounts Transferred
By notice to the Plan Administrator, a Participant entitled to a
distribution shall have the right to have the nonforfeitable
portion of his Account transferred to another plan and trust
which is qualified under Section 401(a) of the Code and is a
tax-exempt trust under the provisions of Section 501(a) of the
Code or to an Individual Retirement Account as provided under
Section 408 of the Code. Notwithstanding the preceding sentence,
no such transfer may occur to another qualified plan and trust
maintained by the Company.
6.06 Cash Dividend Option
Effective with the dividend paid on Employer stock as of
September 30, 1990, a Participant shall have the option to elect
to receive dividends in cash on Employer stock. This election
shall apply to all Participants who have a 100 percent
nonforfeitable interest in each of their Accounts pursuant to
Section 5.03. Participants may elect to receive quarterly
dividends in cash as of the end of June and the end of December.
Each June election shall apply to the next following September 30
and December 31 quarterly dividends. Each December election shall
apply to the next following March 31 and June 30 quarterly
dividends. Participant elections shall be made in writing in
accordance with procedures and forms provided by the Plan
Administrator. Employer dividends not elected in cash shall be
reinvested in additional shares of Employer stock.
ARTICLE VII
LIMITATION ON CONTRIBUTIONS AND BENEFITS
7.01 Limitation of Benefits
(a) Definitions: The following definitions shall apply for
purposes of this Section 7.01:
(1) "Annual Addition." Annual Addition means for each Plan Year
the sum of the following amounts credited to a Participant's
Account for the Limitation Year under all Defined Contribution
Plans maintained by the Employer:
(A) Employer contributions,
(B) Employee contributions,
(C) Forfeitures, and
(D) Any amounts allocated to an individual medical account (as
defined in Section 415(1)(1) of the Code) which is part of any
pension or annuity plan maintained by the Employer are treated as
Annual Additions to a Defined Contribution Plan. Amounts derived
from contributions paid or accrued after December 31, 1985 in
taxable years ending after such date which are attributable to
post retirement medical benefits allocated to the separate
account of a Key employee (as defined in Section 419A(d)(2) of
the Code) under a welfare benefit fund (as defined in Section
419(e) of the Code) maintained by the Employer are treated as
Annual Additions to a Defined Contribution Plan. These amounts
are treated as Annual Additions but are not subject to the 25 percent
of Compensation limit.
The Annual Addition for any Limitation Year beginning prior to
January 1, 1987 shall not be recomputed to treat all Employee
Contributions as an Annual Addition.
(2) "Compensation." Compensation means a Participant's earned
income, wages, salaries, fees for professional services and other
amounts received for personal services actually rendered in the
course of employment with the Employer maintaining the Plan
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips and bonuses),
but excluding the following:
(A) Employer contributions to a plan of deferred compensation
which are not included in the Employee's gross income for the
taxable year in which contributed, Employer contributions under a
simplified employee pension plan to the extent such contributions
are deductible by the Employee or any distributions from a plan
of deferred compensation;
(B) Amounts realized from the exercise of a nonqualified stock
option, or when restricted stock (or property) held by the
Employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture;
(C) Amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option; and
(D) Other amounts which received special tax benefits or
contributions made by the Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity described
in Section 403(b) of the Code (whether or not the amounts are
actually excludable from the gross income of the Employee).
(3) "Defined Contribution Plan." Defined Contribution Plan means
a pension plan or profit sharing plan which provides for an
individual account for each Participant and for benefits based
solely upon the amount contributed to the Participant's account
and any income, expenses, gains, losses and any forfeitures of
accounts of other Participants which may be allocated to such
Participant's account.
(4) "Limitation Year." Limitation Year means the Plan Year.
(b) Limitation on Annual Additions: Any other provision of this
Plan to the contrary notwithstanding, the maximum Annual Addition
allocated to the Account of any Participant under the Plan and
any other Defined Contribution Plan maintained by the Employer or
the Company may not exceed the lesser of:
(1) Thirty Thousand Dollars ($30,000) or, if greater, twenty-five
percent (25 percent) of the defined benefit dollar limitation set
forth in Section 415(b)(1) of the Code as in effect for the
Limitation Year, or
(2) Twenty-five percent (25 percent) of the Participant's
Compensation for the Limitation Year.
If, as the result of a reasonable error in estimating a
Participant's Annual Compensation, the allocation of forfeitures
or under other limited facts and circumstances as may be provided
under the Regulations to Section 415 of the Code, the Annual
Addition exceeds the maximum under this and any other Defined
Contribution Plan maintained by the Employer, an amount
attributable to the Employer's contribution for the current Plan
Year necessary to reduce the Annual addition to the maximum
Annual Addition shall be held in a separate account, and shall be
utilized to reduce the contribution of the Employer for the next
succeeding Plan Year and shall be accounted for accordingly by
the Trustee. Any such sums shall not share in the gains or losses
of the Trust Fund.
(c) Limitation of Benefits. Under All Plans: Where an Employee is
a Participant under the Plan and a defined benefit plan
maintained by the Employer, the sum of the defined contribution
fraction and the defined benefit fraction for any Limitation Year
may not exceed 1.0 as computed under the terms and conditions as
set forth under Section 415(e) of the Code.
For purposes of computing the defined contribution fraction for
any Limitation Year, the numerator shall be the sum of the Annual
Additions to the Participant's Account during such Limitation
Year and for all prior Limitation Years, and the denominator
shall be the lesser of:
(1) the product of 1.25 multiplied by the maximum permissible
dollar amount under Section 415(c)(1)(A) of the Code for such
year and for all prior years, or
(2) the product of 1.4 multiplied by the maximum permissible
percentage of compensation contributed under Section 415(c)(1)(B)
of the Code for such year and for all prior years.
For purposes of computing the defined benefit plan fraction for
any Limitation Year, the numerator shall be the Participant's
projected annual benefit under the defined benefit plan as of the
end of the Limitation Year and the denominator shall be the
lesser of:
(1) the product of 1.25 multiplied by the maximum permissible
dollar amount of benefit in effect under Section 415(b)(1)(A) of
the Code for such year, or;
(2) the product of 1.4 multiplied by the maximum permissible
percentage of compensation limitation of the amount of benefit in
effect under Section 415(b)(1)(B) of the Code for such year.
If the Defined Contribution Plans and the defined benefit plans
in which an Employee is a Participant satisfy the requirements of
Section 415 of the Code in effect for all Limitation Years
beginning prior to January 1, 1987, where necessary, an amount
shall be subtracted from the numerator of the defined
contribution fraction (not to exceed such numerator) as
prescribed by the Secretary of the Treasury so that the sum of
the defined benefit plan fraction and the defined contribution
fraction computed under Section 415(e)(1) of the Code does not
exceed 1.0 for such Limitation Year.
ARTICLE VIII
TOP HEAVY PROVISIONS
8.01 Definitions
The following definitions shall apply for purposes of this
Article VIII:
(a) "Aggregation Group." Aggregation Group shall mean the
following:
(1) Each plan of the Employer in which a Key Employee is a
Participant;
(2) Each other plan of the Employer (including a terminated plan
of the Employer if it was maintained within the last five years
ending on the Determination Date for the Plan Year being tested
for Top Heavy status) that allows a plan covering a Key Employee
to meet qualification requirements under the coverage rules of
Section 410 or the anti-discrimination rules of Section 401(a)(4)
of the Code;
(3) At the option of the Employer, any other Plan maintained by
the Employer as long as the expanded Aggregation Group including
such plan or plans continues to satisfy the coverage rules of
Section 410 and the antidiscrimination rules of Section 401(a)(4)
of the Code.
(b) "Determination Date." Determination Date shall mean the last
day of the Plan Year preceding the Plan Year which is being
tested for Top Heavy status. In the first Plan Year, the
Determination Date shall mean the last day of the Plan Year which
is being tested for Top Heavy status.
(c) "Key Employee." Key Employee means any Employee, former
Employee, or beneficiary of such Employees, who at any time
during the Plan Year or the four preceding Plan Years is:
(1) An officer of the Employer having Annual Compensation from
the Employer greater than 150 percent of the Section 415(c)(1)(A)
dollar limit,
(2) One of ten employees having Annual Compensation from the
Employer of more than the limitation in effect under Section
415(c)(1)(A) of the Code, and owning (or considered as owning
within the meaning of Section 318 of the Code) both more than
.5 percent interest as well as one of the ten largest interests
in the Employer. However, if two Employees have the same
ownership interest in the Employer, the Employee having the
greater Annual Compensation shall be treated as having the larger
interest,
(3) A 5 percent owner of the employer, or
(4) A 1 percent owner of the Employer having an Annual
Compensation from the Employer of more than $150,000.
For purposes of determining the top ten owners, 5 owners, or 1
percent owners, ownership is determined without regard to the
aggregation rules of Sections 414(b),(c) and (m) of the Code.
(d) "Non-Key Employee." Non-Key Employee means any Employee who
is not a Key Employee. Non-Key Employees include Employees who
are former Key Employees.
(e) "Valuation Date." Valuation Date means the last day of the
Plan Year.
8.02 Determination of Top Heavy Status
The plan will be considered Top Heavy if, as of the Determination
Date, the present value of cumulative accrued benefits under the
Plan for Key Employees exceeds 60 percent of the present value of
the cumulative accrued benefits under the Plan for all Employees.
In determining the ratio of accrued benefits for Key Employees to
all other Employees, the Plan Administrator shall use the
procedure as outlined in Section 416(g) of the Code which is
incorporated herein by reference. In determining whether the Plan
is considered Top Heavy, all plans within the Aggregation Group
will be utilized for the calculation.
Solely for the purpose of determining if the Plan, or any other
plan included in the Aggregation Group, is Top Heavy the accrued
benefit of an Employee other than a Key Employee shall be
determined under:
(a) The method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Employer or the
Company, or
(b) If there is no such method, as if such benefit accrued not
more rapidly than the slowest accrual rate permitted under the
fractional accrual rate of Section 411(b)(1)(C) of the Code.
The present value of cumulative accrued benefits of a Participant
who has not been credited with an Hour of Service for the
Employer maintaining the Plan during the five year period ending
on the Determination Date will be disregarded for purposes of
this Article VIII.
8.03 Combination of Defined Benefit and Defined Contribution Plan
In the event the Plan is deemed to be Top Heavy, the defined
benefit and defined contribution fraction set forth in Section
7.01(c) will be calculated by substituting 1.0 for 1.25. If a
Non-Key Employee participates in this Plan and a defined benefit
plan which are both Top Heavy, the minimum contribution
requirements for this Plan and the minimum benefit requirement
for the defined benefit plan, pursuant to Section 416 of the
Code, will be satisfied if such Participant is provided with a
contribution to the Plan equal to 5 percent of Annual
Compensation.
8.04 Minimum Contribution
In the event that the Plan in aggregation with any other Defined
Contribution Plans of the Employer is determined to be Top Heavy,
the Participants who are Non-Key Employees will be eligible for a
minimum contribution for such Plan Year. This minimum
contribution, which shall be allocated to the General Account of
Participants who are Non-Key Employees, will be contributed to
this Plan in an amount equal to 3 percent of Annual Compensation
or if less, the largest contribution percentage of Annual
Compensation provided on behalf of any Key Employee. The minimum
contribution required by this Section 8.04 shall be made on
behalf of such Participants who are employed as of the last day
of the Plan Year regardless of the number of Hours of Service
credited to each Participant for such Plan Year and regardless of
such Participant's level of Annual Compensation. If this minimum
contribution is provided by another Defined Contribution Plan of
the Employer, then this Section 8.04 will not apply to this Plan.
If part of this minimum contribution is provided by another
Defined Contribution Plan of the Employer, then the balance of
the minimum contribution shall be provided by this Plan.
8.05 Minimum Vesting
In the event the Plan is determined to be Top Heavy, each
Participant shall have a nonforfeitable interest in his Account
at least equal to the following schedule:
Years of Service Nonforfeitable Percentage
Less than 3 0 percent
3 or more 100 percent
Irrespective of this provision, the above schedule shall not
apply where the nonforfeitable interest in the Participant's
Account under Section 5.03 hereof would be greater.
ARTICLE IX
AMENDMENT OR TERMINATION
9.01 Amendment
The Employer reserves the right, at any time and from time to
time, to amend in whole or in part either retroactively or
prospectively any or all of the provisions of the Plan without
the consent of any Participant or his beneficiaries hereunder.
Such amendment shall be stated in an instrument executed by the
Employer and the Trustee in the same manner and form as the Plan
and upon the execution thereof, the Plan shall be deemed to have
been amended in the manner therein set forth and the Employer,
the Trustee and all Participants and their beneficiaries
hereunder shall be bound thereby; provided, however, that no
amendment:
(a) shall authorize, cause or permit any part of the Trust Fund
(other than such part as is required to pay taxes and
administrative expenses) to be used or diverted to purposes other
than the exclusive benefit of the Participants, former
Participants or their beneficiaries or estates;
(b) shall have the effect of vesting in the Employer any interest
in or control over any policies of insurance purchased hereunder
or over any part of the Trust Fund subject to the terms of the
Plan;
(c) shall affect the rights, duties or responsibilities of the
Trustee without its consent; or
(d) shall have any retroactive effect so as to deprive any
Participant of his nonforfeitable interest already accrued, or
eliminate an optional form of benefit, except only that any
amendment may be made retroactive which is necessary to conform
the Plan to mandatory provisions of federal or state law,
regulations or rulings.
Notwithstanding the foregoing, the Employer may unilaterally
amend the Plan without Trustee execution if the amendment does
not affect the rights, duties or responsibilities of the Trustee.
Such amendments, however, must be provided to the Trustee by the
Employer.
9.02 Plan Termination or Discontinuance of Contributions
The Employer shall have the right, at any time, to terminate the
Plan. Upon such termination, or any partial termination, the
entire interest of each Participant's Account shall become
nonforfeitable. Upon the discontinuance of the Employer's
contributions or suspension thereof on other than a temporary
basis, the entire interest of each Participant's Account shall
become nonforfeitable. Any unallocated funds existing at the time
of such termination or discontinuance shall be allocated to the
then Participants in the same manner as Employer contributions
under Section 4.02(a) hereof.
In the event the Employer terminates the Plan but does not
terminate the Trust Fund, the Trustee, in its sole discretion,
may either continue to maintain and administer the Trust Fund or
terminate the same. No termination of the Plan shall have the
effect of vesting in the Employer any interest in or control over
any part of the Trust Fund.
9.03 Merger, Consolidation or Transfer of Assets
The Plan may be merged, consolidated or its assets or liabilities
transferred to any other plan provided each Participant would
receive a benefit immediately after such merger, consolidation or
transfer, if the successor plan then terminated, which is equal
to or greater than the benefit he would have received immediately
prior to such merger, consolidation or transfer if the Plan were
to have terminated on such date.
ARTICLE X
ADMINISTRATION
10.01 Plan Administrator
The Employer shall appoint a Committee to administer the Plan.
The Committee shall be the Plan Administrator and each member of
such Committee shall be a Named Fiduciary. This Committee shall
consist of members who may be officers, other employees of the
Employer or any other individual. No member shall ever be
disqualified from exercising the powers and discretion herein
conferred by reason of the fact that such member is or may
thereafter be a Participant or entitled to benefits hereunder.
The members of the Committee shall serve at the pleasure of the
Employer. Any member may resign by delivering his written
resignation to the Employer and the Committee. Vacancies in the
Committee arising by resignation, death, removal or otherwise,
shall be filled by the Employer.
(a) Powers and Duties. The Committee shall administer the Plan in
accordance with its terms and shall have all powers necessary to
administer the Plan in accordance with the provisions set forth
in the Plan. The Committee shall interpret the Plan and shall
determine all questions arising in the administration,
interpretation and application of the Plan. Any such
determination by the Committee shall be conclusive and binding on
all persons, subject to the claims procedure as set forth in
Section 10.03 hereof.
(b) Organization and Operation of Committee.
The Committee shall act by a majority of its members at that time
in office and such action may be taken either by a vote at a
meeting or taken in writing by unanimous consent without a
meeting. The Committee may authorize any one or more of its
members to execute any document or documents on behalf of the
Committee, in which event the Committee shall notify the Trustee
in writing of such action and the name or names of its member or
members so designated. The Trustee thereafter shall accept and
rely upon any document executed by such member or members as
representing action by the Committee until the Committee shall
file with the Trustee a written revocation of such designation.
The Committee may adopt such by-laws and regulations as it deems
desirable for the conduct of its affairs, and may appoint such
accountant, counsel, specialists, and other persons as it deems
necessary or desirable in connection with the administration of
the Plan. The Committee shall be entitled to rely conclusively
upon and shall be fully protected in any action taken by it in
good faith in relying upon, any opinions or reports which shall
be furnished to it by any such accountant, counsel or other
specialists.
(c) Payment of Expenses. The members of the Committee shall serve
without compensation for services as such, but all expenses of
the Committee shall be paid by the Employer. Such expense shall
include any expenses incident to the functioning of the
Committee, including but not limited to, fees of accountants,
legal counsel, investment counsel and other specialists, and
other costs of administering the Plan. At the option of the
Committee, reasonable and necessary expenses of administering the
Plan as described in this Section to include expenses incurred to
properly communicate the Plan to employees may be paid by the
Trustee from the Trust Fund. The committee shall act as a prudent
buyer of services by purchasing in a prudent manner and by
securing engagement letters and itemized billings.
(d) Limitation on Liability. It is intended to allocate to the
Committee only those responsibilities included in this Section
and the Employer shall indemnify each Committee member against
personal loss by reason of service as a Committee member. The
Committee shall have no responsibility for the custody or
management of the Trust Fund or for the evaluation of the
investment performance of such Trust Fund.
10.02 Records and Reports
The Committee shall keep a record of all its proceedings and
acts, and shall keep all such books of accounts, records and
other data as may be necessary for the proper administration of
the Plan. The Committee shall notify the Trustee and the Employer
of any action taken by it and when required, shall notify any
other interested person or persons.
10.03 Claims Procedure
A claim for a Plan benefit shall be deemed filed when a written
communication is made by a Participant or beneficiary, or the
authorized representative of either, which is reasonably
calculated to bring the claim to the attention of the Plan
Administrator.
If no claim is wholly or partially denied, notice of such
decision shall be furnished to the claimant in writing within 90
days after receipt of the claim by the Plan Administrator. Such
notice shall set forth, in a manner calculated to be understood
by the claimant: (l) the specific reason or reasons for the
denial; (2) specific reference to pertinent Plan provisions on
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) an explanation of the Plan's claim review procedure.
Within 90 days from the receipt of the notice of denial, a
claimant may appeal such denial to the Plan Administrator for a
full and fair review. The review shall be instituted by the
filing of a written request for review by the claimant or his
authorized representative within the 90-day period stated above.
A request for review shall be deemed filed as of the date of
receipt of such written request by the Plan Administrator. The
claimant or his authorized representative shall have the right to
review all pertinent documents, may submit issues and comments in
writing and may do such other appropriate things as the Plan
Administrator may allow. The decision of the Plan Administrator
shall be made not later than 60 days after the receipt of the
request for review; unless special circumstances, such as the
need to hold a hearing, requires an extension of time, in which
case, a decision shall be rendered not later than 120 days after
the receipt for review which decision shall be final and binding
on such claimant.
10.04 Participant's Right to Vote Employer Stock
Each Participant shall be entitled to direct the exercise of
voting rights with respect to the whole shares of stock allocated
to said Participant's Account. The Company shall provide to each
Participant materials pertaining to the exercise of such rights
containing all the information distributed to shareholders as
part of its distribution of such information to shareholders. A
Participant shall have the opportunity to exercise any such
rights within the same time period as shareholders of the
Company. In the exercise of voting rights, votes representing
fractional shares of stock and shares of stock held in
unallocated inventory shall be voted in the same ratio for the
election of directors and for and against each issue as the
applicable vote directed by Participants with respect to whole
shares of stock.
ARTICLE XI
EXEMPT LOAN
11.01 Definition of Exempt Loan
An Exempt Loan is a direct loan of cash, a purchase money
transaction, an assumption of the obligation of the Plan, or a
guarantee of the obligation of the Plan assumed in conjunction
with one of the above between the Plan and a party-in-interest as
defined in Section 3(14) of ERISA.
11.02 Requirements for an Exempt Loan
Any exempt loan entered into by the Plan shall meet the following
requirements:
(a) The loan shall primarily be for the benefit of Participants.
The rate of interest shall be reasonable and the net effect of
the rate of interest and the price of the securities to be
acquired with the loan shall be such that Plan assets would not
be depleted. The loan shall be made only upon such terms as would
result from arm's length negotiations between the Plan and
independent third parties.
(b) The proceeds received shall be used only to acquire Employer
securities, to repay the loan or to repay a prior exempt loan.
(c) The loan shall be made without recourse against the general
assets of the Plan. The collateral shall consist only of
securities acquired with the proceeds of the loan, or securities
acquired with proceeds of a prior exempt loan if the prior exempt
loan is being paid with proceeds of the current exempt loan.
There shall be no right of any lender to the Plan against assets
of the Plan other than collateral given for the loan,
contributions made to the Plan to meet the obligations of the
loan, and earnings attributable to collateral and investment of
the contributions made to meet the obligations of the loan. In
the event of default the amount of Employer stock transferred to
the lender in satisfaction of a default cannot exceed the amount
of such default. In the case of a default in favor of a
party-in-interest, the default shall only be to the extent of
current payments due.
(d) Payments made by the Plan to repay an exempt loan shall not
exceed an amount equal to contributions and earnings received
during or prior to the year minus such payments in prior years.
The Employer stock purchased with the proceeds of the loan shall
be held in a suspense account until the stock is released from
the suspense account and allocated to the Participant's General
Account. Stock released from the suspense account must be equal
to an amount calculated by multiplying the amount of encumbered
stock by the fraction of the principal and interest paid for the
Plan Year divided by the sum of the principal and interest paid
for the Plan Year plus principal and interest for all future
years.
(e) The Employer stock acquired with the proceeds of an exempt
loan shall not be subject to any option other than the option
provided for in Section 11.03 or a buy-sell or similar
arrangement when the stock is held by or distributed from the
Plan whether or not the Plan ceases to be an ESOP or the exempt
loan is fully repaid.
11.03 Right of First Refusal
Employer stock acquired with the assets of an exempt loan may be
subject to a right of first refusal in the Employer, or in the
Plan. The right of first refusal shall comply with the following
requirements:
(a) The selling price and other terms under the right of first
refusal must be not less favorable to the security holder than
the greater of the fair market value of the security as
determined under Article XIII, or the purchase price or other
terms offered by a third person pursuant to a good faith offer to
purchase.
(b) The right of first refusal must lapse no later than fourteen
(14) days after the security holder gives written notice to the
Employer that an offer by a third party to purchase the stock has
been received.
ARTICLE XII
TRUSTEE
12.01 Fiduciary Status
The Trustee shall be a Named Fiduciary and agrees to accept the
duties and responsibilities attendant thereto.
12.02 Establishment and Acceptance of Trust
The Trustee shall receive any contributions paid to it. All
contributions so received, together with the income therefrom,
shall be held, managed and administered in the Trust pursuant to
the terms of the Plan. The Trustee hereby accepts the Trust
created hereunder and agrees to perform its duties under the
Plan.
12.03 Trustee's General Powers
The Trustee shall have the following powers and authority in the
administration of the Trust Fund:
(a) To primarily hold and invest in Qualifying Employer
Securities such that the Plan maintains its status as an Employee
Stock Ownership Plan, but subject to the Fiduciary requirements
of ERISA.
(b) To hold, sell, invest, reinvest, convey, exchange, mortgage,
pledge, option, lease for any term of years irrespective of the
period of any trust hereunder and with or without privilege or
option or purchase (including 99-year leases renewable forever),
or otherwise deal in and dispose of all or any part of the Trust
property, without order of court at public or private sale, for
cash or on credit, for such considerations and on such terms and
conditions as the Trustee, in its uncontrolled discretion, may
deem either necessary, advisable or expedient; and no purchaser,
mortgagee, pledgee, optionee, lessee or any other person or
persons dealing with the Trustee shall be required or permitted
to see the application of any purchase money or Trust Funds, or
be required or permitted to inquire into the power of authority
of the Trustee or into the validity, necessity, advisability or
expediency of any act of the Trustee.
(c) To vote upon any stocks, bonds or other securities; to give
general or special proxies or powers of attorney with or without
power of substitution; to exercise any conversion privileges,
subscription rights or other options, and to make any payments
incidental thereto; to oppose or to consent to, or otherwise
participate in corporate reorganizations or other changes
affecting corporate securities, and to delegate discretionary
powers and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of an
owner with respect to stocks, bonds, securities or other property
held as part of the Trust fund. Such powers shall be subject to
the voting rights granted Participants under Article X.
(d) To cause any securities, real property or other tangible or
intangible property held as part of the Trust Fund to be
registered or titled in its own name or in the name of one or
more of its nominees, and to hold any investments in bearer form,
but the books and records of the Trustee shall at all times show
that all such investments are part of the Trust Fund.
(e) To borrow in a manner consistent with Article XI regarding
Exempt Loans.
(f) To borrow, for not more than 12 months, for the purpose of
the Trust, but not as described in Article XI, in any amount or
amounts, not exceeding in the aggregate 25 percent of the fair
market value of the Trust Fund as of the date of borrowing and
upon such terms and conditions as the Trustee shall deem
advisable; and, for any sum so borrowed, to issue promissory
notes as Trustee, and to secure the repayment thereof by pledging
all or any part of the Trust Fund; and no person lending money to
the Trustee shall be bound to see to the application of the money
lent or to inquire into the validity, expedience or propriety of
any such borrowing.
(g) To keep such portion of the Trust Fund in cash or cash
balances as the Trustee may, from time to time, deem to be in the
best interests of the Trust created hereby, without liability for
interest thereon.
(h) To accept and retain for such time as the Trustee may deem
advisable any securities or other property received or acquired
by it as Trustee hereunder, whether or not such securities or
other property would normally be purchased as investments
hereunder.
(i) To make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and all other instruments
that may be necessary or appropriate to carry out the powers
herein granted.
(j) To settle, compromise or submit to arbitration any claims,
debts or damages due or owing to or from the Trust Fund, to
commence or defend suits or legal or administrative proceedings
and to represent the Trust Fund in all suits and legal and
administrative proceedings.
(k) To employ suitable agents, investment counsel and legal
counsel (who may be counsel for the Employer), and to pay their
reasonable expenses and compensation.
(l) To do all such acts, take all such proceedings and exercise
all such rights and privileges, although not specifically
mentioned herein, as the Trustee may deem necessary to administer
the Trust Fund and to carry out the purpose of this Trust.
12.04 Payment of Compensation, Expenses and Taxes
The Trustee shall be paid such reasonable compensation as shall
from time to time be agreed upon in writing by the Employer and
the Trustee. In the event that a Trustee is also an Employee of
the Employer, no compensation shall be payable for services as
Trustee. In addition, the Trustee shall be reimbursed for any
reasonable expenses, including legal counsel fees and investment
counsel fees, incurred in the administration of the Trust Fund.
Such compensation and expenses shall be paid by the Employer, but
until paid shall constitute a charge upon the Trust Fund. All
taxes of any and all kinds whatsoever that may be levied or
assessed under existing or future laws upon, or in respect of,
the Trust Fund or the income therefrom shall be paid from the
Trust Fund.
12.05 Accounting
The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions
hereunder. All accounts, books and records relating to such
transactions shall be opened to inspection and audit at all
reasonable times by any person designated by the Plan
Administrator.
12.06 Trustee's General Powers
The Trustee shall discharge its duties with respect to the Plan
solely in the interest of the Participants and their
beneficiaries for the exclusive purpose of providing benefits to
Participants and their beneficiaries. The Trustee shall discharge
its duties with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man, acting in like
capacity and familiar with such matters, would use in the conduct
of an enterprise of a like character and with like aims. The
Trustee shall discharge its duties in accordance with the terms
and provisions of the Plan.
12.07 Voting Employer Stock
All unallocated Employer stock of each Participant shall be voted
by the Trustee in accordance with instructions received from the
Plan Administrator. The Trustee shall not exercise its power to
vote any Employer stock for which it has not received
instructions.
12.08 Removal, Resignation and Appointment of Successor Trustee
The Trustee may be removed by the Employer at any time upon 30
days' written notice to the Trustee and the Plan Administrator.
The Trustee may resign at any time upon 30 days' written notice
to the Employer and the Plan Administrator. Upon such removal or
resignation of the Trustee, the Employer shall appoint a
successor trustee or trustees who shall have the same powers and
duties as those conferred upon the Trustee hereunder. Upon
acceptance of such appointment by the successor trustee, the
Trustee shall assign, transfer and pay over to such successor the
funds and properties then constituting the Trust Fund. The
Trustee is authorized, however, to reserve such sum of money as
it may deem advisable for payment of its fees and expenses in
connection with the settlement of its account or otherwise, and
any balance of such reserve remaining after the payment of such
fees and expenses shall be paid over to the successor trustee.
12.09 Investment Manager
The investment powers conferred upon the Trustee shall be
exercised by the Trustee in its sole discretion; provided,
however, that the Plan Administrator may, at any time and from
time to time, appoint one or more:
(a) banks as defined in the Investment Advisors' Act of 1940, or;
(b) persons registered as an Investment Advisor under said Act,
to act as Investment Manager(s) of all such portions of the Trust
assets as the Plan Administrator in its sole discretion shall
direct. In order to serve as Investment Manager, any such bank or
person must state in writing to the Plan Administrator and the
Trustee that it meets the requirements set forth in this Section
12.09 to be an Investment Manager and that it acknowledges that
it shall be a fiduciary with respect to this Trust during all
periods that it shall serve as such. During any period in which
an Investment Manager has been appointed and is serving with
respect to the Trust assets or any portion thereof, it shall have
all powers normally given to the Trustee under this Article XII
with respect to the management, acquisition or disposition of any
asset of the Trust Fund, or such portion thereof and the Trustee
shall have no powers, duties or obligations with respect to the
investment, management, acquisition or disposition of such
assets. The Investment Manager shall be entitled to receive such
reasonable compensation and such reimbursement of his expenses on
such basis or in such amounts as may be agreed to or approved
from time to time by the Plan Administrator. Such compensation
and expenses shall be borne and paid from the Trust as a regular
charge and expense thereof, unless otherwise paid by the
Employer. At any time, the Plan Administrator by written notice
to the Investment Manager and the Trustee, may change that
portion of the Trust assets subject to management by the
Investment Manager. Any Investment Manager may resign at any time
by giving written notice to the Plan Administrator and the
Trustee of its intention to do so at least 30 days before such
resignation is to become effective, unless the Plan Administrator
shall accept as adequate a shorter notice. The Plan Administrator
may remove any Investment Manager by written notice delivered to
the Investment Manager and the Trustee at least 30 days before
such removal is to become effective unless the Investment Manager
shall accept as adequate a shorter notice. Unless the Plan
Administrator appoints a successor to an Investment Manager which
has resigned or been removed, or which is no longer managing a
portion of the Trust assets, the powers, duties and obligations
of the Trustee with respect to the portion of the Trust assets
formerly managed by the Investment Manager shall be automatically
restored.
12.10 Payment of Expenses
Pursuant to instruction of the Company, the Trustee shall pay
from the Trust Fund all reasonable and necessary expenses, taxes
and charges incurred on behalf of the Fund or the income thereof
in connection with the administration or operation of the Trust
Fund to the extent that such items are not otherwise paid. No
provision of this Plan shall be construed to provide for payment
to or the reimbursement of the Trustee (or any employee or agent
of the Trustee) with respect to any liability or expense
(including counsel fees) that may be incurred by the Trustee (or
any employee or agent) having been found to have breached any
responsibility it may have under the other provisions of this
Plan or any responsibility or prohibition imposed upon it by
ERISA.
ARTICLE XIII
INVESTMENT OF THE TRUST FUND
13.01 General Investment Fund
The Trustee shall have the right to combine the Accounts of the
Participants, except such portion of the Accounts as may have
been otherwise invested pursuant to this Article XIII, into a
general fund, hereinafter called the "General Investment Fund",
for the purpose of a general trust investment.
The Trustee shall invest and reinvest the principal and income of
the General Investment Fund, and shall keep it invested, without
distinction between principal and income, in any common or
preferred stocks, bonds, notes, mortgages, guaranteed dollar
amount or variable dollar amount annuities, or other securities,
including qualifying real estate or qualifying securities of the
Employer, real estate, shares of regulated investment companies,
common or collective trust funds, or in property of any kind or
nature, whether or not such investment be expressly authorized or
permitted by statutes, court decisions, regulations or other
restrictions of law prescribing investments or other actions by
fiduciaries, it being the intention that except as otherwise
restricted by the provisions of the succeeding paragraphs of this
Section 13.01, the Trustee shall be relieved from all
restrictions imposed by present or future laws on investments
which may be made by a trustee; provided, however, the Trustee
may, in its discretion, pending investment, temporarily retain in
cash or cash balances, or in a savings account maintained by the
Trustee in any bank or financial institution, including any bank
serving as Trustee hereunder, and bearing a reasonable rate of
interest, or in short term government obligations or commercial
papers, such portion of the General Investment Fund as it may
deem advisable.
In acquiring, investing, reinvesting, exchanging, retaining,
selling, and managing property for the General Investment Fund,
the Trustee shall act solely in the interests of the Participants
and beneficiaries of the Plan with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent
man acting in like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character and with
like aims.
In directing or making such investment, the Trustee shall not be
restricted to securities or other property of the character
authorized or required by applicable law from time to time for
trust investment and shall permit the value of any qualifying
securities and qualifying real property of the Employer in the
General Investment Fund to exceed 10 percent of the fair market
value of the General Investment Fund.
The Trustee shall diversify the investments of the General
Investment Fund so as to minimize the risk of large losses,
unless under the circumstances it is clearly prudent not to do
so.
The Trustee shall revalue the assets of the General Investment
Fund at their fair market value as of the end of each Plan Year
and at such other time as the Plan Administrator may direct. The
Account of each Participant shall then be adjusted by
apportioning the General Investment Fund, including income, as
thus revalued, among Participants' Accounts in proportion to the
value of their respective interests in the General Investment
Fund immediately preceding such revaluation.
13.02 Appraisal of Employer Stock
Annually, as of the last day of the Plan Year, the Employer shall
have made an appraisal of the Employer stock by a person who
customarily makes such appraisals and who is independent of the
Plan or the Employer, but only if the Employer stock is not
traded on a recognized exchange. For all purposes except with
regard to a transaction between the Plan and a party-in-interest,
the value as of the most recent Anniversary Date shall be used.
For all transactions between the Plan and a party-in-interest as
that term is defined in Section 3(14) of ERISA, the value of the
Employer stock must be determined as of the date of the
transaction. In the event of such transaction, the Employer shall
have made an independent appraisal of the Employer stock as of
the date of the transaction by a person who customarily makes
such appraisals and who is independent of the Plan or the
Employer.
13.03 Diversification of Investments
This Section 13.03 applies only to a Participant's General
Account.
(a) Definitions.
(1) "Qualified Participant" means a Participant who has attained
age 55 and who has completed at least ten years of participation
in the Plan.
(2) "Qualified Election Period" means the period of participation
after the Participant becomes a Qualified Participant.
(b) Election by Qualified Participants. Each Qualified
Participant shall be permitted to direct the Plan as to the
investment of 25 percent of the value of the Participant's
Account during his Qualified Election Period. A Qualified
Participant who attains age 60 may direct the Plan as to the
investment of 50 percent of the value of his Account during his
remaining Qualified Election Period.
(c) Method of Directing Investment. The Participant's direction
shall be provided to the Plan Administrator in writing; shall be
effective no later than 180 days after the close of the Plan Year
to which the direction applies; and shall specify which, if any,
of the options set forth in subsection (d) below the Participant
selects.
(d) Investment Options.
(1) At the election of the Qualified Participant, the Plan shall
distribute (notwithstanding Section 409(d) of the Code) the
portion of the Participant's Profit Sharing Contributions Account
that is covered by the election within 90 days after the last day
of the period during which the election can be made. Such
distribution shall be subject to such requirements of the Plan
concerning put options as would otherwise apply to a distribution
of Qualifying Employer Securities from the Plan. This Section
13.03(d)(1) shall apply notwithstanding any other provision of
the Plan other than such provision as require the consent of the
Participant to a distribution with a present value in excess of
$3,500. If the Participant does not consent, such amount shall be
retained in this Plan.
(2) In lieu of distribution under Section 13.03(d)(1) hereof, the
Qualified Participant who has the right to receive a cash
distribution under Section 13.03(d)(1) hereof may direct the Plan
to transfer the portion of the Participant's Profit Sharing
Contributions Account that is covered by the election to another
qualified plan of the Employer which accepts such transfers,
provided that such Plan permits Employee-directed investment and
does not invest in Qualifying Employer Securities to a
substantial degree. Such transfer shall be made no later than 90
days after the 1st day of the period during which the election
can be made.
(3) In lieu of alternatives (l) and (2) of this Section 13.03(d),
the Participant shall be provided an opportunity to select among
at least three investment options to include, but not limited to,
a stock fund, a bond fund and a money market or cash equivalent
fund. The Participant's election shall be made in accordance with
rules and procedures established by the Committee with amounts
invested in one or more funds in increments of at least 10
percent.
ARTICLE XIV
MISCELLANEOUS
14.01 Participant's Rights
Neither the establishment of the Plan, nor any modification
thereof, nor the creation of any fund or account, nor any
distributions hereunder, shall be construed as giving to any
Participant or other person any legal or equitable right against
the Employer, or any officer or Employee thereof, or the Trustee,
or the Plan Administrator except as herein provided. Under no
circumstances shall the terms of employment of any Participant be
modified or in any way affected thereby.
14.02 Assignment or Alienation of Benefits
No benefit or interest available hereunder will be subject to
assignment or alienation, either voluntarily or involuntarily.
The preceding sentence shall also apply to the creation,
assignment, or recognition of a right to any benefit payable with
respect to a participant pursuant to a domestic relations order,
unless such order is determined to be a Qualified Domestic
Relations Order or any domestic relations order entered before
January 1, 1985. For purposes of this Section 14.02, "Qualified
Domestic Relations Order" means any domestic relations order
which creates or recognizes the existence of an alternate payee's
right to, or assigns to an alternate payee the right to, receive
all or a portion of the benefits payable with respect to a
Participant, and which otherwise meets the requirements of
Section 414(p) of the Code.
As soon as practical after receipt of a domestic relations order,
the Plan Administrator shall determine whether it is a Qualified
Domestic Relations Order. If the domestic relations order is
determined to be a Qualified Domestic Relations Order, the Plan
Administrator shall be permitted, in accordance with rules and
regulations promulgated by the Internal Revenue Service and the
rules and regulations established by the Plan Administrator, to
direct the Trustee to make an immediate distribution to the
alternate payee (i) if the amount is less than $3,500, (ii) as
provided in any such Order, or (iii) as elected by the alternate
payee. Such distribution shall be permitted regardless of the age
or employment of the Participant and regardless of whether the
Participant is otherwise entitled to a distribution.
14.03 Reversion of Funds to Employer
All Employer contributions are conditioned upon their
deductibility pursuant to Section 404 of the Code. The Employer
shall not directly or indirectly receive any refund on
contributions made to the Trust Fund except in the following
circumstances:
(a) the contribution was made by reason of a mistake of fact,
(b) the deduction for such contribution is disallowed, or
(c) the initial qualification of the Plan, or subsequent
qualification of the Plan resulting from a Plan amendment, is
denied under the Code.
Earnings attributable to any contribution subject to refund shall
not be refunded. The amount subject to refund shall be reduced by
any loss attributable thereto, and by any amount which would
cause the individual account of any Participant to be reduced to
less than the balance which would have been in the account had
the contribution subject to refund not been made. The return of
the contribution shall be made within one year of the mistaken
payment, the disallowance of deduction (to the extent disallowed)
or the denial of qualification, as the case may be.
Except as provided above, under no circumstances shall any amount
of the principal or income of the Trust Fund be used for or
diverted to the Employer or be used for or diverted to purposes
other than the exclusive benefit of Participants, former
Participants, and their beneficiaries.
14.04 Third Party Immunity
No third party, including but not limited to life insurance
companies and regulated investment companies, shall be deemed to
be a party to the Plan for any purpose or to be responsible for
the validity of the Plan; nor shall such third party be required
to take cognizance of the Trustee or of the Plan Administrator
hereunder, nor shall such third party be responsible to see that
any action of the Trustee or the Plan Administrator is authorized
by the terms of the Plan. Any such third party shall be fully
discharged from any and all liability for any amount paid to the
Trustee or paid in accordance with the direction of the Trustee
or the Plan Administrator, as the case may be, or for any change
made or action taken by such third party upon such direction; and
no such third party shall be obligated to see to the distribution
or further application of any monies so paid by such third party.
14.05 Delegation of Authority by Employer
Whenever the Employer, under the terms of the Plan, is permitted
or required to do or perform any act or matter or thing, it shall
be done and performed by any officer thereunto duly authorized.
14.06 Allocation of Responsibilities
None of the allocated responsibilities or any other
responsibilities shall be shared by any two or more Named
Fiduciaries unless such sharing is provided by a specific
provision of the Plan. Whenever one Named Fiduciary is required
to follow the directions of another Named Fiduciary, the
responsibility shall be that of the Named Fiduciary giving the
directions.
14.07 Construction of Plan
To the extent not in conflict with the provisions of ERISA, all
questions of interpretation of the Plan shall be governed by the
laws of the State of Ohio.
14.08 Gender and Number
Wherever any words are used herein in the masculine gender, they
shall be construed as though they were also used in the feminine
gender in all cases where they would so apply, and wherever any
words are used herein in the singular form, they shall be
construed as though they were also used in the plural form in all
cases where they would so apply.
14.09 Headings
Headings of sections are for general information only, and the
Plan is not to be construed by reference thereto. Executed at
Bowling Green, Ohio, the day and year first above written.
Mid Am, Inc.
Robin Wooddall By W. Granger Souder
Witness Its Senior Vice President/General Counsel
Mid American National Bank & Trust Company
Karen Simons By David E. Judy VP/TO
Witness
J. Philip Ruyle SVP/TO
APPENDIX A
LIST OF PARTICIPATING EMPLOYERS
EMPLOYER EFFECTIVE DATE
Mid Am, Inc. July 1, 1989
Mid American National Bank & Trust Company July 1, 1989
First National Bank Northwest Ohio July 1, 1989
Farmers Banking Company July 1, 1989
Citizens Building & Loan July 1, 1990
Mid Am Information Services, Inc. January 1, 1991
American Community Bank, NA October 31, 1992
(* merger of Farmers & Citizens)
Home Federal Savings January 1, 1993
Apollo Savings July 1, 1993
AmeriFirst March 19, 1993
(* merger of Home Federal & Apollo)