ARTICLE I
INTRODUCTION
Section 1.01. The purpose of this Plan is to enable
participating Employees to share in the growth and prosperity
of DENTSPLY International Inc. (the "Company") and to provide
Participants with an opportunity to accumulate capital for
their future economic security. The Plan is intended to do
this without requiring any contributions from Participants.
The primary purpose of the Plan is to enable Participants to
acquire stock ownership interests in the Company. Accordingly,
Employer Contributions to the Plan will be invested primarily
in Company Stock.
Section 1.02. The Plan is designed to provide a technique
of corporate finance to the Company. Therefore, it may be used
to accomplish the following objectives:
(a) To provide Participants with beneficial
ownership of Company Stock, substantially in
proportion to their relative Covered Compensation,
without requiring any cash outlay, any reduction in
pay or other benefits, or the surrender of any other
rights on the part of Participants:
(b) To meet general financing requirements of
the Company, including capital stock growth and
transfer in the ownership of Company Stock; and
(c) To receive loans (or other extensions of
credit) to finance the acquisition of Company Stock,
with such loans (or credits) secured primarily by a
commitment by the Company to pay Employer
Contributions to the Trust in amounts sufficient to
enable principal and interest on such loans to be
repaid.
D11
Section 1.03. This Plan, effective January 1, 1982 and
amended and restated at various times thereafter, is a
combination of a stock bonus plan under Section 401(a) of the
Code, and an employee stock ownership plan within the meaning
of Section 4975(e)(7) of the Code and Section 407(d)(6) of
ERISA. A tax credit portion of this Plan, effective January 1,
1981 and suspended following contributions for the Plan Year
ended December 31, 1986, was terminated effective January 1,
1994 with all Participants' tax credit accounts merging with
the Participants' Company Stock Accounts under the Plan. As
part of this amendment and restatement, the Plan is being
amended to comply with recent tax law changes (such amendment
generally being effective as of January 1, 1997 unless as
otherwise provided).
Section 1.04. All Trust Assets acquired under the Plan as
a result of Employer Contributions, income and other additions
to the Trust will be administered, distributed, forfeited and
otherwise governed by the provisions of the Plan. All such
assets will be held in the Trust by the Trustee in accordance
with the provisions of the Trust Agreement. This Plan shall be
administered by a Committee for the exclusive benefit of
Participants (and their Beneficiaries).
D11
ARTICLE II
DEFINITIONS
In this Plan, whenever the context so indicates, the
singular or plural and the masculine, feminine or neuter gender
shall each be deemed to include the others; the term "he",
"his", and
"him" shall refer to an Employee or a Participant; references
to a section of the Code, Treasury Regulation, Labor Regulation
or ERISA shall include any subsequent amendments to such
section; and the capitalized terms shall have the following
meanings:
Section 2.01. Account. One of the accounts maintained
to record the allocated interest of each Participant in the
Plan.
Section 2.02. Affiliated Company. Affiliated Company
shall mean (i) any corporation or entity which is a member of a
controlled group of corporations or other entities with the
Company (as defined in Sections 414(b) and 414(c) of the Code
and, for purposes of Section 6.03, as modified by Section
415(h) of the Code), (ii) any organization (whether or not
incorporated) which is a member of an affiliated service group
with the Company (as defined in Section 414(m) of the Code),
and (iii) any other entity required to be aggregated with the
Company pursuant to regulations under Section 414(o) of the
Code.
Section 2.03. Anniversary Date. The 31st day of
December of each Plan Year.
D11
Section 2.04. Approved Absence. A leave of absence from
work approved for an Employee by an Employer under its
established leave policy.
Section 2.05. Beneficiary. The person (or persons)
entitled to receive any benefits under the Plan in the event of
a Participant's death.
Section 2.06. Board of Directors. The present or any
succeeding Board of Directors of the Company.
Section 2.07. Break in Service. An elapsed period of
twelve (12) consecutive months following a Participant's
Termination of Service during which the Participant does not
perform an Hour of Service. In the case of an Employee who
takes a leave of absence and subsequently returns to work under
circumstances that, under the Family and Medical Leave Act of
1993, entitle such Employee upon his return to an equivalent
position with the Employer, the period of such leave shall not
be counted in determining whether the Employee has incurred a
Break in Service.
Section 2.08. Capital Accumulation. A Participant's
vested (nonforfeitable) interest in his Accounts under the Plan.
Section 2.09. Code. The Internal Revenue Code of 1986,
as amended.
D11
Section 2.10. Committee. The Committee appointed by the
Board of Directors to administer the Plan and to give
instructions to the Trustee.
Section 2.11. Company. DENTSPLY International Inc. and
its successors and assigns.
Section 2.12. Company Stock. Any qualifying employer
security within the meaning
of Section 407(d)(5) of ERISA and regulations thereunder.
Section 2.13. Company Stock Account. An Account of a
Participant which is credited with his allocable share of
Company Stock purchased and paid for by the Trust or
contributed to the Trust.
Section 2.14. Covered Compensation. The total cash
compensation paid to a Participant by an Employer for a Plan
Year, including salary and wages, overtime-compensation,
vacation pay, bonuses and commissions, and any accrued vacation
pay, commissions and bonuses due a Participant retiring during
the Plan Year as a result of service in that Plan Year, but
excluding any contributions to this Plan and any other deferred
compensation plan. As of January 1, 1998, Covered Compensation
shall include amounts contributed by the Employer pursuant to a
salary reduction agreement which is not includible in the gross
income of the Participant under Sections 125, 402(h)(1)(B),
402(e)(3), 403(b) of the Code or, effective January 1, 2001,
Code Section 132(f)(4).
D11
In addition to other applicable limitations set forth in
the Plan, an notwithstanding any other provision of the Plan to
the contrary, the annual Covered Compensation of each Employee
taken into account under the Plan shall not exceed the OBRA '93
annual compensation limit. The OBRA '93 annual compensation
limit is $150,000 ($160,000 effective January 1, 1997), as
adjusted by the Commissioner of Internal Revenue for increases
in the cost of living in accordance with Section 401(a)(17)(B)
of the Code. The cost-of-living adjustment in effect for a
calendar year applied to any period, not exceeding 12 months,
over which Covered Compensation is determined (determination
period) beginning in such calendar year. If a determination
period consists of fewer than 12 months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination
period, and the denominator of which is 12. Any reference in
this Plan to the limitation under Section 401(a)(17) of the
Code shall mean the OBRA '93 annual compensation limit set
forth herein. As of the Effective Date, the family aggregation
rules required under Code Sections 414(q)(6) and 401(a)(17) are
no longer applicable.
D11
Effective on or after January 1, 2002, the annual Covered
Compensation of each Participant taken in account in
determining allocations for any Plan Year shall not exceed
$200,000, as adjusted for cost-of-living increases in
accordance with Section 401(a)(17)(B) of the Code. Annual
Covered Compensation means Compensation during the Plan Year or
such other consecutive 12-month period over which Compensation
is otherwise determined under the Plan (the "determination
period"). The cost-of-living adjustment in effect for a
calendar year applies to annual Compensation for the
determination period that begins with or within such calendar
year.
Section 2.15. Credited Service. The elapsed period of a
Participant's Service computed in full years from his initial
Employment Date to his first Termination of Service which is
followed by a Break in Service, and, if reemployed after a
Break in Service, from any Reemployment Date to the following
Termination of Service which is followed by a Break in
Service. Fractional years of Service shall be rounded to the
nearest whole year. Non-union Employees of acquired companies
or divisions shall be given Credited Service for the purpose of
determining vesting rights pursuant to Section 9.03 for all
prior service as follows:
D11
(a) Employees of Cooper Lasersonics provided
said Employees were on the payroll of the Employer as
of January 10, 1987.
(b) Employees of Ceramco Inc. and Ceramco
Manufacturing Co. for all prior service with the
Ceramco Inc. and Ceramco Co. divisions of Johnson &
Johnson Consumer Products, Inc.
(c) Non-union employees of GENDEX Corporation
(including the Universal Imaging division), Midwest
Dental Products Corp. (including the Rinn division),
and Eureka X-Ray Tube Corp., provided said Employees
were on the payroll of any of these corporations as
of January 1, 1994.
Section 2.16. Deferred Retirement Date. The first day
of the month following the date of a Participant's actual
retirement after his Normal Retirement Date.
Section 2.17. Disability Retirement Date. The first day
of the month following the date on which a Participant's
Service is terminated due to a Permanent Disability.
Section 2.18. Effective Date. January 1, 1997, or such
other date described herein.
D11
Section 2.19. Early Retirement Date. The first day of
the month following the month in which a Participant incurs a
Termination of Service prior to his Normal Retirement Date
following attainment of age 55 and completion of at least 10
years of Credited service.
Section 2.20. Employee. Any employee employed in the
United States of America or the Commonwealth of Puerto Rico by
an Employer, including expatriate employees employed by the
Employer on temporary assignment outside of the United States
or Puerto Rico, and any employee covered by the insurance
system established by Title II of the Social Security Act
pursuant to an agreement the Company has entered into with the
Secretary of the Treasury under Code Section 3121(1) of the
Code to cover employees who are citizens or residents of the
United States or the Commonwealth of Puerto Rico for Social
Security purposes; provided, however, that in the event the
Company merges or consolidates with another company, then,
unless the board of directors of the surviving company
determines otherwise by resolution, the term "Employee" shall
not include any person employed in any plant, operation, or
location which was not a part of the Company immediately prior
to such merger or consolidation. The term Employee shall
include Leased Employees.
Section 2.21. Employer. The Company and any Affiliated
Company which has been designated by the Company as an Employer
under this Plan and which has accepted such designation and has
agreed to be bound by the terms of the Plan and Trust Agreement.
D11
Section 2.22. Employer Contributions. Payments made to
the Trust by an Employer.
Section 2.23. Employer Securities. Shares of Common
Stock which meet the requirements of Section 409(1) of the Code
which include: (1) common stock issued by the Employer (or a
corporation which is a member of the same controlled group)
which is readily tradable on an established securities market,
or (2) if there is no common stock which meets the requirements
of (1) above, common stock issued by the Employer (or by a
corporation which is a member of the same controlled group)
having a combination of voting power and dividend rights equal
to or in excess of (a) that class of common stock of the
Employer (or of any other such corporation) having the greatest
voting power, and (b) that class of common stock of the
Employer (or of any other such corporation) having the greatest
dividend rights. Noncallable preferred stock shall be treated
as Employer Securities, if such stock is convertible at any
time into stock which meets the requirements of (1) or (2)
above, and if such conversion is at a conversion price which
(as of the date of the acquisition by the Plan) is reasonable.
Section 2.24. Employment Date. The first day on which
an employee of the Employer completes an Hour of Service with
such company.
Section 2.25. ERISA. The Employee Retirement Income
Security Act of 1974, as amended.
D11
Section 2.26. Forfeiture. Any portion of a partially
vested or non-vested Participant's Company Stock, Mutual Fund
and [Other Investment Accounts] which does not become part of
his Capital Accumulation upon the earliest of:
(a) The first Anniversary Date subsequent to
the date a Participant received a distribution of the
vested portion of his Account(s); or
(b) The Anniversary Date of the year in which
five (5) consecutive one (1) year breaks in service
have occurred, beginning with the year in which a
Break in Service (as defined in Section 2.07) first
occurs.
Section 2.27. Highly Compensated Employee. As of the
Effective Date, a "Highly Compensated Employee" is defined as
one of the following:
(a) an Employee who was a 5-percent owner (as defined in
Section 416(i)(1) of the Code as a more-than-5 percent owner)
of the Employer at any time during the current or the preceding
year; or (b) and Employee who, for the preceding year, (i) had
compensation, as defined below, from the Employer in excess of
$80,000 (as adjusted by the Secretary of Labor pursuant to Code
Section 415(d), except that the base period shall be the
calendar quarter ending September 30, 1996); and (ii) if the
Company elects the application of this clause for such
preceding year, was in the top-paid group of Employees for such
preceding year.
D11
For this purpose, an Employee is in the top-paid group of
Employees for any year if such Employee is in the group
consisting of the top twenty percent (20%) of the Employees
when ranked on the basis of compensation paid during such year.
A former Employee shall be treated as a Highly Compensated
Employee if (A) such Employee was a Highly Compensated Employee
when such Employee separated from service, or (B) such Employee
was a Highly Compensated Employee at any time after attaining
age 55.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of
Employees in the top-paid group, will be made in accordance
with Code Section 414(q) and the regulations thereunder.
For purposes of this subsection, the term "compensation"
means compensation within the meaning of Code Section
415(c)(3). The determination will be made without regard to
Code Sections 125, 402(e)(3), and 402(h)(1), and, in the case
of employer contributions made pursuant to a salary reduction
agreement, without regard to Code Section 403(b).
Effective on or after January 1, 1998, for purposes of
this Subsection, the term compensation means compensation
within the meaning of Code Section 415(c)(3) and includes
amounts not currently includable in the Participant's gross
income by reason of application of Code Sections 125,
402(e)(3), 402(h)(1)(B), 403(b), or effective on or after
January 1, 2001, Code Section 132(f).
D11
Section 2.28. Hour of Service. (i) Each hour for which
an Employee is paid or entitled to payment for the performance
of duties for an Employer; and (ii) each hour for which an
Employee is directly or indirectly paid or entitled to payment
by an Employer during which no duties are performed by reason
of vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of
absence. Each Hour of Service for which back pay, irrespective
of mitigation of damages, is either awarded or agreed to by an
Employer shall be included under either (i) or (ii) as may be
appropriate. An Employee will not be entitled to credit for
any hour for payments made or due under a plan maintained
solely to comply with applicable workmen's compensation,
unemployment compensation or long-term disability insurance
laws or for payments made solely to reimburse an Employee for
medical or medically-related expenses incurred by an Employee.
The number of Hours of Service to be credited for periods
during which an Employee performs no duties and the crediting
of Hours of Service to specific Plan Years shall be determined
by the Committee in accordance with subsections (b) and (c),
respectively, of Labor Regulation Section 2530.200b-2. The
procedure used to calculate and credit Hours of Service shall
be as follows: (i) Part-time Employees shall be given credit
for the actual number of Hours of Service accumulated; (ii) All
other Employees shall be given credit for one hundred and
ninety (190) Hours of Service for each calendar month of
employment in which the Employee is entitled to be credited
with at lease one (1) Hour of Service accumulated.
D11
Section 2.29. Leased Employee. As of the Effective
Date, any person (other than a common law employee) who
pursuant to an agreement between the Employer and a leasing
organization who has performed services for the Employer (or
for the Employer and related persons determined in accordance
with Section 414(n)(6) of the Code) on a substantially full
time basis for a period of at least one year, and such services
are performed under primary direction or control by the
recipient. Notwithstanding the foregoing, a Leased Employee
shall not be considered an employee of the Employer if Leased
Employees do not constitute more than twenty percent (20%) of
the Employer's non-highly compensated work force, within the
meaning of Section 414(n)(5)(C)(ii) of the Code. Leased
Employee shall not include those leased employees covered by a
plan described in Section 414(n)(5)(B) of the Code, unless
otherwise provided by the terms of the Plan.
Section 2.30. Loan. Any loan to the Trustee made or
guaranteed by a disqualified person (within the meaning of
Section 4975(e)(2) of the Code), including, but not limited to,
a direct loan of cash, a purchase-money transaction, an
assumption of an obligation of the Trustee, an unsecured
guarantee or the use of assets of a disqualified person (within
the meaning of Section 4975(e)(2) of the Code) as collateral
for a loan.
Section 2.31. Mutual Fund Account. An Account of a
Participant that includes the mutual fund investments that have
been purchased and paid for by the Trust for the account of the
Participant.
D11
Section 2.32. Normal Retirement Date. The first day of
the month following the month during which a Participant
attains age sixty-five (65).
Section 2.33. Other Investments Account. An Account of
a Participant which is credited with his share of the net
income (or loss) of the Trust and Employer Contributions and
Forfeitures in other than Company Stock and which is debited
with payments made to pay for Company Stock and mutual fund
investments.
Section 2.34. Participant. Any Employee (or former
Employee) who has met the eligibility requirements set forth in
Article III and is participating in this Plan.
Section 2.35. Part-Time Employee. An Employee whose
regular hours are not intended to exceed (i) twenty (20) hours
of work per week, or (ii) a period of twelve (12) consecutive
months.
Section 2.36. Permanent Disability. A physical or
mental condition which causes a Participant to be unable to
engage in any occupation or employment for which he is
qualified or may reasonably become qualified by reason of his
education, training or experience as determined by the
Committee on the basis of a certificate from a physician
approved by the Committee.
D11
Section 2.37. Plan. The Dentsply Employee Stock
Ownership Plan, as amended from time to time.
Section 2.38. Plan Year. The calendar year.
Section 2.39. Qualified Business Unit. An Employer or a
separate business unit or division thereof that is treated for
financial accounting purposes as a separate profit center.
Section 2.40. Qualified Election Period. With respect
to a Qualified Participant, the period of six (6) Plan Years
commencing with the Plan Year in which the Participant first
became a Qualified Participant.
Section 2.41. Qualified Participant. A Participant who
has participated in this Plan for at least ten (10) years and
has attained age fifty-five (55).
Section 2.42. Reemployment Date. The first day on which
an Employee completes an Hour of Service with an Employer
following a Break in Service.
Section 2.43. Service. Employment with an Employer.
D11
Section 2.44. Termination of Service. The date an
Employee quits, is discharged, retires or dies, or the first
anniversary of the date an Employee is absent from Service for
any other reason such as Approved Absence, disability leave,
vacation or layoff.
Section 2.45. Trust. The Dentsply Employee Stock
Ownership Trust, created by the Trust Agreement entered into
between the Company and the Trustee.
Section 2.46. Trust Agreement. The agreement between
the Company and the Trustee (or any successor Trustee)
establishing the Trust and specifying the duties of the Trustee.
Section 2.47. Trust Assets. All cash, Company Stock and
other property held in the Trust for the exclusive benefit of
Participants (and their Beneficiaries).
Section 2.48. Trustee. The Trustee (and any successor
Trustee) designated by the Board of Directors which agrees to
serve by executing the Trust Agreement.
D11
ARTICLE III
ELIGIBILITY AND PARTICIPATION
Section 3.01. Eligibility for Participation.
(a) Each Employee on the Effective Date shall
automatically continue as a Participant in the Plan.
(b) Each other Employee shall become a
Participant in the Plan on the Anniversary Date
coinciding with or following his Employment Date if
he remains employed on such Anniversary Date.
(c) Employees covered by a collective
bargaining agreement (as defined by the Secretary of
Labor) between Employees' representatives and one or
more Employers are not eligible to participate in the
Plan if retirement benefits were the subject of good
faith bargaining between such Employees'
representatives and the Employer or Employers and
such collective bargaining agreement does not provide
for participation in this Plan. In the event any
Employees become covered by such an agreement, they
will become ineligible to participate in this Plan as
of the date they become so covered unless the
agreement otherwise provides; provided, however, that
if they cease to be ineligible, under this Section,
they will automatically become eligible to qualify
for participation as of the date that they cease to
be ineligible with Credited Service from their date
of hire.
D11
(d) Leased Employees shall not be eligible to
participate in the Plan.
(e) Each non-union Employee actively employed
by the GENDEX or Universal Imaging divisions of the
Company or by Midwest Dental Products Corp.
(including the Rinn division) or by Eureka X-Ray Tube
Corp. shall be eligible to participate in the Plan
as of January 1, 1994 and thereafter in accordance
with the terms and conditions of the Plan.
(f) Employees who are designated as
independent contractors shall not be eligible to
participate in the Plan even if a court
administrative agency determines that such
individuals are common law employees and not
independent contractors.
Section 3.02. Commencement of Participation. The
Committee shall notify each Employee of his eligibility to
participate and of the Plan terms as soon as practicable after
he becomes eligible. Every Employee upon becoming eligible for
participation shall become a Participant; provide such data as
required by the Committee and, be deemed to assent to the terms
of this Plan and the Trust Agreement, including all amendments
thereto, in the manner herein authorized.
Section 3.03. Cessation of Participation. In addition
to cessation of participation as defined in Section 3.01(c)
above, a Participant shall cease to be a Participant if he has
a Break in Service for any reason.
D11
Section 3.04. Reemployment. A Participant who has
incurred a Termination of Service followed by a Break in
Service shall be reinstated as a Participant as of his
Reemployment Date. A non-vested Participant's prior Service
shall be disregarded as to vesting in his Accounts if the
number of consecutive one (1) year Breaks in Service equals or
exceeds the greater of five (5) years or the number of years of
Credited Service completed prior to the Break in Service. A
vested Participant who incurs one or more consecutive one (1)
year Breaks in Service shall have all of his prior Credited
Service reinstated upon completion of an additional year of
Credited Service.
Section 3.05. Transfers. Should any Participant
transfer employment to another Employer under the Plan, his
participation will continue based upon his Covered Compensation
from each Employer. Should a Participant transfer employment
to an Affiliated Company which is not an Employer under this
Plan, his participation will continue, but he will share in the
allocations of Employer Contributions and Forfeitures only to
the extent of his Covered Compensation from an Employer.
Section 3.06. Leave of Absence. If a Participant is
granted an Approved Absence, his participation is not
terminated and his Service will include the period of the
Approved Absence.
D11
Section 3.07. Committee's Determination of Eligibility.
Any question as to the eligibility of any Employee hereunder
shall be determined by the Committee in accordance with the
terms hereof, and such determination shall be final and
conclusive for all purposes.
Section 3.08. Military Service. Notwithstanding any
provision of the Plan to the contrary, contribution benefits
and service credit with respect to military service shall be
provided in accordance with Section 414(u) of the Code.
D11
ARTICLE IV
CONTRIBUTIONS
Section 4.01. Employer Contributions. As of the close
of each Plan Year, annual Employer Contributions shall be paid
to the Trustee as provided in section 4.02.
Section 4.02. Payment of Employer Contributions.
(a) For each Plan Year, Employer Contributions
may be paid to the Trustee in such amounts (or under
such formula) as may be determined by the board of
directors (and communicated to Participants) not
later than the due date for filing the Company's
Federal income tax return, including any extensions
of such due date; provided that such Employer
Contributions shall not be paid to the Trust in
amounts which would permit the limitation described
in Section 6.03 to be exceeded.
D11
(b) Employer Contributions may be paid to the
Trust in cash or in shares of Company Stock, as
determined by the Board of Directors; provided that:
(i) Employer Contributions shall be paid in cash in
such amounts and at such times, as needed to provide
the Trust with funds sufficient to pay in full when
due any principal and interest payments required by a
Loan incurred by the Trustee pursuant to Article V to
finance the acquisition of Company Stock, except to
the extent such principal and interest payments have
been satisfied by the Trustee from cash dividends
paid to it with respect to Company Stock acquired
with the proceeds of such Loan; and (ii) all Employer
Contributions paid to the Trust on behalf of the
Employees of Ceramco Manufacturing Co. shall be made
in cash and shall be used to purchase Company Stock
at the current fair market value. The Board of
Directors shall determine how Employer Contributions
shall be allocated among each of the Qualified
Business Units for each Plan Year. The amount of
Employer Contributions so allocated to a Qualified
Business Unit shall be allocated to the Employees of
such Qualified Business Unit in accordance with
Section 6.02.
D11
(c) Employer Contributions may be returned to
the Employer if (i) made in excess of the amount
deductible by the Employer for its taxable year, or
(ii) made because of a reasonable mistake as to the
facts and circumstances existing at the time the
contribution was fixed; provided, however, that such
return is limited, respectively, to (i) that portion
in excess of the amount deductible for the Employer's
taxable year which is not necessary to enable the
Trustee to make Loan payments, or (ii) that portion
of the contribution attributable to a reasonable
mistake of fact, and further provided that any such
return must be made within one (1) year of the date
the deduction was disallowed or the mistaken
contribution was made.
Section 4.03. No Participant Contributions. No
Participant shall be required or permitted to make
contributions to the Plan.
Section 4.04. No Eligible Rollover Distributions. No
Participant shall be permitted to make an eligible rollover
distribution from any other retirement plan to the Plan.
D11
ARTICLE V
INVESTMENT OF TRUST ASSETS
Section 5.01. Investment of Trust Assets. Trust Assets
under the Plan will be invested primarily in Company Stock.
Employer Contributions, and all other Trust Assets, including
cash dividends paid on Company Stock, may be used to acquire
shares of Company Stock from Company shareholders (including
former Participants) or from the Company, except that any
Company Stock acquired with the proceeds of a Loan shall be
limited to Employer Securities. However, the proceeds of a
Loan may be invested by the Committee for a reasonable period,
as determined by the Committee, until Employer Securities are
purchased. Trust Assets not acquired with the proceeds of a
Loan may also be invested by the Trustee in savings accounts,
certificates of deposit, short-term securities, equity stocks,
bonds, or other investments desirable for the Trust, insurance
policies on the lives of Participants, key employees or
stockholders of the Company, mutual fund investments selected
by the Committee which are credited to the Mutual Fund Accounts
of Participants, or Trust Assets may be held in cash. All
investments will be made by the Trustee only upon the direction
of the Committee. The Committee may permit Participants to
direct the investment of their Mutual Fund Account in one or
more mutual funds approved by the Committee. The Committee may
direct that all Trust Assets be invested and held in Company
Stock, except as otherwise required by law.
D11
Section 5.02. Purchases of Company Stock. All purchases
of Company Stock by the Trust will be made at a price, or at
prices, which, in the judgment of the Committee, do not exceed
the fair market value of such Company Stock. The determination
of fair market value of Company Stock for all purposes under
the Plan shall be made by the Committee (i) if the shares of
Company Stock are publicly traded within the meaning of
Treasury Regulation Section 54.4975-7(b)(1)(iv), based upon the
fair market value as quoted on an established securities market
the date the Company Stock is purchased, or (ii) if the Company
Stock is not publicly traded, based upon the value determined
by an independent appraiser having expertise in rendering such
evaluations.
Section 5.03. Sales of Company Stock. The Committee may
direct the Trustee to sell or resell shares of Company Stock to
any person, including the Company, provided that any such sales
to any disqualified person, as defined by Section 4975(e)(2) of
the Code, including the Company, will be made at not less than
the fair market value as determined under Section 5.02 and no
commission is charged. Any such sale shall be made in
conformance with Section 408(e) of ERISA. Except as provided
in Section 5.05, all sales of Company Stock by the Trustee will
be charged pro rata to the Company Stock Accounts of the
Participants.
D11
Section 5.04. Exempt Loan.
(a) The Committee may direct the Trustee to
obtain Loans. Any such Loan shall meet all
requirements necessary to constitute an "exempt loan"
within the meaning of Treasury Regulation Section
54.4975-7(b)(1)(iii) and shall be used primarily for
the benefit of the Participants (and their
Beneficiaries). The proceeds of any such Loan shall
be used, within a reasonable time after the Loan is
obtained, only to purchase Employer Securities, repay
the Loan, or repay any prior Loan. Any such Loan
shall provide for no more than a reasonable rate of
interest, as determined under Treasury Regulation
54.49757(b)(7), and must be without recourse against
the Plan. The number of years to maturity under the
Loan must be definitely ascertainable at all times.
The only assets of the Plan that may be given as
collateral for a Loan are shares of Employer
Securities acquired with the proceeds of the Loan and
shares of Employer Securities that were used as
collateral on a prior Loan repaid with the proceeds
of the current Loan. Such Employer Securities so
pledged shall be placed in a suspense account. No
person entitled to payment under a Loan shall have
recourse against Trust Assets other than such
collateral, Employer Contributions that are available
under the Plan to meet obligations under the Loan,
and earnings attributable to such collateral and the
investment of such Employer Contributions.
D11
All Employer Contributions paid during the Plan Year
in which a Loan is made (whether before or after the
date the proceeds of the Loan are received), all
Employer Contributions paid thereafter until the Loan
has been repaid in full, and all earnings from
investment of such Employer Contributions, without
regard to whether any such Employer contributions and
earnings have been allocated to Participant's [Other
Investments Accounts], shall be available to meet
obligations under the Loan, unless otherwise provided
by the Company at the time any such Employer
Contribution is made. Any pledge of Employer
Securities must provide for the release of shares so
pledged, as provided below, upon the payment of any
portion of the Loan. For each Plan Year during the
duration of the Loan, the number of shares of
Employer Securities released from such pledge must
equal the number of encumbered securities held
immediately before release for the current Plan Year
multiplied by a fraction. The numerator of the
fraction is the amount of principal paid for the
year. The denominator of the fraction is the sum of
the numerator plus the principal to be paid for all
future years. Such years will be determined without
taking into account any possible extension or renewal
periods. At the discretion of the Committee, on a
Loan-by-Loan basis, the numerator and denominator of
the fraction may be changed to principal and interest
rather than principal only. If the collateral
includes more than one class of Employer Securities,
the number of shares of each class to be released for
a Plan Year must be determined by applying the same
fraction to each class.
D11
(b) Payments of principal and interest on any
such Loan during a Plan Year shall be made by the
Trustee (as directed by the Committee) only from (1)
Employer Contributions, and earnings from such
Employer Contributions, to the Trust made to meet the
Plan's obligation under a Loan and from any earnings
attributable to Employer Securities held as
collateral for a Loan (both received during or prior
to the Plan Year), less such payment in prior years;
(2) the proceeds of a subsequent Loan made to repay a
prior Loan; and (3) the proceeds of the sale of any
Employer Securities held as collateral for a Loan.
Such Employer Contributions and earnings must be
accounted for separately by the Plan until the Loan
is repaid.
(c) Employer Securities released by reason of
the payment of principal or interest on an ESOP Loan
will be credited pro rata to Participants' Company
Stock Accounts on the Anniversary Date of the Plan
Year in which such payment of principal is made.
(d) The Employer shall contribute to the Trust
sufficient amounts to enable the Trust to pay
principal and interest on any such Loans as they are
due; provided, however, that no such Employer
contributions shall exceed the limitations in Section
6.03. In the event that such Employer Contributions
by reason of the limitations in Section 6.03 are
insufficient to enable the Trust to pay principal and
interest on such Loan as it is due, then upon the
Trustee's request the Employer shall:
D11
(1) Make a Loan to the Trust, as
described in Treasury Regulation Section
54.49757(b)(4)(iii), in sufficient amounts to
meet such principal and interest payments.
Such new Loan shall also meet all
requirements of an "exempt loan" within the
meaning of Treasury Regulation Section
54.4975-7(b)(1)(iii). Employer Securities
released from the pledge of the prior loan
shall be pledged as collateral to secure the
new Loan. Such Employer Securities will be
released from this new pledge and allocated
to the Accounts of the Participants in
accordance with applicable provisions of the
Plan; or
(2) Purchase any Employer Securities
pledged as collateral in an amount necessary
to provide the Trustee with sufficient funds
to meet the principal and interest
repayments. Any such sale by the Plan shall
meet the requirements of Section 408(e) of
ERISA; or
(3) Any combination of the foregoing.
However, the Employer shall not, pursuant to
the provisions of this subsection, do, fail
to do, or cause to be done any act or thing
which would result in a disqualification of
the Plan as a leveraged employee stock
ownership plan under the Code.
D11
(e) Right of First Refusal. Shares of
Employer Securities or Company Stock distributed by
the Trustee may be subject to a "right of first
refusal". Such a "right" shall provide that prior to
any subsequent transfer, the shares shall first be
offered in writing to the Company at a price equal to
the greater of (1) the then fair market value of such
shares of Employer Securities as determined in good
faith by the Committee, from time to time, or (2) the
purchase price offered by a buyer, other than the
Company or Trustee, making a good faith (as
determined by the Committee) offer to purchase such
shares of Employer Securities or Company Stock. The
Trust or the Company, as the case may be, may accept
the offer as to part or all of the Employer
Securities or Company Stock at any time during a
period not exceeding fourteen (14) days after receipt
of such offer by the Trust, on terms and conditions
no less favorable to the shareholder than those
offered by the independent third party buyer. Any
installments purchase shall be made pursuant to a
note secured by the shares purchased and shall bear a
reasonable rate of interest as determined by the
Committee, provided that if the offer is not accepted
by the Trust, the Company, or both, then the proposed
transfer may be completed within a reasonable period
following the end of the fourteen (14) day period,
but only upon terms and conditions no less favorable
to the shareholder than the terms and conditions of
the third party buyer's prior offer. Shares of
Employer Securities and Company Stock which are
publicly traded within the meaning of Treasury
Regulation Section 54.4975-7(b)(1)(iv) at the time
such right may otherwise be exercise shall not be
subject to this "right of first refusal".
D11
(f) Put Option. Shares of Employer Securities
acquired with the proceeds of a Loan by the Trust
shall be subject to a "put" option at the times set
forth below provided that at such times such shares
are not readily tradable on an established securities
market within the meaning of Section 409(h)(1)(B) of
the Code. The "put" option shall be exercisable by
the Participant or Beneficiary, by the donees of
either, or by a person (including an estate or its
distributee) to whom the Employer Securities pass by
reason of the Participant's or Beneficiary's death.
The "put" option shall provide that for a period of
at least sixty (60) consecutive days immediately
following the date the shares are distributed to the
holder of the "put" option and for a sixty (60)
consecutive day period immediately following the date
the holder of the "put" option is informed of the
value of Company Stock as of the Anniversary Date
coinciding with or next following the date the shares
were distributed to the holder of the "put" option,
the holder of the "put" option shall have the right
to cause the Company, by notifying it in writing, to
purchase such shares at their fair market value, as
determined by the Committee. The Committee may
direct the Trustee to assume the rights and
obligations of the Company at the time the "put"
option is exercised, insofar as the repurchase of
Employer Securities is concerned. The period during
which the "put" option is exercisable shall not
include any period during which the holder is unable
to exercise such "put" option because the Company is
prohibited from honoring it by Federal or State law.
D11
The terms of payment for the purchase of such shares
of Employer Securities shall be as set forth in
Section 10.02(b). The "put" option provided for by
this Section shall continue to apply to shares of
Employer Securities purchased by the Trustee with the
proceeds of a Loan as described herein
notwithstanding any amendment to or termination of
this Plan which causes the Plan to cease to be a
leveraged employee stock ownership plan within the
meaning of Section 4975(e)(7) of the Code.
Section 5.05. Diversification of Investments.
(a) Each Qualified Participant, upon written
notice to the Committee received within ninety (90)
days (or such longer period as may be established by
the Committee) after the close of each Plan Year
within the Qualified Election Period of such
Qualified Participant, may elect to direct the
Committee to diversify, in the manner set forth in
subsection (b) below, that number of shares of
Company Stock allocated to his Company Stock Account
determined by:
(i) determining the number of shares of
Company Stock eligible for diversification
under Section 401(a)(28)(B) of the Code and
the provisions hereof and allocated to his
Company Stock Account as of the Anniversary
Date immediately preceding the date of such
election;
D11
(ii) adding to the amount determined
under (i) above the number of shares of
Company Stock, if any, deemed under Section
401(a)(28)(B) of the Code to have been
previously diversified by such Qualified
Participant;
(iii)multiplying the amount in (ii)
above by twenty-five percent (25%) or, in the
case of the last year in the Qualified
Participant's Qualified Election Period,
fifty percent (50%);
(iv) subtracting from the amount in
(iii) above the number of shares of Company
Stock, if any, deemed under Section
401(a)(28)(B) of the Code to have been
previously diversified by such Qualified
Participant.
Notwithstanding any other provision of this Plan to
the contrary, in determining the number of shares of
Company Stock subject to a Qualified Participant's
diversification election, only shares of Company
Stock acquired by the Trust after December 31, 1986
shall be taken into account; shares acquired by the
Trust on or before December 31, 1986 shall be
disregarded for this purpose even if such shares are
not allocated to the Accounts of Participants until
after December 31, 1986.
D11
(b) In the event that a Qualified Participant
provides notice of an election to diversify a portion
of his Company Stock Account pursuant to subsection
(a) above, then no later than one hundred eighty
(180) days (or such longer period as may be
established by the Committee) after the first day of
the Plan Year in which such election is filed, a cash
distribution shall be made to the Mutual Fund Account
of the Qualified Participant in an amount equal to
the fair market value of the number of shares of
Company Stock diversified; provided, however, that if
the shares of Company Stock as to which an election
is filed are readily tradable on an established
securities market within the meaning of Section
409(h)(1)(B) of the Code at the time such election is
filed, then such fair market value shall equal the
proceeds received by the Trustee upon the sale of
such shares on such securities market less any
applicable transaction costs.
D11
ARTICLE VI
ALLOCATIONS
Section 6.01. Allocations to Participants'
Accounts.
(a) Separate Company Stock Accounts, Mutual
Fund Accounts and [Other Investments Accounts] will
be established to reflect Participants' interests
under the Plan. Records shall be kept by the
Committee from which can be determined the portion of
each [Other Investments Account] which at any time is
available to meet Loan obligations and the portion
which is not so available as determined pursuant to
Section 5.04.
(b) Each Company Stock Account maintained for
each Participant under the Plan will be credited with
his allocated share of Company Stock (including
fractional shares) purchased and paid for by the
Trust or contributed in kind to the Trust, with
Forfeitures of Company Stock, and with any stock
dividends on Company Stock allocated to his Company
Stock Accounts. Company Stock acquired by the Trust
with the proceeds of a Loan obtained pursuant to
Section 5.04 shall be allocated to the Company Stock
Accounts of Participants as the Company Stock is
released from suspense accounts as provided for in
Section 5.04.
D11
(c) Each [Other Investments Account]
maintained for each Participant under the Plan will
be credited (or debited) with its share of the net
income (or loss) of the Trust, with any cash
dividends on Company Stock allocated to his Company
Stock Accounts, and with Employer Contributions in
cash and Forfeitures in other than Company Stock or
mutual fund investments. Each such [Other
Investments Account] will be debited for its share of
any cash payments for the acquisition of Company
Stock for the benefit of Company Stock Accounts or
for any repayment of principal and interest on any
Loan or other debt chargeable to Participants'
Company Stock Accounts; provided that only the
portion of each [Other Investments Account] which is
available to meet obligations under Loans as
determined pursuant to the provisions of Section
5.04(a) shall be used to pay principal or interest on
a Loan. Each [Other Investments Account] will be
debited for its share of cash payments for the
acquisition of mutual fund investments to be credited
to each Participant's Mutual Fund Account. However
no portion of the accounts of an Employee of Ceramco
Manufacturing Co. shall be used to make any repayment
of principal on any Loan or debt of the Trust.
(d) Each Mutual Fund Account maintained for
each Participant will be credited with his share of
mutual fund investments purchased and paid for by the
Trust.
D11
Section 6.02. Allocable Shares.
(a) Employer Contributions allocable to a
particular Qualified Business Unit, and any shares of
Company Stock released from a suspense account in
accordance with Section 5.04(a) and attributable to
such Employer Contributions, shall be allocated among
eligible Participants employed by such Qualified
Business Unit by multiplying the aggregate of the
amounts to be allocated to the Company Stock Accounts
or [Other Investments Accounts] times a fraction, the
numerator of which is such Participant's total
Covered Compensation for such Plan Year and the
denominator of which is the aggregate Covered
Compensation of all Participants who are employed by
that Qualified Business Unit and who are entitled to
an allocation for such Plan Year.
(b) Except for reasons of death, Permanent
Disability, Approved Absence, or Early, Normal or
Deferred retirement, a Participant must complete at
least 1,000 Hours of Service in the Plan Year and
have not incurred a Termination of Service prior to
the Anniversary Date in order to share in the
allocation of Employer Contributions and Forfeitures
for such Plan Year.
Section 6.03. Allocation Limitations.
(a) For each Plan Year, the annual addition to
the Accounts of a Participant may not exceed the
lesser of:
D11
(1) 25% of his compensation, within the
meaning of Code Section 415(c)(3); or
(2) $30,000 or, if greater, one-quarter
of the dollar limitation then in effect under
Code Section 415(b)(1)(A) for Plan Years
ending after December 31, 1986. Effective
January 1 of each calendar year beginning
January 1, 1986, the maximum dollar limitation
set forth herein shall be the amount
determined by the Secretary of the Treasury
(or his delegate) under Section 415(d)(1) of
the Code.
For the purpose of this paragraph, the limitation
referred to above shall apply to the sum, for any
Plan Year, of (i) Employer Contributions and
Forfeitures, if any, allocated to a Participant's
account under this Plan and (ii) employer
contributions, employee contributions and forfeitures
allocated to a Participant's accounts under all other
defined contribution plans maintained by the
Employer. If this limitation would be exceeded as to
any Participant, the allocation of Employer
Contributions and Forfeitures would be reduced, with
respect to such Participant, with a reallocation made
to other Participants according to the allocable
share of each as determined under Section 6.02 (to
the extent not exceeding the limitation). Employer
Contributions or Forfeitures which cannot be
reallocated to other Participant Accounts by reason
of this limitation shall be treated (for allocation
purposes) as Employer Contributions and Forfeitures
for the next succeeding Plan Year.
D11
Effective on or after January 1, 1998, the
compensation referred to above shall include amounts
contributed by the Employer pursuant to a salary
reduction agreement which is not includible in the
gross income of the Participant under Code Sections
125, 402(b)(1)(B), 402(e)(3), 403(b) or, effective
January 1, 2001, Code Section 132(f)(4).
Notwithstanding the foregoing, if no more than
one-third of Employer Contributions for a Plan Year
are allocated to Highly Compensated Employees annual
additions shall not include Employer Contributions
applied to the repayment of interest on a Loan or
Forfeitures of Employer Securities acquired with the
proceeds of a Loan.
Effective on or after January 1, 2002, the
maximum annual addition that may be contributed or
allocated on behalf of a Participant under the Plan
for any limitation year shall not exceed the
following:
(i) $40,000, as adjusted for increases
in the cost-of-living under Code Section
415(d), or
(ii) 100 percent of the Participant's
compensation, within the meaning of Section
415(c)(3) of the Code, for the limitation
year.
The compensation limit referred to in (ii)
above shall not apply to any contribution for medical
benefits after separation from service (within the
meaning of Section 401(h) or Section 419A(f)(2) of
the Code) which is otherwise treated as an annual
addition.
D11
(b) In the event a Participant participates in
a defined benefit plan or plans maintained by his
Employer, the ratio of the aggregate annual additions
to a Participant's Accounts under this Plan and any
other defined contribution plan maintained by his
Employer to the maximum aggregate annual additions
which could have been made for all Years of Service
with the Employer, when added to the ratio of a
Participant's annual retirement benefit under a
defined benefit plan to the lesser of 100% of such
Participant's compensation for such Plan Year
averaged over his three highest consecutive years of
compensation or $90,000 (or the amount determined in
accordance with regulations prescribed by the
Secretary of the Treasury) shall not exceed 1.25.
The provisions of Subsection 6.03(b) shall not
be effective on or after January 1, 2000.
D11
(c) In the event that the allocation of
Employer Contributions and Forfeitures as provided in
this Section would result in an allocation to a
Participant in excess of the foregoing limit on
annual additions, any such excess to the extent of
Forfeitures will be reallocated among the Accounts of
the other Participants (subject to such limit on
annual additions) as provided in this Section for the
allocation of Forfeitures; to the extent that such
excess exceeds the amount of Forfeitures, any
additional excess will be reallocated among the
Accounts of the other Participants (subject to such
limit on annual additions) as provided in this
Section for the allocation of Employer
Contributions. Any such amounts that cannot be
allocated to Participant's Accounts within the
foregoing limits will be credited to a suspense
account and reallocated as of the Anniversary Date
among the then Participants as provided in this
Section for Forfeitures. In the event the Plan is
terminated and there are amounts which cannot be
allocated to Participant's Accounts due to the
foregoing limits, such amounts will be returned to
the Employer.
(d) For purposes of the application of Section
415 of the Code to all defined benefit and defined
contribution plans presently maintained, or to be
established and maintained in the future, by any
Affiliated Company, the "limitation year" shall be
the accounting period of the Company for Federal
income tax purposes.
D11
Section 6.04. Allocation of Net Income (or Loss) of the
Trust. The net income (or loss) attributable to Trust Assets
for each Plan Year will be determined as of each Anniversary
Date.
Each Participant's allocable share of the net income (or loss)
will be allocated to his [Other Investments Accounts] in the
ratio in which the credit balance of each such Account on the
preceding Anniversary Date (reduced by the amount of any
distribution of Capital Accumulation from such Account) bears
to the sum of such balances for all Participants as of that
date. The net income (or loss) includes the increase (or
decrease) in the fair market value of Trust Assets (other than
Company Stock), interest income, dividends and other income (or
loss) attributable to Trust Assets (other than allocated
Company Stock), since the preceding Anniversary Date. For
purposes of computing net income (or loss), interest paid on
any Loan or installment sales contract for the acquisition of
Company Stock by the Trustee shall be disregarded.
Notwithstanding anything contrary in this Section, any income
(or loss) or appreciation (or depreciation) attributable to the
Mutual Fund Account investments of a Participant shall be
credited (or debited) to the Mutual Fund Accounts of the
Participant.
D11
Section 6.05. Accounting for Allocations. The Committee
shall adopt accounting procedures for the purpose of making the
allocations, valuations, and adjustments to Participants'
Accounts provided for in this Article. Except as provided in
Treasury Regulation Section 54.4975-11, Company Stock acquired
by the Plan shall be accounted for as provided under Treasury
Regulation Section 1.402(a)-1(b)(2)(ii), allocations of Company
Stock shall be made separately for each class of stock, and the
Committee shall maintain adequate records of the cost basis of
all shares of Company Stock allocated to each Participant's
Company Stock Accounts. From time to time, the Committee may
modify the accounting procedures for the purpose of achieving
equitable and nondiscriminatory allocations among the Accounts
of Participants in accordance with the general concepts of the
Plan and the provisions of this Section. Annual valuations of
Trust Assets shall be made at fair market value.
Section 6.06. Special Allocation Rule. Notwithstanding
any other provision of the Plan to the contrary, in the event
that the Trustee acquires Company Stock from a person who
elects nonrecognition treatment under Section 1042 of the Code
with respect to such sale, no allocation shall be made under
this Plan which would constitute a violation of the
requirements of Section 409(n) of the Code.
D11
ARTICLE VII
EXPENSES OF THE PLAN AND TRUST
Section 7.01. Expenses of the Plan and Trust. Any
expenses of administering the Plan may be reimbursed by the
Plan or paid by the Company. The Company may elect to pay all
expenses of establishing and administering the Plan without
reimbursement by the Plan. Each Employer, other than the
Company, at the Company's request, shall reimburse the Company
for that portion of each Plan Year's costs and expenses not
reimbursed by the Plan in the ratio that the amount of Employer
Contributions from each such Employer for such Plan Year bears
to the aggregate Employer Contributions from all Employers for
that Plan Year.
D11
ARTICLE VIII
VOTING COMPANY STOCK
Section 8.01. Voting Rights of Participants. Each
Participant (or Beneficiary of a deceased Participant) to whose
Accounts shares of Company Stock have been allocated shall, as
a named fiduciary within the meaning of Section 403(a)(1) of
ERISA, direct the Trustee with respect to the vote of the
shares of Company Stock allocated to his Accounts, and the
Trustee shall follow the directions of those Participants (and
Beneficiaries) who provide timely instructions to the Trustee.
However, the Trustee shall vote any unallocated shares of
Company Stock held by the Trust, or any allocated shares of
Company Stock as to which no voting instructions have been
received, in such a manner as directed by the Committee. Each
Participant (or Beneficiary of a deceased Participant) shall be
entitled to direct the Trustee as to whether or not to exercise
any applicable statutory appraisal rights with respect to
shares of Company Stock allocated to such Participant's (or
such Beneficiary's) Accounts. In all other cases, the decision
whether or not to exercise statutory appraisal rights shall be
made by the Trustee in such manner as directed by the
Committee. The Company shall furnish the Trustee and each
Participant (or Beneficiary of a deceased Participant) with
such information as may be required under applicable law and
the Company's charter-and by-laws as applicable to security
holders in general with respect to any matter put to a vote of
the stockholders of the Company.
D11
Section 8.02. Tender Offer. In the event a tender offer
for Company Stock is commenced, the Committee, promptly after
receiving notice of the commencement of any such tender offer,
shall transfer certain of the Committee's record keeping
functions under the Plan to an independent record keeper (which
if the Trustee consents in writing, may be the Trustee). The
functions so transferred shall be those deemed necessary by the
Committee to preserve the confidentiality of any directions
given by the Participants (and Beneficiaries of deceased
Participants) in connection with the tender offer. The Trustee
shall have no discretion or authority to sell, exchange or
transfer any of such shares pursuant to such tender offer
except to the extent, and only to the extent, that the Trustee
is timely directed to do so in writing as follows:
(a) Each Participant (or Beneficiary of a
deceased Participant) to whose Account shares of
Company Stock have been allocated, shall, as a named
fiduciary within the meaning of Section 403(a)(1) of
ERISA, direct the Trustee with respect to the sale,
exchange or transfer of the shares of Company Stock
allocated to his Account, and the Trustee shall
follow the directions of those Participants (and
Beneficiaries) who provide timely instructions to the
Trustee.
D11
(b) The Trustee shall sell, exchange or
transfer any unallocated shares of Company Stock
comprising Trust Assets, or any allocated shares of
Company Stock as to which no directions have been
received, in such a manner as directed by the
Committee. Following any tender offer that has
resulted in the sale or exchange of any shares of
Company Stock comprising the Trust Assets, the record
keeper shall continue to maintain on a confidential
basis the Accounts of Participants (and
Beneficiaries) to whose Accounts shares of Company
Stock were allocated at any time during such offer,
until complete distribution of such Accounts or such
earlier time as the record keeper determines that the
transfer of the record keeping functions back to the
Committee will not violate the confidentiality of the
directions given by the Participants (and
Beneficiaries). In the event that there is no sale
or exchange of any shares of Company Stock comprising
the Trust Assets pursuant to the tender offer, the
record keeper shall transfer back to the Committee
the record keeping functions; provided, however, the
record keeper shall keep confidential any
instructions which it may receive from Participants
(and Beneficiaries) relating to the tender offer.
For purposes of allocating the proceeds of any sale
or exchange pursuant to a tender offer, the Committee
or the independent record keeper, as the case may be,
shall determine the portion, expressed as a
percentage, of shares tendered by the Trustee that
were actually sold or exchanged (the "applicable
percentage").
D11
The Committee or the independent record keeper, as
the case may be, shall then treat as having been sold
or exchanged from each of the individual Accounts of
Participants (and Beneficiaries) that number of
shares (if any) which is obtained by multiplying (i)
the applicable percentage times (ii) the total number
of shares in such Account that were directed to be
tendered or exchanged. Any proceeds remaining after
application of the preceding sentences shall be
treated as proceeds from the sale or exchange of
unallocated shares.
D11
ARTICLE IX
CAPITAL ACCUMULATION
Section 9.01. Capital Accumulation. Upon Termination of
Service, a Participant (or, in the case of death, his
Beneficiary) shall have a vested (nonforfeitable) interest in
all, a part, or none of the final balances in his Accounts in
accordance with Sections 9.02 and 9.03. A Participant's (or
his Beneficiary's) Capital Accumulation will be determined as
set forth below as soon after his Termination of Service as
practicable.
Section 9.02. Retirement, Death or Permanent
Disability. Upon attainment of his Normal Retirement Date or
upon Termination of Service on account of a Participant's
death, Permanent Disability, or Early or Deferred retirement, a
Participant shall have a nonforfeitable right to 100% of his
Account(s). In such a case, the Participant's Capital
Accumulation shall be determined at the time of distribution,
and he will be entitled to receive an allocation of Employer
Contributions and Forfeitures as described in Section 6.02 for
the Plan Year in which his Termination of Service occurs.
Section 9.03. Other Termination of Service and Vesting.
(a) If a Participant incurs a Termination of
Service for any reason other than attainment of his
Early Retirement Date, Normal Retirement Date,
Deferred Retirement Date, death, or Permanent
Disability, his Capital Accumulation shall be
determined at the time of distribution.
D11
(b) If a Participant incurs a Termination of
Service for any reason set forth in Section 9.03(a),
above, his Capital Accumulation will be determined by
the following vesting schedule:
Years of
Nonforfeitable Per-
Credited Service centage of
Accounts
Less Than 3 Years 0%
3 Years 20%
4 Years 40%
5 Years 60%
6 Years 80%
7 or more Years 100%
(c) Each Participant shall at all times have a
100% nonforfeitable interest in the shares allocated
to his Account under the former tax credit portion of
this Plan which was terminated effective January 1,
1994.
D11
Section 9.04. Forfeitures. Any portion of the final
balances in a Participant's Accounts which is not vested and
does not become part of his Capital Accumulation is a
Forfeiture. Forfeitures shall first be applied against the
shares in his Company Stock Account which were purchased by the
Plan after December 31, 1986. If the Forfeiture is not
sufficient to reduce the fair market value of his Capital
Accumulation to the percentage of the total value of his
Accounts determined under Section 9.03, the remainder of the
Forfeiture shall be deducted from the Shares in his Company
Stock Account which were purchased by the Plan and allocated to
his Account prior to December 1, 1987, then from his Other
Investments Accounts and finally from his Mutual Fund
Accounts. All Forfeitures shall reallocated to the Accounts of
the remaining Participants pursuant to Section 6.03 as of the
Anniversary Date of the Plan Year in which the Forfeiture
occurs.
D11
ARTICLE X
DISTRIBUTIONS
Section 10.01. Form of Distribution.
(a) A Participant's Capital Accumulation shall
be distributable to him (or, in the case of death, to
his Beneficiary) in the form of a lump sum
distribution.
(b) Distribution of a Participant's Capital
Accumulation may be made in cash, Company Stock or
any combination thereof, except that the Participant
may demand that distribution be made in whole shares
of Company Stock (with the value of any factional
share paid in cash). In the event of distribution in
Company Stock, any balance in a Participant's [Other
Investments Account] will be used to acquire whole
shares of Company Stock for distribution at the then
fair market value (as determined by the Committee)
and the total distribution of a Participant's Capital
Accumulation shall include at least as many shares of
Company Stock, except for fractional shares, as had
been allocated to his Company Stock Accounts. Any
balance in a Participant's Mutual Fund Account shall
be distributed in cash.
(c) Notwithstanding the foregoing, the Plan
will be administered in all respects to comply with
the diversification provisions required by Section
401(a)(28)(B) of the Code.
D11
(d) Direct Rollovers.
(1) "Direct Rollover" means a payment
by the Plan to the Eligible Retirement Plan
specified by the Distributee.
(2) "Distributee" means an Employee or
former Employee. In addition, the Employee's
or former Employee's surviving spouse and the
Employee's or former Employee's spouse or
former spouse who is the alternate payee
under a Qualified Domestic Relations Order
("QDRO"), as defined in Section 414(p) of the
Code, are Distributees with regard to the
interest of the spouse or former spouse.
(3) "Eligible Retirement Plan" means an
individual retirement account described in
Section 408(a) of the Code, an individual
retirement annuity described in Section
408(b) of the Code, an annuity Plan described
in Section 403(a) of the Code, or a qualified
trust described in Section 401(a) of the
Code, that accepts the Distributee's Eligible
Rollover Distribution. However, in the case
of an Eligible Rollover Distribution to the
surviving spouse, an Eligible Retirement Plan
is an individual retirement plan or
individual retirement annuity.
D11
Effective on or after January 1, 2002, an
"Eligible Retirement Plan" shall also mean
annuity contract described in Section 403(b)
of the Code and an eligible plan under
Section 457(b) of the Code which is
maintained by a state, political subdivision
of a state, or any agency or instrumentality
of a state or political subdivision of a
state and which agrees to separately account
for amounts transferred into such plan from
this Plan. The definition of eligible
retirement plan shall also apply in the case
of a distribution to a surviving spouse, or
to a spouse or former spouse who is an
alternate payee under a QDRO.(4) "Eligible
Rollover Distribution" means any distribution
of all or any portion of the balance to the
credit of the Distributee except that an
Eligible Rollover Distribution does not
include: any distribution that is one of a
series of substantially equal periodic
payments (not less frequently than annually)
made for life (or life expectancy) of the
Distributee or the joint lives (or joint life
expectancies) of the Distributee and the
Distributee's designated Beneficiary, or for
a specified period of ten years or more; any
distribution to the extent such distribution
is required under Section 401(a)(9) of the
Code; and the portion of any distribution
that is not includible in gross income
(determined without regard to the exclusion
for net unrealized appreciation with respect
to employer securities); and any amount that
is distributed on account of hardship.
D11
(5) Notwithstanding any provision of
the Plan to the contrary that would otherwise
limit a Distributee's election under this
Section, a Distributee may elect, at the time
and in the manner prescribed by the
Committee, to have any portion of an Eligible
Rollover Distribution paid directly to an
Eligible Retirement Plan specified by the
Distributee in a Direct Rollover.
Section 10.02. Repurchase of Company Stock.
(a) Shares of Company Stock distributed to a
Participant (or, in the case of death, to his
Beneficiary) shall be subject to a "put" option to
the extent, but only to the extent, described in
Section 5.04(f) of the Plan.
(b) The terms of payment for the purchase of
such shares of Company Stock pursuant to the "put"
option shall be as set forth below:
(1) If the fair market value of the
Company Stock, plus the value of the
Participant's Mutual Fund Account and the sum
of all previous distributions, as of the
valuation date immediately preceding the
exercise of the "put", held by the
Participant or Beneficiary is $50,000 or
less, the method of payment shall be a single
lump-sum cash payment.
D11
(2) If the fair market value of the
Company Stock plus the value of the
Participant's Mutual Fund Account and the sum
of all previous distributions, as of the
valuation date immediately preceding the
exercise of the "put", held by the
Participant or Beneficiary is more than
$50,000, the method of payment shall be as
follows:
(i) An immediate cash payment
of $50,000 plus the fair market value
of the Participant's Mutual Fund
Account.
(ii) The balance of the purchase
price shall be payable in equal
monthly, quarterly or annual
installments over a period of not
greater than five (5) years from the
date the "put" option is exercised or
the date any loan used by the Plan to
acquire Employer Securities subject
to the "put" option has been entirely
repaid. Notwithstanding the
foregoing, in no event shall a
Participant be entitled to elect a
number of installments which would
result in a quarterly installment of
less than $200. Should the payment
period above exceed five (5) years,
the minimum annual payment of
principal will be $100,000.
D11
(iii)Any installment payout
shall be adequately secured as
determined by the Committee.
(iv) Any installment payout
shall bear a reasonable rate of
interest, as determined by the
Committee, but not less than the
91-day Treasury Bill rate adjusted
quarterly to reflect the rate at the
last auction in the immediately
preceding quarter.
Section 10.03. Timing of Distribution.
(a) In the event of Early, Normal or Deferred
Retirement, death or Permanent Disability under
Section 9.02, distribution of a Participant's Capital
Accumulation will be made as soon as practicable
after his Termination of Service.
(b) In the event of termination of employment
for reasons other than Early, Normal or Deferred
Retirement, death or Permanent Disability (under
section 9.02), distribution of a Participant's
Capital Accumulation may be made as soon as
practicable after the earliest of (i) the eighth
anniversary of the date the Participant commenced
employment with the Company, (ii) his Normal
Retirement Date or (iii) his death.
D11
(c) Unless a Participant elects otherwise in
writing, distribution of each Participant's Capital
Accumulation must commence not later than one year
after the later of the close of the Plan Year (i) in
which the Participant terminates employment due to
attainment of Normal Retirement Date, disability, or
death, or (ii) which is the fifth Plan Year following
the Plan Year in which the Participant otherwise
separates from service (provided the Participant is
not reemployed by the employer before the
distribution is required to begin.) If the amount of
a Participant's Capital Accumulation cannot be
ascertained by such date, or the Participant (or
Beneficiary) is unavailable to receive a
distribution, distribution can be delayed until (60)
days after such time as the amount can be ascertained
or the Participant (or Beneficiary) is available. In
the event a Participant elects a later distribution
commencement date, as provided above, distribution
must be made in amounts such that the present value
of the payments to be made to a Participant will be
more than fifty percent (50%) of the total payments
to be made to the Participant and his Beneficiary.
D11
Notwithstanding the provisions of Section 10.03(c),
as of the Effective Date, a Participant that elects
to defer distributions must begin to commence
distribution from the Plan no later than April 1st of
the calendar year following the later of (i) the
calendar year in which such Participant attains the
age of seventy and one-half (70-1/2) or (ii) the
calendar year in which the Participant retires,
provided, however, that clause (ii) shall not apply
in the case of a Participant who is a 5% owner as
defined in Section 416(k) of the Code. As of the
Effective Date, for Participants who are active
non-5% owner Employees and reach age 70-1/2 after
December 31, 1995 and before January 1, 1999, the
Participant shall be permitted to elect to commence
the distribution of his benefits as if his required
beginning date were April 1 of the calendar year
following the calendar year in which he attains age
70-1/2. The right to receive a distribution
according to the terms of this Section shall be an
optional form of benefit.
With respect to distributions under the Plan
made on or after July 1, 2001 for calendar years
beginning on or after January 1, 2001, the Plan will
apply the minimum distribution requirements of
section 401(a)(9) of the Internal Revenue Code in
accordance with the regulations under section
401(a)(9) that were proposed on January 17, 2001 (the
2001 Proposed Regulations), notwithstanding any
provision of the Plan to the contrary.
D11
If the total amount of required minimum
distributions made to a participant for 2001 prior to
July 1, 2001 are equal to or greater than the amount
of required minimum distributions determined under
the 2001 Proposed Regulations, then no additional
distributions are required for such participant for
2001 on or after such date. If the total amount of
required minimum distributions made to a participant
for 2001 prior to July 1, 2001 are less than the
amount determined under the 2001 Proposed
Regulations, then the amount of required minimum
distributions for 2001 on or after such date will be
determined so that the total amount of required
minimum distributions for 2001 is the amount
determined under the 2001 Proposed Regulations. This
amendment shall continue in effect until the last
calendar year beginning before the effective date of
the final regulations under section 401(a)(9) or such
other date as may be published by the Internal
Revenue Service.
D11
(d) If distribution of Capital Accumulation to
a Participant occurs prior to the occurrence of a
Break in Service, and if such Participant is not one
hundred percent (100%) vested in his Account(s), the
non-vested portion which is not distributed will be
held in his Accounts under the Plan, and will become
a Forfeiture only on the Anniversary Date of the Plan
Year in which the Forfeiture occurs. At any given
time, the vested interest ("X") in such suspense
shall be determined in accordance with the following
formula:
X = P (AB +D) - D
For purposes of applying this formula, P is the
vested percentage at the time of the subsequent
termination; AB is the total of the Account balances
at the time; and D is the amount of Capital
Accumulation previously distributed.
(e) If any Participant incurs a Break in
Service and that Participant is subsequently
reemployed (as provided in Section 3.04), his Capital
Accumulation attributable to the prior period of
Service will not be increased (as the result of
additional vesting) by reason of years of Credited
service after his reemployment until such time as the
Participant has completed one year of Service after
his return.
D11
Notwithstanding the preceding, a Participant that is
subsequently reemployed (as provided in Section 3.04)
and who has received a distribution of the vested
portion of his Capital Accumulation may be permitted
to repay the amount of the distribution to the
Trust. The Participant's Capital Accumulation
attributable to the prior period of service will be
increased (as the result of additional vesting) by
reason of years of Credited Service after his
reemployment only if such repayment occurs.
Upon repayment of the distribution by the
Participant, shares of Company Stock will be
allocated to the Participant's account at the fair
market value of the shares as of the date of
repayment.
No repayment shall be allowed under this Section at
any time after the earlier of:
(1) Five (5) years after the first date
on which the Participant is subsequently
reemployed, or
(2) The close of the first period of
five (5) consecutive one year Breaks in
Service commencing after the distribution to
the Participant.
D11
(f) If a Participant does not have any vested
interest in his Account(s) derived from Employer
Contributions when a Break in Service occurs, years
of Credited Service earned prior to termination shall
not be taken into account for purposes of determining
a Participant's vested interest in his Account(s), if
the number of consecutive years of Breaks in Service
equals or exceeds the greater of five (5) years or
the number of years of Credited Service before the
Break in Service.
(g) In-service distributions may be made in
cash to a Participant who is 100% vested prior to his
Termination of Service providing said distribution
results from the diversification elections available
to the Participant provided within the Plan. All
non-Code Section 401(a) (28) diversification
distributions shall be made in cash.
Section 10.04. Retained Capital Accumulation. If any
part of the Participant's Capital Accumulation is retained in
the Trust after his participation ends, his Account(s) will
continue to be treated as provided in Article VI, except they
will not be credited with any further Employer Contributions or
Forfeitures.
D11
Section 10.05. Loans to Participants.
(a) The Trustee may, at the direction of the
Committee, loan a Participant up to the lesser of (i)
50% of the vested portion of his Account(s), or (ii)
$50,000 less the excess (if any) of the highest
outstanding balance of loans from the Plan during the
one year period ending on the day before the date on
which the loan was made over the outstanding balance
of the loans from the Plan on the date of the loan.
(b) The Committee may direct that a loan be
made to a Participant only for the purpose of
enabling the Participant to meet an immediate and
severe financial hardship of the Participant or his
immediate family. All decisions by the Committee on
requests for loans shall be final and made in a
uniform and nondiscriminatory manner. A Participant
who is married shall obtain the consent of his spouse
with respect to securing a loan under this Section
10.05. Said spousal consent shall be in writing and
properly witnessed or notarized.
(c) The procedures and guidelines to be
followed with respect to loans to Participants shall
be as follows:
(1) All loan requests shall be directed
to a representative of the Company designated by
the Committee;
D11
(2) The loan request shall describe in
some detail the purpose of the loan and the
Committee shall determine whether: (i) the loan
is required to meet an immediate and severe
financial hardship of the Participant or his
immediate family; and, (ii) there are other
available loan sources to the Participant.
(3) A representative of the Committee
shall advise the Participant in writing as to
whether a request for a loan is approved or
denied. If the loan is denied, the Participant
will be advised of the reasons for the denial.
If the loan is approved, the Participant shall
be advised of the amount of the loan approved,
the term of the loan, the repayment schedule and
the interest rate.
(4) The amount of the loan shall not
exceed the limit stated in subsection 10.05(a)
above.
(5) The repayment schedule shall provide
for level amortization consisting of at least
quarterly payments of principal and interest
over a specific repayment period not to exceed
five (5) years.
(6) The loan shall provide for a
reasonable rate of interest which shall be
comparable to the interest rates for similar
types of loans at the time the loan is granted.
Interest payments on loans to Participants shall
be credited as income to the Trust.
D11
(7) Amounts due a Participant from his
Account(s) shall be collateral for any loan made
to a Participant pursuant to this Section
10.05. The Committee shall be entitled to
require and accept such other collateral as may
be required for similar types and amounts of
loans.
(8) Failure to pay any installment of
principal and interest when due pursuant to a
promissory note setting forth the payment terms
of a loan shall constitute an event of default.
(9) If an event of default occurs, the
Account(s) of the Participant in default under
the terms of the loan shall be impounded and all
amounts payable to said Participant under the
terms of the Plan shall be first applied to
satisfy the amounts due and owing under the
terms of the loan. The Committee shall also
take whatever action it deems appropriate with
respect to other collateral pledged by a
Participant to secure the repayment of a loan.
Section 10.06. Distribution of Dividends on Company
Stock. Any cash dividends received by the Trustee on Company
Stock allocated to the Accounts of Participants (or former
Participants) shall be distributed to such Participants, former
Participants, or Beneficiaries (in a nondiscriminatory manner)
unless such Participant, former Participant or Beneficiary
instructs the Trustee to reinvest such dividends in Company
Stock. Any current distribution in cash must be made within
two (2) years of the date such dividend is received by the
Trustee.
D11
Section 10.07. Beneficiary Designation. The Trustee will
make distribution from the Trust only upon direction of the
Committee. Distribution will be made to the Participant, if
living, and if not, to his Beneficiary. A Participant shall
designate his Beneficiary upon becoming a Participant, and may
change such designation at any time, by filing a written
designation with the Committee. A Participant who is married
shall obtain the consent of his spouse with respect to the
designation of a Beneficiary other than such spouse. Such
consent shall (i) be in writing, (ii) acknowledge the effect of
such consent, (iii) be witnessed by a notary public and (iv) be
in such form as may be prescribed by the Committee. Upon the
death of a Participant, if there is no designated Beneficiary
then living, or if the designation is not effective for any
reason, as determined by the Committee, the Participant's
Beneficiary shall be his surviving spouse, or if none, his
surviving children (equally), or, if none, his estate.
D11
ARTICLE XI
PLAN ADMINISTRATION
Section 11.01. Named Fiduciaries. The Committee and the
Company shall each be a "named fiduciary" within the meaning of
Section 402 of ERISA, but each such party's role as a named
fiduciary shall be limited solely to the exercise of its own
authority and discretion, as defined under the terms of this
Plan, to control and manage the operation and administration of
the Plan (other than authority and discretion assigned under
this Plan, or delegated pursuant thereto, to the Trustee). A
named fiduciary may designate other persons who are not named
fiduciaries to carry out its fiduciary responsibilities
hereunder, and any such person shall become a fiduciary under
the Plan with respect to such delegated responsibilities. In
the event of such a designation, the named fiduciary shall not
be liable for an act or omission of the designee in carrying
out responsibilities delegated to him except to the extent
provided in Section 405 of ERISA.
Section 11.02. Fiduciary Limitations. Named fiduciaries
under the Plan, as well as the Trustee and any other person who
may be a fiduciary by virtue of section 3(21) of ERISA, shall
exercise and discharge their respective powers and duties in
the following manner:
(a) By acting solely in the interest of the
Participants and their Beneficiaries;
(b) By acting for the exclusive purpose of
providing benefits to Participants and their
Beneficiaries and defraying reasonable expenses of
administering the Trust Assets and Plan;
D11
(c) By acting with the care, skill, prudence
and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct
of an enterprise of a like character and with like
aims; and
(d) By otherwise acting in accordance with
this Plan and Trust Agreement to the extent
consistent with Title I of ERISA.
Section 11.03. Company Responsibilities. The Company,
acting through the Board of Directors, shall have the authority
to amend or terminate the Plan pursuant to the provisions of
Article XII, to determine the amount of Employer Contributions
to the Plan pursuant to Article IV, to appoint a Trustee and
Committee and to approve the adoption of the Plan by any other
Employer. Whenever the Company is permitted or required to so
perform any act under the terms of this Plan, it shall be done
and performed by any officer duly authorized by the Board of
Directors. To enable the Committee to perform its duties, the
Company shall supply completely and timely all information
which the Committee may from time to time require.
Section 11.04. Trustee Responsibilities. The Trustee
shall have, to the extent set forth in the Trust Agreement,
authority and discretion to receive, hold and distribute Trust
Assets, fiduciary responsibilities in connection with the
exercise of such authority and discretion, and a duty to issue
reports and otherwise to account to the Company and the
Committee. All Employer Contributions shall be paid over to
the Trustee and, together with accretions thereto, shall be
invested by the Trustee in accordance with the directions
permitted in this Plan and Trust Agreement.
D11
Section 11.05. Appointment of Committee. This Plan will
be administered by a Committee composed of up to ten (l0)
individuals appointed by the Board of Directors to serve at its
pleasure and without compensation. A member of the Committee
may be removed by the Board of Directors at any time with or
without cause upon ten (10) days written notice from the Board
of Directors and a vacancy existing on the Committee after such
removal shall be filled promptly by the Board of Directors.
Any member of the Committee may resign by delivering his
written resignation to the Board of Directors.
Section 11.06. Committee Responsibilities. Committee
shall have the following
The responsibilities:
(a) Powers and Duties. The Committee shall be
the Plan Administrator under Section 414(g) of the
Code and under Section 3(16)(A) of ERISA. Subject to
the provisions of the Plan and to such restrictions
as the Board of Directors may impose, the Committee
shall have the power to interpret and construe the
provisions of the Plan, to supply omissions herein,
and to establish rules and regulations for the
interpretation and administration of the Plan and
transaction of its business, including, among other
things, provisions for determining who are
Participants, what constitutes a year of Credited
Service and Covered Compensation, allocation to
Participants of Employer Contributions, Forfeitures
and income (or loss) and valuation of Trust Assets.
All such interpretative and administrative decisions,
and rules and regulations, shall be conclusive and
binding on all persons having an interest in or under
the Plan.
D11
(b) Records and Reports. The Committee shall
be responsible for keeping a record of all its
proceedings and actions and shall maintain all such
books of account, records, and other data as shall be
necessary to administer the Plan and to meet the
disclosure and reporting requirements of ERISA.
(c) Compensation. No member of the Committee
shall receive any compensation from the Company, Plan
or Trust for his services as a member of the
Committee.
(d) Committee Procedures. The Committee may
act at a meeting or in writing without a meeting.
The Committee shall elect one of its members as a
Chairman, who shall also be the agent for service of
legal process on behalf of the Plan, and appoint a
Secretary, who may or may not be a Committee member.
The Committee may adopt such bylaws as it deems
desirable for the conduct of its affairs. All
decisions of the Committee shall be made by majority
vote of the number then constituting the Committee,
including actions taken without a meeting.
(e) Distribution of Benefits.
(1) Direction to the Trustee. The
Committee shall issue directions to the
Trustee concerning all benefits which are to
be paid from the Trust pursuant to the
provisions of the Plan, and shall warrant
that all such directions are in accordance
with this Plan.
D11
(2) Application by Participants. The
Committee may require a Participant to
complete and file with it an application for
the payment of benefits under the Plan and
any other forms deemed necessary and
desirable by the Committee for the proper
administration of the Plan and furnish all
pertinent information requested by the
Committee. The Committee may rely upon all
such information so furnished it, including
the Participant's current mailing address.
(3) Participant's Incapacity. Whenever
in the written and certified opinion of one
or more qualified physicians selected by or
satisfactory to the Committee, a person
entitled to receive a payment hereunder of a
benefit or installment thereof is under a
legal disability or is incapacitated in any
way so as to be unable to manage his
financial affairs, the Committee may direct
the Trustee to make payments to such person
or to his legal representative. Any payment
of a benefit or installment thereof in
accordance with the provisions of this
subparagraph shall be a complete discharge of
any liability for the making of such payment
under the provisions of the Plan.
D11
(f) Claims Procedure. The Committee shall
adopt a claims procedure consistent with the
requirements of Section 503 of ERISA and rules and
regulations thereunder.
(g) Bonding. The Committee shall arrange for
such bonding as is required by law, but no bonding in
excess of the amount required by this Plan.
Section 11.07. Indemnification. To the extent authorized
by the laws of the State of Pennsylvania and ERISA, the Company
may indemnify the members of the Committee, any present or
former members of the Board of Directors, the Trustee or any
officer or Employee of the Employer, against any and all
claims, losses, damages, expenses (including legal fees),
fines, penalties, and liabilities arising out of acts,
omissions, and conduct as a fiduciary (as defined in Section
3(21) of ERISA) with respect to the Plan, except to the extent
that such person shall be determined to be liable by a court of
competent Jurisdiction for his own willful misconduct. The
foregoing rights of indemnification shall be in addition to
such other rights as the above persons may enjoy as a matter of
law or by reason of insurance coverage of any kind.
D11
ARTICLE XII
AMENDMENT AND TERMINATION
Section 12.01. Company Right to Amend. Subject to the
provisions hereinafter set forth, the Company reserves the
right, at any time or from time to time, by action of the Board
of Directors, to amend in whole or in part any or all of the
provisions of this Plan; provided, however, that no such
amendment shall be made which:
(a) Will deprive any Participant of any
benefit to which he has a nonforfeitable right under
Article IX of this Plan; or
(b) Shall make it possible for any part of the
Trust Assets or its income to be used for, or
diverted to, purposes other than for the exclusive
benefit of the Participants. No such amendment which
affects the rights, duties, or responsibilities of
the Trustee may be made without the Trustee's written
consent. Any such amendment shall become effective
upon delivery of a written instrument, executed by
order of the Board of Directors, to the Trustee and
the endorsement of the Trustee of its receipt or of
its written consent thereto, if such consent is
required.
Section 12.02 Mandatory Amendments. Notwithstanding the
provisions of this Article XII, or of any other provisions of
this Plan, any amendment may be made, retroactively if
necessary, which the Company deems necessary or appropriate to
conform the Plan to, or to satisfy the conditions of, any law,
government regulation or ruling, and to permit the Plan to meet
the requirements for qualification under Sections 4975 (e) (7)
and 401 of the Code, and to permit the Trust to meet the
requirements for tax-exempt status under Section 501 of the
Code.
D11
In the event that a favorable determination letter from the
Internal Revenue Service is not obtained with respect to the
adoption of this Plan, as amended, then this Plan shall be
declared null and void and the Plan in effect prior to this
amendment shall continue in full force and effect.
Section 12.03. Termination. The Company shall have the
right at any time to terminate the Plan and the Trust created
concurrently herewith by delivering to the Committee written
notice of such termination and by further informing the Trustee
by written notice of such termination. Each Employer reserves
the right to terminate the participation of its Employees under
the Plan. Upon any such termination, such action shall be
taken as to render it impossible for any part of the corpus of
the Trust or income of the Plan to be at any time used for, or
diverted to, purposes other than for the exclusive benefit of
Participants and their Beneficiaries.
Section 12.04. Employee Nonforfeitable Rights. Upon
termination (or partial termination) of the Plan within the
meaning of Section 411(d) (3) of the Code or a complete
discontinuance of Employer Contributions thereunder, each
Participant (or in the case of a partial termination, each
Participant affected) shall have a nonforfeitable right to 100%
of the balance in each of his Account(s) as of the date of
termination, partial termination or complete discontinuance;
provided, however, that replacement of this Plan with a
comparable plan qualified under Section 401(a) of the Code
shall not be a termination for purposes of this Section.
D11
Section 12.05. Distribution Upon Termination. In the
event of termination pursuant to Section 12.03, the assets then
held in Trust under the Plan shall be distributed to the
Participants in accordance with Article X hereof, either, in
the sole discretion of the Committee, upon actual Termination
of Service or as if Termination of Service occurred as of the
date the Plan terminated.
D11
ARTICLE XIII
GENERAL PROVISIONS
Section 13.01. Participants' Rights. Neither the
establishment of this Plan, nor any modification thereof, nor
the creation of any fund or account, nor the payment of any
benefits, 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
Committee, except as herein provided. The adoption and
maintenance of this Plan shall not be deemed to constitute a
contract of employment or otherwise between an Employer and any
Employee, or to be a consideration for, or an inducement or
condition of, any employment. Nothing contained herein shall
be deemed to give an Employee the right to be retained in the
service of an Employer or to interfere with the right of an
Employer to discharge, with or without cause, any Employee at
any time.
Section 13.02. Spendthrift Clause. No benefit which
shall be payable out of the Trust Assets to any Participant
and/or his Beneficiary shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment,
garnishment, pledge, encumbrance, or charge, and any attempt to
anticipate same shall be liable for or subject to the debts,
contracts, liabilities, engagements, or torts of any such
Participant and/or his Beneficiary nor shall it be subject to
attachment or legal process for or against such person, and the
same will not be recognized by the Trustee except to such an
extent as may be required by a QDRO or an order subject to
ERISA Section 206(d)(4).
D11
13.03. Judgments, Orders, Decrees and Settlement
Agreements. Effective August 5, 1997, a Participant's
Account(s) (and that of his spouse) shall be reduced to satisfy
liabilities of the Participant to the Plan due to (a) the
Participant being convicted of committing a crime involving the
Plan, (b) a civil judgment (or consent order or decree) entered
by a court in an action brought in connection with a violation
of the fiduciary provisions of Title 1 of ERISA, or (c) a
settlement agreement between the Secretary of Labor or the
Pension Benefit Guaranty Corporation and the Participant in
connection with a violation of the fiduciary provisions of
ERISA. Any reduction made pursuant to this paragraph shall be
done in accordance with the requirements of ERISA Section
206(d).
Section 13.04. Company's Liability. All Capital
Accumulations will be paid only from the Trust Assets, and
neither the Company nor any Employer nor the Committee nor the
Trustee shall have any duty or liability to furnish the Trust
with any funds, securities or other assets, except as expressly
provided in the Plan.
Section 13.05. Merger or Consolidation. In the event of
a merger or consolidation of the Plan with, or transfer in
whole or in part of the Trust Assets or liabilities to another
trust fund held under any other plan of deferred compensation
maintained or to be established for the benefit of all or some
of the Participants, Trust Assets or liabilities shall be
transferred to the other trust fund only if each Participant
would be entitled to a benefit immediately after the merger,
consolidation or transfer (assuming the other plan and trust
then terminates) which is equal to or greater than the benefit
to which he would have been entitled to receive immediately
before the merger, consolidation or transfer (if the Plan had
then terminated).
D11
Section 13.06. Governing Law. Subject to ERISA or other
applicable Federal law, this Plan shall be construed according
to the laws of the Commonwealth of Pennsylvania and all
provisions hereof shall be administered according to, and its
validity shall be determined under, the laws of such
Commonwealth.
Section 13.07. Legal Action. In any action or proceeding
involving the Trust, or any property constituting part or all
thereof, or the administration thereof, Employees or former
Employees of the Employer or the Beneficiaries or any other
person having or claiming to have an interest in the Trust
Assets or under the Plan shall not be necessary parties nor
entitled to any notice of process.
Section 13.08. Binding on All Parties. Any final
judgment which is not appealed or appealable that may be
entered in any legal action or proceeding shall be binding and
conclusive on the parties hereto, the Committee, and all
persons having or claiming to have an interest in the Trust
Assets or under this Plan.
Section 13.09. Headings. The headings of this Plan are
inserted for convenience or reference only, and are not to be
considered in the construction or the interpretation of this
Plan.
Section 13.10. Severability of Provisions. If any
provision of this Plan is held to be invalid or unenforceable,
such invalidity or unenforceability shall not affect any other
provision, and this Plan shall be construed and enforced as if
such provision had not been included.
D11
ARTICLE XIV
SPECIAL RULES FOR TOP-HEAVY PLANS
Section 14.01. General Provision. If the Plan is or at
any time becomes "Top-Heavy" as that term is defined in Section
416 of the Code, Sections 14.02 through 14.14 shall apply
notwithstanding any conflicting provision of the Plan.
Section 14.02. Top -Heavy Ratio.
(a) If the Employer maintains one or more
defined contribution plans (including any Simplified
Employee Pension Plan) and the Employer has never
maintained any defined benefit plan which has covered
or could cover a Participant in the Plan, the
Top-Heavy Ratio is a fraction, the numerator of which
is the sum of the Account balances of all Key
Employees as of the Determination Date (including any
part of any Account balance distributed in the 5 year
period ending on the Determination Date) , and the
denominator of which is the sum of all Account
balances (including any part of any Account balance
distributed in the 5-year period ending on the
Determination Date) of all participants as of the
Determination Date. Both the numerator and
denominator of the Top-Heavy Ratio are adjusted to
reflect any contribution which is due but unpaid as
of the Determination Date.
D11
(b) If the Employer maintains one or more
defined contribution plans (including any Simplified
Employee Pension Plan) and the Employer maintains or
has maintained one or more defined benefit plans
which have covered or could cover a Participant in
the Plan, the Top-Heavy Ratio is a fraction, the
numerator of which is the sum of Account balances
under the defined contributions plans for all Key
Employees and the present value of accrued benefits
under the defined benefit plans for all Key
Employees, and the denominator of which is the sum of
the Account balances under the defined contribution
plans for all participants and the present value of
accrued benefits under the defined benefit plans for
all participants. Both the numerator and denominator
of the Top-Heavy Ratio are adjusted for any
distribution of an Account balance or an accrued
benefit made in the five-year period ending on the
Determination Date and any contribution due but
unpaid as of the Determination Date.
(c) For purposes of (a) and (b) above, the
value of Account balances and the present value of
accrued benefits will be determined as of the most
recent valuation date that falls within or ends with
the 12-month period ending on the Determination
Date. The Account balances and accrued benefits of a
Participant who is not a Key Employee but who was a
Key Employee in a prior year will be disregarded.
The calculation of the Top-Heavy Ratio, and the
extent to which distributions, rollovers, and
transfers are taken into account will be made in
accordance with Section 416 of the Code and the
regulations thereunder.
D11
Non-deductible voluntary Participant contributions
are included in the computation. Deductible employee
contributions will not be taken into account for
purposes of computing the Top-Heavy Ratio. The
Account balance or accrued benefit of an Employee
shall be disregarded if the Employee has not received
any compensation from and has not performed any
services for the Employer over the five (5) year
period ending on the Determination Date.. When
aggregating plans the value of Account balances and
accrued benefits will be calculated with reference to
the Determination Dates that fall within the same
calendar year.
Effective on or after January 1, 2002, the present values
of accrued benefits and the amounts of account balances of an
Employee as of the determination date shall be increased by the
distributions made with respect to the Employee under the Plan
and any plan aggregated with the Plan under Section 416(g)(2)
of the Code during the 1-year period ending on the
determination date. The preceding sentence shall also apply to
distributions under a terminated plan which, had it not been
terminated, would have been aggregated with the Plan under
Section 416(g)(2)(A)(i) of the Code. In the case of a
distribution made for a reason other than separation from
service, death, or disability, this provision shall be applied
by substituting "5-year period" for "1-year period". The
accrued benefits and accounts of any individual who has not
performed services for the Employer during the 1-year period
ending on the determination date shall not be taken into
account.
D11
Section 14.03. Permissive Aggregation Group for the
purpose of Article XIV shall mean the Required Aggregation
Group of plans plus any other plan or plans of the Employer
which, when considered as a group with the Required Aggregation
Group, would continue to satisfy the requirements of Sections
401(a)(4) and 410 of the Code.
Section 14.04. Required Aggregation Group for the purpose
of Article XIV shall mean (1) each qualified plan of the
Employer in which at least one Key Employee participates, and
(2) any other qualified plan of the Employer which enables a
plan described in (1) to meet the requirements of Sections
401(a)(4) and 410 of the Code.
Section 14.05. Determination Date for the purpose of
Article XIV shall mean for any Plan Year subsequent to the
first Plan Year, the last day of the preceding Plan Year. For
the first Plan Year of the Plan, it is the last day of that
year.
Section 14.06. Valuation Date for the purpose of Article
XIV shall mean the last day of each Plan Year as of which
Account balances or accrued benefits are valued for purposes of
calculating the Top-Heavy Ratio.
Section 14.07. Present Value. For purposes of
establishing the present value to compute the Top-Heavy Ratio,
any benefit shall be discounted only for interest and
post-retirement mortality based on the following (unless
otherwise provided in the defined benefit plan):
Interest rate 9% Mortality table UP 1984
D11
Section 14.08. Top-Heavy Definition. If the Top-Heavy
Ratio for all plans in the Required Aggregation Group (RAG)
exceeds six-tenths (6/10) then all plans in the RAG are
Top-Heavy unless there exists a Permissive Aggregation Group
(PAG) for which the Top-Heavy Ratio does not exceed six-tenths
(6/10), in which case no plan in the PAG is Top-Heavy.
Section 14.09. Minimum Allocations.
(a) Except as otherwise provided in (b) and
(c) below, the Employer Contributions and the
Forfeitures allocated on behalf of any Participant
who is not a Key Employee shall not be less than the
lesser of three percent of such Participant's
compensation or in the case where the Employer has no
defined benefit plan which designates this Plan to
satisfy Section 401 of the Code, the largest
percentage of Employer Contributions and Forfeitures,
as a percentage of Covered Compensation, allocated on
behalf of any Key Employee for that year. The
minimum allocation is determined without regard to
any Social Security contribution. This minimum
allocation shall be made even though, under other
Plan provisions, the Participant would not otherwise
be entitled to receive an allocation, or would have
received a lesser allocation for the year because of
(i) the Participant's failure to complete 1,000 Hours
of Service (or any equivalent provided in the Plan),
(ii) the Participant's failure to make mandatory
contributions to the Plan, or (iii) Covered
Compensation less than a stated amount.
D11
(b) The provision in (a) above shall not apply
to any Participant who was not employed by the
Employer on the last day of the Plan Year.
(c) The provision in (a) above shall not apply
to any Participant to the extent the Participant is
covered under any other plan or plans of the Employer
and the Employer has provided that the minimum
allocation or benefit requirement applicable to
Top-Heavy plans will be met in the other plan or
plans. If for any reason the minimum is not provided
for a Participant in the other plan, it shall be
provided in this Plan.
Section 14.10. No Forfeitability of Minimum Allocation.
The minimum allocation required (to the extent required to be
nonforfeitable under Section 416(b) of the Code) may not be
forfeited under Section 411(a)(3)(B) or 411(a)(3)(D) of the
Code.
Section 14.11. Minimum Vesting Schedules.
(a) If this plan is Top-Heavy for any Plan
Year, then in that Plan Year and all subsequent Plan
Years the vesting schedule enumerated in Section
14.12(b) will apply unless the Employer had elected
100% vesting after three (3) Years of Credited
Service or less. If the Employer had elected 100%
vesting after three (3) Years of Credited Service or
less, then that vesting schedule will continue to
apply. The minimum vesting schedule applies to all
benefits within the meaning of Section 411(a)(7) of
the Code except those attributable to Employee
Contributions, including benefits accrued before the
effective date of Section 416 of the Code and
benefits accrued before the Plan became Top-Heavy.
D11
Further, no reduction in vested benefits may occur
in the event the Plan's status as Top-Heavy changes
for any Plan Year. However, this Section does not
apply to the Account balance of any Employee who does
not have an Hour of Service after the Plan has
initially become Top-Heavy and such Employee's
Account balance attributable to Employer
Contributions and Forfeitures will be determined
without regard to this Section.
(b) For purposes of this Section only, a
Participant's Capital Accumulation will be determined
in accordance with the following vesting schedule:
Years of
Nonforfeitable Per-
Credited Service centage of
Accounts
Less Than 1 Year 0%
1 Year 0%
2 Years 20%
3 Years 40%
4 Years 60%
5 Years 80%
6 Years 100%
Each Participant shall at all times have a 100%
nonforfeitable interest in the shares allocated to
his Account under the former tax credit portion of
this Plan which was terminated effective January 1,
1994.
Section 14.12. Key Employee for the purpose of Article
XIV shall mean a person who at any time during the Plan Year or
the preceding four (4) Plan Years was:
D11
(a) An Officer. An Officer is an employee who
is an officer in fact and who earns for the Plan Year
in excess of 50% of the amount in effect under Code
Section 415(b)(1)(A). The number of Officers is
limited to a maximum of the lesser of:
(1) 50 employees or,
(2) the greater of 3 employees or 10%
of all employees.
(b) Shareholder. A Shareholder is an employee
who:
(1) owns more than a 5% interest in the
Employer; or,
(2) is one of 10 employees who own more
than a 1/2% interest in the Employer and who
also own the largest interests in the
Employer and who have earnings for the Year
in excess of the Code Section 415 dollar
limit for defined contribution plans. This
category shall include no more than ten (10)
employees. If two Employees own equal
interests in the Employer, then the Employee
who earns more compensation than the other
will be considered as owning the greater
interest; or,
(3) owns a 1% or more interest in the
Employer and earns compensation from the
Employer in excess of $150,000 annually.
D11
(c) A Beneficiary of a Key Employee is a Key
Employee. The determination of who is a Key Employee
will be made in accordance with Section 416(i)(1) of
the Code and the regulations thereunder.
Effective on or after January 1, 2002, Key Employee means
an Employee or former Employee (including any deceased
Employee) who at any time during the Plan Year that includes
the determination date was an officer of the Employer having
annual compensation greater than $130,000 (as adjusted under
Section 416(k)(1) of the Code for Plan Years beginning on or
after January 1, 2003), a 5-percent owner of the Employer, or a
1-percent owner of the Employer having annual compensation of
more than $150,000. For this purpose, annual compensation
means compensation within the meaning of Section 415(c)(3) of
the Code. The determination of who is a Key Employee will be
made in accordance with Section 416(i)(1) of the Code and the
applicable regulations and other guidance of general
applicability issued thereunder.Section 14.13. Maximum
Allocation. If the Plan is Top-Heavy then the defined
contribution fraction denominator as computed under Section
415(e)(6) of the Code shall be modified by substituting
"41,500" for "51,975" unless:
(a) the Plan would not be Top-Heavy if "9/10"
were substituted for "6/10" under Section 14.08; and
(b) "Four" percent is substituted for "three"
percent under Section 14.09(a) and the defined
benefit plan provides an additional Top-Heavy minimum
accrual of 1% per year up to an additional 10%; or,
the Plan provides a Top-Heavy minimum allocation of
7.5% of compensation.
D11
ARTICLE XV
EXECUTION
To record the adoption of this amended and restated Plan,
the Company has caused its appropriate officers to affix its
corporate name and seal hereto this ____ day of ____________,
2001.
DENTSPLY INTERNATIONAL INC.
By:
Attest:
D11
DENTSPLY EMPLOYEE STOCK OWNERSHIP PLAN
AS AMENDED AND
RESTATED EFFECTIVE AS OF
JANUARY 1, 1997
D11
Page
{A296525:} - iv -
TABLE OF CONTENTS
Page
ARTICLE I - INTRODUCTION..........................................1
ARTICLE II - DEFINITIONS..........................................2
2.01.Account................................................2
2.02.Affiliated Company.....................................2
2.03.Anniversary Date.......................................2
2.04.Approved Absence.......................................2
2.05.Beneficiary............................................2
2.06.Board of Directors.....................................2
2.07.Break in Service.......................................2
2.08.Capital Accumulation...................................2
2.09.Code...................................................2
2.10.Committee..............................................2
2.11.Company................................................2
2.12.Company Stock..........................................2
2.13.Company Stock Account..................................2
2.14.Covered Compensation...................................2
2.15.Credited Service.......................................2
2.16.Deferred Retirement Date...............................2
2.17.Disability Retirement Date.............................2
2.18.Effective Date.........................................2
2.18.Early Retirement Date..................................2
2.19.Employee...............................................2
2.20.Employer...............................................2
2.21.Employer Contributions.................................2
2.22.Employer Securities....................................2
2.23.Employment Date........................................2
2.24.ERA....................................................2
2.25.Forfeiture.............................................2
2.26.Hour of Service........................................2
2.27.Leased Employee........................................2
2.28.Loan...................................................2
2.29.Mutual Fund Account....................................2
2.30.Normal Retirement Date.................................2
2.31.Other Investments Account..............................2
2.32.Participant............................................2
2.33.Part-Time Employee.....................................2
2.34.Permanent Disability...................................2
2.35.Plan...................................................2
D11
2.36.Plan Year..............................................2
2.37.Qualified Business Unit................................2
2.38.Qualified Election Period..............................2
2.39.Qualified Participant..................................2
2.40.Reemployment Date......................................2
2.41.Service................................................2
2.42.Termination of Service.................................2
2.43.Trust..................................................2
2.44.Trust Agreement........................................2
2.45.Trust Assets...........................................2
2.46.Trustee................................................2
ARTICLE III - ELIGIBILITY AND PARTICIPATION.......................2
3.01.Eligibility for Participation..........................2
3.02.Commencement of Participation..........................2
3.03.Cessation of Participation.............................2
3.04.Reemployment...........................................2
3.05.Transfers..............................................2
3.06.Leave of Absence.......................................2
3.07.Committee's Determination of Eligibility...............2
3.08. Military Service.....................................2
ARTICLE IV - CONTRIBUTIONS........................................2
4.01.Employer Contributions.................................2
4.02.Payment of Employer Contributions......................2
4.03.No Participant Contributions...........................2
4.04.No Eligible Rollover Distributions.....................2
ARTICLE V - INVESTMENT OF TRUST ASSETS............................2
5.01.Investment of Trust Assets.............................2
5.02.Purchases of Company Stock.............................2
5.03.Sales of Company Stock.................................2
5.04.Exempt Loan............................................2
5.05.Diversification of Investments.........................2
ARTICLE VI - ALLOCATIONS..........................................2
6.01.Allocations to Participants' Accounts..................2
6.02.Allocable Shares.......................................2
6.03.Allocation Limitations.................................2
6.04.Allocation of Net Income (or Loss) of the Trust........2
6.05.Accounting for Allocations.............................2
D11
6.06.Special Allocation Rule................................2
ARTICLE VII - EXPENSES OF THE PLAN AND TRUST......................2
ARTICLE VIII - VOTING COMPANY STOCK...............................2
ARTICLE IX - CAPITAL ACCUMULATION.................................2
9.01.Capital Accumulation...................................2
9.02.Retirement, Death or Permanent Disability..............2
9.03.Other Termination of Service and Vesting...............2
9.04.Forfeitures............................................2
ARTICLE X - DISTRIBUTIONS.........................................2
10.01.Form of Distribution..................................2
10.02.Repurchase of Company Stock...........................2
10.03.Timing of Distribution................................2
10.04.Retained Capital Accumulation.........................2
10.05.Loans to Participants.................................2
10.06.Distribution of Dividends on Company Stock............2
10.07.Beneficiary Designation...............................2
ARTOC;E XI - PLAN ADMINISTRATION..................................2
11.01.Named Fiduciaries.....................................2
11.02.Fiduciary Limitations.................................2
11.03.Company Responsibilities..............................2
11.04.Trustee Responsibilities..............................2
11.05.Appointment of Committee..............................2
11.06.Committee Responsibilities............................2
11.07.Indemnification.......................................2
ARTICLE XII - AMENDMENT AND TERMINATION...........................2
12.01.Company Right to Amend................................2
12.02Mandatory Amendments...................................2
12.03.Termination...........................................2
12.04.Employee Nonforfeitable Rights........................2
12.05.Distribution Upon Termination.........................2
ARTOC;E XIII - GENERAL PROVISIONS.................................2
13.01.Participants' Rights..................................2
13.02.Spendthrift Clause....................................2
13.03.Judgments, Orders, Decrees and Settlement
Agreements.............................................2
13.03.Company's Liability...................................2
13.04.Merger or Consolidation...............................2
D11
13.05.Governing Law.........................................2
13.06.Legal Action..........................................2
13.07.Binding on All Parties................................2
13.08.Headings..............................................2
13.09.Severability of Provisions............................2
ARTICLE XIV - SPECIAL RULES FOR TOP-HEAVY PLANS...................2
14.01.General Provision.....................................2
14.02.Top -Heavy Ratio......................................2
14.03.Permissive Aggregation Group..........................2
14.04.Required Aggregation Group............................2
14.05.Determination Date....................................2
14.06.Valuation Date........................................2
14.07.Present Value.........................................2
14.08.Top-Heavy Definition..................................2
14.09.Minimum Allocations...................................2
14.10.No Forfeitability of Minimum Allocation...............2
14.11.Minimum Vesting Schedules.............................2
14.12.Key Employee..........................................2
14.13. Maximum Allocation..................................2
ARTICLE XV........................................................2
D11