CUBIC CORPORATION
EMPLOYEES' PROFIT-SHARING PLAN
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Original Effective Date June 15, 1956,
Amended and Restated Effective October 1, 1989,
Amended and Restated Effective August 1, 1993
TABLE OF CONTENTS
INTRODUCTION
Cubic Corporation Employees' Profit-Sharing plan as restated here is effective
August 1, 1993. This is a full restatement of the original Plan and combines in
one document both Part I (Profit Sharing and Posttax Contributions) and Part II
(401(k) Pre-Contribution), as well as amendments and board resolutions
thereafter.
The purpose of this Plan is to provide Eligible Employees with a more
financially secure retirement. In addition to the profit-sharing contribution
which may be made at an Employer's discretion, Eligible Employees may also
participate by saving their own money on a pre- or posttax basis. Employer
contributions will be made from current or accumulated earnings and profits of
the Employer. As such, this Plan is intended to qualify as a profit-sharing plan
for purpose of Internal Revenue Code Sections 401(a), 402, 401(k), 412, and 417.
All Plan funds will be invested in a group annuity contract.
ARTICLE 1
DEFINITIONS
When used in this document the following words and phrases have the meaning
specified below. Additional words and phrases may be defined in the text of the
Plan.
1.1 Accounts means a Member's Employer Profit-Sharing Accounts (Part I and
Part II), Member Pretax (Part III) Account, Member After-Tax (Part I)
Account, and Rollover Account.
1.2 Active Member means an Eligible Employee who currently has in effect
an election to make Savings contributions pursuant to Section 3.1.
1.3 Affiliated Employer means any entity that is included in a controlled
group of corporations or commonly controlled with Cubic Corporation or
is a member of an affiliated service group under Code Sections 414 and
1563.
1.4 Annuity means any form of benefit payment under Article 7 other than a
lump sum or installment distribution.
1.5 Beneficiary means the person, persons, or entity the Member designates
to receive any death benefit that may become payable under the Plan,
subject to Article 7. A Member may designate primary and contingent
Beneficiaries. If more than one Beneficiary is named the Member may
specify the sequence and/or proportion in which payments will be made
to each Beneficiary. In the absence of a specification of sequence or
proportions, payments will be made in equal shares to all named
Beneficiaries. A Member may change Beneficiaries, as well as any
primary or contingent Beneficiaries, from time to time by written
notice delivered to the Committee in the manner and form prescribed by
the Committee. If no Beneficiary has been designated, if the Committee
is unable to locate a designated Beneficiary, or if no designated
Beneficiary is living at the time of the Member's death, payment of
such death benefit, if any, to the extent permitted by law, will be
made to the Member's surviving Spouse or, if none, the Member's
estate. Any minor's share may be paid to such adult or adults as have,
in the Committee's opinion, assumed custody and support of such minor.
However, the Committee reserves the right to delay the payment of any
minor's share until receiving a court order designating the adult or
adults to whom such payment shall be made. Any death benefit that
becomes payable to executors or administrators will paid in one lump
sum. The Committee may require proof of death benefit before paying
any death benefit under the Plan.
1.6 Board means the Board of Directors of Cubic Corporation.
1.7 Code means the Internal Revenue Code of 1986, as amended.
1.8 Committee means the Plan Committee described in Article 8.
1.9 Disability Retirement Date means the first day of the month following
the date on which the Member is determined to be Permanently and
Totally Disabled.
1.10 Early Retirement Date means the date after attaining age 55 upon which
a Member who has seven Years of Service elects to terminate employment
before age 65.
1.11 Earnings shall mean all remuneration received by an Employee from the
Employer during a Plan Year that is considered as wages reportable
under Code Section 6051(a)(3), prior to reductions for Pretax
Contributions made to the Plan or salary reduction contributions to a
plan excludable from income under Code Section 125. "Earnings"
shall not include amounts over two hundred thousand dollars
($200,000), as indexed under Section 401(a)(17) of the Code,
determined on an annual basis.
In determining g the Earnings of a Participant for purposes of this
limitation, the rules of Section 414(q)(6) of the Code shall apply,
except in applying such rules, the term "family" shall include only
the Spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of the year.
If, as a result of the application of such rules, the adjusted two
hundred thousand dollars ($200,000) limitation is exceeded, then the
limitation shall be pro-rated among the affected individuals in
proportion to each such individual's Earnings as determined under this
Section prior to the application of this limitation. Notwithstanding
the foregoing, Earnings earned but not paid in a Plan Year may include
amounts earned but not paid in a Plan Year because of the timing of
pay periods and pay days if such amounts are paid during the first few
weeks of the next following Plan Year, the amounts are included on a
uniform and consistent basis with respect to all similarly situated
Employees, and no Earnings are included in more than one Limitation
Year.
1.12 Effective Date means June 15, 1956 (for the original portion of this
Plan: Part I) and January 1, 1983 (for Part II). The effective date of
this amendment and restatement is October 1, 1989.
1.13 Eligible Employee means any Employee whose earnings from the Employer
are subject to withholding of income tax or Social Security
contributions as well as qualifying common-law Employees, and
including leased employees as defined under Code Section 414(n).
However, the term "Eligible Employee" shall exclude the following:
(a) Any "leased employee" who participates in a plan described in
Code Section 414(n)(5) if less than 20% of all Eligible Employees
are "leased employees," 4.
(b) Any Employee included in a unit of Employees covered by a
collective bargaining agreement with the Employer if the
collective bargaining agreement at the Employer facility where
the Employee is employed does not provide for coverage under this
Plan, or
(c) Any Employee who has had a One-Year Break in Service during the
Plan Year.
1.14 Employee means any person who is employed by the Affiliated Employer.
1.15 Employer means Cubic Corporation and any other Affiliated Employer
that with the consent of Cubic Corporation has adopted this Plan by
appropriate action taken by its board of directors. An Affiliated
Employer may participate by adopting all or a portion of this Plan.
Such participating Employers are listed in Appendix A to this
document. For purposes of this Plan, Cubic Corporation will be deemed
the representative of each participating Employer and any action taken
with respect to the Plan by Cubic Corporation will be binding on each
participating Employer.
1.16 Employer (Part I) Profit-Sharing Account means the account maintained
for a Member that is:
(a) Credited with Employer Profit-Sharing Contributions to the Plan
as provided for under Section 3.2 and
(b) Adjusted for investment results and distributions, including
transfers to the Employer Part II Profit-Sharing Account.
1.17 Employer (Part II) Profit-Sharing Account means the account maintained
for a Member that is:
(a) Credited with that portion of the Employer profit sharing
allocation, if any, that may be transferred from the Employer
(Part I) Profit-Sharing Account pursuant to an annual election by
(i) a Member, as provided under Section 3.2(a), or (ii) the
Employer as provided under Section 3.3(d).
(b) Adjusted for investment results and distributions.
1.18 Entry Date means the first day of each calendar quarter: January 1,
April 1, July 1, or October 1.
1.19 ERISA means the Employee Retirement Income Security Act of 1974, as
periodically amended.
1.20 Funding A means The Prudential Insurance Company of America or any
other legal reserve life insurance company or companies selected by
Cubic Corporation to receive Employer contributions and to pay the
annuities and other benefits in accordance with the Plan. Any group
annuity contract between the Employer and the Funding Agent may
provide for the contributions to be held in the Funding Agent's
general account and/or one or more of its separate accounts (including
separate accounts maintained for the collective investment of assets
of qualified retirement plans). The Funding Agent issuing such a
contract shall have exclusive responsibility for the investment and
management of any amounts held thereunder. Accordingly, the Funding
Agent shall, upon appointment by the Named Fiduciary and its
acceptance in writing of such appointment, be an investment manager
with respect to the funds it holds under such contract to the extent
that such funds are Plan assets within the meaning of ERISA and the
rules and regulations thereunder. The Named Fiduciary shall not be
liable for any loss which may result from the acts or omissions of the
Funding Agent acting as investment manager with respect to Plan assets
under its control.
1.21 Highly Compensated Employee shall mean an Employee who performs
service during the Determination Year and is described in one or more
of the following groups in accordance with IRS regulations:
(a) An Employee who is a five percent (5%) owner as defined in
Section 416(i)(l)(iii) of the Code, at any time during the
Determination Year or the Look-back Year.
(b) An Employee who receives Compensation in excess of seventy-five
thousand dollars ($75,000) during the Look-back Year. (The
$75,000 limitation will be adjusted annually for increases in the
cost of living in accordance with Section 415(d) of the Code.)
(c) An Employee who receives Compensation in excess of fifty thousand
dollars ($50,000) during the Look-back Year and is a member of
the top-paid group for the Look-back Year. (The $50,000
limitation will be adjusted annually for increases in the cost of
living in accordance with Section 415(d) of the Code.)
(d) An Employee who is an officer within the meaning of Section
416(i) of the Code during the Look-back Year and who receives
Compensation in the Look- back Year greater than fifty percent
(50%) of the dollar limitation in effect under Section
415(b)(1)(A) of the Code, for the calendar year in which the
Look-back Year begins. Notwithstanding the foregoing, no more
than fifty (50) or, if less, the greater of three (3) Employees
or ten percent (10%) of the Employees shall be treated as
officers; provided, however, if no officer is described in this
subparagraph (d), then the highest-paid officer for such year
shall be treated as herein described.
(e) An Employee who is (i) described in Paragraph (b), (c), or (d)
above, and (ii) one of the 100 Employees who receives the most
Compensation from the Employer during the Determination Year,
when the Determination Year is substituted for the Look-back Year
in Paragraph (b), (c), or (d).
A former Employee shall be treated as a Highly Compensated
Employee if such former Employee had a separation year prior to
the Determination Year and was a Highly Compensated active
Employee for either (1) such Employee's separation year or (2)
any Determination Year ending on or after the Employee's 55th
birthday.
A separation year is the Determination Year in which the Employee
separates from service. Notwithstanding the foregoing, an
Employee who separated from service before January 1, 1987 is a
Highly Compensated Employee only if he was a five percent (5%)
owner or received Compensation in excess of fifty thousand
dollars ($50,000) during (i) the Employee's separation year (or
the year preceding such separation year), or (ii) any year ending
on or after such Employee's 55th birthday (or the last year
ending before such Employee's 55th birthday).
Notwithstanding anything to the contrary in this Plan, Sections
414(b), (c), (m), (n), and (o) of the Code are applied prior to
determining whether an Employee is a Highly Compensated Employee.
For purposes of this section,
(a) "Compensation" shall mean compensation as defined in Code Section
414(q)(7) and the regulations thereunder.
(b) "Determination Year" shall mean the Plan Year for which the
determination of who is Highly Compensated is being made.
(c) "Look-back Year" shall mean the twelve (12) month period
preceding the Determination Year.
(d) "Top-paid Group" shall mean the top twenty percent (20%) of
Employees when rated on the basis of Compensation paid during the
year. The number of Employees in the group will be determined in
accordance with Section 414(q)(8) of the Code.
The Employer shall have the right to elect to determine Highly
Compensated Employees by reference to calendar year Compensation,
in accordance with IRS regulations. If the Employer so elects,
the Employer must make such election with respect to all other
qualified plans it maintains.
1.22 Hour of Service means the following:
(a) Each hour for which an Employee is paid or entitled to payment
for performance of duties for the Affiliated Employer for the
applicable Plan Year.
(b) Each hour for which an Employee is paid or entitled to payment by
the Affiliated Employer on account of a period of time during
which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff, jury duty,
military duty or leave of absence. No more than 501 Hours of
Service will be credited under this subsection to an Employee on
account of any single continuous period during which the Employee
performs no duties (whether or not such period occurs in a single
computation period).
(c) For purposes of the definition of Hour of Service in paragraph
(a) and (b) above, an Hour of Service is each hour for which back
pay, irrespective of mitigation of damages is either awarded or
agreed to by the Affiliated Employer, However, the same Hour of
Service shall not be credited by both this paragraph and
paragraphs (a) and (b) above.
(d) The rules regarding Hours of Service set forth in Department
of Labor Regulations Section 2530.200b-2(b) and Section
2530.200b-2 or any successor regulations are incorporated by
reference.
(e) For purposes of determining Hours of Service for any Employee
whose individual Hours of Service may not be determined on an
hourly basis, Hours of Service will be determined on the basis of
weeks of employment and the Employee will be credited with 45
Hours of Service for each week for which the Employee would be
required to be credited with at least one Hour of Service under
(a) and (b) above.
1.23 Late Retirement Date means the first day of the month following the
date on which a Member terminates employment after his Normal
Retirement Date.
1.24 Member means an Eligible Employee who is eligible to participate in
the Plan or who has participated in the Plan at any time in accordance
with Article 2 and for whom Accounts are being maintained.
1.25 Member After-Tax (Part I) Account means the account maintained for a
Member that is:
(a) Credited with contributions into the Plan attributable to the
Member's After- Tax Savings under Section 3.1(a),
(b) Adjusted for investment results, and
(c) Adjusted for withdrawals and distributions.
1.26 Member Pretax (Part II) Account means the account maintained for a
Member that is:
(a) Credited with Employer contributions into the Plan attributable
to the Member's Pretax Savings under Section 3.1(b),
(b) Adjusted for investment results, and
(c) Adjusted for withdrawals and distributions.
1.27 Normal Retirement Date means the first day of the month following the
date a Member attains age 65.
1.28 One-Year Break in Service means:
A Year of Service in which an Employee completes less than 501 Hours
of Service. However, for purposes of preventing a One-Year Break in
Service from occurring, an Employee who is absent from work for any
period on or after January 1, 1984 because of:
(a) the pregnancy of the Employee,
(b) the birth of a child of the Employee,
(c) the placement Of a child with the Employee in connection with the
adoption of such child by the Employee, or
(d) for purposes of caring for such child for a period beginning
immediately after such birth or placement,
will be credited with the number of Hours of Service which otherwise
would normally have been credited to such individual but for such
absence, or, if the Hours of Service cannot be determined, then eight
Hours of Service per day of such absence. The total number of hours
treated as Hours of Service under this section by reason of any such
pregnancy or placement shall not exceed 501 hours. These hours shall
be credited to the year in which the absence from work begins if such
crediting would prevent the Employee from incurring a One-year Break
in Service or, in any other case, in the immediately following year.
No credit will be given unless the Employee furnishes to the Employer
such timely information as is reasonably necessary to establish that
the absence from work is for reasons referred to in this definition
and the number of days for which there was such an absence.
1.29 Permanently and Totally Disabled means a physical or mental condition
that renders the Member incapable of continuing in employment with the
Employer. The determination of Permanently and Totally Disabled shall
be made by the Committee based on information provided by the Member's
physician. Such determination shall be submitted by the physician in
writing to the Employer.
1.30 Plan means the plan designated as the Cubic Corporation Employees'
Profit-Sharing Plan as described in this document and as it may be
periodically amended.
1.31 Plan Year means the period beginning on October 1 and ending on the
following September 30. The calendar year will be the limitation year
for purposes of Code Section 415 and Section 3.4 of the Plan,
1.32 Retirement Date means the date a Member attains his Normal, Early,
Late, or Disability Retirement Date, as applicable.
1.33 Rollover Account means the account maintained for a Member that is:
(a) Credited with any amount received by the Plan as a rollover, as
defined in Code Section 402(a)(5),
(b) Adjusted for investment results, and
(c) Adjusted for withdrawals and distributions.
1.34 Savings means amounts contributed to this Plan by an Employer in lieu
of being paid to a Member as salary or wages. Savings will be made
under payroll-deduction or salary reduction arrangements between each
Member and his Employer. Section 3.1 contains the provisions under
which Savings may be made. Savings consist of After- Tax Savings,
known as Part I Savings (described in Section 3.1(a)), and Pretax
deferrals, known as Part II Savings (described in Section 3.1(b)).
1.35 Spouse means the person to whom the Member is legally married for at
least one year on the date he receives his benefit payment from the
Plan, or his date of death, if earlier.
1.36 Trust means one or more Trusts established pursuant to the Trust
Agreement for purposes of funding the benefits of this Plan.
1.37 Trust Agreement means one or more Trust Agreements executed by Cubic
Corporation and provided for the administration of the Trust.
1.38 Trust Fund or Fund means the total amount of contributions made by the
Members and the Employer, together with the net earnings on them, that
will be used to provide the benefits to Members and their
Beneficiaries under the Plan.
1.39 Trustee means the Trustee of the Trust and any successor Trustee as
appointed in the Trust Agreement.
1.40 Valuation Date means the close of business in the last day of each
Plan Year, and such interim dates upon which the Fund may be valued by
the Funding Agent or Trustee as directed by the Committee.
1.41 Vested means nonforfeitable. The Vested portion of a Member's Account
is determined under Article 6.
1.42 Year of Service means a 12-consecutive-month period beginning on the
date an Employee is first credited with an Hour of Service and ending
on the anniversary of that date and each anniversary of that date
thereafter, provided the Employee completes 1,000 Hours of Service
during such 12-month period.
Notwithstanding the foregoing, for purposes of this Section 1.42,
Eligible Joint Venture Affiliate shall mean any formal business
arrangement with a separate entity entered into in anticipation of
producing a business profit and deemed eligible for purposes of this
Section 1.42, by the Board.
Notwithstanding the foregoing, a Year of Service, as defined for
Vesting purposes in Section 6.4(d), shall include any Year of Service
after January 1, 1993 with an Eligible Joint Venture Affiliate of the
Employer if: (i) the Board, by formal resolution, authorizes the
granting uniformly and for vesting purposes only of a Year of Service
with an Eligible Joint Venture Affiliate of the Employer; (ii) that
such individual qualifying under this provision satisfy the Plan's
eligibility requirements in Article 2 and maintain an active Member
account in the Plan prior to the employment commencement date with the
Eligible Joint Venture Affiliate of the Employer; (iii) that such
service is performed in a period of time in which the Eligible Joint
Venture Affiliate is operating under a formal business arrangement
with Cubic Corporation; and (iv) that the Board's granting of a Year
of Service is provided in a manner consistent with the Code and/or
other applicable statute. Notwithstanding any provision of the Plan to
the contrary, such Individual credited with a Year of Service by
virtue of employment with an Eligible Joint Venture Affiliate shall
not be entitled to any Employer Profit-Sharing contribution by the
Employer during the period of employment with the Eligible Joint
Venture Affiliate.
ARTICLE 2
PARTICIPATION
2.1 Eligibility to Become a Member
An Eligible Employee will be entitled to become a Member in the Plan
on the Entry Date following completion of one Year of Service. An
Eligible Employee may elect to become an Active Member by electing to
contribute Savings on an Entry Date.
2.2 Membership in the Plan
(a) Employer Profit-Sharing Contributions will be made on behalf of
all Eligible Employees who are Members on the last day of the
Plan Year.
(b) To become an Active Member, an Eligible Employee must (i) submit
an enrollment form to the Committee at least 15 days before the
Entry Date he elects to become an Active Member, (ii) agree to
make contributions to the Plan, (iii) authorize the Employer to
withhold such contributions from his Earnings and to pay the same
amount to the Funding Agent or Trustee, and (lv) designate a
Beneficiary.
2.3 Reemployment
(a) If an Employee who met the eligibility requirements of Section
2.1 and whose employment has terminated is later rehired as an
Eligible Employee, he may elect to become a Member pursuant to
Section 2.2 on the date he is rehired. A rehired Employee who had
not met the eligibility requirements of Section 2.1 before his
employment terminated will be eligible to enter the Plan on the
Entry Date after he satisfies the requirements of Section 2.1. If
an Employee terminates employment and is rehired and desires to
become an Active Member, he must reenroll as provided in
Section 2.2 above. An Eligible Employee who chooses to enter or
reenter the Plan must enroll or reenroll under Section 2.2(b)
above.
(b) A Member who had a Vested interest in an Account upon his
termination will reenter the Plan upon his reemployment date and
his prior Years of Service will be counted.
(c) An Employee who had no Vested interest in an Account under the
Plan, and whose number of consecutive One-Year Breaks in Service
is five or more will not have his previous Years of Service
counted if his number of One-Year Breaks in Service equals or
exceeds his previous Years of Service.
(d) An Employee who had no Vested interest in an Account under the
Plan and whose number of consecutive One-Year Breaks in Service
is five or more will have his previous Years of Service counted
if his number of One-Year Breaks in Service is less than his
previous Years of Service.
(e) An Employee who had no Vested interest in an Account under the
Plan and whose number of Consecutive One-Year Breaks in Service
is less than five will have his previous Years of Service
counted.
2.4 Employment After Normal Retirement Age
A Member who continues in the employ of an Employer after attainment
of age 65 will continue to be eligible to be an Active Member.
ARTICLE 3
CONTRIBUTIONS
3.1 Savings by Active Members
An Active Member may elect to save a Fixed whole percentage of his
Earnings as follows:
(a) Member After-Tax Savings (Part I).
An Active Member may elect to save as much as ten percent of his
Earnings. The Employer will make payments to the Plan in the
amount of the Savings by way of payroll deduction, to be credited
to the Member's After-Tax Account.
(b) Member Pretax Savings (Part II).
An Active Member may elect to defer as much as 15% of his
Earnings. Notwithstanding the foregoing, a Member's Earnings
reduction to his Pretax Account for any calendar year shall not
exceed the dollar limitations set forth in Code Section 402(g).
However, a Member's Earnings reductions to his Pretax Account for
any calendar year may not exceed $8,728 (1992 indexed maximum).
This dollar limitation will be adjusted automatically for each
calendar year to the amount prescribed by the Secretary of the
Treasury or his delegate in accordance with Code Section
402(g)(5).
(c) Change in Percentage of Savings.
An Active Member's Savings percentage will remain in effect until
the Member elects to change the percentage, or is subject to the
overall restrictions of Section 3.3. An Active Member may elect,
but not retroactively, to change his Savings percentage provided
he files the election with the Committee. Such election will be
effective at the start of the first payroll period beginning on
or after the first day of the next calendar quarter following
receipt of his request.
(d) Suspension of Savings.
An Active Member may elect, but not retroactively, to suspend his
Savings to the Plan or to resume his Savings to the Plan after
having suspended them, upon written notice to the Committee. The
suspension shall become effective immediately following receipt
of the written notice by the Committee. A resumption will become
effective as of the first payroll period beginning on or after
the next Entry Date.
(e) Status of Savings.
Member Savings under this Section will be made by payroll
deductions or reductions authorized by the Member and will be
paid to the Plan by the Employer no later than 30 days after the
Plan Year to which they apply.
3.2 Employer Profit-Sharing Contributions
(a) An Employer may make a discretionary profit-sharing contribution,
as authorized by its board of directors, in an amount up to 15%
of the Earnings of its Members for the Plan Year. This
contribution will be allocated to the Employer Profit-Sharing
Account of each of its Members who are employed at Plan-Year-end
and whose Retirement Date did not occur during the Plan Year. The
Committee may authorize that employees who are not Highly
Compensated Employees and who are Active Members may have a
portion of the Employer Profit-Sharing Contributions that are
allocable to them transferred to their Member's Employer (Part
II) Profit-Sharing Account. Upon transfer, such amounts will
become 100% Vested as provided in Article 6 and will not be
available for in-service withdrawals.
(b) The amount allocated to each Member's Employer Part I
Profit-Sharing Account will be the ratio of the Member's Earnings
from such Employer during the Plan Year to the total amount of
all Members' Earnings from such Employer for the Plan Year. Such
allocation shall be equal to the lesser of (i), (ii), or (iii)
following, where (i) is that amount determined by resolution of
the Board of Directors of Cubic Corporation in its sole and
absolute discretion and adopted on or before the last day of the
taxable year, (ii) is 15% of the Earnings actually paid during
such Plan Year to all of its Members, as provided by the Code, as
the maximum amount deductible by the Employer for the current
taxable year, and (iii) the limitations on benefits and
contributions under Code Section 415.
(c) Payment of Employer Profit-Sharing Contributions will be made for
each Plan Year as soon as convenient after the close of such
year, but not later than the date, including extensions, on which
the Employer's federal income tax return is due with respect to
such taxable year.
(d) Each Employer Contribution is conditioned on its deductibility
under Code Section 404 and will be a complete discharge of its
financial obligations under the Plan with respect to the period
for which it is made.
3.3 Limitations on Member Deferrals and Employer Contributions
(a) The Committee will estimate for purposes of the limitations under
Code Sections 401(k) and 401(m), as soon as practical before the
close of the Plan Year, the extent to which Member Pretax Savings
treatment under Code Section 401(k) or Employee After-Tax Savings
or Employer Profit-Sharing Contributions may not be available to
any Active Member or class of Active Members.
Notwithstanding the foregoing, the Plan will take into account
the actual deferral ratios of all eligible Members for purposes
of the Average Deferral Percentage (ADP) test in Code Section
401(k), For this purpose, an eligible Member is an Employee who
is directly or indirectly eligible to make a cash or deferred
election under the Plan for all or a portion of a Plan Year and
includes: an Employee who would be a Plan Member but for the
failure to make required contributions; a Member whose
eligibility to make elective contributions has been suspended
because of an election (other than certain one-time elections)
not to participate, a distribution, or a loan; and a Member who
cannot defer because of the Section 415 limits on annual
additions. In the case of an eligible Member who makes no
elective contributions, the deferral ratio that is to be included
in determining the ADP is zero.
Notwithstanding the foregoing, an elective contribution will be
taken into account under the Average Deferral Percentage test of
Section 401(k)(3)(A) of the Code for a Plan Year only if it
relates to compensation that either would have been received by
the Employee in the Plan Year (but for the deferral election) or
is attributable to services performed by the Member in the Plan
Year and would have been received by the Member within
two-and-one-half (2-1/2) months after the close of the Plan Year
(but for the deferral election).
Notwithstanding the foregoing, an elective contribution will be
taken into account under the Average Deferral Percentage test of
Section 401(k)(3)(A) of the Code for a Plan Year only if it is
allocated to the Member as of a date within that Plan Year. For
this purpose, an elective contribution is considered allocated as
of a date within a Plan Year if the allocation is not contingent
on participation or performance of services after such date and
the elective contribution is actually paid to the trust no later
than twelve 12) months after the Plan Year to which the
contribution relates.
(b) An actual Deferral Percentage and a Contribution Percentage will
be determined for each Member in the Plan.
(i) Member Deferral Percentage.
An Employee's Deferral Percentage will be equal to the ratio
of the total amount of the Employee's Part II Pretax Savings
for the Plan Year divided by his Compensation in the Plan
Year. With respect to Members who made no Pretax Savings
under this Plan, the percentage will be zero. The employer
may elect to include those Employer Contributions that the
Employer has elected to transfer to the Employer Part II
Profit Sharing Account in the Member Deferral Percentage.
(ii) Contribution Percentages.
An Employee's Contribution Percentage will be equal to the
ratio of the total amount of Part I After-Tax Savings for
the Plan Year divided by his Compensation in the Plan Year.
With respect to Members who received no After-Tax Savings,
such percentage will be zero. The Employer may elect to
include Active Member Pretax (Part II) Savings in
calculating the Contribution Percentage, to the extent not
utilized in (i).
Compensation for purposes of this subsection is defined in Code
Section 414(s) and will include Compensation for the entire Plan Year
regardless of when during the year a Member becomes eligible to
participate in the Plan.
(c) Nondiscrimination Requirements for Pretax Contributions.
For any Plan Year, the amount of Pretax Contributions must
satisfy either subsection (1) or subsection (2) as set forth
below:
(i) The Average Deferral Percentage for Highly Compensated
Employees may not exceed one and twenty-five one-hundredths
(1.25) times the Average Deferral Percentage for Nonhighly
Compensated Employees.
(ii) The Average Deferral Percentage for Highly Compensated
Employees
(A) may not exceed two (2) times the Average Deferral
Percentage for Nonhighly Compensated Employees, and
(B) may not exceed the Average Deferral Percentage for
Nonhighly Compensated Employees by more than two (2)
percentage points.
The Committee is empowered to monitor the Plan throughout the
Plan Year and to decrease or suspend the amount of Pretax
Contributions by Highly Compensated Employees or any group of
Highly Compensated Employees made pursuant to Section 3.1. Any
such decrease or suspension shall also be effective for purposes
of determining Employer Profit-Sharing Contributions to be made
pursuant to Section 3.2.
The Employer may also, in its sole discretion, make Qualified
Nonelective Contributions on behalf of eligible Employees who are
Nonhighly Compensated Employees in an amount sufficient to
satisfy the nondiscrimination requirements of this Section. Such
contributions shall be allocated based on the ratio which each
such eligible Employee's Compensation bears to the total
Compensation of all such eligible Employees for the Plan Year.
Such additional contributions, if any, shall be fully vested.
Notwithstanding the foregoing, Qualified Nonelective
Contributions may be treated as matching contributions for
purposes of the Actual Contribution Percentage (ACP) test of Code
Section 401(m) only if such contributions are nonforfeitable when
made and distributable under the following circumstances:
(i) The Employee's retirement, death, disability, or separation
from service,
(ii) The termination of the Plan without the establishment or
maintenance of another defined contribution plan (other than
an ESOP or SEP),
(iii)In the case of a profit-sharing or stock bonus plan, the
Employee's attainment of age 59-1/2 or the Employee's
hardship,
(iv) The sale or other disposition by Cubic to an unrelated
corporation of substantially all of the assets used in its
trade or business, but only with respect to Employees who
continue employment with the acquiring corporation and the
acquiring corporation does not maintain the Plan after the
disposition, and
(v) The sale or other disposition by Cubic of its interest in a
subsidiary to an unrelated entity, but only with respect to
Employees who continue employment with the subsidiary and
the acquiring entity does not main the Plan after
disposition. Paragraphs (ii), (iv), and (v) above apply only
if the transferee or Cubic continues to maintain the Plan.
Qualified Nonelective Contributions that may be treated as
matching contributions must satisfy these requirements
without regard to whether they are actually taken into
account as matching contributions.
Excess Pretax Contributions. If for any Plan Year it is
determined that the nondiscrimination requirements under
Section 3.3 are not satisfied:
(i) Certain Highly Compensated Employees shall have the Pretax
Contributions made on their behalf reduced retroactively in
accordance with the leveling method described in
Section 3.3(j);
(ii) At the Committee's sole discretion, a Highly Compensated
Employee who has had the Pretax Contributions made on his
behalf reduced under Subsection (1) shall have the amount of
such reduction treated in one (1) or both of the following
manners:
(A) All or a portion of the amount of such reduction plus
any investment earnings allocable to such reduction
shall be added to the Highly Compensated Employee's
After-tax Account and the amount of the reduction shall
be treated as an After-tax Contribution.
Recharacterization shall only be made within
two-and-one-half (2 1/2) months following the last day
of the Plan Year for which the reduction was necessary.
(B) or a portion of the amount of such reduction plus any
investment earnings allocable to such Pretax
Contributions shall be paid in cash to the Highly
Compensated Employee. Payment shall be made within
two-and-one-half (2 1/2) months following the last day
of the Plan Year for which the reduction was necessary,
if practicable, but in no event later than the last day
if the Plan Year following such Plan Year. For any Plan
Year, the amount of excess Pretax Contributions to be
distributed to any Participant shall be reduced by the
amount of excess deferrals distributed to such
Participant in accordance with Section 3.1 for the
Participant's taxable year ending with or within the
Plan Year. The income allocable to such excess Pretax
Contributions shall include income for the Plan Year
for which the Pretax Contributions were made,
determined in accordance with the alternative method
set forth in Reg. Section 1.401(k)-I(f)(4)(ii)(C) and
will include income for the period between the end of
such Plan Year and the date of the distribution,
determined in accordance with the safe harbor method
set forth in Reg. Section 1.401(k)- 1(f)(4)(ii)(D). Any
Employer Profit-Sharing Contributions attributable to
excess Pretax Contributions or excess deferrals (and
income allocable to such Employer Profit- Sharing
Contributions determined using the same method for
determining income on excess Pretax Contributions)
shall be forfeited within the period specified
immediately above and shall be used to reduce future
Employer Contributions under Section 3.2.
(d) Family Aggregation Rules for Pretax Contributions.
The family aggregation rules of Section 414(q)(6) of the
Code shall apply to any eligible Employee who is Highly
Compensated and a five (5) percent owner or one of the ten
(10) most Highly Compensated Employees. The Average Deferral
Percentage for the Family Members, who are treated as one
eligible Employee who is Highly Compensated, shall be the
Average Deferral Percentage determined by combining the
Pretax Contributions and Compensation of all eligible Family
Members.
If the Average Deferral Percentage of a Highly Compensated
Employee is determined under the family aggregation rules,
excess Pretax Contributions shall be allocated among the
Family Members in proportion to the Pretax Contributions of
each Family Member that were combined to determine the
Average Deferral Percentage rates.
(e) Nondiscrimination Requirements for After-tax and Employer
Profit-Sharing Contributions. For any Plan Year, the amount
of After-tax and Employer Profit-Sharing Contributions must
satisfy either Subsection (1) or (2) as set forth below:
(i) The Average Contribution Percentage for Highly
Compensated Employees may not exceed one and
twenty-five one- hundredths(1.25) times the Average
Contribution Percentage for Nonhighly Compensated
Employees.
(ii) The Average Contribution Percentage for Highly
Compensated Employees:
(A) may not exceed two (2) times the Average
Contribution Percentage for Nonhighly Compensated
Employees, and
(B) may not exceed the Average Contribution Percentage
for Nonhighly Compensated Employees by more than
two (2) percentage points.
Notwithstanding the foregoing, the Plan shall take into account
the actual contribution ratios of all eligible Employees for
purposes of the Average Contribution Percentage (ACP) test in
Code Section 401(m). For this purpose, an eligible Employee is
any Employee who directly or indirectly is eligible to receive an
allocation of matching contributions or to make Employee
Contributions and includes an Employee who would be a Plan
Participant but for the failure to make required contributions;
an Employee whose right to make Employee Contributions or receive
matching contributions has been suspended because of an election
(other than certain one-time elections) not to participate; and
an Employee who cannot make an Employee Contribution or receive a
matching contribution because Code Section 415(c) prevents the
Employee from receiving additional annual additions. In the case
of an eligible Employee who makes no Employee Contributions and
who receives no matching contributions, the contribution ratio
that is to be used in determining the ACP is zero.
Notwithstanding the foregoing, in performing the Average
Contribution Percentage (ACP) test of Code Section 401(m) for a
Plan Year, contributions will be taken into account as follows:
An Employee Contribution is to be taken into account if it is
paid to the Trust during the Plan Year or paid to an agent of the
Plan and transmitted to the Trust within a reasonable period
after the end of the Plan Year. An excess contribution to a cash
or deferred arrangement that is recharacterized is to be taken
into account in the Plan Year in which the contribution would
have been received in cash by the Employee had the Employee not
elected to defer the amounts. A matching contribution is taken
into account for a Plan Year only if it is:
(i) Made on account of the Employee's elective or Employee
Contributions for the Plan Year,
(ii) Allocated to the Employee's Account as of a date within
that year, and
(iii)Paid to the Trust by the end of the 12th month
following the close of that year.
Qualified matching contributions that arc used to meet the
requirements of Code Section 401(k)(3)(A) are not to be taken
into account for purposes of the ACP test.
Notwithstanding the foregoing, for purposes of determining
whether a plan satisfies the actual contribution percentage test
of Code Section 401(m), all Employee and Matching Contributions
that are made under two or more plans that are aggregated for
purposes of Code Sections 401(a) and 410(b) (other than Code
Section 410(b)(2)(A)(ii)) are to be treated as made under a
single plan and that if two or more plans are permissively
aggregated for purposes of Code Section 401(m), the aggregated
plans must also satisfy Code Sections 401(a) and 410(b) as though
they were a single plan.
Notwithstanding the foregoing, in calculating the Average
Contribution Percentage for purposes of Code Section 401(m), the
actual contribution ratio of a Highly Compensated Employee will
be determined by treating all plans subject to Code Section
401(m) under the Highly Compensated Employee is eligible (other
than those that may not be permissively aggregated as a single
plan).
The Committee is empowered to monitor the Plan throughout the
Plan Year and to decrease or suspend the amount of
After-Contributions made by Highly Compensated Employees pursuant
to an election made pursuant to Article 3.
Employer may also, in its sole discretion, make Qualified
Nonelective Contributions on behalf of eligible Employees who are
Nonhighly Compensated Employees in an amount sufficient to
satisfy the nondiscrimination requirements of this Section. Such
contributions shall be allocated based on the ratio that each
such eligible Employee's Compensation bears to the total
Compensation of all such eligible Employees for the Plan Year.
Such additional Contributions shall be fully vested.
Notwithstanding the foregoing, Nonelective Contributions may be
treated as elective contributions only if the conditions
described in Reg. Section 1.401(K)l(b)(5) of the regulations are
satisfied.
(f) Excess After-tax and Employer Profit-Sharing Contributions. If
for any Plan Year it is determined that the nondiscrimination
requirements under Section 3.3(c) are not satisfied:
(i) Certain Highly Compensated Employees shall have the total of
their After-tax and Employer Profit-Sharing Contributions
reduced retroactively in accordance with the leveling method
described in Section 3.3(j).
(ii) A Highly Compensated Employee who has had the total of his
After- tax and Employer Profit-Sharing Contributions reduced
in accordance with this Section 3.3(f) shall have the amount
of such reduction taken first from his After-Contributions
for the Plan Year. If a further reduction is necessary, it
shall be made from the Highly Compensated Employees Employer
Profit-Sharing Contributions for the Plan Year.
(iii)Reduced After-tax Contributions and nonforfeitable Employer
Profit-Sharing Contributions plus any investment earnings
allocable to such Contributions shall be paid in cash to the
Highly Compensated Employee. Payment shall be made within
two-and- one-half (2-1/2) months following last day of the
Plan Year for which the reduction was necessary, if
practicable, but in no event later than the last day of the
Plan Year following such Plan Year.
The income allowable to such reduced After-tax Contributions
and nonforfeitable Employer Profit-Sharing Contributions
shall be determined in accordance with the alternative
method set forth in Reg. Section 1.401(m)-l(e)(3)(ii)(C) and
will include income for the Plan Year for which the
After-tax Contributions and Employer Profit-Sharing
Contributions were made and for the period between the end
of such Plan Year and the date of distribution, determined
in accordance with the safe harbor method set forth in Reg.
Section 1.401(m)-1(c)(3)(ii)(D). Forfeitable Employer
Profit-Sharing Contributions (and income attributable to
such Profit-Sharing Contributions determined in the same
manner as for determining income on reduced After-
Contributions and Employer Profit- Sharing Contributions)
shall be forfeited within the period specified immediately
above and shall be used to reduce future Employer
Contributions under Section 3.2.
(g) Family Aggregation Rules for After-tax and Employer
Profit-Sharing Contributions. The family aggregation rules of
Section 414(g)(6) of the Code shall apply to any eligible
Employee who is Highly Compensated Employee and a five (5)
percent owner or one of the ten (10) most Highly Compensated
Employees. The Average Contribution Percentage for the Family
Members, which are treated as one eligible Employee who is Highly
Compensated, shall be the Average Contribution Percentage
determined by combining After-tax and Employer Profit-Sharing
Contributions and Earnings of all eligible Family Members. Excess
After-tax and Employer Profit-Sharing Contributions shall be
allocated among such Family Members in proportion to the
After-tax and Profit-Sharing Contributions of each Family Member
that were combined to determine the Average Contribution
Percentage.
(h) Multiple Use Limitation. For any Plan Year commencing on or after
January 1, 1991, the multiple use of the alternative limitation
occurs if any Highly Compensated Employee who is eligible for a
cash or deferred arrangement (CODA) under this Plan exceeds the
aggregate limit. The aggregate limit is the greater of the
Following:
(i) The sum of:
(A) 1.25 times the greater of (i) the ADP for eligible
Nonhighly Compensated Employees under the CODA for the
Plan Year or the ACP for eligible Nonhighly Compensated
Employees for the 401(m) plan for the Plan Year
beginning with or within the Plan Year of the CODA, and
(B) two plus the lesser of (i) or (ii), above, but in no
event more than twice the law of (i) or (ii), above; or
(ii) The sum of:
(A) 1.25 times the lesser of (i) the ADP for eligible
Nonhighly Compensated Employees under the CODA for the
Plan Year or the ACP for eligible Nonhighly Compensated
Employees for the 401(m) plan for the Plan Year
beginning with or within the Plan Year of the CODA, and
(B) two plus the greater of (i) or (ii), above, but in no
event more than twice the greater of (i) or (ii),
above.
Multiple use does not occur if either the ADP or the ACP of
the eligible Highly Compensated Employees does not exceed
125% of the respective percentages of the eligible Nonhighly
Compensated Employees.
For purposes of the multiple use test, the ADP and ACP of
eligible Highly Compensated Employees are determined after
correction (distribution, forfeiture, or recharacterization,
as applicable) of excess deferrals, excess contributions,
and excess aggregate contributions.
Notwithstanding the foregoing, the Committee is empowered to monitor
the Plan throughout the Plan Year and decrease or suspend the amount
of Pretax Contributions by Highly Compensated Employees or any group
of Highly Compensated Employees made pursuant to this Section 3.1. Any
such decrease or suspension shall also be effective for purposes of
determining Employer Profit-Sharing Contributions to be made pursuant
to Section 3.2.
The Employer may also, in its sole discretion, make Qualified
Nonelective Contributions on behalf of eligible Employees who am
Nonhighly Compensated Employees in an amount sufficient to satisfy the
multiple use limitation of this Section. Such Contributions shall be
allocated based on the ratio that each such eligible Employee's
Compensation bears to the total Compensation of all such eligible
Employees for the Plan Year. Such additional contributions, if any,
shall be fully vested.
(i) Leveling Method. If the nondiscrimination requirements of
Sections 3.3(c) or 3.3(f) are not met, Pretax Contributions (or
After-tax and Employer Profit- Sharing Contributions) shall be
reduced retroactively under the leveling method as follows:
(i) The Highly Compensated Employee with the highest
Deferral Percentage (or Contribution Percentage) shall
have his total Pretax Contributions (or After-tax and
Employer Profit-Sharing Contributions) reduced to the
extent required to satisfy the nondiscrimination
requirements of Section 3.3(c) (or Section 3.3(f)) or
to cause such Highly Compensated Employees Deferral
Percentage (or Contribution Percentage) to equal that
of the Highly Compensated Employee with the next
highest Deferral Percentage (or Contribution
Percentage).
(ii) If the nondiscrimination requirements set forth in
Section 3.3(c) (or Section 3.3(c)) are still not
satisfied after the reduction in subsection (1) is
made, the Highly Compensated Employee with the highest
Deferral Percentage (or Contribution Percentage) shall
have his total Pretax Contributions (or After-tax and
Employer Profit-Sharing Contributions) reduced to the
extent required to meet the nondiscrimination
requirements of Section 3.3(c) (or Section 3.3(c)) or
to cause such Highly Compensated Employee's Deferral
Percentage (or Contribution Percentage) to equal that
of the Highly Compensated Employee with the
next-highest Deferral Percentage (or Contribution
Percentage).
(iii)If the nondiscrimination requirements set forth in
Section 3.3(c) (or Section 3.3(c)) are still not
satisfied after the reduction in subsection (2) is
made, the process shall be repeated until the
nondiscrimination requirements of Section 3.3(c) (or
Section 3.3(c)) are satisfied.
(j) Aggregation of Plans. In the event this Plan is aggregated with
any other plan maintained by an Affiliated Employer and treated
as a single plan for purposes of Code Sections 401(2)(4) and
410(b) (other than Section 410(b)(2)(A)(ii)), all Pretax
Contributions, After-tax Contributions, and Employer
Profit-Sharing Contributions made under the two Plans shall be
treated as made under a single plan, and if two (2) or more of
such plans are permissively aggregated for purposes of Sections
401(k) and 401(m) of the Code, such plans shall be treated as a
single plan for purposes of satisfying Sections 401(a)(4) and
410(b) of the Code.
(k) Disaggregation of Plan. Notwithstanding anything contained in the
Plan to the contrary, in the event the mandatory disaggregation
rules of Reg. Section 1.401(k)l(g)(11)(iii) and/or
1.401(m)-l(b)(3)(ii) require that this Plan be treated as two (2)
or more separate plans, the provisions of the Plan shall be
applied separately with respect to each deemed separate plan, as
necessary and appropriate.
In the case of a deemed separate plan that covers eligible
Employees employed within a edification with respect to which
retirement benefits have been the subject of collective
bargaining, the provisions of Sections 3.3(c), 3.3(c), and 3.3(o
shall apply to such deemed separate plan effective for Plan Years
beginning on or after January 1, 1993 and the provisions of
Sections 3.3(f), 3.3(g), 3.3(h), and 3.3(i) shall be deemed
satisfied by such deemed separate plan.
(l) Code Section 415 Limits. Any annual additions made on behalf of a
Participant hereunder shall be limited to the extent required by
Section 415 of the Code and rulings, notices, and regulations
issued thereunder. To the extent applicable, Section 415 of the
Code and rulings, notices, and regulations issued thereunder am
hereby incorporated by reference into the Plan. In calculating
these limits, the following rules shall apply:
(i) In the event the Committee determines that the annual
additions made on behalf of a Participant during any
Limitation Year are in excess of the limitations of
this Section 3.3(m) as the result of a mistake in
estimating a Participants Compensation, a reasonable
error in determining the amount of Pretax Contributions
that may be made with respect to any Participant, or
under other limited facts and circumstances that the
Commissioner of Internal Revenue finds justify the use
of these rules, such annual additions shall be reduced
by returning the Participants After-tax Contributions
and/or Pretax Contributions, as appropriate, plus any
gains or losses, for such Limitation Year in such
amount so that the limitations of this Section 3.3(m)
are not exceeded. Any After-tax Contributions and
Pretax Contributions thus distributed shall be
disregarded for purposes of Sections 3.3(b)(i) and
3.3(b)(ii), as appropriate.
If, following the return of all the Participants After-tax
Contributions and/or Pretax Contributions that may be
refunded, the annual additions made on behalf of a
Participant during the Limitation Year are still exceeded,
such annual additions shall be reduced to the extent
necessary, first from unmatched Pretax Contributions, then
from Employer Profit-Sharing Contributions, then from any
remaining Pretax Contributions for such Limitation Year, so
that the limitations of this Section 3.3(m) are not
exceeded. The amount of such reduction shall be credited to
an unallocated Employer Contribution Account, shall not be
subject to adjustment in accordance with Section 4.1, and
shall be deemed to be an Employer Profit-Sharing
Contribution for the Participant for the next succeeding
Limitation Year (and succeeding Limitation Years as
necessary) and used to fulfill the Employer's obligation
under Section 3.2 in such following Limitation Year.
However, if the Participant is not covered under the Plan as
of the end of the Limitation Year, the excess amounts must
be held in the unallocated Employer Contribution Account and
reallocated in the next Limitation Year to all the remaining
Participants in the Plan.
(ii) If the Participant is, or ever has been, covered under
one (1) or more qualified defined benefit plans
maintained by the Employer or Affiliated Employer, the
combined plan limits of Code Section 415(c) shall be
calculated by reducing the limits applicable to the
defined benefit plans first, prior to restricting
annual additions to this Plan.
(m) Excess Contributions. The amount of excess contributions to be
distributed or recharacterized shall be reduced by excess
deferrals previously distributed for the amble year ending in the
same Plan Year and excess deferrals to be distributed for a
taxable year will be reduced by excess contributions previously
distributed or recharacterized for the Plan beginning in such
taxable year. Failure to correct excess contributions by the
close of the Plan Year following the Plan Year for which they
were made will cause the cash or deferred arrangement to fail the
requirements of Code Section 401(k)(3) for the Plan Year for
which the excess contributions were made and for all subsequent
years they remain in the trust. Also, the employer will be liable
for a 10% excise tax on the amount of excess contributions unless
they are corrected within two-and-one-half (2-1/2) months after
the close of the Plan Year for which they were made.
Notwithstanding the foregoing, the recharacterized excess
contributions will remain subject to the nonforfeitability
requirements and distribution limitations that apply to elective
contributions.
(n) Excess Aggregate Contributions. In the event of a Highly
Compensated Employee whose actual contribution ratio (ACR) is
determined under the family aggregation rules, the determination
of the amount of excess aggregate contributions shall be made as
follows: The ACR is reduced in accordance with the "leveling"
method described in Section 3.3(i) and the excess aggregated
contributions are allocated among family members in proportion to
the contributions of each family member that have been combined.
Notwithstanding the foregoing, the amount of excess aggregate
contributions for a Plan Year shall be determined only after
determining the excess contributions that are treated as Employee
contributions due to recharacterization. Distribution (or
forfeiture, if applicable) of excess aggregate contributions
shall be made on the basis of the respective portions of such
amounts attributable to each Highly Compensated Employee.
3.4 Limitation on Annual Additions
(a) Basic.
Notwithstanding Sections 3.1, 3.2, and 3.3, and subject to the
provisions of paragraphs (b) and (c) below, the amount of Annual
Additions allocated to any Member's Accounts for a Plan Year will
not exceed the law of 25% of a Member's Earnings paid in such
year, or the amount in Code Section 415(c)(1)(A).
For purposes of this section, "Annual Additions" means the total
amount of Employer Profit-Sharing Contributions, Member Savings,
and forfeitures allocated to the Member's Accounts during the
Plan Year.
(b) Participation in Other Defined Contribution Plans.
The limitation of this Section 3.4 for any Member who at any time
has participated in any other qualified defined contribution plan
(as defined in ERISA Section 3(34) and Code Section 414(i))
maintained by the Affiliated Employer will apply as if the total
contributions allocated under all such defined contribution plans
in which the Member has participated were allocated under one
plan.
(c) Participation in this Plan and Defined Benefit Plan.
If a Member has been a participant in a qualified defined benefit
plan (as defined in ERISA Section 3(35) and Code Section 414(j))
maintained by the Affiliated Employer, the sum of the Member's
Defined Benefit Plan Fraction and Defined Contribution Plan
Fraction for any year will not exceed one. For purposes of this
subsection (c) only, the following words and phrases have the
meanings specified below:
(i) "Defined Benefit Plan Fraction" for any Plan Year means a
fraction in which the numerator is the Member's Projected
Annual Benefit, as defined below, as of the end of the year,
and the denominator is the lesser of 1.25 multiplied by the
dollar limitation in effect under Code Section 415(b)(1)(A)
for such Plan Year or 1.40 multiplied by 100% of the
Member's average annual Earnings for the highest three
consecutive calendar years of participation.
(ii) "Defined Contribution Plan Fraction" for any Plan Year means
a fraction, not to exceed one, in which the numerator is the
sum of all Annual Additions made on behalf of the Member to
his Accounts in such Plan Year and for all previous Plan
Years, and the denominator is the sum of the lesser of (A)
or (B) determined for such Plan Year and for each previous
Plan Year during which the Member was employed by the
Affiliated Employer:
(A) 1.25 multiplied by the dollar limitation in effect
under Code Section 415(c)(1)(A) for such Plan Year.
(B) 1.40 multiplied by 25% of the Member's Earnings in such
Plan Year.
(iii)"Member's Projected Annual Benefit" means the annual benefit
to which the Member would be entitled under all defined
benefit plans sponsored by the Affiliated Employers,
assuming the Member continues employment until Normal
Retirement Date, the Member's Earnings continue until Normal
Retirement Date at the rate in effect during the current
calendar year, and all other factors relevant for
determining benefits under the Plan remain constant at the
level in effect during the current calendar year.
In the event that the sum of the Member's Defined Benefit Plan
Fraction and Defined Contribution Plan Fraction for any Plan Year
exceed one, adjustments will be made by first reducing the amount
in the numerator of the Defined Benefit Plan Fraction, to the
extent possible, and then by reducing the amount in the numerator
of the Defined Contribution Plan Fraction.
(d) Reduction in Allocation.
If the limitations described in Section 3.4(a), (b), and (c) are
not effective in limiting the amount to be allocated to the
Accounts of a Member for a Plan Year, the annual contributions
will be reduced as necessary to bring them within the limitation,
as follows:
(i) The Member's Part I After-Tax Savings under Section 3.1(a)
(ii) Interest or earnings on the Member's Part I After-Tax
Savings
(iii) The Member's Part II Pretax Savings under Section 3.1(b)
(iv) Interest or earnings on the Member's Pretax Savings
(v) The Employer's Profit-Sharing Contributions under Section
3.2
(vi) Interest or earning on the Employees Contributions.
Any such amounts will be returned by March 15 of the following
Plan Year.
(e) The determination of the limitation on Annual Additions described
in this Section 3.3 will be made considering the Employees of the
Affiliated Employers as employed by a single employer. Such
determination will be made assuming the phrase "more than fifty
percent" is substituted for the phrase "at least eighty percent"
wherever it appears in Code Section 1563 (a)(1).
3.5 Rollover Contributions
(a) Employee of Affiliated Employer.
A Member may transfer to this Plan any amounts attributable to
such Member under a prior qualified defined contribution
profit-sharing plan, as defined in ERISA Section 3(34),
maintained by the Affiliated Employer or from any other plan as
approved by the Committee that meets the requirements of Code
Section 402(a)(5). Such contributions will be allocated to the
Member's Rollover Account and will be subject to all the terms
and conditions of this Plan.
ARTICLE 4
INVESTMENT OF CONTRIBUTIONS AND
VALUATION OF ACCOUNTS
4.1 Members Accounts.
Committee will establish and maintain in the name of each Member the
following Accounts, as applicable: Employer Profit-Sharing Accounts
(Parts I and II), a Pretax Account, an After-Tax Account, and a
Rollover Account. A Member's Accounts will be credited with
contributions, charged with withdrawals, distributions, and expenses,
and adjusted for investment results as determined under the Plan.
Member's Savings or Employer Profit-Sharing Contribution shad be paid
to the Funding Agent by the Employer and, after deduction of the
administrative expenses by the Funding Agent, credited to the Accounts
maintained for such Member by Funding Agent in accordance with the
group annuity contract or contracts. In lieu of deduction, the
Employer must pay all or a part of the administrative expenses by the
Funding Agent.
4.2 Investment.
Each Member will have his Accounts invested with the Funding Agent.
The Funding Agent provides the Investment Funds set forth in Appendix
B to this Plan. The Board may from time to time add or change the
Investment Funds offered by the Plan. Changes in Investment Funds made
by resolution of the Board will be reflected in Appendix B.
4.3 Investment of Savings.
Members will have the right upon enrollment to elect the Investment
Funds in which deferrals will be invested by delivering a written
notice to the Committee. Such written notice will include the
percentage, in 10% increments, of future contributions to invested in
each Investment Fund, with the total of the percentages to equal 100%.
To extent not specified, a Member's Savings Accounts will be invested
in Fund A.
4.4 Investment of Employer Contributions.
Members will have the right upon enrollment to elect the Investment
Funds separately under which future Employer Profit-Sharing
Contributions will be invested by delivering a written notice to the
Committee. Such written notice will include the percentage, in 10%
increments, of future Employer Profit-Sharing Contributions to be
invested separately each Investment Fund, with the total of the
percentages to equal 100%. Members may make a separate election for
the investment of any Employer (Part II) Profit-Sharing Contributions.
To the extent not specified, Employer Profit-Sharing Contributions
will be invested in Fund A.
4.5 Investment of Rollover Contributions.
Members will have the right upon enrollment to elect the Investment
Funds in which Rollover Contributions will be invested by delivering a
written notice to the Committee. Such written notice will include the
percentage, in 10% increments, of future contributions to be invested
in each Investment Fund, with the total of the percentages to equal
100%. To the extent not specified, a Member's Rollover Account will be
invested in Fund A.
4.6 Change in Investment of Future Contributions.
A Member may change the percentage of future Savings, Employer
Profit-Sharing Contributions, and Rollover Contributions at any time
during the Plan Year by delivering written notice to the Committee or
by contacting the Funding Agent on their toll-free investment phone
fine.
No such change may be retroactive. Such changed proportion will apply
to such contributions received by the Funding Agent on or after the
later of the effective date of such change and the date of receipt of
such notification of change by the Funding Agent until any subsequent
change is made by the Member.
4.7 Transfer of Invested Accounts.
A Member may transfer amounts between his Accounts by notifying the
Committee in writing or by contacting the Funding Agent on their
toll-free investment phone line. Such transfer will be effective on
the Funding Agents receipt of the written request or the date the
telephone request, subject to any restrictions imposed by the Funding
Agent.
If a Member requests a transfer of a portion of an Account and if the
dollar value of such Account after such transfer would be less than
$1,000, the Member will be deemed to requested a transfer of the
entire Account.
A transfer may be made as frequently as requested by a Member without
restrictions, except those that may be imposed by the Funding Agent.
4.8 Allocation of Investment
Income on a Valuation Date. As of each Valuation Date, the Funding
Agent will determine the net investment gain or after adjustment for
any applicable expense, of each Investment Fund since the preceding
Valuation Date. The net investment gain or loss of each Fund will be
allocated to each Member's Account balance in the ratio that the net
investment gain or loss of that Fund as the portion of such Member's
Account balance invested in the Fund bears to the total of all
Members' Account balances invested in such Fund.
ARTICLE 5
WITHDRAWALS
5.1 Withdrawals from Member Accounts.
Withdrawals may be made only from Members' After-Tax and Rollover
Accounts. A Member may request up to two withdrawals from his Accounts
each Plan Year by submitting a written request to the Committee at
least 30 days in advance. A Member may only withdraw from his
After-Tax Savings Account and then his Rollover Account. Accounts will
be debited from Investment Funds in the same ratio as each Fund bears
the total Investment Funds in that Account.
5.2 Withdrawals from Employer (Part I) Profit-Sharing Contribution
Account.
A Member who has been a Member for at least 60 calendar months may
withdraw not than $1,500 and up to 65% of the Vested portion of his
Employer (Part I) Profit-Sharing Contribution Account. The request
must be in writing and submitted to the Committee at least 30 days
before the date the withdrawal is requested. This Account will debited
in the same ratio as each Fund bears to the total Investment Funds in
that Account. After a Member has made a withdrawal no subsequent
withdrawal may be made from this Account until the fifth anniversary
of such withdrawal.
5.3 Loans.
No loans are permitted from this Plan.
5.4 Withdrawals Subject to Spouse's Consent.
Before a married Member may receive a withdrawal, the Spouse of such
Member must consent to the withdrawal in writing, witnessed by a
notary public, the United States armed forces military equivalent of a
notary public, a Plan representative or such other individual and in
such manner as may be authorized by the Plan Administrator to witness
such consent.
ARTICLE 6
RETIREMENT, DEATH, DISABILITY, AND
TERMINATION OF EMPLOYMENT BENEFITS
6.1 Retirement Benefits.
The retirement benefits payable for a Member on or after his
Retirement Date will equal 100% of the value of his Accounts, payable
in the form of an annuity or lump sum, as provided in Article 7. An
Employee will be 100% Vested in all his Accounts upon attainment of
age 65.
6.2 Death Benefits.
The death benefit payable to a Beneficiary for a Member whose
employment terminates of death will equal 100% of the value of the
Member's Accounts on the Valuation immediately following the Member's
death.
6.3 Disability Benefits.
The disability benefit for a Member who is Permanently and Totally
Disabled will be 100% of the value of his Accounts on the Valuation
Date immediately following the date on which the Committee determines
that he is Permanently and Totally Disabled.
6.4 Benefits upon Termination of Employment.
The benefit for a Member whose employment terminates for any reason
other than death, disability, or attainment of his Retirement Date
will be the Vested value of his Accounts on the Valuation Date
immediately following termination of employment. The Vested value of a
Member's Accounts will equal:
(a) Savings Accounts: 100%
(b) Employer (Part II) Profit-Sharing Account: 100%
(c) Rollover Account: 100%
(d) Employer (Part I) Profit-Sharing Account: according to the
following schedule:
Years of Service Vested Percentage
------------------------------ --------------------------------
Less than 1 0
1 0
2 0
3 30
4 40
5 60
6 80
7 100
6.5 Prior Service Credited for Vesting Purposes.
If the Employee satisfies the eligibility requirements under this
Plan, his Year of Service for Vesting purposes shall include any prior
Service for a predecessor employer and/or Service as a leased
employee, within the meaning of Code Section 414(n), to any Employer
aggregated under Code Section 414(b), whether or not such individual
is eligible to participate in this Plan. "Service" means an Employee's
period of employment with the Employer or an affiliated Employer.
6.6 Forfeitures
The nonvested portion of a Member's Employer Profit-Sharing Account,
if any, will be forfeited the earlier of (i) distribution of the
vested portion of such Account to the Member (if less than the full
value), or (ii) when he has incurred five consecutive One- Year Breaks
in Service. Any such forfeitures will be applied first to restore the
forfeited portions of the Employer Profit-Sharing Account of rehired
Members described in Subsection 6.7(a). Any remaining forfeitures will
be allocated as of the last day of the Plan Year to the Employer
Profit-Sharing Account of each Active Member, employed on that date,
who received an Employer Contribution for that Plan Year. The amount
to be allocated for all such Members will be the ratio of (i) the
Employer Profit-Sharing contribution to the Member's account for such
Plan Year to (ii) the total amount of Employer Profit-Sharing
contributions to all Members' accounts for such Plan Year. If the
amount of forfeitures available is insufficient to restore the
Accounts required to be reinstated for rehired Members, the Employer
will make an additional contribution in an amount required to
reinstate such Accounts fully.
6.7 Reinstatement of Forfeited Accounts
(a) For a Member whose termination of employment occurs before he is
100% Vested in his Employer Profit-Sharing Account and who is
rehired before incurring five consecutive One-Year Breaks in
Service, the value of his Account that was forfeited when his
employment terminated, in accordance with Section 6.4, will be
restored, without any interest thereon, only upon the repayment
of the amount of the distribution attributable to such
contributions, to the Member's applicable Accounts. Such
repayment must be made within five years of the Member's date of
reemployment.
(b) A Member whose termination of employment occurs before he is 100%
Vested in his Employer Profit-Sharing Account and who is rehired
after incurring five consecutive One-Year Breaks in Service will
not have the value of his Accounts restored that were forfeited
on his original termination.
(c) For a Member who was Vested in any portion of his Savings or
Employer Profit-Sharing Accounts, all pre-break service will
count toward Vesting in such Member's Accounts accrued after such
break, regardless of the number of One-Year Breaks in Service.
ARTICLE 7
DISTRIBUTION OF BENEFITS
7.1 Normal Form of Retirement Benefit
(a) The Normal Form of Retirement Benefit for a Member who has no
Spouse is a single life annuity with monthly payments beginning
on his Retirement Date continuing to the first day of the month
in which the Member dies.
(b) The Normal Form of Retirement Benefit for Member who has a Spouse
is a 50% joint and survivor ten-year certain annuity, described
in Section 7.2(b), with the Spouse as the joint annuitant. Under
this form of benefit a Member will receive monthly payments for
life continuing to the first day of the month in which he dies.
Thereafter, 50% of the amount of such monthly payment will be
continued monthly for life to the surviving Spouse continuing to
the first day of the month in which the Spouse dies. If the
Member and Spouse both die before 120 monthly payments have been
received, the payments will continue to their Beneficiary until a
total of 120 payments have been made.
7.2 Optional Forms of Retirement
Benefit Not more than 90 days preceding the Member's actual Retirement
Date and instead of receiving benefits under the Normal Form of
Retirement Benefit, any Member may elect to receive his Retirement
Benefit payments under one of the options forms.
If a Member who has a Spouse elects an optional form of benefit
payment, his Spouse must consent to such election and acknowledge its
effect, and such consent must be witnessed by a notary public or Plan
representative. Such spousal consent is not required if the Member
elects the 50% or 100% joint and survivor ten-year certain annuity
option with his Spouse as joint annuitant or if it is established to
the satisfaction of a Plan representative that a Member has no Spouse
or the Spouse cannot be located, or because of such other
circumstances as the Secretary of the Treasury may by regulations
prescribe. Any consent of a Spouse or the establishment that the
consent of a Spouse cannot be obtained shall be effective only with
respect to that particular Spouse. A Member may revoke the election of
an optional form of payment without his Spouse's consent at any time
before payments begin.
Notwithstanding the foregoing, prior to the ninety (90) day period
ending on the annuity starting date, a Member may waive the Qualified
Joint and Survivor Annuity (QJSA) form of benefit provided that a
completed waiver form is filed with the Plan Administrator, and that
the following conditions are satisfied:
1. The Member's Spouse consents in writing to the election and the
Spouse's consent is witnessed by a Plan representative or Notary
Public;
2. The Member's waiver and the Spouse's consent state that the
specific nonspouse beneficiary (including any class of
beneficiaries or contingent beneficiaries) and the participant
optional form of benefits, neither of which may be further
modified (except back to a QJSA) without subsequent spousal
consent (unless expressly permitted by the spouse), and
3. The Spouse's consent acknowledges the effect of the election.
Notwithstanding the foregoing, payment in the form of a QJSA (or QPSA)
shall commence immediately upon formal notification of the surviving
Spouse's interest under this Section 7.2.
Any form of Retirement Benefit payment that is not a lump sum or an
installment payment will be made through a paid-up, non-transferable
annuity contract that is qualified for the payment of retirement
benefits under the terms of the Plan, the Code, and ERISA. The
Committee will instruct the Funding Agent or Trustee as to the insurer
and the form of any annuity contract to be purchased from the Accounts
of the Member.
(a) Single Life Annuity
Monthly payments will be made to the Member beginning on his
Retirement Date and continuing to the first day of the month in
which he dies.
(b) Joint and Survivor Ten-Year Certain Annuity
The Member will receive monthly payments for life. Such payments
shall continue until the first day of the month in which his
death occurs, at which time 50% or 100% (whichever the Member
selects) of the amount of such monthly payment will be continued
monthly for life to the person whom the Member designated as
joint annuitant. The last payment to the joint annuitant will be
made on the first day of the month in which the joint annuitant
dies. A contingent annuitant must be named at the time this form
is elected. The benefit a Member will receive will depend on the
percentage of the monthly amount that he elects to continue to
his joint annuitant as well as his age and his joint annuitant's
age. If the Member and joint annuitant both die before 120
payments have been received, the payments will continue to the
contingent annuitant until a total of 120 payments have been
made.
(c) Ten-Year Certain and Life Annuity
The Member or his Beneficiary will receive monthly payments for
the greater of (i) 10 years, or (ii) the life of the Member.
(d) Ten-Year Certain Annuity
The Member will begin receiving monthly payments on his
Retirement Date which will continue until 120 payments have been
made. If the Member dies, his Beneficiary will receive the
balance of the payments.
(e) Time Period Installments
A Member will begin receiving on his Retirement Date month,
quarterly, semiannual, or annual payments over a specified period
of years not in excess of 20 years, as elected by the Member. The
distribution in any year shall be determined as a fraction of the
Member's total remaining Accounts value, such fraction being
determined as of the most recent Valuation Date as one divided by
the remaining number of years of the specified period, in
accordance with the election of the Member; provided, however,
that no arrangement may be made that would result in a periodic
payment of less than $50.00. Upon the death of the Member after
distributions commence, the Beneficiary may similarly elect to
receive the balance of the Accounts of the Member in installments
over not more than five years or in a lump sum, and upon the
Beneficiary's subsequent death, the balance, if any, in the
Accounts of the Members shall be paid in a lump sum to the estate
of the Beneficiary.
(f) Level Dollar Installments
A member will begin receiving payments on his Retirement Date
from the Member's Accounts, level monthly, quarterly, semiannual,
or annual payments of such amount as elected by the Member,
payable until there is no balance remaining in the Member's
Accounts. The total annual amount of such installments must equal
not less than 10% of the value of the Member's total Accounts as
of the Valuation Date immediately preceding the date the
distribution begins and that no single installment payment may be
less than $50.00, or which involves payments over more than 20
years. If the Member dies while payments are being made under
this option, the Beneficiary shall receive the balance of the
Member's Accounts in a lump sum.
(g) Lump Sum (for amounts over $3,500)
Subject to the provisions of Section 7.5, if the value of a
Member's Accounts is over $3,500, determined as of the date of
employment termination, such benefit may be paid in a lump sum to
the Member, his Spouse, or Beneficiary, whichever is applicable.
Notwithstanding the foregoing, the Plan shall not distribute the
Member's accrued benefit in any form other that a QJSA (or QPSA)
without the consent of the Member's Spouse where the present
value, as determined under Section 7.5, of the nonforfeitable
benefit does not exceed $3,500.
The Plan shall not require a surviving Spouse to begin receiving
benefits under a QPSA prior to the time the Member would have
attained the later of age 62 or Normal Retirement Age (as defined
in Code Section 411(a)(8)), except where the present value of the
nonforfeitable benefit does not exceed $3,500, as determined
under Section 7.5.
Notwithstanding the following, a Member's surviving Spouse may
direct the commencement of payments under the Qualified
Preretirement Survivor Annuity within a reasonable time after the
Member's death.
(h) Optional Form of Benefit
Any optional form of benefit may be revoked by the Member at any
time before payments begin and will be deemed automatically
revoked by the death of either the Member or the joint annuitant
before the member's actual Retirement Date or his Normal
Retirement Date, whichever is earlier. A Member may designate his
Spouse or any other person as his joint annuitant provided that,
if he designates someone other than his Spouse as joint
annuitant, the optional form of payment he elects provided for
distributions to the Member which, as of his payment commencement
date, will provide for payments that satisfy the requirements for
minimum distribution of incidental benefits under Code Section
401(a)(9).
7.3 Notice to Members
At least thirty (30) days, but under no circumstances more than ninety
(90) days, prior to a Member first becoming eligible to elect an Early
Retirement Date or any earlier payment commencement date, the
Committee shall furnish the Member and Spouse with a written
explanation of:
(a) The terms and conditions of the Normal Form of benefit under
Section 7.1,
(b) The right to elect to receive his benefit in an optional form
under Section 72., and the effect of such election,
(c) The rights of the Spouse if an optional form of benefit is
elected under Section 7.2, and
(d) The right to make, and the effect of, a revocation of an election
under subsection (b) above.
The notice and explanation will also inform the Member that additional
information is available upon written request to the Committee within
60 days after the original notice is received. The additional
information available upon such written request will consist of a
written explanation in nontechnical language of the terms and
conditions of the 50% joint and survivor ten-year certain annuity
option and the financial effect in terms of dollars per annuity
payment of making any other election. The Committee shall mail or
deliver the explanation to the Member within 30 days of his request.
However, the Committee shall not be required to comply with more than
one request for additional information by any Member.
In the event a Member chooses to continue employment after he becomes
eligible for an Early Retirement Date, the above information shall be
supplied to the Member at least nine months before his Normal
Retirement Date.
Notwithstanding the foregoing, a Member who has elected to waive the
QJSA by completing the designated waiver form and satisfying the
above-mentioned criteria may revoke the election at any time and any
number of times during the ninety (90) day period ending on the
annuity start date.
7.4 Form of Distribution Upon Death
The following terms apply with respect to benefits payable upon the
death of a Member prior to retirement or other termination:
(a) The Beneficiary of a married Member will be his Spouse unless the
Member designates a Beneficiary other than his Spouse and the
Spouse consents in writing to such designation; the consent must
acknowledge the effect of the designation and must be witnessed
by a notary public or a Plan representative. The Committee may
dispense with the Spouse's consent if the Spouse cannot be
located, or for such other reasons as provided in Treasury
Regulations.
(b) Unless an optional form of benefit is selected pursuant to a
qualified election with the election period described below, if a
Member who is credited with at least one Hour of Service dies
before a distribution of his Account(s) has been made, then 50%
of the Vested amount of his Account(s) will be applied to
purchase an annuity for the life of his surviving Spouse. The
Spouse may elect a different form of benefit provided under the
Plan. The remaining 50% of the Vested amount of his Account(s)
will be paid to the Member's designated Beneficiary in the form
selected by him or his Beneficiary (his surviving Spouse may also
be his designated Beneficiary).
"Election period" means the period that begins on the first day
of the Plan Year in which the Member attains age 35 and ends on
the date of the Member's death. If a Member separates from
service before the first day of the Plan Year in which he attains
age 35, with respect to the amount of his Account(s) as of the
date of separation, the election period will begin on the date of
separation.
The Committee will provide each Member on or after the first day
of the Plan Year in which the Member attains age 35. A Member may
waive the Qualified Preretirement Survivor Annuity (QPSA)
provided that a completed waiver form is filed with the Plan
Administrator and that the following conditions are satisfied:
1. The Member's spouse consents in writing to the election and
the Spouse's consent is witnessed by a Plan representative
or Notary Public;
2. The Member's waiver and the Spouse's consent state the
specific nonspouse beneficiary (including any class of
beneficiaries or contingent beneficiaries), which may not be
modified (except back to a QPSA) without subsequent spousal
consent;
3. The Spouse's consent acknowledges the effect of the
election. If the Member separates from service before the
Plan Year in which he attains age 35, the foregoing election
may be made on or after the date of separation with respect
to benefits accrued prior to separation.
(c) A "qualified election" is an election by the Member of a form of
distribution other than a joint and survivor annuity providing
for payments after his death to his surviving Spouse or of a form
of preretirement death benefit other than a life annuity to such
Spouse. Any waiver must be in writing and must be consented to by
the Member's Spouse. The Spouse's consent must be witnessed by a
notary public. However, if the Member establishes to the
satisfaction of a Plan representative that such written consent
may not be obtained because there is no Spouse or the Spouse
cannot be located, a waiver by the Member will be deemed a
qualified election. Any consent necessary under this subsection
will be valid only with respect to the Spouse who signs the
consent, or in the event of a deemed qualified election, the
designated Spouse. Additionally, a revocation of a prior waiver
may be made by a Member without the Spouse's consent at any time
before a distribution of the Member's Account(s) is made. The
number of revocations will not be limited.
(d) The information that the Committee must give each Member during
the election period that applies to the selection of a form of
distribution must include a written explanation of the rights of
the Member's Spouse.
7.5 Small Benefits
If the value of a Member's Accounts under the Plan is $3,500 or less,
determined as of the date of distribution or death, such benefit will
be automatically paid in a lump sum to the Member, his Spouse, or
Beneficiary, whichever is applicable. Such payment is in lieu of and
in full satisfaction of all benefits payable under the Plan to such
Member, Spouse, or Beneficiary. The applicable dollar amount will be
automatically increased if rulings or regulations issued by the
Internal Revenue Service so allow.
To determine the benefit of a Member who receives any benefit payment
in accordance with this Article and who later becomes entitled to
receive additional benefits from the Plan, such subsequent benefit
shall be reduced by the value of the payments he received earlier.
Notwithstanding the foregoing, if the present value of a Member's
Account at the date of distribution exceeds $3,500, then the present
value at any subsequent Determination Date shall be deemed to exceed
$3,500 for purposes of determining small benefits under this Section
7.5.
7.6 Timing of Distributions
(a) Distributions under the Plan pursuant to Article 6 will begin as
soon as practical after the first Valuation Date following the
date the Member terminates employment with the Employer, but not
later than 60 days following the end of the Plan Year in which
the Member attains age 65 or terminates employment, if later. If
a Member is rehired by the Employer before his benefit is
distributed by the Funding Agent, any benefit payments he was
entitled to receive will continue during his subsequent period of
employment. When such a Member later again terminates employment,
his benefits payable from the Plan will include only the Vested
value of his Account attributable to his latest period of
employment to the extent he has not repaid his former
distribution in accordance with Section 6.6.
(b) If the Vested value of the terminated Member's Accounts exceeds
$3,500, the Member's consent is required for a distribution
beginning before he attains age 65. A Member may defer receipt of
his distribution up to the later of his Normal Retirement Date or
the date he makes a written election to receive his
nonforfeitable Account, but no later than allowed in 7.6(c). A
Member electing to defer receipt of his distribution will
continue to share in the allocation of investment income pursuant
to Article 4. Such Member should notify the Committee in writing
of subsequent changes in his investment election, beneficiary, or
address.
(c) Minimum Required Distributions. Notwithstanding any provision in
the Plan to the contrary, all distributions under the Plan shall
be made in accordance with the requirements of Code Section
401(a)(9) and the regulations thereunder, including the
incidental death benefit requirement of IRS Proposed Regulations
Section 1.401(a(9)-2. The provisions in this section override any
distribution options under the Plan if inconsistent with the
requirements of Code Section 401(a)(9).
(i) Pre-Death Distribution. Distributions to a participant shall
commence no later than the April 1 of the calendar year
following the calendar year in which a Participant attains
age seventy and one-half (70 1/2); however, if a Participant
attained age 70 1/2 before January 1, 1988, distributions to
such Participant shall commence no later than the April 1
following the calendar year in which such Participant
retires. Distributions shall be made in one of the forms
specified under Code Section 7.1 or 7.2. In no event shall
distributions be made for a period greater than the life
expectancy of the Participant or joint life expectancy of
the Participant and his Spouse determined as of the April 1
of the calendar year in which the Participant attains age
70 1/2 or retires, as the case may be.
(ii) Post-Death Distributions. In the event of the death of the
Participant, any payments due following the death of the
Participant shall be made in accordance with Article 7. in
the case of a Participant who had begun to receive
distributions under Section 7.6(c), distributions shall be
made after such Participant's death at least as rapidly as
before his death. in the case of other Participants, in no
event shall distributions be made later than the end of the
calendar year that contains the fifth anniversary of the
date of the Participant's death.
(d) If an annuity is to be paid, the payments must be made over:
(i) The life of the Member,
(ii) The lives of the Member and his eligible Spouse if payments
are to be made to the Spouse, otherwise his designated
Beneficiary,
(iii)A period not extending beyond the Member's life expectancy,
or (iv) A period not extending beyond the life expectancy of
the Member and his eligible Spouse if applicable, otherwise
his designated Beneficiary.
(e) If a Member dies before his distribution date, the total value of
his Account(s) must be distributed within five years after his
death. However, this will not apply if:
(i) Annuity payments are to be made to the Member's eligible
Spouse as described in the Plan and will (a) be made over
the life of the Spouse and (b) begin to the Spouse no later
than the date on which the Member would have attained age
70 1/2, or
(ii) Annuity payments are to be made to the Member's designated
Beneficiary whether or not his eligible Spouse and will
(a) made over the life of the Beneficiary or over a period
not extending beyond the life expectancy of the Beneficiary
and (b) begin no later than one year after the Member's
death.
7.7 Distributions Pursuant to a Qualified Domestic Relations Order
Notwithstanding any other provisions of this Plan, regardless of
whether the Member is eligible to receive a distribution of his/her
Accounts, an alternate payee (as defined in Section 414(p)(8) of the
Code) may elect to take a distribution of his/her interest in a
Member's Accounts as soon as administratively feasible from the date
on which the Committee determines that such distribution is permitted,
pursuant to a "qualified domestic relations order" as defined in
Section 414(p)(1)(A) of the Code.
If a qualified domestic relations order so provides, the Committee
shall establish a segregated account for that share of a Plan Member's
benefits assigned to the alternate payee under a qualified domestic
relations order and shall, to the extent allowed by law and as
provided under the Plan and qualified domestic relations order, treat
the alternate payee as a Plan Member for purposes of determining the
alternate payee's rights under the Plan.
7.8 Rollover Provision
Notwithstanding any provision of the plan to the contrary that would
otherwise limit a distributee's election under this Article, a
distributee may elect, at the time and in the manner prescribed by the
plan administrator, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified by
the distributee in a direct rollover. This provision applies to
distributions made on or after January 1, 1993. For purchases of this
Section the following terms shall apply.
(a) Eligible rollover distribution: An eligible rollover distribution
is any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a
series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy)
of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated
beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under
Code Section 401(a)(9); and the portion of any distribution that
is not includable in gross income (determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities).
(b) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in Section 408(a) of the
Code, an individual retirement annuity described in Code Section
408(b), an annuity plan described in Code Section 403(a), or a
qualified trust described in Code Section 401(a), that accepts
the distributee's eligible rollover distribution. However, in the
case of an eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(c) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's
surviving spouse and the employee's or former employee's spouse
or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Code Section 414(p), are
distributees with regard to the interest of the spouse or former
spouse.
(d) Direct rollover: A direct rollover is a payment by the plan to
the eligible retirement plan specified by the distributee.
ARTICLE 8
ADMINISTRATION
8.1 Plan Administrator and Fiduciary
The Plan Administrator and Fiduciary of the Plan, who shall have the
authority to control and manage the operation and administration of
the Plan, is Cubic Corporation.
8.2 Appointment of Committee
The Board will appoint a Plan Committee consisting of at least three
members to administer the Plan on the Employer's behalf. Vacancies int
he Committee will be filled from time to time by appointment of a new
Committee member by the Board.
A member of the Committee will hold office until he gives written
notice of his resignation to the Board, until death, or until removal
by the Board.
8.3 Powers and Duties
The Committee will have full power to administer the Plan and to
construe and apply all of its provisions on behalf of the Employer.
The Committee is the named fiduciary within the meaning of ERISA
Section 402(a) for purposes of Plan administration. The Committee's
powers and duties, unless properly delegated, will include, but will
not be limited to:
(a) Allocating fiduciary responsibilities, other than Trustee or
Funding Agent responsibilities as defined in ERISA Section
405(c), among the named fiduciaries and to designate one or more
other persons to carry out fiduciary responsibilities.
(b) Designating agents to carry out responsibilities relating to the
Plan, other than fiduciaries responsibilities.
(c) Deciding questions relating to eligibility, continuity of Years
of Service, and amounts of benefits.
(d) Deciding disputes that may arise with regard to the rights of
Employees, Members and their legal representatives, or
Beneficiaries under the terms of the Plan. Decisions by the
Committee will be deemed final in each case.
(e) Obtaining information from the Employer with respect to its
Employees as necessary to determine the rights and benefits of
Members under the Plan. The Committee may rely conclusively on
such information furnished by the Employer.
(f) Compiling and maintaining all records necessary for the Plan.
(g) Authorizing the Funding Agent or Trustee to make payment of all
benefits as they become payable under the Plan.
(h) Engaging such legal, administrative, consulting, actuarial,
investment, accounting, and other professional services as the
Committee deems proper.
(i) Adopting rules and regulations for the administration of the Plan
that are not inconsistent with the Plan. The Committee may, in a
nondiscriminatory manner, waive the timing requirements of any
notice or other requirements described in the Plan. Any such
waiver will not obligate the Committee to waive any subsequent
timing or other requirements for other Members.
(j) Performing other actions provided for in other parts of this
Plan.
8.4 Actions by the Committee
A majority of the members composing the Committee at any time will
constitute a quorum. The Committee may act at a meeting, or in writing
without a meeting, by the vote or asset of a majority of its members.
The Committee will appoint a Committee Chairperson and a Secretary.
The Secretary will record all action taken by the Committee. The
Committee will have authority to designate in writing one of its
members or any other person as the person authorized to execute papers
and perform other ministerial duties on behalf of the Committee.
8.5 Interested Committee Members
No member of the Committee will participate in an action of the
Committee on a matter which applies solely to that member. Such
matters will be determined by a majority of the remainder of the
Committee.
8.6 Investment Manager
The Committee, by action reflected in its minutes, may appoint one or
more Investment Managers, as defined in ERISA Section 3(38), to manage
all or a portion of the assets of the Plan. An Investment Manager will
discharge its duties in accordance with applicable law and in
particular in accordance with ERISA Section 404(a)(1). An Investment
Manager, when appointed, will have full power to manage the assets of
the Plan for which it has responsibility, and neither the Employer nor
the Committee will thereafter have responsibility for the management
of such assets.
8.7 Indemnification
The Employer, by this adoption, indemnifies and holds the members of
the Committee, jointly and severally, harmless from the effects and
consequences of their acts, omissions, and conduct in their official
capacities, except to the extent that the effects and consequences
result from their own willful misconduct, breach of good faith, or
gross negligence in the performance of their duties. The foregoing
right of indemnification will not be exclusive of other rights to
which each such member may be entitled by any contract or other
instrument or as a matter of law.
8.8 Conclusiveness of Action
Any action on matters within the discretion of the Committee will be
conclusive, final, and binding upon all Members in the Plan and upon
all persons claiming any rights, including Beneficiaries.
8.9 Payment of Expenses
The members of the Committee will serve without compensation for their
services. The compensation or fees of accounts, counsel, and other
specialists and any other costs of administering the Plan or Fund will
be paid by the Employer or charged to the Fund at the Employer's
discretion.
8.10 Claims Procedure
(a) Claim May Be Submitted
If a member or Beneficiary disagrees with the Committee's
determination of his right to Plan benefits, he may review
pertinent documents and submit a written claim for benefits that
should include the important reasons that the claim is being
made.
(b) Committee Response If It Denies Claim
If the claim is denied in whole or in part, the Committee shall
give an understandable, written response covering:
(i) The specific reasons why the claim is being denied, with
references to the pertinent Plan provisions, and
(ii) The steps the claimant would need to take to obtain a final
review, and the information that would be necessary to
perfect his claim (and the reasons why).
(c) Claimant May Appeal Denial
The claimant may make a written appeal of the Committee's initial
decision and the Committee shall response in the same form as it
did in its initial decision.
(d) Time Limits
The claimant's claim and the Committee's decisions shall be made
promptly, subject to the following timetable:
Action Maximum Response Time
Committee's initial review 90 days after claim is filed
Claimant's appeal of review 60 days after initial review
Committee's final decision 60 days after appeal
(e) Time Limit Extensions
The Committee may extend its maximum response time to twice the
initial length of time if it responds to the claimant within the
normal time by giving an explanation of why an extension is
needed and when its decision will be forthcoming.
(f) Exhaustion of Remedies
If any dispute over benefits under this Plan occurs, all remedies
available to the disputing individual under this Article must be
exhausted before legal recourse of any type is sought.
ARTICLE 9
AMENDMENT, TERMINATION, AND MERGER OF THE PLAN
9.1 Right to Amend the Plan and Define Powers of Committee
Cubic Corporation will have the right at any time and from time to
time to amend the Plan and/or define or redefine the powers of the
Committee to any extent it deems advisable. No such amendment,
definition, or redefinition of the powers of the Committee will be
inconsistent with ERISA, or increase the duties or responsibilities of
the Funding Agent or Trustee without the Funding Agent's or Trustee's
written consent. No amendment will be made to this Plan that attempts
to transfer any port of the corpus or income of the Fund to purposes
other than the exclusive benefit of Members and their Beneficiaries,
nor may any amendment reduce or diminish, either directly or
indirectly, the vested rights of any Member as of the date of such
amendment.
9.2 Right to Terminate the Plan
An Employer will have the right to terminate its participation in the
Plan, in whole or in part at any time. To the extent required under
the Code, upon termination, partial termination, or complete
discontinuance of contributions to the Plan, all Accounts of affected
Members will be 100% Vested.
9.3 Plan Merger and Consolidation
If the Plan is merged or consolidated with any other plan, or if the
assets or liabilities of the Plan are transferred to any other plan,
each Member will be entitled to a benefit immediately after the
merger, consolidated, or transfer, determined as if the Plan had then
terminated, at least equal to the benefit to which the Member would
have been entitled had the Plan terminated immediately before such
merger, consolidation, or transfer.
ARTICLE 10
TOP-HEAVY PLAN REQUIREMENTS
10.1 General Rule. For any Plan Year for which the Plan is a Top-Heavy Plan
as defined in Section 10.5, any other provisions of the Plan to the
contrary notwithstanding, the Plan shall be subject to the provisions
of this Article 10.
10.2 Vesting Provision - Each Participant who has completed an Hour of
Service during the Plan year in which the Plan is a Top-Heavy Plan and
has completed the number of Years of Vesting Service specified in the
following table shall have a nonforfeitable right to the percentage of
his Employer Account (other than the Qualified Nonelective
Contribution subaccount) under this Plan, in accordance with the
following table:
Years of Vesting Service Vested Portion
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
Each Participant's vested portion of his Employer Account shall not be
less than his vested Employer Account determined as of the last day of
the Last Plan Year in which the Plan was not a Top-Heavy Plan. If the
Plan ceases to be a Top-Heavy Plan, an Employee with three or more
years of employment, whether or not consecutive, shall have the vested
portion of his Employer Account determined in accordance with either
this Section 10.2 or Section 6.4.
10.3 Minimum Contribution Provisions. Each eligible Employee who (i) is a
Non-Key Employee, as defined in Section 10.7 and (ii) is employed on
the last day of the Plan Year, even if such Participant has failed to
complete one thousand (1,000) Hours of Service during such Plan Year,
shall be entitled to have an Employer Contribution of not less than
three percent (3%) of the Participant's Compensation, as defined for
purposes of Section 415 of the Code, allocated to his Employer
Account.
The minimum contribution percentage set forth above shall be reduced
for any Plan Year to the percentage at which contributions are made
under the Plan for the Plan Year for the Key Employee, as defined in
Section 10.7, for whom such percentage is the highest for such Plan
year. For this purpose, the percentage with respect to a Key Employee
shall be determined by dividing the contributions for such Key
Employee by his Compensation, as defined for purposes of Section 415
of the Code.
Contributions taken into account under the immediately preceding
sentence shall include contributions under the Plan, including Pretax
Contributions, and under all other defined contribution and defined
benefit plans required to be included in an aggregation group, as
defined in Subsection 10.5(c), but shall not include any plan required
to be included in such aggregation group of such plan enables a
defined benefit plan required to be included in such group to meet the
requirements of Section 401(a)(4) and 410 of the Code.
Contributions taken into account under this Section 10.3 shall not
include any contributions under Social Security or any other federal
or state law.
10.4 Coordination with Other Plans. In the event that another defined
benefit or defined contribution plan maintained by the Employer or any
Affiliated Employer becomes top-heavy under Code Section 416, the
required minimum contribution and/or benefit under Reg. 1.416-(1)
shall be made under this Plan for purposes of satisfying Code Section
416.
10.5 Top-Heavy Plan Definition. The Plan shall be a Top-Heavy Plan for any
Plan Year if, as of the Determination Date, as defined in Subsection
9(a), the aggregate of the Accounts under the Plan for Participants
who are Key Employees, as defined in Section 10.7, exceeds sixty
percent (60%) of the present value of the aggregate of the Accounts
for all Participants, or if this Plan is required to be in an
aggregation group, as defined in Subsection (c), which for such Plan
year is a top-heavy group, as defined in Subsection (d). For purposes
of making this determination, the Accounts of a Participant (i) who is
not a Key Employee but who was a Key Employee in a prior Plan Year or
(ii) who has not performed any service for the Employer at any time
during the five (5) year period ending on the Determination Date,
shall be disregarded.
(a) "Determination Date" means for any Plan Year the last day of the
immediately preceding Plan Year.
(b) The present value shall be determined as of the most recent
Valuation Date that is within the twelve (12) month period ending
on the Determination Date, and as described in the regulations
prescribed under the Code.
(c) "Aggregation group" means the group of plans, if any, that
includes both the group of plans that are required to be
aggregated and the group of plans that are permitted to be
aggregated.
(1) The group of plans that are required to be aggregated (the
"required aggregation group") includes:
(i) each plan of an Affiliated Employer, in which a Key
Employee is a participant, including collectively
bargained plans, and
(ii) each other plan of an Affiliated Employer, including
collectively bargained plans, which enables a plan in
which a Key Employee is a participant to meet the
requirements of Sections 401(a)(4) and 410 of the Code.
(2) The group of plans that are permitted to be aggregated (the
"permissive aggregation group") includes the required
aggregation group plus one (1) or more plans of an
Affiliated Employer that is not part of the required
aggregation group and that the Committee certifies as
constituting a plan within the permissive aggregation group.
Such plan or plans may be added to the permissive
aggregation group only if benefits are comparable to those
provided by the plans in the required aggregation group and,
if after the addition, the aggregation group as a whole
continues to meet the requirements of Sections 401(a)(4) and
410 of the Code.
(d) "Top-heavy group" means the aggregation group if, as of the
applicable determination date, the sum of the present value of
the cumulative accrued benefits for Key Employees under all
defined benefit plans included in the aggregation group plus the
aggregate of the accounts of Key Employees under all defined
contribution plans included in the aggregation group exceeds
sixty percent (60%) of the aggregate accrued benefits and
accounts for all Employees under such defined benefit and defined
contribution plans. If the aggregation group that is a top-heavy
group is a required aggregation group, each plan in the group
will be top-heavy. If the aggregation group that is a top-heavy
group is a permissive aggregation group, only those plans that
are part of the required aggregation group will be treated as
top-heavy. If the aggregation group is not a top-heavy group, no
plan within such group will be top-heavy.
(e) In determining whether the Plan constitutes a Top-Heavy Plan, the
Committee shall make the following adjustments in connection
therewith:
(1) When more than one (1) plan is aggregated, the Committee
shall determine separately for each plan as of each plan's
determination date the present value of the accrued benefits
and account balances. The results shall then be aggregated
by adding the results of each plan as of the determination
dates for such plans that fall within the same calendar
year.
(2) In determining the present value of the cumulative accrued
benefits or the value of the account of any Employee, such
present value or account shall include the amount in dollar
value of the aggregate distributions made to such Employee
under the applicable plan during the five (5) year period
ending on the determination date, unless reflected in the
value of the accrued benefit or account balances as of the
most recent Valuation Date. Such amounts shall include
distributions to Employees which represented the entire
amount credited to their Accounts under the applicable plan,
and distributions made on account of the death of an
Employee to the extent such death benefits do not exceed the
present value of the account.
(3) Further, in making such determination, such present value or
Account shall include any Rollover Contribution, or similar
transfer, as follows:
(i) If the Rollover Contribution, or similar transfer, is
initiated by the Employee and made to or from a plan
maintained by another employer, the plan providing the
distribution shall include such distribution in the
present value or account; the plan accepting the
distribution shall not include such distribution in the
present value or Account unless the plan accepted it
before December 31, 1983.
(ii) If the Rollover Contribution, or similar transfer, is
not initiated by the Employee or made from a plan
maintained by an Affiliated Employer, the plan
accepting the distribution shall include such
distribution in the present value or account whether
the plan accepted the distribution before or after
December 31, 1983; the plan making the distribution
shall not include the distribution in the present value
or such account.
10.6 Change in 415(e) Limits. In the event the Employer also maintains a
defined benefit plan that provides benefits to Participants in this
Plan, and if the Plan is a Top-Heavy Plan, the combined plan limit of
Section 415(e) of the Code shall be applied by substituting "1.0" for
"1.25" in Code Sections 415(3)(2)(B) and 415(e)(3)(b). However, this
provision does not apply if the Plan would not be a Top-Heavy Plan if
"ninety percent (90%)" were substituted for "sixty percent (60%)" in
Section 10.5 or if the Plan provides an Employer Contribution under
Section 10.3 of not less than four percent (4%) of the Participant's
Compensation, as defined for purposes of Section 415 of the Code.
10.7 Key Employee. The term "Key Employee" means any Employee, including
former Employees under the Plan, who, at any time during the Plan Year
containing the determination date or during any of the four (4)
preceding Plan Years, is or was one of the following:
(a) An officer of an Affiliated Employer, having annual Compensation
from the Affiliated Employer greater than fifty percent (50%) of
the dollar amount in effect under Code Section 415(b)(1)(A).
Whether an individual is an officer shall be determined by the
Committee on the basis of all the facts and circumstances, such
as an individual's authority, duties, and term of office, not on
the mere fact that the individual has the title of an officer.
For any such Plan Year, there shall be treated as officers no
more than the lesser of (i) fifty (50) Employees, or (ii) the
greater of three (3) Employees or ten percent (10%) of the
greatest number of Employees.
For this purpose, the highest-paid officers shall be selected.
(b) One of the ten (10) Employees having annual Compensation greater
than the dollar limitation in effect under Code Section
415(c)(1)(A) and owning (or considered as owning, within the
meaning of the constructive ownership rules of the Code) more
than one-half percent (.5%) interest in the value and the largest
percentage interests in an Affiliated Employer. An Employee who
has such an ownership interest is considered to have one (1) of
the largest interests in the Affiliated Employer unless at least
ten (10) other Employees own a greater interest than that
Employee during any year in the testing period and such other
employees have annual Compensation during such Plan Year of
ownership greater than the dollar limitation in effect under Code
Section 415(c)(1)(A) for the Plan Year. Ownership shall be
determined on the basis of percentage of ownership interest in
total ownership value and not dollar amounts.
(c) Any person who owns (or is considered as owning within the
meaning of the constructive ownership rules of the Code) more
than five percent (5%) of the outstanding stock of an Affiliated
Employer or possessing more than five percent (5%) of the
combined total voting power of an Affiliated Employer.
(d) A one percent (1%) owner of the outstanding stock of an
Affiliated Employer having an annual Compensation from the
Affiliated Employer of more than one hundred fifty thousand
dollars $150,000).
For purposes of this Section 10.7, Compensation shall mean
compensation as defined in Section 414(q)(7) of the Code.
For purposes of Subsections (a), (b), (c), and (d), a Beneficiary
of a Key Employee shall be treated as a Key Employee. For
purposes of Subsections (c) and (d), each Affiliated Employer is
treated separately in determining ownership percentages, but in
determining the amount of Compensation, each Affiliated Employer
is taken into account.
10.8 Non-Key Employee. The term "Non-Key Employee" means any Employee and
any Beneficiary of an Employee who is not a Key Employee.
10.9 Collective Bargaining Rules. The provisions of Section 10.2, 10.3, and
10.4 do not apply with respect to any Employee included in a unit of
Employees covered by a collective bargaining agreement unless the
application of such Sections has been agreed on with the collective
bargaining agent.
10.10 Other Special Rules. If any individual has not performed services for
the Employer maintaining the Plan at any time during the five (5) year
period ending on the Determination Date, any accrued benefit for such
individual (and the Account of such individual) shall not be taken
into account.
ARTICLE 11
MISCELLANEOUS
11.1 Limitation on Distributions
Notwithstanding any provision of this Plan regarding payment to
Beneficiaries, Members, or any other person, the Committee may
withhold payment to any person if the Committee determines that such
payment may expose the Plan to conflicting claims for payment.
As a condition for any payments, the Committee may require such
consent, representations, releases, waivers, or other information as
it deems appropriate. The Committee may, at its discretion, comply
with the terms of any judgment or other judicial decree, order,
settlement, or agreement including, but not limited to, a Qualified
Domestic Relations Order as defined in Code Section 414(p).
11.2 Limitation on Reversion of Contributions
Except as provided in subsections (a) through (c) below, Employer
contributions made under the Plan will be held for the exclusive
benefit of Members and their Beneficiaries and may not revert to the
Employer.
(a) In the case of a contribution that is made by a mistake of fact,
such contribution may be returned to the Employer within one year
after it is contributed to the Plan.
(b) In the case of a contribution conditioned upon its deductibility
under Section 404 of the Internal Revenue Code, to the extent the
deduction is disallowed, the amount disallowed may be returned to
the Employer within one year after the disallowance.
The maximum contribution that may be returned to the Employer will not
exceed the amount actually contributed to the Plan, or the value of
such contribution on the date it is returned, if less.
11.3 Voluntary Plan
The Plan is purely voluntary on the part of an Employer and neither
the establishment of the Plan nor any Plan amendment nor the creation
of any fund or account, nor the payment of any benefits, will be
construed as giving any Employee or any person legal or equitable
right against the Employer, the Funding Agent, the Trustee, or the
Committee unless specifically provided for in this Plan or conferred
by affirmative action of the Committee or the Employer according to
the terms and provisions of this Plan. Such actions will not be
construed as giving any Employee or Member the right to be retained in
the service of the Employer. All Employees and/or Members will remain
subject to discharge to the same extent as though this Plan had not
been established.
11.4 Statement of Member's Account
The Committee shall as soon as practical after the end of each Plan
Year, mail to each Member a statement setting forth the account of
such Member in the respective funds as of the end of such Plan Year.
Such statement shall be deemed to have been accepted as complete
unless written notice to the contrary is received by the Committee
within 30 days after the mailing of such statement to the Member.
11.5 Notices and Communications
(a) All notices, reports, and statements given, made, delivered, or
transmitted to a Member shall be deemed duly given, made,
delivered, or transmitted when mailed, by such class as the
sender may deem appropriate, with postage prepaid and addressed
to the Member at the address last appearing on the records of the
Employer with respect to this Plan.
(b) All applications, notices, designations, elections, directions,
or other communications from a Member or Beneficiary to the
Funding Agent, Trustee, Committee, or Employer shall be in
writing on prescribed forms and shall not be deemed to have bene
duly given, made, delivered, transmitted, or received unless and
until actually received by the Funding Agent, Trustee, Committee,
or the Employer, whichever is applicable under the terms of this
Plan.
11.6 Records Conclusive
The records of the Funding Agent, Trustee, the Committee, and the
Employer shall be deemed conclusive in respect of all matters involved
in the administration of this Plan.
11.7 Nonalienation of Benefits
Members and their Beneficiaries are entitled to all the benefits
specifically set out under the terms of the Plan, but said benefits or
any of the property rights in the Plan will not be assignable or
distributable to any creditor or other claimant of such Member. A
Member will not have the right to anticipate, assign, pledge,
accelerate, or in any way dispose of or encumber any of the monies or
benefits or other property that may be payable or become payable to
such Member or his Beneficiary provided, however, the Employer,
Funding Agent, Trustee, or Committee shall recognize and comply with a
properly executed Qualified Domestic Relations Order as defined in
Code Section 414(p).
11.8 Inability to Receive Benefits
If the Committee receives evidence that a person entitled to receive
any payment under the Plan is physically or mentally incompetent to
receive payment and to give a valid release, and another person or an
institution is maintaining or has custody of such person, and no
guardian, committee, or other representative of the estate of such
person has been duly appointed by a court of competent jurisdiction,
then any distribution made under the Plan may be made to such other
person or institution. the release of such other person or institution
will be a valid and complete discharge for the payment of such
distribution.
11.9 Unclaimed Benefits
If the Committee is unable, after reasonable and diligent effort, to
locate a Member or Beneficiary who is entitled to a distribution under
the Plan, the distribution due such person will be forfeited after
give years. If, however, the Member or Beneficiary later files a claim
for such benefit, it will be reinstated without any interest earned
thereon. Notification by certified or registered mail to the last
known address of the Member or Beneficiary will be deemed a reasonable
and diligent effort to locate such person.
11.10 Limitation of Rights
Nothing expressed or implied in the Plan is intended or will be
construed to confer upon or give to any person, firm, or association
other than the Employer, the Members, the Beneficiaries, and their
successors in interest any right, remedy, or claim under or by reason
of this Plan.
11.11 Payment of Expenses
All costs and expenses incurred in administering the Plan, including
the fees and expenses of the Funding Agent, Trustee, or the fees of
its counsel and other administrative expenses, including costs of
audit, shall be charged to and paid out of the Trust Fund unless paid
by the Employer.
11.12 Limitation of Liability
No director, or officer, or Employee of the Employer or any of its
subsidiaries, shall be personally liable for any act or omission to
act in connection with the operation or administration of the Plan,
except for his own willful misconduct.
11.13 Invalid Provisions
In case any provision of this Plan is held illegal or invalid for any
reason, the illegality or invalidity will not affect the remaining
parts of the Plan. The Plan will be construed and enforced as if the
illegal and invalid provisions had never been included.
11.14 One Plan
This Plan may be executed in any number of counterparts, each of which
will be deemed an original and the counterparts will constitute one
and the same instrument and may be sufficiently evidenced by any one
counterpart.
11.15 Use and Form of Words
Whenever any words are used herein in the masculine gender, they will
be construed as though they were also used in the feminine gender in
all cases where they would apply, and vice versa. Whenever any words
are used herein in the singular form, they will be construed as though
they were also used in the plural form in all cases where they would
apply, and vice versa.
11.16 Headings
Headings of articles and sections are inserted solely for convenience
and reference, and constitute no part of the Plan.
11.17 Governing Law
The Plan will be governed by and construed according to the federal
laws governing employee benefit plans qualified under the Code and
according to the laws of the State of California, where such laws are
not in conflict with the federal laws.
IN WITNESS WHEREOF, Cubic Corporation has adopted this Plan effective
October 1, 1989.
CUBIC CORPORATION
By:
Title:
Date:
By:
Title:
Appendix A
CUBIC CORPORATION
EMPLOYEES' PROFIT-SHARING PLAN
List of Participating Employers
Cubic Corporation
9333 Balboa Avenue
San Diego, CA 92123
Cubic Defense Systems
9333 Balboa Avenue
San Diego, CA 92123
Cubic Communications, Inc.
4285 Ponderosa Avenue
San Diego, CA 92123
Cubic Field Services
4285 Ponderosa Avenue
San Diego, CA 92123
Consolidated Converting Company
2601 Workman Mill Road
Whittier, CA 90607
Cubic Precision (Electro-Optical Division)
750 Huyler Street
Teterboro, NJ 07608
Cubic Automatic Revenue Collection Group (CARCG)
World Headquarters
5650 Kearny Mesa Road
San Diego, CA 92111
Toll Systems Division
89 Arkay Drive
Hauppauge, NY 11788
New York Revenue Automation
111 8th Avenue, Suite 700
New York, NY 10011
Appendix B
CUBIC CORPORATION
EMPLOYEES' PROFIT-SHARING PLAN
Investment Funds
The following Investment Funds are provided by the Plan:
Fund 1: Money Market Account- consists of short-term debt instruments
which are essentially loans made by major corporations and the U.S.
Government.
Fund 2: Guaranteed Interest Account (GIA)- invests in high grade
public and private fixed income securities of varying maturities.
Fund 3: Long-Term Bond Index Account - comprised of long-term, high quality
bonds with a primary concentration in Treasury securities.
Fund 4: Jennison Balanced Account -a commingled account which follows a
performance-oriented dynamic approach, shifting among stocks, bonds,
and cash to maximize returns.
Fund 5 First Essex Stock Account - invests in a broad based stock portfolio
of large U.S. companies.
Fund 6: Jennison Equity Account - a commingled fund based on a growth stock
philosophy, focusing on large and medium sized companies.