Exhibit 4.5
METTLER-TOLEDO, INC.
ENHANCED RETIREMENT SAVINGS PLAN
AMENDED AND RESTATED
EFFECTIVE AS OF JULY 1, 2002
(EXCEPT AS OTHERWISE PROVIDED HEREIN)
FOREWORD
PURPOSE
Effective as of October 1, 1988, Toledo Scale Corporation, a Delaware
corporation, established the Toledo Scale Corporation Savings and
Investment Plan (the "Plan") for the benefit of eligible employees.
Effective January 1, 1992, the Plan was renamed the Mettler-Toledo, Inc.
Savings and Investment Plan, to reflect a change in the name of Toledo
Scale Corporation to Mettler-Toledo, Inc. (the "Company"). Effective as of
July 1, 1994, the Mettler Instrument Corporation Savings and Investment
Plan was merged into the Plan, the Plan was amended and restated, and the
Plan was renamed the "Mettler Toledo Retirement Savings Plan". Effective as
of October 1, 1999, the Safeline, Inc. 401(k) Plan was merged into the
Plan. Effective as of January 1, 2000, the Plan was amended and restated in
its entirety. Effective as of July 1, 2002, the Plan is being restated in
its entirety and the name of the Plan is being changed to the
Mettler-Toledo, Inc. Enhanced Retirement Savings Plan. The purpose of the
Plan is to encourage eligible employees of authorized divisions or
departments of the Company or of any authorized company affiliated with the
Company to provide additional financial security and to supplement
retirement income by savings on a regular long term basis.
BACKGROUND
As of January 1, 1981 Reliance Electric Company, a corporation organized
and existing under the laws of the State of Delaware ("Reliance Electric"),
amended and restated the Reliance Electric Company Savings and Investment
Plan (the "Prior Reliance Electric Plan") to continue to provide eligible
employees additional financial security and to supplement retirement income
by savings on a regular and long term basis.
As of October 1, 1983 Reliance Electric amended and restated the Prior
Reliance Electric Plan. Such amended and restated plan is referred to
herein as the "Reliance Electric Plan".
The Company, then a wholly-owned subsidiary of Reliance Electric, and
Reliance Electric determined that:
1) Effective as of October 1, 1988, the Plan should be established
to cover eligible employees of the Company in lieu of having such
employees continue to participate in the Reliance Electric Plan;
2) All assets and liabilities of the Reliance Electric Plan which
were allocable to eligible employees of the Company would be
transferred to the Plan and the trust established in conjunction
therewith; and
3) As of the inception of the Plan and the transfer thereto of the
aforementioned assets and liabilities of the Reliance Electric
Plan, the provisions of the Plan would be the same, in all
material respects, as those of the Reliance Electric Plan.
The Company has subsequently amended the Plan from time to time.
This amendment and restatement of the Plan shall constitute an amendment,
restatement and continuation of the Plan. Except as the text may
specifically provide otherwise, the terms and provisions of the Plan as
hereinafter set forth and as it hereafter may be amended from time to time,
establish the rights and obligations with respect to Participants (as
hereinafter defined) employed on and after July 1, 2002 and to transactions
under the Plan on and after such date. Unless explicitly provided
otherwise, the provisions of this amendment and restatement with stated
effective dates prior to July 1, 2002 shall be deemed to amend the
corresponding provisions, if any, of the Plan as in effect before this
amendment and restatement and all amendments thereto as of such dates.
Events occurring before the applicable effective date of any provision of
this amendment and restatement shall be governed by the applicable
provision of the Plan in effect on the date of the event.
The adoption of the Plan in its entirety is intended to comply with the
provisions of Sections 401(a) of the Internal Revenue Code of 1986 and
applicable regulations thereunder.
METTLER-TOLEDO, INC.
ENHANCED RETIREMENT SAVINGS PLAN
CONTENTS
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PAGE
Article I Definitions......................................................1
1.1 "Account"......................................................1
1.2 "Administrative Committee".....................................1
1.3 "After-Tax Contribution Account"...............................1
1.4 "Appropriate Form".............................................1
1.5 "Basic Employee Contribution"..................................1
1.6 "Basic Employee Contribution Account"..........................1
1.7 "Basic Salary Reduction Contribution"..........................1
1.8 "Basic Salary Reduction Contribution Account"..................1
1.9 "Beneficiary"..................................................2
1.10 "Board" or "Board of Directors"................................2
1.11 "Code".........................................................2
1.12 "Common Stock".................................................2
1.13 "Company"......................................................2
1.14 "Company Matching Contribution"................................2
1.15 "Company Matching Contribution Account"........................2
1.16 "Compensation".................................................2
1.17 "Disability"...................................................3
1.18 "Discretionary Contribution"...................................3
1.19 "Discretionary Contribution Account"...........................3
1.20 "Early Retirement".............................................3
1.21 "Effective Date"...............................................3
1.22 "Eligible Earnings"............................................3
1.23 "Eligible Employee" ...........................................4
1.24 "Employee".....................................................4
1.25 "Employer".....................................................4
1.26 "Employment Commencement Date".................................5
1.27 "Enrollment Date"..............................................5
1.28 "ERISA"........................................................5
1.29 "Excluded Entity"..............................................5
1.30 "Group"........................................................5
1.31 "Highly Compensated Employee"..................................5
1.32 "Hour of Service" .............................................5
1.33 "Interactive Electronic Communication" ........................6
1.34 "Investment Fund"..............................................6
1.35 "Leased Employee"..............................................7
1.36 "Mettler Toledo Stock Fund"....................................7
1.37 "Normal Retirement Age"........................................7
1.38 "Normal Retirement Date".......................................7
1.39 "Notice".......................................................7
1.40 "Participant" .................................................7
1.41 "Period of Service" ...........................................7
1.42 "Period of Severance"..........................................8
1.43 "Plan".........................................................8
1.44 "Plan Year"....................................................8
1.45 "Prior Reliance Electric Plan".................................8
1.46 "Qualified Contribution".......................................8
1.47 "Qualified Contribution Account"...............................8
1.48 "Reliance Electric Plan".......................................8
1.49 "Reemployment Commencement Date"...............................8
1.50 "Rollover Contribution"........................................8
1.51 "Rollover Contribution Account"................................8
1.52 "Safe Harbor Matching Contribution"............................8
1.53 "Safe Harbor Matching Contribution Account"....................8
1.54 "Savings Contribution".........................................9
1.55 "Savings Contribution Account".................................9
1.56 "Severance from Service".......................................9
1.57 "Special Contribution".........................................9
1.58 "Special Contribution Account" ................................9
1.59 "Special Contribution Year"....................................9
1.60 "Transition Contribution"......................................9
1.61 "Transition Contribution Account".............................10
1.62 "Trustee".....................................................10
1.63 "Trust Agreement".............................................10
1.64 "Trust Fund"..................................................10
1.65 "Valuation Date"..............................................10
1.66 "Vested Interest".............................................10
1.67 "Year of Eligibility Service".................................10
1.68 "Year of Vesting Service".....................................10
Article II Eligibility and Participation..................................12
2.1 Eligibility Requirements......................................12
2.2 Commencement of Participation.................................12
2.3 Beneficiary Designation.......................................13
2.4 Changes in Status of Eligible Employee........................14
Article III Basic Salary Reduction Contributions..........................15
3.1 Basic Salary Reduction Contributions..........................15
3.2 Voluntary Suspension..........................................15
3.3 Change in Contribution Rates..................................15
3.4 Limitations on Basic Salary Reduction Contributions
(Plan Years beginning before January 1, 2003).................16
3.5 Distributions of Excess Deferrals.............................18
3.6 Coordination of Excess Amounts under Sections 401(k) and 402(g)
of the Code (Plan Years beginning before January 1, 2003).....19
3.7 Catch-up Contributions........................................20
3.8 Rollover Contributions........................................20
Article IV Employer Contributions.........................................22
4.1 Company Matching Contributions................................22
4.2 Safe Harbor Matching Contributions............................22
4.3 Savings Contributions.........................................23
4.4 Special Contributions.........................................25
4.5 Transition Contributions......................................27
4.6 Discretionary Contributions...................................28
4.7 Limitation on Annual Additions................................28
4.8 Limitation on Company Matching Contributions
(Plan Years beginning before January 1, 2003).................30
4.9 Aggregate Limitation (Plan Years beginning before
January 1, 2002)..............................................33
4.10 Qualified Contributions (Plan Years beginning before
January 1, 2003)..............................................34
4.11 Return of Contributions.......................................34
Article V Valuation of Accounts...........................................35
5.1 Maintenance of Accounts.......................................35
5.2 Valuation.....................................................35
5.3 Valuation of Funds............................................35
Article VI Vesting of Accounts............................................36
6.1 Vesting.......................................................36
6.2 Treatment of Forfeitures......................................37
6.3 Reinstatement of Accounts.....................................37
Article VII Investment of Accounts........................................39
7.1 Investment of Accounts........................................39
7.2 Investment Elections..........................................39
7.3 Mettler Toledo Stock Fund.....................................41
7.4 Voting of Common Stock........................................42
Article VIII Withdrawals During Employment................................44
8.1 Basic Withdrawals.............................................44
8.2 Hardship Withdrawals..........................................45
8.3 Payment of Withdrawals........................................47
8.4 Values........................................................47
Article IX Distribution of Benefits.......................................48
9.1 Amount of Distribution........................................48
9.2 Payment of Distribution.......................................48
9.3 Deferred Accounts.............................................49
9.4 Distribution Requirements Applicable
to Basic Salary Reduction Contributions.......................50
9.5 Alienation of Benefits........................................50
9.6 Latest Commencement of Benefits...............................51
9.7 Mandatory Commencement of Benefits............................51
9.8 Death Benefits................................................52
9.9 Distributions Upon Plan Termination or other Events...........52
9.10 Identity and Competence of Payees.............................52
9.11 Direct Rollover of Eligible Rollover Distribution.............52
Article X Administration of the Plan......................................54
10.1 Plan Administrator............................................54
10.2 Appointment of the Administrative Committee...................54
10.3 Powers of the Administrative Committee........................55
10.4 Individual Accounts...........................................57
10.5 Claim Procedures..............................................57
10.6 Appointment of Accountant.....................................58
10.7 Indemnification of Certain Persons............................58
10.8 Special Withdrawal Period.....................................58
10.9 Plan Expenses.................................................59
Article XI Operation of the Trust Fund....................................60
11.1 Trust Fund; Trustee...........................................60
11.2 Appointment of Investment Manager.............................60
Article XII Adoption, Amendment, Termination and Merger...................61
12.1 Adoption of the Plan..........................................61
12.2 Right to Amend................................................61
12.3 Termination or Discontinuance of Contributions................61
12.4 Merger, Consolidation or Transfer.............................62
Article XIII Miscellaneous................................................63
13.1 Uniform Administration........................................63
13.2 Payments from Trust Fund......................................63
13.3 Plan Not a Contract of Employment.............................63
13.4 Applicable Law................................................63
13.5 Unclaimed Amounts.............................................63
13.6 Severability..................................................64
13.7 Employer Records..............................................64
13.8 Application of Plan Provisions................................64
13.9 IRC 414(u) Compliance Provision...............................64
13.10 IRC 125 Compliance Provision..................................64
Article XIV Participation in Plan by Affiliates...........................65
14.1 Participation by Affiliate....................................65
14.2 Withdrawal by Affiliate.......................................65
14.3 Special Rule for Corporate Reorganizations....................66
Article XV Loans..........................................................67
15.1 Availability..................................................67
15.2 Terms and Procedures..........................................67
Article XVI Determination of Top-Heavy Status.............................70
16.1 General.......................................................70
16.2 Top-Heavy Plan................................................70
16.3 Super Top-Heavy Plan..........................................70
16.4 Cumulative Accrued Benefits and Cumulative Accounts...........70
16.5 Definitions...................................................71
16.6 Vesting.......................................................72
16.7 Compensation..................................................72
16.8 Minimum Contributions.........................................72
16.9 Defined Benefit and Defined Contribution Plan Fractions.......72
16.10 Method of Determining Accrued Benefit.........................73
16.11 Change in Statute Automatically Incorporated..................73
Appendix A Special Provisions Pertaining to Certain Employees
of Mettler Instrument Corporation.............................74
Appendix B Bonus Deferrals...............................................75
Appendix C Special Provisions Pertaining to Certain Employees of
ASI Applied Systems, Inc......................................78
Appendix D Special Provisions Pertaining to Certain Employees of
Safeline, Inc.................................................82
Exhibit I Special Contributions.........................................84
ARTICLE I
DEFINITIONS
As used herein, unless otherwise defined or required by the context, the
following words and phrases shall have the meanings indicated. Some of the
words and phrases used in the Plan are not defined in this Article I, but
for convenience are defined as they are introduced into the text.
1.1 "Account" means, to the extent applicable to a given Participant,
the After-Tax Contribution Account, Basic Employee Contribution
Account, Basic Salary Reduction Contribution Account, Company
Matching Contribution Account, Discretionary Contribution
Account, Qualified Contribution Account, Rollover Account, Safe
Harbor Matching Contribution Account, Savings Contribution
Account, Special Contribution Account, Transition Contribution
Account or any subaccount thereof, as the context requires.
1.2 "Administrative Committee" means the committee constituted to
administer the Plan in accordance with Section 10.2.
1.3 "After-Tax Contribution Account" means the separate Account
maintained for a Participant to record his share of the Trust
Fund attributable to after-tax contributions made on his behalf
under the Reliance Electric Plan.
1.4 "Appropriate Form" means the form or forms prescribed by the
Administrative Committee for a particular purpose.
1.5 "Basic Employee Contribution" means a contribution made by a
Participant as a condition of participation in the Prior Reliance
Electric Plan, as provided in Section 3.02 of the Prior Reliance
Electric Plan.
1.6 "Basic Employee Contribution Account" means the separate Account
maintained for a Participant to record his share of the Trust
Fund attributable to Basic Employee Contributions made on his
behalf.
1.7 "Basic Salary Reduction Contribution" means a contribution made
by an Employer pursuant to an election by the Participant to
reduce the cash compensation otherwise currently payable to him
by an equivalent amount, in accordance with the provisions of
Section 3.1, and such amounts contributed by an Employer to the
Reliance Electric Plan under Section 3.01 thereof. For Plan Years
beginning on and after January 1, 2002, Basic Salary Reduction
Contributions shall also include catch-up contributions under
Section 3.7.
1.8 "Basic Salary Reduction Contribution Account" means the separate
Account maintained for a Participant to record his share of the
Trust Fund attributable to Basic Salary Reduction Contributions
made on his behalf.
1.9 "Beneficiary" means the person or persons so designated in
accordance with Section 2.3 to receive benefits payable under the
Plan as a result of the Participant's death.
1.10 "Board" or "Board of Directors" means the Board of Directors of
the Company.
1.11 "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
1.12 "Common Stock" means the common stock of Mettler-Toledo
International Inc. which is a qualifying employer security within
the meaning of Section 407(d)(5) of ERISA.
1.13 "Company" means Mettler-Toledo, Inc., a Delaware corporation, as
now constituted or as may be constituted hereafter, or any
person, firm, corporation or partnership which may succeed to its
business and which adopts the Plan.
1.14 "Company Matching Contribution" means an Employer contribution
made to the Trust Fund pursuant to Section 4.1.
1.15 "Company Matching Contribution Account" means the separate
Account maintained for a Participant to record his share of the
Trust Fund attributable to Company Matching Contributions made on
his behalf.
1.16 "Compensation" means the (a) the nondeferred remuneration of an
Employee for services rendered to the Group, inclusive of Basic
Salary Reduction Contributions, regularly-scheduled paid bonuses,
sales commissions, overtime, shift differential and incentive
earnings, exclusive of non-regular bonuses, stock option income,
moving expenses paid or reimbursed by a member of the Group and
the Group's cost for any employee benefit plan (which cost is not
included in the gross income of the Employee), including the
Plan, except as provided in this Section, and (b) in the case of
an Eligible Employee of an Employer which is a "foreign
subsidiary" (as described in Section 406(a) of the Code and to
which an agreement entered into under Section 312(1) of the Code
applies) or a "domestic subsidiary" (described in Section 407(a)
of the Code) and who has been authorized to participate in the
Plan by the Administrative Committee, an amount determined by the
Administrative Committee, using as a guideline to be uniformly
and consistently applied, that nondeferred remuneration which
would be considered as his basic rate of compensation if his
services were performed in a similar position in the United
States for the Company, but in no event shall the "Compensation",
as determined by the Administrative Committee, exceed the
nondeferred remuneration actually received by such an Eligible
Employee. Effective for each Plan Year beginning on and after
January 1, 1989, in no event shall the amount of Compensation
taken into account under the Plan exceed the adjusted annual
limitation permitted under Section 401(a)(17) of the Code for
such Plan Year. Such adjusted annual limitation shall be for each
Plan Year beginning on and after January 1, 1989 and prior to
January 1, 1994, $200,000 as adjusted for such year in the same
manner as under Section 415(d) of the Code; for each Plan Year
beginning on and after January 1, 1994 and prior to January 1,
2002, $150,000 as adjusted for such year as provided under
Section 401(a)(17)(B) of the Code and for each Plan Year
beginning on and after January 1, 2002, $200,000 as adjusted for
such year as provided under Section 401(a)(17)(B) of the Code.
1.17 "Disability" means the termination of service of a Participant
with the Employer due to a physical or mental disability which
will permanently disable such Participant from performing the
customary duties of his regular job with the Employer. Such
permanent disability is to be determined by a licensed physician
provided by or acceptable to the Administrative Committee.
1.18 "Discretionary Contribution" means an Employer contribution made
to the Trust Fund pursuant to Section 4.6.
1.19 "Discretionary Contribution Account" means the separate Account
maintained for a Participant to record his share of the Trust
Fund attributable to Discretionary Contributions made on his
behalf.
1.20 "Early Retirement" means a Participant's termination of service,
provided it occurs on or after his 55th birthday, but prior to
his Normal Retirement Date, and after his completion of 10 1-year
Periods of Service.
1.21 "Effective Date" means October 1, 1988. The effective date of
this restatement is July 1, 2002, unless otherwise provided.
1.22 "Eligible Earnings" means:
(a) The basic, regular earnings of a Participant for services
rendered to the Group while the Participant is an Eligible
Employee; provided, however, such earnings shall include the
items set forth in subsection (i) below and shall exclude
the items set forth in subsection (ii) below, and, provided
further, that any forms of compensation not enumerated
herein shall be deemed to be excluded in the same manner as
if identified in subsection (ii) below:
(i) Inclusions: overtime pay, sales commissions, vacation
pay, pay during an approved leave of absence, retro
pay, regularly-scheduled paid bonuses, shift
differential, Basic Salary Reduction Contributions, and
amounts subject to an Eligible Employee's salary
reduction election under a plan described in Section
125 of the Code.
(ii) Exclusions: income attributable to a waiver of coverage
under any Group-provided medical program, any
non-regular bonuses, stock option income, any income
attributable to fringe or welfare benefits provided by
the Group, any vehicle allowance income attributable to
an Employee's personal use of a car owned by a Group
member, any amount paid or reimbursed by a Group member
relative to an Employee's relocation (without regard to
whether such amounts are includable in income or may be
deductible by the Employee), any Group-provided gifts
or awards, any tuition payments or reimbursements, any
severance payments, any sick pay paid by a third party,
income and any distributions from a nonqualified
retirement or deferred compensation plan.
(b) In the case of an Eligible Employee described in Section
1.16(b), "Eligible Earnings" shall be an amount determined
by the Administrative Committee, using as a guideline to be
uniformly and consistently applied, that nondeferred
remuneration which would be considered his basic rate of
compensation if his services were performed in a similar
position for the Company in the United States, but in no
event shall the "Eligible Earnings", as determined by the
Administrative Committee, exceed the nondeferred
remuneration actually received by such an Eligible Employee.
(c) Notwithstanding any provision of the Plan to the contrary,
Eligible Earnings shall not exceed the adjusted annual
limitation described in Section 1.16.
1.23 "Eligible Employee" means each Employee of any Employer,
excluding (i) any Employee included in a unit of employees
represented by a recognized bargaining agent and covered by a
collective bargaining agreement in which retirement benefits were
the subject of good faith bargaining unless such agreement
specifically provides for coverage under the Plan, and (ii) any
Employee who is a nonresident alien without U.S.-source income,
and (iii) any Employee of who is, for a period of employment with
an Employer, covered under a retirement plan sponsored by a
member of the Group and which plan otherwise primarily benefits
employees in non-U.S. employment, and (iv) any Employee
classified by an Employer as a co-op student or intern, and (v)
any Employee of an Excluded Entity, while so employed.
For purposes of Sections 3.4, 4.8 and 4.9, the term "Eligible
Employee" means an Eligible Employee (as otherwise defined in
this Section 1.23) of an Employer who, at any time during the
Plan Year in question has satisfied the eligibility requirements
set forth in Section 2.1, regardless of whether such individual
has elected to become a Participant in the Plan.
Notwithstanding any provision of the Plan to the contrary, any
individual who an Employer determines to be an independent
contractor, leased employee (including a Leased Employee), leased
owner, leased manager, shared employee or person working under a
similar classification shall not become an Eligible Employee
hereunder, regardless of whether any such individual is
ultimately determined to be a common law employee, unless and
until the Company shall otherwise determine. Any Employee shall
be considered an Eligible Employee only during such period in
which he satisfies the requirements defined above.
1.24 "Employee" means any person performing services for the Company,
or any other member of the Group, as a common law employee.
1.25 "Employer" means the Company and any member of the Group that has
adopted the Plan in accordance with Article XIV. As the context
requires, the term "Employer" may mean any of the Employers or
all of them.
1.26 "Employment Commencement Date" means the date on which the
Employee first performs an Hour of Service.
1.27 "Enrollment Date" means the first day of any calendar month and
such other date or dates as the Administrative Committee shall
specify.
1.28 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.29 "Excluded Entity" means any division of the Company, or any other
corporation (or division of such a corporation) subsidiary to or
affiliated with the Company, which qualifies as a member of the
Group but which is not expressly authorized by the Board of
Directors of the Company or its delegate to participate in the
Plan.
1.30 "Group" means the Company and any other company which is related
to the Company as a member of a controlled group of corporations
in accordance with Section 414(b) of the Code or as a trade or
business under common control in accordance with Section 414(c)
of the Code, any organization which is part of an affiliated
service group in accordance with Section 414(m) of the Code, or
any entity required to be aggregated with the Company in
accordance with Section 414(o) of the Code and the regulations
thereunder. For the purposes under the Plan of determining
whether or not a person is an Employee and the period of
employment of such person, each such other company shall be
included in the definition of "Group" only for such period or
periods during which such other company is so a member of a
controlled group, under common control, an affiliated service
group or otherwise required to be aggregated. For purposes of
applying the annual contributions limits imposed by Section 415
of the Code, the definition of "control" for this purpose shall
be modified as required by Section 415(h) of the Code.
1.31 "Highly Compensated Employee" means any Employee who is a 5
percent owner (as defined in Section 416(i)(1) of the Code) with
respect to a member of the Group during the Plan Year or the
preceding Plan Year or who both received IRC 414(s) compensation
(as defined in Section 3.4(c) hereof except that, for purposes of
this Section 1.31 and effective for years beginning on and after
January 1, 2000, IRC 414(s) compensation shall not include moving
expenses paid or reimbursed by a member of the Group) during the
preceding Plan Year in excess of $80,000 and was a member of the
"top-paid group" (as defined in Section 414(q)(3) of the Code)
during such Plan Year. For purposes of this Section 1.31, the
$80,000 amount is to be indexed at the same time and in the same
manner as other adjustments under Section 415(d) of the Code.
1.32 "Hour of Service" means:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for an Employer of
member of the Group. These hours shall be credited to the
Employee for the computation period or periods in which the
duties are performed;
(b) Each hour for which an Employee is paid, or entitled to
payment, by an Employer or member of the Group 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. Hours under this paragraph shall be
calculated and credited pursuant to the minimum requirements
prescribed under Section 2530.200b-2 of the Department of
Labor Regulations, which are incorporated herein by this
reference;
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Employer or
member of the Group. The same Hours of Service shall not be
credited both under subsections (a) or (b) above, as the
case may be, and under this subsection (c). These hours
shall be credited to the Employee for the computation period
or periods to which the award or agreement pertains, rather
than the computation period in which the award, agreement,
or payment is made; and
(d) Each hour for which service credit is required under The
Family and Medical Leave Act of 1993 with respect to an
Employee who is on leave as provided by said Act.
(e) Notwithstanding the foregoing, in the case of any Employee
for whom an Employer's records do not accurately reflect the
actual number of Hours of Service as determined above, such
Employee shall be credited with 45 Hours of Service for each
week in which he is credited with at least one Hour of
Service.
1.33 "Interactive Electronic Communication" means a communication
between a Participant or Beneficiary and the person or entity
designated by the Administrative Committee to perform
recordkeeping and other administrative services on behalf of the
Plan pursuant to a system maintained by such person or entity and
communicated to each Participant and Beneficiary whereby each
such individual may make elections and exercise options as
described herein with respect to all or a portion of his Account
through the use of such system and a personal identification
number. If a Participant or Beneficiary (i) consents to
participate in Interactive Electronic Communication procedures
adopted by the Administrative Committee and (ii) acknowledges
that actions taken by him through the use of his personal
identification number pursuant to the Interactive Electronic
Communication procedure constitute his signature for purposes of
initiating transactions such as Investment Fund changes, the
Participant or Beneficiary, as the case may be, will be deemed to
have given his written consent and authorization to any such
action resulting from the use of the Interactive Electronic
Communication system by the Participant or Beneficiary.
1.34 "Investment Fund" means each of the separate investment options
which the Administrative Committee, in its sole discretion and
pursuant to uniform and nondiscriminatory rules, may make
available under the Plan for the investment of Plan contributions
and Accounts.
1.35 "Leased Employee" means any person (other than an Employee of an
Employer) who pursuant to an agreement between the Employer and
any other person ("leasing organization") has performed services
for the Employer (or for the Employer and related persons
determined in accordance with Section 414(n)(6) of the Code) on a
substantially full-time basis for a period of at least one year
and such services are performed under primary direction or
control by the recipient. Except as provided below, any person
satisfying the foregoing criteria shall be treated as an
Employee. Contributions or benefits provided a Leased Employee by
the leasing organization which are attributable to services
performed for the Employer shall be treated as provided by the
Employer.
Notwithstanding the foregoing, a Leased Employee shall not be
considered an Employee of an Employer if (i) such Leased Employee
is covered by a money purchase pension plan providing (1) a
nonintegrated employer contribution rate of at least 10 percent
of compensation, (2) immediate participation, and (3) full and
immediate vesting; and (ii) Leased Employees do not constitute
more than 20 percent of the Employer's non-Highly Compensated
Employee workforce.
1.36 "Mettler Toledo Stock Fund" means the Investment Fund described
in Section 7.3.
1.37 "Normal Retirement Age" means the attainment of age 65 by a
Participant.
1.38 "Normal Retirement Date" means the first day of the month
coincident with or next following a Participant's 65th birthday.
1.39 "Notice" means, unless otherwise specifically provided herein,
(i) written Notice on an Appropriate Form provided by the
Administrative Committee that is, in the discretion of the
Administrative Committee, properly completed and executed by the
party giving such Notice and which is delivered by hand or by
mail to the Administrative Committee or to such party designated
by the terms of the Plan or by the Administrative Committee to
receive the Notice, or (ii) Notice by Interactive Electronic
Communication to the person or entity designated by the
Administrative Committee to perform recordkeeping and other
administrative services on behalf of the Plan. The form of Notice
satisfactory in any given circumstance under the Plan shall be
determined by the Administrative Committee, in its discretion,
and shall be applied uniformly to all Participants and to all
Beneficiaries. Notice to any party as provided herein shall be
deemed to be given when it is actually received (either
physically or by Interactive Electronic Communication, as the
case may be) by the party to whom such Notice is given.
1.40 "Participant" means an Eligible Employee who has become a
participant in the Plan in accordance with Article II. Each
Participant shall continue to be such after he ceases to be an
Eligible Employee until his Accounts have been completely
distributed.
1.41 "Period of Service" means that period of time commencing on an
Employee's Employment Commencement Date or Reemployment
Commencement Date, whichever is applicable, and ending on the
date of his Severance from Service. Notwithstanding the
foregoing, however, if an Employee severs from service with an
Employer as a result of quit, discharge, or retirement and then
returns to service within 12 months of such event, such period
shall be counted as part of such Employee's Period of Service.
For purposes of determining an Employee's Period of Service, all
non-successive Periods of Service shall be aggregated; less than
one 1-year Periods of Service shall be aggregated on the basis
that 12 months of service or 365 days of service equal a 1-year
Period of Service. A Period of Service also shall include such
period of service in the armed forces of the United States as
shall be required to be recognized under applicable federal law
with respect to military service.
1.42 "Period of Severance" means the period of time commencing on an
Employee's Severance from Service and ending on his Reemployment
Commencement Date.
1.43 "Plan" means the Mettler-Toledo, Inc. Enhanced Retirement Savings
Plan, as set forth in this document, including all addenda,
appendices and exhibits hereto, as the same may be amended from
time to time. For purposes of Section 401(a)(27) of the Code and
Section 407(d)(3) of ERISA, the Plan is a profit sharing plan.
1.44 "Plan Year" means the 12-month period commencing on any January
1.
1.45 "Prior Reliance Electric Plan" means the Reliance Electric
Company Savings and Investment Plan, as amended and restated
effective as of January 1, 1981.
1.46 "Qualified Contribution" means an Employer contribution made to
the Trust Fund pursuant to Section 4.10.
1.47 "Qualified Contribution Account" means the separate Account
maintained for a Participant to record his share of the Trust
Fund attributable to Qualified Contributions made on his behalf.
1.48 "Reliance Electric Plan" means the Reliance Electric Company
Savings and Investment Plan, as amended and restated effective as
of October 1, 1983.
1.49 "Reemployment Commencement Date" means the first date on which an
Employee completes an Hour of Service following a Period of
Severance.
1.50 "Rollover Contribution" means a contribution made by a
Participant or Eligible Employee to the Trust Fund pursuant to
Section 3.8.
1.51 "Rollover Contribution Account" means the separate Account
maintained for a Participant or Eligible Employee to record his
share of the Trust Fund attributable to his Rollover
Contribution.
1.52 "Safe Harbor Matching Contribution" means an Employer
contribution made to the Trust Fund pursuant to Section 4.2.
1.53 "Safe Harbor Matching Contribution Account" means the separate
Account maintained for a Participant to record his share of the
Trust Fund attributable to Safe Harbor Matching Contributions
made on his behalf.
1.54 "Savings Contribution" means an Employer contribution made to the
Trust Fund pursuant to Section 4.3.
1.55 "Savings Contribution Account" means the separate Account
maintained for a Participant to record his share of the Trust
Fund attributable to Savings Contributions made on his behalf.
1.56 "Severance from Service" means the earlier of (i) the date on
which an Employee resigns, retires, dies or is discharged from
employment with an Employer or member of the Group, or (ii) a
period of twelve (12) months from the first date the Employee
remains absent from employment (with or without pay) with an
Employer or member of the Group for any reason other than
resignation, retirement, death or discharge, such as vacation,
holiday, sickness, disability, leave of absence or layoff.
The date of the Severance from Service for a Participant who is
absent from employment by reason of parental leave shall be the
second anniversary of the first day of such absence, or, if
later, the date the parental leave ceased. The period between the
first and second anniversaries of the first date of absence for
parental leave shall be treated as neither a Period of Service
nor a Period of Severance. For purposes of this Section 1.56,
parental leave means an Employee's absence from work on account
of the Employee's pregnancy, the birth of the Employee's child,
the placement of a child with the Employee in connection with the
adoption of that child by the Employee, or for purposes of caring
for that child for a period beginning immediately following that
birth or placement.
An absence will not be considered by reason of parental leave
unless the Employee provides the Administrative Committee with
information within 10 working days demonstrating that the absence
is for one of the reasons described in the preceding sentence. At
the end of such absence, the Employee must provide the
Administrative Committee or its representative with a record of
the number of days of such absence. Nothing in this Plan shall
require the Employer to grant a paid leave of absence to any
Employee.
1.57 "Special Contribution" means an Employer contribution made to the
Trust Fund pursuant to Section 4.4.
1.58 "Special Contribution Account" means the separate Account
maintained for a Participant to record his share of the Trust
Fund attributable to Special Contributions.
1.59 "Special Contribution Year" means the 12-month period commencing
on July 1, 2002 and ending June 30, 2003 and the 12-month period
commencing on any July 1 thereafter.
1.60 "Transition Contribution" means an Employer contribution made to
the Trust Fund pursuant to Section 4.5.
1.61 "Transition Contribution Account" means the separate Account
maintained for a Participant to record his share of the Trust
Fund attributable to Transition Contributions made on his behalf.
1.62 "Trustee" means the individual(s) and/or entity(ies) appointed
from time to time by the Board to administer the Trust Fund in
accordance with Section 11.1.
1.63 "Trust Agreement" means the agreement entered into between the
Company and the Trustee, as provided for in Section 11.1, as the
same may be amended from time to time.
1.64 "Trust Fund" means the trust fund established in accordance with
Section 11.1 from which benefits provided under this Plan will be
paid.
1.65 "Valuation Date" means each day the New York Stock Exchange is
open for business.
1.66 "Vested Interest" means that portion of an Account in which an
individual has a fully vested and nonforfeitable right, as
provided in Article VI.
1.67 "Year of Eligibility Service" means a 1-year Period of Service;
provided, however, that if an Employee is classified as a
temporary employee by his Employer or is a part-time employee who
is classified by his Employer as other than a regular part-time
employee, Year of Eligibility Service shall mean an Eligibility
Computation Period (as defined below) in which the Employee
completes at least 1,000 Hours of Service.
The "Eligibility Computation Period" with respect to an Employee
shall mean the 12 consecutive month period that begins on the
Employee's Employment Commencement Date and ends on the first
anniversary thereof, and all such subsequent 12 consecutive month
periods.
1.68 "Year of Vesting Service" means a 1-year Period of Service,
whether or not such Period of Service was completed
consecutively; provided, however, that a "Year of Vesting
Service" shall not include:
(a) Any portion of a Participant's Period of Service or
employment by an Excluded Entity prior to March 1, 1978;
(b) Prior to July 1, 1980, any portion of a Participant's Period
of Service with respect to which the Participant did not
make Basic Employee Contributions under the Prior Reliance
Electric Plan;
(c) Any Year of Vesting Service ignored under Section 6.1;
and, further provided, however, that a "Year of Vesting Service"
shall include:
(d) Employment by an Excluded Entity on March 1, 1978 and
thereafter of a person who, on or after that date, either
ceases to be (i) an Employee of an Employer and becomes
employed by an Excluded Entity, or (ii) employed by an
Excluded Entity and becomes an Employee of an Employer,
except that if on or after March 1, 1978 an Employer or
Excluded Entity is for the first time included within the
definition of "Employer" or "Group", the Administrative
Committee shall determine, in a uniform nondiscriminatory
manner, what portion, if any, of service prior to inclusion
within such definition shall be included under this
paragraph (d).
The use of the masculine pronoun shall include the feminine and the
singular shall include the plural.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility Requirements
------------------------
(a) Each individual who was considered a Participant under the
terms of the Plan as of June 30, 2002 shall be considered a
Participant hereunder as of July 1, 2002 provided such
individual satisfies the terms of Section 1.40 as of July 1,
2002. Except as otherwise provided in an Appendix hereto, on
and after July 1, 2002 each Employee shall be eligible to
participate in the Plan as of the first day of any calendar
month that follows the date he:
(i) Becomes an Eligible Employee; and
(ii) Elects to participate in accordance with Section 2.2;
provided, however, if the Employee is classified as a
temporary employee by his Employer or is a part-time
employee who is classified by his Employer as other than a
regular part-time employee, such Employee shall also
complete 1 Year of Eligibility Service while so employed
before becoming eligible to participate in the Plan.
Each Employee who satisfies the requirements of this Section
2.1(a) shall be notified by his Employer of his eligibility
to participate.
(b) Except as specifically provided for herein, a Participant's
active participation in the Plan (and the right of an
Eligible Employee to participate in the Plan) shall cease
and terminate if and when he incurs a Period of Severance.
However, in the event such Participant (or such Eligible
Employee) subsequently returns to employment as an Eligible
Employee, he shall again be eligible to participate in the
Plan as of his Reemployment Commencement Date, upon Notice
filed with the Administrative Committee.
2.2 Commencement of Participation
-----------------------------
(a) Elective Participation. Unless an earlier date of
participation is applicable under Section 2.2(b), an
Eligible Employee may become a Participant as of any
Enrollment Date following his satisfaction of the
eligibility requirements set forth in Section 2.1, provided
he remains an Eligible Employee as of the Enrollment Date.
Such an Employee may elect to become a Participant as of a
given Enrollment Date by giving Notice to the Administrative
Committee within 30 days (or such other period as the
Administrative Committee may prescribe) prior to that
Enrollment Date. The Eligible Employee, in giving Notice (i)
may authorize his Employer to reduce his Compensation by the
amount of his Basic Salary Reduction Contributions pursuant
to Section 3.1, and (ii) shall make an investment election
from among those options made available as provided in
Section 7.1. Any such payroll authorization or investment
election shall remain in effect until changed by Notice
given to the Administrative Committee in the manner provided
under Sections 3.3 and 7.2, respectively.
If an Eligible Employee fails to give Notice to the
Administrative Committee before the Enrollment Date
following his eligibility to participate pursuant to Section
2.1, he shall be deemed to have elected to have no Basic
Salary Reduction Contributions made on his behalf and shall
not be entitled to Company Matching Contributions. Such
Eligible Employee may subsequently elect to participate as
provided in this Section 2.2(a) as of any later Enrollment
Date.
(b) Non-Elective Participation. An Eligible Employee shall
become a Participant (if not then already a Participant
under Section 2.2(a)) on the Enrollment Date coincident with
or next following the date he:
(i) Becomes an Eligible Employee; and
(ii) Completes 1 Year of Eligibility Service;
provided he remains an Eligible Employee as of such
Enrollment Date. An Eligible Employee described in this
Section 2.2(b) may give Notice on which he makes an
investment election from among those options made available
as provided in Section 7.1. Any such investment election
shall remain in effect until changed by Notice given to the
Administrative Committee in the manner provided under
Sections 3.3 and 7.2, respectively.
2.3 Beneficiary Designation
-----------------------
Each Participant shall designate a Beneficiary on the Appropriate
Form provided by the Administrative Committee. The designated
Beneficiary may be one or more individuals or an estate, trust or
organization (other than a corporation); however, if the
Participant is married at the time of his death, his surviving
spouse shall automatically be his sole Beneficiary unless such
spouse had consented on an Appropriate Form to a designation of a
different Beneficiary (by name) or to any subsequent change in a
Beneficiary (by name, unless the consent of such spouse expressly
permits designations by the Participant without any requirement
for further consent by such spouse, provided such spouse
acknowledges his or her right to limit any such consent to a
specific Beneficiary and such spouse states that he or she
voluntarily elects to relinquish such right). Such consent must
be witnessed by a notary public or a plan representative and must
contain an acknowledgment by such spouse of the effect of the
designation. If more than one individual or trust is named, the
Participant shall indicate the shares and/or precedence of each
individual or trust so named. Any Beneficiary so designated may
be changed by the Participant at any time (subject to his or her
current spouse's consent, if applicable) by signing and filing
the Appropriate Form with the Administrative Committee.
In the event that no Beneficiary had been designated or that no
designated Beneficiary survives the Participant, the following
Beneficiaries (if then living) shall be deemed to have been
designated in the following priority (1) spouse, (2) children,
including adopted children, in equal shares, per stirpes, and (3)
those who would take under the intestate laws of the jurisdiction
in which the Participant was domiciled at the time of his death.
2.4 Changes in Status of Eligible Employee
--------------------------------------
(a) If a Participant ceases to be actively employed (due to
layoff, authorized leave of absence or otherwise), but
remains an Eligible Employee who has not yet incurred a
Severance from Service, such Participant shall continue to
be treated as an active Participant for all purposes of the
Plan, except that:
(i) No Basic Salary Reductions Contributions, Company
Matching Contributions and/or Safe Harbor Matching
Contributions may be made during such period(s) of
absence unless such Participant receives Compensation
for such period(s) and has made the salary reduction
election identified in Section 2.2(a) applicable to
such Compensation;
(ii) No Discretionary Contributions, Savings Contributions,
Special Contributions or Transition Contributions shall
be made to the Account maintained on behalf of such
Participant unless he is absent from active employment
due to an authorized leave of absence and receives
Eligible Earnings for such period(s) of absence; and
(iii)Participant loans shall be restricted as provided in
Article XV.
(b) If a Participant is transferred from the status of an
Eligible Employee to a class of employment not eligible for
participation in this Plan but continues to be employed by a
member of the Group, no further contributions shall be made
on behalf of the Participant under the Plan with respect of
periods on and after the transfer unless the Participant is
subsequently transferred back to employment as an Eligible
Employee. The period of a Participant's employment in such
transferred position shall continue to be recognized for
purposes of determining Years of Eligibility Service and
Years of Vesting Service.
(c) If an Employee is transferred from a class of employment not
eligible for participation in this Plan to employment as an
Eligible Employee, such Employee shall commence
participation in the Plan as provided in Sections 2.1 and
2.2 (recognizing all periods of employment with a member of
the Group for purposes of determining Years of Eligibility
Service and Years of Vesting Service.)
ARTICLE III
BASIC SALARY REDUCTION CONTRIBUTIONS
3.1 Basic Salary Reduction Contributions
------------------------------------
Each Participant who is an Eligible Employee and is receiving
Compensation may elect to have his Employer make Basic Salary
Reduction Contributions to the Plan on his behalf to be credited
to his Basic Salary Reduction Contribution Account, in which case
the cash Compensation otherwise payable by the Employer to the
Participant shall be reduced by an amount equal to the Basic
Salary Reduction Contributions so made. The permitted rate of
Basic Salary Reduction Contributions shall be uniform with
respect to all Participants and shall be from 1 percent to 16
percent of Compensation for periods prior to January 1, 2003 and
from 1 percent to 50 percent of Compensation for periods on and
after January 1, 2003.
The Administrative Committee may from time to time specify other
percentages. Except as may otherwise be permitted under Section
3.7, in no event shall the aggregate of Basic Salary Reduction
Contributions (and such other "elective deferrals", as defined in
Section 402(g)(3) of the Code and the regulations thereunder)
made on a Participant's behalf with respect to any calendar year
exceed the dollar limit as in effect with respect to such year in
accordance with Sections 402(g)(1) and 402(g)(5) of the Code and
Treasury Regulation Section 1.402(g)-1(d)(1).
3.2 Voluntary Suspension
--------------------
A Participant may voluntarily suspend any Basic Salary Reduction
Contributions made pursuant to this Article III effective as of
the first day of any month provided Notice is given to the
Administrative Committee at such time and in such manner as
determined by the Administrative Committee and communicated to
Participants.
A Participant who has suspended contributions may elect to resume
Basic Salary Reduction Contributions made pursuant to this
Article III as of the first day of any month by giving Notice to
the Administrative Committee at such time and in such manner as
determined by the Administrative Committee and communicated to
Participants. A suspension of any Basic Salary Reduction
Contributions made pursuant to this Article III also may be made
at such times as are necessary to comply with the provisions of
Article VIII.
3.3 Change in Contribution Rates
----------------------------
A Participant may elect to increase or decrease the amount of
Basic Salary Reduction Contributions made on his behalf, within
the limits specified in Section 3.1, effective as of the first
day of any month provided Notice is given to the Administrative
Committee at such time and in such manner as determined by the
Administrative Committee and communicated to Participants. Basic
Salary Reduction Contribution rate changes also may be made at
such times as are necessary to comply with the provisions of
Section 3.4, Section 4.7, Section 4.8 or Section 8.2.
3.4 Limitations on Basic Salary Reduction Contributions (Plan Years
---------------------------------------------------
beginning before January 1, 2003)
(a) Notwithstanding the foregoing provisions of this Article
III, and effective solely with respect to Plan Years
beginning before January 1, 2003, the Administrative
Committee shall limit the amount of Basic Salary Reduction
Contributions made on behalf of each Employee who is a
Highly Compensated Employee for each Plan Year to the extent
necessary to ensure that either of the following tests is
satisfied:
(i) The "Actual Deferral Percentage" (as hereinafter
defined) for the group of Eligible Employees, who are
Highly Compensated Employees is not more than the
Actual Deferral Percentage of all other Eligible
Employees multiplied by 1.25; or
(ii) The excess of the Actual Deferral Percentage for the
group of Eligible Employees who are Highly Compensated
Employees over that of all other Eligible Employees is
not more than 2 percentage points, and the Actual
Deferral Percentage for the group of Eligible Employees
who are Highly Compensated Employees is not more than
the Actual Deferral Percentage of all other Eligible
Employees multiplied by 2.0.
(b) For purposes of this Section 3.4, the term "Actual Deferral
Percentage" shall mean, for any specified group of Eligible
Employees, the average of such Employees' Deferral
Percentages (as defined below).
(c) For purposes of this Section 3.4, the term "Deferral
Percentage" shall mean, for any Eligible Employee, the ratio
of:
(i) The aggregate of the Basic Salary Reduction
Contributions which, in accordance with the rules set
forth in Treasury Regulation Section 1.401(k)-1(b)(4),
are taken into account with respect to such Plan Year;
to
(ii) Such Employee's IRC 414(s) compensation for such Plan
Year. For this purpose, IRC 414(s) compensation shall
mean W-2 compensation as described in Treasury
Regulation Sections 1.414(s)-1(c)(2) and
1.415-2(d)(11), and shall also include all amounts
currently not included in the Employee's gross income
by reason of Section 125 or 402(e)(3) of the Code or,
effective January 1, 2001, 132(f)(4) of the Code. In
the case of an Employee who begins, resumes, or ceases
to be eligible to elect to have Basic Salary Reduction
Contributions made on his behalf during a Plan Year,
the amount of IRC 414(s) compensation included in the
Actual Deferral Percentage test is the amount of IRC
414(s) compensation received by the Employee during the
entire Plan Year.
"Deferral Percentage" for the Plan Year beginning on January
1, 2002 shall not include catch-up contributions deferred by
a Participant in accordance with Section 3.7 of the Plan and
Section 414(v) of the Code.
(d) The Deferral Percentage for any Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible
to have before-tax contributions made on his behalf under 2
or more arrangements described in Section 40l(k) of the Code
that are maintained by the Company, or other Employer, shall
be determined as if such before-tax contributions were made
under a single arrangement. Notwithstanding the foregoing,
certain plans shall be treated as separate if mandatorily
disaggregated under Treasury Regulations.
If the Plan is permissibly aggregated or is required to be
aggregated with other plans having the same Plan Year, as
provided under Treasury Regulation Section 1.401(k)-1(b)(3)
for purposes of determining whether or not such plans
satisfy Sections 401(k), 401(a)(4), and 410(b) of the Code,
then the provisions of this Section 3.4 shall be applied by
determining the Actual Deferral Percentage of Employees who
are eligible to participate in the Plan as if all such plans
were a single plan.
(e) In the event the Administrative Committee determines prior
to any payroll period that the amount of Basic Salary
Reduction Contributions elected to be made thereafter is
likely to cause the limitation prescribed in this Section
3.4 to be exceeded, the Administrative Committee, in its
discretion, may reduce the amount of Basic Salary Reduction
Contributions allowed to be made on behalf of Participants
who are Highly Compensated Employees (and/or such other
Participants as the Administrative Committee may prescribe)
to a rate determined by the Administrative Committee
(including a rate of 0 percent if the Administrative
Committee so determines). Except as is hereinafter provided,
the Participants to whom such reduction is applicable and
the amount of such reduction shall be determined pursuant to
such uniform and nondiscriminatory rules as the
Administrative Committee shall prescribe.
(f) Notwithstanding the foregoing, with respect to any Plan Year
beginning before January 1, 2003 in which Basic Salary
Reduction Contributions made on behalf of Participants who
are Highly Compensated Employees exceed the applicable limit
set forth in Section 3.4(a), the Administrative Committee
may reduce, to the extent necessary to comply with the
limitations prescribed in this Section 3.4, the amount of
Basic Salary Reduction Contributions made on behalf of the
Participants who are Highly Compensated Employees (by
reducing such contributions in the order of Basic Salary
Reduction Contribution amounts beginning with the largest),
and distribute such excess Basic Salary Reduction
Contributions (along with income attributable to such excess
Basic Salary Reduction Contributions, determined in
accordance with Section 3.4(g)) to the affected Participants
who are Highly Compensated Employees as soon as practicable
after the end of such Plan Year, and in all events prior to
the end of the next following Plan Year.
(g) Income on a Participant's excess Basic Salary Reduction
Contributions for the Plan Year in which such excess occurs
and for any period thereafter prior to the distribution
thereof shall be determined in the manner provided for in
Article V.
(h) Notwithstanding any distributions pursuant to the provisions
of this Section 3.4, excess Basic Salary Reduction
Contributions shall be treated as Annual Additions for
purposes of Section 4.7.
(i) Distributions pursuant to this Section 3.4 shall be made
proportionately from the Investment Funds with respect to
the Participant's Account or Accounts from which
distribution is made.
(j) In the event that an Employer elects to make a Qualified
Contribution on behalf of any or all Participants in the
Plan, such Qualified Contribution, to the extent specified,
shall be treated as a Basic Salary Reduction Contribution
solely for purposes of this Section 3.4.
(k) The Administrative Committee may, in its sole discretion,
elect to use any combination of the methods described in
this Section 3.4 to satisfy the limitations contained
herein; provided, however, that such combination of methods
shall be applied in a uniform and nondiscriminatory manner.
(l) The Administrative Committee also shall take all appropriate
steps to meet the aggregate limitation test contained in
Section 4.9.
3.5 Distributions of Excess Deferrals
---------------------------------
(a) Notwithstanding any other provision of the Plan, Excess
Deferrals (as hereinafter defined), plus any income and
minus any loss allocable thereto for both the calendar year
and the "gap period" between the end of the calendar year
and the date the distribution is made (determined in the
same manner as the method set forth in Section 3.4(g)),
shall be distributed to Participants who claim such
allocable Excess Deferrals, such distribution to occur no
later than April 15 of the calendar year following the
calendar year in which the excess occurred.
(b) For purposes of this Section 3.5, "Excess Deferrals" shall
mean the amount of a Participant's Basic Salary Reduction
Contributions (and other "elective deferrals" within the
meaning of Section 402(g)(3) of the Code) for a calendar
year that the Participant allocates to this Plan pursuant to
the claim procedure set forth in Section 3.5(c) hereof.
Excess Deferrals shall not include any Basic Salary
Reduction Contributions (or other "elective deferrals")
that, for Plan Years beginning on and after January 1, 2002,
are treated as catch-up contributions in accordance with
Section 3.7 of the Plan and Section 414(v) of the Code.
(c) A Participant may make a claim for the distribution of
Excess Deferrals pursuant to the terms and conditions of
this Section 3.5(c). Such Participant's claim shall be in
writing; shall be submitted to the Administrative Committee
no later than March 1 of the calendar year following the
calendar year of the Excess Deferrals; shall specify the
amount of the Participant's Excess Deferrals for the
preceding calendar year; and shall be accompanied by (i) the
Participant's written statement that if such amounts are not
distributed, such Excess Deferrals, when added to other
"elective deferrals" within the meaning of Section 402(g)(3)
of the Code, exceed the limit imposed on the Participant in
accordance with the applicable provisions of the Code for
the year in which the deferral occurred, and (ii) such
documentation as the Administrative Committee, in its sole
discretion, shall require to substantiate the Participant's
written statement. The Administrative Committee may, on a
uniform and nondiscriminatory basis, automatically deem the
Participant to have made a claim for a distribution of
Excess Deferrals if such excess arises by taking into
account only those elective deferrals made to this Plan and
any other plans of an Employer.
(d) The Excess Deferrals distributed to a Participant with
respect to a calendar year shall be adjusted for income and,
if there is a loss allocable to the Excess Deferrals, shall
in no event exceed the lesser of the Participant's Basic
Salary Reduction Contributions Account under the Plan or the
Participant's Basic Salary Reduction Contributions for the
year.
(e) Excess Deferrals shall be treated as annual additions under
the Plan, unless such amounts are distributed no later than
the first April 15th following the close of the
Participant's taxable year in which such excess occurred.
3.6 Coordination of Excess Amounts under Sections 401(k) and 402(g)
---------------------------------------------------------------
of the Code (Plan Years beginning before January 1, 2003)
-----------
(a) The amount of excess Basic Salary Reduction Contributions to
be distributed under Section 3.4 with respect to a
Participant for the Plan Year shall be reduced by any Excess
Deferrals previously distributed to such Participant under
Section 3.5 for the Participant's taxable year ending with
or within such Plan Year.
(b) The amount of Excess Deferrals that may be distributed under
Section 3.5 with respect to a Participant for a taxable year
shall be reduced by any excess Basic Salary Reduction
Contributions previously distributed to such Participant for
the Plan Year beginning with or within such taxable year.
3.7 Catch-up Contributions
----------------------
(a) Effective for any given Plan Year beginning on and after
January 1, 2002, a Participant who is in active employment
and is prevented from making additional Basic Salary
Reduction Contributions to the Plan for the Plan Year as a
result of the limitations described in Sections 3.4 and/or
3.5 of the Plan, or any other applicable limitation, and who
has or will attain age 50 by the last day of such Plan Year,
may make an additional contribution to the Plan, hereinafter
referred to as a "catch-up contribution."
(b) The amount of a catch-up contribution made by a Participant
shall not exceed the dollar limitation set forth in Section
414(v)(2)(B) of the Code (as adjusted in accordance with
Section 414(v)(2)(C) of the Code) or the amounts described
in Section 414(v)(2)(A) of the Code.
(c) Catch-up contributions shall not be subject to the otherwise
applicable limitations described in Sections 401(a)(30) or
415 of the Code, or any other applicable limitation for the
relevant Plan Year, limitation year, or calendar year for
which such contribution is credited.
(d) Catch-up contributions shall be applicable on an equivalent
basis to all Participants in the Plan who are eligible to
make catch-up contributions.
3.8 Rollover Contributions
----------------------
(a) Under such rules and procedures as the Administrative
Committee may establish, any Eligible Employee may
contribute to the Plan in cash (or any other property
acceptable to the Administrative Committee and the Trustee)
all or a portion of the amount received from a plan
described in Section 401(a), 403(a), 408(a) or 408(b) of the
Code provided such amount qualifies as an Eligible Rollover
Distribution (within the meaning of Section 9.11, except
that after-tax employee contributions will not be accepted).
Such amount must be in the form of a direct rollover (within
the meaning of Section 9.11). Before accepting any rollover
contribution from an Eligible Employee, the Administrative
Committee shall determine to its satisfaction that such
contribution is an Eligible Rollover Distribution. In making
such determination, the Administrative Committee may require
the Eligible Employee to provide such evidence as may
reasonably be necessary to establish that the amounts to be
rolled-over meet the requirements of this Section.
(b) Any rollover contribution made pursuant to the provisions of
this Section 3.8 shall be deposited into a separate account
for such Eligible Employee (his "Rollover Account") to which
shall be credited the investment earnings and losses
attributable thereto. An Eligible Employee shall be 100%
vested in his Rollover Account at all times. Notwithstanding
any provision of Section 7.2 of the Plan to the contrary:
(i) An Eligible Employee electing a rollover shall specify,
at or prior to the time the rollover contribution is
made, the manner in which the amounts rolled over shall
be invested in each Investment Fund offered under the
Plan; such investment election shall specify, in 5%
increments from 0% to 100%, the percentage of the
Eligible Employee's rollover contribution to be
invested in each Investment Fund;
(ii) Prior to the date on which he becomes a Participant
hereunder, an Eligible Employee who has made a rollover
contribution shall have the opportunity to change the
manner in which the Rollover Account is invested; such
opportunity shall be equivalent to that available to a
Participant with respect to the Accounts maintained on
such Participant's behalf.
(c) An Eligible Employee who makes a rollover contribution, but
who is not otherwise eligible for membership in accordance
with Section 2.1 or any appendix hereto, shall not be
entitled to make contributions under Article III, or share
any Employer contribution allocated in accordance with
Article IV or Article XVI.
(d) The Administrative Committee may promulgate specific rules
and regulations governing all aspects of this Section.
ARTICLE IV
EMPLOYER CONTRIBUTIONS
4.1 Company Matching Contributions
------------------------------
Except as otherwise provided in an appendix hereto, as of each
pay period beginning before January 1, 2003, each Employer shall
make Company Matching Contributions to the Plan on behalf of each
Participant who is an Eligible Employee of such Employer, in an
amount which, when added to available forfeitures, if any, equals
50 percent of the Basic Salary Reduction Contributions made with
respect to the Participant during such pay period which do not
exceed six percent of the Participant's Compensation during such
pay period. Company Matching Contributions shall be made in cash.
4.2 Safe Harbor Matching Contributions
----------------------------------
(a) Effective with respect to each given pay period beginning on
and after January 1, 2003, each Employer shall contribute an
amount to the Trust Fund equal to the sum of those amounts
individually determined with respect to each Participant who
is an Eligible Employee of such Employer, as follows:
(i) 100 percent of the Basic Salary Reduction Contributions
made with respect to the Participant during such pay
period which do not exceed 3 percent of the
Participant's Compensation during such pay period; and
(ii) 50 percent of the Basic Salary Reduction Contributions
made with respect to the Participant during such pay
period which exceed 3 percent but do not exceed 6
percent of the Participant's Compensation during such
pay period.
Such contributions shall be designated as Safe Harbor
Matching Contributions and shall be 100% vested and
nonforfeitable when made. The Employer shall make Safe
Harbor Matching Contributions as soon as practicable
following the end of the pay period to which they relate and
such contributions shall be credited to Participants' Safe
Harbor Matching Contribution Accounts as of the date they
are received by the Trustee or otherwise deposited in the
Trust Fund. Notwithstanding the foregoing provisions of this
Section 4.2(a), and effective for Plan Years beginning on
and after January 1, 2003, the Safe Harbor Matching
Contribution made on behalf of each Participant shall be
adjusted as of the last day of a Plan Year to ensure that
the actual Safe Harbor Matching Contribution made equals the
appropriate percentages set forth in this Section 4.2, as
determined on a Plan Year basis.
(b) Effective with respect to each Plan Year in which the
provisions of Section 4.2(a) are applicable, the
Administrative Committee shall provide Notice during the
"Safe Harbor Notice Period" (as hereinafter defined) to each
Eligible Employee who is eligible to participate in the Plan
during such Plan Year. Such Notice shall describe the
following:
(i) The formula used to determine the Safe Harbor Matching
Contribution to be made on behalf of such Employee for
such Plan Year;
(ii) Other contributions provided or permitted under the
Plan;
(iii)The conditions under which the contributions
identified under (i) and (ii) above will be made;
(iv) The type and amount of Compensation that may be
deferred under the Plan as Basic Salary Reduction
Contributions;
(v) The procedures for making or changing an election to
make Basic Salary Reduction Contributions; and
(vi) The withdrawal and vesting provisions applicable to
contributions under the Plan.
For purposes hereof, the "Safe Harbor Notice Period" shall
mean a period beginning 90 days before the first day of the
applicable Plan Year and ending 30 days before the first day
of the applicable Plan Year; provided, however, with respect
to an Eligible Employee who becomes eligible to participate
in the Plan during a given Plan Year in which the provisions
of Section 4.2(a) are applicable, the "Safe Harbor Notice
Period" shall begin 90 days before the day such Employee may
first participate in the Plan and shall end on the day such
Employee may first participate in the Plan.
(c) For Plan Years beginning on and after January 1, 2003 in
which the Safe Harbor Matching Contribution of Section
4.2(a) is made and the Notice requirement of Section 4.2(b)
is satisfied, the Employer elects to treat the Plan as
automatically satisfying the nondiscrimination in amount of
employer contribution requirements of Section 401(a)(4) of
the Code. Notwithstanding any provision of this Section 4.2
to the contrary, the Employer may suspend future Safe Harbor
Matching Contributions at any time provided that the
procedures for implementing such suspension are consistent
with guidance promulgated by the Internal Revenue Service
and, provided further, that for any Plan Year in which such
suspension occurs, the provisions of Section 3.4, 3.6, 4.8
and 4.9 shall again become applicable to the extent then
required by law.
4.3 Savings Contributions
---------------------
(a) Except as otherwise provided in an appendix hereto, as of
the end of each given Plan Year beginning on and after
January 1, 2002, each Employer shall contribute an amount to
the Trust Fund on behalf of each Participant who satisfies
the criteria in (i), (ii) and (iii) below:
(i) The Participant is an Eligible Employee of such
Employer for all or part of such Plan Year; and
(ii) the Participant is either:
(A) In the active employment of an Employer or another
member of the Group as of December 31 of such Plan
Year; or
(B) Not in the active employment of an Employer or
another member of the Group as of December 31 of
such Plan Year due to:
(1) The Employee's Early Retirement or retirement
after his Normal Retirement Age;
(2) The Employee's Disability;
(3) The Employee's absence on account of an
authorized leave of absence with respect to
which Eligible Earnings are paid; or
(4) The Employee's death; and
(iii)The Participant has completed 1 Year of Eligibility
Service before or during such Plan Year, if the
Participant's Employment Commencement Date is on or
after July 1, 2002.
The total Employer contributions made pursuant to this
Section 4.3 with respect to any given Plan Year shall equal
the amounts individually determined for such Plan Year under
subsection (b) below. Such contribution shall be designated
as a Savings Contribution, shall be allocated to the Savings
Contribution Account of an eligible Participant as soon as
practicable following the date it is made, and shall become
100% vested and nonforfeitable as of the earlier of the last
day of the Plan Year to which the contribution applies, if
the Participant is in the active employment of an Employer
on such date or, if applicable to the Participant, the
relevant date under Section 4.3(a)(ii)(B) above.
(b) The Savings Contribution for any given Plan Year that is
allocated on behalf of a Participant who satisfies the
criteria set forth in subsection (a) above shall be equal to
1 1/2 percent of the Participant's Eligible Earnings for
such Plan Year; provided, however, that with respect to an
eligible Participant whose Employment Commencement Date is
on or after July 1, 2002, the Savings Contribution allocated
on behalf of the Participant for the Plan Year in which the
Participant first completes 1 Year of Eligibility Service
shall be limited to 1 1/2 percent of the Participant's
Eligible Earnings during that number of complete calendar
months within such Plan Year that follow the date the
Participant completes 1 Year of Eligibility Service, and
provided further, that the Savings Contribution allocated on
behalf of an eligible Participant for the Plan Year
beginning on January 1, 2002 shall not exceed 1 1/2 percent
of that portion of the Participant's Eligible Earnings for
such Plan Year that are paid on and after July 1, 2002.
(c) Notwithstanding any provision of subsection (a) above to the
contrary, an Employer may elect to make and allocate some or
all Savings Contributions for a given Plan Year at a time or
times within such Plan Year, that is earlier than the end of
the Plan Year, as set forth in subsection (a) above. This
change in timing may include making such contributions and
allocations on a monthly or other periodic basis,
recognizing for purposes of the allocation, a Participant's
Eligible Earnings for such month or other period.
Notwithstanding any provision of this Section 4.3 to the
contrary, in the event an Employer makes an election under
this subsection and as a result, Savings Contributions for a
given Plan Year are allocated on behalf of an Employee who
is not eligible for an allocation of Savings Contributions
under subsection (a) above, the Savings Contributions so
allocated, as increased by investment earnings and decreased
by investment losses, shall be treated as forfeitures under
the Plan.
4.4 Special Contributions
---------------------
(a) Except as otherwise provided in this Section 4.4 or in an
appendix hereto, as of the end of each given Plan Year
beginning on and after January 1, 2002, each Employer shall
contribute an amount to the Trust Fund on behalf of each
Participant who is an Eligible Employee of such Employer
during such Plan Year, who is identified on Exhibit I hereto
and who is either:
(i) In the active employment of an Employer or another
member of the Group as of the last day of such Plan
Year; or
(ii) Not in the active employment of an Employer or another
member of the Group as of the last day of such Plan
Year due to:
(A) The Employee's Early Retirement or retirement
after his Normal Retirement Age;
(B) The Employee's Disability;
(C) The Employee's absence on account of an authorized
leave of absence with respect to which Eligible
Earnings are paid; or
(D) The Employee's death.
The total Employer contributions made pursuant to this
Section 4.4 with respect to any given Plan Year shall equal
the sum of those amounts individually determined for such
Plan Year under subsection (b) below. Such contribution
shall be designated as a Special Contribution, shall be
allocated to the Special Contribution Account of an eligible
Participant as soon as practicable following the date it is
made and shall become 100% vested and nonforfeitable as of
the earlier of the last day of the Plan Year to which the
contribution applies, if the Participant is in the active
employment of an Employer on such date or, if applicable to
the Participant, the relevant date under Section 4.4(a)(ii)
above.
(b) Excepted as provided in subsection (c) below, the Special
Contribution for any given Plan Year that is allocated on
behalf of a Participant who satisfies the criteria set forth
in subsection (a) above shall be equal to the product of (i)
and (ii) below:
(i) The monthly amount identified on Exhibit I hereto with
respect to the Participant; and
(ii) The number of complete months during such Plan Year in
which the Participant was in the active employment of
an Employer as an Eligible Employee including, solely
for this purpose, any number of months during which the
Participant was not in the active employment of an
Employer as an Eligible Employee on account of an
authorized leave of absence with respect to which
Eligible Earnings are paid.
In no event shall Special Contributions be made on behalf of
a Participant with respect to any period other than a period
in which the Participant (1) is in the active employment of
an Employer as an Eligible Employee or (2) is not in such
active employment on account of an authorized leave of
absence with respect to which Eligible Earnings are paid.
(c) Notwithstanding any provision of this Section 4.4 to the
contrary, Special Contributions with respect to any
Participant identified on Exhibit I hereto shall be made
during a period not in excess of the number of Special
Contribution Years identified with respect to the
Participant on Exhibit I, such Special Contributions shall
be conditioned on the Participant's satisfaction of the
criteria set forth in subsection (a) above and the Special
Contribution allocated on behalf of an eligible Participant
for the Plan Year beginning on January 1, 2002 shall not
exceed the product of (i) the monthly amount identified on
Exhibit I hereto with respect to the Participant and (ii)
six.
(d) Notwithstanding any provision of subsection (a) above to the
contrary, an Employer may elect to make and allocate some or
all Special Contributions for a given Plan Year at a time or
times, within such Plan Year, that is earlier than the end
of the Plan Year, as set forth in subsection (a) above. This
change in timing may include making such contributions and
allocations on a monthly or other periodic basis.
Notwithstanding any provision of this Section 4.4 to the
contrary, in the event an Employer makes an election under
this subsection and, as a result, Special Contributions for
a given Plan Year are allocated on behalf of an Employee who
is not eligible for an allocation of Special Contributions
under subsection (a) above, the Special Contributions so
allocated, as increased by investment earnings and decreased
by investment losses, shall be treated as forfeitures under
the Plan.
4.5 Transition Contributions
------------------------
(a) Except as otherwise provided in an appendix hereto, as of
the end of the Plan Year beginning on January 1, 2002, each
Employer shall contribute an amount to the Trust Fund on
behalf of each Participant who is an Eligible Employee of
such Employer as of June 30, 2002, who remains an Eligible
Employee during all or part of the period beginning on July
1, 2002 and ending December 31, 2002 and who is either:
(i) In the active employment of an Employer or another
member of the Group as of December 31, 2002; or
(ii) Not in the active employment of an Employer or another
member of the Group as of December 31, 2002 due to:
(A) The Employee's Early Retirement or retirement
after his Normal Retirement Age;
(B) The Employee's Disability;
(C) The Employee's absence on account of an authorized
leave of absence with respect to which Eligible
Earnings be paid; or
(D) The Employee's death.
The total Employer contributions made pursuant to this
Section 4.5 shall equal the sum of those amounts
individually determined under subsection (b) below. Such
contribution shall be designated as a Transition
Contribution, shall be allocated to the Transition
Contribution Account of an eligible Participant as soon as
practicable following the date it is made, and shall become
100% vested and nonforfeitable, as of the earlier of
December 31, 2002, if the Participant is in the active
employment of an Employer on such date or, if applicable to
the Participant, the relevant date under Section 4.5(a)(ii)
above.
(b) The Transition Contribution allocated on behalf of a
Participant who satisfies the criteria set forth in
subsection (a) above shall be equal to 1 1/2 percent of that
portion of the Participant's Eligible Earnings that are paid
on and after July 1, 2002 and before January 1, 2003.
(c) Notwithstanding any provision of subsection (a) above to the
contrary, an Employer may elect to make and allocate some or
all Transition Contributions at a time or times within the
2002 Plan Year, that is earlier than the end of the Plan
Year, as set forth in subsection (a) above. This change in
timing may include making such contributions and allocations
on a monthly or other periodic basis, recognizing for
purposes of the allocation, a Participant's Eligible
Earnings for such month or other period. Notwithstanding any
provision of this Section 4.5 to the contrary, in the event
an Employer makes an election under this subsection and as a
result, Transition Contributions for a given Plan Year are
allocated on behalf of an Employee who is not eligible for
an allocation of Transition Contributions under subsection
(a) above, the Transition Contributions so allocated, as
increased by investment earnings and decreased by investment
losses, shall be treated as forfeitures under the Plan.
4.6 Discretionary Contributions
---------------------------
(a) An Employer may, in its sole discretion, make an additional
contribution to the Trust Fund for any given Plan Year in
such amount as the Employer may determine. Such additional
contribution shall be designated as a Discretionary
Contribution and, except as otherwise provided in an
appendix hereto, shall be allocated to the Discretionary
Contribution Account maintained on behalf of each
Participant who is an Eligible Employee of such Employer
during the given Plan Year and who otherwise satisfies, for
such Plan Year, the eligibility requirements for an
allocation of Savings Contributions under Section 4.3(a).
Except as otherwise provided in an appendix hereto, the
allocation of a Discretionary Contribution among the
Discretionary Contribution Accounts of such eligible
Participants shall be in the ratio that each such eligible
Participant's Eligible Earnings for the given Plan Year
bears to the aggregate Eligible Earnings of all such
eligible Participants. A Participant's Discretionary
Contribution Account shall become vested and nonforfeitable
as provided in Section 6.1.
(b) Notwithstanding any provision of subsection (a) above to the
contrary, an Employer may elect to make and allocate some or
all Discretionary Contributions for a given Plan Year at a
time or times within such Plan Year, that is earlier than
the end of the Plan Year, as set forth in subsection (a)
above. This change in timing may include making such
contributions and allocations on a monthly or other periodic
basis, recognizing for purposes of the allocation, a
Participant's Eligible Earnings for such month or other
period. Notwithstanding any provision of this Section 4.6 to
the contrary, in the event an Employer makes an election
under this subsection and as a result, Discretionary
Contributions for a given Plan Year are allocated on behalf
of an Employee who is not eligible for an allocation of
Discretionary Contributions under subsection (a) above, the
Discretionary Contributions so allocated, as increased by
investment earnings and decreased by investment losses,
shall be treated as forfeitures under the Plan
4.7 Limitation on Annual Additions
------------------------------
Notwithstanding anything herein to the contrary, in no event
shall the Annual Addition (as hereinafter defined) with respect
to any Participant in any Plan Year beginning on or after January
1, 2002 exceed the lesser of (i) 100 percent of the Participant's
IRC 415 compensation (as described in Section 415(c)(3) of the
Code), or (ii) $40,000, or such greater amount as is permissible
under Section 415(c)(1)(A) of the Code, subject to any adjustment
under Section 415(d) of the Code.
For purposes of this Section 4.7, with respect to each Plan Year,
the term "Annual Addition" with respect to any Participant means
the sum of that portion of the following amounts, if any,
allocated on behalf of the Participant:
(a) Basic Salary Reduction Contributions made in accordance with
Section 3.1;
(b) Company Matching Contributions made in accordance with
Section 4.1;
(c) Safe Harbor Matching Contributions made in accordance with
Section 4.2;
(d) Savings Contributions made in accordance with Section 4.3;
(e) Special Contributions made in accordance with Section 4.4;
(f) Transition Contributions made in accordance with Section
4.5;
(g) Discretionary Contributions made in accordance with Section
4.6;
(h) Qualified Contributions made in accordance with Section
4.10;
(i) Other Employer contributions that may be permitted under
this Plan, including any appendix hereto;
(j) Forfeitures; and
(k) Amounts described in Code Section 415(l)(1) and 419A(d)(2).
If a Participant is also participating in another tax-qualified
defined contribution plan maintained by any member of the Group,
the otherwise applicable limitation on Annual Additions under
this Plan shall be reduced by the amount of annual additions
(within the meaning of Section 415(c)(2) of the Code) under any
such other defined contribution plan.
If the limitations applicable to any Participant in accordance
with this Section 4.7 would be exceeded, the contributions made
by or on behalf of a Participant under the Plan shall be reduced
in the following order, but only to the extent necessary to meet
the limitations: (i) after-tax contributions made to any
tax-qualified plan sponsored by a member of the Group, (ii) Basic
Salary Reduction Contributions to the extent not matched by
Company Matching Contributions or Safe Harbor Matching
Contributions, (iii) Basic Salary Reduction Contributions to the
extent matched by Company Matching Contributions, (iv) Special
Contributions and (v) Savings, Transition and/or Discretionary
Contributions.
In the event that, notwithstanding the foregoing provisions of
this Section 4.7, the limitations with respect to Annual
Additions prescribed hereunder are exceeded with respect to any
Participant and such excess arises as a consequence of an error
in estimating Compensation or Eligible Earnings, the allocation
of forfeitures, if any, or a reasonable error in determining the
amount of Basic Salary Reduction Contributions:
(i) The after-tax contribution and Basic Salary Reduction
Contribution portions of such excess shall be returned
to the Participant, along with any income attributable
thereto; and
(ii) All other contributions shall be held in a suspense
account and shall be used to reduce Employer
contributions for all Participants in the Plan Year,
and all succeeding years, as necessary.
4.8 Limitation on Company Matching Contributions (Plan Years beginning
--------------------------------------------
before January 1, 2003)
(a) Notwithstanding the foregoing provisions of Article III and
this Article IV and effective solely with respect to Plan
Years beginning before January 1, 2003, the Administrative
Committee shall limit the amount of Company Matching
Contributions made on behalf of each Highly Compensated
Employee who is eligible to participate in the Plan for each
Plan Year, to the extent necessary to ensure that either of
the following tests is satisfied:
(i) The "Actual Contribution Percentage" (as hereinafter
defined) for the group of Eligible Employees who are
Highly Compensated Employees, is not more than the
Actual Contribution Percentage of all other Eligible
Employees multiplied by 1.25; or
(ii) The excess of the Actual Contribution Percentage for
the group of Eligible Employees who are Highly
Compensated Employees, over that of all other Eligible
Employees is not more than 2 percentage points, and the
Actual Contribution Percentage for the group of
Eligible Employees who are Highly Compensated Employees
is not more than the Actual Contribution Percentage of
all other Eligible Employees multiplied by 2.0.
(b) For purposes of this Section 4.8, the term "Actual
Contribution Percentage" shall mean, for any specified group
of Eligible Employees, the average of such Employees'
Contribution Percentages (as defined below).
(c) For purposes of this Section 4.8, the term "Contribution
Percentage" shall mean for any Eligible Employee, the ratio
of:
(i) The Company Matching Contributions which, in accordance
with the rules set forth in Treasury Regulation Section
1.401(m)-1(b)(4), are taken into account with respect
to such Plan Year; to
(ii) Such Employee's IRC 414(s) compensation for such Plan
Year. For this purpose, IRC 414(s) compensation shall
mean W-2 compensation as described in Treasury
Regulation Sections 1.414(s)-1(c)(2) and
1.415-2(d)(11), and shall also include all amounts
currently not included in the Employee's gross income
by reason of Sections 125 of 402(e)(3) of the Code, or
effective January 1, 2001, 132(f)(4) of the Code. In
the case of an Employee who begins, resumes, or ceases
to be eligible to have Company Matching Contributions
made on his behalf during a Plan Year, the amount of
IRC 414(s) compensation included in the Actual
Contribution Percentage test is the amount of IRC
414(s) compensation received by the Employee during the
entire Plan Year.
(d) The Contribution Percentage for a Participant who is a
Highly Compensated Employee for the Plan Year and who is
eligible to make after-tax contribution, or to have matching
employer contributions (within the meaning of Section
401(m)(4)(A) of the Code) made on his behalf under 2 or more
plans described in Section 401(a) of the Code that are
maintained by the Company, or other member of the Group,
shall be determined as if the total of such after-tax
contributions and matching employer contributions were made
under a single arrangement. Notwithstanding the foregoing,
certain plans shall be treated as separate if mandatorily
disaggregated under Treasury Regulations.
If the Plan is permissibly aggregated or is required to be
aggregated with other plans having the same Plan Year, as
provided under Treasury Regulation Section 1.401(m)-1(b)(3)
for purposes of determining whether or not such plans
satisfy Section 401(m), 401(a)(4), and 410(b) of the Code,
then the provisions of this Section 4.8 shall be applied by
determining the Actual Contribution Percentage of Employees
who are eligible to participate in the Plan as if all such
plans were a single plan.
(e) In the event the Administrative Committee determines prior
to any payroll period that the amount of Company Matching
Contributions to be made thereafter is likely to cause the
limitation prescribed in this Section 4.8 to be exceeded,
the Administrative Committee, in its discretion, may reduce
the amount of such contributions allowed to be made by or on
behalf of Participants who are Highly Compensated Employees
(and/or such other Participants as the Administrative
Committee may prescribe) to a rate determined by the
Administrative Committee (including a rate of 0 percent if
the Administrative Committee so determines). Except as is
hereinafter provided, the Participants to whom such
reduction is applicable and the amount of such reduction
shall be determined pursuant to such uniform and
nondiscriminatory rules as the Administrative Committee
shall prescribe.
(f) Notwithstanding the foregoing, with respect to any Plan Year
beginning before January 1, 2003 in which Company Matching
Contributions made on behalf of Participants who are Highly
Compensated Employees exceed the applicable limit set forth
in Section 4.8(a), the Administrative Committee may reduce,
to the extent necessary to comply with the limitations
prescribed in this Section 4.8, the amount of Company
Matching Contributions made on behalf of the Participants
who are Highly Compensated Employees (by reducing such
Company Matching Contribution in the order of Company
matching Contribution amounts beginning with the largest),
and distribute such excess Company Matching Contributions,
to the extent then vested, (along with income attributable
to such vested excess contributions, as determined pursuant
to Section 4.8(g)) to the affected Participants who are
Highly Compensated Employees as soon as practicable after
the end of such Plan Year, and in all events prior to the
end of the next following Plan Year. The amount of excess
Company Matching Contributions that are not vested shall be
forfeited, and shall be held in a suspense account and used
to reduce the Employer's future Company Matching
Contributions.
(g) Income on excess Company Matching Contributions for the Plan
Year in which such excess occurs and for any period
thereafter prior to the distribution thereof shall be
determined in the manner provided for in Article V.
(h) Notwithstanding any distributions pursuant to the foregoing
provisions, excess Company Matching Contributions shall be
treated as Annual Additions for purposes of Section 4.7.
(i) Distributions pursuant to this Section 4.8 shall be made
proportionately from the Investment Funds with respect to
the Participant's Account or Accounts from which
distribution is made.
(j) In the event that the Employer elects to make a Qualified
Contribution on behalf of any or all Participants in the
Plan, any such Qualified Contribution, to the extent
specified, shall be treated as a Company Matching
Contribution solely for purposes of this Section 4.8.
(k) In determining whether the requirements of this Section 4.8
are satisfied, the Administrative Committee may, in its
discretion, in accordance with regulations, take into
account Participants' Basic Salary Reduction Contributions
made to the Plan pursuant to Section 3.1; provided that such
contributions are not taken into account in order to satisfy
the requirements of Section 3.4.
(l) The Administrative Committee may, in its sole discretion,
elect to use any combination of the methods described in
this Section 4.8 to satisfy the limitations contained
herein, provided, however, that such combination of methods
shall be applied in a uniform and nondiscriminatory manner.
(m) The Administrative Committee shall also take all appropriate
steps to meet the aggregate limitation test contained in
Section 4.9.
4.9 Aggregate Limitation (Plan Years beginning before January 1, 2002)
--------------------
Any other provision of the Plan to the contrary notwithstanding
and effective solely with respect to Plan Years beginning before
January 1, 2002, the provisions of this Section 4.9 shall apply
if the conditions of both (a) and (b) below are satisfied:
(a) The sum of (i) the "Actual Deferral Percentage" (as defined
in Section 3.4) for the group of Eligible Employees who are
Highly Compensated Employees and (ii) the "Actual
Compensation Percentage" (as defined in Section 4.8) for
such group of Highly Compensated Employees exceeds the
"Aggregate Limit" (as hereinafter defined); and
(b) Both (i) the Actual Deferral Percentage for the group of
Eligible Employees who are highly Compensated Employees
exceeds 125 percent of the Actual Deferral Percentage of all
other Eligible Employees and (ii) the Actual Contribution
Percentage of such group of Highly Compensated Employees
exceeds 125 percent of the Actual Contribution Percentage of
all such other Employees.
The term "Aggregate Limit" means the greater of the sum of
(i) and (ii) below or the sum of (iii) and (iv) below:
(i) 125 percent of the greater of (1) the Actual Deferral
Percentage of the group of Eligible Employees who are
not Highly Compensated Employees, or (2) the Actual
Contribution Percentage of the group of Eligible
Employees who are not Highly Compensated Employees, and
(ii) 2 plus the lesser of (i)(1) or (i)(2) above (but in no
event more than 200 percent of the lesser of (i)(1) or
(i)(2) above).
(iii)125 percent of the lesser of (1) the Actual Deferral
Percentage of the group of Eligible Employees who are
not Highly Compensated Employees, or (2) the Actual
Contribution Percentage of the group of Eligible
Employees who are not Highly Compensated Employees, and
(iv) 2 plus the greater of (iii)(1) or (iii)(2) above (but
in no event more than 200 percent of the greater of
(iii)(1) or (iii)(2) above).
(c) If the Actual Deferral Percentage and/or Actual Contribution
Percentage for the group of Eligible Employees who are
Highly Compensated Employees, determined after any
corrective distribution of excess amounts in accordance with
the provisions of Section 3.4 and 4.8 have been effectuated,
exceeds an amount which would cause the limits set forth in
the foregoing provisions of this Section 4.9 to be exceeded,
first the amount of Basic Salary Reduction Contributions and
then the amount of Company Matching Contributions shall be
reduced in accordance with Section 3.4 and 4.8, but only to
the extent necessary to bring the Plan into compliance with
the applicable limits set forth in this Section 4.9.
(d) In determining whether the requirements of this Section 4.9
are satisfied, the Administrative Committee may in its
discretion, in accordance with regulations, take into
account Participants' Basic Salary Reduction Contributions
made to the Plan pursuant to Section 3.1, provided that such
contributions are not taken into account in order to satisfy
the requirements of Section 3.4.
4.10 Qualified Contributions (Plan Years beginning before January 1, 2003)
-----------------------
For Plan Years beginning before January 1, 2003, an Employer may,
in its sole discretion, make a Qualified Contribution in order to
satisfy the requirements of Section 3.4 or 4.8. A Qualified
Contribution is a contribution that (i) is made by the Employer
that may be aggregated with other contributions in accordance
with Section 3.4 and 4.8; (ii) is nonforfeitable at all times;
(iii) may not be distributed to a Participant or any Beneficiary
until the earliest date provided for in Section 401(k)(2)(B) of
the Code (determined without regard to subsection (i)(IV) of such
Section) and (iv) complies with the requirements of Treasury
Regulation Section 1.401(k)-1(b)(5).
A Qualified Contribution may take the form of a qualified
matching contribution (as defined in Treasury Regulation Section
1.401(k)-(1)(g)(13)(i)), or a qualified nonelective contribution
(as defined in Treasury Regulation Section
1.401(k)-1(g)(13)(ii)). The Employer shall specify the form of
the Qualified Contribution, and the Participants to whom such
contribution is to be allocated.
4.11 Return of Contributions
-----------------------
Notwithstanding any provision of the Plan to the contrary, a
contribution (or part thereof) made to the Plan by an Employer
shall be returned to that Employer if:
(a) The contribution is made by reason of mistake of fact; or
(b) The contribution is not currently deductible under Section
404 of the Code;
provided that such return of contribution is made within one year
after the mistaken payment of the contribution or the
disallowance of the tax deduction, as the case may be.
ARTICLE V
VALUATION OF ACCOUNTS
5.1 Maintenance of Accounts
-----------------------
The Administrative Committee shall separately maintain on behalf
of each Participant, where applicable, and shall separately
account for on a reasonable and consistent basis, an After-Tax
Contribution Account, Basic Employee Contribution Account, Basic
Salary Reduction Contribution Account, Company Matching
Contribution Account, Discretionary Contribution Account,
Qualified Contribution Account, Rollover Account, Safe Harbor
Matching Account, Savings Contribution Account, Special
Contribution Account, and Transition Contribution Account.
5.2 Valuation
---------
As of each Valuation Date, the Administrative Committee shall
cause to be adjusted the After-Tax Contribution Account, Basic
Employee Contribution Account, Basic Salary Reduction
Contribution Account, Company Matching Contribution Account,
Discretionary Contribution Account, Qualified Contribution
Account, Rollover Account, Safe Harbor Matching Account, Savings
Contribution Account, Special Contribution Account, and
Transition Contribution Account for each Participant on whose
behalf any such Account is maintained to reflect his share of
contributions (including for this purpose contributions made
after such Valuation Date but credited as of such Valuation
Date), withdrawals, distributions, income, expenses payable from
the Trust Fund (and allocable to the Investment Funds in which
the Participant's Accounts are invested) and any increase or
decrease in the value of such Investment Funds since the
preceding Valuation Date. The fair market value on the Valuation
Date is to be used for this purpose, and the respective Accounts
of Participants are to be adjusted in accordance with the
valuation.
The Administrative Committee reserves the right to change from
time to time the procedures used in valuing any one or more of
the Accounts or crediting and debiting any one or more of the
Accounts if it determines, after due deliberation and upon the
advise of counsel and/or the current recordkeeper, that such
action is justified in that it results in a more accurate
reflection of the fair market value of the Accounts. In the event
of a conflict between the provisions of Article V and such new
administrative procedures, the new administrative procedures
shall prevail.
5.3 Valuation of Funds
------------------
The Administrative Committee shall determine the fair market
value of each Investment Fund as of the end of each Plan Year,
and as soon as practicable thereafter shall deliver or mail to
each Participant or Beneficiary a statement setting forth the
fair market value of his Account in each Investment Fund.
ARTICLE VI
VESTING OF ACCOUNTS
6.1 Vesting
-------
(a) A Participant shall always be 100 percent vested in the
value of the After-Tax Contribution Account, Basic Employee
Contribution Account, Basic Salary Reduction Contribution
Account, Qualified Contribution Account, Rollover Account
and Safe Harbor Matching Account maintained on his behalf. A
Participant shall be 100 percent vested in the value of the
Savings Contribution Account, Special Contribution Account
and Transition Contribution Account maintained on his behalf
as provided in Sections 4.3(a), 4.4(a) and 4.5(a),
respectively.
(b) Except as otherwise provided in an appendix hereto or in
subsection (d) below, a Participant shall be vested in the
Company Matching Contribution Account maintained on his
behalf in accordance with the following schedule:
YEARS OF VESTING SERVICE VESTED INTEREST
------------------------ ---------------
Less than 3 years 0 percent
3 years or more 100 percent
provided, however, that the portion of the Company Matching
Contribution Account attributable to Company Matching
Contributions made with respect to pay periods beginning on
and after July 1, 2002 and before January 1, 2003, shall at
all times be 100 percent vested.
(c) Except as otherwise provided in an appendix hereto or in
subsection (d) below, a Participant shall be vested in the
Discretionary Contribution Account maintained on his behalf
in accordance with the following schedule:
YEARS OF VESTING SERVICE VESTED INTEREST
------------------------ ---------------
Less than 5 years 0 percent
5 years or more 100 percent
(d) Notwithstanding any other provision of Article VI, an
Eligible Employee shall become 100 percent vested in the
Company Matching Contribution Account and any Discretionary
Contribution Account maintained on his behalf at:
(i) Normal Retirement Age;
(ii) Early Retirement;
(iii) The time he incurs a Disability;
(iv) Death;
(v) Termination of the Plan; or
(vi) With respect to only an Eligible Employee's Company
Matching Contribution Account, termination of
employment due to the closing of a plant or facility or
divestment of all or part of an Employer (but only with
respect to Eligible Employees of such Employer who are
affected by such divestment).
(e) Notwithstanding the foregoing, if a Participant who is not
fully vested in the Account maintained on his behalf incurs
a 1-year Period of Severance and is subsequently rehired by
an Employer, his Years of Vesting Service shall be computed
by adding (i) his Years of Vesting Service earned prior to
his Reemployment Commencement Date to (ii) his Years of
Vesting Service that he accrues subsequent to his
Reemployment Commencement Date, provided that the
Participant's Period of Severance is shorter than the
greater of (i) 5 years, or (ii) the aggregate number of
Years of Vesting Service earned prior to his termination
date. If the Participant's Period of Severance equals or is
longer than the greater of (i) 5 years, or (ii) the
aggregate number of Years of Vesting Service earned prior to
his termination date, his Years of Vesting Service earned
prior to his initial date of termination shall be ignored
for all purposes.
6.2 Treatment of Forfeitures
------------------------
In the event that a Participant terminates employment and is less
than 100 percent vested in all Accounts, forfeitures of his
non-vested interest shall be used by the Employer to reduce
future Employer contributions and/or to pay reasonable Plan
expenses. Amounts shall be forfeited on the earlier of the date
of the distribution of his Vested Interest, or upon the fifth
anniversary of the Participant's Severance from Service.
6.3 Reinstatement of Accounts
-------------------------
If a former Participant whose termination of employment resulted
in a forfeiture pursuant to Section 6.2 is re-employed by an
Employer or any member of the Group, the Participant may elect
(upon giving 30 days' advance notice or such other period as may
be prescribed by the Administrative Committee) to repay the
Trustee, in cash, the full amount distributed to the Participant
in accordance with Article IX and such repayment shall be
allocated to the Participant's Account. In such event, the amount
of the forfeiture (unadjusted by any gains or losses) shall be
restored and credited as of the Reemployment Commencement Date to
the Participant's Account in such manner as the Administrative
Committee shall deem appropriate pursuant to such uniform and
nondiscriminatory rules as it shall from time to time prescribe.
If a distribution is a result of a termination of employment, the
time for repayment may not end before the earlier of 5 years
after the first Reemployment Commencement Date or the close of
the first period of 5 consecutive 1-year Periods of Severance
commencing after the distribution.
Any Account which is restored will be derived first from amounts
forfeited and not yet applied to reduce future Employer
contributions, and second, if such amounts are not sufficient to
make a full restoration, the Employer shall make an additional
contribution in the amount necessary to complete the restoration.
Years of Eligibility Service and Years of Vesting Service
credited with respect to such restored amount shall also be
restored.
ARTICLE VII
INVESTMENT OF ACCOUNTS
7.1 Investment of Accounts
----------------------
All contributions made to the Plan by or on behalf of a
Participant shall be invested in such Investment Fund or Funds
which the Administrative Committee, in its discretion, shall make
available to Participants, Beneficiaries and Eligible Employees.
The Administrative Committee may, at any time add to, subtract
from, or replace Investment Funds then being offered. The
Administrative Committee shall endeavor to provide Participants
with the opportunity to obtain sufficient information to make
informed decisions regarding all available Investment Funds.
A portion of an Investment Fund may be invested in short term
securities issued or guaranteed by the United States of America
or any agency or instrumentality thereof or any other investments
of a short term nature, including corporate obligations or
participations therein and through the medium of any common,
collective or commingled trust fund maintained by the Trustee
which is invested principally in property of the kind specified
in this paragraph. A portion of an Investment Fund may be
maintained in cash.
7.2 Investment Elections
--------------------
(a) When an Eligible Employee completes and returns the
Appropriate Form to become a Participant, he shall give
Notice regarding the investment of contributions made on his
behalf under the Plan. The Notice shall specify, in 5%
increments from 0% to 100%, the percentage of all future
Basic Salary Reduction Contributions, Company Matching
Contributions, Discretionary Contributions, Qualified
Contributions, Safe Harbor Matching Contributions, Savings
Contributions, Special Contributions and Transition
Contributions (in accordance with a single election to be
applied uniformly to all types of contributions) to be
invested in each Investment Fund which is then made
available under the Plan.
A Participant may change the investment elections made under
this Section 7.2(a) at any time by giving Notice to the
Administrative Committee or its designee within such time
and in accordance with such means as are designated by the
Administrative Committee and communicated to Participants
and Eligible Employees. Such Notice of change shall be
subject to the procedural specifications set forth above
(and, if applicable, subject to the limitations set forth in
Section 7.3) and, except as may otherwise be provided in the
Trust Agreement, shall be effective with respect to
contributions received by the Trustee (or otherwise
deposited into the Trust Fund) as of the Valuation Date on
which the Notice is received or as of the next following
Valuation Date, in accordance with procedures established by
the Administrative Committee, and communicated to
Participants and Eligible Employees.
(b) Each Participant and Beneficiary shall have the opportunity
to change the manner in which the Accounts maintained on his
behalf under the Plan are invested. Such opportunity shall
be exercised by giving Notice to the Administrative
Committee or its designee within such time and in accordance
with such means as are designated by the Administrative
Committee and communicated to Participants, Eligible
Employees and affected Beneficiaries. Subject to any minimum
dollar limitation which may be established by the
Administrative Committee from time to time, such Notice
shall specify, in a whole dollar amount or in 1% increments
from 0% to 100%, the dollar amount, or percentage of the
total Account maintained on behalf of the Participant or
Beneficiary which is to be invested in each Investment Fund
then made available. Except as may otherwise be set forth in
the Trust Agreement, such Notice shall be effective as of
the Valuation Date on which the Notice is received by the
Trustee or as of the next following Valuation Date, in
accordance with procedures established by the Administrative
Committee and communicated to Participants, Eligible
Employees and affected Beneficiaries. Notwithstanding any
provision of this Section 7.2(b) to the contrary, (i) the
election hereunder shall be subject to any contractual
limitations imposed on the direct transfer of assets between
given Investment Funds and (ii) in no event shall a
Participant or Beneficiary be permitted to effect a change
in the investment of his total Account to the extent that
the investment change would contradict any limitation then
in effect on transfers into or out of the Mettler Toledo
Stock Fund that has been established by the Administrative
Committee, in its discretion, and communicated to
Participants and Beneficiaries.
(c) Any investment elections or changes in elections under this
Section 7.2 may be limited or delayed by the Administrative
Committee or Trustee, if, in the judgment of such party,
giving immediate effect to such elections would adversely
affect the Account balances of a significant number of
Participants.
(d) In the event a Participant's or Beneficiary's investment
election is incomplete, the Participant or Beneficiary will
be assumed to have chosen to invest in such default fund as
is set forth in the Trust Agreement, or otherwise determined
by the Administrative Committee.
(e) Any investment election under the foregoing provisions of
this Section 7.2 shall remain in effect until changed by
another election under this Section.
(f) Each Participant, Eligible Employee and Beneficiary is
solely responsible for the selection of his investment
option. The Trustee, the Administrative Committee, the
Company, the Employer, and the directors, officers,
supervisors and other employees of the Company and the
Employer are not empowered to advise a Participant, Eligible
Employee or Beneficiary as to the manner in which any
portion of his Account shall be invested. The fact that an
investment option is available under the Plan shall not be
construed as a recommendation for investment in that
investment option.
7.3 Mettler Toledo Stock Fund
-------------------------
The provisions of this Section shall become applicable to the
extent to which Participants' and Beneficiaries' Accounts under
the Plan are invested in the Mettler Toledo Stock Fund.
(a) The Administrative Committee shall make available under the
Plan an investment fund which shall consist exclusively of
Common Stock; provided, however, that in the discretion of
the Trustee, within guidelines set by the Administrative
Committee, a portion of such fund may be held in short-term
interest-bearing investments or cash pending purchase of
Common Stock and to provide sufficient liquidity for
exchanges out of the fund, withdrawals and loans. Such
Investment Fund shall be referred to as the "Mettler Toledo
Stock Fund". Subject to any limitation on contributions
and/or transfers into or out of the Mettler Toledo Stock
Fund that the Administrative Committee may, in its
discretion, establish, a Participant or Beneficiary shall be
permitted to invest contributions made to the Plan on his
behalf and existing Accounts maintained under the Plan on
his behalf in the Mettler Toledo Stock Fund in accordance
with the provisions of Sections 7.2. Unless otherwise
limited under the terms of the Trust Agreement, the Trustee
may, in its discretion, purchase or sell Common Stock on the
open market or by privately-negotiated transaction; provided
however, that any such purchase or sale shall be made only
in exchange for fair market value as determined by the
Trustee and, provided further, that no commission shall be
charged to or paid by the Plan with respect to any purchase
or sale of Common Stock between the Plan and a party in
interest (as defined in Section 3(14) of ERISA). Any
distributions, dividends or other income received by the
Trustee with respect to the Mettler Toledo Stock Fund shall
be reinvested by the Trustee in the Mettler Toledo Stock
Fund. The Administrative Committee shall provide, at such
time and in such manner as it shall determine in its
discretion, whether share or unit accounting be performed
with respect to the Mettler Toledo Stock Fund.
(b) The restrictions contained in this Section 7.3(b) shall
apply to that portion of the Accounts maintained on behalf
of Participants or Beneficiaries which are invested in the
Mettler Toledo Stock Fund and, if and to the extent
necessary, any election made by a Participant or Beneficiary
under the Plan shall be deemed modified to be consistent
with this Section 7.3(b).
Notwithstanding the provisions of Section 7.2, and Articles
VIII and XV:
(i) No Participant or Beneficiary may, on the basis of
material nonpublic information with respect to the
Company or its affiliates, make an election permitted
by that Section or those Articles if (1) such election
would result in an exchange into or out of, loans from,
withdrawals from, or an increase or decrease in the
amount of contributions to the Mettler Toledo Stock
Fund, and (2) the transaction resulting from such
election is prohibited by Rule 10b-5.
(ii) No officer may make an election permitted by that
Section or those Articles if such election would result
in a transaction involving the Mettler Toledo Stock
Fund which is not an exempt transaction pursuant to
Rule 16b-3.
For purposes of this Section 7.3(b), the terms "Rule 10b-5"
and "Rule 16b-3" shall mean the rules, as amended, having
those designations promulgated by the United States
Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, and the terms
"affiliate" and "officer" shall have the meanings set forth
in Rule 12b-2 and Rule 16a-1(f), respectively, both as so
promulgated and amended.
7.4 Voting of Common Stock
----------------------
(a) Each Participant, Eligible Employee or Beneficiary who has
an Account maintained on his behalf with an investment in
the Mettler Toledo Stock Fund shall have the following
powers and responsibilities:
(i) Prior to each annual or special meeting of the
shareholders of Mettler-Toledo International Inc.
("MTI"), MTI shall cause to be sent to each person
described in Section 7.4(a), a copy of the proxy
solicitation material for such meeting, together with a
form requesting confidential voting instructions for
the voting of the Common Stock held in the Mettler
Toledo Stock Fund in proportion to the number of units
of the Mettler Toledo Stock Fund held by such a
person's Accounts or, if applicable, the number of full
shares of Common Stock credited under the Mettler
Toledo Stock Fund to such a person's Accounts. Upon
receipt of such a person's instructions, the Trustee
shall then vote in person, or by proxy, such Common
Stock as so instructed.
(ii) MTI shall cause the Trustee to furnish, as soon as
practicable after receipt by the Trustee, to each
person described in Section 7.4(a), notice of any
tender or exchange offer for, or a request or
invitation for tenders or exchanges of, Common Stock
made to the Trustee. The Trustee shall request from
each such person instructions as to the tendering or
exchanging of Common Stock held in the Mettler Toledo
Stock Fund in proportion to the number of units of the
Mettler Toledo Stock Fund held by such a person's
Accounts or, if applicable, the number of full shares
of Common Stock credited under the Mettler Toledo Stock
Fund to such a person's Accounts. Within the time
specified by the notice of any tender or exchange offer
for, or request or invitation for tenders or exchanges
of, Common Stock, the Trustee shall tender or exchange
such Common Stock as to which the Trustee has received
instructions to tender or exchange from the persons
described in Section 7.4(a).
(iii)Instructions received from the persons described in
Section 7.4(a) by the Trustee regarding the voting,
tendering, or exchanging of Common Stock held in the
Mettler Toledo Stock Fund shall be held in strictest
confidence and shall not be divulged to any other
person, including directors, officers or employees of
MTI and of the Company, except as otherwise required by
law, regulation or lawful process.
(b) The Trustee shall, in its discretion, vote Common Stock for
which the Trustee does not receive affirmative direction and
shall, in its discretion, determine whether to tender or
exchange Common Stock with respect to which the Trustee does
not receive any affirmative direction.
ARTICLE VIII
WITHDRAWALS DURING EMPLOYMENT
8.1 Basic Withdrawals
-----------------
Subject to subsections (d), (e) and (f) below, a Participant may,
by giving Notice to the Administrative Committee, elect to
withdraw amounts during employment in accordance with the
following order of withdrawal options; provided, however, that
any Participant electing a withdrawal from the options below
shall be required to exhaust all withdrawal possibilities under
the options preceding the withdrawal option elected:
(a) A Participant who is in the active employment of an Employer
and who has attained age 65 may withdraw all or any portion
of the Account maintained on his behalf in which he has a
Vested Interest.
(b) A Participant who is in the active employment of an Employer
and who has attained age 59-1/2 but has not attained age 65
may withdraw from the Account maintained on his behalf
according to the following schedule:
(i) All or any portion of the Account that is attributable
to contributions made prior to July 1, 2002 and in
which he has a Vested Interest;
(ii) All or any portion of the Rollover Account that is
attributable to Rollover Contributions made on and
after July 1, 2002; and
(iii)All or any portion of the Basic Salary Reduction
Contribution Account that is attributable to Basic
Salary Reduction Contributions made on and after July
1, 2002.
(c) A Participant who is in the active employment of an Employer
and who has not yet attained age 59-1/2 may withdraw from
the Account maintained on his behalf according to the
following schedule:
(i) A Participant who has made a Rollover Contribution may
withdraw all or any portion of the Rollover Account
maintained on his behalf;
(ii) A Participant who has made contributions to the Prior
Reliance Electric Plan and/or the Reliance Electric
Plan may withdraw all or any portion of the Basic
Employee Contribution Account and/or After-Tax
Contribution Account maintained on his behalf;
(iii)All or any portion of the Company Matching
Contribution Account maintained on the Participant's
behalf that is attributable to Company Matching
Contributions made prior to July 1, 2002 and in which
he has a Vested Interest; provided that if such
Participant has participated in the Plan for less than
five years such amount shall not include Company
Matching Contributions made to the Plan within 24
months prior to the effective date of the withdrawal;
and
(iv) For a Participant who suffers a Hardship (as defined in
Section 8.2), such portion of the Account maintained on
the Participant's behalf in which he has a Vested
Interest, provided that if any portion of the
withdrawal is taken from the Participant's Basic Salary
Reduction Contribution Account, such withdrawal must
exclude earnings credited to such Account after
December 31, 1988, and the withdrawal must satisfy the
provisions of Section 8.2.
(d) Withdrawals of a Vested Interest shall be made from the
Investment Funds maintained under the Plan in such order of
priority as the Administrative Committee, pursuant to a
uniform and nondiscriminatory policy, such direct.
(e) Withdrawals shall be effective as of the first day of the
next calendar year quarter provided that Notice has been
given to the Administrative Committee at least thirty (30)
days prior to such quarterly date. Partial withdrawals from
any of the above categories may be made only in multiples of
$100.
(f) For periods on and after January 1, 2000 and before July 1,
2002, a Participant who withdraws any portion of the Vested
Interest in the Account maintained on his behalf under
Section 8.1(c)(iii) above shall be suspended from receiving
an allocation of Company Matching Contributions for a period
of six months following the effective date of such
withdrawal. Except as provided in the preceding sentence and
in Section 8.2(b) below, a Participant exercising the
withdrawal provisions of this Section 8.1 shall not have his
participation in the Plan restricted on account of such
withdrawal.
8.2 Hardship Withdrawals
--------------------
For purposes of this Plan, the term "Hardship" means a
circumstance resulting from an immediate and heavy financial need
of the Participant. The Administrative Committee shall not allow
a Hardship distribution to be made to a Participant unless the
requirements of subsections (a) and (b) below are satisfied:
(a) The Participant may incur a Hardship arising from one of the
following expenses:
(i) Medical expenses described in Section 213(d) of the
Code previously incurred by the Participant, the
Participant's spouse or dependents (as defined in
Section 152 of the Code) or necessary for these persons
to obtain medical care described in Section 213(d) of
the Code;
(ii) Costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage
payments thereon);
(iii)The cost of tuition and related educational fees for
the next 12 months of post-secondary education for the
Participant, the Participant's spouse, children, or
dependents; or
(iv) The amount needed to prevent the eviction of the
Participant from his principal residence or foreclosure
of a mortgage on his principal residence.
(b) The distribution by reason of Hardship:
(i) May not be more than the amount of the Participant's
immediate and heavy financial need, provided, however,
that such need may include amounts necessary to pay
income taxes and penalties reasonably anticipated to
result from the distribution;
(ii) May not be made unless the Participant has obtained all
distributions, other than Hardship withdrawals, and all
non-taxable loans that are currently available under
all qualified and nonqualified plans of all members of
the Group;
(iii)May not be made unless the Participant is suspended
from having Basic Salary Reduction Contributions and
Company Matching Contributions made on his behalf to
the Plan (and he is suspended from making employee
contributions and elective contributions to all other
qualified and nonqualified plans of deferred
compensation, inclusive of stock option, stock
purchase, and similar plans maintained by an Employer,
excluding mandatory employee contributions to a defined
benefit plan or health or welfare benefit plans) for
the six-month period beginning on the effective date of
the Hardship withdrawal pursuant to this Section 8.2;
and
(iv) For Hardship withdrawals taken before January 1, 2002,
will result in a limitation on the amount of Basic
Salary Reduction Contributions which may be made on a
Participant's behalf under the Plan (and all other
plans maintained by a member of the Group) for the
taxable year following the taxable year of the Hardship
withdrawal, with such limitation being equal to the
Code Section 402(g) limit for such following taxable
year less the amount of such Participant's Basic Salary
Reduction Contributions for the taxable year of the
Hardship withdrawal.
After the 6-month period of suspension under (b)(iii) above
ceases, the Participant may resume contributions hereunder by
giving Notice in accordance with Section 2.2.
The determination of the existence of a Hardship and the
determination of the amount required to be distributed to meet
the need created by the Hardship shall be made by the
Administrative Committee pursuant to uniform and
nondiscriminatory rules, consistent with the requirements of the
Code and applicable regulations. The Administrative Committee may
require documentation from the Participant for this purpose. The
Administrative Committee shall reasonably rely on the
documentation submitted by the Participant, unless the
Administrative Committee has actual knowledge to the contrary.
The Company may, by amendment, change the conditions necessary to
obtain a Hardship withdrawal, or may modify or discontinue the
Hardship withdrawal provisions of this Plan, to the extent
permitted by applicable law or regulation.
8.3 Payment of Withdrawals
----------------------
Any amounts withdrawn under Sections 8.1 and 8.2 shall be paid to
a Participant as soon as practicable after the Valuation Date as
of which the withdrawal election is effective. The withdrawal may
be in the form of cash or, to the extent all or a portion of the
Participant's applicable Accounts are invested in the Mettler
Toledo Stock Fund, such amount shall be paid, at the
Participant's election, in either (i) whole units of Common Stock
(with fractional units being distributed in cash), (ii) cash, or
(iii) a combination of Common Stock and cash.
8.4 Values
------
All withdrawals under Sections 8.1 and 8.2 shall be based on the
value of the Account maintained on behalf of the Participant as
of the applicable Valuation Date on which the withdrawal election
is effective. Such date shall be determined by the Administrative
Committee, in its discretion, under nondiscriminatory procedures
applicable to all eligible Participants.
Notwithstanding the foregoing, the Administrative Committee may
require a valuation as of the Valuation Date following the date
the request for a withdrawal was received in the event that it
determines that, due to a decline in the market value of all
Participants' Accounts, it would be in the best interest of
Participants and Beneficiaries to use the later Valuation Date.
The preceding sentence shall not apply unless the Administrative
Committee determines a fixed period within which all withdrawal
requests will be valued as of such later Valuation Date, and
announces such decision, and such period, to all Participants.
ARTICLE IX
DISTRIBUTION OF BENEFITS
9.1 Amount of Distribution
----------------------
Upon a Participant's retirement, death, Disability, or other
termination of employment with an Employer and other members of
the Group, the Participant or his Beneficiary, as the case may
be, shall be entitled to a distribution of the Vested Interest in
his Accounts, subject to the following provisions of this Article
IX. Notwithstanding anything in this Section 9.1 to the contrary,
Section 2.4(b) applies to a Participant who ceases to meet the
definition of an Eligible Employee but continues to be in the
employ of an Employer or other member of the Group.
9.2 Payment of Distribution
-----------------------
(a) As soon as practicable upon his termination of employment
with the Group for any reason (including Disability or Early
Retirement) or the occurrence of his Normal Retirement Date,
a Participant shall be eligible to elect payment of his
Vested Interest. Payment shall be made in a single lump sum
distribution equal to the value of his Vested Interest;
provided, however, that effective January 1, 2000 and
subject to the involuntary distribution provision of Section
9.2(c), the Participant may elect payment of his Vested
Interest in the form of substantially equal periodic
installments over a period not in excess of his life
expectancy. Notwithstanding the foregoing (i) an Employer,
in the context of a business transaction, may arrange a
transfer of assets and liabilities from the Plan to a
qualified plan maintained by another party to the
transaction who will, in connection with the transaction,
employ individuals who are Participants hereunder (until
such transfer of assets and liabilities) and (ii) any person
who has satisfied the service requirements for Early
Retirement, but terminates employment prior to attaining the
age requirements set forth therein shall nevertheless be
entitled upon satisfaction of such age requirements, to
receive distribution of his Plan benefit in the same manner
as those persons who satisfy both the age and service
requirements for an Early Retirement benefit hereunder.
(b) The value of the Vested Interest in a Participant's Accounts
shall be determined as of the Valuation Date on which the
distribution election is effective. Such date shall be
determined by the Administrative Committee, in its
discretion, under nondiscriminatory procedures applicable to
all Participants. Such Valuation Date shall follow the
"Election Period" (as hereinafter defined); provided,
however, that a Participant or Beneficiary may affirmatively
elect an immediate account distribution determined as of a
Valuation Date which falls within the Election Period and on
which authorized distribution directions are received by the
Trustee from the Administrative Committee or its delegate.
For purposes hereof, the "Election Period" shall mean the
30-day period commencing on the date on which the
Administrative Committee or its delegate provides the
Participant or Beneficiary with information regarding Plan
distributions, including the Participant's or Beneficiary's
rights with respect to a distribution in the form of a
direct rollover and, if the Vested Interest is in excess of
the $5,000 threshold described in subsection (c) below, the
right of the Participant to defer receipt of the
distribution.
(c) If a Participant's Vested Interest as of the applicable
Valuation Date is not in excess of $5,000, distribution of
such Vested Interest shall be made as soon as practicable
thereafter in a lump sum in cash. With respect to
distributions made after December 31, 2001, a Participant's
Vested Interest for purposes of this subsection (c) shall be
determined without regard to that portion of the Account
that is attributable to Rollover Contributions.
(d) A Participant who terminated employment and whose Vested
Interest may not be paid out under the preceding sentence
must elect to either have an immediate distribution of his
Vested Interest or to defer said distribution. If a
Participant elects to defer said distribution, the election
may remain in effect until the later of the dates stated in
Sections 9.6 and 9.7, provided, however, that subject to
uniform administrative procedures adopted by the
Administrative Committee, such Participant shall have the
opportunity to elect an immediate distribution of his Vested
Interest as of any Valuation Date after such election is
made. If a Participant dies while in deferred status, the
Account will be distributed to the Participant's Beneficiary
in accordance with Section 9.8.
(e) All distributions shall be made in cash; provided, however,
that to the extent all or a portion of a Participant's
Vested Interest is invested in the Mettler Toledo Stock
Fund, such amount shall be paid, at the election of the
Participant, in either (i) whole units of Common Stock (with
fractional units being distributed in cash), (ii) cash, or
(iii) a combination of Common Stock and cash. In the event
distribution is made in the absence of a Participant's
distribution election, that portion of an Account that is
invested in the Mettler Toledo Stock Fund at the time of
distribution shall be paid in cash.
(f) A Participant who terminates employment shall be given an
Appropriate Form. The form must be filled out and returned
to the Company within 60 days after the Participant's
termination of employment to immediately process a
distribution. Failure to return the form within 60 days
after the Participant's termination will result in his
distribution being automatically deferred until the
effective date of a Participant's election to receive an
immediate distribution as described herein.
9.3 Deferred Accounts
-----------------
In any case in which a Participant has terminated employment but
distribution of his Accounts has not yet occurred, such Accounts
shall be retained and administered under the Plan until such
Accounts are distributed. Except as may otherwise be required by
applicable law, the Administrative Committee may establish and
change from time to time rules and restrictions applicable to the
administration of any Accounts held on behalf of any such
Participants (which rules and restrictions may differ from those
generally applicable to active Participants), and the
Administrative Committee may assess against the Accounts of any
such Participant any reasonable costs of administering the same.
Notwithstanding the foregoing, in no event will such a
Participant be allowed to make withdrawals in accordance with
Article VIII from such Accounts which have been deferred.
9.4 Distribution Requirements Applicable to Basic Salary Reduction
Contributions
--------------------------------------------------------------
Basic Salary Reduction Contributions and the income allocable
thereto shall in no event be distributed to a Participant or
Beneficiary, as the case may be, before the earlier of such
Participant's retirement, death, Disability, termination of
employment, the attainment by the Participant of age 59-1/2, the
Participant's Hardship, as described in Section 8.2 of the Plan,
or the termination of the Plan without the establishment or
maintenance of a successor plan within the meaning of Treasury
Regulations and with respect to which a lump sum payment is made.
9.5 Alienation of Benefits
----------------------
Except as otherwise provided by law, no benefit, interest, or
payment under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, whether voluntary or involuntary, and no
attempt to so anticipate, alienate, sell, transfer, assign,
pledge, encumber or charge the same shall be valid nor shall any
such benefit, interest, or payment be in any way liable for or
subject to the debts, contracts, liabilities, engagements or
torts of the person entitled to such benefit, interest, or
payment or subject to attachment, garnishment, levy, execution or
other legal or equitable process.
Notwithstanding the foregoing, the creation, assignment or
recognition of a right to any benefit payable with respect to a
Participant pursuant to a "qualified domestic relations order"
(as defined in Section 414(p) of the Code) shall not be treated
as an assignment or alienation prohibited by this Section 9.5.
Any other provision of the Plan to the contrary notwithstanding,
if a qualified domestic relations order requires the distribution
of all or part of a Participant's benefits under the Plan, the
establishment or acknowledgment of the alternate payee's right to
benefits under the Plan in accordance with the terms of such
qualified domestic relations order shall in all events be applied
in a manner consistent with the terms of the Plan.
Notwithstanding the foregoing, in no event shall the recognition
of an alternate payee's rights in accordance with this Section
9.5 be deemed to include the right to make a withdrawal pursuant
to the provisions of Article VIII or to receive any benefits in
the form of a partial payment.
Any Accounts maintained on behalf of an alternate payee in
accordance with this Section 9.5 shall in all events be invested
in such Investment Fund as the Administrative Committee may from
time to time specify.
Any other provision of the Plan to the contrary notwithstanding,
the Administrative Committee is authorized, pursuant to such
uniform and nondiscriminatory rules as it shall establish which
shall be consistent with applicable law and the terms of the
applicable qualified domestic relations order, to payout as a
single sum, an alternate payee's Vested Interest under the Plan
if the value of such interest, as of the applicable valuation
date, is not in excess of $5,000. In addition, if an alternate
payee's Vested Interest under the Plan exceeds $5,000 and the
alternate payee is not entitled to a share of future Employer
contributions under the Plan, the alternate payee may elect to be
paid such Vested Interest as soon as administratively practicable
in the form of a lump sum or may elect to receive such Vested
Interest at any time after the "earliest retirement age"
described in Section 414(p)(4)(B) of the Code.
9.6 Latest Commencement of Benefits
-------------------------------
Unless a Participant otherwise elects, a Participant's benefits
under the Plan shall begin not later than the 60th day after the
close of the Plan Year in which the latest of the following
events occur (a) the Participant attains age 65; (b) the 10th
anniversary of the date the Participant's participation in the
Plan commences; (c) the Participant's employment with the Company
or any Employer is terminated.
9.7 Mandatory Commencement of Benefits
----------------------------------
Notwithstanding any inconsistent provision of the Plan and
effective January 1, 2003, all distributions under the Plan shall
be made in accordance with Code Section 401(a)(9), including the
incidental death benefit requirements of Code Section
401(a)(9)(G), and Treasury Regulations Sections 1.401(a)(9)-1
through 1.401(a)(9)-9. Specifically, distribution of the
Participant's interest shall:
(i) Be completed no later than the Required Beginning Date;
or
(ii) Commence not later than the Required Beginning Date
with distribution to the Participant made over the life
of the Participant or joint lives of the Participant
and a designated beneficiary or a period not longer
than the life of the Participant or joint lives of the
Participants and a designated beneficiary.
For purposes of this Section 9.7, Required Beginning Date
shall mean April 1 of the calendar year following the later
of the calendar year in which the Participant attains age 70
1/2 or the calendar year in which the Participant terminates
employment or retires; provided, however, if the Participant
is a five-percent owner (as defined in Code Section 416),
the Required Beginning Date shall be April 1 of the calendar
year following the calendar year in which the Participant
attains age 70 1/2, regardless of the date that the
five-percent owner terminates employment or retires.
9.8 Death Benefits
--------------
If a Participant shall die before complete distribution of his
Vested Interest, the undistributed balance of such Vested
Interest shall be distributed to his Beneficiary. Each
Participant shall have the right from time to time to file with
the Administrative Committee a designation of Beneficiary to
receive death benefits. Upon the death of the Participant, the
remaining balance of the Participant's Vested Interest shall be
distributed to his Beneficiary in a lump sum. Such lump sum must
be paid within five years after the date of the Participant's
death.
9.9 Distributions Upon Plan Termination or other Events
---------------------------------------------------
Upon termination of the Plan, complete discontinuance of
contributions by Employers, or closing or divestment of any
Employer (but only with respect to Eligible Employees of such
Employer), Vested Interests of Participants shall be distributed
at the time and in the manner as may be decided on by the
Administrative Committee upon rules that will be uniformly and
nondiscriminatory applied.
9.10 Identity and Competence of Payees
---------------------------------
If the Administrative Committee receives evidence satisfactory to
it that a person entitled to receive any benefit under the Plan
is physically or mentally incompetent to receive such benefit and
to give a valid release therefore, or is a minor, and that
another person or an institution is then maintaining or has
custody of such person, unless claim shall have been made
therefore by a duly appointed guardian, committee or other legal
representative, the Administrative Committee may authorize
payment of such benefit to such other person or institution and
the release of such other person or institution shall be a valid
and complete discharge for the payment of such benefit.
Every person becoming entitled to any benefits under the Plan
shall furnish the Administrative Committee with such information
as it may require, including, but not limited to, proof of age
relating to himself and any person nominated as a Beneficiary.
9.11 Direct Rollover of Eligible Rollover Distribution
-------------------------------------------------
Notwithstanding any provision of the Plan to the contrary a
Distributee may elect, subject to provisions adopted by the
Administrative Committee which shall be consistent with income
tax regulations, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover to such plan.
For purposes of this Section:
(a) The term "Distributee" shall mean an Employee or former
Employee. In addition, such an individual's surviving spouse
or such an individual's spouse or former spouse who is an
alternate payee within the meaning of Section 414(p)(8) of
the Code are Distributees with respect to the interest of
the spouse or former spouse.
(b) The term "Eligible Rollover Distribution" shall mean any
distribution of all or any portion of the balance to the
credit of the Distributee other than any distribution that
is one of a series of substantially equal periodic payments
made for the life (or life expectancy) of the Distributee or
the joint lives (or joint life expectancies) of the
Distributee and his beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the
Code; that portion of a Hardship withdrawal that is
attributable to Basic Salary Reduction Contributions; and
for periods before January 1, 2002, the portion of any
distribution that is not includible in gross income. On and
after January 1, 2002, a portion of a distribution shall not
fail to be an Eligible Rollover Distribution merely because
the portion consists of after-tax employee contributions
which are not includible in gross income. However, such
portion may be paid only to an individual retirement account
or annuity described in Code Section 408(a) or (b), or to a
qualified defined contribution plan described in Code
Section 401(a) or 403(a) that agrees to separately account
for amounts so transferred, including separately accounting
for the portion of such distribution which is includible in
gross income and the portion of such distribution which is
not so includible.
(c) The term "Eligible Retirement Plan" shall mean an individual
retirement account or annuity, as described in Code Sections
408(a) and 408(b), respectively, an annuity plan described
in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code that accepts that
Distributee's Eligible Rollover Distribution. In addition,
with respect to Eligible Rollover Distributions made after
December 31, 2001, an Eligible Retirement Plan shall also
mean an annuity contract described in Section 403(b) of the
Code and an eligible plan under Section 457(b) of the Code
which is maintained by a state, political subdivision of a
state, or any agency or instrumentality of a state or
political subdivision of a state and which agrees to
separately account for amounts transferred into such plan
from this Plan. However, with respect to Eligible Rollover
Distributions made before January 1, 2002 to a surviving
spouse, an "Eligible Retirement Plan" is an individual
retirement account or annuity.
(d) The term "Direct Rollover" shall mean a payment by the Plan
to the Eligible Retirement Plan specified by the
Distributee.
ARTICLE X
ADMINISTRATION OF THE PLAN
10.1 Plan Administrator
------------------
The Company shall be the "plan administrator" of the Plan within
the meaning of ERISA. Administration of the Plan shall be the
responsibility of the Company except to the extent that:
(a) Administrative responsibilities have been delegated to the
Administrative Committee in accordance with this Article X;
and
(b) Authority to hold the Trust Fund of the Plan has been
delegated to the Trustee and authority to direct the
investment and reinvestment of the Trust Fund has been
delegated to the Administrative Committee; and
(c) Authority to act for the Company has otherwise been reserved
to the Board of Directors.
The Company shall be the "named fiduciary" for purposes of ERISA;
provided, however, that Participants and Beneficiaries with
Accounts maintained on their behalf under the Plan shall be
considered "named fiduciaries" solely to the extent of those
fiduciary duties and responsibilities which are directly related
to the exercise of voting rights with respect to Plan interests
invested in the Mettler Toledo Stock Fund (and not to other
aspects of Plan operation and/or administration).
10.2 Appointment of the Administrative Committee
-------------------------------------------
The Administrative Committee shall consist of not less than three
persons appointed from time to time by the Board of Directors.
The members of the Administrative Committee shall serve at the
pleasure of the Board of Directors without compensation and
without bond or other security at the pleasure of such Board. Any
member of the Administrative Committee may resign by delivering
his written resignation to the Board of Directors.
The members of the Administrative Committee may appoint from
their number such committees with such powers as they shall
determine; may authorize one or more of their number or any agent
to execute or deliver any instrument or make any payment on
behalf of the Administrative Committee; and may retain counsel,
employ agents and obtain clerical, medical, actuarial and
accounting services as the Administrative Committee may require
or deem advisable from time to time. The Administrative Committee
shall hold meetings upon notice, at such place or places, and at
such time or times as it may from time to time determine.
A majority of the members of the Administrative Committee then in
office shall constitute a quorum for the transaction of business
at any meeting of the Administrative Committee. All action by the
Administrative Committee shall be taken at a meeting of the
Administrative Committee. The vote of a majority of the members
present at the time of the vote, if a quorum is present at such
time, shall be the act of the Administrative Committee. Any
action required or permitted to be taken at any meeting of the
Administrative Committee may be taken without a meeting, if a
majority of the members of the Administrative Committee consent
thereto in writing.
Members of the Administrative Committee may be reimbursed for
expenses properly and actually incurred in the performance of
their duties.
10.3 Powers of the Administrative Committee
--------------------------------------
The Administrative Committee shall have sole and absolute
discretion to interpret and apply the provisions of the Plan to
determine the rights and status of Eligible Employees,
Participants and all others under the Plan, to decide disputes
arising under the Plan, and to make any determinations and
findings of fact with respect to benefits payable hereunder and
the persons entitled thereto as may be required for any purpose
under the Plan. Without limiting the generality of the above, the
Administrative Committee is hereby granted the following
authority which it shall discharge in its sole and absolute
discretion in accordance with Plan provisions as interpreted by
the Administrative Committee:
(a) To make all determinations of fact relating to the
eligibility of any Employee to become a Participant, to make
Basic Salary Reduction Contributions, to receive allocations
of Company Matching Contributions, Discretionary
Contributions, Safe Harbor Matching Contributions, Savings
Contributions, Special Contributions, Transition
Contributions and/or Qualified Contributions and to receive
distributions from the Plan.
(b) To authorize the Trustee to make payment of benefits from
the Trust Fund to Participants and Beneficiaries entitled to
such benefits under the Plan and to establish procedures
governing the manner in which such authorizations will be
made.
(c) To develop procedures for the establishment and verification
of service, Compensation and Eligible Earnings of
Participants, and, after affording Participants and the
Employer an opportunity to make objection with respect
thereto, to establish such facts conclusively from time to
time in advance of retirement.
(d) To obtain from the Employer, Participants and Beneficiaries
such information as shall be necessary for the proper
administration of the Plan.
(e) To establish rules and procedures relating to the
administration of the Plan and the transaction of its
business and to enforce the rules and procedures in the
manner in which it sees fit.
(f) To retain counsel, employ agents and provide for such
clerical, accounting and consulting services as may be
necessary or appropriate in connection with the
administration of the Plan.
(g) To perform all reporting and disclosure requirements imposed
upon the Plan by ERISA, the Code, the Securities Act of
1933, as amended, the Securities and Exchange Act of 1934,
as amended, or any other lawful authority.
(h) To ensure that procedures are established which are
sufficient to safeguard the confidentiality of information
relating to the purchase, holding, and sale of Common Stock
held in the Mettler Toledo Stock Fund and the exercise of
voting, tender, and similar rights with respect to Common
Stock held in the Mettler Toledo Stock Fund and to ensure
that such procedures are being followed.
(i) To appoint and remove an independent fiduciary for the
purpose of carrying-out activities relating to any
situations which the Administrative Committee determines
involves an unreasonable potential for undue Employer
influence with regard to the direct or indirect exercise of
shareholder rights with respect to Common Stock holdings in
the Mettler Toledo Stock Fund.
(j) To take such steps as it, in its discretion, considers
necessary or appropriate to remedy any inequity under the
Plan that results from incorrect information received or
communicated or as the consequence of administrative error.
(k) To correct any defect, reconcile any inconsistency or supply
any omission under the Plan.
(l) To allocate among its members or, except as provided
otherwise herein, to delegate to other persons all or a
portion of its powers and duties as it sees fit.
(m) To exercise such other authority and responsibility as is
specifically assigned to it under the terms of the Plan and
to perform any other acts necessary to the performance of
its powers and duties.
All powers of the Administrative Committee shall be exercised in
a uniform manner consistent with all provisions of the Plan
unless the power is being exercised in order to correct or
reconcile provisions which are inconsistent. All decisions of the
Administrative Committee, including those regarding the facts of
any case, the interpretation of any provision of the Plan or its
application to any case, and as to any other interpretative
matter or other determination or question under the Plan shall be
final and binding upon the Employer, Eligible Employees,
Participants, Beneficiaries and all other persons, subject to the
provisions of Section 10.5. Any action taken by the
Administrative Committee with respect to the rights or benefits
of any person under the Plan shall be revocable by the
Administrative Committee as to payments or distributions from the
Trust Fund not theretofore made pursuant to such action; and
appropriate adjustments may be made in future payments or
distributions to a Participant or Beneficiary to offset any
excess payment or make up for any underpayment previously made to
such Participant or Beneficiary from the Trust Fund. No ruling or
decision of the Administrative Committee in any one case shall
create a basis for an adjustment in any other case prior to the
date of written filing of each specific claim.
10.4 Individual Accounts
-------------------
The Administrative Committee shall maintain, or cause to be
maintained, records showing the individual balances in each
Account maintained on behalf of Participants and other persons
under the Plan. However, maintenance of those records and
Accounts shall not require any segregation of the funds of the
Plan.
10.5 Claim Procedures
----------------
For purposes of the Plan, a claim for benefit is a written
application for benefit filed on an Appropriate Form with the
Administrative Committee. In the event that any Participant,
Beneficiary, alternate payee or other person (hereinafter
referred to in this Section as the "Claimant") claims to be
entitled to a benefit under the Plan, and the Administrative
Committee determines that such claim should be denied in whole or
in part, the Administrative Committee shall, in writing, notify
such Claimant within 90 days of receipt of such claim that his
claim has been denied, setting forth the specific reasons for
such denial. Such notification shall be written in a manner
reasonably expected to be understood by such Claimant and shall
set forth the pertinent sections of the Plan relied on, an
explanation of additional material or information, if any,
necessary for the Claimant to perfect the claim, a statement of
why the material or information is necessary, for periods on and
after January 1, 2002, a statement of the Claimant's right to
bring a civil action under Section 502(a) of ERISA and an
explanation of the Plan's claims review procedure, including the
time limits applicable to such procedure. Within 90 days after
the mailing or delivery by the Administrative Committee of such
notice, such Claimant may request, by mailing or delivery of
written notice to the Administrative Committee, a review and/or
hearing by the Administrative Committee of the decision denying
the claim. If the Claimant fails to request such a review and/or
hearing within such 90 day period, it shall be conclusively
determined for all purposes of this Plan that the denial of such
claim by the Administrative Committee is correct. If such
Claimant requests a hearing within such 90 day period, the
Administrative Committee shall designate a time (which time shall
be not less than 7 nor more than 60 days from the date of such
Claimant's notice to the Administrative Committee) and a place
for such hearing, and shall promptly notify such Claimant of such
time and place. If only a review is requested, the Claimant shall
have 30 days after filing a request for review to submit
additional written material in support of the claim. As part of
such review, the Claimant or his duly authorized representative
shall have the right to review, upon request and free of charge,
all documents, records or other information relevant to the claim
and to submit any written comments, documents, or records
relating to the claim to the Administrative Committee. Following
a request for review, the Administrative Committee shall provide
written notification of its decision to the Claimant. Such
decision shall take into account all comments, documents, records
and other information properly submitted by the Claimant, whether
or not such information was considered in the original claim
determination. The decision on review will be binding on all
parties, will be written in such a manner calculated to be
understood by the Claimant, will contain specific reasons for the
decision and specific references to the Plan provisions on which
its decision is based, will indicate that the Claimant may
review, upon request and free of charge, all documents, records
or other information relevant to the claim and, for periods on
and after January 1, 2002, will contain a statement of the
Claimant's right to bring a civil action under Section 502(a) of
ERISA. Such decision on review shall be made within a reasonable
time period but not later than 60 days after receiving the
request, unless special circumstances require an extension for
processing the review. If such an extension is required, the
Administrative Committee shall notify the Claimant of such
special circumstances and of the date, no later than 120 days
after the original date the review was requested, on which the
Administrative Committee will notify the Claimant of its
decision. If the determination of the Administrative Committee is
favorable to the Claimant, it shall be binding and conclusive. If
the determination of the Administrative Committee is adverse to
such Claimant, it shall be binding and conclusive unless the
Claimant notifies the Administrative Committee within 90 days
after the mailing or delivery to him by the Administrative
Committee of its determination that he intends to institute legal
proceedings challenging the determination of the Administrative
Committee, and actually institutes such legal proceeding within
180 days after such mailing or delivery.
10.6 Appointment of Accountant
-------------------------
The Company shall engage a "qualified public accountant" to
prepare such audited financial statements of the operation of the
Plan as shall be required by ERISA.
10.7 Indemnification of Certain Persons
----------------------------------
The Company shall indemnify and hold harmless all members of the
Administrative Committee from any and all liability imposed,
whether individually or jointly, under ERISA and under any
similar legislation, with respect to any action or omission as a
fiduciary of the Plan, unless such persons have knowingly
participated in, or have knowingly undertaken to conceal an act
or omission knowing that such act or omission was a breach of
their fiduciary duty. The Company may purchase insurance for the
Administrative Committee to cover any of its potential
liabilities with respect to the Plan.
10.8 Special Withdrawal Period
-------------------------
The Administrative Committee may, once a year, suspend the
requirements of Section 8.1 of the Plan to provide for a "special
withdrawal period" which shall be subject to the limitations of
the Plan and/or permit an additional increase or decrease in the
Basic Salary Reduction Contribution rate as stated in Section 3.3
of the Plan.
10.9 Plan Expenses
-------------
All reasonable expenses, taxes and fees of the Plan, the
Administrative Committee and the Trustee incurred in the
administration of the Plan and Trust Fund shall be paid from the
Trust Fund; provided, however that the obligation of the Trust
Fund to pay such expenses, taxes and fees shall cease to exist to
the extent that the same are paid, at the discretion of the
Company, by the Employers or other members of the Group.
ARTICLE XI
OPERATION OF THE TRUST FUND
11.1 Trust Fund; Trustee
-------------------
(a) All the funds of the Plan shall be held by a Trustee or
Trustees appointed from time to time by the Board of
Directors, in trust under a Trust Agreement adopted, or as
amended, by the Board for use in providing the benefits of
the Plan and paying its reasonable expenses not paid
directly by any Employer; and no part of the corpus or
income of the Trust Fund shall be used for, or diverted to,
purposes other than for the exclusive benefit of
Participants or their Beneficiaries under the Plan and for
the payment of the reasonable expenses of the Plan, prior to
the satisfaction of all liabilities with respect to them,
provided that any forfeitures arising from termination of
service or for other reasons shall be used to reduce
Employer contributions otherwise payable, in accordance with
Article VI. No person shall have any interest in or right to
any part of the earnings of the Trust Fund or any rights in,
or to, or under the Trust Fund or any part of the assets
thereof, except as and to the extent expressly provided in
the Plan and in the Trust Agreement.
(b) The Trustee or Trustees also shall conform to procedures
established by the Administrative Committee for disbursal of
funds of the Plan. The Trustee or Trustees shall not be
liable for any act performed while subject to directions of
the Administrative Committee made in accordance with the
terms of the Plan.
11.2 Appointment of Investment Manager
---------------------------------
The Board of Directors may, in its discretion, appoint one or
more investment managers (within the meaning of Section 3(38) of
ERISA) to manage all or part of the assets of the Plan, including
the power to acquire and dispose of said assets, as the Board
shall designate. In that event, authority over and responsibility
for the management of the assets so designated shall be the sole
responsibility of that investment manager.
ARTICLE XII
ADOPTION, AMENDMENT, TERMINATION AND MERGER
12.1 Adoption of the Plan
--------------------
The adoption of this Plan, and of any amendments thereof adopted
subsequently, shall be conditioned on qualification of the Plan
under Section 401(a) of the Code.
12.2 Right to Amend
--------------
This Plan may be wholly or partially amended or otherwise
modified at any time by written instrument executed by the
President or a Vice President of the Company, provided, however,
that:
(a) No amendment or modification may be made, at any time prior
to the satisfaction of all liabilities under the Plan with
respect to Participants and their Beneficiaries and with
respect to the expenses of the Plan, which would permit any
part of the corpus or income of the Trust Fund to be used
for or diverted to purposes other than for the exclusive
benefit of such persons under the Plan and for the payment
of the expenses of the Plan;
(b) No amendment or modification shall have any retroactive
effect so as to deprive any person of any benefit already
accrued, except that any amendment may be made retroactive
which is necessary to bring the Plan into conformity with
governmental regulations in order to qualify the Plan for
tax purposes and meet the requirements of ERISA; and
(c) No amendment or modification may be made which shall
increase the duties or liabilities of the Trustee without
the written consent of the Trustee.
12.3 Termination or Discontinuance of Contributions
----------------------------------------------
(a) The Plan may be terminated at any time by the Board of
Directors by written notice to the Employers, to the
Administrative Committee and to the Trustee at the time
acting hereunder, but only upon condition that such action
is taken as shall render it impossible for any part of the
corpus or income of the Trust Fund to be used for or
diverted to purposes other than for the exclusive benefit of
the Participants and their Beneficiaries under the Plan and
for the payment of the administrative costs of the Plan.
(b) If the Plan is terminated under Section 12.3(a) above or in
the event the Plan is deemed to be partially terminated with
respect to one or more groups of Eligible Employees, written
notice of such determination shall be given to the
Employers, to the Administrative Committee and to the
Trustee at the time acting hereunder, the Trust Fund shall
be revalued as if the termination date were the Valuation
Date, and the current value of the Account of each affected
Participant who is then an Eligible Employee shall become
nonforfeitable, and shall be distributed in accordance with
Article IX to the extent permissible under applicable law
and regulations.
(c) If the Plan is terminated by the Board of Directors but the
Board of Directors determines that the Trust Fund shall be
continued pursuant to its terms and the provisions of this
Section, no further contributions shall be made by either
Participants or any Employer, but the Trust Fund shall be
administered as though the Plan were otherwise in full force
and effect. If the Trust Fund is subsequently terminated,
the provisions of Section 12.3(b) above shall then apply.
(d) In addition to the right to amend or terminate the Plan, any
Employer may at any time, by resolution of its board of
directors, discontinue any or all contributions under the
Plan. Unless additional action is taken by the Employer in
connection with a discontinuance of contributions to the
Plan, it shall be deemed that Section 12.3(c) is applicable.
12.4 Merger, Consolidation or Transfer
---------------------------------
The Company may merge or consolidate the Plan with, transfer
assets and liabilities of the Plan to, or receive a transfer of
assets and liabilities from, any other plan without the consent
of any other Employer or other person if such merger,
consolidation or transfer is effectuated in accordance with
applicable law and such other plan meets the requirements of
Sections 401(a) and 501(a) of the Code. No merger or
consolidation with, or transfer of assets or liabilities to, any
other plan, shall be made unless the benefit each Participant in
this Plan would receive if the Plan were terminated immediately
after such merger or consolidation, or transfer of assets and
liabilities, would be at least as great as the benefit he would
have received had the Plan terminated immediately before such
merger, consolidation or transfer.
ARTICLE XIII
MISCELLANEOUS
13.1 Uniform Administration
----------------------
Whenever, in the administration of the Plan, any action is
required by an Employer or the Administrative Committee,
including, but not by way of limitation, action with respect to
eligibility or classification of employees, contributions or
benefits, such action shall be uniform in nature as applied to
all persons similarly situated and no such action shall be taken
which will discriminate in favor of Participants who are Highly
Compensated Employees.
13.2 Payments from Trust Fund
------------------------
The benefits under the Plan shall be payable solely from the
Trust Fund and each Participant, Beneficiary or other person who
shall claim the right to any payment under the Plan shall be
entitled to look only to the Trust Fund for such payment. No
liability for the payment of benefits or any other payments under
the Plan shall be imposed upon the Administrative Committee, the
Company, any Employer, or the officers, directors or stockholders
of the Company.
Except as expressly provided in the Plan, no Participant,
Beneficiary or other person entitled to benefits may withdraw or
receive any monies from the Trust Fund.
13.3 Plan Not a Contract of Employment
---------------------------------
Nothing herein contained shall be deemed to give any Eligible
Employee or Participant the right to be retained in the employ of
an Employer or to interfere with the right of the Employer to
discharge any Eligible Employee or Participant at any time.
13.4 Applicable Law
--------------
Except to the extent governed by Federal law, the Plan shall be
administered and interpreted in accordance with the laws of the
State of Ohio.
13.5 Unclaimed Amounts
-----------------
It shall be the sole duty and responsibility of a Participant or
Beneficiary to keep the Administrative Committee apprised of his
whereabouts and of his most current mailing address. If any
benefit to be paid under the Plan is unclaimed, within such time
period as the Administrative Committee shall prescribe, it shall
be forfeited and applied to reduce Employer contributions and/or
pay reasonable expenses of the Plan in accordance with Section
6.2; provided, however, that such forfeiture shall be reinstated
if a claim is made by the Participant or Beneficiary for the
forfeited benefit.
13.6 Severability
------------
If any provision of this Plan is held to be invalid or
unenforceable, such determination shall not affect the other
provisions of this Plan. In such event, this Plan shall be
construed and enforced as if such provisions had not been
included herein.
13.7 Employer Records
----------------
The records of a Participant's Employer shall be presumed to be
conclusive of the facts concerning his employment or
non-employment, Periods of Service, Periods of Severance,
Compensation and Eligible Earnings unless shown beyond a
reasonable doubt to be incorrect.
13.8 Application of Plan Provisions
------------------------------
This Plan shall be binding on all Participants and Beneficiaries
and upon heirs, executors, administrators, successors, and
assigns of all persons having an interest herein. The provisions
of the Plan in no event shall be considered as giving any such
person any legal or equitable right against the Company or any
Employer, any of its officers, Employees, directors, or
shareholders, or against the Trustee, except such rights as are
specifically provided for in the Plan or hereafter created in
accordance with the terms of the Plan.
13.9 IRC 414(u) Compliance Provision
-------------------------------
Notwithstanding any provision of the Plan to the contrary and
effective as of December 12, 1994, contributions, benefits and
service credit with respect to qualified military service shall
be provided in accordance with Section 414(u) of the Code.
13.10 IRC 125 Compliance Provision
----------------------------
For purposes of determining IRC 414(s) compensation (Section
3.4(c) of the Plan) and IRC 415 compensation (Section 4.7 of the
Plan), amounts under Section 125 of the Code include any amounts
not available to a Participant in cash in lieu of group health
coverage because the Participant is unable to certify that he has
other health coverage. An amount will be treated as an amount
under Section 125 of the Code only if the Employer does not
request or collect information regarding the Participant's other
health coverage as part of the enrollment process of the health
plan. This Section 13.10 shall apply to Plan Years and limitation
years beginning on and after January 1, 1998.
ARTICLE XIV
PARTICIPATION IN PLAN BY AFFILIATES
14.1 Participation by Affiliate
--------------------------
Any member of the Group, for itself or any of its divisions, may,
with the written consent of the Board of Directors of the
Company, become a party to this Plan by adopting the Plan for
some or all of its employees. Upon the filing with the Trustee of
a certified copy of the resolutions or other documents evidencing
the adoption of this Plan and the notice to the Company, the
member of the Group shall be included in the Plan as an Employer,
and shall be bound by all the terms thereof as they relate to its
employees. Any contributions provided for in the Plan and made by
such Employer shall become a part of the Trust Fund and shall be
held by the Trustee subject to the terms and provisions of the
Trust Agreement.
14.2 Withdrawal by Affiliate
-----------------------
In the event that an organization which has become an Employer
shall cease to be a member of the Group, such organization shall
forthwith be deemed to have withdrawn from the Plan and the Trust
Agreement. Also, any 1 or more of the Employers may voluntarily
withdraw from the Plan by giving 6 months' notice in writing of
intention to withdraw to the Board of Directors of the Company
and the Administrative Committee (unless a shorter notice shall
be agreed to by the Board of Directors of the Company and the
Administrative Committee). The Company may, with the consent of
the Board of Directors withdraw from the Plan at any time, and
the Board of Directors may in its discretion at any time withdraw
the authorization of any subsidiary or any Employer to
participate in the Plan.
In any of these circumstances the affected Employees shall cease
to be Participants under the Plan, and the Administrative
Committee shall arrange for the withdrawal or segregation of such
Employees' share of the assets of the Plan, as determined by a
valuation as of the date of the event. The Administrative
Committee shall have the full discretion as to the nature of the
funds to be withdrawn or segregated, and its valuation thereof
for that purpose shall be conclusive. Unless a savings and
investment plan substantially similar in form to the Plan or such
other form as may be approved by the Internal Revenue Service
under Section 401(a) of the Code is continued by a successor
corporation for its Employees, the Plan shall be deemed to have
terminated with respect to such Employees and such segregated
assets shall be fully vested to them in accordance with the
provisions of Section 12.3. The Administrative Committee shall
arrange for the disposition of such assets through transfers to a
successor trust, as assignment of all or a portion of the rights
under any insurance contract or by any other means it shall
determine.
14.3 Special Rule for Corporate Reorganizations
------------------------------------------
In the event the Company acquires control of any organization by
purchase of assets or stock, merger, amalgamation, consolidation
or any other similar event, or in the event control of the
Company should be acquired by some other organization by such
means, the Board of Directors, or the Administrative Committee,
or any officer of the Company who has been delegated appropriate
authority by the Board of Directors, may authorize such other
organization to participate in the Plan upon agreement that
contributions shall be made as required under the Plan, and shall
determine to what extent, if any, credit for employment with such
other organization shall be granted as to the employees of such
other organization for the purpose of determining eligibility and
vesting rights hereunder.
ARTICLE XV
LOANS
15.1 Availability
------------
The Administrative Committee is authorized to establish and
maintain a Participant loan program and may authorize loans from
the Plan to Participants in such amounts and pursuant to such
terms and procedures as the Administrative Committee determines
in its sole discretion are appropriate, provided that such loans
are available to any creditworthy Participant who is an Employee,
excluding Participants on leave of absence or lay-off, temporary
or part-time Employees and terminated Participants, on a uniform
and nondiscriminatory basis. Loans shall be permitted for any
purpose.
15.2 Terms and Procedures
--------------------
All loans shall be granted in accordance with the following terms
and procedures:
(a) The amount of any loan to a Participant shall not exceed the
lesser of (1) $50,000 reduced by the excess of the highest
outstanding loan balance of the Participant's loans
outstanding during the immediately prior 12-month period
(ending the day before the new loan is granted) over the
outstanding balance of all loans to the Participant on the
date the new loan is made; or (2) 50 percent of the
Participant's Vested Interest. All loans shall be for a
minimum amount of $1,000.
(b) All loans shall be subject to the approval of the
Administrative Committee or its agent.
(c) An application for a loan by a Participant shall be made on
an Appropriate Form sent to the Administrative Committee or
its agent, whose action thereon shall be final.
(d) The period of repayment for any loan shall be arrived at by
mutual agreement between the Administrative Committee or its
agent and the borrower, but all loans shall become due and
payable upon termination of employment and the period in no
event shall exceed 5 years.
(e) Each loan shall bear a reasonable rate of interest to be
determined by the Administrative Committee to be comparable
to commercial lending rates on bank loans secured by
certificates of deposit in the area at the time the loan is
made. The interest rate on any new loan that is granted
shall be redetermined from time to time pursuant to such
uniform and nondiscriminatory rules as the Administrative
Committee shall prescribe. Each loan shall be secured by the
present and future balance in the Participant's account or
by such other security as the Administrative Committee may
deem to be adequate.
(f) Each loan shall be treated as a separate investment of the
funds credited to such Participant's Accounts. Loans shall
be made from the Investment Funds maintained under the Plan
in such order of priority as the Administrative Committee,
pursuant to a uniform and nondiscriminatory policy, shall
direct. Payments by a Participant on any such loan shall be
credited to such Participant's account in the various
Investment Funds in the same proportions as the
Participant's current investment option election at the time
loan payments are made.
(g) No distribution shall be made to any Participant or former
Participant or to a Beneficiary of any such Participant
unless and until all unpaid loans to such Participant or
former Participant, including accrued interest thereon, have
been paid. In the event of termination of employment, any
distribution of Account balances shall be reduced by and
applied to repay the amount of any outstanding plan loans
and accrued interest thereon.
(h) A Participant may not have more than one loan outstanding at
any time.
(i) Repayment of loans shall be by payroll deduction, or other
approved method, on a level amortization basis, except that
a Participant may repay the outstanding principal balance of
his loan at any time after one year.
(j) In the event a Participant defaults on a Plan loan, the
entire unpaid balance of the loan shall become due and
payable immediately. A Participant will default on a loan if
any of the following events occur:
(i) The termination of the Participant's employment with an
Employer for any reason (including death);
(ii) Failure of the Participant to make any payment of
principal or interest on the loan on or before the date
such payment is due;
(iii)Failure of the Participant to perform or observe any
of his covenants, duties or agreements under the
promissory note executed by the Participant with
respect to the loan;
(iv) Receipt by the Plan of opinion of counsel to the effect
that (A) the Plan will, or could, lose its status as a
qualified plan under Code Section 401(a) unless the
loan is repaid or (B) the loan violates, or may
violate, any provision of the ERISA;
(v) Any portion of the Participant's account that is not in
excess of the amount that has been pledged as security
for the loan becomes payable from the Plan to the
Participant, to any Beneficiary of the Participant, or
to any "alternate payee" of the Participant pursuant to
any qualified domestic relations order (as defined in
Code Section 414(p)); or
(vi) The Participant makes an assignment for the benefit of
creditors, files a petition in bankruptcy, is
adjudicated insolvent or bankrupt, or becomes a subject
of any wage earner plan under the federal Bankruptcy
Code or under any applicable state insolvency law, or
there is commenced against the Participant any
bankruptcy, insolvency, or other similar proceeding
which remains undismissed for a period of 60 days (or
the Participant by an act indicates his consent to,
approval of, or acquiescence in any such proceeding).
(k) In the event a default on a Participant loan occurs and the
Participant does not pay the entire unpaid balance of the
loan (with accrued unpaid interest) within 5 business days
after the date the default occurs, the Participant's Vested
Interest under the Plan that has been pledged as security
for repayment of the Plan loan shall be applied immediately,
to the extent required, to pay the entire unpaid balance of
the loan (and all accrued unpaid interest thereon).
Notwithstanding the foregoing, no portion of the
Participant's account consisting of, or attributable to, the
Participant's elective deferrals (as defined in Code Section
402(g)) shall be actually distributed for purposes of
eliminating the default before the date the Participant
terminates employment with the Employer, or if earlier,
attains age 59-1/2.
(l) Failure by the Administrative Committee to strictly enforce
Plan rights with respect to a default on a Plan loan shall
not constitute a waiver of such rights.
ARTICLE XVI
DETERMINATION OF TOP-HEAVY STATUS
16.1 General
-------
Notwithstanding any other provisions of the Plan to the contrary,
for any Plan Year in which the Plan is a Top-Heavy Plan or Super
Top-Heavy Plan, the provisions of this Article shall apply, but
only to the extent required by Section 416 of the Code.
16.2 Top-Heavy Plan
--------------
This Plan shall be Top-Heavy and an Aggregation Group shall be a
Top-Heavy Group if, as of the Determination Date for such Plan
Year, the sum of the cumulative accrued benefits and cumulative
accounts of Key Employees for the Plan Year exceeds 60 percent of
the aggregate of all the cumulative accounts and cumulative
accrued benefits.
(a) If the Plan is not included in a Required Aggregation Group
with other plans, then it shall be Top-Heavy only if (i)
when considered by itself it is a Top-Heavy Plan and (ii) it
is not included in a Permissive Aggregation Group that is
not a Top-Heavy Group.
(b) If the Plan is included in a Required Aggregation Group with
other plans, it shall be Top-Heavy only if the Required
Aggregation Group, including any permissively aggregated
plans, is Top-Heavy.
16.3 Super Top-Heavy Plan
--------------------
This Plan shall be a Super Top-Heavy Plan if it would be a
Top-Heavy Plan under Section 16.2, by substituting 90 percent for
60 percent.
16.4 Cumulative Accrued Benefits and Cumulative Accounts
---------------------------------------------------
The determination of the cumulative accrued benefits and
cumulative accounts under the Plan shall be made in accordance
with Treasury Regulation Section 1.416-1 T-24 and 25. The present
values of accrued benefits and the amounts of account balances of
an Employee as of the Determination Date shall be increased by
the distributions made with respect to the Employee under the
Plan and any plan aggregated with the plan under Section
416(g)(2) of the Code during the 1-year period ending on the
Determination Date. The preceding sentence shall also apply to
distributions under a terminated plan which, had it not been
terminated, would have been aggregated with the Plan under
Section 416(g)(2)(A)(i) of the Code. In the case of a
distribution made for a reason other than separation from
service, death, or disability, this provision shall be applied by
substituting "5-year period" for "1-year period". However, the
accrued benefits and accounts of any individual who has not
performed services for an Employer during the 1-year period
ending on the Determination Date shall not be taken into account.
16.5 Definitions
-----------
(a) "Aggregation Group" means either a Required Aggregation
Group or a Permissive Aggregation Group.
(b) "Determination Date" means with respect to any Plan Year,
the last day of the preceding Plan Year, or in the case of
the first Plan Year of any plan, the last day of such Plan
Year, or such other date as permitted by the Secretary of
the Treasury or his delegate.
(c) "Key Employee" means any Employee or former Employee (and
the Beneficiaries of such Employee) who at any time during
the Plan Year that includes the Determination Date was an
officer of an Employer having annual IRC 415 compensation
(as defined in Section 4.7) greater than $130,000 (as
adjusted under Section 416(i)(1) of the Code for Plan Years
beginning after December 31, 2002), a 5-percent owner of an
Employer, or a 1-percent owner of an Employer who has an
annual IRC 415 compensation of more than $150,000. For
purposes of this subparagraph, no more than 50 Employees (or
if lesser, the greater of 3 or 10 percent of the Employees)
shall be treated as officers.
(d) "Non-Key Employee" means those individuals who are not Key
Employees and includes former Key Employees.
(e) "Permissive Aggregation Group" means a Required Aggregation
Group plus any other plans selected by the Company provided
that all such plans when considered together satisfy the
requirements of Section 401(a)(4) and 410 of the Code.
(f) "Required Aggregation Group" means a plan maintained by the
Company in which a Key Employee is a participant or which
enables any plan in which a Key Employee is a participant to
meet the requirements of Section 401(a)(4) of the Code or
Section 410 of the Code. The Required Aggregation Group
shall include any plan which would, but for the fact it
terminated, be included in the terms of this definition.
16.6 Vesting
-------
For each Plan Year in which the Plan is Top-Heavy or Super
Top-Heavy, the minimum vesting requirements of Section 416(b) of
the Code shall be satisfied by use of the following schedule:
YEARS OF VESTING VESTED PERCENTAGE
SERVICE
Less than 3 years 0 percent
3 years or more 100 percent
16.7 Compensation
------------
For each Plan Year Compensation shall not exceed the limitation
in effect under Section 1.16 for such year.
16.8 Minimum Contributions
---------------------
For each Plan Year in which the Plan is Top-Heavy or Super
Top-Heavy, minimum Employer contributions for a Participant who
is a Non-Key Employee shall be required to be made on behalf of
each Participant who is employed by an Employer on the last day
of the Plan Year. The amount of minimum contribution shall be the
lesser of the following percentages of IRC 415 compensation (as
defined in Section 4.7 for purposes of Annual Additions):
(a) Three percent, or
(b) The highest percentage at which Employer contributions or
forfeitures are made under the Plan for the Plan Year on
behalf of any Key Employee.
For purposes of this Section 16.8, all defined contribution plans
included in a Required Aggregation Group shall be treated as one
plan.
In the case of a Participant under this Plan who also
participates in a defined benefit pension plan of a member of the
Group which contains provisions intended to comply with Section
416 of the Code in the event such plan becomes a Top-Heavy plan,
the defined benefit pension plan will provide the top-heavy
minimum benefit which will be offset by the benefit provided
under this Plan.
16.9 Defined Benefit and Defined Contribution Plan Fractions
-------------------------------------------------------
In order to comply with the requirements of Section 416(h) of the
Code, in the case of a Participant who is or has also
participated in a defined benefit plan of the Company or any
member of the Group in any Plan Year in which the Plan is
Top-Heavy, there shall be imposed under this Plan the following
limitation in addition to any limitation which may be imposed as
described in Section 4.7. In any such year beginning before
January 1, 2000, for purposes of satisfying the aggregate limit
on contributions and benefits imposed by Section 415(e) of the
Code, benefits payable from this Plan shall, except as
hereinafter described, be reduced so as to comply with a limit
determined in accordance with Section 415(e) of the Code, but
with the number "1.0" substituted for the number "1.25" in the
"defined benefit plan fraction" (as defined in Section 415(e)(3)
of the Code).
Notwithstanding the foregoing, if the application of the
additional limitation set forth in this Section 16.9 would result
in the reduction of accrued benefits of any Participant under
this Plan, such additional limitation shall not become operative,
so long as (1) no additional contributions by Group members,
forfeitures or voluntary nondeductible contributions are
allocated to such Participant's accounts under any defined
contribution plan maintained by the Company including this Plan
and (2) no additional benefits accrue to such Participant under
any defined benefit plan maintained by the Company.
16.10 Method of Determining Accrued Benefit
-------------------------------------
Solely for the purpose of determining if the Plan, or any other
plan included in a Required Aggregation Group of which this Plan
is a part is Top-Heavy, the accrued benefit of a Participant
other than a Key Employee shall be determined under (1) the
method, if any, that uniformly applies for the accrual purposes
under all plans maintained by the Company or any other Group
member, or (2) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted
under the fractional accrual rate of Section 411(b)(1)(C) of the
Code.
16.11 Change in Statute Automatically Incorporated
--------------------------------------------
In the event that Congress should provide by statute, or the
Treasury Department should provide by regulation or ruling, that
the limitations provided in this Article XVI are no longer
necessary for the Plan to meet the requirements of Section 401 of
the Code or other applicable law then in effect, such limitations
shall become void and shall no longer apply, without the
necessity of further amendment to the Plan.
Adopted by Mettler-Toledo, Inc., this day of , .
METTLER-TOLEDO, INC.
By:
----------------------------------
Title:
-------------------------------
APPENDIX A
SPECIAL PROVISIONS PERTAINING TO CERTAIN EMPLOYEES OF
METTLER INSTRUMENT CORPORATION
A.1 Purpose and Construction
------------------------
The purpose of this Appendix A is to evidence special provisions
applicable to certain employees of Mettler Instrument Corporation
("MICo") affected by the merger of the MICo Plan into the Plan,
effective July 1, 1994. The provisions of this Appendix A shall
apply to the individuals as specified herein. To the extent the
provisions of the Plan, as applicable to these individuals, are
inconsistent with the provisions of this Appendix A, the
provisions of Appendix A shall govern. Words and phrases used
herein with initial capital letters which are defined in Article
I of the Plan are used herein as so defined.
A.2 Pre-Merger Date Service of MICo Employees
-----------------------------------------
The period of employment of an employee of MICo prior to July 1,
1994 which shall be recognized as Period(s) of Service and
Year(s) of Vesting Service hereunder as of July 1, 1994 shall be
determined under Sections 1.41 and 1.68 respectively, treating
MICo for such purpose as having been an Employer hereunder for
all relevant periods; provided, however, that in no event shall
such determination result in Periods of Service or Years of
Vesting Service which are less than that Service accumulated
under the MICo Plan as of June 30, 1994.
A.3 Vesting of Certain Participants in MICo Plan
--------------------------------------------
Notwithstanding the provisions of Section 6.1, the Company
Matching Contribution Account of an individual who, as of July 1,
1994, is both an Employee of MICo and a Participant in the Plan
shall be 100% nonforfeitable at all times. All Eligible Employees
of MICo other than those described in the preceding sentence
shall become vested in Company Matching Contributions made on his
behalf on and after July 1, 1994 in accordance with the
provisions of Section 6.1, reflecting for this purpose, the
provisions of Section A.2 above. In no event shall this Section
A.3 alter a Participant's vested percentage in his Account
attributable to employer contributions made under the MICo Plan
prior to July 1, 1994 and earnings on such contributions.
APPENDIX B
BONUS DEFERRALS
B.1 Purpose and Construction
------------------------
The purpose of this Appendix B is to evidence special provisions
applicable to certain Employees who are provided herein with the
opportunity to defer all or part of specified bonuses which they
may otherwise receive from the Employers. The provisions of this
Appendix B shall apply to the Employees described herein and
shall be effective for Plan Years beginning on and after January
1, 1996. To the extent the provisions of the Plan, as applicable
to these Employees, are inconsistent with the provisions of this
Appendix B, the provisions of Appendix B shall govern. Words and
phrases used herein with initial capital letters which are
defined in Article I of the Plan are used herein as so defined.
B.2 Eligibility
-----------
(a) Notwithstanding Sections 2.1 and 3.1 of the Plan, an
Employee who satisfies the criteria specified in this
Section B.2 with respect to a given Plan Year shall be
eligible to defer a specified portion (as described in
Section B.3) of a given Bonus Amount (as hereinafter
defined) applicable to such Plan Year by giving Notice to
the Administrative Committee on or before the Bonus Deferral
Election Date specified in this Section B.2. With respect to
any given Employee, "Bonus Amount" shall mean the annual
bonus that may be payable for any given year beginning on
and after January 1, 1996 under the Employer's Performance
Dividend Plan.
(b) An Employee shall be eligible to defer a Bonus Amount with
respect to a given Plan Year if:
(i) The Employee is expected to be an Eligible Employee as
of the January 1 of the Plan Year in which the Bonus
Amount is otherwise payable;
(ii) The Administrative Committee, in its discretion, elects
to treat Bonus Amounts applicable to the given Plan
Year as eligible for deferral under the Plan; and
(iii)The Employee is not a Highly Compensated Employee as
of the Bonus Deferral Election Date (as hereinafter
defined);
provided, however, that an election to defer a Bonus Amount
shall only be given effect if the Employee is in fact an
Eligible Employee as of the date the Bonus Amount is
otherwise payable. For purposes hereof, the "Bonus Deferral
Election Date" with respect to any given Bonus Amount shall
be the December 1 of the calendar year immediately preceding
the calendar year in which the Bonus Amount is otherwise
payable. No Participant may suspend or otherwise change the
deferral of any Bonus Amount following the expiration of 30
days from the Bonus Deferral Election Date.
B.3 Bonus Amount Deferrals
----------------------
Subject to the limitations of Sections 3.4 and 3.5 of the Plan,
that portion of a Bonus Amount that may be deferred by an
Eligible Employee who satisfies the criteria specified in Section
B.2 shall be from 0 percent to 100 percent of such Bonus Amount,
in multiples of 25 percent. The Bonus Amount which an Eligible
Employee elects to defer shall be credited to the Employee's
Basic Salary Reduction Account and a corresponding reduction
shall be made in the Bonus Amount otherwise payable to the
Eligible Employee in cash. The election with respect to the
deferral of a Bonus Amount for any given year shall not apply to
any subsequent year. Except as provided under Section B.5, any
Bonus Amount deferred hereunder shall be invested in accordance
with the elections in effect under Section 7.2 of the Plan at the
time of deferral.
B.4 Treatment of Bonus Amount Deferrals
-----------------------------------
Notwithstanding any provision of the Plan to the contrary:
(a) In no event shall Company Matching Contributions or Safe
Harbor Matching Contributions be made with respect to any
deferral of a Bonus Amount;
(b) A Participant who is ineligible to make Basic Salary
Reduction Contributions under Section 2.4 of the Plan shall
likewise be ineligible to make a deferral of any Bonus
Amount; and
(c) The limitations on Basic Salary Reduction Contributions and
the provisions pertaining to Basic Salary Reduction
Contributions in the following Plan sections shall be
equally applicable to deferrals of Bonus Amounts as follows:
(i) Sections 3.4 and 3.5: deferrals of Bonus Amounts shall
be treated as Basic Salary Reduction Contributions for
the Plan Year in which the Bonus Amounts are otherwise
payable;
(ii) Section 4.7: deferrals of Bonus Amounts shall be
included in "Annual Additions" for the Plan Year in
which the Bonus Amounts are otherwise payable and shall
be treated as Basic Salary Reduction Contributions for
purposes of the corrective mechanisms described;
(iii)Section 4.8(k): deferrals of Bonus Amounts may be
treated as Basic Salary Reduction Contributions for the
Plan Year in which the Bonus Amounts are otherwise
payable in the discretion of the Administrative
Committee;
(iv) Section 8.2(b)(iii) and (iv): deferrals of Bonus
Amounts shall be treated as Basic Salary Reduction
Contributions for the Plan Year in which the Bonus
Amounts are otherwise payable for purposes of the
limitations described;
(v) Section 9.4: deferrals of Bonus Amounts shall be
treated as Basic Salary Reduction Contributions for
purposes of the limitations described.
B.5 New Participants
----------------
In the event an Eligible Employee first becomes a Participant in
connection with his election to defer a Bonus Amount, such
Employee, in providing Notice specified in Section B.2, shall
make an investment election from among those options then
available under Section 7.1 and shall designate a Beneficiary on
the Appropriate Form provided by the Administrative Committee.
Such election and designation may be changed in accordance with
the applicable provisions of the Plan, treating, to the extent
necessary under Plan Section 7.2, the deferral of a Bonus Amount
as a Basic Salary Reduction Contribution.
APPENDIX C
SPECIAL PROVISIONS PERTAINING TO CERTAIN EMPLOYEES OF
ASI APPLIED SYSTEMS, INC.
C.1 Purpose and Construction
------------------------
The purpose of this Appendix C is to evidence special provisions
applicable to ASI Employees. To the extent the provisions of the
Plan, as applicable to these individuals, are inconsistent with
the provisions of this Appendix C, the provisions of Appendix C
shall govern.
C.2 Definitions
-----------
(a) "ASI" means ASI Applied Systems, Inc., a wholly-owned
subsidiary of the Company formed in connection with the
acquisition of certain assets of Former ASI.
(b) "ASI Employee" means any Employee in the employ of ASI,
including a Former ASI Employee.
(c) "ASI Plan" means the ASI Employees' Profit Sharing Plan &
Trust, and any successor thereto, in effect as of a given
date hereunder.
(d) "Employer Profit Sharing Contribution" means a contribution
which, in the discretion of the Board, may be made to the
Plan on behalf of certain ASI Employees with respect to any
given Plan Year. Any Employer Profit Sharing Contribution
shall be allocated as provided in Section C. 7 of this
Appendix.
(e) "Employer Profit Sharing Contribution Account" means the
separate Account maintained for a Participant who is an ASI
Employee to record his share of the Trust Fund attributable
to Employer Profit Sharing Contributions made on his behalf.
(f) "Former ASI" means ASI Applied Systems, LLC as said entity
was in effect prior to the date as of which the Company
acquired assets relating to said entity's reaction
monitoring operations.
(g) "Former ASI Employee" means any employee of Former ASI who
became an Employee of ASI in connection with the Company's
acquisition of assets relating to Former ASI's reaction
monitoring operations.
C.3 Eligibility of ASI Employees
----------------------------
Notwithstanding Section 2.1(a) of the Plan, any ASI Employee
employed by ASI as of May 31, 1999 and who is an Eligible
Employee as of June 1, 1999, shall become a Participant in the
Plan and shall be eligible to commence Basic Salary Reduction
Contributions in accordance with Section C.6 below.
Any ASI Employee with an Employment Commencement Date on or after
June 1, 1999 shall become a Participant as of the first day of
the calendar year quarter coincident with or next following the
latest of (i) the date on which he becomes an ASI Employee, (ii)
the date on which he becomes an Eligible Employee, and (iii) the
date on which he completes a 1-year Period of Service. Such an
ASI Employee shall be eligible to commence Basic Salary Reduction
Contributions as of any Enrollment Date on or following such date
of participation.
Effective for Plan Years beginning on and after January 1, 2003,
ASI shall be considered an Excluded Entity, the participation in
the Plan of any ASI Employee shall be frozen and no ASI Employee
may become a Participant in the Plan.
C.4 Pre-Merger Date Service of ASI Employees
----------------------------------------
A Former ASI Employee's Period of Service shall include periods
of service with ASI and Former ASI in addition to periods of
service with Spectra-Tech, Inc. and Spectra-Tech Applied Systems,
Inc. as provided for in the ASI Plan.
C.5 Vesting of Certain Participants in ASI Plan
-------------------------------------------
Notwithstanding the provisions of Section 6.1, the Accounts of an
individual who, as of May 31, 1999, is an ASI Employee shall be
100% nonforfeitable at all times. Any ASI Employee with an
Employment Commencement Date on or after June 1, 1999 shall
become vested in the Employer Profit Sharing Contribution Account
maintained on his behalf in accordance with the provisions of
Section 6.1 of the Plan as if the Employer Profit Sharing
Contribution Account was a Company Matching Contribution Account.
C.6 Basic Salary Reduction Contribution
-----------------------------------
Any ASI Employee in the employ of ASI as of May 31, 1999, and who
is an Eligible Employee as of June 1, 1999, may commence Basic
Salary Reduction Contributions as soon as administratively
practicable following June 1, 1999, or as of any Enrollment Date
thereafter, by satisfying the procedural requirements set forth
in Article II of the Plan. Notwithstanding the percentage
limitations set forth in Section 3.1 of the Plan (but subject to
such other restrictions contained in Article III thereof), such
an ASI Employee may elect Basic Salary Reduction Contributions in
an amount from 1 percent through 25 percent (in whole
percentages) of Compensation otherwise payable for pay periods
ending after his Basic Salary Reduction Contribution election is
first effective and before January 1, 2000.
Effective for Plan Years beginning on and after January 1, 2000,
each ASI Employee shall be eligible to designate Basic Salary
Reduction Contributions in accordance with Article III of the
Plan.
Effective for Plan Years beginning on and after January 1, 2003,
an ASI Employee shall not be eligible to have an Employer make
Basic Salary Reduction Contributions to the Plan on his behalf.
C.7 Employer Profit Sharing Contributions
-------------------------------------
As of any given Plan Year beginning before January 1, 2003, the
Board may decide whether to make an Employer Profit Sharing
Contribution on behalf of eligible ASI Employees participating in
the Plan. To be eligible for an allocation of any Employer Profit
Sharing Contribution made for a given Plan Year, the ASI Employee
must be an Eligible Employee, must earn at least 1,000 Hours of
Service during such Plan Year, and must be employed as of the
last day of such Plan Year. The Employer Profit Sharing
Contribution shall be allocated to eligible ASI Employee
Participants in the ratio that each such eligible Participant's
Compensation for the given Plan Year bears to the total
Compensation of all such eligible Participants for the given Plan
Year. Compensation as used in this Section C.7 shall be as
defined in Section 1.16 of the Plan provided that, effective
January 1, 2001, Compensation for purposes of this Section C.7
shall include all amounts currently not included in an ASI
Employee's gross income by reason of Section 125, 132(f)(4) and
402(e)(3) of the Code.
The following shall also be applicable to Employer Profit Sharing
Contributions:
(a) An Employer Profit Sharing Contribution Account shall be
maintained on behalf of each eligible ASI Employee
Participant;
(b) Investment direction of the Employer Profit Sharing
Contribution Account maintained on behalf of a Participant
shall be implemented in accordance with Article VII of the
Plan; and
(c) The forfeiture provisions in Section 6.2 of the Plan shall
also apply to nonvested Employer Profit Sharing Contribution
Accounts.
Effective for Plan Years beginning on and after January 1, 2003,
an ASI Employee shall not be eligible to have an Employer Profit
Sharing Contribution made to the Plan on his behalf.
C.8 Other Employer Contributions Not Applicable
-------------------------------------------
ASI Employees participating in the Plan shall not be eligible to
participate in the Company Matching Contribution provisions of
Section 4.1 of the Plan, the Safe Harbor Matching Contribution
provisions of Section 4.2 of the Plan, the Savings Contribution
provisions of Section 4.3 of the Plan, the Special Contribution
Provisions of Section 4.4 of the Plan and the Transition
Contribution provisions of Section 4.5 of the Plan.
C.9 Transfer of Accounts of Former ASI Employees
--------------------------------------------
Effective as of July 1, 1999, or as soon thereafter as is
administratively practicable, accounts maintained under the ASI
Plan on behalf of Former ASI Employees shall be transferred from
the ASI Plan to the Plan. Records of such transferred accounts
shall be kept in such manner as the Administrative Committee
shall determine, provided that all protected benefits, rights and
features appurtenant to such transferred accounts shall be
preserved under the Plan to the extent preservation is required
under Section 411(d)(6) of the Code.
C.10 Spinoff of Accounts of ASI Employee Participants
------------------------------------------------
Effective as of close of business on December 31, 2002, or as
soon thereafter as administratively practicable, all Accounts
maintained under the Plan on behalf of Participants who are then
ASI Employees shall be spunoff to another qualified defined
contribution plan maintained by an Employer in a transaction
satisfying the requirements of Section 12.4 of the Plan and
Sections 401(a)(12) and 414(l) of the Code.
APPENDIX D
SPECIAL PROVISIONS PERTAINING TO CERTAIN EMPLOYEES OF
SAFELINE, INC.
D.1 Purpose and Construction
------------------------
The purpose of this Appendix D is to evidence special provisions
applicable to employees of Safeline, Inc. ("Safeline") who were
participants in the Safeline, Inc. 401(k) Plan ("Safeline Plan")
as of October 1, 1999, the effective date of the merger of the
Safeline Plan into the Plan. Except as otherwise provided in this
Appendix D, the provisions of the Plan other than this Appendix D
shall apply to employees of Safeline on and after October 1,
1999. To the extent the provisions of the Plan, as applicable to
these individuals, are inconsistent with the provisions of this
Appendix D, the provisions of Appendix D shall govern.
D.2 Pre-Merger Date Service of Safeline Employees
---------------------------------------------
The period(s) of employment of an employee of Safeline prior to
October 1, 1999 which shall be recognized as Period(s) of Service
and Year(s) of Vesting Service hereunder as of October 1, 1999
shall be determined under Sections 1.41 and 1.68 respectively,
treating Safeline for such purpose as having been an Employer
hereunder for all relevant periods; provided, however, that in no
event shall such determination result in Periods of Service or
Years of Vesting Service which are less than the service
accumulated under the Safeline Plan as of October 1, 1999.
D.3 Vesting of Safeline Plan Participant
------------------------------------
Notwithstanding the provisions of Section 6.1, the Accounts of an
individual who, as of September 30, 1999, was both an Employee
and a participant in the Safeline Plan shall become 100% vested
and nonforfeitable, without regard to Periods of Service, upon
such individual's attainment of age 55, provided such individual
is then an Employee.
D.4 Certain Employer Contributions Not Applicable
---------------------------------------------
Employees of Safeline participating in the Plan shall not be
eligible to participate in the Safe Harbor Matching Contribution
provisions of Section 4.2 of the Plan, the Savings Contribution
provisions of Section 4.3 of the Plan, the Special Contribution
provisions of Section 4.4 of the Plan, the Transition
Contribution provisions of Section 4.5 of the Plan and the
Discretionary Contribution provisions of Section 4.6 of the Plan.
D.5 Cessation of Participation and Spinoff of Safeline Participants
---------------------------------------------------------------
(a) Effective for Plan Years beginning on and after January 1,
2003, Safeline shall be considered an Excluded Entity, the
participation in the Plan of Employees of Safeline shall be
frozen and no Employee of Safeline may become a Participant
in the Plan. Further, on and after such date, an Employee of
Safeline shall not be eligible to have an Employer make
Basic Salary Reduction Contributions to the Plan on his
behalf.
(b) Effective as of close of business on December 31, 2002, or
as soon thereafter as administratively practicable, all
Accounts maintained under the Plan on behalf of Participants
who are the Employees of Safeline shall be spunoff to
another qualified defined contribution plan maintained by an
Employer in a transaction satisfying the requirements of
Section 12.4 of the Plan and Sections 401(a)(12) and 414(l)
of the Code.
EXHIBIT I
SPECIAL CONTRIBUTIONS
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
000703 78.35 10
000706 207.38 5
000708 210.33 5
000712 264.99 2
000717 99.76 10
000719 58.41 15
000730 34.41 15
000735 36.69 15
000737 27.47 15
000738 30.99 15
000740 279.11 5
000749 39.18 15
000751 45.98 15
000752 295.55 5
000812 147.04 5
000913 113.62 10
000914 50.53 15
000916 168.56 10
000918 44.21 15
000923 148.60 5
000928 311.00 4
000929 178.28 4
000931 38.79 15
000940 69.86 15
000943 65.47 10
000946 51.05 15
000950 21.22 15
000951 311.40 5
000953 342.26 5
000964 255.34 10
006257 372.60 5
008174 111.03 10
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
008546 475.16 5
008569 222.51 10
008728 64.84 15
008752 170.19 10
008869 198.89 10
009009 130.54 15
009168 78.85 15
009210 687.83 10
009230 212.10 10
009254 176.12 10
009265 327.27 5
009292 55.82 15
009531 110.10 10
009534 922.88 5
009549 171.65 10
009555 26.60 15
009683 93.35 10
009702 115.85 10
009708 125.74 10
009725 121.07 10
009740 91.96 10
009778 56.30 15
009802 67.95 10
009817 30.57 15
009882 29.97 15
009955 68.48 15
009968 148.64 10
009994 335.33 4
010030 132.78 15
010101 763.52 5
010104 295.10 5
010109 143.55 10
015114 240.56 10
015189 271.43 15
015382 276.15 10
020202 224.08 10
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
020207 394.49 5
020208 141.56 10
020217 63.08 15
020220 161.38 10
022569 121.26 15
022668 85.54 10
026827 118.47 10
030007 185.85 10
030015 148.65 10
030038 103.52 10
030079 101.12 10
030081 110.27 10
030110 96.32 10
030129 138.04 10
030161 168.62 10
030164 25.10 15
030175 140.56 10
030187 102.84 10
030196 37.20 15
030218 58.01 15
030221 36.22 15
030226 231.44 5
030261 292.10 10
030277 77.29 15
030278 873.40 5
030304 28.78 15
030341 51.85 15
030349 49.79 15
030357 58.98 10
030360 285.82 5
030363 36.48 15
030371 51.34 15
030402 40.16 15
030464 73.24 10
030471 101.97 15
030501 257.21 5
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
030525 120.17 15
030527 15.28 15
030550 16.34 15
030556 175.31 5
030565 140.59 5
035082 156.40 10
035096 411.70 5
035130 338.84 5
035141 62.43 15
035186 109.60 10
035209 52.60 15
036000 120.39 10
036017 171.36 5
036025 118.58 10
036026 47.98 10
036044 22.25 15
036317 548.34 5
037011 143.92 10
037036 121.37 10
037044 134.94 10
037062 97.24 10
037090 52.32 15
037094 124.67 10
037110 105.60 10
037111 43.50 15
037136 220.82 4
037154 76.27 10
040048 40.28 15
040128 204.89 5
040139 91.69 10
040141 302.26 5
040144 38.63 15
040146 99.50 10
040174 86.37 10
040182 133.36 10
040209 31.71 15
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
040210 60.79 15
040218 177.24 5
040233 88.86 10
040235 237.94 5
040237 72.34 10
040264 35.45 15
040266 194.13 5
040271 39.12 15
040274 93.98 10
040278 101.48 10
040288 252.33 5
040295 36.57 15
040309 81.35 10
040329 325.63 5
040331 28.15 15
040336 38.74 15
040349 87.55 10
040353 82.13 10
040366 260.41 5
040367 82.89 10
040402 86.25 15
040403 89.40 10
040419 38.10 15
040420 309.50 5
040421 65.29 15
040422 54.96 15
040433 171.40 5
040448 20.78 15
040474 88.92 10
040590 943.65 2
040597 393.02 5
040622 82.08 10
040630 75.56 10
040632 159.99 5
040636 34.46 15
040642 144.57 5
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
040646 139.32 5
040653 14.09 15
040654 21.72 15
040655 64.84 10
040660 12.92 15
040661 12.91 15
040696 62.23 10
040700 13.74 15
040716 130.62 5
040732 25.01 15
050502 606.78 5
060604 38.62 15
067964 311.50 5
068065 332.57 5
068310 204.79 10
068318 144.97 10
068348 184.65 10
068564 278.32 5
068593 98.88 10
068635 146.86 10
068636 92.70 10
068667 121.87 10
068722 105.81 10
068949 45.45 15
068976 72.16 15
069177 61.91 15
069279 50.33 15
069336 48.40 15
069402 38.48 15
069508 74.60 15
069556 41.14 15
069610 48.41 15
069836 87.00 10
069937 50.76 15
069953 61.08 15
070065 118.87 10
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
070086 44.53 15
070353 26.98 15
070701 789.41 3
070703 1,184.80 1
070707 103.57 10
070708 28.32 15
070925 23.29 15
071108 75.04 10
071192 27.05 15
071238 112.93 10
072573 314.91 5
072579 135.57 10
072584 230.02 5
080804 127.19 15
080810 67.46 15
080812 106.51 15
085056 42.95 15
085132 56.69 15
085140 70.08 15
085161 39.48 15
085215 55.54 10
090054 188.60 10
101001 116.46 15
101002 574.96 5
105924 286.87 5
107301 302.71 2
108530 514.07 5
109334 71.43 15
109436 98.44 10
109703 40.06 15
109971 267.23 5
130010 76.34 15
130180 85.44 10
130195 178.68 10
130207 346.42 10
130224 213.10 5
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
130249 74.68 15
130260 248.11 5
130295 31.91 15
130313 182.86 10
130393 149.14 10
130409 617.33 5
130489 512.86 10
130529 1,045.09 3
130562 14.65 15
135022 363.87 5
135041 201.01 10
135067 531.60 3
135072 106.99 10
135131 77.51 15
135138 80.25 10
135156 201.27 15
135176 77.01 15
135189 168.24 10
136019 10.68 15
137082 45.13 15
137091 163.40 5
137143 87.02 10
140598 285.76 10
161602 169.43 10
161607 234.08 10
167926 293.87 5
168540 121.69 10
169229 90.85 15
169598 85.79 15
169704 155.86 10
169801 142.39 15
170268 83.37 10
170884 35.93 15
171277 49.07 10
171278 39.40 10
203699 348.64 5
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
206970 339.34 5
209880 154.01 5
209913 142.95 10
210029 1,102.96 1
215748 137.97 10
221001 109.72 15
222001 342.32 10
230019 289.16 10
230144 40.33 15
230186 26.96 15
230430 64.82 15
232001 44.09 15
235029 488.47 5
235181 229.14 5
237050 117.51 10
237069 126.08 10
237098 97.96 10
237184 28.30 15
237208 32.99 15
237209 58.03 10
237212 99.28 10
240001 590.75 5
240208 328.81 5
242002 68.91 15
249002 149.77 10
250001 599.09 5
252001 31.41 15
263001 2,254.02 1
269020 698.21 10
271001 191.61 10
271136 26.63 15
273001 122.53 15
283001 150.84 10
286001 106.53 15
288001 168.64 15
309332 219.21 10
EMPLOYEE FILE # MONTHLY AMT # OF YEARS *
309365 125.90 10
309818 116.10 10
309933 86.57 10
369267 182.24 10
369302 46.92 15
370389 60.45 15
371124 21.38 15
409766 101.54 15
572001 257.46 10
578001 103.16 10
578002 274.38 5
578004 267.15 5
578005 34.93 15
56,705.36
* Years = Special Contribution Years