Exhibit 4.3
FRESH BRANDS DISTRIBUTING
RETIREMENT SAVINGS PLAN
As Amended and Restated Through January 1, 2001
With Amendments Effective January 1, 2002
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ....................................................1
Section 1.1. Account.................................................1
Section 1.2. Administrator...........................................1
Section 1.3. Affiliate...............................................1
Section 1.4. Beneficiary.............................................1
Section 1.5. Board of Directors......................................1
Section 1.6. Break in Service........................................1
Section 1.7. Code....................................................1
Section 1.8. Company.................................................1
Section 1.9. Compensation............................................2
Section 1.10. Disability..............................................2
Section 1.11. Early Retirement........................................2
Section 1.12. Effective Date..........................................3
Section 1.13. Elective Deferrals......................................3
Section 1.14. Employee................................................3
Section 1.15. Employer................................................3
Section 1.16. Employer Matching Contributions.........................4
Section 1.17. ERISA...................................................4
Section 1.18. Highly Compensated Employee.............................4
Section 1.19. Hours of Service........................................4
Section 1.20. Investment Fund.........................................5
Section 1.21. Investment Manager......................................5
Section 1.22. Normal Retirement.......................................5
Section 1.23. Participant.............................................5
Section 1.24. Plan....................................................5
Section 1.25. Plan Year...............................................6
Section 1.26. Qualified Joint and Survivor Annuity....................6
Section 1.27. Qualified Domestic Relations Order......................6
Section 1.28. Settlement Date.........................................6
Section 1.29. Termination of Employment...............................6
Section 1.30. Trustee, Trust Agreement, Trust Fund....................6
Section 1.31. Valuation Date..........................................6
Section 1.32. Year of Credited Employment.............................7
ARTICLE II. PLAN PARTICIPATION.............................................8
Section 2.1. Commencement of Active Participation....................8
Section 2.2. No Guaranty of Employment...............................8
Section 2.3. Transfers...............................................8
Section 2.4. Rehire After Termination of Employment..................9
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ARTICLE III. ROLLOVER CONTRIBUTIONS.......................................10
Section 3.1. Rollover Contributions.................................10
Section 3.2. Other Employee Contributions...........................10
ARTICLE IV. ELECTIVE DEFERRALS, EMPLOYER MATCHING CONTRIBUTIONS, AND
EMPLOYER CONTRIBUTIONS........................................11
Section 4.1. Elective Deferrals.....................................11
Section 4.2. Amount and Deposit of Elective Deferrals...............11
Section 4.3. Employer Matching Contributions........................13
Section 4.4. Employer Contributions.................................14
Section 4.5. No Liability for Future Employer Contributions.........14
Section 4.6. Timing and Deductibility of Contributions..............14
Section 4.7. Contributions for Omitted Participants.................15
Section 4.8. Maximum Limitations on Annual Additions................15
ARTICLE V. INVESTMENTS ...................................................17
Section 5.1. Direction of Investment................................17
Section 5.2. Description of Funds...................................17
Section 5.3. Funding Policy.........................................18
Section 5.4. Voting and Tender Rights as to Company Common Stock....18
Section 5.5. Securities Law Requirements............................19
ARTICLE VI. PARTICIPANT ACCOUNTS..........................................20
Section 6.1. Description of Participant Accounts....................20
Section 6.2. Allocation of Employer Contributions...................20
Section 6.3. Allocation of Changes in Value.........................21
Section 6.4. Special Account Adjustments............................21
Section 6.5. Responsibility to Maintain Account Balances............21
ARTICLE VII. BENEFITS ....................................................22
Section 7.1. Retirement.............................................22
Section 7.2. Death..................................................22
Section 7.3. Vested Benefits for Other Termination of Employment....22
Section 7.4. Settlement Date and Form and Time of Distribution......24
Section 7.5. Participant Election...................................25
Section 7.6. Distribution of Company Common Stock...................25
Section 7.7. Time for Distribution of Accounts......................25
Section 7.8. Required Distribution Rules............................26
Section 7.9. Loans..................................................26
Section 7.10. Hardship Withdrawal....................................28
Section 7.11. Nonalienation of Benefits..............................29
Section 7.12. Receipt of Domestic Relations Order....................30
Section 7.13. Payment of Taxes.......................................30
Section 7.14. Incompetent or Minor Payee.............................30
Section 7.15. Notice, Place and Manner of Payment....................31
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Section 7.16. Source of Benefits.....................................31
Section 7.17. Direct Transfer of Eligible Rollover Distributions.....31
ARTICLE VIII. PLAN ADMINISTRATION.........................................33
Section 8.1. The Plan Administrator.................................33
Section 8.2. Agent for Legal Process................................36
Section 8.3. Claims Procedures......................................36
Section 8.4. Records................................................37
Section 8.5. Correction of Errors...................................38
Section 8.6. Evidence...............................................38
Section 8.7. Bonding................................................38
Section 8.8. Fees and Expenses......................................38
Section 8.9. Waiver of Notice.......................................38
ARTICLE IX. TRUST FUND 39
Section 9.1. Composition............................................39
Section 9.2. Purpose................................................39
Section 9.3. Initial and Successor Trustees.........................39
Section 9.4. Powers of Trustee......................................39
Section 9.5. Accounting, Reports....................................40
Section 9.6. Disbursements..........................................40
Section 9.7. Compensation, Reimbursement............................41
Section 9.8. Trustee Indemnification................................41
Section 9.9. Investment Managers....................................41
ARTICLE X. TOP-HEAVY PLAN PROVISIONS......................................43
Section 10.1. Top-Heavy Restrictions.................................43
Section 10.2. Minimum Top-Heavy Benefits.............................44
Section 10.3. Top-Heavy Vesting Requirements.........................44
ARTICLE XI. ADOPTION, AMENDMENT, TERMINATION AND MERGER...................46
Section 11.1. Adoption of Plan by Additional Employer................46
Section 11.2. Amendment..............................................46
Section 11.3. Termination............................................46
Section 11.4. Discontinuance of Contributions........................47
Section 11.5. Rights Upon Termination, Partial Termination and
Discontinuance of Contributions........................47
Section 11.6. Deferral of Distributions..............................47
Section 11.7. Merger, Consolidation or Transfer of Plan Assets.......47
ARTICLE XII. MISCELLANEOUS................................................48
Section 12.1. Responsibility of Insurance Companies..................48
Section 12.2. Limitation of Fiduciary Responsibility and Liability...48
Section 12.3. USERRA.................................................48
Section 12.4. Effective Dates........................................48
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Section 12.5. Construction...........................................49
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ARTICLE I. DEFINITIONS
Section 1.1. Account. "Account" means any of the several records
maintained to reflect a Participant's interest in the Plan which, in reflecting
the separate values described in the Plan, shall be individually designated as
the "Profit Sharing Account," the "401(k) Account," and the "Rollover
Contribution Account." Only a Participant's Profit Sharing Account is subject to
the vesting requirements of Article VII. All other Accounts are fully and
immediately vested and nonforfeitable.
Section 1.2. Administrator. "Administrator" means the Company or other
individual or committee designated by the Board of Directors to serve as the
Plan administrator. The Administrator is the named fiduciary under ERISA for the
Plan.
Section 1.3. Affiliate. "Affiliate" means any member of a controlled
group of corporations, group of trades or businesses under common control or
affiliated service group, as defined in Section 414(b), (c), (m), or (o) of the
Code, that includes an Employer.
Section 1.4. Beneficiary. "Beneficiary" means such person or entity
designated, in writing, by a Participant, or by the Plan in the absence of
designation by a Participant, as the beneficiary of the Participant's Account
balances in the Plan as described in Section 7.2.
Section 1.5. Board of Directors. "Board of Directors" means the Board
of Directors of the Company, or the appropriate committee of members of such
Board of Directors delegated supervisory responsibility for the Plan.
Section 1.6. Break in Service. With respect to an employee, a "Break
in Service" shall accrue at the end of any Plan Year in which the employee does
not complete more than five hundred (500) Hours of Service.
Section 1.7. Code. "Code" means the Internal Revenue Code of 1986, as
interpreted by regulations and rulings issued pursuant thereto, all as amended
and in effect from time to time.
Section 1.8. Company. "Company" means Fresh Brands Distributing, Inc.,
f/k/a Schultz Sav-O Stores, Inc., a Wisconsin corporation, and any successors
and assigns thereto.
Section 1.9. Compensation. The "Compensation" of an Employee for any
period means the wages, salaries, fees for professional services, and other
amounts received (without regard to whether or not an amount is paid in cash)
for personal services actually rendered in the course of employment with the
Employer to the extent that the amounts are includable in gross income
(including, but not limited to, commissions paid to a salesperson, compensation
for services on the basis of a percentage of profits, commissions on insurance
premiums, tips, bonuses, fringe benefits and reimbursements or other expense
allowances
under a nonaccountable plan (as described in Treasury Regulation Section
1.62-2(c)) determined prior to reductions for elective contributions that are
made by the Employer on behalf of Employees that are not includable in gross
income under Code Sections 125, 132(f)(4), 402(g), and 402(h). All other amounts
shall be excluded from Compensation including amounts described in Treasury
Regulation Section 1.415-2(d)(3), such as Employer contributions on behalf of
the Participant to any plan of deferred compensation to the extent that, before
application of Code Section 415 limitations to that plan, the contributions are
not includable in the gross income of the Employee for the taxable year in which
contributed; amounts realized from the exercise of a nonqualified stock option,
or when restricted stock or property held by an Employee either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture;
amounts realized from the sale, exchange or other disposition of stock acquired
under a qualified stock option; and other amounts which receive special tax
benefits, such as premiums for group-term life insurance (but only to the extent
that the premiums are not includable in the gross income of the Employee). The
annual Compensation of each Participant taken into account for any Plan Year
beginning before January 1, 2002, shall not exceed $150,000, as adjusted for
cost-of-living increases in accordance with section 401(a)(17)(B) of the Code.
The annual Compensation of each Participant taken into account for any Plan Year
beginning after December 31, 2001, shall not exceed $200,000, as adjusted for
cost-of-living increases in accordance with section 401(a)(17)(B) of the Code.
Section 1.10. Disability. "Disability" means a total and permanent
physical or mental disability certified by a licensed physician acceptable to
the Administrator which (i) results from bodily injury or disease, whether
occupational or non-occupational; (ii) precludes a Participant from engaging in
the duties of his or her employment; and (iii), on the basis of medical
evidence, is reasonably expected to be permanent and continuous for the
remainder of the Participant's life, all as determined by the Administrator, in
its sole discretion, pursuant to such uniform rules, regulations, and standards
as it may prescribe from time to time and consistently apply to all Participants
in like circumstances.
Section 1.11. Early Retirement. "Early Retirement" means a Termination
of Employment of a Participant (except termination by death) occurring on or
after the earlier of (i) the date upon which the Participant attains age
fifty-five (55) and has completed five (5) Years of Credited Employment; or (ii)
the date upon which the Participant has completed twenty (20) Years of Credited
Employment without regard to age. For Termination of Employment occurring before
January 1, 1996, "Early Retirement" required attainment of age sixty (60) and
the completion of five (5) Years of Credited Employment.
Section 1.12. Effective Date. The original "Effective Date" of the
Plan is December 22, 1954. The Effective Date of the Plan as amended and
restated herein is January 1, 2001, or such other date as specified herein, or
such later date the Plan becomes effective with respect to Employees of an
Employer pursuant to Section 11.1.
Section 1.13. Elective Deferrals. "Elective Deferrals" means elective
deferrals made under Code Section 401(k) by a Participant which are contributed
to the Plan by an Employer in lieu of the Participant receiving such amount as
additional compensation.
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Section 1.14. Employee. An "Employee" means any person actively
employed by an Employer and reported on the Employer's payroll records as a
common law employee. In particular, it is expressly intended that individuals
not treated as common law employees by an Employer on its payroll records are to
be excluded from Plan participation even if a court or administrative agency
determines that such individuals are common law employees and not independent
contractors. The term "Employee" does not include any other common law employee
or any leased employee (including a "leased employee" within the meaning of Code
Section 414(n) and (o)), but in the event a leased employee within the meaning
of Code Section 414(n) and (o) becomes eligible to participate in the Plan,
credit shall be given for the person's service as a leased employee toward
completion of the Plan's eligibility and vesting requirements, including service
for any Affiliate. The term "Employee" also excludes student employees, interns
and persons becoming employed by an Employer as the result of acquisition or
establishment by the Employer of additional operations, locations, or
businesses, unless such extension of coverage is specifically authorized by
written action of the Employer. The term "Employee" also does not include any
person the terms of whose employment are governed by the provisions of a
collective bargaining agreement with respect to which retirement benefits were
the subject of good faith negotiation unless such agreement specifically
provides for coverage hereunder.
Section 1.15. Employer. The "Employer" means the Company and each
Affiliate which has been authorized by the Company pursuant to Section 11.1 to
participate in the Plan and which has adopted the Plan by appropriate corporate
action.
Section 1.16. Employer Matching Contributions. "Employer Matching
Contributions" means amounts contributed by an Employer pursuant to Section 4.3
hereof based on the Elective Deferrals of the Participant.
Section 1.17. ERISA. "ERISA" means the Employee Retirement Income
Security Act of 1974, as interpreted by regulations and rulings issued pursuant
thereto, all as amended and in effect from time to time.
Section 1.18. Highly Compensated Employee.
(a) "Highly Compensated Employee" means both highly compensated active
employees and highly compensated former employees within the meaning of Code
Section 414(q).
(b) A highly compensated active employee includes any employee of an
Employer or an Affiliate (referred to in this Section collectively as the
"employer") who performs service for an employer during the determination year
and who: (i) at any time during the look-back year or determination year, is a
five percent (5%) owner within the meaning of Code Section 414(q) or (ii)
received Compensation from the Employer during the look-back year in excess of
eighty thousand dollars ($80,000) (as adjusted pursuant to Code Section 415(d)
and are in the top twenty percent (20%) of employees when ranked on the basis
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of compensation. The determination year shall be the Plan Year and the look-back
year shall be the twelve-month period immediately preceding the determination
year.
(c) A highly compensated former employee includes any employee of the
employer who separated from service (or was deemed to have separated from
service) prior to the determination year, performs no service for the employer
during the determination year, and was a highly compensated active employee for
either the separation year or any determination year ending on or after the
employee's fifty-fifth (55th) birthday.
(d) The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of employees in the
top-paid group and the compensation that is considered, will be made in
accordance with Code Section 414(q).
Section 1.19. Hours of Service. "Hours of Service" shall be aggregated
for service with an Employer and any Affiliate, and shall include each hour for
which an employee is directly paid or indirectly paid for the performance of
duties. Hours of Service shall also include each hour not credited under the
preceding sentence for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to, and each of the first five hundred and one (501)
hours during a single continuous period of absence for which an employee is paid
or entitled to payment for vacation, holiday, illness, incapacity (including
Disability), layoff, jury duty, military duty, or leave of absence.
Notwithstanding the foregoing, no credit shall be given for payments pursuant to
applicable workers' compensation or unemployment compensation or disability
insurance laws. In the case of an employee absent by reason of maternity or
paternity leave (within the meaning of Code Section 410(a)(5)(E)) or under an
authorized leave under the Family Medical Leave Act of 1993, as amended, Hours
of Service shall be credited solely for purposes of determining whether a Break
in Service has occurred unless credit for such Hours of Service is authorized by
other paragraphs of this Section, but not to exceed five hundred and one (501)
Hours of Service for any single continuous period of absence; provided that if
such Hours of Service are not needed in the year the leave began to avoid a
Break in Service during such year, the Hours of Service will be credited in the
following year. The Administrator shall determine each employee's Hours of
Service in accordance with Department of Labor Regulations Section
2530.200b-2(b) and (c) and the applicable provisions of the Code, using in the
case of exempt salaried employees for whom records of hours worked are not
maintained an equivalency method based on forty-five (45) Hours of Service for
each week for which such employee would be required to be credited with at least
one Hour of Service based on the foregoing rules.
Section 1.20. Investment Fund. "Investment Fund" means any of the
funds referred to in Article V hereof which are established for the investment
of a Participant's Account balances and constitutes part of the Trust Fund.
Section 1.21. Investment Manager. "Investment Manager" means the
Administrator or a person, insurance company, corporation or association which
qualifies as an "investment manager" as defined in ERISA Section 3(38),
including the Trustee and any
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Employer, appointed pursuant to Article IX hereof to direct the investment of
all or any portion of the assets held by the Trustee under the Trust Agreement.
Section 1.22. Normal Retirement. "Normal Retirement" means a
Termination of Employment of a Participant (except termination by death)
occurring on or after the date upon which the Participant attains the later of
age sixty-five (65) or the fifth (5th) anniversary of the Participant's date of
participation in the Plan.
Section 1.23. Participant. A "Participant" is a person who has been or
who is an Employee admitted to participation in the Plan pursuant to Article II,
and who continues to be entitled to benefits under the Plan.
Section 1.24. Plan. The name of the "Plan" is the Fresh Brands
Distributing Retirement Savings Plan. Prior to July 1, 2001, the Plan was called
the Schultz Sav-O Stores Retirement Savings Plan, and prior to July 1, 1994, the
Plan was called the Schultz Sav-O Stores Salaried Employees' Profit Sharing
Trust. The Plan is designated a profit sharing plan with a cash-or-deferred
arrangement for Code purposes.
Section 1.25. Plan Year. The "Plan Year" is the twelve (12)
consecutive month period ending on any December 31. The Plan Year is the year on
which records of the Plan are kept.
Section 1.26. Qualified Joint and Survivor Annuity. "Qualified Joint
and Survivor Annuity" means an immediate annuity for the life of the Participant
with a survivor annuity for the life of the Participant's surviving spouse which
is fifty percent (50%) of the amount of the annuity payable during the joint
lives of the Participant and the spouse and which is the amount of benefit which
can be purchased with the Participant's Account in the Plan.
Section 1.27. Qualified Domestic Relations Order. A "Qualified
Domestic Relations Order" means a domestic relations order within the meaning of
Code Section 414(p) which creates or recognizes the existence of an alternate
payee's right to, or assigns to an alternate payee the right to, receive all or
a portion of the benefits payable with respect to a Participant under the Plan.
Section 1.28. Settlement Date. "Settlement Date" means the date on
which the value of an Account is determined for purposes of distributions, as
further defined in Section 7.4(a).
Section 1.29. Termination of Employment. The "Termination of
Employment" of an Employee for purposes of the Plan shall be deemed to occur
upon the Employee's resignation, discharge, retirement, death, failure to return
to the performance of duties at the end of an approved leave of absence, failure
to return to work when duly called following a layoff, or upon the happening of
any other event or circumstance which, under the policy of the Employer as in
effect from time to time, results in the termination of the Employer-Employee
relationship.
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Section 1.30. Trustee, Trust Agreement, Trust Fund. The assets of the
Plan shall be held in trust pursuant to the provisions of the "Trust Agreement"
hereby continued which was originally created effective December 2, 1954. The
"Trustee" is the Marshall & Ilsley Trust Company and any successor Trustee or
Trustees appointed hereunder. The "Trust Fund" means the fund established
pursuant to the Trust Agreement.
Section 1.31. Valuation Date. The "Valuation Date" means the date as
of which the Trust Fund and accounts are periodically valued, which shall be the
last business day of each Plan Year and such interim dates as the Trustee may
prescribe.
Section 1.32. Year of Credited Employment. A "Year of Credited
Employment" means each Plan Year in which an employee completes one thousand
(1,000) or more Hours of Service. Partial Years of Credited Employment are not
recognized. Years of Credited Employment also include one (1) year for each year
prior to January 1, 1976, which was credited under Plan as in effect on December
31, 1975.
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ARTICLE II. PLAN PARTICIPATION
Section 2.1. Commencement of Active Participation.
(a) An Employee shall become a Participant for purposes of eligibility
to receive Employer basic and discretionary contributions as of the January 1 of
the Plan Year in which the Employee completes a Year of Credited Employment;
provided such January 1 entry date is after the date the Employee first
completes an Hour of Service as an Employee.
(b) An Employee may, however, elect to begin making Elective Deferrals
(and receive Employer Matching Contributions) as soon as practical after
completion of one (1) Hour of Service as an Employee.
(c) An Employee may begin making Elective Deferrals when first
eligible or as of any subsequent date permitted by Administrator rule which
shall not be less frequent than annual. The Employer shall advise Employees of
their initial eligibility to make Elective Deferrals but shall have no
obligation to provide additional notice of such eligibility thereafter. Any
contribution election agreement hereunder is voluntary and enrollment in the
Plan as a contributing Participant shall constitute acceptance of the terms of
the Plan.
Section 2.2. No Guaranty of Employment. Participation in the Plan does
not constitute a guaranty or contract of employment with an Employer. Such
participation shall in no way interfere with any rights an Employer would have
in the absence of such participation to determine the duration of the Employee's
employment with an Employer.
Section 2.3. Transfers.
(a) In the event a Participant transfers employment to a non-Employee
status, contributions shall be made to the Plan on the Participant's behalf as
if the Participant terminated employment on the date of transfer for a reason
entitling the Participant to receive an allocation of Employer Matching
Contributions for the Plan Year in which the transfer occurred. If such
Participant is eligible to participate in any other defined contribution plan
sponsored by an Affiliate, the Participant's Account may be transferred to such
plan in such manner and at such time as the Administrator shall direct.
(b) If a person transfers employment to Employee status from an
excluded status, such person shall be eligible to become a Participant
immediately on the date of transfer if such person has satisfied all of the
requirements of Section 2.1(a) or (b), as applicable, by treating service in the
excluded status as service as an Employee. In any other event, such person shall
become a Participant only after satisfying the eligibility requirements of
Section 2.1(a) or (b), as applicable. If such person was participating in
another defined contribution plan sponsored by an Affiliate and such other plan
desires to transfer the person's account balances thereunder to this Plan, the
Administrator may in its discretion accept such transfer and the funds shall be
treated for all purposes hereunder as Account balances of the Employee.
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Section 2.4. Rehire After Termination of Employment.
(a) A terminated Employee who has met the eligibility requirements of
Section 2.1(a) or (b), and is rehired by an Employer, will immediately become
eligible to become a Participant for all purposes of the Plan as of the date of
rehire as an Employee.
(b) A terminated Employee who has not met the eligibility requirements
of Section 2.1(a) or (b) and is rehired by an Employer, will become eligible to
participate only after satisfying the eligibility requirements of Section 2.1(a)
or (b) following rehire, but counting for these purposes the Hours of Service
credited prior to such termination. Notwithstanding the foregoing, a terminated
Employee who has not met the eligibility requirements of Section 2.1(a) or (b)
and is not vested, and who is rehired by an Employer after incurring five (5)
consecutive Breaks in Service, will be treated as a new hire and will not be
credited with any prior Hours of Service.
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ARTICLE III. ROLLOVER CONTRIBUTIONS
Section 3.1. Rollover Contributions. Any Employee may from time to
time contribute to the Trust Fund a rollover contribution in cash. An Employee
making a rollover contribution shall provide such documentation with respect to
the rollover contribution as the Administrator may prescribe. Effective January
1, 2002, the Plan will accept rollovers from tax-sheltered annuity plans
described in Code Section 403(b) or eligible governmental plans described in
Code Section 457(b). If the rollover contribution is distributed from an
individual retirement account ("IRA"), the Employee shall supply evidence
satisfactory to the Administrator confirming that such IRA is a conduit IRA
which has received no annual IRA contributions from the Employee. A rollover
contribution made by an Employee shall be credited to an Account in the name of
such Employee as of the date of its receipt by the Trustee. The balance of a
Participant's Rollover Contribution Account shall be nonforfeitable for all
purposes of the Plan. Upon Termination of Employment, such balance shall be
distributed to such Employee or his or her Beneficiary, as the case may be,
pursuant to the provisions of the Plan.
Section 3.2. Other Employee Contributions. Employee after-tax
contributions to the Plan are neither required nor permitted, and effective
January 1, 2002, the Plan will not accept rollovers of after-tax contributions.
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ARTICLE IV. ELECTIVE DEFERRALS,
EMPLOYER MATCHING CONTRIBUTIONS, AND
EMPLOYER CONTRIBUTIONS
Section 4.1. Elective Deferrals.
(a) A Participant may voluntarily elect to make Elective Deferrals in
lieu of receiving the same amount as current Compensation. Elective Deferrals
shall be credited to an Employee's 401(k) Account as of the date of receipt by
the Trustee. The balance of a Participant's 401(k) Account shall be
nonforfeitable for all purposes of the Plan.
(b) Effective for Plan Years beginning on or after January 1, 2002, a
Participant who has attained age 49 as of the last day of the immediately
preceding Plan Year may voluntarily elect to make a "catch-up" Elective Deferral
in lieu of receiving the same amount as current Compensation, in accordance with
and subject to the limitations of Code Section 414(v) and the rules prescribed
by the Administrator. Catch-up Elective Deferrals shall be credited to an
Employee's 401(k) Account as of the date of receipt by the Trustee. Such
catch-up contributions shall not be taken into account for purposes of the
provisions of the Plan implementing the required limitations of Code Sections
402(g) and 415.
(c) A Participant's election with respect to Elective Deferrals (or
change or revocation of such election) shall be in writing, signed by the
Participant, and on such form as the Administrator shall prescribe. The
Administrator may, from time to time, adopt policies or rules governing such
elections so that the Plan may be conveniently administered.
Section 4.2. Amount and Deposit of Elective Deferrals.
(a) A Participant's election under Section 4.1 above shall be in whole
percentages (or if permitted by the Administrator with respect to catch-up
contributions, dollar amounts) and shall not exceed such maximum percentages or
amounts of Compensation as may be determined by the Administrator from time to
time either for Highly Compensated Employees or for all employees as a group in
a uniform and nondiscriminatory manner. All Elective Deferrals made by a
Participant and contributed by an Employer shall be required to be tax
deductible by such Employer in the year in which made.
(b) The rate or amount of a Participant's Elective Deferrals shall
remain in effect until changed or revoked pursuant to Administrator rule.
Elections may be changed once during each calendar year quarter or more
frequently if permitted by Administrator rule. Elective Deferrals may be revoked
at any time by providing advance written notice to the Administrator.
Participants will not be permitted to make up Elective Deferrals not made due to
such revocation or as the result of a change in election. As of any date
permitted under Administrator rules, but not less frequently than quarterly, a
Participant may again commence making Elective Deferrals following his or her
prior revocation by completing a new contribution election form and filing it
with the Employer in advance.
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(c) Participant elections, changes, and revocations shall be effective
when implemented by the Administrator. The Administrator will implement
elections, changes, and revocations as soon as practical upon receipt of
adequate written notice of the same. Notwithstanding the foregoing, in order to
ensure the favorable tax treatment of Elective Deferrals hereunder pursuant to
Code Section 401(k) or to ensure compliance with Code Sections 402(g), 414(v) or
415, the Administrator in its discretion may prospectively decrease the rate (or
amount) of Elective Deferrals of any Participant at any time.
(d) No Participant's Elective Deferrals shall be in excess of the
applicable annual dollar limitation permitted pursuant to Code Section 402(g) or
Code Section 414(v), as applicable, for the Plan Year. In the event any
Participant makes contributions that exceed the Code Section 402(g) limitation
("Excess Deferrals") for any calendar year, the Excess Deferrals will or may be
distributed under the following rules. If the Participant makes an Excess
Deferral solely to this Plan, or to this Plan and to another plan maintained by
an Employer or its Affiliates, the Participant will be deemed to have notified
the Administrator of such excess, and the Plan will distribute the Excess
Deferral (or the pro rata portion of the Excess Deferral allocable to this Plan
if the Excess Deferral was made to more than one plan) and attributable earnings
(but excluding gap period income) as soon as practicable after it discovers the
excess, but not later than the April 15th of the Plan Year following the Plan
Year in which the Excess Deferral was made. If the Participant made his or her
Excess Deferral to this Plan and the plan of another non-Affiliate employer, the
Participant must notify the Administrator in writing of the amount of such
Excess Deferral that will be allocated to this Plan no later than March 1 of the
following year, and the Administrator may (but is not required to) direct the
Trustee to distribute the allocated Excess Deferral and attributable earnings
(but excluding gap period income) by the April 15th of the following year. The
Participant must certify to the Administrator the amount of the Excess Deferral
to be allocated to this Plan. At the same time as Excess Deferrals are
distributed, Employer Matching Contributions that were made with respect to such
Excess Deferrals will be forfeited; provided that, when refunding Excess
Deferrals, Elective Deferrals for which no Employer Matching Contribution was
made will be refunded before Elective Deferrals for which an Employer Matching
Contribution was made.
(e) The Plan is subject to the limitations of Code Section 401(k)
which are incorporated herein by this reference. Accordingly, the actual
deferral percentage for Employees who are Highly Compensated Employees as
defined in Code Section 414(q) shall not exceed the greater of:
(i) the actual deferral percentage for the prior Plan
Year of the Employees who are nonhighly
compensated employees multiplied by one and
twenty-five hundredths (1.25), or
(ii) the lesser of the actual deferral percentage for
the prior Plan Year of the Employees who are
nonhighly compensated employees plus two (2)
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percentage points, or the actual deferral
percentage for the Prior Plan Year of the
nonhighly compensated employees multiplied by two
(2),
subject to such other applicable limit as may be prescribed by the Secretary of
the Treasury to prevent the multiple use of this alternative limitation.
Effective for Plan Years beginning after December 31, 2001, the multiple use
limitation shall no longer apply. Any excess contributions (including applicable
income determined pursuant to applicable regulations), determined (i) after any
recharacterization of deferrals as after tax contributions if applicable and use
of qualified nonelective contributions and/or qualified matching contributions
as helpful in the actual deferral percentage test, and (ii) by leveling the
highest deferral amounts until the test is satisfied in accordance with the
procedures specified in Code Section 401(k), shall be distributed, including
applicable income (but not gap period income) determined pursuant to applicable
regulations. For purposes hereof, corrective distributions shall first be taken
from all unmatched Elective Deferrals. In the event that matched Elective
Deferrals are required to be distributed hereunder, any related Employer
Matching Contributions (and earnings thereon, but excluding gap period income)
shall be forfeited. Such distributions shall be made during the Plan Year
following the year the excess contributions were made, and the amount shall be
determined based on the respective amounts attributable to each Highly
Compensated Employee as determined pursuant to Code Section 401(k)(8) and based
on compensation as defined in Code Section 415(c)(3).
Section 4.3. Employer Matching Contributions.
(a) Each Employer shall contribute to a Participant's 401(k) Account
an amount equal to twenty-five percent (25%) of the amount of Elective Deferrals
contributed by each Participant pursuant to Section 3.1, up to four percent (4%)
of Compensation for the Plan Year; provided that an Employer Matching
Contribution shall not be made with respect to Elective Deferrals designated as
catch-up contributions. Employer Matching Contributions shall regularly be made
as soon as practical following each payroll, but not less frequently than
monthly. Employer Matching Contributions shall be credited to the Employee's
401(k) Account as of the date of receipt by the Trustee and shall be
nonforfeitable for all purposes of the Plan.
(b) The Plan is subject to the limitations of Code Section 401(m)
which are incorporated herein by this reference. Accordingly, the actual
contribution percentage of Employer Matching Contributions for Employees who are
Highly Compensated Employees as defined in Code Section 414(q) shall not exceed
the greater of:
(i) the actual contribution percentage for the prior
Plan Year of the Employees who are nonhighly
compensated employees multiplied by one and
twenty-five hundredths (1.25), or
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(ii) the lesser of the actual contribution percentage
for the prior Plan Year of the Employees who are
nonhighly compensated employees plus two (2)
percentage points, or the actual contribution
percentage for the prior Plan Year of the
nonhighly compensated employees multiplied by two
(2),
subject to such other applicable limit as may be prescribed by the Secretary of
the Treasury to prevent the multiple use of this alternative limitation.
Effective for Plan Years beginning after December 31, 2001, the multiple use
limitation shall no longer apply. In order to ensure compliance with Code
Section 401(m), any excess aggregate contributions, determined (i) after any
recharacterization of deferrals as after tax contributions if applicable and use
of qualified nonelective contributions and/or qualified matching contributions
as helpful in the actual deferral percentage test, and (ii) by leveling the
highest contribution amounts until the test is satisfied in accordance with the
procedures specified in Code Section 401(m), shall be distributed, including
applicable income (but not gap period income) determined pursuant to applicable
regulations. Such distributions shall be made during the Plan Year following the
year the excess aggregate contributions were made, and the amount shall be
determined based on the respective portions attributable to each Highly
Compensated Employee and based on compensation as defined in Code Section
415(c)(3).
Section 4.4. Employer Contributions.
(a) Basic Contributions. Subject to its right to amend or terminate
the Plan, for each Plan Year each Employer shall contribute an amount, which
when added to forfeitures allocable for such year pursuant to Section 7.3
hereof, will equal five percent (5%) of the Compensation of all eligible
Participants (as determined pursuant to Section 6.2) for the year. This is the
Employer basic contribution for the year.
(b) Discretionary Contribution. In addition, for each Plan Year, an
Employer may contribute to the Trust Fund an amount, if any, determined in the
discretion of its Board of Directors. This is the Employer discretionary
contribution for the year.
(c) Forfeitures. Any final forfeitures declared pursuant to Section
7.3 shall be applied to offset the Employer contribution requirements of this
Section 4.4.
Section 4.5. No Liability for Future Employer Contributions. The
benefits under the Plan shall be only such as can be provided by the assets of
the Plan, and there shall be no liability or obligation on the part of the
Employer to make future contributions hereunder or to make any further
contributions in the event of termination of the Plan.
Section 4.6. Timing and Deductibility of Contributions. Subject to the
requirements of Section 4.3(a), Employer basic, discretionary, and matching
contributions shall be paid to the Trustee not later than the time, including
extensions thereof, prescribed by law for filing the federal income tax return
of the Employer for its fiscal year ending within or on the last day of the Plan
Year. For purposes of the Plan, however, such contributions shall
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be deemed to have been made not later than the last day of the fiscal year of
the Employer which ends within or on the last day of the Plan Year. Employee
Elective Deferrals shall be paid to the Trustee as soon as possible after they
are withheld from the Participant's Compensation, but in no event later than the
fifteenth (15th) business day after the end of the month in which they would
have otherwise been paid to the Participant in cash. The Trustee shall be under
no duty, expressed or implied, either to determine the amount of or to force the
collection of any contributions to the Trust Fund. All contributions to the Plan
are conditioned upon their deductibility by the Employer. In the event that any
portion of Elective Deferrals, Employer Matching Contributions, or Employer
basic or discretionary contributions made by an Employer for the Plan Year is
either paid to the Trustee due to a mistake of fact or disallowed as a deduction
under Code Section 404, such portion shall, upon the Administrator's written
direction, be returned to the Employer within one (1) year of its payment or
disallowance. In the case of termination of the Plan, any residual assets which
are held in suspense pursuant to Code Section 415 shall be returned to the
Company.
Section 4.7. Contributions for Omitted Participants. If, for any Plan
Year, after the Employer contributions made to the Trust Fund for that year have
been allocated, it should appear that, through oversight or a mistake of fact or
law, an Employee who should have been entitled to share in such contributions
received no allocation, received an allocation which was less than the Employee
should have received, or was otherwise omitted, the Employer, at its election,
and in lieu of reallocating such contributions, may make a special contribution
in an amount equal to the amount that would have been allocated to such
Employee's Account had such error not been made. Such special allocation may be
funded with a special contribution from the Employer for such purpose or out of
current earnings in the Trust Fund, as determined by the Employer and the
Administrator.
Section 4.8. Maximum Limitations on Annual Additions. Except to the
extent permitted by Section 4.1(b) and Code Section 414(v), the Plan is subject
to the limitations on benefits and contributions imposed by Code Section 415
which are incorporated herein by this reference. The limitation year shall be
the Plan Year. If the annual addition to a Participant's Accounts for any Plan
Year exceeds that limitation due to a reasonable error in estimating a
Participant's annual compensation or in determining the amount of Elective
Deferrals that may be made with respect to a Participant under Section 415 of
the Code, or as the result of the allocation of forfeitures, the amount of
contributions credited to the Participant's Account in that Plan Year shall be
adjusted to the extent necessary to satisfy that limitation in accordance with
the following order of priority:
(a) The Participant's Elective Deferrals for which no Employer
Matching Contribution was made under Section 4.3 shall be reduced to the extent
necessary. The amount of the reduction shall be returned to the Participant,
together with any earnings on the contributions to be returned;
(b) The Participant's Elective Deferrals for which an Employer
Matching Contribution was made, and the corresponding Employer Matching
Contribution, shall be reduced to the extent necessary. The amount of the
reduction attributable to the Participant's
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Elective Deferrals shall be returned to the Participant, together with any
earnings on those contributions, and the amount attributable to the Employer
Matching Contribution and earnings thereon shall be forfeited and shall be
allocated as a forfeiture during the determination year among all other eligible
Participants to the extent the limitations permit; and
(c) The Participant's Employer Contributions shall be reduced to the
extent necessary. The amount of the reduction, together with any earnings on
those contributions, shall be forfeited and shall be allocated as a forfeiture
during the determination year among all other eligible Participants to the
extent the limitations permit.
Any amounts which cannot be allocated due to the limitations shall be credited
to a suspense account subject to the following conditions: (i) amounts in the
suspense account shall be allocated as a forfeiture among all eligible
Participants hereunder at such time, including termination of the Plan or
complete discontinuance of Company contributions, as the foregoing limitations
permit, (ii) no investment gains or losses shall be allocated to the suspense
account, (iii) no further Company contributions shall be permitted until the
foregoing limitations permit their allocation to Participant's Accounts, and
(iv) upon termination of the Plan, any unallocated amounts in the suspense
account shall revert to the Company.
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ARTICLE V. INVESTMENTS
Section 5.1. Direction of Investment.
(a) Each Participant shall direct, in the manner the Administrator
prescribes, the percentage (in minimum multiples as prescribed by the
Administrator) of his or her Account and any future contributions to such
Account which shall be invested in each Investment Fund. An investment direction
shall remain in effect until changed by the Participant. The Beneficiary, in the
event of the Participant's death, may provide investment direction under this
Article.
(b) A Participant's direction of investment may be made or changed
once each calendar year quarter (or more frequently if permitted generally by
the Administrator) in accordance with Administrator rules and procedures. The
Participant shall be permitted to designate both the percentages of the current
balance to be allocated to particular funds as of the applicable change date and
the percentages of future contributions to be allocated to particular funds. No
reallocations shall be made due to differences in investment results between
various funds except as directed by the Participant.
(c) In the event a Participant fails to provide investment direction
with respect to his or her Account, such Account may be invested on the
Participant's behalf by the Administrator in an Investment Fund whose primary
objective is capital preservation.
Section 5.2. Description of Funds.
(a) The Administrator, in its discretion, shall select the Investment
Funds to be offered by the Plan. One of the Investment Funds shall at all times
be a Company Stock Fund which shall be invested primarily in the common stock of
the Company. Any or all of the Investment Funds, with the exception of the
Company Stock Fund, may be invested in common funds of the Trustee (or its
affiliates) or in mutual funds, which may be managed by the Trustee or its
affiliates.
(b) Pending investment in securities of a character described for an
Investment Fund, any part of a fund may be invested in money market mutual
funds, savings accounts, or other deposits with a bank, commercial paper or
other short-term securities, including any accounts, common funds, or mutual
funds of the Trustee or its affiliates utilizing similar investments.
(c) Additional Investment Funds may be established in the discretion
of the Administrator, with such titles and investment characteristics as shall
be determined by the Administrator and communicated to Participants. Any
Investment Fund may be eliminated or restructured in the discretion of the
Administrator after prior notice to Participants.
(d) Each Participant's Account in the Plan shall be invested in the
various Investment Funds as directed by the Participant.
-16-
Section 5.3. Funding Policy. The funding policy for the Plan is that
Investment Funds designated by the Administrator shall be managed in a manner
consistent with ERISA and the general investment objectives applicable to the
Investment Fund and for the purpose of defraying the reasonable expenses of
administering the Plan. The Administrator shall have primary responsibility for
carrying out the funding policy, and in addition to its specific
responsibilities set forth elsewhere in the Plan, shall establish and
communicate to the Trustee and/or other investment manager(s) the general
investment policy and objectives for the funds designated pursuant to Section
5.2 hereof. A Participant making investment elections and changes in accordance
with this Article thereby assumes full responsibility for such exercise of
control over assets in the Participant's accounts. No person who is otherwise a
fiduciary shall be liable for any loss, or by reason of any breach, which may
result from such person's exercise of control.
Section 5.4. Voting and Tender Rights as to Company Common Stock.
(a) Shares of Company common stock held by the Company Stock Fund are
allocated to Participants' Accounts in that investment fund as of each Valuation
Date. Shares which have been so allocated are referred to as allocated shares.
(b) Voting rights with respect to allocated shares as to which the
Trustee receives written instructions from the Participants to whom the shares
are allocated shall be voted by the Trustee as directed by such Participants or
not voted if so directed by a Participant. At the time of the mailing to
stockholders of the notice of any stockholders' meeting of the Company, the
Company, in conjunction with the Administrator and the Trustee, shall use its
reasonable best efforts to cause to be delivered to each such Participant such
notices and informational statements as are furnished to the Company's
stockholders in respect of the exercise of voting rights, together with forms by
which the Participant may confidentially instruct the Trustee, or revoke such
instruction, with respect to the voting of allocated shares. Upon timely receipt
of directions, the Trustee shall vote the allocated shares on each matter as
directed by the Participant. The Trustee shall vote or not vote all Company
common stock held by the Company Stock Fund that is not allocated to any
Participant's Account and all Company common stock allocated to a Participant's
Account which is not voted by the Participant because the Participant has not
directed (or has not timely directed) the Trustee as to the manner in which such
Company common stock is to be voted, as directed by the Administrator. All such
voting rights, instructions, and directions received by the Trustee from a
Participant shall be held in confidence by the Trustee and shall not be divulged
or released to any person, including directors, officers, and employees of the
Company or any Employer or Affiliate.
(c) Notwithstanding any provisions of the Plan, if there is a tender
offer for, or a request or invitation for tenders of, shares of Company common
stock held by the Company Stock Fund, the Administrator shall furnish either to
the Trustee, which shall then furnish to each Participant, or directly to
Participants at the Trustee's request, prompt notice of any such tender offer
for, or request or invitation for tenders of, such shares of Company common
stock and the Trustee shall request from each Participant instructions as to the
-17-
tendering of such Participant's allocated shares (which may include instructions
to refuse to tender). The Trustee shall tender only such shares of Company
common stock for which the Trustee has received (within the time specified in
the notification) tender instructions. With respect to shares of Company common
stock which are held by the Company Stock Fund, but which are not allocated
shares, and shares of Company common stock for which no instructions are
received, the Trustee may tender such shares of Company common stock in its
discretion. All such tender instructions received by the Trustee from a
Participant shall be held in confidence by the Trustee and shall not be divulged
or released to any person, including directors, officers, and employees of the
Company, or any Employer or Affiliate, or any person making the offer.
Section 5.5. Securities Law Requirements. The price at which the Plan
shall acquire newly-issued shares from the Company shall be the average of the
high and low sales prices, carried to three (3) decimal places, of the Company
common stock as reported in The Wall Street Journal (Midwest Edition) under
"NASDAQ National Market Issues" on the date immediately prior to the date of
purchase. If no trading occurs on the National Market in the Company common
stock on the date immediately prior to the date of purchase, the price will be
determined with reference to the next preceding date on which the Company common
stock is traded on the National Market. The price at which the Plan shall be
deemed to have acquired outstanding shares of Company common stock either in
open market purchases or through privately negotiated transactions shall be the
average price for such shares purchased at any time the Plan makes one or more
purchases to invest available funds in Company common stock. In the event
investment under the Plan is made both in newly-issued and outstanding shares,
the shares purchased shall be allocated proportionately among the Accounts of
all Participants for whom funds are being invested at that time. Purchases of
Company common stock by the Plan shall be made in compliance with applicable
securities laws including without limitation Rule 10b-6 and Rule 10b-18 under
the Securities Exchange Act of 1934, as amended, as such rules are in effect
from time to time.
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ARTICLE VI. PARTICIPANT ACCOUNTS
Section 6.1. Description of Participant Accounts. Separate Accounts
shall be established for each Participant to reflect the Participant's interests
in the Plan. Such Accounts may include a 401(k) Account (including subaccounts
for Elective Deferrals, Employer Matching Contributions and to the extent deemed
necessary by the Administrator, catch-up contributions), a Rollover Contribution
Account for rollover contributions, and a Profit Sharing Account for basic and
discretionary Employer contributions. As necessary or appropriate to provide for
proper administration of the Plan, the Accounts of Participants may include
subaccounts for interests invested in each Investment Fund provided in Article V
hereof, for interests derived from different sources of contributions, and for
such other purposes as the Administrator shall determine. Notwithstanding the
foregoing, in the discretion of the Administrator, two or more of the above
Accounts may be combined.
Section 6.2. Allocation of Employer Contributions.
(a) As of each December 31, the basic and discretionary Employer
contributions for the Plan Year shall be allocated among the Accounts of each of
the eligible Participants as defined in subsection (b) as follows:
(i) an amount equal to five percent (5%) of the
Participant's Compensation for such Plan Year;
(ii) to the extent sufficient funds remain after the
allocation in (i), an amount equal to the
Participant's Compensation for such Plan Year in
excess of the contribution and benefit base in
effect under Section 230 of the Social Security
Act for such year, if any such excess, times the
lesser of (A) the rate of tax under Code Section
3111(a) in effect on January 1 of the applicable
Plan Year which is attributable to old age
insurance but in no event less than five and
seven-tenths percent (5.7%) or (B) the sum of the
percentages in (i) and (iii) allocated on total
Compensation for such Plan Year; and
(iii) an amount determined by multiplying any remaining
Company contribution not allocated under (i) or
(ii) by a fraction, the numerator of which is the
Participant's Compensation for such Plan Year and
the denominator of which is the aggregate
Compensation of all eligible Participants for such
year.
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(b) The eligible Participants for a Plan Year shall be:
(i) all Participants who receive a Year of Credited
Employment for such year and are employed with an
Employer on December 31 of such year; and
(ii) all Participants who terminate employment during
such year because of retirement, death, or
Disability in circumstances for which benefits are
payable pursuant to Article VII.
(c) Notwithstanding the foregoing, the Employer contributions shall be
credited to the Accounts of Participants as of the date of receipt by the
Trustee.
Section 6.3. Allocation of Changes in Value. The Trust Fund and the
Investment Funds shall be unitized for accounting purposes. Each Valuation Date,
the Participants' Accounts shall be adjusted (based on the proportion that the
Participant's Interest in the Investment Funds bears to all Participants'
interests in such fund) to reflect the effect of the Trust Fund's net earnings
or losses, which includes income received, any changes in fair market value,
expenses and all other transactions since the prior Valuation Date.
Section 6.4. Special Account Adjustments. If, in the judgment of the
Administrator, it appears at any time that an adjustment of accounts pursuant to
the preceding Sections would result in an unreasonable inequity to any Plan
Participant because of unusual market conditions or because of
disproportionately large contributions or distributions, the Administrator shall
cause all accounts to be adjusted pursuant to Section 6.3 at such date or dates
as the Administrator may determine necessary to eliminate such unreasonable
inequity as if such date or dates were a Valuation Date.
Section 6.5. Responsibility to Maintain Account Balances. The
responsibility to maintain Account balances pursuant to the provisions of this
Section 6 shall be discharged by the Administrator, which may engage a
professional recordkeeper for this purpose. The Administrator shall keep
separate Accounts for each Participant's accrued benefits under the Plan,
showing the manner in which it has determined the entries made to each such
Account. The Administrator shall make arrangements with the Company for the
delivery to each Participant of a statement showing, as of the close of the Plan
Year, and more frequently as determined by the Administrator, each Participant's
credited balance to each of his or her Accounts.
-20-
ARTICLE VII. BENEFITS
Section 7.1. Retirement. A Participant shall become entitled to the
full amount credited to his or her Accounts in any of the following ways:
(a) Termination of Employment with the Employer and all Affiliates on
or after Normal Retirement; or
(b) Termination of Employment with the Employer and all Affiliates on
or after Early Retirement; or
(c) Termination of Employment with the Employer and all Affiliates due
to Disability.
Section 7.2. Death. The Participant's Beneficiary shall be entitled to
the full amount credited to the Participant's Accounts in the event of the
Participant's death while actively employed with the Employer or Affiliates. In
the event a Participant dies after Termination of Employment but prior to full
payment of any distribution to which he or she is entitled, the unpaid portion
of any such distribution shall be payable to the Participant's Beneficiary. The
Participant's written designation of his or her Beneficiary shall be filed with
the Administrator on such form and in such manner as the Administrator
prescribes. Only those beneficiary designations filed with the Administrator
before a Participant's death shall be given effect. In the event the Participant
is married, the Beneficiary shall be the Participant's spouse unless the spouse
consents in writing to the designation of an alternative Beneficiary after
notice of the spouse's rights and such consent is witnessed by a Plan
representative or a notary public. In the absence of a valid Beneficiary
designation being on file with the Administrator at the time of death or in the
absence of a surviving designated Beneficiary, the Beneficiary shall be the
Participant's spouse if there be one and, if there is no spouse, the
Participant's estate shall be deemed to be the Beneficiary. An alternate payee
pursuant to a Qualified Domestic Relations Order shall be authorized in the same
manner to designate a Beneficiary although the spouse of the alternate payee
does not have the rights afforded to the spouse of a Participant under the Plan.
Section 7.3. Vested Benefits for Other Termination of Employment.
(a) Any Participant whose employment is terminated for any reason
other than retirement, Disability or death under Sections 7.1 or 7.2 hereof,
shall be entitled to the entire balances of his or her 401(k), Matching and
Rollover Contribution Accounts and to the percentage of his or her Profit
Sharing Account balance on his or her Settlement Date (as specified in Section
7.4 hereof) representing his or her vested (or nonforfeitable) interest therein,
which percentage shall be determined in accordance with the vesting schedule set
forth below:
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Complete Years of Credited Percentage of Balance
Employment at Date of at Settlement Date
Termination Which is Nonforfeitable
-------------------------------- --------------------------------
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
(b) Notwithstanding subparagraph (a), if a Participant is discharged
because of unsatisfactory service, failure to cooperate with the management,
insubordination, misconduct, or dishonesty, the nonforfeitable percentage of the
remainder of his or her Profit Sharing Account shall be determined in accordance
with the table set forth below:
Complete Years of Credited Percentage of Balance
Employment at Date of at Settlement Date
Termination Which is Nonforfeitable
----------------------------------- --------------------------------
Less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
(c) Any nonvested percentage of the Participant's Profit Sharing
Account balance shall be held in a suspense account, and be credited with net
earnings, until it is either forfeited or reinstated upon reemployment. As of
the end of the Plan Year in which any such forfeiture occurs, the forfeited
amount shall be allocated as provided in Section 4.4(c) hereof. Any nonvested
amount of a Participant's Profit Sharing Account balance shall be forfeited as
of the first to occur of the last day of the Plan Year in which the Participant
receives, or is deemed to have received, full distribution of any vested balance
of his or her Profit Sharing Account, or the date on which the Participant
incurs a five (5) year Break in Service. A Participant who has a Termination of
Employment at a time when he or she has no vested interest in his or her
Profit-Sharing Account shall be deemed to have received a distribution of such
Account (i.e., cashed out) upon such Termination of Employment.
(d) If a Break in Service is incurred by a Participant with no vested
interest in his or her Profit Sharing Account under this Section, he or she
shall suffer an irrevocable forfeiture of his or her Profit Sharing Account
balance attributable to pre-break allocations and credits to that Account when
such break has continued to the point of being a five (5) year Break in Service.
If the former Participant returned to work for an Employer prior to such
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irrevocable forfeiture occurring, the amount preliminarily forfeited from the
Participant's Profit Sharing Account shall be restored to such Account upon the
Participant's rehire from future forfeitures or, to the extent necessary, a
special Employer contribution for this purpose.
(e) If a former Participant is reemployed before incurring a final
forfeiture hereunder, the forfeitable amount shall remain in his or her Account
and continue to vest according to the schedule above, taking into consideration
the Participant's nonforfeitable interest, if any, which was distributed to him
or her. In any such event of a distribution to a partially vested Participant,
the Participant's vested portion of his or her remaining account shall not be
less than an amount ("X") determined by the formula X = P(AB + D) - D. For
purposes of applying the formula, P is the vested percentage at the relevant
time, AB is the account balance at the relevant time, and D is the amount of the
distribution. Notwithstanding the foregoing, no forfeiture shall occur until the
vested portion of a Participant's account has been distributed; a Participant
whose vested balance has been distributed or who has no vested interest shall be
deemed cashed out from the Plan.
(f) If a terminated Employee is rehired by an Employer or Affiliate
before incurring five (5) consecutive Breaks in Service, the employee's prior
Years of Credited Employment shall be recognized immediately for all purposes of
the Plan. If a terminated Employee who has incurred at least five (5)
consecutive Breaks in Service is rehired by an Employer or Affiliate, the
Employee's Years of Credited Employment before the Termination of Employment are
disregarded for all Plan purposes if the Employee was not vested in any portion
of his or her Profit Sharing Account upon the Termination of Employment
occurring immediately before the Breaks in Service began. Notwithstanding the
foregoing, Years of Credited Employment completed prior to a Break in Service
occurring before January 1, 1985, shall be disregarded for purposes of
determining rights to the Participant's pre-Break benefit. If post-Break service
is disregarded when determining vested rights to pre-Break benefits, then
separate accounts shall be maintained for the Participant's post-Break and
pre-Break benefits.
Section 7.4. Settlement Date and Form and Time of Distribution.
(a) Settlement Date. The value of a Participant's Accounts on his or
her Settlement Date shall apply for purposes of any distribution under this
Section 7.4. "Settlement Date" shall mean the date on which a Participant's
Accounts are valued immediately preceding their distribution.
(b) Form. Unless a Participant otherwise elects pursuant to Section
7.5, benefits under Sections 7.1 and 7.3 shall be paid in the form of a
Qualified Joint and Survivor Annuity for any vested account balance which
exceeds five thousand dollars ($5,000) at the time benefits are first
distributable. Payments of Accounts with a vested balance of five thousand
dollars ($5,000) or less shall be paid in a lump sum. Payments to a surviving
spouse under Section 7.2 shall be made in the form of a single premium annuity
contract unless a lump sum is elected by the spouse. Any other payments under
Section 7.2 will be made in a lump sum.
-23-
(c) Elimination of Annuity Forms. If the Administrator so determines,
all forms of payment other than lump sums shall be eliminated hereunder as of
the 91st day (or such later date as the Administrator shall prescribe) following
the date the Administrator provides notice of such elimination to Participants
in accordance with the applicable Treasury regulations under Code Section
411(d)(6).
Section 7.5. Participant Election.
(a) A Participant may elect not to receive a Qualified Joint and
Survivor Annuity and instead receive a lump sum payment.
(b) Each Participant shall be notified by the Administrator of his or
her right of election under Section 7.5(a) as required by ERISA and pursuant to
the rules adopted by the Administrator. Any election under Subsection 7.4(a) may
be made or revoked any number of times at any time during the ninety (90) day
period before the annuity starting date. Any election by a married Participant
of a lump sum option shall be deemed invalid unless either (i) the Participant's
spouse as of his or her annuity starting date has executed the election form and
acknowledged its effect, with such consent being witnessed by a notary public or
a Plan representative appointed by the Administrator, or (ii) the Participant
has demonstrated to the Administrator that he or she has no spouse of whom
consent is required, his or her spouse cannot be located or he or she is excused
because of other circumstances recognized under the Code.
Section 7.6. Distribution of Company Common Stock. Unless a
Participant otherwise elects pursuant to uniform rules established by the
Administrator, distributions under this Plan shall be made in cash. For any lump
sum distribution of normal retirement benefits pursuant to Section 7.1, a
Participant may elect, up to the entire balance in his or her Account, to
receive full shares of Company common stock. Fractional shares may not be so
distributed.
Section 7.7. Time for Distribution of Accounts. Unless otherwise
elected by the Participant, payment of benefits will be made or commenced as
soon as practicable following the Settlement Date coincident with or next
following the Participant's Termination of Employment date if the Participant
(or Beneficiary) so elects, but not later than the sixtieth (60th) day next
following the close of the Plan Year during which the Participant dies, attains
age sixty-five (65), or if later, during which his or her Termination of
Employment date occurs. Notwithstanding any provision in this Section 7.7 to the
contrary, benefits shall be paid no later than the April 1 of the calendar year
next following the calendar year in which the Participant attains age seventy
and one half (70-1/2) years or terminates employment, whichever is later. If,
however, the Participant is a five percent (5%) owner (within the meaning of
Code Section 416), benefits shall be paid no later than the April 1 of the
calendar year next following the calendar year in which the Participant attains
age seventy and one-half (70-1/2) years even if the Participant is still
employed. In addition, any death benefits shall be completely distributed within
five (5) years of the Participant's death. No Account which is in excess of five
thousand dollars ($5,000) shall be distributed prior to the Participant's
attainment of age sixty-five (65) without the consent of the Participant in the
form described in
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Section 7.5 prior to the latest distribution date permitted herein. An Account
which is five thousand ($5,000) dollars or less on the date of the Participant's
Termination of Employment shall be distributed to the Participant (or his or her
Beneficiary) as soon as practicable after such Termination of Employment. With
respect to distributions under the Plan made for calendar years beginning on or
after January 1, 2002, the Plan will apply the minimum distribution requirements
of Code Section 401(a)(9) in accordance with the regulations thereunder that
were proposed on January 17, 2001, notwithstanding any provision of the Plan to
the contrary. This amendment shall continue in effect until the end of the last
calendar year beginning before the effective date of final regulations under
Code Section 401(a)(9) or such other date as may be specified in guidance
published by the Internal Revenue Service.
Section 7.8. Required Distribution Rules. All distributions from the
Plan shall be made in accordance with the rules of Code Section 401(a)(9) and
the rules provided in the applicable Treasury regulations, which are
incorporated herein by reference. The provisions of the Plan reflecting Code
Section 401(a)(9) override any distribution options in the Plan inconsistent
with such provisions.
Section 7.9. Loans. The Administrator shall be responsible for
administration of the Plan's loan program. Upon the written application of a
borrower based on financial hardship, filed with the Administrator, the
Administrator shall direct the Trustee to make a loan to such borrower out of
the borrower's 401(k) Account and Rollover Contribution Account, if any. Loans
are not permitted from Profit Sharing Accounts. For this purpose, a financial
hardship means an immediate and heavy financial need of the Participant which
cannot be satisfied from other resources reasonably available to such
Participant. Hardship loans are subject to the spousal consent requirements of
Code Sections 401(a)(11) and 417, and Section 7.5 of the Plan. A loan due to
financial hardship is made on account of an immediate and heavy financial need
of a Participant only if it is made on account of: (i) expenses incurred or
necessary for medical care, described in Code Section 213(d), of the
Participant, the Participant's spouse or any dependents of the Participant (as
defined in Code Section 152); (ii) purchase (excluding mortgage payments) of a
principal residence for the Participant; (iii) payment of tuition and related
educational fees for the next 12 months of post-secondary education for the
Participant or the Participant's spouse, children or dependents; or (iv) the
need to prevent the eviction of the Participant from his or her principal
residence or foreclosure on the mortgage of the Participant's principal
residence. A hardship loan shall be limited to the amount of the immediate and
heavy financial need. The following paragraphs shall also be applicable:
(a) Loans are available to each individual who is an Employee (or
person who is a party in interest within the meaning of ERISA Section 3(14)) and
who has a 401(k) Account or Rollover Contribution Account in the plan
attributable (i) to his or her own participation herein or (ii) to the
participation of a deceased Participant of whom the individual is a Beneficiary.
An individual in either of these two categories shall be referred to as a
"borrower." With respect to an individual who is in both of these categories,
the limitations in subparagraph (b), below, shall apply in the aggregate to all
of his or her account balances in the Plan.
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(b) Upon filing a proper written application with the Administrator
establishing financial hardship, an eligible borrower may borrow against his or
her 401(k) Account and Rollover Contribution Account, if any. Loan proceeds
shall be drawn from any Rollover Contribution Account first. Only one loan may
be maintained by an eligible borrower at a time. The maximum loan amount shall
not exceed one-half (1/2) the value of the borrower's interest in such Accounts
as of the Settlement Date immediately preceding such written application or, if
less, fifty thousand dollars ($50,000) reduced by the excess of the highest
outstanding loan balance in the preceding one (1) year period over the
outstanding loan balance on the date of the current loan. The minimum loan
amount is one thousand dollars ($1,000). Loan proceeds may be drawn
proportionately from all or some of the Investment Funds utilized by the
borrower for such Accounts, as determined by Administrator rule, and repayments
shall be deposited in accordance with the borrower's then current investment
direction.
(c) All loans shall bear interest commensurate with the rate which
would be charged by commercial lenders for similar loans in accordance with
Department of Labor Regulation ss. 2550.408b-1 as determined by the
Administrator. The duration of the loan shall be such period as may be agreed
upon by the borrower and the Administrator, but in no event shall the term
exceed five (5) years except that, for loans for the purchase of a primary
residence, such term shall not exceed fifteen (15) years. All loans shall be due
and payable in accordance with the terms of the loan, upon an event of default
described below, or if earlier, when a taxable distribution is made (i) in the
case of a borrower making a loan from his or her own accounts, after Termination
of Employment, or (ii) in the case of a borrower who is a Beneficiary borrowing
from the account of a deceased Participant, at any time after the death of such
Participant. The amount otherwise payable to the borrower shall be offset by any
unpaid principal and interest on the loan. In the event that a borrower's
account becomes distributable before repayment in full of all principal and
interest on outstanding loans, the note evidencing any outstanding loan may be
distributed to the borrower in full satisfaction of the remaining indebtedness.
(d) Each loan shall require regular amortization of principal and
interest on at least a quarterly basis. The terms and conditions of each loan
shall be incorporated in a promissory note executed by the borrower. Borrowers
shall repay their loans through payroll deduction. Installment payments, in the
form of a check or money order made payable to the Plan and remitted to the
Administrator, shall be made by any borrower whose payroll income is not
sufficient to satisfy the debt repayment schedule. Loans may be prepaid without
penalty. Every borrower shall receive a clear statement of the charges involved
in each loan transaction, which shall include the dollar amount and annual
interest rate of the finance charge.
(e) Amounts loaned to a borrower shall not share in Trust Fund
earnings, but shall be investments for the benefit of the borrower's account to
be treated as a segregated loan account until repaid.
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(f) A loan shall be secured by the borrower's account to the maximum
extent permitted by law. If a borrower defaults in the making of any payments on
a loan when due and such default continues through the end of the calendar
quarter following the calendar quarter in which the default arose, or in the
event of the borrower's bankruptcy, impending bankruptcy, insolvency or
impending insolvency, the loan shall be deemed to be in default, and the entire
unpaid balance with accrued interest shall become due and payable. The
Administrator may pursue collection of the debt by any means generally available
to a creditor where a promissory note is in default, or, if the entire amount
due is not paid within thirty (30) days following the default, the Administrator
may apply the balance in the borrower's account in satisfaction of the unpaid
principal and accrued interest, at such time as determined by the Administrator
which will not risk disqualification of the Plan.
(g) The Administrator may impose such other rules, requirements or
restrictions relating to loans as it shall determine to be necessary or
appropriate. Such rules, requirements, or restrictions shall be imposed on a
uniform and nondiscriminatory basis. Notwithstanding any other provision to the
contrary, special costs and fees associated with a borrower's loan may be
charged directly to the borrower's account.
Section 7.10. Hardship Withdrawal
(a) A Participant may elect to withdraw all or any portion of his or
her Rollover Account and 401(k) Account (but excluding earnings credited after
January 1, 1989) provided that he or she furnishes proof of "Hardship"
satisfactory to the Administrator in accordance with the provisions of
paragraphs (b) and (c) below.
(b) As a condition for Hardship there must exist with respect to the
Participant an immediate and heavy financial need to draw upon his or her
Rollover Account and 401(k) Account. The Administrator shall presume the
existence of such immediate and heavy financial need if the requested withdrawal
is on account of any of the following:
(i) expenses for medical care described in Section
213(d) of the Code previously incurred by the
Participant, his spouse or any of his dependents
(as defined in Section 152 of the Code) or
necessary for those persons to obtain such medical
care;
(ii) costs directly related to the purchase of a
principal residence of the Participant (excluding
mortgage payments);
(iii) payment of tuition, related educational fees and
room and board expenses for the next 12 months of
post-secondary education of the Participant, his
spouse or dependents; or
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(iv) payment of amounts necessary to prevent eviction
of the Participant from his principal residence or
to avoid foreclosure on the mortgage of his
principal residence.
The amount of the withdrawal may not exceed the amount of the
financial need of the Participant, including any amounts necessary to pay any
federal, state or local taxes and any amounts necessary to pay any penalties
reasonably anticipated to result from the hardship distribution. The Participant
shall furnish to the Administrator such supporting documents as the
Administrator may request in accordance with uniform and nondiscriminatory rules
prescribed by the Administrator.
(c) As a condition for a Hardship withdrawal, the Participant must
demonstrate that the requested withdrawal is necessary to satisfy the financial
need described in paragraph (b). The Participant must request, on such form as
the Administrator shall prescribe, that the Administrator its determination of
the necessity for the withdrawal solely on the basis of his or her application.
In that event, the Administrator shall make such determination, provided all of
the following requirements are met: (i) the Participant has obtained all
distributions, other than distributions available only on account of hardship,
and all nontaxable loans currently available under all plans of the Employer and
its Affiliates, (ii) the Participant is prohibited from making Elective
Deferrals and after-tax contributions to the Plan and similar contributions to
all other plans of the Employer and its Affiliates under the terms of such plans
or by means of an otherwise legally enforceable agreement for at least 12 months
after receipt of the distribution (effective January 1, 2002, the suspension
shall apply for only six months), and (iii) the limitation described in Section
4.2(d) under all plans of the Employer and its Affiliates for the calendar year
following the year in which the withdrawal is made must be reduced by the
Participant's elective deferrals made in the calendar year of the distribution
for hardship; provided that this clause (iii) shall cease to apply effective
January 1, 2002. For purposes of clause (ii), "all other plans of the Employer
and its Affiliates" shall include stock option plans, stock purchase plans,
qualified and non-qualified deferred compensation plans and such other plans as
may be designated under regulations issued under Section 401(k) of the Code, but
shall not include health and welfare benefit plans and the mandatory employee
contribution portion of a defined benefit plan.
Section 7.11. Nonalienation of Benefits. The Account balances payable
under this Plan shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution,
or levy of any kind, either voluntary or involuntary, prior to actually being
received by the person entitled to the benefit under the terms of the Plan
except as permitted by Code Section 401(a)(13). Any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose
of any right to benefits payable hereunder in violation of this Section 7.11,
shall be void. The Trust Fund shall not in any manner be liable for, or subject
to, the debts, contracts, liabilities, engagements or torts of any person
entitled to benefits hereunder. A loan to a Participant pursuant to the Plan
shall not be treated as an assignment or alienation under this Section. The
creation, assignment, or recognition of a right to any benefit payable with
respect to a
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Participant pursuant to a Qualified Domestic Relations Order shall not be
treated as an assignment or alienation under this Section.
Section 7.12. Receipt of Domestic Relations Order. In addition to
payments made under Article VII on account of a Participant's Termination of
Employment, payments may be made to an alternate payee (as defined below) prior
to, coincident with, or after a Participant's Termination of Employment date if
made pursuant to a Qualified Domestic Relations Order. A distribution to an
alternate payee may be made out of a Participant's Account on a date coincident
with the Participant's "earliest retirement age," as defined in Code Section
414(p)(4)(B). In addition, this Plan specifically authorizes distributions to an
alternate payee under a Qualified Domestic Relations Order regardless of whether
the Participant has attained such earliest retirement age. However, a
distribution to an alternate payee prior to the Participant's attainment of
earliest retirement age is available only if the Order clearly specifies that
such payment be made. Nothing in this Section shall permit a Participant a right
to receive distribution at a time otherwise not permitted under the Plan, nor
shall it permit the alternate payee to receive a form of payment not permitted
under the Plan. The Administrator shall establish reasonable procedures to
determine the qualified status of domestic relations orders and to administer
distributions under such qualified orders, including, in its discretion, the
establishment of segregated accounts for alternate payees. The term "alternate
payee" means any spouse, former spouse, child or other dependent of a
Participant who is recognized by a Qualified Domestic Relations Order as having
a right to receive all, or a portion of, the benefits payable under the Plan
with respect to the Participant.
Section 7.13. Payment of Taxes. The Administrator may direct the
Trustee to deduct, withhold, and transmit to the proper tax authorities any tax
which may be permitted or required to be deducted and withheld, and the balance
of the account in such case shall be correspondingly reduced. In addition, the
Administrator, as a condition of directing the payment of any account balance,
may require the Participant or his or her Beneficiary, as the case may be, to
furnish it with proof of payment, or such reasonable indemnity therefor as the
Administrator may specify, of all income, inheritance, estate, transfer, legacy
and/or succession taxes, and all other taxes of any different type or kind that
may be imposed under or by virtue of any law upon the payment, transfer, descent
or distribution of said benefit and for the payment of which either an Employer,
the Trust Fund or the Administrator, in the judgment of the Administrator, may
be directly or indirectly liable.
Section 7.14. Incompetent or Minor Payee. If any Participant or
Beneficiary entitled to receive benefits hereunder is, in the judgment of the
Administrator based upon a physician's examination, unable to take care of his
or her affairs because of mental condition, illness, or accident, any payment
due such person may (unless prior claim therefor shall have been made by a
qualified guardian or other legal representative) be paid for the benefit of
such Participant: (a) to such person's legal representative appointed by
proceedings satisfactory to the Administrator; (b) directly to such person even
though he or she is not then able to exercise control over such payment; and/or
(c) to any custodian under the Uniform Gifts to Minors Act or similar statutes
or guardian of such person or of his or her property with whom such person is
making his or her home. The Administrator shall not be required to see to the
proper
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application of any such payment made to any person pursuant to the provisions of
this Section, and any such payment so made shall be a complete discharge of the
liability of the Trust Fund, the Administrator and the Company therefor.
Section 7.15. Notice, Place and Manner of Payment. Any payments due
hereunder shall be made on demand at such office as the Trustee may maintain;
provided, however, that any person from time to time entitled to such payments
may by notice in writing to the Trustee specify a Post Office address to which
such payment shall be remitted.
Section 7.16. Source of Benefits. All benefits to which persons shall
become entitled hereunder shall be provided only out of the Trust Fund. No
benefits are provided under the Plan except those expressly described herein.
Section 7.17. Direct Transfer of Eligible Rollover Distributions.
Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a distributee's election under this Section, a distributee may elect, at
the time and in the manner prescribed by the Administrator, to have any portion
of an eligible rollover distribution paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
(a) An eligible rollover distribution is any distribution of all or
any portion of the balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any distribution that is one of
a series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten (10) years or more; any
distribution to the extent such distribution is required under Code Section
401(a)(9); the portion of any distribution that is not includable in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities); and any hardship distribution
attributable to the Participant's 401(k) Account. Effective January 1, 2002, a
hardship distribution from any source shall not be considered an eligible
rollover distribution.
(b) An eligible retirement plan is an individual retirement account
described in Code Section 408(a), an individual retirement annuity described in
Code Section 408(b), an annuity plan described in Code Section 403(a), or a
qualified trust described in Code Section 401(a), that accepts the distributee's
eligible rollover distribution. However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement annuity. Effective for
distributions made after December 31, 2001, the rollover may also be made to 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.
(c) A distributee includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse and the
Employee's or former
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Employee's spouse or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Code Section 414(p), are distributees
with regard to the interest of the spouse or former spouse. Effective for
distributions made after December 31, 2001, a surviving spouse or spousal
alternate payee shall have the same rollover rights as a Participant as
described in subsection (b).
(d) A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distributee.
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ARTICLE VIII. PLAN ADMINISTRATION
Section 8.1. The Plan Administrator. Any committee which is designated
as the Administrator hereunder shall be organized pursuant to the following
paragraphs:
(a) The Plan administrative committee shall consist of such member or
members who shall be appointed by and serve at the pleasure of the Board of
Directors. Members may, but need not, be officers, employees, directors, and/or
representatives of the Company. Upon the death, resignation, removal or
inability to serve of any member, the Board of Directors may, but need not, name
his or her successor. Any member may resign at any time by delivering written
notice of such resignation to the Company. The Board of Directors shall have the
right at any time, with or without cause or notice, to remove any member of the
committee. The committee may exercise its powers hereunder notwithstanding the
existence of vacancies.
(b) Members of the committee shall not be entitled to compensation for
performing their duties as members, but shall be entitled to reimbursement for
any expenses reasonably incurred in connection with the administration of the
Plan which are not otherwise paid by the Company.
(c) The committee shall appoint a chairman who must be from among its
members and a secretary who need not be from among its members. The chairman
shall preside at committee meetings and the official acts and determinations of
the committee shall be recorded by the secretary.
(d) The committee, as Administrator, shall have discretionary
authority to control and manage the operation and administration of the Plan,
including the following:
(i) The committee shall from time to time certify in
writing to the Trustee the names of retired,
terminated or deceased Participants, and the date
payments to such Participants or their
Beneficiaries shall commence and terminate, all in
accordance with the Plan. Any such notice from the
committee shall be deemed adequate by the Trustee
if signed by any member of the committee or the
committee's duly authorized agent.
(ii) The committee shall file such reports with
governmental authorities as may be required by law
and which are not filed by the Trustee.
(iii) The committee may adopt and promulgate such rules
and regulations, not inconsistent with the terms
and provisions hereof, for the committee of
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the Plan as it deems necessary. From time to time,
the committee may amend or supplement any such
rules or regulations. The committee shall have
discretionary authority to decide any questions of
eligibility, participation, benefit payments and
any other questions of interpretation or fact
relating to the Plan. Its determination on all
matters of administration shall be conclusive and
binding on all persons, unless arbitrary and
capricious.
(iv) The committee shall review claims for benefits in
accordance with the Plan's claims procedures.
(v) The committee shall prescribe procedures to be
followed and forms to be used in electing any
alternatives available under the Plan and to apply
for benefits under the Plan.
(vi) The committee shall prepare and distribute, in
such manner as it determines appropriate,
information explaining the Plan.
(vii) The committee shall receive from the Employers and
from Participants such information as shall be
necessary for the proper administration of the
Plan. The committee shall be entitled to rely on
any such information so received.
(viii) The committee shall have no power to add to,
subtract from or modify any of the terms of the
Plan, or to change or add to any benefits provided
by the Plan, or to waive or fail to apply any
requirements of eligibility for benefits under the
Plan.
(ix) The committee shall have the power to appoint one
or more Investment Managers which shall serve at
the pleasure of the committee
(A) to control the investment and
reinvestment of the Trust Fund and
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(B) to direct the Trustee with respect to
the exercise or non-exercise of any or
all of the powers of investment
conferred upon the Trustee by the Trust
Agreement.
Any such investment manager shall be
either registered as an investment
advisor under the Investment Advisors
Act of 1940, a bank as defined in that
Act, or an insurance company qualified
to manage, acquire, or dispose of any
asset of an employee benefit plan under
the laws of more than one state and
shall acknowledge in writing that it is
a fiduciary with respect to the Plan.
The committee shall have the power to
advise any investment manager in
connection with any matter relating to
the investment of the assets of the
Trust Fund and the exercise of any power
conferred upon such investment manager.
(x) The committee may direct the establishment of
Investment Funds and determine the investment
characteristics and establish general investment
guidelines for such Investment Funds, and to add
to or change the number and nature of the
Investment Funds from time to time, and prescribe
rules or limitations with respect to the a
Participant's investment in or reallocation among
Investment Funds.
(xi) The committee shall periodically review the
performance of the Trustee and each Investment
Fund (at least annually).
(e) A majority of the members of the committee shall constitute a
quorum. The approval of such a quorum, expressed from time to time by a vote at
a meeting, or in writing without a meeting, shall constitute the action of the
committee and shall be valid and effective for all purposes of this Plan. The
acts, determinations, and constructions of the committee made in good faith
within the powers conferred upon it by this Plan shall be valid and final and
conclusive for all purposes of the Plan (subject only to change pursuant to the
provisions of this Plan) unless arbitrary or capricious.
(f) Discretionary actions of the committee shall be made in a manner
which does not discriminate in favor of shareholders, officers or Highly
Compensated Employees. In
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the event the committee is to exercise any discretionary authority with respect
to a Participant who is a member of the committee, such discretionary authority
shall be exercised solely and exclusively by those members of the committee
other than such Participant. If the Participant is the sole member of the
committee, such discretionary authority shall be exercised solely and
exclusively by the Board of Directors.
(g) By unanimous vote, members of the committee may allocate specific
responsibilities among themselves. Also by unanimous vote, the committee may
delegate to persons other than members of the committee some or all of its
discretionary authority to control and manage the operation and administration
of the Plan. However, the committee may not delegate its power to review claims
under the Plan's claims procedures.
(h) The committee may appoint such advisors, agents and
representatives as it shall deem advisable and may also employ such clerical,
legal, and medical counsel as it deems necessary. Any action taken by a properly
authorized agent of the committee shall be deemed taken by the committee.
(i) The Company shall indemnify and hold harmless each committee
member and employee against all liabilities, losses, costs and expenses,
including reasonable attorney's fees, incurred or suffered by any such member or
employee in connection with such person's management or administration, at any
time, of this Plan; provided, however, that such indemnity shall not extend to
the willful misconduct or gross negligence of any such person.
(j) If the Board of Directors fails to appoint a committee to serve as
the Administrator, but designates an individual, or if the Company shall serve
as the Administrator, such Administrator shall nonetheless act in accordance
with the provisions of this Section 8.1 to the extent applicable.
Section 8.2. Agent for Legal Process. The committee shall be the agent
for service of legal process with respect to any matter concerning the Plan.
Section 8.3. Claims Procedures. Claims made for benefits under the
Plan shall be processed in accordance with the following paragraphs:
(a) Claims for benefits shall be made in writing to the Administrator.
(b) If a claim for benefits made by a Participant or Beneficiary
("claimant") is not approved in its entirety, the claimant shall be so notified
in writing by the Administrator or its duly authorized agent within a reasonable
period of time, but not later than ninety (90) days after receipt of the claim,
unless the Administrator determines that special circumstances require an
extension of up to an additional ninety (90) days for processing the claim is
required. In such event, the Administrator shall furnish the claimant prior to
termination of the initial 90-day period, written notice of the extension, the
special circumstances requiring an extension and the date by which the
Administrator expects to render the benefit determination. Notice wholly or
partially denying a claim shall be written in a manner calculated to be
understood by the claimant and shall contain: (i) the specific reason or reasons
for the denial,
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(ii) specific reference to the pertinent Plan provisions on which the denial is
based, (iii) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why such material or
information is necessary, and (iv) an explanation of the review procedure set
forth in the following paragraphs (c) and (d), including a statement of the
claimant's right to bring a civil action under ERISA following a denial upon
review.
(c) A claimant whose claim for benefits hereunder has been wholly or
partially denied, or his or her duly authorized representative, may request a
review of such denial by the Administrator. A request for review shall be made
in writing to the Administrator within sixty (60) days after receipt by the
claimant of written notification of denial of such claim or after expiration of
the initial claim period during which no written notice was received. The
claimant's appeal may contain issues and comments with respect to the claim and
may include documents, records and other information relating to the claim. A
claimant who submits a request for review shall be entitled to access and copy
documents relevant to his or her claim, free of charge.
(d) Upon receipt of a request for review of a denial of a claim, the
Administrator shall, within a reasonable period of time but not later than sixty
(60) days after receipt of the appeal, review in detail the nature and
foundations of the claim, including any issues and comments submitted by the
claimant or his or her duly authorized representative and the reasons for the
prior denial of the claim. Notwithstanding the foregoing, if the Administrator
determines that special circumstances requires an extension of time to review
the appeal, the Administrator may require an extension of up to an additional
(sixty) 60 days for processing the appeal. In such event, the Administrator
shall furnish claimant, prior to the expiration of the initial 60-day review
period, with written notice of the extension, the special circumstances
requiring an extension and the date by which the Administrator expects to render
the appeal determination. After a full and fair review, the Administrator shall
render its decision in writing to the claimant. An adverse decision on review
shall be written in a manner calculated to be understood by the claimant, and
shall include: (i) the specific reason(s) for the adverse determination; (ii)
specific references to the pertinent Plan provisions on which the decision is
based; (iii) a statement that the claimant is entitled to receive, upon request
and free of charge, reasonable access to and copies of all documents, records
and other information pertinent to his or her claim; and (iv) a statement of the
claimant's right to bring an action under ERISA Section 502(a). Any such
determination shall be final and binding on all parties unless arbitrary and
capricious.
Section 8.4. Records. The Company and each other person performing any
functions in the operation or administration of the Plan or the management or
control of the assets of the Plan shall keep such records as may be necessary or
appropriate in the discharge of their respective functions hereunder, including
records required by ERISA or any other applicable law. Records shall be retained
as long as necessary for the proper administration of the Plan and at least for
any period required by said Act or other applicable law.
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Section 8.5. Correction of Errors. It is recognized that in the
operation and administration of the Plan certain mathematical and accounting
errors may be made or mistakes may arise by reason of factual errors in
information supplied to the Trustee, the Company or the Administrator. Each such
party shall have power to cause such equitable adjustments to be made to correct
such errors as they, in their discretion, consider appropriate. Such adjustments
shall be final and binding on all persons.
Section 8.6. Evidence. Evidence required of anyone under this Plan may
be by certificate, affidavit, document, or other instrument which the person
acting in reliance thereon considers to be pertinent and reliable and to be
signed, made, or presented by the proper party.
Section 8.7. Bonding. Plan officials and fiduciaries shall be bonded
to the extent required by ERISA. Premiums for such bonding may, in the sole
discretion of the Company, be paid in whole or in part from the Trust Fund. The
Company may provide by agreement with any person that the premium for required
bonding shall be paid by such person.
Section 8.8. Fees and Expenses. No employee of an Employer shall
receive compensation for services rendered in a Plan administrative committee
member capacity but shall be reimbursed for all reasonable expenses incurred in
that capacity. Any other person or entity serving as a committee member shall be
entitled to such reasonable compensation therefor as may be mutually agreed upon
with the Company. Where services are utilized as provided in Section 8.1(g)
hereof, the Administrator shall review and approve fees and other costs for
those services. Such fees and costs and any other expenses incurred in the
administration of the Plan and Trust Fund shall be paid out of the principal or
income of the Trust Fund to the extent allowed under ERISA and the Code and
Department of Labor and Internal Revenue Service regulations and rulings
thereunder, unless voluntarily paid by the Company.
Section 8.9. Waiver of Notice. Any notice required hereunder may be
waived by the person entitled thereto.
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ARTICLE IX. TRUST FUND
Section 9.1. Composition. All contributions under this Plan shall be
paid to the Trustee and deposited in the Trust Fund established pursuant to the
Trust Agreement. All sums of money and all securities and other property
received by the Trustee for purposes of the Plan, together with all investments
made therewith, the proceeds thereof, and all earnings and accumulations
thereon, and the part from time to time remaining shall constitute the "Trust
Fund." The Trust Fund shall be held in trust pursuant to the terms of this Plan.
The Trust Fund shall be segregated from the assets of the Employers.
Section 9.2. Purpose. The Trust Fund shall be maintained for the
exclusive purpose of providing benefits to Participants under the Plan and their
Beneficiaries and defraying reasonable expenses of administering the Plan. No
part of the corpus or income of the Trust Fund may be used for, or diverted to,
purposes other than for the exclusive benefit of Plan Participants or their
Beneficiaries.
Section 9.3. Initial and Successor Trustees. The initial Trustee
hereunder shall be such as shall be designated in Section 1. Any Trustee,
whether initial or successor, may resign at any time by filing a written
resignation with the Administrator. Any Trustee may be removed by the Board of
Directors with or without notice or cause. Upon the resignation or removal of a
Trustee hereunder, the Board of Directors shall appoint a successor Trustee. Any
successor Trustee shall have all the right, title, powers, duties, exemptions
and limitations of the initial Trustee; and the title of all trust property
shall vest in whomever shall from time to time be the Trustee hereunder.
Section 9.4. Powers of Trustee. The Trustee shall have the following
rights, powers, and discretionary authority, except to the extent limited by any
delegation of investment authority to Participants or Investment Managers which
may be provided for by the Plan:
(a) To invest and reinvest in any kinds of securities or other
property, including real and personal property, interests in partnerships,
notes, bonds, common and preferred stocks, and mortgages upon real or personal
property, mutual funds, including mutual funds managed by the Trustee or its
affiliates. The Trustee may also allow assets of the Trust Fund to be
temporarily uninvested.
(b) To commingle the assets of the Trust Fund with the assets of
trusts created by others by causing such assets to be invested in any common
trust fund or trust funds which may be established or maintained by the Trustee
(or a custodian bank) for the collective investment of employee benefit Plan
funds pursuant to declaration of trust; provided, in such case, that the
declaration of trust establishing such common trust fund shall be deemed to be a
part of this Plan and Trust.
(c) To borrow money to carry out the purposes of the Plan and secure
any such loan by pledge or a mortgage on the property of the Trust Fund.
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(d) To retain, manage, operate, repair and improve and to mortgage or
lease for any period any real estate forming a part of the Trust Fund.
(e) To litigate, compound, compromise, or settle any claims against
the Trust Fund; provided, however, that any such action shall be undertaken only
with the consent of the Administrator.
(f) Subject to the provisions of Section 5.4, to vote in person or by
a general or limited proxy, or to refrain from voting, any and all stocks or
other securities held by the Trust Fund; to waive notice or consent to the
holding of stockholders' meetings without notice, to deposit any securities in
one or more voting trusts.
(g) To employ such servants, agents, custodians, assistants, or
counsel as the Trustee may from time to time deem necessary or desirable.
(h) To hold property of the Trust Fund in its own name or in the name
of a nominee or nominees, without disclosure of the Trust Fund, or in bearer
form so that it will pass by delivery, but no such holding shall relieve the
Trustee of its responsibility for the safe custody and disposition of the assets
of the Trust Fund, and the Trustee's records shall at all times show that such
property is a part of the Trust Fund.
(i) To determine how all receipts and disbursements shall be charged,
or apportioned as between principal and income, consistent with generally
accepted fiduciary accounting principles.
(j) To participate in and make any payments required by such
participation in any proceeding or plan for any reorganization, merger,
consolidation, refinancing, dissolution or other transaction; to accept
substituted or distributed securities in respect of any securities, and to
retain in the Trust Fund the securities so received.
Section 9.5. Accounting, Reports. The Trustee shall render an annual
report to the Administrator within sixty (60) days following the close of each
Plan Year and within sixty (60) days after the removal or resignation of a
corporate Trustee hereunder. Such report shall set forth all investments,
receipts and disbursements, and other transactions of the trust during such
period.
Section 9.6. Disbursements. The Trustee shall credit and distribute
the Trust Fund as directed by the Administrator or its duly authorized agent. In
so doing the Trustee shall not be obliged to inquire as to whether any payee or
distributee is entitled to any payment or distribution or as to whether any
payment or distribution is proper within the terms of this Plan, or as to the
manner of making the same, and the Trustee shall be accountable only to the
Administrator for any payment or distribution made by the Trustee in good faith
on the order or direction of the Administrator or its duly authorized agent.
Section 9.7. Compensation, Reimbursement. The Trustee, other than a
Trustee who is also a Participant under the Plan or an employee of an Employer,
shall be
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entitled to receive reasonable compensation for services as Trustee in such
amount as may be agreed upon from time to time between the Administrator and the
Trustee. The Trustee shall be entitled to reimbursement for all expenses
reasonably incurred by the Trustee in the performance of services. Such
compensation and reimbursements shall be paid from the Trust Fund unless paid by
the Company.
Section 9.8. Trustee Indemnification. The Company agrees to indemnify
and hold harmless the Marshall & Ilsley Trust Company from and against all
claims, expenses (including reasonable counsel fees), liabilities, damages,
actions, suits or other charges incurred or assessed against it as successor
trustee, as a direct or indirect result of any act or omission of a predecessor
trustee.
Section 9.9. Investment Managers. The Administrator may delegate to
one or more Investment Managers investment authority over all or any part of the
assets of the Trust Fund in accordance with the following paragraphs:
(a) Any Investment Manager appointed pursuant to this Section shall be
(i) an investment adviser registered as such under the Investment Advisers Act
of 1940, or (ii) a bank as defined in the Act, or (iii) an insurance company
qualified to perform services in the management, acquisition or disposition of
the assets of the Trust Fund under the laws of more than one state. Written
notice of each appointment of an Investment Manager shall be given to the
Trustee. Such notice shall state what part of the assets of the Trust Fund is to
be under the investment direction of such Investment Manager. All appointments
of Investment Managers shall be by written agreement between the Company and the
Investment Manager. Any Investment Manager appointed hereunder may be discharged
by the Board of Directors at any time or may, upon ten (10) days written notice
to the Board of Directors, resign, except as otherwise provided in the written
agreement between the parties.
(b) The Trustee, if otherwise qualified, may be appointed as an
Investment Manager pursuant to the preceding paragraph. Any such appointment
shall be made by written notification from the Administrator to the Trustee
without the necessity of a written agreement other than this Plan. In addition,
whenever the Administrator notifies the Trustee in writing that the appointment
of an Investment Manager other than the Trustee has been terminated, the Trustee
shall be deemed to be the investment manager of that part of the assets of the
Trust Fund formerly under the investment direction of such Investment Manager
unless and until the Administrator gives written notification to the Trustee
that a new Investment Manager has been appointed or that the Administrator has
assumed investment responsibility over such assets. Unless the Administrator
elects to execute a separate agreement, the terms and conditions of this Plan
shall be deemed to prescribe the authority, responsibilities and duties of the
Trustee whenever it serves in the capacity of an Investment Manager.
(c) Any Investment Manager appointed hereunder shall have exclusive
authority and discretion to manage and control, invest and reinvest, any part of
the assets of the Trust Fund assigned to it for that purpose until such time as
the Administrator revokes the appointment of the Investment Manager and appoints
a new Investment Manager or delegates
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such investment authority to the Trustee. The Investment Manager may direct the
Trustee (or custodian, as the case may be) from time to time and at any time to
make such investments and reinvestments and to take any related actions with
respect to that part of the assets of the Trust Fund assigned to the Investment
Manager for this purpose, and the Trustee (or custodian) shall make such
investments and reinvestments and take such actions only when and to the extent
directed by the Investment Manager.
(d) The Investment Manager, from time to time and at any time, may
issue orders for the purchase or sale of securities directly to a broker or
dealer. Written notification of the issuance of each such order shall be given
promptly to the Trustee by the Investment Manager and the execution of each such
order shall be confirmed by the broker to the Investment Manager and to the
Trustee. Such notification shall be authority to the Trustee to receive
securities purchased against payment therefor and to deliver securities sold
against receipt of the proceeds therefrom, as the case may be.
(e) The Investment Manager shall receive reasonable compensation for
its services in such amount as may be agreed upon from time to time between the
Investment Manager and the Company. No compensation is authorized by the
preceding sentence to be paid to any director, officer, shareholder, or employee
of the Company or any Employer. The Investment Manager shall be entitled to
reimbursement for all expenses reasonably incurred by it in the administration
of the Trust Fund in accordance with the Plan. Such compensation and expenses
shall be paid from the Trust Fund unless otherwise paid by the Company.
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ARTICLE X. TOP-HEAVY PLAN PROVISIONS
Section 10.1. Top-Heavy Restrictions. Notwithstanding any provision to
the contrary herein, in accordance with Code Section 416, if the Plan is a
top-heavy plan for any Plan Year, then the provisions of this Section shall be
applicable. The Plan is "top-heavy" for a Plan Year if as of its "determination
date" (i.e. the last day of the preceding Plan Year) or the last day of the
Plan's first Plan Year, whichever is applicable), the total present value of the
accrued benefits of key employees (as defined in Code Section 416(i)(1) and
applicable regulations) exceeds sixty percent (60%) of the total present value
of the accrued benefits of all employees under the Plan (excluding those of
former key employees and employees who have not performed any services during
the preceding five (5) year period) (as such amounts are computed pursuant to
Code Section 416(g) and applicable regulations using a five percent (5%)
interest assumption and a 1971 GAM mortality assumption) unless the Plan can be
aggregated with other plans maintained by the applicable controlled group in
either a permissive or required aggregation group and such group as a whole is
not top-heavy. Effective for Plan Years beginning after December 31, 2001, 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 Code Section 416(g)(2) of the Code during the 1-year period
ending on the determination date; provided that 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;"
and provided further that the accrued benefits and accounts of any individual
who has not performed services for the controlled group during the 1-year period
ending on the determination date shall not be taken into account. Any
nonproportional subsidies for early retirement and benefit options are counted
assuming commencement at the age at which they are most valuable. In addition,
the Plan is top-heavy if it is part of a required aggregation group which is
top-heavy. Any plan of a controlled group may be included in a permissive
aggregation group as long as together they satisfy the Code Section 401(a)(4)
and 410 discrimination requirements. Plans of a controlled group which must be
included in a required aggregation group include any plan in which a key
employee participates or participated at any time during the determination
period (regardless of whether the plan has terminated) and any plan which
enables such a plan to meet the Code Section 401(a)(4) or 410 discrimination
requirements. The present values of aggregated plans are determined separately
as of each plan's determination date and the results aggregated for the
determination dates which fall in the same calendar year. A "controlled group"
for purposes of this Section includes any group employers aggregated pursuant to
Code Sections 414(b), (c) or (m). The calculation of the present value shall be
done as of a valuation date which for a defined contribution plan is the
determination date and for a defined benefit plan is the date as of which
funding calculations are generally made within the twelve month period ending on
the determination date. 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 (within the meaning of Code Section 416(g)) the accrued
benefit of an employee other than a key employee (within the meaning of Code
Section 416(i)(1)) shall be determined under (i) the method, if any, that
uniformly applies for accrual purposes under all plans maintained by the
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affiliates, or (ii) 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 Code Section 411(b)(1)(C).
Section 10.2. Minimum Top-Heavy Benefits. If the Plan is top-heavy in
a Plan Year, non-key employee Participants who have not separated from service
at the end of such Plan Year will receive allocations of Employer contributions
and forfeitures at least equal to the lesser of three percent (3%) of
compensation (as defined in Code Section 415) for such year or the percentage of
compensation allocated on behalf of the key employee for whom such percentage
was the highest for such year (including any salary reduction contributions).
Effective for Plan Years beginning after December 31, 2001, Matching
Contributions shall be taken into account for purposes of satisfying the minimum
contribution requirements of Code Section 416(c)(2) and the Plan; provided that
Matching Contributions that are used to satisfy the minimum contribution
requirements shall continue to be treated as matching contributions for purposes
of the actual contribution percentage test and other requirements of Code
Section 401(m). If the controlled group maintains both a defined contribution
plan and a defined benefit plan which cover the same non-key employee, such
employee will be entitled to the defined benefit plan minimum and not this
Plan's minimum. If the controlled group maintains more than one defined
contribution plan which covers the same non-key employee, such employee will be
entitled to the minimum allocation under this Plan prior to any allocation under
any other plan.
Section 10.3. Top-Heavy Vesting Requirements. If the Plan is top-heavy
in a Plan Year, the vesting schedule shall automatically be amended for any
employee employed on the first day of such year or thereafter so that the vested
percentage for employer-derived benefits is equal to the greater of the vesting
provided under other provisions of the Plan or the following schedule:
Years of Service Nonforfeitable Percentage
---------------- -------------------------
1 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
where "years of service" means the years credited for vesting purposes under the
Plan or, if greater, the years required to be counted under Code Section 411 and
applicable regulation thereto. If the Plan thereafter ceases to be top-heavy for
a Plan Year, the vesting schedule above shall be disregarded and the original
schedule applied, except with respect to any Participant with three (3) or more
years of service and except that no Participant's vested percentage as of the
end of the prior year shall be decreased. Any nonvested Participant who acquires
a vested interest in the employer-derived benefit by operation of the amended
vesting schedule shall not be subject thereafter to a cancellation of service.
Notwithstanding anything in this Section to the contrary, the amendment of the
vesting schedule pursuant to this
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subsection shall not affect the calculation of benefit amounts or the
determination of benefit commencement dates hereunder.
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ARTICLE XI. ADOPTION, AMENDMENT, TERMINATION AND MERGER
Section 11.1. Adoption of Plan by Additional Employer. The Board of
Directors may extend the Plan to employees of any Affiliate and their
participation shall be effective upon appropriate action being taken by the
Affiliate necessary to adopt the Plan. In that event, or if any persons become
employees of an Employer as the result of merger or consolidation or as the
result of acquisition of all or part of the assets or business of another
company, the Board of Directors shall determine to what extent, if any, previous
service with such company shall be recognized under the Plan. The following
paragraphs shall also be applicable:
(a) Each adopting Employer shall participate in the Trust Fund
hereunder.
(b) The Trustee may, but shall not be required to, commingle and hold
as one Trust Fund all contributions made by all adopting Employers.
(c) The Board of Directors shall have the sole authority to amend the
Plan and Trust and the Administrator shall have the sole authority to administer
the Plan.
(d) Any Affiliate participating in the Plan may terminate its
participation in the Plan and Trust by appropriate action. In that event the
funds held on account of the employees of the terminating company, and unpaid
balances of former employees of such company, shall be segregated to a separate
trust, pursuant to certification by the Administrator to the Trustee to do so,
continuing the Plan as a separate plan for the employees of that company under
which the board of directors of that company shall succeed to all of the powers
and duties of the Board of Directors, including appointment of the administrator
of that separate plan. Alternatively, upon certification by the Administrator to
the Trustees, other appropriate disposition of the terminating company Plan
assets shall be made.
Section 11.2. Amendment. Subject to the nondiversion provisions of
Section 9, the Board of Directors may amend the Plan at any time and from time
to time. No amendment of the Plan shall have the effect of changing the rights,
duties and liabilities of the Trustee without its written consent. No amendment
shall divest a Participant or Beneficiary of benefits accrued prior to the
amendment or eliminate any optional form of benefit except as otherwise
permitted by the Code. The Company agrees that promptly upon adoption of any
amendment to the Plan it will furnish a copy of the amendment together with a
certificate evidencing its due adoption to the Trustee then acting and to any
other participating Employers.
Section 11.3. Termination. The Plan may be terminated by action of the
Board of Directors. Any suchvoluntary termination of the Plan shall be made in
compliance with all applicable provisions of law.
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Section 11.4. Discontinuance of Contributions. Whenever the Company
determines that it is impossible to or not advisable to make further
contributions as provided in the Plan, the Board of Directors may, without
liquidating the Trust Fund, adopt an appropriate resolution permanently
discontinuing all further contributions to the Plan. A certified copy of such
resolution shall be delivered to the Administrator, the Trustee, and to each
Employer. Thereafter, the Administrator and the Trustee shall continue to
administer all provisions of the Plan which are necessary and remain in force,
other than provisions relating to contributions by the Employers.
Section 11.5. Rights Upon Termination, Partial Termination and
Discontinuance of Contributions. Notwithstanding any other provisions of this
Plan, the accounts of each Participant shall be one hundred percent (100%)
vested and nonforfeitable upon termination of the Plan. The accounts of each
affected Participant shall become one hundred percent (100%) vested and
nonforfeitable upon a partial termination of the Plan or upon a discontinuance
of contributions to the Plan by an Employer.
Section 11.6. Deferral of Distributions. In the event of a complete or
partial termination of the Plan, the Administrator or the Trustee may defer any
distribution of benefit payments to Participants and Beneficiaries with respect
to which such termination applies until after the following have occurred:
(a) Receipt of a final determination from the Treasury Department or
any court of competent jurisdiction regarding the effect of such termination on
the qualified status of the Plan under Code Section 401(a).
(b) Appropriate adjustments of the Trust Fund to reflect taxes, costs
and expenses, if any, incident to such termination.
Section 11.7. Merger, Consolidation or Transfer of Plan Assets. In the
case of any merger or consolidation of the Plan with any other plan, or in the
case of the transfer of assets or liabilities of the Plan to any other plan,
provision shall be made so that each Participant and Beneficiary would (if such
other plan then terminated) receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the benefit he or
she would have been entitled to receive immediately before the merger,
consolidation or transfer (if the Plan had then terminated).
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ARTICLE XII. MISCELLANEOUS
Section 12.1. Responsibility of Insurance Companies. No insurance
company issuing contracts upon the application of the Administrator, Trustee or
the Employer shall be deemed to be a party to the Plan nor shall it be
responsible for its validity. The issuing insurance company shall not be
required to look into the terms of the Plan nor be responsible to see that any
action of the Administrator or the Trustee is authorized by its terms. No
issuing insurance company shall be obligated to see to the distribution or
further application of any monies paid by it pursuant to any direction of the
Administrator.
Section 12.2. Limitation of Fiduciary Responsibility and Liability.
The Board of Directors, the Administrator, the Trustee, and any Investment
Manager hereunder shall be deemed to be the only fiduciaries, named and
otherwise, of the Plan and Trust. The duties of each fiduciary named in this
Plan shall be limited to those duties specifically set forth herein. No officer,
director or employee of an Employer who is not designated as a fiduciary shall
have any discretionary authority or control respecting the management of the
Plan or any discretionary authority or control respecting the management or
disposition of the assets of the Plan. Except as otherwise provided by law, no
fiduciary shall be responsible for the performance of duties not assigned to him
or her as provided herein or for the acts or omissions of any other fiduciary.
Section 12.3. USERRA. Notwithstanding anything herein to the contrary,
benefits, contributions and service credit will be provided in accordance with
the provisions of Code Section 414(u).
Section 12.4. Effective Dates. While the provisions of the Plan
reflect the Plan as amended and restated are generally effective January 1,
2001, the following changes to the Plan were effective as of the dates specified
below:
(a) The family aggregation rules of Code Section 414(q)(6) were
eliminated effective for Plan Years beginning on or after January 1, 1997;
(b) The definition of "Highly Compensated Employee" is revised
effective for Plan Years beginning on or after January 1, 1997;
(c) The definition of Compensation was revised to include deferred
amounts under Code Section 132(f)(4) effective as of January 1, 1998;
(d) The Plan switched its ADP and ACP testing to the prior year method
effective with the 1997 Plan Year;
(e) The method for correcting excess Elective Deferrals and excess
Employer Matching Contributions under the ADP and ACP tests is revised effective
for Plan Years beginning on or after January 1, 1997;
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(f) The timing for depositing Elective Deferrals to the Trustee is
effective February 3, 1997;
(g) The increase in the small account limit from three thousand five
hundred dollars ($3,500) to five thousand dollars ($5,000) and the elimination
of the requirement that the Administrator take into account all historical
account balances is effective January 1, 1998;
(h) The change to the minimum required distribution dates under Code
Section 401(a)(9) were revised effective for Plan Years beginning on or after
January 1, 1997;
(i) The exclusion of hardship withdrawals from eligible rollover
distributions is effective for distributions made on or after January 1, 1999;
(j) The combined plan limits of Code Section 415(e) were eliminated
from the Plan effective January 1, 2000; and
(k) The USERRA provisions are effective December 12, 1994.
Section 12.5. Construction.
(a) Whenever any words are used herein in the masculine, they shall be
construed as though they were used in the feminine in all cases where they would
so apply; and wherever any words are used in the singular or the plural, they
shall be construed as though they were used in the plural or singular, as the
case may be, in all cases where they would so apply. The words "hereof,"
"herein," "hereunder," and other similar compounds of the word "here" shall mean
and refer to this entire Plan and not to any particular Section. Titles of
Sections hereof are for general information only, and the Plan is not to be
construed with reference thereto.
(b) The Plan is intended to qualify under Section 401 of the Code and
shall be interpreted so as to comply with the applicable requirements thereof,
where such requirements are not clearly contrary to the express terms hereof.
The Plan shall be constructed and its validity determined according to the laws
of the State of Wisconsin to the extent such laws are not preempted by federal
law. In case any provision of the Plan shall be held illegal or invalid for any
reason, such illegality or invalidity shall not affect the remaining parts of
the Plan, but the Plan shall be construed and enforced as if such illegal or
invalid provisions had never been included herein.
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IN WITNESS WHEREOF, Fresh Brands Distributing, Inc. has caused these
presents to be executed by its officers thereunto duly authorized, and its
corporate seal hereunto affixed, and in token of its acceptance of the trust
hereunder and duties herein set forth, the Trustee has executed this Plan as of
the ___________ day of February, 2002.
FRESH BRANDS DISTRIBUTING, INC.
By:
-------------------------------------
MARSHALL & ILSLEY TRUST COMPANY
By:
-------------------------------------
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