EXHIBIT 10.19
PLEASANT COMPANY
RETIREMENT SAVINGS PLAN AND TRUST AGREEMENT
JULY 1, 1995
ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. ELIGIBILITY AND PARTICIPATION. . . . . . . . . . . . . . . . . . . . . 23
2.01 ELIGIBILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.02 ELIGIBILITY BREAK IN SERVICE RULES. . . . . . . . . . . . . . . . . . . . . . . . . 24
2.03 EFFECT OF LEAVE OF ABSENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.04 TRANSFER TO ELIGIBLE CLASS OR
REINSTATEMENT OF INELIGIBLE PARTICIPANT. . . . . . . . . . . . . . . . . . . . . . . 26
2.05 DETERMINATION OF ELIGIBILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.06 MANNER OF BECOMING A PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.07 OMISSION OF ELIGIBLE EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.08 INCLUSION OF INELIGIBLE EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.09 ELECTION NOT TO PARTICIPATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE III. CONTRIBUTIONS AND ALLOCATIONS. . . . . . . . . . . . . . . . . . . . . 28
3.01 CONTRIBUTIONS BY THE EMPLOYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.02 PARTICIPANT'S SALARY REDUCTION ELECTION. . . . . . . . . . . . . . . . . . . . . . . 29
3.03 TIME OF PAYMENT OF CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.04 ALLOCATION OF CONTRIBUTIONS AND EARNINGS. . . . . . . . . . . . . . . . . . . . . . . 34
3.05 ACTUAL DEFERRAL PERCENTAGE TESTS . . . . . . . . . . . . . . . . . . . . . . . . . . .40
3.06 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS. . . . . . . . . . . . . . . . . . . . 44
3.07 ACTUAL CONTRIBUTION PERCENTAGE TESTS. . . . . . . . . . . . . . . . . . . . . . . . . 46
3.08 ADJUSTMENTS TO ACTUAL CONTRIBUTION PERCENTAGE TESTS. . . . . . . . . . . . . . . . . 49
3.09 MAXIMUM ANNUAL ADDITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
3.10 MULTIPLE PLAN REDUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
3.11 ADJUSTMENT FOR EXCESS ANNUAL ADDITIONS. . . . . . . . . . . . . . . . . . . . . . . . 59
3.12 TERMINATION OF EMPLOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
3.13 RESTORATION OF ACCOUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
3.14 VALUATION OF THE TRUST FUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
3.15 VALUATION OF PARTICIPANT'S ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . .61
3.16 ALLOCATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
3.17 DIRECTED INVESTMENT ACCOUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE IV. VESTING...................................................................62
ARTICLE V. DISTRIBUTIONS OF BENEFITS ACCRUED ON AND AFTER
JANUARY 1, 1995...........................................................63
5.01 RETIREMENT.............................................................................63
5.02 DISTRIBUTION UPON DEATH................................................................63
5.03 PROOF OF DEATH.........................................................................65
5.04 DESIGNATION OF BENEFICIARY.............................................................66
5.05 DISTRIBUTION IN THE EVENT OF DISABILITY................................................64
5.06 DISTRIBUTION IN THE EVENT OF TERMINATION OF EMPLOYMENT.................................67
5.07 TIME AND MANNER OF PAYMENT.............................................................68
5.08 TRANSITIONAL RULE......................................................................72
5.09 LIMITATION ON DISTRIBUTION DUE TO QUALIFIED DOMESTIC
RELATIONS ORDER........................................................................72
5.10 WITHDRAWAL FOR SERIOUS FINANCIAL HARDSHIP..............................................72
ARTICLE VI. DISTRIBUTIONS OF BENEFITS ACCRUED PRIOR TO
JANUARY 1, 1995...........................................................74
6.01 RETIREMENT.............................................................................74
6.02 DETERMINATION OF BENEFITS UPON DEATH...................................................75
6.03 DISTRIBUTION OF BENEFITS UPON DEATH....................................................76
6.04 PROOF OF DEATH.........................................................................79
6.05 DETERMINATION OF BENEFITS IN THE EVENT OF
DISABILITY.............................................................................80
6.06 DETERMINATION OF BENEFITS UPON TERMINATION.......................................80
6.07 TIME AND MANNER OF PAYMENT.............................................................80
6.08 TRANSITIONAL RULE......................................................................86
6.09 LIMITATION ON DISTRIBUTION DUE TO QUALIFIED DOMESTIC
RELATIONS ORDER........................................................................87
6.10 WITHDRAWAL FOR SERIOUS FINANCIAL HARDSHIP..............................................87
ARTICLE VII. TOP HEAVY PROVISIONS......................................................89
7.01 TOP HEAVY PLAN REQUIREMENTS............................................................89
7.02 DETERMINATION OF TOP HEAVY STATUS......................................................89
ARTICLE VIII. TRUST FUND AND TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . 94
8.01 ESTABLISHMENT AND ACCEPTANCE OF TRUST. . . . . . . . . . . . . . . . . . . . . . . . . 94
8.02 RESPONSIBILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94
8.03 APPOINTMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
8.04 POWERS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
8.05 SCOPE OF TRUSTEE'S AUTHORITY AND VOTING. . . . . . . . . . . . . . . . . . . . . . . . 99
8.06 PAYMENTS FROM THE TRUST FUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
8.07 COMMINGLED FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
8.08 PAYMENT OF COMPENSATION, EXPENSES, AND TAXES. . . . . . . . . . . . . . . . . . . . . 100
8.09 ACCOUNTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
8.10 COMMUNICATION FROM EMPLOYER AND PLAN
ADMINISTRATOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101
8.11 INSURANCE AND BONDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
8.12 LIABILITY FOR BREACH OF CO-FIDUCIARY. . . . . . . . . . . . . . . . . . . . . . . . . 102
8.13 PROHIBITED TRANSACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103
8.14 DISQUALIFICATION FROM FIDUCIARY SERVICE . . . . . . . . . . . . . . . . . . . . . . . 103
8.15 REMOVAL, RESIGNATION, AND APPOINTMENT OF A SUCCESSOR TRUSTEE. . . . . . . . . . . . . 103
ARTICLE IX. CLAIMS PROCEDURE AND PLAN ADMINISTRATION . . . . . . . . . . . . . . . .104
9.01 DETERMINATION OF ELIGIBILITY AND CLAIM FOR BENEFITS . . . . . . . . . . . . . . . . .104
9.02 REVIEW PROCEDURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
9.03 DESIGNATION OF PLAN ADMINISTRATOR. . . . . . . . . . . . . . . . . . . . . . . . . . .106
9.04 RESIGNATION AND REMOVAL OF PLAN ADMINISTRATOR;
APPOINTMENT OF SUCCESSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106
9.05 ALLOCATION AND DELEGATION OF RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . 107
9.06 DUTIES AND RESPONSIBILITY OF PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . . . 107
9.07 INVESTMENT ADVISERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
9.08 EXPENSES AND COMPENSATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
9.09 INFORMATION FROM EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
ARTICLE X. AMENDMENT AND TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . 112
10.01 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
10.02 TERMINATION OR DISCONTINUANCE OF CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . .113
10.03 MERGER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
ARTICLE XI. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . .114
11.01 PARTICIPANTS' RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
11.02 NONALIENATION OF BENEFIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
11.03 DELEGATION OF AUTHORITY BY EMPLOYER. . . . . . . . . . . . . . . . . . . . . . . . . 115
11.04 EXERCISE OF DISCRETION BY CORPORATE TRUSTEE. . . . . . . . . . . . . . . . . . . . . .115
11.05 CONTROL OF TRADES OR BUSINESSES BY OWNER-EMPLOYEE. . . . . . . . . . . . . . . . . . .116
11.06 CONSTRUCTION OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
11.07 GENDER, NUMBER, AND HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
11.08 QUALIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
11.09 PROHIBITION OF DIVERSION OF FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . .118
11.10 ROLLOVERS AND TRANSFERS FROM QUALIFIED PLANS. . . . . . . . . . . . . . . . . . . . . 119
11.11 PORTABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .121
PLEASANT COMPANY RETIREMENT SAVINGS PLAN
AND TRUST AGREEMENT
PLEASANT COMPANY, a Wisconsin corporation, hereinafter referred to as
"Employer", hereby amends and restates its 401(K) Profit Sharing Plan heretofore
adopted effective January 1, 1989, with such amendment and restatement effective
January 1, 1995 unless otherwise provided herein.
WITNESSETH:
WHEREAS, the Employer desires to promote in its employees a strong interest
in the successful operation of its business and to provide an opportunity for an
accumulation of funds for their retirement and financial security; and
WHEREAS, to attain that end, the Employer heretofore formulated a 401(k)
Profit Sharing Plan and now desires to amend and restate said 401(k) Profit
Sharing Plan as is more particularly set forth hereafter.
WHEREAS, the amendment and restatement embodied herein has been approved by
the Board of Directors of the Employer.
NOW, THEREFORE, the Employer hereby constitutes, establishes, and adopts
the following Profit Sharing Plan, and the Employer and Trustee agree to the
following provisions:
ARTICLE I.
DEFINITIONS
1.01 "Accrued Benefit" shall mean the value of a Participant's individual
accounts which are derived from Employer contributions and Employee
contributions, if any, to this Plan.
If a portion of the Participant's individual accounts is invested in
separate savings or time instruments or other segregated assets, the value of
that portion is the value
of those instruments or other segregated assets at the date of distribution less
any applicable liquidation fees or penalties.
If a portion of the Participant's individual accounts is invested in non-
segregated investments, the value of that portion is the balance of that portion
as of the Valuation Date coinciding with or immediately preceding the date of
distribution. However, the value of the individual account shall be increased
to reflect that Participant's share of any contribution made after that
Valuation Date and shall be decreased to reflect any distribution made to the
Participant after that Valuation Date.
1.02 "Aggregation Group" shall mean a Required Aggregation Group or a
Permissive Aggregation Group as defined in Section 7.02(D).
1.03 "Aggregate Account" shall mean, with respect to each Participant,
the value of all accounts maintained on behalf of a Participant, whether
attributable to Employer or Employee contributions, subject to the provisions of
Section 7.02 (Determination of Top-Heavy Status).
1.04 "Agreement" shall mean this instrument and any amendments or
supplements thereto.
1.05 "Alternate Payee" shall mean any spouse, former spouse, child, or
other dependent of a Participant who is recognized by a Domestic Relations Order
as having a right to receive all, or a portion of, the benefits payable under
the Plan with respect to such Participant.
1.06 "Beneficiary" or "Beneficiaries" shall mean the person or persons,
including a trustee or an estate, to whom a deceased Participant's account is
payable as provided in the Plan subject to the provisions of Articles V and VI.
For the purposes of determining whether the Plan is a top heavy Plan, a
beneficiary
2.
of a deceased Participant shall be considered as a Key Employee if the
Participant was a Key Employee or a Non-Key Employee if the Participant was a
Non-Key Employee.
1.07 "Break in Service" and "One-Year Break in Service" shall mean a Plan
Year during which an Employee has not completed more than five hundred (500)
Hours of Service. An Employee shall not incur a One-Year Break in Service for
the Plan Year in which he or she becomes a Participant, dies, retires or suffers
Total and Permanent Disability. Further, solely for the purpose of determining
whether a Participant has incurred a One-Year Break in Service, Hours of Service
shall be recognized for "authorized leaves of absence" and "maternity and
paternity leaves of absence".
For purposes of this definition, an "authorized leave of
absence" shall mean an unpaid, temporary cessation from active employment with
the Employer pursuant to an established nondiscriminatory policy, whether
occasioned by illness, military service, or any other reason.
For purposes of this definition, a "maternity or paternity leave of
absence" shall mean, for Plan Years beginning after December 31, 1984, an
absence from work for any period by reason of the Employee's pregnancy, birth of
the Employee's child, placement of a child with the Employee in connection with
the adoption of such child, or any absence for the purpose of caring for such
child during a period immediately following such birth or placement. For this
purpose, Hours of Service shall be credited for the computation period in which
the absence from work begins, only if credit therefore is necessary to prevent
the Employee from incurring a One-Year Break in Service, or, in any other case,
in the immediately following computation period. The Hours of Service credited
for a "maternity or paternity leave of absence" shall be those which would
normally have been credited but for such absence, or, in any case in which the
Plan Administrator is unable to determine such hours normally credited, eight
(8) Hours of Service per day. The total Hours of
3.
Service required to be credited for a "maternity or paternity leave of absence"
shall not exceed five hundred one (501).
For purposes of Section 2.02, the period for calculating a Break in Service
begins on the employment date and each anniversary thereafter.
1.08 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
1.09 "Compensation" shall mean all of each Participant's compensation as
that term is defined in Code Section 415(c)(3) and Regulation Section 1.414(s)-
1(c)(3). For any self-employed individual covered under the Plan, compensation
will mean earned income. Compensation shall include only that compensation
which is actually paid to the Participant during the applicable period. Except
as provided elsewhere in this Plan, the applicable period shall be the Plan
Year. In all cases, compensation shall include only Compensation paid while a
Participant.
For purposes of this Section, the determination of Compensation shall be
made by:
(a) excluding (even if includible in gross income) reimbursements or
other expense allowances, fringe benefits (cash or noncash), moving
expenses, deferred compensation and welfare benefits.
(b) including amounts which are contributed by the Employer pursuant
to a salary deferral agreement and which are not includable in the gross
income of the Employee under Code Sections 125, 402(e)(3), 402(h), 403(b)
or 457, and Employee contributions described in Code Section 414(h)(2) that
are treated as Employer contributions.
For Plan Years beginning on or after January 1, 1989, the annual
compensation of each Participant taken into account under the Plan for any year
shall not exceed Two Hundred Thousand Dollars ($200,000.00), as adjusted by the
Secretary at the same time and in the same manner as under Code Section 415(d).
In
4.
determining the compensation of a Participant for purposes of this limitation,
the rules of Code Section 414(q)(6) shall apply, except in applying such rules,
the term "family" shall include only the spouse of the Participant and any
lineal descendants of the Participant who have not attained age 19 before the
close of the year. If, as a result of the application of such rules the adjusted
$200,000 limitation is exceeded, then (except for purposes of determining the
portion of compensation up to the integration level if this plan provides for
permitted disparity), the limitation shall be prorated among the affected
individuals in proportion to each such individual's compensation as determined
under this section prior to the application of this limitation.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual compensation of each Employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Code Section 401(a)(17)(B). The cost of living adjustment in effect for a
calendar year applies to any period, not exceeding 12 months, over which
compensation is determined (determination period) beginning in such calendar
year. If a determination period consists of fewer than 12 months, the OBRA '93
annual compensation limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period, and the denominator
of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in this
Plan to the limitation under Code Section 401(a)(17) shall mean the OBRA '93
annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan Year, the
compensation for that prior determination period is subject to the OBRA '93
annual
5.
compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
1.10 "Deferred Compensation" shall mean the amount of a Participant's total
Compensation which has been contributed to the Plan in accordance with the
Participant's deferral election pursuant to Section 3.02 excluding any such
amounts distributed as excess "annual additions" pursuant to Section 3.11.
1.11 "Determination Date" shall mean the last day of the preceding Plan
Year, or in the case of the first Plan Year, the last day of such Plan Year.
1.12 "Early Retirement Date": the Plan does not provide for an early
retirement date.
1.13 "Elective Contribution" shall mean the Employer's contributions to
the Plan of Deferred Compensation excluding any such amounts distributed as
excess "annual additions" pursuant to Section 3.11. In addition, any Employer
Qualified Non-Elective Contribution made pursuant to Section 3.06 shall be
considered an Elective Contribution for purposes of the Plan. Any such
contributions deemed to be Elective Contributions shall be subject to the
requirements of Sections 3.02(B) and (C) and shall further be required to
satisfy the discrimination requirements of Regulation 1.401(k)-1(b)(5), the
provisions of which are specifically incorporated herein by reference.
1.14 "Eligible Employee" shall mean any Employee, other than a Leased
Employee, who has satisfied the provisions of Section 2.01. Notwithstanding the
foregoing, Leased Employees shall be Eligible Employees if exclusion of such
Leased Employees shall cause the Plan to fail to meet any participation or other
qualification requirements pursuant to Code Section 401(a).
6.
1.15 "Employee" shall mean any person who is employed by the Employer,
including any self-employed individuals and all employees of any employer
aggregated with the Employer under Code Sections 414(b), (c) or (m), and any
individuals required to be considered Employees of any such Employer under Code
Section 414(n) or under regulations under Code Section 414(o). A person who is
an active member of a collective bargaining unit represented by a labor
organization with an agreement which the Secretary of Labor would find to be a
collective bargaining agreement shall be deemed not to be an Employee hereunder
if retirement benefits were the subject of good faith bargaining between the
labor organization and the Employer. A person who is a non-resident alien and
who receives no earned income (within the meaning of Code Section 991(d)(2))
from the Employer which constitutes income from sources within the United States
(within the meaning of Code Section 861(a)(3)).
1.16 "Employee Retirement Income Security Act of 1974" (hereinafter
"ERISA") shall mean the federal legislation of September 2, 1974, all amendments
thereto, and all federal regulations promulgated pursuant thereto.
1.17 "Employer" shall mean PLEASANT COMPANY and any successor who by
merger, consolidation, purchase or otherwise, assumes the obligations of the
Plan. A partnership is considered to be the Employer of each of the partners
and a sole proprietorship to be the Employer of a sole proprietor.
1.18 "Employer Contribution" shall mean the amount contributed by the
Employer each year pursuant to Article III.
1.19 "Employer Contribution Account" shall mean an account established
for a Participant's share of the Employer's contribution pursuant to Article IV.
7.
1.20 "Entry Date" shall mean the Effective Date and each date thereafter
specified in Section 2.01 as of which an Employee may become a Participant.
1.21 "Excess Aggregate Contributions" shall mean, with respect to any
Plan Year, the excess of the aggregate amount of the Employer matching
contributions made pursuant to Section 3.01(B) and any qualified non-elective
contributions or elective deferrals taken into account pursuant to Section
3.07(C) on behalf of Highly Compensated Participants for such Plan Year, over
the maximum amount of such contributions permitted under the limitations of
Section 3.07(A).
1.22 "Excess Contributions" shall mean, with respect to a Plan Year, the
excess of Elective Contributions made on behalf of Highly Compensated
Participants for the Plan Year over the maximum amount of such contributions
permitted under Section 3.05(A). Excess contributions shall be treated as an
"annual addition" pursuant to Section 3.09.
1.23 "Excess Deferred Compensation" means, with respect to any taxable
year of a Participant, the excess of the aggregate amount of such Participant's
Deferred Compensation and the elective deferrals pursuant to Section 3.02(F)
actually made on behalf of such Participant for such taxable year, over the
dollar limitation provided for in Code Section 402(g), which is incorporated
herein by reference. Excess Deferred Compensation shall be treated as an
"annual addition" pursuant to Section 3.09 when contributed to the Plan unless
distributed to the affected Participant no later than the first April 15th
following the close of the Participant's taxable year. Additionally, for
purposes of Sections 7.02 and 3.04(G), Excess Deferred Compensation shall
continue to be treated as Employer contributions even if distributed pursuant to
Section 3.02(F). However, Excess Deferred Compensation of Non-Highly Compensated
Participants is not taken into account for purposes of Section
8.
3.05(A) to the extent such Excess Deferred Compensation occurs pursuant to
Section 3.02(D).
1.24 "Family Member" shall mean, with respect to an Employee, such
Employee's spouse and lineal ascendants or descendants and the spouses of such
lineal ascendants or descendants.
1.25 "Fiscal Year" shall mean the twelve (12) month period January 1
through December 31.
1.26 "Forfeiture": the Plan does not provide for forfeitures.
1.27 "Former Participant" shall mean a person who has been a Participant,
but who has ceased to be a Participant for any reason.
1.28 "414(s) Compensation" with respect to any Participant shall mean
such Participant's "415 Compensation" paid during a Plan Year. The amount of
"414(s) compensation with respect to any Participant shall include "414(s)
Compensation" for the entire twelve (12) month period ending on the last day of
such Plan Year, except that "414(s) Compensation" shall only be recognized for
that portion of the Plan Year during which an Employee was a Participant in the
Plan.
For purposes of this Section, the determination of "414(s) Compensation"
shall be made by including amounts which are contributed by the Employer
pursuant to a salary reduction agreement and which are not includible in the
gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457, and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
"414(s) Compensation" in excess of $200,000 shall be disregarded. Such
amount shall be adjusted at the same time and in such manner as permitted under
Code Section 415(d), except
9.
that the dollar increase in effect on January 1 of any calendar year shall be
effective for the Plan Year beginning with or within such calendar year and the
first adjustment to the $200,000 limitation shall be effective on January 1,
1990. For any short Plan Year the "414(s) Compensation" limit shall be an amount
equal to the "414(s) Compensation" limit for the calendar year in which the Plan
Year begins multiplied by the ratio obtained by dividing the number of full
months in the short Plan Year by twelve (12). In applying this limitation, the
family group of a Highly Compensated Participant who is subject to the Family
Member aggregation rules of Code Section 414(q)(6) because such Participant is
either a "five percent owner" of the Employer or one of the ten (10) Highly
Compensated Employees paid the greatest "415 Compensation" during the year,
shall be treated as a single Participant, except that for this purpose Family
Members shall include only the affected Participant's spouse and any lineal
descendants who have not attained age nineteen (19) before the close of the
year.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Compensation of each Employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limits. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Code Section 401(a)(17)(B). The cost of living adjustment in effect for a
calendar year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in such calendar
year. If a determination period consists of fewer than 12 months, the OBRA '93
annual compensation limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period, and the denominator
of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in this
Plan to the limitation under Code Section 401(a)(17) shall mean the OBRA '93
annual compensation limit set forth in this provision.
10.
If Compensation for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
If, in connection with the adoption of this amendment and restatement, the
definition of "414(s) Compensation" has been modified, then, for Plan Years
prior to the Plan Year which includes the adoption date of this amendment and
restatement, "414(s) Compensation" means compensation determined pursuant to the
Plan then in effect.
1.29 "415 Compensation" shall mean compensation as defined in Section
3.09(D).
1.30 "Highly Compensated Employee" shall mean Highly Compensated Active
Employees and Highly Compensated Former Employees.
A Highly Compensated Active Employee includes any Employee who performs
services for the Employer during the determination year and who, during the
look-back year: (i) received compensation from the Employer in excess of
Seventy-Five Thousand Dollars ($75,000.00) (as adjusted pursuant to Code Section
415(d)); (ii) received compensation from the Employer in excess of Fifty
Thousand Dollars ($50,000.00) (as adjusted pursuant to Code Section 415(d)) and
was a member of the top-paid group for such year; or (iii) was an officer of the
Employer and received compensation during such year that is greater than fifty
percent (50%) of the dollar limitation in effect under Code Section
415(b)(1)(A). The term Highly Compensated Employee also includes: (i) Employees
who are both described in the preceding sentence if the term "determination
year" is substituted for the
11.
term "look-back year" and the Employee is one of the one hundred (100) Employees
who received the most compensation from the Employer during the determination
year; and (ii) Employees who are five percent (5%) owners at any time during the
look-back year or determination year.
If no officer has satisfied the compensation requirement of (iii) above
during either a determination year or look-back year, the highest paid officer
for such year shall be treated as a Highly Compensated Employee.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve-month period immediately preceding the
determination year.
A Highly Compensated Former Employee includes any Employee who separated
from service (or was deemed to have separated) 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.
If an Employee is, during a determination year or look-back year, a Family
Member of either a five percent (5%) owner who is an active or former Employee
or a Highly Compensated Employee who is one of the ten (10) most Highly
Compensated Employees ranked on the basis of compensation paid by the Employer
during such year, then the Family Member and the five percent (5%) owner or top-
ten Highly Compensated Employee shall be aggregated. In such case, the Family
Member and the five percent (5%) owner or top-ten Highly Compensated Employee
shall be treated as a single Employee receiving compensation and Plan
contributions or benefits equal to the sum of such compensation and
contributions or benefits of the Family Member and five percent (5%) owner or
top-ten Highly Compensated Employee.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the top-paid group,
the top one hundred (100)
12.
Employees, the number of Employees treated as officers and the compensation that
is considered, will be made in accordance with Code Section 414(q) and
regulations thereunder. The top paid group shall be the top twenty percent (20%)
of employees when ranked on the basis of Compensation during the Plan Year,
excluding those Employees allowed to be excluded under Code Section 414(q)(8).
Compensation shall mean Code Section 415(c)(3) Compensation determined without
regard to Code Sections 125, 402(a)(8), 402(h)(1)(B) and 403(b) as they relate
to salary deferral or salary reduction contributions.
Code Sections 414(b), (c), (m), (n) and (o) shall be applied before the
application of this Section.
1.31 "Highly Compensated Participant" shall mean any Highly Compensated
Employee who is eligible to participate in the Plan.
1.32 "Hour of Service" shall mean each hour (i) for which an Employee is
paid, or entitled to payment, for the performance of duties for the Employer
during the applicable computation period; or (ii) for which an Employee is paid,
or entitled to payment, by the Employer on account of a period of time during
which no duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness, incapacity
(including disability), lay-off, jury duty, military duty, or leave of absence.
However, non-hourly Employees may be credited with forty-five (45) Hours of
Service per week for weeks in which the Employee would be credited with Hours of
Service for purposes of eligibility, vesting, benefit accrual, or Breaks in
Service. Notwithstanding the preceding sentence, no more than five hundred one
(501) Hours of Service shall be credited under clause (ii) above to an Employee
on account of any single continuous period during which the Employee performs no
duties (whether or not such period occurs in a single computation period).
Hours of Service credited for periods during which the Employee performs no
duties shall be credited in
13.
accordance with Department of Labor Regulations, Sections 2530.200b-2(b) and
(c). In addition thereto, to the extent an Employee is not otherwise credited
with an Hour of Service in accordance with the provisions of this paragraph, an
Employee shall be entitled to be credited with an Hour of Service in the year
earned, for each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Employer. All questions of interpretation
of "Hour of Service" are to be settled in the Employee's favor.
1.33 "Investment Adviser" shall mean any person or persons,
organization, partnership or corporation appointed as provided in Section 9.07.
The Investment Adviser shall either be registered as an investment adviser under
the Investment Advisers Act of 1940; or it shall be a bank as defined in said
Act; or it shall be an insurance company qualified under the laws of one or more
states to perform services consisting of the management, acquisition or
disposition of any assets of the Plan.
1.34 "Key Employee" shall mean any Participant as defined in Code Section
416(i) and the regulations thereunder. Generally, Key Employee shall mean any
Participant or Former Participant (and each of his or her beneficiaries) who, at
any time during the Plan Year or any of the preceding four (4) Plan Years has
been included in any one of the following categories:
(A) An officer of the Employer (as that term is defined within the meaning
of the regulations under Code Section 416) having "415 Compensation" for the
Plan Year greater than fifty percent (50%) of the amount in effect under Code
Section 415(b)(1)(A) for such Plan Year. Only those Employers which are
incorporated shall be considered as having officers.
(B) One of the ten (10) Employees having annual "415 Compensation" from
the Employer of more than the dollar limitation in effect under Code Section
415(c)(1)(A) for the calendar year in which such Plan Year ends and owning (or
14.
considered as owning within the meaning of Code Section 318) both more than one-
half percent (0.5%) interest and the largest interests in all employers required
to be aggregated under Code Sections 414(b), (c), and (m).
(C) A "five percent owner" of the Employer. "Five percent owner" shall
mean any person who owns (or is considered as owning within the meaning of Code
Section 318) more than five percent (5%) of the outstanding stock of the
Employer or stock possessing more than five percent (5%) of the total combined
voting power of all stock of the Employer, or, in the case of an unincorporated
business, any person who owns more than five percent (5%) of the capital or
profits interest in the Employer. In determining percentage ownership
hereunder, employers that would otherwise be aggregated under Code Sections
414(b), (c) and (m) shall be treated as separate employers.
(D) A "one percent owner" of the Employer having an annual "415
Compensation" as defined in Section 3.09(D) from the Employer of more than One
Hundred Fifty Thousand Dollars ($150,000.00). "One percent owner" shall mean
any person who owns (or is considered as owning within the meaning of Code
Section 318) more than one percent (1%) of the outstanding stock of the Employer
or stock possessing more than one percent (1%) of the total combined voting
power of all stock of the Employer, or, in the case of an unincorporated
business, any person who owns more than one percent (1%) of the capital or
profits of the Employer. In determining percentage ownership hereunder,
employers that would otherwise be aggregated under Code Sections 414(b), (c) and
(m) shall be treated as separate employers. However, in determining whether an
individual has "415 Compensation" of more than One Hundred Fifty Thousand
Dollars ($150,000.00), Compensation from each employer required to be aggregated
under Code Sections 414(b),(c) and (m) shall be taken into account.
15.
1.35 "Leased Employee" shall mean any person (other than an employee of
the recipient) who pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the recipient (or for
the recipient and related persons determined in accordance with Code Section
414(n)(6)) on a substantially full time basis for a period of at least one (1)
year, and such services are of a type historically performed by employees in the
business field of the recipient employer. Contributions or benefits provided a
leased employee by the leasing organization which are attributable to services
performed for the recipient employer shall be treated as provided by the
recipient employer.
A leased employee shall not be considered an employee of the recipient if:
(1) such employee is covered by a money purchase pension plan providing: (i) a
nonintegrated employer contribution rate of at least ten percent (10%) of
compensation, as defined in Code Section 415(c)(3), but including amounts
contributed pursuant to a salary reduction agreement which are excludable from
the employee's gross income under Code Sections 125, 402(a)(8), 402(h) or
403(b), (ii) immediate participation, and (iii) full and immediate vesting; and
(2) leased employees do not constitute more than twenty percent (20%) of the
recipient's nonhighly compensated workforce.
1.36 "Limitation Year" shall mean the Plan Year.
1.37 "Non-Elective Contribution" shall mean the Employer's contributions
to the Plan excluding, however, contributions made pursuant to the Participant's
deferral election provided for in Section 3.02 and any Qualified Non-Elective
Contribution.
1.38 "Non-Highly Compensated Employee" shall mean any Employee who is
neither a Highly Compensated Employee or a Family Member.
16.
1.39 "Non-Highly Compensated Participant" shall mean any Participant who
is neither a Highly Compensated Employee nor a Family Member.
1.40 "Non-Key Employee" shall mean any Employee who is not a Key
Employee.
1.41 "Normal Retirement Age" shall mean age Sixty Five (65). If the
Employer enforces a mandatory retirement age, the Normal Retirement Age is the
lesser of that mandatory age or the age specified in this Section.
1.42 "Normal Retirement Date" shall mean the first day of the calendar
month next following the date the Participant attains Normal Retirement Age.
1.43 "Owner-Employee" shall mean a sole proprietor who owns the entire
interest in the Employer or a partner who owns more than ten percent (10%) of
either the capital interest or the profits interest in the Employer and who
receives income for personal services from the Employer. For purposes of this
Plan, an Owner-Employee shall be considered an Employee.
1.44 "Participant" shall mean any Employee who becomes a Participant in
the Plan in accordance with the provisions of Article II and shall include any
former Employee who is receiving or is eligible to receive benefits under the
Plan.
1.45 "Participant's Account" shall mean the account established and
maintained by the Plan Administrator for each Participant with respect to his or
her total interest in the Plan and Trust resulting from the Employer's Non-
Elective Contributions.
A separate account shall be maintained with respect to that portion of the
Participant's Account attributable to Employer
17.
matching contributions made pursuant to Section 3.01(B) and Employer
discretionary contributions made pursuant to Section 3.01(C).
1.46 "Participant's Combined Account" shall mean the total aggregate amount
of each Participant's Elective Account and Participant's Account.
1.47 "Participant's Elective Account" shall mean the account established
and maintained by the Plan Administrator for each Participant with respect to
his or her total interest in the Plan and Trust resulting from the Employer's
Elective Contributions. A separate accounting shall be maintained with respect
to that portion of the Participant's Elective Account attributable to Elective
Contributions pursuant to Section 3.02 and any Employer Qualified Non-Elective
Contributions.
1.48 "Plan" shall mean the Plan and Trust Agreement embodied in this
instrument and any amendments or supplements thereto and shall be known as the
PLEASANT COMPANY RETIREMENT SAVINGS PLAN AND TRUST AGREEMENT.
1.49 "Plan Administrator" shall mean the Employer or such other person as
shall be named by the Employer pursuant to Section 9.03 to administer the Plan
on behalf of the Employer. The Plan Administrator shall be responsible for
compliance with the provisions of ERISA.
1.50 "Plan Year" shall mean the twelve (12) consecutive month period
January 1 through December 31.
1.51 "Qualified Non-Elective Contribution" shall mean the Employer's
contributions to the Plan that are made pursuant to Section 3.06. Such
contributions shall be considered an Elective
18.
Contribution for the purposes of the Plan and used to satisfy the "Actual
Deferral Percentage" tests.
In addition, the Employer's contributions to the Plan that are made
pursuant to Section 3.08(H) which are used to satisfy the "Actual Contribution
Percentage" tests shall be considered Qualified Non-Elective Contributions and
be subject to the provisions of Sections 3.02(B) and 3.02(C).
1.52 "Related Employers" shall mean all employers who are members of a
controlled group of corporations (as defined in Code Section 414(b)), commonly
controlled trades or businesses (as defined in Code Section 414(c)), or
affiliated service groups (as defined in Code Section 414(m)) or other group as
determined pursuant to Code Section 414(o), of which the Employer is a member.
1.53 "Rollover Contribution" shall mean any rollover amount or rollover
contribution as defined in Code Sections 402(a)(5) 403(a)(4) (relating to
certain lump sum distributions from an employer trust or employee annuity plan)
or Code Section 408(d)(3)(A)(ii) (relating to certain distributions from an
individual retirement account or individual retirement annuity). Amounts
transferred directly from another qualified plan or individual retirement
account pursuant to Section 11.10 shall be considered as Rollover Contributions.
1.54 "Self-Employed Individual" shall mean any individual (including
Owner-Employees) who receives earned income from an unincorporated Employer (or
who would have received such but for the fact that the trade or business carried
on by such Employer did not have net profits for the taxable year). For
purposes of the Plan, a Self-Employed Individual shall be considered to be an
Employee.
19.
1.55 "Shareholder-Employee" shall mean an Employee who owns, or is
considered to own within the meaning of Code Section 318(a)(1), more than five
percent (5%) of the outstanding stock of the Employer where the Employer is a
Subchapter S corporation.
1.56 "Super Top Heavy Plan" shall mean, for Plan Years commencing after
December 31, 1983, that, as of the Determination Date, (i) the present value of
Accrued Benefits of Key Employees, and (ii) the sum of the Aggregate Accounts of
Key Employees under this Plan and all plans of an Aggregation Group, exceeds
ninety percent (90%) of the present value of Accrued Benefits and the Aggregate
Accounts of all Participants under this Plan and any plan of an Aggregation
Group.
1.57 "Taxable Wage Base" or "Maximum Taxable Wage Base" shall mean, with
respect to any taxable year, the maximum amount of earnings which may be
considered wages for such year under Code Section 3121(a)(1), as in effect at
the beginning of the Plan Year.
1.58 "Termination of Employment" shall mean the cessation of an
individual's status as an Employee of the Employer for any reason other than the
death of such Employee. An Employee who does not return to work for the
Employer on or before the expiration of an authorized leave of absence from such
Employer shall be deemed to have incurred a Termination of Employment when such
leave ends.
1.59 "Top Heavy Plan" shall mean, for Plan Years commencing after
December 31, 1983, that, as of the Determination Date, (i) the present value of
Accrued Benefits of Key Employees, and (ii) the sum of the Aggregate Accounts of
Key Employees under this Plan and any plan of an Aggregation Group, exceeds
sixty percent (60%) of the present value of Accrued Benefits and the Aggregate
20.
Accounts of all Participants under this Plan and any plan of an Aggregation
Group.
1.60 "Top Heavy Plan Year" shall mean any Plan Year commencing after
December 31, 1983, during which the Plan is a Top Heavy Plan.
1.61 "Trust" shall mean the Trust, the terms of which are contained in
this instrument and any amendments or supplements thereto.
1.62 "Trust Fund" or "Fund" shall mean and include all cash, securities,
contracts, and other property, real, personal, or mixed at any time and from
time to time held by the Trustees without distinguishing between principal and
income.
1.63 "Trustee" or "Trustees" shall mean the individual, individuals, or
entity appointed pursuant to Section 8.03 who accepts such appointment in
writing, and any duly appointed successor trustee as provided in Section 8.15.
Trustee shall mean "custodian" in the event the individual or entity named as
Trustee does not have full trust powers.
1.64 "Valuation Date" shall mean the last day of the Plan Year and any
such other date designated by the Plan Administrator which is selected in a
uniform and nondiscriminatory manner when the assets of the Fund are valued at
their then fair market value.
1.65 "Year of Credited Service" shall mean any Plan Year or part thereof,
whether or not the Employee was as yet a Participant under the Plan, in which
the Employee has at least one thousand (1,000) Hours of Service with the
Employer. Years of Credited Service with any corporation, trade or business
which is a member of a controlled group of corporations or under common
21.
control (as defined by Internal Revenue Code Sections 414(b) and 414(c)) or is a
member of an affiliated service group (as defined by Code Section 414(m)) or
other group as determined pursuant to Code Section 414(o), shall be recognized.
If the plan herein is a plan of a predecessor employer, service for such
predecessor shall be treated as service for the Employer; if the plan herein is
not a plan maintained by a predecessor employer, service for such predecessor
shall be treated as service for the Employer only to the extent required under
treasury regulations.
1.66 "Year of Participation" shall mean any Plan Year in which a
Participant has at least one thousand (1,000) Hours of Service with the
Employer.
1.67 "Year of Service" shall mean the twelve (12) month period during
which the Employee completes not less than one thousand (1,000) Hours of
Service. Such twelve (12) month period shall begin with the date the Employee
commences employment and, in the event that an Employee does not complete one
thousand (1,000) Hours of Service during the initial twelve (12) month period,
computation shall then be made by reference to the first day of the Plan Year
which began after the individual was first employed or any subsequent Plan Year
during which the Employee completes not less than one thousand (1,000) Hours of
Service. A Year of Service for continued eligibility to participate in the Plan
shall be based upon the Plan Year which includes the last day of the eligibility
computation period in which the Employee first completed the service requirement
for participation in the Plan. Years of Service with any corporation, trade or
business which is a member of a controlled group of corporations or under common
control (as defined by Code Sections 414(b) and 414(c)), or is a member of an
affiliated service group (as defined by Code Section 414(m)), or is required to
be aggregated under Code Section 414(o), shall be recognized. If the plan
herein is a plan of a predecessor employer, service for such predecessor
22.
shall be treated as service for the Employer; if the plan herein is not a plan
maintained by a predecessor employer, service for such predecessor shall be
treated as service for the Employer only to the extent required under treasury
regulations. Years of Service and Breaks in Service will be measured on the same
eligibility computation period.
ARTICLE II.
ELIGIBILITY AND PARTICIPATION
2.01 ELIGIBILITY.
(A) For those employed on or before June 30, 1995. Any Employee shall
---------------------------------------------
become a Participant upon both attaining age 21 and working at least 500 Hours
of Service during the 6-month period following his or her first day of
employment. Any Employee who does not complete 500 Hours of Service during the
6-month period following his or her first day of employment must thereafter
complete 1,000 Hours of Service during a Plan Year, whether such Plan Year be
the one in which the Employee's first 6-month period of employment ends or a
subsequent Plan Year. An Employee shall become a Participant in either case on
the Entry Date first succeeding satisfaction of both the age and service
requirements. The Entry Dates are January 1 and July 1 of each year. Provided,
however, that any Employee normally scheduled to work at least 20 hours per week
who satisfies the age requirement on or before January 1, 1989, and is still
employed on that date, shall become a Participant on January 1, 1989.
(B) For those employed on or after July 1, 1995. Any Eligible Employee
-------------------------------------------
shall be eligible to participate in this Plan after the Employee completes one
(1) Year of Service and has attained the age of twenty-one (21). Any Employee
who becomes eligible to participate in this Plan shall commence participation in
the Plan, if he or she is not separated from the service of the Employer, on the
earlier of the first day of the Plan Year
23.
beginning after the Employee has satisfied the minimum age and service
requirements of this Section or the first day of the seventh month of such Plan
Year coinciding with or next following the date such Employee met the
eligibility requirements of this section. The entry dates for this Plan are
January 1 and July 1. Temporary absence of the Employee due to vacation,
sickness, medical leave of absence for no longer than twelve (12) months, strike
or seasonal lay-off for less than one (1) year shall not constitute a separation
from the service of the Employer for the purposes of commencing participation.
The foregoing notwithstanding, for purposes of determining the amount and
allocation of the Employer Contributions for any Plan Year, "Compensation" shall
include only Compensation paid while an Employee is a Participant of the Plan,
with the commencement of participation to be as provided in this Section.
(C) Each Employee who was a Participant of the Plan prior to this Amendment
and Restatement shall continue as a Participant of this Plan.
2.02 ELIGIBILITY BREAK IN SERVICE RULES. For purposes of determining an
Employee's eligibility for participation in the Plan, Years of Service with the
Employer shall be taken into account subject to the following provisions:
(A) Plans with Immediate Full Vesting. If an Employee has at least a One-
---------------------------------
Year Break in Service, and if the Employee has not satisfied the length of
service requirement before the break in service, then service before the break
shall not be taken into account.
(B) Vested Participants. If an Employee has at least a One-Year Break in
-------------------
Service, then service before such break shall not be taken into account until
the completion of one (1) Year of Service after such Employee's return.
However, if the length of service requirement is less than one (1) Year of
Service the Employee shall be eligible to participate upon completion of the
length of service requirement after the reemployment date.
24.
Participation shall be retroactive to the reemployment commencement date.
(C) Non-Vested Employees. If an Employee has at least a One-Year Break in
--------------------
Service and has no vested percentage in such Employee's Accrued Benefit derived
from Employer contributions, or if such Employee was never a Participant in the
Plan, then Years of Service before such break shall not be taken into account if
the number of consecutive One-Year Breaks in Service equals or exceeds the
greater of five (5) years or the aggregate number of Years of Service before the
break. Such aggregate number of Years of Service will not include any Years of
Service disregarded under the preceding sentence by reason of prior Breaks in
Service. If service before such break is required to be taken into account
under this paragraph (C), such service before such break shall not be taken into
account until the completion of one (1) Year of Service after such Employee's
return to employment with the Employer. Participation shall be retroactive to
the reemployment commencement date.
For purposes of applying paragraphs (B) and (C), a Year of Service shall
commence on an Employee's reemployment commencement date and, if necessary,
shall include Plan Years beginning with the Plan Year which includes the first
anniversary of the reemployment commencement date.
2.03 EFFECT OF LEAVE OF ABSENCE. A leave of absence authorized by the
Employer shall not be deemed a Break in Service. An Employee upon such
authorized leave on the last day of the Plan Year shall be considered employed
by the Employer. Any Employee who leaves the actual service of the Employer to
enter the Armed Forces of the United States of America during a period of
national emergency or enters such Armed Forces at any time through the operation
of a compulsory military service law shall be deemed on a leave of absence
authorized by the Employer during the period of his or her service in such Armed
25.
Forces and during any period after release or discharge from such Armed Forces
while such Employee's reemployment rights are guaranteed by law. In connection
with the company's leave of absence policy, all Employees will be treated alike
in similar circumstances. No period of lay-off shall continue to be an
authorized leave of absence after a period of one (1) year.
2.04 TRANSFER TO ELIGIBLE CLASS OR REINSTATEMENT OF INELIGIBLE
PARTICIPANT. In the event an Employee becomes ineligible to participate under
Section 2.01 because he or she is no longer a member of an eligible class of
Employees, but has not incurred a break in service, such Employee shall
participate immediately upon his or her return to an eligible class of
Employees. If such Employee incurs a break in service, his or her eligibility
to participate shall be determined by Section 2.02.
In the event an Employee who is not a member of the eligible class of
Employees becomes a member of the eligible class, such Employee shall
participate immediately if such Employee has satisfied the service requirement
and would have previously become a Participant had he or she been in the
eligible class.
2.05 DETERMINATION OF ELIGIBILITY. The Plan Administrator shall
determine the eligibility of each Employee for participation in the Plan. Such
determination shall be conclusive and binding upon all persons except as
otherwise provided herein or by law.
2.06 MANNER OF BECOMING A PARTICIPANT. The Plan Administrator shall
notify each Employee who becomes eligible to participate under this Plan and
shall furnish any application form, enrollment forms or other documents which
are required of Participants. The Employee shall execute such forms or
documents and make available such information as may be required in the
administration of the Plan. Such Employee must perform all acts
26.
required within thirty (30) days of the date on which he or she is notified of
his or her eligibility.
All Participants shall be bound by the terms of the Plan, including all
amendments made in the manner authorized herein. Participants shall also be
entitled to all of the rights and privileges afforded under the Plan, including
those specifically granted by ERISA.
2.07 OMISSION OF ELIGIBLE EMPLOYEE
If, in any Plan Year, any Employee who should be included as a
Participant in the Plan is erroneously omitted and discovery of such omission is
not made until after a contribution by the Employer for the year has been made,
the Employer shall make a subsequent contribution with respect to the omitted
Employee in the amount which the said Employer would have contributed with
respect to the Employee had he or she not been omitted. Such contribution shall
be made regardless of whether or not it is deductible in whole or in part in any
taxable year under applicable provisions of the Code.
2.08 INCLUSION OF INELIGIBLE EMPLOYEE
If, in any Plan Year, any person who should not have been included as
a Participant in the Plan is erroneously included and discovery of such
incorrect inclusion is not made until after a contribution for the year has been
made, the Employer shall not be entitled to recover the contribution made with
respect to the ineligible person regardless of whether or not a deduction is
allowable with respect to such contribution.
2.09 ELECTION NOT TO PARTICIPATE
An Employee may, subject to the approval of the Employer, elect
voluntarily not to participate in the Plan. The election not to participate
must be communicated to the Employer, in writing, at least thirty (30) days
before the beginning of a Plan Year.
27.
ARTICLE III.
CONTRIBUTIONS AND ALLOCATIONS
3.01 CONTRIBUTIONS BY THE EMPLOYER.
For each Plan Year, the Employer shall contribute to the Plan:
(A) The amount of the total salary reduction elections of all
Participants made pursuant to Section 3.02(A), which amount shall be deemed
an Employer's Elective Contribution.
(B) On behalf of each Participant who is eligible to share in matching
contributions for the Plan Year, a discretionary matching contribution
equal to a percentage of each such Participant's Deferred Compensation, the
exact percentage to be determined each year by the Employer, which amount
shall be deemed an Employer' Non-Elective Contribution.
(C) A discretionary amount, which amount shall be deemed an Employer's
Non-Elective Contribution. Subject to the right of the Employer to alter,
amend, or terminate the Plan, the Employer shall make a contribution to the
Trust Fund in an amount to be determined by resolution of the Board of
Directors of the Employer on or before the last day of the Fiscal Year of
the Employer or such other time as may be appropriate. The Employer's
determination of such contribution shall be binding upon all Participants
and the Employer. In the event that the Board of Directors of the Employer
shall not determine that any amount is to be contributed to the Plan, the
Employer shall be under no obligation to make any contribution.
(D) Notwithstanding the foregoing, however, the Employer's
contributions for any Plan Year shall not exceed the maximum amount
allowable as a deduction to the Employer under the provisions of the Code
Section 404. All
28.
contributions by the Employer shall be made in cash or in such property
as is acceptable to the Trustee.
(E) Except, however, to the extent necessary to provide the top heavy
minimum allocations, the Employer shall make a contribution even if it
exceeds the amount which is deductible under Code Section 404.
3.02 PARTICIPANT'S SALARY REDUCTION ELECTION
(A) Each Participant may elect to defer his or her compensation which
would have been received in the Plan Year, but for the deferral election,
by up to Fifteen Percent (15%). A deferral election (or modification of an
earlier election) may not be made with respect to Compensation which is
currently available on or before the date the Participant executed such
election.
The amount by which Compensation is reduced shall be that
Participant's Deferred Compensation and be treated as an Employer Elective
Contribution and allocated to that Participant's Elective Account.
(B) The balance in each Participant's Elective Account shall be fully
Vested at all times and shall not be subject to Forfeiture for any reason.
(C) Amounts held in the Participant's Elective Account may not be
distributable earlier than:
(1) a Participant's termination of employment, Total and
Permanent Disability, or death;
(2) a Participant's attainment of age 59 1/2;
(3) the termination of the Plan without the establishment or
existence of a "successor plan", as that term is described in
Regulation 1.401(k)-1(d)(3);
(4) the date of disposition by the Employer to an entity that is
not a Related Employer of substantially all of the assets (within the
meaning of Code Section 409(d)(2) used in a trade or business of such
corporation if such corporation continues to maintain
29.
this Plan after the disposition with respect to a Participant who
continues employment with the corporation acquiring such assets;
(5) the date of disposition by the Employer or a Related Employer
who maintains the Plan of its interest in a subsidiary (within the
meaning of Code Section 409(d)(3)) to an entity which is not a Related
Employer but only with respect to a Participant who continues
employment with such subsidiary; or
(6) the proven financial hardship of a Participant, subject to
the limitations of Sections 5.10 and 6.10.
(D) For each Plan Year beginning after December 31, 1987, a
Participant's Deferred Compensation made under this Plan and all other
plans, contracts or arrangements of the Employer maintaining this Plan
shall not exceed, during any taxable year of the Participant, the
limitation imposed by Code Section 402(g), as in effect at the beginning of
such taxable year. If such dollar limitation is exceeded, a Participant
will be deemed to have notified the Plan Administrator of such excess
amount which shall be distributed in a manner consistent with Section
3.02(F). The dollar limitation shall be adjusted annually pursuant to the
method provided in Code Section 415(d) in accordance with Regulations.
(E) In the event a Participant has received a hardship distribution
from his or her participant's Elective Account pursuant to Sections 5.10 or
6.10 or pursuant to Regulation 1.401(k)-1(d)(2)(iv)(B) from any other plan
maintained by the Employer, then such Participant shall not be permitted to
elect to have Deferred Compensation contributed to the Plan on his or her
behalf for a period of Twelve (12) months following the receipt of the
distribution. Furthermore, the dollar limitation under Code Section 402(g)
shall be reduced, with respect to the Participant's taxable year
30.
following the taxable year in which the hardship distribution was made, by
the amount of such Participant's Deferred Compensation, if any, pursuant to
the Plan (and any other plan maintained by the Employer) for the taxable
year of the hardship distribution.
(F) If a Participant's Deferred Compensation under this Plan together
with any elective deferrals (as defined in Regulation 1.402(g)-1(b) under
another qualified cash or deferred arrangement (as defined in Code Section
401(k)), a simplified employee pension (as defined in Code Section 408(k)),
a salary reduction arrangement (within the meaning of Code Section
3121(a)(5)(D)), a deferred compensation plan under Code Section 457, or a
trust described in Code Section 501(c)(18) cumulatively exceed the
limitation imposed by Code Section 402(g) (as adjusted annually in
accordance with the method provided in Code Section 415(d) pursuant to
Regulations) for such Participant's taxable year, the Participant may, not
later than March 1 following the close of the Participant's taxable year,
notify the Plan Administrator in writing of such excess and request that
his or her Deferred Compensation under this Plan be reduced by an amount
specified by the Participant. In such event, the Plan Administrator may
direct the Trustee to distribute such excess amount (and any income
allocable to such excess amount) to the Participant no later than the first
April 15th following the close of the Participant's taxable year.
Distributions in accordance with this paragraph may be made for any taxable
year of the Participant which begins after December 31, 1986. Any
distribution of less than the entire amount of Excess Deferred Compensation
and income shall be treated as a pro rata distribution of Excess Deferred
Compensation and income. The amount distributed shall not exceed the
Participant's Deferred Compensation under the Plan for the taxable year.
Any distribution on or before the
31.
last day of the Participant's taxable year must satisfy each of the
following conditions:
(1) the distribution must be made after the date on which the
Plan received the Excess Deferred Compensation;
(2) the Participant shall designate the distribution as Excess
Deferred Compensation; and
(3) the Plan must designate the distribution as a distribution of
Excess Deferred Compensation.
Any distribution made pursuant to this Section shall be made
simultaneously from Deferred Compensation and matching contributions which
relate to such Deferred Compensation.(G) Notwithstanding Section 3.02(F)
above, a Participant's Excess Deferred Compensation shall be reduced, but
not below zero, by any distribution of Excess Contributions pursuant to
Section 3.06(A) for the Plan Year beginning with or within the taxable year
of the Participant.
(G) At Normal Retirement Date, or such other date when the Participant
shall be entitled to receive benefits, the fair market value of the
Participant's Elective Account shall be used to provide additional benefits
to the Participant or his or her Beneficiary.
(H) All amounts allocated to a Participant's Elective Account may be
treated as a Directed Investment Account pursuant to Section 3.17.
(I) Employer Elective Contributions made pursuant to this Section may
be segregated into a separate account for each Participant in a federally
insured savings account, certificate of deposit in a bank or savings and
loan association, money market certificate, or other short-term debt
security acceptable to the Trustee until such time as the allocations
pursuant to Section 3.04 have been made.
(J) The Employer and the Plan Administrator shall implement the salary
reduction elections provided for herein in accordance with the following:
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(1) A Participant may commence making elective deferrals to the
Plan only after first satisfying the eligibility and participation
requirements specified in Article II. However, the Participant must
make his or her initial salary deferral election within a reasonable
time, not to exceed thirty (30) days, after entering the Plan. If the
Participant fails to make an initial salary deferral election within
such time, then such Participant may thereafter make an election in
accordance with the rules governing modifications. The Participant
shall make such an election by entering into a written salary
reduction agreement with the Employer and filing such agreement with
the Plan Administrator. Such election shall initially be effective
beginning with the pay period following the acceptance of the salary
reduction agreement by the Plan Administrator, shall not have
retroactive effect and shall remain in force until revoked.
(2) A Participant may modify a prior election during the Plan
Year and concurrently make a new election by filing a written notice
with the Plan Administrator within a reasonable time before the pay
period for which such modification is to be effective. However,
modifications to a salary deferral election shall only be permitted
semi-annually, during election periods established by the Plan
Administrator. Any modification shall not have retroactive effect and
shall remain in force until revoked.
(3) A Participant may elect to prospectively revoke his or her
salary reduction agreement in its entirety at any time during the Plan
Year by providing the Plan Administrator with thirty (30) days written
notice of such revocation (or upon such shorter notice period as may
be acceptable to the Plan Administrator). Such revocation shall become
effective as of the
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beginning of the first pay period coincident with or next following
the expiration of the notice period. Furthermore, the termination of
the Participant's employment, or the cessation of participation for
any reason, shall be deemed to revoke any salary reduction agreement
then in effect, effective immediately following the close of the pay
period within which such termination or cessation occurs.
3.03 TIME OF PAYMENT OF CONTRIBUTIONS. The Employer shall pay the
contribution for each Plan Year to the Trustees within the time prescribed by
law, including any extension of time for the filing of a federal income tax
return for such year or within such period as provided by the Internal Revenue
Code of 1986 as amended.
However, Employer Elective Contributions accumulated through payroll
deductions shall be paid to the Trustee as of the earliest date on which such
contributions can reasonably be segregated from the Employer's general assets,
but in any event within ninety (90) days from the date on which such amounts
would otherwise have been payable to the Participant in cash. The provisions of
Department of Labor regulations 2510.3-102 are incorporated herein by reference.
Furthermore, any additional Employer contributions which are allocable to the
Participant's Elective Account for a Plan Year shall be paid to the Plan no
later than the twelve-month period immediately following the close of such Plan
Year.
3.04 ALLOCATION OF CONTRIBUTIONS AND EARNINGS.
(A) The Plan Administrator shall establish and maintain an account in the
name of each Participant to which the Plan Administrator shall credit all
amounts allocated to each such Participant as set forth herein.
(B) The Employer shall provide the Plan Administrator with all information
required by the Plan Administrator to make a
34.
proper allocation of the Employer's contributions for each Plan Year. Within a
reasonable period of time after the date of receipt by the Plan Administrator of
such information the Plan Administrator shall allocate such contributions as
follows:
(1) With respect to the Employer's Elective Contribution made pursuant
to Section 3.01(A), to each Participant's Elective Account in an amount
equal to each such Participant's Deferred Compensation for the year.
(2) With respect to the Employer's Non-Elective Contribution made
pursuant to Section 3.01(B), to each Participant's Account in accordance
with Section 3.01(B). Only Participants who are actively employed on the
last day of the Plan Year or whose employment terminated because of death
or Total and Permanent Disability or after attainment of Normal Retirement
Age shall be eligible to share in the matching contribution for the year.
(3) With respect to the Employer's Non-Elective Contribution made
pursuant to Section 3.01(C), to each Participant's account as follows:
Step 1: Contributions and forfeitures will be allocated to each
Participant's account in the ratio that each Participant's total
Compensation bears to all Participants' total Compensation, but not in
excess of 3% of each Participant's Compensation.
Step 2: Any contributions and forfeitures remaining after the
allocation in Step 1 will be allocated to each Participant's account in the
ratio that each Participant's Compensation for the Plan Year in excess of
the Integration Level bears to the excess compensation of all Participants,
but not in excess of 3%.
Step 3: Any contributions and forfeitures remaining after the
allocation in Step 2 will be allocated to each Participant's account in the
ratio that the sum of each Participant's total Compensation and
Compensation in excess of the Integration Level bears to the sum of all
Participants' total Compensation and Compensation in excess of the
35.
Integration Level, but not in excess of the profit sharing maximum
disparity rate.
Step 4: Any remaining Employer contributions or forfeitures will be
allocated to each Participant's account in the ratio that each
Participant's total Compensation for the Plan Year bears to all
Participant's total Compensation for that year.
The Integration Level shall be equal to the taxable wage base. The taxable
wage base is the maximum amount of earnings which may be considered wages for a
year under Section 3121(a)(1) of the Code in effect as of the beginning of the
Plan Year.
The maximum profit sharing disparity rate is equal to the difference
between 3% and the greater of:
(a) 5.7 percentage points; or
(b) the percentage equal to the portion of the Code Section 3111(a)
tax attributable to Old Age Insurance.
Only Participants who have completed a Year of Service and who are actively
employed on the last day of the Plan Year or whose employment terminated because
of death or Total and Permanent Disability or after attainment of Normal
Retirement Age shall be eligible to share in the contribution for the year.
Notwithstanding the foregoing, Participants who have at least 500 Hours of
Service shall receive an allocation if the Plan would otherwise fail to meet the
participation and coverage requirements of Code Sections 401(a)(26) or 410(b) or
any other applicable Code Sections.
(C) For any Top Heavy Plan Year, Non-Key Employees not otherwise eligible
to share in the allocation of contributions as provided above, shall receive the
minimum allocation provided for in Section 3.04(G) if eligible pursuant to the
provisions of Section 3.04(I).
(D) The Trustee at such time as it may deem proper but not less frequently
than upon the last day of each Plan Year shall adjust the balances and the
accounts of all Participants upward or downward pro rata so that the total of
such balances will
36.
equal the net worth of the Trust Fund as of the last day of each Plan Year.
Directed Investment Accounts, as provided in Section 3.17, shall receive all
income earned and bear all expense or loss incurred, subject to uniform and
nondiscriminatory procedures for determining income or loss of a Directed
Investment Account in a manner which reasonably reflects investment directions
relating to pooled investment and investment directions occurring during a
valuation period. Participant Accounts other than Directed Investment Accounts
shall be increased by Fifty Percent (50%) of the contributions, if any,
allocated during the valuation period and decreased by the amounts, if any,
charged against such accounts during the valuation period for reasonable
administrative costs, insurance premiums, and the cash value of incidental
benefit insurance contracts. The net income, gain or loss since the last
Valuation Date shall then be allocated pro rata to the adjusted Participant
Accounts.
(E) MINIMUM ALLOCATIONS REQUIRED FOR TOP HEAVY PLAN YEARS: Notwithstanding
the foregoing, for any Top Heavy Plan Year, the sum of the Employer
Contributions allocated to the Participant's Account of each Non-Key Employee
shall be equal to at least three percent (3%) of such Non-Key Employee's
Compensation, reduced by contributions allocated to each Non-Key Employee in any
other defined contribution plan included with this plan in a required
Aggregation Group. However, if (i) the sum of the Employer Contributions
allocated to the Participant's Account of each Key Employee for such Top Heavy
Plan Year is less than three percent (3%) of each Key Employee's Compensation,
and (ii) this Plan is not required to be included in an Aggregation Group to
enable a defined benefit plan to meet the requirements of Code Section 401(a)(4)
or 410, the sum of the Employer Contributions allocated to the Participant's
Account of each Non-Key Employee shall be equal to the largest percentage
allocated to the Participant's Account of each Key Employee. Notwithstanding
the foregoing, no minimum allocation shall be required in this Plan for any Non-
Key Employee who participates in another defined contribution plan
37.
which is included with this Plan in a required Aggregation Group, and which plan
provides minimum allocations pursuant to Code Section 412.
(F) For purposes of the minimum allocations set forth above, the percentage
allocated to the Participant's Account of any Key Employee shall be equal to the
ratio of the sum of the Employer Contributions allocated on behalf of such Key
Employee divided by the "415 Compensation" of such Key Employee as defined in
Section 3.09(D).
(G) For any Top Heavy Plan Year, the minimum allocations set forth above
shall be allocated to the Participant's Account of all Non-Key Employees who are
Participants and who are employed by the Employer on the last day of the Plan
Year, including Non-Key Employees who (1) have failed to complete a Year of
Participation; (2) have declined to make mandatory contributions (if required)
to the Plan; or (3) have been excluded from participation because of their level
of Compensation.
(H) In lieu of the above, in any Plan Year in which a Non-Key Employee is a
Participant in both this Plan and a defined benefit pension plan included in a
Required Aggregation Group which is top heavy, the Employer shall not be
required to provide such Non-Key Employee with both the full separate defined
benefit plan minimum benefit and the full separate defined contribution plan
minimum allocation. Therefore for any Plan Year when the Plan is a Top Heavy
Plan, a Non-Key Employee who is participating in this Plan and a defined benefit
plan maintained by the Employer shall receive a minimum monthly accrued benefit
in the defined benefit plan equal to the product of (1) one-twelfth (1/12th) of
"415 Compensation" averaged over the five (5) consecutive "limitation years" (or
actual "limitation years", if less) which produce the highest average and (2)
the lesser of (i) two percent (2%) multiplied by years of service when the plan
is top heavy or (ii) twenty percent (20%). Further, the extra minimum
allocation required to provide higher limitations shall not be provided.
38.
(I) Notwithstanding anything herein to the contrary, Participants who
terminated employment for any reason during the Plan Year shall share in the
salary reduction contributions made by the Employer for the year of termination
without regard to the Hours of Service credited.
(J) Notwithstanding anything to the contrary, for Plan Years beginning
after December 31, 1989, if this is a Plan that would otherwise fail to meet the
requirements of Code Section 401(a)(26), 410(b)(1) or 410(b)(2)(A)(i) and the
Regulations thereunder because Employer contributions would not be allocated to
a sufficient number or percentage of Participants for a Plan Year, then the
following rules shall apply:
(1) The group of participants eligible to share in the Employer's
contribution for the Plan Year shall be expanded to include the minimum
number of Leased Employees and Participants who would not otherwise be
eligible as are necessary to satisfy the applicable test specified above.
The specific Participants who shall become eligible under the terms of this
paragraph shall be those who are actively employed on the last day of the
Plan Year and, when compared to similarly situated Participants, have
completed the greatest number of Hours of Service in the Plan Year.
(2) If after application of paragraph (1) above, the applicable test
is still not satisfied, then the group of Participants eligible to share in
the Employer's contribution for the Plan Year shall be further expanded to
include the minimum number of Participants and Leased Employees who are not
actively employed on the last day of the Plan Year as are necessary to
satisfy the applicable test. The specific Participants who shall become
eligible to share shall be those Participants, when compared to similarly
situated Participants, who have completed the greatest number of Hours of
Service in the Plan Year before terminating employment.
(3) Nothing in this Section shall permit the reduction of a
Participant's accrued benefit. Therefore any amounts
39.
that have previously been allocated to Participants may not be reallocated
to satisfy these requirements. In such event, the Employer shall make an
additional contribution equal to the amount such affected Participants
would have received had they been included in the allocation, even if it
exceeds the amount which would be deductible under Code Section 404. Any
adjustment to the allocations pursuant to this paragraph shall be
considered a retroactive amendment adopted by the last day of the Plan
Year.
(4) Notwithstanding the foregoing, for any Top Heavy Plan Year
beginning after December 31, 1992, if the portion of the Plan which is not
a Code Section 401(k) or 401(m) plan would fail to satisfy Code Section
410(b) if the coverage tests were applied by treating those Participants
whose only allocation (under such portion of the Plan) would otherwise be
provided under the top heavy formula as if they were not currently
benefitting under the Plan, then, for purposes of this Section, such
Participants shall be treated as not benefitting and shall therefore be
eligible to be included in the expanded class of Participants who will
share in the allocation provided under the Plan's non top heavy formula.
3.05 ACTUAL DEFERRAL PERCENTAGE TESTS
(A) Maximum Annual Allocation: For Each Plan Year beginning after December
31, 1986, the annual allocation derived from Employer Elective Contributions for
a Participant's Elective Account shall satisfy one of the following tests:
(1) The "Actual Deferral Percentage" for the Highly Compensated
Participant group shall not be more than the "Actual Deferral Percentage"
of the Non-Highly Compensated Participant group multiplied by 1.25, or
(2) The excess of the "Actual Deferral Percentage" for the Highly
Compensated Participant group over the "Actual Deferral Percentage" for the
Non-Highly Compensated Participant group shall not be more than two
percentage
40.
points. Additionally, the "Actual Deferral Percentage" for the Highly
Compensated Participant group shall not exceed the "Actual Deferral
Percentage" for the Non-Highly Compensated Participant group multiplied by
2. The provisions of Code Section 401(k)(3) and Regulation 1.401(k)-1(b)
are incorporated herein by reference.
However, for Plan Years beginning after December 31, 1988, in order to
prevent the multiple use of the alternative method described in (2) above
and in Code Section 401(m)(9)(a), any Highly Compensated Participant
eligible to make elective deferrals pursuant to Section 3.02 and to make
Employee contributions or to receive matching contributions under this Plan
or under any other plan maintained by the Employer or a Related Employer
shall have his or her actual contribution ratio reduced pursuant to
Regulation 1.401(m)-2, the provisions of which are incorporated herein by
reference.
(B) For the purposes of this Section "Actual Deferral Percentage" means,
with respect to the Highly Compensated Participant group and Non-Highly
Compensated Participant group for a Plan Year, the average of the ratios,
calculated separately for each Participant in such group, of the amount of
Employer Elective Contributions allocated to each Participant's Elective Account
for such Plan Year, to such Participant's "414(s) Compensation" for such Plan
Year. The actual deferral ratio for each Participant and the "Actual Deferral
Percentage" for each group shall be calculated to the nearest one-hundredth of
one percent for Plan Years beginning after December 31, 1988. Employer Elective
Contributions allocated to each Non-Highly Compensated Participant's Elective
Account shall be reduced by Excess Deferred Compensation to the extent such
excess amounts are made under this Plan or any other plan maintained by the
Employer.
(C) For the purpose of determining the actual deferral ratio of a Highly
Compensated Employee who is subject to the Family Member aggregation rules of
Code Section 414(q)(6) because
41.
such Participant is either a "five percent owner" of the Employer or one of the
ten (10) Highly Compensated Employees paid the greatest "415 Compensation"
during the year, the following shall apply:
(1) The combined actual deferral ratio for the family group (which
shall be treated as one Highly Compensated Participant) shall be determined
by aggregating Employer Elective Contributions and "414(s) Compensation" of
all eligible Family Members (including Highly Compensated Participants).
However, in applying the $200,000 limit to "414(s) Compensation", for Plan
Years beginning after December 31, 1988, Family Members shall include only
the affected Employee's spouse and any lineal descendants who have not
attained age 19 before the close of the Plan Year. Notwithstanding the
foregoing, with respect to Plan Years beginning prior to January 1, 1990,
compliance with the Regulations then in effect shall be deemed to be
compliance with this paragraph.
(2) The Employer Elective Contributions and "414(s) Compensation" of
all Family Members shall be disregarded for purposes of determining the
"Actual Deferral Percentage" of the Non-Highly Compensated Participant
group except to the extent taken into account in paragraph (1) above.
(3) If a Participant is required to be aggregated as a member of more
than one family group in a plan, all Participants who are members of those
family groups that include the Participant are aggregated as one family
group in accordance with paragraphs (1) and (2) above.
(D) For the purposes of Sections 3.05(A) and 3.06 , a Highly Compensated
Participant and a Non-Highly Compensated Participant shall include any Employee
eligible to make a deferral election pursuant to Section 3.02, whether or not
such deferral election was made or suspended pursuant to Section 3.02.
(E) For the purposes of this Section and Code Sections 401(a)(4), 410(b)
and 401(k), if two or more plans which include cash or deferred arrangements are
considered one plan for the
42.
purposes of Code Section 401(a)(4) or 410(b) (other than Code Section
410(b)(2)(A)(ii) as in effect for Plan Years beginning after December 31, 1988),
the cash or deferred arrangements included in such plans shall be treated as one
arrangement. In addition, two or more cash or deferred arrangements may be
considered as a single arrangement for purposes of determining whether or not
such arrangements satisfy Code Sections 401(a)(4), 410(b) and 401(k). In such a
case, the cash or deferred arrangements included in such plans and the plans
including such arrangements shall be treated as one arrangement and as one plan
for purposes of this Section and Code Sections 401(a)(4), 410(b) and 401(k).
Plans may be aggregated under this paragraph (E) for Plan Years beginning after
December 31, 1989 only if they have the same plan year.
Notwithstanding the above, for Plan Years beginning after December 31,
1988, an employee stock ownership plan described in Code Section 4975(e)(7) or
409 may not be combined with this Plan for purposes of determining whether the
employee stock ownership plan or this Plan satisfies this Section and Code
Sections 401(a)(4), 410(b) and 401(k).
(F) For the purposes of this Section, if a Highly Compensated Participant
is a Participant under two or more cash or deferred arrangements (other than a
cash or deferred arrangement which is part of an employee stock ownership plan
as defined in Code Section 4975(e)(7) or 409 for Plan Years beginning after
December 31, 1988) of the Employer or a Related Employer, all such cash or
deferred arrangements shall be treated as one cash or deferred arrangement for
the purposes of determining the actual deferral ratio with respect to such
Highly Compensated Participant. However, for Plan Years beginning after December
31, 1988, if the cash or deferred arrangements have different plan years, this
paragraph shall be applied by treating all cash or deferred arrangements ending
with or within the same calendar year as a single arrangement.
43.
3.06 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS
In the event that the initial allocations of the Employer's Elective
Contributions made pursuant to Section 3.04 do not satisfy one of the tests set
forth in Section 3.05(A) for Plan Years beginning after December 31, 1986, the
Plan Administrator shall adjust Excess Contributions pursuant to the options set
forth below:
(A) On or before the fifteenth day of the third month following the
end of each Plan Year, the Highly Compensated Participant having the
highest actual deferral ratio shall have his or her portion of Excess
Contributions distributed until one of the tests set forth in Section
3.05(A) is satisfied, or until his or her actual deferral ratio equals the
actual deferral ratio of the Highly Compensated Participant having the
second highest actual deferral ratio. This process shall continue until one
of the tests set forth in Section 3.05(A) is satisfied. For each Highly
Compensated Participant, the amount of Excess Contributions is equal to the
Elective Contributions on behalf of such Highly Compensated Participant
(determined prior to the application of this paragraph) minus the amount
determined by multiplying the Highly Compensated Participant's actual
deferral ratio (determined after application of this paragraph) by his or
her "414(S) Compensation". However, in determining the amount of Excess
Contributions to be distributed with respect to an affected Highly
Compensated Participant as determined herein, such amount shall be reduced
by any Excess Deferred Compensation previously distributed to such affected
Highly Compensated Participant for his or her taxable year ending with or
within such Plan Year.
(1) With respect to the distribution of Excess Contributions
pursuant to (a) above, such distribution:
(i) may be postponed but not later than the close of the
Plan Year following the Plan Year to which they are allocable;
44.
(ii) shall be made simultaneously from Deferred
Compensation and matching contributions which relate to such
Deferred Compensation provided, however, that any such matching
contributions which are not Vested shall be forfeited in lieu of
distribution;
(iii) shall be adjusted for Income; and
(iv) shall be designated by the Employer as a distribution
of Excess Contributions (and Income).
(2) Any distribution of less than the entire amount of Excess
Contributions shall be treated as a pro rata distribution of Excess
Contributions and Income.
(3) The determination and correction of Excess Contributions of a
Highly Compensated Participant whose actual deferral ratio is
determined under the family aggregation rules shall be accomplished by
reducing the actual deferral ratio as required herein, and the Excess
Contributions of the family unit shall then be allocated among the
Family Members in proportion to the Elective Contributions of each
Family Member that were combined to determine the group actual
deferral ratio. Notwithstanding the foregoing, with respect to Plan
Years beginning prior to January 1, 1990, compliance with the
Regulations then in effect shall be deemed to be compliance with this
paragraph.
(B) Within twelve (12) months after the end of the Plan Year, the
Employer may make a special Qualified Non-Elective Contribution on behalf
of Non-Highly Compensated Participants in an amount sufficient to satisfy
one of the tests set forth in Section 3.05(A). Such contribution shall be
allocated to the Participant's Elective Account of each Non-Highly
Compensated Participant in the same proportion that each Non-Highly
Compensated Participant's Compensation
45.
for the year bears to the total Compensation of all Non-Highly Compensated
Participants.
(C) If during a Plan Year the projected aggregate amount of Elective
Contributions to be allocated to all Highly Compensated Participants under
this Plan would, by virtue of the tests set forth in Section 3.05(A), cause
the Plan to fail such tests, then the Plan Administrator may automatically
reduce proportionately or in the order provided in Section 3.06(A) each
affected Highly Compensated Participant's deferral election made pursuant
to Section 3.02 by an amount necessary to satisfy one of the tests set
forth in Section 3.06(A).
3.07 ACTUAL CONTRIBUTION PERCENTAGE TESTS
(A) The "Actual Contribution Percentage" for Plan Years beginning after
December 31, 1986 for the Highly Compensated Participant group shall not exceed
the greater of:
(1) 125 percent of such percentage of the Non-Highly Compensated
Participant group; or
(2) the lesser of 200 percent of such percentage for the Non-Highly
Compensated Participant group, or such percentage for the Non-Highly
Compensated Participant group plus 2 percentage points. However, for Plan
Years beginning after December 31, 1988, in order to prevent the multiple
use of the alternative method described in this paragraph and in Code
Section 401(m)(9)(a), any Highly Compensated Participant eligible to make
elective deferrals pursuant to Section 3.02 or any other cash or deferred
arrangement maintained by the Employer or a Related Employer and to make
Employee contributions or to receive matching contributions under this Plan
or under any other plan maintained by the Employer or a Related Employer
shall have his or her actual contribution ratio reduced pursuant to
Regulation 1.401(m)-2. The provisions of Code Section 401(m) and
Regulations 1.401(m)-1(b) and 1.401(m)-2 are incorporated herein by
reference.
46.
(B) For the purposes of this Section and Section 3.08 "Actual Contribution
Percentage" for a Plan Year means, with respect to the Highly Compensated
Participant group and Non-Highly Compensated Participant group, the average of
the ratios, calculated separately for each Participant in such group, of
(1) the sum of Employer matching contributions made pursuant to
Section 3.01(B) on behalf of each such Participant for such Plan Year;
to
(2) the Participant's "414(s) Compensation" for the such Plan
Year.
(C) For purposes of determining the "Actual Contribution Percentage" and
the amount of Excess Aggregate Contributions pursuant to Section 3.08(D), only
Employer matching contributions (excluding Employer matching contributions
distributed pursuant to Sections 3.02(F) and 3.06(A)) contributed to the Plan
prior to the end of the succeeding Plan Year shall be considered. In addition,
the Plan Administrator may elect to take into account, with respect to Employees
eligible to have Employer matching contributions pursuant to Section 3.01(B)
allocated to their accounts, elective deferrals (as defined in Regulation
1.402(g)-1(b) and qualified non-elective contributions (as defined in Code
Section 401(m)(C)) contributed to any plan maintained by the Employer. Such
elective deferrals and qualified non-elective contributions shall be treated as
Employer matching contributions subject to Regulation 1.401(m)-1(b)(5) which is
incorporated herein by reference. However, for Plan Years beginning after
December 31, 1988, the Plan Year must be the same as the plan year of the plan
to which the elective deferrals and the qualified non-elective contributions are
made.
(D) For the purpose of determining the actual contribution ratio of a
Highly Compensated Employee who is subject to the Family Member aggregation
rules of Code Section 414(q)(6) because such Participant is either a "five
percent owner" of the Employer or one of the ten (10) Highly Compensated
Employees paid the greatest "415 Compensation" during the year, the following
shall apply:
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(1) The combined actual contribution ratio for the family group (which
shall be treated as one Highly Compensated Participant) shall be determined
by aggregating Employer matching contributions made pursuant to Section
3.01(B) and "414(s) Compensation" of all eligible Family Members (including
Highly Compensated Participants). However, in applying the $200,000 limit
to "414(s) Compensation", for Plan Years beginning after December 31, 1988,
Family Members shall include only the affected Employee's spouse and any
lineal descendants who have not attained age 19 before the close of the
Plan Year. Notwithstanding the foregoing, with respect to Plan Years
beginning prior to January 1, 1990, compliance with the Regulations then in
effect shall be deemed to be compliance with this paragraph.
(2) The Employer matching contributions made pursuant to Section
3.01(B) and "414(s) Compensation" of all Family Members shall be
disregarded for purposes of determining the "Actual Contribution
Percentage" of the Non-Highly Compensated Participant group except to the
extent taken into account in paragraph (1) above.
(3) If a Participant is required to be aggregated as a member of more
than one family group in a plan, all Participants who are members of those
family groups that include the Participant are aggregated as one family
group in accordance with paragraphs (1) and (2) above.
(E) For the purposes of this Section and Code Sections 401(a)(4), 410(b)
and 401(m), if two or more plans of the Employer to which matching
contributions, Employee contributions, or both, are made are treated as one plan
for the purposes of Code Section 401(a)(4) or 410(b) (other than the average
benefits test under Code Section 410(b)(2)(A)(ii) as in effect for Plan Years
beginning after December 31, 1988), such plans shall be treated as one plan. In
addition, two or more plans of the Employer to which matching contributions,
Employee contributions, or both, are made may be considered as a single plan for
purposes
48.
of determining whether or not such plans satisfy Code Sections 401(a)(4), 410(b)
and 401(m). In such a case, the aggregated plans must satisfy this Section and
Code Sections 401(a)(4), 410(b) and 401(m) as though such aggregated plans were
a single plan. Plans may be aggregated under this paragraph (E) for Plan Years
beginning after December 31, 1989 only if they have the same plan year.
Notwithstanding the above, for Plan Years beginning after December 31,
1988, an employee stock ownership plan described in Code Section 4975(e)(7) or
409 may not be aggregated with this Plan for purposes of determining whether the
employee stock ownership plan or this Plan satisfies this Section and Code
Sections 401(a)(4), 410(b) and 401(m).
(F) If a Highly Compensated Participant is a Participant under two or more
plans (other than an employee stock ownership plan as defined in Code Section
4975(e)(7) or 409 for Plan Years beginning after December 31, 1988) which are
maintained by the Employer or a Related Employer to which matching
contributions, Employee contributions, or both, are made, all such contributions
on behalf of such Highly Compensated Participant shall be aggregated for the
purposes of determining the actual contribution ratio with respect to such
Highly Compensated Participant. However, for Plan Years beginning after
December 31, 1988, if the plans have different plan years, this paragraph shall
be applied by treating all cash or deferred arrangements ending with or within
the same calendar year as a single plan.
(G) For purposes of Sections 3.07(A) and 3.08, a Highly Compensated
Participant and Non-Highly Compensated Participant shall include any Employee
eligible to have Employer matching contributions pursuant to Section 3.01(B)
(whether or not a deferral election was made or suspended pursuant to Section
3.02(E)) allocated to his or her account for the Plan Year.
3.08 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS
(A) In the event that, for Plan Years beginning after December 31, 1986,
the "Actual Contribution Percentage" for the
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Highly Compensated Participant group exceeds the Actual Contribution Percentage
for the Non-Highly Compensated Participant group pursuant to Section 3.07(A),
the Plan Administrator (on or before the fifteenth day of the third month
following the end of the Plan Year, but in no event later than the close of the
following Plan Year) shall direct the Trustee to distribute to the Highly
Compensated Participant having the highest actual contribution ratio, his or her
portion of Excess Aggregate Contributions (and income allocable to such
contributions) until either one of the tests set forth in Section 3.07(A) is
satisfied, or until his or her actual contribution ratio equals the actual
contribution ratio of the Highly Compensated Participant having the second
highest actual contribution ratio. This process shall continue until one of the
tests set forth in Section 3.07(A) is satisfied.
(B) Any distribution of less than the entire amount of Excess Aggregate
Contributions (and income) shall be treated as a pro rata distribution of Excess
Aggregate Contributions and income. Distribution of Excess Aggregate
Contributions shall be designated by the Employer as a distribution of Excess
Aggregate Contributions (and Income).
(C) Excess Aggregate Contributions shall be treated as Employer
contributions for purposes of Code Sections 404 and 415 even if distributed from
the Plan.
(D) For each Highly Compensated Participant, the amount of Excess
Aggregate Contributions is equal to the Employer matching contributions made
pursuant to Section 3.01(B) and any qualified non-elective contributions or
elective deferrals taken into account pursuant to Section 3.07(C) on behalf of
such Highly Compensated Participant (determined prior to the application of this
paragraph) minus the amount determined by multiplying the Highly Compensated
Participant's actual contribution ratio (determined after application of this
paragraph) by his or her "414(s) Compensation". However, in determining the
amount of Excess Contributions to be distributed with respect to an affected
Highly Compensated Participant as determined herein,
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such amount shall be reduced by any Excess Deferred Compensation previously
distributed to such affected Highly Compensated Participant for his or her
taxable year ending with or within such Plan Year. The actual contribution ratio
must be rounded to the nearest one-hundredth of one percent for Plan Years
beginning after December 31, 1988. In no case shall the amount of Excess
Aggregate Contribution with respect to any Highly Compensated Participant exceed
the amount of Employer matching contributions made pursuant to Section 3,01(B)
and any qualified non-elective contributions or elective deferrals taken into
account pursuant to Section 3.07(C) on behalf of such Highly Compensated
Participant for such Plan Year.
(E) The determination of the amount of Excess Aggregate Contributions with
respect to any Plan Year shall be made after first determining the Excess
Contributions, if any, to be treated as voluntary Employee contributions due to
recharacterization for the plan year of any other qualified cash or deferred
arrangement (as defined in Code Section 401(k)) maintained by the Employer that
ends with or within the Plan Year.
(F) If the determination and correction of Excess Aggregate Contributions
of a Highly Compensated Participant whose actual contribution ratio is
determined under the family aggregation rules, then the actual contribution
ratio shall be reduced and the Excess Aggregate Contributions for the family
unit shall be allocated among the Family Members in proportion to the sum of
Employer matching contributions made pursuant to Section 3.01(B) and any
qualified non-elective contributions or elective deferrals taken into account
pursuant to Section 3.07(C) of each Family Member that were combined to
determine the group actual contribution ratio. Notwithstanding the foregoing,
with respect to Plan Years beginning prior to January 1, 1990, compliance with
the Regulations then in effect shall be deemed to be compliance with this
paragraph.
(G) If during a Plan Year the projected aggregate amount of Employer
matching contributions to be allocated to all Highly Compensated Participants
under this Plan would, by virtue of the
51.
tests set forth in Section 3.07(A), cause the Plan to fail such tests, then the
Plan Administrator may automatically reduce proportionately or in the order
provided in Section 3.08(A) each affected Highly Compensated Participant's
projected share of such contributions by an amount necessary to satisfy one of
the tests set forth in Section 3.07(A).
(H) Notwithstanding the above, within twelve (12) months after the end of
the Plan Year, the Employer may make a special Qualified Non-Elective
Contribution on behalf of Non-Highly Compensated Participants in an amount
sufficient to satisfy one of the tests set forth in Section 3.07(A). Such
contribution shall be allocated to the Participant's Elective Account of each
Non-Highly Compensated Participant in the same proportion that each Non-Highly
Compensated Participant's Compensation for the year bears to the total
Compensation of all Non-Highly Compensated Participants. A separate accounting
shall be maintained for the purpose of excluding such contributions from the
"Actual Deferral Percentage" tests pursuant to Section 3.05(A).
3.09 MAXIMUM ANNUAL ADDITION.
(A) The Annual Addition to a Participant's Account shall not exceed the
lesser of Thirty Thousand Dollars ($30,000.00) (or such greater amount as may be
determined by the Secretary of the Treasury) or twenty-five percent (25%) of the
Participant's Compensation (as defined in Code Section 415(c)(3) and such
regulations thereunder as may be promulgated) for that Plan Year.
(B) The term "Annual Addition" for any Limitation Year means the sum of:
(1) The Employer Contributions; and
(2) The Employee's allocable share of Forfeitures; and
(3) The Employee's contributions, for Limitation Years beginning
after December 31, 1986; and
(4) Amounts allocated after March 31, 1984, to an individual medical
account, as defined in Code Section
52.
415(1)(1), which is part of a pension or annuity plan maintained by the
Employer; and
(5) Amounts derived from contributions paid or accrued after December
31, 1985, in taxable years ending after such date which are attributable to
post-retirement medical benefits allocated to the separate account of a Key
Employee (as defined in Code Section 419A(d)(3)) under a welfare benefit
plan (as defined in Code Section 419(e)) maintained by the Employer.
(C) For purposes of applying the limitations of Code Section 415, the
following are not Annual Additions: (1) transfer of funds from one qualified
plan to another; (2) rollover contributions (as defined in Code Sections
402(a)(5), 403(a)(4), 408(d)(3) and 408(b)(3)(C)); (3) repayments of loans made
to a Participant from the Plan; (4) repayments of distributions received by an
Employee pursuant to Code Section 411(a)(7)(B) (cash-outs); (5) repayments of
distributions received by an Employee pursuant to Code Section 411(a)(3)(D)
(mandatory contributions); and (6) deductible Employee contributions to a
qualified Plan.
(D) For purposes of applying the limitations of Code Section 415, "415
Compensation" shall include the Participant's wages, salaries, fees for
professional service and other amounts for personal services actually rendered
in the course of employment with an Employer maintaining the Plan (including,
but not limited to, commissions paid salesmen, compensation for services on the
basis of a percentage of profits, commissions on insurance premiums, tips and
bonuses and in the case of a Participant who is an Employee within the meaning
of Code Section 401(c)(1) and the regulations thereunder, the Participant's
earned income (as described in Code Section 401(c)(2) and the regulations
thereunder) paid during the Limitation Year. "415 Compensation" shall exclude:
(1)(A) contributions made by the Employer to a plan of deferred compensation to
the extent that, before the application of the Code Section 415 limitations to
the Plan, the contributions are not includable in the gross income of
53.
the Employee for the taxable year in which contributed, (B) Employer
contributions made on behalf of an Employee to a simplified employee pension
plan described in Code Section 408(k) to the extent such contributions are
deductible by the Employee under Code Section 219(a), (C) any distributions from
a plan of deferred compensation regardless of whether such amounts are
includable in the gross income of the Employee when distributed except any
amounts received by an Employee pursuant to an unfunded non-qualified plan to
the extent such amounts are includable in the gross income of the Employee; (2)
amounts realized from the exercise of a non-qualified 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; (3)
amounts realized from the sale, exchange or other disposition of stock acquired
under a qualified stock option; and (4) 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), or
contributions made by the Employer (whether or not under a salary reduction
agreement) towards the purchase of any annuity contract described in Code
Section 403(b) (whether or not the contributions are excludable from the gross
income of the Employee).
(E) For purposes of applying the limitations of Code Section 415, the
Limitation Year shall be the Plan Year.
(F) The dollar limitation under Code Section 415(b)(1)(A) stated in
paragraph (a)(1) above shall be adjusted annually as provided in Code Section
415(d) pursuant to regulations. The adjusted limitation is effective as of
January 1st of each calendar year and is applicable to Limitation Years ending
with or within that calendar year.
(G) For the purpose of this Section, all qualified defined benefit pension
plans (whether terminated or not) ever maintained by the Employer shall be
treated as one defined benefit plan, and all qualified defined contribution
plans (whether terminated or
54.
not) ever maintained by the Employer shall be treated as one defined
contribution plan.
(H) For the purpose of this Section, if the Employer is a member of a
controlled group of corporations, trades or businesses under common control (as
defined by Code Section 1563(a) or Code Section 414(b) and (c) as modified by
Code Section 414(h) or is a member of an affiliated service group (as defined by
Code Section 414(m)), all Employees of such Employers shall be considered to be
employed by a single Employer.
(I) For the purpose of this Section, if this Plan is a Code Section 413(c)
plan, all Employers of a Participant who maintain this Plan will be considered
to be a single Employer.
3.10 MULTIPLE PLAN REDUCTION. Subject to the exception in Section
3.10(E) below, if an Employee is (or has been) a Participant in one or more
defined benefit plans and one or more defined contribution plans maintained by
the Employer, the sum of the defined benefit plan fraction and the defined
contribution plan fraction for any limitation year may not exceed 1.0.
(A) Defined Benefit Plan Fraction:
-----------------------------
(1) The defined benefit plan fraction for any Limitation Year is a
fraction (a) the numerator of which is the "projected annual benefit" of
the Participant under the Plan (determined as of the close of the
Limitation Year), and (b) the denominator of which is the greater of (i)
the product of 1.25 multiplied by the "protected current accrued benefit"
or (ii) the lesser of (a) the product of 1.25 multiplied by the maximum
dollar limitation provided under Code Section 415(b)(1)(A) for such
limitation year, or (b) the product of 1.4 multiplied by the amount which
may be taken into account under Code Section 415(b)(1)(B) for such
Limitation Year.
(2) For purposes of applying the limitations of Code Section 415, the
"projected annual benefit" for any Participant is the benefit, payable
annually, under
55.
the terms of the Plan determined pursuant to Regulation Section 1.415-
7(b)(3).
(3) For purposes of applying the limitations of Code Section 415,
"protected current accrued benefit" for any Participant in a defined
benefit plan in existence on July 1, 1982 shall be the accrued benefit,
payable annually, provided for under question T-3 of Internal Revenue
Service Notice 83-10.
(B) Defined Contribution Plan Fraction:
----------------------------------
(1) The defined contribution plan fraction for any Limitation Year is
a fraction (a) the numerator of which is the sum of the Annual Additions to
the Participant's account as of the close of the Limitation Year and (b)
the denominator of which is the sum of the lesser of the following amounts
determined for such year and each prior year of service with the Employer:
(i) the product of 1.25 multiplied by the dollar limitation in effect under
Code Section 415(c)(1)(A) for such Limitation Year (determined without
regard to Code Section 415(c)(6)), or (ii) the product of 1.4 multiplied by
the amount which may be taken into account under Code Section 415(c)(1)(B)
for such Limitation Year.
(2) Notwithstanding the foregoing, the numerator of the defined
contribution plan fraction shall be adjusted pursuant to Regulation 1.415-
7(d)(1) and questions T-6 and T-7 of Internal Revenue Service Notice 83-10.
(3) For defined contribution plans in effect on or before July 1,
1982, the Plan Administrator may elect, for any Limitation Year ending
after December 31, 1982, that the amount taken into account in the
denominator for every Participant for all limitation years ending before
January 1, 1983 shall be an amount equal to the product of (a) the
denominator for the Limitation Year ending in 1982 determined under the law
56.
in effect for the Limitation Year ending in 1982 multiplied by (b) the
transition fraction.
(4) For purposes of the preceding paragraph, the term "transition
fraction" shall mean a fraction (a) the numerator of which is the lesser of
(i) Fifty-One Thousand Eight Hundred Seventy-Five and No/100 Dollars
($51,875.00), or (ii) 1.4 multiplied by twenty-five percent (25%) of the
Participant's Compensation for the Limitation Year ending in 1981, and (b)
the denominator of which is the lesser of (i) Forty-One Thousand Five
Hundred and No/100 Dollars ($41,500.00) or (ii) twenty-five percent (25%)
of the Participant's Compensation for the Limitation Year ending in 1981.
(5) Notwithstanding the foregoing, for any Limitation Year in which
the Plan is a Top Heavy Plan, Forty-One Thousand Five Hundred and No/100
Dollars ($41,500.00) shall be substituted for Fifty-One Thousand Eight
Hundred Seventy-Five and No/100 Dollars ($51,875.00) in determining the
transition fraction unless the extra minimum allocation is being provided
pursuant to Section 3.04. However, for any Limitation Year in which this
Plan is a Super Top Heavy Plan, Forty-One Thousand Five Hundred and No/100
Dollars ($41,500.00) shall be substituted for Fifty-One Thousand Eight
Hundred Seventy-Five and No/100 Dollars ($51,875.00) in any event.
(6) If the Employer maintained this Plan and a defined benefit plan on
May 6, 1986 and if both plans satisfied the requirements of Code Section
415 for the last limitation year beginning before January 1, 1987, the
numerator of the defined contribution fraction shall be reduced by an
amount equal to the product of:
(a) the sum of the defined contribution fraction plus the defined
benefit fraction as of the "determination date" minus one (1), times
57.
(b) the denominator of the defined contribution fraction as of
the "determination date".
The "determination date" is the day immediately preceding the first
limitation year beginning after 1986. The fractions in (a) and (b) above
shall be computed in accordance with Code Section 415 as amended by the Tax
Reform Act of 1986 and Section 1106(i)(3) of the Tax Reform Act of 1986.
The adjustment will be made only after any accruals in excess of the Tax
Reform Act of 1986 Section 415 limits are reduced as described in Q&A-13 of
IRS Notice 87-21. The adjustment to the defined contribution fraction will
be made after the elimination of any such excess accruals, or, if not
eliminated, ignoring any such excess accruals. Changes in the terms and
conditions of the plan made after May 5, 1986 shall not be recognized in
making the defined contribution fraction adjustment.
(C) TOP HEAVY AND SUPER TOP HEAVY ADJUSTMENT OF FRACTION. Notwithstanding
the foregoing, for any Limitation Year in which the Plan is a Top Heavy Plan,
1.0 shall be substituted for 1.25 in paragraphs (A)(1) and (B)(1) unless the
extra minimum allocation is being provided pursuant to Section 3.04. However,
for any Limitation Year in which the Plan is a Super Top Heavy Plan, 1.0 shall
be substituted for 1.25 in any event.
(D) EXCESS BENEFITS. If the sum of the defined benefit plan fraction and
the defined contribution plan fraction shall exceed 1.0 in any Limitation Year
for any Participant in this Plan for reasons other than described in (E) below,
the Plan Administrator shall limit, to the extent necessary, the Annual
Additions to such Participant's accounts for the Limitation Year. If, after
limiting the Annual Additions to such Participant's accounts for the Limitation
Year, the sum of the defined benefit plan fraction and the defined contribution
plan fraction still exceeds 1.0, the Plan Administrator shall then adjust the
numerator of the defined benefit plan fraction so that the sum of
58.
both fractions shall not exceed 1.0 in any Limitation Year for such Participant.
(E) EXCESS BENEFITS DUE TO TRANSITION FRACTION. If (1) the substitution of
1.0 for 1.25 and Forty-One Thousand Five Hundred Dollars ($41,500.00) for Fifty-
One Thousand Eight Hundred Seventy-Five Dollars ($51,875.00) above or (2) the
excess benefit accruals or Annual Additions provided for in Internal Revenue
Service Notice 82-19 cause the 1.0 limitation to be exceeded for any Participant
in any Limitation Year, such Participant shall be subject to the following
restrictions for each future Limitation Year until the 1.0 limitation is
satisfied: (1) the Participant's accrued benefit under the defined benefit plan
shall not increase, (2) no Annual Additions may be credited to a Participant's
accounts, and (3) no Employee contributions (voluntary or mandatory) shall be
made under any defined benefit plan or any defined contribution plan of the
Employer.
3.11 ADJUSTMENT FOR EXCESS ANNUAL ADDITIONS.
(A) If as a result of the allocation of Forfeitures, a reasonable error in
estimating a Participant's Compensation or other facts and circumstances to
which Regulation Section 1.415-6(b)(6) shall be applicable, the Annual Additions
under this Plan would cause the maximum Annual Addition to be exceeded for any
Participant, the Plan Administrator shall (1) return any Elective Contributions
credited for the Limitation Year to the extent that the return would reduce the
excess amount in the Participant's accounts, (2) hold any excess amount
remaining after the return of any Elective Contributions in a "Section 415
suspense account", (3) allocate and reallocate the "Section 415 suspense
account" in the next Limitation Year (and succeeding Limitation Years if
necessary) to all Participants in the Plan before any Employer or Employee
contributions which would constitute Annual Additions are made to the Plan for
such Limitation Year, and (4) reduce Employer Contributions to the Plan for
such Limitation Year by the amount of the "Section 415
59.
suspense account" allocated and reallocated during such Limitation Year.
(B) For purposes of this Article, "excess amount" for any Participant for a
Limitation Year shall mean the excess, if any, of (1) the Annual Additions which
would be credited to the Participant's account under the terms of the Plan
without regard to the limitations of Code Section 415 over (2) the maximum
Annual Additions determined pursuant to Section 3.09.
(C) For purposes of this Section, "Section 415 suspense account" shall mean
an unallocated account equal to the sum of excess amounts for all Participants
in the Plan during the Limitation Year. The "Section 415 suspense account"
shall not share in any earnings or losses of the Trust Fund.
(D) The Plan may not distribute "excess amounts" to Participants or former
Participants.
3.12 TERMINATION OF EMPLOYMENT. Upon termination of employment for any
reason other than death, disability, or normal retirement, and subject to the
provisions of Articles V and VI, a Participant's Accrued Benefits, if any, shall
be maintained in the Participant's Employer Contribution Account and shall
continue to receive income allocations pursuant to this Article III until
distributed pursuant to Articles V and VI. In the event of termination of
employment, the Participant shall not share in the Employer Contribution or for
the year in which termination occurred unless otherwise provided in Section
3.04.
3.13 RESTORATION OF ACCOUNT. If an Employee who has received a
distribution of all or a portion of the vested benefit is subsequently
reemployed, such Employee may at any time following reemployment but before the
earlier of (a) five (5) years after the date of reemployment or (b) the date
such Employee incurs five (5) consecutive One-Year Breaks in Service following
the date of distribution, repay the full amount of the distribution attributable
to Employer Contributions.
60.
3.14 VALUATION OF THE TRUST FUND. The Trustee as of the last day of each
Plan Year shall determine the net worth of the assets of the Trust Fund at the
fair market value of the assets as of the Valuation Date and report such value
to the Plan Administrator in writing. Such valuation shall not include any
contribution made by the Employer as of such Valuation Date.
3.15 VALUATION OF PARTICIPANT'S ACCOUNT. In making a valuation for the
purposes of computing the then value of a Participant's account upon termination
of employment or any termination described under Articles V or VI hereof,
valuation shall be made as of the last day of the Plan Year preceding the year
in which any such termination occurs, or at such other time as the Plan
Administrator shall determine in a uniform and nondiscriminatory basis. The
foregoing notwithstanding, in the event that a terminated Participant does not
receive a distribution of the Accrued Benefit during the Plan Year in which the
termination occurs, such Participant shall be entitled to a share of earnings or
losses on his or her account balance until the Accrued Benefit is actually
distributed.
3.16 ALLOCATION. The Trustee shall allocate respectively to each
Participant's Employer Contribution Account all items of income, investment
gains and losses, expenses, and similar credits or deductions attributable to
the investment elections made by each Participant.
3.17 DIRECTED INVESTMENT ACCOUNT.
(A) Participants may direct the Trustee as to the investment of all or a
portion of the vested interest in any one or more of their individual account
balances, including their voluntary contributions account, if any, and their
rollover account, if any. Participants may, subject to a procedure established
by the Plan Administrator and applied in a uniform nondiscriminatory manner,
direct the Trustees in writing to invest of their accounts in specific assets so
long as such
61.
investment is not otherwise prohibited by the terms of the Plan. To the extent
so directed, the Trustees are relieved of their fiduciary responsibilities as
provided in Section 404 of ERISA.
(B) A separate Directed Investment Account shall be established for each
Participant who has directed an investment. Transfers between the Participant's
Account and the Directed Investment Account shall be charged and credited as the
case may be to each account. The Directed Investment Account shall not share in
trust fund earnings, but shall be charged or credited as appropriate with the
net earnings, gains, losses and expenses as well as appreciation or depreciation
in market value during each Plan Year attributable to such account. Such
amounts shall not be considered in determining trust fund gains or losses.
(C) The Plan Administrator, Trustee or any other person shall be under no
duty to review any securities or other property selected as a Directed
Investment or to make any suggestion to a Participant concerning a Directed
Investment.
(D) Notwithstanding the foregoing, the Trustee shall not at any time after
December 31, 1981, invest any portion of a Directed Investment Account in
"Collectibles" within the meaning of that term as used in Code Section 408(m).
ARTICLE IV.
VESTING
4.01 VESTING. A Participant shall be fully vested in his or her Accrued
Benefit, and such Accrued Benefit shall not be subject to forfeiture.
62.
ARTICLE V.
DISTRIBUTIONS OF BENEFITS ACCRUED ON AND AFTER JANUARY 1, 1995
5.01 RETIREMENT. Every Participant may, upon reasonable notice to the
Employer, retire for the purposes of this Plan on his or her Normal Retirement
Date. If a Participant continues in the employment of the Employer after his or
her Normal Retirement Date, such Participant shall continue to be treated in all
respects as a Participant until actual retirement. Upon such actual
retirement, participation hereunder shall cease. The Employer, in accordance
with the provisions of Section 5.07 shall direct the Trustee to distribute such
Participant's Accrued Benefit to the Participant. The distribution of a
Participant's Accrued Benefit upon early retirement, normal retirement or actual
retirement after normal retirement shall, subject to Section 5.07, commence not
later than one hundred twenty (120) days after the last day of the Plan Year in
which such retirement occurs.
A Participant who continues in the employment of the Employer after his or
her Normal Retirement Date may, at the election of the Participant, take a
distribution of all or part of his or her account balance notwithstanding that
such Participant has not separated from service.
5.02 DISTRIBUTION UPON DEATH.
(A) Death Before Retirement or Termination of Service. Upon the death of a
-------------------------------------------------
Participant before retirement or other termination of employment, the Plan
Administrator shall direct the Trustee to distribute such Participant's Accrued
Benefit to any surviving beneficiary designated by the Participant, subject to
the restrictions of Section 5.04. The manner of payment shall be governed by
Section 5.07 and said distribution shall commence not later than one hundred
twenty (120) days after the end of the Plan Year in which proof of death is
received.
63.
(B) Death After Termination of Service. Upon the death of a former
----------------------------------
Participant in the Plan, the Plan Administrator shall direct the Trustee to
distribute any part of such former Participant's Accrued Benefit that has not
been distributed to the former Participant at the time of his or her death to
any surviving beneficiary designated by such former Participant, subject to the
restrictions of Section 5.04. The manner of payment shall be governed by
Section 5.07 and shall commence not later than one hundred twenty (120) days
after the end of the Plan Year in which proof of death is received. As used
herein, "former Participant" means any person who has ceased to be a Participant
hereunder because of termination of employment for any reason other than death.
(C) Required Distributions Upon Death.
---------------------------------
(1) If the distribution of a Participant's interest has begun in
accordance with a method selected in Section 5.07 and the Participant dies
before his or her entire interest has been distributed to such Participant,
the remaining portion of such interest shall be distributed at least as
rapidly as under the method of distribution selected pursuant to Section
5.07 as of the date of death.
(2) If a Participant dies before beginning to receive any
distributions of his or her interest under the Plan, the entire interest
shall be distributed to his or her beneficiaries within five (5) years
after the death of the Participant.
(3) The five (5) year distribution requirement of Section 5.02(C)(2)
shall not apply to any portion of the deceased Participant's interest which
is payable to or for the benefit of a designated beneficiary. In such
event, such portion may be distributed over the life of such designated
beneficiary (or over a period not extending beyond the life expectancy of
such designated beneficiary) provided such distribution begins not later
than one (1) year after the date of the Participant's death (or such later
date as may be prescribed by Treasury regulations).
64.
Except, however, in the event that the Participant's spouse is the
designated beneficiary, the requirement that distributions commence within
one (1) year of a Participant's death shall not apply. In lieu thereof,
such distribution must commence no later than the date on which the
deceased Participant would have attained age seventy and one-half (70 1/2).
If the surviving spouse dies before the distributions to such spouse begin,
then the five (5) year distribution requirement of Section 5.02(C)(2) shall
apply as if the spouse were a Participant.
(4) For the purposes of this Section, the life expectancy of a
Participant and a Participant's spouse (other than in the case of a life
annuity) may, at the election of the Participant or the Participant's
spouse, be redetermined in accordance with regulations. The election, once
made, shall be irrevocable. If no election is made by the time
distributions must commence, then the life expectancy of the Participant
and the Participant's spouse shall not be subject to recalculation. Life
expectancy and joint and last survivor expectancy shall be computed using
the return multiples in Tables V and VI of Regulation Section 1.72-9.
(5) The restrictions imposed by this Section shall not apply if a
Participant has, prior to January 1, 1984, made a written designation to
have his or her death benefits paid in an alternative method acceptable
under Code Section 401(a) as in effect prior to the enactment of the Tax
Equity and Fiscal Responsibility Act of 1982. Any such written
designation made by a Participant shall be binding upon the Plan
Administrator notwithstanding the provisions of this Section.
5.03 PROOF OF DEATH. The Plan Administrator may require such proper
proof of death and evidence of the right of any person to receive payment of the
Accrued Benefits of the deceased Participant or former Participant as the Plan
Administrator may
65.
deem desirable. The Plan Administrator's determination of death and of the right
of any person to receive payment shall, subject to the claim provisions
contained in Sections 9.01 and 9.02, be conclusive.
5.04 DESIGNATION OF BENEFICIARY.
(A) Beneficiary if Participant is Married. Effective for Plan Years
-------------------------------------
beginning after December 31, 1984, unless otherwise elected in the manner
prescribed in this Section, the beneficiary of any death benefit payable on the
death of a married Participant shall be the Participant's spouse, unless the
spouse has validly waived his or her right to be the Participant's beneficiary
and has consented to a specific alternate beneficiary. The waiver and consent
by a spouse of his or her right to be the death benefit beneficiary shall be in
writing, shall acknowledge the effect of such election and shall be witnessed by
a Plan representative or a notary public. Such waiver and consent shall not be
required if it is established to the satisfaction of the Plan Administrator that
the required waiver cannot be obtained because there is no spouse, the spouse
cannot be located, or other circumstances that may be prescribed by Treasury
regulations. The waiver made by the Participant and the spouse may be revoked
by the Participant in writing without the consent of the spouse at any time.
Any new waiver must comply with the requirements of this paragraph. A
former spouse's waiver shall not be binding on a new spouse.
If a benefit is paid to the surviving spouse of a deceased Participant and
any part of such benefit is unpaid upon the death of the deceased Participant's
surviving spouse, such remaining benefit shall be paid to such person or trust
as is appointed by the deceased Participant's spouse, including his or her
estate.
In the event no valid designation of beneficiary exists at the time of the
Participant's death, the death benefit shall be payable to the Participant's
spouse, if any; if there is no spouse, or if the spouse cannot be located, the
death benefit shall be payable to the Participant's estate.
66.
(B) Beneficiary if Participant is not Married. If a Participant has no
-----------------------------------------
spouse, or the spouse cannot be located, or if the beneficiary designated is for
a period before the Plan Year beginning after December 31, 1984, then the
Participant may designate any person, trust, or entity as a beneficiary. Such
designation shall be made on a form satisfactory to the Plan Administrator. A
Participant may at any time revoke his or her designation of a beneficiary or
change the beneficiary by filing written notice of such revocation or change
with the Plan Administrator. If no valid designation of beneficiary exists at
the time of the Participant's death, the death benefit shall be payable to the
Participant's estate.
5.05 DISTRIBUTION IN THE EVENT OF DISABILITY. The Plan Administrator
shall direct the Trustee to distribute to a Participant his or her
nonforfeitable Accrued Benefits in the event the Participant becomes disabled.
The time and manner of payment shall be governed by Section 5.07. The payments
shall commence not later than one hundred twenty (120) days after the end of the
Plan Year in which the determination of Total and Permanent Disability is made.
"Total and Permanent Disability" means a physical or mental condition of a
Participant resulting from bodily injury, disease, or mental disorder which
renders such Participant incapable of continuing in the employment of the
Employer. The determination of Total and Permanent Disability of any
Participant shall be determined by the Employer in accordance with uniform
principles consistently applied upon the basis of such evidence as the Employer
deems necessary and desirable and such determination shall be communicated to
the Plan Administrator.
5.06 DISTRIBUTION IN THE EVENT OF TERMINATION OF EMPLOYMENT. A
Participant who terminates employment prior to the Normal Retirement Date (other
than as a result of death or disability) shall receive payment of his or her
nonforfeitable interest in the Plan at the time and in the manner specified in
67.
Section 5.07. However, if the adoption of this Plan amends an existing Plan,
nothing in this Agreement shall cause the Plan to retroactively reduce or
eliminate optional forms of benefits or any other Section 411(d)(6) protected
benefits, except as permitted pursuant to Treasury regulations.
5.07 TIME AND MANNER OF PAYMENT.
(A) The distribution of the nonforfeitable portion of a Participant's
Accrued Benefits shall not be deferred, unless the Participant elects in writing
to the Plan Administrator to defer receipt (though such an election may not
result in a death benefit that is more than incidental), beyond the sixtieth
(60th) day after the close of the Plan Year in which the latest of the following
events occur:
(1) The Participant attains Normal Retirement Age.
(2) The tenth (10th) anniversary of the year in which the Participant
commences participation in the Plan.
(3) The Participant terminates service with the Employer.
Notwithstanding any provision of this Plan to the contrary, distribution of
a Participant's benefits shall commence not later than April 1 of the calendar
year following the calendar year in which he or she attains age seventy and one-
half (70 1/2), except that for Participants who attained age seventy and one-
half (70 1/2) before January 1, 1988, distributions shall commence as follows:
(1) For Participants who are not five percent (5%) owners, not later
than April 1 of the calendar year following the later of (i) the calendar
year in which he or she attains age seventy and one-half (70 1/2), or (ii)
the calendar year in which the Participant retires.
(2) For Participants who are five percent (5%) owners, not later than
April 1 following the calendar
68.
year in which the Participant attains age seventy and one-half (70 1/2),
whether or not such Participant has terminated employment with the
Employer.
If distributions are made other than in a lump sum, distributions to a
Participant must begin no later than the April 1 following such calendar year
and must be made over the life of the Participant (or the lives of the
Participant and the Participant's designated beneficiary) or the life expectancy
of the Participant (or the life expectancies of the Participant and his or her
designated beneficiary). Such distributions shall be made in accordance with
the proposed regulations under Code Section 401(a)(9), including the minimum
distribution incidental benefit requirements of Section 1.401(a)(9)-2 of the
proposed regulations, unless and until such regulations are withdrawn or
superseded by subsequent regulations.
For the purposes of this Section, the life expectancy of a Participant and
a Participant's spouse (other than in the case of a life annuity) may, at the
election of the Participant or the Participant's spouse, be redetermined in
accordance with regulations. The election, once made, shall be irrevocable. If
no election is made by the time distributions must commence, then the life
expectancy of the Participant and the Participant's spouse shall not be subject
to recalculation. Life expectancy and joint and last survivor expectancy shall
be computed using the return multiples in Tables V and VI of Regulation Section
1.72-9.
In the event that the payment of benefits is not deferred as provided
herein, payment of benefits shall commence in accordance with Section 5.07, with
the manner of distribution to be in accordance with Section 5.07(B).
(B) The distribution shall be made in one or more of the following methods,
at the election of the Participant:
(1) A single lump sum payment.
69.
(2) There shall be no life annuity offered and any mode of
distribution selected will be such that the present value of the payments
to be made to the Participant is more than fifty percent (50%) of the
present value of the total payments to be made to the Participant and his
or her beneficiaries.
If the value of benefits payable under the Plan on the date benefits
commence is Three Thousand Five Hundred and No/100 Dollars ($3,500.00) or less
and has never exceeded Three Thousand Five Hundred and No/100 Dollars
($3,500.00), the Trustee shall distribute such amount in a single sum payment
without the consent of the Participant. If the value of benefits payable under
the Plan exceeds or has ever exceeded Three Thousand Five Hundred and No/100
Dollars ($3,500.00), a distribution may not be made without the Participant's
written consent. If the value of a Participant's vested account balance is zero
(0), the Participant shall be deemed to have received a distribution of such
vested account balance. A Participant's vested account balance shall not
include accumulated deductible employee contributions within the meaning of Code
Section 72(o)(5)(B) for Plan Years beginning prior to January 1, 1989.
(C) Distributions shall, subject to the limitations of this Section,
commence as soon as administratively feasible following the Participant's
separation from service. Notwithstanding the foregoing, distributions to
Participants who may be eligible for an additional allocation for the Plan Year
in which termination occurs shall not commence before such allocation is made.
(D) The amount of a Participant's distribution shall be determined as of
the Valuation Date immediately preceding the date of distribution.
70.
(E) Nothing in this Agreement shall cause the Plan to retroactively reduce
or eliminate optional forms of benefits or other Section 411(d)(6) protected
benefits, except as permitted pursuant to Treasury regulations.
(F) Upon termination of employment by a Participant for any reason
whatsoever and subject to the provisions of Section 5.07, if payment of the
vested portion of a Participant's benefits is made in other than a lump sum, the
Trustee, upon receipt of notice from the Plan Administrator of the Employee's
termination of employment, the reason for such termination, and the date the
Participant incurred a Break in Service (if applicable), may segregate the
aggregate vested amount of such Participant's account in a special account
invested separately from the general trust assets. Such segregated account
shall not share in any Employer Contribution except as may be authorized in
Section 3.04, and shall be charged or credited as appropriate with net earnings,
gains, losses and expenses as well as appreciation or depreciation in market
value during each Plan Year attributable to such account. The Trustee shall
have the same powers of investment and reinvestment with respect to a segregated
account as the Trustee has for all other assets of the trust. The Plan
Administrator shall notify the Trustee of each Participant's termination of
employment with the Employer not later than sixty (60) days after such
termination occurs.
Any person entitled to receive payments hereunder shall keep the Plan
Administrator advised of his or her address. If any payment is returned
unclaimed, the Plan Administrator shall send a registered letter to the last
address shown by its records of the individual entitled to payment stating such
individual's rights to such payment. If benefits are not claimed within one
(1) year of the date of such letter, the Trustee may deposit such amount in a
federally insured savings account in any financial institution located in the
Trustee's local metropolitan area, in trust for the individual, and upon such
deposit, the Trustee, Plan Administrator and Employer shall have no further
liability or responsibility for such funds.
71.
5.08 TRANSITIONAL RULE. The restrictions imposed by this Section shall
not apply if a Participant has, prior to January 1, 1984, made a written
designation to have his or her retirement benefit paid in an alternative method
acceptable under Code Section 401(a) as in effect prior to the enactment of the
Tax Equity and Fiscal Responsibility Act of 1982. Any such written designation
made by a Participant shall be binding upon the Plan Administrator
notwithstanding any contrary provision of this Article VI.
5.09 LIMITATION ON DISTRIBUTION DUE TO QUALIFIED DOMESTIC RELATIONS
ORDER. All rights and benefits, including elections, provided to a Participant
in this Plan shall be subject to the rights afforded to any "alternate payee"
under a "qualified domestic relations order" as those terms are defined in Code
Section 414(p).
A distribution made to an alternate payee pursuant to a qualified domestic
relations order may be made without regard to the age or employment status of
the Participant to whose benefits the order applies.
5.10 WITHDRAWAL FOR SERIOUS FINANCIAL HARDSHIP. A Participant, upon
written application to the Plan Administrator, may request an emergency
distribution from his or her Participant's Combined Account due to the
occurrence of events which will inflict serious financial hardship on a
Participant. Such serious financial hardship must be shown by positive evidence
submitted to the Plan Administrator and must be of sufficient magnitude to
impair the Participant's financial security. The distribution shall not be less
than One Thousand and No/100 Dollars ($1,000.00) and shall not exceed the
Participant's interest in his or her Participant's Combined Account. The
distribution shall not exceed the amount of the immediate and heavy financial
need of the Participant (including amounts necessary to pay any federal, state
or local income taxes or any withholding or penalties reasonably anticipated to
result
72.
from the distribution). Prior to becoming eligible for a hardship distribution,
the Participant must have obtained all distributions for which he or she is
eligible other than hardship distributions, and all non-taxable loans currently
available under this or any other plan maintained by the Employer. Withdrawals
shall be determined in a consistent and nondiscriminatory manner, and shall not
affect the Participant's right under the Plan to make additional withdrawals or
continue to be an active Participant. Notwithstanding the foregoing, any
Participant who is granted a hardship distribution shall have his or her right
to make savings and employee contributions suspended, beginning with the payroll
period following receipt of the hardship distribution and ending on the first
Election Date twelve (12) or more months thereafter, under this Plan and all
other qualified and nonqualified plans of deferred compensation maintained by
the Employer. Further, during the calendar year following the hardship
distribution, the savings contributions of such a Participant shall be limited
to the excess of the applicable limit under Code Section 402(g) for that
calendar year over the amount of the Participant's savings contributions for the
calendar year of the hardship distribution. Withdrawals made pursuant to this
Section may not be repaid.
For purposes of this Section, hardship shall include financial need due to:
(1) Expenses for medical care described in Code Section 213(d)
previously incurred by the Employee, the Employee's spouse, or any
dependents of the Employee (as defined in Code Section 152) or necessary
for these persons to obtain medical care described in Code Section 213(d);
(2) Costs directly related to the purchase of a principal residence
for the Employee (excluding mortgage payments);
(3) Payment of tuition and related educational expenses for the next
twelve (12) months of post-secondary education for the Employee or the
Employee's
73.
spouse, children or other dependents (as defined in Code Section 152);
(4) Payments necessary to prevent the eviction of the Employee from
his or her principal residence or foreclosure on the mortgage on such
residence;
(5) Costs of any other financial need previously announced by the
Commissioner as constituting a deemed immediate and heavy financial need.
ARTICLE VI.
DISTRIBUTIONS OF BENEFITS ACCRUED PRIOR TO JANUARY 1, 1995
6.01 RETIREMENT. Every Participant may, upon reasonable notice to the
Employer, retire for the purposes of this Plan on his or her Normal Retirement
Date. If a Participant continues in the employment of the Employer after his or
her Normal Retirement Date, such Participant shall continue to be treated in all
respects as a Participant until actual retirement. Upon such actual
retirement, participation hereunder shall cease. The Employer, in accordance
with the provisions of Section 6.07 shall direct the Trustee to distribute such
Participant's Accrued Benefit to the Participant. The distribution of a
Participant's accrued benefit upon early retirement, normal retirement or actual
retirement after normal retirement shall, subject to Section 6.07, commence not
later than one hundred twenty (120) days after the last day of the Plan Year in
which such retirement occurs.
A Participant who continues in the employment of the Employer after his or
her Normal Retirement Date may, at the election of the Participant, take a
distribution of all or part of his or her account balance notwithstanding that
such Participant has not separated from service.
74.
6.02 DETERMINATION OF BENEFITS UPON DEATH.
(A) Upon the death of a Participant before retirement or other termination
of employment, and within one hundred twenty (120) days after the end of the
Plan Year in which proof of death is received, the Plan Administrator shall
direct the Trustee, in accordance with the provisions of Section 6.03, to
distribute the value of the deceased Participant's account to the Participant's
beneficiary.
(B) Unless otherwise elected in the manner prescribed in Section 6.03, the
beneficiary of the death benefit shall be the Participant's spouse, who shall
receive such benefit in the form of a preretirement survivor annuity pursuant to
Section 6.03. Except, however, the Participant may designate a beneficiary other
than the spouse if:
(1) The Participant and spouse have validly waived the preretirement
survivor annuity in the manner prescribed in Section 6.03, and the spouse
has waived his or her right to be the Participant's beneficiary;
(2) The Participant has no spouse; or
(3) The spouse cannot be located.
In such event, the designation of a beneficiary shall be made on a form
satisfactory to the Plan Administrator. A Participant may at any time revoke
his or her designation of a beneficiary or change the beneficiary by filing
written notice of such revocation or change with the Plan Administrator.
However, the Participant's spouse must again consent in writing to any change or
revocation which results in the naming of a nonspouse beneficiary. In the event
no valid designation of beneficiary exists at the time of the Participant's
death, the death benefit shall be payable to the Participant's spouse, if any;
if there is no spouse, or if the spouse cannot be located, the death benefit
shall be payable to the Participant's estate. In the event no valid designation
of beneficiary exists at the time of the Participant's death, the death benefit
shall be payable to the Participant's spouse, if any; if there is no spouse, or
if the
75.
spouse cannot be located, the death benefit shall be payable to the
Participant's estate.
6.03 DISTRIBUTION OF BENEFITS UPON DEATH.
(A) Unless otherwise elected as provided below, a Participant who dies
before the annuity starting date and who has a surviving spouse shall have the
death benefit paid to his or her surviving spouse in the form of a preretirement
survivor annuity. The surviving spouse may direct that payment commence within
a reasonable time after the Participant's death. If the surviving spouse does
not so direct, payment of such benefits must commence by the date the
Participant would have attained Normal Retirement Age under the Plan, unless the
surviving spouse elects a later date.
(B) Any election to waive the preretirement survivor annuity before the
Participant's death must be made by the Participant in writing during the
election period and shall require the spouse's irrevocable consent in the same
manner provided for in Section 6.07(B)(2). Further, the spouse's consent must
acknowledge the specific nonspouse beneficiary.
(C) The election period to waive the preretirement survivor annuity shall
begin on the first day of the Plan Year in which the Participant attains age
thirty-five (35) and end on the date of the Participant's death. In the event a
vested Participant separates from service prior to the beginning of the election
period, the election period shall begin on the date of such separation from
service.
(D) With regard to the election, the Plan Administrator shall provide each
Participant within the period beginning with the first day of the Plan Year in
which the Participant attains age thirty-two (32) and ending with the close of
the Plan Year preceding the Plan Year in which the Participant attains age
thirty-five (35), a written explanation of the preretirement survivor annuity
containing comparable information to that required pursuant to Section
6.07(B)(5). If the Participant enters the Plan or if the qualified survivor
annuity requirements
76.
first apply to the Participant after the first day of the Plan Year in which the
Participant has attained age thirty-four (34), the Plan Administrator shall
provide notice during the one-year period following the entry of the Participant
into the Plan or the date the qualified preretirement survivor annuity
requirements first apply to the Participant. In the case of a Participant's
separation from service before age thirty-five (35), such explanation shall be
provided within one (1) year after separation.
(E) The preretirement survivor annuity provided for in this Section shall
apply only to Participants who are credited with an Hour of Service on or after
August 23, 1984. Former Participants who are not credited with an Hour of
Service on or after August 23, 1984 shall be provided with rights to the
preretirement survivor annuity in accordance with Section 303(e)(2) of the
Retirement Equity Act of 1984.
(F) If the value of the preretirement survivor annuity has never exceeded
Three Thousand Five Hundred and No/100 Dollars ($3,500.00), the Plan
Administrator shall direct the immediate distribution of such amount to the
Participant's spouse. No distribution may be made under the preceding sentence
after the annuity starting date unless the spouse consents in writing. If the
value exceeds, or has ever exceeded, Three Thousand Five Hundred and No/100
Dollars ($3,500.00), an immediate distribution of the entire amount may be made
to the surviving spouse, provided such spouse consents in writing to such
distribution.
(G)(1) In the event the death benefit is not paid in the form of a
preretirement survivor annuity, it shall be paid to the Participant's designated
beneficiary by either of the following methods, as elected by the beneficiary.
(i) One lump-sum payment; or
(ii) Payment in monthly, quarterly, semi-annual, or annual cash
installments over a period not to exceed the life expectancy of the
designated beneficiary, and in installments as nearly equal as practicable.
77.
(2) In the event the death benefit payable pursuant to Section 6.02 is
payable in installments, then, upon the death of the Participant, the Trustee
shall continue to invest the Participant's account as directed by the
Participant under Section 3.17, until further investment directions are provided
by the beneficiary.
(H) If the distribution of a Participant's interest has begun in accordance
with a method selected in Section 6.07(C) and the Participant dies before his or
her entire interest has been distributed, the remaining portion of such interest
shall be distributed at least as rapidly as under the method of distribution
selected pursuant to Section 6.07(C) as of the date of death.
(I) If a Participant dies before beginning to receive any distributions of
his or her interest under the Plan, the entire interest shall be distributed to
his or her beneficiaries within five (5) years after the death of the
Participant.
(J) The five (5) year distribution requirement of Section 6.03(I) shall not
apply to any portion of the deceased Participant's interest which is payable to
or for the benefit of a designated beneficiary. In such event, such portion may
be distributed over the life of such designated beneficiary (or over a period
not extending beyond the life expectancy of such designated beneficiary)
provided such distribution begins not later than one (1) year after the date of
the Participant's death (or such later date as may be prescribed by Treasury
regulations).
Except, however, in the event the Participant's spouse is the beneficiary,
the requirement that distributions commence within one (1) year of a
Participant's death shall not apply. In lieu thereof, such distribution must
commence no later than the date on which the deceased Participant would have
attained age seventy and one-half (70 1/2). If the surviving spouse dies before
the distributions to such spouse begin, then the five (5) year distribution
requirement of Section 6.03(I) shall apply as if the spouse were the
Participant.
78.
(K) For the purposes of this Section, the life expectancy of a Participant
and a Participant's spouse (other than in the case of a life annuity) may, at
the election of the Participant or the Participant's spouse, be redetermined in
accordance with regulations. The election, once made, shall be irrevocable. If
no election is made by the time distributions must commence, then the life
expectancy of the Participant and the Participant's spouse shall not be subject
to recalculation. Life expectancy and joint and last survivor expectancy shall
be computed using the return multiples in Tables V and VI of Regulation Section
1.72-9.
(L) The restrictions imposed by this Section shall not apply if a
Participant has, prior to January 1, 1984, made a written designation to have
his or her death benefits paid in an alternative method acceptable under Code
Section 401(a) as in effect prior to the enactment of the Tax Equity and Fiscal
Responsibility Act of 1982. Any such written designation made by a Participant
shall be binding upon the Plan Administrator notwithstanding the provisions of
this Section, subject to the consent of the Participant's spouse in the same
manner as provided in Section 6.07(B)(2).
(M) If a benefit is paid to the surviving spouse of a deceased Participant
and any part of such benefit is unpaid upon the death of the deceased
Participant's surviving spouse, such remaining benefit shall be paid to such
person or trust as is appointed by the deceased Participant's spouse, including
his or her estate.
6.04 PROOF OF DEATH. The Plan Administrator may require such proper
proof of death and such evidence of the right of any person to receive payment
of the value of the account of a deceased Participant or former Participant as
the Plan Administrator may deem desirable. The Plan Administrator's
determination of death and of the right of any person to receive payment shall
be conclusive, subject to the claim procedure of Sections 9.01 and 9.02.
79.
6.05 DETERMINATION OF BENEFITS IN THE EVENT OF DISABILITY. The Plan
Administrator shall direct the Trustee to distribute to a Participant his or her
entire accrued benefits in the event the Participant becomes disabled. The time
and manner of payment shall be governed by Section 6.07. The payments shall
commence not later than one hundred twenty (120) days after the end of the Plan
Year in which the determination of Total and Permanent Disability is made,
unless a later distribution is elected by the Participant. "Total and Permanent
Disability" means a physical or mental condition of a Participant resulting from
bodily injury, disease, or mental disorder which renders him incapable of
continuing in the employment of the Employer. The determination of Total and
Permanent Disability of any Participant shall be determined by the Employer in
accordance with uniform principles consistently applied upon the basis of such
evidence as the Employer deems necessary and desirable and such determination
shall be communicated to the Plan Administrator.
6.06 DETERMINATION OF BENEFITS UPON TERMINATION.
Upon the Participant's termination of employment, the Trustee shall
continue to invest the amounts in the Participant's accounts pursuant to
Sections 8.04 or 3.17, as applicable, until distribution in accordance with
Section 6.07.
6.07 TIME AND MANNER OF PAYMENT.
(A) The distribution of the nonforfeitable portion of a Participant's
accrued benefits shall not be deferred, unless the Participant elects in writing
to the Plan Administrator to defer receipt (though such an election may not
result in a death benefit that is more than incidental), beyond the sixtieth
(60th) day after the close of the Plan Year in which the latest of the following
events occur:
(1) The Participant attains Normal Retirement Age.
80.
(2) The tenth (10th) anniversary of the year in which the Participant
commences participation in the Plan.
(3) The Participant terminates service with the Employer.
Notwithstanding any provision of this Plan to the contrary, distribution of
a Participant's benefits shall commence not later than April 1 of the calendar
year following the calendar year in which he or she attains age seventy and one-
half (70 1/2), except that for Participants who attained age seventy and one-
half (70 1/2) before January 1, 1988, distributions shall commence as follows:
(1) For Participants who are not five percent (5%) owners, not later
than April 1 of the calendar year following the later of (i) the calendar
year in which he or she attains age seventy and one-half (70 1/2), or (ii)
the calendar year in which the Participant retires.
(2) For Participants who are five percent (5%) owners, not later than
April 1 following the calendar year in which the Participant attains age
seventy and one-half (70 1/2), whether or not such Participant has
terminated employment with the Employer.
If distributions are made other than in a lump sum, distributions to a
Participant must begin no later than the April 1 following such calendar year
and must be made over the life of the Participant (or the lives of the
Participant and the Participant's designated beneficiary) or the life expectancy
of the Participant (or the life expectancies of the Participant and his or her
designated beneficiary). Such distributions shall be made in accordance with
the proposed regulations under Code Section 401(a)(9), including the minimum
distribution incidental benefit requirements of Section 1.401(a)(9)-2 of the
proposed regulations, unless and until such regulations are withdrawn or
superseded by subsequent regulations.
81.
For the purposes of this Section, the life expectancy of a Participant and
a Participant's spouse (other than in the case of a life annuity) may, at the
election of the Participant or the Participant's spouse, be redetermined in
accordance with regulations. The election, once made, shall be irrevocable. If
no election is made by the time distributions must commence, then the life
expectancy of the Participant and the Participant's spouse shall not be subject
to recalculation. Life expectancy and joint and last survivor expectancy shall
be computed using the return multiples in Tables V and VI of Regulation Section
1.72-9.
In the event that the payment of benefits is not deferred as provided
herein, payment of benefits shall commence in accordance with Section 6.07, with
the time and manner of distribution to be in accordance with Section 6.07(C).
(B)(1) Unless otherwise elected as provided below, a Participant who is
married on and does not die before the "annuity starting date" shall receive the
value of his or her benefits in the form of a joint and survivor annuity. The
joint and survivor annuity shall be equal in value to a single life annuity.
Such joint and survivor benefits following the Participant's death shall
continue to the spouse during the spouse's lifetime at a rate equal to fifty
percent (50%) of the rate at which such benefits were payable to the
Participant. The Participant may elect to receive a smaller annuity benefit
with continuation of payments to the spouse at a rate of seventy-five percent
(75%) or one hundred percent (100%) of the rate payable to a Participant during
his or her lifetime. An unmarried Participant shall receive the value of his or
her benefit in the form of a life annuity. Such unmarried Participant, however,
may elect in writing to waive the life annuity. The election must comply with
the provisions of this Section as if it were an election to waive the joint and
survivor annuity by a married Participant, but without the spousal consent
requirement. The joint and survivor annuity and the life annuity form of
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distribution shall be the actuarial equivalent of the benefits due the
Participant.
(2) Any election to waive the joint and survivor annuity must be made by
the Participant in writing during the election period and the Participant's
spouse must consent to such waiver, to the specific optional form of benefit,
and to the specific alternate beneficiary, if any. Such spouse's consent shall
be irrevocable and must acknowledge the effect of such election and be witnessed
by a Plan representative or a notary public. Such consent shall not be required
if it is established to the satisfaction of the Plan Administrator that the
required consent cannot be obtained because there is no spouse, the spouse
cannot be located, or other circumstances that may be prescribed by Treasury
regulations. The election made by the Participant and consented to by the
spouse may be revoked by the Participant in writing without the consent of the
spouse at any time during the election period. The number of revocations shall
not be limited. Any new election must comply with the requirements of this
paragraph. A former spouse's waiver shall not be binding on a new spouse.
(3) The election period to waive the joint and survivor annuity shall be
the ninety (90) day period ending on the "annuity starting date".
(4) For purposes of this Section, the "annuity starting date" means the
first day of the first period for which an amount is payable as an annuity
(whether by reason of retirement or disability), or, in the case of a benefit
not payable in the form of an annuity, the first day on which all events have
occurred which entitle the Participant to benefits.
(5) With regard to the election, the Plan Administrator shall provide the
Participant within a reasonable period of time before the "annuity starting
date" (and consistent with Treasury regulations), a written explanation of:
(a) The terms and conditions of the joint and survivor annuity;
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(b) The Participant's right to make an election to waive the joint and
survivor annuity;
(c) The right of the Participant's spouse to consent to any election
to waive the joint and survivor annuity; and
(d) The right of the Participant to revoke such election, and the
effect of such revocation.
(C) In the event a married Participant duly elects pursuant to paragraph
(B)(2) above not to receive the retirement benefit in the form of a joint and
survivor annuity or, if such Participant is not married, in the form of a life
annuity, the Plan Administrator, at the election of the Participant and with the
consent of the Participant's spouse, if any, shall direct the Trustee to
distribute to a Participant any amount to which the Participant is entitled
under the Plan in one or more of the following methods:
(1) A single lump sum payment; or
(2) Payments in monthly, quarterly, semi-annual, or annual
installments or other payments continuing over a period of time not to
exceed the Participant's life expectancy (or the joint life expectancies of
the Participant and his or her designated Beneficiary).
(D) Distributions shall commence, subject to the limitations provided in
this Section, as soon as administratively feasible following the Participant's
separation from service.
(E) A Participant's vested benefit derived from Employer and Employee
Contributions may not be paid without the Participant's written consent if the
value exceeds, or has ever exceeded, Three Thousand Five Hundred and No/100
Dollars ($3,500.00). Further, the spouse of a Participant must consent in
writing to any such distribution. Written consent of the Participant and the
Participant's spouse to the distribution must be obtained not more than ninety
(90) days before commencement of the distribution. If the value of the
Participant's vested benefit derived from Employer and Employee contributions is
Three Thousand Five Hundred and No/100 dollars ($3,500.00) or less, and
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has never exceeded Three Thousand Five Hundred and No/100 Dollars ($3,500.00),
the Plan Administrator shall distribute such benefit without such Participant's
consent. No distribution may be made under the preceding sentence after the
annuity starting date unless the Participant and the Participant's spouse
consent in writing to such distribution. If the value of an Employee's vested
account balance is zero (0), the Employee shall be deemed to have received a
distribution of such vested account balance. A Participant's vested account
balance shall not include accumulated deductible employee contributions within
the meaning of Section 72(o)(5)(B) of the Code for Plan Years beginning prior to
January 1, 1989.
(F) The amount of a Participant's distribution shall be determined as of
the Valuation Date immediately preceding the date of distribution.
(G) Nothing in this Agreement shall cause the Plan to retroactively reduce
or eliminate optional forms of benefits or other Section 411(d)(6) protected
benefits, except as permitted pursuant to Treasury regulations.
(H) Upon termination of employment by a Participant for any reason
whatsoever and subject to the provisions of Section 6.07, if payment of the
vested portion of a Participant's benefits is made in other than a lump sum, the
Trustee, upon receipt of notice from the Plan Administrator of the Employee's
termination of employment, the reason for such termination, and the date the
Participant incurred a Break in Service (if applicable), may segregate the
aggregate vested amount of such Participant's account in a special account
invested separately from the general trust assets. Such segregated account
shall not share in any Employer Contribution except as may be authorized in
Section 3.04, and shall be charged or credited as appropriate with net earnings,
gains, losses and expenses, as well as appreciation or depreciation in market
value during each Plan Year attributable to such account. The Trustee shall
have the same powers of investment and reinvestment with respect to a segregated
account as the Trustee has for all other assets of the trust. The Plan
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Administrator shall notify the Trustee of each Participant's termination of
employment with the Employer not later than sixty (60) days after such
termination occurs.
(I) Any person entitled to receive payments hereunder shall keep the Plan
Administrator advised of his or her address. If any payment is returned
unclaimed, the Plan Administrator shall send a registered letter to the last
address shown by its records of the individual entitled to payment stating such
individual's rights to such payment. If benefits are not claimed within one
(1) year of the date of such letter, the Trustee may deposit such amount in a
federally insured savings account in any financial institution located in the
Trustee's local metropolitan area, in trust for the individual, and upon such
deposit, the Trustee, Plan Administrator and Employer shall have no further
liability or responsibility for such funds.
(J) If a Participant's retirement benefit shall be distributed to the
Participant and the Participant's beneficiaries over a period in excess of the
Participant's then life expectancy, the then present value of the payments to be
made over the period of the Participant's then life expectancy must be more than
fifty percent (50%) of the then present value of the total payments to be made
to the Participant and the beneficiaries.
Except, however, this paragraph shall not apply to a distribution in the
form of a joint and survivor annuity.
6.08 TRANSITIONAL RULE. The restrictions imposed by this Section shall
not apply if a Participant has, prior to January 1, 1984, made a written
designation to have his or her retirement benefit paid in an alternative method
acceptable under Code Section 401(a) as in effect prior to the enactment of the
Tax Equity and Fiscal Responsibility Act of 1982. Any such written designation
made by a Participant shall be binding upon the Plan Administrator
notwithstanding any contrary provision of this Article VI, subject to the
consent of the Participant's spouse in the same manner as provided in Section
6.07(B)(2).
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6.09 LIMITATION ON DISTRIBUTION DUE TO QUALIFIED DOMESTIC RELATIONS
ORDER. All rights and benefits, including elections, provided to a Participant
in this Plan shall be subject to the rights afforded to any "alternate payee"
under a "qualified domestic relations order" as those terms are defined in Code
Section 414(p).
A distribution made to an alternate payee pursuant to a qualified domestic
relations order may be made without regard to the age or employment status of
the Participant to whose benefits the order applies.
6.10 WITHDRAWAL FOR SERIOUS FINANCIAL HARDSHIP. A Participant, upon
written application to the Plan Administrator, may request an emergency
distribution from his or her Participant's Combined Account due to the
occurrence of events which will inflict serious financial hardship on a
Participant. Such serious financial hardship must be shown by positive evidence
submitted to the Plan Administrator and must be of sufficient magnitude to
impair the Participant's financial security. The distribution shall not be less
than One Thousand and No/100 Dollars ($1,000.00) and shall not exceed the
Participant's interest in his or her Participant's Combined Account. The
distribution shall not exceed the amount of the immediate and heavy financial
need of the Participant (including amounts necessary to pay any federal state or
local income taxes or any withholding or penalties reasonably anticipated to
result from the distribution). Prior to becoming eligible for a hardship
distribution, the Participant must have obtained all distributions for which he
or she is eligible other than hardship distributions, and all non-taxable loans
currently available under this or any other plan maintained by the Employer.
Withdrawals shall be determined in a consistent and nondiscriminatory manner,
and shall not affect the Participant's right under the Plan to make additional
withdrawals or continue to be an active Participant. Notwithstanding the
foregoing, any Participant who is granted a hardship distribution shall have
87.
his or her right to make savings and employee contributions suspended, beginning
with the payroll period following receipt of the hardship distribution and
ending on the first Election Date twelve (12) or more months thereafter, under
this Plan and all other qualified and nonqualified plans of deferred
compensation maintained by the Employer. Further, during the calendar year
following the hardship distribution, the savings contributions of such a
Participant shall be limited to the excess of the applicable limit under Code
Section 402(g) for that calendar year over the amount of the Participant's
savings contributions for the calendar year of the hardship distribution.
Withdrawals made pursuant to this Section may not be repaid.
For purposes of this Section, hardship shall include financial need due to:
(1) Expenses for medical care described in Code Section 213(d)
previously incurred by the Employee, the Employee's spouse, or any
dependents of the Employee (as defined in Code Section 152) or necessary
for these persons to obtain medical care described in Code Section 213(d);
(2) Costs directly related to the purchase of a principal residence
for the Employee (excluding mortgage payments);
(3) Payment of tuition and related educational expenses for the next
twelve (12) months of post-secondary education for the Employee or the
Employee's spouse, children or other dependents (as defined in Code Section
152);
(4) Payments necessary to prevent the eviction of the Employee from
his or her principal residence or foreclosure on the mortgage on such
residence;
(5) Costs of any other financial need previously announced by the
Commissioner as constituting a deemed immediate and heavy financial need.
88.
ARTICLE VII.
TOP HEAVY PROVISIONS
7.01 TOP HEAVY PLAN REQUIREMENTS. For any Top Heavy Plan Year, the Plan
shall provide special minimum allocations required under Code Section 416(c)
pursuant to Section 3.04 of the Plan. In addition, for any Top Heavy Plan Year
beginning prior to January 1, 1989, Compensation in excess of Two Hundred
Thousand Dollars ($200,000.00) shall not be taken into account.
7.02 DETERMINATION OF TOP HEAVY STATUS.
(A) This Plan shall be a Top Heavy Plan for any Plan Year commencing after
December 31, 1983, if, as of the Determination Date, (1) the present value of
Accrued Benefits of Key Employees, and (2) the sum of the Aggregate Accounts of
Key Employees under this plan and all plans of an Aggregation Group, exceeds
sixty percent (60%) of the present value of Accrued Benefits and the Aggregate
Accounts of all Participants under this Plan and all plans of an Aggregation
Group.
If any Participant is a Non-Key Employee for any Plan Year, but such
Participant was a Key Employee for any prior Plan Year, such Participant's
present value of Accrued Benefit and/or Aggregate Account balance shall not be
taken into account for purposes of determining whether this Plan is a Top Heavy
Plan (or whether any Aggregation Group which includes this Plan is a Top Heavy
Group). In addition, for Plan Years beginning after December 31, 1984, if a
Participant or former Participant has not performed services for any Employer
maintaining the Plan (other than benefits under the Plan) at any time during the
five (5) year period ending on the Determination Date, the Aggregate Account
and/or present value of Accrued Benefit for such Participant or former
Participant shall not be taken into account for the purposes of determining
whether this Plan is a Top Heavy Plan.
89.
(B) This Plan shall be a Super Top Heavy Plan for any Plan Year commencing
after December 31, 1983, if, as of the Determination Date, (1) the present value
of Accrued Benefits of Key Employees, and (2) the sum of the Aggregate Accounts
of Key Employees under this Plan and all plans of an Aggregation Group, exceeds
ninety percent (90%) of the present value of Accrued Benefits or the Aggregate
Accounts of all Participants under this Plan and all plans of an Aggregation
Group.
(C) Aggregate Account: A Participant's Aggregate Account as of the
Determination Date is the sum of:
(1) The Participant's account balance as of the most recent valuation
occurring within a twelve (12) month period ending on the Determination
Date.
(2) An adjustment for any contributions due as of the Determination
Date. Such adjustment shall be the amount of any contributions actually
made after the Valuation Date but before the Determination Date, except for
the first Plan Year when such adjustment shall also reflect the amount of
any contributions made after the Determination Date that are allocated as
of a date in that first Plan Year.
(3) Any Plan distributions made within the Plan Year that includes the
Determination Date or within the four (4) preceding Plan Years. However,
in the case of distributions made after the Valuation Date and prior to the
Determination Date, such distributions are not included as distributions
for top heavy purposes to the extent that such distributions are already
included in the Participant's Aggregate Account balance as of the Valuation
Date. Notwithstanding anything herein to the contrary, all distributions,
including distributions made prior to January 1, 1984, and distributions
under a terminated plan which, if it had not been terminated would have
been required to be included in an Aggregation Group, will be counted.
Further, distributions from the Plan (including the
90.
cash value of life insurance policies) of a Participant's account balance
because of death shall be treated as a distribution for purposes of this
paragraph.
(4) Any voluntary Employee contributions. However, amounts
attributable to tax deductible qualified deductible employee contributions
shall not be considered to be a part of the Participant's Aggregate Account
balance.
(5) With respect to unrelated rollovers and plan-to-plan transfers
(ones which are both initiated by the Employee and made from a plan
maintained by one employer to a plan maintained by another employer), if
this Plan provides for rollovers or plan-to-plan transfers it shall always
consider such rollover or plan-to-plan transfer as a distribution for the
purposes of this Section. If this Plan is the plan accepting such
rollovers or plan-to-plan transfers, it shall not consider such rollovers
or plan-to-plan transfers accepted after December 31, 1983 as part of the
Participant's Aggregate Account balance. However, rollovers or plan-to-
plan transfers accepted prior to January 1, 1984 shall be considered as
part of the Participant's Aggregate Account balance.
(6) With respect to related rollovers and plan-to-plan transfers (ones
either not initiated by the Employee or made to a plan maintained by the
same employer), if this Plan provides the rollover or plan-to-plan
transfer, it shall not be counted as a distribution for purposes of this
Section. If this Plan is the plan accepting such rollover or plan-to-plan
transfer, it shall consider such rollover or plan-to-plan transfer as part
of the Participant's Aggregate Account balance, irrespective of the date on
which such rollover or plan-to-plan transfer is accepted.
91.
(7) For the purposes of determining whether two employers are to be
treated as the same employer in paragraphs (5) and (6) above, all employers
aggregated under Code Sections 414(b), (c) or (m) are treated as the same
employer.
(D) "Aggregation Group" means either a Required Aggregation Group or a
Permissive Aggregation Group as hereinafter determined.
(1) Required Aggregation Group: In determining a Required Aggregation
Group hereunder, each plan of the Employer in which a Key Employee is a
Participant in the Plan Year containing the Determination Date or any of
the four preceding Plan Years, and each other plan of the Employer which
enables any plan in which a Key Employee participates to meet the
requirements of Code Sections 401(a)(4) or 410, will be required to be
aggregated. Such group shall be known as a Required Aggregation Group.
In the case of a Required Aggregation Group, each plan in the group
will be considered a Top Heavy Plan if the Required Aggregation Group is a
Top Heavy Group. No plan in the Required Aggregation Group will be
considered a Top Heavy Plan if the Required Aggregation Group is not a Top
Heavy Group.
(2) Permissive Aggregation Group: The Employer may also include any
other plan not required to be included in the Required Aggregation Group,
provided the resulting group, taken as a whole, would continue to satisfy
the provisions of Code Sections 401(a)(4) or 410. Such group shall be
known as a Permissive Aggregation Group.
In the case of a Permissive Aggregation Group, only a plan that is
part of the Required Aggregation Group will be considered a Top Heavy Plan
if the Permissive Aggregation Group is a Top Heavy Group. No plan in the
Permissive Aggregation Group will be
92.
considered a Top Heavy Plan if the Permissive Aggregation Group is not a
Top Heavy Group.
(3) Only those plans of the Employer in which the Determination Dates
fall within the same calendar year shall be aggregated in order to
determine whether such plans are Top Heavy Plans.
(4) An Aggregation Group shall include any terminated plan of the
Employer if it was maintained within the last five (5) years ending on the
Determination Date.
(E) "Determination Date" means (a) the last day of the preceding Plan Year,
or (b) in the case of the first Plan Year, the last day of such Plan Year.
(F) Present Value of Accrued Benefit: In the case of a defined benefit
plan, a Participant's present value of Accrued Benefit shall be as determined
under the provisions of the applicable defined benefit plan.
(G) "Top Heavy Group" means an Aggregation Group in which, as of the
Determination Date, the sum of:
(1) The present value of Accrued Benefits of Key Employees under all
defined benefit plans included in the group, and
(2) The Aggregate Accounts of Key Employees under all defined
contribution plans included in the group, exceeds sixty percent (60%) of a
similar sum determined for all Participants.
(H) "Top Heavy Plan Year" means that, for a particular Plan Year commencing
after December 31, 1983, the Plan is a Top Heavy Plan.
93.
ARTICLE VIII.
TRUST FUND AND TRUSTEE
8.01 ESTABLISHMENT AND ACCEPTANCE OF TRUST. The Employer hereby
establishes with the Trustee a trust which will comprise the payments heretofore
transferred by the Employer to the Trustee, together with such other payments as
shall from time to time be made to the Trustee by or on behalf of the Employer.
Such prior payments and such subsequent payments and accruals thereto from time
to time held by the Trustee are herein called the Trust Fund. The Trustee
hereby accepts the trust created hereunder and agrees to perform the Trustee's
duties under this Agreement. The Trust Fund shall be held by the Trustee in
trust hereunder and shall be invested and applied by the Trustee as hereunder
provided.
8.02 RESPONSIBILITIES. The responsibilities for the administration of
this Trust shall be allocated between the Trustee and the Plan Administrator as
they from time to time mutually agree, except that the Trustee shall retain all
responsibility and authority to manage, control, and invest assets of the Trust.
The Trustee and Plan Administrator may allocate their divided responsibilities
of administration and management to such other agents as they may from time to
time designate by filing a written statement appointing such person or persons
with the Trustee.
8.03 APPOINTMENT. A written designation appointing an individual or
individuals as provided by Section 8.02 above shall contain the name of the
person or persons appointed, a description of the responsibilities appointed to
them, and their signed acceptance of such responsibilities.
8.04 POWERS OF TRUSTEE. Except as limited herein, the Trustee shall have
the following powers and authority in the
94.
administration of the Trust Fund, all of which powers shall be exercised with
care, skill, prudence, and diligence under the circumstances then prevailing
that a prudent person would use and for the exclusive benefit of the Plan's
Participants and beneficiaries:
(1) To purchase any securities or other property of any nature, be it
realty or personalty, tangible or intangible, and to retain the same in
trust.
(2) To sell, exchange, convey, transfer, or otherwise dispose of, and
also to grant options with respect to, any securities or other property
held by the Trustee by private contract or at public auction. Any sale may
be made for cash or upon credit, or partly in cash and partly on credit.
No person dealing with the Trustee shall be bound to see to the
applications of the purchase money or to inquire into the validity or
propriety of any such sale or other disposition.
(3) To vote upon any stocks, bonds, or other securities; to give
general or special proxies or powers of attorney with or without power of
substitution; to exercise any conversion privileges, subscription rights,
or other options and to make any payments incidental thereto; to oppose, or
to consent to, or otherwise participate in, corporate reorganizations or
other changes affecting corporate securities, and to delegate discretionary
powers, and to pay any assessments or charges in connection therewith; and
generally to exercise any of the powers of an owner with respect to stocks,
bonds, securities, or other property held as part of the Trust Fund.
(4) To cause any securities or other property held as part of the
Trust Fund to be registered in the Trustee's name or in the name of a
nominee without designating the same as trust property, and to hold any
investments in bearer form; however, the books and records of the Trustee
shall at all times show that all
95.
such investments are part of the Trust Fund. Any such registration or
holding by the Trustee shall not relieve the Trustee from responsibility
for the sale, custody, and disposition of the Trust Fund in accordance with
the terms and provisions of this Agreement.
(5) To borrow or raise money for the purposes of the trust in such
amount, and upon such terms and conditions, as the Trustee shall deem
advisable; and, for any sum so borrowed to issue its promissory note as
Trustee, and to secure the repayment thereof by pledging all, or any part,
of the Trust Fund; and no person lending money to the Trustee shall be
bound to see to the application of the money lent or to inquire into the
validity or propriety of any such borrowing.
(6) To keep, from time to time, such portion of the Trust Fund in cash
or cash balances as the Trustee may deem to be in the best interests of the
Trust created hereby, without liability for interest thereon. Cash received
or held by the Trustee under any of the provisions hereof may be deposited
by the Trustee in a commercial bank, under such provisions with respect to
interest as may be permitted by law, and such Trustee shall have the right
to utilize the investment division of a commercial bank to purchase
obligations of the U.S. Government or its agencies, commercial paper,
certificates of deposit, or similar instruments. In the event a Trustee
hereunder is a bank, division, department, or subsidiary thereof, such
Trustee may deposit trust funds with and utilize the banking facilities and
ancillary services of itself or its related bank entity.
(7) To accept and retain for such time as the Trustee deems advisable
any securities or other property received or acquired by the Trustee
hereunder,
96.
whether or not such securities or other property would normally be
purchased as investments hereunder.
(8) To make, execute, acknowledge, and deliver any and all documents
or transfer and conveyance including but not limited to deeds, leases,
mortgages, conveyances, contracts, waivers, and releases and any and all
other instruments that may be necessary or appropriate to carry out the
powers herein granted.
(9) To settle, compromise, or submit to arbitration any claims, debts,
or damages owing to or from the Trust Fund, to commence or defend suits or
legal or administrative proceedings, and to represent the Trust Fund in all
suits and legal and administrative proceedings. To renew or extend or
participate in the renewal or extension of any mortgage or other loans,
upon such terms as may be deemed advisable, and to agree to a reduction in
the rate of interest on any mortgage or loan or to any other modification
or change in the terms of any mortgage or loan, or of any guarantee
pertaining thereto, in any manner and to any extent that may be deemed
advisable for the protection of the Trust Fund or the preservation of the
value of the investment; to waive any default whether in the performance of
any guarantee or to enforce any such default in such manner and to such
extent as may be deemed advisable; to exercise and enforce any and all
rights of foreclosures, to bid on property in foreclosure, to take deeds in
lieu of foreclosure with or without paying a consideration therefor, and in
connection therewith to release the obligation on the bond secured by such
mortgage and to exercise and enforce in any action, suit, or proceeding at
law or in equity any rights or remedies in respect of any such mortgage
loan or guarantee.
(10) The Trustee shall not be required in any way to determine the
correctness of the amount of any
97.
contribution or to take any action to compel the Employer to make any
contributions whatsoever. The Trustee shall not be required to institute
suits unless the Trustee shall have been indemnified to the Trustee's
reasonable satisfaction against all costs and expenses in connection
therewith.
(11) To employ suitable agents and counsel (who may be counsel for the
Employer) and to pay their reasonable expenses and compensation, provided
the Trustee exercises reasonable care in the selection of such agents and
counsel.
(12) To rely upon the opinion of any auditor, accountant, actuary, or
legal counsel as full and complete authority in respect of any action taken
or omitted by the Trustee in accordance with such opinion.
(13) To enter into any contracts with insurance companies to provide
for the payment of all or any part of the benefits provided under the Plan,
and to disburse under any such contract any funds held by the Trustee.
(14) To continue to have or exercise, after the termination of the
Plan and until final distribution, all the title, powers, discretions,
rights, and duties conferred or imposed upon the Trustee hereunder or by
law.
(15) To invest in qualifying Employer securities and qualifying
Employer Real Property, as those terms are defined in the ERISA of 1974,
and any amendments thereto, such investments in the aggregate not to exceed
ten percent (10%) of the fair market value of the assets of the Trust Fund.
Notwithstanding the foregoing, in a profit-sharing plan or other "eligible
individual account plan" as that term is defined in Section 407(d)(3) of
ERISA, such investments shall not exceed fifty percent (50%) of the fair
market value of the assets of the Trust Fund.
98.
8.05 SCOPE OF TRUSTEE'S AUTHORITY AND VOTING. The powers granted the
Trustee hereunder shall be exercised by the Trustee in his or her sole
discretion, except as to those assets of the Trust Fund for which Participants
exercise their right to direct investments pursuant to Section 3.17, and that
portion of the trust fund for which the Trustee, in accordance with Section
8.04(11), has retained investment counsel, which counsel shall have sole
discretion and authority with regard to such portion.
If there is more than one Trustee acting, each Trustee shall be entitled to
one vote on each matter submitted to a vote at a meeting of the Trustees. A
majority vote of the Trustees shall be required to take action on any matter
submitted to the Trustees for decision. If at any time there are two Trustees
who are able to act with respect to a particular matter and they are unable to
agree concerning the matter, they shall submit such matter to arbitration. The
two Trustees shall agree upon a single individual to act as arbitrator; if they
are unable to agree upon a single individual, then they or either of them shall
forthwith request the judge of any court of competent jurisdiction to appoint an
arbitrator. The decision of the arbitrator shall be rendered in writing and
shall be final and binding upon all persons and shall be deemed the decision of
the Trustees hereunder.
8.06 PAYMENTS FROM THE TRUST FUND. The Trustee shall from time to time
on written direction of the Plan Administrator make payments out of the Trust
Fund to such Participants or beneficiaries as benefit payments, in such manner
and in such amounts, as may be specified in the written direction of the Plan
Administrator, and upon any such payment being made, the amount thereof shall no
longer constitute a part of the Trust Fund. Each such written direction shall be
accompanied by a certificate of the Plan Administrator that the payment is in
accordance with the Plan. Such payments may be made either directly to persons
certified by the Plan Administrator to be entitled thereto or to
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the Plan Administrator for transmittal to such persons or as otherwise directed
by the Plan Administrator.
8.07 COMMINGLED FUNDS. Declarations of Trust executed by the Trustee and
creating commingled funds for the investment of the Trustee's fiduciary accounts
are hereby made a part of this Agreement; provided that said Declaration of
Trust complies with the Rules and Regulations of the Comptroller of the
Currency, if necessary, and the laws of any state having jurisdiction thereover
and have, where appropriate, been approved by the Internal Revenue Service.
Notwithstanding any other provision of this Agreement, the Trustee may cause all
or any part of the monies of this Trust to be commingled with monies of trusts
created by others and invested as part of the above-described commingled funds,
and monies of this trust so added to said funds at any time shall be subject to
all the provisions of the applicable Declaration of Trust as it is amended from
time to time.
The Trustee may, from time to time, withdraw from such commingled trust all
or such part of the Trust Fund as the Trustee may deem advisable.
8.08 PAYMENT OF COMPENSATION, EXPENSES, AND TAXES. The Trustee shall be
paid such reasonable compensation as shall, from time to time, be agreed upon in
writing by the Employer and the Trustee. In addition, the Trustee shall be
reimbursed for any reasonable expenses, including reasonable counsel and
accounting fees, incurred by the Trustee in the administration of the Trust
Fund. Such compensation and expenses shall be paid by the Employer, but until
paid shall constitute a charge upon the Trust Fund. All taxes of any and all
kind whatsoever that may be levied or assessed under existing or future laws
upon, or in respect of, the Trust Fund or the income thereof shall be paid from
the Trust Fund. Notwithstanding the foregoing, in the event that a Trustee is
an employee of the Employer, such Trustee shall
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not be entitled to payment of any compensation for acting as Trustee hereunder.
8.09 ACCOUNTING. The Trustee shall keep accurate and detailed accounts
of all investments, receipts, disbursements, and other transactions of the
Trust. All accounts, books, and records relating to such transactions shall be
open to inspection and audit at any time during business hours to any person
authorized by the Plan Administrator.
Within sixty (60) days following the close of each Plan Year or at such
other times as agreed upon by the Plan Administrator and Trustee, and within
sixty (60) days after the removal or resignation of a Trustee as provided in
Section 8.15, the Trustee shall file with the Plan Administrator a written
account setting forth all investments, receipts, disbursements, and other
transactions effected by the Trustee during such Plan Year or during the period
from the close of the last Plan Year to the date of such removal or resignation,
and setting forth the current book and market values of the Trust Fund.
8.10 COMMUNICATION FROM EMPLOYER AND PLAN ADMINISTRATOR. The Trustee shall
be fully protected in relying upon any written communication of an officer or
agent of the Employer or the Plan Administrator and in continuing to rely upon
such written communication until a subsequent written communication is filed
with the Trustee. The Trustee shall be fully protected in acting upon any
instrument, written communication, or paper believed by him to be genuine and to
be signed or presented by the proper person or persons, and the Trustee shall be
under no duty to make any investigation or inquiry as to any statement contained
in any such writing, but may accept the same as conclusive evidence of the truth
and accuracy of the statements therein contained. The Trustee shall be under no
duty to determine whether any contribution has been voted by the Board of
Directors of the Employer nor shall the Trustee have any duty or responsibility
to
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collect any sum so voted, the Trustee's responsibility being expressly limited
to written communications, requests, or other communications and receipt and
proper disbursements of contributions actually received by the Trustee.
8.11 INSURANCE AND BONDING. The Trustee may acquire such insurance as
the Trustee deems appropriate for the benefit of the Trust and to provide
protection against liability or loss by reason of any act or omission of a
Fiduciary as defined in the Internal Revenue Code of 1986, as amended, for
purposes of application to this Plan; provided, however, that such insurance
shall provide recourse by the insurer against the Fiduciary in the event of the
Fiduciary's breach of a fiduciary obligation. The Employer or any Fiduciary may
further acquire, at his or her own expense, such insurance as will cover
potential liability of one (1) or more persons who serve in a fiduciary capacity
with regard to this Plan.
8.12 LIABILITY FOR BREACH OF CO-FIDUCIARY. No Fiduciary, as defined by
the Internal Revenue Code of 1986, as amended, and the ERISA of 1974, as
amended, for purposes of application to the Plan, shall be liable for any act,
omission, or breach of any responsibilities of a Co-Fiduciary except as follows:
(A) If the Fiduciary knowingly participates in, or knowingly undertakes to
conceal the act or omission of such other Fiduciary, knowing that such other act
or omission is a breach of a fiduciary responsibility.
(B) If the Fiduciary, by the failure to undertake and exercise his or her
responsibilities as a Fiduciary, enables such other Fiduciary to commit a breach
of a fiduciary responsibility.
(C) If the Fiduciary has knowledge of a breach of a fiduciary
responsibility by such other Fiduciary and fails to make reasonable efforts
under the circumstances to remedy the breach.
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8.13 PROHIBITED TRANSACTIONS. No Fiduciary, as that term is defined by
the Internal Revenue Code of 1986, and the ERISA of 1974 as amended, shall allow
the Trust to engage in any prohibited transaction. If the Trust engages in a
prohibited transaction, the Fiduciary shall take all necessary steps to correct
such conditions which may result in the imposition of any tax or penalty within
any period set for the abatement of such tax or penalty or within such other
period as is required to make such change.
8.14 DISQUALIFICATION FROM FIDUCIARY SERVICE. No person shall serve or
be permitted to serve as an administrator, fiduciary, officer, trustee,
custodian, counsel, agent, or employee of this Plan or as a consultant to this
Plan who has been convicted of any of the criminal offenses specified in Section
411 of the Employee Retirement Income Security Act of 1974 or any law or
regulations of similar import, or except in accordance with said law or
regulations. No person shall knowingly permit any other person to serve in any
such capacity in violation of this Section.
8.15 REMOVAL, RESIGNATION, AND APPOINTMENT OF A SUCCESSOR TRUSTEE. Any
Trustee may be removed by the Employer at any time upon ten (10) days prior
written notice to the Trustee, or such shorter period as may be agreed to by the
Trustee. A Trustee may resign at any time upon ten (10) days prior written
notice to the Employer, or such shorter period as may be agreed to by the
Employer. Upon such removal or resignation of a Trustee and if there is no
Trustee then acting, the Employer shall appoint a successor trustee who shall be
qualified to act in such capacity and who shall have the same powers and duties
as those conferred upon the Trustee hereunder. Upon acceptance of said
appointment by a successor trustee, such successor trustee shall be deemed to be
a Trustee hereunder and shall have all of the rights, duties, and
responsibilities of a Trustee hereunder.
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In the event of the failure, for any reason, of the Employer to appoint a
successor trustee, the remaining Trustees shall continue to act. If there be no
remaining Trustees, the Trustee, and if he is unable, any interested party, may
apply to any court of competent jurisdiction for the appointment of a successor
trustee and upon such appointment, the successor trustee so appointed shall have
the same powers and duties as those conferred upon the Trustee hereunder and,
upon acceptance of such appointment by the successor trustee, the Trustee shall
assign, transfer, and pay over to such successor trustee the funds and
properties then constituting the Trust Fund.
Upon the request of such successor trustee, the Employer and the Trustee
shall execute and deliver such instruments of conveyance and the Trustee shall
execute and deliver such instruments of conveyance and further assurance and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in such successor trustee all of the right, title, and
interest of the retiring trustee in and to the Trust Fund.
Any corporation into which the Trustee or any successor trustee may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Trustee or any successor trustee may be
a party, or any corporation to which all or substantially all of the trust
business of the Trustee or any successor trustee may be transferred, shall be
the successor of such trustee without the filing of any instrument or
performance of any further act.
ARTICLE IX.
CLAIMS PROCEDURE AND PLAN ADMINISTRATION
9.01 DETERMINATION OF ELIGIBILITY AND CLAIM FOR BENEFITS. The Plan
Administrator shall determine the eligibility of each Employee for participation
in the Plan, the amount of a Participant's nonforfeitable accrued benefits, and
the amount of
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benefits payable to a Participant or beneficiary. Any person who believes he or
she is entitled to a benefit under the Plan may file a written claim for such
benefit. Within sixty (60) days of receipt of such claim, the Plan Administrator
shall make a determination regarding such claim, which determination shall be in
writing and shall set forth the basis of the determination, including specific
reasons for any denial, specific reference to Plan provisions, a description of
any additional material or information necessary for a claimant to perfect a
claim, explanation of why such material is needed, and an explanation of the
Plan's review procedure. If special circumstances require an extension of time
for processing the claim, written notice of the extension shall be given to the
claimant before the end of the sixty (60) day period. In no event shall the
extension exceed a period of ninety (90) days from the end of the initial
period. If the claimant is not given a determination within the time specified
in this paragraph, the claim shall be deemed denied.
9.02 REVIEW PROCEDURE. In the event of a dispute regarding the amount of
the nonforfeitable portion of accrued benefits or the payment of benefits, the
Participant or beneficiary shall have the right to a review of the determination
upon the filing of a written objection with the Plan Administrator within sixty
(60) days after receipt of the written determination, such objection setting
forth the basis of the claimant's position and all facts in support thereof. In
connection therewith, the claimant shall have a right to review any pertinent
documents. The decision by the Plan Administrator on said review shall be
rendered in writing within sixty (60) days after receipt of the objection and
shall set forth the basis for such decision, including specific reasons for
denial and specific references to pertinent Plan provisions. If special
circumstances require an extension of time for processing, a decision shall be
rendered as soon as possible, but not later than one hundred twenty (120) days
after receipt of the request for review. In the event no
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decision is made within the period specified in this paragraph, the claim shall
be deemed denied.
9.03 DESIGNATION OF PLAN ADMINISTRATOR. The Employer shall designate the
person or persons, including the Employer itself, to serve as Plan
Administrator, and such designee shall signify acceptance of this responsibility
as a named fiduciary of the Employer's Plan and Trust by joining in the
execution of the documents creating or amending this Plan. If more than one (1)
person is so designated, the committee so formed shall be known as the
Administrative Committee, and all references in the Plan and Trust to the Plan
Administrator shall be deemed to refer to the Administrative Committee. The
initial Plan Administrator shall be the Employer.
9.04 RESIGNATION AND REMOVAL OF PLAN ADMINISTRATOR; APPOINTMENT OF
SUCCESSOR. The Plan Administrator, or any member of the Administrative
Committee, may resign at any time by delivering to the Employer a written notice
of resignation to take effect at a date specified therein, which shall not be
less than thirty (30) days after the delivery thereof, unless such notice shall
be waived by the Employer.
The Plan Administrator may be removed with or without cause by the Employer
by delivery of written notice of removal to take effect at a date specified
therein, which shall not be less than ten (10) days after delivery thereof,
unless such notice shall be waived by the Plan Administrator.
The Employer, upon receipt of or giving notice of the resignation or
removal of the Plan Administrator, shall promptly designate a successor
administrator who must signify acceptance of this position in writing. In the
event no successor is appointed, the Board of Directors of the Employer will
function as the Administrative Committee until a new Plan Administrator has been
appointed and has accepted such appointment.
106.
9.05 ALLOCATION AND DELEGATION OF RESPONSIBILITIES. As a named
fiduciary, the Plan Administrator may engage agents to assist it in carrying out
its functions hereunder.
If there is an Administrative Committee, its members are expressly
authorized to allocate fiduciary responsibilities, other than Trustee
responsibilities, to named persons or parties providing such allocation or
delegation as evidenced in a signed written document, which must be retained
with the other Plan documents.
9.06 DUTIES AND RESPONSIBILITY OF PLAN ADMINISTRATOR. The primary
responsibility of the Plan Administrator is to administer the Plan for the
exclusive benefit of the Participants and their beneficiaries, subject to the
specific terms of the Plan. The Plan Administrator shall administer the Plan
and shall construe this Agreement and determine all questions of interpretation
or policy in a manner not inconsistent with this Agreement, and the Plan
Administrator's construction or determination in good faith shall be final and
conclusive. The Plan Administrator may correct any defect, supply any omission,
or reconcile any inconsistency in such manner and to such extent as shall be
deemed necessary or advisable to carry out the purposes of this Plan; provided,
however, that any interpretation or construction shall be done in a
nondiscriminatory manner and shall be consistent with the intent that the Plan
shall continue to be deemed a qualified Plan under the terms of Section 401(a)
of the Internal Revenue Code of 1986, as amended from time to time, and shall
comply with the terms of ERISA and all regulations issued pursuant thereto. The
Plan Administrator shall have all powers necessary or appropriate to accomplish
its duties under this Plan.
The Plan Administrator shall be charged with the duties of the general
administration of this Plan, including but not limited to, the following:
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(1) To determine all questions relating to the eligibility of
Employees to participate in or remain a Participant hereunder;
(2) To compute, certify, and direct the Trustee with respect to the
amount and kind of benefits to which any Participant shall be entitled
hereunder;
(3) To authorize and direct the Trustee with respect to all
disbursements from the Trust;
(4) To maintain all the necessary records for the administration of
the Plan;
(5) To interpret the provisions of the Plan and to make and publish
such rules for regulation of the Plan as are not inconsistent with the
terms hereof;
(6) To determine the size and type of any contract to be purchased
from an insurer for any Participant hereunder;
(7) To advise the Trustee regarding the short and long-term liquidity
needs of the Plan in order that the Trustee might direct its investments
accordingly;
(8) To advise, counsel, and assist any Participant regarding any
rights, benefits, or elections available under the Plan. The Plan
Administrator shall also be responsible for preparing and filing such
annual disclosure reports and tax forms as may be required from time to
time.
The Plan Administrator must furnish to each Participant covered under the
Plan and to each beneficiary who is entitled to receive benefits under the Plan
such information and reports at such time and under such circumstances as may be
required by law.
The Plan Administrator shall make copies of the Plan description and the
latest annual report and any bargaining agreement, trust agreement, contract, or
other instruments under which the Plan was established or is operated available
for examination by any Plan Participant or beneficiary in the principal office
of the Plan Administrator and the Employer.
108.
Whenever it is determined by the Plan Administrator to be in the best
interest of the Plan and its Participants or beneficiaries, it may request such
variances, deferrals, extensions, or exemptions or make such elections for the
Plan as may be available under the law.
The Plan Administrator shall be responsible for procuring bonding for any
persons dealing with the Plan or its assets as may be required by law or by
Section 8.11 of this Plan.
The Plan Administrator is hereby designated as agent for service of legal
process.
9.07 INVESTMENT ADVISERS.
(A) Appointment of Investment Advisers. The Plan Administrator shall have
----------------------------------
the right to appoint one or more Investment Advisers. All appointments of
Investment Advisers shall be by written agreement between the Plan Administrator
and the Investment Adviser. The Trustee shall receive a copy of each such
agreement and all amendments, modifications and terminations thereof and shall
give written acknowledgment of receipt of same. Until receipt of a copy of each
such amendment, modification or termination, the Trustee shall be fully
protected in assuming the continuing authority of such Investment Adviser under
the terms of its original agreement with the Plan Administrator as theretofore
amended or modified.
(B) Investment Adviser Agreements. Among other matters, each agreement
-----------------------------
between the Plan Administrator and an Investment Adviser or an agreement between
the Investment Adviser and the Trustee shall provide that:
(1) All directions given by the Investment Adviser to the Trustee
shall be in writing, signed by an officer or partner of the Investment
Adviser or by such other person as may be designated in writing by the
Investment Adviser; provided that the Trustee shall accept oral directions
for the purchase or sale of
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securities which shall be confirmed by such authorized personnel of the
Investment Adviser in writing.
(2) Should the Investment Adviser and the Trustee find it desirable,
the Investment Adviser shall receive a power of attorney from the Trustee
in such form and substance as may be approved by the Trustee and the Plan
Administrator, authorizing the Investment Adviser to effect transactions
directly for its Investment Account.
(3) All settlement of purchase and sales are to be in such place as
the Trustee and Investment Advisers may agree.
(4) Payment of the cost of the acquisition, sale or exchange of any
security or other property for an Investment Account shall be charged to
that Investment Account.
(5) The Investment Adviser acknowledges that it is a "fiduciary" of
the Plan and that for the term of the agreement it will qualify as an
"investment manager" (as both of said terms are used in ERISA).
(C) Notification of Appointment of Investment Advisers. Written notice of
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each appointment of an Investment Adviser shall be given to the Trustee in
advance of the effective date of the appointment. Such notice shall state the
part of the Trust Fund which is to become the Investment Account of the
Investment Adviser and shall either include or be accompanied by a direction to
the Trustee establishing the Investment Account as an Investment Fund. Upon
receipt of said notice, the Trustee shall allocate the designated part of the
Trust Fund to the Investment Account of such Investment Adviser. The Plan
Administrator may by similar notice modify such designation from time to time.
(D) Investment Adviser's Authority. So long as the appointment of an
------------------------------
Investment Adviser is in effect, the Trustee shall follow the directions of the
Investment Adviser with respect to its Investment Account in exercising the
powers
110.
granted to the Trustee in this instrument regarding investment of the Fund.
(E) Trustee's Responsibility for Investment Adviser's Account. The Trustee
---------------------------------------------------------
shall monitor all instructions from the Investment Advisers and shall notify the
Plan Administrator in the event that it considers any instruction to involve an
improper investment of the Fund. However, the Trustee shall have no further
duty to question such instructions and, except as may be otherwise provided by
ERISA, the Trustee shall not be liable for any loss which may result by reason
of any action taken by such Trustee in accordance with a direction of an
Investment Adviser acting within the powers granted to it under this Section, or
by reason of any lack of action by such Trustee upon the failure of an
Investment Adviser to exercise its said powers.
(F) Investment Adviser's Access to Records. The Trustee shall make
--------------------------------------
available to an Investment Adviser copies of or extracts from such portions of
its accounts, books or records relating to the Investment Account of such
Investment Adviser as the Trustee may deem necessary or appropriate in
connection with the exercise of the Investment Adviser's functions, or as the
Plan Administrator may direct.
9.08 EXPENSES AND COMPENSATION. The expenses necessary to administer the
Plan shall be borne by the Employer and shall be reimbursed to the Plan,
including but not limited to those involved in retaining necessary professional
assistance from an attorney, an accountant, an actuary, or an investment
adviser. The Employer shall furnish the Plan Administrator with such clerical
and other assistance as is necessary in the performance of its duties. Nothing
shall prevent the Plan Administrator from receiving reasonable compensation for
services rendered in administering this Plan, provided the Plan Administrator is
not a full-time employee of the Employer creating this Plan.
9.09 INFORMATION FROM EMPLOYER. To enable the Plan Administrator to
perform its functions, the Employer shall supply
111.
full and timely information to the Plan Administrator on all matters relating to
the Compensation of all Participants, their continuous regular employment, their
retirement, death, disability, termination of employment, and such other
pertinent facts as the Plan Administrator may require; and the Plan
Administrator shall advise the Trustee of such of the foregoing facts as may be
pertinent to the Trustee's duties under the Plan. The Plan Administrator is
entitled to rely on such information as is supplied by the Employer and shall
have no duty or responsibility to verify such information.
ARTICLE X.
AMENDMENT AND TERMINATION
10.01 AMENDMENT. The Employer shall have the right at any time, and from
time to time:
(1) To amend this Agreement in such manner as it may deem necessary or
advisable in order to qualify this Agreement and the Trust created hereby
under the provisions of Code Section 401(a), and any such amendment may by
its terms be retroactive; and
(2) To amend this Agreement in any other manner. However, no such
amendment shall authorize or permit any part of the Trust Fund (other than
such part as is required to pay taxes and administration expenses) to be
used for or diverted to purposes other than for the exclusive benefit of
the Participants or their beneficiaries or their estates; no such amendment
shall cause any reduction in the vested portion of any Participant's
proportionate interest in the Trust Fund, or cause or permit any portion of
the Trust Fund to revert to or become the property of the Employer; and no
amendments shall cause the elimination or reduction of any benefits
protected under Code Section 411(d)(6) existing on the date of the
amendment unless otherwise permitted under Treasury regulations; and no
such amendment which affects
112.
the rights, duties, or responsibilities of the Trustee may be made without the
Trustee's written consent.
Any such amendments shall become effective upon delivery of a written
instrument, executed on behalf of the Employer by its proper officers duly
authorized, directed to the Plan Administrator and the Trustee and the
endorsement of the Plan Administrator and the Trustee of its receipt or of its
written consent thereto, if such consent is required.
10.02 TERMINATION OR DISCONTINUANCE OF CONTRIBUTIONS. The Employer shall
have the right at any time to discontinue its contributions hereunder and to
terminate this Agreement and/or the Trust hereby created by delivering to the
Trustee written notice of such discontinuance or termination; provided, however,
that such termination is made in accordance with the applicable provisions of
law.
Upon total termination of the Trust and in accordance with provisions of
law, the Plan Administrator shall direct the Trustee to distribute all assets
remaining in the Trust, after payment of any expenses properly chargeable
against the Trust, to the Participants in proportion to the amount credited to
the account of each such Participant as of the date of such termination.
10.03 MERGER. Unless this Trust is sooner terminated, a successor to the
business of the Employer by whatever form or manner resulting may, upon
appropriate Board of Directors action of both the Employer and successor, and
subject to the provisions of this paragraph, continue this Plan and Trust by
executing an appropriate supplemental agreement. Such successor shall ipso
----
facto succeed to all the rights, powers, and duties of the Employer hereunder.
- -----
The employment of any Employee who is continued in the employ of such successor
shall not be deemed to have been terminated or severed for any purposes
hereunder. Notwithstanding the foregoing, no merger shall occur unless in
113.
the case of any merger or consolidation of the Plan with, or in the case of any
transfer of assets or liabilities of such Plan, to any other trust or plan, each
Participant in the Plan would, if the Plan then terminated, receive a benefit
immediately after the merger, consolidation, or transfer which is equal to or
greater than the benefit such Participant would have been entitled to receive
immediately before the merger, consolidation, or transfer if the Plan had been
terminated.
ARTICLE XI.
GENERAL PROVISIONS
11.01 PARTICIPANTS' RIGHTS. Neither the establishment of the Trust
hereby created, nor any modification thereof, nor the creation of any fund or
account, nor the payments of any benefits, shall be construed as giving to any
Participant or other person any legal or equitable right against the Employer or
any officer or employee thereof, Trustee, or Plan Administrator, except as
provided herein or by law. Under no circumstances shall the terms of employment
of any Participant be modified or in any way affected hereby.
11.02 NONALIENATION OF BENEFITS.
(A) Subject to the exceptions provided below, no benefit which shall be
payable out of the Trust to any person (including a Participant or beneficiary)
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be
void; and no such benefit shall in any manner be liable for, or subject to, the
debts, contracts, liabilities, engagements, or torts of any such person, nor
shall it be subject to attachment or legal process for or against such person,
and the same shall not be recognized by the Trustee, except to such extent as
may be required by law.
114.
(B) This provision shall not apply to the extent a Participant or
beneficiary is indebted to the Plan, for any reason, under any provision of this
Agreement. At the time a distribution is to be made to or for a Participant's
or beneficiary's benefit, such proportion of the amount distributed as shall
equal such indebtedness shall be paid by the Trustee to the Trustee or the Plan
Administrator, at the direction of the Plan Administrator, to apply against or
discharge such indebtedness. Prior to making a payment, however, the
Participant or beneficiary must be given written notice by the Plan
Administrator that such indebtedness is to be so paid in whole or part from the
Participant's account. If the Participant or beneficiary does not agree that
the indebtedness is a valid claim against his or her vested Participant's
account, he or she shall be entitled to a review of the validity of the claim in
accordance with procedures provided in Sections 9.01 and 9.02.
(C) This provision shall not apply to a "qualified domestic relations
order" defined in Code Section 414(p), and those other domestic relations orders
permitted to be so treated by the Plan Administrator under the provisions of the
Retirement Equity Act of 1984. The Plan Administrator shall establish a written
procedure to determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders. Further, to the extent
provided under a "qualified domestic relations order", a former spouse of a
Participant shall be treated as the spouse or surviving spouse for all purposes
under the Plan.
11.03 DELEGATION OF AUTHORITY BY EMPLOYER. Whenever the Employer under
the terms of this Agreement is permitted or required to do or perform any act or
matter or thing, it shall be done and performed by any officer duly authorized
by its Board of Directors.
11.04 EXERCISE OF DISCRETION BY CORPORATE TRUSTEE. Any judgment or
discretion in this Agreement provided to be exercised
115.
by the Trustee may, in the case of a corporate trustee, be exercised by its
Board of Directors, Executive Committee, President or any Vice President, or any
other authorized officer. A corporate trustee may deposit with itself cash or
funds constituting part of the Trust herein created, pursuant to the provisions
of Code Section 4975(d)(4) and Section 408(b)(4) of ERISA; or pursuant to
specific directions from (1) an unrelated fiduciary or (2) a participant acting
pursuant to Section 3.17; or pursuant to an exemption granted by the Department
of Labor or other authorized agency.
11.05 CONTROL OF TRADES OR BUSINESSES BY OWNER-EMPLOYEE. If this Plan
provides contributions or benefits for one or more owner-employees who control
both the business for which this Plan is established and one or more other
trades or businesses, this Plan and the Plan established for other trades or
businesses must, when looked at as a single plan, satisfy Code Sections 401(a)
and (d) for the employees of this and all other trades or businesses.
If the Plan provides contributions or benefits for one or more owner-
employees who control one or more other trades or businesses, the employees of
the other trades or businesses must be included in a plan which satisfies Code
Sections 401(a) and (d) and which provides contributions and benefits not less
favorable than provided for owner-employees under this Plan.
If an individual is covered as an owner-employee under the plans of two or
more trades or businesses which are not controlled and the individual controls a
trade or business, then the contributions or benefits of the employees under the
Plan of the trades or businesses which are controlled must be as favorable as
those provided for such owner-employee under the most favorable plan of the
trade or business which is not controlled.
For purposes of the preceding paragraphs, an owner-employee, or two or more
owner-employees, will be considered to control a
116.
trade or business if the owner-employee, or two or more owner-employees
together:
(1) own the entire interest in an unincorporated trade or business, or
(2) in the case of a partnership, own more than fifty percent (50%) of
either the capital interest or the profits interest in the partnership.
For purposes of the preceding sentence, an owner-employee, or two or more
owner-employees shall be treated as owning any interest in a partnership which
is owned, directly or indirectly, by a partnership which such owner-employee, or
such two or more owner-employees, are considered to control within the meaning
of the preceding sentence.
11.06 CONSTRUCTION OF AGREEMENT. This Trust Agreement shall be construed
according to the laws of the State of Wisconsin, and all provisions hereof shall
be administered according to the laws of such state. When making determinations
affecting Employees' rights pursuant to this Agreement, the Employer and Plan
Administrator shall uniformly follow rules of consistent application.
11.07 GENDER, NUMBER, AND HEADINGS. Wherever any words are used herein
in the masculine gender, they shall be construed as though they were also used
in the feminine gender in all cases where they would so apply, and wherever any
words are used herein in the singular form, they shall be construed as though
they were also used in the plural form in all cases where they would so apply.
Headings of Sections and Subsections of this Agreement are inserted for
convenience of reference; they constitute no part of this Agreement and are not
to be considered in the construction hereof.
11.08 QUALIFICATION.
(A) It is the intent of the Employer that this Plan shall be for the
exclusive benefit of its Employees and shall qualify for
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approval under Code Section 401(a), as amended from time to time (or
corresponding provisions of any subsequent federal law at that time in effect).
In case of any ambiguity, the Plan language shall be interpreted to accomplish
such result. It is further intended that the Plan comply with the provisions of
the Employee Retirement Income Security Act of 1974 (ERISA) as amended from time
to time.
(B) If the Internal Revenue Service determines that the Plan and Trust do
not qualify initially under Code Section 401(a) or any statute of similar
import, all contributions made by the Employer shall be returned to the Employer
by the Trustee within one (1) year after the date of denial of qualification.
Earnings of the Plan attributable to the excess contribution may not be returned
to the Employer, but any losses attributable thereto must reduce the amount so
returned.
(C) Notwithstanding any provision in this Agreement to the contrary, no
Participant or beneficiary shall have any right or claim to any asset of the
Trust or to any benefit under the Plan before the Internal Revenue Service
determines that the Plan and Trust qualify under the provisions of Code Section
401(a) or any similar statute of similar import.
(D) Upon the return of all contributions to the Employer as provided in
Section 11.08(B), the Trust shall terminate and the Trustee shall be discharged
from all obligations under the Trust.
11.09 PROHIBITION OF DIVERSION OF FUNDS. Except as provided herein, it
shall be impossible by operation of the Plan and of the Trust, by natural
termination of either, by power of revocation or amendment, by the happening of
any contingency, by collateral arrangement, or by any other means, for any part
of the corpus or income of any Trust Fund maintained pursuant to the Plan or any
funds contributed thereto to be used for, or diverted to, purposes other than
the exclusive benefit of Participants, former Participants, or their
beneficiaries. Notwithstanding the foregoing, contributions made by the
Employer by mistake of fact and contributions found not to be currently
deductible under Code
118.
Section 404, to the extent the deduction is disallowed or determined to be
nondeductible pursuant to an IRS ruling, may be returned to the Employer within
one (1) year after the payment of the contribution in the first instance or
disallowance of the deduction or issuance of a ruling in the second instance.
Earnings of the Plan attributable to the excess contributions may not be
returned to the Employer, but any losses attributable thereto must reduce the
amount so returned.
11.10 ROLLOVERS AND TRANSFERS FROM QUALIFIED PLANS.
(A) With the consent of the Plan Administrator, a Participant may transfer
amounts from other qualified plans, provided that the trust from which such
funds are transferred permits the transfer to be made and, in the opinion of
legal counsel for the Employer, the transfer will not jeopardize the tax exempt
status of the Plan or Trust or create adverse tax consequences for the Employer.
The amounts transferred shall be set up in a separate account herein referred to
as a Participant's Rollover Account. Such account shall be fully vested at all
times and shall not be subject to forfeiture for any reason.
Notwithstanding the foregoing, amounts which are subject to the joint and
survivor annuity requirements of Code Sections 401(a)(11) and 417 shall not be
accepted as transfer or rollover contributions.
(B) Distributions from Rollover Accounts shall be subject to the Plan's
distribution provisions. Distributions from Rollover Accounts may be made to
Participants prior to separation from service, pursuant to Sections 5.10 and
6.10.
(C) The Plan Administrator may direct that rollovers and transfers made
after the first month of the Plan Year pursuant to this Section be segregated
into a separate account for each Participant in a federally insured savings
account, certificate of deposit in a bank or savings and loan association, money
market certificate, or other short term debt security acceptable to the Trustee
until the first day of the following Plan Year, at which time they shall be
invested as determined by the Trustee
119.
pursuant to Section 8.04 or by the Participant pursuant to Section 3.17.
(D) Unless the Plan Administrator directs that the Participants' Rollover
Accounts be segregated into a separate account for each Participant in a
federally insured savings account, certificate of deposit in a bank or savings
and loan association, money market certificate, or other short term debt
security acceptable to the Trustee, such accounts shall be invested as part of
the general Trust Fund or as directed by the Participant pursuant to Section
3.17.
(E) For purposes of this Section, the term "amounts transferred from other
qualified plans" shall mean:
(1) amounts transferred to this Plan directly from another qualified
plan;
(2) lump-sum distributions received by an Employee from another
qualified plan which are eligible for tax free rollover to a qualified plan
and which are transferred by the Employee to this Plan within sixty (60)
days following his or her receipt thereof;
(3) amounts transferred to this Plan from a conduit individual
retirement account provided that the conduit individual retirement account
has no assets other than assets which
(a) were previously distributed to the Employee by another
qualified corporate (and, after December 31, 1983, noncorporate) plan
as a lump sum distribution,
(b) were eligible for tax free rollover to a qualified corporate
or noncorporate plan, and
(c) were deposited in such conduit individual retirement account
within sixty (60) days of receipt thereof, and other than earnings on
said assets.
(4) amounts distributed to the Employee from a conduit individual
retirement account meeting the
120.
requirements of clause (3) above, and transferred by the Employee to this
Plan within sixty (60) days of his or her receipt thereof from such conduit
individual retirement account.
Prior to accepting any transfers to which this Section applies, the Plan
Administrator may require the Employee to establish that the amounts to be
transferred to this Plan meet the requirements of this Section and may also
require the Employee to provide an opinion of counsel satisfactory to the
Employer that the amounts to be transferred meet the requirements of this
Section.
(F) For purposes of this Section, the term "qualified plan" shall mean any
tax qualified plan under Code Section 401(a).
(G) Amounts allocated to a Participant's Rollover Account may be treated as
a Directed Investment Account pursuant to Section 3.17.
11.11 PORTABILITY. (A) If a Participant shall be entitled to receive
benefits under this Plan and participates in another qualified plan maintained
by the Employer, or if such Participant shall be subsequently employed by
another employer which has a plan qualified pursuant to Code Section 401(a), the
Trustee may transfer the Participant's vested benefits under this Plan directly
to the trustee of the other plan of the Employer or to the trustee of the plan
of the Participant's new employer if the following conditions are satisfied:
(1) The trustee of the other plan shall be authorized to accept the
benefits under this Plan; and
(2) The Participant's transferred assets shall be maintained in a
separate account in the other plan; and
(3) The Participant's transferred assets shall not be forfeitable or
reduce in any way the obligation of the Employer or the new employer.
(B) (1) This Paragraph (B) applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a
121.
distributee's election under this Paragraph (B), a distributee may elect, at the
time and in the manner prescribed by the Plan Administrator, to have any portion
of an eligible rollover distribution paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
(2) Definitions
-----------
(a) Eligible Rollover Distribution: An eligible rollover
distribution is any distribution of all or any portion of the balance to
the credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Code Section
401(a)(9); and the portion of any distribution that is not includible in
gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) Eligible Retirement Plan: An eligible retirement plan is an
individual retirement account described in 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.
(C) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's surviving
spouse and the employee's or former employee's spouse or former spouse who
is the alternate
122.
payee under a qualified domestic relations order, as defined in Code
section 414(p), are distributees with regard to the interest of the spouse
or former spouse.
(d) Direct Rollover. A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
123.
IN WITNESS WHEREOF, the Employer and Trustee have caused this Agreement to
be executed on June 30, 1995.
Pleasant Company
(Employer and Plan Administrator)
By: /s/ Catharine B. Walker
___________________________________
Firstar Bank Madison, N.A.
(Trustee)
By: /s/ Marcia B. Butler
___________________________________