IDI 401(K) SAVINGS PLAN
Restated Generally Effective as of October 1, 1995
DII0CE3F 25879-6
TABLE OF CONTENTS
PAGE
SECTION I
PURPOSE AND RESTATEMENT OF THE PLAN
AND ESTABLISHMENT OF THE TRUST FUND ......................... 1
1.1 RESTATEMENT OF THE PLAN. ....................... 1
1.2 PURPOSES. ...................................... 1
1.3 TRUST AGREEMENT. ............................... 1
SECTION II
DEFINITIONS ................................................. 1
SECTION III
REQUIREMENTS FOR ELIGIBILITY ................................ 10
3.1 SERVICE. ....................................... 10
3.2 SERVICE WITH A PREDECESSOR EMPLOYER. ........... 11
3.3 PERIODS OF SEVERANCE. .......................... 11
3.4 CHANGE IN STATUS OF EMPLOYEE. .................. 11
SECTION IV
ACTIVE PARTICIPATION IN THE PLAN ............................ 12
4.1 ACTIVE PARTICIPATION. .......................... 12
4.2 ROLLOVER ACCOUNT. .............................. 12
SECTION V
ADMINISTRATION OF THE PLAN .................................. 13
5.1 RESPONSIBILITY FOR ADMINISTRATION OF THE PLAN. . 13
5.2 APPOINTMENT OF ADMINISTRATIVE COMMITTEE. ....... 13
5.3 RESPONSIBILITY FOR ADMINISTRATION OF THE TRUST FUND. 13
5.4 DELEGATION OF POWERS. .......................... 13
5.5 RECORDS. ....................................... 14
5.6 GENERAL ADMINISTRATIVE POWERS. ................. 14
5.7 APPOINTMENT OF PROFESSIONAL ASSISTANTS AND INVESTMENT
MANAGER......................................... 14
5.8 ACTIONS OF THE ADMINISTRATIVE COMMITTEE. ....... 15
5.9 DIRECTIVES OF THE ADMINISTRATIVE COMMITTEE. .... 15
5.10 DISCRETIONARY ACTS. ............................ 15
5.11 RESPONSIBILITY OF FIDUCIARIES. ................. 16
5.12 INDEMNITY BY PARTICIPATING COMPANIES. .......... 16
5.13 PAYMENT OF FEES AND EXPENSES. .................. 16
5.14 PLAN ADMINISTRATOR. ............................ 17
5.15 ALLOCATION AND DELEGATION OF ADMINISTRATIVE COMMITTEE
RESPONSIBILITIES................................ 17
SECTION VI
DEPOSITS .................................................... 17
6.1 COMPANY MATCHING DEPOSITS. ..................... 17
6.2 BASIC AND SUPPLEMENTAL BEFORE-TAX DEPOSITS. .... 18
6.3 DATE OF PAYMENT OF DEPOSITS. ................... 19
6.4 SPECIAL LIMITATIONS ON BEFORE-TAX DEPOSITS. .... 19
6.5 SPECIAL LIMITATION ON COMPANY MATCHING DEPOSITS. 26
SECTION VII
ALLOCATION TO PARTICIPANTS' ACCOUNTS ........................ 32
7.1 METHODS OF ALLOCATING DEPOSITS. ................ 32
7.2 ALLOCATION TO A PARTICIPANT TRANSFERRED TO A
PARTICIPATING COMPANY........................... 32
7.3 ALLOCATION TO A PARTICIPANT TRANSFERRED TO AN AFFILIATED
COMPANY WHICH HAS NOT ADOPTED THE PLAN.......... 32
7.4 LIMITATIONS ON ANNUAL ADDITIONS. ............... 33
7.5 LIMITATIONS ON ANNUAL ADDITIONS FOR PARTICIPATING
COMPANIES OR AFFILIATED COMPANIES MAINTAINING OTHER
DEFINED CONTRIBUTION PLANS...................... 35
7.6 LIMITATIONS ON BENEFITS AND ANNUAL ADDITIONS FOR
PARTICIPATING COMPANIES OR AFFILIATED COMPANIES
MAINTAINING DEFINED BENEFIT PLANS............... 35
7.7 DEFINITIONS RELATING TO ANNUAL ADDITION LIMITATIONS 35
SECTION VIII
VALUATION OF TRUST FUND ..................................... 37
SECTION IX
PARTICIPANTS' ACCOUNTS ...................................... 38
9.1 SEPARATE ACCOUNTS .............................. 38
9.2 ACCOUNTS OF PARTICIPANTS TRANSFERRED TO AN AFFILIATED
COMPANY......................................... 38
9.3 ADJUSTMENT OF PARTICIPANT'S ACCOUNTS ........... 38
9.4 ACCOUNT INVESTMENT DIRECTION ................... 38
9.5 ARKANSAS BEST STOCK FUND ....................... 40
SECTION X
COMMON TRUST FUND ........................................... 41
SECTION XI
DESIGNATION OF BENEFICIARIES ................................ 41
11.1 PARTICIPANT'S DESIGNATION ...................... 41
11.2 QUALIFIED CONSENT. ............................. 42
11.3 PRIOR PLAN ACCOUNT DEATH BENEFITS .............. 42
SECTION XII
DISABILITY BENEFITS ......................................... 44
12.1 DISABILITY RETIREMENT BENEFITS. ................ 44
12.2 DETERMINATION OF DISABILITY. ................... 45
SECTION XIII
RETIREMENT AND DEATH BENEFITS ............................... 45
13.1 RETIREMENT BENEFITS. ........................... 45
13.2 DEATH BENEFITS. ................................ 45
SECTION XIV
EMPLOYMENT TERMINATION BENEFITS ............................. 46
14.1 VESTING UPON TERMINATION OF EMPLOYMENT. ........ 46
14.2 DETERMINATION OF VESTING YEARS OF SERVICE. ..... 46
14.3 PERIODS OF SEVERANCE. .......................... 46
14.4 FORFEITURE OF NON-VESTED AMOUNT. ............... 47
14.5 RESTORATION OF FORFEITED NON-VESTED AMOUNT. .... 48
SECTION XV
PAYMENT OF BENEFITS ......................................... 49
15.1 AMOUNT OF PAYMENT. ............................. 49
15.2 METHOD OF AND TIME FOR DISTRIBUTION OF BENEFITS. 49
15.3 LIMITATIONS ON TIMING. ......................... 50
15.4 PAYMENTS ON PERSONAL RECEIPT EXCEPT IN CASE OF LEGAL
DISABILITY...................................... 51
15.5 BENEFITS PAYABLE IN CASH. ...................... 51
15.6 DISTRIBUTION ACCOUNTS. ......................... 51
15.7 METHOD OF DISTRIBUTION FOR PRIOR PLAN ACCOUNTS . 51
15.8 DISTRIBUTION LIMITATIONS APPLICABLE TO BEFORE-TAX
DEPOSITS........................................ 52
15.9 BENEFITS PAYABLE PURSUANT TO A QUALIFIED DOMESTIC
RELATIONS ORDER................................. 53
15.10 DIRECT ROLLOVERS. .............................. 53
SECTION XVI
BENEFIT CLAIMS PROCEDURE .................................... 55
16.2 REQUEST FOR REVIEW OF DENIAL. .................. 55
16.3 DECISION ON REVIEW OF DENIAL. .................. 55
SECTION XVII
MISCELLANEOUS PROVISIONS
RESPECTING PARTICIPANTS ..................................... 56
17.1 PARTICIPANTS TO FURNISH REQUIRED INFORMATION. .. 56
17.2 PARTICIPANTS' RIGHTS IN TRUST FUND. ............ 56
17.3 INALIENABILITY OF BENEFITS. .................... 56
17.4 ADDRESS FOR MAILING OF BENEFITS. ............... 59
17.5 UNCLAIMED ACCOUNT PROCEDURE. ................... 59
SECTION XVIII
LOANS TO PARTICIPANTS,
BENEFICIARIES AND ALTERNATE PAYEES .......................... 60
SECTION XIX
ADOPTION OF PLAN BY AFFILIATED COMPANY ...................... 62
SECTION XX
WITHDRAWAL FROM PLAN ........................................ 62
20.1 NOTICE OF WITHDRAWAL. .......................... 62
20.2 SEGREGATION OF TRUST ASSETS UPON WITHDRAWAL. ... 62
20.3 EXCLUSIVE BENEFIT OF PARTICIPANTS. ............. 62
20.4 APPLICABILITY OF WITHDRAWAL PROVISIONS. ........ 63
SECTION XXI
AMENDMENT OF THE PLAN ....................................... 63
SECTION XXII
PERMANENCY OF THE PLAN ...................................... 64
22.1 RIGHT TO TERMINATE PLAN. ....................... 64
22.2 MERGER OR CONSOLIDATION OF PLAN AND TRUST. ..... 64
22.3 CONTINUANCE BY SUCCESSOR COMPANY. .............. 64
SECTION XXIII
DISCONTINUANCE OF DEPOSITS AND TERMINATION .................. 65
23.1 DISCONTINUANCE OF DEPOSITS. .................... 65
23.2 TERMINATION OF PLAN AND TRUST. ................. 65
23.3 RIGHTS TO BENEFITS UPON TERMINATION OF PLAN OR COMPLETE
DISCONTINUANCE OF DEPOSITS...................... 65
SECTION XXIV
STATUS OF EMPLOYMENT RELATIONS .............................. 66
SECTION XXV
BENEFITS PAYABLE BY TRUST ................................... 66
SECTION XXVI
EXCLUSIVE BENEFIT OF TRUST FUND ............................. 66
26.1 LIMITATION ON REVERSIONS. ...................... 66
26.2 UNALLOCATED AMOUNTS UPON TERMINATION OF PLAN AND TRUST.
66
26.3 MISTAKE OF FACT OR DISALLOWANCE OF DEDUCTION. .. 66
26.4 FAILURE OF INITIAL QUALIFICATION OF PLAN AND TRUST. 67
SECTION XXVII
APPLICABLE LAW .............................................. 67
SECTION XXVIII
INTERPRETATION OF THE PLAN AND TRUST ........................ 67
SECTION XXIX
TOP HEAVY PLAN RULES ........................................ 68
29.1 DEFINITIONS. ................................... 68
29.2 DETERMINATION OF TOP HEAVINESS. ................ 70
29.3 MINIMUM REQUIREMENTS. .......................... 72
29.4 MINIMUM BENEFITS FOR EMPLOYERS MAINTAINING DEFINED
BENEFIT PLANS................................... 73
29.5 SUPER TOP HEAVY PLANS. ......................... 73
SECTION XXX
EFFECTIVE DATE .............................................. 73
DII0CE3F 25879-6
IDI 401(K) SAVINGS PLAN
SECTION 1
PURPOSE AND RESTATEMENT OF THE PLAN
AND ESTABLISHMENT OF THE TRUST FUND
1.1 RESTATEMENT OF THE PLAN. Subject to the terms and conditions
hereinafter set forth, Integrated Distribution, Inc. (the "Sponsoring
Company") hereby amends and restates effective as of October 1, 1995
(except as otherwise provided herein), the IDI 401(k) Savings Plan, a
profit sharing plan for the exclusive benefit of its Employees and their
Beneficiaries, which was originally established effective as of April 1,
1994, and was thereafter amended from time to time. The Plan, as it
existed immediately prior to the execution of this restatement, shall be
referred to herein as the "Prior Plan," even though the Plan continues
without interruption through this restatement.
1.2 PURPOSES. The purposes hereof are to reward Employees for their
long and faithful service, to help the Employees accumulate funds for
their later years, and to provide funds for their Beneficiaries in case of
death.
It is the intention of the Participating Companies that this Plan
shall meet all of the requirements necessary or appropriate to qualify as
a profit-sharing plan under Sections 401(a) and 401(k) of the Code and
that the Fund made a part hereof shall be exempt from tax under Section
501(a) of the Code and all provisions hereof shall be interpreted
accordingly. Contributions may be made hereunder without regard to
whether the Sponsoring Company or the Participating Companies have
profits.
1.3 TRUST AGREEMENT. In furtherance of this Plan, the Sponsoring
Company, effective as of May 1, 1995, has entered into the Arkansas Best
Corporation Employees' Investment Trust No. 1 ("Investment Trust"), which
supersedes all prior trust agreements relating to the Plan; such Trust
Agreement is made a part hereof, for the purpose of carrying out the
provisions of this Plan as hereinafter set forth.
SECTION 2
DEFINITIONS
As used in the Plan:
2.1 "Account" or "Accounts" shall mean the Basic Before-Tax Deposit
Account, if any; the Supplemental Before-Tax Deposit Account, if any; the
Company Matching Deposit Account; the Prior Plan Account, if any; and the
Rollover Account, if any, collectively or singly as the context requires,
maintained for each Participant under the Plan.
2.2 "Active Participant" shall mean a Participant who has currently
elected in accordance with the provisions of Section hereof to have Basic
Before-Tax Deposits made on his behalf, pursuant to the provisions of
Section hereof.
2.3 "Administrative Committee" shall mean the persons or entity
appointed to administer the Plan in accordance with the provisions of
Section . The Administrative Committee shall be the "Named Fiduciary" as
referred to in Section 402(a) of ERISA with respect to the management,
operation and administration of the Plan.
2.4 "Affiliated Company" shall mean any company which is a component
member of a controlled group of corporations within the meaning of Section
1563(a) of the Code determined without regard to Sections 1563(a)(4) and
(e)(3)(C) thereof, which controlled group of corporations includes as a
component member the Sponsoring Company or any Participating Company,
except that with respect to Section hereof, "50 per cent" shall be
substituted for "80 per cent" where it appears in paragraph 1 of Section
1563(a) of the Code. The term "Affiliated Company" shall also mean any
trade or business under common control (as defined in Sections 414(b) and
414(c) of the Code) with a Participating Company and any member of an
affiliated service group (as defined in Section 414(m) of the Code) of
which a Participating Company is a member and any entity required to be
aggregated with a Participating Company pursuant to regulations under
Section 414(o) of the Code.
2.5 "Arkansas Best Stock" shall mean the common stock of Arkansas
Best Corporation, a Delaware corporation, or its successor.
2.6 "Arkansas Best Stock Fund" shall mean the Investment Fund
invested primarily in Arkansas Best Stock as provided in Section .
2.7 "Basic Before-Tax Deposit Account" shall mean the separate
account maintained for each Participant reflecting the Basic Before-Tax
Deposits made on behalf of such Participant, as adjusted in accordance
with the provisions of Section .
2.8 "Basic Before-Tax Deposits" shall mean the amount each Active
Participant has elected to have the Participating Companies contribute on
his behalf pursuant to the provisions of Section hereof which is subject
to a Company Matching Deposit. Such amounts shall qualify as elective
contributions under Section 401(k) of the Code and the regulations
thereunder.
2.9 "Before-Tax Deposits" shall mean, collectively or singly as the
context requires, a Participant's Basic Before-Tax Deposits, if any, and
his Supplemental Before-Tax Deposits, if any.
2.10 "Beneficiary" shall mean any person entitled to receive benefits
which are payable upon or after a Participant's death pursuant to Section
and Section .
2.11 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time. References to any Section of the Internal Revenue Code
shall include any successor provision thereto.
2.12 "Company Matching Deposit Account" shall mean the separate
account maintained for each Participant reflecting such Participant's
allocable share of the Company Matching Deposits under Subsection hereof,
as adjusted in accordance with the provisions of Section .
2.13 "Company Matching Deposits" shall mean the amount of the
Participating Companies' contributions provided for in Subsection hereof
which match the Participant's Basic Before-Tax Deposits.
2.14 "Compensation" shall mean, subject to the provisions of
Subsection hereof, the amounts actually paid to an Employee by the
Participating Company for services rendered, inclusive of bonuses,
commissions and overtime pay, and amounts, if any, that would have been
included in the Employee's Compensation for such calendar year if they had
not received special tax treatment because they were deferred by the
Employee through a plan of deferred compensation under Section 401(k) of
the Code or under a salary reduction agreement pursuant to Section 125 of
the Code, but exclusive of expense allowances and all other extraordinary
compensation and any Compensation paid for any period prior to the Entry
Date on which a Participant first becomes a Participant under the Plan.
Notwithstanding the foregoing, "Compensation" shall not include any
Compensation in excess of One Hundred Fifty Thousand Dollars ($150,000) or
such larger amount as results from the adjustment provided in Section
401(a)(17) of the Code.
2.15 "Eligible Employee" shall mean each Employee who is employed by
a Participating Company except the following individuals:
2.15.1 any person who is a "casual employee" of a
Participating Company as defined by the Participating Company's
uniform and nondiscriminatory employment policy, unless and until such
"casual employee" completes a Vesting Year of Service as defined in
Section hereof, in which event such causal employee shall be treated
as an Eligible Employee as defined herein as of the date such casual
employee completes the Vesting Year of Service.
2.15.2 any person who is included in a collective bargaining
unit, if retirement benefits were the subject of good faith
bargaining, unless and until said bargaining unit has bargained for
coverage under the Plan, in which event such person shall be treated
as an Employee as defined herein as of the date said bargaining unit
commences coverage under this plan.
2.15.3 any person who is not treated as an employee on the
payroll of a Participating Company, regardless of whether such person
is considered a leased employee within the meaning of Code Sections
414(n) and 414(o).
2.16 "Employee" shall mean any person who is employed as a common-law
employee by an Affiliated Company and receives a compensation from an
Affiliated Company that is subject to FICA tax. Any leased employee shall
be considered al "Employee" under the Plan to the extent required by
Sections 414(n) or 414(o) of the Code, but shall not be eligible to
participate in the Plan unless and until he actually becomes employed on
the payroll of a Participating Company and otherwise meets the eligibility
criteria of Section hereof.
2.17 "Employment Commencement Date" shall mean the date an Employee
first performs an Hour of Service with a Participating Company or an
Affiliated Company.
2.18 "Entry Date" shall mean any business day.
2.19 "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time. References to any Section of ERISA
shall include any successor provision thereto.
2.20 "Hour of Service" shall mean each hour for which an Employee is
directly or indirectly paid, or entitled to payment by a Participating
Company or an Affiliated Company for the performance of duties
2.21 "Inactive Participant" shall mean any Participant other than an
Active Participant.
2.22 "Investment Manager" shall mean any party that (i) is either (a)
registered as an investment adviser under the Investment Advisers Act of
1940, or (b) a bank (as defined in the Investment Advisers Act of 1940),
or (c) an insurance company qualified to manage, acquire or dispose of
Plan assets under the laws of more than one State, (ii) acknowledges in
writing that it is a fiduciary with respect to the Plan, and (iii) is
granted the power to manage, acquire or dispose of any asset of the Plan
pursuant to Section hereof and the Trust Agreement.
2.23 "Leave of Absence" shall mean an absence with or without pay
from the active employment of a Participating Company by reason of an
approved absence granted by such Participating Company in accordance with
its leave and personnel regulations, whether by reason of military service
or for any other reason on the basis of a uniform policy applied by such
Participating Company without discrimination (including periods during
which an Employee is receiving benefits under any disability or sickness
plan of a Participating Company or an Affiliated Company). Such a Leave
of Absence will not constitute a Termination of Employment provided the
Employee returns to the active employment of the Participating Company at
or prior to the expiration of his leave or, if not specified therein,
within the period of time which accords with such Participating Company's
policy with respect to permitted absences. If the Employee does not
return to the active employment of such Participating Company at or prior
to the expiration of his Leave of Absence, his employment will be
considered terminated as of the earlier of (i) the date on which his Leave
of Absence expired, or (ii) the date which is twelve (12) months after the
date on which his Leave of Absence began. Notwithstanding the foregoing
provisions of this Section, an Employee's absence from the active service
of a Participating Company because of military service will be considered
a Leave of Absence granted by a Participating Company and will not
terminate the employment of such Employee if he returns to the active
employment of the Participating Company within the period of time during
which he has reemployment rights under any applicable federal law or
within sixty (60) days from and after discharge or separation from such
military service if no federal law is applicable. However, no provision
of this Section or of the remainder of the Plan shall require reemployment
of any Employee whose active service with the Participating Company was
terminated by reason of military service.
2.24 "One-Year Period of Severance" shall mean a twelve (12)
consecutive month Period of Severance. Notwithstanding the foregoing
provisions hereof, or any other provision of this Plan to the contrary, in
the case of an Employee who is absent from work for any period (i) by
reason of (a) the Employee's pregnancy, (b) the birth of the Employee's
child, (c) the placement of a child with the Employee in connection with
the adoption of such child by the Employee, or (ii) for the purpose of
caring for such child for a period beginning immediately following such
birth or placement, the twelve (12) consecutive month period beginning on
the first anniversary of the first date of such absence shall not
constitute a One-Year Period of Severance and shall not constitute a
Period of Service.
2.25 "Participant" shall mean an Eligible Employee who becomes a
Participant in the Plan as provided in Section .
2.26 "Participating Company" shall mean the Sponsoring Company or any
Affiliated Company which adopts the Plan pursuant to Section .
2.27 "Period of Service" shall mean the period of time commencing on
an Employee's Employment Commencement Date or Reemployment Commencement
Date, as the case may be, and ending on such Employee's Severance from
Service Date. A Period of Service shall also include a Period of
Severance of less than twelve (12) consecutive months. Notwithstanding
the preceding sentence:
2.27.1 If an Employee who is on Leave of Absence or who is
temporarily laid off, retires or suffers a Termination of Employment
during the first twelve (12) months of such Leave of Absence or
temporary layoff, as the case may be, such Employee's Period of
Service shall not include any Period of Severance beginning on the
date such Employee retired or suffered a Termination of Employment and
ending on such Employee's Reemployment Commencement Date, if any, if
such Reemployment Commencement Date, if any, does not occur within the
twelve (12) month period commencing on the date such Leave of Absence
or temporary layoff began.
2.27.2 If an Employee works simultaneously for more than one
Participating Company and/or Affiliated Company, the total Period of
Service for such Employee shall not be increased by reason of such
simultaneous employment.
2.28 "Period of Severance" shall mean the period of time commencing
on an Employee's Severance from Service Date and ending on such Employee's
Reemployment Commencement Date, if any.
2.29 "Plan" shall mean the IDI 401(k) Savings Plan as set forth in
this document, and as hereafter amended from time to time.
2.30 "Plan Year" shall mean the twelve (12) consecutive month period
ending on December 31 of each year. The period from April 1, 1995 to
December 31, 1995 shall be a short plan year.
2.31 "Prior Plan Account" shall mean the separate account maintained
for each Participant reflecting the amounts in such Participant's combined
Accounts attributable to contributions made prior to October 1, 1995.
The Prior Plan Account shall include separate subaccounts for Before-
Tax Deposits, Company Matching Deposits and Cash Transfers From Another
Qualified Plan, and each such subaccount shall be subject to the same
provisions as its Plan Account counterpart (i.e., the Before-Tax Deposits
subaccount shall be subject to the provisions as the Before-Tax Deposit
Account), except as specifically provided otherwise in Sections and .
The Before-Tax Deposits subaccount shall reflect amounts attributable to
"elective contributions" (as defined in the Prior Plan) made prior to
October 1, 1995. The Company Matching Deposits subaccount shall reflect
amounts attributable to "matching contributions" and "non-elective
contributions" (as defined in the Prior Plan) made prior to October 1,
1995. The Rollover subaccount shall reflect amounts attributable to
amounts rolled over into the Prior Plan prior to October 1, 1995.
x2.32 "Reemployment Commencement Date" shall mean the date on which
an Employee first performs an Hour of Service with a Participating Company
or an Affiliated Company following such Employee's Severance from Service
Date.
2.33 "Retirement Date" of a Participant shall mean the Participant's
sixty-fifth (65th) birthday.
2.34 "Severance from Service Date" shall mean the earlier of:
2.34.1 The date on which an Employee separates from the active
employment of a Participating Company or an Affiliated Company on
account of retirement, death, Total and Permanent Disability or
Termination of Employment; or
2.34.2 In the case of an Employee on Leave of Absence who does
not return to the active employment of the Participating Company or an
Affiliated Company at or prior to the expiration of such Leave of
Absence, the earlier of (i) the expiration date of such Leave of
Absence, or (ii) the date which is twelve (12) months after the date
on which such Leave of Absence began, or, in the case of an Employee
who becomes absent (whether the absence is with or without pay) from
the active employment of a Participating Company or an Affiliated
Company by reason of a temporary layoff, the date which is twelve (12)
months after the date on which such Employee first becomes absent.
2.35 "Sponsoring Company" shall mean Integrated Distribution, Inc. or
its successor.
2.36 "Supplemental Before-Tax Deposit Account" shall mean the
separate account maintained for each Participant reflecting the
Supplemental Before-Tax Deposits made on behalf of such Participant, as
adjusted in accordance with the provisions of Section .
2.37 "Supplemental Before-Tax Deposits" shall mean the amount each
Active Participant has elected to have the Participating Companies
contribute on his behalf pursuant to the provisions of Section hereof
which is not subject to a Company Matching Deposit. Such amounts shall
qualify as elective contributions under Section 401(k) of the Code and the
regulations thereunder.
2.38 "Termination of Employment" shall mean the termination of active
employment with any Participating Company, whether voluntarily or
involuntarily, other than by reason of a Participant's retirement after
attaining his Retirement Date or after sustaining Total and Permanent
Disability, death or transfer to an Affiliated Company.
2.39 "Total and Permanent Disability" shall mean a termination of
employment due to a physical or mental condition of a Participant
resulting from bodily injury, disease, or mental disorder which
constitutes total disability under the federal Social Security Act, and
for which the Participant has actually been approved for Social Security
disability benefits.
2.40 "Trust" shall mean the legal entity resulting from the Trust
Agreement between the Sponsoring Company and the Trustee which receives
the Participating Companies' and Participants' contributions, and holds,
invests, and disburses funds to or for the benefit of Participants and
their Beneficiaries.
2.41 "Trust Fund" shall mean the total of contributions made by the
Participating Companies and Participants to the Trust pursuant to the
Plan, increased by profits, gains, income and recoveries received, and
decreased by losses, depreciation, benefits paid and expenses incurred in
the administration of the Trust. The Trust Fund includes all assets
acquired by investment and reinvestment which are held in the Trust by the
Trustee.
2.42 "Trustee" shall mean Fidelity Management Trust Company, trustee
of the Investment Trust, and any additional or successor Trustees. Except
as otherwise provided in the Trust Agreement and herein, the Trustee shall
be the "Named Fiduciary" referred to in Section 402(a) of ERISA with
respect to the control, management and disposition of the Trust Fund.
2.43 "Valuation Date" shall mean the close of each day that the New
York Stock Exchange is open for business.
2.44 "Vesting Year of Service" shall mean a Period of Service of
three hundred sixty-five (365) days, subject to the provisions of Sections
and hereof. Notwithstanding the preceding sentence, if a Participant has
a Reemployment Commencement Date, such Participant's Periods of Service
before and after such Reemployment Commencement Date which are required to
be taken into account under this Plan shall be determined on the basis of
the actual number of days in such aggregated Periods of Service.
Effective as of August 11, 1995, Arkansas Best Corporation acquired
WorldWay Corporation and certain of its subsidiaries ("WorldWay").
Notwithstanding any provision to the contrary, service with WorldWay prior
to August 11, 1995 shall not be recognized in determining Vesting Years of
Service. The Employment Commencement Date for the purposes of determining
Vesting Years of Service under the Plan of any person who became an
employee of an Affiliated Company as of August 11, 1995 as a result of
such acquisition and who subsequently becomes an Employee shall be
determined ignoring all service and hours of service accrued with WorldWay
prior to August 11, 1995.
2.45 Wherever appropriate, words used in the Plan in the singular may
mean the plural, the plural may mean the singular, and the masculine may
mean the feminine.
2.46 The expressions listed below shall have the meanings stated in
the Sections or Subsections hereof respectively indicated:
"Actual Contribution Percentage" ("ACP") Subsection
"Actual Deferral Percentage" ("ADP") Subsection
"Aggregated Family Group" Subsection
"Alternate Payee" Subsection
"Annual Additions" Section
"Borrower" Section
"Cash Transfers From Another Qualified Plan" Subsection
"Compensation" Section ;
Subsection
"Defined Benefit Plan" Subsection ;
Subsection
"Defined Benefit Plan Fraction" Subsection
"Defined Contribution Plan" Subsection ;
Subsection
"Defined Contribution Plan Fraction" Subsection
"Determination Date" Subsection
"Direct Rollover" Subsection
"Distributee" Subsection
"Eligible Employee" Subsection ;
Subsection
"Employer" Subsection
"Excess Aggregate Contributions" Subsection
"Excess Amounts" Subsection
"Excess Contributions" Subsection
"Excess Deferrals" Subsection
"Family Member" Subsection
"Highly Compensated Employee" Subsection
"Investment Funds" Subsection
"Key Employee" Subsection
"Key Employee Participant" Subsection
"Limitation Year" Subsection
"Limitation Year Compensation" Subsection ;
Subsection ;
Subsection
"Maximum Aggregate Amount" Subsection
"Named Fiduciary" Section ;
Section
"Non-Highly Compensated Employee" Subsection
"Non-Vested Amount" Subsection
"Permissive Aggregation Group" Subsection
"Permitted Purpose" Subsection
"Plan Administrator" Section
"Qualified Domestic Relations Order" Subsection
"Required Aggregation Group" Subsection
"Required Beginning Date" Section
"Retirement Plan" Subsection
"Rollover Account" Subsection
"Super Top Heavy Plan" Subsection
"Top Heavy Plan" Subsection
"Top Heavy Ratio" Subsection
"Total Compensation" Subsection
"Trust Agreement" Section
"Valuation Date" Subsection
"Valuation Period" Section
"Vested Amount" Subsection
SECTION 3
REQUIREMENTS FOR ELIGIBILITY
3.1 SERVICE. Each Eligible Employee who was eligible to participate
in the Plan as of September 30, 1995 shall continue to be eligible to
participate as of October 1, 1995. Each Eligible Employee shall be
eligible to become a Participant in the Plan as of any Entry Date. In the
event an Eligible Employee suffers a Termination of Employment prior to
the Entry Date upon which such Eligible Employee would have become a
Participant in the Plan, as the case may be, and such Eligible Employee is
reemployed by a Participating Company prior to a One-Year Period of
Severance, such Eligible Employee shall be eligible to become an Active
Participant in the Plan as of the date the Eligible Employee would have
attained a twelve (12) month Period of Service had such Termination of
Service not occurred and shall then be eligible to become an Active
Participant as of the Entry Date coincident with or next following his
date of rehire, provided such Eligible Employee is then still employed as
such.
3.2 SERVICE WITH A PREDECESSOR EMPLOYER. If the Plan had previously
been maintained by a predecessor of a Participating Company, whether a
corporation, partnership, sole proprietorship or other business entity,
any period of service with such predecessor shall be treated as a Period
of Service with a Participating Company. If the Plan had not been
maintained previously by a predecessor of a Participating Company, service
with such predecessor shall not be taken into account, except to the
extent required pursuant to regulations prescribed by the Secretary of the
Treasury or his delegate. Notwithstanding the foregoing, service by a
sole proprietor or partner shall not be counted as a Period of Service
with a Participating Company.
3.3 PERIODS OF SEVERANCE. For purposes of this Section , the
aggregate of all Periods of Service shall be taken into account. In the
event that a Participant has a Severance from Service Date and such
Participant is reemployed by a Participating Company, he shall resume
participation in the Plan effective as of his Reemployment Commencement
Date and shall be eligible to become an Active Participant in the Plan as
of the Entry Date coincident with or next following his Reemployment
Commencement Date.
3.4 CHANGE IN STATUS OF EMPLOYEE.
3.4.1 In the event an individual who is employed by a
Participating Company or an Affiliated Company but who is not defined
as an Eligible Employee becomes so defined as an Eligible Employee,
such individual shall be eligible to become a Participant as of the
date he becomes so defined, provided he has met the other requirements
for eligibility set forth in Section hereof and previously would have
become a Participant had he been defined as an Eligible Employee.
3.4.2 A Participant who ceases to be an Eligible Employee but
who does not suffer a Termination of Employment shall become a
suspended Participant. During the period of suspension, no amounts
shall be credited to the Participant's Accounts which are based on his
Compensation from and after the date of suspension. The suspended
Participant shall be entitled to benefits in accordance with the other
provisions of the Plan throughout the period during which he is
suspended.
3.4.3 In the event a Participant who ceased to be defined as an
Eligible Employee but who did not suffer a Termination of Employment,
subsequently becomes defined as an Employee again, such Participant
shall recommence participation without regard to the limitations
imposed by Subsection hereof, as of the date he became so redefined,
but shall not be eligible to become an Active Participant until the
Entry Date coinciding with or next following the date of becoming so
redefined as an Eligible Employee.
SECTION 4
ACTIVE PARTICIPATION IN THE PLAN
4.1 ACTIVE PARTICIPATION. Any Employee eligible to become a
Participant in the Plan in accordance with Section hereof, may become an
Active Participant in the Plan by electing no later than the date
determined by the Administrative Committee, pursuant to a uniform and
nondiscriminatory procedure established by the Administrative Committee,
to have made on his behalf Before-Tax Deposits in accordance with the
provisions of Section . Any Participant in the Plan who does not elect to
have made on his behalf Before-Tax Deposits at the time he becomes a
Participant in the Plan shall be and remain an Inactive Participant unless
and until he elects to have made on his behalf Before-Tax Deposits as
provided in Section .
4.2 ROLLOVER ACCOUNT.
4.2.1 With the consent of the Administrative Committee, Cash
Transfers From Another Qualified Plan may be received by the Trustee
on behalf of any Employee or Participant. Such amounts shall be
credited to a separate Account herein referred to as a "Rollover
Account." However, the transfer of such an amount to the Trustee will
not cause such transferring Employee to be eligible to participate in
the Plan prior to the time specified in Section and Section . Prior
to the time such Employee becomes eligible to participate in the Plan,
the Employee shall be treated as a Participant solely with respect to
the amount in his or her Rollover Account.
4.2.2 Cash credited to a Rollover Account (i) shall be held by
the Trustee pursuant to the provisions of this Plan, (ii) shall be
fully vested at all times and shall not be subject to forfeiture for
any reason, and (iii) shall be invested at the direction of the
Employee in accordance with the provisions of Section , and (iv) shall
be distributed to the Employee, Participant or Beneficiary at such
time and in the same manner as provided in Section hereof for the
distribution of a Participant's Accounts under the Plan; and may be
withdrawn in accordance with Section .
4.2.3 For purposes of this Section, the term "Cash Transfers
From Another Qualified Plan" means amounts which are properly
characterized as a qualifying rollover distribution received by a
person who is now an Employee, from another qualified plan, which
amounts are eligible for tax-free rollover treatment and which are
transferred in cash by the Employee to the Trustee of this Plan within
sixty (60) days following receipt thereof or are transferred in cash
directly from such qualified plan to this Plan; amounts transferred in
cash to this Plan from an individual retirement account, provided that
the individual retirement account contains only assets previously
distributed from a qualified plan, which amounts were eligible for
tax-free rollover treatment, and which amounts were deposited in such
individual retirement account within sixty (60) days of receipt
thereof, and amounts distributed to a person who is now an Employee
from an individual retirement account meeting the requirements of this
Subsection , and transferred in cash by the Employee to this Plan
within sixty (60) days of receipt thereof, from such individual
retirement account. Prior to accepting any cash transfers to which
this Section applies, the Administrative Committee may require the
Employee to establish that the amounts to be transferred in cash to
this Plan meet the requirements of this Section and may also require
that the Employee provide an opinion of counsel satisfactory to the
Administrative Committee that the amounts to be transferred meet the
requirements of this Section and will not jeopardize the tax exempt
status of this Plan or the Trust Fund for any reason (including, but
not limited to, the failure of the amount to be excluded from the
definition of annual addition in Section 415(c)(2) of the Code;
thereby causing the annual addition to the Account to exceed the
permissible limits of Section 415 of the Code, or to create adverse
tax consequences to a Participating Company.
SECTION 5
ADMINISTRATION OF THE PLAN
5.1 RESPONSIBILITY FOR ADMINISTRATION OF THE PLAN. The
Administrative Committee shall be responsible for the management,
operation and administration of the Plan.
5.2 APPOINTMENT OF ADMINISTRATIVE COMMITTEE. The Board of Directors
of the Sponsoring Company shall appoint an Administrative Committee
consisting of at least three (3) persons each of whom shall be employees
of a Participating or Affiliated Company. An appropriate of the
Sponsoring Company shall certify to the Trustee the names of the members
of the Administrative Committee. A member of the Administrative Committee
shall automatically cease to be a member upon termination of employment
with the Participating Company or Affiliated Company. Any member of the
Administrative Committee may resign upon ten (10) days' prior written
notice to an appropriate officer of the Sponsoring Company. The Board of
Directors of the Sponsoring Company shall be authorized to remove any
member of the Administrative Committee at any time and in its sole
discretion to appoint a successor whenever a vacancy on the Administrative
Committee occurs.
5.3 RESPONSIBILITY FOR ADMINISTRATION OF THE TRUST FUND. Except as
otherwise provided herein, the Trustee shall be responsible for the
management and investment of the Trust Fund in accordance with the
provisions of the Trust Agreement.
5.4 DELEGATION OF POWERS. The Administrative Committee may appoint
such assistants or representatives as it deems necessary for the effective
exercise of its duties in administering the Plan and Trust. The
Administrative Committee may delegate to such assistants and
representatives any powers and duties, both ministerial and discretionary,
as it deems expedient or appropriate.
5.5 RECORDS. All acts and determinations with respect to the
administration of the Plan made by the Administrative Committee and any
assistants or representatives appointed by it shall be duly recorded by
the Administrative Committee or by the assistant or representative
appointed by it to keep such records. All records, together with such
other documents as may be necessary for the administration of the Plan,
shall be preserved in the custody of the Administrative Committee or the
assistants or representatives appointed by it.
5.6 GENERAL ADMINISTRATIVE POWERS. The Administrative Committee is
authorized to take such actions as may be necessary to carry out the
provisions and purposes of the Plan and shall have the authority to
control and manage the operation and administration of the Plan in
accordance with its terms. In order to effectuate the purposes of the
Plan, the Administrative Committee shall have the discretionary power to
construe and interpret the Plan, to supply any omissions therein, to
reconcile and correct any errors or inconsistencies, to decide any
questions in the administration and application of the Plan, and to make
equitable adjustments for any mistakes or errors made in the
administration of the Plan. All such actions or determinations made by
the Administrative Committee, and the application of rules and regulations
to a particular case or issue by the Administrative Committee, in good
faith, shall not be subject to review by anyone, but shall be final,
binding and conclusive on all persons ever interested hereunder. In
construing the Plan and in exercising its power under provisions requiring
Administrative Committee approval, the Administrative Committee shall
attempt to ascertain the purpose of the provisions in question and when
such purpose is known or reasonably ascertainable, such purpose shall be
given effect to the extent feasible. Likewise, the Administrative
Committee is authorized to determine all questions with respect to the
individual rights of all Participants and their Beneficiaries and
Alternate Payees under this Plan, including, but not limited to, all
issues with respect to eligibility, Compensation, service, valuation of
Accounts, allocation of contributions and Trust Fund earnings, retirement,
Total and Permanent Disability, or Termination of Employment, eligibility
for loans and hardship withdrawals, and shall direct the Trustee
concerning the allocation, payment and distribution of all funds held in
trust for purposes of the Plan. The Administrative Committee shall
establish investment objectives and monitor, or cause to be monitored, the
investment performance of the Trustee or any Investment Manager which may
be appointed with respect to any assets of the Plan, and shall make such
reports and give such recommendations to the Board as it requests with
respect thereto.
5.7 APPOINTMENT OF PROFESSIONAL ASSISTANTS AND INVESTMENT MANAGER.
The Administrative Committee may engage accountants, attorneys, physicians
and such other personnel as it deems necessary or advisable, including in
its sole discretion, one or more Investment Managers to manage (including
the power to acquire or dispose of) all or any of the assets of the Trust.
The functions of any such persons engaged by the Administrative Committee
shall be limited to the specific services and duties for which they are
engaged, and such persons shall have no other duties, obligations or
responsibilities under the Plan or Trust. Such persons shall exercise no
discretionary authority or discretionary control respecting the management
of the Plan, and, unless engaged specifically as Investment Manager, shall
exercise no authority or control respecting management or disposition of
the assets of the Trust. The fees and costs of such services are an
administrative expense of the Plan to be paid out of the Trust Fund,
except to the extent that such fees and costs are paid by any of the
Participating Companies.
5.8 ACTIONS OF THE ADMINISTRATIVE COMMITTEE.
5.8.1 A majority of the members of the Administrative Committee
shall constitute a quorum for the transaction of business, and shall
have full power to act hereunder. Action by the Administrative
Committee shall be official if approved by a vote of a majority of the
members present at any official meeting. The Administrative Committee
may, without a meeting, authorize or approve any action by written
instrument signed by a majority of all of the members. Any written
memorandum signed by the Chairman, or any other member of the
Administrative Committee, or by any other person duly authorized by
the Administrative Committee to act, in respect of the subject matter
of the memorandum, shall have the same force and effect as a formal
resolution adopted in open meeting. The Administrative Committee
shall give to the Trustee any order, direction, consent, certificate
or advice required or permitted under the terms of the Trust
Agreement, and the Trustee shall be entitled to rely on, as evidencing
the action of the Administrative Committee, any instrument delivered
to the Trustee when: (i) if a resolution, it is certified by the
Chairman and Secretary, or (ii) if a memorandum, it is signed by a
majority of all of the members of the Administrative Committee, or by
a person who shall have been authorized to act for the Administrative
Committee in respect of the subject matter thereof.
5.8.2 A member of the Administrative Committee may not vote or
decide upon any matter relating solely to him or vote in any case in
which his individual right or claim to any benefit under the Plan is
specifically involved. If, in any case in which an Administrative
Committee member is so disqualified to act, the remaining members then
present cannot, by majority vote, act or decide, the Board will
appoint a temporary substitute member to exercise all of the powers of
the disqualified member concerning the matter in which he is
disqualified.
5.8.3 The Administrative Committee shall maintain minutes of its
meetings and written records of its actions, and as long as such
minutes and written records are maintained, members may participate
and hold a meeting of the Administrative Committee by means of
conference telephone or similar communications equipment which permits
all persons participating in the meeting to hear each other.
Participation in such a meeting constitutes presence in person at such
meeting.
5.9 DIRECTIVES OF THE ADMINISTRATIVE COMMITTEE. Directives of the
Administrative Committee to the Trustee shall be delivered in writing,
signed by an appropriate member of the Administrative Committee.
5.10 DISCRETIONARY ACTS. Any discretionary actions of the
Administrative Committee or any Participating Company with respect to the
administration of the Plan shall be made in a manner which does not
discriminate in favor of Highly Compensated Employees. In the event the
Administrative Committee exercises any discretionary authority under the
Plan with respect to a Participant who is a member of the Administrative
Committee, such discretionary authority shall be exercised solely and
exclusively by those members of the Administrative Committee other than
such Participant, or, if such Participant is the sole member of the
Administrative Committee, such discretionary authority shall be exercised
solely and exclusively by the Board of Directors of the Sponsoring
Company.
5.11 RESPONSIBILITY OF FIDUCIARIES. The members of the
Administrative Committee and their assistants and representatives (other
than any Investment Manager) shall be free from all liability for their
acts and conduct in the administration of the Plan and Trust except for
acts of willful misconduct or gross negligence; provided, however, that
the foregoing shall not relieve any of them from any responsibility or
liability for any responsibility, obligation or duty that they may have
pursuant to ERISA.
5.12 INDEMNITY BY PARTICIPATING COMPANIES. In the event and to the
extent not insured against under any contract of insurance with an
insurance company, the Participating Companies shall indemnify and hold
harmless each "Indemnified Person," as defined below, against any and all
claims, demands, suits, proceedings, losses, damages, interest, penalties,
expenses (specifically including, but not limited to counsel fees to the
extent approved by the Board of Directors of the Sponsoring Company or
otherwise provided by law, court costs and other reasonable expenses of
litigation), and liability of every kind, including amounts paid in
settlement, with the approval of the Board of Directors of the Sponsoring
Company, arising from any action or cause of action related to the
Indemnified Person's act or acts or failure to act. Such indemnity shall
apply regardless of whether such claims, demands, suits, proceedings,
losses, damages, interest, penalties, expenses, and liability arise in
whole or in part from (i) the negligence or other fault of the Indemnified
Person, except when the same is judicially determined to be due to gross
negligence, fraud, recklessness, a willful or intentional misconduct of
such Indemnified Person or (ii) from the imposition on such Indemnified
Person of any penalties imposed by the Secretary of Labor, pursuant to
Section 502(l) of ERISA, relating to any breaches of fiduciary
responsibility under Part 4 of Title I of ERISA. "Indemnified Person"
shall mean each member of the Board of Directors of the Sponsoring
Company, and the Administrative Committee and each other Employee who is
allocated fiduciary responsibility hereunder.
5.13 PAYMENT OF FEES AND EXPENSES. The Trustee, the members of the
Administrative Committee and their assistants and representatives shall be
entitled to payment or reimbursement for all reasonable costs, charges and
expenses incurred in the administration of the Plan and Trust, including,
but not limited to, reasonable fees for accounting, legal and other
services rendered, to the extent incurred by the Trustee, the members of
the Administrative Committee or their assistants and representatives in
the course of performance of their duties under the Plan and the Trust.
All costs, charges and expenses incurred in the administration of the Plan
and the Trust shall be paid from the Trust Fund except to the extent paid
by the Participating Companies or any Affiliated Company. Notwithstanding
any other provision of the Plan or Trust, no person who is a "disqualified
person," within the meaning of Section 4975(e)(2) of the Code and who
receives full-time pay from any Participating Company shall receive
compensation from the Trust Fund, except for payment or reimbursement of
expenses properly and actually incurred.
5.14 PLAN ADMINISTRATOR. The Administrative Committee shall be the
"Plan Administrator" (as defined in Section 3(16)(A) of ERISA) of the
Plan, and shall be responsible for the performance of all reporting and
disclosure obligations under ERISA and all other obligations required or
permitted to be performed by the Plan Administrator under ERISA and not
otherwise delegated to other parties under the terms of the Plan or the
Trust Agreement. The Plan Administrator shall be the designated agent for
service of legal process.
5.15 ALLOCATION AND DELEGATION OF ADMINISTRATIVE COMMITTEE
RESPONSIBILITIES. The Administrative Committee may upon approval of a
majority of the members of the Administrative Committee, (i) allocate
among any of the members of the Administrative Committee any of the
responsibilities of the Administrative Committee under the Plan, or (ii)
designate any person, firm or corporation that is not a member of the
Administrative Committee to carry out any of the responsibilities of the
Administrative Committee under the Plan. Any such allocation or
designation shall be made pursuant to a written instrument executed by a
majority of the members of the Administrative Committee.
SECTION 6
DEPOSITS
6.1 COMPANY MATCHING DEPOSITS.
6.1.1 Each Participating Company shall make a Company Matching
Deposit to the Trust for each calendar month in an amount equal to a
specified percentage of the Basic Before-Tax Deposits, if any, made by
such Participating Company during such calendar month on behalf of
each Active Participant employed by such Participating Company during
such calendar month. Any change in the specified percentage of the
Basic Before-Tax Deposits to be matched for each Plan Year shall, no
later than December 1 of the preceding Plan Year, be determined by the
Board of Directors of the Sponsoring Company and be communicated to
all Participants and all Employees who will be eligible to become
Participants in the Plan during such succeeding Plan Year. In
addition, such specified percentage may be increased by the Board of
Directors of the Sponsoring Company at any time during the Plan Year.
Until changed by the Board of Directors of the Sponsoring Company, the
Company Matching Contribution shall be as set forth in the table
below.
VESTING YEARS OF SERVICE * RATE OF MATCHING CONTRIBUTION
1 500%
2 400%
3 300%
4 200%
5 and beyond 100%
* NOTE: VESTING YEARS OF SERVICE DISREGARDED UNDER SECTION
SHALL NOT BE TAKEN INTO ACCOUNT FOR THIS PURPOSE EITHER.
6.1.2 In addition to its Company Matching Deposits under
Subsection above, each Participating Company shall make such
additional Company Matching Deposits for each Plan Year as the Board
of Directors of the Sponsoring Company, in its discretion, shall
determine. Such additional deposits shall equal a specified
percentage (which may be zero) of the Basic Before-Tax Deposits for
the Plan Year of each Active Participant employed by such
Participating Company as of the last day of such Plan Year. The Board
shall determine the amount of any such additional Company Matching
Deposits, and direct the Participating Companies to deposit such
amounts, no later than the latest date prescribed by Section below.
6.1.3 Notwithstanding the foregoing, in no event shall any
Company Matching Deposits, when added to any Before-Tax Deposits,
exceed the maximum permissible contribution under Section 404(a) of
the Code. All contributions of the Participating Companies hereunder
are conditioned on their deductibility under Section 404(a) of the
Code. Company Matching Deposits shall be made in the form of cash.
6.2 BASIC AND SUPPLEMENTAL BEFORE-TAX DEPOSITS.
6.2.1 Each Participant may have contributed on his behalf to the
Trust Fund each month by salary reduction an amount (the "Basic
Before-Tax Deposit") which shall be equal to one percent (1%), two
percent (2%), three percent (3%), or four percent (4%) of such
Participant's Compensation for such month, as such Participant shall
elect on the written authorization form provided for herein. Any
Active Participant who elects to have made on his behalf Basic Before-
Tax Deposits of four percent (4%) of his Compensation for each month
may also elect to have contributed on his behalf to the Trust Fund
each month by salary reduction an additional amount ("Supplemental
Before- Tax Deposits") equal to from one percent (1%) to eleven
percent (11%) of his compensation; provided, however, such percentage
must be a whole percent. Any designated Before-Tax Deposits (whether
Basic or Supplemental Deposits or both) shall qualify as elective
contributions under Section 401(k) of the Code and the regulations
thereunder.
6.2.2 The percentage rate of Basic and Supplemental Before-Tax
Deposits, if any, which each Active Participant elects and any changes
thereto shall be made on a written form provided by and filed with the
Administrative Committee. The Administrative Committee shall
establish and communicate to Employees uniform and nondiscriminatory
procedures for the election of percentage rates of Basic and
Supplemental Before-Tax Deposits, including procedures regarding the
effective date of such election, and may change said procedures at
such times and in such manner as the Administrative Committee may
determine to be necessary or desirable. Any such change in procedures
shall be communicated to Employees.
6.2.3 An Active Participant's Basic and Supplemental Before-Tax
Deposits shall be credited to his appropriate Account under the Plan.
Any amounts of Basic or Supplemental Before-Tax Deposits properly
credited to a Participant's Accounts shall, for all purposes and in
all respects, be fully vested and nonforfeitable.
6.3 DATE OF PAYMENT OF DEPOSITS. A Participating Company shall make
its Company Matching Deposits for a particular period on or before the
last date, including any extensions thereof, for filing its federal income
tax return for its taxable year ending with or after the last day of the
Plan Year in which such period falls or at such earlier time and in such
amount as directed by the Administrative Committee for the purpose of
paying a Participant taking a final distribution of the Company Match
allocated to such Participant. A Participating Company shall make all
Basic and Supplemental Before-Tax Deposits as provided for in Section
hereof to the Trust Fund as soon as administratively practical following
the deduction of such amounts from Active Participants' pay.
6.4 SPECIAL LIMITATIONS ON BEFORE-TAX DEPOSITS. The limitations
described in this Section shall be determined in accordance with Code
Sections 401(k) and 402(g) and regulations thereunder, which are
incorporated by reference to the extent not expressly stated below.
6.4.1 Notwithstanding any other provision of this Plan, in no
event shall a Participating Company make Before-Tax Deposits in any
Plan Year if such contribution would cause the "Actual Deferral
Percentage" (or "ADP") of Highly Compensated Employees to exceed the
greater of the limitations indicated below:
6.4.1.1 One hundred twenty-five percent (125%) of the ADP
for all Non-Highly Compensated Employees; or
6.4.1.2 The lesser of (i) the sum of the ADP for all Non-
Highly Compensated Employees plus two percent (2%), or (ii) two
hundred percent (200%) of the ADP for all Non-Highly Compensated
Employees.
Multiple use of the alternative method described in this
paragraph and in Code Section 401(m)(9)(A) will be prevented
through the pro rata reduction of both the actual deferral
percentage and the actual contribution percentage of any Highly
Compensated Employee eligible to make Before-Tax Deposits
pursuant to Section and who is eligible to make employee
contributions or to receive Company Matching Deposits under this
Plan. Any reduction under this paragraph will be made in
accordance with Sections and hereof and Code Section 401(m) and
Treasury Regulation Sections 1.401(m)-1(b) and 1.401(m)-2, the
provisions of which are incorporated herein by reference.
6.4.2 The Administrative Committee may, to the extent necessary
to conform the Before-Tax Deposits to the above limitations, reduce
prospectively, the percentage rates or dollar amounts of Before-Tax
Deposits to be made on behalf of Highly Compensated Employees. Such
prospective reductions may thereafter be adjusted by the
Administrative Committee, upon due notice to the affected
Participants, at any time thereafter to increase the elected
percentage rates for those Highly Compensated Employees whose rates or
amounts were previously reduced in accordance with this Subsection if
the Administrative Committee shall determine that such increase will
not cause the limits set forth in Subsection to be exceeded for the
Plan Year. Any decrease of a Participant's Before-Tax Deposits under
this Subsection shall be in addition to and not otherwise affect such
Participant's rights to change or suspend contributions.
6.4.3 In the event that following the end of a Plan Year, it is
determined by the Administrative Committee that the Before-Tax
Deposits for Highly Compensated Employees exceed the limitations of
Subsection , then the amount in excess of such limitation ("Excess
Contributions") (and the income thereon) shall be distributed to the
Highly Compensated Employees, notwithstanding any Plan provision to
the contrary, within the twelve (12) month period following the end of
the Plan Year in which such Excess Contributions occurred. In
distributing Excess Contributions, the following rules shall apply.
The Excess Contributions shall first be applied to reduce the
percentage rate elected by all those Highly Compensated Employees who
have elected the highest percentage rate of Before-Tax Deposits, shall
then be applied to reduce the percentage rate elected by all those
Highly Compensated Employees (including those Employees whose
percentage rate or dollar amount was previously reduced) whose elected
percentage rate is at the next highest percentage rate of Before-Tax
Deposits and shall thereafter continue to be applied to the extent
necessary in like manner in descending order on the basis of elected
percentage rates until the reductions enable the Before-Tax Deposits
to conform to the limitations of Subsection . The amount of Excess
Contributions to be distributed to each affected Highly Compensated
Employee is equal to the Before-Tax Deposits on behalf of such
Employee (prior to reduction of the Excess Contributions) less the
product of such Employee's ADP (after reduction of the Excess
Contributions) times such Participant's Total Compensation, rounded to
the nearest one cent ($.01).
The amount of Excess Contributions that may be distributed under
this Subsection with respect to a Highly Compensated Employee for a
Plan Year shall be reduced by any Excess Deferrals (as defined in
Section ) attributable to such Plan Year previously distributed to the
Employee. In the event a distribution of Before-Tax Deposits
constitutes a distribution of Excess Contributions and a distribution
of Excess Deferrals pursuant to Section , the amounts distributed
shall be treated as a simultaneous distribution of both Excess
Contributions and Excess Deferrals.
6.4.4 In determining the amount of income or loss allocable to
Excess Contributions which are being distributed, the following rules
shall apply:
6.4.4.1 The income or loss allocable to Excess
Contributions for the Plan Year in which the contributions are
made is the income for the Plan Year allocable to Before-Tax
Deposits and amounts treated as Before-Tax Deposits with respect
to the Highly Compensated Employee, multiplied by a fraction, the
numerator of which is the amount of Excess Contributions made on
behalf of the Highly Compensated Employee for the Plan Year and
the denominator of which is the combined balance of the aggregate
of the Participant's Basic Before-Tax Deposit Account and
Supplemental Before-Tax Deposit Account as of the end of the Plan
Year.
6.4.4.2 No income or loss shall be allocable to the Excess
Contributions for the period between the end of the Plan Year and
the date of the distribution.
For purposes of this Subsection , the income of the Plan
shall mean all earnings, gains and losses, computed in accordance
with the provisions of Section .
6.4.5 Notwithstanding anything to the contrary contained herein,
in the case of a Highly Compensated Employee who is part of an
Aggregated Family Group, as defined in Subsection , the following
rules shall apply:
6.4.5.1 The ADP for the Aggregated Family Group (which
shall be treated as a single Highly Compensated Employee) shall
be the ADP determined by aggregating the Before-Tax Deposits and
Total Compensation of all Family Members, as defined in
Subsection , who are Eligible Employees. Otherwise, the Before-
Tax Deposits and Total Compensation of all Family Members are
disregarded for purposes of determining the ADP for the Highly-
Compensated Employees, as a group, and the Non-Highly Compensated
Employees as a group.
6.4.5.2 If the ADP of the Aggregated Family Group as
determined under Subsection above exceeds the limitations of
Subsection , the ADP shall be reduced as provided in Subsection
in order to comply with the limitations of Subsection , and
Excess Contributions shall be allocated among all of the Family
Members in proportion to each such Family Member's Before-Tax
Deposits.
6.4.6 In addition to or in lieu of the above procedures to
conform Before-Tax Deposits to the limitations of Subsection , the
Sponsoring Company may, in its sole discretion, cause the
Participating Companies to contribute on behalf of any Non-highly
Compensated Employee additional contributions (which shall be treated
as Supplemental Before-Tax Deposits) to the extent necessary to insure
that the limitations of Subsection are met. Such additional
contributions shall be immediately fully vested and subject to the
distribution restrictions of Section hereof, applicable to Before-Tax
Deposits. Such additional contributions shall be treated as Before-
Tax Deposits only if the requirements of Treasury Regulation Section
1.401(k)-l(b)(5) (or any successor thereto) are met.
6.4.7 Notwithstanding anything herein to the contrary, in no
event shall the Participating Employer make Before-Tax Deposits in any
calendar year on behalf of any Participant if such contribution would
cause the Before-Tax Deposits for such Participant for the calendar
year to exceed Seven Thousand Dollars ($7,000), or such amount as
adjusted by the Secretary of the Treasury or his delegate at the same
time and in the same manner as under Code Section 415(d). Should any
Before-Tax Deposits made to the Plan by the Participating Employer on
behalf of a Participant exceed Seven Thousand Dollars ($7,000), as
adjusted by the Secretary of the Treasury or his delegate at the same
time and in the same manner as under Code Section 415(d) ("Excess
Deferrals"), the Administrative Committee may distribute such Excess
Deferrals (and income thereon) to such Participant, notwithstanding
any Plan provision to the contrary, by the April 15 next following the
calendar year in which such Excess Deferral is made. The
Administrative Committee is authorized to establish such rules as may
be necessary to provide for distribution of Excess Deferrals (and
income thereon) caused by an individual's participation in more than
one cash or deferred arrangement where the total deferrals exceed the
amount referred to above and the individual allocates part of the
aggregate Excess Deferral to this Plan as permitted by law.
In determining the amount of income or loss allocable to Excess
Deferrals, the following rules shall apply:
6.4.7.1 The income or loss allocable to Excess Deferrals
for the calendar year in which the deferrals are made is the
income or loss for the Plan Year allocable to Before-Tax Deposits
for the Participant multiplied by a fraction, the numerator of
which is the amount of Excess Deferrals made on behalf of the
Participant for the Plan Year and the denominator of which is the
aggregate balance of the Participant's Basic Before-Tax Deposit
Account and Supplemental Before-Tax Deposit Account as of the end
of the Plan Year.
6.4.7.2 No income or loss shall be allocable to the Excess
Deferrals for the period between the end of the Plan Year and the
date of the distribution.
For purposes of this Subsection , the income or loss of the
Plan shall mean all earnings, gains and losses computed in
accordance with the provisions of Section .
The amount of Excess Deferrals that may be distributed under
this Subsection with respect to a Highly Compensated Employee
for a calendar year shall be reduced by any Excess Contributions
previously distributed to the Employee during such Plan Year. In
the event a distribution of Before-Tax Deposits constitutes a
distribution of Excess Contributions pursuant to Subsection and
a distribution of Excess Deferrals pursuant to this Subsection ,
the amounts distributed shall be treated as a simultaneous
distribution of both Excess Contributions and Excess Deferrals.
6.4.8 For purposes of this Section and Section , the following
terms shall have the following meanings:
6.4.8.1 "Actual Deferral Percentage" (or "ADP") shall mean
for the Highly Compensated Employees, as a group, and for the
Non-Highly Compensated Employees, as a group, the average of the
ratios (calculated separately for each Employee in such group) of
the Before-Tax Deposits, if any, made on behalf of each such
Employee for each Plan Year, to the Employee's Total
Compensation, as defined in Subsection , for such Plan Year. ADP
for each group, and the ratio of Before-Tax Contributions to
Total Compensation for each individual, shall be calculated to
the nearest 100th of one percent.
In calculating ADP, Before-Tax Deposits shall be taken into
account for a Plan Year only, if such Before-Tax Deposits: (i)
relate to Total Compensation that would have been received by the
Employee during such Plan Year (but for the salary reduction
election) or is attributable to services performed by the
Employee during such Plan Year and would have been received by
the Employee within two and one-half (2- 1/2 ) months after the
close of such Plan Year (but for the salary reduction agreement);
and (ii) are allocated to the Employee during such Plan Year.
Before-Tax Deposits are treated as allocated as of a particular
date during a Plan Year if allocation of such contribution is not
contingent on participation in the Plan or the performance of
services after such date and such contribution is paid to the
Trust not later than twelve (12) months after the close of such
Plan Year.
In calculating the ADP of a Highly Compensated Employee who
participates in more than one plan maintained by an Affiliated
Company, all elective deferrals (as defined in Section 401(m)(4)
of the Code) of such Employee shall be aggregated for purposes of
determining such percentage.
In calculating ADP, all elective deferrals (as defined in
Section 401(m)(4) of the Code) to any plan required to be
aggregated with the Plan for purposes of Code Section 401(a)(4)
or 410(b) shall be treated as if made under the Plan. If the
Plan is permissively aggregated with another plan in order to
comply with the limitations of Subsection , such aggregated plans
must also meet the requirements of Code Sections 401(a)(4) and
410(b) as a single plan.
6.4.8.2 "Highly Compensated Employee" shall mean any
Eligible Employee who is a highly compensated employee as defined
in Code Section 414(q) and the regulations thereunder.
Generally, any Eligible Employee is considered a Highly
Compensated Employee if such Eligible Employee:
6.4.8.2.1 was at any time during the current Plan Year
or the prior Plan Year, a "five percent owner" as defined in
Section 416(i)(1)(B)(i) of the Code, with respect to a
Participating Company;
6.4.8.2.2 received Limitation Year Compensation from a
Participating Company in excess of Seventy-Five Thousand
Dollars ($75,000) as adjusted by the Secretary of Treasury
pursuant to Section 414(q)(1) of the Code during the prior
Plan Year;
6.4.8.2.3 received Limitation Year Compensation from a
Participating Company in excess of Fifty Thousand Dollars
($50,000) as adjusted by the Secretary of Treasury pursuant
to Section 414(q)(1) of the Code, and was in the top-paid
group of Employees during the prior Plan Year. An Employee
is in the top-paid group of Employees for any Plan Year if
such Employee is in the group consisting of the top twenty
percent (20%) of the Employees when ranked on the basis of
Limitation Year Compensation paid during the Plan Year. For
purposes of determining the number of Employees in the top-
paid group, Employees who have not completed six (6) months
of service, normally work less than seventeen and one-half
(17- 1/2 ) hours per week, normally work during six (6) or
less months per year, have not attained the age of twenty-
one (21), are nonresident aliens with no earned income from
sources within the United States (within the meaning of
Section 861(a)(3) of the Code), or are included in a unit of
employees covered by a collective bargaining agreement
(except to the extent provided in regulations), shall not be
included;
6.4.8.2.4 is an officer of a Participating Company who
received Limitation Year Compensation for a Plan Year in
excess of fifty percent (50%) of the amount in effect under
Code Section 415(b)(1)(A) for such Plan Year (if no officer
of a Participating Company has Limitation Year Compensation
in excess of such amount, the officer having the highest
Limitation Year Compensation for such Plan Year shall be
treated as an officer). For purposes of this Subsection,
not more than fifty (50) Employees (or, if less, the greater
of three (3) Employees or ten percent (10%) of Employees)
shall be treated as officers.
6.4.8.2.5 An Eligible Employee who is not described in
, or above for the immediately preceding Plan Year shall
only be considered a Highly Compensated Employee if he is
among the 100 highest paid Employees during the current Plan
Year.
For purposes of this Section and Section : (i) the
determination of "Limitation Year Compensation" shall include
amounts deferred pursuant to Code Sections 125, 401(k) and
403(b), (ii) Limitation Year Compensation shall include
compensation paid by any employer required to be aggregated with
a Participating Company under Section 414(b), (c), (m) or (o) of
the Code, and (iii) a Former Employee who is an Eligible Employee
shall be treated as a Highly Compensated Employee if such Former
Employee was a Highly Compensated Employee when he separated from
service with the Participating Company or was a Highly
Compensated Employee at any time after attaining age fifty-five
(55). "Former Employee" shall mean a person who has been an
Employee, but who ceased to be an Employee for any reason and
later returned to employment with the Participating Company.
6.4.8.3 "Non-Highly Compensated Employee" shall mean each
Eligible Employee who is not a Highly Compensated Employee.
6.4.8.4 "Eligible Employee" shall mean, each Eligible
Employee who has completed the service requirements of Section
and is eligible to become a Participant and each other Employee
who is an Active Participant.
6.4.8.5 "Total Compensation" shall mean compensation
received by an Eligible Employee for the Plan Year in question
from an Affiliated Company which is required to be reported as
wages for income tax purposes on the Eligible Employee's Form W-2
plus, if elected by the Administrative Committee in accordance
with Treasury Regulations, any amount that is not currently
includable in the Eligible Employee's gross income by reason of a
deferral pursuant to Sections 125 and 401(k) of the Code. In the
event an Employee begins, resumes or ceases to be an Eligible
Employee during a Plan Year, the amount of the Employee's Total
Compensation for only the portion of the Plan Year in which he
was an Eligible Employee shall be taken into account for purposes
of Sections and . Effective January 1, 1989, Total Compensation
shall be limited to Two Hundred Thousand Dollars ($200,000) or
such higher amount to which such amount shall be adjusted by the
Secretary of the Treasury or his delegate pursuant to Section
401(a)(17) of the Code. Effective January 1, 1994, Total
Compensation shall be limited to One Hundred Fifty Thousand
Dollars ($150,000) or such higher amount to which such amount
shall be adjusted by the Secretary of the Treasury or his
delegate pursuant to Section 401(a)(17) of the Code.
6.4.8.6 "Aggregated Family Group" shall mean a family
group required to be aggregated under Code Section 414(q)(6) and
regulations thereunder and shall include any member of the
family, as defined in Code Section 414(q)(6) and regulations
thereunder, of either (i) a five percent (5%) owner, or (ii) one
of the ten (10) Highly Compensated Employees paid the greatest
Limitation Year Compensation for the current Plan Year. Any
spouse, lineal ascendant, lineal descendent, spouse of a lineal
ascendant, or spouse of a lineal descendent of such a Highly
Compensated Employee (a "Family Member") shall be included in the
"Aggregated Family Group."
6.4.9 Notwithstanding anything to the contrary in the Plan, to
the extent a Participant's Before-Tax Deposits for a Plan Year are
reduced and refunded to him pursuant to Subsection or Subsection ,
such refunded amounts shall be disregarded in determining the amount
of Company Matching Deposits to which a Participant is entitled for
the Plan Year.
6.5 SPECIAL LIMITATION ON COMPANY MATCHING DEPOSITS. This Section
is effective July 1, 1988. The limitations described in this Section
shall be determined in accordance with the applicable sections of the Code
and regulations thereunder. Notwithstanding anything to the contrary in
this Section or in Section , the limitations of Section or shall be
reduced to the extent required by Treasury Regulation Section 1.401(m)-2
(or any successor thereto).
6.5.1 Notwithstanding any other provision of this Plan, the
"Actual Contribution Percentage" (or "ACP") of Company Matching
Deposits made to this Plan for Highly Compensated Employees during any
Plan Year shall not exceed the greater of the limitations indicated
below:
6.5.1.1 One hundred twenty-five percent (125%) of the ACP
for all Non-Highly Compensated Employees; or
6.5.1.2 The lesser of (i) the sum of the ACP for all Non-
Highly Compensated Employees plus two percent (2%), or (ii) two
hundred percent (200%) of the ACP for all Non-Highly Compensated
Employees. However, multiple use of the alternative method
described in this paragraph and in Code Section 401(m)(9)(A) will
be prevented through the pro rata reduction of both the actual
deferral percentage and the actual contribution percentage of any
Highly Compensated Employee eligible to make Before-Tax Deposits
pursuant to Section and who is eligible to make employee
contributions or to receive Company Matching Deposits under this
Plan. Any reduction under this paragraph will be made in
accordance with Sections and hereof and Code Section 401(m) and
Treasury Regulation Sections 1.401(m)-1(b) and 1.401(m)-2, the
provisions of which are incorporated herein by reference.
6.5.2 The Administrative Committee shall, to the extent
necessary to conform to the limitations of Subsection , reduce
prospectively, the percentage rates or dollar amounts of Company
Matching Deposits to be made on behalf of Highly Compensated
Employees. Such prospective reductions may thereafter be adjusted by
the Administrative Committee, upon due notice to the affected
Participants, at any time thereafter to increase the elected
percentage rates for those Highly Compensated Employees whose rates
were previously reduced in accordance with this subsection if the
Administrative Committee shall determine that such increase will not
cause the limits set forth in this subsection to be exceeded for the
Plan Year.
6.5.3 In the event that following the end of the Plan Year, it
is determined by the Administrative Committee that the Company
Matching Deposits for Highly Compensated Employees exceed the
limitations of Subsection , then the amount in excess of such
limitation ("Excess Aggregate Contributions") (and income thereon)
shall be distributed to the Highly Compensated Employees who are one
hundred percent (100%) vested in such amounts, notwithstanding any
Plan provision to the contrary, within the twelve months following the
end of the Plan Year in which such Excess Aggregate Contributions
occurred. In the case of any Highly Compensated Employee who is not
one hundred percent (100%) vested in his Company Matching Deposit
Account, such excess amount shall be treated as a forfeiture under
Section . The Excess Aggregate Contributions shall first be applied to
reduce the percentage rate elected by all those Highly Compensated
Employees who have elected the highest percentage rate of Company
Matching Deposits, shall then be applied to reduce the percentage rate
elected by all those Highly Compensated Employees (including those
Employees whose percentage rate was previously reduced) whose elected
percentage rate is at the next highest percentage rate of Company
Matching Deposits, and shall thereafter continue to be applied to the
extent necessary in like manner in descending order on the basis of
elected percentage rates until the reductions enable the Company
Matching Deposits to conform to the limitations of Subsection . The
amount of Excess Aggregate Contributions to be distributed to each
affected Highly Compensated Employee is equal to the Company Matching
Deposits on behalf of such Employee (prior to reduction of the Excess
Aggregate Contributions), less the product of such Employee's ACP
(after reduction of the Excess Aggregate Contributions) times such
Participant's Total Compensation, rounded to the nearest one cent
($.01).
6.5.4 In determining the amount of income or loss allocable to
Excess Aggregate Contributions which are being distributed, the
following rules shall apply:
6.5.4.1 The income or loss allocable to Excess Aggregate
Contributions for the Plan Year in which the contributions are
made is the income or loss for the Plan Year allocable to Company
Matching Deposits with respect to the Highly Compensated Employee
multiplied by a fraction, the numerator of which is the amount of
Excess Aggregate Contributions made on behalf of the Highly
Compensated Employee for the Plan Year and the denominator of
which is the balance of the Company Matching Deposits Account
attributable to Company Matching Deposits as of the end of the
Plan Year.
6.5.4.2 No income or loss shall be allocable to the Excess
Aggregate Contributions for the period between the end of the
Plan Year and the date of the distribution.
For purposes of this Subsection , the income or loss of the Plan shall
mean all earnings, gains and losses computed in accordance with the
provisions of Section .
6.5.5 Notwithstanding anything to the contrary contained herein,
in the case of a Highly Compensated Employee who is part of an
Aggregated Family Group, the following rules shall apply:
6.5.5.1 The ACP for the Aggregated Family Group (which
shall be treated as a Single Highly Compensated Employee), as
defined in Subsection , shall be the ACP determined by
aggregating the Company Matching Deposits and Total Compensation
of all Family Members, as defined in Subsection , who are
Eligible Employees. Otherwise, the Company Matching Deposits and
Total Compensation of all Family Members are disregarded for
purposes of determining the ACP for the Highly Compensated
Employees, as a group and the Non-Highly Compensated Employees,
as a group.
6.5.5.2 If the ACP of the Aggregated Family Group is
determined under Subsection above and the limitations of
Subsection are exceeded, the ACP shall be reduced as provided in
Subsection in order to comply with the limitations of Subsection
, and Excess Aggregate Contributions shall be allocated among all
of the Family Members in proportion to each such Family Member's
Company Matching Deposits.
6.5.6 In addition to or in lieu of the above procedures to
conform Company Matching Deposits to the limitations of Subsection ,
the Sponsoring Company may, in its sole discretion, cause the
Participating Companies to contribute on behalf of any Non-highly
Compensated Employee additional contributions (which shall be treated
as Supplemental Before-Tax Deposits) to the extent necessary to insure
that the limitations of Subsection are met. Such additional
contributions shall be immediately fully vested and subject to the
distribution restrictions of Section hereof, applicable to Before-Tax
Deposits. Such additional contributions included in the calculations
under Subsection only if the requirements of Treasury Regulation
Section 1.401(m)-l(b)(5) (or any successor thereto) are met. In
addition, the Administrative Committee may designate that all or part
of the Before-Tax Deposits shall be included in the calculations under
Subsection (any such amounts shall not be included in the
calculations under Subsection provided such use complies with the
requirements of Treasury Regulation Section 1.401(m)-l(b)(2) (or any
successor thereto).
6.5.7 For purposes of this Section , the following terms shall
have the following meaning:
6.5.7.1 "Actual Contribution Percentage" (or "ACP") shall
mean for the Highly Compensated Employees, as a group, and for
the Non-Highly Compensated Employees, as a group, the average of
the ratios (calculated separately for each Employee in such
group) of the amount of Company Matching Deposits paid to the
Trust for each such Employee for each Plan Year to the Employee's
Total Compensation, as defined in Subsection , for such Plan
Year.
In calculating ACP, a Company Matching Deposit shall be
taken into account for a Plan Year only if such Contribution: (i)
is made on account of the Employee's Before-Tax Deposits for the
Plan Year, (ii) is allocated to the Employee during such Plan
Year, and (iii) is paid to the Trust not later than the last day
of the twelfth (12th) month following the close of such Plan
Year.
In calculating ACP, all employee contributions and employer
matching contributions (as defined in Section 401(m)(4) of the
Code) of any Highly Compensated Employee who participates in more
than one plan maintained by an Affiliated Company shall be
aggregated for purposes of determining such percentage.
In calculating ACP, all employee contributions and employer
matching contributions (as defined in Section 401(m)(4) of the
Code) to any plan required to be aggregated with the Plan for
purposes of Code Section 401(a)(4) or 410(b) shall be treated as
if made under the Plan. If the Plan is permissively aggregated
with another plan in order to comply with the limitations of
Subsection , such aggregated plans must also meet the
requirements of Code Sections 401(a)(4) and 410(b) as a single
plan.
6.5.7.2"Highly Compensated Employee," "Eligible Employee,"
"Non-Highly Compensated Employee," "Total Compensation,"
"Aggregated Family Group," and "Family Member" shall all have the
meanings set forth in Subsection .
6.6 RIGHT TO CHANGE RATE OF, RESUME OR DISCONTINUE BEFORE-TAX
DEPOSITS.
6.6.1 An Active Participant may voluntarily suspend his Before-
Tax Deposits at any time by delivering to the Administrative Committee
written notification of his election to suspend said contributions on
the form prescribed for that purpose by the Administrative Committee.
Non suspension of Basic Before-Tax Deposits shall be effective unless
the Participant has already suspended or is simultaneously suspending
his Supplemental Before-Tax Deposits. Any such suspension shall be
effective as of the first day of the payroll period next following the
date which is seven (7) days after the date the Administrative
Committee receives such written notification.
6.6.2 A Participant may, in accordance with this Section, change
the rate of the Before-Tax Deposits made to the Trust on his behalf to
another rate permitted under Section , or to resume having made
Before-Tax Deposits in any amount permitted under Section , to the
Trust on his behalf provided that (i) any such change of rate shall be
effective on the first day of the calendar month next following the
date written notice of such change is received by the Administrative
Committee, and (ii) any such change shall be in whole percentages of
the Participant's Compensation. A Participant who desires to change
the rate of or to resume such contributions must notify the
Administrative Committee thereof in writing on forms specified by the
Administrative Committee.
6.7 WITHDRAWALS FROM PARTICIPANT ACCOUNTS.
6.7.1 Subject to the provisions of Subsections and , a
Participant, upon or after attaining age fifty-nine and one-half (59-
1/2 ) or upon meeting the conditions of hardship, may withdraw the
following amounts (determined as of the Valuation Date coincident with
or next following the date a written request for such withdrawal is
received by the Administrative Committee) from the following Accounts
in the following order: (i) all or any portion of the Participant's
previously unwithdrawn Cash Transfers From Another Qualified Plan
credited to his Rollover Account or the Rollover subaccount of his
Prior Plan Account, (ii) all or any portion of the current value of
previously unwithdrawn earnings in the Participant's Rollover Account
or the Rollover subaccount of his Prior Plan Account, (iii) all or any
portion of the Participant's previously unwithdrawn Supplemental
Before-Tax Deposits, and (iv) all or any portion of the Participant's
previously unwithdrawn Basic Before-Tax Deposits. No amount shall be
withdrawn under a succeeding clause until all amounts which may be
withdrawn under a preceding clause have been withdrawn (which
withdrawal may be simultaneous with the withdrawal under a succeeding
clause). Notwithstanding the foregoing, in no event shall a hardship
withdrawal of any amount allocated to a Participant's Accounts
pursuant to Subsection or or of any earnings or gains credited to a
Participant's Before-Tax Deposits be permitted.
The following provisions shall apply with respect to hardship
withdrawals:
6.7.1.1 Application for withdrawal must be made in writing
on a form approved by the Administrative Committee, and must set
out in detail the circumstances establishing that the proposed
withdrawal is for a Permitted Purpose.
6.7.1.2 The Administrative Committee's determination of
whether the application meets the requirements of this section
and the Code and regulations thereunder shall be final and
conclusive, and in making such determination, the Administrative
Committee shall follow uniform and nondiscriminatory rules.
6.7.1.3 If the Administrative Committee is satisfied that
the application meets the requirements of this section and the
Code and regulations thereunder, the application shall be
granted.
6.7.1.4 The expression "Permitted Purpose," as used in
this Subsection , means a withdrawal which is necessary in light
of immediate and heavy financial need of the Participant which is
(i) due to medical expenses described in Code Section 213
incurred by the Participant, the Participant's spouse or
dependents (as defined in Code Section 152) or necessary for such
persons to obtain medical care, (ii) for purchase of a principal
residence of the Participant, (iii) for payment of tuition for
the next twelve (12) months of post-secondary education for the
Participant or such Participant's immediate family, (iv) needed
to prevent eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's
principal residence, or (v) such other purposes as permitted by
the Commissioner of the Internal Revenue Service. Such payment
shall not be made unless the Committee determines the Participant
has obtained all distributions (other than hardship
distributions) and all nontaxable loans currently available under
all plans maintained by the Participating Company or any
Affiliated Company, and in no event will such payment exceed the
amount required to meet such financial need.
6.7.1.5 A distribution will not be deemed necessary in
light of immediate and heavy financial need of a Participant to
the extent the amount of the distribution is in excess of the
amount required to relieve the financial need or to the extent
such need can be satisfied from other resources reasonably
available to the Participant, as determined by the Administrative
Committee on the basis of all relevant facts and circumstances.
In making such determination, the Administrative Committee may
rely on a certification by the Participant that the financial
need cannot be relieved: (i) through reimbursement or
compensation by insurance or otherwise, (ii) by reasonable
liquidation of the Participant's (or the Participant's spouse's
or minor children's) assets, to the extent such liquidation would
not itself cause a hardship, (iii) by ceasing Before-Tax Deposits
to the Plan or contributions to other plans, or (iv) by other
distributions or loans from the Plan or any other plan, or by
borrowing from commercial sources on reasonable commercial terms,
in an amount sufficient to satisfy the need.
6.7.2 If, at any time, a Participant withdraws less than the
entire amount which is available for his withdrawal at such time from
all Accounts, then such Participant must withdraw a minimum amount
equal to Five Hundred Dollars ($500.00).
6.7.3 Notwithstanding the foregoing provisions of this Section ,
the Administrative Committee shall, subject to any terms and
conditions imposed by the Trustee, establish additional uniform
policies and procedures, including procedures regarding the manner in
which the amount of any withdrawal shall be obtained from the
Investment Funds referred to in Section hereof to which such
Participant has directed the investment of the amounts credited to his
Accounts.
6.7.4 All withdrawals from a Prior Plan Account shall be subject
to the spousal consent requirements of Section .
SECTION 7
ALLOCATION TO PARTICIPANTS' ACCOUNTS
7.1 METHODS OF ALLOCATING DEPOSITS.
7.1.1 Subject to the limitations of Section hereof and subject
to the provisions of Subsection hereof, the Company Matching Deposit
of each Participating Company for each calendar month pursuant to
Subsection above shall be allocated to the Company Matching Deposit
Account of the Participant on whose behalf said Company Matching
Deposit was made, as of the last day of such month.
7.1.2 Subject to the limitations of Section hereof and subject
to the provisions of Subsection hereof, any additional Company
Matching Deposits for a Plan Year made pursuant to Subsection above
shall be allocated as of the last day of such Plan Year to the Company
Matching Deposit Account of each Participant who is employed by a
Participating Company as of the last day of such Plan Year, in an
amount equal to a percentage of his Basic Before-Tax Deposits for the
Plan Year, as prescribed by the Board of Directors of the Sponsoring
Company.
7.1.3 Subject to the limitations of Section hereof, each
Participant's Basic and Supplemental Before-Tax Deposits for each
month shall be allocated to the appropriate Account as of the last day
of such month.
7.2 ALLOCATION TO A PARTICIPANT TRANSFERRED TO A PARTICIPATING
COMPANY. If, during a Plan Year, an Active Participant is transferred
from one Participating Company to another Participating Company, such
Participant's share of the Company Matching Deposits of each Participating
Company shall be determined on the basis of the Basic Before-Tax Deposits
made on behalf of such Active Participant for the portion of the Plan Year
that such Active Participant was employed by such Participating Company.
7.3 ALLOCATION TO A PARTICIPANT TRANSFERRED TO AN AFFILIATED COMPANY
WHICH HAS NOT ADOPTED THE PLAN. Notwithstanding any other provision of
the Plan, if a Participant is transferred from a Participating Company to
an Affiliated Company which has not adopted the Plan, he shall continue to
participate in the Plan as an Inactive Participant who has elected a
voluntary suspension of Basic and Supplemental Before-Tax Deposits. If
such Participant is subsequently reemployed by a Participating Company, he
shall be eligible to elect to have made on his behalf Basic and
Supplemental Before-Tax Deposits as of the Entry Date coincident with or
next following the Participant's reemployment, provided he complies with
the provisions of Section .
7.4 LIMITATIONS ON ANNUAL ADDITIONS. This Section is effective
July 1, 1988.
7.4.1 Notwithstanding any other provision of the Plan, the sum
of the Annual Additions to a Participant's Accounts for any Limitation
Year shall not exceed the lesser of (i) Thirty Thousand Dollars
($30,000) or, if greater, one-fourth (1/4) of the defined benefit
dollar limitation set forth in Section 415(b)(1)(A) of the Code as in
effect for the Limitation Year, or (ii) twenty-five percent (25%) of
such Participant's Limitation Year Compensation for the entire
Limitation Year (even though such Participant may not have been a
Participant for the entire Limitation Year). The term "Annual
Additions" to a Participant's Accounts for any Limitation Year shall
mean the sum of:
7.4.1.1 Such Participant's allocable share of the
contributions of the Participating Company, including Before-Tax
Deposits and Company Matching Deposits, credited to such
Participant within such Limitation Year;
7.4.1.2 Any amount allocated to an "individual medical
account," as defined in Section 415(l)(2) of the Code, which is
part of a pension or annuity plan maintained by a Participating
Company;
7.4.1.3 Any 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 Section 419A(d)(3) of the Code) under a welfare
benefit fund (as defined in Section 419(e) of the Code)
maintained by a Participating Company;
7.4.1.4 Such Participant's allocable share of forfeitures,
if any, credited to such Participant within such Plan Year; and
7.4.1.5 Any Participant contributions;
provided, however, that the twenty-five percent (25%) limitation
set forth in Subsection (ii) above shall not apply to amounts
described in Subsection or above.
Solely for purposes of this Section , the determination of a
Participant's allocable share of Participating Company contributions
and forfeitures, if any, for a Limitation Year shall exclude any
Participating Company contributions and forfeitures allocated to such
Participant for any of the reasons set forth in Sections 1.415-
6(b)(2)(ii)-(vi) of the Income Tax Regulations (except as otherwise
provided in such Sections).
7.4.2 In the event that as a result of (i) the allocation of
forfeitures, (ii) a reasonable error in estimating a Participant's
Limitation Year Compensation, (iii) a reasonable error in determining
the amount of Before-Tax Deposits that may be made under this Section,
or (iv) other facts and circumstances which the Commissioner of
Internal Revenue or his delegate finds justify the availability of the
provisions of this Subsection and Subsections and , it is determined
that, but for the limitations contained in Subsection , the Annual
Additions to a Participant's Accounts for any Limitation Year would be
in excess of the limitations contained herein, such Annual Additions
shall be reduced to the extent necessary to bring such Annual
Additions within the limitations contained in Subsection in the
following order:
7.4.2.1 Such Participant's Supplemental Before-Tax
Deposits for the Plan Year ending within such Limitation Year
shall be reduced.
7.4.2.2 Such Participant's allocable share of Basic
Before-Tax Deposits and Company Matching Deposits for the Plan
Year ending within such Limitation Year shall be simultaneously
reduced on a pro-rata basis.
7.4.3 If the amount of any Participant's allocable share of
forfeitures, if any, or Company Matching Deposits is reduced in
accordance with Subsection above, the amount of such reduction shall
be maintained in a separate suspense account under the Trust to be
used solely to reduce forfeitures or Company Matching Deposits,
respectively, for that Participant for the next succeeding Limitation
Year (and succeeding Limitation Years, as necessary), if that
Participant is employed as of the end of such Limitation Year. If
such Participant is no longer employed as of the end of such next
succeeding Limitation Year (or succeeding Limitation Years, if
applicable), then the amount in the suspense account shall reduce
forfeitures or Company Matching Deposits, respectively, for such next
succeeding Limitation Year (and succeeding Limitation Years, if
applicable) and shall, subject to the provisions of Subsection , be
allocated and reallocated in such next succeeding Limitation Year (and
succeeding Limitation Years, if applicable), among the remaining
Participants in the Plan as if such amount were a forfeiture or
Company Matching Deposit, respectively, for the appropriate Limitation
Year. Any suspense account established pursuant to this Subsection
shall not be adjusted to reflect net income, loss, appreciation or
depreciation in the value of the Trust Fund as provided for a
Participant's regular Accounts pursuant to Section hereof.
7.4.4 If the amount of any Participant's Basic or Supplemental
Before-Tax Deposits are reduced in accordance with the provisions of
Subsection above, the amount of such reduction (the "Excess
Amounts"), adjusted for earnings or losses in a manner similar to
Section above, shall be distributed to such Participant, and shall be
disregarded for purposes of Section above.
7.4.5 In the event of termination of the Plan, the suspense
account established pursuant to this Section shall revert to the
Participating Company to the extent it may not then be allocated to
any Participant's Account.
7.5 LIMITATIONS ON ANNUAL ADDITIONS FOR PARTICIPATING COMPANIES OR
AFFILIATED COMPANIES MAINTAINING OTHER DEFINED CONTRIBUTION PLANS. In the
event that any Participant in this Plan is a participant under any other
Defined Contribution Plan maintained by a Participating Company or an
Affiliated Company (whether or not terminated), the total amount of annual
additions, as defined in Section 415(c) of the Code and regulations
thereunder, to such Participant's accounts from all such Defined
Contribution Plans shall not exceed the limitations set forth in
Subsection hereof. If such total amount of annual additions to each
Participant's accounts from all such Defined Contribution Plans does
exceed the limitations set forth in Subsection hereof, then the Annual
Additions to a Participant's Accounts in this Plan shall be reduced, and
such reduction shall be accomplished in accordance with the provisions of
Section hereof.
7.6 LIMITATIONS ON BENEFITS AND ANNUAL ADDITIONS FOR PARTICIPATING
COMPANIES OR AFFILIATED COMPANIES MAINTAINING DEFINED BENEFIT PLANS. In
the event that any Participant in this Plan is a participant under one or
more Defined Benefit Plans maintained by a Participating Company or an
Affiliated Company (whether or not terminated), then the sum of the
Defined Benefit Plan Fraction for such Limitation Year and the Defined
Contribution Plan Fraction for such Limitation Year shall not exceed one
(1.0). If the sum of the Defined Benefit Plan Fraction for any Limitation
Year and the Defined Contribution Plan Fraction for such Limitation Year
does exceed one (1.0), then the annual additions to a Participant's
Accounts under this Plan shall be reduced subsequent to reductions under
any Defined Benefit Plan.
7.7 DEFINITIONS RELATING TO ANNUAL ADDITION LIMITATIONS. For
purposes of Sections , and hereof and this Section , the following
definitions shall apply:
7.7.1 "Retirement Plan" shall mean (a) any profit sharing,
pension or stock bonus plan described in Sections 401(a) and 501(a) of
the Code, (b) any annuity plan or annuity contract described in
Section 403(a) or 403(b) of the Code, (c) any simplified employee
pension plan described in Section 408(k) of the Code and (d) any
individual retirement account or individual retirement annuity
described in Section 408(a) or 408(b) of the Code.
7.7.2 "Defined Contribution Plan" shall mean a Retirement Plan
which provides for an individual account for each participant and for
benefits based solely on the amount contributed to the participant's
accounts, and any income, expenses, gains or losses, and any
forfeitures of accounts of other participants which may be allocated
to such participant's account.
7.7.3 "Defined Benefit Plan" shall mean any Retirement Plan
which does not meet the definition of a Defined Contribution Plan.
7.7.4 "Defined Benefit Plan Fraction" shall mean a fraction
calculated in accordance with Code Section 415(e)(2).
7.7.5 "Defined Contribution Plan Fraction" shall mean a
fraction, the numerator of which is the sum of the Annual Additions to
the Participant's account under all the Defined Contribution Plans
(whether or not terminated) maintained by the Participating Companies
or any Affiliated Company for the current and all prior Limitation
Years, (including the Annual Additions attributable to the
Participant's nondeductible employee contributions to this and all
other Defined Contribution Plans, whether or not terminated,
maintained by the Participating Companies or any Affiliated Company),
and the denominator of which is the sum of the Maximum Aggregate
Amounts for the current and all prior Limitation Years of service with
the Participating Companies or any Affiliated Company (regardless of
whether a Defined Contribution Plan was maintained by the
Participating Companies or any Affiliated Company). The "Maximum
Aggregate Amount" in any Limitation Year is the lesser of one hundred
twenty-five percent (125%) of the dollar limitation in effect under
Section 415(c)(1)(A) of the Code or one hundred forty percent (140%)
of the amount which may be taken into account under Section
415(c)(1)(B) of the Code.
7.7.6 "Limitation Year" shall mean the twelve (12) consecutive
month period ending on December 31.
7.7.7 "Limitation Year Compensation" shall mean the aggregate of
(i) all wages, salaries and other amounts received for personal
services actually rendered in the course of employment with all
Participating Companies and Affiliated Companies (including, but not
limited to, commissions paid salesmen, compensation for services on
the basis of a percentage of profits, commissions on insurance
premiums, tips, fringe benefits, expense accounts and bonuses) which
are actually paid or made available to a Participant within a
Limitation Year; (ii) in the case of a Participant who is an employee
within the meaning of Code Section 401(c)(1), the Participant's earned
income (as described in Code Section 401(c)(2)); (iii) amounts
described in Code Sections 104(a)(3), 105(a) and 105(h), but only to
the extent that these amounts are includable in the gross income of
the Participant; (iv) amounts paid or reimbursed for moving expenses
incurred by a Participant, but only to the extent that these amounts
are not deductible by the Participant under Code Section 217; (v) the
value of a non-qualified stock option granted to a Participant but
only to the extent that the value of the option is includable in the
gross income of the Participant for the taxable year in which granted;
(vi) the amount includable in the gross income of a Participant upon
making the election described in Code Section 83(b); which are
actually paid or made available (or, for Limitation Years beginning
prior to December 31, 1991, accrued, if the Company properly so
elected) to a Participant within a Limitation Year. Paragraphs (i)
and (ii) of this section include foreign earned income (as defined in
Code Section 911(b)), whether or not excludable from gross income
under Code Section 911. Limitation Year Compensation shall not
include the following:
7.7.7.1 Contributions made by any Participating Company or
Affiliated Company to a plan of deferred compensation to the
extent that before the application of the Section 415 limitations
to the Plan, the contributions are not included in the gross
income of the Participant for the taxable year in which
contributed, or contributions made by any Participating Company
or Affiliated Company under a simplified employee pension plan to
the extent the contributions are deductible by the Participant,
and any distributions from a plan of deferred compensation;
7.7.7.2 Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or property)
held by a Participant become freely transferable or is no longer
subject to a substantial risk of forfeiture;
7.7.7.3 Amount realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and
7.7.7.4 Other amounts that receive special tax benefits,
such as premiums for group term life insurance (but only to the
extent that premiums are includable in the gross income of the
Participant), or contributions made by any Participating Company
or Affiliated Company (whether or not under a salary reduction
agreement) towards the purchase of an annuity contract as
described in Section 403(b) of the Code (whether or not the
contributions are excludable from the gross income of the
Participant).
SECTION 8
VALUATION OF TRUST FUND
The Trustee shall evaluate the Trust Fund (separately itemized with
respect to each Investment Fund under Section hereof) at fair market
value as of the close of business on each Valuation Date. In making such
valuations, except as otherwise provided for herein or in a Trust
Agreement, the Trustee shall use the modified cash basis method of
accounting and shall deduct all charges, expenses and other liabilities,
if any, then chargeable against the Trust Fund, in order to give effect to
income realized and expenses paid, losses sustained and unrealized gains
or losses constituting appreciation or depreciation in the value of Trust
investments since the last previous valuation. At the request of the
Administrative Committee, as soon as practicable after such valuation, the
Trustee shall deliver in writing to the Administrative Committee a
valuation of the Trust Fund together with a statement of the amount of net
income or loss (including appreciation or depreciation in the value of
Trust investments) since the last previous valuation.
SECTION 9
PARTICIPANTS' ACCOUNTS
9.1 SEPARATE ACCOUNTS. Subject to the provisions of Section hereof,
the Administrative Committee shall maintain for each Participant a
separate Company Matching Deposit Account, a separate Basic Before-Tax
Deposit Account, a separate Supplemental Before-Tax Deposit Account, a
separate Prior Plan Account as necessary, and a separate Rollover Account
as necessary. The amount contributed by or on behalf of a Participant or
allocated to such Participant shall be credited to the appropriate Account
in the manner set forth in Sections and hereof. All payments to a
Participant or his Beneficiaries shall be charged against the respective
Accounts of such Participant.
9.2 ACCOUNTS OF PARTICIPANTS TRANSFERRED TO AN AFFILIATED COMPANY.
If a Participant is transferred to an Affiliated Company which has not
adopted the Plan, the amount in the Trust which is credited to his
Accounts shall continue to share in the earnings or losses of the Trust
and such Participant's rights and obligations with respect to such
Accounts shall be governed by the provisions of the Plan and Trust.
9.3 ADJUSTMENT OF PARTICIPANT'S ACCOUNTS. Except as otherwise
provided herein, the Administrative Committee shall adjust the Accounts of
each Participant so that the amount of net income, loss, appreciation or
depreciation in the value of the Trust Fund (as appropriately itemized
with respect to each Investment Fund under Section hereof) for the period
(herein referred to as the "Valuation Period") from the last previous
valuation to the date of such valuation shall be credited to or charged
against the balance in the Participants' Accounts as adjusted by the
transactions occurring with respect to each such Account during such
Valuation Period. Any Plan earnings or losses attributable to the
investment of a Participant's Account under the Plan in a loan to the
Participant under Section shall be allocated solely to that Participant's
Account in accordance with the procedures of Section .
9.4 ACCOUNT INVESTMENT DIRECTION.
9.4.1 Notwithstanding any other provision of the Plan or the
Trust Agreement with respect to control over and direction of the
investment of assets in the Trust Fund, each Participant may, at such
time and in such manner as the Administrative Committee shall
determine pursuant to a uniform policy established by it, direct that
all or any part (subject to such percentage increment limitations as
the Administrative Committee shall determine from time to time) of the
amounts constituting such Participant's existing Account and his
future Basic and Supplemental Before-Tax Deposits and Company Matching
Deposit be invested among such investment funds as the Administrative
Committee shall offer from time to time ("Investment Funds") for
direction by Participants. This Section is intended to meet the
requirements of Section 404(c) of ERISA by allowing each Participant
to direct the investment of his individual Accounts.
9.4.2 The Administrative Committee shall from time to time
designate the Investment Funds available hereunder, provided that at
all times there shall be at least three diversified Investment Funds
having materially different risk and reward characteristics in
addition to the Arkansas Best Stock Fund. The assets of each such
Investment Fund may be invested in shares of a registered investment
company, provided that such shares constitute securities described in
Section 401(b)(1) of ERISA. Moneys in any such Fund in amounts
estimated by the Trustee to be needed for cash withdrawals, inter-Fund
transfers or other purposes, or in amounts too small to be reasonably
invested, may be retained by the Trustee in cash or invested in a
manner consistent with such purposes.
9.4.3 At such times as the Administrative Committee shall
permit, and in such manner as the Administrative Committee shall
determine, pursuant to uniform policies established by it, each
Participant may (i) direct that all, or any part (subject to such
percentage increment limitations as the Administrative Committee shall
determine from time to time) of the amounts in the Participant's
Accounts which are invested on his behalf in any of the Investment
Funds, be liquidated and the proceeds thereof reinvested in the other
Investment Funds and (ii) redirect the investment of future Before-Tax
Deposits and Company Matching Deposits (and future earnings on all
such amounts) in accordance with the provisions of Subsection hereof.
In the event at any time a Participant does not elect to redirect any
Account balances or future contributions as provided for in this
Subsection , then such Participant's prior directions shall remain in
effect.
9.4.4 The Trustee shall carry out Participant's directions or
redirections permitted by this Section (or in the absence of
directions, shall invest as provided in Subsection hereof) as soon as
administratively practicable. Notwithstanding the foregoing, in the
event a Participant has directed that only part of his interest in any
of the Investment Funds be liquidated and reinvested in one or more of
the other Investment Funds only the nearest value of whole units will
be liquidated and reinvested.
9.4.5 If a Participant fails or refuses to exercise any of his
investment direction rights as provided for in this Section , the
Trustee shall invest all amounts (not otherwise directed) in the
lowest risk Investment Fund available, as determined by the
Administrative Committee.
9.4.6 The Administrative Committee shall establish and maintain,
or cause the appropriate Trustee to establish and maintain procedures
and records which will adequately reflect the state of each Investment
Fund and the proportionate interest of each Participant in each
Investment Fund, including the amount of each Participant's various
Accounts allocated to each such Investment Fund.
9.4.7 Proxy Voting. Shares of stock held in the Arkansas Best
Stock Fund shall be voted in accordance with Subsection below. Any
shares of a registered investment company allocated to a Participant's
Account shall be voted in accordance with directions of the
Participant (or Beneficiary or Alternate Payee), with any fractional
shares being voted on a combined basis to the extent possible to
reflect the directions of voting Participants. The Trustee or a duly
appointed Investment Manager shall be responsible for the voting of
any other securities within an Investment Fund and the exercise of any
tender offer or redemption rights with respect to any such securities.
9.5 ARKANSAS BEST STOCK FUND.
9.5.1 The Arkansas Best Stock Fund shall be one of the
Investment Funds available for the investment of any portion of a
Participant's Account in accordance with Section . The Arkansas Best
Stock Fund may be partially invested in cash, cash-equivalents, or
short-term investments as needed to meet liquidity requirements, or in
amounts that are too small to reasonably invest in Arkansas Best
Stock.
9.5.2 Except as provided in Subsection , all assets of the
Arkansas Best Stock Fund shall be invested and reinvested exclusively
in Arkansas Best Stock.
9.5.3 All shares of Arkansas Best Stock in the Arkansas Best
Stock Fund shall be voted by the Trustee in such manner as may be
directed by the respective Participants, Beneficiaries and Alternate
Payees, with fractional shares being voted on a combined basis to the
extent possible to reflect the direction of the voting Participants.
In the event that there is a tender offer or exchange offer for
outstanding shares of Arkansas Best Stock, each Participant,
Beneficiary and Alternate Payee shall be permitted to elect whether
shares of Company Stock held in his Account should be tendered or
exchanged. Rights to tender or exchange with respect to shares
allocated to a Participant's Account with respect to which direction
has not been received by the Trustee shall not be tendered or
exchanged but shall continue to be held by the Trust.
9.5.4 Subject to the provisions of the Plan and Trust, the
Arkansas Best Stock Fund may sell shares of Arkansas Best Stock to any
person (including the issuer of such shares), provided that any sale
to a party in interest must be made for not less than adequate
consideration. No commission shall be paid with respect to sales or
purchases of Arkansas Best Stock from parties-in-interest. The sale
price for each such share of Arkansas Best Stock sold to a party-in-
interest shall not be less than the price of Arkansas Best Stock,
prevailing at the time of sale, on a national securities exchange
which is registered under section 6 of the Securities Exchange Act of
1934, or, if Arkansas Best Stock is not, at the time of such purchase,
traded on such national securities exchange, shall be not more than
the offering price for the Arkansas Best Stock as established by the
current bid and asked prices quoted by persons independent of the
Sponsoring Company and of any party-in-interest. In the event that
either (i) the sale price per share from the Sponsoring Company as
determined pursuant to the foregoing is less than the then par value
of such Arkansas Best Stock, or (ii) Trustee is of the opinion that
the sale of such shares directly to the Sponsoring Company or a party-
in-interest might involve a possible violation of any federal or state
securities law, or any rule or regulation thereunder, Trustee shall
not sell such shares directly to the Sponsoring Company, but shall
sell such shares in the open market in exchange transactions or in any
other lawful manner.
9.5.5 SECURITIES LAW RESTRICTION. Notwithstanding anything to
the contrary contained in the Plan, the Administrative Committee may,
in its sole discretion, restrict any Plan transactions involving
Arkansas Best Stock to insure that the operation of the Plan complies
with Rule 16(b)(3), promulgated under the Securities Exchange Act of
1934, as amended.
SECTION 10
COMMON TRUST FUND
Except as otherwise provided in accordance with procedures adopted
under Subsection hereof, the fact that for administrative purposes the
Administrative Committee maintains separate accounts for each Participant
shall not be deemed to segregate for such Participant, or to give such
Participant any direct interest in any specific assets in the Trust Fund
held by the Trustee. Except as provided herein, all such assets may be
held and administered by the Trustee as a commingled fund, subject to the
provisions of Section hereof.
SECTION 11
DESIGNATION OF BENEFICIARIES
11.1 PARTICIPANT'S DESIGNATION.
11.1.1 Subject to the provisions of Sections , and hereof
and of Subsection below, each Participant may designate a Beneficiary
or Beneficiaries, and contingent Beneficiary or Beneficiaries, if
desired, including the executor or administrator of his estate, to
receive his interest in the Trust Fund in the event of his death, but
the designation of a Beneficiary shall not be effective for any
purpose unless and until it has been filed with the Administrative
Committee on the form provided therefor. If the Participant has a
surviving spouse and the deceased Participant failed to name a
Beneficiary in the manner herein prescribed, or the Beneficiary or
Beneficiaries so named predecease the Participant, the amount, if any,
which is payable hereunder with respect to such deceased Participant
shall be paid to the surviving spouse. If the Participant does not
have a surviving spouse and the deceased Participant failed to name a
Beneficiary in the manner herein prescribed, or the Beneficiary or
Beneficiaries so named predecease the Participant, the amount, if any,
which is payable hereunder in respect of such deceased Participant may
be paid, in the discretion of the Administrative Committee, either to
(a) all or any one (1) or more of the persons comprising the group
consisting of such Participant's descendants, parents, or heirs at
law, and the Administrative Committee may pay the entire benefit to
any member of such group or apportion such benefit among any two (2)
or more of them in such shares as the Administrative Committee, in its
sole discretion, shall determine, or (b) the executor or administrator
of the estate of such deceased Participant, provided that in any of
such cases payment shall be made in the form of an immediate lump sum
as provided in Subsection . If the Administrative Committee does not
so direct any of such payments, the Administrative Committee may elect
to have a court of applicable jurisdiction determine to whom a payment
or payments should be made. Any payment made to any person pursuant
to the power and discretion conferred upon the Administrative
Committee by the preceding sentence shall operate as a complete
discharge of all obligations under the Plan in respect of such
deceased Participant and shall not be subject to review by anyone, but
shall be final, binding and conclusive on all persons ever interested
hereunder.
11.1.2 Subject to the provisions of Subsection below, a
Participant may from time to time change any Beneficiary designated by
him without notice to such Beneficiary, under such rules and
regulations as the Administrative Committee may from time to time
promulgate, but the last Beneficiary designation filed with the
Administrative Committee shall control.
11.2 QUALIFIED CONSENT. Except as provided in Section , with respect
to a Participant who on the date of such Participant's death, is survived
by and has been married to the same spouse continuously for a period of at
least one (1) year, such Participant's Accounts shall, on his death, be
paid to such surviving spouse to whom he was married at the date of his
death unless the surviving spouse has made a Qualified Consent to the
payment of any or all of said Accounts to a designated Beneficiary other
than the surviving spouse. "Qualified Consent" means an irrevocable
written consent executed by the Participant's spouse which acknowledges
the effect of the consent and is witnessed by a Plan representative or a
notary public. A Participant may, after obtaining a Qualified Consent,
change his Beneficiary designation as permitted by Subsection above, but
any such change is subject to the requirements of this Section and will
require another Qualified Consent should such a spouse, if surviving, not
be the sole Beneficiary of all amounts in said Account, unless a Qualified
Consent previously executed by such spouse expressly authorizes changes in
the Beneficiary without further consent of the spouse. A Qualified
Consent is effective only with respect to the spouse who executes it. If
the Plan Administrator is satisfied that there is no spouse, or that the
spouse cannot reasonably be located, or in such other circumstances as
permitted by governmental regulations, no Qualified Consent shall be
required as a condition to payment to a Beneficiary who is not the
surviving spouse.
11.3 PRIOR PLAN ACCOUNT DEATH BENEFITS.
11.3.1 GENERAL. Notwithstanding Section , where a Participant
has an amount allocated to his or her Prior Plan Account, then upon
the Participant's death the unpaid portion of the Prior Plan Account
(hereinafter, in this Section only, the "PPA Death Benefit") shall be
composed of a Spousal Benefit (if any) and a Beneficiary Benefit. For
these purposes, a "Spousal Benefit" is fifty percent (50%) of the
Participant's Prior Plan Account at the time of reference, and a
"Beneficiary Benefit" is the remaining fifty percent (50%) of the
Participant's Prior Plan Account at the time of reference; provided,
however, that if the Participant does not have a surviving spouse on
the date of his death, then the Spousal Benefit is zero, and his
Beneficiary Benefit shall be one hundred percent (100%) of his Prior
Plan Account at the time of reference.
11.3.2 NO PPA QUALIFIED BENEFICIARY DESIGNATION FORM FILED.
If a Participant dies without having executed and delivered to the
Administrator a PPA Qualified Beneficiary Designation Form, then all
of his or her PPA Death Benefits shall be paid to his or her surviving
spouse or, in the absence of a surviving spouse, then to his or her
lawful descendants then living, per stirpes and not per capita, or if
none, then to his or her estate.
11.3.3 PPA QUALIFIED BENEFICIARY DESIGNATION FORM, WITH
SPOUSAL CONSENT, FILED. If the Participant either attains age 35, or
separates before the age of 35 and, in either case, thereafter
executes and delivers to the Administrator a PPA Qualified Beneficiary
Designation Form (i) that contains a Qualified Spousal Consent, or
(ii) the Participant dies without a surviving spouse, then all of the
Participant's Death Benefits shall be paid to his designated
Beneficiary.
11.3.4 PPA QUALIFIED BENEFICIARY DESIGNATION FORM, NO SPOUSAL
CONSENT, FILED. If (1) the Participant delivers to the Administrator
a PPA Qualified Beneficiary Designation Form, and then dies, prior to
the attainment of age 35 while still an Employee, or (2) the
Participant: (i) attains the age of 35, or (ii) separates before the
age of 35, and in either case thereafter executes and delivers to the
Administrator a PPA Qualified Beneficiary Designation Form which does
not include a Spousal Consent, and if such Participant has a surviving
spouse at the date of his death, then his Beneficiary Benefit shall be
paid to his designated Beneficiary, and his Spousal Benefit shall be
paid to his surviving spouse.
11.3.5 FORM OF PAYMENT. A Participant's Beneficiary Benefit
shall be paid in a lump sum cash payment, as soon as reasonably
possible following the date of the Participant's death, but in no
event to exceed five (5) years from the date of his death. A
Participant's Spousal Benefit either: (i) shall be used to purchase a
lifetime annuity from an insurance company, under which annuity
payment shall commence not later than the date on which the
Participant would have attained the age of 70 1/2 if the Participant
had survived, and which shall be distributed to his surviving spouse,
or (ii) at the written request of such surviving spouse, shall be paid
in a lump sum cash payment.
11.3.6 The Administrator shall provide a written explanation
of his right to file, and revoke, a PPA Qualified Beneficiary
Designation Form to each Participant: (i) if he enters the Plan prior
to age 32, then within the period beginning on the first day of the
Plan Year in which the Participant attains age 32 and ending with the
close of the Plan Year preceding the Plan Year in which the
Participant attains age 35, (ii) if the Participant enters the Plan
after the first day of the Plan Year in which the Participant attained
age 32, no later than the close of the Second Plan Year following the
entry of the Participant into the Plan, and (iii) if the Participant
terminates employment before age 32, and if no distribution from his
Prior Plan Account is made prior to the first anniversary of his
Termination of Employment, no later than the first anniversary of his
Termination of Employment.
11.3.7 DEFINITIONS. For purposes of this :
11.3.7.1 "PPA Qualified Beneficiary Designation Form" shall
mean a beneficiary designation which is on a form provided by the
Plan Administrator for that purpose, which has been properly
filled out, signed by the Participant, notarized where required
by law, and which has actually been received by the Plan
Administrator prior to the date of the Participant's death,
provided further, and without limiting the generality of the
foregoing, that such form need not have a Qualified Spousal
Consent.
11.3.7.2 "Qualified Spousal Consent" shall mean the consent
of a surviving spouse, as evidenced by the proper execution by
the surviving spouse of a PPA Qualified Beneficiary Designation
Form, to the Participant's designation of a beneficiary other
than such surviving spouse to receive all or any portion of the
Spousal Benefit. Such consent must acknowledge the spouse's
understanding of the effect of such consent and must be notarized
by a Notary Public or witnessed by the Plan Administrator. Even
if the surviving spouse shall not execute the PPA Qualified
Beneficiary Designation Form, the surviving spouse shall be
deemed to have properly executed the Qualified Beneficiary
Designation Form if the Plan Administrator determines that actual
execution is not required by law or if the Participant
establishes to the satisfaction of the Administrator that such
consent cannot be obtained because there is no spouse, because
the spouse cannot be located, or because of other reasons
permitted under applicable Regulations.
11.3.8 The provisions of Subsections through shall not apply
to the extent they conflict with a Qualified Domestic Relations Order.
SECTION 12
DISABILITY BENEFITS
12.1 DISABILITY RETIREMENT BENEFITS. A Participant retires by
reason of Total and Permanent Disability while in a Participating
Company's or an Affiliated Company's employ or on Leave of Absence, his
Company Matching Deposit Account shall fully vest and, subject to the
provisions of Section hereof, he shall be entitled to receive benefits
equal to the total amount in all of his Accounts under the Plan, as
determined in accordance with the provisions of Section hereof. Such
benefits shall be paid as provided in Subsection and Section hereof.
12.2 DETERMINATION OF DISABILITY. The Administrative Committee shall
determine whether a Participant has suffered Total and Permanent
Disability and its determination in that respect is binding upon the
Participant, provided that the Administrative Committee shall rely upon
professional medical advice in making such determination. In making its
determination, the Administrative Committee may require the Participant to
submit to medical examinations by doctors selected by the Administrative
Committee. The provisions of this Section shall be uniformly and
consistently applied to all Participants.
SECTION 13
RETIREMENT AND DEATH BENEFITS
13.1 RETIREMENT BENEFITS. A Participant's Company Matching Deposit
Account shall fully vest and be nonforfeitable on his Retirement Date,
provided such Participant is employed by a Participating Company or an
Affiliated Company on such date. A Participant who continues in the
Participating Company's employ after his Retirement Date shall continue to
be a Participant in the Plan until his actual retirement. Subject to the
provisions of Section hereof, any Participant who retires under this
Section shall be entitled to receive benefits equal to the total amounts
in all of his Accounts under the Plan as determined in accordance with the
provisions of Section hereof. Such benefit shall be paid as provided in
Subsection and Section hereof.
13.2 DEATH BENEFITS. Upon the death of a Participant while in the
employ of a Participating Company, an Affiliated Company or on Leave of
Absence, his Company Matching Deposit Account shall fully vest and,
subject to the provisions of Sections and hereof, the following person
or persons shall be entitled to receive benefits equal to the total
amounts in the deceased Participant's Accounts under the Plan as
determined in accordance with the provisions of Subsection and Section
hereof:
13.2.1 In the case of a Participant who is married as of the
date of his death, except as provided in Subsection below, his
surviving spouse.
13.2.2 In the case of a Participant who is married on the date
of his death but who has designated a Beneficiary other than his
surviving spouse pursuant to Section hereof and (i) whose surviving
spouse has executed a Qualified Consent as provided for in Section
hereof or (ii) who has not been married to the same spouse
continuously for at least one (1) year as of the date of his death,
his designated Beneficiary pursuant to Section hereof.
13.2.3 In the case of a Participant who is not married on the
date of his death, his designated Beneficiary pursuant to Section
hereof.
Upon the death of a Participant who is no longer employed by a
Participating Company or an Affiliated Company prior to the receipt by
such Participant of all amounts to which such Participant is entitled
under the provisions of the Plan, the person or persons entitled to
receive death benefits as hereinabove provided shall be entitled to
receive the balance of any amounts owing to such deceased Participant, as
determined and to be paid in accordance with the provisions of Subsection
and Section hereof.
SECTION 14
EMPLOYMENT TERMINATION BENEFITS
14.1 VESTING UPON TERMINATION OF EMPLOYMENT. Subject to the
provisions of Sections and hereof, in the event of the Termination of
Employment of a Participant, such Participant shall be entitled to receive
(i) one hundred percent (100%) of the amounts in all of his Accounts other
than his Company Matching Deposit Account and the Company Matching Deposit
subaccount of his Prior Plan Account, and (ii) the following percentage of
the amount in his Company Matching Deposit Account and the Company
Matching Deposit subaccount of his Prior Plan Account, based upon such
Participant's number of Vesting Years of Service prior to such Termination
of Employment:
Number of Vesting
YEARS OF SERVICE VESTED PERCENTAGE
Less than 5 years None
5 years or more 100%
Such benefits shall be paid as provided in Section hereof.
14.2 DETERMINATION OF VESTING YEARS OF SERVICE. All Vesting Years of
Service (whether or not continuous) shall be taken into account, except
Vesting Years of Service not taken into account in accordance with Section
hereof.
14.3 PERIODS OF SEVERANCE. Subject to the provisions of Section
hereof, Vesting Years of Service shall be disregarded as follows:
14.3.1 [Reserved].
14.3.2 In the case of any Participant who suffers a
Termination of Employment and who has no vested amount in his Basic or
Supplemental Before-Tax Deposit Accounts, or his Prior Plan Company
Matching Deposits subaccount, his Company Matching Deposit Account in
accordance with the provisions of Section hereof, Vesting Years of
Service before any period of One-Year Periods of Severance shall not
be taken into account if such Participant's latest Period of Severance
equals or exceeds the greater of (i) five (5) consecutive One-Year
Periods of Severance, or (ii) his aggregate Periods of Service before
the commencement of such latest Period of Severance. Such aggregate
Periods of Service before the commencement of such latest Period of
Severance shall be deemed not to include any Period of Service not
required to be taken into account under this Section by reason of any
prior Period of Severance. Such aggregate Periods of Service shall be
deemed not to include any Vesting Year of Service which precedes a
One-Year Period of Severance if as of or prior to December 31, 1984,
the duration of the consecutive One-Year Periods of Severance measured
in years equals or exceeds the Participant's Vesting Years of Service
prior to the One-Year Periods of Severance.
14.3.3 In the case of any Participant who has five (5)
consecutive One-Year Periods of Severance, Vesting Years of Service
after such five (5) year period shall not be taken into account for
purposes of determining the vested amount in his Company Matching
Deposit Account or his Prior Plan Company Matching Deposits subaccount
which accrued prior to such five (5) year period.
14.4 FORFEITURE OF NON-VESTED AMOUNT.
14.4.1 In the case of any Participant who has suffered a
Termination of Employment and who has received a distribution of the
vested amount in his Company Matching Deposit Account and his Basic
and Supplemental Before-Tax Deposit Accounts and his Prior Plan
Account, if any (the "Vested Amount"), on or prior to the last day of
the second (2nd) Plan Year following the Plan Year in which such
Termination of Employment occurs, the excess, if any, of the amount in
his Company Matching Deposit Account over the vested amount in such
Account (the "Non-Vested Amount") shall be forfeited upon such
Termination of Employment.
14.4.2 In the case of any Participant who has suffered a
Termination of Employment and who has no Vested Amount at the time of
such Termination of Employment, the amount in his Company Matching
Deposit Account and the Company Matching Deposits subaccount of his
Prior Plan Account shall be forfeited as of the last day of the second
(2nd) Plan Year following the Plan Year during which such Participant
suffers such Termination of Employment.
14.4.3 In the case of any Participant who has suffered a
Termination of Employment and who has not received a distribution of
the Vested Amount on or prior to the last day of the second (2nd) Plan
Year following the Plan Year in which such Termination of Employment
occurs, the Non-Vested Amount shall be forfeited as of the last day of
the Plan Year in which the Participant incurs five (5) consecutive
One-Year Periods of Severance.
14.4.4 Subject to the provisions of Subsection hereof,
forfeited, Non-Vested Amounts shall first reduce the Company Matching
Deposits of each Participating Company under Subsection , then at the
sole discretion of the Administrative Committee, they may be used to
reduce reasonable costs, charges and expenses incurred in the
administration of the Plan (as described in Section 5.13 hereof) which
were incurred during the Plan Year of reference. If the amount
forfeited with respect to a Plan Year exceeds the amounts described in
the prior sentence, the excess shall be treated as an increase in the
specified percentage determined in accordance with Subsection for the
Plan Year.
14.5 RESTORATION OF FORFEITED NON-VESTED AMOUNT.
14.5.1 In the event a Participant: (i) who has received a
distribution of the vested amount in his Company Matching Deposit
Account or his Prior Plan Company Matching Deposit subaccount in
accordance with Section hereof, or (ii) who has no vested amount in
his Company Matching Deposit Account or his Prior Plan Company
Matching Deposit subaccount at the time of his Termination of
Employment as described in Subsection hereof returns to employment
with a Participating Company as an Employee prior to the date on which
such Participant has incurred five (5) consecutive One-Year Periods of
Severance, the amount in such Participant's Company Matching Deposit
Account and his Prior Plan Company Matching Deposit subaccount which
was forfeited pursuant to Section hereof (without adjustment for any
gains or losses in the Trust Fund subsequent to such forfeiture) shall
be restored to such Participant's Company Matching Deposit Account and
his Prior Plan Company Matching Deposit subaccount; provided, however,
that if a Participant received a distribution of the vested amount of
his Company Matching Deposit Account and his Prior Plan Company
Matching Deposit subaccount and is reemployed by a Participating
Company as an Employee more than one year after his Termination of
Employment, such restoration shall not occur unless and until: (i)
such Participant repays to the Plan the full amount of his Company
Matching Deposit Account and his Prior Plan Company Matching Deposit
subaccount previously distributed to him, and (ii) such Participant's
repayment is made before the earlier of the end of (I) the five (5)
year period beginning with the Participant's date of reemployment or
(II) a period of five (5) consecutive One-Year Periods of Severance
commencing after the date on which such Participant received such
distribution. Upon the restoration of a Participant's Company
Matching Deposit Account and his Prior Plan Company Matching Deposit
subaccount as provided for hereinabove, the vested amount in such
Participant's Company Matching Deposit Account and his Prior Plan
Company Matching Deposit subaccount (whether attributable to amounts
restored, amounts, if any, repaid by the Participant or additional
amounts added to such Account after such reemployment) shall
thereafter be determined in accordance with the provisions of this
Section without regard to such Participant's original Termination of
Employment.
14.5.2 The restoration of a Participant's Non-Vested Amount in
his Company Matching Deposit Account and his Prior Plan Company
Matching Deposit subaccount as provided for in Subsection above,
shall be made from the Non-Vested Amounts forfeited pursuant to
Section hereof during the Plan Year of such restoration before any
use of such forfeitures as provided in Subsection hereof. In the
event there are not sufficient forfeitures to restore the entire
amount owing to Participants under Subsection above, the additional
amount necessary for restoration shall be contributed by the
Participating Company employing such Participant as a special
contribution to be allocated to the Company Matching Deposit Account
or Prior Plan Account of the affected Participant.
SECTION 15
PAYMENT OF BENEFITS
15.1 AMOUNT OF PAYMENT. Upon a Participant's retirement, Total and
Permanent Disability, death or Termination of Employment, he or his
Beneficiary shall be entitled to an amount computed in accordance with the
provisions of Sections , or , as applicable.
15.2 METHOD OF AND TIME FOR DISTRIBUTION OF BENEFITS.
15.2.1 Subject to Section , upon a Participant's Termination
of Employment, retirement, Total and Permanent Disability or death,
the Participant or, if applicable, the Beneficiary, may elect
distribution in the form of a lump sum payment of the vested amounts
in the Participant's Accounts valued as of the most recent available
Valuation Date preceding the date of distribution, paid as soon as
administratively practicable following the Participant's request for
distribution. For Prior Plan Accounts only, the Participant or
Beneficiary may elect distribution in the form of substantially equal
annual, quarterly or monthly installments payable over a ten (10) year
period.
15.2.2 Notwithstanding any other provision of this Section to
the contrary, if the vested amounts in the Participant's Accounts
(other than his Rollover Account) do not exceed Three Thousand Five
Hundred Dollars ($3,500), distribution shall be made as provided in
Subsection , as if the Participant had requested distribution within
sixty (60) days after the date the Participant terminated employment.
15.2.3 Subject to the provisions of this Section , if a
Participant or his Beneficiary is entitled to a distribution pursuant
to Section , or hereof, such amounts shall be distributed not later
than the sixtieth (60th) day after the close of the Plan Year in which
occurs the latest of:
15.2.3.1 The date on which the Participant attains or would
have attained sixty-five (65) years of age;
15.2.3.2 The tenth (10th) anniversary of the year in which
the Participant commenced participation in the Plan; or
15.2.3.3 The Participant's termination of employment or
death.
15.2.4 Notwithstanding any other provision of this Section to
the contrary, no distribution shall be made before the earlier of the
Participant's Retirement Date or death without the Participant's
written consent to the commencement of such distribution obtained not
more than ninety (90) days prior to such commencement of distribution,
if the combined vested value of such Participant's Company Matching
Deposit Account, and Basic and Supplemental Before-Tax Deposit
Accounts as of such date exceeds Three Thousand Five Hundred Dollars
($3,500).
15.2.5 Explanation to Participants: no less than 30 days and
no more than 90 days prior to commencement of distribution, the
Participant must be furnished with a general description of the
material features, and an explanation of the relative values of any
optional forms of distribution available to him under this Section,
and, if applicable, of his right to defer distribution.
A distribution may commence less than 30 days after the notice
required under section 1.411(a)-11(c) of the Income Tax Regulations is
given, provided that:
15.2.5.1 the Plan Administrator clearly informs the
Participant that the Participant has a right to a period of at
least 30 days after receiving the notice to consider the decision
of whether or not to elect a distribution (and, if applicable, a
particular distribution option), and
15.2.5.2 the Participant, after receiving the notice,
affirmatively elects a distribution.
15.2.6 If, upon the date that payments are to commence under
this Section , the amount of such payment cannot be ascertained, a
payment retroactive to such date may be made no later than sixty (60)
days after the end of the Plan Year during which such date occurs.
15.3 LIMITATIONS ON TIMING. Notwithstanding any other provision of
the Plan to the contrary, distributions must occur at least as rapidly as
required under this Section .
15.3.1 A Participant's entire interest in the Plan shall be
distributed to him no later than the Required Beginning Date.
"Required Beginning Date" shall mean April 1 of the calendar year
following the calendar year in which the Participant attains age
seventy and one-half (70- 1/2 ).
15.3.2 In the event of the death of a Participant prior to
distribution of his benefits under the Plan, distribution of such
benefits to a Beneficiary shall be made within five (5) years after
the death of such Participant.
15.4 PAYMENTS ON PERSONAL RECEIPT EXCEPT IN CASE OF LEGAL DISABILITY.
All payments to any Participant or his Beneficiary, from the Trust Fund,
shall be made to the recipient entitled thereto in person or upon his
personal receipt, in a form satisfactory to the Administrative Committee,
except when the recipient entitled thereto shall be under a legal
disability, or, in the sole judgment of the Administrative Committee,
shall otherwise be unable to apply such payments in furtherance of his own
interests and advantage. The Administrative Committee may, in such event,
in its sole discretion, direct all or any portion of such payments to be
made in any one or more of the following ways: (i) directly to such
person; (ii) to the guardian of his person or of his estate, appointed by
any court of competent jurisdiction; (iii) to his spouse or to any other
person, to be expended for his benefit; (iv) to a custodian under any
applicable Uniform Gifts to Minors Act; or (v) by the Administrative
Committee itself directing the expenditure of any payments so made. The
decision of the Administrative Committee, in each case, will be final,
binding and conclusive upon all persons ever interested hereunder, and,
except in the case of (v) above, the Administrative Committee shall not be
obliged to see to the proper application or expenditure of any payments so
made. Any payment made pursuant to the power herein conferred upon the
Administrative Committee shall operate as a complete discharge of all
obligations of the Trustee and the Administrative Committee, to the extent
of the amounts so paid.
15.5 BENEFITS PAYABLE IN CASH. All disbursements from the Trust Fund
shall be made in cash, and no Participant may elect to receive an in kind
distribution.
15.6 DISTRIBUTION ACCOUNTS. If the payment of a Participant's
Accounts is to be deferred pursuant to Section hereof, the balance in the
Participant's Accounts shall remain invested in accordance with the
Participant's previous directions under Section or in accordance with
Section , whichever is applicable, and such Participant may continue to
direct the investment of his Accounts in the manner and to the extent
permitted in Section as if the Participant were still employed by the
Participating Company or an Affiliated Company.
15.7 METHOD OF DISTRIBUTION FOR PRIOR PLAN ACCOUNTS. Notwithstanding
Section , the distribution of a Participant's Prior Plan Account
(hereafter, in this Section only, the "PPA Distribution") shall be made
in accordance with the provisions of this Section .
15.7.1 If the Participant's PPA Distribution is $3,500 or
less, or if the Participant shall file a timely Qualified Waiver, then
the distribution of the Participant's PPA Distribution shall be made
in a lump sum in cash as provided in Subsection above.
15.7.2 Unless a Participant's PPA Distribution is distributed
in a lump sum cash payment pursuant to Subsection above, his or her
PPA Distribution will be used to purchase from an insurance company a
Qualified Joint and Survivor Annuity, which Annuity will be
distributed to the Participant in lieu of a lump sum cash payment or
installments, at the same time as the distribution under Section .
For purposes of this Section , the following definitions shall apply:
15.7.2.1 A "Qualified Waiver" shall mean a Participant's
written waiver of his right to receive the PPA Distribution in
the form of a Qualified Joint and Survivor Annuity. To be
effective, the written waiver must be received by the
Administrator within ninety (90) days prior to the scheduled
purchase of a Qualified Joint & Survivor Annuity, and must be
consented to in writing by the Participant's spouse ("Spousal
Consent"), and the Spousal Consent must be witnessed by a Notary
Public or by the Administrator. Notwithstanding the Spousal
Consent requirement, if the Participant establishes to the
satisfaction of the Administrator that such written Spousal
Consent may not be obtained because there is no spouse or because
the spouse cannot be located, or for any other reason authorized
by applicable Regulations, the Participant's written waiver will
be deemed to contain the required Spousal Consent. Any Spousal
Consent will be valid only with respect to the spouse who gives
it, or in the event of a deemed Spousal Consent, the designated
spouse. Additionally, a revocation of a previously filed
Qualified Waiver may be made by a Participant without Spousal
Consent at any time prior to the distribution of the
Participant's PPA Distribution.
15.7.2.2 A "Qualified Joint and Survivor Annuity" shall
mean an annuity which provides a monthly payment for the lifetime
of the Participant and, if the Participant has a spouse on the
date payments commence, further provides, upon the Participant's
death, a monthly payment for the lifetime of such surviving
spouse which is fifty percent (50%) of the amount of the monthly
payment made during the joint lives of the Participant and such
surviving spouse.
15.7.3 With regard to the Qualified Waiver, the Plan
Administrator shall provide the Participant within a reasonable period
of time before date on which the Qualified Joint and Survivor Annuity
otherwise would be purchased, a written explanation of:
(i) The terms and conditions of Qualified Joint and
Survivor Annuity, and
(ii) The Participant's right to file the Qualified Waiver,
and
(iii) The right of the Participant's spouse, if any, to
consent to the filing of a Qualified Waiver, and
(iv) The right of the Participant to revoke such Qualified
Waiver, and the effect of such a revocation, as well as the right
to subsequently file another Qualified Waiver.
15.8 DISTRIBUTION LIMITATIONS APPLICABLE TO BEFORE-TAX DEPOSITS.
Notwithstanding any provisions to the contrary herein, no distribution
shall be made of any Before-Tax Deposits or the earnings thereon prior to
the earliest of:
15.8.1 Separation from service, death, or disability (all as
defined in Code Section 401(k) and the regulations thereunder).
15.8.2 Termination of the Plan without establishment of or
maintenance of another defined contribution plan (other than an
employee stock ownership plan as defined in Code Section 4975(e)(7)),
as provided in Treasury Regulations.
15.8.3 The disposition by a Participating Company of
substantially all of the assets used by such Participating Company in
a trade or business of such Participating Company, as provided in
Treasury Regulations.
15.8.4 The disposition by a Participating Company of its
interest in a subsidiary, as provided in Treasury Regulations.
15.8.5 The attainment of age fifty-nine and one-half (59
1/2 ) as provided in Section above or the Required Beginning Date,
as provided in Section above.
15.8.6 Financial hardship pursuant to the provisions of
Section above.
15.9 BENEFITS PAYABLE PURSUANT TO A QUALIFIED DOMESTIC RELATIONS
ORDER. Notwithstanding any other provision of the Plan to the contrary,
immediate distribution of benefits payable to an Alternate Payee pursuant
to a Qualified Domestic Relations Order shall be permitted even though the
Participant whose benefits have been assigned to the Alternate Payee would
not be entitled to receive a distribution at such time, if all of the
following requirements are met: (i) the Participant's Account is one
hundred percent (100%) vested and nonforfeitable at such time pursuant to
Section hereof, (ii) the entire amount payable to the Alternate Payee
does not exceed Three Thousand Five Hundred Dollars ($3,500), or the
Alternate Payee has requested immediate distribution in writing, (iii)
allocation pursuant to Section hereof of all amounts required to be paid
to the Alternate Payee has been completed, and (iv) the Qualified Domestic
Relations Order requires or permits immediate distribution.
In the event an Alternate Payee dies prior to distribution of the
amounts payable to the Alternate Payee pursuant to the Qualified Domestic
Relations Order, the amount payable shall be distributed as provided in
the Qualified Domestic Relations Order. If the Qualified Domestic
Relations Order does not specify how such amounts are to be distributed in
the event of the Alternate Payee's death, the Administrative Committee
shall cause such amounts to be distributed in accordance with applicable
law; without limitation, the Administrative Committee may ascertain the
requirements of applicable law by filing an interpleader or declaratory
judgment action in a court of competent jurisdiction.
15.10 DIRECT ROLLOVERS. Notwithstanding any provision of the Plan to
the contrary that would otherwise limit a distributee's election under
this Section, a distributee may elect, at the time and in the manner
prescribed by the Administrative Committee, to have any portion of an
eligible rollover distribution paid directly to an eligible retirement
plan specified by the distributee in a direct rollover. Such procedures
may limit direct rollovers to eligible rollover distributions of at least
$200 (or those reasonably expected to total at least $200 when aggregated
with other distributions during the Plan Year from this Plan). The
procedures prescribed by the Administrative Committee may include a
deadline for making such an election and may require the distributee to
furnish adequate information regarding the transferee plan. Such
procedures may also require the direct rollover of at least $500 as a
condition of permitting direct rollover of less than the total
distribution and may limit Participants to a single direct rollover.
15.10.1 DEFINITIONS.
15.10.1.1 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 Section 401(a)(9) of the Code; and
the portion of any distribution that is not includable in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
15.10.1.2 ELIGIBLE RETIREMENT PLAN. An eligible retirement
plan is an individual retirement account described in Section
408(a) of the Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust described in Section
401(a) of the Code that is a defined contribution plan that
accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to a
surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
15.10.1.3 DISTRIBUTEE. A distributee includes an employee
or former employee. In addition, the employee's or former
employee's surviving spouse and the employee's or former
employee's spouse or former spouse who is the alternate payee
under a Qualified Domestic Relations Order, as defined in Section
414(p) of the Code, are distributees with regard to the interest
of the spouse of former spouse.
15.10.1.4 DIRECT ROLLOVER. A direct rollover is a payment
by the Plan to the eligible retirement plan specified by the
distributee.
SECTION 16
BENEFIT CLAIMS PROCEDURE
16.1 CLAIMS FOR BENEFITS. Any claim for benefits under the Plan
shall be made in writing to the Administrative Committee. If such claim
for benefits is wholly or partially denied, the Administrative Committee
shall, within ninety (90) days after receipt of the claim, notify the
Participant or Beneficiary of the denial of the claim. Such notice of
denial (i) shall be in writing, (ii) shall be written in a manner
calculated to be understood by the Participant or Beneficiary, and (iii)
shall contain (a) the specific reason or reasons for denial of the claim,
(b) a specific reference to the pertinent Plan provisions upon which the
denial is based, (c) a description of any additional material or
information necessary to perfect the claim, along with an explanation of
why such material or information is necessary and (d) an explanation of
the claim review procedure, in accordance with the provisions of this
Section .
16.2 REQUEST FOR REVIEW OF DENIAL. Within sixty (60) days after the
receipt by the Participant or Beneficiary of a written notice of denial of
the claim, or such later time as shall be deemed reasonable taking into
account the nature of the benefit subject to the claim and any other
attendant circumstances, if the Participant or Beneficiary does not agree
with the denial of the claim, such Participant or Beneficiary or his
authorized representative shall file a written request with the
Administrative Committee that it conduct a full and fair review of the
denial of the claim for benefits. In connection with any request for a
review of the denial of a claim for benefits, the Participant or
Beneficiary, or his authorized representative, may review pertinent
documents relating thereto and may submit issues and comments in writing
to the Administrative Committee.
16.3 DECISION ON REVIEW OF DENIAL. The Administrative Committee
shall deliver to the Participant or Beneficiary a written decision on the
claim within sixty (60) days after the receipt of the aforesaid request
for review, except that if there are special circumstances (such as the
need to hold a hearing, if necessary) which require an extension of time
for processing, the aforesaid sixty (60) day period shall be extended to
one hundred twenty (120) days. Written notice of any such extension shall
be furnished to the Participant or Beneficiary prior to the commencement
of such extension. A decision on a review of a denial of a claim for
benefits shall (i) be written in a manner calculated to be understood by
the Participant or Beneficiary, (ii) include the specific reason or
reasons for the decision, and (iii) contain a specific reference to the
pertinent Plan provisions upon which the decision is based.
SECTION 17
MISCELLANEOUS PROVISIONS
RESPECTING PARTICIPANTS
17.1 PARTICIPANTS TO FURNISH REQUIRED INFORMATION.
17.1.1 Each Participant shall furnish to the Administrative
Committee such information as the Administrative Committee considers
necessary or desirable for purposes of administering the Plan, and the
provisions of the Plan respecting any payments hereunder are
conditional upon the Participant's furnishing promptly such true, full
and complete information as the Administrative Committee may
reasonably request.
17.1.2 Each Participant shall submit proof of such
Participant's age to the Administrative Committee. The Administrative
Committee shall, if such proof of age is not submitted as required,
use as conclusive evidence thereof, such information as is deemed by
it to be reliable, regardless of the source of such information. Any
adjustment required by reason of lack of proof or the misstatement of
the age of persons entitled to benefits hereunder, by the Participant
or otherwise, shall be in such manner as the Administrative Committee
deems equitable.
17.1.3 Any notice or information which according to the terms
of the Plan or the rules of the Administrative Committee must be filed
with the Administrative Committee, shall be deemed so filed if
addressed and either delivered in person or mailed, postage fully
prepaid, to the Administrative Committee. Whenever a provision herein
requires that a Participant (or the Participant's Beneficiary) give
notice to the Administrative Committee within a specified number of
days or by a certain date, and the last day of such period, or such
date, falls on a Saturday, Sunday, or company holiday, the Participant
(or the Participant's Beneficiary) will be deemed in compliance with
such provision if notice is delivered in person to the Administrative
Committee or is mailed, properly addressed, postage prepaid, and
postmarked on or before the business day next following such Saturday,
Sunday or company holiday. The Administrative Committee may, in its
sole discretion, modify or waive any required notice; provided,
however, that such modification or waiver must be administratively
feasible, must be in the best interest of the Participant, and must be
made on the basis of rules of the Administrative Committee which are
applied uniformly to all Participants.
17.2 PARTICIPANTS' RIGHTS IN TRUST FUND. No Participant or other
person shall have any right, title or interest in, to or under the Trust
Fund, or any part of the assets thereof, except and to the extent
expressly provided in the Plan.
17.3 INALIENABILITY OF BENEFITS.
17.3.1 RESTRICTIONS ON ASSIGNMENT. The benefits provided
hereunder are intended for the personal security of persons entitled
to payment under the Plan, and are not subject in any manner to the
debts or other obligations of the persons to whom they are payable.
The interest of a Participant or such Participant's Beneficiary or
Beneficiaries may not be sold, transferred, assigned or encumbered in
any manner, either voluntarily or involuntarily, and any attempt so to
anticipate, alienate, sell, transfer, assign, pledge, encumber, or
charge the same shall be null and void; neither shall the Trust Fund
nor any benefits thereunder or hereunder be liable for or subject to
the debts, contracts, liabilities, engagements or torts of any person
to whom such benefits or funds are payable, nor shall they be subject
to garnishment, attachment, or other legal or equitable process nor
shall they be an asset in bankruptcy. All of the provisions of this
Section , however, are subject to Section .
17.3.2 EXCEPTION FOR QUALIFIED DOMESTIC RELATIONS ORDER.
17.3.2.1 The prohibitions contained in Subsection hereof
shall not apply to the creation, assignment or recognition of a
right to any benefit payable with respect to a Participant
pursuant to a Qualified Domestic Relations Order.
17.3.2.2 The Plan Administrator shall establish written
procedures for the determination of the qualified status of a
domestic relations order.
17.3.2.3 Upon receiving a domestic relations order, the
Plan Administrator shall notify the Participant and Alternate
Payee named in the order, in writing, of the receipt of the order
and the Plan's procedures for determining the qualified status of
the order. Within a reasonable period of time after receiving
the domestic relations order, the Plan Administrator shall
determine the qualified status of the order and shall notify the
Participant and the Alternate Payee, in writing, of its
determination. The Plan Administrator shall provide notice under
this paragraph by mailing such notice to the individual's address
specified in the domestic relations order, or in a manner
consistent with Department of Labor regulations.
If any portion of the Participant's Account is payable during the
period the Plan Administrator is making its determination of the
qualified status of the domestic relations order, the Administrative
Committee shall direct the Trustee to segregate the amounts payable in
a separate account and to invest the segregated account solely in
fixed income investments. If the Plan Administrator determines the
order is a Qualified Domestic Relations Order within eighteen (18)
months of the time for commencement of distribution under the order,
the Administrative Committee shall direct the Trustee to distribute
the segregated account in accordance with the order. If the Plan
Administrator does not make its determination of the qualified status
of the order within eighteen (18) months after the time for
commencement of distribution under the order, the Administrative
Committee shall direct the Trustee to distribute the segregated
account in the manner the Plan would distribute if the order did not
exist and shall apply the order prospectively if the Plan
Administrator later determines the order is a Qualified Domestic
Relations Order.
To the extent it is not inconsistent with the provisions of the
Qualified Domestic Relations Order, the Trustee shall segregate the
amount subject to the Qualified Domestic Relations Order in a separate
account and invest the account in federally insured, interest-bearing
savings account(s) or time deposit(s) (or a combination of both),
direct obligations of the United States, or any other investment
providing for guarantee of principal and a fixed rate of return. Any
segregated account shall remain a part of the Trust, but it alone
shall share in any income it earns, and it alone shall bear any
expense or loss it incurs.
The Trustee shall make any payments or distributions required
under this Subsection by separate benefit checks or other separate
distribution to the Alternate Payee(s).
17.3.2.4 "Qualified Domestic Relations Order" shall mean an
order which:
17.3.2.4.1 Relates to the provision of child support,
alimony payments, or marital property rights to a spouse,
child, or other dependent of a Participant;
17.3.2.4.2 Is made pursuant to a state domestic
relations law (including a community property law);
17.3.2.4.3 Creates or recognizes the existence of an
Alternate Payee's right to, or assigns to an Alternate Payee
the right to, receive all or a portion of the benefits
payable with respect to a Participant under the Plan; and
17.3.2.4.4 Is determined by the Plan Administrator to
meet all applicable requirements pursuant to the procedure
established by the Committee for determining whether an
order is a Qualified Domestic Relations Order.
A Qualified Domestic Relations Order includes a
domestic relations order issued before January 1, 1985 that
is treated by the Plan Administrator as a Qualified Domestic
Relations Order pursuant to the Retirement Equity Act of
1984.
17.3.2.5 "Alternate Payee" shall mean an individual
entitled to benefits under the Plan pursuant to a Qualified
Domestic Relations Order.
17.4 ADDRESS FOR MAILING OF BENEFITS.
17.4.1 Each Participant and each other person entitled to
benefits hereunder shall file with the Administrative Committee from
time to time in writing such Participant's post office address and
each change of address. Any check representing payment hereunder and
any communication addressed to a Participant, an Employee or
Beneficiary, at such person's last address filed with the
Administrative Committee, or if no such address has been filed, then
at such person's last address as indicated on the records of a
Participating Company, shall be deemed to have been delivered to such
person on the date on which such check or communication is deposited,
postage prepaid, in the United States mail.
17.4.2 If the Administrative Committee is in doubt as to
whether payments are being received by the person entitled thereto, it
shall, by registered mail addressed to the person concerned, at his
address last known to the Administrative Committee, notify such person
that all unmailed and future payments shall be withheld until he
provides the Administrative Committee with evidence of his continued
life and his proper mailing address.
17.5 UNCLAIMED ACCOUNT PROCEDURE. Neither the Trustee nor the
Administrative Committee shall be obliged to search for, or ascertain the
whereabouts of any Participant, Beneficiary or Alternate Payee. The
Administrative Committee, by certified or registered mail addressed to
such Participant's, Beneficiary's or Alternate Payee's last known address,
shall notify the Participant, Beneficiary or Alternate Payee that such
Participant, Beneficiary or Alternate Payee is entitled to a distribution
under this Plan, and the notice shall quote the provisions of this Section
. If any distribution or payment which is not claimed by the person
entitled thereto or before the termination or discontinuance of the Plan,
whichever occurs first, the Administrative Committee shall treat the
Participant's, Beneficiary's or Alternate Payee's unclaimed benefit as
forfeited. Such forfeited amounts shall be added to forfeitures and used
as herein provided.
If a Participant, Beneficiary or Alternate Payee who has incurred a
forfeiture of his benefits under the provisions of the first paragraph of
this Section makes a claim for such forfeited benefit, at any time prior
to termination or discontinuance of the Plan, the Administrative Committee
shall restore the Participant's, Beneficiary's or Alternate Payee's
forfeited benefit to the same dollar amount as the dollar amount of the
benefit forfeited, unadjusted for any gains or losses occurring subsequent
to the date of the forfeiture. The Administrative Committee shall make
the restoration, during the Plan Year in which the Participant,
Beneficiary or Alternate Payee makes the claim, first from the amount, if
any, of Participant forfeitures the Administrative Committee otherwise
would use for the Plan Year, and then from the amount, or additional
amount, the Participating Company for whom such Participant was employed
shall contribute to the Plan to enable the Administrative Committee to
make the required restoration. The Administrative Committee shall direct
the Trustee to distribute the Participant's, Beneficiary's or Alternate
Payee's restored benefit to him in a lump sum not later than sixty (60)
days after the close of the Plan Year in which the Administrative
Committee restores the forfeited benefit.
SECTION 18
LOANS TO PARTICIPANTS,
BENEFICIARIES AND ALTERNATE PAYEES
Upon the written application of any Participant (and any Former
Participant or Beneficiary who is a party-in-interest with respect to the
Plan and who has an undistributed Account under the Plan) made to the
Administrative Committee on such form and accompanied by such additional
documentation and information as the Administrative Committee shall
require, the Administrative Committee shall, if the Administrative
Committee determines the loan would comply with all of the loan
requirements, make a loan to such individual (the "Borrower"); provided,
however, that the amount of any such loan to a Borrower when added to the
outstanding balance of all other such loans, if any, made to such Borrower
hereunder, shall not exceed the lesser of (a) Fifty Thousand Dollars
($50,000) reduced by the excess, if any, of the highest outstanding
balance of loans from the Plan during the one-year period ending on the
day before the date on which the loan is made, over the outstanding
balance of loans from the Plan on the date on which the loan is made; or
(b) fifty percent (50%) of the vested amounts in all of the Borrower's
Accounts valued as of the Valuation Date coincident with or next preceding
the date the loan is approved. The Administrative Committee may establish
uniform and nondiscriminatory rules which further limit the amount and the
Accounts from which Participants, Beneficiaries and Alternate Payees may
borrow from the Trust so long as such rules are in writing and are
distributed to Participants, Beneficiaries and Alternate Payees. Loans
shall be available to all Participants, Beneficiaries and Alternate Payees
on a reasonably equivalent basis, and shall not be made available to
Highly Compensated Employees, as a percentage of their Accounts greater
than the percentage of the Accounts made available to other Participants,
Beneficiaries or Alternate Payees. All such loans shall be subject to the
following terms and conditions:
(a) Interest will be based on a reasonable rate of interest
which shall be commensurate with the interest rates charged by persons
in the business of lending money for loans of a similar nature. This
reasonable rate of interest shall be determined by the Administrative
Committee, in its sole discretion, through reasonable investigation of
the interest rates charged by lenders in Fort Smith, Arkansas for
loans of a similar nature at or near the time that the Plan loan is
granted. Administrative fees related to a loan may be charged against
the loan proceeds and/or the Borrower's Account in accordance with
rules prescribed by the Administrative Committee.
(b) Any loan made to a Borrower shall be considered a directed
investment of such Borrower. The Administrative Committee shall,
subject to any terms and conditions imposed by the Trustee, establish
uniform policies and procedures regarding the manner in which the
amount of any loan shall be obtained from the Investment Funds
referred to in Section hereof to which the Borrower has directed the
investment of the amounts credited to his Accounts. Repayments of
principal amounts and interest paid on such loan shall be credited to
the Borrower's Account from which the loan was made on the basis of
the amount of the loan from each such account. Repayments of
principal amounts and interest payments on any loan shall be invested
among the Investment Funds in accordance with the Borrower's current
investment direction for his Accounts pursuant to Section .
(c) Loans shall be evidenced by promissory notes in the form
approved by the Administrative Committee, which shall specify the time
and manner of repayment as determined by the Administrative Committee
in accordance with uniform and nondiscriminatory rules.
Notwithstanding the foregoing provisions, it is generally intended
that repayment of a loan by an Employee will be made by payroll
deduction. All loans shall be amortized in level payments made no
less frequently than quarterly over the term of the loan. In no event
shall any loan be repayable over a period in excess of five (5) years
from the date such loan is made, unless such loan is used to acquire
any dwelling unit which within a reasonable time is to be used
(determined at the time the loan is made) as the principal residence
of the Borrower, in which case, the loan shall be repayable over a
reasonable period as determined in accordance with uniform rules
established by the Administrative Committee.
(d) Every loan shall be secured by fifty percent (50%) of the
amount in the Borrower's Accounts under the Plan, and such other
security, if any, as the Administrative Committee shall deem necessary
to ensure that the loan is adequately secured.
(e) Loan funds shall be disbursed as soon as practicable
following receipt by the Administrative Committee of the loan
application.
(f) An "Event of Default" shall be deemed to have occurred if
two (2) consecutive loan repayments are not made on or before the due
date of the second (2nd) of such payments. When an Event of Default
occurs, the Administrative Committee shall offset, to the extent
legally permissible, the unpaid amount (including interest) against
the Borrower's Accounts to the extent such Accounts are security for
the loan. To the extent not so offset, the unpaid balance will bear
interest at the maximum legal rate until offset.
(g) No loans shall be made for less than One Thousand Dollars
($1,000).
(h) No Borrower shall have more than one loan outstanding at any
time. If a Plan loan is prepaid, the Borrower may not take another
loan until after the expiration of at least sixty (60) days from the
date such prepayment occurred.
(i) The Administrative Committee shall establish such additional
loan policies and procedures as are necessary to provide uniform and
nondiscriminatory rules governing the making of loans to Participants,
Beneficiaries and Alternate Payees.
(j) Loans shall not be made to the extent they would violate
Section 4975 of the Code or Section 406 of ERISA and the regulations
thereunder, to the extent they would be taxed as distributions to
Participants under Section 72(p) of the Code, or to the extent they
would violate any applicable law, and all provisions hereof shall be
interpreted accordingly.
SECTION 19
ADOPTION OF PLAN BY AFFILIATED COMPANY
Any Affiliated Company, whether or not presently existing, may, with
the approval of the Board of Directors of the Sponsoring Company, adopt
this Plan pursuant to appropriate written resolutions of the Board of
Directors of such Affiliated Company and, if appropriate, by executing
such documents, if any, with the Trustee as may be necessary to make such
Affiliated Company a party to the Trust Agreement as a Participating
Company. Any Affiliated Company which adopts the Plan is thereafter a
Participating Company with respect to its Employees for purposes of the
Plan.
SECTION 20
WITHDRAWAL FROM PLAN
20.1 NOTICE OF WITHDRAWAL. Any Participating Company may, with the
approval of the Board of Directors of the Sponsoring Company, as of any
Valuation Date, withdraw from the Plan upon giving the Administrative
Committee and the Trustee at least thirty (30) days' notice in writing of
its intention to withdraw.
20.2 SEGREGATION OF TRUST ASSETS UPON WITHDRAWAL. Upon the
withdrawal of a Participating Company pursuant to Section , the Trustee
shall segregate the share of the assets in the Trust Fund, the value of
which shall equal the total credited to the Accounts of Participants of
the withdrawing Participating Company. The determination of which assets
are to be so segregated shall be made by the Trustee, in its sole
discretion, after taking into account the investment selections provided
for in Section hereof.
20.3 EXCLUSIVE BENEFIT OF PARTICIPANTS. Neither the segregation and
any transfer of the Trust assets upon the withdrawal of a Participating
Company nor the execution of a new agreement and/or declaration of trust
by such withdrawing Participating Company shall operate to permit any part
of the Trust Fund to be used for or diverted to purposes other than for
the exclusive benefit of the Participants.
20.4 APPLICABILITY OF WITHDRAWAL PROVISIONS. The withdrawal
provisions contained in this Section shall be applicable only if the
withdrawing Participating Company continues to cover its Participants and
eligible Employees in another profit-sharing plan and trust qualified
under Sections 401 and 501 of the Code. Otherwise, the termination
provisions of the Plan and Trust shall apply.
SECTION 21
AMENDMENT OF THE PLAN
The Board of Directors of the Sponsoring Company reserves the right to
amend the Plan with respect to all Participating Companies at any time and
from time to time. In addition, the Board of Directors of each
Participating Company may amend the Plan with respect to such
Participating Company at any time, and from time to time, pursuant to
written resolutions adopted by such Board of Directors, provided the
Sponsoring Company approves such amendment. Unless otherwise permitted by
law, no amendment shall permit any part of the Trust Fund to revert to or
be recoverable by a Participating Company or be used for or diverted to
purposes other than the exclusive benefit of the Participants or their
Beneficiaries, or deprive any Participant of any interest he might have in
the Trust Fund at the time of the amendment to the extent that such
interest would be available to the Participant under Section hereof were
he to voluntarily resign as of the effective date of the amendment.
(a) Under no condition, shall such amendment, amendments, or
restatements increase the duties or responsibilities, or decrease the
compensation, privileges, and immunities of the Trustee without the
Trustee's written consent.
(b) Under no condition, shall such amendment change the vesting
schedule to one which would result in the nonforfeitable percentage of
the accrued benefit derived from Company Matching Deposits (determined
as of the later of the date of the adoption of the amendment or of the
effective date of the amendment) of any Participant being less than
such nonforfeitable percentage computed under the Plan without regard
to such amendment; no amendment shall change the vesting schedule
unless each Participant with three (3) or more Vesting Years of
Service, is permitted to elect, within the election period described
below, to have his nonforfeitable percentage computed under the Plan
without regard to the amendment. The election period described herein
shall begin no later than the date upon which the amendment is adopted
and shall end no later than the latest of the following dates: (i) the
date which is sixty (60) days after the day the amendment is adopted,
(ii) the date which is sixty (60) days after the day the amendment
becomes effective, or (iii) the date which is sixty (60) days after
the day the Participant is issued a written notice of the amendment by
the Sponsoring Company.
(c) Subject to the above stated limitations and the requirement
that no amendment shall eliminate, except with respect to any future
contributions or future accrual of benefits and except as otherwise
permitted by Treasury regulations or rulings, any nondiscretionary
optional form of payment (as provided in Treasury Regulation Section
1.411(d)-4 and Code Section 411(d)(6)) with respect to any Participant
who is a Participant immediately prior to the amendment, the
Sponsoring Company shall have the power to amend the Plan and Trust
Agreement, retroactively or otherwise, in any manner in which it deems
desirable, including, but not by way of limitation, the power to
change any provisions relating to the administration of the Plan and
Trust Fund, and to change any provisions relating to the benefits or
payment of any of the assets of the Trust Fund. Each such amendment
shall become effective when executed by the Sponsoring Company unless
a different effective date is specified in the amendment.
(d) Notwithstanding anything herein to the contrary, this Plan
may be amended at any time by the Sponsoring Company if necessary or
desirable in order to have it conform to the provisions and
requirements of the Code or any other law with respect to qualified
employees' plans and trusts, and no such amendment shall be considered
prejudicial to the rights of any Participant hereunder or of any
Beneficiary, Alternate Payee or Employee. Further, it is understood
that any provisions of this Plan as herein contained which are
contrary to the requirements of the Code for a qualified tax exempt
employees' plan and trust shall be deemed void and of no effect,
without affecting the validity of other provisions hereof.
SECTION 22
PERMANENCY OF THE PLAN
22.1 RIGHT TO TERMINATE PLAN. Each Participating Company
contemplates that the Plan shall be permanent and that it shall be able to
make contributions to the Plan. Nevertheless, in recognition of the fact
that future conditions and circumstances cannot now be entirely foreseen,
each Participating Company reserves the right to terminate (as to such
Participating Company) either the Plan or both the Plan and the Trust, and
the Sponsoring Company reserves the right to terminate the Plan and the
Trust in its entirety.
22.2 MERGER OR CONSOLIDATION OF PLAN AND TRUST. Neither the Plan nor
the Trust may be merged or consolidated with, nor may its assets or
liabilities be transferred to, any other plan or trust, unless each
Participant 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 he would have been entitled to receive
immediately before the merger, consolidation, or transfer (if the Plan had
then terminated).
22.3 CONTINUANCE BY SUCCESSOR COMPANY. In the event of the
liquidation, dissolution, merger, consolidation or reorganization of a
Participating Company, the successor company may adopt the Plan and Trust
for the benefit of the employees of such Participating Company. If such
successor company does adopt the Plan and Trust, it shall, in all
respects, be substituted for such Participating Company under the Plan and
Trust. Any such substitution of such successor company shall constitute an
assumption of Plan liabilities by such successor company, and such
successor company shall have all of the powers, duties and
responsibilities of such Participating Company under the Plan and Trust.
If such successor company does not adopt the Plan and Trust, the Plan and
Trust shall be terminated with respect to such Participating Company in
accordance with the provisions of the Plan and Trust Agreement.
SECTION 23
DISCONTINUANCE OF DEPOSITS AND TERMINATION
23.1 DISCONTINUANCE OF DEPOSITS. Whenever a Participating Company
determines that it is impossible or inadvisable for it to make further
contributions as provided in the Plan, the Board of Directors of such
Participating Company may, without terminating the Trust, adopt an
appropriate resolution permanently discontinuing all further contributions
by such Participating Company. A certified copy of such resolution shall
be delivered to the Administrative Committee and the Trustee. Thereafter,
the Administrative Committee and the Trustee shall continue to administer
all the provisions of the Plan which are necessary and remain in force,
other than the provisions relating to contributions by such Participating
Company. However, the Trust shall remain in existence with respect to
such Participating Company and all of the provisions of the Trust
Agreement shall remain in force.
23.2 TERMINATION OF PLAN AND TRUST. If the Board of Directors of a
Participating Company determines to terminate (as to such Participating
Company) the Plan and Trust completely, they shall be terminated insofar
as they are applicable to such Participating Company as of the date
specified in certified copies of resolutions of such Board of Directors
delivered to the Administrative Committee and the Trustee. Upon such
termination of the Plan and Trust, after payment of all expenses and
proportional adjustment of Accounts of Participants employed by such
Participating Company to reflect such expenses, Trust Fund profits or
losses, and subject to the limitations contained in Section hereof,
allocations of any previously unallocated funds to the date of
termination, such Participating Company's Participants shall be entitled
to receive the amount then credited to their respective Accounts in the
Trust Fund, subject to Section above. The Administrative Committee shall
make payment to such Participants of such amount in cash or in the form of
Arkansas Best Stock, in accordance with the distribution options set forth
in Section of the Plan; provided, however, that if the Administrative
Committee determines that certain assets are not readily salable at their
fair market value or cannot be sold due to legal restrictions, the
Administrative Committee shall distribute such assets in kind.
23.3 RIGHTS TO BENEFITS UPON TERMINATION OF PLAN OR COMPLETE
DISCONTINUANCE OF DEPOSITS. Upon the termination or partial termination
of the Plan or the complete discontinuance of contributions by a
Participating Company, the rights of each of such Participating Company's
Employees who are then Participants (or, in the case of a partial
termination, who are then Participants affected by the termination) and
the rights of each other person, other than a person who has forfeited his
non-vested amounts pursuant to Section hereof prior to the effective date
of such termination (or partial termination) or complete discontinuance,
to the amounts credited to his Accounts at such time, shall be
nonforfeitable without reference to any formal action on the part of such
Participating Company, the Administrative Committee or the Trustee.
SECTION 24
STATUS OF EMPLOYMENT RELATIONS
The adoption and maintenance of the Plan and Trust shall not be deemed
to constitute a contract between a Participating Company and its Employees
or to be consideration for, or an inducement or condition of, the
employment of any person. Nothing herein contained shall be deemed (i) to
give to any Employee the right to be retained in the employ of a
Participating Company; (ii) to affect the right of a Participating Company
to discipline or discharge any Employee at any time; (iii) to give a
Participating Company the right to require any Employee to remain in its
employ; or (iv) to affect any Employee's right to terminate his employment
at any time.
SECTION 25
BENEFITS PAYABLE BY TRUST
All benefits payable under the Plan shall be paid or provided for
solely from the Trust. The Participating Company assumes no liability or
responsibility therefor.
SECTION 26
EXCLUSIVE BENEFIT OF TRUST FUND
26.1 LIMITATION ON REVERSIONS. Except as otherwise provided in
Section hereof or in this Section , the assets of the Trust Fund shall be
held for the exclusive purposes of providing benefits to Participants and
their Beneficiaries and defraying reasonable expenses of administering the
Plan and shall not inure to the benefit of any Participating Company.
26.2 UNALLOCATED AMOUNTS UPON TERMINATION OF PLAN AND TRUST. In the
event the Plan and Trust are terminated, any previously unallocated
amounts maintained in a suspense account in accordance with the provisions
of Section hereof which cannot be allocated to Participants upon the
termination of the Plan and Trust pursuant to Section hereof because of
the limitations contained in Sections through hereof, shall revert to
the Participating Company or Participating Companies employing the
Participant at the time of such termination.
26.3 MISTAKE OF FACT OR DISALLOWANCE OF DEDUCTION. If the
Administrative Committee in good faith determines that (a) a contribution
was made by reason of a mistake of fact, or (b) a contribution is
conditioned on its being deductible under Code Section 404, but the
Internal Revenue Service disallows such deduction, the amount of the
excess contribution less losses attributable thereto may, upon direction
of the Administrative Committee, be returned to the contributing
Participating Company. All payments of returned contributions under this
Section shall be made within one (1) year from the date of the payment of
such mistaken contribution or the disallowance by the Internal Revenue
Service of the deduction, whichever is applicable. The amount of the
excess contribution shall be the excess of (1) the amount contributed over
(2) the amount that would have been contributed had there not occurred a
mistake of fact or had the deduction not been disallowed. Earnings
attributable to the excess contribution shall not be returned to the
contributing Participating Company, but losses attributable thereto shall
reduce the amount of such contribution to be so returned. Furthermore, if
the withdrawal of the amount attributable to the mistaken contribution
would cause the balance of a Participant's Account to be reduced to an
amount which is less than the balance which would have been in said
Account had the mistaken amount not been contributed, then the amount to
be returned to the Participating Company under this Section will be
reduced so as to avoid any such reduction.
26.4 FAILURE OF INITIAL QUALIFICATION OF PLAN AND TRUST. The initial
establishment of the Plan and Trust by any Participating Company is
contingent upon obtaining the approval of the Internal Revenue Service.
In the event that the Internal Revenue Service fails initially to approve
the Plan and Trust as to any Participating Company, the Trustee shall,
after paying any expenses attributable to such initial establishment,
return to such Participating Company any remaining contribution made by
such Participating Company. Such remaining contribution shall be returned
as promptly as practicable, but in no event later than one (1) year after
the date of the final denial of qualification of the Plan as to such
Participating Company, including the final resolution of any appeals
before the Internal Revenue Service or the courts.
SECTION 27
APPLICABLE LAW
To the extent not preempted by ERISA, the Plan and Trust which is a
part thereof shall be construed, regulated, interpreted and administered
under and in accordance with the laws of the State of Arkansas.
SECTION 28
INTERPRETATION OF THE PLAN AND TRUST
It is the intention of the Participating Companies that the Plan, and
the Trust established by the Participating Companies to implement the
Plan, shall qualify as a profit-sharing plan and shall comply with the
provisions of Section 401(a), Section 401(k), and Section 501(a) of the
Code and the requirements of ERISA, and the corresponding provisions of
any subsequent laws, and the provisions of the Plan and Trust Agreement
shall be construed to effectuate such intention.
SECTION 29
TOP HEAVY PLAN RULES
29.1 DEFINITIONS. As used in this Section :
29.1.1 "Defined Benefit Plan" shall have the meaning set forth
in Subsection hereof.
29.1.2 "Defined Contribution Plan" shall have the meaning set
forth in Subsection hereof.
29.1.3 "Determination Date" shall mean with respect to any
plan year, the last day of the preceding plan year, except that in the
case of the first plan year of any plan, the last day of such first
plan year.
29.1.4 "Employer" shall mean the Participating Company and any
Affiliated Companies.
29.1.5 "Key Employee" shall mean any person employed or
formerly employed by any Employer (and the beneficiaries of any such
person) who is, at any time during the plan year, or who was, during
any one or more of the four preceding plan years, any one or more of
the following:
29.1.5.1 An officer of an Employer having Limitation Year
Compensation for the applicable Plan Year greater than fifty
percent (50%) of the maximum dollar limitation under Code Section
415(b)(1)(A) (as in effect for the calendar year in which the
Determination Date for such Plan Year falls).
29.1.5.2 One of the ten persons employed by an Employer
having Limitation Year Compensation for the applicable plan year
greater than the maximum dollar limitation under Section
415(c)(1)(A) of the Code as in effect for the calendar year in
which the Determination Date for such plan year falls, and owning
(or considered as owning within the meaning of Section 318 of the
Code) both more than one-half of one percent ( 1/2 of 1%)
interest and the largest interests in the Employer. For purposes
of this Subsection , (i) a person who has some ownership interest
is considered to be one of the top ten owners unless at least ten
other persons own a larger interest than that person, and (ii) if
two or more have the same ownership interest in the Employer, the
person having greater annual Limitation Year Compensation from
all Employers shall be treated as having the larger interest.
29.1.5.3 Any person owning (or considered as owning within
the meaning of Section 318 of the Code) more than five percent
(5%) of the outstanding stock of an Employer or stock possessing
more than five percent (5%) of the total combined voting power of
such stock or more than five percent (5%) of the capital or
profits interest of an Employer which is not a corporation.
29.1.5.4 A person who would be described in Subsection
above if "one percent (1%)" were substituted for "five percent
(5%)" each place it appears in said Subsection , and whose
aggregate annual Limitation Year Compensation from all Employers
is more than One Hundred Fifty Thousand Dollars ($150,000).
29.1.5.5 Notwithstanding any other provision in this Plan
to the contrary, for purposes of determining ownership under this
Subsection , the rules of Sections 414(b), (c) and (m) of the
Code shall not apply in defining who is an Employer.
The determination of who is a Key Employee hereunder shall be
made in accordance with the provisions of Section 416(I)(1) of the
Code and the regulations thereunder.
29.1.6 "Key Employee Participant" shall mean a Participant in
this Plan who is a Key Employee.
29.1.7 "Limitation Year Compensation' shall have the meaning
set forth in Subsection hereof, except that if the Limitation Year
and the plan year under the applicable plan are not the same, then for
purposes of this Section , "plan year" shall be substituted for
"Limitation Year" every place it occurs in said Subsection .
29.1.8 "Permissive Aggregation Group" shall mean the Required
Aggregation Group, plus any other plan or plans of any Employer
selected by the Sponsoring Company, provided that such selected plans,
when considered as a group with the Required Aggregation Group, would
continue to satisfy the requirements of Sections 401(a)(4) and 410 of
the Code.
29.1.9 "Required Aggregation Group" shall mean the group of
plans consisting of (i) all tax qualified plans maintained by the
Employers in which at least one Key Employee participates, and (ii)
any other tax qualified plan maintained by the Employers which enables
a plan described in clause (i) above to meet the requirements of
Sections 401(a)(4) or 410 of the Code.
29.1.10 "Valuation Date" shall mean (i) in the case of a
Defined Contribution Plan, the last day of the plan year for the
appropriate plan, and (ii) in the case of a Defined Benefit Plan, the
date used for computing plan costs for minimum funding, regardless of
whether a valuation is performed that year.
29.1.11 All of the definitions set forth in Section hereof and
not set forth herein shall have the same meaning in this Section.
29.2 DETERMINATION OF TOP HEAVINESS.
29.2.1 This Plan shall be a "Top Heavy Plan" with respect to
any Plan Year if, as of the Determination Date for said Plan Year, any
of the following conditions exists:
29.2.1.1 The Top Heavy Ratio for this Plan exceeds sixty
percent (60%) and this Plan is not part of a Required Aggregation
Group or a Permissive Aggregation Group.
29.2.1.2 This Plan is part of a Required Aggregation Group,
but not part of a Permissive Aggregation Group, and the Top Heavy
Ratio for the Required Aggregation Group exceeds sixty percent
(60%).
29.2.1.3 This Plan is part of a Required Aggregation Group
and part of a Permissive Aggregation Group, and the Top Heavy
Ratio for the Permissive Aggregation Group exceeds sixty percent
(60%).
29.2.2 This Plan shall be a "Super Top Heavy Plan" if it would
be a Top Heavy Plan under the provisions of Subsection above if
"ninety percent (90%)" were substituted for "sixty percent (60%)"
everywhere sixty percent (60%) appears in said Subsection .
29.2.3 The "Top Heavy Ratio" referred to in Subsection above
shall be determined as follows:
29.2.3.1 If the Employers maintain or have maintained one
or more Defined Contribution Plans but have never maintained a
Defined Benefit Plan which has covered or could cover a
Participant in this Plan, the Top Heavy Ratio is a fraction, the
numerator of which is the sum of the account balances under the
Defined Contribution Plans for all Key Employees as of the
Determination Date (including any part of any such account
balance distributed in the five (5) year period ending on the
Determination Date), and the denominator of which is the sum of
all account balances under the Defined Contribution Plans for all
participants as of the Determination Date (including any part of
any such account balance distributed in the five (5) year period
ending on the Determination Date). Both the numerator and the
denominator of the Top Heavy Ratio shall be adjusted to reflect
any contribution which is due but unpaid as of the appropriate
Determination Date. In determining the account balances which
have been distributed in the five (5) year period ending on the
Determination Date, distributions under a terminated plan shall
be included, provided such terminated plan, if it had not been
terminated, would have been included in a Required Aggregation
Group.
29.2.3.2 If the Employers maintain one or more Defined
Contribution Plans and maintain or have maintained one or more
Defined Benefit Plans which have covered or could cover a
Participant in this Plan, the Top Heavy Ratio is a fraction, the
numerator of which is the sum of account balances under the
Defined Contribution Plans for all Key Employees and the present
value of accrued benefits under the Defined Benefit Plans for all
Key Employees, both calculated as of the Determination Date, and
the denominator of which is the sum of the account balances under
the Defined Contribution Plans for all participants and the
present value of accrued benefits under the Defined Benefit Plans
for all participants, both calculated as of the Determination
Date. Both the numerator and denominator of the Top Heavy Ratio
are adjusted for any distribution of an account balance or an
accrued benefit made in the five (5) year period ending on the
appropriate Determination Date and any contribution due but
unpaid as of the appropriate Determination Date. In determining
the account balances or accrued benefits which have been
distributed in the five (5) year period ending on the
Determination Date, distributions under a terminated plan shall
be included, provided such terminated plan, if it had not been
terminated, would have been included in a Required Aggregation
Group.
29.2.3.3 For purposes of Subsections and above, the value
of account balances and the present value of accrued benefits
shall be determined as of the most recent Valuation Date that
falls within or ends with the twelve (12) month period ending on
the Determination Date. The present value of accrued benefits
under Defined Benefit Plans shall be determined under the
actuarial assumptions set forth in each such plan as of said
Valuation Date as if the person voluntarily terminated service as
of such Valuation Date. If any Participant was a Key Employee as
set forth in Subsection above for any prior plan year, but such
Participant ceases to be a Key Employee for any plan year, such
Participant's account balances and accrued benefits shall not be
taken into account for purposes of determining whether this Plan
is a Top Heavy Plan or a Super Top Heavy Plan as of the
Determination Date of said plan year. Accounts and accrued
benefits shall be calculated to include all amounts attributable
to both Employer contributions and contributions by persons
employed by the Employer, but shall exclude amounts attributable
to voluntary deductible contributions by said persons. The
calculation of the Top Heavy Ratios, and the extent to which
distributions, rollovers and transfers are taken into account
shall be made in accordance with Section 416 of the Code and the
regulations thereunder. When aggregating plans for purposes of
an Aggregation Group, the value of account balances and accrued
benefits will be calculated with reference to the Determination
Dates that fall within the same calendar year. Notwithstanding
the provisions of Subsections and above, in determining the
fractions referred to therein, there shall not be taken into
account the accrued benefits or account balances of any person
who has not received any Limitation Year Compensation from any
Employer maintaining any Defined Contribution Plan or Defined
Benefit Plan referred to in such Subsections at any time during
the five (5) year period ending on the Determination Date.
29.3 MINIMUM REQUIREMENTS. Notwithstanding any other provision of
this Plan to the contrary, if the Plan is a Top Heavy Plan for any Plan
Year, then the following provisions shall apply:
29.3.1 MINIMUM ALLOCATION OF PARTICIPATING COMPANY DEPOSITS.
Except as otherwise provided in this Section , for any Plan Year in
which the Plan is a Top Heavy Plan, the Company Matching Deposits
allocated on behalf of each Participant who is not a Key Employee
Participant shall not be less than the lesser of (i) three percent
(3%) of such Participant's Limitation Year Compensation, or (ii) the
largest percentage of the sum of (a) the Company Matching Deposits
allocated on behalf of any Key Employee Participant for that Plan
Year, and (b) such Key Employee Participant's Basic and Supplemental
Before-Tax Deposits for that Plan Year; provided, however, that the
provisions of clause (ii) hereof shall not apply to any plan included
in a Required Aggregation Group if such plan enables a Defined Benefit
Plan included in such Required Aggregation Group to meet the
requirements of Section 401(a)(4) or Section 410 of the Code. The
minimum allocation provided for herein shall be determined without
taking into account contributions or benefits under Chapter 21 of the
Code (relating to the Federal Insurance Contributions Act), Title II
of the Social Security Act, or any other federal or state law, and
shall be made without regard to any contrary provisions of the Plan
regarding the allocation of Participating Company Deposits to affected
Participants which might otherwise result in any such Participant
being entitled to no allocation or a lesser allocation due to the
Participant's failure to complete one thousand (1,000) Hours of
Service (or the equivalent), the Participant's failure to make
mandatory employee contributions, or, in the case of a cash or
deferred arrangement, elective contributions, or the Participant's
failure to earn a stated amount of Compensation; provided however,
that such minimum allocation shall not be required to be made on
behalf of any Participant who is not actively employed by a
Participating Company on the last day of the applicable Plan Year.
For purposes of this Subsection , all Defined Contribution Plans
required to be included in an Aggregation Group shall be treated as
one plan.
29.3.2 VESTING. Any Participant who is credited with an Hour
of Service in the first Plan Year in which the Plan is a Top Heavy
Plan, or in any subsequent Plan Year after such first Plan Year
(whether or not the Plan is a Top Heavy Plan in such subsequent Plan
Year) shall have his percentage of vested benefits owing upon a
Termination of Employment determined pursuant to the following
schedule, in lieu of the Schedule set forth in Section hereof:
VESTING YEARS OF SERVICE PERCENTAGE
Less than 3 years 0%
3 years or more 100%
29.4 MINIMUM BENEFITS FOR EMPLOYERS MAINTAINING DEFINED BENEFIT
PLANS. If any Participant other than a Key Employee Participant is also a
participant under a Defined Benefit Plan maintained by an Employer which
is also a Top Heavy Plan, then Subsection shall not apply, and such
Participant shall receive an allocation of Company Matching Deposits in an
amount which, when added to such Participant's Basic and Supplemental
Before-Tax Deposits, is no less than five percent (5%) of such
Participant's Compensation under the Plan for the applicable Plan Year.
Such allocation shall be made without regard to the amount allocated under
the Plan on behalf of any Key Employee Participant for such Plan Year.
For purposes of this Section , all Defined Contribution Plans required to
be included in an Aggregation Group shall be treated as one plan.
29.5 SUPER TOP HEAVY PLANS. If in any Plan Year in which the Plan is
a Top Heavy Plan, (i) it is also a Super Top Heavy Plan, or (ii) it does
not provide minimum benefits under Subsection hereof after substituting
"four percent (4%)" for "three percent (3%)" contained in clause (i) of
the first sentence of said Subsection, or (iii) if Section hereof
applies, it does not provide minimum benefits under said Section after
substituting "seven and one-half percent (7- 1/2 %)" for "five percent
(5%)" contained in the first sentence of said Section, then, in any such
event, for purposes of the definitions set forth in Subsections and
hereof, the dollar limitations contained in Sections 415(e)(2)(B) and
415(e)(3)(B) of the Code shall be multiplied by 1.0 rather than 1.25.
Notwithstanding the foregoing provisions of this Section , if the
application of said provisions would cause any individual to exceed the
combined limits of Section hereof, if applicable, then the requirements
of this Section shall be suspended as to such individual until such time
as he no longer exceeds the limitations of said Section as modified by
this Section , and during the period of such suspension, said individual
shall receive no allocation of contributions which would be included in
such individual's Annual Additions (as defined in Code Section 415(c))
under this Plan or any other Defined Contribution Plan maintained by an
Employer, and there shall be no accruals of benefits for such individual
under any Defined Benefit Plan maintained by an Employer.
SECTION 30
EFFECTIVE DATE
Upon the execution hereof by the Company, the Plan shall be amended
and restated in its entirety as of October 1, 1995, except that the
provisions of Sections and shall be effective as of May 1, 1995; and
provided, further, that while all such amendments have been incorporated
in this restatement of the Plan, despite their physical omission from this
document, each provision which was in effect on April 30, 1995 or amended
by any amendment or restatement which adopted and effective before the
date of this restatement, shall apply to the same extent as though it were
physically included in this document until the effective date of its
amendment, and all other provisions of the Plan shall be construed so as
to harmonize with such pre-amendment provision until such date of
amendment.
IN WITNESS WHEREOF, INTEGRATED DISTRIBUTION, INC. has caused this Plan
to be executed and attested by the officer hereunto duly authorized, this
______ day of ______________________, 1995, effective as of October 1,
1995.
INTEGRATED DISTRIBUTION, INC.
By:
Title:
ATTEST:
By:
Title:
DII0CE3F 25879-6