MELAMINE CHEMICALS, INC.
EMPLOYEE 401(K) THRIFT PLAN
(RESTATED 1996)
TABLE OF CONTENTS
Page
I DEFINITIONS................................................1
Alternate Payee
Base Compensation
Beneficiary
Benefit Commencement Date
Board of Directors
Break in Service
Change of Control
Code
Company
Company Stock
Controlled Group Member
Disability
Employee
ERISA
Family
Funds
Highly-Compensated Employee
Hour of Service
Matching Contribution
Matching Contribution Account
Net Compensation
Nondeferred Account
Non-Key Employee
Normal Retirement Age
Participant
Plan
Plan Administrator
Plan Year
Qualified Election
Qualified Joint and Survivor Annuity
Required Beginning Date
Retirement Benefit Election Period
Rollover Contribution Account
Salary Deferral Agreement
Salary Deferral Account
Salary Deferral Contribution
Spouse
Top-Heavy
Total Compensation
Trust
Trustee
Valuation Date - Annual Valuation Date
Year of Service
II PARTICIPATION.............................................10
Eligibility Date
Participation
Participation After Reemployment
Rollover Contributions
III SALARY DEFERRAL CONTRIBUTIONS.............................11
Salary Deferral Agreements
Delivery of Salary Deferral Contributions
Dollar Limitation
Return of Excess Deferrals
Actual Deferral Percentage
Discrimination Tests
Special Rules in Connection with ADP Testing
Excess Contributions
IV MATCHING CONTRIBUTIONS....................................14
Matching Contributions
Forfeitures
Delivery of Contributions
Top-Heavy Contributions
Reversion to Company
Adjustments if Salary Deferral Contributions Adjusted
Discrimination Test - Matching Contributions
V VESTING...................................................19
Salary Deferral Account
Matching Contribution Account
Other Accounts
Forfeitures
Aggregation of Periods of Service
Recovery of Forfeiture Upon Retirement
VI ANNUAL ADDITION LIMITATION................................20
Definitions
Annual Additions
Limitation for Other Defined Contribution Plans
Limitation for Defined Benefit Plan
VII INVESTMENTS...............................................22
Trust Fund
Separate Accounts
Investment Funds
Company Stock
Dividends
Stock Dividends, Splits and Recapitalization
Liability for Investment Decisions
VIII ACCOUNTING AND VALUATION..................................24
Allocation of Contributions
Valuation of Trust Funds
Valuation of Participants' Accounts
Accounting Procedures
IX BENEFITS..................................................25
Benefits Upon Termination of Employment
Form of Benefits
When Benefits are Paid or Begin to be Paid
Distribution of Annuity and Installment Benefits
Deferred Payments
Minority or Disability Payments
Form of Distribution
Distributions When Employment Continues after Age 70 1/2
Qualified Domestic Relations Orders
Suspension of Benefits Upon Receipt of a Claim
Direct Rollovers
X LOANS AND WITHDRAWALS.....................................30
Participant Loan Procedures
Withdrawal of Nondeferred Account
Withdrawal From Matching Contribution Account or Rollover
Contribution Account
Withdrawal From Salary Deferral Amount
Financial Hardship
Form of Withdrawal
Order of Withdrawal
Withdrawal By Married Participant
XI DEATH BENEFITS............................................34
Death Benefits
Designation of Beneficiary
Spousal Annuity
XII TOP-HEAVY PROVISIONS......................................34
Definitions
Top-Heavy Status
Minimum Contribution Requirement
Allocation
Accelerated Vesting
XIII ADMINISTRATION............................................37
Administration
Powers
Actions
Bond
Compensation
Expenses
Claims
XIV AMENDMENT AND TERMINATION.................................39
Amendment
Merger
Termination
XV MISCELLANEOUS PROVISIONS..................................39
Governing Law
Diversion
Employment Rights
Action
Liability for Benefits
Evidence
Anticipation of Benefits
Named Fiduciary
Indemnification
Failure to Locate Beneficiary
Voting Rights
Insider Trading Restrictions
Procedure for Participant Elections
XVI TRUST PROVISIONS..........................................41
General Duties
General Powers
Reliance on Committee and Company
Accounts and Reports
Disbursements
Authority of Trustee
Funding Policy; Parties in Interest
Removal or Resignation of Trustee
Successor Trustee
MELAMINE CHEMICALS, INC.
EMPLOYEE 401(K) THRIFT PLAN
(RESTATED 1996)
PREAMBLE
Effective June 1, 1974, Melamine Chemicals, Inc., a
Delaware corporation located in Donaldsonville, Louisiana,
adopted the Triad-Melamine Savings and Investment Plan intended
to qualify as a profit-sharing plan under Section 401(a) of the
Internal Revenue Code, which plan has been amended, on numerous
occasions. Effective July 1, 1985, the Plan was amended,
restated and renamed the Melamine Chemicals, Inc. Employee
401(k) Thrift Plan, and since then the Plan has been intended
to qualify as both a profit-sharing plan under Section 401(a)
and a cash-or-deferred arrangement under Section 401(k) of the
Internal Revenue Code.
In order to incorporate into the Plan the provisions of
six amendments made since the previous restatement, to bring
the Plan into full compliance with the provisions of the Tax
Reform Act of 1986 and subsequent legislation, to modify
certain administration provisions, to allow in-service
withdrawals of Rollover Contributions, and to make other
improvements and clarifications, the Plan is hereby amended and
restated in its entirety, effective (except as otherwise
indicated) July 1, 1989. This restatement shall be effective
for all Employees who are credited with an Hour of Service
after June 30, 1989. The rights and benefits, if any, of
Employees terminated prior to July 1, 1989, shall be determined
in accordance with the provisions of the Plan as in effect on
the respective dates of termination of service of such former
Employees.
ARTICLE I
DEFINITIONS
1. Alternate Payee means any spouse, former spouse,
child, or other dependent of a Participant who is entitled to
benefits from the Participant's accounts under a Qualified
Domestic Relations Order, pursuant to Paragraph 9 of Article
IX.
2. Base Compensation means an Employee's basic salary
or wages (excluding bonuses, overtime and other items of
additional compensation) paid by the Company during the portion
of the Plan Year during which the Employee is eligible to
participate, without deducting any Salary Deferral
Contributions or salary reductions under Code Section 125, but
limited to the amount allowed under Code Section 401(a)(17) to
be taken into account, which amounts are specified in Paragraph
40 of this Article I.
3. Beneficiary means the person or persons to whom a
deceased Participant's benefits are payable.
4. Benefit Commencement Date means the date as of
which an installment or annuity benefit is required to begin,
or the date as of which a lump sum benefit is required to be
paid.
5. Board of Directors means the Board of Directors of
Melamine Chemicals, Inc.
6. Break in Service shall mean a Plan Year during
which an Employee does not complete more than 500 Hours of
Service. If an Employee is absent from work by reason of the
Employee's pregnancy, birth of the Employee's child, placement
of the child with the Employee in connection with the adoption
of such child, or any absence for the purpose of caring for
such child for a period immediately following such birth or
placement, for the purpose of determining whether a Break in
Service has occurred Hours of Service shall be credited for the
computation period in which the absence from work begins, if
credit therefor is necessary to prevent the Employee from
incurring a Break in Service in that computation period,
otherwise Hours of Service shall be credited for the
immediately following computation period. The Hours of Service
shall be equal to those that would normally have been credited
but for such absence or, in any case in which the Plan
Administrator is unable to determine such hours normally
credited, eight Hours of Service per day. The total Hours of
Service required to be credited shall not exceed 501.
7. Change of Control shall mean:
a. The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or
more of either (A) the then outstanding shares of
common stock of the Company (the "Outstanding
Company Common Stock") or (B) the combined voting
power of the then outstanding voting securities of
the Company entitled to vote generally in the
election of directors (the "Outstanding Company
Voting Securities"); provided, however, that the
following acquisitions shall not constitute a
Change of Control: (1) any acquisition directly
from the Company, (2) any acquisition by the
Company, (3) any acquisition by any employee
benefit plan (or related trust) sponsored or
maintained by the Company or any corporation
controlled by the Company or (4) any acquisition by
any corporation pursuant to a transaction which
complies with clauses (A), (B) and (C) of paragraph
(c) of this Paragraph 7; or
b. Any change in the composition of the Board of
Directors of the Company such that individuals who,
as of April 9, 1991, constitute the Board of
Directors (the "Incumbent Board") cease for any
reason to constitute at least a majority of the
Board of Directors; provided, however, that any
individual becoming a director subsequent to that
date whose election, or nomination for election by
the Company's shareholders, was approved by a vote
of at least a majority of the directors then
comprising the Incumbent Board shall be considered
as though such individual were a member of the
Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of
office occurs as a result of an actual or
threatened election content with respect to the
election or removal of directors or other actual or
threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board of
Directors; or
c. Approval by the shareholders of the Company of a
reorganization, merger or consolidation (a
"Business Combination"), unless, in each case,
following such Business Combination, (A) all or
substantially all of the individuals and entities
who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially
own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common
stock and the combined voting power of the then
outstanding voting securities entitled to vote
generally in the election of directors, as the case
may be, of the corporation resulting from such
Business Combination (including, without
limitation, a corporation which as a result of such
transaction owns the Company through one or more
subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such
Business Combination of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) no Person
(excluding any employee benefit plan (or related
trust) of the Company or such corporation resulting
from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common
stock of the corporation resulting from such
Business Combination or the combined voting power
of the then outstanding voting securities of such
corporation except to the extent that such
ownership existed prior to the Business Combination
and (C) at least a majority of the members of the
board of directors of the corporation resulting
from such Business Combination were members of the
Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board of
Directors, providing for such Business Combination;
or
d. Approval by the shareholders of the Company of
(A) a complete liquidation or dissolution of the
Company or (B) the sale or other disposition of all
or substantially all of the assets of the Company,
other than to a corporation, with respect to which
following such sale or other disposition, (1) more
than 60% of, respectively, the then outstanding
shares of common stock of such corporation and the
combined voting power of the then outstanding
voting securities of such corporation entitled to
vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all
or substantially all of the individuals and the
entities who were the beneficial owners,
respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities
immediately prior to such sale or other disposition
in substantially the same proportion as their
ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as
the case may be, (2) less than 20% of,
respectively, the then outstanding shares of common
stock of such corporation and the combined voting
power of the then outstanding voting securities of
such corporation entitled to vote generally in the
election of directors is then beneficially owned,
directly or indirectly, by any Person (excluding
any employee benefit plan (or related trust) of the
company or such corporation), except to the extent
that such Person owned 20% or more of the
Outstanding Company Common Stock or Outstanding
Company Voting Securities prior to the sale or
disposition and (3) at least a majority of the
members of the board of directors of such
corporation were members of the Incumbent Board at
the time of the execution of the initial agreement,
or of the action of the Board of Directors,
providing for such sale or other disposition of
assets of the Company or were elected, appointed or
nominated by the Board of Directors.
8. Code means the Internal Revenue Code of 1986, as
amended.
9. Company shall mean Melamine Chemicals, Inc., a
Delaware corporation located in Donaldsonville, Louisiana, and
any entity into which Melamine Chemicals, Inc. may be merged or
consolidated or by which it may be succeeded.
10. Company Stock means voting common stock issued by
the Company.
11. Controlled Group Member shall mean any corporation
which is included with the Company in a controlled group of
corporations, as determined in accordance with Section 414(b)
of the Code, or any unincorporated trade or business which is
under common control with the Company in accordance with
Section 414(c) of the Code, or any organization (whether or not
incorporated) which is a member of an affiliated service group
with the Company in accordance with Section 414(m) of the Code,
or any other entity required to be aggregated with the Company
pursuant to regulations under Section 414(o) of the Code.
12. Disability shall mean a Participant's total and
permanent disability as a result of disease or bodily injury so
as to render the Participant incapable of engaging in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment or impairments that
can be expected to result in death or that have lasted or can
be expected to last for a continuous period of not less than 12
months. The Plan Administrator shall have the exclusive right,
power and discretion to determine, with the assistance of a
competent physician, whether a Participant has suffered
Disability, and a certificate to that effect executed by a duly
authorized officer of the Company and supported by the
affidavit of an examining physician shall be sufficient
evidence of such fact and may be so accepted by the Plan
Administrator without further inquiry, provided that all
Participants under similar circumstances shall be treated
alike.
13. Employee shall mean any person employed by the
Company and who is not represented by a collective bargaining
unit, except as otherwise provided in any applicable collective
bargaining agreement. The term "Employee" shall not include
any person who is a "leased employee", as defined in Code
Section 414(n).
14. ERISA means the Employee Retirement Income Security
Act of 1974, as amended.
15. Family (of an Employee) means the Employee's
spouse, and his lineal ascendants and descendants and their
spouses.
16. Funds means the investment funds available under
Paragraph 3 of Article VII of the Plan.
17. Highly-Compensated Employee means any Employee who
a. During the preceding Plan Year -
i. Was a 5% owner, as defined in Paragraph
19(c),below;
ii. Received Total Compensation in excess of
$75,000, as adjusted under Code Section 414(q) to
reflect increases in the cost-of-living;
iii. Received Total Compensation in excess of
$50,000, as adjusted under Code Section 414(q) to
reflect increases in the cost-of-living, and in the
top-paid group of employees for the year. An
Employee is in the top-paid group of employees if
he was in the group consisting of the top 20% of
employees when ranked on the basis of Total
Compensation paid during such year. In determining
the employees in the top-paid group the following
shall be excluded: employees who have not completed
6 months of service, who normally work less than 17
1/2 hours per week, who normally work during not
more than 6 months of a year, have not obtained age
21, and, except to the extent provided in
regulations, who are included in a collective
bargaining agreement; or
iv. Was an officer described in Paragraph
19(a) below (provided, however, that no more than
50 employees (or, if less, the greater of 3
employees or 10% of the employees) shall be treated
as officers of the Company, but when no officer has
Total Compensation in excess of 50% of the Code
Section 415(b)(1)(A) limit, the highest paid
officer is treated as highly compensated); or
b. During the current Plan Year is -
i. A 5% owner, as defined in Paragraph
19(c), below, or
ii. One of the 100 Employees paid the highest
Total Compensation during the year, if he also
falls in one of the categories of Subparagraphs
a.ii, iii or iv for the current Plan Year.
If any individual is a member of the Family of either (i)
a 5% owner or (ii) a Highly-Compensated Employee in the group
consisting of the 10 Highly-Compensated Employees paid the
greatest Total Compensation during the year (a "Most-Highly-
Compensated Employee"), then such individual shall not be
considered a separate Employee and any compensation paid to
such individual (and any applicable contribution on behalf of
such individual) shall be treated as if it were paid to (or on
behalf of ) the 5% owner or Most-Highly-Compensated Employee.
For purposes of determining who is a Highly-Compensated
Employee, the Company and any Controlled Group Member are
treated as a single employer.
18. Hour of Service means:
a. Each hour for which an Employee is paid, or
entitled to payment, for the performance of duties for the
Company. These hours shall be credited to the Employee
for the computation period in which the duties are
performed; and
b. Each hour for which an Employee is paid, or en-
titled to payment, by the Company on account of a period
of time during which no duties are performed (irrespective
of whether the employment relationship has been termi-
nated) due to vacation, holiday, illness, incapacity
(including Disability), layoff, jury duty, military duty
or leave of absence. No more than five hundred and one
Hours of Service shall be credited under this Subparagraph
(b) for any single continuous period (whether or not such
period occurs in a single computation period). Hours of
Service under this Subparagraph (b) shall be calculated
and credited pursuant to the Department of Labor
Regulation Section 2530.200b-2, which regulation is
incorporated in the Plan by this reference; and
c. Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by
the Company. The same Hours of Service shall not be
credited both under Subparagraph (a) or (b) and
Subparagraph (c). These Hours of Service shall be
credited to the Employee for the computation period to
which the award, agreement or payment pertains rather than
the computation period in which the award, agreement or
payment is made.
19. Key Employee means any Employee or former Employee
(or his or her Beneficiary) who at any time during the Plan
Year, or any of the four preceding Plan Years, is:
a. An officer of the Company (within the meaning of
Code Section 416) with annual Total Compensation greater
than 50% of the dollar limitation described in Code
Section 415(b)(1)(A). No more than 50 Employees shall be
included in this category.
b. One of the ten Employees owning (or considered as
owning within the meaning of Code Section 318) the largest
interests in the Company and all employers required to be
aggregated with the Company under Code Sections 414(b),
(c) or (m), provided (i) such Employee has annual Total
Compensation greater than the dollar limitation described
in Code Section 415(c)(1)(A) (currently $30,000), and
(ii) the ownership interest of such Employee exceeds one-
half of one percent.
c. A five percent owner of the Company. A five
percent owner means any person who owns (or is considered
as owning within the meaning of Code Section 318) (i) more
than five percent of the outstanding stock of the Company,
or (ii) stock possessing more than five percent of the
total combined voting power of all stock of the Company.
In determining percent ownership, employers that would
otherwise be aggregated under Code Sections 414(b), (c),
and (m) shall be treated as separate employers.
d. A one percent owner of the Company with Total
Compensation of more than $150,000. A one percent owner
means any person who owns (or is considered as owning
within the meaning of Code Section 318) (i) more than one
percent of the outstanding stock of the Company, or
(ii) stock possessing more than one percent of the total
combined voting power of all stock of the Company. In
determining percentage ownership, employers that would
otherwise be aggregated under Code Sections 414(b), (c),
and (m) shall be treated as separate employers. However,
in determining whether an individual has Compensation of
more than $150,000, Compensation from each employer
required to be aggregated under Code Sections 414(b), (c),
and (m) shall be taken into account.
20. Matching Contribution means the amount contributed to
a Participant's Matching Contribution Account by the Company,
pursuant to Article IV.
21. Matching Contribution Account means the account
established for a Participant which is funded by (a) Matching
Contributions, and (b) contributions required on account of a
Top-Heavy Plan Year, if any.
22. Net Compensation means a Participant's Total
Compensation, except that all deferrals elected by the
Participant under Code Sections 125, 402(a)(8) and 402(h)(1)(B)
are subtracted before applying the Code Section 401(a)(17)
limitation specified in Paragraph 40.
23. Nondeferred Account shall mean any account maintained
on behalf of a Participant that consists of the Participant's
after-tax contributions that were allowed to be contributed
prior to July 1, 1985, as well as any amounts recharacterized
pursuant to Section 3.2(b) of the Plan document prior to July
1, 1985, and the investment earnings of the Trust allocable to
such contributions.
24. Non-Key Employee means any Employee who is not a Key
Employee.
25. Normal Retirement Age means a Participant's 65th
birthday.
26. Participant means an Employee for whom one or more
accounts are established under the terms of the Plan.
27. Plan means the Melamine Chemicals, Inc. Employee
401(k) Thrift Plan described in this document and any
amendments hereto.
28. Plan Administrator means the Employee Benefits
Committee, described in Article XIII.
29. Plan Year means the 12 months ending June 30.
30. Qualified Election. A Qualified Election is an
election by a Participant to which his Spouse has consented.
The Qualified Election must be signed by both the Participant
and the Spouse, and must acknowledge the effect of the
election. The Spouse's signature must be witnessed by a
representative of the Plan Administrator or by a notary public.
A Qualified Election can be made without the Spouse's consent
only if the Participant establishes to the satisfaction of the
Plan Administrator that the Participant's Spouse cannot be
located, in which event the Spouse is deemed to have consented.
A Participant may revoke a Qualified Election without the
consent of his Spouse, at any time before the Benefit
Commencement Date.
31. Qualified Joint and Survivor Annuity shall mean an
annuity for the life of the Participant, with a survivor
annuity for the remaining life of the Participant's Spouse
which is 50% of the amount of the annuity payable while the
Participant is living.
32. Required Beginning Date means April 1st of the
calendar year following the calendar year in which a
Participant attains age 70 1/2, provided, however, that if a
Participant who is not a five percent owner of the Company
reached age 70 1/2 prior to 1988 his Required Beginning Date
shall be April 1st following the calendar year in which he or
she terminates employment.
33. Retirement Benefit Election Period means the period
which begins 90 days prior to the Benefit Commencement Date,
and ends 30 days prior to the Benefit Commencement Date.
34. Rollover Contribution Account means the account
established to hold a Participant's Rollover Contribution made
by authority of Paragraph 4 of Article II.
35. Salary Deferral Agreement means the agreement
described in Article III which is executed by a Participant and
an authorized representative of the Company.
36. Salary Deferral Account means the account maintained
for a Participant which is funded with Salary Deferral
Contributions made on his or her behalf by the Company.
37. Salary Deferral Contribution means the contributions
made by the Company on behalf of a Participant pursuant to such
Participant's Salary Deferral Agreement.
38. Spouse means the person to whom a Participant is
married at the earlier of the Participant's Benefit
Commencement Date or death.
39. Top-Heavy means, as of a Determination Date, that the
sum of (a) the Aggregate Value of accounts of Key Employees,
and (b) the Present Value of Accrued Benefits of Key Employees
exceeds sixty percent of such sum determined for all Employees.
The determination shall be made in accordance with the
provisions of Code Section 416(g) and Article XII of the Plan.
The determination of whether the Plan is Top-Heavy shall be
made after (a) aggregating all other plans of the Company and
its affiliates, if any, which constitute a Required Aggregation
Group, and (b) after aggregating any other plan of the Company
or an affiliate, if any, which constitutes a Permissive
Aggregation Group, if such permissive aggregation eliminates
the Top-Heavy status of any plan within such group.
Notwithstanding the provisions of this Paragraph, in no event
shall the Aggregate Value of Accounts or the Present Value of
Accrued Benefits of an individual who has not received any
Total Compensation from the Company during the five-year period
ending on the Determination Date be taken into account for
purposes of determining whether the Plan is Top-Heavy.
40. Total Compensation means "Wages" within the meaning
of Code Section 3401(a) and all other payments of compensation
to an Employee for which the Company is required to furnish the
Employee a written statement under Code Sections 6041(d) and
6051(a)(3), but without regard to any rules under Code Section
3401(a) that limit the remuneration included in wages based on
the nature or location of the employment or the services
performed (such as the exception for agricultural labor in Code
Section 3401(a)(2)); but limited to the amount allowed to be
taken into account under Code Section 401(a)(17), which amount
shall be $200,000 for the Plan Year beginning July 1, 1989,
$209,200 for the Plan Year beginning July 1, 1990, $222,220 for
the Plan Year beginning July 1, 1991, $228,860 for the Plan
Year beginning July 1, 1992, $235,840 for the Plan Year
beginning July 1, 1993, $150,000 for the Plan Year beginning
July 1, 1994, and in each Plan Year thereafter such amount as
is determined pursuant to Code Section 401(a)(17).
41. Trust shall mean the trust established by the Plan
under which contributions to the Plan shall be received, held,
invested and disbursed to, or for the benefit of Participants
and their Beneficiaries and Alternate Payees.
42. Trustee shall mean such individual, individuals or
entity that has or shall have accepted the appointment by the
Company as Trustee under the Plan.
43. Valuation Date means March 31st, June 30th, September
30th, and December 31st. Annual Valuation Date means June
30th.
44. Year of Service shall mean a 12-month period
beginning with an Employee's date of hire, or any anniversary
of that date, in which the Employee completes 1,000 Hours of
Service with the Company or a Controlled Group Member.
ARTICLE II
PARTICIPATION
1. Eligibility Date. Each Employee as of July 1, 1989,
who was participating under the Plan on June 30, 1989, shall,
without further requirements, continue as a Participant in the
Plan.
Each other Employee on July 1, 1989, and each person who
becomes an Employee after July 1, 1989, shall be eligible to
become a Participant on the first day of the month coincident
with or next following the date he completes one Year of
Service, provided he is still an Employee on such date.
2. Participation. Prior to the date on which an
Employee shall, if he continues in Service with the Company,
satisfy the eligibility requirements set forth above, the Plan
Administrator shall forward to the Employee such application
for participation as the Plan Administrator shall require and
shall notify him of the requirements to become a Participant.
An employee who does not apply for participation when he first
becomes eligible may apply for participation by completing the
application for participation and returning it to the Plan
Administrator. In such event, his participation shall commence
as of the first day of the month following receipt of
application by the Plan Administrator. All determinations of
eligibility to participate in the Plan shall be made by the
Plan Administrator in a uniform and nondiscriminatory manner.
An Employee who has become a Participant shall continue to
be a Participant until he no longer has an account balance
under the Plan.
3. Participation After Reemployment. If an Employee
terminates his or her employment with the Company and is later
reemployed, he or she shall be entitled to participate in the
Plan as of the date following the date on which such
Participant first performs an Hour of Service for the Employer
after reemployment, if his termination occurred after he had
become eligible to participate. If he was not eligible but no
Break in Service occurred before he was reemployed, his service
shall be aggregated as if his employment had not terminated.
In all other cases the Employee will be treated as a new
Employee for purposes of determining eligibility to participate
in the Plan.
4. Rollover Contributions. The Plan Administrator, in
its complete discretion, exercised in a uniform and non-
discriminatory manner, may allow a Rollover Contribution to be
made by an Employee. Rollover Contributions must be made in
cash. A Rollover Contribution is a contribution from another
plan qualified under Code Section 401(a) or from an individual
retirement account under Code Section 408(a) that has been
funded pursuant to Code Section 402(a) only by distributions
from one or more other qualified plans. A Rollover
Contribution shall be allocated to a Rollover Contribution
Account for the Employee. Effective February 5, 1992, an
Employee can make a Rollover Contribution even if not eligible
to make Salary Deferral Contributions.
ARTICLE III
SALARY DEFERRAL CONTRIBUTIONS
1. Salary Deferral Agreements. An Employee eligible to
participate in the Plan may execute a Salary Deferral Agreement
effective as of the first day of the month following receipt of
the Agreement by the Plan Administrator. In such a Salary
Deferral Agreement the Employee shall agree to accept a
deferral of Base Compensation expressed as a whole percentage
no less than 1% and no more than 16%. A Salary Deferral
Agreement shall remain in effect until revoked or modified by a
subsequent Salary Deferral Agreement.
A new Salary Deferral Agreement or a revocation of a
Participant's Salary Deferral Agreement shall be effective on
the first day of the payroll period following receipt of the
new Agreement by the Plan Administrator; except that a
Participant who has increased his rate of deferral must wait
six months before making another increase. A Participant who
revokes his Salary Deferral Agreement shall be unable to resume
participation until the first day of the sixth month following
the effective date of the revocation.
2. Delivery of Salary Deferral Contributions. Salary
Deferral Contributions shall be withheld from a Participant's
Base Compensation and delivered to the Trustee as soon as
practicable after the close of the calendar month in which the
deferral occurs; provided, however, that Salary Deferral
Contributions for a Plan Year shall be delivered to the Trustee
no later than thirty days after the close of such year.
3. Dollar Limitation. In no event shall a Participant's
Salary Deferral Contributions for a taxable year of the
Participant exceed $7,000, or such larger amount as allowed
under Code Section 402(g) to reflect increases in the cost of
living.
4. Return of Excess Deferrals. If a Participant's
Salary Deferral Contributions under the Plan should exceed the
dollar limitation under Paragraph 3 for a taxable year, the
excess amount and the earnings thereon through the end of that
taxable year shall be distributed to the Participant no later
than the April 15 following the end of that taxable year. If a
Participant notifies the Plan Administrator in writing no later
than the March 1 immediately following a taxable year that
during that taxable year he was also a participant in a plan of
an unrelated employer governed by the Code Section 402(g)
dollar limitation, that the total deferrals under the plans for
that taxable year exceeded the dollar limitation, and that he
has allocated some or all of the excess deferrals to this Plan,
then the excess allocated to this Plan (and the earnings
thereon through the end of that taxable year) shall be
distributed to the Participant no later than the immediately
following April 15. Any Matching Contributions attributable to
returned Salary Deferral Contributions shall be forfeited.
5. Actual Deferral Percentage . "Actual Deferral
Percentage" (hereinafter "ADP") shall mean for each specified
group of Participants for a Plan Year, the average of the
ratios (calculated separately for each Participant in such
group) of (1) the amount of Salary Deferral Contributions
actually delivered to the Trustee for the Participant for the
Plan Year to (2) the Participant's Total Compensation for such
Plan Year (whether or not the Employee was a Participant for
the entire Plan Year). The ADP shall be calculated separately
for the group consisting of Highly-Compensated Employees and
the group consisting of Non-Highly-Compensated Employees. The
term "Participant" for purposes of computing ADPs (and ACPs
under Paragraph 7, Article IV) includes any Employee who would
be a Participant but for the failure to make Salary Deferral
Contributions; he shall be treated as a Participant on whose
behalf no Salary Deferral Contribution is made.
6. Discrimination Tests. In each Plan Year the Plan
must satisfy one of the following tests:
a. The ADP for Participants who are Highly-
Compensated Employees for the Plan Year shall not exceed
the ADP for Participants who are Non-Highly-Compensated
Employees for the same Plan Year multiplied by 1.25; or
b. The ADP for Participants who are Highly-
Compensated Employees for the Plan Year shall not exceed
the ADP for Participants who are Non-Highly-Compensated
Employees for the same Plan Year multiplied by 2.0,
provided that the ADP for Participants who are Highly-
Compensated Employees does not exceed the ADP for
Participants who are Non-Highly-Compensated Employees by
more than two (2) percentage points.
7. Special Rules in Connection with ADP Testing:
a. The ADP for any Participant who is a Highly-
Compensated Employee for the Plan Year and who is eligible
to have Salary Deferral Contributions allocated to his or
her accounts under two or more arrangements described in
Code Section 401(k) ("cash-or-deferred arrangements")
that are maintained by the Company shall be determined as
if such Salary Deferral Contributions were made under a
single such arrangement. If a Highly-Compensated Employee
participates in two or more cash-or-deferred arrangements
that have different plan years, all cash-or-deferred
arrangements ending with or within the same calendar year
shall be treated as a single arrangement.
b. In the event that this Plan satisfies the
requirements of Code Sections 401(k), 401(a)(4), or 410(b)
only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of such Code
Sections only if aggregated with this Plan, then this
Section shall be applied by determining the ADP of
Employees as if all such plans were a single plan.
c. For purposes of determining the ADP of a
Participant who is a five percent (5%) owner or one of the
ten (10) most highly-paid Highly- Compensated Employees,
the Salary Deferral Contributions and Total Compensation
of such Participant shall include the Salary Deferral
Contributions and Total Compensation for the Plan Year of
members of the Participant's Family. Family members, with
respect to such Highly-Compensated Employees, shall be
disregarded as separate Employees in determining the ADP
both for Participants who are Non-Highly-Compensated
Employees and for Participants who are Highly-Compensated
Employees.
d. For purposes of the ADP test, there shall be taken
into account only those Salary Deferral Contributions:
made before the last day of the twelve (12) month period
immediately following the Plan Year to which the Salary
Deferral Contributions relate; and which relate to Base
Compensation which would have been received by the
Participant in the Plan Year (but for the deferral
election) or which is attributable to services performed
by the Participant in the Plan Year and would have been
received by the Participant within 2 1/2 months after the
close of the Plan Year (but for the deferral election).
e. The determination and treatment of the ADP amounts
of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
f. In the event that the ADP of the Highly-
Compensated Employees for the Plan Year determined at a
date prior to the end of the Plan Year indicates that the
Plan for the year will not otherwise comply with either
ADP test, the Plan Administrator has the authority to
reduce the Salary Deferral Contribution rate for the
remainder of the Plan Year for all or a portion of the
Highly-Compensated Employees in an equitable manner to
increase the likelihood that one of the ADP tests will be
satisfied.
8. Excess Contributions
a. "Excess Contributions" shall mean, with respect to
any Plan Year, the excess of:
(i) The aggregate amount of Salary Deferral
Contributions actually taken into account in
computing the ADP of Highly Compensated Employees for
such Plan Year, over
(ii) The maximum amount of such contributions
permitted by the ADP test (determined by reducing
Salary Deferral Contributions made on behalf of
Highly-Compensated Employees in order of the ADPs,
beginning with the highest of such percentages).
b. Determination of Income or Loss. Excess
Contributions shall be adjusted for any income or loss
attributable thereto in the year in which the
contributions were made. The income or loss allocable to
Excess Contributions is the income or loss allocable to
the Participant's Salary Deferral Account for the Plan
Year multiplied by a fraction, the numerator of which is
such Participant's Excess Contributions for the year and
the denominator of which is the Participant's account
balance attributable to Salary Deferral Contributions
without regard to any income or loss occurring during such
Plan Year.
c. Distribution of Excess Contributions.
Notwithstanding any other provision of this Plan, Excess
Contributions for a Plan Year, plus any income and minus
any loss allocable thereto, shall be distributed from a
Participant's Salary Deferral Account no later than 2 1/2
months after the end of the Plan Year to Participants to
whose accounts such Excess Contributions were allocated
for the Plan Year. Such distributions shall be made to
Highly Compensated Employees on the basis of the
respective portions of the Excess Contributions
attributable to each of such Employees. With respect to
Participants who are subject to the family member
aggregation rules of Code Section 414(q)(6), the ADP of
such Participants shall be reduced in accordance with the
"leveling" method described in the regulations and the
Excess Contributions of such Participants shall be
allocated in the manner prescribed by the regulations.
Excess Contributions shall be treated as Annual Additions
under the Plan.
ARTICLE IV
MATCHING CONTRIBUTIONS
1. Matching Contributions. As of the end of each
calendar month, the Company shall contribute to the Matching
Contribution Account of each Participant a Matching
Contribution equal to 100% of the first 4% of Base Compensation
for which the Participant elected to have Salary Deferral
Contributions made for the month. If a Participant elected to
have Salary Deferral Contributions made at a rate in excess of
4% of Base Compensation, and the Participant is unable to make
further Salary Deferral Contributions during the Plan Year
because of the limitation in Paragraph 3 of Article III,
additional Matching Contributions shall be made in each
remaining month of the Plan Year that the Participant remains
employed, equal to 100% of the lesser of 4% of the
Participant's Base Compensation for the current month and the
amount of the Participant's Salary Deferral Contributions made
that year that were not previously the basis for a Matching
Contribution.
Employer Matching Contributions will be made in cash,
unless the Board of Directors of the Company determines to make
a contribution in the form of Company Stock to the extent the
Participants have elected to have contributions to their
accounts invested in the Melamine Fund. A contribution by the
Company in Company Stock will be valued at the closing price of
such stock as quoted on the National Market System of the
National Association of Securities Dealers Automated Quotation
System or such other national quotation system or exchange on
which the Company Stock is quoted or listed on the last trading
day before the delivery of the stock to the Trustee. Delivery
shall mean the date placed with the United States postal
service or another carrier.
2. Forfeitures. Forfeitures shall be applied to reduce
Matching Contributions otherwise required under Paragraph (1)
to be made after the forfeiture occurs. Until applied in this
way the forfeiture shall be held in the Trust but shall not
share in the allocation of earnings.
3. Delivery of Contributions. Matching Contributions
shall be delivered to the Trustee as soon as practicable after
the close of the calendar month for which the contribution is
made.
4. Top-Heavy Contributions. As of the end of any Plan
Year in which the Plan is Top-Heavy, the Company shall
contribute to the Matching Contribution Account of each
Participant who is a Non-Key Employee the amount required under
Article XI, if any.
5. Reversion to Company. Notwithstanding any provision
of the Plan to the contrary, every contribution by the Company
is conditioned upon the deductibility of such contribution
under Code Section 404. To the extent any such deduction is
disallowed, the Company may demand repayment of the affected
contributions, and the Trustee shall return such contributions.
Any such demand shall be made within one year following a final
determination of the disallowance by the Internal Revenue
Service.
In the event all or any portion of a contribution made by
the Company is attributable to a good faith mistake of fact,
the Trustee shall return the affected portion of the
contribution, provided the Company furnishes the Trustee
evidence of the mistake within one year of the contribution.
Subject only to the two exceptions just described, in no
event shall the assets of the Plan and Trust revert to the
benefit of the Company.
6. Adjustments if Salary Deferral Contributions
Adjusted. If under Paragraph (4) or Paragraph (8) of Article
III a Participant's Salary Deferral Contributions are returned
to him, and as a result the net Salary Deferral Contributions
for the Plan Year are a smaller percentage of Base Compensation
than the amount taken into account in making Matching
Contributions, the amount of the Matching Contributions shall
be reduced accordingly. The reduction in the Matching
Contribution (and any earnings attributable to the reduction)
shall be treated as a forfeiture under the provisions of
Paragraph (2) of this Article.
7. Discrimination Test - Matching Contributions.
a. Definitions:
(1) "Aggregate Limit" shall mean the greater of
(A) or (B) below:
(A) is the sum of
(i) one hundred twenty-five percent
(125%) of the greater of the ADP of the
Non-Highly-Compensated Employees under the
Plan for the Plan Year or the ACP of Non-
Highly- Compensated Employees eligible
under the Plan for the Plan Year, and
(ii) the lesser of two hundred percent
(200%) or two plus the lesser of such ADP
or ACP, or
(B) is the sum of
(i) one hundred twenty-five percent
(125%) of the lesser of the ADP of the
group of Non-Highly- Compensated Employees
eligible under the Plan for the Plan Year,
or the ACP of the group of Non-Highly-
Compensated Employees eligible under the
Plan for the Plan Year, and
(ii) The lesser of two hundred percent
(200%) or two plus the greater of such ADP
or ACP.
(2) "Average Contribution Percentage" or "ACP"
shall mean the average of the Contribution
Percentages of the eligible Participants in a group.
(3) "Contribution Percentage" shall mean the
ratio (expressed as a percentage) of a Participant's
Total Contribution Amounts to the Participant's Total
Compensation for the portion of the Plan Year in
which he was eligible to make Salary Deferral
Contributions.
(4) "Total Contribution Amounts" shall mean the
Matching Contributions under the Plan on behalf of
the Participant for the Plan Year. The Company may
elect to include Salary Deferral Contributions so
long as the ADP test is met before the Salary
Deferral Contributions are used in the ACP test and
continues to be met following the exclusion of those
Salary Deferral Contributions that are used to meet
the ACP test.
b. The Tests. In each Plan Year the Plan must
satisfy one of the following tests:
(1) The ACP for Participants who are Highly-
Compensated Employees for the Plan Year shall not
exceed the ACP for Participants who are Non-Highly-
Compensated Employees for the same Plan Year
multiplied by 1.25; or
(2) The ACP for Participants who are Highly-
Compensated Employees for the Plan Year shall not
exceed the ACP for Participants who are Non-Highly-
Compensated Employees for the same Plan Year
multiplied by two (2), provided that the ACP for
Participants who are Highly-Compensated Employees
does not exceed the ACP for Participants who are Non-
Highly-Compensated Employees by more than (2)
percentage points.
c. Special Rules:
(1) Multiple Use: If the sum of the ADP and ACP
of the Highly- Compensated Employees exceeds the
Aggregate Limit, then the ACP of the Highly-
Compensated Employees shall be reduced (beginning
with the Highly-Compensated Employee whose ACP is the
highest) so that the limit is not exceeded. The
amount by which each Highly-Compensated Employee's
Total Contribution Amount is reduced shall be treated
as an Excess Aggregate Contribution. The ADP and ACP
of the Highly- Compensated Employees are determined
after any corrections required to meet the ADP and
ACP tests. Multiple use does not occur if both the
ADP and ACP of the Highly-Compensated Employees does
not exceed 1.25 multiplied by the ADP and ACP of the
Non-Highly-Compensated Employees.
(2) For purposes of this Section, the
Contribution Percentage for any Participant who is a
Highly-Compensated Employee and who is eligible to
have Total Contribution Amounts allocated to his or
her account under two (2) or more plans described in
Code Section 401(a), or arrangements described in
Code Section 401(k) that are maintained by the
Company, shall be determined as if the total of such
Total Contribution Amounts was made under each plan.
If a Highly-Compensated Employee participates in two
(2) or more cash or deferred arrangements under Code
Section 401(k) ("CODA"), that have different plan
years, all CODAs ending with or within the same
calendar year shall be treated as a single
arrangement.
(3) In the event that this Plan satisfies the
requirements of Code Section 401(m), 401(a)(4) or
410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated
with this Plan, then this Section shall be applied by
determining the Contribution Percentages of Employees
as if all such plans were a single plan.
(4) For purposes of determining the Contribution
Percentage of a Participant who is a five percent
(5%) owner or one of the ten (10) most highly-paid
Highly-Compensated Employees, the Total Contribution
Amounts and Total Compensation of such Participant
shall include the Total Contribution Amounts and
Total Compensation for the Plan Year of Family
members. Family members, with respect to Highly-
Compensated Employees, shall be disregarded as
separate Employees in determining the Contribution
Percentage both for Participants who are Non-Highly-
Compensated Employees and for Participants who are
Highly-Compensated Employees.
(5) For purposes of determining the Average
Contributions Percentage test, Matching Contributions
will be considered made for a Plan Year if made no
later than the end of the twelve (12) month period
beginning on the day after the close of the Plan
Year.
d. Excess Aggregate Contributions.
(1) Definition.
"Excess Aggregate Contributions" shall
mean, with respect to any Plan Year, the excess
of:
(i) The aggregate Total Contribution
Amounts taken into account in computing the
numerator of the Contribution Percentage
actually made on behalf of Highly-
Compensated Employees for such Plan Year,
over
(ii) The maximum Total Contribution
Amounts permitted by the ACP test
(determined by reducing Contributions made
on behalf of Highly-Compensated Employees
in order of their Contribution Percentages
beginning with the highest of such
percentages).
Such determination shall be made after
determining Excess Contributions pursuant
to Paragraph 8 of Article III, above.
(2) Disposition of Excess Aggregate
Contributions. Notwithstanding any other provision
of this Plan, Excess Aggregate Contributions for a
Plan Year, plus any income and minus any loss
allocable thereto, shall be distributed no later than
2 1/2 months after the end of the Plan Year to
Participants to whose accounts such Excess Aggregate
Contributions were allocated. Excess Aggregate
Contributions shall be allocated to Participants who
are subject to the family member aggregation rules of
Code Section 414(g)(6) in the manner prescribed by
the regulations. Excess Aggregate Contributions
shall be treated as Annual Additions under the Plan.
(3) Determination of Income or Loss. Excess
Aggregate Contributions shall be adjusted for any
income or loss attributable thereto in the year in
which the contribution was made. The income or loss
allocable to Excess Aggregate Contributions is the
income or loss allocable to the Participant's
Matching Contribution Account (if all amounts therein
are not used in the ADP test) and, if applicable,
Salary Deferral Contributions of the Plan Year
multiplied by a fraction, the numerator of which is
such Participant's Excess Aggregate Contributions for
the year and the denominator is the Participant's
account balance(s) attributable to Total
Contribution Amounts without regard to any income or
loss occurring during such Plan Year.
(4) Accounting for Excess Aggregate
Contributions. Excess Aggregate Contributions shall
be distributed on a pro-rata basis from the
Participant's Matching Contribution Account (and, if
applicable, the Participant's Salary Deferral
Account).
ARTICLE V
VESTING
1. Salary Deferral Account. The interest of a
Participant in the Participant's Salary Deferral Account shall
be fully vested and nonforfeitable at all times.
2. Matching Contribution Account. The interest of a
Participant in his or her Matching Contribution Account shall
be fully vested and nonforfeitable upon such Participant's
death while employed, attainment of the Normal Retirement Age
or Disability. When a Participant's employment is terminated
for any other reason, the vested and nonforfeitable interest of
such Participant shall be determined in accordance with
whichever of the following schedules applies to that
Participant.
a. Pre-1989 Participant. If an Employee became a
Participant prior to 1989 the following schedule
shall apply:
Years of Service Vested Percentage
Less than 1 year 0%
1 year but less than 2 years 10%
2 years but less than 3 years 20%
3 years but less than 4 years 30%
4 years but less than 5 years 40%
5 years or more 100%
b. Post-1988 Participant. If an Employee became a
Participant after 1988, the following schedule shall
apply:
Years of Service Vested Percentage
Less than 5 years 0%
5 years or more 100%
In the event of a Change of Control occurring after April
9, 1991, a Participant's Vested Percentage shall be 100%,
regardless of the number of the Participant's Years of Service.
3. Other Accounts. The interest of a Participant in his
or her Nondeferred Account or Rollover Contribution Account
shall be fully vested and nonforfeitable.
4. Forfeitures. A Participant shall forfeit the non-
vested portion of his or her Matching Contribution Account as
of the earlier of the Valuation Date preceding the
Participant's Benefit Commencement Date, or the Valuation Date
next following five consecutive Breaks in Service. If the
vested portion of the Participant's accounts is zero, the
Participant's Benefit Commencement Date shall be deemed to be
the first day following the Valuation Date coincident with or
next following the termination of employment.
5. Aggregation of Periods of Service. Except as
provided in Paragraph (6), below, if an Employee terminates his
or her employment with the Employer, incurs a Break in Service,
and is later reemployed, his or her Years of Service before and
after the Break in Service shall be aggregated if, and only if,
(a) such Employee is reemployed by the Company before he or she
experiences five consecutive Breaks in Service, or (b) such
Employee had any vesting in his or her Matching Contribution
Account before the prior employment terminated.
If an Employee terminates his or her employment with the
Company and is reemployed before a Break in Service occurs, he
or she shall be treated as if the termination had not occurred.
6. Recovery of Forfeiture Upon Reemployment. If a
partially-vested Participant terminates his or her employment
with the Company and receives a distribution of his or her
vested interest in the Plan, the forfeited portion of his or
her Matching Contribution Account shall be restored if, and
only if, the Participant (a) is employed before five
consecutive Breaks in Service and (b) returns to the Plan the
vested amount he recovered from such accounts before the
earlier of five years from the reemployment date or the
occurrence of five Breaks in Service.
If any forfeitures are required to be credited under this
Paragraph (6), the credit shall be made at the close of the
Plan Year in which occurs the later of the reemployment or the
repayment. The credit shall be satisfied (a) first, from
forfeitures (notwithstanding the provisions of Article IV,
Paragraph (2) to the contrary), and (b) second, from additional
contributions by the Company.
ARTICLE VI
ANNUAL ADDITION LIMITATION
1. Definitions. For purposes of this Article VI, the
term Accounts means a Participant's Salary Deferral Account and
Matching Contribution Account.
The term Annual Addition means, for any Limitation Year,
the sum of (a) Matching Contributions, including forfeitures,
and (b) Salary Deferral Contributions.
The term Defined Benefit Plan Fraction means, for any
year, a fraction (a) the numerator of which is the projected
annual benefit of the Participant under any defined benefit
plan maintained by the Company (determined as of the close of
the Plan Year), and (b) the denominator of which is the lesser
of (i) the product of 1.25 multiplied by the maximum dollar
limitation in effect under Code Section 415(b)(1)(A) for such
year, or (ii) the product of 1.4 multiplied by the amount which
may be taken into account under Code Section 415(b)(1)(B) for
such year.
The term Defined Contribution Plan Fraction means, for any
year, a fraction (a) the numerator of which is the sum of the
Annual Additions to the Participant's Accounts as of the close
of the Plan Year, and (b) the denominator of which is the sum
of the lesser of the following amounts determined for such year
and each prior year of service with a Company: (i) the product
of 1.25 multiplied by the dollar limitation in effect under
Code Section 415(c)(1)(A) for such year (determined without
regard to Code Section 415(c)(6)), or (ii) the product of 1.4
multiplied by the amount which may be taken into account under
Code Section 415(c)(1)(B) for such year.
For this purpose the term Company includes the Company and
any Controlled Group Members. All such employers shall be
treated as a single employer for purposes of applying the Code
Section 415 limitations.
The term Limitation Year means the Plan Year, unless the
Board of Directors designates a different twelve-month period
as the Limitation Year.
2. Annual Additions. No contribution or forfeiture
shall be allocated to the Accounts of an Employee for a
Limitation Year in excess of an amount which, when expressed as
an Annual Addition to such Employee's Accounts, is equal to the
lesser of (a) $30,000 (as may be adjusted under Code Section
415), or (b) twenty-five percent of such Employee's Net
Compensation for the Plan Year.
3. Limitation for Other Defined Contribution Plans. In
the event that the Annual Addition which would otherwise be
made to an Employee's accounts under all defined contribution
plans maintained by the Company for any Limitation Year exceeds
the limitations set forth in this Article VI, the excess Annual
Addition shall be attributed first to the Plan, and the Company
shall treat such excess as follows:
a. First, the portion of the excess consisting of Salary
Deferral Contributions in excess of four percent of Base
Compensation shall be returned to the Employee.
b. Second, if the Employee is covered by the Plan at end
of the Limitation Year, any remaining portion of the
excess consisting of Salary Deferral Contributions shall
be returned to the Employee and the remaining excess shall
be held in the Employee's Matching Contribution Account or
Salary Deferral Account, as the case may be, and used to
reduce Matching Contributions, contributions required on
account of a Top-Heavy Plan Year or Salary Deferral
Contributions in succeeding Limitation Years. Such excess
shall not share in the earnings and losses of the Trust,
however, until it is actually credited to the Employee's
Account.
c. Third, if the Employee is not covered by the Plan
at the end of the Limitation Year, any remaining portion
of the excess consisting of Salary Deferral Contributions
shall be returned to the Employee and the remaining excess
shall be held in a suspense account. Amounts held in the
suspense account shall be applied to reduce Matching
Contributions and contributions required on account of a
Top-Heavy Plan Year for all remaining Employees in each
succeeding Limitation Year. In no event shall amounts
held in a suspense account share in the earnings and
losses of the Trust.
4. Limitation for Defined Benefit Plan. If an Employee
is also a participant in one or more defined benefit plans
maintained by the Company (or an Employee was a participant in
any defined benefit plan previously maintained by the Company),
the sum of such Employee's Defined Benefit Plan Fraction and
Defined Contribution Plan Fraction (as determined pursuant to
Code Section 415(e)) for any Limitation Year may not exceed
1.0.
In the event that the sum of an Employee's Defined
Contribution Plan and Defined Benefit Plan Fractions would
otherwise exceed 1.0 for any Limitation Year, the benefit
accrual which would otherwise be made under all applicable
defined benefit plans for such Employee shall be considered not
to have accrued, to the extent necessary, so that the sum of
such fractions does not exceed 1.0. If after all such
adjustments the sum of the fractions would still exceed 1.0,
then the annual addition which would otherwise be made with
respect to such Employee under any applicable defined
contribution plan shall be reduced to the extent necessary so
that the sum does not exceed 1.0.
Notwithstanding any provision of this Paragraph (4) to the
contrary, for any Plan Year in which the Plan is Top-Heavy, 1.0
shall be substituted for 1.25 in the Defined Benefit Plan and
Defined Contribution Plan Fractions; provided, however, that if
the Plan would not be Top-Heavy if 90% were substituted for 60%
in the definition of Top-Heavy, such adjustment shall not be
necessary if a qualified defined-benefit plan of the Company
provides a benefit of at least 3% for each such year for each
Participant who is not credited with a contribution of 7 1/2%
or more of Total Compensation under the terms of this Plan
exclusive of Article XII.
ARTICLE VII
INVESTMENTS
1. Trust Fund. All contributions, and the earnings on
such amounts, shall be delivered to the Trustee and held in
trust pursuant to the terms of the Plan, and in particular the
terms of this Article VII and Article XVI.
2. Separate Accounts. Each Salary Deferral Account,
Matching Contribution Account, Rollover Contribution Account,
and Nondeferred Account of each Participant shall be maintained
separately by the Trustee or recordkeeping agent appointed by
the Plan Administrator for each Participant.
3. Investment Funds. Effective July 1, 1992, each
Participant shall elect to have contributions to his accounts
invested in one or more of the following:
a. Diversified Investment Advisers Government Fixed
Fund (the "Government Fixed Fund"),
b. The Certificate of Deposit Investment Fund
administered by Wachovia Bank (the "CD Fund"),
c. Diversified Investment Advisers Equity Investment
Fund (the "Equity Fund"), and
d. The fund consisting of Company Stock (the
"Melamine Fund").
A Participant's election shall require all contributions
made to the Participant's accounts thereafter (until a
different election is delivered to the Plan Administrator) to
be allocated among the Funds in multiples of 25%; that is, the
percentage allocated to each Fund shall be (i) 0%, (ii) 25%,
(iii) 50%, (iv) 75% or (v) 100%. The total of the allocations
shall equal 100%.
All investment elections shall be effective for the entire
amount of all the Participant's accounts. The form and manner
of all elections under this Section 3 shall be prescribed by
the Plan Administrator.
In the event an acceptable allocation is not received by
the Plan Administrator for all or any portion of a
Participant's accounts, such Participant's affected interest
shall automatically be invested in the CD Fund until adequate
instructions are received.
The Funds are constituent parts of the Trust, but each
Fund shall be separately invested, with all investment income
of each Fund credited to that Fund.
A Participant may modify or revoke an election for the
future investment of contributions under the Plan as of the
first day of any future month, provided sufficient notice is
given to allow the modification to be made and provided that no
more than one modification or revocation may be made per
calendar quarter. Such election shall remain in effect for all
subsequent contributions allocated on behalf of the Participant
to the Funds until the election is effectively modified or
revoked.
In addition, a Participant can transfer amounts in the
Participant's accounts between Funds effective as of the first
day of the calendar quarter following the Plan Administrator's
receipt of the election, subject to any transfer restrictions
that may be imposed by the sponsor of any of the Funds.
4. Company Stock. Neither the Trustee, nor the
Employer, nor the Plan Administrator shall have any
responsibility or duty to anticipate market conditions or
changes in the value of Company Stock in order to maximize
return or minimize loss with respect to any acquisition or sale
of such securities.
5. Dividends. Cash dividends payable with respect to
Company Stock shall be reinvested in Company Stock as soon as
practicable.
6. Stock Dividends, Splits and Recapitalization.
Company Stock received by the Trustee as a result of a stock
dividend, stock split, reorganization or other recapitalization
of the Company shall be allocated to the accounts of
Participants as of the date on which such stock is received in
the same proportion that Company Stock was allocated to such
accounts as of the record date for the dividend.
7. Liability for Investment Decisions. Each Participant
shall have exclusive responsibility for and control over the
investment of amounts allocated to his or her accounts.
Neither the Company, nor the Trustee, nor the Plan
Administrator shall have any duty, responsibility or right to
question a Participant's investment directions or to advise a
Participant with respect to the investment of his or her
accounts. The Company, the Trustee, and the Plan Administrator
shall have no responsibility for any loss which may result from
a Participant's exercise of control over the investment of the
Participant's accounts.
ARTICLE VIII
ACCOUNTING AND VALUATION
1. Allocation of Contributions. Contributions under the
Plan shall be allocated in the following manner:
a. Matching Contributions shall be allocated to the
Matching Contribution Accounts of the Participants in
accordance with the provisions of Article IV.
b. Salary Deferral Contributions shall be allocated
to the Salary Deferral Accounts of the Participants in
accordance with the provisions of Article III.
c. Rollover Contribution Accounts shall be funded by
Rollover Contributions made in accordance with the
provisions of Paragraph 4 of Article II.
2. Valuation of Trust Funds. The fair market value of
the assets of each Fund shall be determined as of each
Valuation Date, in accordance with generally accepted valuation
methods and accounting practices.
3. Valuation of Participants' Accounts. As of each
Valuation Date, the balance of each account of each Participant
in each Fund as of the previous Valuation Date shall be
adjusted, first by taking into account any transfers made
between Funds effective the first day of the current calendar
quarter (which produces the "Starting Account Balance" in each
Fund for the current quarter), and then by making the following
adjustments:
a. As to the Melamine Fund:
i. The number of shares of Company Stock that is
the Starting Account Balance for shall be increased
by the number of shares allocated pursuant to
Paragraph (1) as of the current Valuation Date, and
shall be decreased by the number of shares
distributed or withdrawn from the account since the
preceding Valuation Date.
ii. Dividends on Company Stock received since
the preceding Valuation Date shall be credited to
each such account in proportion to the holdings of
Company Stock as of the record date for the dividend.
iii. To the extent that the Melamine Fund holds
assets other than Company Stock, accounts shall be
adjusted following the principles set forth in the
following Subparagraph (b).
b. As to all Funds other than the Melamine Fund:
i. Any withdrawals or distributions from an
account's holding in the Fund since the preceding
Valuation Date shall be deducted from the account.
ii. 2/3rds of all Salary Deferral Contributions
and Matching Contributions to the Fund for the first
month of the Valuation Period, and 1/3rd of such
contributions for the second month shall be allocated
to the accounts.
iii. Any gain or loss in the value of the Fund
since the preceding Valuation Date shall be allocated
to the accounts in the Fund in proportion to the
Starting Account Balances, after they have been
adjusted pursuant to Subparagraphs (b)(i) and (ii),
above.
iv. All remaining contributions to the Fund for
the Valuation Period ending on the Valuation Date
shall be allocated to the accounts.
c. After making the adjustments described in (a) and
(b), any forfeitures as of the Valuation Date shall be
subtracted from applicable accounts, thereby producing the
account balances as of the current Valuation Date.
4. Accounting Procedures. The Plan Administrator shall
establish such equitable accounting procedures as may be
required to make (a) allocations, (b) valuations, and
(c) adjustments to accounts in accordance with the provisions
of the Plan. The Plan Administrator may modify its accounting
procedures, from time to time, for the purpose of achieving
equitable and nondiscriminatory allocations.
ARTICLE IX
BENEFITS
1. Benefits Upon Termination of Employment. Upon the
termination of a Participant's employment for any reason, the
Participant shall be entitled to receive, or begin to receive,
a benefit under the Plan as of the Benefit Commencement Date
selected pursuant to Paragraph 3. Payment of the Participant's
benefit shall be made in accordance with Paragraph 2.
2. Forms of Benefits.
a. In General. If the total vested balances in a
Participant's accounts as of the Valuation Date or
coinciding with or next following the date of the
termination of employment does not exceed $3500 (or such
other amount as may be provided under regulations), the
Participant's total vested account balances shall be
distributed to the Participant in a lump sum as soon as
administratively convenient. In all other cases, the
benefit shall be paid in the mode elected by the
Participant, but if the Participant fails to elect a form
of benefit, his benefit will be paid in the Normal Form
described in Subparagraph (b).
b. Normal Form of Benefit. The Normal Form of
Benefit depends on whether the Participant is married on
his Benefit Commencement Date.
i. Normal Form If Employee Not Married. In the
event that a Participant has not elected an optional
form of benefit payment described in Paragraph (c)
within the Retirement Benefit Election Period and the
Participant has no Spouse on his Benefit Commencement
Date the Normal Form of the Participant's benefit
shall be a Life Only Annuity.
ii. Normal Form If Employee Is Married. In the
event a Participant has not made a Qualified Election
of an optional form of benefit payment described in
Paragraph (c) within the Retirement Benefit Election
Period, and the Participant has a Spouse on his
Benefit Commencement Date, the Normal Form of the
Participant's benefit shall be a Qualified Joint and
Survivor Annuity.
iii. Notice of Qualified Joint and Survivor
Annuity. Within a reasonable period prior to the
Benefit Commencement Date, the Plan Administrator
shall provide each Participant notice in the form of
a written explanation containing (i) the terms and
conditions of a Qualified Joint and Survivor Annuity,
(ii) the Participant's right to make, and the effect
of, an election to waive the Qualified Joint and
Survivor Annuity form of benefit, (iii) the rights of
the Participant's Spouse and (iv) the right to make,
and the effect of, a revocation of a previous
election to waive a Qualified Joint and Survivor
Annuity.
c. Optional Forms of Benefits. The optional forms of
benefits are set forth below:
i. The benefit may be paid in monthly,
quarterly, semi-annual or annual installments as
nearly equal as practicable for a period not to
exceed the lesser of (i) 20 years, or (ii) the life
expectancy of the Participant or the life expectancy
of the Participant and his Spouse. In no event shall
the amount distributed in installments in any year be
less than the amount required to be distributed in
that year under Code Section 401(a)(9). Even if an
installment option has been elected the recipient
shall have the right at any time to elect to receive
the remaining account balances in a lump sum.
ii. The benefit may be paid in the form of an
annuity payable during the Participant's lifetime,
either with no payments guaranteed ("the Life Only
Annuity"), or with the first 60, 120 or 180 payments
guaranteed.
iii. The benefit may be paid as a single sum.
If a Participant dies while benefit payments are
being made in accordance with option (i) then payment
shall be made to the Participant's Beneficiary
determined under Article XI, to the extent of the
unpaid installments. If a Participant dies while
benefit payments are being made in accordance with
option (ii) then any further payments shall be
determined pursuant to the terms of the annuity
purchased thereunder.
3. When Benefits Are Paid or Begin to be Paid.
If the total value of the Participant's vested account
balances as of the Valuation Date following the termination of
employment does not exceed $3500, immediate distribution is
required. This rule takes precedence over the other rules of
this Paragraph 3.
If the Participant is over the age of 55 at the time of
his termination of employment, he can elect an immediate
distribution or a later Benefit Commencement Date, but no later
than the later of (i) the last day of the Plan Year following
the Plan Year in which the Participant terminates employment
(but subject to Paragraph 8 of this Article IX) or (ii) the
last day of the Plan Year in which the Participant reaches his
Normal Retirement Age.
If the Participant is under the age of 55 at the time of
his termination of employment, within 90 days following his
termination he shall be entitled to elect an immediate
distribution. If he does not make such an election within the
allowed time, his Benefit Commencement Date shall be no earlier
than his 55th birthday (or death or Disability, if either
should occur before that age), and no later than the last day
of the Plan Year in which he reaches his Normal Retirement Age.
If a Participant is required to receive, or elects to
receive, an immediate distribution, the benefit is determinated
as of the Valuation Date immediately following the termination
of employment, unless the Participant elects to receive the
benefit as of the immediately preceding Valuation Date.
An election by a married Participant of a Benefit
Commencement Date prior to Normal Retirement Age must be made
by a Qualified Election.
A benefit other than an immediate distribution is based on
account balances as of the Valuation Date immediately preceding
the Benefit Commencement Date.
No provision of the Plan shall have the effect of
requiring payment of a Participant's benefits under the Plan to
commence as of a date that is more than 60 days after the close
of the later of (i) the Plan Year in which the Participant
attains age 65, or (ii) the Plan Year in which said Participant
terminates employment with the Company.
4. Distribution of Annuity and Installment Benefits.
This Paragraph 4 applies to benefits under the Plan which are
to be paid in the form of an annuity involving life
contingencies under the terms of any provisions of this Plan.
The Trustee shall purchase such annuity contracts from a life
insurance company, utilizing for such purchase the entire
amount in the Participant's accounts, as of the date of the
purchase.
Subject to the provisions of any investment or insurance
contract under which the assets of the Plan are invested, this
Paragraph 4 may also apply to benefits under the Plan which are
to be paid in the form of installments not involving life
contingencies. The Trustee may purchase annuity contracts from
a life insurance company, utilizing for such purchase the
entire amount in the Participant's accounts.
Any annuity contract which is purchased hereunder and
distributed to a Participant, Beneficiary or Alternate Payee
shall be endorsed as "nontransferable".
5. Deferred Payments. Any portion of a Participant's
accounts hereunder payment of which the Participant elects
under Paragraph 3 to delay shall be retained in the same
accounts, which shall continue to be adjusted in accordance
with Article VIII hereof until distributed (or an annuity is
purchased).
6. Minority or Disability Payments. During the minority
or disability of any person entitled to receive benefits
hereunder, the Plan Administrator may direct the Trustee to
make payments directly to such person, or to his spouse, or to
a relative or to any individual or institution having custody
of such person, or to a custodian (if a minor) under the
Louisiana Uniform Transfers to Minors Act. Neither the Plan
Administrator nor the Trustee shall be required to see to the
application of any payments so made, and the receipt of the
payee (including the endorsement of a check or checks) shall be
conclusive as to all interested parties.
7. Form of Distribution. A distribution out of a
Participant's account that is invested in Company Stock shall
be made in Company Stock, except as to fractional shares,
unless the recipient elects to receive cash for some or all of
the shares. The amount of any distribution or withdrawal of
cash from the Melamine Fund shall be based on the price of the
stock on the Valuation Date preceding the Benefit Commencement
Date.
The value of accounts not invested in Company Stock
shall be distributed in the form of cash.
8. Distributions When Employment Continues After Age
70 1/2. The following provisions apply in the event that a
Participant remains employed after the end of the Plan Year
that immediately precedes his Required Beginning Date.
a. Such a Participant is required to receive a
benefit.
b. If the Participant elects a lump-sum benefit or an
annuity the Benefit Commencement Date shall be prior to
the Required Beginning Date based on the value of the
Participant's accounts on the December 31 immediately
proceeding the Required Beginning Date.
c. If the Participant elects to be paid in
installments, the Benefit Commencement Date cannot be
later than the last day of the first month (if monthly
installments), the third month (if quarterly
installments), or the last month (if annual installments)
of the year in which the Participant reaches age 70 1/2.
d. If the Participant elects to be paid in a lump or
annuity, the Benefit Commencement Date cannot be later
than the March 31 that immediately precedes his Required
Beginning Date. Any account balances of the Participant
as of a subsequent December 31 shall be distributed as
soon as possible in the following year.
9. Qualified Domestic Relations Orders. Payment to an
Alternate Payee pursuant to a Qualified Domestic Relations
Order ("QDRO"), as defined in ERISA section 206(d)(3)(A)),
shall be made at such time and in such form as determined
pursuant to the QDRO, based on the value of the Alternate
Payee's interest in the account as of the Valuation Date
preceding the date the payment is made or commences. Effective
July 1, 1994, a payment can be made prior to the Participant's
"earliest retirement age", as defined at ERISA
Section 206(d)(3)(E)(ii), but only in a lump sum. After the
Participant's earliest retirement age the benefit can be made
in any of the forms described in Paragraph 2 of Article IX of
the Plan. No payment to an Alternate Payee can be made later
than the Participant's benefit is paid to him as a result of
his termination of employment. The Plan Administrator is
authorized to establish any additional rules necessary to
determine the rights of Alternate Payees under Qualified
Domestic Relations Orders.
10. Suspension of Benefits Upon Receipt of a Claim.
Effective July 1, 1994, in the event that the Plan
Administrator is informed in writing of a claim by a person (a
"claimant") that may result in the rendering of a Qualified
Domestic Relations Order with respect to a Participant's
interest in the Plan, the Plan Administrator is authorized to
suspend any payments from the Participant's account until
receipt of a Qualified Domestic Relations Order setting forth
the rights of such claimant as an Alternate Payee, or upon
receipt of an order or written release by the claimant
evidencing that the claimant has no further claim to the
Participant's interest in the Plan.
11. Direct Rollovers - If the Distributee of an Eligible
Rollover Amount elects to have such amount paid directly to an
Eligible Retirement Plan, in such form and at such time as the
Plan Administrator may prescribe, such distribution shall be
made in the form of a direct trustee-to-trustee transfer to the
Eligible Retirement Plan so specified. This requirement
applies only to the extent that the Eligible Rollover Amount
would be includible in gross income if not transferred.
"Eligible Rollover Amount" means any distribution all or
any portion of balance to the credit of the Distributee in the
Plan, other than an annuity or an installment when the
installments are payable over the life expectancy of the
Distributee (or the joint life expectancies of the Distributee
and his designated beneficiary) or for a specified period of
ten years or more, or any amount required to be distributed in
such year under Code Section 401(a)(9).
"Eligible Retirement Plan" means an individual retirement
account described in Code Section 408(a), an individual
retirement annuity described in Code Section 408(b), a plan
qualified under Section 401(a) of the Code if it is a defined
contribution plan the terms of which permit the acceptance of
rollover distributions, or an annuity plan described in Code
Section 403(a). If, however, the Distributee is the Employee's
surviving spouse, Eligible Retirement Plan means an individual
retirement account or individual retirement annuity.
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 Paragraph 9, above, are
Distributees with regard to the interest of the spouse or
former spouse.
The provisions of this Paragraph 11 are effective with
respect to distributions made after 1992.
ARTICLE X
LOANS AND WITHDRAWALS
1. Participant Loan Procedures. Upon the application of
a Participant for a loan, the Plan Administrator, in accordance
with a uniform and non-discriminatory policy, may approve such
loan to the Participant.
The following special rules apply with respect to loans
under the Plan:
a. In no event shall the total value of any loan
exceed the lesser of (i) $50,000 reduced by the
Participant's highest outstanding loan balance during the
preceding 12 month period, or (ii) one-half of the
Participant's vested interest in the Plan. For purposes
of applying the foregoing limitation, loans from all plans
of the Company and loans from the plans of all Controlled
Group Members shall be aggregated.
b. No loan shall be for less than $1,000.
c. Each loan shall be deemed a directed investment of
the Participant receiving the loan and shall be charged to
his accounts. Effective July 1, 1992, the loan amount
shall first reduce the investment of his accounts in the
Government Fixed Fund, then his investment in the Equity
Fund, then his investment in the Melamine Fund, and
finally his investment in the CD Fund. No loan can be
made out of a Participant's Nondeferred Account, nor from
the Matching Contribution Account if it is not vested, but
otherwise shall be from his accounts as he elects.
d. All loans shall bear a reasonable rate of interest
as determined by the Plan Administrator in accordance with
final Department of Labor regulations. A reasonable rate
of interest shall provide the Plan with a return
commensurate with the prevailing interest rate charged on
similar commercial loans by the Trustee, or such other
entity or entities designated by the Plan Administrator.
e. The Plan Administrator shall provide each loan
applicant with a clear statement of the charges with
respect to each loan transaction. Such statement shall
include the dollar amount and annual interest rate.
f. The term of the loan shall be determined by the
Participant and the Plan Administrator, but such term
shall not exceed 5 years; provided, however, that the
maximum term of a loan used in connection with the
purchase of a principal residence of the Participant may
exceed 5 years. The determination as to whether the
dwelling is the principal residence of the Participant
shall be made by the Committee at the time the loan is
extended.
g. All loans shall require amortization in level
payments made each pay period over the term of the loan
and such payments shall be automatically deducted from the
Participant's paychecks.
h. Each loan shall be evidenced by the Participant's
promissory note for the amount of the loan, including
interest, payable to the order of the Trustee and each
loan shall be secured by the Participant's account
balances from which the loan is made.
i. No Participant shall have more than one loan
outstanding at a time. A Participant may apply for a new
loan prior to repayment of an existing loan only if the
proceeds of the new loan are immediately applied to repay
the existing loan. A Participant shall not be entitled to
make a loan application within 6 months of the date an
existing loan was granted.
j. If a Participant defaults on a loan made in
accordance with this Paragraph 1, the Trustee shall not be
required to attach the Participant's interest in the Plan
securing such loan until the Participant is entitled to
receive a distribution from the Plan. Upon such
Participant's distribution from the Plan, his unpaid loan
balance shall be treated as a lump sum distribution to the
Participant.
k. If the Participant is married on the date of the
application for a loan, a loan shall be permitted only
pursuant to a Qualified Election.
2. Withdrawal of Nondeferred Account. A Participant
shall be entitled to withdraw any of the balance of his
Nondeferred Contribution Amount at any time, provided that the
amount of the withdrawal is no less then the lesser of $300 or
the total balance in the account.
3. Withdrawal From Matching Contribution Account or
Rollover Contribution Account. Effective July 1, 1995, while
employed by the Company, a Participant may withdraw all or a
portion of the Matching Contribution Account or Rollover
Contribution Account (but no less than $300), provided:
a. the Participant has been a Participant in the Plan
for 5 or more years, or
b. the Participant has attained age 59-1/2, or
c. the Participant demonstrates to the satisfaction
of the Plan Administrator that he needs funds for an
emergency, such as educational or medical expenses, to
recover from an uninsured natural disaster, to purchase or
improve his primary residence, or for any other purpose
that the Plan Administrator recognizes as an emergency.
4. Withdrawal From Salary Deferral Amount. While
employed by the Company a Participant may apply to the Plan
Administrator for a withdrawal of funds held in his or her
Salary Deferral Account on account of a Financial Hardship, as
defined in Paragraph 5, subject to the following rules:
a. The withdrawal cannot exceed the amount necessary
to satisfy the Financial Hardship, plus any amounts
necessary to pay any federal, state and local income taxes
and penalties reasonably anticipated to result from the
withdrawal.
b. The withdrawal shall be limited to the amount of
the Participant's Salary Deferral Contributions (and
earnings thereon prior to 1989) then remaining in the
account.
c. The Participant has obtained all distributions,
other than hardship distributions, and all non-taxable
loans currently available under all "plans" (as
contemplated by U.S. Treasury Regulation Section
1.401(k)-1(d)(2)(iv)(B)(2)), maintained by the Company.
d. The Participant shall not be allowed to make
Salary Deferral Contributions until the first month
following the 12 months anniversary of the withdrawal.
The election to resume contributions must be made prior to
the date it is effective.
e. The Participant's limit on Salary Deferral
Contributions in the year immediately following the year
of the withdrawal shall be the limit under Paragraph 4 of
Article III for that year, less the amount of the
Participant's Salary Deferral Contributions made in the
year of the hardship withdrawal.
f. The amount withdrawn must be no less than $300.
5. Financial Hardship. A withdrawal is made for a
Financial Hardship if it is made to meet one of the following
needs:
a. To pay medical expenses described in Code Section
213(d), incurred by the Participant, the
Participant's spouse, or any dependent (as defined in
Code Section 152) of the Participant;
b. To purchase (excluding mortgage payments) a
principal residence for the Participant;
c. To pay tuition and related education fees, and
room and board expenses, for some or all of the next
twelve months of post-secondary education for any of
the Participant, his or her spouse, or his children
or dependents;
d. To prevent the eviction of the Participant from
his principal resident or foreclosure on the mortgage
of the Participant's principal residence;
e. To pay for the funeral of a family member; or
f. For any other need permitted under Code Section
401(k) and the regulations issued thereunder and
authorized by the Plan Administrator.
6. Form of Withdrawal. A withdrawal from the Company
Stock Fund can, at the election of the Participant, be in cash
rather than Company Stock. The amount of cash shall be
determined as provided in Paragraph 7 of Article IX. All other
withdrawals shall be in cash.
7. Order of Withdrawal. Effective July 1, 1992, if the
account or accounts from which an in-service withdrawal is made
are invested in more than one Fund, the order of withdrawal
shall be as follows: first from the Government Fixed Fund,
then from the Equity Fund, then from the Melamine Fund, and
finally from the CD Fund.
8. Withdrawal By Married Participant. A married
Participant can make an in-service withdrawal under this
Article IX only through a Qualified Election.
ARTICLE XI
DEATH BENEFITS
1. Death Benefits. Except as provided in Paragraph 3,
if a Participant dies with a balance in his accounts, the
interest of such Participant shall be distributed to the
Participant's Beneficiary in a single-sum payment as soon as
practicable after the end of the Plan Year in which the
Participant dies. If death occurs after the Participant has
begun to receive an installment benefit, the installment
payments shall continue until the end of the Plan Year of the
Participant's death.
2. Designation of Beneficiary. A Participant shall be
entitled to designate one or more persons and/or entities as
his or her Beneficiary, in writing, on a form acceptable to the
Plan Administrator. In the event the Participant is married as
of the date of his or her death, someone other than the
Participant's Spouse can be a primary Beneficiary only if the
Participant's Spouse acknowledges the effect of such
designation, in writing, on a form acceptable to the Plan
Administrator, and witnessed by an authorized representative of
the Plan Administrator or a notary public. The Participant's
Spouse can waive the right to consent to future changes of
Beneficiary designations in the same form if the consent
acknowledges the waiver of the right to consent to future
designations.
If a Participant fails to designate a Beneficiary or if no
designated Beneficiary survives the Participant, the
Beneficiary shall be the Participant's Spouse or, if there is
no Spouse, the Participant's estate.
3. Spousal Annuity. If the Participant's Beneficiary is
his Spouse, and the Spouse has not elected to receive the death
benefit in a lump sum, the full amount of the Participant's
accounts shall be applied to the purchase of an annuity payable
to the Participant's Spouse for the Spouse's life.
ARTICLE XII
TOP-HEAVY PROVISIONS
1. Definitions. The term Aggregate Value of Accounts
means with respect to the Plan and any defined contribution
plan within an Aggregation Group:
a. A Participant's or Employee's balance in his or
her Salary Deferral Account and Matching Contribution
Account (and any other account funded by employer
contributions in a defined contribution plan of the
Aggregation Group) as of the most recent Valuation Date
occurring within the twelve-month period ending on a
Determination Date.
b. Increased by any contributions due as of the
Determination Date. Such increase shall take into account
the amount of any contribution actually made after the
Valuation Date but before the Determination Date.
c. Increased by any distribution made within the Plan
Year that includes the Determination Date or within the
four preceding Plan Years. However, with respect to
distributions made after the Valuation Date and prior to
the Determination Date, such distributions shall not be
included as distributions for purposes of this Paragraph
to the extent that they are already included in the
Participant's or Employee's balance as of the Valuation
Date.
d. Unrelated rollovers and plan-to-plan transfers and
related rollovers and plan-to-plan transfers shall be
treated in accordance with Code Section 416.
The term Aggregation Group means a Required Aggregation
Group or a Permissive Aggregation Group.
The term Determination Date means the last day of the
preceding Plan Year; provided, however, that for the first Plan
Year the Determination Date shall be the last day of such year.
The term Permissive Aggregation Group means any other plan
of the Company or a Controlled Group Member not included in the
Required Aggregation Group if the resulting group, when
aggregated, continues to satisfy the provisions of Code
Sections 401(a)(4) and 410. Only a plan which is part of a
Required Aggregation Group shall be considered Top-Heavy if the
Permissive Aggregation Group is a Top-Heavy Group. No plan in
the Permissive Aggregation Group will be Top-Heavy if the
Permissive Aggregation Group is not a Top- Heavy Group.
The term Present Value of Accrued Benefits shall mean an
Employee's benefit determined in accordance with the provisions
of Code Section 416(g) and the provisions of any defined
benefit plan maintained by a member of the Aggregation Group.
The term Required Aggregation Group shall mean each plan
of the Company or a Controlled Group Member in which a Key
Employee participates and each other plan of First Commerce
Corporation or a Controlled Group Member which enables any plan
in which a Key Employee participates to meet the requirements
of Code Sections 401(a)(4) or 410. Each plan within the
Required Aggregation Group will be Top-Heavy if the Required
Aggregation Group is a Top-Heavy Group. No plan within such
Group shall be Top-Heavy if the Required Aggregation Group is
not a Top-Heavy Group.
The term Top-Heavy Group means an Aggregation Group which
is Top-Heavy.
2. Top-Heavy Status. Notwithstanding anything to the
contrary, if the Plan is Top-Heavy for any Plan Year (within
the meaning of Code Section 416) then the Plan shall meet the
requirements set forth in this Article XII for such Plan Year.
3. Minimum Contribution Requirement. The Employer shall
provide a minimum contribution for any Plan Year in which the
Plan is Top-Heavy for each Employee who is a Non-Key Employee.
The contribution shall equal at least three percent of such
Employee's Net Compensation for such Plan Year.
The three percent minimum contribution requirement may be
increased for any year in which the Employer also maintains a
defined benefit plan if the increase is necessary to avoid the
application of Code Section 416(h)(1), relating to special
adjustments to the Code Section 415 limits for Top-Heavy plans.
As of the close of any Plan Year in which such restriction
applies, the Plan Administrator shall determine whether the
minimum contribution under the Plan shall be increased or
whether the benefit provided under the defined-benefit plan
shall be increased. The amount of any such increase shall be
sufficient to avoid the limitation imposed under Code Section
416(h)(1).
The minimum contribution requirements set forth above
shall be reduced in the following circumstances:
a. The percentage minimum contribution for any Plan
Year shall in no event exceed the percentage contribution
made for the Key Employee for whom such percentage is the
highest for such Plan Year after taking into account all
Matching Contributions and Tax-Deferred Contributions to
the Key Employee's accounts under this Plan as well as
contributions or benefits under other qualified plans in
the Plan's Required Aggregation Group as provided pursuant
to Section 416(c)(2)(B)(iii).
b. If the Employer maintains a qualified defined-
benefit plan and the minimum contribution required under
Code Section 416 is not provided under the other articles
of this Plan, the minimum benefit required under Code
Section 416 shall be provided by the defined-benefit plan
and no minimum contribution will be required for the
Employee under this Article XII; and
c. Matching Contributions shall reduce any minimum
contribution required under the provisions of this
Paragraph (3).
4. Allocation. For any Plan Year in which the Plan is
Top-Heavy, the minimum contribution described above shall be
allocated to the Matching Contribution Accounts of all Non-Key
Employees employed by the Company on the last day of such Plan
Year. In the event a Matching Contribution Account is not
maintained for any such Non-Key Employee, such an account shall
be established.
5. Accelerated Vesting. Notwithstanding the provisions
of Paragraph 2 of Article V, in the event this Plan is deemed
Top Heavy in any Plan Year, then a Participant's vesting in his
Matching Contribution Account shall be determined in accordance
with the following schedule:
Years of Service Vested Percentage
Less than 2 0%
2 but less than 3 20
3 but less than 4 40
4 but less than 5 60
5 or more 100
In the event this Plan becomes Top Heavy and thereafter ceases
to be Top Heavy, the vesting schedule shall revert to the
schedule contained in Paragraph 2 of Article V, but subject to
the provisions of Paragraph 1(b) of Article XIV. In the event
of a Change of Control, however, each Participant's Vested
Percentage shall be 100%, regardless of the number of the
Participants' Years of Vesting Service.
ARTICLE XIII
ADMINISTRATION
1. Administration. The Plan shall be administered by a
Committee appointed by the Board of Directors.
The Committee (which is referred to elsewhere in this
document as the "Plan Administrator") shall have the authority
to delegate its responsibilities, provided that the
Participants are notified of the delegation when it relates to
the exercise of their rights under the Plan.
2. Powers. The Plan Administrator shall have the power
to administer the Plan; such power shall include, but is not
limited to:
a. The power to interpret and construe the provisions
of the Plan.
b. The power to determine all questions of eligi-
bility to participate, eligibility for benefits, the
allocation of contributions, and the status and rights of
Participants and their Beneficiaries.
c. The power to determine and decide any dispute
arising under the Plan.
d. The power to direct the Trustee concerning all
payments which shall be made out of the Trust in
accordance with the provisions of the Plan.
e. The power to establish procedures for the with-
holding of federal income tax from distributions.
f. The power to determine the existence and amount of
a financial hardship.
g. The power to establish equitable procedures for
compliance with the discrimination tests set forth in
Article III, Paragraph (6) and Article IV, Paragraph (7).
3. Actions. Any action taken by the Plan Administrator
on matters within its discretion shall be final and binding on
the parties and on all Participants, Beneficiaries or other
persons claiming any right or benefit under the Plan, in the
Trust, or in the administration of the Plan.
All decisions of the Plan Administrator shall be uniform
and made in a nondiscriminatory manner.
4. Bond. The Company shall purchase a bond for the Plan
Administrator and any other fiduciaries of the Plan in
accordance with the requirements of the Code and ERISA.
5. Compensation. No person employed by the Company and
serving on the Committee shall receive compensation for the
performance of his or her duties as such.
6. Expenses. All expenses of administration shall be
paid from the Trust unless paid directly by the Company. The
Company may reimburse the Trust for any administrative expense
paid by the Trust; such reimbursement shall not be treated as a
Company contribution under the terms of the Plan.
7. Claims. If a Participant or other person
("claimant") believes a benefit or distribution is due under
the Plan, he or she may request the distribution of such
benefit, in writing, on forms acceptable to the Plan
Administrator. At such time, the claimant will be given the
information and materials' necessary to complete any request
for the distribution of a benefit.
If the request for distribution is disputed or denied, the
following action shall be taken:
a. First, the claimant will be notified, in writing, of
the dispute or denial as soon as possible (but no later
than ninety business days) after receipt of the request
for a distribution. The notice will set forth the
specific reasons for the denial, including any relevant
provisions of the Plan. The notice will also explain the
claims review procedure of the Plan.
b. Second, the claimant shall be entitled to a full
review of his or her request for a distribution. A
claimant desiring a review of the dispute or denial must
request such a review, in writing, no later than sixty
business days after notification of the dispute or denial
is received. During the review, the claimant may be
represented and will have the right to inspect all
documents pertaining to the dispute or denial. Any such
review may include a hearing for the claimant or his or
her designated representative.
c. The Plan Administrator shall render its decision
within sixty business days after receipt of the request
for the review. In the event special circumstances
require an extension of time, the Plan Administrator shall
notify the claimant, in writing, and the decision shall be
rendered no later than one hundred and twenty business
days after the receipt of the request. The decision of
the Plan Administrator shall be in writing. The decision
shall include specific reasons for the action taken and
specific references to the Plan provisions on which the
decision is based.
ARTICLE XIV
AMENDMENT AND TERMINATION
1. Amendment. The Board of Directors reserves the right
at any time to amend the Plan; provided, however, that no such
amendment:
a. Shall authorize or permit any portion of the accounts
established under the Plan to be used for or diverted to
purposes other than for the exclusive benefit of Employees
and their Beneficiaries and Alternate Payees; or
b. Shall deprive an Employee of his or her nonforfeitable
right to benefits accrued as of the date of such
amendment. If the vesting schedule of the Plan is amended
in such a way that an Employee with at least three Years
of Service might in any Plan Year have less vesting credit
under the new schedule than under the schedule prior to
the amendment, that Employee may elect to have his or her
nonforfeitable percentage computed without regard to such
amendment. The period during which such election may be
made shall commence with the date the amendment is adopted
and shall end on the later of (i) sixty days after the
amendment is adopted, (ii) sixty days after the amendment
becomes effective, or (iii) sixty days after the Employee
is provided with written notice of the amendment.
The Trustee shall be notified in writing of any amendment
within a reasonable time.
2. Merger. The Plan may be merged or consolidated with,
or its assets and liabilities may be transferred to any other
plan only if the benefits which would be received by a
Participant in the event of a termination of the Plan
immediately after such transfer, merger or consolidation are at
least equal to the benefit such Participant would have received
if the Plan had terminated immediately prior to the transfer,
merger or consolidation.
3. Termination. The Board of Directors shall have the
right, at any time, to terminate the Plan, in whole or in part,
by delivering written notice to the Trustee of such
termination. A complete discontinuance of the Company's
contributions to the Plan shall be deemed to constitute a
termination.
Upon any termination (whether full or partial) or a
complete discontinuance of contributions, all amounts credited
to the affected Participants' accounts shall become fully
vested and nonforfeitable. Upon such termination, the Plan
Administrator shall direct the Trustee to distribute the assets
held in the Trust to the Participants.
ARTICLE XV
MISCELLANEOUS PROVISIONS
1. Governing Law. The Plan shall be governed by federal
law to the extent applicable, otherwise by the laws of the
State of Louisiana.
2. Diversion. In no event shall any portion of the
Trust be used for, or diverted to, purposes other than the
exclusive benefit of the Participants, their Beneficiaries, or
their Alternate Payees.
3. Employment Rights. Participation in the Plan will
not give any Participant the right to be retained in the employ
of the Company or any right or claim to any benefit under the
Plan, unless such right has specifically accrued under the
terms of the Plan.
4. Action. Except as may be specifically provided
herein, any action required or permitted to be taken by the
Company may be taken on behalf of the Company by any authorized
officer of the Company.
5. Liability for Benefits. None of the Trustee, the
Company or the Plan Administrator guarantee the Trust from loss
or depreciation, nor do they guarantee any payment to any
person. The liability of the Trustee, the Company, and the
Plan Administrator to make any payment is limited to the
available assets of the Trust.
6. Evidence. Evidence required of anyone under the Plan
may be supplied by certificate, affidavit, document or other
information which the persons relying on it consider pertinent
and reliable.
7. Anticipation of Benefits. Except as provided in
Paragraph 9 of Article IX, no benefit under the Plan shall be
subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any
attempt to anticipate, alienate, sell, transfer, sign, pledge,
encumber or charge such benefit shall be void; nor shall the
benefits payable under the Plan be subject to any attachment or
legal process.
8. Named Fiduciary. The "named fiduciaries" of the Plan
within the meaning of ERISA Section 403 shall be (a) the Board
of Directors, (b) the Plan Administrator, and (c) the Trustee.
9. Indemnification. The Employer agrees to defend the
individuals performing services on behalf of the Plan
Administrator against any claim or any liability, including any
tax, imposed as a result of a claim asserted by any person or
persons or entity (including a governmental entity) under the
laws of any state or of the United States with respect to any
action or failure to act of such individuals taken in good
faith and in accordance with the terms of the Plan.
10. Failure to Locate Beneficiary. The Plan
Administrator shall retain the address of each Participant,
Beneficiary and Alternate Payee. Any notice sent to the last
address filed with the Plan Administrator or for the last
address indicated on the Company's records will be binding upon
a Participant, Beneficiary or Alternate Payee. If the Plan
Administrator notifies a Participant, Beneficiary or Alternate
Payee that he or she is entitled to a distribution and the
Participant, Beneficiary or Alternate Payee fails to claim the
benefit within five years of notification, the amount
representing the benefits shall be treated as a forfeiture and
reallocated in accordance with the provisions of Article IV,
Paragraph (2); provided, however, that the benefit will be
reinstated if a claim is subsequently made by the Participant,
Beneficiary or Alternate Payee.
11. Voting Rights. Each Participant shall be entitled to
direct the Trustee as to the exercise of voting rights
attributable to Company Stock allocated to any of his or her
accounts as of the Valuation Date immediately preceding the
relevant shareholders' meeting date. If the Trustee does not
receive adequate instructions from a Participant, the Trustee
shall not be entitled to vote Company Stock allocated to such
Participant's accounts.
Prior to each annual or special shareholders' meeting, the
Plan Administrator, through the Trustee, shall provide each
Participant with (a) a copy of any proxy solicitation or other
material furnished to other shareholders, and (b) a form
requesting instructions as to the exercise of voting rights
attributable to Company Stock credited to such Participant's
accounts. Instructions received by the Trustee shall be held
in confidence and shall not be divulged or released to any
person, including the officers or Employees of the Company.
Neither the Trustee nor the Plan Administrator shall make
recommendations as to the manner in which Company Stock
allocated to a Participant's accounts should be voted.
12. Insider Trading Restrictions. In order to assure
compliance by Participants who are subject to Section 16 of the
Securities Exchange Act of 1934, as amended ("insiders") with
Rule 16b-3, as amended, or other applicable rules under Section
16 of the Securities Exchange Act of 1934, as amended, the Plan
Administrator shall have the authority to impose additional
requirements on insiders (a) concerning the time at which
transfers in or out of the Melamine Fund can be made under
Paragraph 3 of Article VII, (b) restricting investments in the
Melamine Fund after a transfer out of such fund, and (c)
suspending the ability to have Salary Deferral Contributions
made after a withdrawal or a loan from the Plan.
13. Procedure for Participant Elections. The Plan
Administrator shall establish procedures for making Participant
elections concerning contribution amounts and investment
allocations.
ARTICLE XVI
TRUST PROVISIONS
1. General Duties. The Trustee shall establish a Trust
pursuant to the terms of the Plan to hold all property received
by it, and shall manage, invest and reinvest the assets of the
Trust, collect the Trust income, and make payments from the
Trust, all as provided in the Plan.
The Trustee shall be responsible only for the property
actually received by it. It shall have no duty or authority to
compute any amount to be paid to it by the Company or to bring
any action or proceeding to enforce the collection from the
Company of any contribution to the Trust.
Title to the assets of the Trust, including all funds and
investments held by the Trustee, shall be and remain in the
Trustee, and no Participant, Beneficiary or Alternate Payee
shall have any legal or equitable right or interest in the
Trust Fund except to the extent that such rights or interests
are expressly granted under the provisions of the Plan.
2. General Powers. The Trustee shall have all the powers
necessary for the performance of its duties as Trustee. The
Trustee shall have the following powers and immunities and be
subject to the following duties:
a. The Trustee shall receive all contributions to the
Trust and apply such contributions as set forth below.
The Trustee shall have the custody of and safely keep all
cash, securities, property and investments, including any
insurance company contracts, received or purchased in
accordance with the terms of the Plan.
b. Subject to any limitations that may be contained
elsewhere in the Plan, the Trustee shall take control and
management of the Trust and shall hold, sell, buy,
exchange, invest and reinvest the corpus and income of the
Trust. All contributions paid to the Trustee under the
Plan shall be held and administered by the Trustee as a
single Fund, and the Trustee shall not be required to
segregate and invest separately any part of the Trust
representing accruals or interests of individual
Participants in the Plan.
c. The Trustee may invest and reinvest the funds of
the Trust in any property, real, personal or mixed,
wherever situated, and whether or not productive of income
or consisting of wasting assets, including, without
limitation, common and preferred stock, bonds, notes,
debentures, leaseholds, mortgages (including without
limitation, any collective or part interest in any bond
and mortgage or note and mortgage), certificates of
deposit, and oil, mineral or gas properties, royalties,
interest or rights (including equipment pertaining
thereto), without being limited to the classes of property
in which trustees are authorized by law or any rule of
court to invest trust funds and without regard to the
proportion any such property may bear to the entire amount
of the Trust.
The Trustee may invest and reinvest all or any portion of
the Trust assets collectively with funds of other
retirement plan trusts exempt from tax under Section
501(a) of the Code, including, without limitation, power
to invest collectively with such other funds through the
medium of one or more common, collective or commingled
trust funds which have been or may hereafter be
established and maintained by the Trustee, the instrument
or instruments establishing such trust fund or funds, as
amended from time to time, being made part of the Trust so
long as any portion of the Trust shall be invested through
the medium thereof.
d. The Trustee may sell or exchange any property or
asset of the Trust at public or private sale, with or
without advertisement, upon terms acceptable to the
Trustee and in such manner as the Trustee may deem wise
and proper. The proceeds of any such sale or exchange may
be reinvested as is provided hereunder. The purchaser of
any such property from the Trustee shall not be required
to look to the application of the proceeds of any such
sale or exchange by the Trustee.
e. The Trustee shall have full power to mortgage,
pledge, lease or otherwise dispose of the property of the
Trust without securing any order of court therefor,
without advertisement, and to execute any instrument
containing any provisions which the Trustee may deem
proper in order to carry out such actions. Any such lease
so made by the Trustee shall be binding, notwithstanding
the fact that the term of the lease may extend beyond the
termination of the Plan.
f. The Trustee shall have the power to borrow money
upon terms agreeable to the Trustee and pay interest
thereon at rates agreeable to the Trustee, and to repay
any debts so created.
g. The Trustee may participate in the reorganization,
recapitalization, merger or consolidation of any
corporation wherein the Trustee may own stock or
securities and may deposit such stock or other securities
in any voting trust or protective committee or like
committee or trustee, or with the depositaries designated
thereby, and may exercise any subscription rights or
conversion privileges, and generally may exercise any of
the powers of any owner with respect to any stock or other
securities or property included in the Trust.
h. The Trustee may, through any duly authorized
officer or proxy, vote any share of stock which the
Trustee may own from time to time.
i. The Trustee shall retain in cash and keep
unproductive of income such funds as from time to time it
may deem advisable. The Trustee shall not be required to
pay interest on any such cash in its hands pending
investment, nor shall the Trustee be responsible for the
adequacy of the Trust assets to discharge any and all
payments under the Plan. All persons dealing with the
Trustee are released from inquiry into the decision or
authority of the Trustee to act.
j. The Trustee may hold stocks, bonds, or other
securities in its own name as Trustee, with or without the
designation of said trust estate, or in the name of a
nominee selected by it for the purpose, but said Trustee
shall nevertheless be obligated to account for all
securities received by it as part of the corpus of the
trust estate herein created, notwithstanding the name in
which the same may be held.
k. The Trustee may consult with legal counsel (who
may be of counsel to the Employer or the Committee)
concerning any questions which may arise with reference to
the construction of this Plan, its duties under the terms
of the Plan, or any action which it proposes to take or
omit.
l. The Trustee may employee such counsel,
accountants, and other agents as it shall deem advisable.
The Trustee may charge the compensation of such counsel,
accountants and other agents and the Trustee's
compensation for its services in such amounts as may be
agreed upon from time to time by the Employer and the
Trustee, and any other expenses necessary in the
administration of this Plan against the Trust Fund to the
extent they are not paid by the Employer.
m. The Trustee shall have the power to designate a
bank, insurance company or trust company as depositary of
the funds or property of the Trust and also to retain
investment counsel.
n. Without diminution or restriction of the powers
vested by law or elsewhere in this Plan, and subject to
all the provisions of the Plan, the Trustee, without the
necessity of procuring any judicial authorization or
approval, shall be vested with and, in the application of
its best judgment and discretion on behalf of the
beneficiaries of this Plan, shall be authorized to
exercise all or any of the powers specifically permitted
by statute or judicial decision in the State of Louisiana.
3. Reliance on Committee and Company. Until notified
pursuant to Article XIII that any Committee member or other
person authorized to act for the Plan Administrator has ceased
to act or is no longer authorized to act for the Plan
Administrator, the Trustee may continue to rely on the
authority of such member or other person. The Trustee may rely
upon any certificate, notice or direction purporting to have
been signed on behalf of the Plan Administrator which the
Trustee believes to have been signed by the Plan Administrator
or the person or persons authorized to act for the Plan
Administrator. The Trustee may rely upon any certificate,
notice or direction of the Company which the Trustee believes
to have been signed by a duly authorized officer or agent of
the Company. The Trustee may request instructions in writing
from the Plan Administrator on other matters and may rely and
act on such written instructions.
4. Accounts and Reports. The Trustee shall keep an
accurate record of its administration of the Trust Fund,
including a detailed account of all investments, receipts and
disbursements, and other transactions. All accounts, books and
records relating to the Plan or Trust shall be open for
inspection to any person designed by the Plan Administrator or
the Company at all reasonable times. Within 60 days following
the close of each Plan Year, the Trustee shall file with the
Plan Administrator a written report setting forth all
investments, receipts and disbursements and other transactions
during the Plan Year, and such report shall contain an exact
description of all securities purchased, exchanged or sold, the
cost or net proceeds of sale, and shall show the securities and
investments held at the end of such Plan Year, and the cost and
fair market value of each item, as carried on the books of the
Trustee.
The Trustee shall also provide the Company and the Plan
Administrator with such other information in its possession as
may be necessary for the Plan Administrator or the Company to
comply with the reporting and disclosure requirements of ERISA.
5. Disbursements. The Trustee, upon written
instructions from the Plan Administrator, shall make
distributions and/or payments, including monthly payments to
the Participants, Beneficiaries and Alternate Payees who
qualify for such benefits and shall purchase, transfer,
discontinue or surrender any insurance contracts. The Trustee
shall have no liability to the Company, the Plan Administrator
or any other person in making such distributions and/or
payments. The Trustee shall not be required to determine or
make any investigation to determine the identity or mailing
address of any person entitled to benefits under the Plan and
shall have discharged its obligation in that respect when it
shall have sent checks and other papers by ordinary mail to
such person or persons at such addresses as may be certified to
it in writing by the Plan Administrator.
6. Authority of Trustee. At no time during the
administration of the Trust shall the Trustee be required to
obtain any court approval of any act required of it in
connection with the performance of its duties or in the
performance of any act required of it in the administration of
its duties as Trustee. The Trustee shall have full authority
to exercise its judgment in all matters and at all times
without court approval of such decisions; provided, however,
that if any application to, or proceeding or action in, the
courts is made, only the Company and the Trustee shall be
necessary parties, and no Participant in the Plan or other
person having an interest in the Trust shall be entitled to any
notice or service of process. Any judgment entered in such
proceeding or action shall be conclusive upon all persons
claiming an interest under the Trust.
7. Funding Policy; Parties in Interest. From time to
time the Plan Administrator shall communicate to the Trustee
the current funding policy and method that have been
established to carry out the objectives of the Plan.
Upon the written request of the Trustee, the Company shall
file with the Trustee a roster of the names of all persons,
corporations, partnerships, organizations and entities which
are "parties in interest" with respect to the Plan, as that
term is defined in ERISA.
8. Removal or Resignation of Trustee. The Trustee may
at any time be removed as Trustee of the Plan by action of the
Board of Directors and written notice to the Trustee, such
removal to be effective 60 days after such notice is given.
The Trustee may resign as Trustee of the Plan upon written
notice to the Company, such resignation to be effective 60 days
after such notice is given.
Upon mutual, written agreement by the Company and the
Trustee, the 60 day period in this Paragraph 9 may be waived or
a shorter period substituted.
9. Successor Trustee. In the event of the resignation
or removal of the Trustee, the Company shall appoint a
successor trustee in place of the resigned or removed Trustee.
Within 120 days after written notice of removal or
resignation, the Trustee shall file with the Company a written
report setting forth all investments, receipts and
disbursements and other transactions effected by it since the
end of the preceding Plan year. Such report shall be in the
same form and be subject to the same requirements as the annual
report.
The Trustee, if not paid by the Company, is authorized to
reserve such sum of money or to liquidate such property and
reserve the proceeds thereof as it may deem advisable for the
payment of its expenses and/or charges in connection with the
settlement of its account or otherwise, and any such balance of
such reserve remaining after the payment of such expenses and
charges shall be paid over to the successor trustee or
trustees, or to the Participants in the event of termination.
Premier Bank, N.A., through its undersigned authorized
officer, appears herein to acknowledge the foregoing
restatement of the Plan and agree to be bound thereby.
The foregoing restatement of the Melamine Chemicals, Inc.
Employee 401(k) Thrift Plan is EXECUTED this 8th day of April,
1996, in multiple counterparts, each of which shall be deemed
an original, as set forth below:
WITNESSES: MELAMINE CHEMICALS, INC.
/s/ Witness
- -----------------------------
BY: /s/ Fred Huber
--------------------------
/s/ Witness
- ----------------------------- TITLE: PRESIDENT AND CEO
PREMIER BANK, N.A.
/s/ Witness
- ------------------------------
BY: /s/ Rebecca G. Fontenot
---------------------------
/s/ Witness
- ------------------------------
ACKNOWLEDGEMENT
STATE OF LOUISIANA
PARISH OF ASCENSION
BEFORE ME, the undersigned Notary Public, personally came
and appeared FREDERIC R. HUBER, President and CEO, of Melamine
Chemicals, Inc., who being by me sworn did depose and state
that he signed the foregoing Amended and Restated Employee
401(k) Thrift Plan as his free act and deed on behalf of
Melamine Chemicals, Inc. for the purposes therein set forth.
/s/ Fred Huber
------------------------------
SWORN TO AND SUBSCRIBED BEFORE
ME THIS 8th DAY OF APRIL, 1996.
/s/ Monica B. Crews
- -------------------------------
NOTARY PUBLIC
ACKNOWLEDGEMENT BY PREMIER BANK, N.A.
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
BEFORE ME, the undersigned Notary Public, in and for the Parish and
State aforementioned, on this day personally appeared Rebecca G. Fontenot,
known to me, personally, who, after being by me first duly sworn, did say that
he is the officer whose name is subscribed to the foregoing instrument and that
he executed the same as an act of said PREMIER BANK, NATIONAL ASSOCIATION, a
banking corporation, for the purposes and considerations therein stated.
THUS DONE AND SIGNED on this 26th day of April, 1996 and in the
presence of the undersigned competent witnesses, at Baton Rouge, Louisiana.
WITNESSES: PREMIER BANK, NATIONAL ASSOCIATION
/s/ Witness BY: /s/ Rebecca G. Fontenot
- ------------------------ -------------------------------
Authorized Officer
/s/ Witness
- ------------------------
/s/ Notary Public
-------------------------------
NOTARY PUBLIC