EXHIBIT 4.2
AMENDMENT #1
TO THE
SUPER RITE FOODS EMPLOYEE INVESTMENT OPPORTUNITY PLAN
As authorized by Section 10.1 of the Super Rite Foods Employee
Investment Opportunity Plan ("Plan") as amended and restated
effective April 1, 1989, the employer, Super Rite Foods, Inc.,
hereby amends the Plan in the following manner:
FIRST: Sections 2.9 is amended to reflect the change made to
Internal Revenue Code ("Code") section 401(a)(17) by the Omnibus
Budget Reconciliation Act of 1993. This amendment is made
effective as of the plan year beginning on or after January 1,
1994. As amended, the last two paragraphs of Section 2.9 are
deleted and replaced by the following:
For any Plan Year beginning after December 31, 1993, the
plan administrator shall take into account only the first
$150,000 (or beginning January 1, 1995, such larger amount
as the Commissioner of Internal Revenue may prescribe) of
any Participant's Compensation for determining all benefits
provided under the Plan. For any Plan Year beginning after
December 31, 1988 but before January 1, 1994, the plan
administrator shall take into account only the first
$200,000 (or for plan years after December 31, 1989 but
before January 1, 1994, such larger amount as the
Commissioner of Internal Revenue may prescribe) of any
Participant's Compensation for determining all benefits
provided under the Plan. The compensation dollar
limitation for a Plan Year shall be the limitation amount
in effect on January 1 of the calendar year in which the
plan year begins. For any plan year beginning before
January 1, 1989, the compensation dollar limitation (but
not the family aggregation requirement described in the
next paragraph) applies only if the Plan is top-heavy for
such Plan Year or operates as a deemed top-heavy plan for
such Plan Year. If the Plan should determine Compensation
on a period of time that contains fewer than 12 calendar
months (such as for a short plan year), the annual
compensation dollar limitation shall be an amount equal to
the Compensation dollar limitation for the Plan Year
multiplied by the ratio obtained by dividing the number of
full months in the period by 12.
The compensation dollar limitation applies to the combined
compensation of the employee and of any family member
aggregated with the employee under Code Section 414(q)(6)
who is either (A) the employee's spouse, or (B) the
employee's lineal descendant under the age of 19. If, for a
Plan Year, the combined compensation of the employee and
such family members who are Participants entitled to an
allocation for that Plan Year exceeds the compensation
dollar limitation, Compensation for each such Participant,
for purposes of the contribution and allocation provisions
of Article V, means his adjusted compensation.
Adjusted compensation is the amount which bears the same
ratio to the compensation dollar limitation as the effected
Participant's Compensation (without regard to the
compensation dollar limitation) bears to the combined
compensation of all the effected Participants in the family
unit. If the Plan uses permitted disparity, the plan
administrator first shall determine the integration level
of each effected family member Participant using actual
Compensation. The total of the effected Participants'
Compensations equal to or less than the applicable
integration levels may not exceed the compensation dollar
limitation. The combined excess compensation of the
effected Participants in the family unit may not exceed the
compensation dollar limitation minus the amount determined
under the preceding sentence. If the combined excess
compensation exceeds this limitation, the plan
administrator will prorate the limitation on the excess
compensation among the effected participants in the family
unit in proportion to each such individual's actual
Compensation minus his integration level.
SECOND: Section 2.30 is amended to correctly state the effective
date of the amendment and restatement as the effective date for
the Tax Reform Act of 1986 with respect to the Plan. As amended,
Section 2.30 shall read as follows:
2.30 "Plan Restatement Date" means April 1, 1989. The Plan is
intended to be a profit sharing plan within the meaning of
Regulation 1.401(k)-1(a)(1).
THIRD: Section 2.31 is amended to state the effective date as of
which the plan year was amended from the twelve-month period
commencing on April 1 to the twelve-month period commencing on
January 1. As amended, Section 2.31 shall read as follows:
2.31 "Plan Year" means the period from January 1, through
December 31, and each twelve-month period commencing on
January 1, effective January 1, 1991. Prior to January 1,
1991, Plan Year shall mean the twelve-month period
commencing on April 1. A short plan year shall exist from
April 1, 1990 through December 31, 1990.
FOURTH: Sections 2.34 and 2.35 are amended to remove the second
paragraph of Section 2.35 and to insert said paragraph as the
third paragraph of Section 2.34.
FIFTH: Section 4.1 is amended to delete the provisions for
participation as of the Restatement Date and to correctly state
the eligibility and entry date provisions. As amended, the
second paragraph of Section 4.1 shall read as follows:
Each person who is an Eligible Employee may become a Participant
on the Entry Date which is the first day of the month next
following his completion of one (1) Year of Service.
SIXTH: Section 7.6(e) which permits the in-service distribution
of PAYSOP contributions is deleted in its entirety as this was
not permitted prior to the amendment and restatement and had not
been permitted since that date.
SEVENTH: Section 5.1 is amended to limit the date as of which a
salary-reduction agreement may be effective. As amended, Section
5.1 shall have inserted between the first and second paragraph
thereof two paragraphs that shall read as follows:
The Salary-Reduction Agreement shall be effective as of a
prospective date as provided in the Agreement. However, in
no event shall such Agreement be effective before the
adoption of this Salary-Reduction contributions provision
under the Plan. A participant electing Salary Reduction
Contributions will be deemed to desire to continue at the
same rate, unless he notifies the Administrator before the
applicable date of his desire to change the amount of
Salary-Reduction Contributions in accordance with the
Administrator's written procedures. The revised election
shall be effective on the applicable date. A Salary-
Reduction Contribution may be discontinued at any time upon
notice in accordance with the administrative procedures. A
participant who has declined or suspended Salary-Reduction
Contributions may elect salary reduction as of the January
1 or July 1 following the Administrator's acceptance of the
Salary-Reduction Agreement.
However, if a participant receives a hardship distribution,
his right to elect a Salary-Reduction Contribution shall be
suspended for 12 months after the receipt of such
distribution. Further, the participant may not elect a
Salary-Reduction Contribution for his taxable year
immediately following the taxable year of the hardship
distribution in excess of the applicable limit under Code
Section 402(g) for such taxable year less the amount of
such participant's Salary-Reduction Contributions for the
taxable year of the hardship distribution.
(3) Conditions - The participant's salary
reduction election shall apply only to compensation which
becomes currently available to the employee after the
effective date of the election. The employer shall apply
the salary reduction election to all of the participant's
compensation (and to increases in compensation), unless the
participant's salary reduction election specifies that the
election is to be limited to certain compensation.
EIGHTH: Section 5.1(c) is amended to include the allocation
formula that failed to appear in the amendment and restatement of
the Plan. As amended, Section 5.1(c) shall read as follows:
(c) Discretionary Contributions
Effective on or after January 1, 1987, the Employer
may make a contribution (subject to the limitations
of this Article V) from Net Profits or from
accumulated Net Profits to the Plan at the end of
each Plan Year in an amount, which in the opinion
of the Employer, is appropriate for such Plan Year.
Such contributions will be referred to as the
Employer's Discretionary Contributions." The
Employer's Discretionary Contribution for the Plan
Year will be allocated in the same ratio as each
Participant's Compensation bears to the total of
such Compensation of all Participants.
NINTH: Section 5.1(e) is amended to reference the plan document
preceding the amendment and restatement effective April 1, 1989
rather than a previous plan and to correctly state the effective
date as of which the PAYSOP was discontinued. As amended,
Section 5.1(e) shall read as follows:
(e) PAYSOP Contributions
Effective on April 1, 1985, a Payroll Credit
Employee Stock Ownership Plan ("PAYSOP") was
established in Article XII of the plan document as
in existence before this amendment and restatement
to promote Employees' interest in the business
endeavors of the Employer.
Effective for the Plan Year beginning April 1, 1987
and thereafter, Article XII of the plan document as
in existence before this amendment and restatement
is no longer operative. Contributions made on
behalf of Participants pursuant to said Article XII
will be referred to as the employer's PAYSOP
Contributions."
TENTH: Section 6.3 is amended to provide for quarterly
investment changes with respect participant contributions. As
amended, the final paragraph of Section 6.3 shall read as
follows:
Subject to the restrictions pertaining to Employer
Contributions set forth above, a Participant may change the
proportion of any Contribution on any January 1, April 1,
July 1, or October 1 made in accordance with Article V that
is to be credited to each Investment Subaccount by
notifying the Administrator when such change is to become
effective. No such changes may be retroactive. Such
changed proportion will apply to such Contributions
received by the Funding Agent on or after the later of the
effective date of such change and the date of receipt of
such notification by the Funding Agent, and will remain in
effect until any subsequent change is made by the
Participant.
ELEVENTH: Effective January 1, 1993, the Plan is amended by
relettering Section 7.3(d) as 7.3(e) and by inserting a new
Section 7.3(d) to comply with Internal Revenue Code section
401(a)(31) as added by the Unemployment Compensation Amendments
of 1992. As amended, Section 7.3(d) and (e) shall read as
follows:
(d) a rollover distribution. Effective for
distributions made on or after January 1, 1993,
notwithstanding the optional forms of payment
listed above, a distributee may elect, at the time
and in the manner prescribed by the Administrator,
to have any portion of an eligible rollover
distribution paid directly to an eligible
retirement plan specified by the distributee in a
direct rollover.
(1) Eligible Rollover Distribution - An eligible
rollover distribution is any distribution of
all or any portion of the balance to the
credit of the distributee, except that an
eligible rollover distribution does not
include: any distribution that is one of a
series of substantially equal periodic
payments (not less frequently than annually)
made for the life (or life expectancy) of the
distributee or the joint lives (or joint life
expectancies) of the distributee and the
distributee's designated beneficiary, or for
a specified period of ten years or more; any
distribution to the extent such distribution
is required under ten years or more; any
distribution to the extent such distribution
is required under Code Section 401(a)(9) and
the portion of any distribution that is not
includible in gross income (determined
without regard to the exclusion for net
unrealized appreciation with respect to
employer securities).
(2) Eligible Retirement Plan - An eligible
retirement plan is an individual retirement
account described in Code Section 408(a), an
individual retirement annuity described in
Code Section 408(b), an annuity plan
described in Code Section 403(a), or a
qualified trust described in Code Section
401(a), that accepts the distributee's
eligible rollover distribution. However, in
the case of an eligible rollover distribution
to the surviving spouse, an eligible
retirement plan is an individual retirement
account or individual retirement annuity.
(3) Distributee - A distributee includes an
employee or former employee. In
addition, the employee's or former
employee's surviving spouse and the
employee's or former employee's spouse
or former spouse who is the alternate
payee under a qualified domestic
relations order, as defined in Code
Section 414(p), are distributees with
regard to the interest of the spouse or
former spouse.
(4) Direct Rollover - A direct rollover is
a payment by the plan to the eligible
retirement plan specified by the
distributee.
(e) a combination of any or all of a, b, c, or d.
TWELFTH: Section 7.6(b) is amended to suspend the right to elect
salary-reduction contributions if a hardship distribution is
received. As amended, the second to the last paragraph of
Section 7.6(b) shall read as follows:
In the event of such hardship withdrawal, the Participant
may continue his participation in the Plan without
interruption. However, if a Participant receives a
hardship distribution, his right to elect a Salary-
Reduction Contribution under this Plan and any other plan
sponsored by the Employer shall be suspended for 12 months
after the receipt of such distribution. Further, the
Participant may not elect a Salary-Reduction Contribution
for his taxable year immediately following the taxable year
of the hardship distribution in excess of the applicable
limit under Code section 402(g) for such taxable year less
the amount of such Participant's Salary-Reduction
Contribution for the taxable year of the hardship
distribution.
THIRTEENTH: Section 7.8 is amended by deleting the current
language and inserting a new provision that more fully describes
the participant loan program. As amended, Section 7.8 shall read
as follows:
7.8 Loans
(a) Terms and Conditions
The Plan will provide loans to Participants in
accordance with the conditions and restrictions set
forth below.
(1) Application and Approval - A Participant may
file a written application with the
Administrator for a loan of a stated amount
and term and for a stated purpose.
The application shall be consented to by the
participant's spouse, and the spousal consent
shall be witnessed by a plan representative
or notary public. Such spousal consent will
not be required if the loan amount is not in
excess of $3,500 or if, with respect to the
participant, this plan is not a direct or
indirect transferee of a defined benefit
plan, money purchase pension plan (including
a target benefit plan), or a stock bonus or
profit sharing plan which would otherwise
have provided for a qualified joint and
survivor life annuity as the normal form of
distribution payment to the participant. If
spousal consent is required hereunder, it
shall be obtained in compliance with and have
the effect described under Section 7.4
Qualified Election.
All loans shall be subject to the approval of
the Administrator. Loans shall be available
to all Participants on a reasonably
equivalent and non-discriminatory basis. In
considering a loan, the Administrator may
take into account the availability of cash in
the fund. No loans shall be made to any
owner-employee or to any shareholder-employee
(within the meaning of Code Section 1379(b)).
On or after July 1, 1991, only two (2)
outstanding loans at a time shall be
permitted for each Participant taking a loan.
An assignment or pledge of any portion of the
Participant's interest in the Plan and a
loan, pledge, or assignment with respect to
any insurance contract purchased under the
Plan, shall be treated as a Participant loan
under this paragraph.
(2) Amount - No loan shall exceed the
Participant's current vested accrued benefit.
Further no loan to any Participant may be
made to the extent that such loan, when added
to the outstanding balance of all other loans
to the Participant, would exceed the lesser
of:
(A) $50,000, reduced by the excess (if any)
of -
(i) the highest outstanding balance of
loans from the Plan during the one-
year period ending on the day
before the date on which such loan
is made, over
(ii) the outstanding balance of loans
from the Plan on the date on which
such loan is made; or
(B) One-half the present value of the nonforfeitable
accrued benefit of the Participant which is
credited to his accounts.
For the purpose of the above limitation, all loans from all
plans of the Employer and other members of a group of
employers described in Code Sections 414(b), 414(c), and
414(m) shall be aggregated. The amount of the loan may not
be less than the minimum loan amount which may be
established by the Administrator for the Plan on a uniform
and non-discriminatory basis. Such minimum loan amount
shall not exceed $1,000. Loans shall not be made available
to highly compensated employees, (as defined in Code
Section 414(q)) in an amount greater than the amount made
available to other employees, except to the extent that the
then vested account balances may be greater.
(3) Term - The period of repayment for any loan shall be
arrived at by mutual agreement between the Administrator
and the Participant; provided that any such loan will by
its terms require repayment within five years unless such
loan is used to acquire or construct a dwelling unit which
within a reasonable time (determined at the time the loan
is made) will be used as the principal residence of the
participant or a member of the family of the participant.
Repayment shall, in any event, be made before the
participant's normal retirement age, and the loan shall not
be renewable. The loan shall require substantially level
payments of principal and interest not less frequently than
quarterly.
(4) Interest Rate - Each loan shall bear reasonable interest at
a fixed rate to be determined by the Administrator. The
Administrator shall not discriminate among Participants in
the matter of interest rates; but loans granted at
different times may bear different interest rates if, in
the opinion of the Administrator, the differences in rates
are justified by general economic conditions. The
Administrator shall determine the interest rate by using
the prime rate plus 1%. The rate shall be set not less
frequently than at the beginning of each calendar quarter
for all loans approved during that period.
(5) Security - Each loan shall be evidenced by the borrowing
Participant's promissory note, in the amount of loan, plus
interest, payable to the order of the Plan. Also, each
loan shall be adequately secured by the Participant's
assignment to the Plan of all of the right, title or
interest in and to the fund upon to the amount of the
outstanding loan balance.
Default on the note shall be treated as a distributable
event under this Plan subject to the restrictions below.
In the event of default, foreclosure on the note and
attachment of security shall not occur until after the
earlier of a distribution made under this Article VII or
the elapse of 3 month(s) without the default being cured
and in any case not later than the date which is the fifth
anniversary of the making of the loan. However, to the
extent the loan is attributable to the Participant's
Salary-Reduction Contributions Account, the Participant's
Voluntary Contributions Account, the Employer's Qualified
Matching Contributions Account (if any) or the Employer's
Qualified Non-Elective Contributions Account (if any),
attachment of security shall not occur until the
Participant separates from service or attains age 59 1/2.
If any amount of principal or interest is outstanding to
any Participant at a time when distribution of benefits is
to be made, then such loan, including accrued interest
thereon, shall be treated as a partial distribution of the
total benefit payable to such Participant or former
participant, and the note canceled. In such an event, the
Participant's vested accrued benefit under the applicable
accounts shall be reduced pro rata.
(b) Participant Loan Sub-Accounts
In the case of a Participant who has been granted a
loan hereunder, the Administrator shall establish a
Participant Loan Sub-Account for the Participant in
an amount equal to the initial principal amount of
the loan. Interest and principal payments made by
a Participant during a Plan Year shall be deposited
in the Participant Loan Sub-Account. As of the
last day of each Plan Year, all accumulated amounts
shall be transferred out of said sub-account and
invested under the Plan's specified investment
provisions. Any additional fees or charges or
taxes incurred with respect to the administration
of Participant Loan Sub-Account may be charged to
such Participant's account, or such fee may be paid
by the Employer.
FOURTEENTH: Section 9.1(c) is amended to provide for a current
distribution to an alternate payee under qualified domestic
relations order. As amended, the following paragraph shall be
inserted at the conclusion of Section 9.1(c):
This Plan specifically permits distribution to an
alternate payee under a qualified domestic
relations order at any time, irrespective of
whether the Participant has attained his earliest
retirement age (as defined under Code section
414(p)) under the Plan. A distribution to an
alternate payee prior to the Participant's
attainment of earliest retirement age is available
only if: (1) the order specifies distribution at
that time or permits an agreement between the Plan
and the alternate payee to authorize an earlier
distribution; and (2) if the present value of the
alternate payee's benefits under the Plan exceeds
$3,500, and the order requires, the alternate payee
consents to any distribution occurring prior to the
Participant's attainment of earliest retirement
age.
FIFTEENTH: Section 9.11 is amended to permit the return of an
employer contribution to the employer if such contribution cannot
be deducted under Code section 404. As amended, Section 9.11
shall be retitled "Mistaken Contributions" and shall contain a
subsection (c) to read as follows:
(c) In the event the deduction of a contribution made
by the Employer is disallowed under Code Section
404, such contribution (to the extent disallowed)
must be returned to the Employer within one year of
the disallowance of the deduction.
SIXTEENTH: Section 9.12 is amended by altering the final
sentence of that provision so that such section shall not imply
that employer reimbursements of the trust fund will not be
considered employer contributions for purposes of Code section
404. Further such section is amended to provide for the
allocation of the reimbursement. As amended, the final sentence
of Section 9.12 shall read as follows:
Any administration expense paid to the Trust Fund as
reimbursement will not be considered an Employer
Contribution for purposes of allocation, but shall be
allocated among the Accounts based on allocation of the
expenses being reimbursed.
SEVENTEENTH: Section 10.1 is amended to provide the agent
authorized by the Employer to terminate or amend the Plan. As
amended, the following sentence shall be inserted as the second
sentence of the first paragraph of Section 10.1.
The termination or amendment of this Plan shall be in
writing, authorized by the Board of Directors of the
Employer, and executed by the officer designated in such
authorization.
EIGHTEENTH: Section 11.3(b) is amended to delete the reference
to the first $200,000 of the Key Employee's Earnings and to
insert language that coordinates this compensation limit with the
amendments to Internal Revenue Code section 401(a)(17). Further,
a sentence is inserted to address the treatment of Salary-
Reduction Contributions made by Key Employees for this purpose.
As amended, the first paragraph of Section 11.3(b) shall read as
follows:
(b) Section 5.1: Except as otherwise provided below,
Employer Contributions made on behalf of any
Participant* who is a Non-Key Employee will not be
less than the lesser of 3% of such Participant's
Top-Heavy Compensation, or in the case where the
Employer has no defined benefit plan which
designates this Plan to satisfy Code section 401,
the largest percentage of Employer Contributions,
as a percentage of the Key Employee's Earnings
which may be taken into account under Section 2.9,
made on behalf of any Key Employee for that year.
For this purpose, amounts contributed to the Key
Employee's Participant Salary-Reduction
Contributions Account shall be included as
contributions made on his behalf for that year.
The minimum Employer Contribution is determined
without regard to any Social Security contribution.
NINETEENTH: Section 11.4 is amended to provide that in the event
that the Plan's Top-Heavy Required Aggregation Group is top-
heavy, a Plan participant who is also cover by Super Rite Foods,
Inc. Pension Plan will receive his required minimum benefit under
the pension plan. As amended, Section 11.4 shall read as
follows:
11.4 Coordination with Defined Benefit Plan:
In any Plan Year in which this Plan is top-heavy when
aggregated with the Super Rite Foods, Inc. Pension
Plan which the Employer also sponsors, the top-heavy
minimum benefit requirement shall be met under such
other sponsored plan. If a Participant only
participates in this Plan, the top-heavy minimum
benefit shall first be met by any allocation to the
Employer Qualified Non-Elective Contribution Account
for the Plan Year. Then, the contributions and
forfeitures allocable to the Employer Discretionary
Contribution Account shall e increased if necessary
for compliance. The total of the contributions and
forfeitures allocated to such accounts for such a
Participant shall not be less than an amount equal to
3% of his Compensation.
TWENTIETH: Section 12.2 is amended to address this investment of
the Employer Discretionary Contributions Account and the Employer
Matching Contributions Account and to authorize the Trustee to
invest more than ten percent of the trust fund in employer stock.
As amended, Section 12.2 shall contain a new subsection (c) that
shall read as follows:
(c) Effective on and after July 1,1991, contributions
allocated to a Participant's Employer Discretionary
Contributions Account shall be invested in employer
stock. Effective on and after May 15, 1992,
contributions allocated to a Participant's Employer
Matching Contributions Account shall also be
invested in employer stock. It is specifically
intended that this Plan qualify and operate as an
eligible individual account plan as defined in
ERISA Section 407(d)(3). As such, and without
limiting the generality of the foregoing, the
Trustee is specifically authorized to:
(1) acquire, hold, sell, and distribute employer
stock.
(2) invest in employer stock and not limit its
holdings of such stock to ten percent of
trust assets but may invest up to fifty
percent of Trust Fund in employer stock
without regard to any Plan requirement to
diversify investments as permitted under
ERISA Section 404(a)(2).
(3) acquire or sell employer stock in a
transaction with a disqualified person or a
party in interest (as those terms are defined
in ERISA and the Code) provided that no
commission is charged and the transaction is
for adequate consideration.
In the event that the investment of an allocation to such
accounts would cause more than fifty percent of the Trust
Fund to be invested in employer stock, the Trustee shall
not acquire additional employer stock and shall invest the
allocation under the general provisions of Section 12.3.
TWENTY-FIRST: In order to direct the trustees to comply with
ERISA section 404(c), a new Section 12.9 is inserted. Section
12.9 shall read as follows:
12.9 Compliance with ERISA Section 404(c)
(a) This Plan is intended to provide an opportunity for
a Participant or beneficiary (including an
alternate payee) to exercise control over the
assets in his individual account and to choose from
a broad range of diversified investment
alternatives the manner in which all or some of the
assets in his account are invested.
(b) A Participant (or beneficiary) may elect to have
his accounts invested in such combination of three
or more investment funds as may be established by
the Trustee and made available for the benefit of
Participants. A Participant's investment election
shall not apply to any portion of any account that
may be invested in a Participant loan sub-account.
The investment results shall be allocated to the
Participant's accounts based upon earnings and
losses on the Participant's share in such
investment fund or funds.
(c) A Participant investment election shall be made in
accordance with the written procedures of the Plan
Administrator as provided by the Administrator.
Such procedures shall be reasonable and shall be
provided to all persons with the right to make
investment elections under the Plan. The
procedures shall permit investment instructions to
be given and to be effective on a frequency that is
appropriate to the reasonably expected market
volatility of the investment from which or to which
a transfer is being made. With respect to at least
three investment alternatives which are intended to
qualify as core investments meeting the broad range
requirements of Regulation section 2,550.404c-
1(b)(3), the Administrator shall permit at least
quarterly instructions. Further, the Administrator
shall adopt procedures that comply with either
paragraph (1) or paragraph (2).
(1) Transfers into a least one of the core
investment alternatives shall be permitted on
a frequency basis that matches the frequency
of investment instructions permitted with
respect to any non-core investment
alternative allowing instructions more often
than quarterly.
(2) Transfers into an income producing, low risk,
liquid fund, subfund or account for the
temporary holding of proceeds from
investments shall be permitted until the next
opportunity to transfer investments into one
of the core investment alternatives.
In addition, if the Plan provides an Employer
security alternative, the procedures shall permit
transfers from the Employer security alternative
either to all core investments at least as
frequently as instructions may be given for the
Employer security alternative or to a temporary
holding account as described in (2).
An election may be revoked only by another election
and will remain in effect until such revocation.
If no initial election is timely received by the
Plan Administrator, the Plan Administrator shall
invest the account in a fund designated for such
purpose.
(d) The Employer shall continue to bear responsibility
for the prudent selection of investment vehicles
offered to Participants and for the proper
monitoring of the performance of those vehicles.
The Employer shall provide for at least three core
investment alternatives that together meet the
regulatory requirements for a broad range of
investment alternatives. Such investments shall
offer the Participant or beneficiary a reasonable
opportunity to (1) materially affect both the
potential return on the assets subject to his
control and the degree of risk to which those
assets are subject; (2) diversify his investment so
as to minimize the risk of large losses,
considering the nature of the Plan and the size of
Participants' accounts; and (3) choose from at
least three diversified categories of investments.
Each such investment shall be diversified and shall
have materially different risk and return
characteristics from the other core alternatives.
Together such investments shall permit the
Participant to design a portfolio with appropriate
risk and return characteristics for the
Participant's financial and personal circumstances.
Further, such investments when taken together shall
tend to minimize through diversification the
overall risk at any given level of respected
return.
In the case of a sale, exchange, or leasing of
property between the Plan and a Plan fiduciary or
an affiliate of such a fiduciary, or a loan to a
Plan fiduciary or an affiliate of such a fiduciary,
the Participant directing the investment transfer
shall pay no more than, or receive no less than,
adequate consideration as defined in ERISA Section
3(18).
(e) The Plan Administrator or a person designated by
the Administrator shall provide investment
information to the extent and as required by
Regulation section 2550.404c-1(b)(2). However, the
Administrator will not provide any investment
advice to any Participant or beneficiary.
(f) The Plan Administrator or its designee and the
Trustee are required to comply with the investment
instructions of a Participant or beneficiary;
however, they shall decline to implement an
investment instruction if the requested investment
would result in one of the following:
(1) A prohibited transaction described in ERISA
Section 406 or Code Section 4975.
(2) Taxable income to the trust.
(3) A violation of the terms of the Plan.
(4) The maintenance of the indica of ownership of
Plan assets outside the jurisdiction of the
United States district courts in a manner not
authorized by regulations.
(5) Jeopardizing the Plan's tax-qualified status.
(6) A loss in excess of the requesting
individual's account balance.
(7) A direct or indirect transaction between the
Plan and the Plan sponsor that does not
constitute a permitted acquisition or
disposition of an interest in a fund, subfund
or portfolio managed by a Plan sponsor or an
affiliate of the sponsor or of Employer
securities.
(8) A direct or indirect loan to a Plan sponsor
or any affiliate of the sponsor.
(9) A direct or indirect acquisition or sale of
any Employer real property as defined in
ERISA Section 407(d)(2).
(10) The acquisition of a collectible as defined
in Code Section 408(m).
(11) The acquisition or sale of any Employer
security except to the extent that such
security is:
(1) A qualifying Employer security as
defined in ERISA Section 407(d)(5);
(2) Publicly traded on a national exchange
or other generally recognized market;
(3) Traded with sufficient frequency and in
sufficient volume to assure that
Participant directions to buy or sell
the security may be acted upon promptly
and efficiently; and
(4) Subject to the requirements of Section
12.9(g).
In addition, the Plan Administrator shall not
accept an investment instruction if the
Participant or beneficiary giving the
instruction is known to the Administrator to
be legally incompetent.
(g) The Plan Administrator shall adopt reasonable
procedures with regard to the Employer security
alternative that shall provide for confidentiality
with respect to purchase, holding, sale, tender and
similar rights. The Administrator shall appoint a
fiduciary (which may be itself) to be responsible
for monitoring compliance with the procedures.
Further, the Administrator shall appoint an
independent fiduciary to monitor compliance with
the procedures in the event that a situation arises
where the potential for undue Employer influence
upon Participants and beneficiaries may exist in
the exercise of shareholder rights. Participants
shall be provided upon request with material, non-
public facts regarding the investment, unless the
disclosure would violate any provision of federal
or state law not preempted by ERISA.
TWENTY-SECOND: If not otherwise provided, these amendments are
made effective as of April 1, 1989.
TWENTY-THIRD: All other provisions of the Plan remain in full
force and effect.
Executed this 28th day of December, 1994.
SUPER RITE FOODS, INC.
By: /s/ William Schantzenbach
Title: Vice President - Finance
By: /s/ William Schantzenbach By: _________________________
Trustee Trustee
By: /s/ John J. Harrison By: _________________________
Trustee Trustee