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CCC INFORMATION SERVICES INC.
401(k) RETIREMENT SAVINGS & INVESTMENT PLAN
As Amended and Restated Effective January 1, 2001
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TABLE OF CONTENTS
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PAGE
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ARTICLE I. Introduction...............................................................................1
1.1. Establishment and Purpose.......................................................1
1.2. Applicability of the Plan.......................................................1
ARTICLE II. Definitions................................................................................2
ARTICLE III. Eligibility and Participation..............................................................9
3.1. Eligibility Requirements........................................................9
3.2. Enrollment Procedure............................................................9
3.3. Eligible Employees Who Decline Participation....................................9
3.4. Leaves of Absence...............................................................9
3.5. Qualified Military Service......................................................9
ARTICLE IV. Contributions by Employer.................................................................10
4.1. Employer Contributions.........................................................10
4.2. Before-Tax Contributions.......................................................10
4.3. Limitations on Before-Tax Contributions........................................10
4.4. Employer Matching Contribution.................................................14
4.5. Code Section 401(m) Limitation on Employer Matching Contributions..............14
4.6. Multiple Use...................................................................18
4.7. Catch-Up Contributions.........................................................19
ARTICLE V. Participant Contributions.................................................................20
5.1. No After-Tax Contributions.....................................................20
5.2. Rollover Contributions.........................................................20
ARTICLE VI. Accounting Provisions and Allocations.....................................................21
6.1. Participant's Accounts.........................................................21
6.2. Investment Funds...............................................................21
6.3. Allocation Procedure...........................................................23
6.4. Determination of Value of Trust Fund and of Net Earnings or Losses.............23
6.5. Allocation of Net Earnings or Losses...........................................24
6.6. Allocation of Before-Tax Contributions.........................................24
6.7. Allocation of Employer Matching Contributions..................................24
6.8. Limitation on Annual Additions.................................................24
ARTICLE VII. Amount of Payments to Participants........................................................26
7.1. General Rule...................................................................26
7.2. Retirement.....................................................................26
7.3. Death..........................................................................26
7.4. Disability.....................................................................26
7.5. Vesting........................................................................27
7.6. Resignation or Dismissal.......................................................27
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7.7. Computation of Period of Service...............................................27
7.8. Treatment of Forfeitures.......................................................28
ARTICLE VIII. Distributions.............................................................................30
8.1. Commencement and Form of Distributions.........................................30
8.2. Distributions to Beneficiaries.................................................32
8.3. Beneficiaries..................................................................33
8.4. Installment or Deferred Distributions..........................................34
8.5. Form of Elections and Applications for Benefits................................34
8.6. Unclaimed Distributions........................................................34
8.7. In-Service Withdrawals.........................................................35
8.8. Loans..........................................................................37
8.9. Facility of Payment............................................................38
8.10. Claims Procedure...............................................................39
8.11. Eligible Rollover Distributions................................................40
ARTICLE IX. Top-Heavy Plan Requirements...............................................................42
9.1. Definitions....................................................................42
9.2. Top-Heavy Plan Requirements....................................................45
ARTICLE X. Powers and Duties of Plan Committee.......................................................47
10.1. Appointment of Plan Committee..................................................47
10.2. Powers and Duties of Committee.................................................47
10.3. Committee Procedures...........................................................48
10.4. Consultation with Advisors.....................................................49
10.5. Committee Members as Participants..............................................49
10.6. Records and Reports............................................................49
10.7. Investment Policy..............................................................49
10.8. Designation of Other Fiduciaries...............................................50
10.9. Obligations of Committee.......................................................50
10.10. Indemnification of the Committee...............................................51
ARTICLE XI. Trustee and Trust Fund....................................................................52
11.1. Trust Fund.....................................................................52
11.2. Payments to Trust Fund and Expenses............................................52
11.3. Trustee's Responsibilities.....................................................52
11.4. Reversion to an Employer.......................................................52
11.5. Allocation of Assets...........................................................52
ARTICLE XII. Amendment or Termination..................................................................53
12.1. Amendment......................................................................53
12.2. Termination....................................................................53
12.3. Form of Amendment, Discontinuance of Employer Contributions, and Termination...53
12.4. Limitations on Amendments......................................................53
12.5. Level of Benefits Upon Merger..................................................54
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12.6. Vesting Upon Termination or Discontinuance of Employer Contributions;
Liquidation of Trust...........................................................54
ARTICLE XIII. Miscellaneous.............................................................................56
13.1. No Guarantee of Employment, Etc................................................56
13.2. Nonalienation..................................................................56
13.3. Qualified Domestic Relations Order.............................................56
13.4. Controlling Law................................................................57
13.5. Severability...................................................................57
13.6. Notification of Addresses......................................................57
13.7. Gender and Number..............................................................57
ARTICLE XIV. Adoption by Affiliates....................................................................58
14.1. Adoption of Plan...............................................................58
14.2. The Company as Agent for Employer..............................................58
14.3. Adoption of Amendments.........................................................58
14.4. Termination....................................................................58
14.5. Data to Be Furnished by Employers..............................................58
14.6. Joint Employers................................................................58
14.7. Expenses.......................................................................59
14.8. Withdrawal.....................................................................59
14.9. Prior Plans....................................................................59
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CCC INFORMATION SERVICES INC.
401(k) RETIREMENT SAVINGS & INVESTMENTS PLAN
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2001)
ARTICLE I.
INTRODUCTION
1.1. ESTABLISHMENT AND PURPOSE. CCC Information Services Inc. (the
"Company"), a Delaware corporation, previously established the CCC Information
Services Inc. 401(k) Retirement Savings and Investment Plan (the "Plan") in
order to provide eligible employees with the opportunity to accumulate funds for
their retirement on a tax-deferred basis. The Plan is hereby amended and
restated effective January 1, 2001 (the "Effective Date"), to incorporate the
requirements of recent legislation and to make certain other changes to the
Plan.
The funds contributed to the Plan are held in a Trust under a trust
agreement which is made a part of the Plan by reference. The Plan is intended to
continue to satisfy the requirements of a tax-qualified plan under Section
401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and of a
cash or deferred arrangement under Section 401(k) of the Code, and to continue
to comply with the applicable requirements of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The related Trust is intended to
continue to be exempt from tax under Section 501(a) of the Code.
1.2. APPLICABILITY OF THE PLAN. The provisions of the Plan as set forth
herein are applicable only to Employees in the employ of an Employer on and
after the Effective Date. The rights and benefits of Employees whose employment
terminated prior to the Effective Date and their Beneficiaries who are or will
be receiving benefits under the Plan shall be determined in accordance with the
Plan as in effect on the last day such Employees were employed by the Employer.
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ARTICLE II.
DEFINITIONS
Whenever used in the Plan, the following words and phrases shall have the
respective meanings stated below unless a different meaning is plainly required
by the context, and when the defined meaning is intended, such term is
capitalized.
2.1. "ACCOUNT" means each of the individual accounts established pursuant
to Article VI representing a Participant's allocable share of the Trust Fund.
2.2. "ACCOUNTS" means the collective individual accounts established
pursuant to Article VI.
2.3. "ACTIVE PARTICIPANT" means a Participant who, on a given date, is
employed by the Employer as an Eligible Employee.
2.4. "ACTUAL DEFERRAL PERCENTAGE" and "ACTUAL DEFERRAL PERCENTAGE TEST"
shall have the meaning set forth in Section 4.3.
2.5. "AFFILIATE" means any corporation or entity, other than the Company
that, as of a given date, is a member of a controlled group of corporations, a
group of trades or businesses under common control or an affiliated service
group, as determined in accordance with Code Sections 414(b), (c), (m) or (o),
of which the Company is a member. For purposes of determining the amount of a
Participant's Annual Addition or Section 415 Compensation and applying the
limitations of Code Section 415 set forth in Article VI, "Affiliate" shall
include any corporation or enterprise which, as of a given date, is a member of
a controlled group of corporations or a group of trades or businesses under
common control, as determined in accordance with Code Sections 414(b) or (c), as
modified by Code Section 415(h), of which the Company is a member.
2.6. "ANNUAL ADDITION" means, for any Limitation Year, the sum of (a) all
Before-Tax Contributions and Employer Matching Contributions allocated to the
Accounts of a Participant under this Plan; (b) any employer contributions and
forfeitures allocated to such Participant under any other defined contribution
plan maintained by the Employer or an Affiliate; and (c) amounts allocated to an
individual medical account as defined in Code Section 415(1)(2) and amounts
attributable to post-retirement medical benefits allocated to an account
described in Code Section 419A(d)(2) maintained by the Employer or an Affiliate.
2.7. "BEFORE-TAX CONTRIBUTIONS" means the sum of the Matched Before-Tax
Contributions and the Supplemental Before-Tax Contributions made on behalf of a
Participant by the Employer as described in Section 4.2.
2.8. "BENEFICIARY" means the person, persons, trust or other entity
designated in accordance with Section 8.3 to receive a benefit after the death
of the Participant.
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2.9. "CODE" means the Internal Revenue Code of 1986, as from time to time
amended, and the temporary and final regulations issued thereunder.
2.10."COMMITTEE" means the Plan Committee appointed pursuant to Article X.
2.11."COMPANY" means CCC Information Services Inc., a Delaware
corporation, and any successor thereto.
2.12."CONSIDERED COMPENSATION" means the Participant's Section 415
Compensation for the Plan Year paid while he or she was an Active Participant,
plus, for Plan Years beginning on and after January 1, 1998, amounts excluded
from the Participant's income for the period under Code Sections 125 or
402(g)(3) and, for Plan Years beginning on and after January 1, 2001, amounts
excluded from the Participant's income for the period under Code
Section 132(f)(4), but excluding in all years bonuses and commissions; provided,
however, that Considered Compensation shall not include any amount in excess of
$170,000 ($200,000 for Plan Years beginning on and after January 1, 2002) (as
adjusted by the Commissioner of the Internal Revenue Service for increases in
the cost of living in accordance with Code Section 401(a)(17)(B)). The
cost-of-living adjustment in effect for a calendar year applies to any period,
not exceeding 12 months, over which compensation is determined (determination
period) beginning in such calendar year. If a determination period consists of
fewer than 12 months, the annual compensation limit will be multiplied by a
fraction, the numerator of which is the number of months in the determination
period, and the denominator of which is 12.
2.13."CONTRIBUTION PERCENTAGE" and "CONTRIBUTION PERCENTAGE TEST" are
described in Section 4.5.
2.14."DEFINED BENEFIT DOLLAR LIMITATION" means an amount equal to $90,000,
or, if greater, the amount in effect as of the last day of the Limitation Year
under Code Section 415(b)(1)(A), as adjusted by the Secretary of the Treasury
pursuant to Code Section 415(d).
2.15."DEFINED CONTRIBUTION DOLLAR LIMITATION" means an amount equal to
$30,000 (as adjusted by the Secretary of the Treasury pursuant to Code
Section 415(d)), prorated for any Limitation Year of less than 12 months.
Notwithstanding the foregoing, effective for Limitation Years beginning
after December 31, 2001, the Defined Contribution Dollar Limitation described
above shall mean an amount equal to $40,000 or such greater amount as determined
by the Secretary of the Treasury for that year.
2.16."ELIGIBLE EMPLOYEE" means any employee carried on the payroll of the
Employer other than (i) a Leased Employee, (ii) a member of a collective
bargaining unit, provided that retirement benefits were the subject of
good-faith bargaining between the members of the collective bargaining unit and
the Employer, unless the collective bargaining agreement makes this Plan
applicable to such employee, (iii) non-resident alien employees, and (iv) any
person providing services to an Employer during the time when he or she is or
was designated by the Company, in its sole discretion, as an independent
contractor.
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2.17."ELIGIBILITY PERIOD" is the twelve-month period used for the purpose
of determining when certain employees are eligible to begin making Before-Tax
Contributions under the Plan. An employee's first Eligibility Period shall
commence on the date on which he or she first completes an Hour of Service.
Subsequent Eligibility Periods shall commence on each January 1 which occurs
after said date. Notwithstanding the foregoing, the initial Eligibility Period
of a former employee who is reemployed after incurring one or more One-Year
Breaks in Service and who is not eligible immediately to receive Employer
Matching Contributions pursuant to Section 3.1(c), shall commence on the date on
which he or she first completes an Hour of Service after such One-Year Break in
Service, and subsequent Eligibility Periods shall commence on the January 1
which occurs after said date.
2.18."EMPLOYER" means the Company and any Affiliate which adopts this Plan
pursuant to Article XIV.
2.19."EMPLOYER MATCHING CONTRIBUTIONS" means the contributions described
in Section 4.4.
2.20."ENTRY DATE" means the first day of each calendar month.
2.21."ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
2.22."EXCESS FORFEITURE SUSPENSE ACCOUNT" is the account described in
Section 6.8.
2.23."FIVE-PERCENT OWNER" means an employee described in Code
Section 416(i)(1).
2.24."FUND" means one of the Funds established and maintained pursuant to
Article VI.
2.25."HIGHLY COMPENSATED EMPLOYEE" means an employee of the Employer or an
Affiliate who was a Participant eligible during the Plan Year to make Before-Tax
Contributions and who:
(a) was a Five-Percent Owner at any time during the Plan Year or the
preceding Plan Year; or
(b) received Section 415 Compensation in excess of $80,000 (as
adjusted for increases in the cost of living by the Secretary of
the Treasury) during the preceding Plan Year and was among the
top 20% of the employees (disregarding those employees excludable
under Code Section 414(q)(5)) when ranked on the basis of Section
415 Compensation paid for that year).
2.26."HOUR OF SERVICE" means:
(a) Each hour for which an employee is paid or entitled to payment
for the performance of duties for the Employer or an Affiliate;
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(b) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer or an
Affiliate; and
(c) Each hour for which an employee is paid or entitled to payment
for a period during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity, layoff, jury duty,
military duty, or leave of absence. In crediting Hours of Service
pursuant to this subparagraph (c), all payments made or due shall
be taken into account, whether such payments are made directly by
the Employer or an Affiliate or indirectly (e.g., through a trust
fund or insurer to which the Employer or an Affiliate makes
payments, or otherwise), except that:
(i) no such Hours of Service shall be credited if payments are
made or due under a plan maintained solely for the purpose
of complying with any workers' compensation, unemployment
compensation or disability insurance laws; and
(ii) no such Hours of Service shall be credited for payments
which are made solely to reimburse the employee for medical
or medically related expenses.
The Hours of Service, if any, for which an employee is credited for a period in
which he or she performs no duties shall be computed and credited to computation
periods in accordance with 29 C.F.R. 2530.200b-2 and other applicable
regulations promulgated by the Secretary of Labor. For purposes of computing the
Hours of Service to be credited to an employee for whom a record of hours worked
is not maintained, an employee shall be credited with 45 Hours of Service for
each week in which he or she completes at least one Hour of Service. In
addition, an employee shall be credited with Hours of Service for each week the
employee is on a leave of absence in accordance with Section 3.4.
2.27."LEASED EMPLOYEE" means any individual who is not carried on the
payroll of the Employer or an Affiliate and who provides services for the
Employer or an Affiliate if:
(a) such services are provided pursuant to an agreement between the
Employer or an Affiliate and any other person ("leasing
organization");
(b) such individual has performed such services for the Employer or
an Affiliate (or a related person within the meaning of Code
Section 144(a)(3)) on a substantially full-time basis for a
period of at least one year; and
(c) such services have been performed under the primary direction or
control of the Employer or an Affiliate.
2.28."LIMITATION YEAR" means the Plan Year.
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2.29."MATCHED BEFORE-TAX CONTRIBUTIONS" means (i) the first $2,000 of
Before-Tax Contributions during the Plan Year for Participants whose Considered
Compensation is less than $33,400 and (ii) Before-Tax Contributions up to 6% of
Considered Compensation during the Plan Year for Participants whose Considered
Compensation is $33,400 and above.
2.30."NON-HIGHLY COMPENSATED EMPLOYEE" means, for any Plan Year, any
employee of the Employer or Affiliate who (a) at any time during the Plan Year
was a Participant eligible to make Before-Tax Contributions, and (b) was not a
Highly Compensated Employee for such Plan Year.
2.31."NORMAL RETIREMENT DATE" means a Participant's 65th birthday.
2.32."ONE-PERCENT OWNER" means an employee described in Code
Section 416(i)(1).
2.33."ONE-YEAR BREAK IN SERVICE" is a Plan Year in which an employee
completes 500 Hours of Service or less. Solely for purposes of determining
whether a One-Year Break in Service has occurred, "Hours of Service" shall also
include each hour for which the employee otherwise would normally have been
credited but for the employee's absence on a maternity or paternity absence. A
maternity or paternity absence is an absence from work:
(a) by reason of the pregnancy of the employee;
(b) by reason of the birth of a child of the employee;
(c) by reason of the placement of a child with the employee in
connection with the adoption of such child by the employee; or
(d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
Any employee requesting such credit shall promptly furnish the Committee such
information as the Committee requires to show that the absence from work is a
maternity or paternity absence and the number of days for which there was such
an absence. Except as otherwise provided in this Plan, no more than 501 hours
shall be credited for a maternity or paternity absence. All such hours shall be
credited in the Plan Year in which the absence begins if necessary to prevent a
One-Year Break in Service in such Plan Year. If such hours are not necessary to
prevent a One-Year Break in Service in such Plan Year, the hours shall be
credited in the succeeding Plan Year if necessary to prevent a One-Year Break in
Service in such Plan Year. In the event the Committee is unable to determine the
hours which otherwise would normally have been credited for such absence, the
employee shall be credited with 8 hours per day.
2.34."PARTICIPANT" means:
(a) a current employee of the Employer who has become a Participant
in the Plan pursuant to Section 3.1 or;
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(b) a former employee for whose benefit an Account in the Trust Fund
is maintained.
2.35."PLAN" means the CCC Information Services Inc. 401(k) Retirement
Savings & Investment Plan, as set forth herein and as amended from time to time.
2.36."PLAN YEAR" means the calendar year.
2.37."REQUIRED BEGINNING DATE" means:
(a) for a Participant who is a Five-Percent Owner or who attained age
70 1/2 prior to January 1, 1999, April 1 following the calendar
year in which the Participant attains age 70 1/2; or
(b) for a Participant who attains age 70 1/2 on or after January 1,
1999 and who is not a Five-Percent Owner, April 1 following the
later of the calendar year in which the Participant attains age
70 1/2 or the calendar year in which the Participant terminates
employment.
2.38."ROLLOVER CONTRIBUTION" means:
(a) all or a portion of an eligible rollover distribution received by
an employee from another qualified plan which is eligible for
tax-free rollover to a qualified plan and which is rolled over by
the employee to this Plan within 60 days following his or her
receipt thereof;
(b) amounts rolled over to this Plan from a conduit individual
retirement account which has no assets other than assets (and the
earnings thereon) which were (i) previously distributed to the
employee by another qualified plan as an eligible rollover
distribution, (ii) eligible for tax-free rollover to a qualified
plan, and (iii) deposited in such conduit individual retirement
account within 60 days of receipt thereof;
(c) amounts distributed to the employee from a conduit individual
retirement account meeting the requirements of (b) above, and
rolled over by the employee to this Plan within 60 days of his or
her receipt thereof from such conduit individual retirement
account; and
(d) amounts rolled over directly to this Plan by the trustee of
another qualified plan pursuant to the provisions of Code
Section 401(a)(31) and to any other related laws and regulations
as in effect at the time of such direct rollover.
2.39."SECTION 415 COMPENSATION" for a period means the Participant's wages
as defined in Code Section 3401(a) for purposes of income tax withholding at the
source, and all other payments of compensation to the Participant by the
Employer for which the Employer is required to furnish the Participant a written
statement under Code Sections 6041(d), 6051(a)(3)
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and 6052, but determined 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, plus, for Plan Years beginning on and
after January 1, 1998, amounts excluded from the Participant's income for the
period under Code Section 125 or 402(g)(3) and, for Plan Years beginning on and
after January 1, 2001, amounts excluded from the Participant's income for the
period under Code Section 132(f)(4).
2.40."SEGREGATED LOAN" is any loan treated as a separate investment in
accordance with Section 6.1.
2.41."THE 1.25 TEST" is the test described in Sections 4.3(b)(i)(A) and
4.5(a)(i).
2.42."THE 2.0 TEST" is the test described in Sections 4.3(b)(i)(B) and
4.5(a)(ii).
2.43."TRUST" or "TRUST FUND" means the Trust established in accordance
with Article XI.
2.44."TRUSTEE" means the Trustee or Trustees under the Trust referred to
in Article XI.
2.45."VALUATION DATE" means the daily date as of which the Investment
Committee shall determine the value of each Account.
2.46."YEAR OF SERVICE" is any Plan Year in which an employee completes
1,000 or more Hours of Service.
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ARTICLE III.
ELIGIBILITY AND PARTICIPATION
3.1. ELIGIBILITY REQUIREMENTS.
(a) All Participants in the Plan as of December 31, 2000, shall
continue to be Participants in this Plan as of the Effective
Date.
(b) All other Eligible Employees, who are regularly scheduled to work
more than 20 hours per week, shall be eligible to participate in
the Plan on the Entry Date following the later of (i) the date on
which they complete an Hour of Service and (ii) their 21st
birthday.
(c) Eligible Employees who are regularly scheduled to work 20 hours
per week or less shall be eligible to participate on the Entry
Date coinciding with or next following the later of (i) the last
day of the first Eligibility Period in which they complete 1,000
Hours of Service and (ii) their 21st birthday.
3.2. ENROLLMENT PROCEDURE. Each Eligible Employee who intends to
participate in the Plan shall complete such enrollment steps as may be
established from time to time by the Committee signifying his or her election to
become a Participant and specifying the rate of his or her contributions
pursuant to Section 4.2. Subject to such rules as shall be prescribed by the
Committee, an Eligible Employee who has met the eligibility requirements of
Section 3.1 shall become a Participant as of the first Entry Date after his or
her completing of an election to participate in the Plan.
3.3. ELIGIBLE EMPLOYEES WHO DECLINE PARTICIPATION. An Eligible Employee who
does not become a Participant when first eligible may nevertheless elect to
become a Participant as of any subsequent date by filing a participation
election as described in Section 3.2 in accordance with the procedures that the
Committee may prescribe, provided he/she is still an Eligible Employee.
3.4. LEAVES OF ABSENCE. An employee shall be credited with 45 Hours of
Service for each full week that the employee is on a layoff or a leave of
absence, if he or she is not otherwise credited with such Hours of Service. Any
such leave of absence must be granted in writing and pursuant to the Employer's
established leave policy, which shall be administered in a uniform and
nondiscriminatory manner to similarly situated employees.
3.5. QUALIFIED MILITARY SERVICE. Notwithstanding any provision of this Plan
to the contrary, effective on and after December 12, 1994, contributions,
benefits and service credit with respect to qualified military service will be
provided in accordance with Code Section 414(u).
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ARTICLE IV.
CONTRIBUTIONS BY EMPLOYER
4.1. EMPLOYER CONTRIBUTIONS.
Subject to the right reserved to the Employer to alter, amend or
discontinue this Plan and the Trust, the Employer shall for each Plan Year
contribute to the Trust Fund an amount equal to the sum of:
(a) the Before-Tax Contributions; and
(b) the Employer Matching Contributions.
Notwithstanding the foregoing, the total Employer contributions made under
Section 4.1(b) for any taxable year shall not exceed the amount deductible for
that year under Section 404(a)(3)(A) of the Code, and shall not exceed the total
amount allowable as Annual Additions to Participants' Accounts for the Plan Year
in which that taxable year ends. The Employer shall make such contributions as
of the close of the Plan Year, or at such other times as the Employer shall
determine, but in no event later than such time as the Code may allow to qualify
such contributions for current federal income tax deduction by the Employer for
its fiscal year.
4.2. BEFORE-TAX CONTRIBUTIONS.
Subject to the provisions of Sections 4.1, 4.3 and 6.8, each Active
Participant may for each Plan Year elect to have the Employer make a Before-Tax
Contribution on his or her behalf in an amount (in whole percentages) equal to
at least 1% but not in excess of 14% (25% for Plan Years beginning on and after
January 1, 2002) of his or her Considered Compensation.
Any election under Section 4.1(a) above shall be deemed to be a continuing
election until changed by the Participant. An Active Participant may change his
or her election once each calendar month by filing written notice at the time
and in the manner as the Committee shall prescribe in its procedures; provided,
however, that an Active Participant who ceases making Before-Tax Contributions
may not resume making Before-Tax Contributions for 12 months following such
cessation (six months effective January 1, 2002).
All Before-Tax Contributions shall be made through periodic payroll
deductions. The Employer will transmit Before-Tax Contributions to the Trustee
for investment as soon as practicable after the deduction from Considered
Compensation, but in no event later than 15 days after the end of the month in
which the particular deductions are made.
4.3. LIMITATIONS ON BEFORE-TAX CONTRIBUTIONS.
(a) In no event shall a Participant's Before-Tax Contributions during
any calendar year exceed the dollar limitation contained in Code
Section 402(g) in effect at the beginning of such calendar year
(which for 2002 shall be $11,000), as adjusted by the Secretary
of the Treasury. If a
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Participant's Before-Tax Contributions, together with any
additional elective contributions to a qualified cash or deferred
arrangement, and any elective deferrals under a tax-sheltered
annuity program or a SIMPLE plan, exceed such dollar limitation
for any calendar year, such excess, and any earnings allocable
thereto, shall be distributed to the Participant by April 15 of
the following year; provided that, if such excess contributions
were made to a plan or arrangement not maintained by the Employer
or an Affiliate, the Participant must first notify the Committee
of the amount of such excess allocable to this Plan by March 1 of
the following year.
(b) Notwithstanding any other provision of this Plan to the contrary,
the Before-Tax Contributions for the Highly Compensated Employees
for the Plan Year shall be reduced in accordance with the
following provisions:
(i) The Before-Tax Contributions of the Highly Compensated
Employees shall be reduced if neither of the Actual Deferral
Percentage Tests set forth in (A) or (B) below is satisfied
after taking into account the provisions of subsection (f)
below:
(A) THE 1.25 TEST. The Actual Deferral Percentage of the
Highly Compensated Employees is not more than the
Actual Deferral Percentage of the Non-Highly
Compensated Employees multiplied by 1.25.
(B) THE 2.0 TEST. The Actual Deferral Percentage of the
Highly Compensated Employees is not more than 2
percentage points greater than the Actual Deferral
Percentage of the Non-Highly Compensated Employees and
the Actual Deferral Percentage of the Highly
Compensated Employees is not more than the Actual
Deferral Percentage of the Non-Highly Compensated
Employees multiplied by 2.0.
(C) As used in this subsection, "Actual Deferral
Percentage" means:
(i) With respect to Non-Highly Compensated Employees,
the average of the ratios of each Non-Highly
Compensated Employee's Before-Tax Contributions
with respect to the prior Plan Year, to each such
Participant's Considered Compensation for such
Plan Year; and
(ii) With respect to Highly Compensated Employees, the
average of the ratios of each Highly Compensated
Employee's Before-Tax
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Contributions with respect to the current Plan
Year, to each such Participant's Considered
Compensation for such Plan Year.
(ii) All Before-Tax Contributions made under this Plan and all
before-tax contributions made under any other plan that is
aggregated with this Plan for purposes of Code Sections
401(a)(4) and 410(b) shall be treated as made under a single
plan. If any plan is permissively aggregated with this Plan
for purposes of Code Section 401(k), the aggregated plans
must also satisfy Code Sections 401(a)(4) and 410(b) as
though they were a single plan. The Actual Deferral
Percentage ratios of any Highly Compensated Employee will be
determined by treating all plans subject to Code Section
401(k) under which the Highly Compensated Employee is
eligible as a single plan.
(iii)If neither Actual Deferral Percentage Test is satisfied as
of the end of the Plan Year, the Committee shall cause the
Before-Tax Contributions for Highly Compensated Employees to
be reduced and refunded to each such Highly Compensated
Employee in accordance with this paragraph (iii) and
paragraph (iv), respectively, until either Actual Deferral
Percentage Test is satisfied. The sequence for determining
the amount of such reductions shall begin with Highly
Compensated Employees who elected to defer the greatest
percentage of Considered Compensation, assuming that
Supplemental Before-Tax Contributions represent the last
contribution made to the Participant's Account, then the
second greatest percentage amount, continuing until either
Actual Deferral Percentage Test is satisfied. This process
shall continue through the remaining Supplemental Before-Tax
Contributions and continuing with the Matched Before-Tax
Contributions until either Actual Deferral Percentage Test
is satisfied.
Notwithstanding the foregoing, effective for Plan Years
beginning on or after January 1, 1997, reductions will be
determined in order of the dollar amount of Considered
Compensation deferred by the Highly Compensated Employees,
rather than in order of the percentage of Considered
Compensation deferred.
(iv) Once the total amount of reductions have been determined
under (iii) above, the Committee shall direct the Trustee to
distribute as a refund to the appropriate Highly Compensated
Employees an allocable portion of such reduction and to
treat as forfeitures the appropriate amount of Employer
Matching Contributions, together with the net earnings or
losses allocable thereto. The Committee
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shall designate such distribution and forfeiture as a
distribution of excess Before-Tax Contributions and
forfeiture of excess Employer Matching Contributions,
determine the amount of the allocable net earnings or losses
to be distributed and forfeited in accordance with
subsections (c) and (d) below, and cause such distributions
and forfeitures to occur prior to the end of the Plan Year
following the Plan Year in which the excess Before-Tax
Contributions and excess Employer Matching Contributions
were made.
Notwithstanding anything in this subsection (b) to the contrary,
the provisions of this subsection shall apply separately with
respect to each group of employees who are members of a
collective bargaining unit (if any) and the group of employees
who are not members of a collective bargaining unit.
(c) Net earnings or losses to be refunded with the excess Before-Tax
Contributions shall be equal to the net earnings or losses on
such contributions for the Plan Year in which the contributions
were made.
The net earnings or losses allocable to the excess Before-Tax
Contributions for the Plan Year shall be determined in the manner
set forth in Article VI.
(d) Net earnings or losses to be treated as forfeitures together with
the Employer Matching Contributions shall be equal to the net
earnings or losses on such contributions for the Plan Year in
which the contributions were made. Net earnings or losses on
Employer Matching Contributions shall be determined in the same
manner as in subsection (c) above, except that the phrase
"Employer Matching Contribution" shall be substituted for the
phrase "Before-Tax Contribution" wherever used therein.
(e) Any Employer Matching Contribution treated as a forfeiture
pursuant to subsection (b) above shall be used to reduce the
Employer Matching Contribution in Section 4.4.
(f) For the purpose of avoiding the necessity of adjustments pursuant
to this Section or Section 6.8:
(i) The Committee may adopt such rules as it deems necessary or
desirable to:
(A) impose limitations during a Plan Year on the percentage
of Before-Tax Contributions elected by Participants
pursuant to Section 4.2 for the purpose of avoiding the
necessity of
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adjustments pursuant to this Section or Section 6.8 or
to comply with any other applicable law or regulation;
or
(B) increase during a Plan Year the percentage of
Considered Compensation with respect to which a
Participant may elect a Before-Tax Contribution for the
purpose of providing Participants with the opportunity
to increase their Before-Tax Contributions within the
limitations of this Section 4.3;
(ii) The Employer may at its sole discretion make fully vested
contributions to the Plan which will be allocated to the
Before-Tax Accounts of one or more Participants who are
Non-Highly Compensated Employees in such amounts as the
Employer directs for the purpose of complying with the
applicable limits on Before-Tax Contributions in the Code.
Such contributions will not be taken into account in the
allocation of Employer Matching Contributions.
(iii)The Committee, in its sole discretion, may elect for a Plan
Year to perform the test under subsection (b) separately for
those Active Participants who have not yet attained age 21
and completed one Year of Service or, alternatively,
beginning with the 1999 Plan Year, exclude such Active
Participants who are Non-Highly Compensated Employees from
testing under this subsection (iii).
(g) The amount of the Before-Tax Contributions to be made pursuant to
a Participant's election shall reduce the compensation otherwise
payable to the Participant by the Employer.
(h) The amount of each Participant's Matched Before-Tax Contributions
and Supplemental Before-Tax Contributions as determined under
this Section 4.3 is subject to the provisions of Section 6.8.
4.4. EMPLOYER MATCHING CONTRIBUTION. Subject to the provisions of Sections
4.1 and 6.8, the Employer shall pay to the Trustee, for each Plan Year, an
amount which, when added to the forfeitures of Employer Matching Contributions
for the Plan Year, shall be equal to 50% of the Matched Before-Tax Contributions
made on behalf of each Participant.
4.5. CODE SECTION 401(m) LIMITATION ON EMPLOYER MATCHING CONTRIBUTIONS.
Notwithstanding any other provision to the contrary, the Employer Matching
Contributions of the Highly Compensated Employees (after any reduction under
Section 4.3(b)(iii) shall be reduced in accordance with the following
provisions:
(a) The Employer Matching Contributions of the Highly Compensated
Employees shall be reduced if neither of the Contribution
Percentage Tests
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set forth in (i) or (ii) below is satisfied, after taking into
account the provisions of subsection (i) below:
(i) THE 1.25 TEST. The Contribution Percentage of the Highly
Compensated Employees is not more than the Contribution
Percentage of all Non-Highly Compensated Employees
multiplied by 1.25.
(ii) THE 2.0 TEST. The Contribution Percentage of the Highly
Compensated Employees is not more than 2 percentage points
greater than the Contribution Percentage of all Non-Highly
Compensated Employees, and the Contribution Percentage of
the Highly Compensated Employees is not more than the
Contribution Percentage of all Non-Highly Compensated
Employees multiplied by 2.0.
(b) As used in this Section 4.5, "Contribution Percentage" means
either (i) or (ii) below:
(i) (A) With respect to Non-Highly Compensated Employees, the
average of the ratios of each Non-Highly Compensated
Employee's Employer Matching Contributions with respect
to the prior Plan Year, to each such Participant's
Considered Compensation for such Plan Year; and
(B) With respect to Highly Compensated Employees, the
average of the ratios of each Highly Compensated
Employee's Employer Matching Contributions with respect
to the current Plan Year, to each such Participant's
Considered Compensation for such Plan Year.
(ii) (A) With respect to Non-Highly Compensated Employees, the
average of the ratios of each Non-Highly Compensated
Employee's share of Employer Matching Contributions,
plus designated Before-Tax Contributions, if
applicable, with respect to the prior Plan Year, to
each such Participant's Considered Compensation for
such Plan Year; and
(B) With respect to Highly Compensated Employees, the
average of the ratios of each Highly Compensated
Employee's share of Employer Matching Contributions,
plus designated Before-Tax Contributions, if
applicable, with respect to the current Plan Year, to
each such Participant's Considered Compensation for
such Plan Year.
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If neither Contribution Percentage Test is satisfied
using the definition of Contribution Percentage set
forth in this subsection 4.5(b)(i), the tests shall be
applied using the definition of Contribution Percentage
set forth in this subsection 4.5(b)(ii).
(iii)All Employer Matching Contributions made under this
Plan and all employee contributions and matching
contributions made under any other plan that is
aggregated with this Plan for purposes of Code Sections
401(a)(4) and 410(b) shall be treated as made under a
single plan. If any plan is permissively aggregated
with this Plan for purposes of Code Section 401(m), the
aggregated plans must also satisfy Code Sections
401(a)(4) and 410(b) as though they were a single plan.
The Contribution Percentage ratio of any Highly
Compensated Employee will be determined by treating all
plans subject to Code Section 401(m) under which the
Highly Compensated Employee is eligible as a single
plan.
(c) If neither Contribution Percentage Test is satisfied as of
the end of the Plan Year, the Committee shall first cause
the Employer Matching Contributions of the Highly
Compensated Employees to be reduced and refunded or
forfeited, as the case may be, in accordance with this
subsection (c) and subsection (d) until either Contribution
Percentage Test is satisfied. The sequence for determining
the amount of such reductions shall begin with Highly
Compensated Employees who received the greatest amount of
Employer Matching Contributions as a percentage of
Considered Compensation, then the second greatest percentage
amount, continuing until either Contribution Percentage Test
is satisfied. This process shall continue through the
remaining Employer Matching Contributions for Highly
Compensated Employees until either Contribution Percentage
Test is satisfied.
Notwithstanding the foregoing, effective for Plan Years
beginning on or after January 1, 1997, reductions will be
determined in order of the dollar amount of the Employer
Matching Contributions that are made on behalf of the Highly
Compensated Employees, rather than in order of the
percentage of Employer Matching Contributions (as a
percentage of Considered Compensation).
(d) Once the total amount of reductions have been determined
under (c) above, the Committee shall direct the Trustee to
distribute to the appropriate Highly Compensated Employees
the amount of any excess vested Employer Matching
Contribution attributable to such Highly Compensated
Employees, and to treat as a forfeiture the appropriate
amount of any excess nonvested Employer Matching
Contributions, together with the net earnings or losses
allocable thereto. The Committee shall designate such
distribution and forfeiture as a distribution and
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forfeiture of excess contributions, determine the amount of
the allocable net earnings or losses to be distributed in
accordance with subsection (e) below, and cause such
distributions and forfeitures to occur prior to the end of
the Plan Year following the Plan Year in which such excess
Employer Matching Contributions were made.
(e) Net earnings or losses to be refunded with the excess
Employer Matching Contributions shall be equal to the net
earnings or losses on such contributions for the Plan Year
in which the contributions were made. Net earnings or losses
shall be determined in the same manner as in Section 4.3(c),
except that the phrases ("Employer Matching Contributions")
and ("Matching Account") shall be substituted for the
phrases "Before-Tax Contributions" and "Before-Tax Account"
wherever used therein.
(f) Net earnings or losses to be treated as forfeitures together
with the Employer Matching Contributions shall be equal to
the net earnings or losses on such contributions for the
Plan Year in which the contributions were made. Net earnings
or losses shall be determined in the same manner as in
Section 4.3(c), except that the phrases "Employer Matching
Contribution" and "Matching Account" shall be substituted
for the phrases "Before-Tax Contribution" and "Before-Tax
Account" wherever used therein.
(g) Any Employer Matching Contributions which are treated as
forfeitures pursuant to subsection (d) above shall be used
to reduce the Employer Matching Contribution in Section 4.4.
(h) For the purpose of avoiding the necessity of adjustments
pursuant to this Section or Section 6.8, the Employer may in
its sole discretion make fully vested contributions to the
Plan, which will be allocated to the Matching Accounts of
one or more Participants who are Non-Highly Compensated
Employees, in such amounts as the Employer directs for the
purpose of complying with applicable limits on Employer
Matching Contributions in the Code. Such contributions will
not be taken into account in the allocation of Employer
Matching Contributions.
(i) The Committee, in its sole discretion, may elect for a Plan
Year to perform the test under subsection (a) separately for
those Active Participants who have not yet attained age 21
and completed one Year of Service or, alternatively,
beginning with the 1999 Plan Year, exclude such Active
Participants who are Non-Highly Compensated Employees from
testing under this subsection (i).
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4.6. MULTIPLE USE.
(a) This Section 4.6 will be applicable if the 2.0 Test is used to
satisfy both the Actual Deferral Percentage Test and the
Contribution Percentage Test. If this Section 4.6 is applicable,
the Committee shall determine whether a "Multiple Use" has
occurred, and if such a Multiple Use has occurred, the Employer
Matching Contributions of the Highly Compensated Employees shall
be reduced in accordance with the provisions of subsection (c)
below.
(b) A Multiple Use occurs when, for the Highly Compensated Employees,
the sum of the Actual Deferral Percentage used to satisfy the 2.0
Test plus the Contribution Percentage used to satisfy the 2.0
Test exceeds the "Aggregate Limit." The Aggregate Limit is the
greater of (i) or (ii) below, determined as follows:
(i) (A) First, multiply 1.25 by the greater of (I) the Actual
Deferral Percentage, or (II) the Contribution
Percentage of the Non-Highly Compensated Employees;
(B) Second, add 2.0 to the lesser of (I) or (II) above,
provided that such sum shall not exceed 2 times the
lesser of (I) or (II) above; and
(C) Finally, add the results from (A) and (B) to determine
the Aggregate Limit; or
(ii) (A) First, multiply 1.25 by the lesser of (I) the Actual
Deferral Percentage, or (II) the Contribution
Percentage of the Non-Highly Compensated Employees;
(B) Second, add 2.0 to the greater of (I) or (II) above,
provided that such sum shall not exceed 2 times the
greater of (I) or (II) above; and
(C) Finally, add the results from (A) and (B) to determine
the Aggregate Limit.
(c) If a Multiple Use has occurred, such Multiple Use shall be
corrected by reducing the Contribution Percentage of Highly
Compensated Employees, in accordance with the provisions of
Section 4.5, until the sum of the Actual Deferral Percentage plus
the Contribution Percentage for the Highly Compensated Employees
equals the Aggregate Limit.
(d) Net earnings or losses to be treated as forfeitures together with
the excess nonvested Employer Matching Contributions shall be
equal to the net
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earnings or losses on such contributions for the Plan Year in
which the contributions were made. Net earnings or losses shall
be determined in the same manner as in Section 4.3(c) except that
the phrase "Employer Matching Contribution" shall be substituted
for the phrase "Before-Tax Contribution" wherever used therein.
(e) Any Employer Matching Contributions which are treated as
forfeitures pursuant to Section 4.5(d) above shall be used to
reduce the Employer Matching Contribution in Section 4.4.
(f) Notwithstanding the foregoing, the restriction on the Multiple
Use, which may occur as a result of the testing under the
limitations described in Sections 4.3 and 4.5 of the Plan, shall
not apply for Plan Years beginning after December 31, 2001.
4.7. CATCH-UP CONTRIBUTIONS. In addition to the ability to elect Before-Tax
Contributions under Section 4.2 of the Plan, effective after December 31, 2001,
all Eligible Employees who have attained age 50 before the close of the Plan
Year shall be eligible to make "Catch-Up Contributions" in accordance with, and
subject to the limitations of, Section 414(v) of the Code. An Eligible Employee
who is eligible to make Catch-Up Contributions who contributes the maximum
permissible amount pursuant to Section 4.3 of the Plan (and Code Section 402(g))
shall be deemed to have elected to make the maximum Catch-Up Contribution
permitted under Code Section 414(v) for that Plan Year. Such deemed election
shall be in effect until revoked or changed in accordance with the procedures
prescribed by the Committee, as set forth in Section 4.2 of the Plan. Within a
reasonable period prior to the effective date of this Section 4.7, all Eligible
Employees shall receive a notice that explains the automatic election prescribed
by this Section and the right to have no such election made or to alter the
amount of such election. This notice shall also explain the procedures for
exercising this right.
Catch-Up Contributions shall not be taken into account for purposes of the
limitation on the maximum amount of such Participant's Before-Tax Contributions
for a Plan Year under Section 4.3 of the Plan (and Section 402(g) of the Code)
or the limitation on contributions for a Plan Year under Section 6.8 of the Plan
(and Section 415(c) of the Code). Further, by allowing such Catch-Up
Contributions, the Plan shall not be treated as failing to satisfy the
provisions of the Plan implementing the requirements of Section 401(k)(3),
401(k)(11), 401(k)(12), 410(b) or 416 of the Code, as applicable.
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ARTICLE V.
PARTICIPANT CONTRIBUTIONS
5.1. NO AFTER-TAX CONTRIBUTIONS.
No after-tax contributions are required or permitted under the Plan.
5.2. ROLLOVER CONTRIBUTIONS.
(a) A Rollover Contribution may be rolled over in cash to the Trust
Fund for the benefit of an Eligible Employee with the permission
of the Committee; provided that such amount is not attributable
to a partial withdrawal made pursuant to Section 8.7. Prior to
accepting any rollover which is intended to be a Rollover
Contribution, the Committee may require the Eligible Employee to
establish that the amount to be rolled over meets the definition
of a Rollover Contribution and any other limitations of the Code
applicable to such rollovers.
(b) If the Committee determines after a Rollover Contribution has
been made that such Rollover Contribution did not in fact
constitute a Rollover Contribution as defined in Section 2.38,
the amount of such Rollover Contribution and any earnings thereon
shall be returned to the Eligible Employee.
(c) Each Participant's Rollover Contribution shall be credited to his
or her Rollover Account and invested in accordance with
Article VI. A Participant's Rollover Account shall be fully
vested and nonforfeitable.
(d) The Rollover Contribution of a Participant shall be allocated to
his or her Rollover Account as of the Valuation Date coinciding
with or next succeeding the date on which such amounts are
received by the Trustee.
(e) Amounts may be distributed from a Participant's Rollover Account
under the terms and conditions described in Articles VII and
VIII.
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ARTICLE VI.
ACCOUNTING PROVISIONS AND ALLOCATIONS
6.1. PARTICIPANT'S ACCOUNTS.
(a) For each Participant there shall be maintained as appropriate a
separate Before-Tax Account, Matching Account (which shall be
divided into a Pre-1999 Matching Subaccount and a Post-1998
Matching Subaccount) and Rollover Account. Each Account (and
subaccount) shall be credited with the amount of contributions,
forfeitures, interest and earnings of the Trust Fund allocated to
such Account and shall be charged with all distributions,
withdrawals and losses of the Trust Fund allocated to such
Account.
(b) The Committee shall also establish and maintain an Account with
respect to each Segregated Loan made to a Participant pursuant to
Section 8.8. The Participant's Segregated Loan Account shall be
credited with the value of any notes held by the Account. The
value of any principal payments by the Participant to the
Segregated Loan Account shall be promptly charged to the
Segregated Loan Account and transferred along with any interest
payments to the separate investment Funds.
6.2. INVESTMENT FUNDS.
(a) The Trust Fund shall consist of separate investment funds
("Funds") as established from time to time by the Committee. Each
Participant's (or Beneficiary's) share in the Trust Fund shall
consist of an undivided interest in the respective assets of one
or more Funds. Except as otherwise provided, each Participant's
(or Beneficiary's) share in each such Fund shall be measured by
the proportion of the Fund that is attributable to the
Participant's Account, as compared to the proportion of the Fund
that is attributable to all other Accounts as of the date such
share is being determined. For purposes of allocation of income
and valuation, such Fund shall be considered separately. No Fund
shall share in the gains or losses of any other, and no Fund
shall be valued by taking into account any assets or
distributions from any other.
(b) Each Fund shall be established and invested by the Trustee in
accordance with the investment policies determined, or as the
Trustee may be directed, from time to time by the Committee. The
Committee may from time to time also direct the Funds with
similar investment objectives be consolidated.
(i) One Fund shall be the CCC Stock Fund, through which the
Participant may invest up to 25% of current Before-Tax
Contributions and Employer Matching Contributions in common
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stock of CCC Information Services Group Inc. ("CCC Stock").
Any such election shall be made by the Participant giving
notice thereof to the Trustee by such notice as the Trustee
deems necessary, and such notice shall specify the amount of
such funds to be transferred and the Account from which the
transfer is to be made. Any such election shall be at the
absolute discretion of the Participant and shall be binding
upon the Trustee. Upon any such election being made, the
amount of such funds to be transferred shall be deducted
from his or her Account as appropriate and added to a
controlled account of the Participant. All dividends and
interest thereafter received with respect to such
transferred funds, as well as any appreciation or
depreciation in his or her investments shall be added to or
deducted from his or her controlled account.
(ii) A Participant shall be entitled to direct the Trustee as to
the manner in which voting and other rights will be
exercised with respect to the shares of CCC Stock allocated
to the Participant's Accounts. All Participants whose
Accounts include investments in CCC Stock shall be notified
within a reasonable time before such rights are to be
exercised. Such notification shall include all information
distributed by the Employer to shareholders regarding the
exercise of such rights. To the extent a Participant fails
to provide the Trustee with directions, the Trustee shall
abstain from voting or otherwise exercising such rights. The
Committee may establish such additional procedures with
respect to voting and other rights as it, in its discretion,
deems appropriate.
(c) Each Participant shall file a written election, in accordance
with the procedures that the Committee may prescribe, directing
that the amounts allocated to his or her respective Accounts and
received by the Trustee shall be invested proportionately in one
or more of the Funds in multiples of 1% of each such allocation.
Such investment election shall remain in effect for any
subsequent allocations to the Participant's Accounts, except that
the Participant shall be entitled to change the investment
election once each business day for future contributions and
forfeitures in a manner and at a time prescribed by the
Committee. In the event a Participant fails to file an effective
investment election form with the Committee, 100% of the
contributions and forfeitures allocated to his or her Accounts
shall be invested in a fixed income fund, or such other fund as
the Committee shall establish.
(d) Each Business Day, in accordance with procedures prescribed by
the Committee, a Participant shall also be entitled to elect to
change the investment of his or her Accounts from one Fund to any
other Fund in multiples of 1% of the balance of such Account in
such Fund.
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(e) Wherever in this Section 6.2 the term "Participant" is used, it
shall be deemed to include, where applicable, (i) the Beneficiary
of a deceased Participant who is entitled to any portion of the
deceased Participant's Accounts, and (ii) an alternate payee
under a qualified domestic relations order described in Code
Section 414(p).
(f) The Plan is intended to constitute a plan described in
Section 404(c) of the Employee Retirement Income Security Act and
Title 29 of Federal Regulations Section 2550.404c-1. To the
extent permitted by law, the fiduciary of the Plan shall be
relieved of liability for any losses which are the direct and
necessary result of investment instructions given by any
Participant.
6.3. ALLOCATION PROCEDURE.
(a) As of each Valuation Date, the Committee shall:
(i) first, allocate the net earnings or losses of the Trust Fund
pursuant to Section 6.5;
(ii) second, allocate Before-Tax Contributions pursuant to
Section 6.6;
(iii)third, allocate Employer Matching Contributions pursuant to
Section 6.7;
(iv) fourth, allocate Rollover Contributions pursuant to
Section 5.2.
(b) All contributions to the Trust made by or on behalf of a
Participant shall be deposited in the form of cash or other
acceptable assets in the Trust Fund as soon as practicable and
shall be credited to the appropriate Accounts of such Participant
as of the Valuation Date received by the Trust Fund; provided
that any contributions made with respect to a Plan Year must be
credited to the appropriate Accounts of such Participant as of no
later than the last day of such Plan Year. All contributions to
the Trust shall be credited at the values determined as of the
date received by the Trust Fund.
6.4. DETERMINATION OF VALUE OF TRUST FUND AND OF NET EARNINGS OR LOSSES. As
of each Valuation Date, the Trustee shall determine for the period then ended
the sum of the net earnings or losses of the Trust Fund, which shall reflect
accrued but unpaid interest, dividends, gains or losses realized from the sale,
exchange or collection of assets, other income received, appreciation or
depreciation in the fair market value of assets, administration expenses, and
taxes and other expenses paid. Gains or losses realized and adjustments for
appreciation or depreciation in fair market value shall be computed with respect
to the difference between such value as of the preceding Valuation Date or date
of purchase, whichever is later, and the value as of the date of disposition or
the current Valuation Date, whichever is earlier. To the extent that
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any assets of the Trust have been invested in one or more separate investment
trusts, mutual funds, investment contracts or similar investment media, the net
earnings or losses attributable to such investments shall be determined in
accordance with the procedures of such investment media.
6.5. ALLOCATION OF NET EARNINGS OR LOSSES. As of each Valuation Date, the
net earnings or losses of each Fund established under Section 6.2 for the day
shall be allocated to the Accounts of all Participants (or Beneficiaries of
deceased Participants) having credits in the Fund both then and at the beginning
of that day. Such allocation shall be in the ratio that (i) the net credits to
each Account of each Participant at the beginning of such day, less the total
amount of any distributions from such Account to such Participant during that
day bears to (ii) the total net credits to all such Accounts of all Participants
at the beginning of such day, less the total amount of distributions from all
such Accounts to all Participants during such day. Notwithstanding the
foregoing, to the extent the assets of the Trust have been invested in one or
more separate investment trusts, mutual funds, investment contracts or similar
investment media, the net earnings or losses attributable to such investments
shall be allocated to the Accounts of Participants or Beneficiaries on the basis
of the balances of such Accounts, but in accordance with the procedures of the
respective investment media in which such assets are invested.
6.6. ALLOCATION OF BEFORE-TAX CONTRIBUTIONS. As of each Valuation Date, the
Before-Tax Contributions received on behalf of each Participant shall be
allocated to such Participant's Before-Tax Account in accordance with
Section 6.3.
6.7. ALLOCATION OF EMPLOYER MATCHING CONTRIBUTIONS. As of each Valuation
Date, the Employer Matching Contribution received on behalf of each Participant
shall be allocated to the Matching Account of such Participant in accordance
with Section 6.3.
6.8. LIMITATION ON ANNUAL ADDITIONS.
(a) The Annual Additions allocated to the Account of a Participant
during a Limitation Year shall not exceed the lesser of:
(i) 25% of the Participant's Section 415 Compensation for the
Limitation Year; or
(ii) the Defined Contribution Dollar Limitation for the
Limitation Year.
Notwithstanding the foregoing, and except to the extent permitted
under Section 4.7 of the Plan and Section 414(v) of the Code,
effective for Limitation Years beginning after December 31, 2001,
the Annual Addition that may be contributed or allocated to a
Participant's Account under the Plan for any Limitation Year
shall not exceed the lesser of:
(i) 100% of the Participant's Section 415 Compensation for the
Limitation Year; or
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(ii) the Defined Contribution Dollar Limitation for the
Limitation Year.
For purposes of subsection (i) immediately above, Section 415
Compensation shall not include any contribution for medical
benefits after separation from service (within the meaning of
Sections 401(h) or 419(A) of the Code) which is otherwise treated
as an Annual Addition.
(b) If the Annual Addition for a Participant for a Limitation Year
exceeds the limitation set forth in Section 6.8(a), the Annual
Addition shall be reduced until it equals the maximum permissible
Annual Addition for such Participant. The contribution allocable
to such Participant's respective Accounts shall be reduced by
reducing (A) the Supplemental Before-Tax Contributions and (B)
the Matched Before-Tax Contributions and Employer Matching
Contributions, proportionately. The Annual Addition remaining
after such reductions shall be allocated to the Participant's
respective Accounts.
(c) Any forfeiture which cannot be allocated under the Plan because
of the application of the above limit shall be carried in the
Excess Forfeiture Suspense Account for such Plan Year. In the
next succeeding Plan Year, the amounts included in such Account
shall be treated as a forfeiture for such Plan Year and shall be
allocated to the Eligible Participants' Matching Accounts (and as
such will be again subject to the limitations of this Section 6.8
for such Plan Year). Amounts which are included in the Excess
Forfeiture Suspense Account as of the end of a Plan Year shall be
treated as a liability of the Trust Fund. Upon termination of the
Plan, amounts then held in the Excess Forfeiture Suspense Account
which cannot be allocated pursuant to this Section shall revert
to the Employer.
(d) Notwithstanding anything to the contrary in this Plan, any
Before-Tax Contributions reduced in accordance with subsection
(b) above shall be distributed to the Participant with allocable
earnings in accordance with Treasury Regulation
Section 1.415-6(b)(6)(iv).
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ARTICLE VII.
AMOUNT OF PAYMENTS TO PARTICIPANTS
7.1. GENERAL RULE.
(a) Upon the retirement, disability, resignation or dismissal of a
Participant, the Participant, or in the event of his or her
death, the Participant's Beneficiary, shall be entitled to
receive from the Participant's respective Accounts in the Trust
Fund the following amounts as of the Valuation Date coinciding
with the date distributions are made:
(i) the value of the Participant's Before-Tax Account, Pre-1999
Matching Subaccount, and Rollover Account; and
(ii) the value of the nonforfeitable portion of his or her
Post-1998 Matching Subaccount determined as hereafter set
forth;
provided that such amounts shall be adjusted to reflect any
contributions made by or on behalf of the Participant but not yet
included in (i) or (ii) above.
(b) The time and manner of distribution of a Participant's Accounts
shall be determined in accordance with Article VIII.
7.2. RETIREMENT. Any Participant may retire on or after his or her Normal
Retirement Date, at which date the forfeitable portion, if any, of his or her
Post-1998 Matching Subaccount shall become nonforfeitable. If the retirement of
a Participant is deferred beyond his or her Normal Retirement Date, he/she shall
continue in full participation in the Plan and Trust Fund.
7.3. DEATH. As of the date any Participant shall die while in the employ of
the Employer or an Affiliate, the forfeitable portion, if any, of his or her
Post-1998 Matching Subaccount shall become nonforfeitable.
7.4. DISABILITY.
(a) As of the date any Participant shall be determined by the
Committee to have become totally and permanently disabled because
of physical or mental infirmity while in the employ of the
Employer or an Affiliate and his or her employment shall have
terminated, the forfeitable portion, if any, of his or her
Post-1998 Matching Subaccount shall become nonforfeitable.
(b) A Participant shall be deemed totally and permanently disabled
when he/she has been determined to be eligible for disability
benefits under the Company's Long-Term Disability Plan by reason
of such disability.
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7.5. VESTING. A Participant's interest in his or her Before-Tax Account,
Pre-1999 Matching Subaccount and Rollover Account shall be nonforfeitable at all
times. A Participant's interest in his or her Post-1998 Matching Subaccount
shall be determined under Section 7.6.
7.6. RESIGNATION OR DISMISSAL.
(a) If any Participant shall resign or be dismissed from the service
of the Employer and all Affiliates on or after January 1, 1999,
there shall become nonforfeitable a portion or all of his or her
Post-1998 Matching Subaccount determined in accordance with the
following schedule, subject to Section 7.7:
<Table>
<Caption>
Nonforfeitable
Years of Service Percentage
---------------- ----------
Less than 1 0%
1 but less than 2 33%
2 but less than 3 67%
3 or more 100%
</Table>
Notwithstanding anything in the foregoing to the contrary, any
Participant with 3 or more Years of Service as of December 31,
1998, shall be 100% vested in his or her Post-1998 Matching
Subaccount at all times.
(b) Any part of the Post-1998 Matching Subaccount of such Participant
which does not become nonforfeitable shall be treated as a
forfeiture pursuant to Section 7.8.
7.7. COMPUTATION OF PERIOD OF SERVICE.
(a) For purposes of determining the nonforfeitable percentage of the
Participant's Post-1998 Matching Subaccount, and subject to all
applicable laws and regulations, all Years of Service shall be
taken into account, except that the following shall be
disregarded:
(i) In the case of a Participant whose nonforfeitable balance of
his or her Matching Account is 0, Years of Service before a
period consisting of 5 consecutive One-Year Breaks in
Service, if the number of consecutive One-Year Breaks in
Service equals or exceeds the aggregate number of Years of
Service before such One-Year Breaks in Service. Such
aggregate number of Years of Service before such One-Year
Breaks in Service shall not include any Years of Service
disregarded by reason of any prior One-Year Breaks in
Service.
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(ii) An Eligible Employee who completes an Eligibility Period
which overlaps two calendar years, but fails to complete
1,000 Hours of Service in either of such Plan Years, shall
also be credited with one Year of Service with respect to
such Eligibility Period.
(iii)In the case of a Participant who incurs 5 or more
consecutive One-Year Breaks in Service, Years of Service
completed after such One-Year Breaks in Service for purposes
of determining his or her nonforfeitable right in the
balance of his or her Post-1998 Matching Subaccount
determined as of the date such One-Year Breaks in Service
began.
7.8. TREATMENT OF FORFEITURES.
(a) Upon termination of a Participant's employment with the Employer
and all Affiliates, that part of his or her Post-1998 Matching
Subaccount which becomes a forfeiture pursuant to Section 7.6
shall be applied to reduce the Employer Matching Contribution of
such Participant's Employer as of the end of the month in which
the termination of employment occurred if the Participant is not
then reemployed by the Employer or an Affiliate. Such amounts
shall be used first to pay the Plan's administrative expenses in
the year in which the forfeiture arises, and then used to reduce
the Employer Matching Contributions under Section 4.4.
(b) If the Participant is reemployed by the Employer or an Affiliate
without incurring 5 consecutive One-Year Breaks in Service and
before distribution of the nonforfeitable portion of his or her
Post-1998 Matching Subaccount, the amount of the forfeiture (plus
any earnings and losses attributable thereto if the Participant
did not receive a complete distribution of the Participant's
Vested Account) shall be restored to the Participant's Matching
Account as of the last day of the month in which he/she is
reemployed.
(c) If the Participant is reemployed by the Employer or an Affiliate
without incurring 5 consecutive One-Year Breaks in Service, but
after distribution of the nonforfeitable portion of his or her
Matching Account, and if the Participant repays the amount
distributed before the earlier of
(i) 5 years from the date of such reemployment; or
(ii) the end of 5 consecutive One-Year Breaks in Service
following the date of such distribution,
the amount of the Matching Account distributed to the Participant
and the amount of the forfeiture shall be restored to his or her
Matching Account as of the last day of the Plan Year in which
such repayment is made.
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(d) Amounts restored to a Participant's Matching Account pursuant to
(b) or (c) above shall be deducted from the forfeitures which
otherwise would be allocable for the Plan Year in which such
reemployment or repayment occurs or, to the extent such
forfeitures are insufficient, shall require a supplemental
contribution from the Employer.
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ARTICLE VIII.
DISTRIBUTIONS
8.1. COMMENCEMENT AND FORM OF DISTRIBUTIONS.
(a) Distribution of a Participant's Accounts in the Trust Fund
following termination of employment with the Employer and all
Affiliates shall commence on or as soon as practicable after the
first to occur of:
(i) the date set forth in the Participant's request for
distribution; provided that, if (A) the Committee has
notified the Participant of the availability of such
distribution in a manner that would satisfy the notice
requirements of Treasury Regulation Section 1.411(a)-11(c),
and (B) such notification is given no more than 90 days
prior to the distribution date requested by the Participant.
Such distribution may commence less than 30 days after the
date the notice required under Treasury Regulation
Section 1.411(a)-11(c) is given if:
(A) the Committee clearly informs the Participant that the
Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of
whether or not to elect a distribution; and
(B) the Participant, after receiving the notice,
affirmatively elects a distribution; or
(ii) the 60th day after the close of the later of the Plan Year
in which the Participant attains age 65 or terminates
employment with the Employer and all Affiliates, unless the
Participant has elected to defer the distribution to a later
date.
(b) In all events, distribution shall commence no later than the
Required Beginning Date, and subsequent distributions required to
be made each year for compliance with Code Section 401(a)(9) and
the regulations promulgated thereunder shall be made no later
than December 31 of such year.
(c) The value of a Participant's Accounts which is distributable to a
Participant who has terminated employment with the Employer and
all Affiliates for any reason shall be distributed in either of
the following ways, as the Participant may request by filing such
election form as shall be prescribed by the Committee, and in
accordance with applicable laws and regulations
(i) by payment in one lump sum; or
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(ii) substantially equal annual installments over a period not to
exceed ten years, which except for the final payment shall
not be less than $100;
A Participant may change such election under subsection (c)(i)
above at any time which is both before his or her Required
Beginning Date and before any payment is made from the Plan
pursuant to a prior election of the Participant. If no election
as to the form of distribution is made, such distribution shall
be made in a lump sum payment. In addition, subject to such
restrictions and conditions as may be adopted by the Committee, a
Participant may change the specified period of his or her
quarterly payment election after distributions have commenced.
(d) The vested balance of a Participant's Accounts shall be paid to
the Participant over a period not to exceed his or her life
expectancy or the joint life expectancy of the Participant and
his or her Beneficiary. The minimum amount of any installment
distribution and determination of the life expectancy of a
Participant and the joint life expectancy of a Participant and
his or her Beneficiary shall be determined in accordance with the
regulations prescribed under Code Section 401(a)(9); provided
that the life expectancy of a Participant or his or her spouse
shall be redetermined annually. In no event shall the amount
distributable in any year be less than the amount determined in
accordance with the minimum distribution incidental benefit
requirements of Treasury Regulation Section 1.401(a)(9)-2.
(e) Notwithstanding anything in this Section 8.1 to the contrary, if
a Participant has terminated employment with the Employer and all
Affiliates, and if the vested balance of such Participant's
Accounts does not exceed $3,500 ($5,000 for Plan Years beginning
on and after January 1, 1998) at the time a distribution is to be
made from the Plan and distribution pursuant to this Section 8.1
has not otherwise commenced, the Committee shall direct the
Trustee to distribute such amount in a lump sum payment to the
individual so entitled and the payment thereof shall be in full
satisfaction of any liability of the Trust to such individual.
Any Participant whose vested balance of his or her Accounts is 0%
shall be deemed to have received a lump sum payment upon
termination of employment.
Notwithstanding the foregoing, and for purposes of applying the
provisions of this Section 8.1(e) and Section 12.6(c) of the
Plan, for distributions made on or after October 17, 2000, a
non-consensual cash-out may occur even if the vested balance of
the Participant's Accounts exceeded $5,000 on a prior
distribution date.
In addition, effective after December 31, 2001, for purposes of
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<Page>
determining whether the sum of such Participant's vested Account
balances is less than or equal to $5,000 in accordance with this
Section 8.1(e) of the Plan, as well as under Section 12.6(c) of
the Plan, the balance of the Participant's Rollover Account (and
earnings allocated thereto) shall be disregarded. If the sum of
the Participant's vested Account balances is less than or equal
to $5,000 without regard to the balance of his or her Rollover
Account (and earnings allocated thereto), the Plan Committee
shall direct the Trustee to distribute the Participant's vested
Account balance in a lump sum (in cash) without the consent of
the Participant (or Beneficiary) in accordance with this
Section 8.1(e) of the Plan.
A Participant may request by filing such notice as shall be
prescribed by the Committee, and in accordance with applicable
laws and regulations, a direct rollover of such single sum
distribution to an employee's trust in which he/she is a
participant, which is described in Code Section 401(a) and which
is exempt from tax under Code Section 501(a), or to an individual
retirement arrangement described in Code Section 408 in
accordance with Section 8.11.
(f) Notwithstanding anything in this Section 8.1 to the contrary, if
the amount of any distribution required to commence on a certain
date cannot be ascertained by such date, a payment retroactive to
such date may be made no later than 60 days after the earliest
date on which such amount can be ascertained.
8.2. DISTRIBUTIONS TO BENEFICIARIES.
(a) (i) If a Participant should die before benefit payments have
commenced, the balance of the deceased Participant's
Accounts which is distributable to a Beneficiary shall be
distributed to such Beneficiary in one lump sum amount, as
soon as practicable after the Participant's death, but in no
event later than the December 31 coinciding with or next
following the 5th anniversary of the Participant's death;
provided, however, that if the Beneficiary is the
Participant's spouse, such spouse may elect a direct
rollover to an individual retirement arrangement described
in Code Section 408, in accordance with Section 8.11.
(ii) If a Participant should die after commencement of his or her
benefit under Section 8.1(c)(ii), the Participant's
Beneficiary may elect to receive the remaining balance in
the Participant's Accounts in a lump sum amount; provided,
however, that if the Beneficiary is the Participant's
surviving spouse, such Beneficiary may also elect (A) to
receive installments over any period which is at least as
rapid as the method of distribution in effect at the time of
the
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<Page>
Participant's death or (B) a direct rollover to an
individual retirement arrangement described in Code
Section 408, in accordance with Section 8.11.
(b) In the event that the distribution of the Participant's Accounts
has begun in accordance with Section 8.1(c)(ii), any form of
distribution to a Beneficiary under this Article VIII shall be
designed to distribute the balance of the deceased Participant's
Accounts at least as rapidly as under the method of distribution
in effect at the time of the Participant's death.
(c) If a Beneficiary to whom payments have commenced dies prior to
receipt of all such payments, the remaining balance of the
Participant's Accounts shall be distributed to any contingent or
successor Beneficiary at least as rapidly as under the method of
distribution in effect at the time of the Beneficiary's death, or
if there is no such contingent or successor Beneficiary, in a
lump sum to the deceased Beneficiary's estate.
(d) The life expectancy of a Beneficiary who is the surviving spouse
of the Participant shall be redetermined annually in accordance
with regulations prescribed under Code Section 401(a)(9).
(e) Notwithstanding anything contained herein to the contrary, with
respect to distributions under the Plan made in Plan Years
beginning on and after January 1, 2001, the Plan will apply the
minimum distribution requirements of Section 401(a)(9) of the
Code in accordance with the regulations under Section 401(a)(9)
that were proposed on January 17, 2001, until the end of the last
Plan Year before the effective date of final regulations issued
or such other date specified in guidance provided by the Internal
Revenue Service.
8.3. BENEFICIARIES.
(a) The balance of a deceased Participant's Accounts shall be
distributed to the persons effectively designated by the
Participant as his or her Beneficiaries. To be effective, the
designation shall be filed in such written form as the Committee
requires and in such manner as the Committee may prescribe, and
may include contingent or successive Beneficiaries; provided that
any designation by a Participant who is married at the time of
his or her death or, if earlier, the date his or her benefit
payments commence, which fails to name the Participant's
surviving spouse as the sole primary Beneficiary, shall not be
effective unless such surviving spouse has consented to the
designation in writing, witnessed by a Plan representative or
notary public, acknowledging the effect of the designation and
the specific non-spouse Beneficiary, including any class of
Beneficiaries or any contingent Beneficiary. Such consent shall
not be required if, at the time of filing such designation, the
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<Page>
Participant established to the satisfaction of the Committee that
the consent of the Participant's spouse could not be obtained
because there is no spouse, such spouse could not be located or
by reason of such other circumstances as may be prescribed by
regulations. Any consent (or establishment that the consent could
not be obtained) shall be effective only with respect to such
spouse. Any Participant may change his or her beneficiary
designation at any time by filing with the Committee a new
beneficiary designation (with such spousal consent as may be
required). Notwithstanding the foregoing, designation of a
Beneficiary by a Participant who did not have an Hour of Service
after August 22, 1984, shall not require the consent of his or
her surviving spouse to be effective.
(b) If a Participant dies, and to the knowledge of the Committee
after reasonable inquiry leaves no surviving spouse, has not
filed an effective beneficiary designation or has revoked all
such designations, or has filed an effective designation but the
Beneficiary or Beneficiaries predeceased him/her, the
distributable portion of the Participant's Accounts shall be paid
to the executor or administrator of the Participant's estate.
(i) If the Beneficiary, having survived the Participant, shall
die prior to the final and complete distribution of the
Participant's Accounts, then the distributable portion of
said Accounts shall be paid:
(A) to the contingent or successive Beneficiary named in
the most recent effective Beneficiary designation filed
by the Participant in accordance with such designation;
or
(B) if no such Beneficiary has been named, to the executor
or administrator of the Beneficiary's estate.
8.4. INSTALLMENT OR DEFERRED DISTRIBUTIONS. If distribution is made to a
Participant or to the Beneficiary of a deceased Participant in installments or
is deferred, the undistributed vested balance shall share in the net earnings or
losses (including the net adjustments in the value of the Trust Fund) as
provided in Section 6.5.
8.5. FORM OF ELECTIONS AND APPLICATIONS FOR BENEFITS. Any election,
revocation of an election or application for benefits pursuant to the Plan shall
not be effective unless it is (a) made on such form, if any, as the Committee
may prescribe for such purpose; (b) signed by the Participant and, if required
by Section 8.3, by the Participant's spouse; and (c) filed with the Committee.
8.6. UNCLAIMED DISTRIBUTIONS. In the event any distribution cannot be made
because the person entitled thereto cannot be located and the distribution
remains unclaimed for 2 years after the distribution date established by the
Committee, then such amount shall be treated as a forfeiture and shall be used
to reduce the Employer Matching Contribution. In the event such
34
<Page>
person subsequently files a valid claim for such amount, such amount shall be
restored to the Participant's Accounts in a manner similar to the restoration of
forfeitures under Section 7.8.
8.7. IN-SERVICE WITHDRAWALS.
(a) A Participant who has attained his or her Normal Retirement Age
may make a withdrawal of the nonforfeitable portion of his or her
Accounts without any restrictions or limitations, except that
such withdrawal shall not reduce the nonforfeitable value of the
Participant's Accounts below the amount of any loans outstanding
to such Participant pursuant to Section 8.8.
(b) A Participant who has not attained his or her Normal Retirement
Age may not make a withdrawal from his or her Matching Account.
(c) A Participant who has attained age 59 1/2 may make a withdrawal
from his or her Before-Tax Account without any restrictions or
limitations, except that such withdrawal shall not reduce the
nonforfeitable value of the Participant's Accounts below the
amount of any loans outstanding to such Participant pursuant to
Section 8.8.
(d) A Participant who has not reached the age of 59 1/2 may make a
withdrawal of amounts in his or her Before-Tax Account only upon
furnishing proof to the Committee of immediate and heavy
financial hardship. In addition, except as may otherwise be
permitted by the Committee on a uniform and nondiscriminatory
basis, such withdrawal shall not reduce the nonforfeitable value
of the Participant's Accounts below the amount of any loans
outstanding to such Participant pursuant to Section 8.8. The
Committee shall only make a determination of financial hardship
if the distribution to be made is made on account of an immediate
and heavy financial need of the Participant, and the funds
distributed are necessary to satisfy the Participant's need. The
amount of the distribution shall not be in excess of the
immediate and heavy financial need of the Participant, taking
into account any amounts necessary to pay any federal, state or
local income taxes or penalties reasonably anticipated to result
from the distribution.
(i) The determination of whether a Participant has an immediate
and heavy financial need is to be made by the Committee on
the basis of all relevant facts and circumstances. Only the
following expenses shall be deemed to constitute an
immediate and heavy financial need:
(A) expenses for medical care (as described in Code
Section 213(d)) incurred by the Participant, the
Participant's spouse or any dependents of the Participant
(as defined in Code
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<Page>
Section 152) or necessary for these persons to obtain
such care;
(B) the purchase (excluding mortgage payments) of a
Participant's principal residence;
(C) tuition and related educational fees for the next 12
months of post-secondary education for the Participant,
the Participant's spouse, children or dependents;
(D) preventing foreclosure on or eviction from the
Participant's principal residence;
(E) any other event or expense deemed an immediate and
heavy financial need by the Internal Revenue Service.
(ii) The determination of whether a distribution is necessary to
satisfy the immediate and heavy financial need of the
Participant shall be made by the Committee on the basis of
all relevant facts and circumstances. The Committee shall
determine that a distribution is necessary to satisfy the
financial need if the Participant demonstrates to the
satisfaction of the Committee that all of the following
requirements are satisfied:
(A) the distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant,
taking into account any amount necessary to pay any
federal, state or local income taxes or penalties
reasonably anticipated to result from the distribution;
(B) the Participant has obtained all distributions (other
than hardship distributions) and all nontaxable loans
currently available under all of the plans maintained
by the Employer or any Affiliate;
(C) the Participant will not make any contributions to any
retirement plan (other than mandatory employee
contributions to a defined benefit plan) maintained by
the Employer or any Affiliate for 12 months after
receiving the hardship distribution, and the
Participant may not make any contributions to this Plan
until the January 1 coinciding with or next following
the first anniversary of the date on which the
Participant received the hardship distribution; and
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<Page>
(D) the Participant's Before-Tax Contributions to this Plan
and to all plans maintained by the Employer and any
Affiliate, in the calendar year following the calendar
year of the hardship distribution, do not exceed the
limitation in Code Section 402(g)(1) applicable to such
following calendar year, minus the amount of his or her
Before-Tax Contributions for the calendar year of the
hardship distribution.
Notwithstanding the provisions in
Section 8.7(d)(ii)(C), a Participant who receives a
hardship withdrawal after December 31, 2001, under
Section 8.7 of the Plan shall have his or her
contributions suspended for 6 months beginning on the
date as of which he or she receives the hardship
withdrawal. In addition, for Plan Years beginning after
December 31, 2001, the limitation set forth in Section
8.7(d)(ii)(D) shall no longer be effective.
(iii)Withdrawals on account of financial hardship shall not
exceed the lesser of:
(A) The amount of the immediate and heavy financial need;
(B) The value of the Participant's Before-Tax Account at
the time of the distribution; and
(C) (I) the value of the Participant's Before-Tax Account
as of December 31, 1988, plus the Participant's
Before-Tax Contributions made on or after January 1,
1989, reduced by (II) the aggregate amount distributed
on or after January 1, 1989.
8.8. LOANS.
(a) Upon the submission by the Participant of a loan application form
as prescribed by the Committee, a Participant may borrow from the
Trust, in accordance with the procedures established by the
Committee, under such uniform rules as it shall adopt, an amount
no less than $1,000 and not in excess of 50% of his or her vested
Accounts (as of the Valuation Date coinciding with the date such
loan is granted); provided, however, that the amount of such loan
shall not exceed $50,000, reduced by the greater of (i) the
highest outstanding balance of loans from the Trust Fund during
the 1-year period ending on the date before the date on which
such loan is made or modified, or (ii) the outstanding balance of
loans from the Trust Fund on the date on which such loan is made
or modified.
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(b) Loans shall be made available on a reasonably equivalent basis to
each Participant or Beneficiary who has vested Account benefits
and who either (i) is an Eligible Employee, or (ii) the Committee
determines is a "party in interest" as such term is defined in
Section 3(14) of ERISA, so long as the making of such loan does
not discriminate in favor of highly compensated employees (as
defined by Code Section 414(q)).
(c) Loans shall be made on such terms as the Committee may prescribe,
provided that any such loan shall be evidenced by a note or such
documents as the Committee, in its sole discretion, shall
determine under uniform rules prescribed by it, shall bear
interest on the unpaid balance thereof at one percentage point
above and shall be secured by the Participant's Segregated Loan
Account.
(d) Loans shall be repaid by the Participant by payroll deductions or
any other method approved by the Committee which requires level
amortization of principal and repayments not less frequently than
quarterly. All loans, except those made for the purchase of a
primary residence, shall be repaid over a period not to exceed 5
years in accordance with procedures established by the Committee
from time to time.
(e) Loans shall be an asset of the Participant's Accounts, shall be
treated in the manner of a segregated account and shall be
subject to the provisions of Section 6.1(b). Upon the failure of
a Participant to make loan payments or some other event of
default set forth in the promissory note, upon the Participant's
termination of employment, or upon termination of the Plan
pursuant to Section 12.2, such loan shall become due and payable,
and the unpaid balance of such loan, including any unpaid
interest, may in the Committee's discretion be charged against
the Participant's Segregated Loan Account; provided that any
unpaid balance of such loan, including any unpaid interest, shall
be charged against the Participant's Segregated Loan Account
before any distribution to the Participant.
(f) Loan repayments will be suspended under the Plan as permitted
under Code Section 414(u) during periods of military service.
8.9. FACILITY OF PAYMENT. When, in the Committee's opinion, a Participant
or Beneficiary is under a legal disability or is incapacitated in any way so as
to be unable to manage his or her affairs, the Committee may direct the Trustee
to make payments:
(a) directly to the Participant or Beneficiary;
(b) to a duly appointed guardian or conservator of the Participant or
Beneficiary;
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(c) to a custodian for the Participant or Beneficiary under the
Uniform Gifts to Minors Act;
(d) to an adult relative of the Participant or Beneficiary; or
(e) directly for the benefit of the Participant or Beneficiary.
Any such payment shall constitute a complete discharge therefor with respect to
the Trustee and the Committee.
8.10. CLAIMS PROCEDURE.
(a) Any person who believes that he or she is then entitled to
receive a benefit under the Plan, including one greater than that
initially determined by the Committee, may file a claim in
writing with the Committee.
(b) The Committee shall within 90 days of the receipt of a claim
either allow or deny the claim in writing. A denial of benefits
shall be written in a manner calculated to be understood by the
claimant and shall include:
(i) the specific reason or reasons for the denial;
(ii) specific references to pertinent Plan provisions on which
the denial is based;
(iii)a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is
necessary; and
(iv) an explanation of the Plan's claim review procedure.
(c) A claimant whose claim is denied (or the claimant's duly
authorized representative) may, within 60 days after receipt of
denial of his or her claim:
(i) submit a written request for review to the Committee;
(ii) review pertinent documents; and
(iii)submit issues and comments in writing.
(d) The Committee shall notify the claimant of its decision on review
within 60 days of receipt of a request for review. The decision
on review shall be written in a manner calculated to be
understood by the claimant and shall include specific reasons for
the decision and specific references to the pertinent Plan
provisions on which the decision is based.
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(e) The 90-day and 60-day periods described in subsections (b) and
(d), respectively, may be extended at the discretion of the
Committee for a second 90- or 60-day period, as the case may be,
provided that written notice of the extension is furnished to the
claimant prior to the termination of the initial period,
indicating the special circumstances requiring such extension of
time and the date by which a final decision is expected.
(f) Participants and Beneficiaries shall not be entitled to challenge
the Committee's determinations in judicial or administrative
proceedings without first complying with the procedures in this
Article. The Committee's decisions made pursuant to this Section
are intended to be final and binding on Participants,
Beneficiaries and others.
8.11. ELIGIBLE ROLLOVER DISTRIBUTIONS.
(a) Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a distributee's election under this Article
VIII, a distributee may elect, at the time and in the manner
prescribed by the Committee, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
(b) Eligible rollover distribution: An eligible rollover distribution
is any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a
series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy)
of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated
beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under
Code Section 401(a)(9); any 401(k) hardship withdrawal; 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).
(c) 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.
Effective January 1, 2002, an eligible retirement plan should
also include an annuity contract described in Code Section 403(b)
and an eligible plan under Code Section 457(b) which is
maintained by a state, political subdivision of a state, or any
agency or instrumentality of a state or political subdivision of
a state and which agrees to separately account for amounts
transferred into such plan from the Plan. However, in the case of
an eligible rollover distribution to a surviving spouse prior to
January 1,
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2002, an eligible retirement plan is an individual retirement
account or individual retirement annuity only.
(d) 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.
(e) Direct rollover: A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
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ARTICLE IX.
TOP-HEAVY PLAN REQUIREMENTS
9.1. DEFINITIONS. For purposes of this Article IX:
(a) A "Key Employee" is any current or former employee (and the
beneficiaries of such employee) who at any time during the
Determination Period was an officer of the Employer or an
Affiliate if such individual's annual compensation exceeds 50% of
the Defined Benefit Dollar Limitation, an owner (or considered an
owner under Code Section 318) of one of the 10 largest interests
in the Employer if such individual's compensation exceeds 100% of
the Defined Contribution Dollar Limitation, a Five-Percent Owner,
or a One-Percent Owner of the Employer who has an annual
compensation of more than $150,000. Annual compensation means
Section 415 Compensation plus amounts contributed by the Employer
pursuant to a salary reduction agreement which are excludable
from the employee's gross income under Code Section 125,
402(e)(3), 402(h), 132(f) or 403(b). The "Determination Period"
is the Plan Year containing the Top-Heavy Determination Date and
the four preceding Plan Years.
Notwithstanding the foregoing, effective for Plan Years beginning
after December 31, 2001, "Key Employee" means any employee or
former employee (including any deceased employee) who at any time
during the Determination Period was (i) an officer of an Employer
having annual compensation greater than $130,000 (as adjusted
under Section 416(i) of the Code for Plan Years beginning after
December 31, 2002), (ii) a 5% owner of an Employer, or (iii) a 1%
owner of an Employer having annual compensation of more than
$150,000. Effective for Plan Years beginning after December 31,
2001, the Determination Period is the current Plan Year.
The determination of who is a Key Employee will be made in
accordance with Code Section 416(i)(1) and the regulations
thereunder.
(b) For any Plan Year beginning after December 31, 1983, this Plan is
"Top-Heavy" if any of the following conditions exists:
(i) The Top-Heavy Ratio for this Plan exceeds 60% and this Plan
is not part of any Required Aggregation Group or Permissive
Aggregation Group of plans;
(ii) This Plan is a part of a Required Aggregation Group of plans
but not part of a Permissive Aggregation Group and the
Top-Heavy Ratio for the group of plans exceeds 60%;
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(iii)This Plan is a part of a Required Aggregation Group and
part of a Permissive Aggregation Group of plans and the
Top-Heavy Ratio for the Permissive Aggregation Group exceeds
60%.
(c) The "Top-Heavy Ratio" shall be determined as follows:
(i) If the Employer maintains one or more defined contribution
plans and the Employer has not maintained any defined benefit
plan that, during the 5-year period ending on the Top-Heavy
Determination Date(s), has or has had accrued benefits, the
Top-Heavy Ratio for this Plan alone or for the Required or
Permissive Aggregation Group, as appropriate, is a fraction,
the numerator of which is the sum of the account balances of
all Key Employees as of the Top-Heavy Determination Date(s)
(including any part of any account balance distributed in the
5-year period ending on the Top-Heavy Determination Date(s)),
and the denominator of which is the sum of all account
balances (including any part of any account balance
distributed in the 5-year period ending on the Top-Heavy
Determination Date(s)), both computed in accordance with Code
Section 416 and the regulations thereunder. Both the
numerator and denominator of the Top-Heavy Ratio are
increased to reflect any contribution not actually made as of
the Top-Heavy Determination Date, but which is required to be
taken into account on that date under Code Section 416 and
the regulations thereunder.
(ii) If the Employer maintains one or more defined contribution
plans and the Employer maintains or has maintained one or
more defined benefit plans that, during the 5-year period
ending on the Top-Heavy Determination Date(s), has or has had
any accrued benefits, the Top-Heavy Ratio for any Required or
Permissive Aggregation Group, as appropriate, is a fraction,
the numerator of which is the sum of account balances under
the aggregated defined contribution plan or plans for all Key
Employees, determined in accordance with (i) above, and the
Present Value of accrued benefits under the aggregated
defined benefit plan or plans for all Key Employees as of the
Top-Heavy Determination Date(s), and the denominator of which
is the sum of the account balances under the aggregated
defined contribution plan or plans for all Participants,
determined in accordance with (i) above, and the Present
Value of accrued benefits under the aggregated defined
benefit plan or plans for all Participants as of the
Top-Heavy Determination Date(s), all determined in accordance
with Code Section 416 and the regulations thereunder. The
accrued benefits under a defined benefit plan in both the
numerator and denominator of the Top-Heavy Ratio are
increased for any
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distribution of an accrued benefit made in the 5-year
period ending on the Top-Heavy Determination Date.
(iii)For purposes of (i) and (ii) above, the value of account
balances and the Present Value of accrued benefits will be
determined as of the most recent valuation date that falls
within or ends with the 12-month period ending on the
Top-Heavy Determination Date, except as provided in Code
Section 416 and the regulations thereunder for the first and
second plan years of a defined benefit plan. The account
balances and accrued benefits of a Participant (A) who is not
a Key Employee but who was a Key Employee in a prior year, or
(B) who has not been credited with at least one hour of
service with any employer maintaining the Plan at any time
during the 5-year period ending on the Top-Heavy
Determination Date will be disregarded. The calculation of
the Top-Heavy Ratio, and the extent to which distributions,
rollovers, and transfers are taken into account, will be made
in accordance with Code Section 416 and the regulations
thereunder. Deductible employee contributions will not be
taken into account for purposes of computing the Top-Heavy
Ratio. When aggregating plans, the value of account balances
and accrued benefits will be calculated with reference to the
Top-Heavy Determination Date(s) that fall within the same
calendar year. The accrued benefit of a Participant other
than a Key Employee shall be determined under (1) the method,
if any, that uniformly applies for accrual purposes under all
defined benefit plans maintained by the Employer, or (2) if
there is no such method, as if such benefit accrued not more
rapidly than the slowest accrual rate permitted under the
fractional rule of Code Section 411(b)(1)(C).
(iv) Notwithstanding any provision of this Section 9.1(c) to the
contrary, this subsection (iv) shall apply for purposes of
determining the amounts of account balances of employees as
of the Top-Heavy Determination Date, effective for Plan Years
beginning after December 31, 2001.
(A) DISTRIBUTIONS DURING YEAR ENDING ON THE DETERMINATION
DATE. The amounts of account balances of a Key Employee
as of the Top-Heavy Determination Date shall be
increased by the distributions made with respect to the
employee under the Plan and any plan aggregated with
the Plan under Section 416(g)(2) of the Code during the
1-year period ending on the Top-Heavy Determination
Date. The preceding sentence shall also apply to
distributions under a terminated plan which, had it not
been terminated, would have been aggregated with the
Plan under Section
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416(g)(2)(A)(i) of the Code. In the case of a
distribution made for a reason other than a severance
from service, death or disability, this provision shall
be applied by substituting a 5-year period for a 1-year
period.
(B) EMPLOYEES NOT PERFORMING SERVICES DURING YEAR ENDING ON
THE DETERMINATION DATE. The accounts of any individual
who has not performed services for an Employer during
the 1-year period ending on the Top-Heavy Determination
Date shall not be taken into account.
(d) "Permissive Aggregation Group" means the Required
Aggregation Group of plans plus any other plan or plans of
the Employer which, when considered as a group with the
Required Aggregation Group, would continue to satisfy the
requirements of Code Sections 401(a)(4) and 410.
(e) "Required Aggregation Group" means (i) each qualified plan
of the Employer in which at least one Key Employee
participates or participated at any time during the
Determination Period (regardless of whether the plan has
terminated), and (ii) any other qualified plan of the
Employer which enables a plan described in (i) to meet the
requirements of Code Section 401(a)(4) or 410.
Notwithstanding the foregoing, effective for Plan Years
beginning after December 31, 2001, the Required Aggregation
Group shall exclude qualified plans that consist solely of a
safe harbor cash or deferred arrangement under Code
Section 401(k)(12) and safe harbor matching contributions
under Code Section 401(m)(11).
(f) "Top-Heavy Determination Date" means the first Plan Year,
the last day of the preceding Plan Year or, for the first
Plan Year of the Plan, the last day of that year.
(g) "Present Value" shall be based on the interest assumption
and post-retirement mortality assumption specified in the
defined benefit plan.
(h) "Employer" means the Employer and all Affiliates except for
purposes of determining ownership under Code
Section 416(i)(1).
9.2. TOP-HEAVY PLAN REQUIREMENTS.
(a) Except as otherwise provided in (ii) and (iii) below, the
Employer contributions and forfeitures allocated on behalf of any
Participant who is not a Key Employee shall not be less than the
lesser of five percent of such Participant's Section 415
Compensation, as limited by Code Section 401(a)(17), or in the
case where the Employer has no defined benefit plan
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which designates this Plan to satisfy Code Section 401, the
largest percentage of Employer contributions and forfeitures, as
a percentage of any Key Employee's Section 415 Compensation, as
limited by Code Section 401(a)(17), allocated on behalf of any
Key Employee for that year. The minimum allocation is determined
without regard to any Social Security contribution. This minimum
allocation shall be made even though, under other Plan
provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation
for the year because of (A) the Participant's failure to complete
1,000 Hours of Service (or any equivalent provided in the Plan),
(B) the Participant's failure to make mandatory employee
contributions to the Plan, or (C) Section 415 Compensation less
than a stated amount.
Effective for Plan Years after December 31, 2001, Employer
Matching Contributions shall be taken into account for purposes
of satisfying the minimum allocation requirements of
Section 416(c)(2) of the Code and Section 9.2 of the Plan. The
preceding sentence shall apply with respect to Employer Matching
Contributions under the Plan or, if under subsection (iii)
immediately below, the minimum allocation requirement shall be
met in another plan, such other plan. Employer Matching
Contributions that are used to satisfy the minimum allocation
requirements shall be treated as Employer Matching Contributions
for purposes of the Contribution Percentage Test and other
requirements of Section 401(m) of the Code and Section 4.5 of the
Plan.
(i) The provision in (a) above shall not apply to any Participant
who was not employed by the Employer or an Affiliate on the
last day of the Plan Year.
(ii) The provision in (a) above shall not apply to any Participant
to the extent the Participant is covered under any other plan
or plans of the Employer and the Employer's contribution and
forfeitures allocated under such plan or plans are equal to
or exceed the amount required to be allocated under (a)
above.
(b) The minimum allocation required (to the extent required to be
nonforfeitable under Code Section 416(b)) may not be forfeited
under Code Section 411(a)(3)(B) or 411(a)(3)(D).
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ARTICLE X.
POWERS AND DUTIES OF PLAN COMMITTEE
10.1. APPOINTMENT OF PLAN COMMITTEE.
(a) The Board of Directors of the Company (the "Board of Directors")
or its duly authorized designee shall name a Plan Committee (the
"Committee") to consist of not less than 3 persons to serve as
administrator and a named fiduciary of the Plan. Any person,
including directors, shareholders, officers, and employees of the
Employer, shall be eligible to serve on the Committee. Every
person appointed as a member of the Committee shall signify his
or her acceptance in writing to the Board of Directors or its
duly authorized designee.
(b) Members of the Committee shall serve at the pleasure of the Board
of Directors or its designee and may be removed by the Board of
Directors or its designee at any time with or without cause. Any
member of the Committee may resign by delivering his or her
written resignation to the Board of Directors or its designee,
and such resignation shall become effective at delivery or at any
later date specified therein. Vacancies in the Committee shall be
filled by the Board of Directors or its designee.
(c) Usual and reasonable expenses of the Committee shall be paid by
the Trustee out of the principal or income of the Trust Fund
except to the extent the Employer agrees to pay such expenses in
whole or in part. The members of the Committee shall not receive
any compensation for their services as such.
10.2. POWERS AND DUTIES OF COMMITTEE. Except as otherwise provided in this
Article X, the Committee shall have final and binding discretionary authority to
control and manage the operation and administration of the Plan, including all
rights and powers necessary or convenient to the carrying out of its functions
hereunder, whether or not such rights and powers are specifically enumerated
herein. In exercising its responsibilities hereunder, the Committee may manage
and administer the Plan through the use of agents who may include employees of
the Employer.
Without limiting the generality of the foregoing, and in addition to the
other powers set forth in this Article X, the Committee shall have the following
discretionary authorities:
(a) To construe and interpret the Plan, decide all questions of
eligibility, and determine the amount, manner, and time of
payment of any benefits hereunder;
(b) To prescribe procedures to be followed by Participants or
Beneficiaries filing applications for benefits;
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(c) To prepare and distribute, in such manner as the Committee
determines to be appropriate, information explaining the Plan;
(d) To request and receive from the Employer, Participants, and
others such information as shall be necessary for the proper
administration of the Plan;
(e) To furnish to the Employer, upon request, such annual and other
reports with respect to the administration of the Plan as are
reasonable and appropriate;
(f) To review the performance of the Trustee and any Investment
Manager of the Trust Fund;
(g) To establish investment guidelines and objectives for the Trustee
or any Investment Manager;
(h) To appoint one or more Investment Managers to manage any assets
of the Plan and to remove any such Investment Managers in
accordance with Section 10.7(c);
(i) To appoint one or more trustees;
(j) To review Trustee records of the Participant loans and to
maintain, in addition, accurate records of such loans internally;
(k) To receive, review, and retain (as it deems convenient or proper)
reports of the investments and the receipts and disbursements of
the Trust Fund from the Trustee and/or any Investment Managers;
and
(l) To add or delete investment Funds under Section 6.2.
10.3. COMMITTEE PROCEDURES.
(a) The Committee may adopt such bylaws and regulations as it deems
desirable for the conduct of its affairs.
(b) A majority of the members of the Committee at the time in office
shall constitute a quorum for the transaction of business. All
resolutions or other actions taken by the Committee at any
meeting shall be by the vote of the majority of the members of
the Committee present at the meeting. The Committee may act
without a meeting by written consent of a majority of its
members.
(c) The Committee may elect one of its members as chairman and shall
appoint a secretary, who may or may not be a Committee member,
and shall advise the Trustee and the Employer of such actions in
writing. The
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secretary shall keep a record of all actions of the Committee and
shall forward all necessary communications to the Employer or the
Trustee.
(d) Filing or delivery of any document with or to the secretary of
the Committee in person or by registered or certified mail,
addressed in care of the Company, is deemed a filing with or
delivery to the Committee.
10.4. CONSULTATION WITH ADVISORS. The Committee (or any fiduciary
designated by a Committee pursuant to Section 10.8) may employ or consult with
counsel, actuaries, accountants, physicians or other advisors (who may be
counsel, actuaries, accountants, physicians or other advisors for the Employer).
10.5. COMMITTEE MEMBERS AS PARTICIPANTS. The Committee member may also be a
Participant, but no Committee member shall have power to take part in any
discretionary decision or action affecting his or her own interest as a
Participant under this Plan unless such decision or action is upon a matter
which affects all other Participants similarly situated and confers no special
right, benefit or privilege not simultaneously conferred upon all other such
Participants.
10.6. RECORDS AND REPORTS. The Committee shall take all such action as it
deems necessary or appropriate to comply with governmental laws and regulations
relating to the maintenance of records, notifications to Participants,
registrations with the Internal Revenue Service, reports to the U.S. Department
of Labor and all other requirements applicable to the Plan.
10.7. INVESTMENT POLICY.
(a) The Committee from time to time shall determine the type of
investment options to be held in the Plan. The Committee shall
determine the investment Funds, as well as the Plan's short-term
and long-term financial needs, with which the investment policy
of the Trust shall be appropriately coordinated, and such needs
shall be communicated from time to time to the Trustee,
Investment Managers or others having any responsibility for
management and control of the Trust assets.
(b) Subject to the provisions of Section 6.2 and to (c) below, the
Trustee shall have exclusive authority and discretion to manage
and control the assets of the Trust pursuant to an investment
policy coordinated with the needs of the Plan as determined by
the Committee.
(c) The Committee may in its discretion appoint itself or one or more
Investment Managers to manage (including the power to acquire and
dispose of) any assets of the Plan pursuant to an investment
policy coordinated with the needs of the Plan as determined by
the Committee, in which event the Trustee shall not be liable for
the acts or omissions of the Committee or any such Investment
Manager or be under an obligation to
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invest or otherwise manage any asset of the Plan which is subject
to the management of the Committee or any such Investment Manager
except as directed. Any such Investment Manager shall acknowledge
in writing that he/she is a fiduciary with respect to the Plan.
(d) The term "Investment Manager" shall mean: (i) a registered
investment adviser under the Investment Advisers Act of 1940;
(ii) a bank as defined in the Investment Advisers Act of 1940; or
(iii) an insurance company qualified under the laws of more than
one state to manage, acquire and dispose of plan assets.
10.8. DESIGNATION OF OTHER FIDUCIARIES. The Committee may designate in
writing other persons to carry out a specified part or parts of its
responsibilities hereunder (including the power to designate other persons to
carry out a part of such designated responsibility), but not including the power
to appoint Investment Managers. Any such designation shall be accepted by the
designated person, who shall acknowledge in writing that he/she is a fiduciary
with respect to the Plan.
10.9. OBLIGATIONS OF COMMITTEE.
(a) The Committee or its properly authorized delegate shall make such
determinations as are necessary to accomplish the purposes of the
Plan with respect to individual Participants or classes of such
Participants. The Employer shall notify the Committee of facts
relevant to such determinations, including, without limitation,
length of service, compensation for services, dates of death,
permanent disability, granting or terminating of leaves of
absence, ages, retirement and termination of service for any
reason (but indicating such reason), and termination of
participation. The Employer shall also be responsible for
notifying the Committee of any other facts which may be necessary
for the Committee to discharge its responsibilities hereunder.
(b) The Committee is hereby authorized to act solely upon the basis
of such notifications from the Employer and to rely upon any
document or signature believed by the Committee to be genuine and
shall be fully protected in so doing. For the purpose of this
Section, a letter or other written instrument signed in the name
of the Employer by any officer thereof shall constitute a
notification therefrom; except that any action by the Company or
its Board of Directors with respect to the appointment or removal
of a member of a Committee or the amendment of the Plan and Trust
or the designation of a group of employees to which the Plan is
applicable shall be evidenced by an instrument in writing, signed
by a duly authorized officer or officers, certifying that said
action has been authorized and directed by a resolution of the
Board of Directors of the Company.
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(c) The Committee shall notify the Trustee of its actions and
determinations affecting the responsibilities of the Trustee and
shall give the Trustee directions as to payments or other
distributions from the Trust Fund to the extent they may be
necessary for the Trustee to fulfill the terms of the Trust
Agreement.
(d) The Committee shall be under no obligation to enforce payment of
contributions hereunder or to determine whether contributions
delivered to the Trustee comply with the provisions hereof
relating to contributions, and is obligated only to administer
this Plan pursuant to the terms hereof.
10.10. INDEMNIFICATION OF THE COMMITTEE. The Company shall indemnify the
Committee, members of the Committee, and their authorized delegates who are
employees of the Employer for any liability or expenses, including attorneys'
fees, incurred in the defense of any threatened or pending action, suit or
proceeding by reason of their status as members of the Committee or its
authorized delegates, to the full extent permitted by the law of the Company's
state of incorporation.
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ARTICLE XI.
TRUSTEE AND TRUST FUND
11.1. TRUST FUND. A Trust Fund to be known as the CCC Information Services
Inc. 401(k) Retirement Savings & Investment Trust (herein referred to as the
"Trust" or the "Trust Fund") has been established by the execution of a trust
agreement with one or more Trustees and is maintained for the purposes of this
Plan and other qualified plans of the Company and its Affiliates. The assets of
the Trust will be held, invested, and disposed of by the Trustee, in accordance
with the terms of the Trust, for the benefit of the Participants and their
Beneficiaries.
11.2. PAYMENTS TO TRUST FUND AND EXPENSES. All contributions hereunder will
be paid into and credited to the Trust Fund and all benefits hereunder and
expenses chargeable thereto will be paid from the Trust Fund and charged
thereto.
11.3. TRUSTEE'S RESPONSIBILITIES. The powers, duties, and responsibilities
of the Trustee shall be as set forth in the Trust Agreement and nothing
contained in this Plan, either expressly or by implication, shall impose any
additional powers, duties or responsibilities upon the Trustee.
11.4. REVERSION TO AN EMPLOYER. An Employer has no beneficial interest in
the Trust Fund and no part of the Trust Fund shall ever revert or be repaid to
an Employer, directly or indirectly, except that an Employer shall, upon written
request, have a right to recover:
(a) within one year of the date of payment of a contribution by such
Employer, any amount (less any losses attributable thereto)
contributed through a mistake of fact;
(b) within one year of the date on which any deduction for a
contribution by such Employer under Code Section 404 is
disallowed, an amount equal to the amount disallowed (less any
losses attributable thereto); and
(c) at the termination of the Plan, any amounts with respect to its
employees remaining in the Excess Forfeiture Suspense Account.
11.5. ALLOCATION OF ASSETS. The Trust Fund may also include assets
attributable to contributions made by the Company and its Affiliates to fund
other defined contribution plans maintained by the Company and its Affiliates.
In this event, separate accounting for assets in the Trust Fund shall be kept by
the Company and Trustee so that the value of assets attributable to the Plan is
readily ascertainable.
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ARTICLE XII.
AMENDMENT OR TERMINATION
12.1. AMENDMENT. While it is intended that the Plan shall continue in
effect indefinitely, the Company reserves the right at any time or from time to
time to modify or amend the Plan or to discontinue contributions thereto.
12.2. TERMINATION. The Company reserves the right to terminate this Plan at
any time.
12.3. FORM OF AMENDMENT, DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS, AND
TERMINATION. Any amendment, discontinuance of Employer contributions or
termination shall be made only by resolution of the Board of Directors of the
Company or by any person so duly authorized by the Board of Directors.
12.4. LIMITATIONS ON AMENDMENTS. The provisions of this Article are subject
to the following restrictions:
(a) Except as provided in Section 11.4, no amendment shall operate
either directly or indirectly to give the Employer any interest
whatsoever in any funds or property held by the Trustee under the
terms hereof, or to permit corpus or income of the Trust to be
used for or diverted to purposes other than the exclusive benefit
of the Participants and their Beneficiaries.
(b) Except to the extent necessary to conform to the laws and
regulations or to the extent permitted by any applicable law or
regulation, no amendment shall operate either directly or
indirectly to deprive any Participant of his or her
nonforfeitable beneficial interest in his or her Accounts as of
the date of the amendment.
(c) No amendment shall change any vesting schedule unless each
Participant who has completed 3 or more Years of Service is
permitted to elect to have the nonforfeitable percentage of his
or her Matching Account computed under the Plan without regard to
such amendment. The period for making such election shall
commence no later than the date of the adoption of such amendment
and shall expire no earlier than 60 days after the latest of the
following dates: (i) the date the Plan amendment is adopted, (ii)
the date the Plan amendment becomes effective, or (iii) the date
the Participant is issued written notice of the Plan amendment by
the Committee. Notwithstanding the foregoing, no election need be
offered to a Participant whose nonforfeitable percentage of his
or her Matching Account cannot at any time be lower than such
percentage determined without regard to such amendment.
(d) Except as permitted by applicable law, no amendment shall
eliminate or reduce an early retirement benefit or a
retirement-type subsidy or eliminate an optional form of benefit.
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12.5. LEVEL OF BENEFITS UPON MERGER. This Plan shall not merge or
consolidate with, or transfer assets or liabilities to, any other plan, unless
each Participant shall be entitled to receive a benefit immediately after said
merger, consolidation or transfer (if such other plan were then terminated)
which shall be not less than the benefit he/she would have been entitled to
receive immediately before said merger, consolidation or transfer (if this Plan
were then terminated).
12.6. VESTING UPON TERMINATION OR DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS;
LIQUIDATION OF TRUST.
(a) This Plan shall be deemed terminated if and only if the Plan
terminates by operation of law or pursuant to Section 12.2. In
the event of any termination or partial termination within the
meaning of the Code, or in the event the Employer permanently
discontinues the making of contributions to the Plan, the
Matching Account of each affected Participant who is employed by
the Employer on the date of the occurrence of such event shall be
nonforfeitable; provided, however, that in no event shall any
Participant or Beneficiary have recourse to other than the Trust
Fund for the satisfaction of benefits hereunder.
(b) In the event the Employer permanently discontinues the making of
contributions to the Plan, the Trustee shall make or commence
distribution, to each Participant or his or her Beneficiaries, of
the value of such Participant's Accounts as provided herein
within the time prescribed in Article VII. However, if, after
such discontinuance, the Company shall determine it to be
impracticable to continue the Trust any longer, the Company may,
in its discretion, declare the date of termination of the Plan to
be the Valuation Date for all Participants for whom a Valuation
Date has not yet occurred. Such date shall also constitute the
final distribution date for each Participant or Beneficiary whose
Accounts are being distributed in installments.
(c) The liquidation of the Trust, if any, in connection with any Plan
termination shall be accomplished by the Committee acting on
behalf of the Company. After directing that sufficient funds be
set aside to provide for the payment of all expenses incurred in
the administration of the Plan and the Trust, to the extent not
paid or provided for by the Employer, the Committee shall, as
promptly as shall then be reasonable under the circumstances,
liquidate the Trust assets and distribute to each Participant or
Beneficiary his or her share in the Trust Fund. Notwithstanding
the foregoing, if the Employer or an Affiliate maintains another
defined contribution plan, other than an employee stock ownership
plan (as defined in Code Section 4975(e) or 409) or a simplified
employee pension plan (as defined in Code Section 408(k)), the
Before-Tax Account of such Participant shall be transferred to
such other plan; provided, however, that if fewer than 2% of the
Participants in this Plan at the time this Plan is
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terminated are or were eligible to participate under such other
defined contribution plan at any time during the 24-month period
beginning 12 months before the time of termination, the
Before-Tax Account shall be treated in the same manner as the
Participant's remaining Accounts. The Participant's remaining
Accounts (and, if such other defined contribution plan does not
meet the requirements described above, the Participant's
Before-Tax Account) shall be transferred to such other plan
unless the vested balance of such Accounts does not exceed $3,500
($5,000 effective beginning with the 1998 Plan Year) (or at the
time of any prior distribution did not exceed $5,000) or the
Participant consents to the distribution of such Accounts. For
purposes of the preceding sentence, effective October 17, 2000,
the non-consensual cash-out limit will be applied at the time of
transfer or distribution, regardless of whether the balance in
the Accounts was less than $5,000 at the time of any previous
distribution. Upon completion of such liquidation and
distribution, the Trust shall finally and completely terminate.
In the event the Committee is no longer in existence, the actions
to be taken by the Committee pursuant to this Section shall be
taken by the Trustee.
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ARTICLE XIII.
MISCELLANEOUS
13.1. NO GUARANTEE OF EMPLOYMENT, ETC. Neither the creation of the Plan nor
anything contained in the Plan or trust agreement shall be construed as a
contract of employment between the Employer and the Participant or as giving any
Participant hereunder or other employee of the Employer any right to remain in
the employ of the Employer, any equity or other interest in the assets, business
or affairs of the Employer, or any right to complain about any action taken or
any policy adopted or pursued by the Employer.
13.2. NONALIENATION.
(a) Except as may be provided in the Plan with respect to loans to
Participants, no Participant shall have any right to sell,
assign, pledge, hypothecate, anticipate or in any way create a
lien upon any part of the Trust Fund. Except to the extent
required by law or provided in the Plan, no interest in the Trust
Fund, or any part thereof, shall be assignable in or by operation
of law, or be subject to liability in any way for the debts or
defaults of Participants, their Beneficiaries, spouses or
heirs-at-law, whether to the Employer or to others.
(b) Prior to the time that distributions are to be made hereunder,
the Participants, their spouses, Beneficiaries, heirs-at-law or
legal representatives shall have no right to receive cash or
other things of value from the Employer or the Trustee from or as
a result of the Plan and Trust.
(c) Notwithstanding the foregoing, effective August 5, 1997, for
judgments, orders and decrees issued, and settlements, a
Participant's benefit in the Plan may be reduced to satisfy
liabilities of the Participant to the Plan due to (a) the
Participant's conviction of a crime involving the Plan; (b) a
civil judgment (or consent order or decree) entered by a court or
an action brought in connection with a violation of the fiduciary
provisions of ERISA; or (c) a settlement agreement between the
Secretary of Labor or the PBGC and the Participant in connection
with a violation of the fiduciary provisions of ERISA. To be
effective, the court order establishing such liability must
require that the Participant's benefit in the Plan be applied to
satisfy the liability. Spousal consent is required to offset the
liability, unless the court order also requires the spouse to pay
an amount to the Plan.
13.3. QUALIFIED DOMESTIC RELATIONS ORDER. Notwithstanding anything in this
Plan to the contrary, the Committee shall distribute a Participant's Accounts,
or any portion thereof, in accordance with the terms of any domestic relations
order entered on or after January 1, 1985, which the Committee determines to be
a qualified domestic relations order described in Code Section 414(p). Further
notwithstanding any other provision of this Plan to the contrary, such
distribution of a Participant's Accounts, or any portion thereof, to an
alternate payee under a
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qualified domestic relations order shall, unless such order otherwise provides,
be made in one lump sum, as soon as administratively practicable, after the
Committee has determined that a domestic relations order is a qualified domestic
relations order described in Code Section 414(p).
13.4. CONTROLLING LAW. To the extent not preempted by the laws of the
United States of America, the laws of the State of Illinois shall be the
controlling state law in all matters relating to the Plan.
13.5. SEVERABILITY. If any provision of this Plan shall be held illegal or
invalid for any reason, said illegality or invalidity shall not affect the
remaining parts of this Plan, but this Plan shall be construed and enforced as
if said illegal or invalid provision had never been included herein.
13.6. NOTIFICATION OF ADDRESSES. Each Participant and each Beneficiary of a
deceased Participant shall file with the Committee from time to time in writing
his or her post-office address and each change of post-office address. Any
communication, statement or notice addressed to the last post-office address
filed with the Committee, or if no such address was filed with the Committee,
then to the last post-office address of the Participant or Beneficiary as shown
on the Employer's records, will be binding on the Participant and his or her
Beneficiary for all purposes of this Plan, and neither the Committee nor the
Employer shall be obliged to search for or ascertain the whereabouts of any
Participant or Beneficiary.
13.7. GENDER AND NUMBER. Whenever the context requires or permits, the
gender and number of words used herein shall be interchangeable.
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ARTICLE XIV.
ADOPTION BY AFFILIATES
14.1. ADOPTION OF PLAN. Subject to any resolution or terms of any agreement
approved by the Board of Directors of the Company or a committee thereof to the
contrary, any Affiliate may adopt this Plan for the benefit of its eligible
employees if authorized to do so by the Board of Directors of the Company. Such
adoption shall be by resolution of such Affiliate's board of directors, a
certified copy of which shall be filed with the Company, the Committee, and the
Trustee. Upon such adoption, such Affiliate shall become an "Employer."
14.2. THE COMPANY AS AGENT FOR EMPLOYER. Each Employer which has adopted
this Plan pursuant to Section 14.1 hereby irrevocably gives and grants to the
Company full and exclusive power conferred upon it by the terms of the Plan and
Trust to take or refrain from taking any and all action which such Employer
might otherwise take or refrain from taking with respect to the Plan, including
sole and exclusive power to exercise, enforce or waive any rights whatsoever
which such Employer might otherwise have with respect to the Trust, and each
such Employer, by adopting this Plan, irrevocably appoints the Company its agent
for such purposes. Neither the Trustee, the Committee, nor any other person
shall have any obligation to account to any such Employer or to follow the
instructions of or otherwise deal with any such Employer, the intention being
that all persons shall deal solely with the Company as if it were the sole
company which had adopted this Plan. Each such Employer shall contribute such
amounts as determined under Article IV.
14.3. ADOPTION OF AMENDMENTS. Any Employer which adopts this Plan pursuant
to Section 14.1 may amend this Plan with respect to its own employees by
resolution of its board of directors, if authorized to do so by the Board of
Directors of the Company or any person so duly authorized by the Board of
Directors of the Company. Any Employer shall be deemed conclusively to have
assented to any amendment of this Plan by the Company without the necessity of
any affirmative action on the part of such Employer.
14.4. TERMINATION. Any Employer which adopts this Plan pursuant to
Section 14.1 may terminate this Plan with respect to its own employees by
resolution of its board of directors, if authorized to do so by the Board of
Directors of the Company, or any person so duly authorized by the Board of
Directors of the Company.
14.5. DATA TO BE FURNISHED BY EMPLOYERS. Each Employer which adopts this
Plan pursuant to Section 14.1 shall furnish information and maintain such
records with respect to its Participants as called for hereunder, and its
determinations and notifications with respect thereto shall have the same force
and effect as comparable determinations by the Company with respect to its
Participants.
14.6. JOINT EMPLOYERS. If a Participant receives Considered Compensation
during a Plan Year from more than one Employer, the total amount of such
Considered Compensation shall be considered for the purposes of the Plan, and
the respective Employers shall share in contributions to the Plan on account of
said Participant based on the Considered Compensation paid to such Participant
by the Employer.
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14.7. EXPENSES. Each Employer shall pay such part of any expenses incurred
in the administration of the Plan as the Company shall determine.
14.8. WITHDRAWAL. An Employer may withdraw from the Plan by giving 60 days'
written notice of its intention to the Company and the Trustee, unless a shorter
notice shall be agreed to by the Company.
14.9. PRIOR PLANS. If an Employer adopting the Plan already maintains a
defined contribution plan covering employees who will be covered by this Plan,
it may, with the consent of the Company, provide in its resolution adopting this
Plan for the termination of its own plan or for the merger, restatement, and
continuation of its own plan by this Plan. In either case, such Employer may,
subject to the approval of the Company, provide in its resolution of adoption of
this Plan for the transfer of the assets of such plan to the Trust for this Plan
for the payment of benefits accrued under such other plan.
IN WITNESS WHEREOF, the Company has caused this amendment and restatement
of the Plan to be executed by its duly authorized officer.
CCC INFORMATION SERVICES INC.
By /s/ Oliver G. Prince, Jr.
--------------------------------
Its Senior Vice President
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Date February 27, 2002
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