EXHIBIT (10)j
HACH COMPANY
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
Article Title Page No.
- ------- ----- --------
1 History and Name 1
2 Purpose 2
3 Definitions 3
4 Operation and Administration 6
5 Eligibility for Participation 9
6 Participant Allocations 11
7 Company Allocations 13
8 Establishment of Accounts 14
9 Maintenance of Accounts and Valuation
of Plan 15
10 Funding Limitations 17
11 Vesting 18
12 Regulations Governing Distribution of
Benefits after Termination of Employment 19
13 Beneficiary Designation 25
14 Amendment and Termination 26
15 General Provisions 27
HACH COMPANY
DEFERRED COMPENSATION PLAN
ARTICLE 1
HISTORY AND NAME
Effective September 1, 1988, Hach Company established the
Supplemental Executive Benefit Program of Hach Company in order to
provide certain key employees with benefits upon retirement, death,
disability or other termination of employment, for the purpose of
promoting in its key employees the strongest interest in the
successful operation of the Company and to induce such employees to
remain in the employ of the Company.
The plan set forth herein shall be known as the Hach Company
Deferred Compensation Plan and, effective March 1, 1995,
constitutes an amendment in its entirety to the Supplemental
Executive Benefit Program of Hach Company for the benefit of
eligible key employees and their beneficiaries in the manner and to
the extent set forth in such plan.
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ARTICLE 2
PURPOSE
The plan is intended to constitute a nonqualified deferred
retirement plan which, in accordance with ERISA -Section
Symbols- 201(2), 301(a)(3) and 401(a)(1), is "unfunded and
maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees."
The purpose of the Plan is to acknowledge and reward certain key
employees of the Company for their efforts on behalf of the Company
by maximizing their ability to save on a tax-deferred basis and
providing such key employees with benefits that shall not be
restricted by any qualified plan limitations and/or requirements.
Such limitations and requirements shall include, but not be limited
to, the following:
2.1 ELECTIVE DEFERRAL CONTRIBUTION LIMITATION
The $9,240 (1994 limit) limitation placed on elective
employee contributions in accordance with Sections
402(g) of the Internal Revenue Code (the "Code"),
which limitation shall be adjusted annually for
increases in the cost-of-living in accordance with
Article 415(d) of the Code.
2.2 COMPENSATION LIMITATION
The $150,000 (1994 limit) maximum on compensation
taken into account for all purposes under a qualified
plan in accordance with Section 401(a)(17) of the
Code, which limitation shall be adjusted for increases
in the cost-of-living in accordance with Section
401(a)(17)(B) of the Code.
2.3 LIMITATION ON ANNUAL ADDITIONS
The limitation on annual additions to qualified
retirement plans in accordance with Section 415(c) of
the Code, which limitation shall be adjusted annually
for increases in the cost-of-living in accordance with
Article 415(d) of the Code.
2.4 MINIMUM PARTICIPATION REQUIREMENT
The participation requirements under Article
401(a)(26) of the Code.
2.5 NONDISCRIMINATION REQUIREMENTS
The nondiscrimination testing requirements under
Articles 401(k) and (m) of the Code.
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ARTICLE 3
DEFINITIONS
For purposes of the Plan, the following words and phrases shall
have the following meanings unless a different meaning is plainly
required by the context. Wherever used, the masculine pronoun
shall include the feminine pronoun and the feminine pronoun shall
include the masculine and the singular shall include the plural and
the plural shall include the singular.
3.1 "Account" shall mean a recordkeeping source from which Plan
benefits are provided. The specific Accounts under this
Plan are listed in Section 8.1 and described more fully in
Section 12.
3.2 "Beneficiary" shall mean the person or persons designated
in accordance with Article 13 to receive any benefits under
the Plan in the event of a Participant's death.
3.3 "Board of Directors" shall mean the full Board of Directors
of the Company.
3.4 "Bonus Compensation" shall mean any cash remuneration paid
to a Participant, excluding Regular Compensation and
Quarterly Cash Profit Sharing Compensation, as a specific
incentive bonus or award, including Voluntary Deferral
Allocations made hereunder, the source of which is Bonus
Compensation.
3.5 "Committee" shall mean the Board of Directors or the person
or persons appointed by the Board of Directors to
administer the Plan.
3.6 "Company" shall mean Hach Company, or any affiliate,
subsidiary or associate company which shall adopt the Plan
for its employees with the approval of Hach Company,
including any successor to the Company as a result of a
statutory merger, purchase of assets or any other form of
reorganization of the business of the Company.
3.7 "Deferred Retirement Date" shall mean the first day of any
month subsequent to the Participant's Normal Retirement
Date.
3.8 "Determination Date" shall mean the Valuation Date next
subsequent to the date on which the Participant's
termination of employment occurs.
3.9 "Disability" or "Disabled" shall mean any physical or
mental condition which may which meets the definition and
provisions described in the Company's group long-term
disability contract covering the Participants of this Plan.
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3.10 "Disability Termination Date" shall mean one year following
the date on which a Participant is Disabled.
3.11 "Effective Date" shall mean September 1, 1988, the date as
of which the Plan was established.
"Supplemental Effective Date" shall mean March 1, 1995,
the last date as of which the Plan was amended in its
entirety.
3.12 "Employee" shall mean a person who is employed by the
Company and falls under the usual common law rules
applicable in determining the employer-employee
relationship.
3.13 "Key Employee" shall mean an Employee who is designated for
eligibility in the Plan by the Committee in accordance with
Section 4.2.
3.14 "Participant" shall mean any Employee who is participating
in the Plan in accordance with the provisions herein set
forth.
3.15 "Normal Retirement Date" shall mean the date on which a
Participant attains age 62.
3.16 "Plan" shall mean the Hach Company Deferred Compensation
Retirement Plan as it may be amended from time to time.
3.17 "Plan Year" shall mean a period of 11 consecutive
months commencing on the Effective Date and ending on
December 31, 1995. Thereafter, "Plan Year" shall mean a
period of 12 consecutive months commencing on January 1,
1996 and each January 1 thereafter.
3.18 "Quarterly Cash Profit Sharing Compensation" shall mean
cash incentive remuneration, excluding Bonus Compensation
and Regular Compensation made to a Participant, including
Voluntary Deferral Allocations made hereunder, the source
of which is Quarterly Cash Profit Sharing Compensation.
3.19 "Regular Compensation" shall mean the Participant's wages
for the Plan Year paid by the Company of the type reported
in box 1 of Form W-2 (1993). Such wages shall include
amounts within the meaning of Section 3401(a) of the Code
plus any other amounts paid to the Participant by the
Company for which the Company is required to furnish a
written statement under Section 6041(d), 6051(a)(3) and
6052 of the Code, determined without regard to any rules
that limit the amount required to be reported based on the
nature or location of the employment or services performed,
(i) exclusive of
(A) Bonus Compensation;
(B) Quarterly Cash Profit Sharing Compensation;
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(C) severance pay on a non payroll basis;
(D) nonqualified plan payments; and
(E) welfare benefits, fringe benefits (cash and
non-cash), reimbursements of other expense
allowances and moving expenses.
(ii) inclusive of
(A) any amounts deferred under any nonqualified
plan, including the Plan; and
(B) the amount of any contributions made by
the Company under any salary reduction or
similar arrangement to a qualified deferred
compensation, pension or cafeteria plan,
contributions to a simplified employee
pension plan described in Section 408(k) of
the Code.
3.20 "Retirement" shall mean the termination of employment of a
Participant on his Normal or Deferred Retirement Date.
3.21 "Trust Agreement" shall mean the instrument executed by the
Company and the Trustee fixing the rights and liabilities
of each with respect to holding and administering the Trust
Fund.
3.22 "Trustee" shall mean the Trustee or any successor Trustee,
appointed by the Board of Directors, acting in accordance
with the terms of the Trust Agreement.
3.23 "Trust Fund" shall mean all assets held by the Trustee for
the purposes of the Plan in accordance with the terms of
the Trust Agreement. The Board of Directors shall, subject
to the provisions of Article 10, establish such a Trust
Fund (known as a "rabbi trust") for the purpose of
accumulating funds to satisfy the obligations incurred by
the Company under the Plan.
3.24 "Valuation Date" shall mean the last day of each March,
June, September and December and such other dates as the
Committee may determine from time to time.
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ARTICLE 4
OPERATION AND ADMINISTRATION OF THE PLAN
4.1 ORGANIZATION OF THE COMMITTEE
(a) The Board of Directors shall serve as the Committee
to administer the Plan or shall appoint a Committee
to administer the Plan, who, upon acceptance
of such appointment, shall serve at the pleasure
of the Board of Directors. Any member may resign by
delivering his written resignation to the Board of
Directors and to the Committee. Vacancies in the
Committee arising from resignation, death, or removal
shall be filled by the Board of Directors.
(b) The Committee shall act by a majority of its members
unless unanimous consent is required by the Plan or
by unanimous approval of its members if there are two
or less members in office at the time. In the event
of a Committee deadlock, the Committee shall determine
the method for resolving such deadlock. No Committee
member shall act upon any question pertaining solely
to himself, and the other member or members shall
make any determination required by the Plan in respect
to such member.
(c) The Committee may, by unanimous consent, delegate
specific authority and responsibilities to one or more
of its members. The member or members so designated
shall be solely liable, jointly and severally, for
their acts or omissions with respect to such delegated
authority and responsibilities. Committee members not
so designated shall be relieved from liability for any
act or omission resulting from such delegation.
4.2 COMMITTEE DISCRETION
The Committee shall, by written action prior to the first
day of each Plan Year, designate those Employees, if any,
who are to be Key Employees for purposes of Article 5.
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4.3 AUTHORITY AND RESPONSIBILITY
The Committee shall have full authority and responsibility
to interpret and construe the Plan and determine all
questions of the status and rights of the Participants
and the amounts of their allocations. Its interpretation,
construction or determination, as the case may be, shall
be final and conclusive on both the Company and the
Participants and their respective successors, assigns,
personal representatives and Beneficiaries. Such authority
and responsibility shall include, but shall not be limited
to, the following:
(a) appointment of qualified accountants, consultants,
administrators, counsel, appraisers, or other persons
it deems necessary or advisable, who shall serve
the Committee as advisors only and shall not exercise
any discretionary authority, responsibility or control
with respect to the management or administration of
the Plan;
(b) determination of all benefits, and resolution
of all questions arising from the administration,
interpretation and application of the Plan;
(c) adoption of forms and regulations for the
administration of the Plan;
(d) remedy of all inequity resulting from incorrect
information received or communicated, or of
administrative error;
(e) settlement or compromise of any claims or debts
arising from the operation of the Plan and the
commencement of any legal actions or administrative
proceeding.
4.4 RECORDS AND REPORTS
The Committee shall keep a record of its proceedings
and acts and shall keep books of account, records and other
data necessary for the proper administration of the Plan.
Following each Valuation Date, the Committee shall
provide each Participant with a detailed statement of his
Account, including all transactions affecting his Account
during the calendar quarter of reference, and reflecting
the most recent valuation of his Account.
4.5 REQUIRED INFORMATION
The Company, Participants or Beneficiaries entitled to
benefits shall furnish forms and any information or
evidence as requested by the Committee for the proper
administration of the Plan. Failure on the part of any
Participant or Beneficiary to comply with such request
within a reasonable
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period of time shall be sufficient grounds for delay in
the payment of benefits until the information or evidence
requested is received.
4.6 PAYMENT OF EXPENSES OF PLAN
The expenses of the Committee in connection with the
administration of the Plan shall be the responsibility of
the Company.
4.7 INDEMNIFICATION
The Company shall indemnify and hold the members of
the Committee harmless against liability incurred in the
administration of the Plan, except for the gross negligence
or willful misconduct of any member.
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ARTICLE 5
ELIGIBILITY FOR PARTICIPATION
5.1 INITIAL ELIGIBILITY
(a) Each Key Employee on the Effective Date will be
eligible to participate in the Plan as of such date.
(b) Each other Key Employee will be eligible to
participate in the Plan as of the January 1 following
the attainment of his status as a Key Employee in
accordance with Section 4.2.
5.2 VOLUNTARY PARTICIPATION
Participation in the Plan by Key Employees is entirely
voluntary. As further specified in Section 6.2, a Key
Employee must sign an election form and submit the signed
form to the Committee before the date he elects to become a
Participant of the Plan.
5.3 COMMITTEE RULES AND REGULATIONS
The Committee shall, through the adoption of a set of
rules and regulations, provide for methods used in advising
a Key Employee of his eligibility in the Plan, and all
forms necessary for the Key Employee to elect to
participate.
5.4 CESSATION OF PARTICIPATION
(a) For purposes of Articles 6, 7 and 11, an individual
shall cease to be a Participant on the earliest of:
(i) the date on which he ceases to be a Key Employee;
(ii) the date on which he terminates employment with
the Company; and
(iii) the date on which the Plan terminates.
(b) For all other plan purposes, an individual shall cease
to be a Participant on the date the total vested value
of his Account has been paid.
(c) Notwithstanding the foregoing Subsections (a) and (b),
in the event that the Department of Labor (DOL) issues
regulations or other official notice specifically
defining the group of employees that may participate
in a plan of this type and any current Participants
do not meet the criteria set forth in the DOL
regulations or notice, such Participants shall be
deemed to be
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individuals described under Subsection (a)(i) as of
the later of the effective date or publication date
of the notice or regulations, provided such notice or
regulations include a grandfather provision for such
participants with respect to their account balances on
such date. In the event no such grandfather provision
is provided, the accounts of such participants shall
be distributed in accordance with the last paragraph
of Subsection 12.1(a).
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ARTICLE 6
PARTICIPANT ALLOCATIONS
6.1 VOLUNTARY DEFERRAL ALLOCATIONS
(a) Until the date of his cessation of participation
in accordance with Subsection 5.4(a), a Participant
may, as of the Effective Date or, if later, when
first eligible or any January 1 thereafter elect
to reduce his
1. Base Compensation by any fixed percentage
("Regular Deferral Rate") for a current Plan
Year up to a maximum of 25% of such Regular
Compensation, or
2. Bonus Compensation by any fixed percentage
("Bonus Deferral Rate") for a current Plan Year up
to a maximum of 100% of such Bonus Compensation,
and to have a corresponding amount credited to his
Accounts, in accordance with Section 4.2, by
filing a the applicable forms in accordance with
Section 6.2.
The deferral shall be made from Regular or Bonus
Compensation as the Participant shall specify;
however, to the extent the deferral is to be made
from Bonus Compensation and no or insufficient Bonus
or Quarterly Cash Profit Sharing is paid, the
deferral shall be reduced.
(b) A Participant's Voluntary Deferral Allocations
made in accordance with Subsection (a) shall take
the form of before tax deferrals to the Participant's
Voluntary Deferral Allocation Account. In the event
that a Participant's Compensation should increase or
decrease during the Plan Year, his allocations
shall automatically be adjusted to reflect such
change.
(c) Notwithstanding the foregoing, a Participant may not
make contributions to this Plan during any period for
which contributions must be suspended in accordance
with regulation section 1.401(k)-1(d)(2)(iii)(B)(3)
of the Code, as a condition of the Participant's
receipt of a hardship withdrawal from any plan of
the Company which includes a qualified cash or
deferred arrangement under section 401(k) of the Code.
(d) The amount of Compensation that a Participant elects
to defer shall be credited to the Participant's
Accounts as soon as practicable, but no longer than
30 days following the date on which the Participant
is paid the nondeferred portion of the compensation
which is the source of the deferral.
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(e) The minimum amount a Participant may defer for any
Plan Year with respect to
(i) his Regular Deferral Rate is $1,000.
(ii) his Bonus Deferral Rate is $1,000.
There shall be no minimum amount with respect to the
Participant's Profit Sharing Deferral Rate
6.2 FORMS REQUIRED
A Participant shall elect to contribute on forms and
in the manner prescribed by the Committee. A new election
must be made prior to each Plan Year for which the
Participant is eligible to participate in the Plan, even if
the Participant does not elect to contribute for such Plan
Year.
6.3 IRREVOCABLE ELECTION
A Participant may not modify or discontinue his
allocations for a Plan Year after the first day thereof.
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ARTICLE 7
COMPANY ALLOCATIONS
7.1 DISCRETIONARY ALLOCATIONS
(a) The Company intends to allocate, for each Plan Year,
such amounts as it shall determine.
(b) The Company's allocation, if made, shall be allocated
to each Participant in an amount to be determined
by the Company.
Notwithstanding the foregoing provision, a Participant
shall be entitled to a share of the Company's
allocation, if any, for the Plan Year of (i) his
Retirement, Disability or death, (ii) the commencement
or end of a leave of absence authorized by the Company
or (iii) his transfer to another business entity
to which such Participant had been transferred by
the Company, even if the Participant is not in the
employ of the Company on the last business day of
such Plan Year.
7.2 SUPPLEMENTAL EXECUTIVE BENEFIT PROGRAM ALLOCATION
For Participants who were Participants of the Plan on
January 31, 1995, the Company shall allocate an amount
equal to the actuarial present lump sum value as of the
Supplemental Effective Date of the Participant's "Benefit
Account" as such term is defined in accordance with the
terms and provisions of the Plan prior to this restatement.
Such amount shall be accounted for separately from the
Participant's Voluntary Deferral Allocations and the
Company's Discretionary Allocations.
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ARTICLE 8
ESTABLISHMENT OF ACCOUNTS
8.1 ESTABLISHMENT OF ACCOUNTS
The following Accounts shall be established with
respect to each Participant:
(a) Retirement Account,
(b) Education Account, and
(c) Fixed Period Account.
8.2 ACCOUNT AND SUBACCOUNT ALLOCATION
(a) Each Participant shall submit to the Committee
before the beginning of the Plan Year of reference
a written statement specifying the respective
percentages of the Participant's Voluntary Deferral
Allocations and Company's Discretionary Allocations
which are to be allocated to the Accounts listed in
Subsection 8.1 and described more fully in Article 11.
Notwithstanding the foregoing, the Company's
Supplemental Executive Benefit Program Allocation
shall automatically be allocated to the Retirement
Account and shall remain so invested until
distributed in accordance with Article 12.
(b) The minimum amount which may be allocated to each
Account and, if applicable, to each subaccount,
is $1,000.
8.3 IRREVOCABLE ALLOCATION
An Eligible Employee may not amend or revoke an allocation
made for or during a Plan Year.
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ARTICLE 9
MAINTENANCE, INVESTMENT AND VALUATION OF ACCOUNTS
9.1 MAINTENANCE OF ACCOUNTS
The Committee shall establish and maintain a separate
accounting in the name of each Participant, to which it
shall credit all amounts allocated in accordance with
Articles 6 and 7 and all earnings as determined in
accordance with Section 9.2 and 9.3.
9.2 DEEMED INVESTMENT FUND ELECTION
(a) Initial Election - Each Participant shall designate,
in multiples of 10%, one or more of the funds
referenced in Section 9.3 for the purpose of
attributing earnings to his Account.
If the Participant fails to designate such funds,
the entire Account shall be deemed to be invested
under the most conservative of the funds selected
by the Committee in accordance with Section 9.3 (e.g.
a money market fund or a fixed income fund).
(b) Subsequent Election - A Participant may, by written
election at least 10 days prior to the January,
April, July or October 1 as of which an election
is to be effective, change his fund election with
respect to subsequent allocations but, until changed,
a fund election shall remain in effect for all
subsequent Plan Years.
(c) Transfer Election - A Participant may, by written
election change his fund election with respect
to his then existing Account, provided such change
(i) results in multiples of 10% in any one fund
and (ii) is applied to the ending balance
determined as of the applicable Valuation Date. Such
change shall become effective as soon as
administratively possible.
(d) Such elections shall be the basis for the valuation
of a Participant's Account in accordance with Section
9.4 but shall not require the Company to actually
place assets in such funds or purchase any specific
assets for purposes of the Plan.
9.3 FUNDS
The Committee shall choose investment vehicles on which
to base the imputed earnings of Participant Accounts.
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Prior to the beginning of each Plan Year, the
Committee, in its sole discretion, shall determine the
general fund categories and the specific investment
vehicles to be offered to Participants and shall notify the
Participants of its decisions.
Each Participant's Accounts shall be valued based upon
the performance of the deemed investment fund ("fund")
selected by the Participant. Such valuation shall reflect
the net asset value expressed per share of the designated
fund(s). The fair market value of a fund shall be
determined by the Plan Administrator. It shall represent
the fair market value of all securities or other property
held for the respective fund, plus cash and accrued
earnings, less accrued expenses and proper charges against
the fund to the extent that they are not otherwise paid by
the Company in accordance with Subsection 9.4. A valuation
summary shall be prepared as of each Determination Date.
9.4 ALLOCATION OF EARNINGS AND EXPENSES
(a) On the basis of the valuation as of a Valuation
Date, the Accounts of all Participant's shall be
(i) proportionately adjusted to reflect the deemed
investment earnings such as interest, dividends,
realized and unrealized investment profits and losses
and (ii) directly adjusted to reflect all other
applicable transactions during the Plan Year
attributable to such Accounts including, but not
limited to, any allocations or distributions.
(b) In addition to its allocations, the Company may pay all
the administrative expenses of the Plan and all fees
and retainers of the Plan's accountants, counsel,
consultant, administrator or other specialist so
long as the Plan remains in effect.
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ARTICLE 10
FUNDING LIMITATIONS
10 .1 BENEFIT STATUS
(a) All benefits under the Plan are unfunded obligations
of the Company.
(b) At no time shall a Participant or the Participant's
Beneficiary have any right, title or interest in or
to any specific fund or assets of the Company.
(c) As to any claim for benefits under the Plan, the
Participant or the Participant's Beneficiary shall
be a creditor of the Company in the same manner as
any other creditor having a general claim for unpaid
compensation.
10 .2 INVESTMENT AND BENEFIT PAYMENT OBLIGATION OF THE COMPANY
(a) Nothing contained herein shall require the Company
to set aside or earmark any monies or other assets
specifically for payments under the Plan.
(b) Neither the Company nor any Trustee shall be
obligated to purchase or maintain any asset, and
any reference to investments is solely for the
purpose of computing the value of benefits.
(c) Neither this Plan nor any action taken pursuant
to the terms of this Plan shall be considered
to create a fiduciary relationship between the Company
and the Plan Participants or any other persons, or to
establish a trust in which the assets are beyond the
claims of any unsecured creditor of the Company.
(d) Benefits are payable as they become due irrespective
of any actual investments the Company may make to
meet its obligations.
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ARTICLE 11
VESTING
11.1 UPON RETIREMENT
Upon eligibility for Retirement, a Participant shall have
a 100% vested interest in his Account.
11.2 UPON DEATH OR DISABILITY TERMINATION
Upon the death of a Participant, such Participant's
Beneficiary shall be entitled to a 100% vested interest in
the Participant's Account.
11.3 UPON OTHER TERMINATION OF EMPLOYMENT
Upon termination of a Participant's employment prior
to his Retirement or death, the vested interest to which he
shall be entitled with respect to
(a) his Voluntary Deferral Allocations and any deemed
investment experience attributable thereto shall
be 100%;
(b) his Company Allocations and any deemed investment
experience attributable thereto shall be determined
in accordance with the vesting schedule for Company
contributions and any related provisions under the
terms of the Company's qualified Profit Sharing Plan.
Notwithstanding the foregoing, that portion of his
Company Allocations attributable to the Company's
Supplemental Executive Benefit Program Allocation
shall be 100% vested at all times.
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ARTICLE 12
REGULATIONS GOVERNING DISTRIBUTION OF BENEFITS
12.1 RETIREMENT ACCOUNT.
(a) COMMENCEMENT OF BENEFIT.
If a Participant terminates employment for any reason,
including death, the Company shall pay such
Participant or his Beneficiary, if applicable, a
benefit in the form determined under Subsection (b),
based on the value of his Retirement Account as of
the Participant's Determination Date as soon as
administratively practicable following such
Determination Date.
Notwithstanding the foregoing paragraph, if an
individual ceases to be a Participant in accordance
with Subsection 5.4(c) and the circumstances
described in the last sentence of such Subsection
apply, the total value of his Retirement Account
shall be distributed as soon as administratively
practicable following the later of the effective date
or publication date of the DOL notice or regulations.
(b) METHOD OF DISTRIBUTION
(i) UPON NORMAL OR DEFERRED RETIREMENT
Distribution of the Participant's Retirement
Account as a result of the Participant's
Retirement shall be in one of the following
forms at the Participant's election, subject to
the rules set forth in Subsection (d).
(A) a single lump sum.
(B) substantially equal annual installments over
a period of not less than two nor more than
ten full years.
Notwithstanding the foregoing, if the
Participant's Retirement Account has a
value less than $10,000 at the time benefits
are to commence, then the Participant's
benefit shall be paid as a lump sum as soon as
administratively feasible following the
Participant's Determination Date.
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(ii) UPON DEATH, DISABILITY TERMINATION OR OTHER
TERMINATION OF EMPLOYMENT (EXCLUDING NORMAL OR
DEFERRED RETIREMENT)
Distribution of the Participant's Retirement
Account as a result of the Participant's
death, Disability Termination Date or other
termination of employment (excluding Normal
or Deferred Retirement) shall be in a single
lump sum.
(c) DETERMINATION OF BENEFITS
(i) In the event that the Participant elects to
have his benefits distributed in accordance
with Subsection (b)(i)(A), he shall receive a
single lump sum equal to the total vested
value of his Account determined as of his
Determination Date.
(ii) In the event that the Participant elects to
have his benefits distributed in accordance
with Subsection (b)(i)(B), the
(A) amount of the first payment shall be
determined by multiplying the vested
value of the Participant's Account as
of his Determination Date by a fraction,
(1) the denominator of which equals the
number of years over which the
benefits are to be paid; and
(2) the numerator of which is one.
(B) amounts of the payments for each
succeeding year shall be determined by
multiplying the vested value of the
Participant's Account as of the
applicable anniversary of his
Determination Date by a fraction,
(1) the denominator of which equals the
number of remaining years over which
the benefits are to be paid; and
(2) the numerator of which is one.
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(d) ELECTION OF FORM OF BENEFIT PAYMENT.
(i) A Participant shall elect the form in which
his benefits are payable in accordance
with Subsection (b).
Such elections must be made when the
Participant makes his initial election to
participate in the Plan in accordance with
Article 5.
(ii) Notwithstanding the foregoing, the Participant
may elect to change the form(s) elected in
accordance with Paragraph (i), provided
such new election is made at least one full
calendar year prior to the Participant's
Normal or Deferred Retirement.
(iii) Any election made pursuant to this Article
shall be made on forms and in the manner
prescribed by the Committee and shall be
irrevocable, except as provided in Paragraph
(ii).
12.2 EDUCATION ACCOUNT.
(a) If a Participant remains continuously employed by the
Company until January 1 of the calendar year in which
an Eligible Dependent attains age 18, the Company shall
pay to the Participant a benefit, as soon after such
January 1st and each of the next three anniversaries
thereof as administratively practicable, determined
as of the Valuation Date immediately preceding or
coinciding with each such January 1st as follows:
January 1st Percentage of Eligible
Year Dependent's Subaccount
----------- ----------------------
1 25%
2 33-1/3%
3 50%
4 100%
(b) Subject to the requirements of Section 7.2, a
Participant may establish subaccounts under his
Education Account by designating Eligible Dependents.
A Participant may have a maximum of five such
subaccounts at any time. A Participant's election
pursuant to Section 8.2 shall apply uniformly to each
subaccount.
(c) If a Participant terminates his employment for any
reason with a balance in his Education Account, the
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balance shall be transferred to his Retirement Account
and distributed in accordance with Subsections 12.1(a)
and (b); but no later than he would have received his
benefit as provided in Subsection 12.2(a) above.
(d) Notwithstanding any provision to the contrary, if on
the January 1 of the calendar year in which an
Eligible Dependent of a Participant attains age 18,
the Eligible Dependent's subaccount has a balance of
less than $10,000, then the Plan Administrator shall
direct that the balance be paid to the Participant in
one lump sum.
(e) If an Eligible Dependent dies prior to the payment of
the full amount credited to his subaccount, the
balance shall be paid to the Participant as soon as
administratively practicable following the Valuation
Date coinciding with or immediately following the
Eligible Dependent's death.
(f) For purposes of this Section, "Eligible Dependent"
means an individual who is a child, stepchild,
grandchild, niece or nephew, or who is otherwise
identified as a dependent of a Member for purposes of
the Code who is living at any time throughout the
Enrollment Period and who is either younger than
age 14 or younger than age 18 but for whom a
subaccount was initially established pursuant to
Subsection (b) prior to his attaining age 14.
12.3 FIXED PERIOD ACCOUNT.
(a) A benefit equal to the lump sum value of the
Participant's Fixed Period Account determined as of
the Valuation Date coinciding with or immediately
preceding the January 1 of the payment year specified
by the Participant shall be paid to him as soon as
administratively practicable thereafter.
(b) A Participant shall designate the payment year in
the written statement by which the Fixed Period
Account is established. The minimum deferral period
for such account shall be four Plan Years.
Subject to the requirements of Section 7.2, a
Participant may establish subaccounts under his Fixed
Period Account, with separate payment years for each.
A Participant may have a maximum of two such
subaccounts at any time.
A Participant's election pursuant to Section 8.2
shall apply uniformly to each subaccount.
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(c) If a Participant's employment terminates for any
reason and the Participant has a balance in his Fixed
Period Account, the balance shall be transferred to
his Retirement Account and be distributed in
accordance with Subsections 12.1(a) and (b); but no
later than he would have received his benefit as
provided in Subsection 12.3(a) above.
12.4 CLAIM PROCEDURE FOR BENEFITS
(a) Any request for specific information with respect
to benefits under the Plan must be made to the
Committee in writing by a Participant or his
Beneficiary. Oral communications will not be
recognized as a formal request or claim for benefits.
(b) The Committee shall provide adequate notice in
writing to any Participant or Beneficiary whose claim
for benefits under the Plan has been denied, (i)
setting forth the specific reasons for such denial;
specific references to pertinent plan provisions; a
description of any material and information which had
been requested but not received by the Committee; and,
(ii) advising such Participant or Beneficiary that any
appeal of such adverse determination must be in
writing to the Committee, within such period of time
designated by the Committee but, until changed, not
more than 60 days after receipt of such notification,
and must include a full description of the pertinent
issues and basis of such claim.
(c) If the Participant or Beneficiary fails to appeal
such action to the Committee in writing within the
prescribed period of time, the Committee's adverse
determination shall be final.
(d) If an appeal is filed with the Committee, the
Participant or Beneficiary shall submit such issues he
feels are pertinent and the Committee shall reexamine
all facts, make a final determination as to whether
the denial of benefits is justified under the
circumstances, and advise the Participant or
Beneficiary in writing of its decision and the
specific reasons on which such decision was based,
within 60 days of receipt of such written request,
unless special circumstances require a reasonable
extension of such 60-day period.
12.5 SUBSTITUTE PAYEE
If a Participant or Beneficiary entitled to receive any
benefits hereunder is in his minority, or is, in the
judgment of the Committee, legally, physically, or mentally
incapable of personally receiving and receipting any
distribution, the
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Committee may make distributions to a legally appointed
guardian or to such other person or institution as, in
the judgment of the Committee, is then maintaining or has
custody of the payee.
12.6 SATISFACTION OF LIABILITY
After all benefits have been distributed in full to a
Participant or to his Beneficiary, all liability to such
Participant or to his Beneficiary shall cease.
12.7 NONASSIGNABILITY
No benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, and any such action shall be
void for all purposes of the Plan. No benefit shall in any
manner be subject to the debts, contracts, liabilities,
engagements or torts of any person, nor shall it be subject
to attachments or other legal process for or against any
person, except to such extent as may be required by law.
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ARTICLE 13
BENEFICIARY DESIGNATION
13.1 Each Participant, upon becoming eligible for participation
in the Plan, may designate a Beneficiary to receive the
benefits payable in the event of his death, and designate a
successor Beneficiary to receive any benefits payable in the
event of the death of any other Beneficiary.
13.2 A Participant may change his Beneficiary at any time. All
Beneficiary designations and changes shall be made on an
appropriate form as designated by the Committee and filed
with the Committee.
13.3 If no person shall be designated by the Participant, or if
the designated Beneficiary shall not survive the
Participant, payment of his interest shall be made to the
Participant's estate.
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ARTICLE 14
AMENDMENT AND TERMINATION
14.1 AMENDMENT
The Company may amend or otherwise modified the Plan by
resolution of its Board of Directors, in whole or in part,
either retroactively or prospectively, provided that no
amendment or modification shall, with respect to allocations
already credited, change the amount of allocations under
Article 6 or Article 7 or increase the vesting requirements
under Article 10.
14.2 TERMINATION
The Plan may be terminated at any time at the discretion of
the Company by resolution of its Board of Directors.
Written notification of such action shall be given to each
Participant, the Trustee and the Committee. Thereafter, no
further allocations or credits shall be made to the Plan.
As soon as administratively feasible following termination
of the Plan, the Committee shall distribute the amount in
each Account to or on behalf of the Participant or
Beneficiary entitled thereto.
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ARTICLE 15
GENERAL PROVISIONS
15.1 LIMITATION OF RIGHTS
Neither the establishment of the Plan or the Trust
Agreement, nor any modification thereof, nor the creation of
an account, nor the payment of any benefits shall be
construed as giving any Participant, Beneficiary, or any
other person whomsoever, any legal or equitable right
against the Company, the Trustee or the Committee unless
such right shall be specifically provided for in the Plan or
the Trust Agreement or conferred by affirmative action of
the Committee in accordance with the terms and provisions of
the Plan; or as giving any Participant the right to be
retained in the service of the Company, and all Participants
and other employees shall remain subject to discharge to the
same extent as if the Plan had never been adopted.
15.2 CONSTRUCTION OF AGREEMENT
The Plan shall be construed according to the laws of the
State of Ohio, and all provisions hereof shall be
administered according to, and its validity shall be
determined under, the laws of Ohio where preempted by
Federal law.
15.3 SEVERABILITY
Should any provision of the Plan or any regulations adopted
thereunder be deemed or held to be unlawful or invalid for
any reason, such fact shall not adversely affect the other
provisions or regulations unless such invalidity shall
render impossible or impractical the functioning of the Plan
and, in such case, the appropriate parties shall immediately
adopt a new provision or regulation to take the place of the
one held illegal or invalid.
15.4 TITLES AND HEADINGS
The titles and headings of the Articles in this instrument
are for convenience of reference only and, in the event of
any conflict, the text rather than such titles or headings
shall control.
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15.5 BINDING UPON SUCCESSORS
The liabilities under the Plan shall be binding upon any
successor or assign of the Company and any purchaser of the
Company or substantially all of the assets of the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Plan to be
duly executed this 1st day of March, 1995.
ATTEST: By: /s/ Bruce J. Hach
------------------------------
President
/s/ Mary A. McCray
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Asst. Secretary