COLEMAN MONTHLY SALARIED
RETIREMENT INCENTIVE SAVINGS PLAN
(Effective as of January 1, 1996)
COLEMAN MONTHLY SALARIED
RETIREMENT INCENTIVE SAVINGS PLAN
CONTENTS
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SECTION PAGE
ARTICLE I. THE PLAN
1.1 Establishment of the Plan 1
1.2 Applicability of the Plan 1
ARTICLE II. DEFINITIONS
2.1 Definitions 2
2.2 Gender and Number 10
ARTICLE III. PARTICIPATION AND SERVICE
3.1 Participation 11
3.2 Duration of Participation 11
3.3 Eligibility Service 11
3.4 Hours of Service 13
3.5 Vesting Service 13
3.6 Severance from Service 14
3.7 One-Year Period of Severance 14
3.8 Leased Employees 15
3.9 Special Provisions for Participants Who Enter the
Armed Forces 16
3.10 Transferred Employees 16
3.11 Family & Medical Leave Act 16
ARTICLE IV. CONTRIBUTIONS
4.1 Before-Tax and Matching Contributions 17
4.2 Application of Forfeitures 18
4.3 Limitations on Contributions 18
4.4 Contributions Not Contingent on Profits 24
4.5 Limitations on Annual Account Additions 24
4.6 Rollover Contributions 26
ARTICLE V. VESTING IN ACCOUNTS
5.1 Before-Tax and Rollover Contributions Accounts 28
5.2 Matching Contributions Accounts 28
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COLEMAN MONTHLY SALARIED
RETIREMENT INCENTIVE SAVINGS PLAN
CONTENTS
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SECTION PAGE
ARTICLE VI. DISTRIBUTIONS AND WITHDRAWALS
6.1 Distribution Upon Retirement, Death, or Disability 29
6.2 Distribution Upon Severance from Service for
Reasons Other Than Retirement, Death, or Disability 29
6.3 Forfeitures 30
6.4 Commencement of Distributions 31
6.5 Method of Distribution 33
6.6 In-Service Withdrawals 33
6.7 Required Distributions 34
6.8 Withholding Taxes 35
6.9 Restrictions on Distribution of Before-Tax
Contributions Account 35
6.10 Loans and Withdrawals to Members 36
6.11 Direct Rollovers of Eligible Distributions 38
ARTICLE VII. INVESTMENT ELECTIONS
7.1 General 40
ARTICLE VIII. ACCOUNTS AND RECORDS OF THE PLAN
8.1 Accounts and Records 42
8.2 Trust Fund 42
8.3 Valuation and Allocation of Expenses 42
8.4 Allocation of Earnings and Losses 42
ARTICLE IX. FINANCING
9.1 Financing 43
9.2 Contributions 43
9.3 Nonreversion 43
9.4 Rights in the Trust Fund 43
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COLEMAN MONTHLY SALARIED
RETIREMENT INCENTIVE SAVINGS PLAN
CONTENTS
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SECTION PAGE
ARTICLE X. ADMINISTRATION
10.1 Plan Administrator and Fiduciary 44
10.2 Compensation and Expenses 44
10.3 Manner of Action 44
10.4 Chairman, Secretary, and Employment of
Specialists 44
10.5 Assistance 45
10.6 Records 45
10.7 Rules 45
10.8 Administration 45
10.9 No Enlargement of Employee Rights 46
10.10 Appeals from Denial of Claims 46
10.11 Notice of Address and Missing Persons 47
10.12 Data and Information for Benefits 47
10.13 Indemnity for Liability 48
10.14 Effect of a Mistake 48
10.15 Self Interest 48
ARTICLE XI. AMENDMENT AND TERMINATION
11.1 Amendment and Termination 49
11.2 Limitations on Amendments 49
11.3 Effect of Bankruptcy and Other Contingencies
Affecting an Employer 50
ARTICLE XII. TOP-HEAVY PROVISIONS
12.1 Application of Top-Heavy Provisions 51
12.2 Definitions 51
12.3 Minimum Contribution 53
12.4 Limit on Annual Additions: Combined Plan Limit 54
12.5 Collective Bargaining Agreements 54
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COLEMAN MONTHLY SALARIED
RETIREMENT INCENTIVE SAVINGS PLAN
CONTENTS
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SECTION PAGE
ARTICLE XIII. PARTICIPATION IN AND
WITHDRAWAL FROM THE PLAN BY AN
EMPLOYER
13.1 Participation in the Plan 55
13.2 Withdrawal from the Plan 56
ARTICLE XIV. MISCELLANEOUS
14.1 Beneficiary Designation 57
14.2 Incompetency 57
14.3 Nonalienation 58
14.4 Applicable Law 59
14.5 Severability 59
14.6 No Guarantee 59
14.7 Merger, Consolidation, or Transfer 59
14.8 Internal Revenue Service Approval 59
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ARTICLE I. THE PLAN
1.1 ESTABLISHMENT OF THE PLAN
Effective January 1, 1996, the New Coleman Holdings Inc. hereby establishes a
savings plan for the benefit of its Eligible Employees and Eligible Employees of
participating Affiliates and shall be known as the "Coleman Monthly Salaried
Retirement Incentive Savings Plan" (referred to in this document as the "Plan").
The Plan is intended to be qualified as a profit sharing plan under Code section
401(a).
1.2 APPLICABILITY OF THE PLAN
The provisions set forth in this document are applicable only to Employees in
the employ of an Employer on or after the Effective Date.
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ARTICLE II. DEFINITIONS
2.1 DEFINITIONS
Whenever used in the Plan, the following terms shall have the respective
meanings set forth below unless otherwise expressly provided herein, and when
the defined meaning is intended the term is capitalized.
(a) "ACCOUNT" means the separate account maintained for each Member which
represents the Member's total proportionate interest in the Trust Fund as
of any Valuation Date and which consists of the sum of the following
subaccounts:
(1) "BEFORE-TAX CONTRIBUTIONS ACCOUNT" means that portion of the Member's
Account which evidences the value of the Before-Tax Contributions made
on the Member's behalf by an Employer pursuant to section 4.1(a),
including any gains and losses of the Trust Fund attributable thereto;
and
(2) "MATCHING CONTRIBUTIONS ACCOUNT" means that portion of the Member's
Account which evidences the value of the Matching Contributions made
on the Member's behalf by an Employer pursuant to section 4.1(b),
including any gains and losses of the Trust Fund attributable thereto.
(3) "ROLLOVER CONTRIBUTIONS ACCOUNT" means that portion of the Member's
Account which evidences the value of a Member's Rollover Contributions
made by the Member pursuant to section 4.6, including any gains and
losses of the Trust Fund attributable thereto.
(b) "AFFILIATE" means--
(1) any corporation other than the Company, i.e., either a subsidiary
corporation or an affiliated or associated corporation of the Company,
which together with the Company is a member of a "controlled group" of
corporations (as defined in section 414(b) of the Code);
(2) any organization which together with the Company is under "common
control" (as defined in section 414-C- of the Code);
(3) any organization which together with the Company is an "affiliated
service group" (as defined in section 414(m) of the Code); or
(4) any other entity required to be aggregated with the Company pursuant
to regulations under section 414(o) of the Code.
- - -C- "BEFORE-TAX CONTRIBUTIONS" means the contributions made by an Employer on
behalf of a Participant pursuant to the Participant's election to reduce
Compensation as described in section 4.1(a).
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(d) "BENEFICIARY" means a Beneficiary as described in section 14.1.
(e) "BOARD" means the Board of Directors of the Company.
(f) "CODE" means the Internal Revenue Code of 1986, as amended.
(g) "COMPANY" means New Coleman Holdings Inc.
(h) "COMPENSATION" means a Participant's pay, determined as follows:
(1) For all purposes of the Plan, except as otherwise specified,
Compensation means an Employee's--
(A) base pay,
(B) bonuses,
(C) overtime,
(D) commissions,
(E) shift differentials,
(F) standard hourly incentive system payments,
(G) salary reductions pursuant to a Company-sponsored cafeteria plan
(under Code section 125) or a Company-sponsored cash-or-deferred
arrangement (under Code section 401(k)),
(H) amounts excluded from income pursuant to a dependent care
assistance program (under Code section 129),
(I) income from stock options exercised by the Employee,
(J) paid time off, and
(K) vacation pay.
(2) For all purposes of the Plan, except as otherwise specified,
Compensation does not mean an Employee's--
(A) special assignment premium pay,
(B) per diem payments,
(C) location allowances,
(D) relocation allowances,
(E) separation pay,
(F) consulting fees,
(G) educational assistance payments, and
(H) incentive compensation awards.
(3) For purposes of satisfying the limits on contributions described in
section 4.3(b) and -C- (ADP and ACP tests) and applying the limits of
section 415 of the Code as described in section 4.5, Compensation
includes all of the items listed below as includible (to the extent
applicable) and excludes all of the items listed below as excludable
(to the extent applicable) in a Plan Year basis:
(A) INCLUDIBLE.
(I) The Employee's wages, salaries, fees, for professional
services, and other amounts received (without regard
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to whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with
the Employer and any Affiliates to the extent that the
amounts are includible in gross income (including, but not
being limited to, commissions paid salesmen, compensation
for services on the basis of a percentage of profits,
commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances
under a nonaccountable plan (as described in Treasury
regulation section 1.62-2(c));
(ii) Amounts described in Code sections 104(a)(3), 105(a), and
105(h), but only to the extent that these amounts are
includible in the Employee's gross income;
(iii) Amounts paid or reimbursed by the Employer or any Affiliate
for moving expenses incurred by the Employee, but only to
the extent that at the time of the payment it is reasonable
to believe that these amounts are not deductible by the
Employee under Code section 217;
(iv) The value of a nonqualified stock option granted to an
Employee by the Employer or any Affiliate, but only to the
extent that the value of the option is includible in the
Employee's gross income for the taxable year in which it is
granted; and
(v) The amount includible in an Employee's gross income upon
making the election described in Code section 83(b).
Compensation under clause (I) includes foreign earned income as
defined in Code section 911(b), whether or not excludable from
gross income under Code section 911.
Compensation under clause (I) is to be determined without regard
to the exclusions from gross income in Code sections 931 and 933.
(B) EXCLUDABLE.
(I) Contributions made by the Employer or any Affiliate to a
plan of deferred compensation to the extent that, before
the application of the Code section 415 limitations to that
plan, the contributions are not includible in the
Employee's gross income for the taxable year in which they
are contributed;
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(ii) Contributions made by the Employer or any Affiliate on an
Employee's behalf to a simplified employee pension
described in Code section 408(k) (such contributions are
not considered as compensation for the taxable year in
which contributed);
(iii) Distributions from a plan of deferred compensation,
regardless of whether such amounts are includible in the
Employee's gross income when distributed, except that
amounts received by an Employee pursuant to an unfunded,
nonqualified plan are permitted to be considered as
Compensation for Code section 415 purposes in the year in
which the amounts are includible in the Employee's gross
income;
(iv) Amounts realized from the exercise of a nonqualified stock
option, or when restricted stock (or property) held by an
Employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture within the
meaning of Code section 83 and regulations thereunder;
(v) Amounts realized from the sale, exchange, or other
disposition of stock acquired under a qualified stock
option; and
(vi) Other amounts which receive special tax benefits, such as
premiums for group-term life insurance (but only to the
extent that the premiums are not includible in the
Employee's gross income).
(4) For purposes of determining whether an individual is a Highly
Compensated Employee, Compensation means an Employee's Compensation as
defined in paragraph (2) of this section 2.1(h) but without regard to
Code sections 125, 402(a)(8), and 402(h)(1)(B) (i.e., with the
addition of elective deferrals pursuant to a cafeteria plan, a cash-
or-deferred arrangement, or a simplified employee pension).
The Compensation of each Employee that may be taken into account under this
subsection for a Plan Year (except in applying the limits of section 415 of
the Code as described in section 4.5) shall not exceed $150,000 subject to
adjustment under Code section 401(a)(17). In determining the Compensation
of an Employee for purposes of this limitation, the rules of Code section
414(q)(6) shall apply, except
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that in applying such rules, the term "family" shall include only the
Employee's spouse and any lineal descendants of the Employee who have not
attained age 19 before the close of the Plan Year.
(I) "DISABILITY" means a Participant's total and presumably permanent inability
to engage in any occupation or employment for wage or profit as a result of
bodily injury or disease, either occupational or nonoccupational in cause.
To constitute a Disability, such condition must have existed for a period
of six consecutive months (unless this requirement is waived by the Plan
Administrator on a basis that does not discriminate in favor of Highly
Compensated Employees), and the condition must not have been contracted,
suffered, or incurred while the Participant was engaged in a felonious
criminal enterprise, or as a result of the Participant's chronic alcoholism
or addiction to narcotics, or an intentionally self-inflicted injury.
Determination of whether a Disability has been incurred shall be made by
the Plan Administrator on the basis of qualified medical evidence
satisfactory to the Plan Administrator.
(j) "EFFECTIVE DATE" means January 1, 1996.
(k) "ELIGIBILITY SERVICE" means a period or periods of employment of an
Employee by an Employer or a nonparticipating Affiliate as described in
section 3.3.
(l) "ELIGIBLE EMPLOYEE" means an Employee of an Employer, excluding any
Employee who is--
(1) not on the Employer's United States payroll;
(2) included in a unit of employees covered by an agreement which the
Secretary of Labor finds to be a collective bargaining agreement
between employee representatives and any Employer, if there is
evidence that retirement benefits were the subject of good faith
bargaining between such employee representative and such Employer
unless, pursuant to such bargaining, the Employee is required to be an
Eligible Employee; or
(3) a leased employee within the meaning of Code section 414(n).
(4) included in a group listed in Appendix A attached to the Plan
document;
(5) any person employed by the Company on a weekly or hourly basis in the
continental United States.
(m) "EMPLOYEE" means a person who is employed by the Company or an Affiliate.
(n) "EMPLOYER" means the Company and any other Affiliate which elects to become
a party to the Plan, with the approval of the Company, by adopting the Plan
for the benefit of its Eligible Employees in the manner described in
section 13.1.
(o) "EMPLOYMENT COMMENCEMENT DATE" means the day on which an Employee first
performs an Hour of Service for an Employer or nonparticipating Affiliate
or, if applicable, the first day following a
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One-Year Period of Severance on which an Employee performs an Hour of
Service for an Employer or nonparticipating Affiliate.
(p) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
(q) "HIGHLY COMPENSATED EMPLOYEE" means, with respect to any Plan Year, any
Employee who at any time during the preceding Plan Year (or such other
period as the Company may elect pursuant to Treasury regulations)--
(1) received compensation (as defined in section 2.1(h)(3) of the Plan)
from the Employer and all Affiliates in excess of $99,000,
(2) received compensation (as defined in section 2.1(h)(3) of the Plan)
from the Employer and all Affiliates in excess of $66,000 and was in
the top-paid 20 percent of Employees,
(3) was an officer who received compensation (as defined in section
2.1(h)(3) of the Plan) from the Employer and all Affiliates in excess
of 50 percent of the amount in effect under Code section 415(b)(1)(A)
for the preceding Plan Year, or
(4) was a 5-percent owner.
Unless the Company makes the "calendar year calculation election" under
Treasury regulations, Highly Compensated Employee also means, with respect
to any Plan Year, any Employee who, at any time during that Plan Year, met
the descriptions contained in paragraph (1), (2), or (3) and was among the
top-paid 100 Employees or any Employee who was a 5-percent owner. A family
member of a Highly Compensated Employee and a former employee shall be
treated as a Highly Compensated Employee to the extent required by sections
414(q)(6) and (9) of the Code and the regulations thereunder. The dollar
limits described in paragraphs (1), (2), and (3) will be adjusted to
reflect increases in the cost of living, in the manner and at the times
prescribed by the Secretary of the Treasury.
In determining who is a Highly Compensated Employee, the following rules
shall apply:
(A) For purposes of determining the number of employees in the top-paid 20
percent, the following employees are excluded:
(I) employees who have not completed six months of service;
(ii) employees who normally work less than 17-1/2 hours per week;
(iii) employees who normally work during not more than six months
during any Plan Year;
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(iv) employees who have not attained age 21; and
(v) to the extent allowable under Treasury regulation section
1.414(q)-1T, employees covered by a collective bargaining
agreement between employee representatives and the Company or an
Affiliate.
(B) The number of officers is limited to 50 (or, if lesser, the greater of
three employees or 10 percent of employees), excluding those employees
described in (A)(I), (ii), (iii), (iv), and (v) above.
-C- When no officer has compensation in excess of the dollar limit
described in (3) above (as adjusted for increases in the cost of
living as prescribed by the Secretary of the Treasury), the highest
paid officer is treated as highly compensated.
(D) A Highly Compensated Employee shall include a former employee who
separated from service prior to the Plan Year and who was an active
Highly Compensated Employee for either (I) the year the employee
separated from service, or (ii) any Plan Year ending on or after the
employee's fifty-fifth birthday.
(r) "HOUR OF SERVICE" means a period of employment, as defined in section 3.4.
(s) "INVESTMENT FUND" means any investment fund established by the Plan
Administrator as an investment medium for the Trust Fund. The Plan
Administrator shall have the discretion to establish and terminate such
funds as it deems appropriate.
(t) "MATCHING CONTRIBUTIONS" means the contributions made by an Employer on
behalf of a Participant, conditioned on the making of Before-Tax
Contributions, as described in section 4.1(b).
(u) "MEMBER" means a Participant, or a former Participant who still has an
Account balance in the Plan.
(v) "ONE-YEAR PERIOD OF SEVERANCE" means a period of absence from employment,
as described in section 3.7.
(w) "PARTICIPANT" means any Employee of an Employer who has met and continues
to meet the eligibility requirements of the Plan as set forth in section
3.1(a).
(x) "PLAN" means Coleman Monthly Salaried Retirement Incentive Savings Plan, as
provided herein and as subsequently amended from time to time.
(y) "PLAN ADMINISTRATOR" means the entity which has been designated as the
"plan administrator" as provided in section 10.1.
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(z) "PLAN YEAR" means (1) the period beginning on the Effective Date and ending
on December 31, 1994 and (2) each 12-consecutive-month period thereafter
ending each December 31.
(aa) "ROLLOVER CONTRIBUTION" means those contributions made by an Employee
Participant as described in section 4.6.
(bb) "SEVERANCE FROM SERVICE" means an absence from employment, as described in
section 3.6.
(cc) "TRUST AGREEMENT" means any agreement establishing a trust, which forms
part of the Plan, to receive, hold, invest, and dispose of the Trust Fund.
(dd) "TRUSTEE" means the corporation, or individual or individuals, or
combination thereof, acting as trustee under the Trust Agreement at any
time of reference.
(ee) "TRUST FUND" means the assets of every kind and description held under the
Trust Agreement.
(ff) "VALUATION DATE" means
(1) each business day of the Plan Year
(2) such other dates as determined by the Company pursuant to a
nondiscriminatory policy.
(gg) "VESTING SERVICE" means a period or periods of employment of an Employee by
an Employer or a nonparticipating Affiliate as described in section 3.5.
2.2 GENDER AND NUMBER
Unless the context clearly requires otherwise, the masculine pronoun whenever
used shall include the feminine and neuter pronoun, and the singular shall
include the plural.
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ARTICLE III. PARTICIPATION AND SERVICE
3.1 PARTICIPATION
(a) ELIGIBILITY REQUIREMENTS-for each Eligible Employee hired on or after
January 1, 1996, and effective January 1, 1997 for any eligible employee
unless they had previously satisfied the requirements for participation in
the Plan, who is or who becomes an Eligible Employee on or after the
Effective Date shall be eligible to participate in the Plan on the later
of--
(1) the Effective Date, or
(2) the first day of the January, April, July, or October coinciding with
or next following the completion of one year of Eligibility Service
and the attainment of age 21.
(b) COMMENCEMENT OF PARTICIPATION. Each Eligible Employee who is eligible to
participate according to subsection (a) shall become a Participant by
making the election to have Before-Tax Contributions made on his behalf in
accordance with section 4.1(a). Such election must be made upon first
becoming eligible to participate, otherwise it can only be made as the
first day of any subsequent payroll period.
- - -C- ROLLOVER CONTRIBUTIONS. An Eligible Employee shall be eligible to make a
Rollover Contribution before becoming eligible to participate, provided
that the Employee shall be deemed a Participant only to the extent of the
Employee's Rollover Contribution and not for any other purpose until the
Employee otherwise is eligible to be and becomes a Participant for all
purposes hereunder.
3.2 DURATION OF PARTICIPATION
A Participant shall continue to be a Participant until the Participant
terminates employment with all Employers and Affiliates; thereafter, the
Participant shall be a Member for as long as the Participant has an Account
balance in the Plan.
3.3 ELIGIBILITY SERVICE
For purposes of determining eligibility to participate in the Plan, an Employee
shall be credited with one year of Eligibility Service at the end of the 12-
consecutive-month period beginning on the Employee's Employment Commencement
Date and ending on the first anniversary thereof, if the Employee completes
1,000 or more Hours of Service during such period. If an Employee fails to
complete 1,000 or more Hours of Service during such period, the Employee shall
be credited with one year of Eligibility Service, for purposes of eligibility to
participate, upon the Employee's completion of
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1,000 Hours of Service in any Plan Year, beginning with the Plan Year that
contains the first anniversary of the Employee's Employment Commencement Date.
An Employee who is employed by the Company or an Affiliate on the Effective Date
shall be credited with the years of "Eligibility Service" credited to him under
The Coleman Retirement Incentive Savings Plan as of the Effective Date, and as
otherwise required under the service crediting rules of the Code.
3.4 HOURS OF SERVICE
An Employee shall receive credit for Hours of Service for purposes of the Plan,
as follows:
(a) One hour for each hour for which the Employee is paid, or entitled to
payment, by an Employer or nonparticipating Affiliate for the performance
of duties during the applicable computation period for which the Employee's
Hours of Service are being determined under the Plan.
(b) One hour for each hour, in addition to the hours in subsection (a) above,
for which the Employee is directly or indirectly paid, or entitled to
payment, by an Employer or nonparticipating Affiliate, on account of a
period of time during which no duties are performed due to vacation,
holiday, illness, disability, layoff, jury duty, military duty, or leave of
absence. Not more than 501 hours shall be credited under this subsection
(b) on account of any single continuous period during which the Employee
performs no duties.
- - -C- One hour for each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Employer or nonparticipating
Affiliate, with no duplication of credit for hours.
(d) Hours of Service shall be credited in accordance with the rules of
Department of Labor regulation 2530.200(b)-2(b) and (c), which are
incorporated herein by reference.
3.5 VESTING SERVICE
An Employee shall be credited with Vesting Service for his period of employment
with an Employer and each nonparticipating Affiliate, determined as follows:
(a) Vesting Service shall be determined in completed years and days, with each
365 days constituting one year.
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(b) An Employee who is employed by the Company or an Affiliate on the Effective
Date shall be credited with the years of "Vesting Service" credited to him
under The Coleman Retirement Incentive Savings Plan as of the Effective
Date.
- - -C- On or after the Effective Date, an Employee shall receive credit for
Vesting Service from the later of the Employee's Employment Commencement
Date or the Effective Date until the Employee's Severance from Service,
except as otherwise required under the service crediting rules of Section
411 of the Code.
(d) If an Employee who has had a Severance from Service is subsequently
reemployed as an Employee--
(1) If the Employee is reemployed before a One-Year Period of Severance
occurs, the Vesting Service the Employee had at such Severance shall
be reinstated upon the Employee's reemployment and, if such Severance
from Service resulted from quit, discharge, or retirement, the
Employee shall receive credit for Vesting Service for the period
between the Employee's Severance from Service and the Employee's
reemployment.
(2) If the Employee is reemployed after a One-Year Period of Severance
occurs, the Vesting Service the Employee had at such Severance from
Service shall be reinstated upon the Employee's reemployment but the
Employee shall not receive credit for Vesting Service for the period
between the Employee's Severance from Service and the Employee's
reemployment.
3.6 SEVERANCE FROM SERVICE
Severance from Service means the earlier of (a) or (b) below:
(a) the date the Employee quits, retires, is discharged, or dies, or
(b) the first anniversary of the first day of an Employee's absence from
employment with an Employer or nonparticipating Affiliate (with or without
pay) for any reason other than in (a) above, such as vacation, sickness,
leave of absence, layoff, or military service (except as otherwise provided
in section 3.9). An Employee who fails to return to employment at the
expiration of an absence shall be deemed to have had a Severance from
Service on the first to occur of the expiration of the Employee's absence
or the first anniversary of the first day of the Employee's absence.
3.7 ONE-YEAR PERIOD OF SEVERANCE
(a) A One-Year Period of Severance means each 12-consecutive-month period
beginning on the date an Employee incurs a Severance from
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Service and ending on each anniversary of such date, provided that the
Employee does not perform an Hour of Service for an Employer or any
nonparticipating Affiliate during such period.
(b) Solely for purposes of determining whether a One-Year Period of Severance
has occurred, if an Employee is absent from work beyond the first
anniversary of the first date of an absence and the absence is for
maternity or paternity reasons, the date the Employee incurs a Severance
from Service shall be the second anniversary of his absence from
employment. The Employee will not obtain Vesting Service for the period
between the first and second anniversary of the first date of his absence.
For purposes of this subsection, an absence from work for maternity or
paternity reasons means an absence (1) by reason of pregnancy of the
individual, (2) by reason of the birth of a child of the individual, (3) by
reason of the placement of a child with the individual in connection with
the adoption of such child by such individual, or (4) for purposes of
caring for such child for a period beginning immediately following such
birth or placement.
3.8 LEASED EMPLOYEES
A person who is not an Employee of an Employer or nonparticipating Affiliate and
who performs services for an Employer or a nonparticipating Affiliate pursuant
to an agreement between the Employer or nonparticipating Affiliate and a leasing
organization shall be considered a "leased employee" if such person performed
the services on a substantially full-time basis for a year and the services are
of a type historically performed by employees. A person who is considered a
"leased employee" of an Employer or nonparticipating Affiliate shall not be
considered an Employee for purposes of participating in this Plan or receiving
any contribution or benefit under this Plan. A leased employee shall be excluded
from this Plan regardless of whether the leased employee participates in any
plan maintained by the leasing organization. However, if a leased employee
participates in the Plan as a result of subsequent employment with an Employer
or nonparticipating Affiliate, such leased employee shall receive Eligibility
Service and Vesting Service for such employment as a leased employee.
Notwithstanding the preceding provisions of this section, a leased employee
shall be treated as an Employee for purposes of applying the requirements
described in section 414(n)(3) of the Code and for purposes of determining the
number and identity of Highly Compensated Employees.
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3.9 SPECIAL PROVISIONS FOR PARTICIPANTS WHO ENTER THE ARMED FORCES
If a Participant is absent from employment for voluntary or involuntary military
service with the armed forces of the United States and returns to employment
within the period required under the law pertaining to veterans' reemployment
rights, the Participant shall receive Eligibility Service and Vesting Service
for the period of the Participant's absence from employment.
3.10 TRANSFERRED EMPLOYEES
(a) An Employee who is transferred from a nonparticipating Affiliate into
employment where he becomes a Participant hereunder shall be credited with
Eligibility Service and Vesting Service for all of his employment with the
Employer and any nonparticipating Affiliate, before and after such
transfer. Such service shall be credited in accordance with sections 3.3
and 3.5, respectively.
(b) A Participant who is transferred to a nonparticipating Affiliate shall
continue to be credited with Eligibility Service and Vesting Service during
the period he is employed by a nonparticipating Affiliate. Such service
shall be credited in accordance with sections 3.3 and 3.5, respectively.
3.11 Family and Medical Leave Act
An Employee taking a leave of absence pursuant to the Family and Medical
Leave Act of 1993 ("FMLA") will be treated as continuing service while on a
FMLA leave for purposes of determining whether such Employee has incurred a
break in service.
14
ARTICLE IV. CONTRIBUTIONS
4.1 BEFORE-TAX AND MATCHING CONTRIBUTIONS
For each pay period, each Employer shall contribute to the Plan on behalf of
that Employer's Participants an amount equal to the sum of (a) Before-Tax
Contributions and (b) Matching Contributions, determined as follows:
(a) BEFORE-TAX CONTRIBUTIONS. Each Participant may elect, on a form provided by
the Plan Administrator, to reduce the Participant's annual Compensation by
1%, 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9%, or 10%, and to have the amount by which
the Participant's Compensation is reduced contributed on the Participant's
behalf by the Employer as a Before-Tax Contribution to the Plan. The Plan
Administrator shall have the right to amend the Plan to increase the
permissible amount of Before-Tax Contributions on a uniform basis, provided
that the Compensation reduction shall not exceed 16 percent.
(1) INITIAL ELECTION. A Participant's initial election must be made
effective as of the Effective Date or the first day of the January,
April, July, or October immediately after becoming eligible to
participate, otherwise such election can only be made effective as of
the first day of any subsequent payroll period upon such prior notice
to the Plan Administrator as the Plan Administrator may reasonably
require. If an Employee was eligible to participate in The Coleman
Retirement Incentive Savings Plan on the day before the Effective Date
of this Plan such employee's initial election (both contribution
percentage and investment election) under this Plan shall be deemed to
be identical to the election the Employee had in place under The
Coleman Retirement Incentive Savings Plan on such date.
(2) ELECTION CHANGES. The Participant may elect on a form provided by the
Plan Administrator to increase or decrease the Participant's
Compensation reductions upon such prior notice to the Plan
Administrator as the Plan Administrator may reasonably require (within
the percentage limits stated above) as of the first day of any payroll
period. A Participant may elect on a form provided by the Plan
Administrator to cease future Compensation reductions as of any pay
period with such prior notice to the Plan Administrator as the Plan
Administrator may reasonably require. Upon ceasing future Compensation
reductions, an election to again reduce Compensation may only be made
as of the first day of any subsequent payroll period.
(3) IMPLEMENTATION. The Plan Administrator may adopt rules concerning the
administration of this subsection. The Before-Tax Contributions made
on behalf of each Participant shall be paid by each Employer to the
Trustee as soon as practical after the end of every pay period and
allocated to such Participant's Before-Tax Contributions Account as of
the end of the pay period.
15
(b) MATCHING CONTRIBUTIONS. For each pay period, each Employer shall make a
Matching Contribution, on behalf of each Participant who is actively
employed by the Employer as of the end of such pay period, equal to 33 1/3
percent of the Before-Tax Contributions made on the Participant's behalf
during the pay period; provided, however, the percentage of Before-Tax
contributions selected for the Matching Contributions by the Employer shall
be the same for each Participant employed by the Employer and the Matching
Contributions shall not exceed 33 1/3 percent of the first 6 percent of any
Participant's Compensation for any Plan Year.
Upon notice to Employees, the Plan Administrator shall have the right to
vary, suspend, or modify the Matching Contribution to be made on behalf of
Each Employer at any time and from time to time, provided that employees
shall, following receipt of notice, be given the opportunity to modify
their Before-Tax Contributions.
At the election of the Employer, the Matching Contributions may be made
with a contribution of shares of common stock of The Coleman Company, Inc.,
with the amount of contribution per share to be equal to the New York Stock
Exchange closing price for such stock on the last day of trading prior to
the date of the Matching Contribution to this Plan.
4.2 APPLICATION OF FORFEITURES
Forfeitures occurring during any Plan Year in the Account of a Member shall, to
the extent necessary under section 6.3-C- or (d), be applied to restore
forfeitures of reemployed Members. Thereafter, any remaining forfeitures shall
be treated as an additional Matching Contribution and allocated to the Accounts
of all Participants of that Employer who are active Eligible Employees entitled
to receive an allocation of a Matching Contribution as of the end of such Plan
Year. The forfeitures shall be allocated to the Accounts of such Participants in
the same manner as the Employer's Matching Contributions for that Plan Year.
4.3 LIMITATIONS ON CONTRIBUTIONS
(a) DOLLAR LIMIT ON BEFORE-TAX CONTRIBUTIONS. In no event shall any Employer
make Before-Tax Contributions for any calendar year, with respect to any
Participant, in excess of the limit prescribed under Code section 402(g)
(as adjusted by the Secretary of the Treasury to reflect increases in the
cost of living). This limit shall be applied by aggregating all plans and
arrangements maintained by the Company and all Affiliates that provide for
elective deferrals (as defined in section 402(g) of the Code).
16
If this limit would be exceeded by contributions to this Plan, the Plan
Administrator shall distribute the amount of such excess (plus earnings
thereon) to the Member. Excess elective deferrals means elective deferrals
(under section 402(a)(8) of the Code) in excess of the annual limit on such
deferrals in section 402(g) of the Code. Excess elective deferrals, plus
any income and minus any loss attributable thereto, shall be distributed no
later than April 15 to any Participant to
17
whose account such excess elective deferrals were assigned for the
preceding year and who claims excess elective deferrals for such taxable
year.
(b) ACTUAL DEFERRAL PERCENTAGE ("ADP") TEST. In no event shall any Employer
make Before-Tax Contributions for any Plan Year that would result in the
actual deferral percentage of the group of Highly Compensated Employees
eligible to participate in the Plan to exceed the greater of--
(1) one and one-quarter times the actual deferral percentage of the group
of all other Eligible Employees; or
(2) the lesser of (A) two times the actual deferral percentage of the
group of all other Eligible Employees or (B) the actual deferral
percentage of the group of all other Eligible Employees plus two
percentage points.
The actual deferral percentage of each group of Eligible Employees for any
Plan Year shall be the average of the ratios (calculated separately for
each Eligible Employee in each group) of (I) the Before-Tax Contributions
made on behalf of each Eligible Employee for such Plan Year to (ii) such
Eligible Employee's Compensation, earned while such Employee was an
eligible employee within the meaning of Treasury regulation section
1.401(k)-1(g)(4)(I) for such Plan Year. To the extent necessary to conform
to such limitation, the Plan Administrator shall reduce Before-Tax
Contributions made on behalf of the Highly Compensated Employees. Such
reduction shall be effected by reducing contributions made on behalf of
Highly Compensated Employees (in the order of their actual deferral
percentages) beginning with the Highly Compensated Employees who elected
the highest percentage of such contributions.
Any such reduction in the Before-Tax Contributions made on
behalf of any Participant shall be refunded to the Participant as soon as
administratively possible, together with any income allocable to such
excess contributions for the Plan Year for which the excess contributions
were made, as provided in the rules adopted by the Plan Administrator at
the time. In no event, however, shall such excess contributions or such
income allocable thereto be left undistributed any later than the last day
of the Plan Year following the Plan Year in which such excess contributions
were made.
18
For purposes of the ADP test described in this subsection--
(A) A Before-Tax Contribution will be taken into account for a Plan Year
only if it relates to Compensation that either would have been
received by the Eligible Employee in the Plan Year (but for the
deferral election) or is attributable to services performed by the
Eligible Employee in the Plan Year and would have been received by the
Eligible Employee within 2-1/2 months after the close of the Plan
Year (but for the deferral election); and
(B) A Before-Tax Contribution will be taken into account for a Plan Year
only if it is allocated to the Eligible Employee as of a date within
that Plan Year. For this purpose, a Before-Tax Contribution is
considered allocated as of a date within a Plan Year if the allocation
is not contingent on participation or performance of services after
such date and the Before-Tax Contribution is actually paid to the
Trust Fund no later than 12 months after the Plan Year to which the
contribution relates.
- - -C- ACTUAL CONTRIBUTION PERCENTAGE ("ACP") TEST. In no event shall Matching
Contributions for any Plan Year be made which would result in the
contribution percentage of the group of Highly Compensated Employees
eligible to participate in the Plan to exceed the greater of--
(1) one and one-quarter times the contribution percentage of the group of
all other Eligible Employees; or
(2) the lesser of (A) two times the contribution percentage of the group
of all other Eligible Employees or (B) the contribution percentage of
the group of all other Eligible Employees plus two percentage points.
The contribution percentage of each group of Eligible
Employees for any Plan Year shall be the average of the ratios (calculated
separately for each Eligible Employee in each group) of (I) the Matching
Contributions made on behalf of each Eligible Employee for such Plan Year
to (ii) such Eligible Employee's Compensation earned while such Employee
was an eligible employee within the meaning of Treasury regulation section
1.401(m)-1(f)(4)(I) for such Plan Year. To the extent necessary to conform
to such limitation, the Plan Administrator shall reduce Matching
Contributions made on behalf of the Highly Compensated Employees in a
manner similar to the method used in subsection (b). Any such reduction in
the Matching Contributions made on behalf of any Participant shall be paid
to the Participant (if vested), or treated as a forfeiture under section
4.2 (if forfeitable). Such payment or forfeiture shall include any income
allocable to such excess contributions for the Plan Year for which the
19
excess contributions were made. In no event shall such excess contributions
or such income allocable thereto be paid to the Participant any later than
the last day of the Plan Year following the Plan Year in which such excess
contributions were made.
For purposes of the ACP test described in this subsection, a Matching
Contribution will be taken into account for a Plan Year only if it is (I)
made on account of the Eligible Employee's Before-Tax Contributions for the
Plan Year, (II) allocated to the Eligible Employee's matching Contributions
Account as of a date within that Plan Year, and (III) paid to the Trust
Fund by the end of the twelfth month following the close of that Plan Year.
(d) SPECIAL RULES. For purposes of determining whether the Plan satisfies the
average deferral percentage test of subsection (b) and the average
compensation percentage test of subsection (c), the following rules shall
apply:
(1) All elective contributions that are made under two or more plans that
are aggregated for purposes of section 401(a)(4) or 410(b) (other than
section 410(b)(2)(A)(ii)) are to be treated as made under a single
plan. All matching contributions made under two or more plans that are
similarly aggregated are to be treated as made under a single plan. If
two or more plans are permissively aggregated for purposes of section
401(k) or 401(m), the aggregated plans must also satisfy sections
401(a)(4) and 410(b) as though they were a single 401(k) plan or
401(m) plan (as applicable).
(2) In calculating the actual deferral percentage or the actual
contribution percentage, the actual deferral ratio or the actual
contribution ratio (as applicable) of a Highly Compensated Employee
will be determined by treating all cash-or-deferred arrangements or
all plans subject to section 401(m) (as applicable) under which the
Highly Compensated Employee is eligible (other than those that may not
be permissively aggregated) as a single arrangement. If a Highly
Compensated Employee participates in two or more cash-or-deferred
arrangements, or in two or more plans subject to section 401(m), that
have different plan years, all cash-or-deferred arrangements or
arrangements subject to section 401(m) (as applicable) ending with or
within the same calendar year shall be treated as a single
arrangement.
20
Notwithstanding the foregoing, plans shall be treated as separate if
mandatorily disaggregated under regulations under Code section 401(k)
or 401(m).
(3) In the case of a Highly Compensated Employee who is either a 5-percent
owner or one of the ten most Highly Compensated Employees and is
thereby subject to the family aggregation rules of section 414(q)(6)--
(A) the actual deferral ratio (ADR) for the family group (which is
treated as one Highly Compensated Employee) is the ADR determined
by combining the elective contributions, compensation, and
amounts treated as elective contributions of all eligible family
members, and
(B) the actual contribution rate (ACR) for the family group (which is
treated as one Highly Compensated Employee) is the greater of (I)
the ACR determined by combining the contributions and
compensation of all eligible family members who are Highly
Compensated Employees without regard to family aggregation, and
(ii) the ACR determined by combining the contribution and
compensation of all family members.
Except to the extent taken into account in the preceding sentence, the
elective contributions, compensation, and amounts treated as elective
contributions, and the contributions and compensation of all family
members are disregarded in determining the actual deferral percentages
and actual contribution percentages for the groups of Highly
Compensated Employees and nonhighly compensated employees.
(4) In the case of a Highly Compensated Employee whose actual deferral
ratio (ADR) or actual compensation ratio (ACR) is determined under the
family aggregation rules, the determination of the amount of excess
contributions shall be made as follows, in accordance with the
"leveling" method described in section 1.401(k)-1(f)(2) or
1.401(m)-1(e)(2) (as applicable) of the regulations:
(A) First, the ADR or ACR (as applicable) of the Highly Compensated
Employee with the highest ADR or ACR is reduced to the extent
necessary to satisfy the actual deferral percentage (ADP) test or
the actual contribution percentage (ACP) test (as applicable) or
cause such ratio to equal the ADR or ACR (as applicable) of the
Highly Compensated Employee with the next highest ratio.
21
(B) Second, this process is repeated until the ADP or ACP test (as
applicable) is satisfied.
(5) The amount of excess contributions and income allocable thereto to be
refunded shall be reduced by excess deferrals under subsection (a)
previously distributed for the taxable year ending in the same Plan
Year, and excess deferrals under subsection (a) to be distributed for
a taxable year will be reduced by excess contributions and income
allocable thereto previously distributed or recharacterized for the
Plan Year beginning in such taxable year.
(e) ADDITIONAL ACTION. The Plan Administrator may take such additional action
as it shall consider appropriate to ensure compliance with the requirements
of this section. Such action may include, but is not limited to, reducing
the maximum amount of Before-Tax Contributions under section 4.1(a) that
can be contributed on behalf of any group of Highly Compensated Employees.
(f) MULTIPLE-USE LIMITATION. To the extent required by rules issued under
section 401(m)(9) of the Code, the limits of this section shall be applied
in a manner that reflects any restrictions on the multiple use of the
alternative limitation contained in paragraph (2) of subsections (b) and
-C- of this section. Any such restriction on the multiple use of the
alternative limitation shall be implemented pursuant to uniform rules to
be adopted by the Plan Administrator.
(g) OTHER REQUIREMENTS. The determination of actual deferral percentage and
actual contribution percentage amounts of any Participant shall satisfy
such other requirements as may be permitted by the Secretary of the
Treasury.
4.4 CONTRIBUTIONS NOT CONTINGENT ON PROFITS
This Plan is designated as a profit sharing plan under section 401(a) of the
Code. However, payment by an Employer of contributions to the Plan shall not be
contingent upon the existence of current or accumulated profits of the Employer.
4.5 LIMITATIONS ON ANNUAL ACCOUNT ADDITIONS
(a) ANNUAL ACCOUNT ADDITION. "Annual Account Additions" (within the meaning of
Code section 415(c)(2) and applicable Treasury regulations) means for any
Participant for any Plan Year, which shall also be the limitation year, the
sum of--
22
(1) Employer contributions made for the Participant under any defined
contribution plan for such Plan Year, including excess deferrals
within the meaning of Treasury regulation section 1.402(g)-1(e)(3)
unless such excess amounts are distributed no later than April 15
following the close of the Participant's taxable year;
(2) such Participant's contributions to any defined contribution plan for
such Plan Year;
(3) forfeitures allocated to the Participant under any defined
contribution plan for such Plan Year; and
(4) contributions allocated on the Participant's behalf to any individual
medical account within the meaning of Code section 415(l)(2) or
attributable to medical benefits allocated to an account established
under Code section 419A(d).
"Any defined contribution plan" means all defined contribution plans of the
Company and Affiliates considered as one plan. For purposes of this
section, "Affiliate" shall have the meaning prescribed in section 2.1(b),
except that the phrase "more than 50%" shall be substituted for the phrase
"at least 80%" each place it appears in Code section 1563(a)(1).
A restored forfeiture pursuant to section 10.11 or a Rollover Contribution
pursuant to section 4.6 shall not be included as part of any Participant's
Annual Account Addition.
(b) LIMITATION. A Participant's Annual Account Addition for any Plan Year shall
not exceed the lesser of--
(1) the greater of $30,000, or one-fourth of the defined benefit dollar
limitation set forth in Code section 415(b) in effect for such
limitation year; or
(2) 25 percent of such Participant's Compensation for such Plan Year.
- - -C- ADDITIONAL LIMITATION. If in any Plan Year a Participant is covered both
under any defined contribution plan and under any defined benefit plan, the
sum of the defined benefit plan fraction (as defined in Code section
415(e)(2)) and the defined contribution plan fraction (as defined in Code
section 415(e)(3)) for such Plan Year shall not exceed one. It is intended
to reduce the benefits payable under any defined benefit plan to the extent
necessary to prevent the sum of such fractions for any Plan Year from
exceeding one before reducing contributions to any defined contribution
plan. "Any defined benefit plan" means all defined benefit plans of the
Company and Affiliates considered as one plan.
23
(d) REDUCTION IN ANNUAL ACCOUNT ADDITIONS. If in any Plan Year a Participant's
Annual Account Addition exceeds the limitation determined under subsection
(b) above, such excess shall not be allocated to the Participant's accounts
in any defined contribution plan but shall be handled in the following
manner and order until such excess is eliminated:
(1) the Participant's portion of the allocation of Before-Tax
Contributions or any part thereof (plus net income or appreciation
attributable thereto) shall be refunded to the Participant; and
(2) the Participant's portion of the allocation of Matching Contributions
or any part thereof shall be placed in a suspense account.
The amount held in such suspense account that is attributable to
contributions of an Employer shall be used to reduce contributions by that
Employer for the next following Plan Year.
Such suspense account shall share in the gains and losses of the Trust Fund
on the same basis as other Accounts.
The above reductions shall be applied to this Plan first, and thereafter to
any other defined contribution plan.
4.6 ROLLOVER CONTRIBUTIONS
An Employee of an Employer may, in accordance with procedures approved by the
Plan Administrator, contribute the following amounts to the Plan:
(a) part or all of a distribution or proceeds from a sale of distributed
property which qualifies as an "eligible rollover distribution" within the
meaning of section 6.1(b)(1) below from a trust described in section 401(a)
and exempt from tax under section 501(a); or
(b) a distribution from an individual retirement account or annuity, provided
the entire amount of the distribution is from a source described in (a)
above; or
- - -C- a trust-to-trust transfer from a prior employer's plan, provided that--
(1) the Employee can establish to the satisfaction of the Plan
Administrator that such prior employer's plan meets the qualification
requirements under Code section 401(a), and
(2) a trust-to-trust transfer shall not be permitted unless the amount
transferred is free of all defined benefit characteristics and does
not make the Plan a transferee plan under Code section
401(a)(11)(B)(iii)(III).
24
Such a contribution must be paid over to the Trustee (or transferred
directly from a prior plan) on or before the sixtieth day after receipt by
the Employee of the distribution and shall be held in the trust under this
Plan as a separate account in the name of the Employee whose interest is
being held. Such account shall be fully vested and nonforfeitable.
An account established to hold any Rollover Contributions shall be
distributable to the Employee at the same time and in the same manner, and
shall otherwise be subject to the same rules under the Plan, as a Before-
Tax Contributions Account maintained under the Plan.
25
ARTICLE V. VESTING IN ACCOUNTS
5.1 BEFORE-TAX AND ROLLOVER CONTRIBUTIONS ACCOUNTS
A Member shall at all times be fully vested and have a nonforfeitable interest
in such Member's Before-Tax Contributions Account and Rollover Contributions
Account.
5.2 MATCHING CONTRIBUTIONS ACCOUNTS
(a) GENERAL. A Member shall have a vested and nonforfeitable interest in that
portion of such Member's Matching Contributions Account in accordance with
the following schedule:
- - ------------------------------------------
- - ------------------------------------------
COMPLETED YEARS
OF VESTING SERVICE VESTED PERCENTAGE
- - ------------------------------------------
less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
- - ------------------------------------------
(b) ACCELERATED VESTING. Notwithstanding subsection (a) above, a Member shall
be fully vested and have a nonforfeitable interest in his entire Matching
Contributions Account if--
(1) the Member attains age 65 while still an Employee;
(2) the Member dies or suffers a Disability while an Employee; or
(3) contributions to the Plan are completely discontinued or the Plan is
terminated, or the Plan is partially terminated and such Member is
affected by such partial termination.
26
ARTICLE VI. DISTRIBUTIONS AND WITHDRAWALS
6.1 DISTRIBUTION UPON RETIREMENT, DEATH, OR DISABILITY
Normal retirement age under the Plan shall be age 65. Early retirement age shall
be age 55. Upon a Member's Severance from Service because of the Member's
retirement at or after age 55, or because of the Member's Disability or death,
there shall be distributed to the Member, or to the Member's Beneficiary in case
of the Member's death, the Member's Account, determined as of the Valuation Date
coincident with or next following the date of such Severance from Service, plus
any amounts credited to the Member's Account subsequent to such Valuation Date.
Unless the Member otherwise elects, such distribution shall be made as soon as
practicable following the later of Severance from Service and his sixty-fifth
birthday, subject to the requirements of section 6.4(b). The Member shall be
entitled to elect--
(a) an early distribution, to be made as soon as practicable following his
Severance from Service; or
(b) a deferred distribution, to be made no later than April 1 of the year
following the year the Member attains age 70 1/2.
The amount of any distribution shall be based on the value of the Member's
Account as of the date of distribution.
6.2 DISTRIBUTION UPON SEVERANCE FROM SERVICE FOR REASONS OTHER THAN RETIREMENT,
DEATH, OR DISABILITY
Upon a Member's Severance from Service for any reason other than his retirement,
death, or Disability, there shall be distributed to the Member the full amount
of his Before-Tax Contributions Account and Rollover Contributions Account and
the vested portion of his Matching Contributions Account, determined as of the
Valuation Date coincident with or next following the date of such Severance from
Service, plus any amounts credited to his Account subsequent to such Valuation
Date. If the nonforfeitable portion of a Member's Account exceeds $3,500 (or
such higher amount as may be permitted under applicable law or regulation),
then, unless the Member otherwise elects, such distribution shall be made on the
first day of the month coincident with or next following the Member's sixty-
fifth birthday. The Member shall be entitled to elect--
(a) an early distribution of such nonforfeitable portion, to be made as soon as
practicable following his Severance from Service; or
(b) a deferred distribution of such nonforfeitable portion, to be made no later
than April 1 of the year following the year the Member attains age 70 1/2.
The amount of any distribution shall be based on the value of the Member's
Account as of the date of distribution.
27
6.3 FORFEITURES
(a) If a Member's Severance from Service occurs before the Member's fifty-fifth
birthday and the nonforfeitable portion of his Account is not greater than
$3,500, the Member will receive a distribution of the value of the
nonforfeitable portion of his Account and the nonvested portion shall be
treated as a forfeiture on the day on which the distribution occurred.
(b) If either (1) a Member's Severance from Service occurs on or after his
fifty-fifth birthday or (2) the Member's Severance from Service occurs
before his fifty-fifth birthday and the nonforfeitable portion of his
Account is greater than $3,500, the Member may elect to receive a
distribution of the value of the nonforfeitable portion of his Account, in
which event the forfeitable portion of such Account will be treated as a
forfeiture on the day on which the distribution occurred.
- - -C- If a Member receives a distribution pursuant to subsection (a) or (b) which
is less than the value of his Account and he is reemployed by any Employer
or nonparticipating Affiliate prior to incurring five consecutive One-Year
Periods of Severance, the portion of such Account forfeited pursuant to
subsection (a) or (b) will be restored if the Member repays to the Plan the
full amount of the distribution. Such repayment must be made prior to the
fifth anniversary of the first date on which the Member is subsequently
reemployed by the Employer or any Affiliate.
The source for restoring forfeitures shall be first, Trust earnings or
gains, second, current forfeitures, and if insufficient, an additional
contribution by the Member's Employer.
Repaid distributions and restored forfeitures shall be invested in
Investment Funds designated by the Member.
(d) If a Member fails to elect to receive a distribution of the nonforfeitable
portion of his Account pursuant to subsection (b), the Member's Account
shall continue to be maintained and adjusted under sections 8.3 and 8.4
until the vested portion is distributed under the applicable provisions of
the Plan. The portion of the Member's Account which is not vested shall be
treated as a forfeiture on the day on which the Member has incurred five
consecutive One-Year Periods of Severance.
(e) If a Member incurs five consecutive One-Year Periods of Severance, or if
subsection -C- is applicable to the Member but the Member fails to make the
repayment described in such subsection, the Member shall
28
permanently forfeit the portion of the Member's Account that was not vested
pursuant to section 5.2 at the time of the Member's prior distribution or
at the time of completion of such five consecutive One-Year Periods of
Severance, as applicable.
(f) Forfeitures pursuant to subsections (a) and (b) shall be treated as though
they are Matching Contributions of the Employer whose Employees created the
forfeitures and shall be applied as described in section 4.2.
(g) If a Member has a Severance from Service when he is zero percent vested in
his Matching Contributions Account, he shall be deemed to have received a
distribution of his vested interest in his Account on the day on which such
Severance from Service occurred, and the nonvested portion of the Account
shall be treated as a forfeiture on such day.
If an individual is deemed to receive a distribution pursuant to this
subsection (g) and is reemployed by any Employer or nonparticipating
Affiliate prior to incurring five consecutive One-Year Periods of
Severance, the portion of the Member's Account forfeited pursuant to the
preceding provisions of this subsection shall be deemed repaid and shall,
accordingly, be restored upon such reemployment.
6.4 COMMENCEMENT OF DISTRIBUTIONS
(a) Subject to the provisions of sections 6.1 and 6.2, distributions pursuant
to sections 6.1 and 6.2 shall be made or commence to the Member as soon as
practicable following the Member's Severance from Service.
The amount of any distribution shall be based on the value of the Member's
Account as of the date of distribution.
(b) Distribution of a Member's Account will begin not later than the sixtieth
day after the later to close of the Plan Year in which--
(1) the Member attains his sixty-fifth birthday; or
(2) the Member's Severance from Service occurs.
- - -C- If a Member dies after the Member's Severance from Service but prior to
receiving the full distribution of the Member's Account to which the Member
is entitled under this Article VI, any unpaid balance thereof at the time
of the Member's death shall be distributed to the Member's Beneficiary in a
lump sum, to be distributed as soon as practicable and permissible under
the Code after the Member's death.
(d) Amounts payable hereunder shall continue to be maintained and adjusted
under sections 8.3 and 8.4 pending such payment.
The amount of any distribution shall be based on the value of the Member's
Account as of the date of distribution.
29
6.5 METHOD OF DISTRIBUTION
All distributions shall be in a lump sum and shall be in cash. Amounts payable
hereunder shall continue to be maintained and adjusted under sections 8.3 and
8.4 pending such payment.
6.6 IN-SERVICE WITHDRAWALS
(a) No in-service withdrawals shall be made from any Participant's Matching
Contributions Account. Subject to the requirements of this section, a
Participant may make a withdrawal from the Participant's Rollover
Contributions Account and (if that account is depleted) Before-Tax
Contributions Account either on account of hardship or after the
Participant has attained age 59 1/2. A hardship withdrawal shall be made
only if the withdrawal both is made on account of an immediate and heavy
financial need and is necessary to satisfy the financial need.
(b) A hardship withdrawal must be for--
(1) expenses for medical care described in Code section 213(d) previously
incurred by the Participant, the Participant's spouse, or any
dependents of the Participant (as defined in Code section 152) or
necessary for these persons to obtain medical care described in Code
section 213(d);
(2) costs directly related to the purchase of a principal residence for
the Participant (excluding mortgage payments);
(3) payments necessary to prevent the eviction of the Participant from the
Participant's principal residence or foreclosure on the mortgage on
that residence;
(4) payment of tuition and related educational fees for the next 12 months
of post-secondary education for the Participant, or the Participant's
spouse, children, or dependents (as defined in Code section 152); or
(5) such other "safe harbor" payments as the Internal Revenue Commissioner
permits in revenue rulings, notices, and other documents of general
applicability.
- - -C- A Participant's request for a hardship withdrawal must be accompanied or
supplemented by such evidence that the distribution is necessary to satisfy
the hardship as the Plan Administrator may reasonably require. A
distribution shall be deemed necessary to satisfy an immediate and heavy
financial need if--
(1) the distribution is not in excess of the amount of the Participant's
immediate and heavy financial need. The amount of such need
30
may include any amounts necessary to pay any federal, state, or local
income taxes or penalties reasonably anticipated to result from the
distribution;
(2) the Participant has obtained all distributions, other than hardship
distributions, and all nontaxable (at the time of the loan) loans
currently available under all plans maintained by the Company and
Affiliates;
(3) the Plan and all other plans maintained by the Company and Affiliates
limit (and the Plan does hereby so limit) the Participant's Before-Tax
Contributions for the next taxable year to the applicable limit under
Code section 402(g) for that year minus the Participant's Before-Tax
Contributions for the year of the hardship distribution;
(4) the Participant is prohibited (and the Participant is hereby
prohibited), for 12 months after receipt of the hardship distribution,
from making Before-Tax Contributions and employee contributions to the
Plan and all other plans maintained by the Company and Affiliates. For
purposes of the preceding sentences of this paragraph (4), "all other
plans" means all qualified and nonqualified plans of deferred
compensation maintained by the Company and Affiliates. The phrase
includes a stock option, stock purchase, or similar plan, or a cash-
or-deferred arrangement that is part of a cafeteria plan within the
meaning of Code section 125; and
(5) the distribution satisfies any other "safe harbor" requirements
prescribed by the Internal Revenue Commissioner in revenue rulings,
notices, or other documents of general applicability.
A Participant will be limited to one hardship or post-age 59 1/2 withdrawal
under this section in a Plan Year, except that a second withdrawal will be
allowed if it is a hardship withdrawal for payment of tuition described in
(b)(4) above.
A hardship distribution from a Participant's Before-Tax Contributions Account
may be made only from Before-Tax Contributions made to that Account, and may not
include any earnings thereon.
6.7 REQUIRED DISTRIBUTIONS
Notwithstanding anything to the contrary contained in this Article VI--
(a) In no event may the distribution of a Member's benefits be made later than
April 1 of the calendar year following the year in which the Member attains
age 70 1/2.
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(b) All distributions under this Plan shall be made in accordance with section
401(a)(9) of the Code and the regulations thereunder. Provisions of the
Plan regarding payment of distributions shall be interpreted and applied in
accordance with section 401(a)(9) of the Code and the regulations
thereunder.
6.8 WITHHOLDING TAXES
An Employer may withhold from a Member's compensation and the Trustee may
withhold from any payment under this Plan any taxes required to be withheld with
respect to contributions or benefits under this Plan and such sum as the
Employer or Trustee may reasonably estimate as necessary to cover any taxes for
which they may be liable and which may be assessed with respect to contributions
or benefits under this Plan.
6.9 RESTRICTIONS ON DISTRIBUTION OF BEFORE-TAX CONTRIBUTIONS ACCOUNT
Amounts attributable to a Member's Before-Tax Contributions shall not be
distributed earlier than upon one of the following events:
(a) The Member's retirement, death, Disability, or Separation from service;
(b) The termination of the Plan without establishment or maintenance of another
defined contribution plan (other than an employee stock ownership plan or a
simplified employee pension);
(c) The Member's attainment of age 59-1/2 or the Member's hardship as
described in section 6.6;
(d) The sale or other disposition by the Employer to an unrelated corporation
of substantially all of the assets used by the Employer in a trade or
business, but only with respect to Employees who continue employment with
the acquiring corporation, and provided (1) the acquiring corporation does
not maintain the Plan after the disposition; (2) the Employer continues to
maintain the Plan after the disposition; and (3) the distribution is in the
form of a lump sum; or
(e) The sale or other disposition by the Employer of its interest in a
subsidiary to an unrelated entity but only with respect to Employees who
continue employment with the subsidiary, and provided (1) the acquiring
entity does not maintain the Plan after the disposition, (2) the Employer
continues to maintain the Plan after the disposition; and (3) the
distribution is in the form of a lump sum.
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6.10 LOANS AND WITHDRAWALS TO MEMBERS
(a) AVAILABILITY OF LOANS. A Member who is a "party in interest," as defined
under section 3(14) of ERISA, may make application to the Plan
Administrator to borrow from the vested portion of his Account upon the
terms and conditions hereinafter specified.
(b) TERMS OF LOANS. In the event a Member receives a loan from his Account in
accordance with subsection (a), such loan shall be made upon the following
terms and conditions:
(1) AMOUNT. The amount of such loan shall not be less than $1,000 and
(when added to the balance of other outstanding loans from any defined
contribution plan of the Employer or a nonparticipating Affiliate)
shall not exceed the lesser of--
(A) $50,000 reduced by the excess (if any) of--
(I) the highest outstanding principal balance of all loans from
the Plan during the 12-month period ending on the day that
the loan is made, over
(ii) the outstanding balance of loans from the Plan on the day
the loan is made, or
(B) 50 percent of the nonforfeitable value of the Member's Account.
If a Member is also covered under another qualified plan maintained by
the Employer or a nonparticipating Affiliate, the limitation
prescribed in subparagraph (A) shall be applied as though all such
qualified plans are one plan.
(2) TERM. The term of such loan must be made on the basis of full years
and shall not exceed the earlier of--
(A) 5 years (10 years in the case of a loan for the acquisition of a
primary residence of the Member); or
(B) such Member's Severance from Service.
Any such loan shall not be renewable, except that if the term of a
loan was originally for a period of less than 5 years (10 years in the
case of a loan for the acquisition of a primary residence of the
Member), the Plan Administrator may, in its discretion, renew such
loan for a period of time equal to the difference between 5 years (10
years in the case of a loan for the acquisition of a primary residence
of the Member) and the duration of the original loan.
(3) APPROVAL, INTEREST, AND ORIGINATION FEE. The Plan Administrator shall
review loan applications and, within a reasonable period, as
determined by the Plan Administrator, shall grant or deny the
applications. The Plan Administrator shall make loans upon the receipt
of promissory notes which the Plan Administrator deems
33
satisfactory and which shall bear interest at a rate commensurate with
the prevailing interest rate charged on similar commercial loans made
by persons in the business of lending money under similar
circumstances, as determined by the Plan Administrator, then in
effect. The Plan Administrator may require each Member to pay a loan
origination fee, in an amount to be determined by the Plan
Administrator, which shall be included in the principal amount of the
loan. The account balances in each of the Investment Funds in which
the Member's Account is invested shall be reduced proportionately to
reflect the principal amount of the loan. The promissory notes shall
specify the time and manner of repayment, as determined by the Plan
Administrator.
(4) REPAYMENT. Payments of principal and interest shall be made in
approximately equal payments, at least monthly, on a basis that would
permit such loan to be amortized over its term. Prepayments of
principal and interest may only be made in whole at any time without
penalty. Loans to Members who are active Participants shall be repaid
only by payroll deductions.
(5) DEFAULT. In the event the note is not paid to the extent due and
payable on or before maturity, the Plan Administrator shall give
written notice to the Member by sending such notice to his last known
address, and if the due payment is not made within 30 days from the
date of such notice, the amount allocated to each Investment Fund in
which the Member's Account is invested shall be subject to a
proportionate reduction by the amount of unpaid principal and interest
to be paid on the unpaid balance at the time of a distribution under
Article VI.
(6) SATISFACTION FROM ACCOUNT. In the event of a distribution as provided
in Article VI before the loan is repaid in full, the unpaid principal
and interest on the unpaid balance of the loan shall become due and
payable, and the Plan shall satisfy the indebtedness from the Member's
Account in the following manner:
(A) first, from the Member's Rollover Account, if any;
(B) second, from the Member's Before-Tax Contributions Account, if
any; and
-C- third, from the Member's vested Matching Contributions Account,
if any,
before making any payments to the Member or to his Beneficiary.
34
(7) PAYMENT TO MEMBER. The Trustee shall be directed by the Plan
Administrator with regard to any approved loans, and upon such
direction the Trustee shall issue a check from the Trust Fund to the
Member for the amount of the approved loan.
- - -C- ADDITIONAL LOAN REQUIREMENTS.
(1) NONDISCRIMINATION. In making loans pursuant to this section, the Plan
Administrator shall treat all eligible Members under similar
circumstances alike, and loans shall not be made in any manner to
discriminate in favor of Employees who are Highly Compensated
Employees.
(2) NO MORE THAN ONE LOAN OUTSTANDING. An eligible Member may not have
more than one loan under this section outstanding at any time.
(3) TWELVE MONTHS BETWEEN LOANS. A Member shall not be eligible for a loan
under this section until at least 12 months have elapsed after the
repayment in full of any prior loan under this section.
6.11 DIRECT ROLLOVERS OF ELIGIBLE DISTRIBUTIONS
(a) GENERAL. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a distributee's election under this section, a
distributee may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the distributee
in a direct rollover.
(b) DEFINITIONS.
(1) ELIGIBLE ROLLOVER DISTRIBUTION. An eligible rollover distribution is
any distribution of all or any portion of the balance to the credit of
the distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint lives
(or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years or
more; any distribution to the extent such distribution is required
under Code section 401(a)(9); and the portion of any distribution that
is not includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities).
(2) ELIGIBLE RETIREMENT PLAN. An eligible retirement plan is an individual
retirement account described in Code section 408(a), an individual
retirement annuity described in Code section
35
408(b), an annuity plan described in Code section 403(a), or a
qualified trust described in Code section 401(a), that accepts the
distributee's eligible rollover distribution. However, in the case of
an eligible rollover distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or individual
retirement annuity.
(3) DISTRIBUTEE. A distributee includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse and the
Employee's or former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined
in Code section 414(p), are distributees with regard to the interest
of the spouse or former spouse.
(4) DIRECT ROLLOVER. A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the distributee.
36
ARTICLE VII. INVESTMENT ELECTIONS
SECTION 7.1
The Plan Administrator may, at any time, and from time to time, establish
or designate investment funds (hereinafter "Fund" or "Funds") for the investment
of contributions under this Plan and Trust. The Plan Administrator shall
formulate detailed written objectives and procedures for such Funds and the
administration of individually directed accounts. The Plan Administrator may
also supplement the rules of this Article by adopting written procedures
concerning the maintenance of individually directed accounts (sometimes
hereinafter referred to as "IDAs") for Participants. Each Participant shall
invest his or her Accounts among the Fund or Funds so established. In the event
any Participants fails or refuses to make a designation among the Fund or Funds
so established, such Participant's Account shall be credited to the most secure
Fund then existing (i.e., and Income Fund). All such Funds shall be established
and maintained in accordance with the following subsections:
(a) General. Each Participant shall have the exclusive right to direct the
Trustee (or designee) from time to time with respect to the investment
directions of the Participant, as long as these directions are clearly stated
(in writing or otherwise, with an opportunity for written confirmation of such
instructions), would not (I) generate unrelated business income or debt financed
income to the Plan that would be taxable under the code, (ii) cause the Plan to
engage in a prohibited transaction, (iii) be inconsistent with the Plan terms or
ERISA, or (iv) jeopardize the Plan's qualified status. The Trustee may require
the Participant's instructions to be provided in a manner acceptable to the
Trustee. Other than for compliance with the restrictions in (b) below, no
person shall have either the right nor the duty to inquire into the propriety of
any Participant's investment director or its effect upon the Participant's Fund
or Account. Any Participant investment direction shall be notwithstanding the
occurrence of any event or other development of which the Trustee has, or should
have, knowledge. Employer, its officers, directors, stockholders, or partners,
the Plan Administrator, Trustee, and any fiduciary hereunder shall not be liable
or responsible for any loss resulting from the individually directed investment
or to any present or future Beneficiary thereof, by reason of: (1) any sale or
investment made or other action taken pursuant to and in accordance with the
directions of any Participant under this Section, or (2) the acquisition or
retention of any asset including cash, which has been acquired pursuant to the
Participant's direction hereunder.
(b) Collectibles. No investment under this Section shall be made in any
"collectible." The term "collectible" means any work of art, rug, antique,
metal,
37
gem, stamp, coin, alcoholic beverage, or any other tangible personal property
specified by the Secretary for purposes of Section 408(m) of the Code.
(c) Costs. All reasonable costs and expenses of carrying out a Participant's
directions may be charged to the Participant Account under procedures
established by the Plan Administrator.
(d) Valuation of IDAs. IDAs shall be separately valued and adjusted to reflect
increases or decreases in the fair market value of the separate assets of each
IDA, accrued income and prepaid expenses, liabilities, etc., in accordance with
the customary valuation practices of the Trustee. IDAs shall be values as of
the annual Valuation Date and as of such other dates as may be necessary or
desirable for purpose of administration of those IDAs. For purposes of
determining the amount of a Participant's benefits or for purposes of making any
benefit distributions hereunder in the case of a terminated Participant, the
aggregate value of the Participant's IDA may be determined as of any appropriate
date selected by the Trustee.
Administrator has caused the necessary entries to be made in the Participants'
Accounts in the Investment Funds and has reconciled offsetting transfer
elections, in accordance with uniform rules therefor established by the Plan
Administrator.
38
ARTICLE VIII. ACCOUNTS AND RECORDS OF THE PLAN
8.1 ACCOUNTS AND RECORDS
The Accounts and records of the Plan shall be maintained by the Plan
Administrator and shall accurately disclose the status of the Accounts of each
Member or each Member's Beneficiary in the Plan.
Each Member shall be advised from time to time, at least once during each Plan
Year, as to the status of the Member's Account.
8.2 TRUST FUND
Each Member shall have an undivided proportionate interest in the Trust Fund
which shall be measured by the proportion that the market value of the Member's
Account bears to the total market value of all Accounts as of the date that such
interest is being determined.
8.3 VALUATION AND ALLOCATION OF EXPENSES
As of each Valuation Date, the Trustee shall determine the fair market value of
the Trust Fund after first deducting any expenses which have not been paid by
the Employers. Unless paid by the Employers and subject to such limitations as
may be imposed by ERISA or other applicable law, all costs and expenses incurred
in connection with the general administration of the Plan and the Trust shall be
chargeable to the Trust Fund.
All transactions shall be based upon the fair market value of the investment.
8.4 ALLOCATION OF EARNINGS AND LOSSES
As of each Valuation Date, the Plan Administrator, with the assistance of the
Trustee, shall allocate the net earnings and gains or losses of each Investment
Fund of the Trust Fund since the preceding Valuation Date to each Member's
Account in the same proportion that the market value of the Member's Account in
such Investment Fund bears to the total market value of all Members' Accounts in
such Investment Fund; and, for this purpose, the Plan Administrator shall adopt
uniform rules which conform to applicable law and generally accepted accounting
practices.
39
ARTICLE IX. FINANCING
9.1 FINANCING
The Company shall enter into a Trust Agreement in order to implement the
provisions of the Plan and to finance the benefits under the Plan. All rights
which may accrue to any person under the Plan shall be subject to all the terms
and provisions of such Trust Agreement. The Company may modify the Trust
Agreement in accordance with the terms of that Agreement from time to time to
accomplish the purposes of the Plan.
9.2 CONTRIBUTIONS
The Employers shall make such contributions to the Trust Fund as are required by
the provisions of the Plan, subject to the right of the Company to amend,
modify, or terminate the Plan.
9.3 NONREVERSION
No Employer shall have any right, title, or interest in the contributions made
to the Trust Fund, and no part of the Trust Fund shall revert to any Employer,
except that--
(a) If a contribution is made to the Trust Fund by an Employer by a mistake of
fact, then such contribution may be returned to such Employer within one
year after the payment of the contribution; and if any part or all of a
contribution is disallowed as a deduction under Code section 404, then to
the extent such contribution is disallowed as a deduction it may be
returned to such Employer within one year after the disallowance. All
contributions by an Employer are conditioned on their deductibility under
Code section 404.
(b) If the Internal Revenue Service initially determines that the Plan does not
meet the requirements of Code section 401, the Plan shall be null and void
from the Effective Date, and any contributions shall be returned to all
contributors within one year following the determination that the Plan does
not meet such requirements, unless the Company elects to make the changes
to the Plan necessary to receive a determination from the Internal Revenue
Service that the requirements of Code section 401 are met.
9.4 RIGHTS IN THE TRUST FUND
Persons eligible for benefits under the Plan are entitled to look only to the
Trust Fund for the payment of such benefits and have no claim against any
Employer, the Plan Administrator, or any other person. No person has any right
or interest in the Trust Fund except as expressly provided in the Plan.
40
ARTICLE X. ADMINISTRATION
10.1 PLAN ADMINISTRATOR AND FIDUCIARY
The Plan shall be administered by a committee appointed by the Board. The
committee shall be composed of as many members as the Board may appoint from
time to time and shall hold office at the pleasure of the Board. Any member of
the committee may resign by delivering a written resignation to the Board.
Vacancies in the committee arising by resignation, death, removal, or otherwise
shall be filled by the Board. The committee shall be the administrator of the
Plan within the meaning of section 3(16)(A) of ERISA, a fiduciary with respect
to the Plan within the meaning of section 3(21)(A)(I) and (iii) of ERISA, and
the named fiduciary under section 402 of ERISA. It shall also be the Plan
Administrator for purposes of the Plan.
10.2 COMPENSATION AND EXPENSES
A member of the committee shall serve without compensation for services as such
if the Member is receiving full-time pay as an Employee. Any other member of the
committee may receive compensation for services as a member, to be paid from the
Trust Fund to the extent not paid by the Employers. All expenses incurred in the
administration of the Plan shall be paid for by the Trust Fund to the extent not
paid by the Employers, and any member of the committee may receive reimbursement
by the Trust Fund of expenses properly and actually incurred to the extent not
paid by the Employers. Such expenses shall include any expenses incident to the
administration of the Plan, including, but not limited to, fees of accountants,
counsel, and other specialists.
10.3 MANNER OF ACTION
A majority of the members of the committee at the time in office shall
constitute a quorum for the transaction of business. All resolutions adopted and
other actions taken by the committee at any meeting shall be by a majority vote
of those present at any such meeting. Upon the unanimous concurrence in writing
of the members at the time in office, action of the committee may be taken
otherwise than at a meeting.
10.4 CHAIRMAN, SECRETARY, AND EMPLOYMENT OF SPECIALISTS
The members of the committee may elect one of their number as chairman and may
elect a secretary who may, but need not, be a member of the committee. They may
authorize one or more of their number or any agent
41
to execute or deliver any instrument or instruments on their behalf, and may
employ such counsel, auditors, and other specialists, and such clerical,
medical, actuarial, and other services as they may require in carrying out the
provisions of the Plan. Such expenses shall be paid by the Retirement Fund to
the extent not paid by the Employers.
10.5 ASSISTANCE
The committee may appoint one or more individuals and delegate such of its power
and duties as it deems desirable to any such individual, in which case every
reference herein made to the committee shall be deemed to mean or include the
individuals as to matters within their jurisdiction. Such individuals shall be
such officers or other employees of the Employers and such other persons as the
committee may appoint.
10.6 RECORDS
All resolutions, proceedings, acts, and determinations of the committee shall be
recorded by the secretary thereof or under such secretary's supervision, and all
such records, together with such documents and instruments as may be necessary
for the administration of the Plan, shall be preserved in the custody of the
secretary.
10.7 RULES
Subject to the limitations contained in the Plan, the committee shall be
empowered from time to time in its discretion to adopt bylaws and establish
rules for the conduct of its affairs and the exercise of the duties imposed upon
it under the Plan.
10.8 ADMINISTRATION
The committee shall be responsible for the administration of the Plan. The
committee shall have all such powers as may be necessary to carry out the
provisions hereof and may, from time to time, establish rules for the
administration of the Plan and the transaction of the Plan's business. In making
any such determination or rule, the committee shall pursue uniform policies as
from time to time established by the committee and shall not discriminate in
favor of or against any Member. The committee shall have the exclusive right to
make any finding of fact necessary or appropriate for any purpose under the Plan
including, but not limited to, the determination of the eligibility for and the
amount of any benefit payable under the Plan. The committee shall have the
exclusive right to interpret the provisions of the Plan and to determine any and
all questions
42
arising under the Plan or in connection with the administration thereof,
including, without limitation, the right to remedy or resolve possible
ambiguities, inconsistencies, or omissions, by general rule or particular
decision. The committee shall make, or cause to be made, all reports or other
filings necessary to meet both the reporting and disclosure requirements and
other filing requirements of ERISA which are the responsibility of "plan
administrators" under ERISA. To the extent permitted by law, all findings of
fact, determinations, interpretations, and decisions of the committee shall be
conclusive and binding upon all persons having or claiming to have any interest
or right under the Plan.
10.9 NO ENLARGEMENT OF EMPLOYEE RIGHTS
Nothing contained in the Plan shall be deemed to give any Employee the right to
be retained in the service of an Employer or to interfere with the right of an
Employer to discipline, discharge, or retire any Employee at any time.
10.10 APPEALS FROM DENIAL OF CLAIMS
If any claim for benefits under the Plan is wholly or partially denied, the
claimant shall be given notice in writing within a reasonable period of time
after receipt of the claim by the Plan (not to exceed 90 days after receipt of
the claim or, if special circumstances require an extension of time, written
notice of the extension shall be furnished to the claimant and an additional 90
days will be considered reasonable) by registered or certified mail of such
denial, written in a manner calculated to be understood by the claimant, setting
forth the following information:
(a) the specific reasons for such denial;
(b) specific reference to pertinent Plan provisions on which the denial is
based;
- - -C- 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
(d) an explanation of the Plan's claim review procedure.
The claimant also shall be advised that the claimant or the claimant's duly
authorized representative may request a review by the Plan Administrator of the
decision denying the claim by filing with the Plan Administrator, within 60 days
after such notice has been received by the claimant, a written request for such
review, and that the claimant may review pertinent documents, and submit issues
and comments in writing within
43
the same 60-day period. If such request is so filed, such review shall be made
by the Plan Administrator within 60 days after receipt of such request, unless
special circumstances require an extension of time for processing, in which case
the claimant shall be so notified and a decision shall be rendered as soon as
possible, but not later than 120 days after receipt of the request for review.
The claimant shall be given written notice of the decision resulting from such
review, which notice shall include specific reasons for the decision, written in
a manner calculated to be understood by the claimant, and specific references to
the pertinent Plan provisions on which the decision is based.
10.11 NOTICE OF ADDRESS AND MISSING PERSONS
Each person entitled to benefits under the Plan must file with the Plan
Administrator, in writing, such person's post office address and each change of
post office address. Any communication, statement, or notice addressed to such a
person at the latest reported post office address will be binding upon such
person for all purposes of the Plan and neither the Plan Administrator nor the
Employers, Trustee, or insurance company shall be obliged to search for or
ascertain such person's whereabouts. In the event that such person cannot be
located, the Plan Administrator may direct that such benefit and all further
benefits with respect to such person shall be discontinued, all liability for
the payment thereof shall terminate and the balance in such Member's Account
shall be deemed a forfeiture; provided, however, that in the event of the
subsequent reappearance of the Member or Beneficiary prior to termination of the
Plan, the benefits which were due and payable and which such person missed shall
be paid in a single sum and the future benefits due such person shall be
reinstated in full.
10.12 DATA AND INFORMATION FOR BENEFITS
All persons claiming benefits under the Plan must furnish to the Plan
Administrator or its designated agent such documents, evidence, or information
as the Plan Administrator or its designated agent consider necessary or
desirable for the purpose of administering the Plan; and such person must
furnish such information promptly and sign such documents as the Plan
Administrator or its designated agent may require before any benefits become
payable under the Plan.
44
10.13 INDEMNITY FOR LIABILITY
The Company shall indemnify each member of the committee serving as Plan
Administrator against any and all claims, losses, damages, and expenses,
including counsel fees, incurred by the committee and any liability, including
any amounts paid in settlement with the committee's approval, arising from the
member's or committee's action or failure to act, except when the same is
judicially determined to be attributable to the gross negligence or willful
misconduct of such member. The Company shall pay the premiums on any bond
secured under this section and shall be entitled to reimbursement by the other
Employers for their proportionate share.
10.14 EFFECT OF A MISTAKE
In the event of a mistake or misstatement as to the eligibility, participation,
or service of any Member, or the amount of payments made or to be made to the
Trustee or to a Member or Beneficiary, the Plan Administrator shall, if
possible, cause to be withheld or accelerated or otherwise make adjustment of
such amounts of payments as will in its sole judgment result in the Trustee,
Member, or Beneficiary receiving the proper amount of payments under this Plan.
10.15 SELF INTEREST
A member of the committee who is also a Member shall not vote on any question
relating specifically to such person.
45
ARTICLE XI. AMENDMENT AND TERMINATION
11.1 AMENDMENT AND TERMINATION
(a) The Company hereby reserves the sole and exclusive right at any time by
action of the Board to amend, modify, or terminate the Plan. The Company's
right of amendment, modification, or termination as aforesaid shall not
require the assent, concurrence, or any other action by any Employer
notwithstanding that such action by the Company may relate in whole or in
part to persons in the employ of an Employer.
(b) While each Employer contemplates carrying out the provisions of the Plan
indefinitely with respect to its Employees, no Employer shall be under any
obligation or liability whatsoever to maintain the Plan for any minimum or
other period of time.
- - -C- Upon any termination of the Plan in its entirety, or with respect to any
Employer, the Company shall give written notice thereof to the Plan
Administrator, the Trustee, and any Employer involved.
(d) Except as provided by law, upon any termination of the Plan, no Employer
with respect to whom the Plan is terminated (including the Company) shall
thereafter have any obligation, liability, or responsibility whatsoever to
make any contribution or payment to the Trust Fund, the Plan, any Member,
any Beneficiary, or any other person, trust, or fund whatsoever, for any
purpose whatsoever under or in connection with the Plan.
(e) The disposition of Before-Tax Contributions Accounts pursuant to
termination of the Plan shall be subject to the provisions of section
6.9(b).
(f) Notwithstanding anything to the contrary, the provisions relating to the
matching contribution or the allocation of forfeitures shall not be amended
more often than once every six months other than to comport with changes in
the Code, ERISA, or the rules promulgated thereunder.
11.2 LIMITATIONS ON AMENDMENTS
The provisions of this Article are subject to and limited by the following
restrictions:
(a) No amendment shall operate either directly or indirectly to give any
Employer any interest whatsoever in any funds or property held by the
Trustee under the terms hereof, or to permit the corpus or income of the
Trust to be used for or diverted to purposes other than the exclusive
benefit of Members or their Beneficiaries.
(b) No such amendment shall operate either directly or indirectly to deprive
any Member of his vested and nonforfeitable interest as of the time of such
amendment.
- - -C- No amendment shall modify the vesting schedule set forth in section 5.2
unless the conditions of section 411(a)(10) of the Code are met.
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11.3 EFFECT OF BANKRUPTCY AND OTHER CONTINGENCIES AFFECTING AN EMPLOYER
In the event an Employer terminates its connection with the Plan, or in the
event an Employer is dissolved, liquidated, or shall by appropriate legal
proceedings be adjudged a bankrupt, or in the event judicial proceedings of any
kind result in the involuntary dissolution of an Employer, the Plan shall be
terminated with respect to such Employer. The merger, consolidation, or
reorganization of an Employer, or the sale by it of all or substantially all of
its assets, shall not terminate the Plan if there is delivery to such Employer
by the Employer's successor or by the purchaser of all or substantially all of
the Employer's assets, of a written instrument requesting that the successor or
purchaser be substituted for the Employer and agreeing to perform all the
provisions hereof which such Employer is required to perform. Upon the receipt
of said instrument, with the approval of the Company, the successor, or the
purchaser shall be substituted for such Employer herein, and such Employer shall
be relieved and released from any obligations of any kind, character, or
description herein or in any trust agreement imposed upon it.
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ARTICLE XII. TOP-HEAVY PROVISIONS
12.1 APPLICATION OF TOP-HEAVY PROVISIONS
(A) SINGLE PLAN DETERMINATION. Except as provided in subsection (b)(2), if as
of a Determination Date, the sum of the amount of the Section 416 Accounts
of Key Employees and the Beneficiaries of deceased Key Employees exceeds 60
percent of the amount of the Section 416 Accounts of all Employees and
Beneficiaries (excluding former Key Employees), the Plan is top-heavy and
the provisions of this Article shall become applicable.
(b) AGGREGATION GROUP DETERMINATION.
(1) If as of a Determination Date this Plan is part of an Aggregation
Group which is top-heavy, the provisions of this Article shall become
applicable. Top-heaviness for the purpose of this subsection shall be
determined with respect to the Aggregation Group in the same manner as
described in subsection (a) above.
(2) If this Plan is top-heavy under subsection (a), but the Aggregation
Group is not top-heavy, the Plan shall not be top-heavy and this
Article shall not be applicable.
- - -C- CALCULATIONS. The Plan Administrator shall have responsibility to make all
calculations to determine whether this Plan is top-heavy.
12.2 DEFINITIONS
(a) "AGGREGATION GROUP" means this Plan and all other plans maintained by the
Employers and nonparticipating Affiliates which cover a Key Employee and
any other plan which enables a plan covering a Key Employee to meet the
requirements of Code section 401(a)(4) or section 410, which shall
constitute a "required aggregation group" within the meaning of Code
section 416(g)(2)(A)(I). In addition, at the election of the Plan
Administrator, the Aggregation Group may be expanded to include any other
qualified plan maintained by an Employer or nonparticipating Affiliate if
such expanded Aggregation Group meets the requirements of Code sections
401(a)(4) and 410. Such expanded aggregation group shall constitute a
"permissive aggregations group" within the meaning of Code section
416(g)(2)(A)(ii).
(b) "COMPENSATION" means the Member's compensation, salaries, and other amounts
received for personal services rendered in the course of employment with
Employers and nonparticipating Affiliates, including those items described
in Treasury regulation section 1.415-2(d)(1).
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- - -C- "DETERMINATION DATE" means the last day of the Plan Year immediately
preceding the Plan Year for which top-heaviness is to be determined or, in
the case of the first Plan Year of a new plan, the last day of such Plan
Year.
(d) "KEY EMPLOYEE" means an Employee, a former Employee or any Beneficiary
thereof if such Employee or former Employee, for the Plan Year containing
the Determination Date or any of the four preceding Plan Years, was--
(1) an officer of an Employer or nonparticipating Affiliate who has annual
Compensation greater than 50 percent of the amount in effect under
Code section 415(b)(1)(A) for such Plan Year; provided, however, that
no more than the lesser of--
(A) 50 Employees, or
(B) the greater of (I) three Employees or (ii) 10 percent of all
Employees,
shall be treated as officers, and such officers shall be those with
the highest annual Compensation in the five-year period;
(2) one of the ten Employees having annual Compensation from all Employers
and nonparticipating Affiliates for such Plan Year greater than the
dollar limit specified in Code section 415(c)(1)(A) and owning both
more than a one-half of 1 percent interest and the largest interests
in an Employer or nonparticipating Affiliate;
(3) a 5-percent owner of an Employer or nonparticipating Affiliate; or
(4) a 1-percent owner of an Employer or nonparticipating Affiliate having
annual Compensation of more than $150,000.
Ownership shall be determined in accordance with Code section
416(I)(1)(B) and (C). For purposes of paragraph (2), if two Employees
have the same ownership interest in an Employer or nonparticipating
Affiliate, the Employee having the greater annual Compensation from
the Employers and nonparticipating Affiliates shall be treated as
having a larger interest. Any Employee who is not a Key Employee shall
be a "non-Key employee" for purposes of applying this Article XII.
(e) "SECTION 416 ACCOUNT" means--
(1) the amount credited as of a Determination Date to a Member's or
Beneficiary's account, under the Plan and under any other qualified
defined contribution plan which is part of an Aggregation Group
(including amounts to be credited as of the Determination Date but
which have not yet been contributed);
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(2) the present value of the accrued benefit credited to a Member or
Beneficiary under a qualified defined benefit plan which is part of an
Aggregation Group; and
(3) the amount of distributions to the Member or Beneficiary during the
five-year period ending on the Determination Date other than a
distribution which is a tax-free Rollover Contribution (or similar
transfer) that is not initiated by the Member or that is contributed
to a plan which is maintained by an Employer or nonparticipating
Affiliate;
reduced by--
(4) the amount of Rollover Contributions (or similar transfers) and
earnings thereon credited as of a Determination Date under the Plan or
a plan forming part of an Aggregation Group which is attributable to a
Rollover Contribution (or similar transfer) accepted after
December 31, 1983, initiated by the Member and derived from a plan not
maintained by an Employer or nonparticipating Affiliate.
The Account of a Member who was a Key Employee and who subsequently meets
none of the conditions of subsection -C- for the Plan Year containing the
Determination Date is not a Section 416 Account and shall be excluded from
all computations under this Article. Furthermore, if a Member has not
performed any services for an Employer or nonparticipating Affiliate during
the five-year period ending on the Determination Date, any account of such
Member (and any accrued benefit for such Member) shall not be taken into
account in computing top-heaviness under this Article.
12.3 MINIMUM CONTRIBUTION
(a) GENERAL. If this Plan is determined to be top-heavy under the provisions of
section 12.1 with respect to a Plan Year, the sum of Employer contributions
(excluding contributions under a salary reduction agreement only for non-
Key Employees) and forfeitures under all qualified defined contribution
plans allocated to the accounts of each Member in the Aggregation Group who
is not a Key Employee and is an Employee on the last day of the Plan Year
shall not be less than 3 percent of such Member's Compensation.
(b) EXCEPTION. The contribution rate specified in subsection (a) shall not
exceed the percentage at which Employer contributions and forfeitures are
allocated under the plans of the Aggregation Group to the account of the
Key Employee for whom such percentage is the highest for the
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Plan Year. For the purpose of this subsection (b), the percentage for each
Key Employee shall be determined by dividing the Employer contributions and
forfeitures for the Key Employee by the amount of the Key Employee's
Compensation for the year.
- - -C- MULTIPLE PLANS. If this Plan is determined to be top-heavy under the
provisions of section 12.1 with respect to a Plan Year, any Member who is a
non-Key Employee covered under this Plan and under a defined benefit plan
maintained by the Employers and nonparticipating Affiliates shall receive a
minimum contribution determined by substituting 5 percent for 3 percent in
applying the provisions of subsection (a). However, no minimum contribution
under this section shall be allocable to any non-Key Employee who
participates in a defined benefit plan maintained by an Employer or
nonparticipating Affiliate and who receives the minimum benefit described
in Code section 416(c)(1) under such defined benefit plan.
12.4 LIMIT ON ANNUAL ADDITIONS: COMBINED PLAN LIMIT
(a) GENERAL. If this Plan is determined to be top-heavy under section 12.1,
section 4.5 of this Plan shall be applied by substituting 1.0 for 1.25 in
applying the provisions of Code section 415(e)(2) and (e)(3).
(b) EXCEPTION. Subsection (a) shall not be applicable if--
(1) section 12.4 is applied by substituting "4 percent" for "3 percent,"
and
(2) this Plan would not be top-heavy if "90 percent" is substituted for
"60 percent" in section 12.1.
- - -C- TRANSITIONAL RULE. If, but for this subsection (c), subsection (a) would
begin to apply with respect to the Plan, the application of subsection (a)
shall be suspended with respect to a Member so long as there are--
(1) no Employer contributions, forfeitures, or voluntary nondeductible
contributions allocated to such Member, and
(2) no accruals under a qualified defined benefit plan for such Member.
12.5 COLLECTIVE BARGAINING AGREEMENTS
The requirements of section 12.3 shall not apply with respect to any Employee
included in a unit of Employees covered by a collective bargaining agreement
between Employee representatives and an Employer or nonparticipating Affiliate
if retirement benefits were the subject of good faith bargaining between such
Employee representatives and such Employer or nonparticipating Affiliate.
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ARTICLE XIII. PARTICIPATION IN AND WITHDRAWAL FROM THE PLAN BY AN EMPLOYER
13.1 PARTICIPATION IN THE PLAN
Any Affiliate which desires to become an Employer hereunder may elect, with the
consent of the Board, to become a party to the Plan and Trust Agreement by
adopting the Plan for the benefit of its Eligible Employees, effective as of the
date specified in such adoption--
(a) by filing with the Company a certified copy of a resolution of its board of
directors to that effect, and such other instruments as the Company may
require; and
(b) by the Company's filing with the then Trustee or insurance company a copy
of such resolution, together with a certified copy of resolutions of the
Board approving such adoption.
The adoption resolution may contain such specific changes and variations in Plan
or Trust Agreement terms and provisions applicable to such adopting Employer and
its Employees as may be acceptable to the Company and the Trustee. However, the
sole, exclusive right of any other amendment of whatever kind or extent to the
Plan or Trust Agreement is reserved by the Company. The Company may not make
specific changes and variations in the Plan or Trust Agreement terms and
provisions as adopted by the Employer in its adoption resolution without the
consent of such Employer. The adoption resolution shall become, as to such
adopting organization and its employees, a part of this Plan as then amended or
thereafter amended and the related Trust Agreement. It shall not be necessary
for the adopting organization to sign or execute the original or then amended
Plan and Trust Agreement documents. The coverage date of the Plan for any such
adopting organization shall be that stated in the resolution or decision of
adoption, and from and after such effective date, such adopting organization
shall assume all the rights, obligations, and liabilities of an individual
employer entity hereunder and under the Trust Agreement. The administrative
powers and control of the Company, as provided in the Plan and Trust Agreement,
including the sole right to amendment, and of appointment and removal of the
Plan Administrator, the Trustee, and their successors, shall not be diminished
by reason of the participation of any such adopting organization in the Plan and
Trust Agreement.
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13.2 WITHDRAWAL FROM THE PLAN
Any Employer, by action of its board of directors or other governing authority,
may withdraw from the Plan and Trust Agreement after giving 90 days' notice to
the Board, provided the Board consents to such withdrawal. Distribution may be
implemented through continuation of the Trust Fund, or transfer to another trust
fund exempt from tax under Code section 501, or to a group annuity contract
qualified under Code section 401, or distribution may be made as an immediate
cash payment in accordance with the directions of the Plan Administrator;
provided, however, that no such action shall divert any part of such fund to any
purpose other than the exclusive benefit of the Employees of such Employer.
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ARTICLE XIV. MISCELLANEOUS
14.1 BENEFICIARY DESIGNATION
(a) Each unmarried Member may designate, on a form provided for that purpose by
the Plan Administrator, a Beneficiary or Beneficiaries to receive such
Member's interest in the Plan in the event of such Member's death, but such
designation shall not be effective for any purpose until it has been filed
by the Member during the Member's lifetime with the Plan Administrator. The
Member may, from time to time during the Member's lifetime, on a form
approved by and filed with the Plan Administrator, change the Member's
Beneficiary or Beneficiaries.
(b) The Beneficiary of each Member who is married shall be the surviving spouse
of such Member, unless such spouse consents in writing to the designation
of another Beneficiary or Beneficiaries. Each married Member may, from time
to time, change such Member's designation of Beneficiaries; provided,
however, that the Member may not change the Member's Beneficiary without
the written consent of such Member's spouse, unless such spouse's prior
consent expressly permits designations by the Member without any
requirement of further consent by the spouse.
- - -C- In the event that a Member fails to designate a Beneficiary, or if for any
reason such designation shall be legally ineffective, or if all designated
Beneficiaries predecease the Member or die simultaneously with the Member,
distribution shall be made to the Member's spouse; or if none, to the
Member's children in equal shares; or if none, to the Member's parents in
equal shares; or if none, to the Member's estate. If any such Beneficiary
shall die prior to receiving the distribution that would have been made to
such Beneficiary had such Beneficiary's death not occurred, then, for the
purposes of the Plan, the distribution that would have been received by
such Beneficiary shall be made to such Beneficiary's estate.
(d) The written consent described in subsection (b) shall acknowledge the
effect of such election and shall be witnessed by a Plan representative
designated by the Plan Administrator or a notary public.
14.2 INCOMPETENCY
Every person receiving or claiming benefits under the Plan shall be conclusively
presumed to be mentally competent and of age until the Plan Administrator
receives written notice, in a form and manner acceptable to it, that such person
is incompetent or a minor, and that a guardian,
54
conservator, or other person legally vested with the care of such person's
estate has been appointed. In the event that the Plan Administrator finds that
any person to whom a benefit is payable under the Plan is unable to properly
care for such person's affairs, or is a minor, then any payment due (unless a
prior claim therefor shall have been made by a duly appointed legal
representative) may be paid to the spouse, a child, a parent, a brother, or a
sister, or to any person deemed by the Plan Administrator to have incurred
expense for such person otherwise entitled to payment.
In the event a guardian or conservator of the estate of any person receiving or
claiming benefits under the Plan shall be appointed by a court of competent
jurisdiction, payments shall be made to such guardian or conservator, provided
that proper proof of appointment is furnished in a form and manner suitable to
the Plan Administrator.
To the extent permitted by law, any payment made under the provisions of this
section 14.2 shall be a complete discharge of liability under the Plan.
14.3 NONALIENATION
Except as provided in Code section 401(a)(13) with respect to qualified domestic
relations orders, neither benefits payable at any time under the Plan nor the
corpus or income of the Trust Fund shall be subject in any manner to alienation,
sale, transfer, assignment, pledge, attachment, garnishment, or encumbrance of
any kind. Any attempt to alienate, sell, transfer, assign, pledge, or otherwise
encumber any such benefit, whether presently or thereafter payable, shall be
void. No benefit nor the Trust Fund shall in any manner be liable for or subject
to the debts or liabilities of any Member or of any other person entitled to any
benefit. The Plan Administrator shall establish procedures to determine whether
domestic relations orders are "qualified domestic relations orders" and to
administer distributions under such qualified domestic relations orders.
In no event shall a domestic relations order be treated as a qualified domestic
relations order if it requires the Plan to make payments prior to the date that
a Participant attains earliest retirement age, as defined in Code section
414(p). Notwithstanding the foregoing, the Plan may make a distribution to an
alternate payee prior to the date the Participant attains earliest retirement
age if the qualified domestic relations order provides that the Plan and the
alternate payee may agree in writing to an earlier distribution, and the
distribution is made pursuant to such a written agreement.
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14.4 APPLICABLE LAW
The Plan and all rights hereunder shall be governed by and construed in
accordance with the laws of the State of Kansas to the extent such laws have not
been preempted by applicable federal law.
14.5 SEVERABILITY
If a provision of this Plan shall be held illegal or invalid, the illegality or
invalidity shall not affect the remaining parts of the Plan and the Plan shall
be construed and enforced as if the illegal or invalid provision had not been
included in this Plan.
14.6 NO GUARANTEE
Neither the Plan Administrator, the Company, the Employers, nor the Trustee in
any way guarantees the Trust Fund from loss or depreciation nor the payment of
any money which may be or become due to any person from the Trust Fund. Nothing
herein contained shall be deemed to give any Participant, Member, or Beneficiary
an interest in any specific part of the Trust Fund or any other interest except
the right to receive benefits out of the Trust Fund in accordance with the
provisions of the Plan and the Trust.
14.7 MERGER, CONSOLIDATION, OR TRANSFER
In the case of any merger or consolidation of the Plan with, or in the case of
any transfer of assets or liabilities of the Plan to or from, any other plan,
each Member shall receive a benefit immediately after the merger, consolidation,
or transfer (if the Plan had then terminated) which is equal to or greater than
the benefit the Member would have been entitled to receive immediately before
the merger, consolidation, or transfer (if the Plan had then terminated).
14.8 INTERNAL REVENUE SERVICE APPROVAL
It is the intention of the Company to obtain a ruling or rulings by the District
Director of Internal Revenue that--
(a) the Plan, as in effect from time to time, with respect to all Employers,
meets the requirements of Code section 401(a); and
(b) any and all contributions made by the Employers under the Plan are
deductible for income tax purposes under section 404(a) or any other
applicable provisions of the Code.
* * * * * * * * * *
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IN WITNESS WHEREOF, New Coleman Holdings Inc. has caused this instrument to be
executed by its duly authorized officers on this 31 day of December, 1995.
NEW COLEMAN HOLDINGS INC.
ATTEST:
By /s/ Kyle Wendt
-----------------------------------
Its Director - Employee Benefits &
Corporate Services
-------------------------------
By /s/ Elizabeth A. Heinemann
-----------------------------
Its Corporate H.R. Assistant
-------------------------
57