EXHIBIT 10.8
WORKING COPY OF
CADMUS NON-QUALIFIED THRIFT PLAN
(As Adopted Effective July 1, 1995)
As of April 1, 1996 Including:
First Amendment dated June 30, 1995
Second Amendment dated December 18, 1995
Third Amendment dated February 16, 1996
Fourth Amendment dated March 26, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
Definition of Terms
1.1 Accrued Benefit........................................................ 1
1.2 Act.................................................................... 1
1.3 Active Participant..................................................... 1
1.4 Administrator.......................................................... 1
1.5 Affiliate.............................................................. 1
1.6 Beneficiary............................................................ 1
1.7 Board.................................................................. 1
1.8 Code................................................................... 1
1.9 Compensation........................................................... 1
1.10 Effective Date......................................................... 2
1.11 Eligible Employee...................................................... 2
1.12 Employee............................................................... 2
1.13 Employer............................................................... 2
1.14 Fund................................................................... 2
1.15 Inactive Participant................................................... 2
1.16 Participant............................................................ 2
1.17 Plan................................................................... 2
1.18 Plan Sponsor........................................................... 2
1.19 Plan Year.............................................................. 2
1.20 Thrift Account......................................................... 2
1.21 Thrift Contributions................................................... 3
1.22 Thrift Savings Plan.................................................... 3
1.23 Trust Agreement........................................................ 3
1.24 Trustee................................................................ 3
1.25 Valuation Date......................................................... 3
1.26 Valuation Period....................................................... 3
ARTICLE II
Eligibility and Participation
2.1 Eligibility and Commencement of Participation.......................... 3
2.2 Election Required for Participation in Thrift Contribution Portion
of the Plan........................................................... 3
2.3 Length of Participation................................................ 4
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ARTICLE III
Thrift Account, Contributions and Adjustments
3.1 Thrift Account......................................................... 4
3.2 Thrift Contributions by the Participant................................ 4
3.3 Contributions by the Employer.......................................... 5
3.4 Subtractions from Thrift Account....................................... 7
3.5 Crediting of Deemed Earnings or Loss to Thrift Accounts................ 7
3.6 Equitable Adjustment in Case of Error or Omission...................... 8
3.7 Statement of Thrift Account Balance.................................... 8
ARTICLE IV
Vesting
4.1 Vesting Generally...................................................... 8
4.2 Forfeiture of Benefits................................................. 8
4.3 No Restoration of Forfeited Benefits................................... 8
4.4 Determination of Benefits after Forfeiture Followed by Re-employment... 8
ARTICLE V
Death Benefit
5.1 Death after Benefit Commencement....................................... 9
5.2 Death before Benefit Commencement...................................... 9
5.3 Beneficiary Designation................................................ 9
ARTICLE VI
Payment of Benefits
6.1 Time and Form of Payment............................................... 9
6.2 Benefit Determination and Payment Procedure............................ 10
6.3 Payments to Minors and Incompetents.................................... 10
6.4 Distribution of Benefit When Distributee Cannot Be Located............. 10
6.5 Claims Procedure....................................................... 10
ARTICLE VII
Withdrawals
7.1 Hardship Withdrawals................................................... 12
7.2 No Other Withdrawals Permitted......................................... 12
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ARTICLE VIII
Funding
8.1 Funding................................................................ 12
8.2 Use of Trust........................................................... 13
8.3 Fund Divisions......................................................... 13
8.4 Participant Investment Directions...................................... 13
ARTICLE IX
Fiduciaries
9.1 Fiduciaries and Duties and Responsibilities............................ 14
9.2 Limitation of Duties and Responsibilities of Fiduciaries............... 15
9.3 Service by Fiduciaries in More Than One Capacity....................... 15
9.4 Allocation or Delegation of Duties and Responsibilities by Fiduciaries. 15
9.5 Assistance and Consultation............................................ 15
9.6 Compensation and Expenses.............................................. 15
9.7 Indemnification........................................................ 15
ARTICLE X
Plan Administrator
10.1 Appointment of Plan Administrator...................................... 15
10.2 Plan Sponsor as Plan Administrator..................................... 16
10.3 Procedure if a Committee............................................... 16
10.4 Action by Majority Vote if a Committee................................. 16
10.5 Appointment of Successors.............................................. 16
10.6 Duties and Responsibilities of Plan Administrator...................... 16
10.7 Power and Authority.................................................... 16
10.8 Availability of Records................................................ 16
10.9 No Action with Respect to Own Benefit.................................. 17
ARTICLE XI
Amendment and Termination of Plan
11.1 Amendment or Termination of the Plan................................... 17
11.2 Effect of Employer Merger, Consolidation or Liquidation................ 17
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ARTICLE XII
Miscellaneous
12.1 Headings............................................................... 17
12.2 Gender and Number...................................................... 18
12.3 Governing Law.......................................................... 18
12.4 Employment Rights...................................................... 18
12.5 Conclusiveness of Employer Records..................................... 18
12.6 Right to Require Information and Reliance Thereon...................... 18
12.7 Alienation and Assignment.............................................. 18
12.8 Notices and Elections.................................................. 18
12.9 Delegation of Authority................................................ 18
12.10 Service of Process..................................................... 19
12.11 Construction........................................................... 19
ARTICLE XIII
Adoption by Additional Employers
13.1 Adoption by Additional Employers....................................... 19
13.2 Termination Events with Respect to Employers Other Than the
Plan Sponsor......................................................... 19
Appendix A - List of Available Investment Funds
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THIS PLAN is adopted as of July 1, 1995 by Cadmus Communications Corporation, a
Virginia corporation (the "Plan Sponsor"), for itself and for other
participating employers who may participate in the Plan as provided herein
(collectively or individually hereinafter called the "Employer");
WITNESSETH:
WHEREAS, the Employer deems it appropriate to provide for the deferral of
compensation by or on behalf of certain of its key management and highly
compensated employees pursuant to the terms of the Plan in consideration
for each such person's future services;
NOW, THEREFORE, this Plan provides as follows:
ARTICLE I
Definition of Terms
The following words and terms as used in this Plan shall have the meaning set
forth below, unless a different meaning is clearly required by the
context:
1.1 "Accrued Benefit": The balance in a Participant's Thrift Account, as adjusted
pursuant to the provisions of the Plan.
1.2 "Act": The Employee Retirement Income Security Act of 1974, as the same
may be amended from time to time, or the corresponding section of any
subsequent legislation which replaces it, and, to the extent not
inconsistent therewith, the regulations issued thereunder.
1.3 "Active Participant": A Participant who is an Eligible Employee with an
election in force to make Thrift Contributions to the Plan at the time in
question.
1.4 "Administrator": The Plan Administrator provided for in ARTICLE X hereof.
1.5 "Affiliate": Any subsidiary, parent, affiliate or other business entity
related to the Plan Sponsor by at least eighty percent (80%) ownership (as
determined by the Plan Sponsor).
1.6 "Beneficiary": The person or persons designated by a Participant or
otherwise entitled pursuant to paragraph 5.3 to receive benefits under the
Plan attributable to the Participant after the death of the Participant.
1.7 "Board": The present and any succeeding Board of Directors of the Plan
Sponsor, unless such term is used with respect to a particular Employer
and its Employees, in which event it shall mean the present and any
succeeding Board of Directors of that Employer. Any Executive Committee or
other committee of the Board may act on the Board's behalf in any matter
pertaining to the Plan where such committee is duly empowered to do so.
1.8 "Code": The Internal Revenue Code of 1986, as the same may be amended from
time to time, or the corresponding section of any subsequent Internal
Revenue Code, and, to the extent not inconsistent therewith, regulations
issued thereunder.
1.9 "Compensation": A Participant's "Compensation" as defined for purposes of
the Thrift Savings Plan, but determined without regard to the
"Compensation Limit" therein, plus amounts which would have been
"Compensation" as defined therein but for their contribution to this Plan
or to the Cadmus Deferred Compensation Plan. For purposes of determining
Thrift Contributions to the Plan, "Compensation" shall be based only on
periods the Participant is an Active Participant.
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1.10 "Effective Date": July 1, 1995.
1.11 "Eligible Employee": An Employee who is covered by the Plan Sponsor's
executive compensation plan, unless designated as ineligible for active
participation by the Plan Sponsor. The Plan Sponsor in its discretion may
from time to time exclude one or more Employees from active participation
in the Plan by name or job description or may set pay level or other
additional criteria for eligibility for active participation in the Plan.
1.12 "Employee": An individual who is employed in the service of the Employer
as a common law employee.
1.13 "Employer":
1.13(a) With respect to determining active participation in the Plan,
Eligible Employees and Compensation, the Plan Sponsor and each
Affiliate with one or more employees covered by the Plan Sponsor's
executive compensation plan.
1.13(b) Employment with an Affiliate shall be considered employment with
the Employer for all purposes of the Plan other than determining
active participation in the Plan, Eligible Employees and
Compensation.
1.14 "Fund":
1.14(a) If a trust fund is established and maintained for the Plan
pursuant to a Trust Agreement, that trust fund, which shall
consist of the Fund divisions described in paragraph 8.3 and
Appendix A to the Plan.
1.14(b) If a trust fund is not established and maintained for the Plan
pursuant to a Trust Agreement, that separate account maintained by
the Plan Sponsor to hold and invest contributions to the Plan,
which shall consist of the Fund divisions described in paragraph
8.3 and Appendix A to the Plan.
1.15 "Inactive Participant": A Participant who is not an Active Participant.
1.16 "Participant": An Eligible Employee who elects to participate in the Plan,
for so long as he is considered a Participant, as provided in ARTICLE II
hereof.
1.17 "Plan": This document as contained herein or duly amended. The plan
maintained pursuant hereto shall be known as the "Cadmus Non-Qualified
Thrift Plan".
1.18 "Plan Sponsor": Cadmus Communications Corporation, a Virginia corporation, or
any successor thereto.
1.19 "Plan Year": The calendar year.
1.20 "Thrift Account": The bookkeeping account of a Participant attributable to
Company Thrift Contributions and Participant Thrift Contributions, and any
deemed earnings thereon, under the Plan, consisting of the following
subdivisions:
(i) "Company Thrift Account": The Participant's account attributable to
Non-Qualified Matching Contributions, Non-Qualified Profit Sharing
Contributions and Excess Annual Addition Contributions allocated pursuant
to ARTICLE III hereof.
(ii) "Participant Thrift Account": The Participant's account attributable
to Thrift Contributions made pursuant to ARTICLE III hereof.
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1.21 "Thrift Contributions": The amount of Compensation deferred by a Participant
pursuant to his election under the Plan.
1.22 "Thrift Savings Plan": The Cadmus Thrift Savings Plan, as amended from
time to time, which plan is a defined contribution plan maintained by the
Plan Sponsor and qualified under Section 401 of the Code.
1.23 "Trust Agreement": The agreement, if any, by and between the Plan Sponsor
and the Trustee under which the Fund, if any, is maintained. No such
agreement has been entered into as of the Effective Date of the Plan.
1.24 "Trustee": The person(s) serving from time to time as trustee of the Fund
pursuant to any Trust Agreement.
1.25 "Valuation Date": Each business day (based on the days the underlying
investment funds are valued and transactions are effectuated in the
applicable financial markets) of the Plan Year (which Valuation Date is
sometimes referred to as a "daily" Valuation Date), or such other dates
(which must be at least annually) as the Administrator may designate from
time to time.
1.26 "Valuation Period": The period from one Valuation Date to and including
the next following Valuation Date.
ARTICLE II
Eligibility and Participation
2.1 Eligibility and Commencement of Participation. Each Eligible Employee
shall be automatically be a Participant in the Plan.
2.2 Election Required for Participation in Thrift Contribution Portion of the Plan.
2.2(a) Active participation in the Thrift Contribution portion of the Plan
is available to each Participant who is an Eligible Employee and
must be elected. An Eligible Employee may elect to become an Active
Participant by executing a "Thrift Contribution Election" and
timely filing it with the Administrator.
2.2(b) Unless otherwise provided in the Thrift Contribution Election, any
Thrift Contribution Election shall be a continuing election
applicable to succeeding Plan Years during continued status as an
Eligible Employee until changed by the filing of a new election. If
a Participant ceases to be an Eligible Employee and thereafter
again becomes an Eligible Employee, a new election shall be
required.
2.2(c) As of the beginning of a Plan Year, a Participant may file a new
Thrift Contribution Election, without any restriction on the amount
or percentage of his elected Thrift Contribution (other than those
contained in the Thrift Contribution Election). During a Plan Year,
a Participant may file a new Thrift Contribution Election which
increases the amount of his Thrift Contributions for the remainder
of the Plan Year. During a Plan Year, a Participant also may file a
new Thrift Contribution Election which terminates his Thrift
Contributions for the remainder of the Plan Year, in which event he
shall not be entitled to file a new election for balance of the
Plan Year.
2.2(d) Any Thrift Contribution Election must be filed by the 15th day of
the calendar month preceding the calendar month (or at such time as
the Administrator may require) before the calendar month it is to
become effective.
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2.3 Length of Participation. An Eligible Employee who becomes a Participant
shall be or remain a Participant for so long as he is an Eligible Employee
with a Thrift Contribution Election in effect or he is entitled to future
benefits under the terms of the Plan.
ARTICLE III
Thrift Account, Contributions and Adjustments
3.1 Thrift Account.
3.1(a) The Employer shall establish and maintain on its books a Thrift
Account, and appropriate subdivisions thereof, for each Participant
to reflect the Participant's Accrued Benefit under the Plan.
3.1(b) The balance in the Thrift Account of a Participant shall consist of
his Thrift Contributions credited to him under paragraph 3.2,
contributions by the Employer credited to him under paragraph 3.3,
subtractions pursuant to paragraph 3.4 and deemed earnings or loss
thereon determined pursuant to paragraph 3.5.
3.2 Thrift Contributions by the Participant.
3.2(a) An Active Participant shall elect to make Thrift Contributions in
that amount or percentage of his Compensation equal to all or that
portion of his Compensation as is permitted to be contributed and
as is specified by him in his Thrift Compensation Election. The
following rules shall apply:
(i) Thrift Contributions shall be based only on Compensation
earned and payable for periods the Thrift Compensation
Election is in effect.
(ii) The Administrator may permit separate elections with respect
to salary, one or more bonus(es) and/or Compensation which is
not "Compensation" for purposes of the Thrift Savings Plan,
may permit deferrals on the basis of anticipated Compensation
for a Plan Year, and may permit deferral of one hundred
percent (100%) of one or more bonus(es) (subject to a
reduction in the Participant's other deferrals in order not
to exceed the maximum contribution of Compensation percentage
limit).
(iii) Unless otherwise permitted and elected in his Thrift
Compensation Election, Thrift Contributions based on
Compensation which is not "Compensation" for purposes of the
Thrift Savings Plan shall be made as such Compensation is
otherwise due to be paid.
(iv) Thrift Contributions for a Plan Year based on Compensation
which is "Compensation" for purposes of the Thrift Savings
Plan shall be made only after the Participant has made the
maximum elective deferrals under Section 402(g) of the Code
for the Plan Year or the maximum elective contributions
permitted under the terms of the Thrift Savings Plan for the
Plan Year (including any maximums based on any special
limitation imposed by the plan administrator of the Thrift
Savings Plan pursuant to subparagraph 3.6(g) of the Thrift
Savings Plan).
(v) If the same Compensation is covered by a deferral election
under this Plan and the Cadmus Deferred Compensation Plan, the
election under this Plan shall be applied before the election
under the Cadmus Deferred Compensation Plan.
3.2(b) Each Thrift Contribution is intended to be an elective salary
reduction contribution which shall be withheld from a Participant's
Compensation otherwise payable to him for a Plan Year.
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3.2(c) Thrift Contributions made by a Participant for a Valuation Period
shall be credited to his Thrift Account as of the date an amount
equal to each Thrift Contribution is credited on the accounting
records of the Plan as directed by the Administrator, which date
shall be no later than the end of the calendar month following the
month the Compensation from which such contribution is deducted
would otherwise have been paid to him. Notwithstanding the
foregoing, if the Participant does not have other compensation from
which any taxes required to be withheld with respect to his Thrift
Contributions can be withheld or the Participant does not make
other arrangements satisfactory to the Administrator for payment of
the same, the amount of the Participant's Thrift Contributions
credited to his Thrift Account under the Plan may at the direction
of the Administrator be reduced by any taxes required to be
withheld therefrom and not otherwise provided for.
3.3 Contributions by the Employer.
3.3(a) With respect to each Plan Year, Non-Qualified Basic Matching
Contributions and Non-Qualified Discretionary Matching
Contributions shall be credited by the Employer to the Company
Thrift Account of each Participant who has made Thrift
Contributions for the Plan Year and who has satisfied the service
and employment benefit accrual requirements for entitlement to a
"Basic Matching Contribution" and a "Discretionary Matching
Contribution", respectively, under the Thrift Savings Plan for the
Plan Year as follows:
(i) The Non-Qualified Basic Matching Contribution for a
Participant for a Plan Year shall equal the sum of:
(A) The product obtained by multiplying the applicable
"basic matching percentage" for the Plan Year under the
Thrift Savings Plan by the first six percent (6%) of his
Compensation for the Plan Year which is not
"Compensation" for purposes of the Thrift Savings Plan
and which is contributed as a Thrift Contribution for
the Plan Year, plus
(B) The product obtained by multiplying the applicable
"basic matching percentage" for the Plan Year under the
Thrift Savings Plan by the first six percent (6%) of
his Compensation for the Plan Year which is
"Compensation" for purposes of the Thrift Savings Plan
and which is contributed as a Thrift Contribution for
the Plan Year, provided that the amount determined
under this clause (i)(B) shall be reduced by the
product obtained by multiplying the applicable "basic
matching percentage" for the Plan Year under the Thrift
Savings Plan by that percentage, if any, of the first
six percent (6%) of such Compensation for the Plan Year
which he may contribute as a "Savings Contribution" to
the Thrift Savings Plan.
The Non-Qualified Basic Matching Contribution for a Plan Year
credited on behalf of a Participant shall be allocated to his
Company Thrift Account as of the date the amount of such
contribution is credited on the accounting records of the Plan
as directed by the Administrator, which date shall be no later
than the later of the last day of the calendar quarter of the
Plan Year for which contributed or the end of the calendar
month following the month as of which the "Basic Matching
Contribution" under the Thrift Savings Plan for the calendar
quarter of the Plan Year is made to the Thrift Savings Plan.
(ii) The Non-Qualified Discretionary Matching Contribution for a
Participant for a Plan Year shall equal the sum of:
(A) The product obtained by multiplying the applicable
"discretionary matching percentage" for the Plan Year
under the Thrift Savings Plan by the first six percent
(6%) of his Compensation for the Plan Year which is not
"Compensation" for purposes of the Thrift Savings Plan
and which is contributed as a Thrift Contribution for
the Plan Year, plus
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(B) The product obtained by multiplying the applicable
"discretionary matching percentage" for the Plan Year
under the Thrift Savings Plan by the first six percent
(6%) of his Compensation for the Plan Year which is
"Compensation" for purposes of the Thrift Savings Plan
and which is contributed as a Thrift Contribution for
the Plan Year, provided that the amount determined
under this clause (ii)(B) shall be reduced by the
product obtained by multiplying the applicable
"discretionary matching percentage" for the Plan Year
under the Thrift Savings Plan by that percentage, if
any, of the first six percent (6%) of such Compensation
for the Plan Year which he may contribute as a "Savings
Contribution" to the Thrift Savings Plan.
The Non-Qualified Discretionary Matching Contribution for a
Plan Year credited on behalf of a Participant shall be
allocated to his Company Thrift Account as of the date the
amount of such contribution is credited on the accounting
records of the Plan as directed by the Administrator, which
date shall be no later than the later of the last day of the
Plan Year or the end of the calendar month following the month
as of which the "Discretionary Matching Contribution" under
the Thrift Savings Plan for the Plan Year is made to the
Thrift Savings Plan.
3.3(b) With respect to each Plan Year, a Non-Qualified Profit Sharing
Contribution shall be credited to the Company Thrift Account of
each Participant who is an Eligible Employee and a Participant
during the Plan Year and who has satisfied the service and
employment benefit accrual requirements for entitlement to a
"Profit Sharing Contribution" under the Thrift Savings Plan for the
Plan Year equal to the product of:
(i) The applicable "Profit Sharing Contribution" allocation rate
under the Thrift Savings Plan for the Plan Year, multiplied by
(ii) His Compensation for the Plan Year which is not
"Compensation" for purposes of the Thrift Savings Plan
because of application of the limitation on compensation
imposed by Section 401(a)(17) of the Code and because of the
exclusion from covered "Compensation" under the Thrift
Savings Plan of his elective Thrift Contributions to this
Plan and his elective "Deferral Contributions" to the Cadmus
Deferred Compensation Plan (based on the normal time of
payment but for such deferral election).
The Non-Qualified Profit Sharing Contribution for a Plan Year
credited on behalf of a Participant shall be allocated to his
Company Thrift Account as of the date the amount of such
contribution is credited on the accounting records of the Plan as
directed by the Administrator, which date shall be no later than the
later of the last day of the Plan Year or the end of the calendar
month following the month as of which the "Profit Sharing
Contribution" under the Thrift Savings Plan for the Plan Year is
made to the Thrift Savings Plan.
3.3(c) With respect to each Plan Year, an Excess Annual Additions
Contribution shall be credited to the Company Thrift Account of
each Participant who is an Eligible Employee and a Participant
during the Plan Year equal to the sum of:
(i) The "Matching Contribution" and
(ii) The "Profit Sharing Contribution" which would have been
allocated to, or would have remained allocated to, his account
under the Thrift Savings Plan for such Plan Year but for the
limitation on contributions and benefits imposed by Section
415 of the Code, provided that there shall be no duplication
of contributions under this subparagraph and the preceding
subparagraphs of this paragraph. The Excess Annual Additions
Contribution for a Plan Year described in clause (i) above
credited on behalf of a Participant shall be allocated to his
Company Thrift Account as of the date the amount of such
contribution is credited on the accounting records of the Plan
as directed by the Administrator, which date shall be no later
than the later of the last day of the Plan Year or the
72
end of the calendar month following the month as of which the
"Matching Contribution" under the Thrift Savings Plan for the
Plan Year is made to the Thrift Savings Plan. The Excess Annual
Additions Contribution for a Plan Year described in clause (ii)
above credited on behalf of a Participant shall be allocated to
his Company Thrift Account as of the date the amount of such
contribution is credited on the accounting records of the Plan,
which date shall be no later than the later of the last day of
the Plan Year or the end of the calendar month following the
month as of which the "Profit Sharing Contribution" under the
Thrift Savings Plan for the Plan Year is made to the Thrift
Savings Plan.
3.3(d) The Administrator shall limit contributions under this paragraph in
any manner he deems appropriate in order that the benefits under
the Plan not be considered directly or indirectly contingent on a
Participant's making or not making "Savings Contributions" to the
Thrift Savings Plan in violation of the requirements of Section
401(k) of the Code.
3.4 Subtractions from Thrift Account. All distributions (including any
withheld income or other taxes) shall be subtracted from a Participant's
Thrift Account and the applicable subdivision thereof when made.
3.5 Crediting of Deemed Earnings or Loss to Thrift Accounts.
3.5(a) As of each Valuation Date, there shall be credited to each
Participant's Thrift Account an amount representing deemed earnings
or loss on the "valuation balance" of such account for the
Valuation Period. A Participant's "valuation balance" is the total
of the balance in the account as of the beginning of the Valuation
Period, plus that portion, if any, of his Thrift Contributions for
the Valuation Period (as determined by the Administrator in its
discretion to approximate the portion of the Valuation Period
during which such contributions were held in the Fund during the
Valuation Period), less distributions from his account during the
Valuation Period.
3.5(b) Such deemed earnings or loss shall be determined as follows:
(i) For Valuation Periods during which the Fund is maintained and
Plan benefits may be paid therefrom because the Plan Sponsor
or any other Employer is not insolvent, such earnings or loss
shall be based on the net investment rate of return or loss
of the Fund division(s) in which the Participant's Accrued
Benefit under the Plan is considered invested for the
Valuation Period, determined separately for each Fund
division and the portion of the Participant's Accrued Benefit
considered invested in each such Fund division, based on the
Participant's applicable or deemed investment directions
pursuant to paragraph 8.4. The net investment rate of return
or loss means earnings or loss (including valuation changes)
for the Valuation Period of the Fund compared to the
aggregate valuation balances sharing in those earnings or
loss.
(ii) For Valuation Periods during which the Fund is not maintained
or Plan benefits may not be paid therefrom because the Plan
Sponsor or any other Employer is insolvent, such earnings or
loss shall be based on an annual rate determined for each
Plan Year and equal to the prime rate of interest published
in The Wall Street Journal in effect on the first day of the
Plan Year containing the period in question. If such rate is
not published for any Plan Year, the Administrator shall
determine the annual rate for such Plan Year with reference
to the average prime lending rate of NationsBank of North
Carolina, N.A. or its successor, determined at the end of
each Valuation Period, less one percent.
3.5(c) Notwithstanding the other provisions of this ARTICLE III, whenever
the Plan accounting is based on daily Valuation Dates, the
valuation adjustments to Participants' accounts shall be effected
on such basis and subject to such rules and procedures as the
Administrator may determine to reflect daily accounting.
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3.6 Equitable Adjustment in Case of Error or Omission. Where an error or
omission is discovered in the account of a Participant, the Administrator
shall be authorized to make such equitable adjustment as it deems
appropriate.
3.7 Statement of Thrift Account Balance. Within ninety (90) days after the end
of each Plan Year and at the date a Participant's Accrued Benefit becomes
payable under the Plan, the Administrator shall provide to each
Participant (or, if deceased, to his Beneficiary) a statement of the
balance as of such date of his Accrued Benefit and the percent thereof
which is vested.
ARTICLE IV
Vesting
4.1 Vesting Generally.
4.1(a) The Participant Thrift Account of a Participant shall be fully
vested and non-forfeitable at all times.
4.1(b) The Company Thrift Account of a Participant shall be vested as
follows:
(i) Vesting in Company Thrift Accounts shall normally be based on
the rules for vesting in the Participant's "Matching Account"
under the Thrift Savings Plan (including, without limitation,
the rules for vesting based on the Thrift Savings Plan's
vesting schedule and the rules for vesting at attainment of
normal retirement age, retirement, death or disability), but
with the cash-out, forfeiture and restoration rules thereunder
being inapplicable.
(ii) The Board of the Plan Sponsor may provide for vesting of the
Company Thrift Account of a Participant who ceases to be an
Eligible Employee due to the Participant's voluntary
termination of employment with the consent of the Board so
long as such consent expressly provides for such vesting.
(iii) All Company Thrift Accounts shall be fully vested as of the
date of termination of the Plan as to all Employers.
(iv) In the event a participating Employer ceases to participate in
the Plan, the Board of the Plan Sponsor may provide for
vesting of the Company Thrift Accounts of all affected
Participants of that former participating Employer on such
basis as it may direct.
4.2 Forfeiture of Benefits. Notwithstanding any contrary provision hereof, the
non-vested portion of the Company Thrift Account of a Participant shall be
forfeited upon the Participant's voluntary or involuntary cessation of
employment with the Employer or death, but his vesting shall include any
additional vesting provided under the rules of the Thrift Savings Plan or
this Plan with respect to such cessation of employment or death.
4.3 No Restoration of Forfeited Benefits. There shall be no restoration of
forfeited benefits.
4.4 Determination of Benefits after Forfeiture Followed by Re-employment. If
a Participant incurs a forfeiture and subsequently is an Eligible
Employee and a Participant, a new Company Thrift Account shall be
established for the Participant to reflect his subsequent participation
in the Plan, and the Participant's vested Company Thrift Account at any
time shall equal the sum of any remaining portion of his prior vested
Company Thrift Account and his new vested Company Thrift Account at such
time.
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ARTICLE V
Death Benefit
5.1 Death after Benefit Commencement. If a Participant dies after his vested
Accrued Benefit has begun to be paid to him, the benefits payable under
the Plan after his death shall be the remainder of his vested Accrued
Benefit, if any, payable as provided under the form of payment being made
to him at his death.
Such benefits shall be paid to his Beneficiary.
5.2 Death before Benefit Commencement. If a Participant dies before his vested
Accrued Benefit has begun to be paid to him, his vested Accrued Benefit
under the Plan shall be paid to his Beneficiary at the time and in the
manner described in ARTICLE VI.
5.3 Beneficiary Designation.
5.3(a) Each Participant shall have the right to notify the Administrator
in writing of any designation of a Beneficiary to receive, if alive,
benefits under the Plan in the event of his death. Such designation
may be changed from time to time by notice in writing to the
Administrator.
5.3(b) If a Participant dies without having designated a Beneficiary, or
if the Beneficiary so designated has predeceased the Participant or,
except when his Beneficiary is his spouse, cannot be located by the
Administrator within one year after the date when the Administrator
commenced making a reasonable effort to locate such Beneficiary,
then his surviving spouse, or if none, then his descendants, per
stirpes, or if none, then the executor or the administrator of his
estate shall be deemed to be his Beneficiary.
5.3(c) Any Beneficiary designation may include multiple, contingent or
successive Beneficiaries and may specify the proportionate
distribution to each Beneficiary. If a Beneficiary shall survive
the Participant, but shall die before the entire benefit payable to
such Beneficiary has been distributed, then absent any other
provision by the Participant, the unpaid amount of such benefit
shall be distributed to the estate of the deceased Beneficiary. If
multiple Beneficiaries are designated, absent provisions by the
Participant, those named or the survivors of them shall share
equally any benefits payable under the Plan. Any Beneficiary,
including the Participant's spouse, shall be entitled to disclaim
any benefit otherwise payable to him under the Plan.
ARTICLE VII
Payment of Benefits
6.1 Time and Form of Payment.
6.1(a) A Participant's vested Accrued Benefit shall be payable to the
Participant at the following time and in the following manner:
(i) Time of Payment - The time of payment is in the first month
of the calendar quarter following the calendar quarter of the
earlier of the Participant's retirement, disability or other
cessation of employment with the Employer.
(ii) Form of Payment - The form of payment is a lump sum payment.
Under this form of payment, the term "lump sum payment"
generally means a single payment of the entire or, as
applicable, the designated portion of the vested Accrued
Benefit. In the event a vested Accrued Benefit is to be paid
in a lump sum payment and the amount thereof has not been
determined, the Administrator is authorized to make one or
more interim payments prior to the time the amount of such
lump sum payment is finally determined.
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6.1(b) If the Participant is deceased, payment of the Participant's
entire vested Accrued Benefit shall be made to his Beneficiary in
a lump sum payment (as defined in clause (ii) of subparagraph
6.1(a)) in the first month of the calendar quarter following the
calendar quarter of the Participant's death.
6.2 Benefit Determination and Payment Procedure.
6.2(a) The Administrator shall make all determinations concerning
eligibility for benefits under the Plan, the time or terms of
payment, and the form or manner of payment to the Participant or,
in the event of the death of the Participant, the Participant's
Beneficiary. The Administrator shall promptly notify the Employer
and, where payments are to be made by the Trustee from the Fund,
the Trustee of each such determination that benefit payments are
due and provide to the Employer and, where applicable, the Trustee
all other information necessary to allow the Employer or the
Trustee, as the case may be, to carry out said determination,
whereupon the Employer or the Trustee, as the case may be, shall
pay such benefits in accordance with the Administrator's
determination.
6.2(b) Benefit payments shall normally be made from the Fund to such
payee(s), in such amounts, at such times and in such manner as the
Administrator shall from time to time direct; provided, however,
that the Employer may advance any payment due subject to a right of
reimbursement from the Fund. The payor may reserve such reasonable
amount as it shall deem necessary, based upon information provided
by the Administrator upon which the payor may rely, to pay any
income or other taxes attributable to the payment or required to be
withheld from the payment. If any payment is returned unclaimed,
the payor shall notify the Administrator and shall dispose of the
payment as the Administrator shall direct.
6.2(c) Benefit payments normally shall be made in cash. However, the
benefit payee and the Administrator may mutually agree to make
in-kind distributions of assets held in the Fund if the sponsor of
the investment fund in question permits such in-kind distributions.
6.3 Payments to Minors and Incompetents. If a Participant or Beneficiary
entitled to receive any benefits hereunder is a minor or is adjudged to
be legally incapable of giving valid receipt and discharge for such
benefits, or is deemed so by the Administrator, benefits will be paid to
such person as the Administrator may designate for the benefit of such
Participant or Beneficiary. Such payments shall be considered a payment
to such Participant or Beneficiary and shall, to the extent made, be
deemed a complete discharge of any liability for such payments under the
Plan.
6.4 Distribution of Benefit When Distributee Cannot Be Located. The
Administrator shall make all reasonable attempts to determine the
identity and/or whereabouts of a Participant or a Participant's spouse
entitled to benefits under the Plan, including the mailing by certified
mail of a notice to the last known address shown on the Employer's or the
Administrator's records. If the Administrator is unable to locate such a
person entitled to benefits hereunder, or if there has been no claim made
for such benefits, the benefit due such person shall continue to be held
under the Plan, subject to any applicable statute of escheats.
6.5 Claims Procedure.
6.5(a) A Participant or Beneficiary (the "claimant") shall have the right
to request any benefit under the Plan by filing a written claim for
any such benefit with the Administrator on a form provided by the
Administrator for such purpose. The Administrator shall give such
claim due consideration and shall either approve or deny it in
whole or in part. Within ninety (90) days following receipt of such
claim by the Administrator, notice of any approval or denial
thereof, in whole or in part, shall be delivered to the claimant or
his duly authorized representative or such notice of denial shall
be sent by mail to the claimant or his duly authorized
representative at the address shown on the claim form or such
individual's last known address. The aforesaid ninety (90) day
response period may be extended to one hundred eighty (180) days
after receipt of the
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claimant's claim if special circumstances exist and if written
notice of the extension to one hundred eighty (180) days indicating
the special circumstances involved and the date by which a decision
is expected to be made is furnished to the claimant within ninety
(90) days after receipt of the claimant's claim. Any notice of
denial shall be written in a manner calculated to be understood by
the claimant and shall:
(i) Set forth a specific reason or reasons for the denial,
(ii) Make specific reference to the pertinent provisions of the
Plan on which any denial of benefits is based,
(iii) Describe any additional material or information necessary for
the claimant to perfect the claim and explain why such
material or information is necessary, and
(iv) Explain the claim review procedure of subparagraph 6.5(b).
If a notice of approval or denial is not provided to the claimant
within the applicable ninety (90) day or one hundred eighty (180)
day period, the claimant's claim shall be considered denied for
purposes of the claim review procedure of subparagraph 6.5(b).
6.5(b) A Participant or Beneficiary whose claim filed pursuant to
subparagraph 6.5(a) has been denied, in whole or in part, may,
within sixty (60) days following receipt of notice of such denial,
or following the expiration of the applicable period provided for
in subparagraph 6.5(a) for notifying the claimant of the decision
on the claim if no notice of denial is provided, make written
application to the Administrator for a review of such claim, which
application shall be filed with the Administrator. For purposes of
such review, the claimant or his duly authorized representative may
review Plan documents pertinent to such claim and may submit to the
Administrator written issues and comments respecting such claim.
The Administrator may schedule and hold a hearing. The
Administrator shall make a full and fair review of any denial of a
claim for benefits and issue its decision thereon promptly, but no
later than sixty (60) days after receipt by the Administrator of
the claimant's request for review, or one hundred twenty (120) days
after such receipt if a hearing is to be held or if other special
circumstances exist and if written notice of the extension to one
hundred twenty (120) days is furnished to the claimant within sixty
(60) days after the receipt of the claimant's request for a review.
Such decision shall be in writing, shall be delivered or mailed by
the Administrator to the claimant or his duly authorized
representative in the manner prescribed in subparagraph 6.5(a) for
notices of approval or denial of claims, and shall:
(i) Include specific reasons for the decision,
(ii) Be written in a manner calculated to be understood by the
claimant,
and
(iii) Contain specific references to the pertinent Plan provisions
on which the decision is based.
The Administrator's decision made in good faith shall be final.
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ARTICLE VI
Withdrawals
7.1 Hardship Withdrawals.
7.1(a) In the event of any unforeseeable emergency and upon written
request of the Participant (or, if subsequent to his death, his
Beneficiary), the Administrator in its sole discretion may direct
the payment in one lump sum to the Participant or his Beneficiary
of all or any portion of the Participant's vested Accrued Benefit
which the Administrator determines is necessary to alleviate the
financial need related to the unforeseeable emergency.
7.1(b) For purposes hereof:
(i) An unforeseeable emergency shall be defined in a manner
consistent with the meaning ascribed thereto under Section
457 of the Code as a severe financial hardship to the
Participant (or, if subsequent to his death, his Beneficiary)
resulting from a sudden and unexpected illness, accident or
loss of property due to casualty, or any other similar
extraordinary and unforeseeable circumstance arising as a
result of events beyond the control of the Participant (or,
if subsequent to his death, his Beneficiary).
(ii) The existence of an unforeseeable emergency shall be
determined by the Administrator on the basis of the facts and
circumstances of each case, but, in any event, payment may not
be made to the extent that the hardship is or may be relieved:
(A) Through reimbursement or compensation by insurance or
otherwise,
(B) By liquidation of the Participant's assets, to the
extent such liquidation would not itself cause a severe
financial hardship, or
(C) By cessation of elective deferrals under the Plan.
(iii) Examples of what are not considered unforeseeable emergencies
include the need to send a Participant's child to college or
the desire to purchase a home.
7.2 No Other Withdrawals Permitted. No withdrawals or other distributions
shall be permitted except as provided in ARTICLE VI or paragraph 7.1.
ARTICLE VIII
Funding
8.1 Funding.
8.1(a) The undertaking to pay benefits hereunder shall be an unfunded
obligation payable solely from the general assets of the Employer
and, subject to the claims of the Employer's creditors, from each
Employer's portion of the Fund. Thrift Accounts shall be maintained
as book reserve accounts on the books of the Employer solely for
accounting purposes. The payment obligation hereunder (whether on
not payment is made from the Fund) with respect to the Accrued
Benefit attributable to Thrift Contributions made from Compensation
payable, and other contributions made, by one Employer shall be the
liability of that Employer only, but payment thereof shall be
guaranteed by the Plan Sponsor.
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8.1(b) Nothing contained in the Plan or Trust Agreement and no action
taken pursuant to the provisions of the Plan or Trust Agreement
shall give any Participant or Beneficiary any right, title or
interest in any specific asset or assets of the Employer or the
Fund at any time or any priority of payment in the event of the
Employer's insolvency. To the extent that any person acquires a
right to receive payments from the Employer or the Fund under the
Plan, such rights shall be no greater than the right of any
unsecured general creditor of the Employer.
8.1(c) Subject to the other provisions of this paragraph, the Plan Sponsor
shall make, or cause to be made out of the Fund, the payment of all
benefits under the Plan. The Plan Sponsor may require contributions
by participating Employers be delivered to the Plan Sponsor at such
times (whether before, at or after the time of payment), in such
amounts and on such basis as it may from time to time determine in
order to defray the costs of benefits under and administration of
the Plan.
8.1(d) The Employer shall pay over contributions to the Fund at least
monthly or at such other time or times as the Plan Sponsor may
direct.
8.2 Use of Trust.
8.2(a) Notwithstanding any provision herein to the contrary, the Plan
Sponsor may in its sole discretion direct the establishment and
holding assets in the Fund pursuant to a Trust Agreement for the
purpose of providing benefits under the Plan.
8.2(b) The Employers acknowledge that any Trust Agreement, if established,
will be established by the Plan Sponsor (who may be referred to as
the Trust Sponsor in the Trust Agreement) for the benefit of all
participating Employers, that being a participating Employer in the
Plan automatically makes the Employer an Employer for purposes of
any Trust Agreement (unless the Trust Agreement otherwise
provides), and that any Trust Agreement may be amended by
appropriate action of the Plan Sponsor (without any action required
by the other participating Employers).
8.3 Fund Divisions.
8.3(a) It is contemplated that the Fund will be held in divisions
(sometimes referred to as "divisions of the Fund", "Fund divisions"
or "investments funds" herein) as hereinafter provided, and each
Participant's Accrued Benefit shall be subdivided to reflect its
deemed interest in each Fund division.
8.3(b) The Fund divisions which shall be maintained in the Fund are those
regulated investment companies, collective trust funds and/or other
pooled investment funds listed from time to time on Appendix A to
the Plan, each of which shall be treated as a separate Fund
division.
8.4 Participant Investment Directions. The Accrued Benefit of a Participant in
the Plan shall be divided or allocated to reflect the amount of each such
Participant's deemed interest in each Fund division as hereinafter
provided for the purpose of determining the earnings or loss to be
credited to his account, but any such direction shall not give the
Participant any right, title or interest in any specific asset or assets
of the Fund:
8.4(a) Upon becoming a Participant without a contribution investment
direction in force, a Participant may direct that his future
Directable Contributions be invested, in whole multiples of the
Permitted Direction Percentage (equalling one hundred percent
(100%) in the aggregate), in the Available Investment Funds by
filing a "contribution investment direction" with the Administrator
at such time.
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8.4(b) In accordance with procedures established by the Administrator from
time to time:
(i) Contribution Investment Direction - A Participant may
make a "contribution investment direction" by directing
that whole multiples of the Permitted Direction
Percentage (equalling one hundred percent (100%) in the
aggregate) of his future Directable Contributions be
invested in the Available Investment Funds. Any such
contribution investment direction shall be effected
for contributions made after commencement of
participation or contributions, as the case may be, and
thereafter as of each subsequent Contribution Investment
Direction Change Date for which such direction is timely
delivered to the Administrator (or its designee); and/or
(ii) Account Balance Investment Direction - A Participant
(or, if deceased, his Beneficiary) may make an "account
balance investment direction" by directing that whole
multiples of the Permitted Direction Percentage (equalling
one hundred percent (100%) in the aggregate) of his
Directable Accounts be invested in the Available Investment
Funds. Any such account balance investment direction shall
be effective as of and for the Account Balance Investment
Direction Change Date for which such direction is timely
delivered to the Administrator (or its designee).
The Administrator (or its designee) generally will process
investment directions on a current basis after received, but shall
not be obligated to process any investment directions on a
retroactive basis.
8.4(c) If or to the extent a Participant (or if deceased, his
Beneficiary) has no investment direction in effect, his Directable
Contributions and Directable Accounts shall be invested in the
Default Fund designated on Appendix A.
8.4(d) For purposes of this paragraph:
(i) The term "Account Balance Investment Direction Change Date"
means each Valuation Date.
(ii) The term "Available Investment Funds" means the investment
funds listed in Appendix A to the Plan.
(iii) The term "Directable Accounts" means the entire Accrued
Benefit of the Participant.
(iv) The term "Directable Contributions" means contributions made
by the Participant
(v) The term "Contribution Investment Direction Change Date"
means each Valuation Date.
(vi) The term "Permitted Direction Percentage" means one percent
(1%).
8.4(e) The Administrator may, on a uniform and non-discriminatory basis
from time to time, set or change the advance notice requirement for
effecting investment directions, may limit the number of investment
direction changes made in a Plan Year, may limit investment
directions, if any, which can be made by telephone, and generally
may change any of the investment direction procedures.
ARTICLE IX
Fiduciaries
9.1 Fiduciaries and Duties and Responsibilities. Authority to control and
manage the operation and administration of the Plan shall be vested in the
following persons or entities, who, together with their membership, if
any, shall be the fiduciaries under the Plan ("Fiduciaries") with those
powers, duties, and responsibilities specifically allocated to them by the
Plan:
9.1(a) Plan Administrator - The Plan Administrator in connection with its
fiduciary obligations and rights relating to the Plan and the Fund.
9.1(b)Plan Sponsor - The Plan Sponsor in connection with its
fiduciary obligations and rights relating to the Plan and the Fund.
9.1(c)Trustee - The Trustee, if any, in connection with its
fiduciary obligations and rights relating to the Fund.
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9.2 Limitation of Duties and Responsibilities of Fiduciaries. The
duties and responsibilities, and any liability therefor, of the
Fiduciaries provided for in paragraph 9.1 shall be severally limited
to the duties and responsibilities specifically allocated to each
such Fiduciary in accordance with the terms of the Plan, and there
shall be no joint duty, responsibility, or liability among any such
groups of Fiduciaries in the control and management of the operation
and administration of the Plan.
9.3 Service by Fiduciaries in More Than One Capacity. Any person or group of
persons may serve in more than one Fiduciary capacity with respect to the
Plan.
9.4 Allocation or Delegation of Duties and Responsibilities by
Fiduciaries. By written agreement filed with the Administrator and the
Plan Sponsor, any duties and responsibilities of any Fiduciary may be
allocated among Fiduciaries or may be delegated to persons other than
Fiduciaries. Any written agreement shall specifically set forth the
duties and responsibilities so allocated or delegated, shall
contain reasonable provisions for termination, and shall be executed
by the parties thereto.
9.5 Assistance and Consultation. A Fiduciary, and any delegate named pursuant
to paragraph 9.4, may engage agents to assist in its duties and may
consult with counsel, who may be counsel for the Employer, with respect to
any matter affecting the Plan or its obligations and responsibilities
hereunder, or with respect to any action or proceeding affecting the Plan.
9.6 Compensation and Expenses. All compensation and expenses of the
Fiduciaries and their agents and counsel shall be paid or reimbursed by
the Employer on such basis as the Plan Sponsor shall determine; provided,
however, that each person or committeeman serving as a Fiduciary shall
serve without compensation for such service unless otherwise determined by
the Plan Sponsor or, in the case of the Trustee, unless otherwise provided
in the Trust Agreement.
9.7 Indemnification. The Employer, on such basis as the Plan Sponsor
shall determine, shall indemnify and hold harmless any individual who
is an employee of the Employer or an Affiliate and who is a
Fiduciary or a member of a Fiduciary under the Plan and any other
individual who is an employee of the Employer or an Affiliate and to
whom duties of a Fiduciary are delegated pursuant to paragraph 9.4,
to the extent permitted by law, from and against any liability, loss,
cost or expense arising from their good faith action or inaction in
connection with their responsibilities under the Plan.
ARTICLE X
Plan Administrator
Appointment of Plan Administrator. The Plan Sponsor may appoint one or more
persons to serve as the Plan Administrator (the "Administrator") for the
purpose of carrying out the duties specifically imposed on the
Administrator by the Plan and the Code. In the event more than one person
is appointed, the persons shall form a committee for the purpose of
functioning as the Administrator of the Plan. The person or committeemen
serving as Administrator shall serve for indefinite terms at the pleasure
of the Plan Sponsor, and may, by thirty (30) days prior written notice to
the Plan Sponsor, terminate such appointment. The Plan Sponsor shall
inform the Trustee of any such appointment or termination, and the Trustee
may assume that any person appointed continues in office until notified of
any change.
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10.2 Plan Sponsor as Plan Administrator. In the event that no Administrator is
appointed or in office pursuant to paragraph 10.1, the Plan Sponsor shall
be the Administrator.
10.3 Procedure if a Committee. If the Administrator is a committee, it shall
appoint from its members a Chairman and a Secretary. The Secretary
shall keep records as may be necessary of the acts and resolutions of
such committee and be prepared to furnish reports thereof to the Plan
Sponsor and the Trustee. Except as otherwise provided, all instruments
executed on behalf of such committee may be executed by its Chairman or
Secretary, and the Trustee may assume that such committee, its Chairman
or Secretary are the persons who were last designated as such to them in
writing by the Plan Sponsor or its Chairman or Secretary.
10.4 Action by Majority Vote if a Committee. If the Administrator is a
committee, its action in all matters, questions and decisions shall be
determined by a majority vote of its members qualified to act thereon.
They may meet informally or take any action without the necessity of
meeting as a group.
10.5 Appointment of Successors. Upon the death, resignation or removal of a
person serving as, or on a committee which is, the Administrator, the
Employer may, but need not, appoint a successor.
10.6 Duties and Responsibilities of Plan Administrator. The Administrator shall
have the following duties and responsibilities under the Plan:
10.6(a) The Administrator shall be responsible for the fulfillment of all
relevant reporting and disclosure requirements set forth in the
Plan, the Code and the Act the distribution thereof to
Participants and their Beneficiaries and the filing thereof with
the appropriate governmental officials and agencies.
10.6(b) The Administrator shall maintain and retain necessary records
respecting its administration of the Plan and matters upon which
disclosure is required under the Plan, the Code and the Act.
10.6(c) The Administrator shall make any elections for the Plan required
to be made by it under the Plan, the Code and the Act.
10.6(d) The Administrator is empowered to settle claims against the Plan
and to make such equitable adjustments in a Participant's or
Beneficiary's rights or entitlements under the Plan as it deems
appropriate in the event an error or omission is discovered or
claimed in the operation or administration of the Plan.
10.6(e) The Administrator may construe the Plan, correct defects, supply
omissions or reconcile inconsistencies to the extent necessary to
effectuate the Plan and such action shall be conclusive.
10.7 Power and Authority. The Administrator is hereby vested with all the power
and authority necessary in order to carry out its duties and
responsibilities in connection with the administration of the Plan imposed
hereunder. For such purpose, the Administrator shall have the power to
adopt rules and regulations consistent with the terms of the Plan.
10.8 Availability of Records. The Employer and the Trustee shall, at the
request of the Administrator, make available necessary records or other
information they possess which may be required by the Administrator in
order to carry out its duties hereunder.
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10.9 No Action with Respect to Own Benefit. No Administrator who is a
Participant shall take any part as the Administrator in any discretionary
action in connection with his participation as an individual. Such action
shall be taken by the remaining Administrator, if any, or otherwise by the
Plan Sponsor.
ARTICLE XI
Amendment and Termination of Plan
11.1 Amendment or Termination of the Plan.
11.1(a) The Plan may be terminated at any time by the Board. The Plan may
be amended in whole or in part from time to time by the Board
effective as of any date specified. No amendment or termination
shall operate to decrease a Participant's vested Accrued Benefit
as of the earlier of the date on which the amendment or
termination is approved by the Board or the date on which an
instrument of amendment or termination is signed on behalf of the
Plan Sponsor. No amendment shall increase the Trustee's duties or
obligations or decrease its compensation unless contained in an
amendment of, or document expressly pertaining to, the Trust
Agreement which includes the Trustee's written consent or for
which the Trustee's written consent is separately obtained. Any
such termination of or amendment to the Plan may provide for the
acceleration of payment of benefits under the Plan to one or more
Participants or Beneficiaries. Any such termination of or
amendment to the Plan shall be in writing and shall be adopted
pursuant to action by the Board (including pursuant to any
standing authorization for any officer, director or committee to
adopt amendments) in accordance with its applicable procedures,
including where applicable by majority vote or consent in writing.
11.1(b) In addition, and as an alternative, to amendment of the Plan by
action of the Board, but subject to the limitations on amendment
contained in subparagraph 11.1(a), the Chief Executive Officer of
the Plan Sponsor shall be and is hereby authorized to adopt on
behalf of the Board and to execute any technical amendment or
amendments to the Plan which in the opinion of counsel for the
Plan Sponsor are required by law and are deemed advisable by the
Chief Executive Officer of the Plan Sponsor and to so adopt and
execute any other discretionary amendment or amendments to the
Plan which are deemed advisable by the Chief Executive Officer of
the Plan Sponsor so long as any such amendments do not, in view of
the Chief Executive Officer of the Plan Sponsor, materially
increase costs of the Plan to the Employer.
11.1(c) Termination of the Plan shall mean termination of active
participation by Participants, but shall not mean immediate
payment of all vested Accrued Benefits unless the Plan Sponsor so
directs. On termination of the Plan, the Board of the Plan Sponsor
may provide for the acceleration of payment of the vested Accrued
Benefits of all affected Participants on such basis as it may
direct.
11.2 Effect of Employer Merger, Consolidation or Liquidation.
Notwithstanding the foregoing provisions of this ARTICLE XI, the
merger or liquidation of any Employer into any other Employer or the
consolidation of two (2) or more of the Employers shall not cause the
Plan to terminate with respect to the merging, liquidating or
consolidating Employers, provided that the Plan has been adopted or is
continued by and has not terminated with respect to the surviving or
continuing Employer.
ARTICLE XII
Miscellaneous
12.1 Headings. The headings in the Plan have been inserted for convenience of
reference only and are to be ignored in any construction of the provisions
hereof.
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12.2 Gender and Number. In the construction of the Plan, the masculine shall
include the feminine or neuter and the singular shall include the plural
and vice-versa in all cases where such meanings would be appropriate.
12.3 Governing Law. The Plan and the Fund shall be construed,
enforced and administered in accordance with the laws of the
Commonwealth of Virginia, and any federal law pre-empting the same.
Unless federal law specifically addresses the issue, federal law shall
not pre-empt applicable state law preventing an individual or person
claiming through him from acquiring property or receiving benefits as a
result of the death of a decedent where such individual caused the death.
12.4 Employment Rights. Participation in the Plan shall not give any employee
the right to be retained in the Employer's employ nor, upon dismissal or
upon his voluntary termination of employment, to have any right or
interest in the Fund other than as herein provided.
12.5 Conclusiveness of Employer Records. The records of the Employer with
respect to age, service, employment history, compensation, absences,
illnesses and all other relevant matters shall be conclusive for purposes
of the administration of the Plan.
12.6 Right to Require Information and Reliance Thereon. The Plan Sponsor
and the Administrator shall have the right to require any Participant,
Beneficiary or other person receiving benefit payments to provide it with
such information, in writing, and in such form as it may deem necessary
to the administration of the Plan and may rely thereon in carrying out
its duties hereunder. Any payment to or on behalf of a Participant or
Beneficiary in accordance with the provisions of the Plan in good faith
reliance upon any such written information provided by a Participant or
any other person to whom such payment is made shall be in full
satisfaction of all claims by such Participant and his Beneficiary;
and any payment to or on behalf of a Beneficiary in accordance with the
provisions of the Plan in good faith reliance upon any such written
information provided by such Beneficiary or any other person to whom
such payment is made shall be in full satisfaction of all claims by such
Beneficiary.
12.7 Alienation and Assignment. The interests of each Participant under the
Plan are not subject to claims of the Participant's creditors; and neither
the Participant, nor his Beneficiary, shall have any right to sell,
assign, transfer or otherwise convey the right to receive any payments
hereunder or any interest under the Plan, which payments and interest are
expressly declared to be non-assignable and non-transferable.
12.8 Notices and Elections.
12.8(a) Except as provided in subparagraph 12.8(b), all notices required
to be given in writing and all elections, consents, applications
and the like required to be made in writing, under any provision
of the Plan, shall be invalid unless made on such forms as may be
provided or approved by the Administrator and, in the case of a
notice, election, consent or application by a Participant or
Beneficiary, unless executed by the Participant or Beneficiary
giving such notice or making such election, consent or
application.
12.8(b) Subject to limitations under applicable provisions of the Code or
the Act (such as the requirement that spousal consent be in
writing), the Administrator is authorized in its discretion to
accept other means for receipt of effective notices, elections,
consent and/or application by Participants and/or Beneficiaries,
including but not limited to interactive voice systems, on such
basis and for such purposes as it determines from time to time.
12.9 Delegation of Authority. Whenever the Plan Sponsor or any Employer is
permitted or required to perform any act, such act may be performed by its
Chief Executive Officer, its President or its Board of Directors or by any
other person duly authorized by any of the foregoing.
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12.10 Service of Process. The Administrator shall be the agent for service of
process on the Plan.
12.11 Construction. This Plan and the Fund are created for the exclusive benefit
of Eligible Employees of the Employer and their Beneficiaries and shall be
interpreted and administered in a manner consistent with their being an
unfunded deferred compensation plan maintained for a select group of
management or highly compensated employees (sometimes referred to as a
"top-hat" plan) described in Sections 201(2), 301(a)(3) and 401(a)(1) of
the Act. If the fund is maintained pursuant to a Trust Agreement, it is
intended to be a grantor trust, of which the Plan Sponsor or, if so
provided, the Employer is the grantor, within the meaning of subpart E,
part I, subchapter J, chapter 1, subtitle A of the Code, and shall be
construed accordingly.
ARTICLE XIII
Participation by Additional Employers
13.1 Adoption by Additional Employers. Any Affiliate with employees covered by
the Plan Sponsor's executive compensation plan shall automatically be
considered to adopt and participate in the Plan, unless otherwise
expressly provided by the Plan Sponsor.
13.2 Termination Events with Respect to Employers Other Than the Plan Sponsor.
13.2(a) The Plan shall terminate with respect to any Employer other than
the Plan Sponsor, and such Employer shall automatically cease to
be a participating Employer in the Plan, upon the happening of any
of the following events:
(i) The Employer's ceasing to have employees covered by the Plan
Sponsor's executive compensation plan
(ii) The Employer's ceasing to be an Affiliate.
(iii) Action by the Board or Chief Executive Officer of the Plan
Sponsor terminating an Employer's participation in the Plan
and specifying the date of such termination. Notice of such
termination shall be delivered to the Administrator and the
former participating Employer.
13.2(b) Termination of the Plan with respect to any Employer shall mean
termination of active participation of the Participants employed
by such Employer, but shall not mean immediate payment of all
vested Accrued Benefits with respect to the Employees of such
Employer unless the Plan Sponsor so directs. On termination of the
Plan with respect to any Employer, the Board of the Plan Sponsor
may provide for the acceleration of payment of the vested Accrued
Benefits of all affected Participants of that former participating
Employer on such basis as it may direct.
85
CADMUS NON-QUALIFIED THRIFT PLAN
IN WITNESS WHEREOF, the Plan Sponsor and each other participating
Employer, pursuant to the resolution duly adopted by its Board, has caused
this Plan to be signed on its behalf by its duly authorized officer or
member of its Board of Directors as of this 20 day of June, 1995.
CADMUS COMMUNICATIONS CORPORATION,
Plan Sponsor and participating Employer
By: C. S. Gillispie, Jr.
--------------------------------(SEAL)
Its Chairman & Chief Executive Officer
86
CADMUS NON-QUALIFIED THRIFT PLAN
Appendix A
(As of April 1, 1996)
List of Available Investment Funds
A-1.1 Available Investment Funds. The Available Investments Funds, each
of which shall be considered a separate Fund division, are the
following regulated investment companies and/or collective trust
funds sponsored by T. Rowe Price Associates, Inc. or any of its
affiliates (sometimes referred to as the "T. Rowe Price investment funds"
or "T. Rowe Price Fund divisions"):
(i) T. Rowe Price Prime Reserve Fund (replacing the T. Rowe Price
Stable Value Fund).
(ii) T. Rowe Price Balanced Fund.
(iii) T. Rowe Price Equity Index Fund.
(iv) T. Rowe Price International Stock Fund.
(v) T. Rowe Price Growth Stock Fund.
(vi) T. Rowe Price Small-Cap Value Fund.
(vii) T. Rowe Price U.S. Treasury Intermediate Fund (first
available April 1, 1996).
(viii) T. Rowe Price New Horizons Fund (first available
April 1, 1996).
A-1.2 Default Fund. The Default Fund is the T. Rowe Price Balanced Fund.
87