WARD, ROVELL & VAN EEPOEL, P.A.
TAMPA, FL
AMENDMENT AND RESTATEMENT
OF THE
PSS WORLD MEDICAL, INC. SAVINGS PLAN
Effective as of April 1, 2002
AMENDMENT AND RESTATEMENT
OF THE
PSS WORLD MEDICAL, INC. SAVINGS PLAN
Table of Contents
Page
ARTICLE I Definitions...............................................................................I-1
ARTICLE II Amendment and Restatement of the Plan....................................................II-9
ARTICLE III Purpose of the Plan and the Trust.......................................................III-9
ARTICLE IV Plan Administrator.......................................................................IV-9
ARTICLE V Eligibility and Participation.............................................................V-9
ARTICLE VI Contributions to the Trust...............................................................VI-9
ARTICLE VII Participants' Accounts..................................................................VII-9
ARTICLE VIII Benefits Under the Plan................................................................VIII-9
ARTICLE IX Payments of Benefits.....................................................................IX-9
ARTICLE X Preretirement Withdrawals.................................................................X-9
ARTICLE XI Directed Investments.....................................................................XI-9
ARTICLE XII Trust Fund..............................................................................XII-9
ARTICLE XIII Expenses of Administration of the Plan and the
Trust Fund.............................................................................XIII-9
ARTICLE XIV Amendment and Termination...............................................................XIV-9
ARTICLE XV Miscellaneous............................................................................XV-9
AMENDMENT AND RESTATEMENT
OF THE
PSS WORLD MEDICAL, INC. SAVINGS PLAN
This Amendment and Restatement of the PSS World Medical, Inc. Savings
Plan (formerly known as the PSS World Medical, Inc. Employee Stock Ownership and
Savings Plan) is made and entered into effective for all purposes as of April 1,
2002, except as otherwise set forth herein, by PSS World Medical, Inc. (the
"Company").
W I T N E S S E T H:
WHEREAS, the Company has previously adopted the PSS World Medical, Inc.
Employee Stock Ownership and Savings Plan, which has been amended from time to
time (as amended, the "Plan"); and
WHEREAS, the Company is authorized and empowered to amend the Plan; and
WHEREAS, the Company deems it advisable and in the best interests of
the Participants to amend the Plan to provide for Participant directed
investment of all Accounts and to convert the Plan from an employee stock
ownership plan to a profit sharing plan.
NOW, THEREFORE, the Plan is hereby amended and restated in its entirety
to read as follows:
ARTICLE I
Definitions
1.1 "Account" or "Accounts" shall mean, as required by the context, the
entire amount held from time to time for the benefit of any one Participant, or
a portion thereof attributable to a Participant's Elective Contributions
Account, Employer Contributions Account, Matching Contributions Account,
Qualified Matching Contributions Account, Qualified Non-Elective Contributions
Account, and/or Rollover/Merger Account.
1.2 "Actual Contribution Percentage" shall mean, with respect to a group of
Participants for the Plan Year, the average of the Actual Contribution Ratios
(calculated separately for each member of the group) of each Participant who is
a member of such group.
1.3 "Actual Contribution Ratio" shall mean the ratio of the amount of
Matching Contributions (including any Elective Contributions, Qualified Matching
Contributions, and Non-Elective Contributions that may be treated as matching
contributions in accordance with Treasury Regulation Section 1.401(m)-1(b)(5))
made on behalf of a Participant for a Plan Year to the Participant's
Compensation for the Plan Year.
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1.4 "Actual Deferral Percentage" shall mean, with respect to a group of
Participants for the Plan Year, the average of the Actual Deferral Ratios
(calculated separately for each member of the group) of each Participant who is
a member of such group.
1.5 "Actual Deferral Ratio" shall mean the ratio of the amount of Elective
Contributions (including Elective Contributions by Highly Compensated Employees
in excess of the limitation set forth in section 6.1(b)(1) to the extent
required by Treasury Regulation Section 1.402(g)-1(e)(1)(ii), and any Qualified
Matching Contributions and Non-Elective Contributions treated as Elective
Contributions made on behalf of a Participant for a Plan Year to the
Participant's Compensation for the Plan Year.
1.6"Additional Elective Deferral Contributions" shall mean a contribution
pursuant to section 6.2 by an Employer on behalf of a Participant.
1.7 "Administrator" shall mean the Plan Administrator.
1.8 "Affiliate" shall mean, with respect to an Employer, any corporation
other than such Employer that is a member of a controlled group of corporations,
within the meaning of Section 414(b) of the Code, of which such Employer is a
member; all other trades or businesses (whether or not incorporated) under
common control, within the meaning of Section 414(c) of the Code, with such
Employer; any service organization other than such Employer that is a member of
an affiliated service group, within the meaning of Section 414(m) of the Code,
of which such Employer is a member; and any other organization that is required
to be aggregated with such Employer under Section 414(o) of the Code. For
purposes of determining the limitations on Annual Additions, the special rules
of Section 415(h) of the Code shall apply.
1.9 "Agreement and Declaration of Trust" shall mean the agreement providing
for the Trust Fund or Funds, as entered into between the Company and the Trustee
and as the agreement may be amended from time to time.
1.10 "Annual Additions" shall mean, with respect to a Limitation Year, the
sum of:
(a) the amount of the contributions made by the Employers (including
elective contributions other than amounts distributed as "excess
deferrals" in accordance with Treasury Regulation Section
1.402(g)-1(e)(2) or (3)) and allocated to the Participant under any
defined contribution plan maintained by an Employer or an Affiliate;
provided, however, that Additional Elective Deferral Contributions (and
any other contribution subject to Section 414(v) of the Code and made
to any defined contribution plan maintained by an Employer or an
Affiliate) shall not be taken into account;
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(b) the amount of the Employee's contributions (other than Rollover
Contributions, if any) to any contributory defined contribution plan
maintained by an Employer or an Affiliate;
(c) any forfeitures separately allocated to the Participant under any
defined contribution plan maintained by an Employer or an Affiliate;
and
(d) if the Participant is a Key Employee, to the extent required by
law, any contributions allocated to any individual account on behalf
of such Participant under Section 401(h) or Section 419A(d) of the
Code.
1.11 "Board of Directors" and "Board" shall mean the board of directors of
the Company or, when required by the context, the board of directors of an
Employer other than the Company.
1.12 "Break in Service" shall mean a 12-month Plan Year in which an
Employee has 500 or fewer Hours of Service, and it shall be deemed to occur on
the last day of any such Plan Year. For any Plan Year of less than 12 months, a
"Break in Service" shall be credited to an Employee who has 500 or fewer Hours
of Service during the 12-month period beginning on the first day of such short
Plan Year.
1.13 "Code" shall mean the Internal Revenue Code of 1986, as amended, or
any successor statute. Reference to a specific section of the Code shall include
a reference to any successor provision.
1.14 "Company" shall mean PSS World Medical, Inc. and its successors.
1.15 "Company Stock Fund" shall mean the trust fund established under the
Agreement and Declaration of Trust between the Company and the Trustee from
which the amounts of supplementary compensation provided by the Plan and
invested primarily in common stock of the Company are to be paid or are to be
funded.
1.16 "Compensation"
(a) The term "Compensation" shall mean the regular salaries and wages,
overtime pay, bonuses, commissions and other amounts paid by an
Employer and taxable to the Employee, as well as elective
contributions made on behalf of the Employee to this Plan pursuant to
Section 401(k) of the Code, elective contributions made on behalf of
the Employee to any cafeteria plan maintained by an Employer pursuant
to Section 125 of the Code, and, effective for Plan Years beginning on
or after January 1, 2001, elective amounts on behalf of the Employee
that are not includable in his gross income by reason of Section
132(f)(4) of the Code. The term "Compensation" shall not include third
party disability payments, tax deferred stock options, deductible
relocation expense payments, credits or benefits under this Plan, any
amount contributed to any pension, employee welfare, life insurance or
health insurance plan or arrangement (other than elective
contributions to this Plan and any cafeteria plan), or any other
tax-favored fringe benefits.
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(b) For purposes of determining a Participant's Actual Deferral Ratios
and Actual Contribution Ratios, an Employer may limit the period for
which Compensation is taken into account to that portion of the Plan
Year in which the Employee was a Participant so long as this limit is
applied uniformly to all eligible Employees under the Plan for the
Plan Year.
(c) The annual Compensation of each Participant taken into account in
determining allocations for any Plan Year beginning after December 31,
2001, shall not exceed $200,000.00, as adjusted for cost-of-living
increases in accordance with Section 401(a)(17)(B) of the Code. Annual
Compensation means Compensation during the Plan Year or such other
consecutive 12-month period over which Compensation is otherwise
determined under the Plan. The cost-of-living adjustment in effect for
a calendar year applies to annual Compensation for the determination
period that begins with or within such calendar year.
1.17 "Direct Rollover" shall mean a payment of an Eligible Rollover
Distribution by the Plan to an Eligible Retirement Plan specified by the
Distributee.
1.18 "Distributee" shall mean
(a) a Participant, or former Participant, who is entitled to benefits
payable as a result of his retirement, disability or other severance
from employment as provided in Article VIII,
(b) a Participant's, or former Participant's, surviving Eligible
Spouse who is entitled to death benefits payable pursuant to section
8.4, and
(c) a Participant's, or former Participant's, spouse or former spouse
who is the alternate payee under a qualified domestic relations order,
as defined in Section 414(p) of the Code, entitled to benefits payable
as provided by section 15.2(b).
1.19 "Early Retirement Date" shall mean the first date on which a
Participant has reached the age of 55 years and completed ten Years of Service.
1.20 "Earnings" attributable to any Pooled Investment Fund (other than any
pooled Employer Securities Accounts or Other Investments Accounts) shall mean,
with respect to a Valuation Period, the aggregate of the unrealized appreciation
or depreciation accruing to the Pooled Investment Fund during such a period; and
the income earned or the loss sustained by the Pooled Investment Fund during
such period, whether from investments or from the sale or exchange of assets.
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The Earnings attributable to a separate portion of a Segregated Investment Fund
(other than any segregated Employer Securities Accounts or Other Investments
Accounts) credited to a Participant's Account for any Valuation Period shall be
determined by multiplying the number of shares of the Segregated Investment Fund
credited to the Participant's Account by the difference between the value of
each share for the current Valuation Date and the value of each share as of the
most recent preceding Valuation Date. The Earnings attributable to any portion
of the Company Stock Fund credited to any Other Investments Accounts shall mean,
with respect to a Valuation Period, (i) cash dividends received on shares of
Employer Securities and (ii) the aggregate of the unrealized appreciation or
depreciation occurring in the value of, and that portion of the income earned or
the loss sustained by, the Other Investments Account during such period.
1.21 "Effective Date" of this Amendment and Restatement shall mean April 1,
2002, except as otherwise set forth herein.
1.22 "Elective Contribution" shall mean a contribution pursuant to section
6.1 by an Employer on behalf of a Participant.
1.23 "Elective Contributions Account" shall mean an account established
pursuant to section 7.2 with respect to contributions made to this Plan under
salary reduction agreements pursuant to section 6.1. A Participant's Elective
Contributions Account shall include Additional Elective Deferral Contributions
made to this Plan pursuant to section 6.2. In addition, a Participant's Elective
Contribution Account shall include amounts previously credited
(a) as salary reduction contributions to the 401(k) Plan (and earnings
attributable thereto) on behalf of the Participant prior to the merger
of the 401(k) Plan with this Plan effective October 1, 1993,
(b) to the Participant's "Employer Contributions Account" in this Plan
as of December 31, 1995, under the terms of this Plan in effect as of
such date,
(c) to the Participant's "ESOP Elective Contributions Account" in this
Plan under the terms of this Plan as in effect as of July 31, 1999,
(d) to the Participant's "401(k) Elective Contributions Account" in
this Plan under the terms of this Plan as in effect as of July 31,
1999,
(e) to the Participant's "Elective Contributions Account" in the PSS
ESOP as of the date of its merger with this Plan,
(f) as salary reduction contributions (and earnings attributable
thereto) credited to the "Merger Accounts" attributable to the
Participant in this Plan under the terms of this Plan as in effect as
of July 31, 1999,
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(g) as salary reduction contributions (and earnings attributable
thereto) on behalf of the Participant to the PSS/Taylor Plan prior to
the merger of the PSS/Taylor Plan with this Plan effective April 21,
2000,
(h) as salary deferral contributions (and earnings attributable
thereto) on behalf of the Participant to the National Med Supply Plan
prior to the merger of the National Med Supply Plan with this Plan
effective August 1, 2001, and
(i) to the Participant's "Elective Contributions Account" in this Plan
under the terms of this Plan as in effect immediately before this
Amendment and Restatement.
1.24 "Eligibility Date" shall mean the first day of each Plan Year and the
first day of each calendar month within the Plan Year.
1.25 "Eligible Retirement Plan" shall mean an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, an annuity contract described in Section 403(b) of the Code,
a qualified trust described in Section 401(a) of the Code, or an eligible plan
under Section 457(b) of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or political
subdivision of a state and which agrees to separately account for amounts
transferred into such plan from this Plan, that, in each case, accepts a
Distributee's Eligible Rollover Distribution.
1.26 "Eligible Rollover Distribution" shall mean any distribution of all or
any portion of the balance to the credit of a Distributee, other than:
(a) any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made
(1) for the life (or life expectancy) of the Distributee, or the
joint lives (or life expectancies) of the Distributee and the
Distributee's designated beneficiary, or
(2) for a specified period of ten years or more;
(b) any distribution to the extent such distribution is required under
Section 401(a)(9) of the Code; and
(c) 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); and
(d) any hardship withdrawal.
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Notwithstanding the preceding provisions of this section, an Eligible Rollover
Distribution shall not include one or more distributions during a Plan Year with
respect to a Participant if the aggregate amount distributed during the Plan
Year is less than $200 (adjusted under such regulations as may be issued from
time to time by the Secretary of the Treasury).
1.27 "Eligible Spouse" shall mean a Participant's husband or wife.
1.28 "Employee"
(a) The term "Employee" shall mean any person employed by an Employer
or an Affiliate other than:
(1) a member of a collective bargaining unit if retirement
benefits were a subject of good faith bargaining between such
unit and an Employer, and
(2) a nonresident alien who does not receive earned income from
sources within the United States.
(b) The term "Employee" shall also include any leased employee of the
Employer; provided, however, that contributions or benefits provided
by the leasing organization that are attributable to services
performed for such Employer shall be treated as provided by such
Employer. The preceding sentence shall not apply to any leased
employee if:
(1) leased employees do not constitute more than twenty percent
(20%) of the Employer's Non-Highly Compensated Employees (as
determined without regard to this section 1.28(b), and
(2) such leased employee is covered by a money purchase pension
plan providing:
(A) a nonintegrated employer contribution rate of at least
10% of compensation (as defined in Section 414(n) of the
Code),
(B) immediate participation, and
(C) full and immediate vesting.
(c) The term "leased employee," as used in this section, means any
person (other than an employee of the Employer) who, pursuant to an
agreement between the Employer and any other person ("leasing
organization"), has performed services for the Employer (or for the
Employer and one or more Affiliates) on a substantially full time
basis for a period of at least one year and the individual's services
are performed under the primary direction or control of such Employer.
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1.29 "Employer" shall mean the Company, Diagnostic Imaging, Inc., Gulf
South Medical Supply, Inc., PSS Service, Inc., WorldMed, Inc., Physician Sales &
Service Limited Partnership, Physician Sales & Service, Inc., and any other
subsidiary, related corporation, or other entity that adopts this Plan with the
consent of the Company.
1.30 "Employer Discretionary Contribution" shall mean a contribution in
cash or Employer Securities pursuant to section 6.4 by an Employer on behalf of
a Participant.
1.31 "Employer Contributions Account" shall mean an account established
pursuant to section 7.2 with respect to contributions made as Employer
Discretionary Contributions pursuant to section 6.4. A Participant's Employer
Contributions Account shall include amounts previously credited
(a) to the Participant's "ESOP Matching Contributions Account" in this
Plan under the terms of the Plan in effect immediately before August
1, 1999,
(b) to the Participant's "ESOP Employer Contributions Account" in this
Plan under the terms of the Plan in effect immediately before August
1, 1999, and
(c) to the Participant's "Employer Contributions Account" in the Plan
immediately before this Amendment and Restatement.
1.32 "Employer Securities" shall mean common stock, any other type of stock
or any marketable obligation (as defined in Section 407(e) of ERISA) issued by
the Company or any Affiliate of the Company.
1.33 "Employer Securities Account" shall mean a subaccount that may be
established pursuant to section 7.2 with respect to amounts invested in common
stock of the Company held within the Company Stock Fund.
1.34 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, or any successor statute. References to a specific section of
ERISA shall include references to any successor provisions.
1.35 "Fair Market Value" shall mean, for purposes of the valuation of
Employer Securities, the closing price (or, if there is no closing price, then
the closing bid price) of such Employer Securities as reported on the Composite
Tape, or if not reported thereon, then such price as reported in the trading
reports of the principal securities exchange in the United States on which such
Employer Securities are listed, or if the Employer Securities are not listed on
a securities exchange in the United States, the mean between the dealer closing
"bid" and "ask" prices on the over-the-counter market as reported by the
National Association of Securities Dealers Automated Quotation System (NASDAQ),
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or NASDAQ's successor, or if not reported on NASDAQ, the fair market value of
the securities as determined in good faith and based on all relevant factors;
provided, however, that the Fair Market Value of Employer Securities not readily
tradable on an established securities market shall be determined by an
independent appraiser pursuant to Section 401(a)(28)(C) of the Code.
1.36 "401(k) Plan" shall mean the Physician Sales & Service, Inc. 401(k)
Plan, as established and maintained by the Employers prior to its merger into
this Plan effective as of October 1, 1993.
1.37 "Fund" shall mean an investment fund established pursuant to Article
XI.
1.38 "Hardship" shall mean an immediate and heavy financial need of the
Participant for which a distribution from the Participant's Rollover/Merger
Account and Elective Contributions Account is necessary to satisfy such need, as
described in section 10.1.
1.39 "Highly Compensated Employee"
(a) The term "Highly Compensated Employee" shall mean any Employee:
(1) who was a 5% owner of an Employer or an Affiliate during the
Plan Year or the immediately preceding Plan Year; or;
(2) whose Section 415 Compensation was more than $80,000
(adjusted under such regulations as may be issued by the
Secretary of the Treasury) for the immediately preceding Plan
Year, and who was a member of the "top paid group" for such
preceding Year. As used herein, "top paid group" shall mean all
Employees who are in the top 20% of the Employer's or an
Affiliate's work force (without regard to employees excludable
pursuant to Section 414(q) of the Code) on the basis of Section
415 Compensation paid during the year.
(b) The term "Highly Compensated Employee" shall also mean any former
Employee who separated from service (or was deemed to have separated
from service) prior to the Plan Year, performs no service for an
Employer during the Plan Year, and was an actively employed Highly
Compensated Employee in the separation year or any Plan Year ending on
or after the date the Employee attained age 55.
1.40 "Hour of Service"
(a) The term "Hour of Service" shall mean
(1) an hour for which an Employee is paid, or entitled to
payment, for the performance of duties for an Employer or an
Affiliate;
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(2) an hour for which an Employee is paid, or entitled to
payment, by an Employer or an Affiliate on account of a period of
time during which no duties are performed (irrespective of
whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability),
lay-off, jury duty, military duty or leave of absence.
Notwithstanding the preceding,
(A) no more than 501 Hours of Service shall be credited
under this section 1.40(a)(2) to an Employee on account of
any single continuous period during which the Employee
performs no duties (whether or not such period occurs in a
single Plan Year);
(B) an hour for which an Employee is directly or indirectly
paid, or entitled to payment, on account of a period during
which no duties are performed shall not be credited to the
Employee if such payment is made or due under a plan
maintained solely for the purpose of complying with
applicable workmen's compensation, or unemployment
compensation or disability insurance laws; and
(C) an hour shall not be credited for a payment which solely
reimburses an Employee for medical or medically related
expenses incurred by the Employee; and
(3) an hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Employer or an
Affiliate; provided, that the same Hour of Service shall not be
credited both under section 1.40(a)(1) or section 1.40(a)(2), as
the case may be, and under this section 1.40(a)(3). Crediting of
an Hour of Service for back pay awarded or agreed to with respect
to periods described in section 1.40(a)(2) shall be subject to
the limitations set forth in that section.
The definition set forth in this section 1.40(a) is subject to the special rules
contained in Department of Labor Regulations Sections 2530.200b-2(b) and (c),
and any regulations amending or superseding such sections, which special rules
are hereby incorporated in the definition of "Hour of Service" by this
reference.
(b) Each Employee who is not required to maintain records of his
actual Hours of Service during any month shall be credited with 190
Hours of Service for such month if he would be credited with at least
one Hour of Service during such month under section 1.40(a).
(c) (1) Notwithstanding the other provisions of this "Hour of Service"
definition, in the case of an Employee who is absent from work for any
period by reason of her pregnancy, by reason of the birth of a child
of the Employee, by reason of the placement of a child with the
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Employee in connection with the adoption of such child by the Employee
or for purposes of caring for such child for a reasonable period
beginning immediately following such birth or placement, the Employee
shall be treated as having those Hours of Service described in section
1.40(c)(2).
(2) The Hours of Service to be credited to an Employee under the
provisions of section 1.40(c)(1) are the Hours of Service that
otherwise would normally have been credited to such Employee but for
the absence in question or, in any case in which the Plan is unable to
determine such hours, eight Hours of Service per day of such absence;
provided, however, that the total number of hours treated as Hours of
Service under this section 1.40(c) by reason of any such pregnancy or
placement shall not exceed 501 hours.
(3) The hours treated as Hours of Service under this section 1.40(c)
shall be credited only in the Plan Year in which the absence from work
begins, if the crediting is necessary to prevent a Break in Service in
such Plan Year or, in any other case, in the immediately following
Plan Year.
(4) Credit shall be given for Hours of Service under this section
1.40(c) solely for purposes of determining whether a Break in Service
has occurred for participation or vesting purposes; credit shall not
be given hereunder for any other purposes (including, without
limitation, benefit accrual).
(5) Notwithstanding any other provision of this section 1.40(c), no
credit shall be given under this section 1.40(c) unless the Employee
in question furnishes to the Administrator such timely information as
the Administrator may reasonably require to establish that the absence
from work is for reasons referred to in section 1.40(c)(1) and the
number of days for which there was such an absence.
1.41 "Key Employee" shall mean any employee or former employee (including
any deceased employee) who, at any time during the Plan Year that includes the
determination date, was an officer of an Employer or an Affiliate having annual
compensation greater than $130,000 (as adjusted under Section 416(i)(1) of the
Code for Plan Years beginning after December 31, 2001), a 5-percent owner of an
Employer or an Affiliate, or a 1-percent owner of an Employer or an Affiliate
having annual compensation of more than $150,000. For this purpose, compensation
means compensation within the meaning of Section 415(c)(3) of the Code. The
determination of who is a Key Employee will be made in accordance with Section
416(i)(1) of the Code and the applicable regulations and other guidance of
general applicability issued thereunder.
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1.42 "Leave of Absence" shall mean the time granted to an Employee for
vacation, sick leave, temporary layoff or other purposes, all as authorized in
accordance with uniform rules adopted by his Employer from time to time. Leave
of Absence shall also include the time that an Employee serves in the armed
forces of the United States of America during a period of national emergency or
as a result of the operation of a compulsory military service law of the United
States of America, and during any period after his discharge from such armed
forces in which his employment rights are guaranteed by law.
1.43 "Limitation Year" shall mean the Plan Year.
1.44 "Matching Contribution" shall mean a contribution pursuant to section
6.3(a)(2) by an Employer on behalf of a Participant.
1.45 "Matching Contributions Account" shall mean an account established
pursuant to section 7.2 with respect to Matching Contributions made pursuant to
section 6.3(a)(2), and shall include amounts previously credited to the
Participant's "Non-ESOP Matching Contribution Account" in this Plan under the
terms of this Plan as in effect immediately before this Amendment and
Restatement.
1.46 "Matching Contributions Allocation Period" shall mean the three-month
period ending each March 31, June 30, September 30 and December 31 for Plan
Years beginning on or after April 1, 2001, or such other periods as may be
selected by the Company.
1.47 "National Med Supply Plan" shall mean the National Med Supply Company
401(k) Savings Plan, as maintained by Gulf South Medical Supply Company, Inc.
prior to its merger into this Plan effective as of August 1, 2001.
1.48 "Non-Elective Contribution" shall mean a contribution pursuant to
section 6.5 by an Employer on behalf of a Participant.
1.49 "Non-Highly Compensated Employee" shall mean, with respect to any Plan
Year, an Employee who is not a Highly Compensated Employee.
1.50 "Non-Key Employee" shall mean, with respect to any Plan Year, an
Employee or former Employee who is not a Key Employee (including any such
Employee who formerly was a Key Employee).
1.51 "Normal Retirement Date" shall mean the date on which a Participant
attains the age of 65 years.
1.52 "Other Investments Account" shall mean a subaccount established
pursuant to section 7.2 with respect to amounts invested in assets other than
common stock of the Company held within the Company Stock Fund.
1.53 "Participant" shall mean any eligible Employee of an Employer who has
become a Participant under the Plan and shall include any former employee of an
Employer who became a Participant under the Plan and (1) who still has a balance
in an Account under the Plan or (2) is entitled to an allocation of a
contribution pursuant to section 7.5(b).
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1.54 "Plan" shall mean the PSS World Medical, Inc. Savings Plan as herein
set forth, as it may be amended from time to time.
1.55 "Plan Administrator" shall mean the Company.
1.56 "Plan Year" shall mean the 12-month period ending on March 31st of
each year.
1.57 "Pooled Investment Fund" shall mean a Fund established under Article
XI, the combined assets of which shall consist of the
common investments of all Participants selecting the Fund.
1.58 "PSS ESOP" shall mean the PSS World Medical, Inc. Employee Stock
Ownership Plan (formerly known as the TriStar Imaging Systems, Inc. Employee
Stock Ownership and Savings Plan), as maintained by the Employers prior to its
merger into this Plan effective as of August 1, 1999.
1.59 "PSS/Taylor Plan" shall mean the PSS/Taylor Medical Profit Sharing
401(k) Plan, as maintained by the Employers prior to its merger into this Plan
effective as of April 21, 2000.
1.60 "Qualified Matching Contribution" shall mean a Matching Contribution
pursuant to section 6.3(a)(1) by an Employer on behalf of a Participant.
1.61 "Qualified Matching Contributions Account" shall mean an account
established pursuant to section 7.2 with respect to Qualified Matching
Contributions made pursuant to sections 6.3(a)(1). A Participant's Qualified
Matching Contributions Account shall also include amounts previously credited to
the Participant's "Post-1998 ESOP Matching Contribution Account" in this Plan
under the terms of this Plan as in effect immediately before this Amendment and
Restatement.
1.62 "Qualified Non-Elective Contributions Account" shall mean an account
established pursuant to section 7.2 with respect to Non-Elective Contributions
made pursuant to section 6.5 (and its predecessor provisions).
1.63 "Rollover Contribution" shall mean a contribution pursuant to section
6.9 by an Employer on behalf of an Employee.
1.64 "Rollover/Merger Account" shall mean an account established pursuant
to section 7.2 with respect to qualified Rollover Contributions made pursuant to
section 6.9. A Participant's Rollover/Merger Account shall also be credited with
amounts previously credited to the "Rollover/Merger Account" in this Plan under
the terms of this Plan as in effect immediately before this Amendment and
Restatement, including amounts previously credited to,
I-13
(a) the Brown's Medical Supply Co. Retirement Savings Plan and the
Y-Laboratories & Supplies, Inc. 401(k) Retirement Plan prior to the
merger of the Brown's Medical Supply Co. Retirement Savings Plan and
the Y-Laboratories & Supplies, Inc. 401(k) Retirement Plan with this
Plan effective as of January 1, 1997 and October 1, 1997, respectively
(other than salary reduction contributions and adjustments
attributable thereto),
(b) the PSS ESOP prior to its merger with this Plan as of August 1,
1999 (other than amounts attributable to the "Elective Contribution
Account" and the "ESOP Contribution Account" in the PSS ESOP),
(c) the PSS/Taylor Plan prior to its merger with this Plan as of April
21, 2000 (other than salary reduction contributions and adjustments
thereto), and
(d) the National Med Supply Plan prior to its merger with this Plan as
of August 1, 2001 or as soon thereafter as practicable (other than
salary deferral contributions and adjustments thereto).
1.65 "Section 415 Compensation" shall mean:
(a) Wages, salaries, and fees for professional services and other
amounts received (without regard to whether or not an amount is paid
in cash) for personal services actually rendered in the course of
employment with the Employer to the extent that the amounts are
includible in gross income (including, but not 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 Section 1.62-2(c) of the Income
Tax Regulations), and
(1) any elective deferral (as defined in Section 402(g)(3) of the
Code),
(2) any amount which is contributed or deferred by the Employer
at the election of the Employee and which is not includible in
the gross income of the Employee by reason of Section 125 or 457
of the Code, and
(3) effective for Plan Years beginning on and after January 1,
2001, elective amounts that are not includable in the gross
income of the Employee by reason on Section 132(f)(4) of the
Code.
(b) Section 415 Compensation shall exclude the following:
I-14
(1) Employer contributions (except as set forth in section
1.65(a) above) to a plan of deferred compensation which are not
includible in the Employee's gross income for the taxable year in
which contributed, or Employer contributions (except as set forth
in section 1.65(a) above) under a simplified employee pension or
any distributions from a plan of deferred compensation; provided,
however, that any amounts received by an Employee pursuant to an
unfunded non-qualified plan are permitted to be considered as
Section 415 Compensation in the year the amounts are includible
in the gross income of the Employee;
(2) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the
Employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture; and
(3) Amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option.
1.66 "Segregated Investment Fund" shall mean a Fund established under
Article XI, in which the assets of each Participant selecting the Fund shall be
separately invested, and for which the earnings attributable to such assets
shall be separately accounted.
1.67 "Top Heavy Plan" shall mean this Plan if the aggregate account
balances (not including Additional Elective Deferral Contributions to this Plan,
any other contributions subject to Section 414(v) of the Code, and voluntary
rollover contributions made by any Participant from an unrelated plan) of the
Key Employees and their beneficiaries for such Plan Year exceed 60% of the
aggregate account balances (not including voluntary rollover contributions made
by any Participant from an unrelated plan) for all Participants and their
beneficiaries. Such values shall be determined for any Plan Year as of the last
day of the immediately preceding Plan Year. The account balances on any
determination date shall include the aggregate distributions made with respect
to Participants during the one-year period ending on the determination date (or,
in the case of a distribution made for a reason other than separation form
service, death or disability, the "one-year period" shall be replaced with a
"five-year period"). For the purposes of this definition, the aggregate account
balances for any Plan Year shall include the account balances and accrued
benefits of all retirement plans qualified under Section 401(a) of the Code with
which this Plan is required to be aggregated to meet the requirements of Section
416(g)(2) of the Code (including terminated plans that would have been required
to be aggregated with this Plan) and all plans of an Employer or an Affiliate in
which a Key Employee participates; and such term may include (at the discretion
of the Plan Administrator) any other retirement plan qualified under Section
401(a) of the Code that is maintained by an Employer or an Affiliate, provided
the resulting aggregation group satisfies the requirements of Sections 401(a)
and 410 of the Code. All calculations shall be on the basis of actuarial
assumptions that are specified by the Plan Administrator and applied on a
uniform basis to all plans in the applicable aggregation group. The account
balance of any Participant shall not be taken into account if he has not
performed any service for an Employer during the one-year period ending on the
determination date.
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1.68 "Trust" shall mean the trust established by the Agreement and
Declaration of Trust.
1.69 "Trustee" shall mean The Chase Manhattan Bank or any successor
individual, individuals or corporation designated as trustee under the Agreement
and Declaration of Trust.
1.70 "Trust Fund" or "Trust Funds" shall mean the trust fund established
under the Agreement and Declaration of Trust between the Company and the Trustee
from which the amounts of supplementary compensation provided for by the Plan
are to be paid or are to be funded.
1.71 "Valuation Date" shall mean the last day of each Plan Year, or such
other dates as may be selected by the Plan Administrator. In the event that the
Plan Administrator designates each business day as a Valuation Date, the term
"business day" shall mean a day on which the New York Stock Exchange and the
home office of any third-party administrator that contracts with the Plan
Administrator to provide services to the Plan are open for business.
1.72 "Valuation Period" shall mean the period beginning with the first day
after a Valuation Date and ending with the next Valuation Date.
1.73 "Year of Service"
(a) The term "Year of Service" shall mean a Plan Year during which an
Employee completes 1,000 or more Hours of Service.
(b) For purposes of Article VIII and section 14.1(e), an Employee's
"Years of Service" shall not include the following:
(1) any Year of Service prior to a Break in Service, but only
prior to such time as the Participant has completed a Year of
Service after such Break in Service; and
(2) any Year of Service prior to a Break in Service if the
Participant had no vested interest in the balance of his Employer
Contributions Account at the time of such Break in Service and if
the number of consecutive years in which a Break in Service
occurred equaled or exceeded the greater of five or the number of
Years of Service completed by the Employee prior thereto (not
including any Years of Service not required to be taken into
consideration under the Plan as then in effect as a result of any
prior Break in Service); provided, however, that for these
purposes, any Break in Service resulting from a Leave of Absence
shall not be counted but shall be disregarded.
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(c) For each Employee who was employed by Gulf South Medical Supply,
Inc. (or was employed by any subsidiary of Gulf South Medical Supply,
Inc.) on March 26, 1998, such Employee's "Years of Service" shall
include, for all purposes of the Plan, service with Gulf South Medical
Supply, Inc. and each of its subsidiaries.
I-17
II-1
ARTICLE II
Amendment and Restatement of the Plan
The PSS World Medical, Inc. Employee Stock Ownership and Savings Plan
is hereby amended and restated, in its entirety, in accordance with the terms
hereof, effective April 1, 2002. Effective on such date, the Plan shall cease to
be an Employee Stock Ownership Plan, and shall be known as the "PSS World
Medical, Inc. Savings Plan."
II-1
III-1
ARTICLE III
Purpose of the Plan and the Trust
3.1 Exclusive Benefit. This Plan is created for the sole purpose of
providing benefits to the Participants and enabling them to share in the growth
of their Employer. Except as otherwise provided herein and as otherwise
permitted by law, in no event shall any part of the principal or income of the
Trust be paid to or reinvested in any Employer or be used for or diverted to any
purpose whatsoever other than for the exclusive benefit of the Participants and
their beneficiaries.
3.2 Return of Contributions. Notwithstanding the foregoing provisions of
section 3.1, any contribution made by an Employer to this Plan by a mistake of
fact may be returned to the Employer within one year after the payment of the
contribution; and any contribution made by an Employer that is conditioned upon
the deductibility of the contribution under Section 404 of the Code (each
contribution shall be presumed to be so conditioned unless the Employer
specifies otherwise) may be returned to the Employer if the deduction is
disallowed and the contribution is returned (to the extent disallowed) within
one year after the disallowance of the deduction.
3.3 Participants' Rights. The establishment of this Plan shall not be
considered as giving any Employee, or any other person, any legal or equitable
right against any Employer, any Affiliate, the Plan Administrator, the Trustee,
or the principal or the income of the Trust, except to the extent otherwise
provided by law. The establishment of this Plan shall not be considered as
giving any Employee, or any other person, the right to be retained in the employ
of any Employer or any Affiliate.
3.4 Qualified Plan. This Plan and the Trust are intended to qualify under
the Code as a tax-free employees' plan and trust, and as a cash or deferred
arrangement subject to Section 401(k) of the Code with respect to Elective
Contributions. The provisions of this Plan and the Trust should be interpreted
accordingly.
III-1
IV-3
ARTICLE IV
Plan Administrator
4.1 Administration of the Plan. The Plan Administrator shall control and
manage the operation and administration of the Plan, except with respect to
investments. The Administrator shall have no duty with respect to the
investments to be made of the funds in the Trust except as may be expressly
assigned to it by the terms of the Agreement and Declaration of Trust.
4.2 Powers and Duties. The Administrator shall have complete control over
the administration of the Plan herein embodied, with all powers necessary to
enable it to carry out its duties in that respect. Not in limitation, but in
amplification of the foregoing, the Administrator shall have the power and
discretion to interpret or construe this Plan and to determine all questions
that may arise as to the status and rights of the Participants and others
hereunder.
4.3 Direction of Trustee. It shall be the duty of the Administrator to
direct the Trustee with regard to the allocation and the distribution of the
benefits to the Participants and others hereunder.
4.4 Summary Plan Description. The Administrator shall prepare or cause to
be prepared a Summary Plan Description (if required by law) and such periodic
and annual reports as are required by law.
4.5 Disclosure. At least once each year, the Administrator shall furnish to
each Participant a statement containing the value of his interest in the Trust
Fund and such other information as may be required by law.
4.6 Conflict in Terms. The Administrator shall notify each Employee, in
writing, as to the existence of the Plan and Trust and the basic provisions
thereof. In the event of any conflict between the terms of this Plan and Trust
as set forth in this Plan and in the Agreement and Declaration of Trust and as
set forth in any explanatory booklet or other description, this Plan and the
Agreement and Declaration of Trust shall control.
4.7 Nondiscrimination. The Administrator shall not take any action or
direct the Trustee to take any action whatsoever that would result in unfairly
benefiting one Participant or group of Participants at the expense of another or
in improperly discriminating between Participants similarly situated or in the
application of different rules to substantially similar sets of facts.
4.8 Records. The Administrator shall keep a complete record of all its
proceedings as such Administrator and all data necessary for the administration
of the Plan. All of the foregoing records and data shall be located at the
principal office of the Administrator.
IV-1
4.9 Final Authority. Except to the extent otherwise required by law, the
decision of the Administrator in matters within its jurisdiction shall be final,
binding and conclusive upon each Employer and each Employee, member and
beneficiary and every other interested or concerned person or party.
4.10 Claims.
(a) Claims for benefits under the Plan may be made by a Participant or
a beneficiary of a Participant on forms supplied by the Plan
Administrator. Written notice of the disposition of a claim shall be
furnished to the claimant by the Administrator within ninety (90) days
after the application is filed with the Administrator, unless special
circumstances require an extension of time for processing, in which
event action shall be taken as soon as possible, but not later than
one hundred eighty (180) days after the application is filed with the
Administrator; and, in the event that no action has been taken within
such ninety (90) or one hundred eighty (180) day period, the claim
shall be deemed to be denied for the purposes of section 4.10(b). In
the event that the claim is denied, the denial shall be written in a
manner calculated to be understood by the claimant and shall include
the specific reasons for the denial, specific references to pertinent
Plan provisions on which the denial is based, a description of the
material information, if any, necessary for the claimant to perfect
the claim, an explanation of why such material information is
necessary and an explanation of the claim review procedure.
(b) If a claim is denied (either in the form of a written denial or by
the failure of the Plan Administrator, within the required time
period, to notify the claimant of the action taken), a claimant or his
duly authorized representative shall have sixty (60) days after the
receipt of such denial to petition the Plan Administrator in writing
for a full and fair review of the denial, during which time the
claimant or his duly authorized representative shall have the right to
review pertinent documents and to submit issues and comments in
writing. The Plan Administrator shall promptly review the claim and
shall make a decision not later than sixty (60) days after receipt of
the request for review, unless special circumstances require an
extension of time for processing, in which event a decision shall be
rendered as soon as possible, but not later than one hundred twenty
(120) days after the receipt of the request for review. If such an
extension is required because of special circumstances, written notice
of the extension shall be furnished to the claimant prior to the
commencement of the extension. The decision of the review shall be in
writing and shall include specific reasons for the decision, written
in a manner calculated to be understood by the claimant, with specific
references to the Plan provisions on which the decision is based.
IV-2
4.11 Appointment of Advisors. The Administrator may appoint such
accountants, counsel (who may be counsel for an Employer), specialists and other
persons that it deems necessary and desirable in connection with the
administration of this Plan. The Administrator, by action of its Board of
Directors, may designate one or more of its employees to perform the duties
required of the Administrator hereunder.
IV-3
ARTICLE V
Eligibility and Participation
5.1 Current Participants. Any Employee who was a Participant in this Plan
on the Effective Date of this Amendment and Restatement shall remain as a
Participant in the Plan.
5.2 Eligibility and Participation.
(a) Thereafter, any Employee of an Employer shall be eligible to
become a Participant in the Plan upon completing six (6) months of
employment following his employment commencement date. Any such
eligible Employee shall enter the Plan as a Participant, if he is
still an Employee of an Employer, on the first Eligibility Date
concurring therewith or occurring thereafter. An Employee who has
completed six (6) months of employment prior to becoming an Employee
of an Employer shall enter the Plan as a Participant on the date he
becomes an Employee of an Employer (or, if later, on the first
Eligibility Date following the completion of his eligibility
requirements). For purposes of computing an Employee's six month
eligibility period for this section 5.2,
(1) each Employee who commences employment on the first day of a
month shall complete six months of employment if he remains
employed until the last day of the fifth month following the
month of his date of employment commencement; and
(2) each Employee who commences employment on the 30th or 31st
day of a month shall complete six months of employment if he
remains employed until the last day of the sixth month following
the month of the date of his employment commencement.
(b) For each Employee previously employed by a business acquired by an
Employer on or after October 1, 1993 (directly or through the
Employer's purchase of all or substantially all of the assets of the
business), the months of employment taken into account, for purposes
of the six (6) month eligibility requirement set forth in section
5.2(a), shall include service with the Employee's predecessor employer
if:
(1) the Employee was employed by the business on the date it was
acquired by the Employer; and
(2) (A) for acquisitions occurring before January 1, 1999, the
Employee's predecessor employer employed not less than thirty
(30) employees on the date it was acquired by the Employer, and
(B) for acquisitions occurring on or after January 1, 1999,
the Employee's predecessor employer employed not less than
twenty (20) employees on the date it was acquired by the
Employer.
V-1
5.3 Former Employees. An Employee who ceases to be a Participant and who
subsequently reenters the employ of an Employer shall be eligible again to
become a Participant on the date of his reemployment.
V-2
ARTICLE VI
Contributions to the Trust
6.1 Participants' Elective Contributions.
(a) Effective January 18, 2002, each Employer shall contribute to the
Trust, on behalf of each Participant, an Elective Contribution as a
specified percentage of the Participant's Compensation in a salary
reduction agreement (if any) between the Participant and such Employer
under which the Participant elects, pursuant to the terms of this
Plan, to reduce the Compensation otherwise payable to him by an amount
allocable to his Elective Contributions Account; provided, however,
that each Participant who has elected prior to January 18, 2002 to
reduce the Compensation otherwise payable to him by a specified dollar
amount and who does not affirmatively elect to have a specific
percentage of his Compensation contributed to the Plan as an Elective
Contribution, shall be deemed to have elected to defer one (1) percent
of his Compensation to the Plan as an Elective Contribution.
(b) No Participant shall be permitted to have Elective Contributions
made under this Plan in excess of the lesser of the dollar limitation
established by Section 402(g) of the Code (and subject to
cost-of-living adjustments as required by Section 402(g)(4) of the
Code) in effect for any calendar year, or 85% of the Participant's
Compensation for the Plan Year. The minimum contribution made on
behalf of a Participant electing to make an Elective Contribution
pursuant to this section 6.1 for any Plan Year shall be 1% of his
Compensation.
(c) (1) If a Participant's Elective Contributions made pursuant
to section 6.1(a), together with any elective contributions by
the Participant to any other plans of his Employer or an
Affiliate intended to qualify under Sections 401(k) or 403(b) of
the Code, exceed the dollar limitation established by Section
402(g) of the Code (and subject to cost-of-living adjustments as
required by Section 402(g)(4) of the Code) for any calendar year,
the Administrator, upon notification from the Participant or his
Employer, shall refund to such Participant the portion of such
excess that is attributable to contributions made pursuant to
section 6.1(a), increased by the earnings thereon for such
calendar year (such earnings shall be determined by the Plan
Administrator, as of the last day of the calendar year preceding
the date the refund is made, in a manner consistent with the
provisions of section 7.5(a) and Treasury Regulation Section
1.402(g)-1(e)(5) (or any successor regulatory provision)) and
reduced by any excess Elective Contributions, and earnings, for
the Plan Year beginning with or within the calendar year that
have been previously distributed to the Participant in accordance
with the provisions of section 6.1(h). Any such refund shall be
made on or before April 15 of the calendar year following the
calendar year in which the excess Elective Contributions are
made.
VI-1
(2) If a Participant's Elective Contributions made pursuant
to section 6.1(a), together with any elective contributions
by the Participant to any other plans intended to qualify
under Sections 401(k), 403(b), 408(k) or 457 of the Code,
exceed the dollar limitation established by Section 402(g)
of the Code (and subject to cost-of-living adjustments as
required by Section 402(g)(4) of the Code) for any calendar
year (after the application of section 6.1(c)(1)), the
Administrator may refund to such Participant, at the
Participant's request, the portion of such excess that is
attributable to contributions made pursuant to section
6.1(a) increased by the earnings thereon for such calendar
year (determined as provided in section 6.1(c)(1)) and
reduced by any excess Elective Contributions, and earnings,
for the Plan Year beginning with or within the calendar year
that have been previously distributed to the Participant in
accordance with the provisions of section 6.1(h). Any such
refund shall be made on or before April 15 of the calendar
year following the calendar year in which the excess
Elective Contributions are made.
(3) Excess Elective Contributions, and earnings, shall be
determined for purposes of sections 6.1(b), 6.1(c)(1) and
6.1(c)(2) after taking into account any previous refunds to
the Participant of excess Elective Contributions, and
earnings, for the Plan Year ending with or within the
calendar year made in accordance with the provisions of
section 6.1(h).
(d) Any salary reduction agreement with respect to Elective
Contributions shall be executed (or otherwise communicated to the
Plan Administrator in a manner selected by the Administrator) and
in effect prior to the date selected by the Administrator for the
first pay period to which it applies. Any such agreement may be
revised by the Participant monthly with the approval of, and as
of such date as determined by, the Administrator (or as of any
additional dates selected by the Administrator), for pay periods
beginning after the date such revision is executed and made
effective. The Plan Administrator shall not accept any salary
reduction agreement with respect to (or to the extent applicable
to) bonuses payable to the Participant.
(e) The Administrator shall have the right to require any
Participant to reduce his Elective Contributions under any such
agreements, or to refuse deferral of all or part of the amount
set forth in such agreements, if necessary to comply with the
requirements of this Plan and the Code.
(f) A Participant may suspend further Elective Contributions to
the Plan at any time, provided the request for such suspension is
received by the Plan Administrator prior to the date selected by
the Administrator for the first pay period to which such
VI-2
suspension applies. Any Participant who suspends further
contributions relating to periodic pay may reinstate such
contributions by providing written notice to the Plan
Administrator (or other communication in a manner selected by the
Administrator) for any month thereafter (and as of the date
within such month as determined by the Administrator). Any such
notice shall be delivered within the time period designated by
the Plan Administrator.
(g) In the event that a Participant receives a withdrawal of his
Elective Contributions pursuant to section 10.1, the Participant
shall not be permitted to make any further Elective Contributions
pursuant to section 6.1(a) for a period of 6 months following the
date of such withdrawal. After the completion of the 6-month
period, the Participant may reinstate Elective Contributions in
accordance with the provisions of section 6.1(f). Additionally, a
Participant who receives a hardship withdrawal on or after
January 1, 2001, shall not have the amount of his Elective
Contributions made in the calendar year following the calendar
year in which he received the hardship withdrawal reduced by the
amount of Elective Contributions made in the calendar year in
which he received the hardship withdrawal.
(h) (1) In the event that the Elective Contributions of
Highly Compensated Employees exceed the limitations set
forth in section 6.7, the aggregate excess Elective
Contributions (plus the earnings thereon for the Plan Year
to which the excess contributions relate), determined as set
forth in section 6.1(h)(2) below, shall be distributed to
the Highly Compensated Employees as provided in section
6.1(h)(3) below on or before the 15th day of the third month
after the close of the Plan Year to which the excess
contributions relate. Notwithstanding the preceding
sentence, the Plan Administrator may delay the distribution
of any excess Elective Contributions (plus the earnings
thereon for the Plan Year to which the excess contributions
relate) attributable to an Employer beyond the 15th day of
the third month of such Plan Year, if the Employer consents
to such delay and the Administrator refunds all such excess
amounts not later than 12 months after the close of the Plan
Year to which the excess contributions relate.
(2) For purposes of section 6.1(h)(1), the amount of the
aggregate excess Elective Contributions for the Plan Year
shall be equal to the sum of the amounts of such excess
contributions attributable to each Highly Compensated
Employee for the Plan Year.
(A) In order to determine the amount of the excess Elective
Contributions attributable to each Highly Compensated
Employee, the Plan Administrator shall first reduce the
Actual Deferral Ratio of the Highly Compensated Employee
with the highest Actual Deferral Ratio for the Plan Year to
the extent required to:
VI-3
(i) enable the arrangement to satisfy the limitations set
forth in section 6.7, or
(ii) cause such Highly Compensated Employee's Actual
Deferral Ratio to equal the Actual Deferral Ratio of the
Highly Compensated Employee with the next highest Actual
Deferral Ratio.
Then, if necessary, the Plan Administrator shall reduce the
Actual Deferral Ratios of the Highly Compensated Employees with
the next highest Actual Deferral Ratio for the Plan Year
(including the Actual Deferral Ratio(s) of the Highly Compensated
Employee(s) whose Actual Deferral Ratio the Plan Administrator
already has reduced) to the extent required to comply with
section 6.1(h)(2)(A)(i) or 6.1(h)(2)(A)(ii). This process shall
then be repeated until the Actual Deferral Percentage for the
Highly Compensated Employees satisfies the limitations set forth
in section 6.7.
(B) The amount of the excess Elective Contributions that are
attributable to each Highly Compensated Employee shall equal
the remainder of
(i) the total Elective Contributions (and any Non-Elective
Contributions treated as Elective Contributions on behalf of
the Participant (determined prior to the application of this
section 6.1(h)(2)), minus
(ii) the amount determined by multiplying the Participant's
Actual Deferral Ratio (determined after application of
section 6.1(h)(2)(A)) by his Compensation used in
determining such ratio.
(3) In order to determine the dollar amount of the excess Elective
Contributions distributable to each Highly Compensated Employee
pursuant to section 6.1(h)(1), the Plan Administrator shall first
reduce the Elective Contributions of the Highly Compensated
Employee(s) with the highest dollar amount of Elective Contributions
for the Plan Year by a dollar amount equal to the lesser of
(A) the aggregate excess Elective Contributions determined under
section 6.1(h)(2), or
VI-4
(B) the dollar amount necessary to reduce such Highly Compensated
Employee's Elective Contributions to a dollar amount that is
equal to the dollar amount of Elective Contributions of the
Highly Compensated Employee with the next highest dollar amount
of such Elective Contributions.
Then, if necessary, the Plan Administrator shall reduce the Elective
Contributions of the Highly Compensated Employees with the next
highest dollar amount of such Elective Contributions for the Plan Year
(including the Highly Compensated Employee(s) whose Elective
Contributions the Plan Administrator already has reduced) to the
extent required to comply with section 6.1(h)(2). This process shall
then be repeated until the aggregate excess Elective Contributions and
determined under section 6.1(h)(2) or 6.1(h)(3)(B) have been
eliminated. The reduced amounts shall be distributed in accordance
with section 6.1(h)(1) to the Highly Compensated Employees to whom the
reductions are attributable under this section 6.1(h)(3). For purposes
of this section 6.1(h)(3), Elective Contributions shall include
amounts treated as elective contributions.
(4) The amount of excess Elective Contributions that may be
distributed under this section 6.1(h) with respect to a
Participant for a Plan Year shall be reduced by any excess
deferrals previously distributed to such Participant under
section 6.1(c) for the Participant's taxable year ending with or
within such Plan Year.
(5) The Plan Administrator may use any reasonable method for
computing the income allocable to excess contributions, provided
that the method does not violate Section 401(a)(4) of the Code,
is used consistently for all Participants and for all corrective
distributions under the Plan for the Plan Year, and is used by
the Plan for allocating income to Participants' Accounts.
6.2 Additional Elective Deferral Contributions. Effective January 1, 2002,
each Employer shall contribute to the Trust, on behalf of each eligible
Participant, an Additional Elective Deferral Contribution as specified in a
salary reduction agreement (if any) between the Participant and such Employer
under which the Participant elects, pursuant to the terms of this Plan, to
reduce the Compensation otherwise payable to him by an Additional Elective
Deferral Contribution amount allocable to his Elective Contributions Account. No
Participant shall be permitted to have an Additional Elective Deferral
Contribution made under this Plan for any Plan Year unless he will have attained
age 50 before the close of the Plan Year and he has taken all actions necessary
to maximize the Elective Contributions allocable to his Elective Contributions
Account for the Plan Year pursuant to section 6.1. No Participant shall be
permitted to have Additional Elective Deferral Contributions made under this
Plan in excess of the lesser of
VI-5
(a) the applicable dollar amount, as defined in Sections
414(v)(2)(B)(i) and 414(v)(2)(C) of the Code;
(b) the excess (if any) of (i) the Participant's Compensation for the
calendar year, over (ii) the Elective Contributions made on behalf of
the Participant for the calendar year pursuant to section 6.1; and
(c) the excess (if any) of (i) 85% of the Participant's Compensation
for the Plan Year, over (ii) the Elective Contributions made on behalf
of the Participant for such Plan Year pursuant to section 6.1.
Each Participant's Additional Elective Deferral Contribution shall be made in
accordance with, and subject to the limitations of, Section 414(v) of the Code.
Unless otherwise required by Section 414(v) of the Code, such Additional
Elective Deferral Contribution shall not be taken into account for purposes of
the provisions of this Plan implementing the requirements of Sections 401(a)(4),
401(k)(3), 401(k)(12), 402(g), 410(b), 415, or 416 of the Code, as applicable,
by reason of making such contributions. Additional Elective Deferral
Contributions shall not be taken into account for purposes of computing
Qualified Matching Contributions and/or Matching Contributions.
6.3 Matching Contributions and Qualified Matching Contributions.
(a) (1) (A) Each Employer, at the discretion of the Board of Directors
of the Company, may contribute to the Trust a Qualified Matching
Contribution in cash or Employer Securities on behalf of each eligible
Participant (as determined pursuant to section 6.3(b)) for whom an
Elective Contribution is made to the Plan for the Matching
Contributions Allocation Period. The amount of the Qualified Matching
Contribution made pursuant to this Section 6.3(a)(1), if any, shall be
determined by the Board of Directors for the Company. The amount
allocable to a Participant eligible to share in the Qualified Matching
Contribution under this section 6.3(a)(1) for the Matching
Contributions Allocation Period shall be
(i) the amount that shall bear the same ratio to the total
of such contribution for the Matching Contributions
Allocation Period
(ii) as the Participant's Recognized Elective Contribution
for the Matching Contributions Allocation Period bears to
the aggregate Recognized Elective Contributions of all
Participants employed by the Employers who are eligible to
share in the contribution for such Matching Contributions
Allocation Period.
VI-6
(B) In the event that Qualified Matching Contributions are made
pursuant to this section 6.3(a)(1) for Matching Contributions
Allocation Periods other than annual contribution periods during
the Plan Year and the Participant's aggregate Elective
Contributions for the Plan Year would have entitled the
Participant to greater aggregate Qualified Matching Contributions
under an annual Matching Contribution Allocation Period than were
made on behalf of the Participant for the Plan Year under the
Matching Contribution Allocation Periods selected by the Board of
Directors (or otherwise required by the Plan), then, for the
final Matching Contribution Allocation Period during the Plan
Year, the Participant's Employer, at the discretion of the Board
of Directors of the Company, may contribute to the Trust on
behalf of the Participant an additional Qualified Matching
Contribution, the amount of which (when added to the
Participant's Qualified Matching Contribution for the final
Matching Contribution Allocation Period during the Plan Year)
shall cause the Participant's aggregate Qualified Matching
Contributions for the Plan Year to equal a percentage of his
Recognized Elective Contributions for the Plan Year that is equal
to the percentage of Recognized Elective Contributions for the
final Matching Contribution Allocation Period for the Plan Year
that the Company elected to make on behalf of each eligible
Participant for whom an Elective Contribution is made to the Plan
for the final Matching Contributions Allocation Period.
(2) (A) Each Employer, at the discretion of the Board of
Directors of the Company, may contribute to the Trust a Matching
Contribution in cash or Employer Securities on behalf of each
eligible Participant (as determined pursuant to section 6.3(b))
for whom an Elective Contribution is made to the Plan for the
Matching Contributions Allocation Period. The amount of the
Matching Contribution made pursuant to this section 6.3(a)(2), if
any, shall be determined by the Board of Directors of the
Company. The amount allocable to a Participant eligible to share
in the Matching Contribution for the Matching Contributions
Allocation Period shall be
(i) the amount that shall bear the same ratio to the total
of such contribution for the Matching Contributions
Allocation Period
(ii) as the Participant's Recognized Elective Contribution
for such Matching Contributions Allocation Period bears to
the aggregate Recognized Elective Contributions of all
Participants employed by such Employer who are eligible to
share in the contribution for such Matching Contributions
Allocation Period.
(B) In the event that Matching Contributions are made pursuant to
this section 6.3(a)(2) for Matching Contributions Allocation
Periods other than annual contribution periods during the Plan
Year and the Participant's aggregate Elective Contributions for
the Plan Year would have entitled the Participant to greater
aggregate Matching Contributions under an annual Matching
Contribution Allocation Period than were made on behalf of the
Participant for the Plan Year under the Matching Contribution
Allocation Periods selected by the Board of Directors (or
otherwise required by the Plan), then, for the final Matching
Contribution Allocation Period during the Plan Year, the
Participant's Employer, at the discretion of the Board of
Directors of the Company, may contribute to the Trust on behalf
of the Participant an additional Matching Contribution, the
amount of which (when added to the Participant's Matching
Contribution for the final Matching Contribution Allocation
Period during the Plan Year) shall cause the Participant's
aggregate Matching Contributions for the Plan Year to equal a
percentage of his Recognized Elective Contributions for the Plan
Year that is equal to the percentage of Recognized Elective
Contributions for the final Matching Contribution Allocation
Period for the Plan Year that the Company elected to make on
behalf of each eligible Participant for whom an Elective
Contribution is made to the Plan for the final Matching
Contributions Allocation Period.
(3) For purposes of sections 6.3(a)(1) and 6.3(a)(2), a Participant's
Recognized Elective Contribution for each Plan Year or Matching
Contributions Allocation Period (as the case may be) shall be equal to
(A) the aggregate amount of his Elective Contribution made to the
Plan pursuant to section 6.1(a) (after consideration of the
refund requirements of sections 6.1(c) and 6.1(h)),
(B) reduced by any portion of his Elective Contribution in excess
of a specified percentage of each Participant's Compensation
and/or a specified maximum dollar amount, as determined by the
Board of Directors of the Company for the Matching Contributions
Allocation Period and applied consistently to each Participant.
VI-7
(b) (1) Except as otherwise provided in this section 6.3(b),
a Participant shall be eligible to share in the Qualified
Matching Contributions, described in section 6.3(a)(1), for
a Matching Contributions Allocation Period if he is employed
by his Employer on the last day of such Matching
Contributions Allocation Period (or if his employment is
terminated by his retirement, disability [as defined in
section 8.2(b)] or death).
(2) Except as otherwise provided in this section 6.3(b), a
Participant shall be eligible to share in the Matching
Contributions, described in section 6.3(a)(2), for a
Matching Contributions Allocation Period if he is employed
by his Employer on the last day of such Matching
Contributions Allocation Period (or if his employment is
terminated by his retirement, disability [as defined in
section 8.2(b)] or other death).
(3) In the event that the eligibility requirements set forth
in section 6.3(b)(1) or (2) would cause this Plan to fail to
meet the coverage requirements of this section 6.3(b)(3) for
any Matching Contributions Allocation Period, a Participant
shall also be entitled to share in the Qualified Matching
Contribution pursuant to section 6.3(a)(1) or the Matching
Contribution pursuant to section 6.3(a)(2) if he meets the
requirements of section 6.3(b)(4). In order to meet the
coverage requirements of this section 6.3(b)(3) for the Plan
Year, the Plan's "ratio percentage" for the Matching
Contributions Allocation Period shall be at least seventy
percent (70%). For purposes of this section 6.3(b)(3), the
Plan's "ratio percentage" shall mean the percentage (rounded
to the nearest hundredth of a percentage point) determined
by dividing the percentage of the Non-Highly Compensated
Employees who benefit under the Plan by the percentage of
the Highly Compensated Employees who benefit under the Plan.
The percentage of the Non-Highly Compensated Employees who
benefit under the Plan shall be determined by dividing the
number of Non-Highly Compensated Employees who are
Participants in the Plan and are entitled to share in
Qualified Matching Contributions pursuant to section
6.3(a)(1) or Matching Contributions pursuant to section
6.3(a)(2) under the Plan by the total number of Non-Highly
Compensated Employees who have met the eligibility and
participation requirements of Article V. The percentage of
the Highly Compensated Employees who benefit under the Plan
shall be determined by dividing the number of Highly
Compensated Employees who are Participants in the Plan and
are entitled to share in Qualified Matching Contributions or
Matching Contributions under the Plan by the total number of
Highly Compensated Employees who have met the eligibility
and participation requirements of Article V. The Plan's
"ratio percentage" shall be determined as of the last day of
the Matching Contributions Allocation Period taking into
account all Employees who were Employees on any day during
the Matching Contributions Allocation Period.
VI-8
(4) If this Plan would otherwise fail to meet the coverage
requirements of section 6.3(b)(3) for a Matching
Contributions Allocation Period a Participant shall be
entitled to share in the Qualified Matching Contributions
section 6.3(a) or Matching Contributions pursuant to this
section 6.3(b)(4) if:
(A) he is a Non-Highly Compensated Employee; and
(B) the allocation of a Qualified Matching Contribution or
Matching Contribution to the Participant is required by this
section 6.3(b)(4)(B). The number of Participants entitled to
an allocation required by this section 6.3(b)(4)(B) (the
"Required Number of Participants"), when added to the
Non-Highly Compensated Employees who are eligible to receive
an allocation pursuant to the provisions of section
6.3(b)(1) and (2), shall be equal to the minimum number of
Non-Highly Compensated Employees who are required to be
eligible for an Qualified Matching Contribution or Matching
Contribution from the Plan during the Matching Contributions
Allocation Period in order to meet the minimum coverage
requirements of section 6.3(b)(3). An allocation is required
by this section 6.3(b)(4)(B) if a Participant is among the
Required Number of Participants paid the lowest Compensation
by their Employers for the Matching Contributions Allocation
Period (determined without regard to those Participants who
are entitled to an allocation pursuant to section 6.3(b)(1)
and (2) above). If two or more Participants would otherwise
be determined to have been paid the same amount of
Compensation by their Employers for the Matching
Contributions Allocation Period, then the Participant who
was first credited with an Hour of Service for his Employer
or any Affiliate thereof shall be deemed to be paid the
lowest Compensation of such two or more Participants and the
Participant who was next credited with an Hour of Service
for his Employer or any Affiliate thereof shall be deemed to
be paid the next lowest Compensation and the process shall
be repeated until the Plan Administrator has determined the
Participants who are among the Required Number of
Participants paid the lowest Compensation by their Employers
for the Matching Contributions Allocation Period.
(c) Except as noted in section 6.3(d), any Qualified Matching
Contribution or Matching Contribution made by an Employer on account
of an Elective Contribution that has been refunded pursuant to the
terms of the Plan shall be forfeited. Unless otherwise required by
section 8.3(d)(3) such forfeiture (together with any additional
unallocated forfeitures) shall be used to first reduce Matching
Contributions, and then, to the extent available, to reduce Qualified
Matching Contributions.
VI-9
(d) In the event that the Matching Contributions (together with
Qualified Matching Contributions treated as matching contributions) of
Highly Compensated Employees exceed the limitations of section 6.7:
(1) The non-vested portion of such aggregate excess Matching
Contributions (including earnings thereon for the Plan Year to
which the excess contributions relate), if any, determined as set
forth in section 6.3(d)(3) and (4) below, shall be forfeited and
used or reallocated in a manner consistent with the requirements
of section 6.3(c).
(2) The aggregate excess Qualified Matching Contributions and the
vested portion of the aggregate excess Matching Contributions
(including, in each case, earnings thereon for the Plan Year to
which the excess contributions relate), if any, determined as set
forth in section 6.3(d)(3), shall be distributed to the Highly
Compensated Employees as provided in section 6.3(d)(4) on or
before the 15th day of the third month after the close of the
Plan Year to which the Qualified Matching Contributions and
Matching Contributions relate. Notwithstanding the preceding
sentence, the Plan Administrator may delay the distribution of
any excess Qualified Matching Contributions and Matching
Contributions, (plus the earnings thereon for the Plan Year to
which the excess contributions relate) attributable to an
Employer beyond the 15th day of the third month of such Plan
Year, if the Employer consents to such delay and the
Administrator refunds all such excess amounts not later than 12
months after the close of the Plan Year to which the excess
contributions relate.
(3) For purposes of sections 6.3(d)(1) and (2), the amount of the
aggregate excess Qualified Matching Contributions and Matching
Contributions for the Plan Year shall be equal to the sum of the
amounts of such excess contributions attributable to each Highly
Compensated Employee for the Plan Year.
(A) In order to determine the amount of the excess Qualified
Matching Contributions and Matching Contributions
attributable to each Highly Compensated Employee, the Plan
Administrator shall first reduce the Actual Contribution
Ratio of the Highly Compensated Employee with the highest
Actual Contribution Ratio for the Plan Year to the extent
required to:
(i) enable the arrangement to satisfy the limitations set
forth in section 6.7 or
VI-10
(ii) cause such Highly Compensated Employee's Actual
Contribution Ratio to equal the Actual Contribution Ratio of
the Highly Compensated Employee with the next highest Actual
Contribution Ratio.
Then, if necessary, the Plan Administrator shall reduce the Actual
Contribution Ratios of the Highly Compensated Employees with the next
highest Actual Contribution Ratio for the Plan Year (including the Actual
Contribution Ratio(s) of the Highly Compensated Employee(s) whose Actual
Contribution Ratio the Plan Administrator already has reduced) to the
extent required to comply with section 6.3(d)(3)(A)(i) or 6.3(d)(3)(A)(ii).
This process shall then be repeated until the Actual Contribution
Percentage for the Highly Compensated Employees satisfies the limitations
set forth in section 6.7.
(B) The amount of the excess Qualified Matching Contributions and
Matching Contributions attributable to each Highly Compensated
Employee shall equal the remainder of
(i) the total Qualified Matching Contributions and Matching
Contributions, (and Non-Elective Contributions treated as
Matching Contributions) on behalf of the Participant
(determined prior to the application of this section
6.3(d)(3)), minus
(ii) the amount determined by multiplying the Participant's
Actual Contribution Ratio (determined after application of
section 6.3(d)(3)(A)) by his Compensation used in
determining such ratio.
(C) In determining the amount of the excess Qualified Matching
Contributions and Matching Contributions, Actual Contribution
Ratios shall be rounded to the nearest one-hundredth of one
percent of the Employee's Compensation. In no case shall the
amount of such excess with respect to any Highly Compensated
Employee exceed the amount of Qualified Matching Contributions
and Matching Contributions on behalf of such Highly Compensated
Employee for such Plan Year.
(4) In order to determine the dollar amount of the excess Qualified
Matching Contributions and Matching Contributions forfeitable with
respect to, and distributable to, each Highly Compensated Employee
pursuant to sections 6.3(d)(1) and (2), the Plan Administrator shall
first reduce the Qualified Matching Contributions and Matching
Contributions of the Highly Compensated Employee(s) with the highest
dollar amount of Qualified Matching Contributions and Matching
Contributions for the Plan Year by a dollar amount equal to the lesser
of
VI-11
(A) the aggregate excess Qualified Matching Contributions
and Matching Contributions, determined under section
6.3(d)(3), or
(B) the dollar amount necessary to reduce such Highly
Compensated Employee's Qualified Matching Contributions and
Matching Contributions, to a dollar amount that is equal to
the dollar amount of Qualified Matching Contributions and
Matching Contributions of the Highly Compensated Employee
with the next highest dollar amount of Qualified Matching
Contributions and Matching Contributions.
Then, if necessary, the Plan Administrator shall reduce the Qualified
Matching Contributions and Matching Contributions of the Highly Compensated
Employees with the next highest dollar amount of Qualified Matching
Contributions and Matching Contributions for the Plan Year (including the
Highly Compensated Employee(s) whose Qualified Matching Contributions and
Matching Contributions the Plan Administrator already has reduced) to the
extent required to comply with sections 6.3(d)(4)(A) or 6.3(d)(4)(B). This
process shall then be repeated until the aggregate excess Qualified
Matching Contributions and Matching Contributions determined under section
6.3(d)(3) have been eliminated. The reduced amounts to be determined for
each Highly Compensated Employee shall first be deemed to be Qualified
Matching Contributions and then be deemed to be Matching Contributions. The
reduced amounts shall be forfeited and/or distributed in accordance with
sections 6.3(d)(1) and (2) to the Highly Compensated Employees to whom the
reductions are attributable under this section 6.3(d)(4). For purposes of
this subparagraph, Qualified Matching Contributions and Matching
Contributions shall include amounts treated as Matching Contributions.
(5) The Plan Administrator may use any reasonable method for computing
the income allocable to excess contributions, provided that the method
does not violate Section 401(a)(4) of the Code, is used consistently
for all Participants and for all corrective distributions under the
Plan for the Plan Year, and is used by the Plan for allocating income
to Participants' Accounts.
6.4 Employer Discretionary Contributions. An Employer may make Employer
Discretionary Contributions in the form of cash or Employer Securities to the
Employer Contributions Accounts of Participants who are employed by their
Employer on the last day of the Plan Year (or whose employment is terminated by
retirement, disability [as defined in section 8.2(b)] or death). The amount, if
any, to be contributed to the Trust by an Employer as an Employer Discretionary
Contribution for each Plan Year shall be determined by the Board of Directors of
the Company.
VI-12
6.5 Non-Elective Contributions. An Employer, at the discretion of the Board
of Directors of the Company, may make Non-Elective Contributions in the form of
cash or Employer Securities to the Qualified Non-Elective Contributions Accounts
of eligible Participants, as described in section 7.4(b)(7).
6.6 Limitations on Contributions and Forfeitures. It is the present
intention of each Employer to make recurring and substantial contributions to
the Trust for each Plan Year, but in no event shall such contribution for any
corresponding taxable year of an Employer exceed the maximum amount deductible
from the Employer's income for such taxable year under Section 404(a) of the
Code. If the Employers are not treated as separate lines of business under
Section 414(r) of the Code, the discretionary contributions made by each
Employer, including any amounts forfeited and allocated as such contributions,
shall be allocated among Participants without regard to each Participant's
employment relationship with a particular Employer, as required by section
7.4(b) (but subject to any other applicable requirements, as set forth herein).
6.7 Limitations on Elective Contributions, Qualified Matching Contributions
and Matching Contributions. The amounts contributed as Elective Contributions,
Qualified Matching Contributions, and Matching Contributions shall be limited as
follows:
(a) The Actual Deferral Percentage for the group of eligible Highly
Compensated Employees for the Plan Year shall bear a relationship to
the Actual Deferral Percentage for all other eligible Employees for
the current Plan Year which meets either of the following tests:
(1) The Actual Deferral Percentage for the group of eligible
Highly Compensated Employees for a Plan Year shall not exceed the
Actual Deferral Percentage for the group of all other eligible
Employees multiplied by 1.25, or
(2) The excess of the Actual Deferral Percentage for the group of
eligible Highly Compensated Employees for a Plan Year over the
Actual Deferral Percentage for the group of all other eligible
Employees shall not exceed two (2) percentage points (or such
lesser amount as may be required by the Secretary of the
Treasury, through regulations or otherwise); and the Actual
Deferral Percentage for the group of eligible Highly Compensated
Employees shall not exceed the Actual Deferral Percentage for the
group of all other eligible Employees, multiplied by 2.0 (or such
lesser amount as may be required by the Secretary of the
Treasury, through regulations or otherwise).
(b) The Actual Contribution Percentage for the group of eligible
Highly Compensated Employees for the Plan Year shall bear a
relationship to the Actual Contribution Percentage for all other
eligible Employees for the current Plan Year which meets either of the
following tests:
VI-13
(1) The Actual Contribution Percentage for the group of eligible
Highly Compensated Employees for a Plan Year shall not exceed the
Actual Contribution Percentage for the group of all other
eligible Employees multiplied by 1.25, or
(2) The excess of the Actual Contribution Percentage for the
group of eligible Highly Compensated Employees for a Plan Year
over the Actual Contribution Percentage for the group of all
other eligible Employees shall not exceed two (2) percentage
points (or such lesser amount as may be required by the Secretary
of the Treasury, through regulations or otherwise); and the
Actual Contribution Percentage for the group of eligible Highly
Compensated Employees shall not exceed the Actual Deferral
Percentage for the group of all other eligible Employees,
multiplied by 2.0 (or such lesser amount as may be required by
the Secretary of the Treasury, through regulations or otherwise).
(c) The Actual Deferral Percentages and the Actual Contribution
Percentages for the group of Highly Compensated Employees and for the
group of all other eligible Employees, computed in accordance with
sections 6.7(a) and 6.7(b) for purposes of limiting contributions in
sections 6.1 and 6.3, may be separately determined, and applied, for
the Employees within each group of Employees that may be separately
tested in accordance with applicable Treasury Regulations.
(d) For purposes of this section 6.7, if two or more plans of an
Employer to which elective salary reduction contributions, voluntary
contributions or matching contributions are made are elected by the
Employer to be treated as one Plan for purposes of Section 410(b)(6)
of the Code, such plans shall be treated as a single plan for purposes
of determining the Actual Deferral Percentage and the Actual
Contribution Percentage. For purposes of determining the Actual
Deferral Percentages and the Actual Contribution Percentages for the
group of Highly Compensated Employees and the group of all other
eligible Employees, all Employees of the respective group who are
directly or indirectly eligible to receive allocations of elective
contributions and/or matching contributions under the Plan for any
portion of the Plan Year, and all Employees of the respective group
who elect not to enter into salary reduction agreements pursuant to
section 6.1 or whose eligibility to enter into salary reduction
agreements has been suspended or otherwise limited because of an
election not to participate, a withdrawal, a loan, or a restriction on
Annual Additions as set forth in section 7.5, shall be included. For
purposes of determining the Actual Deferral Ratio and the Actual
Contribution Ratio for a Highly Compensated Employee, all cash or
deferred arrangements in which the Employee is eligible to receive
allocations of elective contributions and/or matching contributions
shall be taken into account, unless otherwise required by Treasury
Regulation Sections 1.401(k)-1(g)(1)(ii)(B) and
1.401(m)-1(f)(1)(ii)(B).
VI-14
(e) Initial Plan Year: In the case of the first Plan Year of the Plan
(and any other Plan Year which may properly be subject to Section
401(k)(3)(E) and/or 401(m)(3) of the Code), the amount taken into
account as the Actual Deferral Percentage and the Actual Contribution
Percentage for the group of eligible Employees who are not Highly
Compensated Employees for the preceding Plan Year shall be:
(1) 3%; or
(2) if elected by the Company under this section 6.7(f), the
Actual Deferral Percentage and the Actual Contribution Percentage
for the group of eligible Employees who are not Highly
Compensated Employees for such first Plan Year.
6.8 Form and Timing of Contributions. Contributions due from an Employer
for any Plan Year shall be made in cash or Employer Securities. Such payments
may be made by a contributing Employer at any time, but payment of Qualified
Matching Contributions, Matching Contributions, and Non-Elective Contributions
for any Plan Year shall be completed on or before the time prescribed by law,
including extensions thereof, for filing such Employer's federal income tax
return for its taxable year with which or within which such Plan Year ends.
Payment of any Elective Contribution shall be made not later than the earliest
date on which such contribution can reasonably be segregated from the Employer's
general assets (and, if earlier, not later than the 15th business day of the
month following the month in which it is withheld from a Participant's pay).
6.9 Rollover Contributions. Each Employee at any time during a Plan Year,
with the consent of the Plan Administrator and in such manner as prescribed by
the Plan Administrator, may pay or cause to be paid to a Trustee a rollover
contribution (as defined in the applicable sections of the Code, except that for
this purpose "rollover contribution" shall be deemed to include both a direct
payment from an Employee and a direct transfer from a trustee of another
qualified plan in which the Employee is or was a participant). Effective January
1, 2002, the Plan will accept Participant rollover contributions and direct
rollovers of distributions made after December 31, 2001, only from a qualified
plan described in Section 401(a) of the Code, excluding after-tax employee
contributions.
6.10 No Duty to Inquire. The Trustees shall have no right or duty to
inquire into the amount of any contribution made by an Employer or any
Participant or the method used in determining the amount of any such
contribution, or to collect the same, but each Trustee shall be accountable only
for funds actually received by it.
ARTICLE VII
Participants' Accounts
7.1 Common Fund. Except as otherwise provided in this Plan or in the
Agreement and Declarations of Trust, the assets of each Trust (or, to the extent
provided in Article XI, the assets of each Fund) shall constitute a common fund
in which each Participant (or each Participant who has directed that a portion
of his Account be invested in such Fund) shall have an undivided interest.
7.2 Establishment of Accounts.
(a) The Plan Administrator shall establish and maintain with respect
to each Participant four Accounts, designated as the Participant's
Elective Contributions Account, Employer Contributions Account,
Qualified Matching Contributions Account, and Matching Contributions
Account. For each Participant who is credited with a portion of any
Non-Elective Contribution made pursuant to section 6.5 (or who
previously has been credited with a portion of any qualified
non-elective contribution made pursuant to the predecessor provisions
of this Plan), the Plan Administrator shall establish and maintain a
Qualified Non-Elective Contributions Account. For each Participant
credited with a Rollover Contribution made pursuant to section 6.9 or
credited with amounts attributable to merged plans as described in
section 7.2(g), the Plan Administrator shall establish and maintain a
Rollover/Merger Account. Each Participant's Accounts shall,
collectively, reflect the Participant's interest in the Trust Fund.
(b) Each Participant's Elective Contributions Account shall include
Elective Contributions pursuant to section 6.1 and adjustments
thereto. A Participant's Elective Contributions Account shall also
include amounts previously attributable to the Participant's "Elective
Contributions Account" in this Plan as of the Effective Date of this
Amendment and Restatement, including:
(1) salary reduction contributions to the 401(k) Plan (and
earnings attributable thereto) on behalf of a Participant prior
to the merger of the 401(k) Plan with this Plan effective October
1, 1993,
(2) the Participant's "Employer Contributions Account" in this
Plan as of December 31, 1995, under the terms of this Plan in
effect as of such date,
(3) the Participant's "ESOP Elective Contributions Account" in
this Plan as of August 1, 1999,
(4) the Participant's "401(k) Elective Contributions Account" in
this Plan as of August 1, 1999,
VII-1
(5) the Participant's "Elective Contributions Account" in the PSS
ESOP as of the date of its merger with this Plan,
(6) salary reduction contributions (and earnings attributable
thereto) on behalf of the Participant to the PSS/Taylor Plan
prior to the merger of the PSS/Taylor Plan with this Plan
effective April 21, 2000,
(7) salary deferral contributions (and earnings attributable
thereto) on behalf of Participants to the National Med Supply
Plan prior to the merger of the National Med Supply Plan with
this Plan effective August 1, 2001, and
(8) the Participant's "Supplemental ESOP Matching Contributions"
in this Plan prior to the Effective Date of this Amendment and
Restatement.
(c) Each Participant's Employer Contributions Account shall include
amounts contributed pursuant to section 6.4 and adjustments thereto. A
Participant's Employer Contributions Account shall also include
amounts previously attributable to the Participant's "Employer
Contribution Account" in this Plan as of the Effective Date of this
Amendment and Restatement, including:
(1) the Participant's "ESOP Matching Contributions Account" in
this Plan as of August 1, 1999, and
(2) the Participant's "ESOP Employer Contributions Account" in
this Plan as of August 1, 1999.
(d) Each Participant's Qualified Matching Contributions Account shall
include Qualified Matching Contributions made pursuant to section
6.3(a)(1), and adjustments thereto. A Participant's Qualified Matching
Contributions Account shall also include amounts previously
attributable to the Participant's "ESOP Contribution Account"
(including "ESOP Matching Contributions" allocated after October 23,
1998) in the PSS ESOP as of the date of its merger with this Plan, and
other amounts in the Participant's "Post-1998 ESOP Matching
Contributions Account" in this Plan as of the Effective Date of this
Amendment and Restatement.
(e) Each Participant's Rollover/Merger Account shall include Rollover
Contributions made pursuant to section 6.9 and reallocated pursuant to
section 10.3. A Participant's Rollover/Merger Account shall also
include amounts previously attributable to the Participant's
"Rollover/Merger Account" as of the Effective Date of this Amendment
and Restatement, including:
(1) the Brown's Medical Supply Co. Retirement Savings Plan and
the Y-Laboratories & Supplies, Inc. 401(k) Retirement Plan prior
to the merger of the Brown's Medical Supply Co. Retirement
Savings Plan and the Y-Laboratories & Supplies, Inc. 401(k)
Retirement Plan with this Plan effective as of January 1, 1997
and October 1, 1997, respectively,
VII-2
(2) the PSS ESOP prior to its merger with this Plan as of August
1, 1999 (other than amounts attributable to the "Elective
Contribution Account" and the "ESOP Contribution Account" in the
PSS ESOP),
(3) the PSS/Taylor Plan prior to its merger with this Plan as of
April 21, 2000 (other than salary reduction contributions and
adjustments thereto), and
(4) the National Med Supply Plan prior to its merger with this
Plan as of August 1, 2001 (other than salary deferral
contributions and adjustments thereto).
The Plan Administrator may establish separate sub-accounts within the
Rollover/Merger Account as needed. The Plan Administrator may establish and
maintain additional sub-accounts from time to time to provide for amounts
credited to Participants and transferred from other tax-qualified
retirement plans merged with this Plan upon the authorization and direction
of the Board of Directors.
(f) Each Participant's Matching Contributions Account shall include
Matching Contributions made pursuant to section 6.3(a)(2), and
adjustments thereto, made for Matching Contributions Allocation
Periods beginning after March 31, 2001.
(g) For each Participant who is credited with a portion of any
Non-Elective Contribution made pursuant to section 6.5 (or who
previously has been credited with a portion of any qualified
non-elective contribution made pursuant to the predecessor provisions
of this Plan), the Plan Administrator shall establish and maintain a
Qualified Non-Elective Contributions Account. Notwithstanding any
other provision of this Plan, any qualified non-elective contribution
made pursuant to the predecessor provisions of this Plan shall be
credited as provided by this section 7.2(g) without regard to the
account to which such amount may have been previously credited.
(h) The Plan Administrator may establish and maintain with respect to
each Participant's Accounts invested in Employer Securities, an
Employer Securities Account and an Other Investments Account that may
further reflect the Participant's interest in the Company Stock Fund
attributable to such Accounts.
(i) The Plan Administrator may establish such additional Accounts as
are necessary to reflect a Participant's interest in the Trust Fund.
VII-3
7.3 Interests of Participants. The interest of a Participant in the Trust
Fund shall be the vested balance remaining from time to time in his Accounts
after making the adjustments required in section 7.4.
7.4 Adjustments to Accounts. Subject to the provisions of section 7.5, the
Accounts of a Participant shall be adjusted from time to time as follows:
(a) Each Participant's Accounts shall be credited with appreciation or
depreciation, and earnings or losses, as follows:
(1) As of each Valuation Date, the portions of each Participant's
Accounts credited to Employer Securities Accounts shall be
credited with any stock dividends (as well as the aggregate
unrealized appreciation or depreciation, if Employer Securities
Accounts are not accounted for in shares) for the Valuation
Period ending with such current Valuation Date that are received
on (or attributable to) shares of Employer Securities allocated
to the Participant's Employer Securities Accounts.
(2) As of each Valuation Date, the portions of the Participant's
Accounts credited to Other Investments Accounts shall be credited
or charged, as the case may be, with the share of the Earnings
for the Valuation Period ending with such current Valuation Date.
Each Participant's share of the Earnings of his Other Investments
Accounts for any Valuation Period shall be determined by the Plan
Administrator on a weighted average basis, so that each
Participant with a balance in such Other Investments Accounts
shall receive a pro rata share of the Earnings of such Other
Investments Accounts, taking into account the period of time that
each dollar invested in such Other Investments Accounts has been
so invested.
(3) To the extent not otherwise provided for in the preceding
provisions of this section 7.4(a), the portions of the
Participant's Accounts credited to Employer Securities Accounts
and Other Investments Accounts shall be further credited and
charged with (i) the proceeds of any short-term interim
investments that may be made by the Trustee during periods prior
to purchase dates for the acquisition of Employer Securities by a
Trustee, and (ii) direct or indirect purchases of the Employer
Securities with assets other than Employer Securities, and
purchases of assets other than the Employer Securities in
connection with the sale of Employer Securities.
VII-4
(4) As of each Valuation Date, any portion of the Participant's
Accounts that is invested in a Pooled Investment Fund established
under section 11.2 (other than a Company Stock Fund) shall be
credited or charged, as the case may be, with a share of the
Earnings of such Pooled Investment Fund for the Valuation Period
ending with such current Valuation Date. Each Participant's share
of the Earnings of a Pooled Investment Fund for any Valuation
Period shall be determined by the Plan Administrator on a
weighted average basis, so that each Participant with a balance
in such Pooled Investment Fund shall receive a pro rata share of
the Earnings of such Pooled Investment Fund, taking into account
the period of time that each dollar invested in such Pooled
Investment Fund has been so invested.
(5) As of each Valuation Date, the portion of the Participant's
Accounts that is invested in each Segregated Investment Fund
established under section 11.2 (other than a Company Stock Fund)
shall be credited or charged, as the case may be, with the
Earnings attributable to the Participant's investment in such
Segregated Investment Fund for the Valuation Period ending with
such current Valuation Date.
(b) As of each Valuation Date, each Participant's Accounts shall be
credited with his share of the contributions to the Plan, and shall be
further adjusted, as follows:
(1) The Elective Contributions Account of a Participant shall be
credited with any Elective Contributions made by his Employer on
his behalf and not previously credited to the Participant.
(2) The Elective Contributions Account of an eligible Participant
shall be credited with any Additional Elective Deferral
Contributions made by his Employer on his behalf and not
previously credited to the Participant.
(3) The Qualified Matching Contributions Account of a Participant
shall be credited with any Qualified Matching Contributions with
respect to a Matching Contributions Allocation Period made by the
Employers on his behalf.
(4) The Matching Contributions Account of an eligible
Participant, as determined by section 6.3(b), shall be credited
with any Matching Contributions made by the Employers on his
behalf with respect to a Matching Contributions Allocation Period
and not previously credited to the Participant.
(5) (A) The Employer Contributions Account of an eligible
Participant shall be credited with his share of the Employer
Discretionary Contribution, if any, made by the Employers and not
previously credited to the Participant. The amount allocable to a
Participant entitled to a share of the contribution for the Plan
Year shall be the amount that shall bear the same ratio to the
total of such contribution as the Participant's Compensation for
such Plan Year bears to the aggregate of the Compensation of all
Participants for the Plan Year who are entitled to share in the
Employer Discretionary Contribution for such Plan Year. The
Participant shall be entitled to share in the Employer
Discretionary Contribution if he meets the requirements of
section 6.4.
VII-5
(B) For each Plan Year in which this Plan is a Top Heavy Plan, a
Participant who is employed by an Employer on the last day of
such Plan Year and who is a Non-Key Employee for such Plan Year
shall be entitled to share in an Employer Discretionary
Contribution to the extent such allocation does not exceed at
least three percent (3%) of his Section 415 Compensation (or, if
less, the highest percentage of such Section 415 Compensation
allocated to a Key Employee's Accounts hereunder (other than any
amount allocated as an Additional Elective Deferral Contribution
or to a Rollover/Merger Account), as well as his employer
contribution accounts under any other defined contribution plan
maintained by such Employer or an Affiliate, including any
elective contribution to any plan subject to Code Section
401(k)), regardless of whether the preceding requirements of
section 6.4 and this section 7.4(b)(5) have been met for such
Participant. Notwithstanding the foregoing, Matching
Contributions allocated to a Participant entitled to a
contribution allocation pursuant to this section 7.4(b)(5)(B)
shall be taken into account for purposes of satisfying the
minimum contribution requirements of this section 7.4(b)(5)(B)
and Section 416(c)(2) of the Code. The preceding sentence shall
apply with respect to Matching Contributions under the Plan or,
if the Plan provides that the minimum contribution requirement
shall be met in another plan, such other plan. Matching
Contributions that are used to satisfy the minimum contribution
requirements of Section 416(c)(2) of the Code shall be treated as
Matching Contributions for purposes of the Actual Contribution
Percentage test requirements of sections 6.3 and 6.7 and the
requirements of Section 401(m) of the Code.
(6) The Qualified Non-Elective Contributions Account of an eligible
Participant shall be credited with his share of the Non-Elective
Contribution, if any, made by the Employers pursuant to section 6.5
and not previously credited to the Participant as provided by this
section 7.4(b)(6). The amount of any Non-Elective Contribution shall
be credited, to the extent available, first to the Participant who is
a Non-Highly Compensated Employee and whose Compensation for the Plan
Year is the lowest of all Participants in an amount that does not
exceed the limitations on Annual Additions described in section 7.5
after taking into consideration all other contributions allocable to
the Participant pursuant to section 7.4(b). If any Non-Elective
Contribution remains to be credited to Participants, then such
Non-Elective Contribution shall next be credited, to the extent
available, to the Participant who is the Non-Highly Compensated
Employee whose Compensation for the Plan Year is the second lowest of
all Participants in the same manner as the first level of crediting
and such crediting process shall continue until all of the
Non-Elective Contribution is credited. In no event shall a Participant
who is a Highly Compensated Employee be eligible to be credited with
any portion of any Non-Elective Contribution.
VII-6
(7) The Rollover/Merger Account of an Employee shall be credited with
the Rollover Contributions, if any, made by the Employee pursuant to
section 6.9 and not previously credited to the Employee.
(c) As of each Valuation Date, each Account of a Participant
shall be charged with the amount of any distribution made to, or
withdrawal made by, the Participant or his beneficiary from such
Account during the Valuation Period ending with such Valuation
Date.
(d) The Trust Funds, each Fund, and the assets thereof shall be
valued at their fair market value as of each Valuation Date.
Employer Securities shall be accounted for as provided in
Treasury Regulation Section 1.402(a)-1(b)(2)(ii), or any
successor regulation or statute. The Plan Administrator may adopt
such additional accounting procedures as are necessary to
accurately reflect each Participant's interests in the Trust Fund
or in any Fund. Such accounting procedures shall include any
procedures necessary to appropriately reflect any earnings and
losses that may result from delays that may occur in completing
scheduled transactions. All such procedures shall be applied in a
consistent, nondiscriminatory manner.
(e) If the Plan Administrator determines in making any valuation,
allocation or adjustments to any Participant's Account under the
provisions of the Plan that the strict application of the
provisions of the Plan will not produce equitable and
nondiscriminatory allocation among the Participants' Accounts, it
may modify any procedures specified in the Plan for purposes of
achieving an equal and nondiscriminatory allocation in accordance
with the general concepts and purposes of the Plan; provided,
however, that any such modification shall not be inconsistent
with the provisions of Section 401(a)(4) of the Code.
7.5 Limitation on Allocation of Contributions.
(a) The Annual Additions that may be contributed or allocated to
a Participant's Account under the Plan and under any other
defined contribution plans maintained by an Employer or an
Affiliate for any Limitation Year shall not exceed the lesser of
(1) $40,000 (or, if greater, the dollar limitation established by
the Secretary of the Treasury pursuant to Section 415(d)(1) of
the Code), or (2) 100% of the Participant's Section 415
Compensation for such Limitation Year. The compensation limit set
forth in section 7.5(a)(2) above shall not apply to any
contribution for medical benefits after separation from service
(within the meaning of Section 401(h) or Section 419A(f)(2) of
the Code), which is otherwise treated as an Annual Addition.
VII-7
(b) In the event that the Annual Additions, under the normal
administration of the Plan, would otherwise exceed the limits set
forth above for any Participant, or in the event that any
Participant participates in both a defined benefit plan and a
defined contribution plan maintained by any Employer or any
Affiliate and the aggregate annual additions to and projected
benefits under all of such plans, under the normal administration
of such plans, would otherwise exceed the limits provided by law,
then the Plan Administrator shall take such actions, applied in a
uniform and nondiscriminatory manner, as will keep the annual
additions and projected benefits for such Participant from
exceeding the applicable limits provided by law. Excess Annual
Additions shall be disposed of as provided in section 7.5(c).
Adjustments shall be made to this Plan, if necessary to comply
with such limits, before any adjustments may be made to any other
Plan.
(c) If as a result of the allocation of forfeitures, a reasonable
error in estimating a Participant's Section 415 Compensation or
other circumstances permitted under Section 415 of the Code, the
Annual Additions attributable to Employer contributions for a
particular Participant (including elective, matching and
voluntary contributions) would cause the limitations set forth in
this section 7.5 to be exceeded, the excess amount shall be
deemed first to consist of the Participant's Elective
Contributions in excess of any amount subject to a Qualified
Matching Contribution and/or a Matching Contribution (pursuant to
section 6.3(a)(1) and/or 6.3(a)(2)) for the Plan Year, which
excess shall be returned to the Participant. The remaining excess
then shall be deemed to consist of Elective Contributions and
corresponding Matching Contributions and then, if any remaining
excess, shall be deemed to consist of Elective Contributions and
corresponding Qualified Matching Contributions, in which case the
excess elective contributions shall be returned to such
Participant and the corresponding Matching Contributions and
Qualified Matching Contributions shall be held and allocated in
the manner described below. Any remaining excess shall be deemed
to consist of Employer Discretionary Contributions and shall be
held and allocated as described below. Any excess amount
attributable to Matching Contributions, Qualified Matching
Contributions and Employer Discretionary Contributions shall be
held unallocated in a suspense account for the Limitation Year,
used to reduce Matching Contributions on behalf of such
Participant for the next Limitation Year, and allocated to such
Participant in lieu of such reduced contribution as of the end of
the next Limitation Year under the terms of section 7.4(b). Any
such allocations shall be treated as Annual Additions to the
Account of the Participant in the Limitation Year that they are
allocated in lieu of such reduced contributions. In the event
that the Participant terminates his participation in this Plan
before all of the amounts in a suspense account are allocated to
his Account, then such excess amounts shall be retained in such
suspense account, to be reallocated to other Participants as of
the end of the next Limitation Year and any succeeding Limitation
Years until all amounts in the suspense account are exhausted.
VII-8
ARTICLE VIII
Benefits Under the Plan
8.1 Retirement Benefit.
(a) A Participant shall be entitled to retire from the employ of his
Employer upon such Participant's Normal Retirement Date. Until a
Participant actually retires from the employ of his Employer, no
retirement benefits shall be payable to him, and he shall continue to
be treated in all respects as a Participant; provided, however, that a
Participant who is a 5% owner of the Company (or any Affiliate) and
who attains age 70 1/2 shall begin receiving payment of his retirement
benefit no later than the April 1 after the end of the calendar year
in which he attains age 70 1/2. In addition, upon giving thirty (30)
days written notice, a Participant may take an early retirement
commencing on or after the occurrence of such Participant's Early
Retirement Date.
(b) Upon the retirement of a Participant as provided in section 8.1(a)
and subject to adjustment as provided in section 9.4(b), such
Participant shall be entitled to a retirement benefit in an amount
equal to 100% of the balance in his Accounts as of the Valuation Date
immediately preceding or concurring with his benefit commencement
date, plus the amount of any contributions allocated subsequent to
such Valuation Date.
8.2 Disability Benefit.
(a) In the event a Participant's employment with his Employer is
terminated by reason of his total and permanent disability and subject
to adjustment as provided in section 9.4(b), such Participant shall be
entitled to a disability benefit in an amount equal to 100% of the
balance in his Accounts as of the Valuation Date immediately preceding
or concurring with the date of the severance of his employment, plus
the amount of any contributions allocated subsequent to such Valuation
Date.
(b) Total and permanent disability shall mean the total incapacity of
a Participant to perform the usual duties of his employment with his
Employer and will be deemed to have occurred only when certified by a
physician who is acceptable to the Plan Administrator and only if such
proof is received by the Administrator within sixty (60) days after
the date of the termination of such Participant's employment.
8.3 Severance from Employment Benefit.
VIII-1
(a) In the event a Participant's employment with his Employer is
severed for reasons other than retirement, total and permanent
disability or death, and subject to adjustment as provided in section
9.4(b), such Participant shall be entitled to a severance from
employment benefit in an amount equal to his vested interest in the
balance in his Accounts as of the Valuation Date immediately preceding
or concurring with the date of the severance of his employment, plus
his vested interest in the amount of any contributions allocated
subsequent to such Valuation Date. This section shall apply for
distributions after December 31, 2001, regardless of when the
severance from employment occurred.
(b) (1) The vested interest in the Employer Contributions Account and
the Matching Contributions Account of each Participant shall be a
percentage of the balance of each such Account as of the applicable
Valuation Date, based upon such Participant's Years of Service as of
the date of the severance of his employment, as follows:
Years of Service Non-Forfeitable Percentage
Less than 2 Years of Service 0%
2 years, but less than 3 years 20%
3 years, but less than 4 years 40%
4 years, but less than 5 years 60%
5 years, but less than 6 years 80%
6 years or more 100%
(2) Notwithstanding the foregoing, a Participant shall be 100%
vested in his Employer Contributions Account and his Matching
Contributions Account upon attaining his Normal or Early
Retirement Date. A Participant's vested interest in his Elective
Contributions Account, Qualified Matching Contributions Account,
Qualified Non-Elective Contributions Account, and Rollover/Merger
Account shall be 100% regardless of the number of his Years of
Service.
(c) (1) If the termination of employment results in five consecutive
Breaks in Service, then upon the occurrence of such five consecutive
Breaks in Service, the nonvested interest of the Participant in his
Employer Contributions Account and his Matching Contributions Account
as of the Valuation Date immediately preceding or concurring with the
date of his completion of five consecutive Breaks in Service shall be
deemed to be forfeited and such forfeited amount shall be reallocated,
pursuant to the provisions of sections 8.3(d)(3) and 6.3(c) at the end
of the Plan Year concurring with the date the fifth such consecutive
Break in Service occurs. If the Participant is later reemployed by an
Employer or an Affiliate, the unforfeited balance, if any, in his
Employer Contributions Account and his Matching Contributions Account
that has not been distributed to such Participant shall be set aside
in a separate account, and such Participant's Years of Service after
any five consecutive Breaks in Service resulting from such termination
of employment shall not be taken into account for the purpose of
determining the vested interest of such Participant in the balance of
his Employer Contributions Account that accrued before such five
consecutive Breaks in Service. If interests in more than one class of
Employer Securities have been so allocated to such Participant's
Accounts, the Participant shall forfeit the same proportion of each
such class.
VIII-2
(2) Notwithstanding any other provision of this section 8.3, if a
Participant is reemployed by an Employer or an Affiliate and, as
a result, no five consecutive Breaks in Service occur, the
Participant shall not be entitled to any severance from
employment benefit as a result of such termination of employment;
provided, however, that nothing contained herein shall require or
permit the Participant to return or otherwise have restored to
his Employer Contributions Account and his Matching Contributions
Account any funds distributed to him prior to his reemployment
and the determination that no five consecutive Breaks in Service
would occur.
(3) If a Participant is less than 100% vested in his Employer
Contributions Account and his Matching Contributions Account and
he receives all or a part of his severance from employment
benefit, then, if the Participant resumes employment with an
Employer or an Affiliate before the occurrence of five
consecutive Breaks in Service, until such time as there is a
fifth consecutive Break in Service, the Participant's vested
portion of the balance in his Employer Contributions Account and
his Matching Contributions Account at any time shall be equal to
an amount ("X") determined by the formula X = P(AB + D) - D,
where "P" is the vested percentage of the Participant at such
time, "AB" is the balance in the Participant's Employer
Contributions Account or his Matching Contributions Account, as
applicable, at such time and "D" is the amount distributed as a
severance from employment benefit.
(d) (1) Notwithstanding any other provision of this section 8.3,
if at any time a Participant is less than 100% vested in his
Employer Contributions Account and his Matching Contributions
Account, and, as a result of his severance from employment, he
receives his entire vested severance from employment benefit
pursuant to the provisions of Article IX, and the distribution of
such benefit is made not later than the close of the fifth Plan
Year following the Plan Year in which such termination occurs (or
such longer period as may be permitted by the Secretary of the
Treasury, through regulations or otherwise), then upon the
occurrence of such distribution, the nonvested interest of the
Participant in his Employer Contributions Account and his
Matching Contributions Account shall be deemed to be forfeited
and such forfeited amount shall be reallocated, pursuant to the
provisions of sections 8.3(d)(3) and 6.3(c) at the end of the
Plan Year immediately following or concurring with the date such
distribution occurs.
VIII-3
(2) If a Participant is not vested as to any portion of his
Employer Contributions Account and his Matching Contributions
Account, he will be deemed to have received a distribution
immediately following his severance from employment. Upon the
occurrence of such deemed distribution, the nonvested interest of
the Participant in his Employer Contributions Account and his
Matching Contributions Account shall be deemed to be forfeited
and such forfeited amount shall be reallocated, pursuant to the
provisions of sections 8.3(d)(3) and 6.3(c), at the end of the
Plan Year immediately following or concurring with the date such
distribution occurs.
(3) If a Participant whose interest is forfeited under this
section 8.3(d) is reemployed by an Employer or an Affiliate prior
to the occurrence of five consecutive Breaks in Service
commencing after his distribution, then such Participant shall
have the right to repay to the Trust, before the date that is the
earlier of (1) five years after the Participant's resumption of
employment, or (2) the close of a period of five consecutive
Breaks in Service, the full amount of the severance from
employment benefit previously distributed to him. If the
Participant elects to repay such amount to the Trust within the
time periods prescribed herein, or if a nonvested Participant
whose interest was forfeited under this section 8.3(d) is
reemployed by an Employer or an Affiliate prior to the occurrence
of five consecutive Breaks in Service, the nonvested interest of
the Participant previously forfeited pursuant to the provisions
of this section 8.3(d) shall be restored to the Employer
Contributions Account and the Matching Contributions Account of
the Participant, such restoration to be made from forfeitures of
nonvested interests and, if necessary, by contributions of his
Employer, so that the aggregate of the amounts repaid by the
Participant and restored by the Employer shall not be less than
the Employer Contributions Account balance and the Matching
Contributions Account balance of the Participant at the time of
forfeiture unadjusted by any subsequent gains or losses.
8.4 Death Benefit.
(a) In the event of the death of a Participant while he is employed by
an Employer and subject to adjustment as provided in section 9.4(b),
his beneficiary shall be entitled to a death benefit in an amount
equal to 100% of the balance in his Accounts as of the Valuation Date
immediately preceding or concurring with the date of his death plus
the amount of any contributions allocated subsequent to such Valuation
Date.
VIII-4
(b) Subject to the provisions of section 8.4(c), at any time and from
time to time, each Participant shall have the unrestricted right to
designate a beneficiary to receive his death benefit and to revoke any
such designation. Each designation or revocation shall be evidenced by
written instrument filed with the Plan Administrator, signed by the
Participant and bearing the signatures of at least two persons as
witnesses to his signature. In the event that a Participant has not
designated a beneficiary or beneficiaries, or if for any reason such
designation shall be legally ineffective, or if such beneficiary or
beneficiaries shall predecease the Participant, then the Participant's
surviving Eligible Spouse, and if none, his issue, per stirpes, and if
none, the personal representative of the estate of such Participant
shall be deemed to be the beneficiary designated to receive such death
benefit, or if no personal representative is appointed for the estate
of such Participant, then his next of kin under the statute of descent
and distribution of the State of such Participant's domicile at the
date of his death shall be deemed to be the beneficiary or
beneficiaries to receive such death benefit.
(c) Notwithstanding the foregoing, if the Participant is married as of
the date of his death, the Participant's surviving Eligible Spouse
shall be deemed to be his designated beneficiary and shall receive the
full amount of the death benefit attributable to the Participant
unless the spouse consents or has consented to the Participant's
designation of another beneficiary. Any such consent to the
designation of another beneficiary must acknowledge the effect of the
consent, must be witnessed by a Plan representative or by a notary
public and shall be effective only with respect to that spouse. A
spouse's consent may be either a restricted consent (which may not be
changed as to the beneficiary or (except as otherwise permitted by
law) form of payment unless the spouse consents to such change in the
manner described herein) or a blanket consent (which acknowledges that
the spouse has the right to limit consent only to a specific
beneficiary or a specific form of payment, and that the spouse
voluntarily elects to relinquish one or both of such rights).
Notwithstanding the preceding provisions of this section 8.4(c), a
Participant shall not be required to obtain spousal consent to his
designation of another beneficiary if the Participant is legally
separated or the Participant has been abandoned, and the Participant
provides the Administrator with a court order to such effect, or the
spouse cannot be located.
VIII-5
ARTICLE IX
Payments of Benefits
9.1 Time for Distribution of Benefits.
(a) Except as otherwise provided under this Article IX, the amount of
the benefit to which a Participant is entitled under section 8.1, 8.2,
8.3 or 8.4 shall be paid to him or applied for his benefit or, in the
case of a death benefit, shall be paid to or applied for the benefit
of said Participant's beneficiary or beneficiaries, as described
within section 9.2 beginning as soon as practicable following the
Valuation Date coincident with or next following the Participant's
retirement, disability, death, or other severance from employment, as
the case may be.
(b) (1) Any distribution paid to a Participant (or, in the case of a
death benefit, to his beneficiary or beneficiaries) pursuant to
section 9.1(a) shall commence not later than the earlier of:
(A) the 60th day after the last day of the Plan Year in
which the Participant's employment is terminated or, if
later, in which occurs the Participant's Normal Retirement
Date; or
(B) solely for each Participant who is a 5% owner of the
Company or an Affiliate, April 1 of the year immediately
following the calendar year in which he reaches age 70 1/2.
(2) Notwithstanding the foregoing, no distribution shall be made
of any Participant's benefit payable pursuant to section 8.1, 8.2
or 8.3 prior to his Normal Retirement Date unless the value of
his vested Accounts do not exceed $5,000, or unless the
Participant consents to the distribution. For each Participant
who severs employment after December 31, 2001, the portion of the
Participant's Rollover/Merger Account that is attributable to his
Rollover Contributions shall be excluded for purposes of
determining whether the value of his vested Accounts exceed
$5,000. The Plan Administrator shall provide each Participant
entitled to a distribution of more than $5,000 with a written
notice of his rights, which shall include an explanation of the
alternative dates for distribution of benefits. The Participant
may elect to exercise such rights, no less than 30 days and no
more than 90 days before the first date upon which distribution
of the Participant's vested Account balances may be made;
provided, however, that such distribution may be made less than
30 days after the exercise of such rights if
(A) the Plan Administrator informs the Participant of his
right to such thirty to ninety day period, and
IX-1
(B) the Participant, after receiving such notice from the
Plan Administrator, affirmatively elects a distribution in
less than 30 days. In the event that a Participant does not
consent to a distribution of a benefit in excess of $5,000
to which he is entitled under section 8.1, 8.2 or 8.3, the
amount of his benefit shall be paid to the Participant in
such subsequent Plan Year as the Participant shall, at any
time, select, but not later than sixty (60) days after the
last day of the Plan Year in which the Participant reaches
his Normal Retirement Date.
9.2 Form of Payment.
(a) The benefits payable under sections 8.1, 8.2, 8.3 and 8.4 shall be
paid to the Participant (or, if applicable, his beneficiary or
beneficiaries), to the extent possible, in cash or in units of
Employer Securities (except that no fractional shares shall be issued
and the value of any fractional shares to which a Participant would
otherwise be entitled shall be paid in cash), as elected by the
Participant (or his beneficiary or beneficiaries). If the Participant
elects to receive all or any portion of the vested balance in his
Accounts in units of Employer Securities, then, during the sixty (60)
day period immediately preceding the proposed distribution date of the
benefit which the Participant is entitled to receive under the Plan,
the Trustee, to the extent possible, shall apply (net of any brokerage
commissions) such portion of the Participant's Accounts to the
purchase of the maximum number of whole units of Employer Securities
at their then Fair Market Value, which units shall be allocated to the
Participant's Employer Securities Accounts. If the Trustee is unable
to apply any elected portion of the balance of such Accounts to the
purchase of whole units of Employer Securities within the said sixty
(60) day period, such elected portion shall be paid in cash.
(b) Notwithstanding the provisions of section 9.2(a), if the amount to
which any Participant is entitled under Article VIII is less than
$5,000, the Plan Administrator, in accordance with a uniform and
nondiscriminatory policy, may pay such amount to the Participant or
his beneficiary in the form of cash rather than Employer Securities
unless the Participant or his beneficiary demands that such amount be
distributed in the form of Employer Securities; provided, however,
that prior to distributing any such amount in cash, the Participant's
right to demand a distribution in the form of Employer Securities
instead of cash shall have been communicated to the Participant or his
beneficiary in writing by the Plan Administrator.
9.3 Manner of Payment.
(a) Benefits payable under sections 8.1, 8.2, 8.3 and 8.4 shall be
paid in a single lump sum payment.
IX-2
(b) Each payment shall satisfy the incidental death benefit
requirements and all other applicable provisions of Section 401(a)(9)
of the Code, the regulations issued thereunder (including Prop. Reg.
Section 1.401(a)(9)-2), and such other rules thereunder as may be
prescribed by the Commissioner.
9.4 Liquidation of Investments and Periodic Adjustments.
(a) Notwithstanding any other provision of this Plan, whenever a
Participant is entitled to a distribution or withdrawal from the Plan
pursuant to Article IX or X, the Plan Administrator and the Trustee
shall be entitled to liquidate all, or any portion, of the investments
attributable to the Participant's Accounts at any time during the five
business days preceding the date upon which the distribution or
withdrawal is scheduled to occur in order to facilitate the payment of
benefits. In the event that the Plan Administrator and the Trustee
elect to liquidate investments in order to facilitate a distribution
or withdrawal, the liquidated funds may be placed in a money market
fund or similar investment fund (or, when reasonable, may be held in
cash, without liability for interest thereon). The Plan Administrator
may adopt such accounting procedures as are necessary to accurately
reflect the Participant's interest in such liquidated funds.
(b) Except as otherwise provided in section 9.4(a), to the extent the
balance of a Participant's Accounts has not been distributed and
remains in the Plan, the value of such remaining balance shall be
subject to adjustment from time to time pursuant to the provisions of
Article VII.
9.5 Direct Rollover Distributions. Notwithstanding any provision of the
plan to the contrary, a Distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have all or any portion of an Eligible
Rollover Distribution paid directly to an Eligible Retirement Plan specified by
the Distributee in a Direct Rollover. In the event that a Distributee elects to
have only a portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan, the portion must not be less than $500 (adjusted under
such regulations as may be issued from time to time by the Secretary of the
Treasury).
9.6 Put Options.
(a) The provisions of this section 9.6 relate to all Employer
Securities purchased with the proceeds of an exempt loan pursuant to
Treasury Regulation Section 53.4975-7(b) and held as assets of the
Trust. Except to the extent hereinafter provided in this section 9.6,
except as provided in section 9.7, or except as otherwise required by
applicable law, no such Employer Securities may be subject to a put,
call or other option, or buy-sell or similar arrangement while held by
and when distributed from the Plan.
IX-3
(b) If any Employer Securities subject to this section 9.6, when
distributed to or for the benefit of a Participant, are not then
listed on a national securities exchange registered under section 6 of
the Securities Exchange Act of 1934 (the "1934 Act") or are not then
quoted on a system sponsored by a national securities association
registered under section 15A(b) of the 1934 Act, or, if so listed or
quoted, are then subject to a trading limitation (a restriction under
any federal or state securities law, any regulation thereunder or any
permissible agreement affecting such Employer Securities, that makes
such Employer Securities not as freely tradable as Employer Securities
not subject to such restriction), then the Participant, the
Participant's beneficiary or beneficiaries, the persons to whom such
shares are transferred by gift from the Participant, or any person to
whom such Employer Securities pass by reason of the death of the
Participant or a beneficiary of the Participant, as the case may be,
shall be granted an option to put any of the units of such Employer
Securities to the Company. The put option shall provide that, for a
period of fifteen (15) months after such shares are distributed, the
Participant, the Participant's beneficiary or beneficiaries, the
persons to whom such shares are transferred by gift from the
Participant, or any person to whom such Employer Securities pass by
reason of the death of the Participant or a beneficiary of the
Participant, as the case may be, shall have the right to have the
Company purchase such units at their Fair Market Value on the date the
put option is exercised. Any such put option shall be exercised by the
holder notifying the Company in writing that the put option is being
exercised; the date of exercise shall be the date the Company receives
such written notice. Payment of the purchase price shall be made by
the Company, at the election of the Company, either in cash within 30
days after the date of exercise or by an installment purchase. Any
installment purchase must provide for adequate security, a reasonable
interest rate and a payment schedule providing for cumulative payments
at any time not less than the payments that would be made if made in
substantially equal annual installments beginning within 30 days and
ending not more than five years (which may be extended to a date no
later than the earlier of ten years after the date of exercise or the
date the proceeds of the loan used by the Plan to acquire the
securities in question are entirely repaid) after the date the put
option is exercised.
(c) The following special rules shall apply to any put option granted
with respect to any Employer Securities subject to this section 9.6:
(1) At the time that any such put option is exercised, the Plan
shall have an option to assume the rights and obligations of the
Company under the put option.
IX-4
(2) If it is known at the time that a loan is made to the Plan to
enable it to purchase Employer Securities that federal or state
law will be violated by the Company honoring the put option
provided in this section 9.6, the holder of any such put option
shall have the right to put such Employer Securities to a third
party that has substantial net worth at the time the loan is made
and whose net worth is reasonably expected to remain substantial,
the identity of such third party to be selected by the Plan
Administrator.
(3) If any such Employer Securities are publicly traded without
restriction when distributed, but cease to be so traded within 15
months after distribution, the Company shall notify each holder
of such Employer Securities, in writing, on or before the tenth
day after the date such Employer Securities cease to be so
traded, that for the remainder of the 15-month period, such
Employer Securities are subject to a put option. Such notice
shall also inform the holder of the terms of such put option
(which terms shall be consistent with the provisions of this
section 9.6). If such notice is given after the tenth day after
the date such Employer Securities cease to be so traded, the
duration of the put option shall be extended by the number of
days between such tenth day and the date on which notice is
actually given.
(4) The period during which a put option is exercisable shall not
include any time when a distributee is unable to exercise it
because the party bound by the put option is prohibited from
honoring it by applicable federal or state law.
(d) Except as otherwise permitted by law, the provisions of this
section 9.6 are not terminable for any reason, including as a result
of the repayment of any loan used to acquire Employer Securities or by
the cessation of the Plan as an employer stock ownership plan.
9.7 Location of Participant or Beneficiary Unknown. In the event that all,
or any portion, of the distribution payable to a Participant or his beneficiary
hereunder shall, at the expiration of two (2) years after it shall become
payable, remain unpaid solely by reason of the inability of the Administrator to
ascertain the whereabouts of such Participant or his beneficiary despite the
reasonable effort of the Administrator to locate such Participant or his
beneficiary, the amount so distributable may, at the discretion of the
Administrator, be treated as a forfeiture and used as provided by section
6.3(c). In the event a Participant or beneficiary is located subsequent to his
benefit being reallocated, such benefit shall be restored. Notwithstanding the
foregoing provisions of this section, the Administrator shall comply with the
mandatory direct rollover distribution requirements of Section 401(a)(31)(B) of
the Code at all times after the provisions of such Section are required to be
effective under applicable federal law. In the event that Section 401(a)(31)(B)
of the Code is considered, by the Internal Revenue Service, as setting forth
permissive guidelines for distributions on behalf of missing Participants and
beneficiaries, the Plan Administrator may, at its discretion, elect to make
direct rollover distributions in accordance with Section 401(a)(31)(B) of the
Code.
IX-5
X-2
ARTICLE X
Preretirement Withdrawals
10.1 Hardship Withdrawals.
(a) A Participant will be eligible to receive a withdrawal of any
amounts credited to his Elective Contributions Account and his
Rollover/Merger Account on account of Hardship. Notwithstanding the
foregoing, any withdrawal pursuant to this Section 10.1 shall not
include amounts credited at any time to the Participant (in this Plan
or any plan merged with this Plan) as (1) earnings attributable to
Elective Contributions, or (2) Non-elective Contributions and earnings
attributable thereto. If a Participant incurs a Hardship, such
Participant may apply to the Administrator for the withdrawal of a
portion of his Elective Contributions Account and Rollover/Merger
Account not in excess of the amount of such Hardship. The
Administrator shall determine whether an immediate and heavy financial
need exists and the amount necessary to meet the need (which amount
may include the amount necessary to pay income taxes and penalties
reasonably anticipated to result from the withdrawal), or the lesser
amount, if any, to be distributed to such Participant, in a uniform
and nondiscriminatory manner. If the Administrator approves a Hardship
withdrawal, it shall direct the Trustee to distribute such amount to
such Participant first from any amounts credited to his
Rollover/Merger Account and then from his Elective Contributions
Account (subject, in each case, to the restrictions set forth
hereinabove). No Hardship Withdrawal shall be permitted in an amount
less than $1,000.
(b) An immediate and heavy financial need shall be deemed to include
(1) expenses of medical care (as defined in Section 213(d) of the
Code) incurred by the Participant or his spouse or other
dependents (as defined in Section 152 of the Code) or necessary
for such persons to obtain such medical care,
(2) payments (other than mortgage payments) directly related to
the purchase of the Participant's principal residence,
(3) payment of tuition and related educational fees for the next
12 months of post-secondary education for the Participant or his
spouse, children or other dependents,
(4) payments necessary to prevent the eviction of the Participant
from his principal residence or the foreclosure on the mortgage
of such residence, and
X-1
(5) such other events as may be prescribed by the Commissioner of
the Internal Revenue Service in revenue rulings, notices and
other documents of general applicability.
(c) A financial need shall not fail to qualify as immediate and heavy
merely because such need was reasonably foreseeable or voluntarily
incurred by the Participant.
(d) A distribution pursuant to this section 10.1 will be deemed
necessary to satisfy the financial need of a Participant if
(1) the distribution is not in excess of the amount of the
immediate and heavy financial need of the Employee (including any
amount necessary to pay income taxes and penalties reasonably
anticipated to result from the distribution);
(2) the Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans currently
available under all plans maintained by an Employer;
(3) the Participant's Elective Contributions to the Plan or any
other qualified or nonqualified plans of deferred compensation
maintained by an Employer are suspended and he is not permitted
to make further Elective Contributions until the expiration of 6
months from the date of such withdrawal; and
(4) the Participant is not permitted to make Elective
Contributions to the Plan or any other plan maintained by an
Employer for the Participant's taxable year immediately following
the taxable year of the Hardship distribution in excess of the
applicable limit under Section 402(g) of the Code for such next
taxable year less the amount of such Participant's elective
contributions for the taxable year of the hardship distribution.
(e) Any Participant who withdraws an amount pursuant to section
10.1(a) shall be subject to the limitations of section 6.1(g).
10.2 Withdrawals After Age 59 1/2. Upon reaching age 59 1/2, a Participant
may apply to the Administrator for the withdrawal of all or a portion of his
vested Accounts. The Administrator shall establish uniform and nondiscriminatory
rules and procedures regarding the distribution of benefits pursuant to this
section. The Administrator shall direct the Trustee to distribute to a
Participant who has applied for such a withdrawal the amount requested from his
Accounts. Amounts withdrawn from the Participant's Accounts shall be paid to the
Participant in the form and manner provided in sections 9.2 and 9.3.
X-2
ARTICLE XI
Directed Investments
11.1 Participant Directed Investments. Each Participant shall direct the
Trustee to invest his Accounts as provided by sections 11.1 through 11.6. Each
Participant, whose Accounts were partially invested, prior to April 1, 2002, at
the direction of the "company stock fund trustee" (as defined by the terms of
this Plan prior to this Amendment and Restatement) may elect on or after the
Effective Date to invest all or any portion of his Accounts previously invested
in the Company Stock Fund at the direction of the "company stock fund trustee"
in any investment set forth in section 11.2 of the Plan. Until a Participant so
elects on or after the Effective Date, he shall be deemed to have elected that
his Accounts previously invested in the Company Stock Fund by the "company stock
fund trustee" shall remain invested as they were invested prior to the Effective
Date.
11.2 Investment Funds. Each Participant may invest his Accounts in one or
more of the following investment funds:
(a) A "Money Market Fund," which may consist of a portfolio invested
in commercial paper, U.S. Government or federal agency obligations,
short-term corporate obligations, bank certificates of deposit,
savings accounts, guaranteed investment-type contracts, fixed rate
annuity contracts (provided, however, that no such annuity contract
shall be deemed to permit any Participant to receive any benefit under
this Plan in the form of a life annuity), and/or comparable
investments, as deemed appropriate by the Plan Administrator, designed
to provide maximum protection of capital with a conservative rate of
return;
(b) A "Bond Fund," which may consist of a portfolio invested primarily
in governmental and corporate bonds, notes and bills, fixed rate
annuity contracts (provided, however, that no such annuity contract
shall be deemed to permit any Participant to receive any benefit under
this Plan in the form of a life annuity), mortgages, savings accounts
and/or comparable investments, as deemed appropriate by the Plan
Administrator, designed to provide for a moderate rate of return based
primarily upon interest income;
(c) A "Balanced Fund," which may consist of a portfolio invested
primarily in common and preferred stocks, governmental and corporate
bonds and such other securities or investment opportunities, as deemed
appropriate by the Plan Administrator, designed to provide for a
balanced return based upon appreciation of stocks and income derived
from interest and dividends;
(d) A "Value Fund," which may consist of a portfolio invested in
common and preferred stocks (and other securities or investment
opportunities) believed to be trading at significant discounts to
their perceived economic value, as deemed appropriate by the Plan
Administrator, providing for long-term capital appreciation;
XI-1
(e) A "Growth Fund," which may consist of a portfolio invested
primarily in common stocks and such other securities or investment
opportunities, as deemed appropriate by the Plan Administrator,
providing primarily for long-term capital appreciation;
(f) An "Aggressive Growth Fund," which may consist of a portfolio
invested primarily in common stocks of small and medium-sized
companies and such other securities or investment opportunities, as
deemed appropriate by the Plan Administrator, providing for long-term
capital appreciation;
(g) A "Stock Market Index Fund", which may consist of a portfolio
designed to obtain investment returns substantially similar to the
return of the Standard and Poors 500 Composite Stock Price Index;
(h) A "Global Fund" which may consist of a portfolio invested
primarily in common stocks of foreign and domestic corporations, as
deemed appropriate by the Plan Administrator, providing primarily for
long-term capital appreciation;
(i) A "Company Stock Fund," which shall consist of a portfolio
invested in Employer Securities (except for cash or cash equivalents
pending distribution or investment and a short-term investment
component which may be retained in the discretion of the Trustee to
provide liquidity for such fund); and
(j) Such additional, or alternative, investment funds as may be made
available by the Plan Administrator from time to time.
The Plan Administrator may provide such Funds through mutual funds, investment
contracts, or other appropriate investment vehicles.
11.3 Election Procedures. Each Participant's elections described in section
11.1 shall be made upon his commencement of participation in the Plan in
accordance with the Agreements and Declarations of Trust or by any contract
entered into by the Trustees or the Plan Administrator with an investment
manager appointed to manage all or any portion of the assets of the Plan.
(a) A Participant shall designate the percentage of his Accounts to be
allocated to any Fund. The Administrator shall establish the minimum
percentage that each Participant may select to be allocated to any Fund
selected by the Participant.
(b) A Participant may revise his election effective as of such dates as may
be selected by the Plan Administrator from time to time (which shall be
effective not less than quarterly). The Participant's revised election
shall be effective for contributions made to the Plan after the effective
date of such revision, and may be effective for the investment of balances
previously allocated and remaining credited to a Participant's Accounts.
XI-2
(c) The Trustees shall make requested investments on behalf of each
Participant within a reasonable period after the receipt of directions from
the Administrator or the Participant. Whenever a Participant requests a
transfer of any portion of his Accounts from one Fund to another, the
Trustee shall be permitted to delay the purchase of the new Fund until it
receives the proceeds attributable to the sale of the prior Fund.
11.4 Failure to Designate. If a Participant does not specifically designate
the initial investments for all of his Accounts, the Administrator shall not
accept his initial salary reduction agreement. Except as set forth in section
11.1, in the event that a Participant is credited with Accounts prior to
providing the Trustees with directions for the investment of his Accounts, such
Accounts shall be invested in the Balanced Fund.
11.5 Uniform Procedures. The Administrator shall establish uniform
procedures regarding Participant investment directions, which procedures shall
be communicated to all Participants. The Plan Administrator, at its sole
discretion, may prohibit, or otherwise restrict, investment of Account balances
in the Company Stock Fund by any officer, director or 10% shareholder of the
Company, or any other Participant who is required to file reports under Section
16(b) of the Securities Exchange Act of 1934, in order to prevent a violation of
federal law or an undue administrative burden upon the Plan Administrator.
11.6 Designated Section 404(c) Plan.
(a) This Plan is designated as an "ERISA Section 404(c) Plan"
providing Participants (and beneficiaries) with the opportunity to
exercise control over the investment of assets held in their Accounts
and to select, from a broad range of investment funds, the manner in
which some or all of the assets in their Accounts are invested. The
investment funds shall be selected and offered by the Company, as the
designated plan fiduciary, in accordance with Section 404(c) of ERISA
and the regulations thereunder.
(b) Information relating to the purchase, holding or sale of interests
in the Company Stock Fund by Participants, as well as the voting
and/or tender of Employer Securities, shall be maintained on a
confidential basis by the director of personnel for the Company at all
times. The director of personnel for the Company shall be the
fiduciary responsible for maintaining all participant information with
respect to investments in, and the voting and tender of, the Company
Stock Fund. The director of personnel shall maintain confidential
information with respect to participants' investments in the Company
Stock Fund in a manner that will prevent officers, directors and
employees of the Company from obtaining access to the information
unless they have been specifically authorized to receive the
information in connection with their responsibilities with respect to
the administration of the plan. The director of personnel also shall
be responsible for the periodic review and revision of confidentiality
procedures for the Plan.
XI-3
(c) In the event the fiduciary designated in section 11.6(b) above
determines that the direct or indirect exercise of shareholder rights
by any Participant who has invested in the Company Stock Fund may be
subject to undue employer influence, the fiduciary shall appoint one
or more independent fiduciaries (who are not affiliated with any
Employer) to carry out such activities with respect to the Company
Stock Fund as may be required to eliminate such undue employer
influence.
11.7 Loans. No new Participant loans will be permitted from the Plan. For
loans made to Participants in the PSS ESOP prior to October 23, 1998, the
provisions of the PSS ESOP, as set forth prior to its merger with this Plan,
shall be in effect.
XI-4
XII-2
ARTICLE XII
Trust Funds
12.1 Trust Fund. The Trust Fund shall be held by The Chase Manhattan Bank,
as Trustee, or by a successor trustee or trustees, for use in accordance with
the Plan under the Agreement and Declaration of Trust. The Agreement and
Declaration of Trust may from time to time be amended in the manner therein
provided. Similarly, the Trustee may be changed from time to time in the manner
provided in the Agreement and Declaration of Trust.
12.2 Separate Funds. The Trustee may maintain a primary trust fund (which
shall include assets attributable to Funds other than the Company Stock Fund)
and a Company Stock Fund.
12.3 Voting. Unless otherwise required by the Agreement and Declaration of
Trust, any voting and other rights with respect to units of Employer Securities
held as part of, or otherwise attributable to, each Participant's Accounts,
within the Company Stock Fund shall be exercised as follows:
(a) If the Employer has a publicly traded security, as defined in Labor
Reg. ss. 2550.404(c)-1(d)(2)(ii)(E)(4)(iii), any voting and other rights
with respect to units of Employer Securities (including fractional shares)
allocated to any Participant's Employer Securities Account shall be
exercised by the Trustee in accordance with instructions received from such
Participant.
(b) In connection with the exercise of the rights set forth in section
12.5(a), the Trustee shall notify each Participant at least thirty (30)
days prior to the date upon which such rights are to be exercised;
provided, however, that the Trustee shall not be under any obligation to
notify the Participants sooner than it receives such information as
security holders of record. In the event the notice received by the Trustee
makes it impossible for the Trustee to comply with such thirty (30) day
notice requirement, the Trustee shall notify the Participants regarding the
exercise of such rights as soon as practicable. The notification shall
include all information distributed to the security holders of record by
the Employer regarding the exercise of such rights. The Trustee shall be
entitled to exercise such rights on the units of Employer Securities
allocated to a Participant's Employer Securities Account only to the extent
that it receives direction from such Participant, and if it does not
receive direction, it shall not exercise any rights.
12.4 Dividends. Unless otherwise required by the Agreement and Declaration
of Trust, dividends with respect to units of Employer Securities held as part
of, or otherwise allocable to, the Participants' Accounts shall be retained by
the Trustee within the Company Stock Fund and allocated in the same manner as
other income of the Trust Fund.
XII-1
ARTICLE XIII
Expenses of Administration of the Plan and the Trust Fund
The Company shall bear all expenses of implementing this Plan and the
Trust. For its services, any corporate trustee shall be entitled to receive
reasonable compensation in accordance with its written agreement with the
Company, as in effect from time to time. Any individual Trustee shall be
entitled to such compensation as shall be arranged between the Company and the
Trustee by separate instrument; provided, however, that no person who is already
receiving full-time pay from any Employer or any Affiliate shall receive
compensation from the Trust Fund (except for the reimbursement of expenses
properly and actually incurred). The Company may pay all expenses of the
administration of the Trust Fund, including the Trustee's compensation, the
compensation of any investment manager, the expense incurred by the Plan
Administrator in discharging its duties, all income or other taxes of any kind
whatsoever that may be levied or assessed under existing or future laws upon or
in respect of the Trust Fund, and any interest that may be payable on money
borrowed by the Trustee for the purpose of the Trust and any Employer may pay
such expenses as relate to Participants employed by such Employer. Any such
payment by the Company or another Employer shall not be deemed a contribution to
this Plan. Such expenses shall be paid out of the assets of the Trust Fund
unless paid or provided for by the Company or another Employer. Notwithstanding
anything contained herein to the contrary, no excise tax or other liability
imposed upon the Trustee, the Plan Administrator or any other person for failure
to comply with the provisions of any federal law shall be subject to payment or
reimbursement from the assets of the Trust.
XIII-1
ARTICLE XIV
Amendment and Termination
14.1 Restrictions on Amendment and Termination of Plan. It is the present
intention of the Company to maintain he Plan set forth herein indefinitely.
Nevertheless, the Company specifically reserves to itself the right at any time,
and from time to time, to amend or terminate this Plan in whole or in part;
provided, however, that no such amendment:
(a) shall have the effect of vesting in any Employer, directly or
indirectly, any interest, ownership or control in any of the present or
subsequent funds held subject to the terms of the Trust;
(b) shall cause or permit any property held subject to the terms of the
Trust to be diverted to purposes other than the exclusive benefit of the
Participants and their beneficiaries or for the administrative expenses of
the Plan Administrator and the Trust;
(c) shall either directly or indirectly reduce any vested and
nonforfeitable interest of, or the vested percentage in effect with respect
to, a Participant determined as of the later of the date the amendment is
adopted or the date the amendment is effective, except as permitted by law;
(d) shall reduce the Accounts of any Participant;
(e) shall amend any vesting schedule with respect to any Participant who
has at least three Years of Service at the end of the election period
described below, except as permitted by law, unless each such Participant
shall have the right to elect to have the vesting schedule in effect prior
to such amendment apply with respect to him, such election, if any, to be
made during the period beginning not later than the date the amendment is
adopted and ending no earlier than sixty (60) days after the latest of the
date the amendment is adopted, the amendment becomes effective or the
Participant is issued written notice of the amendment by his Employer or
the Plan Administrator;
(f) shall increase the duties or liabilities of the Trustee without its
written consent; or
(g) shall modify, more than once in any six-month period, any provision of
the Plan set forth in Article V, sections 6.1, 6.3, 6.4, 6.5, 7.5(b), and
7.6 that is applicable to any officer, director, 10% owner of any Employer,
or any other Participant who is required to file reports under Section
16(a) of the Securities Exchange Act of 1934.
XIV-1
14.2 Amendment of Plan. Subject to the limitations stated in section 14.1,
the Company shall have the power to amend this Plan in any manner that it deems
desirable, and, not in limitation but in amplification of the foregoing, it
shall have the right to change or modify the method of allocation of
contributions hereunder (except as provided in section 14.1(g)) to change any
provision relating to the administration of this Plan and to change any
provision relating to the distribution or payment, or both, of any of the assets
of the Trust.
14.3 Termination of Plan. Any Employer, in its sole and absolute
discretion, may permanently discontinue making contributions under this Plan or
may terminate this Plan and the Trust (with respect to all Employers if it is
the Company, or with respect to itself alone if it is an Employer other than the
Company), completely or partially, at any time without any liability whatsoever
for such permanent discontinuance or complete or partial termination. In any of
such events, the affected Participants, notwithstanding any other provisions of
this Plan, shall have fully vested interests in the amounts credited to their
respective Accounts at the time of such complete or partial termination of this
Plan and the Trust or permanent discontinuance of contributions. All such vested
interests shall be nonforfeitable.
14.4 Discontinuance Procedure. In the event an Employer decides to
permanently discontinue making contributions, such decision shall be evidenced
by an appropriate resolution of its Board and a certified copy of such
resolution shall be delivered to the Plan Administrator and the Trustee. All of
the assets in the Trust Fund belonging to the affected Participants on the date
of discontinuance specified in such resolutions shall, aside from becoming fully
vested as provided in section 14.3, be held, administered and distributed by the
Trustee in the manner provided under this Plan. In the event of a permanent
discontinuance of contributions without such formal documentation, full vesting
of the interests of the affected Participants in the amounts credited to their
respective Accounts will occur on the last day of the year in which a
substantial contribution is made to the Trust.
14.5 Termination Procedure.
(a) In the event an Employer decides to terminate this Plan and the
Trust, such decision shall be evidenced by an appropriate resolution
of its Board and a certified copy of such resolution shall be
delivered to the Plan Administrator and the Trustee. After payment of
all expenses and proportional adjustments of individual accounts to
reflect such expenses and other changes in the value of the Trust Fund
as of the date of termination, each affected Participant (or the
beneficiary of any such Participant) shall be entitled to receive,
provided that the requirements set forth in section 14.5(b) are met,
any amount then credited to his Accounts in a lump sum.
(b) In the event this Plan and the Trust are terminated, completely or
partially, and with respect to any one Employer or with respect to all
Employers, distributions may not be made pursuant to this section 14.5
unless:
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(1) the Plan has been completely terminated and no successor plan
(within the meaning of Section 401(k)(10) of the Code) has been
established;
(2) the Plan has been partially terminated as a result of the
sale or other disposition by an Employer to an unrelated
corporation of substantially all of the assets used in a trade or
business, in which case distribution may be made to employees who
continue employment with the acquiring corporation; or
(3) the Plan has been partially terminated as a result of the
sale or other disposition by an Employer of its interest in a
subsidiary, in which case distribution may be made to employees
who continue employment with the subsidiary.
(c) At the election of the Participant, the Plan Administrator may
transfer the amount of any Participant's distribution under this
section 14.5 to the trustee of another qualified plan or the trustee
of an individual retirement account or individual retirement annuity
instead of distributing such amount to the Participant. Any such
election by a Participant shall be in writing and filed with the Plan
Administrator.
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ARTICLE XV
Miscellaneous
15.1 Merger or Consolidation. This Plan and the Trust may not be merged or
consolidated with, and the assets or liabilities of this Plan and the Trust may
not be transferred to, any other plan or trust unless each Participant would
receive a benefit immediately after the merger, consolidation or transfer, if
the plan and trust then terminated, that is equal to or greater than the benefit
the Participant would have received immediately before the merger, consolidation
or transfer if this Plan and the Trust had then terminated.
15.2 Alienation.
(a) Except as provided in section 15.2(b) no Participant or
beneficiary of a Participant shall have any right to assign, transfer,
appropriate, encumber, commute, anticipate or otherwise alienate his
interest in this Plan or the Trust or any payments to be made
thereunder; no benefits, payments, rights or interests of a
Participant or beneficiary of a Participant of any kind or nature
shall be in any way subject to legal process to levy upon, garnish or
attach the same for payment of any claim against the Participant or
beneficiary of a Participant; and no Participant or beneficiary of a
Participant shall have any right of any kind whatsoever with respect
to the Trust, or any estate or interest therein, or with respect to
any other property or right, other than the right to receive such
distributions as are lawfully made out of the Trust, as and when the
same respectively are due and payable under the terms of this Plan and
the Trust.
(b) Notwithstanding the provisions of section 15.2(a) the Plan
Administrator shall direct the Trustee to make payments pursuant to a
Qualified Domestic Relations Order as defined in Section 414(p) of the
Code. The Plan Administrator shall establish procedures consistent
with Section 414(p) of the Code to determine if any order received by
the Plan Administrator, or any other fiduciary of the Plan, is a
Qualified Domestic Relations Order. Notwithstanding any provision of
this Plan to the contrary, if the Qualified Domestic Relations Order
so requires, distribution with respect to any Qualified Domestic
Relations Order received by the PSS ESOP prior to April 1, 1999, shall
be made to an Alternate Payee without regard to the age or employment
status of the Participant. Distribution shall be made to an Alternate
Payee pursuant to any other Qualified Domestic Relations Order only
after compliance with the maximum Participant age, or termination of
employment status, provisions of Section 414(p) of the Code.
15.3 USERRA Requirements. Effective December 12, 1994, this Plan shall
comply with the requirements of the Uniformed Services Employment and
Reemployment Rights Act (USERRA) and Section 414(u) of the Code, including the
following:
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(a) An individual reemployed under USERRA shall be treated as not
having incurred a Break in Service with Employer by reason of such
individual's qualified military service (as defined in Section 414(u)
of the Code).
(b) Each period of qualified military service served by an individual
is, upon reemployment, deemed to constitute service with the Employer
for purposes of vesting and the accrual of benefits under the Plan.
(c) An individual reemployed under USERRA is entitled to accrued
benefits that are contingent on the making of, or derived from,
Employee contributions or elective deferrals only to the extent the
individual makes payment to the Plan with respect to such
contributions or deferrals; provided, however, that no such payment
may exceed the amount the individual would have been permitted or
required to contribute had the individual remained continuously
employed by the Employer throughout the period of qualified military
service. Any payment to the Plan under this subsection (c) shall be
made during the period beginning with the date of reemployment and
whose duration is 3 times the period of the qualified military service
(but not greater than 5 years).
15.4 Governing Law. This Plan shall be administered, construed and enforced
according to the laws of the State of Florida, except to the extent such laws
have been expressly preempted by federal law.
15.5 Action by Employer. Whenever the Company or another Employer under the
terms of this Plan is permitted or required to do or perform any act, it shall
be done and performed by the Board of Directors of the Company or such other
Employer and shall be evidenced by proper resolution of such Board of Directors
certified by the Secretary or Assistant Secretary of the Company or such other
Employer.
15.6 Alternative Actions. In the event it becomes impossible for the
Company, another Employer, the Plan Administrator or the Trustee to perform any
act required by this Plan, then the Company, such other Employer, the Plan
Administrator or the Trustee, as the case may be, may perform such alternative
act that most nearly carries out the intent and purpose of this Plan.
15.7 Gender. Throughout this Plan, and whenever appropriate, the masculine
gender shall be deemed to include the feminine and neuter; the singular, the
plural; and vice versa.
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IN WITNESS WHEREOF, this Amendment and Restatement has been executed
this _____ day of March, 2002, and shall be effective as of the dates set forth
hereinabove.
PSS WORLD MEDICAL, INC.
By: /s/ David D. Klarner
________________________________
(Corporate Seal) Its: Vice President of Treasury
"COMPANY"
DIAGNOSTIC IMAGING, INC.
By: /s/ David D. Klarner
________________________________
(Corporate Seal) Its: Vice President of Treasury
GULF SOUTH MEDICAL SUPPLY, INC.
By: /s/ David D. Klarner
________________________________
(Corporate Seal) Its: Vice President of Treasury
WORLDMED, INC.
By: /s/ David D. Klarner
________________________________
(Corporate Seal) Its: Vice President of Treasury
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PHYSICIAN SALES & SERVICE, LP
By: /s/ David D. Klarner
________________________________
(Corporate Seal) Its: Vice President of Treasury
PHYSICIAN SALES & SERVICE, INC.
By: /s/ David D. Klarner
________________________________
(Corporate Seal) Its: Vice President of Treasury
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