EXHIBIT 10.11
Amendment Number 9
Vencor, Inc. Retirement Savings Plan
WHEREAS Vencor, Inc. ("Sponsoring Employer") adopted the Vencor, Inc.
Retirement Savings Plan ("Plan") effective as of January 1, 1986; and
WHEREAS the Sponsoring Employer reserved the right to amend the Plan by
action of its Board of Directors; and
WHEREAS the Sponsoring Employer now desires to amend said Plan to make
certain changes as a result of recent plan mergers;
NOW, THEREFORE, the Plan is amended, effective January 1, 1996, except as
otherwise indicated herein, in the following respects:
(1) Section 1.28 is amended to read as follows:
Section 1.28 Individual Account means the detailed record kept of the
amounts credited or charged to each Participant in accordance
with the terms hereof. Such Individual Account is comprised
of the following accounts: a Base Contribution Account, a
Profit Sharing Contribution Account, a Salary Redirection
Account, a Matching Contribution Account, a Prior Plan Salary
Redirection Account, if applicable, and a Prior Plan Employer
Contribution Account, if applicable.
(2) New Subsection 1.45(g) is added to read as follows:
(g) Service with a predecessor employer will be credited to an employee as
Service for the Employer as required pursuant to Code Section 414(a).
For purposes of this Subsection, a predecessor employer is an employer
who sponsored a plan qualified under Code Section 401(a) which is
maintained by the Company.
(3) New Section 1.53 is added to read as follows:
Section 1.53 Prior Plan Employer Contribution Account means that portion
of a Participant's Individual Account attributable to (i) any
employer contributions and accumulated earnings allocated to
such Participant under the terms of a plan which has been
merged into this Plan (but does not include the Prior Plan)
and (ii) the Participant's proportionate share attributable
to his Prior Plan Employer Contribution Account, of the
Adjustments, reduced by any distributions from such Account.
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(4) New Section 1.54 is added to read as follows:
Section 1.54 Prior Plan Salary Redirection Account means that portion of a
Participant's Individual Account attributable to (i) any pre-
tax deferrals and accumulated earnings allocated to such
Participant under the terms of a plan which has been merged
into this Plan (but does not include the Prior Plan) and (ii)
the Participant's proportionate share attributable to his
Prior Plan Salary Redirection Account, of the Adjustments,
reduced by any distributions from such Account.
(5) Section 2.3 is amended effective September 28, 1995, to read as follows:
Section 2.3 Reemployment and Transfers
(a) Termination of employment shall be deemed to occur when
an Employee has an interruption in continuity of his
employment by the Company. Such termination may have
resulted from retirement, death, voluntary or involuntary
termination of employment, unauthorized absence, or by
failure to return to active employment with the Company
or to retire by the date on which an authorized leave of
absence expired.
(b) If an Employee who was not eligible to become a
Participant in the Plan during his prior period of
employment is reemployed, he shall be eligible to
participate in the Plan after he has met the requirements
of Section 2.1.
(c) If an Employee who was a participant in the Plan during
his prior period of employment (or who had met the age
and service requirements of Section 2.1(a) but did not
remain employed until the applicable Entry Date) is
reemployed, he shall be eligible to again become a
Participant as of the date he again becomes an Employee.
(d) If an Employee transfers employment from a non-adopting
employer to the Employer, the Employee shall become a
Participant under this Plan as of the date of transfer of
employment to the Employer provided he has been employed,
as of the date of transfer of employment, for six (6)
consecutive months calculated from his original date of
hire with the non-adopting employer. If the Employee who
transfers employment from a non-adopting employer to the
Employer has not been employed, as of the date of
transfer of employment, for at least six (6) consecutive
months
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calculated from his original date of hire with the non-adopting
employer, he shall become a Participant under this Plan upon
meeting the eligibility requirements of Section 2.1. calculated
from his original date of hire with the non-adopting employer.
For purposes of this Subsection, a non-adopting employer is an
entity which is part of the Company but which has not adopted
the Plan for the benefit of its employees.
(6) Subsection 3.1(b) is amended to read as follows:
(b) Submission of Form. In order for Salary Redirection to commence on
the appropriate date (the beginning of a payroll period), the Salary
Redirection agreement must be received by the Committee at least
thirty (30) days prior to the date Salary Redirection is to start, or
as soon as the Salary Redirection agreement can administratively be
implemented, or such shorter period as is administratively feasible.
Notwithstanding the above, a terminated Participant who is reemployed
and is eligible to participate upon reemployment may enter into a
Salary Redirection agreement on his reemployment date to be
applicable to Compensation earned on and after such date or as soon
as the Salary Redirection agreement can administratively be
implemented. In addition, an Employee who transfers employment from a
non-adopting employer to an Employer and is eligible to participate
upon his transfer may enter into a Salary Redirection agreement on
his date of transfer to be applicable to Compensation earned after
that date or as soon as the Salary Redirection agreement can
administratively be implemented. In the event a Participant does not
so elect when initially eligible, he may subsequently elect to have
Salary Redirection made on his behalf commencing with the first day
following the Valuation Date which is at least thirty (30) days after
the date his election form is delivered to the Committee, or such
shorter period as is administratively feasible. The Salary
Redirection agreement shall be on a form provided by the Committee.
Such agreement shall authorize the employer to reduce Compensation
otherwise payable to the Participant during each pay period by the
amount of Salary Redirection elected.
(7) Section 4.2 is amended to read as follows:
Section 4.2 Investment of Accounts
(a) There shall be established the following Investment Funds
within the Trust Fund:
(1) Fixed Income Fund - a fund consisting primarily of
fixed income obligations of the United States
government and
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its agencies and of companies other than the
Sponsoring Employer, in order to provide protection
of principal consistent with an attractive rate of
return.
(2) Equity Fund - a fund consisting primarily of equity
investments.
(3) Company Stock Fund - a fund consisting primarily of
shares of common stock of the Sponsoring Employer
and dividends and distributions attributable to
said common stock, plus temporary investments held
pending purchase of additional shares of common
stock of the Sponsoring Employer.
(b) Each Participant shall have the right to direct the
Committee to invest the cumulative balance in his
Individual Account attributable to Salary Redirection.
Prior Plan Salary Redirection Contributions. Prior Plan
Employer Contributions and current Salary Redirection in
increments of twenty-five percent (25%) in the
Investment Funds provided in Subsection (a) of this
Section. Such direction shall be made by giving the
direction to the Committee thirty (30) days prior to the
first day following any Valuation Date to be effective
on said first day following the Valuation Date.
(c) A Participant who does not make any election under this
Section shall have the Individual Account attributable
to Salary Redirection, Prior Plan Salary Redirection
Contributions, Prior Plan Employer Contributions and
current Salary Redirection made on his behalf invested
in the Fixed Income Fund.
(d) All cumulative and current contributions attributable to
Employer Contributions (including employer contributions
under the Prior Plan) and the Profit Sharing
Contribution Account shall be invested in the Company
Stock Fund.
(8) New Section 3.9 is added to read as follows:
Section 3.9 Qualified Nonelective Contributions
The Employer may, as of any Valuation Date, make a Qualified
Nonelective Contribution to the Trust Fund on behalf of any
Participant with a Prior Plan Employer Contribution Account or
Prior Plan Salary
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Redirection Account in an amount equal to the surrender charges
assessed by the insurer which held the assets in those accounts in
the plan which was merged into this Plan. Such Qualified
Nonelective Contributions shall be added to the Salary Redirection
Accounts of those Participants in amounts equal to the allocation
of the surrender charges to the Participant's combined Prior Plan
Employer and Prior Plan Salary Redirection Accounts, shall be one
hundred percent (100%) vested when made, subject to the same
distribution rules as Salary Redirection Contribution, and shall
be tested for nondiscrimination as Salary Redirection
Contributions in accordance with the provisions of Section 3.5.
(9) Subsection 5.6(b) is amended to read as follows:
(b) A Participant shall always be one hundred percent (100%) vested in the
balance of his Salary Redirection Account, Prior Plan Salary
Redirection Account and Base Contribution Account.
(10) Subsection 5.6(c) is amended to read as follows:
(c) Effective for Participants who terminate employment on or after
July 1, 1990, a Participant shall be vested in the balance
attributable to his Prior Plan Employer Contribution Account, Matching
Contribution Account and Profit Sharing Contribution Account based on
years of Service as of his date of termination, in accordance with the
following schedule:
Years of Service Vested Percentage
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Less than 1 year 0%
1 but less than 2 25%
2 but less than 3 50%
3 but less than 4 75%
4 years or more 100%
(11) Subsection 5.8(a) is amended to read as follows:
(a) A Participant or Beneficiary shall elect a distribution of the
Individual Account in a single lump sum payment in cash as provided
hereinafter. Notwithstanding the preceding sentence, a Participant may
request that the Company Stock Fund be distributed in kind, provided
that the Participant has at least one hundred (100) shares of
Sponsoring Employer common stock in his Individual Account at the date
of distribution. Any non-stock balance in his Company Stock Fund will
be paid in cash and fractional shares will be paid in cash based on
the fair market value of such fractional shares as of the date of
distribution. In the event a
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Participant elect to receive his Company Stock Fund in cash, the
shares of Sponsoring Employer stock as of the date of distribution
will be converted to cash based on the fair market value of such
shares as of such date. Except as provided in Subsection (c) of this
Section or Section 5.12, no other manner of distribution shall be
provided. The request by the Participant or the Beneficiary shall be
in writing and shall be filed with the Committee at least thirty (30)
days before distribution is to be made. The Committee may not require
a distribution without the consent of the Participant prior to his
reaching Normal Retirement Age or, if the Participant is deceased,
without the consent of his spouse, if the spouse is living and if the
spouse is his Beneficiary, unless the vested value of the Individual
Account is not more than three thousand five hundred dollars
($3,500). If the vested value of the Participant's Individual Account
is less than three thousand five hundred dollars ($3,500), the
benefits payable will be paid as soon as reasonably possible
following the actual date of severance, notwithstanding lack of
consent If the vested value of the Participant's Individual Account
has been more than three thousand five hundred dollars ($3,500) at
the time of any subsequent distribution, the value of the
Participant's Individual Account will be deemed to be more than three
thousand five hundred dollars ($3,500) at the time of any
subsequent distribution for purposes of the consent requirements of
this paragraph.
(12) New Subsection 5.8(c) is added to read as follows:
(c) Notwithstanding anything in this Section to the contrary, in the case
of a Participant who has a Prior Plan Salary Redirection Account or a
Prior Plan Employer Contribution Account, the Participant may take
distribution of his Prior Plan Salary Redirection Account or Prior
Plan Employer Contribution Account at such time or in such other form
as was provided in the plan (as in effects as of the date of
transfer) from which the Prior Plan Salary Redirection Account or
Prior Plan Employer Contribution Account was transferred.
(13) New Section 5.12 is added to read as follows:
Section 5.12 Joint and Survivor Options
(a) This Section shall only apply to a Participant who
has a Prior Plan Employer Contribution Account and/or
a Prior Plan Salary Redirection Account that was
transferred as a result of a plan merger from a plan
that provided for an annuity form of distribution.
(b) Qualified Joint and Survivor Annuity. Except as
otherwise provided below, unless an optional form
of benefit is selected
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pursuant to a qualified election within the 90 day period ending on
the date benefit payments would commence, a Participant's vested Prior
Plan Employer Contribution Account and Prior Plan Salary Redirection
Account will be paid in the form of a qualified joint and survivor
annuity, and an unmarried Participant's benefit shall be paid in the
form of a life annuity unless otherwise elected by the Participant. A
qualified joint survivor annuity will not be applicable and this
Section shall not apply if the following conditions are met:
(1) The Participant's vested Individual Account is payable in full,
on the death of the Participant, to the Participant's surviving
spouse, or if there is no surviving spouse, or if the surviving
spouse has previously consented to the designation of a non-
spouse Beneficiary in the manner prescribed under this Section,
and
(2) Such Participant does not elect a payment of benefits in the
form of a life annuity, and
(3) With respect to such Participant, such Plan is not a direct or
indirect transfer of a Plan which is described in clause (i) or
(ii) or Section 401(a)(11)(B) of the Code, or
(4) If the distribution is subject to the terms and conditions
contained in Section 5.8 concerning the distribution of vested
Individual Accounts of three thousand five hundred dollars
($3,500) or less.
(b) Qualified Pre-Retirement Survivor Annuity. Except as otherwise
provided in this Subsection, unless an optional form of benefit has
been selected within the election period pursuant to a qualified
election, if a Participant dies before benefits have commenced, then
the Participant's vested Prior Plan Employer Contribution Account and
Prior Plan Salary Redirection Account shall be applied toward the
purchase of an annuity for the life of the surviving spouse. Benefits
will not be required to be paid in the form of a pre-retirement
survivor annuity if the following conditions are met:
(1) The Participant's vested Individual Account is payable in full,
on the death of the Participant, to the Participant's surviving
spouse, or if there is no surviving spouse, or if
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the surviving spouse has previously consented to the designation
of a non-spouse Beneficiary in the manner prescribed under this
Section, and
(2) Such Participant does not elect a payment of benefits in the
form of a life annuity, and
(3) With respect to such Participant, such Plan is not a direct or
indirect transfer of a Plan which is described in clause (i) or
(ii) or Section 401(a)(11)(b) of the Code, and
(4) If the distribution is subject to the terms and conditions
contained in Section 5.8 concerning the distribution of vested
Individual Accounts of three thousand five hundred dollars
($3,500) or less
(c) Election Period shall mean, for purposes of this Section, the period
which begins on the first day of the Plan Year in which the Participant
attains age thirty-five (35) and ends on the date of the Participant's
death. If a Participant separates from service prior to the first day of
the Plan Year in which age thirty-five (35) is attained, with respect to
the Individual Account Balance as of the date of separation, the
election period shall begin on the date of separation.
(d) Early Retirement Age shall mean, for purposes of this Section, the
earliest date on which, under the Plan, the Participant could elect to
receive retirement benefits.
(e) Qualified Election shall mean, for purposes of this Section, an election
pursuant to this Subsection. A waiver of a qualified joint and survivor
annuity or a qualified pre-retirement survivor annuity is permitted. The
waiver must be in writing, must be executed by the Participant, must
specify the Beneficiary and the optional form of benefit and must be
consented to by the Participant's spouse. The spouse's consent to a
waiver must be witnessed by a Plan representative or a notary public.
Notwithstanding this consent requirement, if the Participant establishes
to the satisfaction of a Plan representative that such written consent
may not be obtained because there is no spouse or the spouse cannot be
located, a waiver will be deemed a qualified election. Any consent
necessary under this provision will be valid only with respect to the
spouse who signs the consent, or in the event of a deemed qualified
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election, the designated spouse. Additionally a revocation of a
prior waiver may be made by a Participant without the consent of
the spouse at any time before the commencement of benefits. The
number of revocations shall not be limited.
(f) Qualified Joint and Survivor Annuity shall mean, for purposes of
this Section, an annuity for the life of the Participant with a
survivor annuity for the life of the spouse which is not less
than fifty percent (50%) and not more than one hundred percent
(100%) of the amount of the annuity which is payable during the
joint lives of the Participant and the spouse and which is the
amount of benefit which can be purchased with the Particpant's
vested Prior Plan Employer Contribution Account and Prior Plan
Salary Redirection Account.
(g) Qualified Pre-Retirement Survivor Annuity shall mean, for
purposes of this Section, a survivor annuity for the life of the
surviving spouse, the actuarial equivalent of which is not less
than fifty percent (50%) of the vested Prior Plan Employer
Contribution Account and Prior Plan Salary Redirection Account
of the Participant as of the date of death, which may become
payable as a result of the Participant's death prior to his
Normal Retirement Date.
(h) Notice Requirements.
(1) In the case of a qualified joint and survivor annuity the
Committee shall provide each Participant no less than
thirty (30) days and no more than ninety (90) day prior to
the annuity starting date (or such other time as provided
by regulations or other pronouncements), a written
explanation of: (i) the terms and conditions of a qualified
joint and survivor annuity; (ii) the Participant's right to
make and the effect of an election to waive the qualified
joint and survivor annuity form of benefit; (iii) the
rights of a Participant's spouse; and (iv) the right to
make and the effect of a revocation of a previous election
to waive the qualified joint and survivor annuity.
(2) In the case of a qualified pre-retirement survivor annuity
the Committee shall provide each Participant within the
period beginning on the first day of the Plan Year in which
the Participant attains age thirty-two (32) and ending with
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the close of the Plan Year preceding the Plan
Year in which the Participants attains age
thirty-five (35), a written explanation of the
qualified pre-retirement survivor annuity in
such terms and in such manner as would be
comparable to the explanation provided for
meeting the requirement of a qualified joint and
survivor annuity. If a Participant enters the
Plan after the first day of the Plan Year in
which the Participant attained age thirty-two
(32), the Committee shall provide notice no
later than the close of the third Plan Year
succeeding the entry of the Participant in the
Plan.
(3) Notwithstanding the other requirements of this
Section, the respective notices prescribed by
this Section need not be given to a Participant
if the Plan "fully subsidizes" the costs of a
qualified joint and survivor annuity or
qualified preretirement survivor annuity, and
the Participant cannot elect another form of
benefit. For purposes of this Section, the Plan
fully subsidizes the costs of a benefit if under
the Plan the failure to waive such a benefit by
a Participant would not result in a decrease in
any plan benefits with respect to such
Participant and would not result in increased
contributions from the Participant.
(14) Subsection 6.1(a) is amended to read as follows:
(a) Except as otherwise provided in this Section, and upon proper
written application of a Participant made at least thirty (30)
days in advance of the withdrawal date, in such form as the
Committee may specify, the Committee in its sole discretion may
permit the Participant to withdraw a portion or all of the
balance of his Salary Redirection Account and Prior Plan Salary
Redirection Account (but only to the extent that he would have
been permitted to withdraw his Prior Plan Salary Redirection
Account based on hardship withdrawal, if it had not been
transferred from the prior plan which was merged into this
Plan); provided that earnings allocated to said account may not
be withdrawn, Such withdrawal shall be based on the Valuation
Date coincident with or immediately preceding the date of
application plus contributions made to such Account since such
Valuation Date.
(15) New Section 6.2 is added to read as follows:
Section 6.2 Prior Plan Employer Contribution Account Withdrawals
Upon proper written application in such manner and in
such form as the Committee may specify, a Participant
shall be permitted to withdraw a
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O:\TSS\VENCOR.AM9 March 20, 1996
portion or all of the balance of his Prior Plan Employer
Contribution Account and Prior Plan Salary Redirection
Account while employed determined as of the Valuation Date
coincident with or immediately preceding the date of
application but only to the extent that he would have been
permitted to withdraw the funds in the account if they had
not been transferred from the prior plan which was merged
into this Plan.
(16) New Section 6.3 is added to read as follows:
Section 6.3 Participant Loans
No Participant loans are permitted under this Plan. However,
to the extent that a plan that is merged into this plan has
loans outstanding, the outstanding loan balance and accrued
interest may be transferred to this Plan and segregated in
the Participant's Individual Account until repaid. The loan
shall be repaid and subject to the terms of the loan
agreement, including the provisions of the merged plan.
* * * * * * * * * * * * *
SIGNATURES
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IN WITNESS WHEREOF, the Sponsoring Employer has caused this Amendment
Number 9 to be executed this the day of , 1996,
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but effective January 1, 1996, except as otherwise indicated herein.
Attest: Vencor, Inc.
By
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Secretary
Title
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