EXHIBIT 4.1
AZTEC MANUFACTURING COMPANY
EMPLOYEE BENEFIT PLAN & TRUST
EFFECTIVE MARCH 1, 1993
ADOPTED NOVEMBER 15, 1993
PLAN DOCUMENT
AZTEC MANUFACTURING COMPANY
EMPLOYEE BENEFIT PLAN & TRUST
AZTEC MANUFACTURING COMPANY EMPLOYEE BENEFIT PLAN & TRUST
INDEX
PART I
ARTICLE DESCRIPTION PAGE
I INTRODUCTION 1
1.1.1 Adoption and Title 1
1.1.2 Effective Date 1
1.1.3 Purpose 1
II DEFINITIONS
PART II
ARTICLE DESCRIPTION PAGE
I PARTICIPATION 12
2.1.1 Eligibility Requirements 12
2.1.2 Commencement of Participation 12
2.1.3 Participation Upon Re-Employment 12
2.1.4 Termination of Participation 13
2.1.5 Determination of Eligibility 13
2.1.6 Omission of Eligible Employee 13
2.1.7 Inclusion of Ineligible Participants 13
2.1.8 Election Not to Participate 13
2.1.9 Change in Status 13
2.1.10 Existing Participants 14
II CONTRIBUTIONS 15
2.2.1 Employer Contributions 15
2.2.2 Employee Contributions 15
2.2.3 Return of Contributions 16
III ALLOCATIONS 17
2.3.1 Basic Allocation 17
2.3.2 Minimum Allocation 17
2.3.3 Fail-Safe Allocation 17
Effective: March 1, 1993
IV BENEFITS 19
2.4.1 Distributable Benefit 19
2.4.2 Vesting 19
2.4.3 Leave of Absence 20
2.4.4 Re-Employment 20
2.4.5 Distribution Determination Date 21
2.4.6 Forfeitures 22
V DISTRIBUTIONS 24
2.5.1 Commencement of Distribution 24
2.5.2 Method of Distribution 30
2.5.3 Nature of Distributions 34
2.5.4 Advance Distributions 35
2.5.5 In Service Distributions 36
VI CONTINGENT TOP HEAVY PROVISIONS 37
2.6.1 Top Heavy Requirements 37
2.6.2 Top Heavy Definitions 38
PART III
ARTICLE DESCRIPTION PAGE
I ACCOUNTING 43
3.1.1 Accounts 43
3.1.2 Adjustments 43
II LIMITATIONS 46
3.2.1 Limitations on Annual Additions 46
3.2.2 Controlled Businesses 52
III FIDUCIARIES 54
3.3.1 Standard of Conduct 54
3.3.2 Individual Fiduciaries 54
3.3.3 Disqualification from Service 54
3.3.4 Bonding 54
3.3.5 Prior Acts 54
3.3.6 Insurance and Indemnity 54
3.3.7 Expenses 55
3.3.8 Agents, Accountants and Legal Counsel 55
3.3.9 Investment Manager 55
3.3.10 Finality of Decisions or Acts 56
3.3.11 Certain Custodial Accounts and
Contracts 56
Effective: March 1, 1993
IV PLAN ADMINISTRATOR 57
3.4.1 Administration of Plan 57
3.4.2 Disclosure Requirements 58
3.4.3 Information Generally Available 58
3.4.4 Statement of Accrued Benefit 59
3.4.5 Explanation of Rollover Treatment 59
V TRUSTEE 60
3.5.1 Acceptance of Trust 60
3.5.2 Trustee Capacity - Co-Trustee 60
3.5.3 Resignation, Removal and Successors 60
3.5.4 Consultations 60
3.5.5 Rights, Powers and Duties 60
3.5.6 Trustee Indemnification 63
3.5.7 Changes in Trustee Authority 63
VI TRUST ASSETS 64
3.6.1 Trustee Exclusive Owner 64
3.6.2 Investments 64
3.6.3 Administration of Trust Assets 65
3.6.4 Segregated Funds 67
3.6.5 Investment Control Option 67
VII LOANS 68
3.7.1 Authorization 68
VIII BENEFICIARIES 69
3.8.1 Designation of Beneficiaries 69
3.8.2 Absence or Death of Beneficiaries 69
IX CLAIMS 70
3.9.1 Claim Procedure 70
3.9.2 Appeal 70
X AMENDMENT AND TERMINATION 72
3.10.1 Right to Amend 72
3.10.2 Manner of Amending 72
3.10.3 Limitations on Amendments 72
3.10.4 Voluntary Termination 73
3.10.5 Involuntary Termination 73
3.10.6 Withdrawal By Employer 73
3.10.7 Powers Pending Final Distribution 73
3.10.8 Delegation 73
Effective: March 1, 1993
XI PORTABILITY 74
3.11.1 Continuance by Successor 74
3.11.2 Merger With Other Plan 74
3.11.3 Transfer From Other Plans 74
3.11.4 Transfer to Other Plans 75
XII MISCELLANEOUS 76
3.12.1 No Reversion to Employer 76
3.12.2 Employer Actions 76
3.12.3 Execution of Receipts and Releases 76
3.12.4 Rights of Participants Limited 76
3.12.5 Persons Dealing With Trustee Protected 76
3.12.6 Protection of Insurer 76
3.12.7 No Responsibility for Act of Insurer 77
3.12.8 Inalienability 77
3.12.9 Domestic Relations Orders 78
3.12.10 Authorization to Withhold Taxes 80
3.12.11 Missing Persons 80
3.12.12 Notices 80
3.12.13 Governing Law 80
3.12.14 Severability of Provisions 80
3.12.15 Gender and Number 81
3.12.16 Binding Effect 81
3.12.17 Qualification Under Internal
Revenue Laws 81
XIII APPENDIX MODEL LANGUAGE 82
3.13.1 Direct Rollovers 82
3.13.2 Definitions 82
XIV EXECUTION OF AGREEMENT 83
3.14.1 Counterparts 83
3.14.2 Acceptance by Trustee 83
3.14.3 Execution 83
Effective: March 1, 1993
AZTEC MANUFACTURING COMPANY EMPLOYEE BENEFIT PLAN & TRUST
THIS AGREEMENT is made this 15th day of November, 1993, by and between
AZTEC MANUFACTURING COMPANY ("the Employer"), AZTEC INDUSTRIES, INC., AZTEC
INDUSTRIES, INC.- MOSS POINT, AUTOMATIC PROCESSING, INC., THE CALVERT CO., INC.,
AZTEC GROUP COMPANY, ARBOR-CROWLEY, INC., AZTEC MANUFACTURING PARTNERSHIP, LTD.,
AZTEC MANUFACTURING WASKOM PARTNERSHIP, LTD., RIG-A-LITE PARTNERSHIP, LTD.,
AZTEC HOLDINGS, INC., ATKINSON INDUSTRIES, INC. and ARIZONA GALVANIZING, INC.
("the Affiliate Employers"), and OVERTON BANK & TRUST, NATIONAL ASSOCIATION
(collectively "the Trustee").
PART I
ARTICLE I
INTRODUCTION
1.1.1 Adoption and Title. The Employer, each Affiliate Employer, and Trustee
hereby adopt and restate the Plan and Trust to be known as AZTEC MANUFACTURING
COMPANY EMPLOYEE BENEFIT PLAN & TRUST.
1.1.2 Effective Date. The provisions of this amended and restated Plan and
Trust which was originally effective March 1, 1969 shall be effective as of
March 1, 1993, hereinafter the Effective Date.
1.1.3 Purpose. This Plan and Trust is established for the purpose of
providing retirement benefits to eligible employees in accordance with the Plan
and Trust.
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ARTICLE II
DEFINITIONS
As used in this Plan and Trust, the following terms shall have the
following meanings:
1.2.1 "Account": The Employer Account, Controlled Account, Voluntary Account,
or Segregated Account of a Participant, as the context requires, established and
maintained for accounting purposes.
1.2.2 "Act": The Employee Retirement Income Security Act of 1974, as amended
from time to time.
1.2.3 "Anniversary Date": The last day of each Plan Year.
1.2.4 "Beneficiary": The person or persons entitled to receive the benefits
which may be payable upon or after a Participant's death.
1.2.5 "Board of Directors": The board of directors of an incorporated
Employer.
1.2.6 "Break in Service": The failure of a Participant to complete more than
500 Hours of Service during any twelve (12) consecutive month Eligibility
Computation Period beginning with a Participant's first such computation period
after becoming a Participant. A Year of Service and a Break in Service for
vesting purposes shall be measured on the same computation period.
1.2.7 "Code": The Internal Revenue Code of 1986, as amended from time to
time.
1.2.8 "Compensation": All of a Participant's W-2 compensation (or Earned
Income in the case of a self-employed individual) which is actually paid to the
Participant by the Employer during the Plan Year; provided further that the
annual gross compensation taken into account for purposes of the Plan shall not
exceed $200,000, as such amount may be adjusted by the Secretary of the Treasury
at the same time and in the same manner as under Section 415(d) of the Code,
except that the dollar increase in effect on January 1 of any calendar year is
effective for years beginning in such calendar year and the first adjustment to
the $200,000 limitation is effected on January 1, 1990. If a plan determines
compensation on a period of time that contains less than twelve (12) calendar
months, then the annual compensation limit is an amount equal to the annual
compensation limit for the calendar year in which the compensation period begins
multiplied by the ratio obtained by dividing the number of full months in the
period by 12. For
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purposes of this dollar limitation, the rules of Section 414(q) (6) of the Code
requiring the aggregation of the compensation of family members shall apply,
except that in applying such rules, the term "family" shall include only the
spouse of the Participant and any lineal descendants of the Participant who have
not attained age nineteen (19) before the close of the year. If, as a result of
the application of such rules the adjusted $200,000 limitation is exceeded, then
(except for purposes of determining the portion of compensation up to the Social
Security Integration Level if this Plan provides for permitted disparity), the
limitation shall be prorated among the affected individuals in proportion to
each such individual's compensation as determined under this Section prior to
the application of this limitation. If compensation for any prior plan year is
taken into account in determining an employee's contributions or benefits for
the current year, the compensation for such prior year is subject to the
applicable annual compensation limit in effect for that prior year. For this
purpose, for years beginning before January 1, 1990, the applicable annual
compensation limit is $200,000.
For the initial year of participation, Compensation from the Participant's Entry
Date shall be considered.
1.2.9 "Controlled Account": An account established and maintained for a
Participant to account for his interest in a Segregated Fund over which he
exercises investment control.
1.2.10 "Distributable Benefit": The benefit to which a Participant is
entitled following termination of his employment.
1.2.11 "Distribution Determination Date": The date as of which the
Distributable Benefit of a Participant is determined.
1.2.12 "Early Retirement Age": The Plan does not provide an Early Retirement
Age.
1.2.13 "Early Retirement Date": The Plan does not provide an Early Retirement
Date.
1.2.14 "Earned Income": The net earnings from self-employment in the trade or
business with respect to which the Plan is established for which personal
services of the Participant are a material income--producing factor. Net
earnings shall be determined without regard to items not included in gross
income and the deductions allocable to such items but, in the case of taxable
years beginning after 1989, with regard to the deduction allowed by Section
164(f) of the Code. Net earnings shall be reduced by contributions to a
qualified Plan to the extent deductible under Section 404 of the Code.
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1.2.15 "Eligibility Computation Period": For purposes of determining Years of
Service and Breaks in Service for purposes of eligibility, the initial
eligibility computation period is the twelve (12) consecutive month period
beginning with the employment commencement date on which the Employee first
renders an Hour of Service for the Employer and the subsequent eligibility
computation periods are each Plan Year commencing with the first Plan Year which
commences prior to the first anniversary of the Employee's employment
commencement date regardless of whether the Employee is entitled to be credited
with 1,000 Hours of Service during the initial eligibility computation period.
If the subsequent periods commence with the first Plan Year which commences
prior to the first anniversary of the Employee's employment commencement date,
an Employee who is credited with 1,000 Hours of Service in both the initial
eligibility computation period and the first Plan Year which commences prior to
the first anniversary of the Employee's initial eligibility computation period
shall be credited with two (2) years of service for purposes of eligibility to
participate.
1.2.16 "Employee": A person who is currently or hereafter employed by the
Employer, or by any other employer aggregated under Section 414 (b), (C), (m)
or (o) of the Code and the regulations thereunder, including:
- - self-employed individuals;
- - employees paid on an hourly basis;
- - employees paid on a salaried basis;
- - employees paid on a commissioned basis;
- - leased Employees subject to Section 414(n) of the Code;
but excluding:
- - employees who are included in the unit of employees covered by a collective
bargaining agreement, provided that retirement benefits were the subject of
good faith negotiations;
- - independent contractors;
- - an employee who is a non-resident alien deriving no earned income from the
Employer which constitutes income from sources within the United States.
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1.2.17 "Employer": The Employer and, except where the context expressly
indicates to the contrary, each Affiliate Employer that is a party to this
Agreement, or any of their respective successors or assigns which adopt the
Plan; provided, however, that no mere change in the identity, form or
organization of the Employer shall affect its status under the Plan in any
manner, and, if the name of the Employer is hereinafter changed, references
herein to the Employer shall be deemed to refer to the Employer as it is then
known.
1.2.18 "Employer Account": An account established and maintained for a
Participant for accounting purposes to which his share of Employer contributions
and forfeitures are added.
1.2.19 "Entry Date": The date of satisfying the eligibility requirements.
1.2.20 "Excessive Annual Addition": The portion of the allocation of
contributions and forfeitures that cannot be added to a Participant's Accounts
due to the limitations on annual additions contained in the Plan.
1.2.21 "Fiduciary": The Plan Administrator, the Trustee and any other person
who has discretionary authority or control in the management of the Plan or the
disposition of Trust assets.
1.2.22 "Highly Compensated Employee": A highly compensated active employee
and a highly compensated former employee. A highly compensated active employee
includes: any Employee who performs service for the Employer during the
determination year and who, during the look-back year: (i) received compensation
from the Employer in excess of $75,000 (as adjusted pursuant to Section 415(d)
of the Code); (ii) received compensation from the Employer in excess of $50,000
(as adjusted pursuant to Section 415(d) of the Code) and was a member of the
top-paid group for such year; or (iii) was an officer of the Employer and
received compensation during such year that is greater than 50 percent of the
dollar limitation as in effect under Section 415(b) (1) (A) of the Code. The
term highly compensated employee also includes: (i) employees who are both
described in the preceding sentence if the term "determination year" is
substituted for the term "look--back year" and the employee is one of the 100
employees who received the most compensation from the Employer during the
determination year; and (ii) employees who are 5 percent owners at any time
during the look--back year or determination year.
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If no officer has satisfied the compensation requirement of (iii) above during
either a determination year or look-back year, the highest paid officer for such
year shall be treated as a highly compensated employee.
For this purpose, the determination year shall be the Plan Year. The look--
back year shall be the twelve-month period immediately preceding the
determination year and compensation is as defined in Section 415(c) (3) of the
Code including amounts contributed by the Employer pursuant to a salary
reduction agreement and which is not includable in gross income under Sections
125, 402(a) (8), 402(h) or 403(b) of the Code.
A highly compensated former employee includes any employee who separated from
service (or was deemed to have separated) prior to the determination year,
performs no service for the employer during the determination year, and was a
highly compensated active employee for either the separation year or any
determination year ending on or after the employee's 55th birthday.
If an Employee is, during a Plan Year or the preceding Plan Year, a family
member of either a 5 percent owner who is an active or former employee or a
Highly Compensated Employee who is one of the 10 most highly compensated
employees ranked on the basis of compensation paid by the Employer during such
year, then the family member and the 5 percent owner or top-ten highly
compensated employee shall be aggregated. In such case, the family member and 5
percent owner or top--ten highly compensated employee shall be treated as a
single employee receiving compensation and plan contributions or benefits equal
to the sum of such compensation and contributions or benefits of the family
member and 5 percent owner or top--ten highly compensated employee. For purposes
of this section, family member includes the spouse, lineal ascendants and
descendants of the employee or former employee and the spouses of such lineal
ascendants and descendants.
The determination of who is a highly compensated employee, including the
determination of the number and identity of employees in the top-paid group, the
top 100 employees, the number of employees treated as officers and the
compensation that is considered, will be made in accordance with Section 414(q)
of the Code and the regulations thereunder.
1.2.23 "Hour of Service": An hour for which (a) the Employee is paid, or
entitled to payment by the Employer for the performance of duties, (b) the
Employee is paid or entitled to payment by the Employer during which no duties
are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity
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(including disability), layoff, jury duty, military duty or leave of absence, or
(C) back pay, irrespective of mitigation of damages, has been either awarded or
agreed to by the Employer. Hours of Service shall be credited to the Employee
under (a), above, for the period in which the duties are performed, under (b),
above, in the period in which the period during which no duties are performed
occurs, beginning with the first Hour of Service to which the payment relates,
and under (c), above, for the period to which the award or agreement pertains
rather than the period in which the award, agreement or payment is made;
provided, however, that Hours of Service shall not be credited under both (a)
and (b), above, as the case may be, and under (c) above. Notwithstanding the
preceding sentences, (i) no more than five hundred one (501) Hours of Service
shall be credited under (b), above, on account of any single continuous period
during which the Employee performs no duties whether or not such period occurs
in a single computation period, (ii) no Hours of Service shall be credited to
the Employee by reason of a payment made or due under a plan maintained solely
for the purpose of complying with applicable worker's compensation, or
unemployment compensation or disability insurance laws, and (iii) no Hours of
Service shall be credited by reason of a payment which solely reimburses an
Employee for medical or medically related expenses incurred by the Employee. The
determination of Hours of Service for reasons other than the performance of
duties and the crediting of Hours of Service to computation periods shall be
made in accord with the provisions of Labor Regulation Sections 2530.200b-2(b)
and (c) which are incorporated herein by reference.
Solely for purposes of determining whether an Employee has incurred a Break in
Service, an Employee shall be credited with the number of Hours of Service which
would otherwise have been credited to such individual but for the absence or in
any case in which such Hours cannot be determined with eight (8) Hours of
Service for any day that the Employee is absent from work by reason of the
Employee's pregnancy, the birth of a child of the Employee, the placement of a
child with the Employee in connection with the adoption of such child by the
Employee or for purposes of caring for such child for a period beginning
immediately following such birth or placement. Such Hours of Service shall be
credited only in the computation period in which the absence from work begins if
the Employee would be prevented from incurring a Break in Service in such
computation period solely because credit is given for such period of absence
and, in any other case, in the immediately following computation period.
Notwithstanding the foregoing, no credit shall be given for such service unless
the Employee furnishes to the Plan Administrator information to establish that
the absence from work is for the reasons indicated and the number of days for
which there was such an absence.
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In the event the Employer does not maintain records of the actual hours for
which an Employee is paid or entitled to payment, an Employee shall be credited
with 10 Hours of Service if he is credited with at least one (1) Hour of Service
during the day.
Service with another business entity that is, along with the Employer, a
member of a controlled group of corporations, an affiliated service group or
trades or businesses under common control, as defined in the applicable sections
of the Code, or which is otherwise required to be aggregated with the Employer
pursuant to Section 414(o) of the Code and the regulations issued thereunder
shall be treated as service for the Employer. Hours of Service shall be credited
for any individual considered an employee for purposes of this Plan under
Section 414(n) or Section 414(o) of the Code and the regulations issued
thereunder.
Except to the extent inconsistent with regulations issued by the Secretary of
the Treasury, service for a predecessor to the Employer, whether as an employee
or self-employed person, shall be treated as service for the Employer. If the
Employer maintains the plan of a predecessor employer, service with such
predecessor shall be treated as service for the Employer.
Service with the following entities shall be considered as service under this
plan:
RIG-A-LITE PARTNERSHIP, LTD., THE CALVERT COMPANY, INC. and ATKINSON
INDUSTRIES, INC.
Service with the above entities has been determined under the terms of the
following documents:
The employment and payroll records of each entity.
1.2.24 "Insurer": Any insurance company which has issued a Life Insurance
Policy.
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1.2.25 "Joint and Survivor Annuity": An immediate annuity for the life of the
Participant with a survivor annuity for the life of the spouse which is not less
than fifty (50%) percent and not more than one hundred (100%) percent 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 Participant's vested Account balances.
1.2.26 "Leased Employee": Any person (other than an employee of the
recipient) who pursuant to an agreement between the recipient and any other
person has performed services for the recipient (or for the recipient and
related persons determined in accordance with Section 414 (n) (6) of the Code)
on a substantially full time basis for a period of at least one (1) year and
such services are of a type historically performed by employees in the business
field of the recipient employer; provided that any such person shall not be
taken into account if (a) such person is covered by a money purchase pension
plan providing (i) a nonintegrated employer contribution rate of at least ten
(10%) percent of compensation, as defined in Section 415(c) (3) of the Code, but
including amounts contributed by the employer pursuant to a salary reduction
agreement which are excludable from the person's gross income under Sections
125, 402(a) (8), 402(h) or 403(b) of the Code; (ii) immediate participation; and
(iii) full and immediate vesting; and (b) leased employees do not constitute
more than twenty (20%) percent of the work force of the recipient who are not
Highly Compensated Employees. Contributions or benefits provided a leased
employee by the leasing organization which are attributable to services
performed for the recipient employer shall be treated as provided by the
recipient employer.
1.2.27 "Life Insurance Policy": A life insurance, annuity or endowment policy
or contract which is owned by the Trust and is on the life of a Participant.
1.2.28 "Limitation Year": The Plan Year; provided that all qualified plans
maintained by the Employer must use the same Limitation Year.
1.2.29 "Normal Retirement Age": The date the Employee attains age 65.
1.2.30 "Normal Retirement Date": The date the Participant attains his Normal
Retirement Age.
1.2.31 "Owner--Employee": An individual who is a sole proprietor or who is a
partner owning more than ten percent (10%) of either the capital or profits
interest of the partnership.
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1.2.32 "Participant": Any eligible Employee who becomes entitled to
participate in the Plan.
1.2.33 "Plan": The profit sharing plan for Employees as set forth in this
Agreement, together with any amendments or supplements thereto.
1.2.34 "Plan Administrator": The person, persons or entity appointed by the
Employer to administer the Plan or, if the Employer fails to make such
appointment, the Employer.
1.2.35 "Plan Year" or "Year": The Plan's accounting year of twelve (12)
months commencing on March 1 and ending the following February 28.
1.2.36 "Preretirement Survivor Annuity": A survivor annuity for the life of
the surviving spouse of the Participant under which
(a) the payments to the surviving spouse are not less than the amounts which
would be payable under a Joint and Survivor Annuity (or the actuarial equivalent
thereof) if:
(i) in the case of a Participant who dies after the date on which the
Participant attained the earliest retirement age under the Plan on which he
could elect to receive retirement benefits, such Participant had retired
with an immediate Joint and Survivor Annuity on the day before the
Participant's date of death; or
(ii) in the case of a Participant who dies on or before such date, such
Participant had separated from service on the date of death (except that a
Participant who had actually separated from service prior to death shall be
treated as separating on the actual date of separation), survived to the
earliest retirement age, retired with an immediate Joint and Survivor
Annuity at the earliest retirement age and died on the day after the day on
which such Participant would have attained the earliest retirement age, and
(b) The earliest period for which the surviving spouse may receive a payment
under such annuity is not later than the month in which the Participant would
have attained the earliest retirement age under the Plan; and
(c) Any security interest held by the Plan by reason of a loan outstanding to
the Participant for which a valid spousal consent has been obtained, if
necessary, shall be taken into account.
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1.2.37 "Qualifying Employer Securities or Real Property": Securities or real
property of the Employer which the Trustee may acquire and hold pursuant to the
applicable provisions of the Code and Act.
1.2.38 "Segregated Account": An Account established and maintained for a
Participant to account for his interest in a Segregated Fund.
1.2.39 "Segregated Fund": Assets held in the name of the Trustee which have
been segregated from the Trust Fund in accordance with any of the provisions of
the Plan.
1.2.40 "Self-Employed Individual": An individual who has Earned Income for
the taxable year from the trade or business for which the Plan is established or
who would have had Earned Income but for the fact that the trade or business had
no net profit for the taxable year.
1.2.41 "Social Security Integration Level": Not applicable. This Plan does
not provide for integration with Social Security.
1.2.42 "Trust Fund": All money and property of every kind and character held
by the Trustee pursuant to the Plan, excluding assets held in Segregated Funds.
1.2.43 "Trustee": The persons, corporations, associations or combination of
them who shall at the time be acting as such from time to time hereunder.
1.2.44 "Valuation Date": The Anniversary Date.
1.2.45 "Voluntary Account": An Account established and maintained for a
Participant for accounting purposes to which his voluntary Employee
contributions have been added.
1.2.46 "Year of Service": Each 12--consecutive month Plan Year during which
the Employee completes at least 1,000 Hours of Service, including years prior to
the Effective Date.
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PART II
ARTICLE I
PARTICIPATION
2.1.1 Eligibility Requirements. Each Employee shall be eligible to
participate in this Plan upon the later of the following dates, provided that he
is an Employee on such date:
(a) the last day of the Eligibility Computation Period during which he has
completed 1,000 Hours of Service; or
(b) the date he attains age 18.
2.1.2 Commencement of Participation. An eligible Employee shall become a
Participant in the Plan on the applicable Entry Date.
2.1.3 Participation Upon Re-Employment. A Participant whose employment
terminates and who is subsequently re--employed shall re-enter the Plan as a
Participant immediately on the date of his re--employment. In the event that an
Employee completes the eligibility requirements set forth in Section 2.1.1
above, his employment terminates prior to becoming a Participant and he is
subsequently re-employed, such Employee shall be deemed to have met the
eligibility requirements as of the date of his re-employment and shall become a
Participant on the date of his re-employment; provided, however, that if he is
re-employed prior to the date he would have become a Participant if his
employment had not terminated, he shall become a Participant as of the date he
would have become a Participant if his employment had not terminated.
In the case of a Participant who does not have any vested and nonforfeitable
right under the Plan to an accrued benefit derived from Employer contributions,
Years of Service before any period of consecutive Breaks in Service shall not be
taken into account in the event of re--employment if the number of consecutive
Breaks in Service within the period equals or exceeds the greater of five (5) or
the aggregate number of Years of Service before such period. Any Years of
Service which are not taken into account by reason of such period of Breaks in
Service shall not be taken into account in applying the foregoing to a
subsequent period of Breaks in Service.
Any other Employee whose employment terminates, and who is subsequently re-
employed shall become a Participant in accordance with the provisions of
Sections 2.1.1 and 2.1.2.
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2.1.4 Termination of Participation. An Employee who has become a Participant
shall remain a Participant until the entire amount of his Distributable Benefit
is distributed to him or his Beneficiary in the event of his death.
2.1.5 Determination of Eligibility. In the event any question shall arise as
to the eligibility of any person to become a Participant or the commencement of
participation, the Plan Administrator shall determine such question from
information provided by the Employer and the Plan Administrator's decision shall
be conclusive and binding, except to the extent of a claimant's right to appeal
the denial of a claim.
2.1.6 Omission of Eligible Employee. If an Employee who should be included as
a Participant in the Plan is erroneously omitted and discovery of the omission
is made after the contribution by the Employer is made and allocated, the
Employer shall make an additional contribution on behalf of the omitted Employee
in the amount which the Employer would have contributed on his behalf had he not
been omitted.
2.1.7 Inclusion of Ineligible Participant. If any person is erroneously
included as a Participant in the Plan and discovery of the erroneous inclusion
is made after the contribution by the Employer is made and allocated, the
Employer may elect to treat the amount contributed on behalf of the ineligible
person plus any earnings thereon as a forfeiture for the Plan Year in which the
discovery is made and apply such amount in the manner specified in Section
2.4.6.
2.1.8 Election Not to Participate. Notwithstanding anything contained in the
Plan to the contrary, an Employee may elect with the approval of the Employer
not to participate in the Plan if the tax-exempt status of the Plan is not
jeopardized by the election. The Employee shall sign such documents as may be
reasonably required by the Employer to evidence the election. If it is
subsequently determined that the tax-exempt status of the Plan has been
jeopardized, the Employer may elect to treat such Employee as having been
erroneously omitted. An Employee may revoke the election only with respect to
any subsequent Plan Year by written notice of revocation to the Employer prior
to the end of the Plan Year for which the revocation is effective.
2.1.9 Change in Status. If any Participant continues in the employ of the
Employer or an affiliate for which service is required to be taken into account
but ceases to be an Employee for any reason (such as becoming covered by a
collective bargaining agreement unless the collective bargaining agreement
otherwise provides) the Participant shall continue to be a Participant until the
entire amount of his benefit is distributed but the individual shall not be
entitled to receive an allocation of contribution or forfeitures during the
period
-13-
that the Participant is not an Employee for such reason. Such Participant shall
continue to receive credit for Years of Service completed during the period for
purposes of determining his vested and nonforfeitable interest in his Accounts.
In the event that the individual subsequently again becomes a member of an
eligible class of employees, the individual shall participate immediately upon
the date of such change in status. If such Participant incurs a Break in Service
and is subsequently reemployed, eligibility to participate shall be determined
in accordance with Section 2.1.3. In the event that an individual who is not a
member of an eligible class of employees becomes a member of an eligible class,
the individual shall participate immediately if such individual has satisfied
the eligibility requirements and would have otherwise previously become a
participant.
2.1.10 Existing Participants. An Employee who, on the Effective Date, was a
Participant under the provisions of the Plan as in effect immediately prior to
the Effective Date shall be a Participant on the Effective Date and the
provisions of Sections 2.1.1 and 2.1.2, pertaining to participation, shall not
be applicable to such Employee. The rights of a Participant whose employment
terminated prior to the Effective Date shall be determined under the provisions
of the Plan as in effect at the time of such termination.
-14-
ARTICLE II
CONTRIBUTIONS
2.2.1 Employer Contributions.
(a) Amount of Contribution. The Employer shall contribute to the Trust Fund
each Plan Year such amounts not limited to profits as it may determine;
provided, however, that the contribution for any Year shall not exceed the
maximum amount deductible from the Employer's income for such Year for federal
income tax purposes under the applicable sections of the Code.
(b) Time of Contribution. All contributions by the Employer shall be
delivered to the Trustee not later than the date fixed by law for the filing of
the Employer's federal income tax return for the Year for which such
contribution is made (including any extensions of time granted by the Internal
Revenue Service for filing such return).
(c) Determination of Amount to be Final. The determination by the Employer as
to the amount to be contributed by the Employer hereunder shall be in all
respects final, binding, and conclusive on all persons or parties having or
claiming any rights under this Agreement or under the Plan and Trust created
hereby. Under no circumstances and in no event shall any Participant,
Beneficiary, or other person or party have any right to examine the books or
records of the Employer.
(d) Rights of Trustee as to Contributions. The Trustee shall have no duty to
require any contribution to be made or to determine whether contributions
delivered to the Trustee by the Employer comply with the provisions of this
Agreement. The Trustee shall be accountable only for funds actually received by
the Trustee.
2.2.2 Employee Contributions.
(a) Amount of Contribution. An Employee is neither required nor permitted to
contribute to the Plan for any Plan Year beginning after 1986. The Plan
Administrator shall not accept deductible employee contributions attributable to
any Plan Year.
(b) Withdrawal of Contributions. In accordance with the provisions of the
Plan as in effect prior to Plan Years beginning after 1986, all or any portion
of an Employee's contributions may be withdrawn by giving to the Plan
Administrator written notice of any proposed withdrawal. The
-15-
Plan Administrator may adopt such procedures with respect to such withdrawals as
may be necessary or appropriate. At the Plan Administrator's direction, the
Trustee shall distribute any such withdrawal to the Participant in accordance
with the procedures adopted by the Plan Administrator. Such withdrawals shall
not include any interest or other increment earned on such contributions. No
forfeitures shall occur as a result of an Employee's withdrawal of voluntary
contributions. Notwithstanding the foregoing, a withdrawal of voluntary
contributions must be consented to in writing by the Participant's spouse.
2.2.3 Return of Contributions. Employer contributions shall be returned to
the Employer in the following instances:
(a) If the contribution is made by Employer by mistake of fact, then the
contribution shall be returned within one year after its payment upon the
Employer's written request.
(b) If the contribution is conditioned on initial qualification of the Plan
under the applicable sections of the Code, and the Commissioner of Internal
Revenue determines that the Plan does not qualify, then the contribution made
incident to the initial qualification by the Employer shall be returned within
one year after the date of denial of initial qualification of the Plan; provided
that the application for initial qualification is made by the time prescribed by
law for filing the Employer's tax return for the taxable year in which the Plan
is adopted, or such later date as the Secretary of the Treasury may prescribe.
(c) Each contribution by the Employer is conditioned upon the deductibility
of the contribution under the applicable sections of the Code, and to the extent
of disallowance of the deduction for part or all of the contribution, the
contribution shall be returned within one year after such disallowance upon the
Employer's written request.
-16-
ARTICLE III
ALLOCATIONS
2.3.1 Basic Allocation. As of each Anniversary Date, the contribution made by
the Employer including any forfeitures with respect to the preceding Plan year
shall be allocated among the Employer Accounts of Participants who have
completed at least 1,000 Hours of Service during the Plan Year, in the following
manner:
(a) Employer contributions and forfeitures for the Plan Year shall be
allocated to each Participant's Employer Account in the ratio that each
Participant's Compensation for the Plan Year bears to all Participants'
Compensation for that year.
(b) Notwithstanding anything contained in this Section to the contrary, if
the employment of a Participant is terminated during a Plan Year by reason of
death, retirement, disability, resignation or discharge as provided in Section
2.4.2(f), no allocation of contributions or forfeitures shall be made to the
Employer Account of such Participant for the Plan Year during which his
employment is terminated.
2.3.2 Minimum Allocation. In the event the Plan becomes a Top-Heavy Plan
during any Plan Year, the provisions of Section 2.6.1(a) shall apply.
2.3.3 Fail-Safe Allocation. Notwithstanding any provision of the Plan to the
contrary, for Plan Years beginning after December 31, 1989, if the Plan would
otherwise fail to satisfy the requirements of Section 401(a)(26), 410(b)(1) or
410(b)(2) (A)(i) of the Code and the regulations thereunder because Employer
contributions have not been allocated to a sufficient number or percentage of
Participants for the Plan Year, an additional contribution shall be made by the
Employer and shall be allocated to the Employer Accounts of affected
Participants subject to the following provisions:
(a) The Participants eligible to share in the allocation of the
Employer's contribution shall be expanded to include the minimum number of
Participants who are not otherwise eligible to the extent necessary to
satisfy the applicable test under the relevant Section of the Code. The
specific Participants who shall become eligible are those Participants who
are actively employed on the last day of the Plan Year who have completed
the greatest number of Hours of Service during the Plan Year.
(b) If the applicable test is still not satisfied, the Participants
eligible to share in the allocation shall be
-17-
further expanded to include the minimum number of Participants who are not
employed on the last day of the Plan Year as are necessary to satisfy the
applicable test. The specific Participants who shall become eligible are
those Participants who have completed the greatest number of Hours of
Service during the Plan Year.
(c) A Participant's accrued benefit shall not be reduced by any
reallocation of amounts that have previously been allocated. To the extent
necessary, the Employer shall make an additional contribution equal to the
amount such affected Participants would have received if they had
originally shared in the allocations without regard to the deductibility of
the contribution. Any adjustment to the allocations pursuant to this
paragraph shall be considered a retroactive amendment adopted by the last
day of the Plan Year.
-18-
ARTICLE IV
BENEFITS
2.4.1 Distributable Benefit. At such time that the employment of a
Participant terminates for any reason, he or his Beneficiary shall be entitled
to a benefit equal to the vested and nonforfeitable interest in his Accounts as
of the Distribution Determination Date. The Accounts shall include the allocable
share of contributions and forfeitures, if any, which may be allocated to the
Accounts as of such Distribution Determination Date and shall be determined
after making the adjustments for which provision is made in the Plan.
2.4.2 Vesting. A Participant shall at all times be one hundred percent (100%)
vested and have a nonforfeitable interest in his Voluntary Account and
Segregated Account. The vested and nonforfeitable interest of the Participant in
his Controlled Account shall be determined by reference to the Account from
which the funds were originally transferred. The vested and nonforfeitable
interest in a Participant's Employer Account shall be determined as hereinafter
provided.
(a) Normal Retirement. If a Participant terminates employment at his
Normal Retirement Age or upon attainment of age sixty-five (65) if earlier,
he shall be one hundred percent (100%) vested and have a nonforfeitable
interest in his Employer Account.
(b) Deferred Retirement. If a Participant continues in active
employment following his Normal Retirement Age, he shall continue to
participate under the Plan. From and after his Normal Retirement Age, he
shall be one hundred percent (100%) vested and have a nonforfeitable
interest in his Employer Account.
(c) Disability. If the employment of a Participant is terminated prior
to his Normal Retirement Age as a result of a medically determinable
physical or mental impairment which may be expected to result in death or
to last for a continuous period of not less than twelve (12) months and
which renders him incapable of performing his duties, he shall be one
hundred percent (100%) vested and have a nonforfeitable interest in his
Employer Account. All determinations in connection with the permanence and
degree of such disability shall be made by the Plan Administrator in a
uniform, nondiscriminatory manner on the basis of medical evidence.
-19-
(d) Death. In the event of the death of a Participant, he shall be one
hundred percent (100%) vested and have a nonforfeitable interest in his
Employer Account.
(e) Termination of Plan. In the event of termination of the Plan, each
Participant shall be one hundred percent (100%) vested and have a
nonforfeitable interest in his Employer Account. In the event of a partial
termination of the Plan, each Participant with respect to whom such partial
termination has occurred shall be one hundred percent (100%) vested and
have a nonforfeitable interest in his Employer Account.
(f) Early Retirement, Resignation or Discharge. If the employment of a
Participant terminates by reason of early retirement, resignation or
discharge prior to his Normal Retirement Age, he shall be vested and have a
nonforfeitable interest in a percentage of his Employer Account determined,
except as provided below, by taking into account all of his Years of
Service as of such termination date in accordance with the following
schedule:
Years of Service Percent Vested
Less than 1 0%
1 but less than 2 1%
2 but less than 3 1%
3 but less than 4 20%
4 but less than 5 40%
5 but less than 6 60%
6 but less than 7 80%
7 or more 100%
2.4.3 Leave of Absence. A temporary cessation from active employment with the
Employer pursuant to an authorized leave of absence in accordance with the
nondiscriminatory policy of the Employer, whether occasioned by illness,
military service or any other reason shall not be treated as either a
termination of employment or a Break in Service provided that the Employee
returns to employment prior to the end of the authorized leave of absence.
2.4.4 Re-Employment. In the event that the Participant is re-employed during
a Plan Year subsequent to the Plan Year encompassing the Distribution
Determination Date, he shall be given credit for Years of Service preceding the
Break in Service for the purpose of determining his vested and nonforfeitable
interest in his share of Employer contributions and forfeitures allocated to his
Employer Account after such re-employment. Years of Service completed by the
Participant after such re-employment shall not increase his vested and
nonforfeitable interest in his Employer Account on the Distribution
Determination Date as of which his Distributable Benefit is
-20-
determined preceding such re-employment unless the Participant is re-employed
before he incurs five (5) consecutive Breaks in Service.
2.4.5 Distribution Determination Date. Subject to the necessity, if any, of
obtaining the consent of the Participant and spouse, the Distribution
Determination Date shall be determined as hereinafter provided.
(a) Less Than 100% Vested. If the employment of a Participant terminates and
the Participant has less than a one hundred percent (100%) vested and
nonforfeitable interest in his Employer Account as of the date of such
termination, the Distribution Determination Date shall be the Anniversary Date
of the Plan Year during which he terminates employment, provided that he is not
re-employed on the last day of such Plan Year.
(b) Fully Vested. For a Participant who is fully vested but who terminates
employment prior to death, total and permanent disability or retirement at his
retirement date, the Distribution Determination Date shall be as soon as
practical but prior to the Anniversary Date following the date of termination,
based on the preceding Valuation Date.
For a Participant who terminates employment as a result of death, total and
permanent disability or retirement at his retirement date, the Distribution
Determination Date shall be as soon as practical but prior to the Anniversary
Date following the date of termination, based on the preceding Valuation Date.
In the case of a Participant's interest in a Voluntary Account or a Segregated
Account attributable to a rollover contribution from another plan, the
Distribution Determination Date is as soon as practical but prior to the
Anniversary Date following the date of termination, based on the preceding
Valuation Date.
(c) Termination of Plan. In the event of termination of the Plan, the
Distribution Determination Date shall be the date of such termination. In the
event of a partial termination of the Plan, as to each Participant with respect
to whom such partial termination has occurred, the Distribution Determination
Date shall be the Anniversary Date coinciding with or immediately following the
date of such partial termination.
(d) Other. Except as provided above, the Distribution Determination Date
shall be the Anniversary Date coinciding with or next following the termination
of employment of the Participant.
-21-
2.4.6 Forfeitures. If an Employee terminates service, and the value of the
Employees' vested account balance derived from employer and employee
contributions is not greater than $3,500 and the Employee receives a
distribution of the value of the entire vested portion of such account balance,
the nonvested portion shall be treated as a forfeiture as of the last day of the
Plan Year in which the Participant's entire nonforfeitable interest in such
Account is distributed from the Plan. If the value of an Employee's vested
account balance is zero, the Employee shall be deemed to have received a
distribution of such vested account balance. A participant's vested account
balance shall not include accumulated deductible employee contributions within
the meaning of Section 72(o)(5)(B) of the Code for plan years beginning prior
to January 1, 1989.
If an employee terminates service, and elects, in accordance with the
requirements of Section 2.5.2, to receive the value of the employee's vested
account balance, the nonvested portion shall be treated as a forfeiture. If the
employee elects to have distributed less than the entire vested portion of the
account balance derived from employer contributions, the part of the nonvested
portion that will be treated as a forfeiture is the total nonvested portion
multiplied by a fraction, the numerator of which is the amount of the
distribution attributable to employer contributions and the denominator of which
is the total value of the vested employer derived account balance.
If an Employee receives a distribution and the Employee resumes employment
covered under the Plan, the Employee's employer-derived account balance shall
be restored to the amount on the date of distribution if the Employee repays to
the plan the full amount of the distribution attributable to Employer
contributions before the earlier of five (5) years after the first date on which
the Participant is subsequently re-employed by the Employer, or the date the
Participant incurs five (5) consecutive Breaks in Service following the date of
the distribution. If an Employee is deemed to receive a distribution pursuant to
this section, and the Employee resumes employment covered under the Plan before
the date the Participant incurs five (5) consecutive Breaks in Service, upon the
reemployment of such Employee, the employer-derived account balance of the
Employee will be restored to the amount on the date of such deemed distribution.
Any portion of a Participant's Employer Account with respect to which he is
not vested shall be deemed a forfeiture as of the last day of the Plan Year in
which the Participant's entire nonforfeitable interest his Employer Account is
distributed from the Plan.
-22-
Such forfeiture shall be allocated to the Employer Accounts of Participants
who are entitled by reason of re--employment to restoration of a prior
forfeiture and any remaining forfeitures shall be allocated in proportion to
each Participant's Compensation.
Notwithstanding any provision herein to the contrary, forfeitures resulting
from contributions by an Employer shall not be reallocated for the benefit of
another adopting Employer, unless such adopting Employer is an Affiliate
Employer. If a Participant is entitled to a restoration of a forfeiture which
has not otherwise been provided for, the amount to be restored shall be restored
by allocating forfeitures arising in the Plan Year of restoration to the
Participant's Employer Account to the extent thereof and an additional
contribution by the Employer allocated to the Participant's Employer Account to
the extent that allocable forfeitures are insufficient.
-23-
ARTICLE V
DISTRIBUTIONS
2.5.1 Commencement of Distribution.
(a) Immediate Distribution. If the employment of a Participant is
terminated for any reason other than resignation or discharge prior to
either his Early Retirement Date or his Normal Retirement Date,
distribution of his Distributable Benefit shall begin in accordance with
the Participant's election at any time after the earlier of the date
determined under subsection (b) below or within a reasonable period after
the Distribution Determination Date as of which his Distributable Benefit
is determined; provided that, if he has not incurred a Break in Service, he
is not re-employed prior to the date of the commencement of distributions.
(b) Deferred Distribution. Unless the Employee elects earlier
commencement in accordance with the provisions of the Plan, if the
employment of a Participant is terminated by reason of resignation or
discharge prior to either his Early Retirement Date or his Normal
Retirement Date, distribution of his Distributable Benefit shall be
deferred and commenced unless the Participant elects to further defer
distribution on the sixtieth (60th) day after the close of the later of the
following Plan Years:
(i) The Plan Year during which the Participant attains the earlier of
age sixty-five (65) or the Normal. Retirement Age;
(ii) The Plan Year during which the tenth (10th) anniversary of the
commencement of the Participant's participation in the Plan occurs; or
(iii) The Plan Year during which the Participant terminates service
with the Employer.
A Participant who terminates employment before satisfying the age requirement
for early retirement but has satisfied any service requirement shall be entitled
to a distribution of his Distributable Benefit in accordance with subsection (a)
above upon attaining such age.
If distribution is so deferred, unless otherwise determined by the Plan
Administrator, the Trustee at the Plan Administrator's direction shall transfer
the Distributable Benefit to a Segregated Fund from which distribution shall
thereafter be made. Such transfer
- 24 -
shall be made as of the Distribution Determination Date. Notwithstanding the
foregoing, the failure of a Participant and spouse to consent to a distribution
while a benefit is immediately distributable, within the meaning of Section
2.5.2, shall be deemed to be an election to defer commencement of payment of any
benefit sufficient to satisfy this section.
(c) Required Distribution. Notwithstanding anything herein to the
contrary, unless the Participant has made an appropriate election by
December 31, 1983 to defer distribution which has not been revoked or
modified, the Participant's benefit shall be distributed to the Participant
not later than April 1 of the calendar year following the calendar year in
which he attains age 70-1/2 (the required beginning date) or shall be
distributed, commencing not later than April 1 of such calendar year in
accordance with regulations prescribed by the Secretary of the Treasury
over a period not extending beyond the life expectancy of the Participant
or the life expectancy of the Participant and a beneficiary designated by
the Participant. The amount required to be distributed for each calendar
year, beginning with distributions for the first distribution calendar
year, must at least equal the quotient obtained by dividing the
Participant's benefit by the applicable life expectancy. Unless otherwise
elected by the Participant (or spouse, if distributions begin after death
and the spouse is the designated beneficiary) by the time distributions are
required to begin, the life expectancy of the Participant and the
Participant's spouse shall be recalculated annually. Other than for a life
annuity, such election shall be irrevocable as to the Participant or spouse
and shall apply to all subsequent years. The life expectancy of a non--
spouse beneficiary may not be recalculated. Life expectancy and joint and
last survivor expectancy shall be computed by use of the expected return
multiples in Tables V and VI of Section 1.72-9 of the Treasury Regulations.
For calendar years beginning after December 31, 1988, the amount to be
distributed each year, beginning with distributions for the first
distribution calendar year shall not be less than the quotient obtained by
dividing the Participant's benefit by the lesser of (1) the applicable life
expectancy or (2) if the Participant's spouse is not the designated
beneficiary, the applicable divisor then determined from the table set
forth in Q&A--4 of Section 1.401(a) (9)--2 of the proposed regulations.
Distributions after the death of the Participant shall be distributed using
the applicable life expectancy as the relevant divisor without regard to
Proposed Regulations Section 1.401(a) (9)-2. The minimum distribution for
subsequent calendar years,
- 25 -
including the minimum distribution for the distribution calendar year in which
the Participant's required beginning date occurs, must be made on or before
December 31 of that distribution calendar year.
(d) Distribution After Death. Unless the Participant has made an
appropriate election by December 31, 1983 to extend the period of
distribution after his death and the election has not been revoked or
modified, the following provisions shall apply. If distribution of the
Participant's benefit has begun and the Participant dies before his entire
benefit has been distributed to him, the remaining portion of such benefit
shall be distributed at least as rapidly as under the method of
distribution being used as of the date of the Participant's death.
If the Participant dies before the distribution of his benefit has begun, the
entire interest of the Participant shall be distributed by December 31 of the
calendar year containing the fifth (5th) anniversary of the death of such
Participant, provided that if any portion of the Participant's benefit is
payable to or for the benefit of a designated beneficiary and such portion is to
be distributed in accordance with regulations issued by the Secretary of the
Treasury over the life of, or over a period not extending beyond the life
expectancy of such designated beneficiary, such distributions shall begin not
later than December 31 of the calendar year immediately following the calendar
year of the Participant's death or such later date as may be provided by
regulations issued by the Secretary of the Treasury. If the designated
beneficiary is the surviving spouse of the Participant the date on which the
distributions are required to begin shall not be earlier than the later of
December 31 of the calendar year immediately following the calendar year in
which the Participant died and December 31 of the calendar year in which the
Participant would have attained age 70-1/2. If the surviving spouse thereafter
dies before the distributions to such spouse begin and any benefit is payable to
a contingent beneficiary, the date on which distributions are required to begin
shall be determined as if the surviving spouse were the Participant.
If the Participant has not specified the manner in which benefits are payable
by the time of his or her death, the Participant's designated beneficiary must
elect the method of distribution no later than the earlier of (1) December 31 of
the calendar year in which distributions would be required to begin under this
section, or (2) December 31 of the calendar year which
- 26 -
contains the fifth anniversary of the date of death of the Participant. If the
Participant has no designated beneficiary, or if the designated beneficiary does
not elect a method of distribution, distribution of the Participant's entire
interest must be completed by December 31 of the calendar year containing the
fifth anniversary of the Participant's death.
(e) Payments to Children. In accordance with regulations issued by the
Secretary of the Treasury, any amount paid to a child shall be treated as
if it has been paid to the surviving spouse if such amount shall become
payable to the surviving spouse upon such child reaching majority (or other
designated event permitted under such regulations.
(f) Incidental Death Benefit Distributions. Any distribution required by
the rules applicable to incidental death benefits shall be treated as a
distribution required by this Section. All distributions required under
this Section shall be determined and made in accordance with the proposed
regulations under Section 401(a)(9) of the Code, including the minimum
distribution incidental benefit requirement of Section l.401(a)-(9)-2 of
the proposed regulations.
(g) Distributions. For the purposes of this section, distribution of a
Participant's interest is considered to begin on the Participant's required
beginning date or the date distribution is required to begin to the
surviving spouse. If distribution in the form of an annuity irrevocably
commences to the Participant before the required beginning date, the date
distribution is considered to begin is the date distribution actually
commences.
(h) Definitions.
(1) Applicable life expectancy. The life expectancy (or joint and last
survivor expectancy) calculated using the attained age of the Participant
(or designated beneficiary) as of the Participant's (or designated
beneficiary's) birthday in the applicable calendar year reduced by one for
each calendar year which has elapsed since the date life expectancy was
first calculated. If life expectancy is being recalculated, the applicable
life expectancy shall be the life expectancy as so recalculated. The
applicable calendar year shall be the first distribution calendar year, and
if life expectancy is being recalculated such succeeding calendar year.
(2) Designated beneficiary. The individual who is designated as the
beneficiary under the Plan in
- 27 -
accordance with Section 401(a)(9) and the proposed regulations thereunder.
(3) Distribution calendar year. A calendar year for which a minimum
distribution is required. For distributions beginning before the
Participant's death, the first distribution calendar year is the calendar
year immediately preceding the calendar year which contains the
Participant's required beginning date. For distributions beginning after
the Participant's death, the first distribution calendar year is the
calendar year in which distributions are required to begin.
(4) Participant's benefit.
(i) The account balance as of the last valuation date in the calendar
year immediately preceding the distribution calendar year (valuation
calendar year) increased by the amount of any contributions or
forfeitures allocated to the account balance as of dates in the
valuation calendar year after the valuation date and decreased by
distributions made in the valuation calendar year after the valuation
date.
(ii) Exception for second distribution calendar year. For purposes of
paragraph (i) above, if any portion of the minimum distribution for the
first distribution calendar year is made in the second distribution
calendar year on or before the required beginning date, the amount of
the minimum distribution made in the second distribution calendar year
shall be treated as if it had been made in the immediately preceding
distribution calendar year.
(5) Required beginning date.
(i) General rule. The required beginning date of a Participant is the
first day of April of the calendar year following the calendar year in
which the Participant attains age 70-1/2.
(ii) Transitional rules. The required beginning date of a Participant
who attains age 70-1/2 before January 1, 1988, shall be determined in
accordance with (I) or (II) below:
- 28 -
(I) Non-5-percent owners. The required beginning date of a
Participant who is not a 5-percent owner is the first day of April of
the calendar year following the calendar year in which the later of
retirement or attainment of age 70-1/2 occurs.
(II) 5-percent owners. The required beginning date of a Participant
who is a 5-percent owner during any year beginning after December 31,
1979, is the first day of April following the later of:
(A) the calendar year in which the Participant attains age
70-1/2, or
(B) the earlier of the calendar year with or within which ends
the Plan Year in which the Participant becomes a 5-percent owner, or
the calendar year in which the Participant retires.
The required beginning date of a Participant who is not a 5-percent owner who
attains age 70-1/2 during 1988 and who has not retired as of January 1, 1989,
is April 1, 1990.
(iii) 5-percent owner. A Participant is treated as a 5-percent owner for
purposes of this section if such Participant is a 5-percent owner as defined in
Section 416(i) of the Code (determined in accordance with Section 416 but
without regard to whether the Plan is top-heavy) at any time during the Plan
Year ending with or within the calendar year in which such owner attains age
66-1/2 or any subsequent Plan Year.
(iv) Once distributions have begun to a 5-percent owner under this section,
they must continue to be distributed, even if the Participant ceases to be a
5-percent owner in a subsequent year.
(i) Transitional rule.
(1) Notwithstanding the other requirements of this Section and subject
to the requirements of Section 2.5.2, distribution on behalf of any
employee, including a 5--percent owner, may be made in accordance with all
of the following requirements (regardless of when such distribution
commences):
(a) The distribution by the trust is one which would not have
disqualified such trust under Section
- 29 -
401(a) (9) of the Internal Revenue Code as in effect prior to amendment
by the Deficit Reduction Act of 1984.
(b) The distribution is in accordance with a method of distribution
designated by the employee whose interest in the trust is being
distributed or, if the employee is deceased, by a beneficiary of such
employee.
(c) Such designation was in writing, was signed by the employee or the
beneficiary, and was made before January 1, 1984.
2.5.2 Method of Distribution. Subject to the provisions of Section 2.5.1 above
and any security interest in a loan from the Plan for which any necessary
spousal consent has been obtained (to the extent such security interest is used
as repayment of the loan), distribution shall be made by any one or combination
of the following methods, as determined in accordance with the election of the
Participant (or in the case of death, his Beneficiary) with such spousal
consents as may be required by law in any of the following methods:
(a) In a single distribution; provided that if the Employer has applied a
consistent policy since the first Plan Year beginning after 1988, the Employer
may require a Participant who is a Highly Compensated Employee or who is
otherwise entitled to receive a lump sum distribution in excess of $25,000.00 to
execute a covenant not to compete with the Employer which shall provide that the
Participant agrees that he shall not solicit the business of any person or
entity doing business with the Employer at any time within the twelve month
period prior to the date of termination of his employment and, in addition,
shall not engage in any business, whether as a sole proprietor, partner, joint
venturer, shareholder, employee, independent contractor, agent or otherwise,
which is in competition with the business of the Employer for a period not
exceeding two (2) years from the date of such distribution within fifty (50)
miles of the principal offices of the Employer or containing such alternative
provisions as determined by the Employer.
(b) In substantially equal annual, quarterly or monthly installments over a
fixed period of time, provided that such period is less than the life expectancy
of the Participant and the Participant's Beneficiary as of the annuity starting
date.
If distribution is to be made in installments, the Plan Administrator shall
cause the undistributed portion of the Distributable Benefit to be transferred
to a Segregated Fund
- 30 -
from which installment payments shall thereafter be withdrawn from time to time.
(c) Any alternative method of equivalent value contained in the Plan at
anytime on or after the first day of the first Plan Year beginning after
1988 to which the Participant consents.
(d) Incidental Death Benefits. For calendar years beginning before
January 1, 1989, if the Participant's spouse is not the designated
Beneficiary, the method of distribution selected must assure that at least
fifty (50%) percent of the present value of the amount available for
distribution is paid within the life expectancy of the Participant.
(e) Consents. If the value of a Participant's vested account balance
derived from Employer and Employee contributions does not exceed (and at
the time of any prior distribution did not exceed) $3,500, the consent of
the Participant and his or her spouse shall not be required; provided that
if such value exceeds $3,500, the Participant and spouse (or where either
has died, the survivor) must consent to any distribution of such account
balance. The consent shall be obtained in writing within the 90 day period
ending on the annuity starting date. Neither the consent of the Participant
nor the Participant's spouse shall be required to the extent that a
distribution is required to satisfy Section 401(a)(9) or Section 415 of
the Code. In addition, upon termination of the Plan if the Plan does not
offer an annuity option (purchased from a commercial provider), the
Participant's account balance in the Plan may, without the Participant's
consent, be distributed to the Participant or transferred to another
defined contribution plan (other than an employee stock ownership plan as
defined in Section 4975(e)(7) of the Code) within the same controlled
group.
(f) Zero Benefits. If the value of the Participant's vested and
nonforfeitable interest in the Plan at the time of his termination of
employment is zero, the Participant shall be deemed to have received a
distribution of such interest.
(g) Restrictions on Immediate Distributions. The Plan Administrator
shall notify the Participant and the Participant's spouse of the right to
defer any distribution until the Participant's account balance in the Plan
is no longer immediately distributable. Such notification shall include a
general description of the material features and an explanation of the
relative values of the optional forms of benefit available under the Plan
in a manner that would satisfy the notice requirements of Section 417(a)
(3) of the
- 31 -
Code and shall be provided no less than 30 days and no more than 90 days prior
to the annuity starting date. Notwithstanding the foregoing, only the
Participant need consent to the commencement of a distribution in the form of a
qualified joint and survivor annuity while the Participant's account balance in
the Plan is immediately distributable. Furthermore, if payment in the form of a
qualified joint and survivor annuity is not required with respect to the
Participant pursuant to the Plan, only the Participant need consent to the
distribution of an account balance that is immediately distributable. The
Participant's account balance is immediately distributable if any part of the
Participant's account balance could be distributed to the Participant (or
surviving spouse) before the Participant attains (or would have attained if not
deceased) the later of age 62 or the Normal Retirement Age.
(h) Transitional Rules.
(1) Any living Participant not receiving benefits on August 23, 1984, who
would otherwise not receive the benefits prescribed by the previous sections of
the article must be given the opportunity to elect to have the prior sections of
this article apply if such Participant is credited with at least one hour of
service under this Plan or a predecessor plan in a Plan Year beginning on or
after January 1, 1976, and such Participant has at least 10 years of vesting
service when he or she separated from service.
(2) Any living Participant not receiving benefits on August 23, 1984, who was
credited with at least one hour of service under this Plan or a predecessor plan
on or after September 2, 1974, and who is not otherwise credited with any
service in a Plan Year beginning on or after January 1, 1976, must be given the
opportunity to have his or her benefits paid in accordance with Section (4)
below.
(3) The respective opportunities to elect (as described above) must be
afforded to the appropriate Participants during the period commencing on August
23, 1984, and ending on the date benefits would otherwise commence to said
Participants.
(4) Any Participant who has elected pursuant to Section (2) above and any
Participant who does not elect under Section (1) or who meets the requirements
of Section (1) except that such Participant does not have at least 10 years of
vesting service when he or she separates from service, shall have his or her
benefits distributed in accordance with all of the following requirements if
benefits would have been payable in the
- 32 -
form of a life annuity:
(i) Automatic joint and survivor annuity. If benefits in the form a life
annuity become payable to a married Participant who:
(1) begins to receive payments under the Plan on or after normal
retirement age; or
(2) dies on or after normal retirement age while still working for the
Employer; or
(3) begins to receive payments on or after the qualified early
retirement age; or
(4) separates from service on or after attaining normal retirement age
(or the qualified early retirement age) and after satisfying the
eligibility requirements for the payment of benefits under the plan and
thereafter dies before beginning to receive such benefits;
then such benefits will be received under this Plan in the form of a
qualified joint and survivor annuity, unless the Participant has elected
otherwise during the election period. The election period must begin at least 6
months before the Participant attains qualified early retirement age and end not
more than 90 days before the commencement of benefits. Any election hereunder
will be in writing and may be changed by the Participant at any time.
(ii) Election of early survivor annuity. A Participant who is employed after
attaining the qualified early retirement age will be given the opportunity to
elect, during the election period, to have a survivor annuity payable on death.
If the Participant elects the survivor annuity, payments under such annuity must
not be less than the payments which would have been made to the spouse under the
qualified joint and survivor annuity if the Participant had retired on the day
before his or her death. Any election under this provision will be in writing
and may be changed by the Participant at any time. The election period begins on
the later of (1) the 90th day before the Participant attains the qualified early
retirement age, or (2) the date on which participation begins, and ends on the
date the Participant terminates employment.
(iii) For purposes of this Section (4):
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(1) Qualified early retirement age is the later of:
(i) the earliest date, under the Plan, on which the Participant may
elect to receive retirement benefits,
(ii) the first day of the 120th month beginning before the Participant
reaches normal retirement age, or
(iii) the date the Participant begins participation.
(2) Qualified joint and survivor annuity is an annuity for the life of
the Participant with a survivor annuity for the life of the spouse as
otherwise described in the Plan.
2.5.3 Nature of Distributions. The nature of the distribution of a
Participant's Distributable Benefit shall be as hereinafter provided.
(a) Trust Fund and Segregated Funds. Subject to the Joint and Survivor Annuity
requirements, except as provided in subsection (b), distribution of a
Participant's Distributable Benefit shall consist of cash or property, or an
annuity contract as provided in Section 5.2 above.
(b) Insurance Policies. In the event that the Trustee has purchased Life
Insurance Policies on the life of the Participant, the values and benefits
available with respect to each such Policy shall be distributed as follows:
(i) If the Participant's employment terminates for any reason other
than death, then the Trustee shall either surrender the Life Insurance
Policy for its available cash value and distribute the proceeds as
provided in subsection (a) above or, at the election of the Participant,
distribute the Life Insurance Policy to the Participant, provided the
Participant has a vested and nonforfeitable interest in his Accounts in
an amount at least equal to the cash value thereof.
(ii) If the Participant's employment terminates by reason of death,
the beneficiary designated by the Participant in accordance with the
terms of the Plan shall be entitled to receive from the Trustee the full
amount of the proceeds thereof.
The Trustee shall apply for and be the owner of any Policies purchased under
the terms of the Plan. The Policies
- 34 -
must provide that the proceeds are payable to the Trustee subject to the
Trustee's obligation to pay over the proceeds to the designated Beneficiary.
Under no circumstances shall the trust retain any part of the proceeds. In the
event of any conflict between the terms of the Plan and the terms of any
Policies purchased hereunder, the Plan provisions shall control.
2.5.4 Advance Distributions. After a fully vested Participant's employment has
terminated and before he is otherwise entitled to distribution of his
Distributable Benefit which shall be as soon as practical, but prior to the
Anniversary Date following the date of termination, based on the preceding
Valuation Date the Trustee upon the request of the Participant or Beneficiary
shall make advance distributions to him or to his Beneficiary. The aggregate of
such an advance distribution shall not exceed the sum of the vested and
nonforfeitable interest in the Participant's Accounts.
An Employee who terminates service and elects to receive the value of the
Employee's vested account balance shall forfeit the nonvested portion. If the
Employee elects to have distributed less than the entire vested portion of the
account balance derived from Employer contributions, the part of the nonvested
portion that is treated as a forfeiture is the total nonvested portion
multiplied by a fraction, the numerator of which is the amount of the
distribution attributable to Employer contributions and the denominator of which
is the total value of the vested Employer derived account balance.
Except as provided in the preceding paragraph, if a Participant receives a
distribution which reduces the balance in his Employer Account when he has less
than a one hundred percent (100%) vested and nonforfeitable interest in the
Account, the amount, if any, of the Participant's vested and nonforfeitable
interest in the undistributed balance of said Account on his Accrual Date shall
be transferred to a Segregated Account and shall not be less than an amount
("X") determined by the formula: x=P(AB+(RxD) ) - (RxD). For purposes of
applying the formula: P is the vested percentage at the relevant time; AB is the
account balance at the relevant time; and D is the amount of the distribution;
and R is the ratio of the Account balance at the relevant time to the Account
balance after distribution.
A Participant who receives a distribution of an amount deducted from his
Employer Account when he has less than a one hundred percent (100%) vested and
nonforfeitable interest in his Employer Account and who subsequently again
becomes an Employee may repay the full amount of such distribution before he
incurs five (5) consecutive Breaks in Service following the date of the
distribution but in no event later than the fifth (5th) anniversary of the date
of his reemployment; provided, however, that in the event of repayment neither
the Trust nor the Employer shall be liable for any federal or state income tax
- 35 -
resulting from the distribution and the Participant shall indemnify and hold
harmless the Trust and the Employer for and from any such liability. In the
event of such repayment, the Employer Account of the Participant shall be
credited with the full amount of such repayment and the previously undistributed
balance. In the event the Participant fails to repay the full amount of such
distribution within the time permitted for repayment, the non-vested and
forfeitable portion of the previously undistributed balance of his Employer
Account which had been transferred to a Segregated Account shall be deemed a
forfeiture as of the last day of such period. If a Participant is deemed to
receive a distribution because his vested and nonforfeitable interest at the
time of his termination of employment is zero and the Participant resumes
employment covered under the Plan before the date the Participant incurs five
(5) consecutive Breaks in Service, upon the reemployment of such Participant,
the employer-derived account balance of the Participant shall be restored to the
amount on the date of the deemed distribution.
2.5.5 In Service Distribution. Prior to a Participant's termination of
employment or upon attainment of his Normal Retirement Date, provided the Plan
does not take into account contributions to provide Social Security benefits in
the allocation of Employer contributions, a Participant shall be entitled to
receive a distribution of all or part of his interest in the Plan upon filing a
written request with the Plan Administrator; provided that no distribution shall
be made unless the interest of the Participant in the plan is fully vested and
nonforfeitable and the individual has been a Participant for 5 Plan Years. In
service distributions are permitted at the election of the Participant for
amounts held in a Segregated Account attributable to a rollover from another
plan regardless of age or periods of participation. Any distribution shall be
subject to the written consent of the Participant`s spouse.
- 36 -
ARTICLE VI
CONTINGENT TOP HEAVY PROVISIONS
2.6.1 Top Heavy Requirements. If the Plan becomes a Top Heavy Plan during any
Plan Year, the following provisions shall supersede any conflicting provisions
in the Plan or Trust and apply for such Plan Year and each subsequent Plan Year:
(a) Except as otherwise provided below, the Employer contributions and
forfeitures allocated on behalf of any Participant who is not a Key Employee
shall not be less than the lesser of three percent of such Participant's
Compensation or in the case where the Employer has no defined benefit plan which
designates this plan to satisfy Section 401 of the Code, the largest percentage
of Employer contributions and forfeitures, as a percentage of the first $200,000
of the Key Employee's compensation, allocated on behalf of any Key Employee for
that year. The minimum allocation is determined without regard to any Social
Security contribution. This minimum allocation shall be made even though, under
other plan provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation for the year
because of (i) the Participant's failure to complete 1,000 Hours of Service (or
any equivalent provided in the plan), or (ii) the Participant's failure to make
mandatory employee contributions to the plan, or (iii) compensation less than, a
stated amount.
For purposes of computing the minimum allocation, Compensation shall mean a
Participant's W--2 compensation.
The minimum allocation provided above shall not apply to any Participant who
was not employed by the Employer on the last day of the Plan Year.
The minimum allocation provided above shall not apply to any Participant to
the extent the Participant is covered under any other plan or plans of the
Employer and the Employer has provided that the minimum allocation or benefit
requirement applicable to top-heavy plans will be met in the other plan or
plans.
(b) References in Section 3.2.1(d), pertaining to combined plan limitations,
to "1.25" shall be applied by substituting "1.0" for "1.25" therein. Reference
in Section 3.2.1(e), pertaining to a special transition rule, to "$51,875" shall
be applied by substituting "$41,500" for "$51,875" therein.
- 37 -
(C) The vested and nonforfeitable interest of each Participant shall
be equal to the percentage determined under the following schedule if
greater than the percentage determined under Section 2.4.2:
Years of Service Percent Vested
Less than 1 0%
1 but less than 2 1%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
The top-heavy minimum vesting schedule applies to all benefits within the
meaning of Section 411(a) (7) of the Code, except those attributable to employee
contributions, including benefits accrued before the effective date of Section
416 of the Code and benefits accrued before the Plan becomes top--heavy.
If the Plan ceases to be a Top Heavy Plan, the vesting which occurs while the
Plan is a Top Heavy Plan shall not be cutback. Any minimum allocation required
(to the extent required to be nonforfeitable under Section 416(b)) may not be
forfeited under Section 411(a) (3) (B) or (D) of the Code.
2.6.2 Top Heavy Definitions. The following terms, as used in this Plan, shall
have the following meaning:
(a) "Key Employee": An Employee or former employee who, at any time
during the Determination Period is either:
(i) an officer of the Employer having an Annual Compensation greater
than fifty (50%) percent of the amount in effect under Section 415(b)
(1) (A) of the Code;
(ii) an owner (or a person considered an owner under Section 318 of
the Code) of one of the ten largest interests in the Employer if such
individual's Annual Compensation from the Employer is more than the
limitation in effect under Section 415(c) (1) (A) of the Code;
(iii) any person who owns directly or indirectly more than five (5%)
percent of the outstanding stock of the Employer or stock possessing
more than five (5%) percent of the total combined voting power of all
stock of the Employer or, in the case of an unincorporated Employer, the
capital or profits interest in the Employer;
- 38 -
(iv) any person who owns directly or indirectly more than one (1%)
percent of the outstanding stock of the Employer or stock possessing
more than one (1%) percent of the total combined voting power of all
stock of the Employer or, in the case of an unincorporated Employer, the
capital or profits interest in the Employer and having an Annual
Compensation from the Employer of more than $150,000; or
(v) any beneficiary of a Key Employee.
The determination of who is a Key Employee shall be made in accordance with
Section 416(i)(1) of the Code and the regulations thereunder.
(b) "Aggregation Group": Each qualified retirement plan of the Employer
in which a Key Employee is a participant and each other qualified
retirement plan of the Employer which enables any plan in which a Key
Employee is a participant to meet the requirements of Section 401(a)(4) or
Section 410 of the Code.
(c) "Annual Compensation": Compensation as defined in Section 415(c)(3)
of the Code, but including amounts contributed by the Employer pursuant to
a salary reduction agreement which are excludable from the Employee's gross
income under Section 125, Section 402(a)(8), Section 402(h) or Section
403(b) of the Code.
(d) "Top-Heavy Plan": For any Plan Year beginning after December 31,
1983, the plan is top-heavy if any of the following conditions exists:
(i) If the top-heavy ratio for the plan exceeds 60 percent and the
plan is not part of any required aggregation group or permissive
aggregation group of plans.
(ii) If the plan is a part of a required aggregation group of plans
but not part of a permissive aggregation group and the top-heavy ratio
for the group of plans exceeds 60 percent.
(iii) If the plan is a part of a required aggregation group and part
of a permissive aggregation group of plans and the top-heavy ratio for
the permissive aggregation group exceeds 60 percent.
(e) "Top-Heavy Ratio":
(i) If the Employer maintains one or more defined contribution plans
(including any simplified employee pension plan) and the Employer has
not maintained any
- 39 -
defined benefit plan which during the 5-year period ending on the Determination
Date(s) has or has had accrued benefits, the top-heavy ratio for this plan alone
or for the required or permissive aggregation group as appropriate is a
fraction, the numerator of which is the sum of the account balances of all Key
Employees as of the Determination Date(s) (including any part of any account
balance distributed in the 5-year period ending on the Determination Date(s)),
and the denominator of which is the sum of all account balances (including any
part of any account balance distributed in the 5-year period ending on the
Determination Date(s)), both computed in accordance with Section 416 of the Code
and the regulations thereunder. Both the numerator and denominator of the top-
heavy ratio are increased to reflect any contribution not actually made as of
the Determination Date, but which is required to be taken into account on that
date under Section 416 of the Code and the regulations thereunder.
(ii) If the Employer maintains one or more defined contribution plans
(including any simplified employee pension plan) and the Employer maintains or
has maintained one or more defined benefit plans which during the 5-year period
ending on the Determination Date(s) has or has had any accrued benefits, the
top-heavy ratio for any required or permissive aggregation group as appropriate
is a fraction, the numerator of which is the sum of account balances under the
aggregated defined contribution plan or plans for all Key Employees, determined
in accordance with (i) above, and the present value of accrued benefits under
the aggregated defined benefit plan or plans for all Key Employees as of the
Determination Date(s), and the denominator of which is the sum of the account
balances under the aggregated defined contribution plan or plans for all
Participants, determined in accordance with (i) above, and the present value of
accrued benefits under the defined benefit plan or plans for all Participants as
of the Determination Date(s), all determined in accordance with Section 416 of
the Code and the regulations thereunder. The accrued benefits under a defined
benefit plan in both the numerator and denominator of the top-heavy ratio are
increased for any distribution of an accrued benefit made in the five-year
period ending on the Determination Date.
(iii) For purposes of (i) and (ii) above, the value of account balances and
the present value of accrued benefits will be determined as of the most recent
valuation date that falls within or ends with the 12-month period ending on the
Determination Date, except as provided in Section 416 of the Code and the
- 40 -
regulations thereunder for the first and second plan years of a defined benefit
plan. The account balances and accrued benefits of a Participant (1) who is not
a Key Employee but was a Key Employee in a prior year, or (2) who has not been
credited with at least one hour of service with any Employer maintaining the
plan at any time during the 5-year period ending on the Determination Date will
be disregarded. The calculation of the top-heavy ratio, and the extent to which
distributions, rollovers, and transfers are taken into account will be made in
accordance with Section 416 of the Code and the regulations thereunder.
Deductible employee contributions will not be taken into account for purposes of
computing the top-heavy ratio. When aggregating plans, the value of account
balances and accrued benefits will be calculated with reference to the
Determination Dates that fall within the same calendar year.
The accrued benefit of a Participant other than a Key Employee shall be
determined under (a) the method, if any, that uniformly applies for accrual
purposes under all defined benefit plans maintained by the Employer, or (b) if
there is no such method, as if such benefit accrued not more rapidly than the
slowest accrual rate permitted under the fractional rule of Section 411(b)(1)(C)
of the Code.
(f) "Permissive Aggregation Group": The required aggregation group of
plans plus any other plan or plans of the Employer which, when considered
as a group with the required aggregation group, would continue to satisfy
the requirements of Sections 401(a)(4) and 410 of the Code.
(g) "Required Aggregation Group":
(i) Each qualified plan of the Employer in which at least one Key
Employee participates or participated at any time during the
Determination Period (regardless of whether the plan has terminated).
(ii) Any other qualified plan of the Employer which enables a plan
described in (i) to meet the requirements of Sections 401(a)(4) or 410
of the Code.
(h) "Determination Date": For any plan year subsequent to the first plan
year, the last day of the preceding plan year. For the first plan year of
the plan, the last day of that year.
(i) "Valuation Date": The date elected by the Employer as of which
account balances or accrued benefits are valued for purposes of calculating
the top-heavy ratio. The
- 41 -
top-heavy valuation date shall be the first day of the Plan Year
(j) "Present Value": Present value shall be based only on the interest
and mortality rates.
(k) "Determination Period": The Plan Year containing the Determination
Date and the four (4) preceding Plan Years.
(1) "Non-Key Employee": An Employee who is not a Key Employee.
- 42 -
PART III
ARTICLE I
ACCOUNTING
3.1.1 Accounts. All income, profits, recoveries, contributions and any and all
monies, securities and properties of any kind at any time received or held by
the Trustee shall be held as a commingled Trust Fund, except to the extent such
assets are transferred to a Segregated Fund. For accounting purposes, the Plan
Administrator shall establish and maintain certain Accounts for each
Participant. An Employer Account shall be established and maintained for each
Participant, to which shall be added the Participant's share of Employer
contributions and forfeitures. If a Participant has made voluntary nondeductible
contributions, the Plan Administrator shall establish and maintain a Voluntary
Account for the Participant. If, in accordance with any of the provisions of the
Plan, assets are either deposited initially or transferred to a Segregated Fund
for the benefit of a Participant, the Plan Administrator shall establish and
maintain a Segregated Account for the Participant. If a Participant elects to
exercise investment control over all or a portion of his Accounts, the Plan
Administrator shall establish and maintain a Controlled Account for the
Participant.
3.1.2 Adjustments. As of each Valuation Date each Participant's Accounts shall
be adjusted in the following order and manner.
(a) Distributions. Any distribution made to or on behalf of a
Participant since the last preceding Valuation Date shall be deducted from
the Participant's Account from which the distribution was made.
(b) Insurance Premiums. Payments made since the last preceding Valuation
Date for Life Insurance Policies on the life of a Participant (including
without limitation payments of premiums and interest on policy loans) shall
be deducted from the Account of the Participant from which the payment was
made.
(c) Adjustment to Fair Market Value. The value of all monies, securities
and other property in the Trust Fund, excluding Life Insurance Policies,
shall be appraised by the Trustee at the then fair market value. In
determining such value, all income and contributions, if any, received by
the Trustee from the Employer or Participants on account of such year
calculated under the method of accounting of the Trust shall be included
and there shall be deducted all expenses determined in accordance with the
method of accounting
- 43 -
adopted by the Plan Administrator.
If the total net value of the Trust Fund so determined exceeds (or is less
than) the total amount in the affected Accounts of all Participants, the excess
(or deficiency) shall be added to (or deducted from) the respective Accounts of
all Participants in the ratio that each such Participant's Account bears to the
total amount in all such Accounts.
(d) Adjustment of Segregated and Controlled Accounts. The value of all
monies, securities and other property in each Participant's Segregated
Account or Controlled Account, if any, but exclusive of Life Insurance
Policies, shall be appraised by the Trustee at the then fair market value.
In determining such value, all income calculated under the method of
accounting of the Trust shall be included and all expenses shall be
deducted.
If the total net value of a Participant's Segregated Account or Controlled
Account, as the case may be, so determined exceeds (or is less than) the
previous balance in such Account, the excess (or deficiency) shall be added to
(or deducted from) the Participant's respective Account.
(e) Insurance Dividends. Dividends or credits received since the last
preceding Valuation Date on any Life Insurance Policy on the life of a
Participant shall be added to the Account of the Participant from which the
premiums for such Life Insurance Policy have been paid.
(f) Contributions and Forfeitures. Each Participant's Account shall be
increased by that portion of the contribution and forfeitures which is
allocated to him.
(g) Transfers from Trust Fund. To the extent that funds in the Trust
Fund attributable to a Participant's Account were transferred since the
last preceding Valuation Date or are to be transferred to a Segregated Fund
pursuant to any of the provisions of the Plan, the Account from which the
funds were transferred shall be decreased and the Account to which the
funds were transferred shall be increased.
(h) Transfers to Trust Fund. To the extent that funds are transferred
from a Segregated Fund of a Participant to the Trust Fund pursuant to any
of the provisions of the Plan, the Account from which the funds were
transferred shall be decreased and the Account of the Participant to which
the funds were transferred shall be increased.
(i) Time of Adjustments. Every adjustment to be made pursuant to this
Section shall be considered as having been made as of the applicable
Valuation Date regardless of the
- 44 -
actual dates of entries, receipt by the Trustee of contributions by the
Participant or the Employer for such Year, or the transfers of funds to or from
Segregated Funds. The Trustee's determination as to valuation of trust assets
and charges or credits to the individual Accounts of the respective Participants
shall be conclusive and binding on all persons. If funds are transferred to a
Segregated Fund as of any date other than a Valuation Date pursuant to the terms
of the Plan, the adjustments to be made pursuant to this Section shall be made
as of the date as of which the transfer is made, as if such date is a Valuation
Date.
If any Participant receives a distribution pursuant to the terms of the Plan
as of any date other than a Valuation Date, then earnings will be credited
solely as of the immediately preceding Valuation Date.
- 45 -
ARTICLE II
LIMITATIONS
3.2.1 Limitations on Annual Additions. If the Participant does not participate
in, and has never participated in another qualified plan maintained by the
Employer, or an individual medical account, as defined in Section 415(1)(2) of
the Code, maintained by the Employer, which provides an annual addition, subject
to the adjustments hereinafter set forth, the amount of annual additions which
may be credited to a Participant's Accounts during any Limitation Year shall in
no event exceed the lesser of (a) thirty thousand dollars ($30,000.00) or, if
greater, one-fourth of the dollar limitation in effect under Section
415(b)(1)(A) of the Code as in effect for the Limitation Year or (b) twenty-five
percent (25%) of the Participant's Compensation for the Plan Year. The
compensation limitation referred to in (b) shall not apply to any contribution
for medical benefits (within the meaning of Section 401(h) or Section
419A(f)(2) of the Code) which is otherwise treated as an annual addition under
Section 415(1)(1) or 419A(d)(2) of the Code. If the Employer contribution that
would otherwise be contributed or allocated to the Participant's Account would
cause the annual additions for the Limitation Year to exceed the maximum
permissible amount, the amount contributed or allocated shall be reduced so that
the annual additions for the Limitation Year shall equal the maximum permissible
amount.
For these purposes, the maximum permissible amount is the maximum annual
additions permitted on behalf of a Participant.
(a) Annual Additions. The term "annual additions" shall mean, the sum of
the following amounts credited to a Participant's Accounts for the
Limitation Year:
(i) Employer contributions;
(ii) Employee contributions;
(iii) Forfeitures; and
(iv) Amounts allocated after March 31, 1984, to an individual medical
account, as defined in Section 415(1)(2) of the Code, which is part of
a pension or annuity plan maintained by the Employer and amounts derived
from contributions paid or accrued after December 31, 1985, in taxable
years ending after such date, which are attributable to post-retirement
medical
- 46 -
benefits, allocated to the separate account of a key employee, as
defined in Section 4l9A(d) (3) of the Code, under a welfare benefit fund
as defined in Section 419(e) of the Code, maintained by the Employer.
Any excess amounts applied under subsections (b) and (c) below to reduce
Employer contributions are considered annual additions for such Limitation Year.
(b) Excessive Annual Additions. Prior to determining a Participant's
actual Compensation for a Limitation Year, the Employer may determine the
maximum permissible Annual Addition for the Participant on the basis of a
reasonable estimation of the Participant's Compensation for the Limitation
Year, uniformly determined for all Participants similarly situated. As soon
as is administratively feasible after the end of the Limitation Year, the
maximum permissible amount for the Limitation Year shall be determined on
the basis of the Participant's actual Compensation for the Limitation Year.
Any Excessive Annual Addition attributable to nondeductible voluntary
employee contributions made by a Participant to the extent they reduce the
excess amount shall be returned to the Participant before any other
adjustments are made.
If an excess amount still exists, and the Participant is covered by the Plan
at the end of the Limitation Year, the excess amount in the Participant's
Account shall be used to reduce Employer contributions (including any allocation
of forfeitures) for such Participant in the next Limitation Year, and each
succeeding Limitation Year, if necessary. If an excess amount still exists, and
the Participant is not covered by the Plan at the end of a Limitation Year, the
excess amount shall be held unallocated in a suspense account. The suspense
account shall be applied to reduce future Employer contributions for all
remaining Participants in the next Limitation Year, and each succeeding
Limitation Year, if necessary.
If a suspense account is in existence at any time during a particular
Limitation Year, all amounts in the suspense account must be allocated and
reallocated to Participants' Accounts before any Employer or any Employee
contributions may be made to the Plan for that Limitation Year. Excess amounts
may not be distributed to Participants or former Participants. If a suspense
account is in existence at any time during a Limitation Year, it shall not
participate in the allocation of the Trust's investment gains and losses.
(c) Participation in Certain Other Plans. If in addition to this Plan,
the Participant is covered under another qualified defined contribution
plan maintained by the Employer, a welfare benefit fund, as defined in
Section
- 47 -
419(e) of the code maintained by the Employer, or an individual medical account,
as defined in Section 415(1)(2) of the Code, maintained by the Employer, which
provides an Annual Addition during any Limitation Year, the annual additions
which may be credited to a Participant's account under this Plan for any such
Limitation Year shall not exceed the maximum permissible amount reduced by the
Annual Additions credited to a Participant's Account under the other plans and
welfare benefit funds for the same Limitation Year. If the Annual Additions with
respect to the Participant under other defined contribution plans and welfare
benefit funds maintained by the Employer are less than the maximum permissible
amount and the Employer contribution that would otherwise be contributed or
allocated to the Participant's Account under this Plan would cause the Annual
Additions for the Limitation Year to exceed this limitation, the amount
contributed or allocated shall be reduced so that the Annual Additions under all
such plans and funds for the Limitation Year shall equal the maximum permissible
amount. If the Annual Additions with respect to the Participant under such other
defined contribution plans and welfare benefit funds in the aggregate are equal
to or greater than the maximum permissible amount, no amount will be contributed
or allocated to the Participant's Account under this Plan for the Limitation
Year.
Prior to determining the Participant's actual Compensation for the Limitation
Year, the Employer may determine the maximum permissible amount for a
Participant in the manner described in subsection (b) above. As soon as is
administratively feasible after the end of the Limitation Year, the maximum
permissible amount for the Limitation Year shall be determined on the basis of
the Participant's actual Compensation for the Limitation Year.
If a Participant's Annual Additions under this Plan and such other plans would
result in an excess amount for a Limitation Year, the excess amount shall be
deemed to consist of the Annual Additions last allocated, except that Annual
Additions attributable to a welfare benefit fund or individual medical account
will be deemed to have been allocated first regardless of the actual allocation
date.
If the excess amount was allocated to a Participant on an allocation date of
this Plan which coincides with an allocation date of another plan, the excess
amount attributed to this Plan will be the product of:
(i) the total excess amount allocated as of such date, times
(ii) the ratio of (I) the Annual Additions allocated to the
Participant for the Limitation Year as of such date under this Plan to
(II) the total Annual Additions
- 48 -
allocated to the Participant for the Limitation Year as of such date
under this and all the other qualified defined contribution plans. Any
excess amount attributed to this Plan will be disposed in the manner
described in subsection (b), above
For purposes hereof, the excess amount is the excess of the Participant's
annual additions for the Limitation Year over the maximum permissible amount.
If the Employer maintains, or at any time maintained, a qualified defined
benefit plan covering any Participant in this Plan, the sum of the Participant's
defined benefit plan fraction and defined contribution plan fraction will not
exceed 1.0 in any Limitation Year.
(d) Combined Plan Limitation. In the event that a Participant in this Plan
participates in a defined benefit plan (as defined in the applicable sections of
the Code) maintained by the Employer, the sum of the "defined benefit plan
fraction" plus the "defined contribution plan fraction" shall at no time exceed
1.0. Except to the extent that applicable law permits greater amounts to be
provided on behalf of a Participant, in which event such law is hereby
incorporated by reference, the foregoing fractions are defined as follows. The
"defined benefit plan fraction" for any year is a fraction (i) the numerator of
which is the projected annual benefit of the Participant under all the defined
benefit plans (whether or not terminated) maintained by the Employer (determined
as of the close of the year), and (ii) the denominator of which is the lesser of
(A) the product of 1.25 multiplied by the dollar limitation determined for the
Limitation Year under Sections 415(b) and (d) of the Code, or (B) the product of
1.4 multiplied by one hundred (100%) percent of the Participant's average
compensation for the three (3) consecutive Years of Service with the Employer
that produces the highest average, including any adjustments under Section
415(b) of the Code. Notwithstanding the above, if the Participant was a
Participant as of the first day of the first Limitation Year beginning after
December 31, 1986, in one or more defined benefit plans maintained by the
Employer which were in existence on May 6, 1986, the denominator of this
fraction shall not be less than 125 percent of the sum of the annual benefits
under such plans which the Participant had accrued as of the close of the last
Limitation Year beginning before January 1, 1987, disregarding any changes in
the terms and conditions of the Plan after May 5, 1986. The preceding sentence
applies only if the defined benefit plans individually and in the aggregate
satisfied the requirements of Section 415 for all Limitation Years beginning
before January 1, 1987. The "defined contribution fraction" for any year is a
fraction (i) the numerator of which is the sum of
- 49 -
the annual additions to the Participant's accounts under all defined
contribution plans (whether or not terminated) maintained by the Employer for
the current and all prior Limitation Years, including the annual additions
attributable to the Participant's nondeductible employee contributions to all
defined benefit plans, whether or not terminated, maintained by the Employer,
and the annual additions attributable to all welfare benefit funds and
individual medical accounts (as defined in Sections 419(e) and 415(1) (2) of the
Code) maintained by the Employer, and (ii) the denominator of which is the sum
of the lesser of the following amounts determined for the current year and for
all prior limitation years of service with the Employer, regardless of whether a
defined contribution plan was maintained by the Employer: (A) the product of
1.25 multiplied by the dollar limitation determined under Sections 415(b) and
(d) of the Code in effect under Section 415(c) (1) (A) of the Code, or (B)
thirty--five (35%) percent of the Participant's compensation from the Employer
for such plan year. If the Employee was a Participant as of the end of the first
day of the first Limitation Year beginning after December 31, 1986, in one or
more defined contribution plans maintained by the Employer which were in
existence on May 6, 1986, the numerator of this fraction will be adjusted if the
sum of this fraction and the defined benefit fraction would otherwise exceed 1.0
under the terms of this Plan. Under the adjustment, an amount equal to the
product of (1) the excess of the sum of the fractions over 1.0 times (2) the
denominator of this fraction, shall be permanently subtracted from the numerator
of this fraction. The adjustment is calculated using the fractions as they would
be computed as of the end of the last Limitation Year beginning before January
1, 1987, and disregarding any changes in the terms and conditions of the Plan
made after May 5, 1986, but using the Section 415 limitation applicable to the
first Limitation Year beginning on or after January 1, 1987.
The annual addition for any Limitation Year beginning before January 1, 1987,
shall not be recomputed to treat all employee contributions as annual additions.
The projected annual benefits under a defined benefit plan is the annual
retirement benefit (adjusted to an actuarially equivalent straight life annuity
if such benefit is expressed in a form other than a straight life annuity) or
qualified joint and survivor annuity) to which the Participant would be entitled
under the terms of the Plan assuming the Participant continues employment until
normal retirement age under the plan (or current age, if later), and the
Participant's compensation for the current Limitation Year and all other
relevant factors used to determine benefits under the Plan remain constant for
all
- 50 -
future Limitation Years.
(e) Special Transition Rule for Defined Contribution Fraction. At the
election of the Plan Administrator, in applying the provisions of
subsection (d) above with respect to the defined contribution plan fraction
for any year ending after December 31, 1982, the amount taken into account
for the denominator for each Participant for all years ending before
January 1, 1983 shall be an amount equal to the product of the amount of
the denominator determined under subsection (d) above for the year ending
in 1982, multiplied by the "transition fraction". The "transition fraction"
is a fraction (i) the numerator of which is the lesser of (A) $51,875 or
(B) 1.4 multiplied by twenty-five (25%) percent of the Participant's
compensation for the year ending in 1981, and (ii) the denominator of which
is the lesser of (A) $41,500 or (B) twenty-five (25%) percent of the
Participant's compensation for the year ending in 1981.
(f) Special Transition Rule for Excess Benefits. Provided that the Plan
satisfied the requirements of Section 415 of the Code for the last Plan
Year beginning before January 1, 1983, an amount shall be subtracted from
the numerator of the defined contribution plan fraction (not exceeding such
numerator) so that the sum of the defined benefit plan fraction and the
defined contribution fraction computed in accordance with Section 415(e)(1)
of the Code (as amended by the Tax Equity and Fiscal Responsibility Act of
1982) does not exceed 1.0 for such year, in accordance with regulations
issued by the Secretary of the Treasury pursuant to the applicable
provisions of the Code.
(g) Employer. For purposes of this Section, employer shall mean the
Employer that adopts this Plan and all members of a group of employers
which constitutes a controlled group of corporations or trades or
businesses under common control (as defined in Sections 414(b) and (c) of
the Code, as modified by Section 415(h) of the Code), or an affiliated
service group (as defined in Section 414(m) of the Code) of which the
adopting employer is part and any other entity required to be aggregated
with the Employer under Section 414(o) of the Code and the regulations
issued thereunder.
(h) Compensation. For purposes of this Section, Compensation shall mean
all of a Participant's:
(i) Section 415 Safe-harbor Compensation. Wages, salaries and fees for
professional services and other amounts received for personal services
actually rendered in the course of employment for the Employer (including
but not limited to commissions paid salesmen, compensation for services on
the basis of a percentage of profits,
- 51 -
commissions on insurance premiums, tips, bonuses, fringe benefit, reimbursements
and expense allowances), but excluding:
(I) Employer contributions to a plan of deferred compensation which
are not includable in the Employee's gross income for the taxable year
in which contributed, or employer contributions under a simplified
employee pension plan to the extent such contributions are deductible by
the Employee or any distributions from a plan of deferred compensation;
(II) Amounts realized from the exercise of a non--qualified stock
option or when restricted stock or property held by the Employee is no
longer subject to a substantial risk of forfeiture or becomes freely
transferable.
(III) Amounts realized from the sale, exchange or other disposition of
stock acquired under an incentive stock option; and
(IV) Other amounts which received special tax benefits or
contributions made by the Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity described in
Section 403(b) of the Code (whether or not the amounts are actually
excludable from the gross income of the Employee).
For any self--employed individual, compensation shall mean earned income. For
limitation years beginning after December 31, 1991, for purposes of applying the
limitations of this Article, Compensation for a Limitation Year is the
Compensation actually paid or includable in gross income during such Limitation
Year.
(i) Short Limitation Year. If the Limitation Year is amended to a
different twelve (12) consecutive month period, the new Limitation Year
must begin within the Limitation Year in which the amendment is made. If a
short Limitation Year is created because of an amendment changing the
Limitation Year to a different twelve (12) consecutive month period, the
maximum annual addition shall not exceed the defined contribution dollar
limitation determined in accordance with Section 415(c) (1) (A) of the Code
then in effect multiplied by a fraction, the numerator of which is the
number of months in the short Limitation Year and the denominator of which
is twelve (12).
3.2.2 Controlled Businesses. If this plan provides contributions or benefits
for one or more owner-employees who control both the business for which this
plan is established and one or more other trades or businesses, this plan and
the plan
- 52 -
established for other trades or businesses must, when looked at as a single
plan, satisfy sections 401(a) and (d) for the employees of this and all other
trades or businesses.
If the plan provides contributions or benefits for one or more owner--
employees who control one or more other trades or businesses, the employees of
the other trades or businesses must be included in a plan which satisfies
sections 401(a) and (d) and which provides contributions and benefits not less
favorable than provided for owner--employees under this plan.
If an individual is covered as an owner--employee under the plans of two or
more trades or businesses which are not controlled and the individual controls a
trade or business, then the contributions or benefits of the employees under the
plan of the trades or businesses which are controlled must be as favorable as
those provided for him under the most favorable plan of the trade or business
which is not controlled.
For purposes of the preceding paragraphs, an owner--employee, or two or more
owner--employees, will be considered to control a trade or business if the
owner--employee, or two or more owner--employees together:
(a) own the entire interest in an unincorporated trade or business, or
(b) in the case of a partnership, own more than 50 percent of either the
capital interest or the profits interest in the partnership.
For purposes of the preceding sentence, an owner--employee, or two or more
owner--employees shall be treated as owning any interest in a partnership which
is owned, directly or indirectly, by a partnership which such owner--employee,
or such two or more owner--employees, are considered to control within the
meaning of the preceding sentence.
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ARTICLE III
FIDUCIARIES
3.3.1 Standard of Conduct. The duties and responsibilities of the Plan
Administrator and the Trustee with respect to the Plan shall be discharged (a)
in a non--discriminatory manner; (b) for the exclusive benefit of Participants
and their Beneficiaries; (c) by defraying the reasonable expenses of
administering the Plan; (d) with the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims; (e) by diversifying the investments of the
Plan so as to minimize the risk of large losses, unless under the circumstances
it is clearly prudent not to do so; and (f) in accordance with the documents and
instruments governing the Plan insofar as such documents and instruments are
consistent with the provisions of the Act.
3.3.2 Individual Fiduciaries. At any time that a group of individuals is
acting as Plan Administrator or Trustee, the number of such persons who shall
act in such capacity from time to time shall be determined by the Employer. Such
persons shall be appointed by the Employer and may or may not be Participants or
Employees of the Employer. Any action taken by a group of individuals acting as
either Plan Administrator or Trustee shall be taken at the direction of a
majority of such persons, or, if the number of such persons is two (2), by
unanimous consent.
3.3.3 Disqualification from Service. No person shall be permitted to serve as
a Fiduciary, custodian, counsel, agent or employee of the Plan or as a
consultant to the Plan who has been convicted of any of the criminal offenses
specified in the Act.
3.3.4 Bonding. Except as otherwise permitted by law, each Fiduciary or person
who handles funds or other property or assets of the Plan shall be bonded in
accordance with the requirements of the Act.
3.3.5 Prior Acts. No Fiduciary shall be liable for any acts occurring prior to
the period of time during which the Fiduciary was actually serving in such
capacity with respect to the Plan.
3.3.6 Insurance and Indemnity. The Employer may purchase or cause the Trustee
to purchase and keep current as an authorized expense liability insurance for
the Plan, its Fiduciaries, and any other person to whom any financial or other
administrative responsibility with respect to the Plan and Trust
- 54 -
is allocated or delegated, from and against any and all liabilities, costs and
expenses incurred by such persons as a result of any act or omission to act in
connection with the performance of the duties, responsibilities and obligations
under the Plan and under the Act; provided that any such insurance policy
purchased with Plan assets permits subrogation by the insurer against the
Fiduciary in the case of breach by such Fiduciary. Unless otherwise determined
and communicated to affected parties by the Employer, the Employer shall
indemnify and hold harmless each such person, other than a corporate trustee,
for and from any such liabilities, costs and expenses which are not covered by
any such insurance, except to the extent that any such liabilities, costs or
expenses are judicially determined to be due to the gross negligence or willful
misconduct of such person. No Plan assets may be used for any such
indemnification.
3.3.7 Expenses. Expenses incurred by the Plan Administrator or the Trustee in
the administration of the Plan and the Trust, including fees for legal services
rendered, such compensation to the Trustee as may be agreed upon in writing from
time to time between the Employer and the Trustee, and all other proper charges
and expenses of the Plan Administrator or the Trustee and of their agents and
counsel shall be paid by the Employer, or at its election at any time or from
time to time, may be charged against the assets of the Trust, but until so paid
shall constitute a charge upon the assets of the Trust. The Trustee shall have
the authority to charge the Trust Fund for its compensation and reasonable
expenses unless paid or contested by written notice by the Employer within sixty
(60) days after mailing of the written billing by the Trustee. All taxes of any
and all kinds whatsoever which may be levied or assessed under existing or
future laws upon the assets of the Trust or the income thereof shall be paid
from such assets. Notwithstanding the foregoing, no compensation shall be paid
to any Employee for services rendered under the Plan and Trust as a Trustee.
3.3.8 Agents, Accountants and Legal Counsel. The Plan Administrator shall have
authority to employ suitable agents, custodians, investment counsel, accountants
and legal counsel who may, but need not be, legal counsel for the Employer. The
Plan Administrator and the Trustee shall be fully protected in acting upon the
advice of such persons. The Trustee shall at no time be obliged to institute any
legal action or to become a party to any legal action unless the Trustee has
been indemnified to the Trustee's satisfaction for any fees, costs and expenses
to be incurred in connection therewith.
3.3.9 Investment Manager. The Employer may employ as an investment manager or
managers to manage all or any part of the Trust Fund any (i) investment advisor
registered under the Investment Advisors Act of 1940; (ii) bank as defined in
said
- 55 -
Act; or (iii) insurance company qualified to perform investment management
services in more than one state. Any investment manager shall have all powers of
the Trustee in the management of such part of the Trust Fund, including the
power to acquire or dispose of assets. In the event an investment manager is so
appointed, the Trustee shall not be liable for the acts or omissions of such
investment manager or be under any obligation to invest or otherwise manage that
part of the Trust Fund which is subject to the management of the investment
manager. The Employer shall notify the Trustee in writing of any appointment of
an investment manager, and shall provide the Trustee with the investment
manager's written acknowledgment that it is a fiduciary with respect to the
Plan.
3.3.10 Finality of Decisions or Acts. Except for the right of a Participant or
Beneficiary to appeal the denial of a claim, any decision or action of the Plan
Administrator or the Trustee made or done in good faith upon any matter within
the scope of authority and discretion of the Plan Administrator or the Trustee
shall be final and binding upon all persons. In the event of judicial review of
actions taken by any Fiduciary within the scope of his duties in accordance with
the terms of the Plan and Trust, such actions shall be upheld unless determined
to have been arbitrary and capricious.
3.3.11 Certain Custodial Accounts and Contracts. The term "Trustee" as used
herein will also include a person holding the assets of a custodial account, an
annuity contract or other contract which is treated as a qualified trust
pursuant to Section 401(f) of the Code and references to the Trust Fund shall be
construed to apply to such custodial account, annuity contract or other
contract.
- 56 -
ARTICLE IV
PLAN ADMINISTRATOR
3.4.1 Administration of Plan. The Plan Administrator shall be designated by
the Employer from time to time. The primary responsibility of the Plan
Administrator is to administer the Plan for the exclusive benefit of the
Participants and their Beneficiaries, subject to the specific terms of the Plan.
The Plan Administrator shall administer the Plan and shall construe and
determine all questions of interpretation or policy in a manner consistent with
the Plan. The Plan Administrator may correct any defect, supply any omission, or
reconcile any inconsistency in such manner and to such extent as he shall deem
necessary or advisable to carry out the purpose of the Plan; provided, however,
that any interpretation or construction shall be done in a nondiscriminatory
manner and shall be consistent with the intent that the Plan shall continue to
be a qualified Plan pursuant to the Code, and shall comply with the terms of the
Act. The Plan Administrator shall have all powers necessary or appropriate to
accomplish his duties under the Plan.
(a) The Plan Administrator shall be charged with the duties of the general
administration of the Plan, including but not limited to the following:
(1) To determine all questions relating to the eligibility of an
Employee to participate in the Plan or to remain a Participant hereunder.
(2) To compute, certify and direct the Trustee with respect to the
amount and kind of benefits to which any Participant shall be entitled
hereunder.
(3) To authorize and direct the Trustee with respect to all
disbursements from the Trust Fund.
(4) To maintain all the necessary records for the administration
of the Plan.
(5) To interpret the provisions of the Plan and to make and
publish rules and regulations for the Plan as the Plan Administrator may
deem reasonably necessary for the proper and efficient administration of
the Plan and consistent with its terms.
(6) To select the Insurer to provide any Life Insurance Policy to
be purchased for any Participant hereunder.
-57-
(7) To advise the Fiduciary with investment authority regarding the
short and long-term liquidity needs of the Plan in order that the Fiduciary
might direct its investment accordingly.
(8) To advise, counsel and assist any Participant regarding any
rights, benefits or elections available under the Plan.
(9) To instruct the Trustee as to the management, investment and
reinvestment of the Trust Fund unless the investment authority has been
delegated to the Trustee or an investment manager.
(b) The Plan Administrator shall also be responsible for preparing and
filing such annual disclosure reports and tax forms as may be required from
time to time by the Secretary of Labor, the Secretary of the Treasury or
other governmental authorities.
(c) Whenever it is determined by the Plan Administrator to be in the best
interest of the Plan and its Participants or Beneficiaries, the Plan
Administrator may request such variances, deferrals, extensions, or
exemptions or make such elections for the Plan as may be available under
the law.
(d) The Plan Administrator shall be responsible for procuring bonding for
all persons dealing with the Plan or its assets as may be required by law.
(e) In the event this Plan is required to file reports or pay premiums to
the Pension Benefit Guaranty Corporation, the Plan Administrator shall have
the duty to prepare and make such filings, to pay any premiums required,
whether for basic or contingent liability coverage, and shall be charged
with the responsibility of notifying all necessary parties of such events
and under such circumstances as may be required by law.
3.4.2 Disclosure Requirements. Every Participant covered under the Plan
and every Beneficiary receiving benefits under the Plan shall receive from the
Plan Administrator a summary plan description, and such other information as may
be required by law or by the terms of the Plan.
3.4.3 Information Generally Available. The Plan Administrator shall make
copies of this Plan and Trust, the summary plan description, latest annual
report, Life Insurance Policies, or other instruments under which the Plan was
established or is operated available for examination by any Participant or
Beneficiary in the principal office of the Plan Administrator and such other
locations as may be necessary to make such information reasonably accessible to
all interested
-58-
parties. Subject to a reasonable charge to defray the cost of furnishing such
copies, the Plan Administrator shall, upon written request of any Participant or
Beneficiary, furnish a copy of any of the above documents to the respective
party.
3.4.4 Statement of Accrued Benefit. Upon written request to the Plan
Administrator once during any twelve (12) month period, a Participant or
Beneficiary shall be furnished with a written statement, based on the latest
available information, of his then vested accrued benefit and the earliest date
upon which the same will become fully vested and nonforfeitable. The statement
shall also include a notice to the Participant of any benefits which are
forfeitable if the Participant dies before a certain date.
3.4.5 Explanation of Rollover Treatment. The Plan Administrator shall, when
making a distribution eligible for rollover treatment, provide a written
explanation to the recipient of the provisions under which such distribution
will not be subject to tax if transferred to an eligible retirement plan within
sixty (60) days after the date on which the recipient received the distribution
and, if applicable, the provisions of law pertaining to the tax treatment of
lump sum distributions.
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ARTICLE V
TRUSTEE
3.5.1 Acceptance of Trust. The Trustee, by joining in the execution of the
Plan, agrees to act in accordance with the express terms and conditions hereof.
3.5.2 Trustee Capacity - Co-Trustees. The Trustee may be a bank, trust
company or other corporation possessing trust powers under applicable state or
federal law or one or more individuals or any combination thereof. When there
are two or more Trustees, they may allocate specific responsibilities,
obligations or duties among themselves by their written agreement. An executed
copy of such written agreement shall be delivered to and retained by the Plan
Administrator.
3.5.3 Resignation, Removal, and Successors. Any Trustee may resign at
any time by delivering to the Employer a written notice of resignation to take
effect at a date specified therein, which shall not be less than thirty (30)
days after the delivery thereof; the Employer may waive such notice. The Trustee
may be removed by the Employer with or without cause, by tendering to the
Trustee a written notice of removal to take effect at a date specified therein.
Upon such removal or resignation of a Trustee, the Employer shall either appoint
a successor Trustee who shall have the same powers and duties as those conferred
upon the resigning or discharged Trustee, or, if a group of individuals is
acting as Trustee, determine that a successor shall not be appointed and the
number of Trustees shall be reduced by one (1).
3.5.4 Consultations. The Trustee shall be entitled to advice of counsel,
which may be counsel for the Plan or the Employer, in any case in which the
Trustee shall deem such advice necessary. The Trustee shall not be liable for
any action taken or omitted in good faith reliance upon the advice of such
counsel. With the exception of those powers and duties specifically allocated to
the Trustee by the express terms of the Plan, it shall not be the responsibility
of the Trustee to interpret the terms of the Plan and the Trustee may request,
and is entitled to receive, guidance and written direction from the Plan
Administrator on any point requiring construction or interpretation of the Plan
documents.
3.5.5 Rights, Powers and Duties. The rights, powers and duties of the Trustee
shall be as follows:
(a) The Trustee shall be responsible for the safekeeping of the assets
of the Trust Fund in accordance with the provisions of the Plan and any
amendments hereto. The duties
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of the Trustee under the Plan shall be determined solely by the express
provisions hereof and no other further duties or responsibilities shall be
implied. Subject to the terms of this Plan, the Trustee shall be fully protected
and shall incur no liability in acting in reliance upon the written instructions
or directions of the Employer, the Plan Administrator, a duly designated
investment manager, or any other named Fiduciary.
(b) The Trustee shall have all powers necessary or convenient for the orderly
and efficient performance of its duties hereunder, including but not limited to
those specified in this Section. The Trustee shall have the power generally to
do all acts, whether or not expressly authorized, which the Trustee in the
exercise of its fiduciary responsibility may deem necessary or desirable for the
protection of the Trust Fund and the assets thereof.
(c) The Trustee shall have the power to collect and receive any and all
monies and other property due hereunder and to give full discharge and release
therefore; to settle, compromise or submit to arbitration any claims, debts or
damages due to or owing to or from the Trust Fund; to commence or defend suits
or legal proceedings wherever, in the Trustee's judgment, any interest of the
Trust Fund requires it; and to represent the Trust Fund in all suits or legal
proceedings in any court of law or equity or before any other body or tribunal.
(d) The Trustee shall cause any Life Insurance Policies or assets of the
Trust Fund to be registered in its name as Trustee and shall be authorized to
exercise any and all ownership rights regarding these assets, subject to the
terms of the Plan.
(e) The Trustee may temporarily hold cash balances and shall be entitled to
deposit any funds received in a bank account in the name of the Trust Fund in
any bank selected by the Trustee, including the banking department of a
corporate Trustee, if any, pending disposition of such funds in accordance with
the Plan. Any such deposit may be made with or without interest.
(f) The Trustee shall pay the premiums and other charges due and payable at
any time on any Life Insurance Policies as it may be directed by the Plan
Administrator, provided funds for such payments are then available in the Trust.
The Trustee shall be responsible only for such funds and Life Insurance Policies
as shall actually be received by it as Trustee hereunder, and shall have no
obligation to make payments other than from such funds and cash values of Life
Insurance Policies.
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(g) If the whole or any part of the Trust Fund shall become liable for the
payment of any estate, inheritance, income or other tax which the Trustee shall
be required to pay, the Trustee shall have full power and authority to pay such
tax out of any monies or other property in its hands for the account of the
person whose interest hereunder is so liable. Prior to making any payment, the
Trustee may require such releases or other documents from any lawful taxing
authority as it shall deem necessary. The Trustee shall not be liable for any
nonpayment of tax when it distributes an interest hereunder on instructions from
the Plan Administrator.
(h) The Trustee shall keep a full, accurate and detailed record of all
transactions of the Trust which the Employer and the Plan Administrator shall
have the right to examine at any time during the Trustee's regular business
hours. As of the close of each Plan Year, the Trustee shall furnish the Plan
Administrator with a statement of account setting forth all receipts,
disbursements and other transactions effected by the Trustee during the year.
The Plan Administrator shall promptly notify the Trustee in writing of his
approval or disapproval of the account. The Plan Administrator's failure to
disapprove the account within sixty (60) days after receipt shall be considered
an approval. Except as otherwise required by law, the approval by the Plan
Administrator shall be binding as to all matters embraced in any statement to
the same extent as if the account of the Trustee had been settled by judgment or
decree of a court of competent jurisdiction under which the Trustee, Employer
and all persons having or claiming any interest in the Trust Fund were parties;
provided, however, that the Trustee may have its account judicially settled if
it so desires.
(i) The Trustee is hereby authorized to execute all necessary receipts and
releases to any parties concerned; and shall be under a duty, upon being advised
by the Plan Administrator that the proceeds of any Life Insurance Policies are
payable, to give reasonable assistance to the Beneficiary designated therein in
collecting such sums as may appear to be due.
(j) If, at any time, as the result of the death of the Participant there
shall be a dispute as to the person to whom payment or delivery of monies or
property should be made by the Trustee, or regarding any action to be taken by
the Trustee, the Trustee may postpone such payment, delivery or action,
retaining the funds or property involved, until such dispute shall have been
resolved in a court of competent jurisdiction or the Trustee shall have been
indemnified to its satisfaction or until it has received written direction from
the Plan Administrator.
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(k) Anything in this instrument to the contrary notwithstanding, the Trustee
shall have no duty or responsibility with respect to the determination of
matters pertaining to the eligibility of any Employee to become or remain a
Participant hereunder, the amount of benefit to which any Participant or
Beneficiary shall be entitled hereunder, or the size and type of any Life
Insurance Policy to be purchased from any Insurer for any Participant hereunder;
all such responsibilities being vested in the Plan Administrator.
3.5.6 Trustee Indemnification. The Employer shall indemnify and hold
harmless the Trustee for and from the assertion or occurrence of any liability
to a Participant or Beneficiary for any action taken or omitted by the Trustee
pursuant to any written direction to the Trustee from the Employer or the Plan
Administrator. Such indemnification obligation of the Employer shall not be
applicable to the extent that any such liability is covered by insurance.
3.5.7 Changes in Trustee Authority. If a successor Trustee is
appointed, neither an Insurer nor any other person who has previously had
dealings with the Trustee shall be chargeable with knowledge of such appointment
or such change until furnished with notice thereof. Until such notice, the
Insurer and any other such party shall be fully protected in relying on any
action taken or signature presented which would have been proper in accordance
with that information previously received.
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ARTICLE VI
TRUST ASSETS
3.6.1 Trustee Exclusive Owner. All assets held by the Trustee, whether in the
Trust Fund or Segregated Funds, shall be owned exclusively by the Trustee and no
Participant or Beneficiary shall have any individual ownership thereof.
Participants and their Beneficiaries shall share in the assets of the Trust, its
net earnings, profits and losses, only as provided in this Plan.
3.6.2 Investments. The Trustee shall invest and reinvest the Trust Fund
without distinction between income or principal in one or more of the following
ways as the Trustee shall from time to time determine:
(a) The Trustee may invest the Trust Fund or any portion thereof in
obligations issued or guaranteed by the United States of America or of any
instrumentalities thereof, or in other bonds, notes, debentures, mortgages,
preferred or common stocks, options to buy or sell stocks or other securities,
mutual fund shares, limited partnership interests, commodities, or in such
other property, real or personal, as the Trustee shall determine.
(b) The Trustee may cause the Trust Fund or any portion thereof to be
invested in a common trust fund established and maintained by a national bank
for the collective investment of fiduciary funds, providing such common trust
fund is a qualified trust under the applicable section of the Code, or
corresponding provisions of future federal internal revenue laws and is exempt
from income tax under the applicable section of the Code. In the event any
assets of the Trust Fund are invested in such a common trust fund, the
Declaration of Trust creating such common trust fund, as it may be amended
from time to time, shall be incorporated into this Plan by reference and made
a part hereof.
(c) The Trustee may deposit any portion of the Trust Fund in savings
accounts in federally insured banks or savings and loan associations or invest
in certificates of deposit issued by any such bank or savings and loan
association. The Trustee may, without liability for interest, retain any
portion of the Trust Fund in cash balances pending investment thereof or
payment of expenses.
(d) The Trustee may buy and sell put and call options, covered or
uncovered, engage in spreads, straddles, ratio writing and other forms of
options trading, including sales of options against convertible bonds, and
sales of Standard & Poor futures contracts, and trade in and maintain a
brokerage account on a cash or margin basis.
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(e) The Trustee may invest any portion or all of the assets of the Trust Fund
which are attributable to the vested and nonforfeitable interest in the Accounts
of a Participant in the purchase of group or individual Life Insurance Policies
issued on the life of and for the benefit of the Participant with the consent of
the Participant, subject to the following conditions:
(i) The aggregate premiums paid for ordinary whole Life Insurance
Policies with both nondecreasing death benefits and nonincreasing premiums
on the life of any Participant shall not at any time exceed forty-nine
percent (49%) of the aggregate amount of Employer contributions which have
been allocated to the Accounts of such Participant.
(ii) The aggregate Premiums paid for Life Insurance Policies on the
life of any Participant which are either term, universal or any other
contracts which are not ordinary whole life Policies shall not at any time
exceed twenty-five percent (25%) of the aggregate amount of Employer
contributions which have been allocated to the Accounts of such
Participant.
(iii) The sum of one-half of the aggregate premiums for ordinary whole
Life Insurance Policies and all premiums for other Life Insurance Policies
shall not at any time exceed twenty-five percent (25%) of the aggregate
amount of Employer contributions which have been allocated to the Accounts
of such Participant.
(iv) If the Plan permits distributions to a Participant prior to his
termination of employment in accordance with Section 2.5.5 and the Plan
does not take into account contributions to provide Social Security
Benefits in the allocation of Employer contributions, the amount which may
be distributed to the Participant may be applied to the parties of Life
Insurance Policies.
(f) The Trustee may invest the Trust Fund or any portion thereof to acquire
or hold Qualifying Employer Securities or Real Property, provided that the
portion so invested shall not exceed the amount allowed as an investment under
the Act.
3.6.3 Administration of Trust Assets. Subject to the limitations herein
expressly set forth, the Trustee shall have the following powers and authority
in connection with the administration of the assets of the Trust:
(a) To hold and administer all contributions made by the
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Employer to the Trust Fund and all income or other property derived therefrom as
a single Trust Fund, except as otherwise provided in the Plan.
(b) To manage, control, sell, convey, exchange, petition, divide, subdivide,
improve, repair, grant options, sell upon deferred payments, lease without limit
as determined for any purpose, compromise, arbitrate or otherwise settle claims
in favor of or against the Trust Fund, institute, compromise and defend actions
and proceedings, and to take any other action necessary or desirable in
connection with the administration of the Trust Fund.
(c) To vote any stock, bonds, or other securities of any corporation or other
issuer; otherwise consent to or request any action on the part of any such
corporation or other issuer; to give general or special proxies or powers of
attorney, with or without power of substitution; to participate in any
reorganization, recapitalization, consolidation, merger or similar transaction
with respect to such securities; to deposit such stocks or other securities in
any voting trusts, or with any protective or like committee, or with the
trustee, or with the depositories designated thereby; to exercise any
subscription rights and conversion privileges or other options and to make any
payments incidental thereto; and generally to do all such acts, execute all such
instruments, take all such proceedings and exercise all such rights, powers and
privileges with respect to the stock or other securities or property
constituting the Trust Fund as if the Trustee were the absolute owner thereof.
(d) To apply for and procure, at the election of any Participant, Life
Insurance Policies on the life of the Participant; to exercise whatever rights
and privileges may be granted to the Trustee under such Policies, and to cash
in, receive and collect such Policies or the proceeds therefrom as and when
entitled to do so under the provisions thereof;
(e) To make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be necessary
or appropriate to carry out the powers herein granted;
(f) To register any investment held in the Trust in the Trustee's own name or
in the name of a nominee and to hold any investment in bearer form, but the
books and records of the Trustee shall at all times show that all such
investments are part of the Trust;
(g) To borrow money for the purposes of the Plan in such
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amounts and upon such terms and conditions as the Trustee deems appropriate;
(h) To commingle the assets of the Trust Fund with the assets of other
similar trusts which are exempt from income tax, whether sponsored by the
Employer, an affiliate of the Employer or an unrelated employer, provided that
the books and records of the Trustee shall at all times show the portion of the
commingled assets which are part of the Trust; and
(i) To do all acts whether or not expressly authorized which the Trustee may
deem necessary or proper for the protection of the property held hereunder.
3.6.4 Segregated Funds. Unless otherwise determined by the Trustee to be
prudent, the Trustee shall invest and reinvest each Segregated Fund without
distinction between income or principal in one or more appropriately identified
interest-bearing accounts or certificates of deposit in the name of the Trustee
and subject solely to the dominion of the Trustee in a banking institution
(which may or may not be the Trustee, if the Trustee is a banking institution)
or savings and loan association. Any such account or certificate shall bear
interest at a rate not less than the rate of interest currently being paid upon
regular savings accounts by that banking corporation principally situated in the
community in which the Employer has its principal business location, which has
capital, surplus and undivided profits exceeding those of any other bank so
situated. Such accounts shall be held for the benefit of the Participant for
whom such Segregated Fund is established in accordance with the terms of the
Plan and the Segregated Account of the Participant shall be credited with any
interest earned in connection with such accounts. If the Trustee determines that
an alternative investment is appropriate, the Trustee may invest the Segregated
Fund in any manner permitted with respect to the Trust Fund and such Segregated
Fund shall be credited with the net income or loss or net appreciation or
depreciation in value of such investments. No Segregated Fund shall share in any
Employer contributions or forfeitures, any net income or loss from, or net
appreciation or depreciation in value of, any investments of the Trust Fund, or
any allocation for which provision is made in this Plan which is not
specifically attributable to the Segregated Fund.
3.6.5 Investment Control Option. Participants may not control their
investments.
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ARTICLE VII
LOANS
3.7.1 Authorization. Loans to Participants or Beneficiaries are not permitted
under this plan.
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ARTICLE VIII
BENEFICIARIES
3.8.1 Designation of Beneficiaries. Each Participant shall have the right to
designate a Beneficiary or Beneficiaries and contingent or successive
Beneficiaries to receive any benefits provided by this Plan which become payable
upon the Participant's death. The Beneficiaries may be changed at any time or
times by the filing of a new designation with the Plan Administrator, and the
most recent designation shall govern. Notwithstanding the foregoing and subject
to the provisions of Section 2.5.2, the designated Beneficiary shall be the
surviving spouse of the Participant, unless such surviving spouse consents in
writing to an alternate designation and the terms of such consent acknowledge
the effect of such alternate designation and the consent is witnessed by a
representative of the Plan or by a notary public. A spouse may not revoke the
consent without the approval of the Participant. The designation of a
Beneficiary other than the spouse of the Participant or a form of benefits with
the consent of such spouse may not be changed without the consent of such spouse
and any consent must acknowledge the specific non--spouse Beneficiary, including
any class of Beneficiaries or any contingent Beneficiaries.
3.8.2 Absence or Death of Beneficiaries. Except with respect to the process
of life insurance payable upon the death of the Participant, if a Participant
dies without having a beneficiary designation then in force, or if all of the
Beneficiaries designated by a Participant predecease him, his Beneficiary shall
be his surviving spouse, or if none, his surviving children, equally, or if
none, such other heirs, or the executor or administrator of his estate, as the
Plan Administrator shall select.
If a Participant dies survived by Beneficiaries designated by him and if all
such surviving Beneficiaries thereafter dies before complete distribution of
such deceased Participant's interest, the estate of the last of such designated
Beneficiaries to survive shall be deemed to be the Beneficiary of the
undistributed portion of such interest.
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ARTICLE IX
CLAIMS
3.9.1 Claim Procedure. Any Participant or Beneficiary who is entitled to a
payment of a benefit for which provision is made in this Plan shall file a
written claim with the Plan Administrator on such forms as shall be furnished to
him by the Plan Administrator and shall furnish such evidence of entitlement to
benefits as the Plan Administrator may reasonably require. The Plan
Administrator shall notify the Participant or Beneficiary in writing as to the
amount of benefit to which he is entitled, the duration of such benefit, the
time the benefit is to commence and other pertinent information concerning his
benefit. If a claim for benefit is denied by the Plan Administrator, in whole or
in part, the Plan Administrator shall provide adequate notice in writing to the
Participant or Beneficiary whose claim for benefit has been denied within ninety
(90) days after receipt of the claim unless special circumstances require an
extension of time for processing the claim. If such an extension of time for
processing is required, written notice indicating the special circumstances and
the date by which a final decision is expected to be rendered shall be furnished
to the Participant or Beneficiary. In no event shall the period of extension
exceed one hundred eighty (180) days after receipt of the claim. The notice of
denial of the claim shall set forth (a) the specific reason or reasons for the
denial; (b) specific reference to pertinent Plan provisions on which the denial
is based; (c) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why such material or
information is necessary; and (d) a statement that any appeal of the denial must
be made by giving to the Plan Administrator, within sixty (60) days after
receipt of the notice of the denial, written notice of such appeal, such notice
to include a full description of the pertinent issues and basis of the claim.
The Participant or Beneficiary (or his duly authorized representative) may
review pertinent documents and submit issues and comments in writing to the Plan
Administrator. If the Participant or Beneficiary fails to appeal such action to
the Plan Administrator in writing within the prescribed period of time, the Plan
Administrator's adverse determination shall be final, binding and conclusive.
3.9.2 Appeal. If the Plan Administrator receives from a Participant or a
Beneficiary, within the prescribed period of time, a notice of an appeal of the
denial of a claim for benefit, such notice and all relevant materials shall
immediately be submitted to the Employer. The Employer may hold a hearing or
otherwise ascertain such facts as it deems necessary and shall render a decision
which shall be binding upon both parties.
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The decision of the Employer shall be made within sixty (60) days after the
receipt by the Plan Administrator of the notice of appeal, unless special
circumstances require an extension of time for processing, in which case a
decision of the Employer shall be rendered as soon as possible but not later
than one hundred twenty (120) days after receipt of the request for review. If
such an extension of time is required, written notice of the extension shall be
furnished to the claimant prior to the commencement of the extension. The
decision of the Employer shall be in writing, shall include specific reasons for
the decision, written in a manner calculated to be understood by the claimant,
as well as specific references to the pertinent Plan provisions on which the
decision is based and shall be promptly furnished to the claimant.
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ARTICLE X
AMENDMENT AND TERMINATION
3.10.1 Right to Amend. The Employer may at any time or times amend the Plan
and Trust, in whole or in part. The Employer specifically reserves the right to
amend the Plan retroactively.
3.10.2 Manner of Amending. Each amendment of this Plan shall be made by
delivery to the Trustee of a copy of the resolution of the Employer which sets
forth such amendment.
3.10.3 Limitations On Amendments. No amendment shall be made to this Plan
which shall:
(a) Directly or indirectly operate to give the Employer any interest
whatsoever in the assets of the Trust or to deprive any Participant or
Beneficiary of his vested and nonforfeitable interest in the assets of the Trust
as then constituted, or cause any part of the income or corpus of the Trust to
be used for, or diverted to purposes other than the exclusive benefit of
Employees or their Beneficiaries;
(b) Increase the duties or liabilities of the Trustee without the Trustee's
prior written consent;
(c) Change the vesting schedule under the Plan if the nonforfeitable
percentage of the accrued benefit derived from Employer contributions
(determined as of the later of the date such amendment is adopted or the date
such amendment becomes effective) of any Participant is less than such
nonforfeitable percentage computed without regard to such amendment; or
(d) Reduce the accrued benefit of a Participant within the meaning of Section
411(d) (6) of the Code, except to the extent permitted under Section 412 (c) (8)
of the Code. An amendment which has the effect of decreasing a Participant's
account balance or eliminating an optional form of benefit with respect to
benefits attributable to service before the amendment shall be treated as
reducing an accrued benefit.
If a Plan amendment changes the vesting schedule or the Plan is amended in any
way that directly or indirectly affects the computation of the Participant's
nonforfeitable percentage, each Participant who has completed three (3) or, in
the case of Participants who do not have at least one (1) Hour of Service in any
Plan Year beginning after 1988, five (5) or more Years of Service may elect
within a reasonable period after the adoption of such amendment to have his
nonforfeitable percentage computed without regard to such amendment or change.
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The period during which the amendment may be made shall commence with the date
the amendment is adopted or deemed to be made and shall end on the latest of
sixty (60) days after:
(i) the amendment is adopted;
(ii) the amendment becomes effective; or
(iii) the Participant is issued written notice of the amendment by the
Employer or Plan Administrator.
3.10.4 Voluntary Termination. The Employer may terminate the Plan at any time
by delivering to the Trustee an instrument in writing which designates such
termination. Following termination of the Plan, the Trust will continue until
the Distributable Benefit of each Participant has been distributed.
3.10.5 Involuntary Termination. The Plan shall terminate if (a) the Employer
is dissolved or adjudicated bankrupt or insolvent in appropriate proceedings, or
if a general assignment is made by the Employer for the benefit of creditors, or
(b) the Employer loses its identity by consolidation or merger into one or more
corporations or organizations, unless within ninety (90) days after such
consolidation or merger, such corporations or organizations elect to continue
the Plan.
3.10.6 Withdrawal By Employer. The Employer may withdraw from participation
under the Plan without terminating the Trust upon making a transfer of the Trust
assets to another Plan which shall be deemed to constitute an amendment in its
entirety of the Trust.
3.10.7 Powers Pending Final Distribution. Until final distribution of the
assets of the Trust, the Plan Administrator and Trustee shall continue to have
all the powers provided under this Plan as are necessary for the orderly
administration, liquidation and distribution of the assets of the Trust.
3.10.8 Delegation. Each Affiliate Employer expressly delegates authority to
the Employer the right to amend any part of the Plan on its behalf. The Employer
shall submit a copy of the amendment to each Affiliate Employer who has adopted
the Plan. The Affiliate Employer may revoke the authority of the Employer to
amend the Plan on its behalf by written notice to the Employer of such
revocation.
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ARTICLE XI
PORTABILITY
3.11.1 Continuance by Successor. In the event of the dissolution,
consolidation or merger of the Employer, or the sale by the Employer of its
assets, the resulting successor person or persons, firm or corporations may
continue this Plan by (a) adopting the Plan by appropriate resolution; (b)
appointing a new Trustee as though the Trustee (including all members of a group
of individuals acting as Trustee) had resigned; and (c) executing a proper
agreement with the new Trustee. In such event, each Participant in this Plan
shall have an interest in the Plan after the dissolution, consolidation, merger,
or sale of assets, at least equal to the interest which he had in the Plan
immediately before the dissolution, consolidation, merger or sale of assets. Any
Participants who do not accept a position with such successor within a
reasonable time shall be deemed to be terminated. If, within ninety (90) days
from the effective date of such dissolution, consolidation, merger, or sale of
assets, such successor does not adopt this Plan, as provided herein, the Plan
shall automatically be terminated and deemed to be an involuntary termination.
3.11.2 Merger With Other Plan. In the event of the merger or consolidation
with, or transfer of assets or liabilities to, any other deferred compensation
plan and trust, each Participant shall have an interest in such other plan which
is equal to or greater than the interest which he had in this Plan immediately
before such merger, consolidation or transfer, and if such other plan thereafter
terminates, each Participant shall be entitled to a Distributable Benefit which
is equal to or greater than the Distributable Benefit to which he would have
been entitled immediately before such merger, consolidation or transfer if this
Plan had then been terminated.
3.11.3 Transfer From Other Plans. The Employer may cause all or any of the
assets held in connection with any other plan or trust which is maintained by
the Employer for the benefit of its employees and satisfies the applicable
requirements of the Code relating to qualified plans and trusts to be
transferred to the Trustee, whether such transfer is made pursuant to a merger
or consolidation of this Plan with such other plan or trust or for any other
allowable purpose.
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In addition, the Employer, may permit rollover to the Trustee of assets held for
the benefit of an Employee in a conduit Individual Retirement Account, a
terminated plan of the Employer, or any other plan or trust which is maintained
by some other employer for the benefit of its employees and satisfies the
applicable requirements of the Code relating to qualified plans and trusts
provided the employee has satisfied the conditions for participation in the
Plan. Any such assets so transferred to the Trustee shall be accompanied by
written instructions from the employer, or the trustee, custodian or individual
holding such assets, setting forth the name of each Employee for whose benefit
such assets have been transferred and showing separately the respective
contributions by the employer and by the Employee and the current value of the
assets attributable thereto. Upon receipt by the Trustee of such assets, the
Trustee shall place such assets in a Segregated Fund for the Participant and the
Employee shall be deemed to be one hundred percent (100%) vested and have a
nonforfeitable interest in any such assets. Notwithstanding any provisions
herein to the contrary, unless the Plan provides a life annuity distribution
option or the Participant and his spouse have signed a written waiver of their
rights to the annuity options in a form which satisfies the waiver requirements
of Section 417 of the Code, the Plan shall not be a direct or indirect
transferee of a defined benefit pension plan, money purchase pension plan,
target benefit pension plan, stock bonus or profit sharing plan which is subject
to the survivor annuity requirements of Section 401(a)(11) and Section 417 of
the Code.
3.11.4 Transfer to Other Plans. The Trustee, upon written direction by the
Employer, shall transfer some or all of the assets held under the Trust to
another plan or trust of the Employer meeting the requirements of the Code
relating to qualified plans and trusts, whether such transfer is made pursuant
to a merger or consolidation of this Plan with such other plan or trust or for
any other allowable purpose. In addition, upon the termination of employment of
any Participant and receipt by the Plan Administrator of a request in writing,
the Participant may request that any distribution from the Trust to which he is
entitled shall be transferred to an Individual Retirement Account, an Individual
Retirement Annuity, or any other plan or trust which is maintained by some other
employer for the benefit of its employees and satisfies the applicable
requirements of the Code relating to qualified plans and trusts. Upon receipt of
any such written request, the Plan Administrator shall cause the Trustee to
transfer the assets so directed and, as appropriate, shall direct the Insurer to
transfer to the new trustee any applicable insurance policies issued by it.
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ARTICLE XII
MISCELLANEOUS
3.12.1 No Reversion to Employer. Except as specifically provided in the Plan,
no part of the corpus or income of the Trust shall revert to the Employer or be
used for, or diverted to purposes other than for the exclusive benefit of
Participants and their Beneficiaries.
3.12.2 Employer Actions. Any action by the Employer pursuant to the
provisions of the Plan shall be evidenced by appropriate resolution or by
written instrument executed by any person authorized by the Employer to take
such action.
3.12.3 Execution of Receipts and Releases. Any payment to any person eligible
to receive benefits under this Plan, in accordance with the provisions of the
Plan, shall, to the extent thereof, be in full satisfaction of all claims
hereunder. The Plan Administrator may require such person, as a condition
precedent to such payment, to execute a receipt and release therefore in such
form as he shall determine.
3.12.4 Rights of Participants Limited. Neither the creation of this Plan and
Trust nor anything contained in the Plan shall be construed as giving any
Participant, Beneficiary or Employee any equity or other interest in the assets,
business or affairs of the Employer, or the right to complain about any action
taken by or about any policy adopted or pursued by, the Employer, or as giving
any Employee the right to be retained in the service of the Employer; and all
Employees shall remain subject to discharge to the same extent as if the Plan
had never been executed. Prior to the time that distributions are made in
conformity with the provisions of the Plan, neither the Participants, nor their
spouses, Beneficiaries, heirs-at-law, or legal representatives shall receive
or be entitled to receive cash or any other thing of current exchangeable value,
from either the Employer or the Trustee as a result of the Plan or the Trust.
3.12.5 Persons Dealing With Trustee Protected. No person dealing with the
Trustee shall be required or entitled to see to the application of any money
paid or property delivered to the Trustee, or determine whether or not the
Trustee is acting pursuant to the authorities granted to the Trustee hereunder
or to authorizations or directions herein required. The certificate of the
Trustee that the Trustee is acting in accordance with the Plan shall protect any
person relying thereon.
3.12.6 Protection of Insurer. An Insurer shall not be responsible for the
validity of the Plan or Trust and shall have no responsibility for action taken
or not taken by the Trustee, for determining the propriety of accepting premium
payments or
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other contributions, for making payments in accordance with the direction of the
Trustee, or for the application of such payments. The Insurer shall be fully
protected in dealing with any representative of the Employer or any one of a
group of individuals acting as Trustee. Until written notice of a change of
Trustee has been received by an Insurer at its home office, the Insurer shall be
fully protected in dealing with any party acting as Trustee according to the
latest information received by the Insurer at its home office.
3.12.7 No Responsibility for Act of Insurer. Neither the Employer, the Plan
Administrator nor the Trustee shall be responsible for any of the following, nor
shall they be liable for instituting action in connection with:
(a) The validity of policies or policy provisions;
(b) Failure or refusal by the Insurer to provide benefits under a policy;
(C) An act by a person which may render a policy invalid or unenforceable;
or
(d) Inability to perform or delay in performing an act, which inability or
delay is occasioned by a provision of a policy or a restriction imposed by
the Insurer.
3.12.8 Inalienability. The right of any Participant or his Beneficiary in any
distribution hereunder or to any separate Account shall not be subject to
alienation, assignment or transfer, voluntarily or involuntarily, by operation
of law or otherwise, except as may be expressly permitted herein. No Participant
shall assign, transfer, or dispose of such right nor shall any such right be
subjected to attachment, execution, garnishment, sequestration, or other legal,
equitable, or other process. The preceding shall also apply to the creation,
assignment, or recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order, unless such order is
determined to be a qualified domestic relations order, as defined in Section
414(p) of the Code, or any domestic relations order entered before January 1,
1985.
In the event a Participant's benefits are attached by order of any court, the
Plan Administrator may bring an action for a declaratory judgment in a court of
competent jurisdiction to determine the proper recipient of the benefits to be
paid by the Plan. During the pendency of the action, the Plan Administrator
shall cause any benefits payable to be paid to the court for distribution by the
court as it considers appropriate.
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3.12.9 Domestic Relations Orders. The Plan Administrator shall adhere to the
terms of any judgment, decree or order (including approval of a property
settlement agreement) which relates to the provision of child support, alimony
payments, or marital property rights to a spouse, former spouse, child or other
dependent of a Participant and is made pursuant to a state domestic relations
law (including a community property law) and which creates or recognizes the
existence of an alternate payee's right to, or assigns to an alternate payee the
right to, receive all or a portion of the benefits payable with respect to a
Participant.
Any such domestic relations order must clearly specify the name and last known
mailing address of the Participant and the name and mailing address of each
alternate payee covered by the order, the amount or percentage of the
Participant's benefit to be paid by the Plan to each such alternate payee, or
the manner in which such amount or percentage is to be determined, the number of
payments or period to which such order applies, and each plan to which such
order applies.
Any such domestic relations order shall not require the Plan to provide any
type or form of benefit, or any option not otherwise provided under the Plan, to
provide increased benefits (determined on the basis of actuarial value) or the
payment of benefits to an alternate payee which are required to be paid to
another alternate payee under another order previously determined to be a
qualified domestic relations order.
Notwithstanding the foregoing sentence, a domestic relations order may require
the payment of benefits to an alternate payee before the Participant has
separated from service on or after the date on which the Participant attains or
would have attained the earliest retirement age under the Plan as if the
Participant had retired on the date on which such payment is to begin under such
order (but taking into account only the present value of the benefits actually
accrued and not taking into account the present value of any Employer subsidy
for early retirement) and in any form in which such benefits may be paid under
the Plan to the Participant (other than the form of a joint and survivor annuity
with respect to the alternate payee and his or her subsequent spouse). The
interest rate assumption used in determining the present value shall be five
(5%) percent. For these purposes, the earliest retirement age under the Plan
means the earlier of: (a) the date on which the Participant is entitled to a
distribution under the Plan, or (b) the later of the date the Participant
attains age 50, or the earliest date on which the Participant could begin
receiving benefits under the Plan if the Participant separated from service.
Distributions may be made to an alternate payee even though the Participant may
not receive a distribution because he
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continues to be employed by the Employer.
To the extent provided in the qualified domestic relations order, the former
spouse of a Participant shall be treated as a surviving spouse of such
Participant for purposes of Sections 401(a) (11) and 417 of the Code (and any
spouse of the Participant shall not be treated as a spouse of the Participant
for such purposes) and if married for at least one (1) year, the surviving
former spouse shall be treated as meeting the requirements of Section 417(d) of
the Code.
The Plan Administrator shall promptly notify the Participant and each
alternate payee of the receipt of a domestic relations order by the Plan and the
Plan's procedures for determining the qualified status of domestic relations
orders. Within a reasonable period after receipt of a domestic relations order,
the Plan Administrator shall determine whether such order is a qualified
domestic relations order and shall notify the Participant and each alternate
payee of such determination. If the Participant or any affected alternate payee
disagrees with the determinations of the Plan Administrator, the disagreeing
party shall be treated as a claimant and the claims procedure of the Plan shall
be followed. The Plan Administrator may bring an action for a declaratory
judgment in a court of competent jurisdiction to determine the proper recipient
of the benefits to be paid by the Plan.
During any period in which the issue of whether a domestic relations order is
a qualified domestic relations order is being determined (by the Plan
Administrator, by a court of competent jurisdiction or otherwise), the Plan
Administrator shall separately account for the amounts which would have been
payable to the alternate payee during such period if the order had been
determined to be a qualified domestic relations order. If, within the eighteen
(18) month period beginning on the date on which the first payment would be
required to be made under the domestic relations order, the order (or
modification thereof) is determined to be a qualified domestic relations order,
the Plan Administrator shall pay the segregated amounts, including any interest
thereon, to the person or persons entitled thereto. If within such eighteen (18)
month period it is determined that the order is not a qualified domestic
relations order or the issue as to whether such order is a qualified domestic
relations order is not resolved, then the Plan Administrator shall pay the
segregated amounts, including any interest thereon, to the person or persons who
would have been entitled to such amounts if there had been no order. Any
determination that an order is a qualified domestic relations order which is
made after the close of the eighteen (18) month period shall be applied
prospectively only.
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3.12.10 Authorization to Withhold Taxes. The Trustee is authorized in
accordance with applicable law to withhold from distribution to any payee such
sums as may be necessary to cover federal and state taxes which may be due with
respect to such distributions.
3.12.11 Missing Persons. If the Trustee mails by registered or certified mail,
postage prepaid, to the last known address of a Participant or Beneficiary, a
notification that the Participant or Beneficiary is entitled to a distribution
and if (a) the notification is returned by the post office because the addressee
cannot be located at such address and if neither the Employer, the Plan
Administrator nor the Trustee shall have any knowledge of the whereabouts of
such Participant or Beneficiary within three (3) years from the date such
notification was mailed, or (b) within three (3) years after such notification
was mailed to such Participant or Beneficiary, he does not respond thereto by
informing the Trustee of his whereabouts, the ultimate disposition of the then
undistributed balance of the Distributable Benefit of such Participant or
Beneficiary shall be determined in accordance with the then applicable Federal
laws, rules and regulations. If any portion of the Distributable Benefit is
forfeited because the Participant or Beneficiary cannot be found, such portion
shall be reinstated if a claim is made by the Participant or Beneficiary.
3.12.12 Notices. Any notice or direction to be given in accordance with the
Plan shall be deemed to have been effectively given if hand delivered to the
recipient or sent by certified mail, return receipt requested, to the recipient
at the recipient's last known address. At any time that a group of individuals
is acting as Trustee, notice to the Trustee may be given by giving notice to any
one or more of such individuals.
3.12.13 Governing Law. The provisions of this Plan shall be construed,
administered and enforced in accordance with the provisions of the Act and, to
the extent applicable, the laws of the state in which the Employer has its
principal place of business. All contributions to the Trust shall be deemed to
take place in such state.
3.12.14 Severability of Provisions. In the event that any provision of this
Plan shall be held to be illegal, invalid or unenforceable for any reason, said
illegality, invalidity or unenforceability shall not affect the remaining
provisions, but shall be fully severable and the Plan shall be construed and
enforced as if said illegal, invalid or unenforceable provisions had never been
inserted herein.
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3.12.15 Gender and Number. Whenever appropriate, words used in the singular
shall include the plural, and the masculine gender shall include the feminine
gender.
3.12.16 Binding Effect. The Plan, and all actions and decisions hereunder,
shall be binding upon the heirs, executors, administrators, successors and
assigns of any and all parties hereto and Participants, present and future.
3.12.17 Qualification Under Internal Revenue Laws. The Employer intends that
the Trust qualify under the applicable provisions of the Code. Until advised to
the contrary, the Trustee may assume that the Trust is so qualified and is
entitled to tax exemption under the Code.
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ARTICLE XIII
APPENDIX
MODEL LANGUAGE
3.13.1 This Article applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the plan to the contrary that would
otherwise limit a distributee's election under this Article, a distributee may
elect, at the time and in the manner prescribes by the plan administrator, to
have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover.
3.13.2 Definitions
(a) Eligible rollover distribution: An eligible rollover distribution is any
distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include;
any distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code; and the portion
of any distribution that is not includable in gross income (determined without
regard to the exclusion of net unrealized appreciation with respect to the
employer securities).
(b) Eligible retirement plan: An eligible retirement plan is 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, or a qualified trust described in
Section 401(a) of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(c) Distributee: A distributee includes an employee or former employee. In
addition, the employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Section 414(p)
of the Code, are distributees with regard to the interest of the spouse or
former spouse.
(d) Direct Rollover: A direct rollover is a payment by the plan to the
eligible retirement plan specified by the distributee.
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ARTICLE XIV
EXECUTION OF AGREEMENT
3.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original, and no other
counterpart need be produced.
3.14.2 Acceptance by Trustee. The Trustee, by joining in the execution of
this Agreement, hereby signifies the Trustee's acceptance thereof.
3.14.3 Execution. To record the adoption of this Plan the Employer and each
Affiliate Employer, if any, has caused this Agreement to be executed by its duly
qualified officers and the Trustee has executed this Agreement, as of the day
and year first written above.
**********
Name of Employer and EIN:
AZTEC MANUFACTURING COMPANY - 75-0948250
By:/s/
------------------------------------
DANA PERRY, VICE PRESIDENT FINANCE
Name of Affiliate Employer and EIN:
AZTEC INDUSTRIES, INC. -- 75--1318815
By:/s/
------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
AZTEC INDUSTRIES, INC. -- MOSS POINT -- 75-2107319
By:/s/
------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
AUTOMATED PROCESSING, INC. - 64-0594499
By:/s/
------------------------------------
DANA PERRY
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Page 2
Execution of Agreement
Aztec Manufacturing, Inc.
Name of Affiliate Employer and EIN:
THE CALVERT CO., INC. - 64-0792921
By: /s/
------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
AZTEC GROUP COMPANY - 75-2403898
By: /s/
------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
ARBOR--CROWLEY, INC. - 75-0337454
By: /s/
------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
AZTEC MANUFACTURING PARTNERSHIP, LTD. - 75-2403896
By: /s/
------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
AZTEC MANUFACTURING WASKOM PARTNERSHIP, LTD. - 75-2403909
By: /s/
------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
RIG-A-LITE PARTNERSHIP, LTD. - 75-0353821
By: /s/
------------------------------------
DANA PERRY
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Page 3
Execution of Agreement
Aztec Manufacturing, Inc.
Name of Affiliate Employer and EIN:
AZTEC HOLDINGS, INC. - 51-0337457
By:/s/
------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
ATKINSON INDUSTRIES, INC. - 48-0126010
By:/s/
------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
ARIZONA GALVANIZING, INC. -
By:/s/
------------------------------------
DANA PERRY
Name of Trustee:
OVERTON BANK AND TRUST, NATIONAL ASSOCIATION
By:/s/
------------------------------------
Senior Vice President
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[SEAL]
MODEL SECTION 401(a)(17) AMENDMENT TO
AZTEC MANUFACTURING COMPANY
EMPLOYEE BENEFIT PLAN & TRUST
WHEREAS, Aztec Manufacturing Company (the "Employer") currently maintains Aztec
Manufacturing Company Employee Benefit Plan & Trust (the "Plan") and,
WHEREAS, the Omnibus Budget Reconciliation Act of 1993 amended section
401(a)(17) of the Internal Revenue code to limit compensation taken into account
under a plan in any year to $150,000, as adjusted for increases in the cost of
living; and,
WHEREAS, the Internal Revenue Service issued Revenue Procedure 94-13 providing a
simplified method to amend plans using Model Section 401(a)(17) Amendment, as
set forth below.
THEREFORE, the Plan is hereby amended to incorporate the Model Section
401(a)(17) Amendment as follows:
In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provision of the plan to contrary, for plan years
beginning on or after January 1, 1994, the annual compensation of each employee
taken into account under the plan shall not exceed the OBRA `93 annual
compensation limit. The OBRA. `93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding 12
months, over which compensation is determined (determination period) beginning
in such calendar year. If a determination period consist of fewer than 12
months, the OBRA `93 annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the determination period, and
the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in this plan
to the limitation under section 401(a)(17) of the Code shall mean the OBRA `93
annual compensation limit set forth in the provision.
If compensation for any prior determination period is taken into account in
determining an employee's benefits accruing in the current plan year, the
compensation for that prior determination period is subject to the OBRA `93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first plan year beginning on or after January 1, 1994, the OBRA `93 annual
compensation limit is $150,000.
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NOTICE 93-26/REVENUE PROCEDURE 93-47 AMENDMENT TO
AZTEC MANUFACTURING COMPANY
EMPLOYEE BENEFIT PLAN & TRUST
WHEREAS, Aztec Manufacturing Company (the "Employer") currently maintains Aztec
Manufacturing Company Employee Benefit Plan & Trust (the "Plan") and,
WHEREAS, the Unemployment Compensation Amendments of 1992 added Section 401(a)
(31) to the Internal Revenue code to require a Plan to permit direct rollover of
eligible rollover distributions made after December 31, 1992; and,
WHEREAS, the Internal Revenue Service issued Notice 93-26 modifying the 30-day
notice requirement under section 1.411(a)-11(c); and
WHEREAS, the Internal Revenue Service issued Revenue Procedure 93-47 providing a
simplified method to amend plans using a Model Amendment, as set forth below.
THEREFORE, the Plan is hereby amended to incorporate the Revenue Procedure 93-47
Model Amendments as follows:
The following language, applicable to distributions made on or after January 1,
1993 is hereby inserted following the final sentence of section 2.5.2(g) of
Aztec Manufacturing Company Employee Benefit Plan & Trust.
"If a distribution is one to which sections 401(a) (11) and 417 of the
Internal Revenue Code do not apply, such distribution may commence less
than 30 days after the notice required under section 1.411(a)-11(c) of
the Income Tax Regulations is given, provided that:
-87-
(1) the plan administrator clearly informs the participant that the
participant has a right to a period of at least 30 days after receiving the
notice to consider the decision of whether or not to elect a distribution (and
if applicable, a particular option), and
(2) the participant, after receiving the notice, affirmatively elects a
distribution."
-88-
IN WITNESS WHEREOF, the undersigned has executed this Model Section 401(a) (17)
Amendment and Revenue Procedure 93-47 Amendment to the Plan on this 23 day of
June, 1994.
Name of Employer and EIN:
AZTEC MANUFACTURING COMPANY - 75-0948250
By:/s/ Dana Perry
-------------------------------------
DANA PERRY, VICE PRESIDENT FINANCE
Name of Affiliate Employer and EIN:
AZTEC INDUSTRIES, INC. 75-1318815
By:/s/ Dana Perry
-------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
AZTEC INDUSTRIES, INC. - MOSS POINT - 75-2107319
/s/ Dana Perry
By:-------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
AUTOMATED PROCESSING, INC. - 64-0594499
/s/ Dana Perry
By:-------------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
THE CALVERT CO., INC. - 64-0792921
/s/ Dana Perry
By:-------------------------------------
DANA PERRY
-89-
Execution of Model Section 401(a) (17) and Revenue Procedure 93--47 Amendment
Aztec Manufacturing, Inc.
Name of Affiliate Employer and EIN:
AZTEC GROUP COMPANY - 75-2403898
By:/s/
--------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
ARBOR-CROWLEY, INC. - 75-0337454
By:/s/
--------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
AZTEC MANUFACTURING PARTNERSHIP, LTD. - 75-2403896
By:/s/
--------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
AZT MANUFACTURING WASKOM PARTNERSHIP, LTD. - 75-2403909
By:/s/
---------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
RIG-A-LITE PARTNERSHIP, LTD. - 75-0353821
By:/s/
---------------------------------
DANA PERRY
-90-
Execution of Model Section 401(a) (17) and
Revenue Procedure 93--47 Amendment
Aztec Manufacturing, Inc.
Name of Affiliate Employer and EIN:
AZTEC HOLDINGS, INC. - 51-0337457
By:/s/
---------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
ATKINSON INDUSTRIES, INC. - 48-0126010
By:/s/
---------------------------------
DANA PERRY
Name of Affiliate Employer and EIN:
ARIZONA GALVANIZING, INC. - 75-2508628
By:/s/
---------------------------------
DANA PERRY
Name of Trustee:
OVERTON BANK AND TRUST, NATIONAL ASSOCIATION
By:/s/
---------------------------------
-91-