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EXHIBIT 10.11
The CORPORATEplan for Retirement
THE MONEY PURCHASE PENSION PLAN
FIDELITY BASIC PLAN DOCUMENT No. 09
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THE CORPORATEplan FOR RETIREMENT
MONEY PURCHASE PENSION PLAN
ARTICLE 1
ADOPTION AGREEMENT
ARTICLE 2
DEFINITIONS
2.01 - Definitions
ARTICLE 3
PARTICIPATION
3.01 - Date of Participation
3.02 - Resumption of Participation Following Reemployment
3.03 - Cessation or Resumption of Participation Following
a Change in Status
3.04 - Participation by Owner-Employee; Controlled Businesses
3.05 - Omission of Eligible Employee
ARTICLE 4
CONTRIBUTIONS
4.01 - Employer Contributions (Nonintegrated Formula)
4.02 - Employer Contributions (Integrated Formula)
4.03 - (Reserved)
4.04 - (Reserved)
4.05 - (Reserved)
4.06 - (Reserved)
4.07 - Time of Making Employer Contributions
4.08 - Return of Employer Contributions
4.09 - No Contributions by Participants
4.10 - Rollover Contributions
4.11 - Deductible Voluntary Employee Contributions
4.12 - Additional Rules for Paired Plans
ARTICLE 5
PARTICIPANTS' ACCOUNTS
5.01 - Individual Accounts
5.02 - Valuation of Accounts
5.03 - Code Section 415 Limitations
ARTICLE 6
INVESTMENT OF CONTRIBUTIONS
6.01 - Manner of Investment
6.02 - Investment Decisions
6.03 - Participant Directions to Trustee
ARTICLE 7
RIGHT TO BENEFITS
7.01 - Normal or Early Retirement
7.02 - Late Retirement
7.03 - Disability Retirement
7.04 - Death
7.05 - Other Termination of Employment
7.06 - Separate Account
7.07 - Forfeitures
7.08 - Adjustment for Investment Experience
7.09 - Participant Loans
7.10 - In-Service Withdrawals
7.11 - Prior Plan In-Service distribution Rules
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ARTICLE 8
DISTRIBUTION OF BENEFITS PAYABLE AFTER TERMINATION OF SERVICE
8.01 - Distribution of Benefits to Participants and Beneficiaries
8.02 - Annuity distributions
8.03 - Joint and Survivor Annuities/Preretirement Survivor Annuities
8.04 - Installment Distributions
8.05 - Immediate Distributions
8.06 - Determination of Method of Distribution
8.07 - Notice to Trustee
8.08 - Time of Distribution
8.09 - Whereabouts of Participants and Beneficiaries
ARTICLE 9
TOP-HEAVY PROVISIONS
9.01 - Application
9.02 - Definitions
9.03 - Minimum Contribution
9.04 - Adjustment to the Limitation on Contributions and Benefits
9.05 - Minimum Vesting
ARTICLE 10
AMENDMENT AND TERMINATION
10.01 - Amendment by Employer
10.02 - Amendment by Prototype Sponsor
10.03 - Amendments Affecting Vested and/or Accrued Benefits
10.04 - Retroactive Amendments
10.05 - Termination
10.06 - Distribution Upon Termination of the Plan
10.07 - Merger or Consolidation of Plan; Transfer of Plan Assets
ARTICLE 11
AMENDMENT AND CONTINUATION OF PREDECESSOR PLAN; TRANSFER OF FUNDS
TO OR FROM OTHER QUALIFIED PLANS
11.01 - Amendment and Continuation of Predecessor Plan
11.02 - Transfer of Funds from an Existing Plan
11.03 - Acceptance of Assets by Trustee
11.04 - Transfer of Assets from Trust
ARTICLE 12
MISCELLANEOUS
12.01 - Communication to Participants
12.02 - Limitation of Rights
12.03 - Nonalienability of Benefits and Qualified
Domestic Relations Orders
12.04 - Facility of Payment
12.05 - Information Between Employer and Trustee
12.06 - Effect of Failure to Qualify Under Code
12.07 - Notices
12.08 - Governing Law
ARTICLE 13
PLAN ADMINISTRATION
13.01 - Powers and Responsibilities of the Administrator
13.02 - Nondiscriminatory Exercise of Authority
13.03 - Claims and Review Procedures
13.04 - Named Fiduciary
13.05 - Costs of Administration
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ARTICLE 14
TRUST AGREEMENT
14.01 - Acceptance of Trust Responsibilities
14.02 - Establishment of Trust Fund
14.03 - Exclusive Benefit
14.04 - Powers of Trustee
14.05 - Accounts
14.06 - Approving of Accounts
14.07 - Distribution from Trust Fund
14.08 - Transfer of Amounts from Qualified Plan
14.09 - Transfer of Assets from Trust
14.10 - Separate Trust or Fund for Existing Plan Assets
14.11 - Voting; Delivery of Information
14.12 - Compensation and Expenses of Trustee
14.13 - Reliance by Trustee on Other Persons
14.14 - Indemnification by Employer
14.15 - Consultation by Trustee with Counsel
14.16 - Persons Dealing with the Trustee
14.17 - Resignation or Removal of Trustee
14.18 - Fiscal Year of the Trust
14.19 - Discharge of Duties by Fiduciaries
14.20 - Amendment
14.21 - Plan Termination
14.22 - Permitted Reversion of Funds to Employer
14.23 - Governing Law
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Article 1. Adoption Agreement.
Article 2. Definitions.
2.01. Definitions.
(a) Wherever used herein, the following terms have the meanings set forth
below, unless a different meaning is clearly required by the context:
(1) "Account" means an account established on the books of the Trust
for the purpose of recording contributions made on behalf of a
Participant and any income, expenses, gains or losses incurred
thereon.
(2) "Administrator" means the Employer adopting this Plan, or other
person designated by the Employer in Section 1.01(c).
(3) "Adoption Agreement" means Article 1 under which the Employer
establishes and adopts, or amends, the Plan and Trust and designates
the optional provisions selected by the Employer, and the Trustee
accepts its responsibilities under Article 14. The provisions of the
Adoption Agreement shall be an integral part of the Plan.
(4) "Annuity Starting Date" means the first day of the first period
for which an amount is payable as an annuity or in any other form.
(5) "Beneficiary" means the person or persons entitled under Section
7.04 to receive benefits under the Plan upon the death of a
Participant, provided that for purposes of section 7.04 such term
shall be applied in accordance with Section 401(a)(9) of the Code and
the regulations thereunder.
(6) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(7) "Compensation" shall mean:
(A) for purposes of Article 4 (Contributions), compensation as
defined in Section 5.03(e)(2) excluding any items elected by the
Employer in Section 1.04(a), reimbursements or other expense
allowances, fringe benefits (cash and non-cash), moving expenses,
deferred compensation and welfare benefits, but including amounts
that are not includable in the gross income of the Participant
under a salary reduction agreement by reason of the application
of Sections 125, 402(a)(8), 402(h), or 403(b) of the Code; and
(B) for purposes of Section 2.01(a)(16) (Highly Compensated
Employees), Section 5.03 (Code Section 415 Limitations), and
Section 9.03 (Top Heavy Plan Minimum Contributions), compensation
as defined in Section 5.03(e)(2).
Compensation shall generally be based on the amount actually paid
to the Participant during the Plan Year or, for purposes of Article 4
if so elected by the Employer in Section 1.04(b), during that portion
of the Plan Year during which the Employee is eligible to participate.
Notwithstanding the preceding sentence, compensation for purposes of
Section 5.03 (Code Section 415 Limitations) shall be based on the
amount actually paid or made available to the Participant during the
Limitation Year. Compensation for the initial Plan Year for a new plan
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shall be based upon eligible Participant Compensation, subject to
Section 1.04(b), from the Effective Date listed in Section 1.01(g)(1)
through the end of the first Plan Year.
In the case of any Self-Employed Individual, Compensation shall
mean the Individual's Earned Income.
For years beginning after December 31, 1988, the annual
Compensation of each Participant taken into account for determining
all benefits provided under the plan for any determination period
shall not exceed $200,000. This limitation shall be adjusted by the
Secretary 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 fewer than 12 calendar months, then
annual Compensation limit is 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.
If Compensation for any prior determination period in taken into
account in determining an Employee's allocations or benefits for the
current determination period, 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 in $200,000.
In determining the Compensation of a Participant for purposes of
this limitation, the rules of Section 414(q)(6) of the Code 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 19 before the close of
the year. If the $200,000 limitation is exceeded as a result of the
application of these rules, then 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.
(8) "Earned Income" means the net earnings of a Self-Employed
Individual derived from the trade or business with respect to which
the Plan is established and for which the personal services of such
individual are a material income-providing factor, excluding any items
not included in gross income and the deductions allocated to such
items, except that for taxable years beginning after December 31, 1989
net earnings shall be determined with regard to the deduction allowed
under Section 164(f) of the Code, to the extent applicable to the
Employer. Net earnings shall be reduced by contributions of the
Employer to any qualified plan, to the extent a deduction in allowed
to the Employer for such contributions under Section 404 of the Code.
(9) "Eligibility Computation Period" means each 12-consecutive month
period beginning with the Employment Commencement Date and each
anniversary thereof or, in the case of an Employee who before
completing the eligibility requirements set forth in section
1.03(a)(1) incurs a break in service for participation purposes and
thereafter returns to the employ of the Employer or
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Related Employer, each 12-consecutive month period beginning with the
first day of reemployment and each anniversary thereof.
A "break in service for participation purposes" shall mean an
Eligibility Computation Period during which the participant does not
complete more than 500 Hours of Service with the Employer.
(10) "Employee" means any employee of the Employer, any Self-Employed
Individual or Owner-Employee. The Employer must specify in Section
1.03(a)(3) any Employee, or class of Employees, not eligible to
participate in the Plan. If the Employer elects to exclude collective
bargaining employees, the exclusion applies to any employee of the
Employer included in a unit of employees covered by an agreement which
the Secretary of Labor finds to be a collective bargaining agreement
between employee representatives and one or more employers unless the
collective bargaining agreement requires the employee to be included
within the Plan. The term "employee representatives" does not include
any organization more than half the members of which are owners,
officers, or executives of the Employer.
For purposes of the Plan, an individual shall be considered to
become an Employee on the date on which he first completes an Hour of
Service and he shall be considered to have ceased to be an Employee on
the date on which he last completes an Hour of Service. The term also
includes a Leased Employee, such that contributions or benefits
provided by the leasing organization which are attributable to
services performed for the Employer shall be treated as provided by
the Employer. Notwithstanding the above, a Leased Employee shall not
be considered an Employee if Leased Employees do not constitute more
than 20 percent of the Employer's non-highly compensated work force
(taking into account all Related Employers) and the Leased Employee is
covered by a money purchase pension plan maintained by the leasing
organization which plan provides (i) a nonintegrated employer
contribution rate of at least 10 percent of compensation, as defined
for purposes of Section 415(c)(3) of the Code, but including amounts
contributed pursuant to a salary reduction agreement which are
excludable from gross income under Section 125, Section 402(a)(8),
Section 402(h) or Section 403(b) of the Code, (ii) full and immediate
vesting, and (iii) immediate participation by each employee of the
leasing organization.
(11) "Employer" means the employer named in Section 1.02(a) and any
Related Employers required by this Section 2.01(a)(11). If Article 1
of the Employer's Plan in the Standardized Adoption Agreement, the
term "Employer" includes all Related Employers. If Article 1 of the
Employer's Plan is the Non-standardized Adoption Agreement, the term
"Employer" includes those Related Employers designated in Section
1.02(b).
(12) "Employment Commencement Date" means the date on which the
Employee first performs an Hour of Service.
(13) "ERISA" means the Employee Retirement Income Security Act of
1974, an from time to time amended.
(14) "Fidelity Fund" means any Registered Investment Company or
Managed Income Portfolio of the Fidelity Group Trust for Employee
Benefit Plans which is made available to plans utilizing the
CORPORATEplan for Retirement.
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(15) "Fund Share" means the share, unit, or other evidence of
ownership in a Fidelity Fund.
(16) "Highly Compensated Employee" means both highly compensated
active Employees and highly compensated former Employees.
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 in greater than 50 percent of the dollar limitation 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 in 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.
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. The Employer may elect to make the
look-back year calculation for a determination an the basis of the
calendar year ending with or within the applicable determination year,
as prescribed by Section 414(q) of the Code and the regulations issued
thereunder.
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 determination year or look-back 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.
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The determination of who is a highly compensated Employee,
including the determinations 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.
(17) "Hour of Service" means, with respect to any Employee,
(A) Each hour for which the Employee is directly or indirectly
paid, or entitled to payment, for the performance of duties for
the Employer or a Related Employer, each such hour to be credited
to the Employee for the Eligibility Computation Period in which
the duties were performed;
(B) Each hour for which the Employee is directly or indirectly
paid, or entitled to payment, by the Employer or Related Employer
(including payments made or due from a trust fund or insurer to
which the Employer contributes or pays premiums) on account of a
period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity, disability, layoff, jury
duty, military duty, or leave of absence, each such hour to be
credited to the Employee for the Eligibility Computation Period
in which such period of time occurs, subject to the following
rules:
(i) No more than 501 Hours of Service shall be credited
under this paragraph (B) on account of any single continuous
period during which the Employee performs no duties;
(ii) Hours of Service shall not be credited under this
paragraph (B) for a payment which solely reimburses the
Employee for medically-related expenses, or which is made or
due under a plan maintained solely for the purpose of
complying with applicable workmen's compensation,
unemployment compensation or disability insurance laws; and
(iii) If the period during which the Employee performs no
duties falls within two or more Eligibility Computation
Periods and if the payment made on account of such period is
not calculated on the basis of units of time, the Hours of
Service credited with respect to such period shall be
allocated between not more than the first two such
Eligibility Computation Periods on any reasonable basis
consistently applied with respect to similarly situated
Employees; and
(C) Each hour not counted under paragraph (A) or (B) for which
back pay, irrespective of mitigation of damages, has been either
awarded or agreed to be paid by the Employer or a Related
Employer, each such hour to be credited to the Employee for the
Eligibility Computation Period to which the award or agreement
pertains rather than the Eligibility Computation Period in which
the award agreement or payment is made.
For purposes of determining Hours of Service, Employees of
the Employer and of all Related Employers will be treated as
employed by a single employer. For purposes of paragraphs (B) and
(C) above, Hours of Service will be calculated in accordance with
the provisions of Section 2530.200b-2(b) of the Department of
Labor regulations which are incorporated herein by reference.
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Solely for purposes of determining whether a break in
service for participation purposes has occurred in a
computation period, an individual who is absent from work
for maternity or paternity reasons shall receive credit for
the hours of service which would otherwise been credited to
such individual but for such absence, or in any case in
which such hours cannot be determined, 8 hours of service
per day of such absence. For purposes of this paragraph, an
absence from work for maternity reasons means an absence (1)
by reason of the pregnancy of the individual, (2) by reason
of a birth of a child of the individual, (3) by reason of
the placement of a child with the individual in connection
with the adoption of such child by such individual, or (4)
for purposes of caring for such child for a period beginning
immediately following such birth or placement. The hours of
service credited under this paragraph shall be credited (1)
in the computation period in which the absence begins if the
crediting is necessary to prevent a break in service in that
period, or (2) in all other cases, in the following
computation period.
(18) "Leased Employee" means any individual who provides services
to the Employer or a Related Employer (the "recipient") but is
not otherwise an employee of the recipient if (i) such services
are provided pursuant to an agreement between the recipient and
any other person (the "leasing organization"), (ii) such
individual has performed services for the recipient (or for the
recipient and any related persons within the meaning of Section
414(n)(6) of the Code) on a substantially full-time basis for at
least one year, and (iii) such services are of a type
historically performed by employees in the business field of the
recipient.
(19 ) "Normal Retirement Age" means the normal retirement age
specified in Section 1.06(a) of the Adoption Agreement. If the
Employer enforces a mandatory retirement age, the Normal
Retirement Age is the lesser of that mandatory age or the age
specified in Section 1.06(a).
(20) "Owner-Employee" means, if the Employer is a sole
proprietorship, the individual who is the sole proprietor, or if
the Employer is a partnership, a partner who owns more than 10
percent of either the capital interest or the profits interest of
the partnership.
(21) "Participant" means any Employee who participates in the
Plan in accordance with Article 3 hereof.
(22) "Plan" means the plan established by the Employer in the
form of the prototype plan an set forth herein as a new plan or
as an amendment to an existing plan, by executing the Adoption
Agreement, together with any and all amendments hereto.
(23) "Plan Year" means the 12-consecutive month period designated
by the Employer in Section 1.01(f).
(24) "Prototype Sponsor" means Fidelity Management and Research
Company, or its successor.
(25) "Registered Investment Company" means any one or more
corporations, partnerships or trusts registered under the
Investment Company Act of 1940 for which Fidelity Management and
Research Company serves as investment advisor.
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(26) "Related Employer" means any employer other than the
Employer named in Section 1.02(a), if the Employer and such other
employer are members of a controlled group of corporations (as
defined in Section 414(b) of the Code) or an affiliated service
group (as defined in Section 414(m)), or are trades or businesses
(whether or not incorporated) which are under common control (as
defined in Section 414(c)), or such other employer is required to
be aggregated with the Employer pursuant to regulations issued
under Section 414(o).
(27) "Self-Employed Individual" means an individual who has
Earned Income for the taxable year from the Employer or who would
have had Earned Income but for the fact that the trade or
business had no net profits for the taxable year.
(28) "Trust" means the trust created by the Employer in
accordance with the provisions of Section 14.01.
(29) "Trust Agreement" means the agreement between the Employer
and the Trustee, as set forth in Article 14, under which the
assets of the Plan are held, administered, and managed.
(30) "Trust Fund" means the property held in Trust by the Trustee
for the Accounts of the Participants and their Beneficiaries.
(31) "Trustee" means the Fidelity Management Trust Company, or
its successor.
(32) "Year of Service for Participation" means, with respect to
any Employee, an Eligibility Computation Period during which the
Employee has been credited with at least 1,000 Hours of Service.
If the Plan maintained by the Employer is the plan of a
predecessor employer, an Employee's Years of Service for
Participation shall include years of service with such
predecessor employer. In any case in which the Plan maintained
by the Employer is not the plan maintained by a predecessor
employer, service for such predecessor shall be treated as
service for the Employer, to the extent provided in Section 1.08.
(33) "Years of Service for Vesting" means, with respect to any
Employee, the number of whole years of his periods of service
with the Employer or a Related Employer (the elapsed time method
to compute vesting service), subject to any exclusions elected by
the Employer in Section 1.07(b). An Employee will receive credit
for the aggregate of all time period(s) commencing with the
Employee's Employment Commencement Date and ending on the date a
break in service begins, unless any such years are excluded by
Section 1.07(b). An Employee will also receive credit for any
period of severance of less than 12 consecutive months.
Fractional periods of a year will be expressed in terms of days.
In the case of a Participant who has 5 consecutive 1-year
breaks in service, all years of service after such breaks in
service will be disregarded for the purpose of vesting the
Employer-derived account balance that accrued before such breaks,
but both pro-break and post-break service will count for the
purposes of vesting the Employer-derived account balance that
accrues after such breaks. Both accounts will share in the
earnings and losses of the fund.
In the case of a Participant who does not have 5 consecutive
1-year breaks in service, both the pre-break and post-break
service will count in vesting both the pre-break and post-break
employer-derived account balance.
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A break in service is a period of severance of at least 12
consecutive months. Period of severance is a continuous period of
time during which the Employee is not employed by the Employer.
Such period begins on the date the Employee retires, quits or is
discharged, or if earlier, the 12 month anniversary of the date
on which the Employee was otherwise first absent from service.
In the case of an individual who is absent from work for
maternity or paternity reasons, the 12-consecutive month period
beginning on the first anniversary of the first date of such
absence shall not constitute a break in service. For purposes of
this paragraph, an absence from work for maternity or paternity
reasons means an absence (1) by reason of the pregnancy of the
individual, (2) by reason of the birth of a child of the
individual, (3) by reason of the placement of a child with the
individual in connection with the adoption of such child by such
individual, or (4) for purposes of caring for such child for a
period beginning immediately following such birth or placement.
If the Plan maintained by the Employer is the plan of a
predecessor employer, an Employee's Years of Service for vesting
shall include years of service with such predecessor employer. In
any case in which the Plan maintained by the Employer is not the
plan maintained by a predecessor employer, service for such
predecessor shall be treated as service for the Employer to the
extent provided in Section 1.08.
(b) Pronouns used in the Plan are in the masculine gender but include the
feminine gender unless the context clearly indicates otherwise.
Article 3. Participation.
3.01. Date of Participation. All Employees in the eligible class (as defined in
Section 1.03(a)(3)) who are in the service of the Employer on the Effective Date
will become Participants on the date elected by the Employer in Section 1.03(c).
Any other Employee will become a Participant in the Plan as of the first Entry
Date on which he first satisfies the eligibility requirements set forth in
Section 1.03(a). In the event that an Employee who is not a member of an
eligible class (as defined in Section 1.03(a)(3)) becomes a member of an
eligible class, the individual shall participate immediately if such individual
had already satisfied the eligibility requirements and would have otherwise
previously become a Participant.
If an eligibility requirement other than one Year of Service is elected in
1.03(a)(1), an Employee may not be required to complete a minimum number of
Hours of Service before becoming a Participant. An otherwise eligible Employee
subject to a minimum months of service requirement shall become a Participant on
the first Entry Date following his completion of the required number of
consecutive months of employment measured from his Employment Commencement Date
to the coinciding date in the applicable following month. For purposes of
determining consecutive months of service, the Related Employer and predecessor
employer rules contained in Sections 2.01(a)(17) and 2.01(a)(32) shall apply.
3.02. Resumption of Participation Following Reemployment. If a Participant
ceases to be an Employee and thereafter returns to the employ of the Employer he
will be treated as follows:
(a) he will again become a Participant on the first date on which he
completes an Hour of Service for the Employer following his reemployment
and is in the eligible class of Employees an defined in Section 1.03(a)(3),
and
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(b) any distribution which he is receiving under the Plan will cease except
as otherwise required under Section 8.08.
3.03. Cessation or Resumption of Participation Following a Change in Status. If
any Participant continues in the employ of the Employer or Related Employer but
ceases to be a member of an eligible class as defined in Section 1.03(a)(3), the
individual shall continue to be a Participant for most purposes until the entire
amount of his benefit is distributed; however, the individual shall not be
entitled to receive an allocation of contributions or forfeitures during the
period that he is not a member of the eligible class. Such Participant shall
continue to receive credit for service completed during the period for purposes
of determining his vented interest in his Accounts. In the event that the
individual subsequently again becomes a member of an eligible class of
Employees, the individual shall resume full participation immediately upon the
date of such change in status.
3.04. Participation by Owner-Employee: Controlled Businesses. If the Plan
provides contributions or benefits for one or more Owner-Employees who control
both the trade or business with respect to which the Plan is established and one
or more other trades or businesses, the Plan and any plan established with
respect to such other trades or businesses must, when looked at as a single
plan, satisfy Sections 401(a) and 401(d) of the Code with respect to the
employees of this and all such 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 each such other trade or
business must be included in a plan which satisfies Sections 401(a) and 401(d)
of the Code and which provides contributions and benefits not less favorable
than provided for Owner-Employees under the 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 this Section, an Owner-Employee, or two or more
Owner-Employees, shall be considered to control a trade or business if such
Owner-Employee, or such Owner-Employees together, (i) own the entire interest in
an unincorporated trade or business, or (ii) in the case of a partnership, own
more than 50 percent of either the capital interest or the profits interest in
such partnership. For this purpose, 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 controlled by such
Owner-Employee or such Owner-Employees.
3.05. Omission of Eligible Employee. If any Employee who should be included as a
Participant in the Plan is erroneously omitted and discovery of such omission is
not made until after a contribution by his Employer for the year has been made,
the Employer shall make a subsequent contribution, if necessary, so that the
omitted Employee receives the total amount which the said Employee would have
received had he not been omitted. For purposes of this Section 3.05, the term
"contribution" shall not include Deferral Contributions and Matching
Contributions made pursuant to Sections 4.01 and 4.03, respectively.
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Article 4. Contributions.
4.01. Employer Contributions (Nonintegrated Formula). The Employer shall make a
contribution to the Plan for each Plan Participant in accordance with the
Employer's election in Section 1.05(a)(1). Each such contribution shall be
allocated to the Participant's account under the Plan.
4.02. Employer Contributions (Integrated Formula). The Employer shall make a
contribution to the Plan for each Plan Participant in accordance with the
Employer's election in Section 1.05(a)(2). Each such contribution shall be
allocated to the Participant's account under the Plan. This plan may not provide
for permitted disparity if the Employer maintains any other plan that provides
for permitted disparity and benefits any of the same participants.
4.03. (Reserved.)
4.04. (Reserved.)
4.05. (Reserved.)
4.06. (Reserved.)
4.07. Time of Making Employer Contributions. The Employer will pay its
contribution for each Plan Year not later than the time prescribed by law for
filing the Employer's Federal income tax return for the fiscal (or taxable) year
with or within which such Plan Year ends (including extensions thereof). The
Trustee will have no authority to inquire into the correctness of the amounts
contributed and paid over to the Trustee, to determine whether any contribution
is payable under this Article 4, or to enforce, by suit or otherwise, the
Employer's obligation, if any, to make a contribution to the Trustee.
4.08. Return of Employer Contributions. The Trustee shall, upon request by the
Employer, return to the Employer the amount (if any) determined under Section
14.22. Such Amount shall be reduced by amounts attributable thereto which have
been credited to the Accounts of Participants who have since received
distributions from the Trust, except to the extent such amounts continue to be
credited to such Participants' Accounts at the time the amount is returned to
the Employer. Such amount shall also be reduced by the losses of the Trust
attributable thereto, if and to the extent such losses exceed the gains and
income attributable thereto, but will not be increased by the gains and income
of the Trust attributable thereto, if and to the extent such gains and income
exceed the losses attributable thereto. In no event will the return of a
contribution hereunder cause the balance of the individual Account of any
Participant to be reduced to less than the balance which would have been
credited to the Account had the mistaken amount not been contributed.
4.09. No Contributions by Participants. No Participant is required or permitted
to make contributions under the Plan. A Participant's account may include
Employee Contributions (but not deductible voluntary employee contributions)
made prior to the first Plan Year in which this Plan was adopted as a
replacement plan. Employee Contributions for plan years beginning after December
31, 1986, and prior to the adoption of this Plan, will be limited so as to meet
the nondiscrimination requirements of the Section 401(m) of the Code. The
Participant's accrued benefit derived from such Employee Contributions is always
nonforfeitable. For purposes of this Plan, "Employee Contributions" shall mean
any contribution made to a plan by or on behalf of a Participant that was
included in the Participant's gross income in the
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year in which made and that is maintained under a separate account to which
applicable earnings and losses are allocated.
4.10. Rollover Contributions.
(a) Rollover of Eligible Rollover Distributions
(1) An Employee who is or was a distributee of an "eligible rollover
distribution" (as defined in Section 402(c)(4) of the Code and the
regulations issued thereunder) from a qualified plan or Section 403(b)
annuity may directly transfer all or any portion of such distribution
to the Trust or transfer all or any portion of such distribution to
the Trust within sixty (60) days of payment. The transfer shall be
made in the form of cash or allowable Fund Shares only.
(2) The Employer may refuse to accept rollover contributions or
instruct the Trustee not to accept rollover contributions under the
Plan.
(b) Treatment of Rollover Amount.
(1) An account will be established for the transferring Employee under
Article 5, the rollover amount will be credited to the account and
such amount will be subject to the terms of the Plan, including
Section 8.01, except as otherwise provided in this Section 4.10.
(2) The rollover account will at all times be fully vested in and
nonforfeitable by the Employee.
(c) Entry into Plan by Transferring Employee. Although an amount may be
transferred to the Trust Fund under this Section 4.10 by an Employee who
has not yet become a Participant in accordance with Article 4, and such
amount is subject to the terms of the Plan as described in paragraph (b)
above, the Employee will not become a Participant entitled to share in
Employer contributions until he has satisfied such requirements.
(d) Monitoring of Rollovers.
(1) The Administrator shall develop such procedures and require such
information from transferring Employees as it deems necessary to
insure that amounts transferred under this Section 4.10 most the
requirements for tax-free rollovers established by such Section and
by Section 402(c) of the Code. No such amount may be transferred
until approved by the Administrator.
(2) If a transfer made under this Section 4.10 is later determined by
the Administrator not to have met the requirements of this Section or
of the Code or Treasury regulations, the Trustee shall, within a
reasonable time after such determination is made, and on instructions
from the Administrator, distribute to the Employee the amounts then
hold in the Trust attributable to the transferred amount.
4.11. Deductible Voluntary Employee Contributions. The Administrator will not
accept deductible employee contributions which are made for a taxable year
beginning after December 31, 1986. Contributions made prior to that date will be
maintained in a separate account which will be nonforfeitable at all times and
which will share in the gains and losses of the trust in the same manner as
described in Section 5.02. No part of the deductible voluntary contribution
account will be used to
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purchase life insurance. Subject to Article VIII, the Participant may withdraw
any part of the deductible voluntary contribution account upon request.
4.12. Additional Rules for Paired Plans. If the Employer has adopted a qualified
plan under Fidelity Basic Plan Document No. 07 which is to be considered as a
paired plan with this Plan, the elections in Section 1.03 must be identical to
the Employer's corresponding elections for the other plan. When the paired plans
are top-heavy as provided in Section 9.01, this Plan will provide a minimum
contribution to each non-key Employee which is equal to 3 percent (or such other
percent elected by the Employer in Section 1.12(c)) of such Employee's
Compensation. Notwithstanding the preceding sentence, the minimum contribution
shall be provided by the other paired plan if contributions under this Plan are
frozen.
Article 5. Participants' Accounts.
5.01. individual Accounts. The Administrator will establish and maintain an
Account for each Participant which will reflect Employer and Employee
Contributions made on behalf of the Participant and earnings, expenses, gains
and losses attributable thereto, and investments made with amounts in the
Participant's Account. The Administrator will establish and maintain such other
accounts and records as it decides in its discretion to be reasonably required
or appropriate in order to discharge its duties under the Plan.
5.02. Valuation of Accounts. Participant Accounts will be valued at their fair
market value at least annually as of a date specified by the Administrator in
accordance with a method consistently followed and uniformly applied, and on
such date earnings, expenses, gains and losses on investments made with amounts
in each Participant's Account will be allocated to such Account. Participants
will be furnished statements of their Account values at least once each Plan
Year.
5.03. Code Section 415 Limitations. Notwithstanding any other provisions of the
Plan:
Subsections (a)(1) through (a)(4)--(These subsections apply to Employers
who do not maintain any qualified Plan including a welfare Benefit Fund, an
Individual Medical Account, or a simplified employee Pension in addition to this
Plan.)
(a)( 1) If the Participant does not participate in, and has never
participated in any other qualified plan, Welfare Benefit fund, Individual
Medical Account, or a simplified employee pension, as defined in section
408(k) of the Code, maintained by the Employer, which provides an annual
addition as defined in Section 5.03(e)(1), the amount of Annual Additions
to a Participant's Account for a Limitation Year shall not exceed the
lesser of the Maximum Permissible Amount or any other limitation contained
in this Plan. 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 will be reduced so that the
annual additions for the limitation year will equal the maximum permissible
amount.
(a)(2) Prior to the determination of the Participant's actual Compensation
for a Limitation Year, the Maximum Permissible Amount
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may be determined on the basis of a reasonable estimation of the
Participant's compensation for such Limitation Year, uniformly determined
for all Participants similarly situated. Any Employer contributions based
on estimated annual compensation shall be reduced by any Excess Amounts
carried over from prior years.
(a)(3) An soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for such Limitation Year
shall be determined on the basis of the Participant's actual Compensation
for such Limitation Year.
(a)(4) If, pursuant to subsection (a)(3) or as a result of the allocation
of forfeitures there in an Excess Amount with respect to a Participant for
a Limitation Year, such Excess Amount shall be disposed of as follows:
(A) In the event that the Participant is in the service of the
Employer which is covered by the Plan at the end of the Limitation Year,
then such Excess Amount shall be reapplied to reduce future Employer
contributions under this Plan for the next Limitation Year (and for each
succeeding year, as necessary) for such Participant, so that in each such
Year the sum of actual Employer contributions plus the reapplied amount
shall equal the amount of Employer contributions which would otherwise be
made to such Participant's Account.
(B) In the event that the Participant is not in the service of the
Employer which is covered by the Plan at the end of a Limitation Year, then
such Excess Amount will be held unallocated in a suspense account. The
suspense account will be applied to reduce future Employer contributions
for all remaining Participants in the next Limitation Year and each
succeeding Limitation Year if necessary.
(C) If a suspense account is in existence at any time during the
Limitation Year pursuant to this subsection, it will not participate in the
allocation of the Trust Fund's investment gains and losses. All amounts in
the suspense account must be allocated to the Accounts of Participants
before any Employer contribution may be made for the Limitation Year.
Excess Amounts may not be distributed to Participants or former
Participants.
Subsections (b)(1) through (b)(6)--(These subsections apply to
Employers who, in addition to this Plan, maintain one or more plans, all of
which are qualified Master or Prototype defined contribution Plans, any Welfare
Benefit Fund, any Individual Medical Account, or any simplified employee
pension.)
(b)(1) If, in addition to this Plan, the Participant is covered under any
other qualified defined contribution plans (all of which are qualified
Master or Prototype Plans), Welfare Benefit Funds, Individual Medical
Accounts, or simplified employee pension Plans, maintained by the Employer,
that provide an annual addition as defined in Section 5.03(e)(1), the
amount of Annual Additions to a Participant's Account for a Limitation
Year, shall not exceed the lesser of:
(A) the Maximum Permissible Amount, reduced by the sum of any Annual
Additions to the Participant's accounts for the same Limitation Year under
such other qualified Master or Prototype defined contribution plans, and
Welfare Benefit Funds, Individual Medical Accounts, and simplified employee
pensions, or
(B) any other limitation contained in this Plan.
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If the annual additions with respect to the Participant under other
qualified Master or Prototype defined contribution plans Welfare
Benefit Funds, Individual Medical Accounts and simplified employee
pensions 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 will be
reduced so that the annual additions under all such plans and funds
for the limitation year will equal the maximum permissible amount. If
the annual additions with respect to the Participant under such other
qualified Master or Prototype defined contribution plans, Welfare
Benefit Funds, Individual Medical Accounts and simplified employee
pensions 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.
(b)(2) Prior to the determination of the Participant's actual
Compensation for the Limitation Year, the amounts referred to in
(b)(1)(A) above may be determined on the basis of a reasonable
estimation of the Participant's Compensation for such Limitation Year,
uniformly determined for all Participants similarly situated. Any
Employer contribution based on estimated annual Compensation shall be
reduced by any Excess Amounts carried over from prior years.
(b)(3) As soon as is administratively feasible after the end of the
Limitation Year, the amounts referred to in (b)(1)(A) shall be
determined on the basis of the Participant's actual Compensation for
such Limitation Year.
(b)(4) If a Participant's Annual Additions under this Plan and all
such other plans result in an Excess Amount, such Excess Amount shall
be deemed to consist of the Annual Additions last allocated, except
that Annual Additions attributable to a simplified employee pension
will be deemed to have been allocated first, followed by Annual
Additions to a Welfare Benefit Fund or Individual Medical Account
regardless of the actual allocation date.
(b)(5) If an 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:
(A) the total Excess Amount allocated an of such date (including
any amount which would have been allocated but for the
limitations of Section 415 of the Code), times
(B) the ratio of (i) the Annual Additions allocated to the
Participant as of such date under this Plan, divided by (ii) the
Annual Additions allocated as of such date under all qualified
defined contribution plans (determined without regard to the
limitations of Section 415 of the Code).
(b)(6) Any Excess Amounts attributed to this Plan shall be disposed of
as provided in subsection (a)(4).
Subsection (c)--(This subsection applies only to Employers who,
in addition to this Plan, maintain one or more qualified plans which
are qualified defined contribution plans other than Master or
Prototype Plans.)
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(c) If the Employer also maintains another plan which is a qualified
defined contribution plan other than a Master or Prototype Plan,
Annual Additions allocated under this Plan on behalf of any
Participant shall be limited in accordance with the provisions of
(b)(1) through (b)(6), as though the other plan were a Master or
Prototype Plan, unless the Employer provides other limitations in the
Adoption Agreement.
Subsection (d)--(This subsection applies only to Employers who, in
addition to this Plan, maintain or at any time maintained a qualified
defined benefit plan.)
(d) If the Employer maintains, or at any time maintained, a qualified
defined benefit plan, the sum of any Participant's Defined Benefit
Fraction and Defined Contribution Fraction shall not exceed the
combined plan limitation of 1.0 in any Limitation Year. The combined
plan limitation will be met as provided by the Employer in the
Adoption Agreement.
Subsections (e)(1) through (e)(9)--(Definitions.)
(e)(1) "Annual Additions" means the sum of the following amounts
credited to a Participant for a Limitation Year:
(A) all Employer contributions,
(B) all Employee contributions,
(C) all forfeitures,
(D) Amounts allocated, after March 31, 1984, to an Individual
Medical Account which is part of a pension or annuity plan
maintained by the Employer are treated as Annual Additions to a
defined contribution plan. Also, 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 benefits allocated to the separate
account of a key employee, as defined in Section 419A(d)(3) of
the Code, under a Welfare Benefit Fund maintained by the Employer
are treated as Annual Additions to a defined contribution plan,
and
(E) Allocations under a simplified employee pension.
For purposes of this Section 5.03, amounts reapplied to reduce
Employer contributions under subsection (a)(4) shall also be included
as Annual Additions.
(e)(2) "Compensation" means wages an defined in Section 3401(a) of the
Code and all other payments of compensation to an employee by the
employer (in the course of the employer's trade or business) for which
the employer is required to furnish the employee a written statement
under Sections 6041(d) and 6051(a)(3) of the Code. Compensation must
be determined without regard to any rules under section 3401(a) of the
Code that limit the remuneration included in wages based on the nature
or location of the employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2) of the Code.)
For any Self-Employed Individual compensation will mean Earned Income.
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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 made available
during such limitation year.
(e)(3) "Defined Benefit Fraction" means a fraction, the numerator of
which is the sum of the Participant's annual benefits (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) under all the defined benefit plans
(whether or not terminated) maintained by the Employer, each such
annual benefit computed on the assumptions that the Participant will
remain in employment until the normal retirement age under each such
plan (or the Participant's current age, if later) and that all other
factors used to determine benefits under such plan will remain
constant for all future Limitation Years, and the denominator of which
is the lesser of 125 percent of the dollar limitation determined for
the Limitation Year under Sections 415(b)(1)(A) and 415(d) of the Code
or 140 percent of the Participant's average Compensation for the 3
highest consecutive calendar years of service during which the
Participant was active in each such plan, including any adjustments
under Section 415(b) of the Code. However, 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 then
the denominator of the Defined Benefit Fraction shall not be less than
125 percent of the Participant's total accrued benefit 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, under all such defined benefit plans as met, individually
and in the aggregate, the requirements of Section 415 of the Code for
all Limitation Years beginning before January 1, 1987.
(e)(4) "Defined Contribution Fraction" means a fraction, the numerator
of which is the sum for the current and all prior Limitation Years of
(A) all Annual Additions (if any) to the Participant's accounts under
each defined contribution plan (whether or not terminated) maintained
by the Employer, and (B) all 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 Participant's Annual Additions attributable to all Welfare
Benefit Funds, Individual Medical Accounts, and simplified employee
pensions, maintained by the Employer, and the denominator of which is
the sum of the maximum aggregate amounts for the current and all prior
Limitation Years during which the Participant was an Employee
(regardless of whether the Employer maintained a defined contribution
plan in any such year).
The maximum aggregate amount in any Limitation Year is the lesser
of 125 percent of the dollar limitation in effect under Section
415(c)(1)(A) of the Code for each such year or 35 percent of the
Participant's Compensation for each such year.
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 contribution plans maintained by the Employer which were in
existence on May 6, 1986 then the numerator of the Defined
Contribution Fraction shall 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
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the product of (i) the excess of the sum of the fractions over 1.0
times (ii) the denominator of this fraction will 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 6, 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.
(e)(5) "Employer" means the Employer and any Related Employer that
adopts this Plan. In the case of a group of employers which
constitutes a controlled group of corporations (as defined in Section
414(b) of the Code as modified by Section 415(h)) or which constitutes
trades or businesses (whether or not incorporated) which are under
common control (as defined in Section 414(c) of the Code as modified
by Section 415(h) of the Code) or which constitutes an affiliated
service group (as defined in Section 414(m) of the Code) and any other
entity required to be aggregated with the Employer pursuant to
regulations issued under Section 414(o) of the Code, all such
employers shall be considered a single employer for purposes of
applying the limitations of this Section 5.03.
(e)(6) "Excess Amount" means the excess of the Participant's Annual
Additions for the Limitation Year over the Maximum Permissible Amount.
(e)(7) "Individual Medical Account" means an individual medical
account as defined in Section 415(l)(2) of the Code.
(e)(8) "Limitation Year" means the Plan Year. All qualified plans of
the Employer must use the same Limitation Year. If the Limitation Year
is amended to a different 12-consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year in
which the amendment in made.
(e)(9) "Master or Prototype Plan" means a plan the form of which is
the subject of a favorable opinion letter from the Internal Revenue
Service.
(e)(10) "Maximum Permissible Amount" means for a Limitation Year with
respect to any Participant the lesser of (i) $30,000 or, if greater,
25 percent of the dollar limitation set forth in Section 415(b)(1) of
the Code, as in effect for the Limitation Year, or (ii) 25 percent of
the Participant's Compensation for the Limitation Year. If a short
Limitation Year is created because of an amendment changing the
Limitation Year to a different 12-consecutive month period, the
Maximum Permissible Amount will not exceed the limitation in
(e)(10)(i) multiplied by a fraction whose numerator is the number of
months in the short Limitation Year and whose denominator is 12.
The compensation limitation referred to in subsection (e)(10)(ii)
shall not apply to any contribution for medical benefits within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code after
separation from service which is otherwise treated an an Annual
Addition under Section 419A(d)(2) or Section 415(l)(1) of the code.
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(e)(11) "Welfare Benefit Fund" means a welfare benefit fund as defined
in Section 419(e) of the Code.
Article 6. Investment of Contributions.
6.01. Manner of Investment. All contributions made to the Accounts of
Participants shall be held for investment by the Trustee. The Accounts of
Participants shall be invested and reinvested only in eligible investments
selected by the Employer in Section 1.14(b), subject to section 14.10.
6.02. Investment Decisions. Investments shall be directed by the Employer or
by each Participant, in accordance with the Employer's election in Section
1.14(a). Pursuant to Section 14.04, the Trustee shall have no discretion or
authority with respect to the investment of the Trust Fund.
(a) If Employer investment direction is elected, the Employer has the right
to direct the Trustee in writing with respect to the investment and
reinvestment of assets comprising the Trust Fund in the Fidelity Fund(s)
designated in Section 1.14(b) and as allowed by the Trustee.
(b) If Participant investment direction is elected, each Participant shall
direct the investment of his Account among the Fidelity Funds listed in
Section 1.14(b). The Participant shall file initial investment instructions
with the Administrator, on such form as the Administrator may provide,
selecting the Funds in which amounts credited to his Account will be
invested.
(1) Except an provided in this Section 6.02, only authorized Plan
contacts and the Participant shall have access to a Participant's
account. While any balance remains in the Account of a Participant
after his death, the Beneficiary of the Participant shall make
decisions as to the investment of the Account as though the
Beneficiary were the Participant. To the extent required by a
qualified domestic relations order as defined in Section 414(p) of the
Code, an alternate payee shall make investment decisions with respect
to a Participant's Account as though such alternate payee were the
Participant.
(2) If the Trustee receives any contribution under the Plan as to
which investment instructions have not been provided, the Trustee
shall promptly notify the Administrator and the Administrator shall
take steps to elicit instructions from the Participant. The Trustee
shall credit any such contribution to the Participant's Account and
such amount shall be invested in the Fidelity Fund selected by the
Employer for such purposes or, absent Employer selection, in the most
conservative Fidelity Fund listed in Section 1.14(b), until investment
instructions have been received by the Trustee.
(c) All dividends, interest, gains and distributions of any nature received
in respect of Fund Shares shall be reinvested in additional shares of that
Fidelity Fund.
(d) Expenses attributable to the acquisition of investments shall be
charged to the Account of the Participant for which such investment is
made.
6.03. Participant Directions to Trustee. All Participant initial investment
instructions filed with the Administrator pursuant to the
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provisions of section 6.02 shall be promptly transmitted by the Administrator to
the Trustee. A Participant shall transmit subsequent investment instructions
directly to the Trustee by means of the telephone exchange system maintained by
the Trustee for such purposes. The method and frequency for change of
investments will be determined under the (1) rules applicable to the investments
selected by the Employer in Section 1.14(b) and (2) the additional rules of the
Employer, if any, limiting the frequency of investment changes, which are
included in a separate written administrative procedure adopted by the Employer
and accepted by the Trustee. The Trustee shall have no duty to inquire into the
investment decisions of a Participant or to advise him regarding the purchase,
retention or sale of assets credited to his Account.
Article 7. Right to Benefits.
7.01. Normal or Early Retirement. Each Participant who attains his Normal
Retirement Age or, if so provided by the Employer in Section 1.06(b), Early
Retirement Age will have a 100 percent nonforfeitable interest in his Account
regardless of any vesting schedule elected in Section 1.07. If a Participant
retires upon the attainment of Normal or Early Retirement Age, such retirement
is referred to as a normal retirement. Upon his normal retirement the balance of
the Participant's Account, plus any amounts thereafter credited to his Account,
subject to the provisions of Section 7.08, will be distributed to him in
accordance with Article 8.
If a Participant separates from service before satisfying the age
requirements for early retirement, but has satisfied the service requirement,
the Participant will be entitled to elect an early retirement distribution upon
satisfaction of such age requirement.
7.02. Late Retirement. If a Participant continues in the service of the Employer
after attainment of Normal Retirement Age, he will continue to have a 100
percent nonforfeitable interest in his Account and will continue to participate
in the Plan until the date he establishes with the Employer for his late
retirement. Upon the earlier of his late retirement or the distribution date
required under Section 8.08, the balance of his Account, plus any amounts
thereafter credited to his Account, subject to the provisions of Section 7.08,
will be distributed to him in accordance with Article 8 below.
7.03. Disability Retirement. If so provided by the Employer in Section 1.06(c),
a Participant who becomes disabled will have a 100 percent nonforfeitable
interest in his Account, the balance of which Account, plus any amounts
thereafter credited to his Account, subject to the provisions of Section 7.08,
will be distributed to him in accordance with Article 8 below. A Participant is
considered disabled if he cannot engage in any substantial, gainful activity
because of a medically determinable physical or mental impairment likely to
result in death or to be of a continuous period of not less than 12 months, and
terminates his employment with the employer. Such termination of employment is
referred to as a disability retirement. Determinations with respect to
disability shall be made by the Administrator who may rely on the criteria set
forth in section 1.06(c) as evidence that the Participant is disabled.
7.04. Death. Subject, if applicable, to Section 8.04, if a Participant dies
before the distribution of his Account has commenced, or before such
distribution has been completed, his Account shall become 100
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percent vested and his designated Beneficiary or Beneficiaries will be entitled
to receive the balance or remaining balance of his Account, plus any amounts
thereafter credited to his Account, subject to the provisions of Section 7.08.
Distribution to the Beneficiary or Beneficiaries will be made in accordance with
Article 8.
A Participant may designate a Beneficiary or Beneficiaries, or change any
prior designation of Beneficiary or Beneficiaries by giving notice to the
Administrator on a form designated by the Administrator. If more than one person
is designated as the Beneficiary, their respective interests shall be as
indicated on the designation form. In the case of a married Participant the
Participant's spouse shall be deemed to be the designated Beneficiary unless the
Participant's spouse has consented to another designation in the manner
described in Section 8.03(d).
A copy of the death notice or other sufficient documentation must be filed
with and approved by the Administrator. If upon the death of the Participant
there is, in the opinion of the Administrator, no designated Beneficiary for
part or all of the Participant's Account, such amount will be paid to his
surviving spouse or, if none, to his estate (such spouse or estate shall be
deemed to be the Beneficiary for purposes of the Plan). If a Beneficiary dies
after benefits to such Beneficiary have commenced, but before they have been
completed, and, in the opinion of the Administrator, no person has been
designated to receive such remaining benefits, then such benefits shall be paid
in a lump sum to the deceased Beneficiary's estate.
7.05. Other Termination of Employment. If a Participant terminates his
employment for any reason other than death or normal, late, or disability
retirement, he will be entitled to a termination benefit equal to (i) the vested
percentage of the value of the Employer Contributions in his Account, as
adjusted for income, expense, gain, or loss, such percentage determined in
accordance with the venting schedule selected by the Employer in Section 1.07,
and (ii) the value of the Employee and Rollover Contributions in his Account as
adjusted for income, expense, gain or loss. The amount payable under this
Section 7.05 will be subject to the provisions of Section 7.08 and will be
distributed In accordance with Article 8 below.
7.06. Separate Account. If a distribution from a Participant's Account has been
made to him at a time when he has a nonforfeitable right to less than 100
percent of his Account, the vesting schedule in Section 1.07 will thereafter
apply only to amounts in his Account attributable to Employer Contributions
allocated after such distribution. The balance of his Account immediately after
such distribution will be transferred to a separate account which will be
maintained for the purpose of determining his interest therein according to the
following provisions.
At any relevant time prior to a forfeiture of any portion thereof under
Section 7.07 a Participant's nonforfeitable interest in his Account hold in a
separate account described in the preceding paragraph will be equal to (NAB +
(RxD))-(RxD), where P in the nonforfeitable percentage at the relevant time
determined under Section 7.05; AB is the account balance of the separate account
at the relevant time; 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. Following a forfeiture of any portion of such separate account
under Section 7.07 below, and balance in the Participant's separate account will
remain fully vested and nonforfeitable.
7.07. Forfeitures. If a Participant terminates his employment, any
portion of his Account (including any amounts credited after his
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termination of employment) not payable to him under Section 7.05 will be
forfeited by him upon the complete distribution to him of the vested portion of
his Account, if any, subject to the possibility of reinstatement as described in
the following paragraph. For purposes of this paragraph, if the value of an
Employee's vested account balance is zero, the Employee shall be deemed to have
received a distribution of his vested interest immediately following termination
of employment. Such forfeitures will be applied to reduce the contributions of
the Employer next payable under the Plan (or administrative expenses of the
Plan); the forfeitures shall be held in a money market fund pending such
application.
If a Participant forfeits any portion of his Account under the preceding
paragraph but does again become an Employee after such date, then the amount so
forfeited, without any adjustment for the earnings, expenses, or losses or gains
of the assets credited to his Account since the date forfeited, will be
recredited to his Account (or to a separate account as described in Section
7.06, if applicable) but only if he repays to the Plan before the earlier of
five years after the date of his reemployment or the date he incurs 5
consecutive 1-year breaks in service following the date of the distribution the
amount previously distributed to him, without interest, under Section 7.05. If
an Employee is deemed to receive a distribution pursuant to this Section 7.07,
and the Employee resumes employment before 5 consecutive 1-year breaks in
service, the Employee shall be deemed to have repaid such distribution on the
date of his reemployment. Upon such an actual or deemed repayment, the
provisions of the Plan (including Section 7.06) will thereafter apply as if no
forfeiture had occurred. The amount to be recredited pursuant to this paragraph
will be derived first from the forfeitures, if any, which as of the date of
recrediting have yet to be applied as provided in the preceding paragraph and,
to the extent such forfeitures are insufficient, from a special Employer
contribution to be made by the Employer.
If a Participant elects not to receive the nonforfeitable portion of his
Account following his termination of employment, the non-vested portion of his
Account shall be forfeited after the Participant has incurred five consecutive
1-year breaks in service as defined in Section 2.01(a)(33).
No forfeitures will occur solely an a result of a Participant's
withdrawal of Employee contributions.
7.08. Adjustment for Investment Experience. If any distribution under this
Article 7 is not made in a single payment, the amount retained by the Trustee
after the distribution will be subject to readjustment until distributed to
reflect the income and gain or loss on the investments in which such amount is
invested and any expenses properly charged under the Plan and Trust to such
amounts.
7.09. Participant Loans. If permitted under Section 1.09, the
Administrator shall allow Participants to apply for a loan from the
Plan, subject to the following
(a) Loan Application. All Plan loans shall be administered by the
Administrator. Applications for loans shall be made to the Administrator on
forms available from the Administrator. Loans shall be made available to
all Participants on a reasonably equivalent basis. For this purpose, the
term "Participant" means any Participant or Beneficiary, including an
alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, who is a party-in-interest (as determined under
ERISA Section 3(14)) with respect to the Plan except no loans will be made
to: (i) an Employee who makes a rollover contribution in
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accordance with Section 4.10 who has not satisfied the requirements of
Section 3.01, or (ii) a shareholder-employee or Owner-Employee. For
purposes of this requirement, a shareholder-employee means an employee or
officer of an electing small business (Subchapter S) corporation who owns
(or is considered as owning within the meaning of Section 318(a)(1) of the
Code), on any day during the taxable year of such corporation, more than 5%
of the outstanding stock of the corporation.
A Participant with an existing loan may not apply for another loan
until the existing loan in paid in full and may not refinance an existing
loan or attain a second loan for the purpose of paying off the existing
loan. A Participant may not apply for more than one loan during each Plan
Year.
(b) Limitation of Loan Amount/Purpose of Loan. Loans shall not be made
available to Highly Compensated Employees in an amount greater than the
amount made available to other employees. No loan to any Participant or
Beneficiary can be made to the extent that such loan when added to the
outstanding balance of all other loans to the Participant or Beneficiary
would exceed the lesser of (a) $50,000 reduced by the excess (if any) of
the highest outstanding balance of loans during the one year period ending
on the day before the loan is made over the outstanding balance of loans
from the plan on the date the loan is made, or (b) one-half the present
value of the nonforfeitable Account of the Participant. For the purpose of
the above limitation, all loans from all plans of the Employer and Related
Employers are aggregated. A Participant may not request a loan for less
than $1,000. The Employer may provide that loans only be made from certain
contribution sources within Participant Account(s) by notifying the Trustee
in writing of the restricted source.
Loans may be made for any purpose or if elected by the Employer in
Section 1.09(a), on account of hardship only. A loan will be considered to
be made on account of hardship only if made on account of the following
immediate and heavy financial needs: expenses incurred or necessary for
medical care (within the meaning of Section 213(d) of the Code) of the
Employee, the Employee's spouse, children or dependents; the purchase
(excluding mortgage payments) of a principal residence for the Employee;
payment of tuition and related educational fees for the next twelve (12)
months of post-secondary education for the Employee, the Employee's spouse,
children or dependents; or the need to prevent the eviction of the Employee
from, or a foreclosure on the mortgage of, the Employee's principal
residence.
(c) Terms of Loan. All loans shall bear a reasonable rate of interest as
determined by the Administrator based on the prevailing interest rates
charged by persons in the business of lending money for loans which would
be made under similar circumstances. The determination of a reasonable
rate of interest must be based on appropriate regional factors unless the
Plan is administered on a national basis in which case the Administrator
may establish a uniform reasonable rate of interest applicable to all
regions.
All loans shall by their terms require that repayment (principal and
interest) be amortized in level payments, not less than quarterly, over a
period not extending beyond five years from the date of the loan unless
such loan is for the purchase of a Participant's primary residence, in
which case the repayment period may not extend beyond ten years from the
date of the loan. A Participant may prepay the outstanding loan balance
prior to maturity without penalty.
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(d) Security. Loans must be secured by the Participant's Accounts not to
exceed 50 percent of the Participant's vested Account. A Participant must
obtain the consent of his or her spouse, if any, to use a Participant
Account as security for the loan, if the provisions of Section 8.03 apply
to the Participant. Spousal consent shall be obtained no earlier than the
beginning of the 90-day period that ends on the date on which the loan is
to be so secured. The consent must be in writing, must acknowledge the
effect of the loan, and must be witnessed by a Plan representative or
notary public. Such consent shall thereafter be binding with respect to the
consenting spouse or any subsequent spouse with respect to that loan.
(e) Default. The Administrator shall treat a loan in default if:
(1) any scheduled repayment remains unpaid more than 90 days;
(2) there is an outstanding principal balance existing on a loan after
the last scheduled repayment date.
Upon default or termination of employment, the entire outstanding
principal and accrued interest shall be immediately due and payable. If a
distributable event (as defined by the Code) has occurred, the
Administrator shall direct the Trustee to foreclose on the promissory note
and offset the Participant's vested Account by the outstanding balance of
the loan. If a distributable event has not occurred, the Administrator
shall direct the Trustee to foreclose on the promissory note and offset the
Participant's vested Account an soon as a distributable event occurs.
(f) Pre-existing loans. The provision in paragraph (a) of this Section 7.09
limiting a Participant to one outstanding loan shall not apply to loans
made before the Employer adopted this prototype plan document. A
Participant may not apply for a new loan until all outstanding loans made
before the Employer adopted this prototype plan have been paid in full. The
Trustee may accept any loans made before the Employer adopted this
prototype plan document except such loans which require the Trustee to hold
as security for the loan property other than the Participant's vested
Account.
As of the effective date of amendment of this Plan in Section
1.01(g)(2), the Trustee shall have the right to reamortize the outstanding
principal balance of any Participant loan that is delinquent. Such
reamortization shall be based upon the remaining life of the loan and the
original maturity date may not be extended.
Notwithstanding any other provision of this Plan, the portion of the
Participant's vested Account used as a security interest held by the plan
by reason of a loan outstanding to the Participant shall be taken into
account for purposes of determining the amount of the Account payable at
the time of death or distribution, but only if the reduction is used as
repayment of the loan. If less than 100% of the Participant's vested
Account (determined without regard to the preceding sentence) is payable to
the surviving spouse, then the Account shall be adjusted by first reducing
the vested Account by the amount of the security used as repayment of the
loan, and then determining the benefit payable to the surviving spouse.
No loan to any Participant or Beneficiary can be made to the extent
that such loan when added to the outstanding balance of all other loans to
the Participant or Beneficiary would exceed the
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lesser of (a) $50,000 reduced by the excess (if any) of the highest
outstanding balance of loans during the one year period ending on the day
before the loan is made over the outstanding balance of loans from the plan
on the date the loan is made, or (b) one-half the present value of the
nonforfeitable Account of the Participant. For the purpose of the above
limitation, all loans from all plans of the Employer and Related Employers
are aggregated.
7.10. In-Service Withdrawals. A Participant shall not be permitted to
withdraw any Employer Contributions (and earnings thereon) prior to the
termination of employment. A Participant shall be permitted to withdraw some or
all of his Rollover Contributions (and earnings thereon) upon request.
7.11. Prior Plan In-Service Distribution Rules. If designated by the Employer in
Section 1.11(b), a Participant shall be entitled to withdraw any after-tax
contributions made prior to the adoption of this Plan at anytime prior to his
termination of employment, subject to the provisions of Section 8.05.
Article 8. Distribution of Benefits Payable after Termination of Service.
8.01. Distribution of Benefits to Participants and Beneficiaries.
(a) Distributions from the Trust to a Participant or to the Beneficiary of
the Participant shall be made in a lump sum in cash or, if elected by the
Employer in Section 1.11, under a systematic withdrawal plan
(installment(s)) upon retirement, death, disability, or other termination
of employment, unless another form of distribution is required or permitted
in accordance with paragraph (d) of this Section 8.01 or Sections 1.11(c),
8.02, 8.03, 8.04 or 11.02. A distribution may be made in Fund Shares, at
the election of the Participant, pursuant to the qualifying rollover of
such distribution to a Fidelity Investments individual retirement account.
(b) Distributions under a systematic withdrawal plan must be made in
substantially equal annual, or more frequent, installments, in cash, over a
period certain which does not extend beyond the life expectancy of the
Participant or the joint life expectancies of the Participant and his
Beneficiary, or, if the Participant dies prior to the commencement of his
benefits the life expectancy of the Participant's Beneficiary, as further
described in Section 8.04.
(c) Notwithstanding the provisions of Section 8.01(b) above, if a
Participant's Account is, and at the time of any prior distribution(s) was,
$3,500 or less, the balance of such Account shall be distributed in a lump
sum as soon as practicable following retirement, disability, death or other
termination of employment.
(d) This paragraph (d) 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 8, a
distributee may elect, at the time and in the manner prescribed by the
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.
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The following definitions shall apply for purposes of this paragraph (d):
(1) Eligible rollover distribution: An eligible rollover distribution is
any distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not
include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or
life expectancy) of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated
beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under 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 for
net unrealized appreciation with respect to employer securities).
(2) 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 a surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement annuity.
(3) Distributee: A distributee includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse and the
Employee's or former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, are distributees with regard to the interest of
the spouse or former spouse.
(4) Direct rollover: A direct rollover is a payment by the plan to the
eligible retirement plan specified by the distributee.
8.02. Annuity Distributions. A Participant may elect distributions made in
whole or in part in the form of an annuity contract, subject to the provisions
of Section 8.03.
(a) An annuity contract distributed under the Plan must be purchased from
an insurance company and must be nontransferable. The terms of an annuity
contract shall comply with the requirements of the Plan and distributions
under such contract shall be made in accordance with Section 401(a)(9) of
the Code and the regulations thereunder.
(b) The payment period of an annuity contract distributed to the
Participant pursuant to this Section may be as long as the Participant
lives. If the annuity is payable to the Participant and his spouse or
designated Beneficiary, the payment period of an annuity contract may be
for as long as either the Participant or his spouse or designated
Beneficiary lives. Such an annuity may provide for an annuity certain
feature for a period not exceeding the life expectancy of the Participant.
If the annuity is payable to the Participant and his spouse such period may
not exceed the joint life and last survivor expectancy of the Participant
and his spouse, or, if the annuity is payable to the Participant and a
designated Beneficiary, the joint life and last survivor expectancy
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of the Participant and such Beneficiary. If the Participant dies prior to
the commencement of his benefits, the payment period of an annuity
contract distributed to the Beneficiary of the Participant may be as long
as the Participant's Beneficiary lives, and may provide for an annuity
certain feature for a period not exceeding the life expectancy of the
Beneficiary. Any annuity contract distributed under the Plan must provide
for nonincreasing payments.
8.03. Joint and Survivor Annuities/Preretirement Survivor Annuities.
(a) Application. The provisions of this Section supersede any conflicting
provisions of the Plan; provided, however, that paragraph (b) of this
Section shall not apply if the Participant's Account does not exceed or
at the time of any prior distribution did not exceed $3,500.
(b) Retirement Annuity. Unless the Participant elects to waive the
application of this subsection in a manner satisfying the requirements of
subsection (d) below, to the extent applicable to the Participant, within
the 90-day period preceding his Annuity Starting Date (which election may
be revoked, and if revoked, remade, at any time in such period), the
vested Account due any Participant to whom this subsection (b) applies
will be paid to him by the purchase and delivery to him of an annuity
contract described in Section 8.02 providing a life annuity only form of
benefit or, if the Participant is married as of his Annuity Starting
Date, providing an immediate annuity for the life of the Participant with
a survivor annuity for the life of the Participant's spouse (determined
as of the date of distribution of the contract) which is 50 percent of
the amount of the annuity which is payable during the joint lives of the
Participant and such spouse. The Participant may elect to receive
distribution of his benefits in the form of such annuity as of the
earliest date on which he could elect to receive retirement benefits
under the Plan. Within the period beginning 90 days prior to the
Participant's Annuity Starting Date and ending 30 days prior to such
Date, the Administrator will provide such Participant with a written
explanation of (i) the terms and conditions of the annuity contract
described herein, (ii) the Participant's right to make and the effect of
an election to waive application of this subsection, (iii) the rights of
the Participant's spouse under subsection (d), and (iv) the right to
revoke and the period of time effect of a revocation of the election to
waive application of this subsection.
(c) Annuity Death Benefit. Unless the Participant elects to waive the
application of this subsection in a manner satisfying the requirements of
subsection (d) below at any time within the applicable election period
(which election may be revoked, and if revoked, remade, at any time in
such period), if a married Participant to whom this Section applies dies
before his Annuity Starting Date, then notwithstanding any designation of
a Beneficiary to the contrary, 50 percent of his vested Account will be
applied to purchase an annuity contract described in Section 8.02
providing an annuity for the life of the Participant's surviving spouse,
which contract will then be promptly distributed to such spouse. In lieu
of the purchase of such an annuity contract, the spouse may elect in
writing to receive distributions under the Plan as if he or she had been
designated by the Participant as his Beneficiary with respect to 50
percent of his Account. For purposes of this subsection, the applicable
election period will commence on the first day of the Plan Year in which
the Participant attains age 35 and will end on the date of the
Participant's death, provided that in the case of a Participant who
terminates his employment the applicable election period with
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respect to benefits accrued prior to the date of such termination will in
no event commence later than the date of his termination of employment. A
Participant may elect to waive the application of this subsection prior
to the Plan Year in which he attains age 35, provided that any such
waiver will cease to be effective as of the first day of the Plan Year in
which the Participant attains age 35.
The Administrator will provide a Participant to whom this
subsection applies with a written explanation with respect to the annuity
death benefit described in this subsection (c) comparable to that
required under subsection (b) above. Such explanation shall be furnished
within whichever of the following periods ends last: (i) the period
beginning with the first day of the Plan Year in which the Participant
reaches age 32 and ending with the end of the Plan Year preceding the
Plan Year in which he reaches age 35, (ii) a reasonable period ending
after the Employee becomes a Participant, (iii) a reasonable period
ending after this Section 8.04 first becomes applicable to the
Participant in accordance with Section 8.04(a), (iv) in the case of a
Participant who separates from service before age 35, a reasonable period
of time ending after separation from service. For purposes of the
preceding sentence, the two-year period beginning one year prior to the
date of the event described in clause (ii), (iii) or (iv), whichever is
applicable, and ending one year after such date shall be considered
reasonable, provided, that in the case of a Participant who separates
from service under (iv) above and subsequently recommences employment
with the Employer, the applicable period for such Participant shall be
redetermined in accordance with this Subsection.
(d) Requirements of Elections. This subsection will be satisfied with
respect to a waiver or designation which is required to satisfy this
subsection if such waiver or designation is in writing and either
(1) the Participant's spouse consents thereto in writing, which
consent must acknowledge the effect of such waiver or designation
and be witnessed by a notary public or Plan representative, or
(2) the Participant establishes to the satisfaction of the
Administrator that the consent of the Participant's spouse cannot
be obtained because there is no spouse, because the spouse cannot
be located or because of such other circumstances as the Secretary
of Treasury may prescribe.
Any consent by a spouse, or establishment that the consent of a
spouse may not be obtained, will be effective only with respect to
a specific Beneficiary (including any class of beneficiaries or
any contingent beneficiaries) or form of benefits identified in
the Participant's waiver or designation, unless the consent of the
spouse expressly permits designations by the Participant without
any requirement of further consent by the spouse. A consent which
permits such designations by the Participant shall acknowledge
that the spouse has the right to limit consent to a specific
Beneficiary and form of benefits and that the spouse voluntarily
elects to relinquish both such rights. A consent by a spouse shall
be irrevocable once made. Any such consent, or establishment that
such consent may not be obtained, will be effective only with
respect to such spouse. For purposes of subsections (b) and (c)
above, no consent of a spouse shall be valid unless the notice
required by such subsection, whichever is applicable, has been
provided to the Participant.
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(e) Former Spouse. For purposes of this Section 8.03, a former spouse of a
Participant will be treated as the spouse or surviving spouse of the
Participant, and a current spouse will not be so treated, to the extent
required under a qualified domestic relations order, as defined in Section
414(p) of the Code.
(f) Vested Account. For purposes of this Section, vested Account shall
include the aggregate value of the Participant's vested Account derived
from Employer and Employee contributions (including rollovers), whether
vested before or upon death. The provisions of this Section shall apply to
a Participant who is vested in amounts attributable to Employer
contributions, Employee contributions, or both, upon death or at the time
of distribution.
8.04 Installment Distributions. This Section shall be interpreted and applied in
accordance with the regulations under Section 401(a)(9) of the Code, including
the minimum distribution incidental benefit requirement of Section 1.401(a)(9)-2
of the regulations.
(a) In General. If a Participant's benefit may be distributed in
accordance with Section 8.01(b), the amount to be distributed for each
calendar year for which a minimum distribution in required shall be at
least an amount equal to the quotient obtained by dividing the
Participant's interest in his Account by the life expectancy of the
Participant or Beneficiary or the joint life and last survivor expectancy
of the Participant and his Beneficiary, whichever is applicable. For
calendar years beginning before January 1, 1989, if a Participant's
Beneficiary is not his spouse, the method of distribution selected must
insure that at least 50 percent of the present value of the amount
available for distribution is paid within the life expectancy of the
Participant. For calendar years beginning after December 31, 1988 the
amount to be distributed for each calendar year shall not be less than an
amount equal to the quotient obtained by dividing the Participant's
interest in his Account by the lesser of (i) the applicable life
expectancy under Section 8.01(b), or (ii) if a Participant's Beneficiary
is not his spouse, the applicable divisor determined under Section
1.401(a)(9)-2, Q&A 4 of the Proposed Treasury Regulations, or any
successor regulations of similar import. Distributions after the death of
the Participant shall be made using the applicable life expectancy under
(i) above, without regard to Section 1.401(a)(9)-2 of such regulations.
The minimum distribution required under this subsection (a) for the
calendar year immediately preceding the calendar year in which the
Participant's required beginning date, as determined under Section
8.08(b), occurs shall be made on or before the Participant's required
beginning date, as so determined. Minimum distributions for other calendar
years shall be made on or before the close of such calendar year.
(b) Additional Requirements for Distributions After Death of Participant.
(1) Distribution beginning before Death. If the Participant dies
before distribution of his benefits has begun, distributions shall be made
in accordance with the provisions of this paragraph. Distributions under
Section 8.01(a) shall be completed by the close of the calendar year in
which the fifth anniversary of the death of the Participant occurs.
Distributions under Section 8.01(b) shall commence, if the Beneficiary is
not the Participant's spouse, not later than the close of the calendar
year immediately following the calendar
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year in which the death of the Participant occurs.
Distributions under Section 8.01(b) to a Beneficiary who is
the Participant's surviving spouse shall commence not later
than the close of the calendar year in which the
Participant would have attained age 70 1/2 or, if later,
the close of the calendar year immediately following the
calendar year in which the death of the Participant occurs.
In the event such spouse dies prior to the date
distribution to him or her commences, he or she will be
treated for purposes of this subsection (other than the
preceding sentence) as if he or she were the Participant.
If the Participant has not designated a Beneficiary, or the
Participant or Beneficiary has not effectively selected a
method of distribution, distribution of the Participant's
benefit shall be completed by the close of the calendar
year in which the fifth anniversary of the death of the
Participant occurs.
Any amount paid to a child of the Participant will be
treated as if it had been paid to the surviving spouse if
the Amount becomes payable to the surviving spouse when the
child reaches the age of majority.
For purposes of this subsection (b)(1), the life expectancy
of a Beneficiary who is the Participant's surviving spouse
shall be recalculated annually unless the Participant's
spouse irrevocably elects otherwise prior to the time
distributions are required to begin. Life expectancy shall
be computed in accordance with the provisions of subsection
(a) above.
(2) Distribution beginning after Death. If the Participant
dies after distribution of his benefits has begun,
distributions to the Participant's Beneficiary will be made
at least as rapidly as under the method of distribution
being used as of the date of the Participant's death.
For purposes of this Section 8.04(b), distribution of a
Participant's interest In his Account will be considered to begin as of
the Participant's required beginning date, as determined under Section
8.08(b). If distribution in the form of an annuity irrevocably commences
prior to such date, distribution will be considered to begin as of the
actual date distribution commences.
(c) Life Expectancy. For purposes of this Section, life expectancy shall
be recalculated annually in the case of the Participant or a Beneficiary
who is the Participant's spouse unless the Participant or Beneficiary
irrevocably elects otherwise prior to the time distributions are required
to begin. If not recalculated in accordance with the foregoing, life
expectancy shall be calculated using the attained age of the Participant
or Beneficiary, whichever in applicable, as of such individual's birth
date in the first year for which a minimum distribution is required
reduced by one for each elapsed calendar year since the date life
expectancy was first calculated. For purposes of this Section, life
expectancy and joint life and last survivor expectancy shall be computed
by use of the expected return multiples in Table V and VI of section
1.72-9 of the income tax Regulations.
A Participant's interest in his Account for purposes of this
Section 8.04 shall be determined as of the last valuation date in the
calendar year immediately preceding the calendar year for which a minimum
distribution is required, increased by the amount of any contributions
allocated to, and decreased by any distributions from, such Account after
the valuation date. Any distribution for the first year for which a
minimum distribution is required made
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after the close of such year shall be treated as if made prior to the
close of such year.
8.05. Immediate Distributions. If the Account distributable to a Participant
exceeds, or at the time of any prior distribution exceeded, $3,500, no
distribution will be made to the Participant before he reaches his Normal
Retirement Age (or age 62, if later), unless the written consent of the
Participant has been obtained. Such consent shall be made in writing Within the
90-day period ending on the Participant's Annuity Starting Date. Within the
period beginning 90 days before the Participant's Annuity Starting Date and
ending 30 days before such Date, the Administrator will provide such Participant
with written notice comparable to the notice described in Section 8.03(b)
containing a general description of the material features and an explanation of
the relative values of the optional forms of benefit available under the Plan
and informing the Participant of his right to defer receipt of the distribution
until his Normal Retirement Age (or age 62, if later).
The consent of the Participant's spouse must also be obtained if the
Participant is subject to the provisions of Section 8.03(a), unless the
distribution will be made in the form of the applicable retirement annuity
contract described in Section 8.03(b). A spouse's consent to early distribution,
if required, must satisfy the requirements of Section 8.03(d).
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 it does not offer an annuity option (purchased from a commercial provider)
and if the Employer or any Related Employer does not maintain another defined
contribution plan (other than an employee stock ownership plan as defined in
Code Section 4975(e)(7)) the Participant's Account will, without the
Participant's consent, be distributed to the Participant. However, if any
Related Employer maintains another defined contribution plan (other than an
employee stock ownership plan as defined in Section 4975(e)(7) of the Code) then
the Participant's Account will be transferred, without the Participant's
consent, to the other plan if the Participant does not consent to an immediate
distribution.
8.06. Determination of Method of Distribution. The Participant will determine
the method of distribution of benefits to himself and may determine the method
of distribution to his Beneficiary. Such determination will be made prior to the
time benefits become payable under the Plan. If the Participant does not
determine the method of distribution to his Beneficiary or if the Participant
permits his Beneficiary to override his determination, the Beneficiary, in the
event of the Participant's death, will determine the method of distribution of
benefits to himself as if he were the Participant. A determination by the
Beneficiary must be made no later than the close of the calendar year in which
distribution would be required to begin under Section 8.04(b) or, if earlier,
the close of the calendar year in which the fifth anniversary of the death of
the Participant occurs.
8.07. Notice to Trustee. The Administrator will notify the Trustee in writing
whenever any Participant or Beneficiary in entitled to receive benefits under
the Plan. The Administrator's notice shall indicate the form of benefits that
such Participant or Beneficiary shall receive and (in the case of distributions
to a Participant) the name of any designated Beneficiary or Beneficiaries.
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8.08. Time of Distribution. In no event will distribution to a Participant be
made later than the earlier of the dates described in (a) and (b) below:
(a) Absent the consent of the Participant (and his spouse, if
appropriate), the 60th day after the close of the Plan Year in which
occurs the later of the date on which the Participant attains age 65, the
date on which the Participant ceases to be employed by the Employer; or
the 10th anniversary of the year in which the Participant commenced
participation in the Plan; and
(b) April 1 of the calendar year first following the calendar year in
which the Participant attains age 70 1/2 or, in the case of a Participant
who had attained age 70 1/2 before January 1, 1988, the required
beginning date determined in accordance with (1) or (2) below:
(1) 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.
(2) The required beginning date of a Participant who in a 5
percent owner during any year beginning after December 31, 1979,
in the first day of April following the later of:
(i) the calendar year in which the participant attains age
70-1/2, or
(ii) 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.
Notwithstanding the foregoing, in the case of a Participant who attained
age 70 1/2 during 1988 and who had not retired prior to January 1, 1989, the
required beginning date described in this paragraph shall be April 1, 1990.
Notwithstanding (a) above, the failure of a Participant (and spouse) to
consent to a distribution while a benefit is immediately distributable, within
the meaning of Section 8.05, shall be deemed to be an election to defer
commencement of payment of any benefit sufficient to satisfy (a) above.
Once distributions have begun to a 5-percent owner under (b) above, they
must continue to be distributed, even if the Participant ceases to be a
5-percent owner in a subsequent year.
For purposes of (b) above, a Participant is treated as a 5-percent owner
if such participant is a 5-percent owner an 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.
The Administrator shall notify the Trustee in writing whenever a
distribution is necessary in order to comply with the minimum distribution rules
set forth in this Section.
8.09. Whereabouts of Participants and Beneficiaries. The Administrator will at
all times be responsible for determining the whereabouts of each Participant or
Beneficiary who may be entitled to benefits under the Plan and will at all times
be responsible for instructing the Trustee in
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writing as to the current address of each such Participant or Beneficiary. The
Trustee will be entitled to rely on the latest written statement received from
the Administrator as to such addresses. The Trustee will be under no duty to
make any distributions under the Plan unless and until it has received written
instructions from the Administrator satisfactory to the Trustee containing the
name and address of the distributee, the time when the distribution is to occur,
and the form which the distribution will take. Notwithstanding the foregoing, if
the Trustee attempts to make a distribution in accordance with the
Administrator's instructions but is unable to make such distribution because the
whereabouts of the distributee is unknown, the Trustee will notify the
Administrator of such situation and thereafter the Trustee will be under no duty
to make any further distributions to such distributee until it receives further
written instructions from the Administrator. If a benefit is forfeited because
the Administrator determines that the Participant or beneficiary cannot be
found, such benefit will be reinstated by the Sponsor if a claim is filed by the
Participant or Beneficiary with the Administrator and the Administrator confirms
the claim to the Sponsor.
Article 9. Top-Heavy Provisions.
9.01 Application. If the Plan is or becomes a Top-Heavy Plan in any Plan Year or
is automatically deemed to be Top-Heavy in accordance with the Employer's
election in Section 1.12(a)(1) of the Adoption Agreement, the provisions of this
Article 9 shall supersede any conflicting provision in the Plan.
9.02 Definitions. For purposes of this Article 9, the following terms have the
meanings set forth below:.
(a) Key Employee. Any Employee or former Employee (and the Beneficiary of
any such Employee) who at any time during the determination period was
(i) an officer of the Employer whose annual compensation exceeds 50
percent of the dollar limitation under Section 415(b)(1)(A) of the Code,
(ii) an owner (or 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 exceeds the dollar limitation under Section
415(c)(1)(A) of the Code, (iii) a 5-percent owner of the Employer, or
(iv) a 1-percent owner of the Employer who has annual compensation of
more than $150,000. For purposes of this paragraph, the determination
period is the Plan Year containing the Determination Date and the four
preceding Plan Years. 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. Annual compensation means compensation as defined in Section
5.03(e)(2), 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), and Section 403(b) of
the Code.
(b) Too-Heavy Plan. The Plan is a Top-Heavy Plan if any of the following
conditions exists:
(1) 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;
(2) the Plan is a part of a Required Aggregation Group but not
part of a Permissive Aggregation Group and the Top-Heavy Ratio for
the Required Aggregation Group exceeds 60 percent; or
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(3) the Plan is a part of a Required Aggregation Group and a
Permissive Aggregation Group and the Top-Heavy Ratio for both
Groups exceeds 60 percent.
(c) Top-Heavy Ratio.
(1) With respect to this Plan, or with respect to any Required
Aggregation Group or Permissive Aggregation Group that consists
solely of defined contribution plans (including any simplified
employee pension plans) and the Employer has not maintained any
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 is a fraction, the numerator of which is the sum
of the account balances of all Key Employees under the plans as of
the Determination Date (including any part of any account balance
distributed in the 5-year period ending on the Determination
Date), 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) of all
participants under the plans as of the Determination Date. Both
the numerator and denominator of the Top-Heavy Ratio shall be
increased, to the extent required by Section 416 of the Code, to
reflect any contribution which is due but unpaid as of the
Determination Date.
(2) With respect to any Required Aggregation Group or Permissive
Aggregation Group that includes one or more defined benefit plans
which, during the 5-year period ending on the Determination Date,
has covered or could cover a Participant in this Plan, the
Top-Heavy Ratio in a fraction, the numerator of which is the sum
of the account balances under the defined contribution plans for
all Key Employees and the present value of accrued benefits under
the defined benefit plans for all Key Employees, and the
denominator of which is the sum of the account balances under the
defined contribution plans for all participants and the present
value of accrued benefits under the defined benefit plans for all
participants. Both the numerator and denominator of the Top-Heavy
Ratio shall be increased for any distribution of an account
balance or an accrued benefit made in the 5-year period ending on
the Determination Date and any contribution due but unpaid as of
the Determination Date.
(3) For purposes of (1) and (2) above, the value of Accounts 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 regulations thereunder
for the first and second plan years of a defined benefit plan. The
Account and accrued benefits of a Participant (i) who is not a Key
Employee but who was a Key Employee in a prior year, or (ii) who
has not been credited with at least one Hour of Service with the
Employer 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, shall be made in accordance
with Section 416 of the Code and the regulations thereunder.
Deductible employee contributions shall not be taken into account
for purposes of computing the Top-Heavy Ratio. When aggregating
plans, the value of Accounts and accrued benefits shall be
calculated with reference to the Determination Dates that fall
within the same calendar year.
For purposes of determining if the Plan, or any other plan
included in a Required Aggregation Group of which this Plan is a
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part, is a Top-Heavy Plan, the accrued benefit in a defined
benefit plan of an Employee other than a Key Employee shall be
determined under (a) the method, if any, that uniformly applies
for accrual purposes under all 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 accrual rate of Section 411(b)(1)(C) of the Code.
(d) Permissive Aggregation Group. The Required Aggregation Group plus any
other qualified plans of the Employer or a Related 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.
(e) Required Aggregation Group.
(1) Each qualified plan of the Employer or Related Employer in
which at least one Key Employee participates, or has participated
at any time during the determination period (regardless of whether
the plan has terminated), and
(2) any other qualified plan of the Employer or Related Employer
which enables a plan described in (1) above to meet the
requirements of Sections 401(a)(4) or 410 of the Code.
(f) Determination Date. For any Plan Year of the Plan 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 Plan Year.
(g) Valuation Date. The Determination Date.
(h) Present Value. Present value shall be based only on the interest rate
and mortality table specified in the Adoption Agreement.
9.03. Minimum Contribution.
(a) Except as otherwise provided in (b) and (c) below, the Employer
Contributions made on behalf of any Participant who is not a Key Employee
shall not be less than the lesser of 3 percent (or such other percent
elected by the Employer in Section 1.12(c)) 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, as a percentage of the
first $200,000 of the Key Employee's Compensation, made on behalf of any
Key Employee for that year. The minimum contribution under this Section
9.03 shall be determined without regard to permitted disparity under
Section 4.02. Further, the minimum contribution under this Section 9.03
shall be made even though, under other Plan provisions, the Participant
would not otherwise be entitled to receive a contribution, or would have
received a lesser contribution for the year, because (i) the Participant
failed to complete 1,000 Hours of Service or any equivalent service
requirement provided in the Adoption Agreement; or (ii) the Participant's
Compensation was less than a stated amount.
(b) The provisions of (a) above shall not apply to any Participant who
was not employed by the Employer on the last day of the Plan Year.
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(c) The Employer contributions for the Plan Year made on behalf of each
Participant who is not a Key Employee and who is a participant in a
defined benefit plan maintained by the Employer shall not be less than 5
percent of such Participant's Compensation, unless the Employer has
provided in Section 1.12(c) that the minimum contribution requirement
will be met in the other plan or plans of the Employer.
(d) The minimum contribution required under (a) above (to the extent
required to be nonforfeitable under Section 416(b) of the Code) may not
be forfeited under Sections 411(a)(3)(B) or 411(a)(3)(D) of the Code.
9.04. Adjustment to the Limitation on Contributions and Benefits. If this Plan
is in Top-Heavy status, the number 100 shall be substituted for the number 125
in subsections (e)(3) and (e)(4) of Section 5.03. However, this substitution
shall not take effect with respect to this Plan in any Plan Year in which the
following requirements are satisfied:
(a) The Employer contributions for such Plan Year made on behalf of each
Participant who is not a Key Employee and who is a participant in a
defined benefit plan maintained by the Employer is not less than 7 1/2
percent of such Participant's Compensation.
(b) The sum of the present value as of the Determination Date of (i) the
aggregate accounts of all Key Employees under all defined contribution
plans of the Employer and (ii) the cumulative accrued benefits of all Key
Employees under all defined benefit plans of the Employer does not exceed
90 percent of the same amounts determined for all Participants under all
plans of the Employer that are Top-Heavy Plans, excluding Accounts and
accrued benefits for Employees who formerly were but are no longer Key
Employees.
The substitutions of the number 100 for 125 shall not take effect
in any limitation Year with respect to any Participant for whom no
benefits are accrued or contributions made for such Year.
9.05. Minimum Vesting. For any Plan Year in which the Plan in a Top-Heavy Plan
and all Plan Years thereafter, the Top-Heavy vesting schedule elected in Section
1.12(d) will automatically apply to the Plan. The Top-Heavy vesting schedule
applies to all benefits within the meaning of Section 411(a)(7) of the Code
except those attributable to Employee Contributions or those already subject to
a vesting schedule which vests at least as rapidly in all cases as the schedule
elected in Section 1.12(d), including benefits accrued before the Plan becomes a
Top-Heavy Plan. Further, no decrease in a Participant's nonforfeitable
percentage may occur in the event the Plan's status as a Top-Heavy Plan changes
for any Plan Year. However, this Section 9.05 does not apply to the Account of
any Employee who does not have an Hour of Service after the Plan has initially
become a Top-Heavy Plan and such Employee's Account attributable to Employer
contributions will be determined without regard to this Section 9.05.
Article 10. Amendment and Termination.
10.01 Amendment by Employer. The Employer reserves the authority, subject to the
provisions of Article 1 and Section 10.03, to amend the Plan:
(a) Changing Elections Contained in the Adoption Agreement. By filing
with the Trustee an amended Adoption Agreement, executed by the Employer
only, on which said Employer has indicated a change or
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changes in provisions previously elected by it. Such changes are to be
effective on the effective date of such amended Adoption Agreement except
that retroactive changes to a previous election or elections pursuant to
the regulations issued under Section 401(a)(4) of the Code shall be
permitted. Any such change notwithstanding, no Participant's Account
shall be reduced by such change below the amount to which the Participant
would have been entitled if he had voluntarily left the employ of the
Employer immediately prior to the date of the change. The Employer may
from time to time make any amendment to the Plan that may be necessary to
satisfy Sections 415 or 416 of the Code because of the required
aggregation of multiple plans by completing overriding Plan language in
the Adoption Agreement. The Employer may also add certain model
amendments published by the Internal Revenue Service which specifically
provide that their adoption will not cause the Plan to be treated as an
individually designed plan; or
(b) Other Changes. By amending any provision of the Plan for any reason
other than those specified in (a) above. However, upon making such
amendment, including a waiver of the minimum funding requirement under
Section 412(d) of the Code, the Employer may no longer participate in
this prototype plan arrangement and will be deemed to have an
individually designed plan. Following such amendment, the Trustee may
transfer the assets of the Trust to the trust forming part of such newly
adopted plan upon receipt of sufficient evidence (such as a determination
letter or opinion letter from the Internal Revenue Service or an opinion
of counsel satisfactory to the Trustee) that such trust will be a
qualified trust under the Code.
10.02. Amendment by Prototype Sponsor. The Prototype Sponsor may in its
discretion amend the Plan or the Adoption Agreement at any time, subject to the
provisions of Article 1 and Section 10.03, and provided that the Prototype
Sponsor mails a copy of such amendment to the Employer at its last known address
as shown on the books of the Prototype Sponsor.
10.03. Amendments Affecting Vested and/or Accrued Benefits.
(a) Except as permitted by Section 10.04, no amendment to the Plan shall
be effective to the extent that it has the effect of decreasing a
Participant's Account or eliminating an optional form of benefit with
respect to benefits attributable to service before the amendment.
Furthermore, if the vesting schedule of the Plan is amended, the
nonforfeitable interest of a Participant in his Account, determined as of
the later of the date the amendment is adopted or the date it becomes
effective, will not be less than the Participant's nonforfeitable
interest in his Account determined without regard to such amendment.
(b) If the Plan's vesting schedule is amended, including any amendment
resulting from a change to or from Top-Heavy Plan status, or the Plan is
amended in any way that directly or indirectly affects the computation of
a Participant's nonforfeitable interest in his Account, each Participant
with at least three (3) Years of Service for Vesting with the Employer
may elect, within a reasonable period after the adoption of the
amendment, to have the nonforfeitable percentage of his Account computed
under the Plan without regard to such amendment. The Participant's
election may be made within 60 days from the latest of (i) the date the
amendment is adopted; (ii) the date the amendment becomes effective; or
(iii) the date the Participant is issued written notice of the amendment
by the Employer or the Administrator.
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10.04. Retroactive Amendments. An amendment made by the sponsor in accordance
with Section 10.02 may be made effective on a date prior to the first day of the
Plan Year in which it is adopted if such amendment is necessary or appropriate
to enable the Plan and Trust to satisfy the applicable requirements of the Code
or to conform the Plan to any change in federal law, or to any regulations or
ruling thereunder. Any retroactive amendment by the Employer shall be subject to
the provisions of Section 10.01.
10.05. Termination. The Employer has adopted the Plan with the intention and
expectation that contributions will be continued indefinitely. However, said
Employer has no obligation or liability whatsoever to maintain the Plan for any
length of time and may discontinue contributions under the Plan or terminate the
Plan at any time by written notice delivered to the Trustee without any
liability hereunder for any such discontinuance or termination.
10.06. Distribution upon Termination of the Plan. Upon termination or partial
termination of the Plan or complete discontinuance of contributions thereunder,
each Participant (including a terminated Participant with respect to amounts
not previously forfeited by him) who is affected by such termination or partial
termination or discontinuance will have a fully vested interest in his Account,
and, subject to Article 8, the Trustee will distribute to each Participant or
other person entitled to distribution the balance of the Participant's Account
in a single lump sum payment. In the absence of such instructions, the Trustee
will notify the Administrator of such situation and the Trustee will be under no
duty to make any distributions under the Plan until it receives written
instructions from the Administrator. Upon the completion of such distributions,
the Trust will terminate, the Trustee will be relieved from all liability under
the Trust, and no Participant or other person will have any claims thereunder,
except as required by applicable law.
10.07. Merger or Consolidation of Plan; Transfer of Plan Assets. In case of any
merger or consolidation of the Plan with, or transfer of assets and liabilities
of the Plan to, any other plan, provision must be made so that each Participant
would, if the Plan then terminated, receive a benefit immediately after the
merger, consolidation or transfer which is equal to or greater than the benefit
he would have been entitled to receive immediately before the merger,
consolidation or transfer if the Plan had then terminated.
Article 11. Amendment and Continuation of Predecessor Plan; Transfer of Funds to
or from Other Qualified Plans.
11.01. Amendment and Continuation of Predecessor Plan. In the event the Employer
has previously established a plan (the "predecessor plan") which is a defined
contribution plan under the Code and which on the date of adoption of the Plan
meets the applicable requirements of section 401(a) of the Code, the Employer
may, in accordance with the provisions of the predecessor plan, amend and
continue the predecessor plan in the form of the Plan and become the Employer
hereunder, subject to the following:
(a) Subject to the provisions of the Plan, each individual who was a
Participant or former Participant in the predecessor plan immediately
prior to the effective date of such amendment and continuation will
become a Participant or former Participant in the Plan;
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(b) No election may be made under the vesting provisions of the Adoption
Agreement if such election would reduce the benefits of a Participant
under the Plan to less than the benefits to which he would have been
entitled if he voluntarily separated from the service of the Employer
immediately prior to such amendment and continuation;
(c) No amendment to the Plan shall decrease a Participant's accrued
benefit or eliminate an optional form of benefit and if the amendment of
the predecessor plan in the form of the Plan results in a change in the
method of crediting service for vesting purposes between the general
method set forth in Section 2530.200b-2 of the Department of Labor
Regulations and the elapsed time method in Section 2.01(a)(33) of the
Plan, each Participant with respect to whom the method of crediting
vesting service is changed shall be treated in the manner set forth by
the provisions of Section 1.410(a)-7(f)(1) of the Treasury Regulations
which are incorporated herein by reference.
(d) The amounts standing to the credit of a Participant's Account
immediately prior to such amendment and continuation which represent the
amounts properly attributable to (i) contributions by the Participant and
(ii) contributions by the Employer and forfeitures will constitute the
opening balance of his Account or Accounts under the Plan;
(e) Amounts being paid to a former Participant or to a Beneficiary in
accordance with the provisions of the predecessor plan will continue to
be paid in accordance with such provisions;
(f) Any election and waiver of the qualified pre-retirement annuity in
effect after August 23, 1984, under the predecessor plan immediately
before such amendment and continuation will be deemed a valid election
and waiver of Beneficiary under Section 8.04 if such designation
satisfies the requirements of Section 8.04(d), unless and until the
Participant revokes such election and waiver under the Plan; and
(g) Unless the Employer and the Trustee agree otherwise, all assets of
the predecessor trust will be deemed to be assets of the Trust as of the
effective date of such amendment. Such assets will be invested by the
Trustee as soon as reasonably practicable pursuant to Article 6. The
Employer agrees to assist the Trustee in any way requested by the
Trustee in order to facilitate the transfer of assets from the
predecessor trust to the Trust Fund.
11.02. Transfer of Funds from an Existing Plan. The Employer may from time to
time direct the Trustee, in accordance with such rules as the Trustee may
establish, to accept cash, allowable Fund Shares or participant loan promissory
notes transferred for the benefit of Participants from a trust forming part of
another qualified plan under the Code, provided such plan is a defined
contribution plan. Such transferred assets will become assets of the Trust as of
the date they are received by the Trustee. Such transferred assets will be
credited to Participants' Account in accordance with their respective interests
immediately upon receipt by the Trustee. A Participant's interest under the Plan
in transferred assets which were fully vested and nonforfeitable under the
transferring plan will be fully vested and nonforfeitable at all times. Such
transferred assets will be invested by the Trustee in accordance with the
provisions of paragraph (g) of Section 11.01 as if such assets were transferred
from a predecessor plan. No transfer of assets in accordance with this Section
may cause a loss of an accrued or optional form of benefit protected by Section
411(d)(6) of the Code.
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11.03. Acceptance of Assets by Trustee. The Trustee will not accept assets which
are not either in a medium proper for investment under the Plan, as set forth in
Section 1.14(b), or in cash. Such assets shall be accompanied by written
instructions showing separately the respective contributions by the prior
employer and by the Employee, and identifying the assets attributable to such
contributions. The Trustee shall establish such accounts as may be necessary or
appropriate to reflect such contributions under the Plan. The Trustee shall hold
such assets for investment in accordance with the provisions of Article 6, and
shall in accordance with the written instructions of the Employer make
appropriate credits to the Accounts of the Participants for whose benefit assets
have been transferred.
11.04. Transfer of Assets from Trust. The Employer may direct the Trustee to
transfer all or a specified portion of the Trust assets to any other plan or
plans maintained by the Employer or the employer or employers of a former
Participant or Participants, provided that the Trustee has received evidence
satisfactory to it that such other plan meets all applicable requirements of the
Code. The assets so transferred shall be accompanied by written instructions
from the Employer naming the persons for whose benefit such assets have been
transferred, showing separately the respective contributions by the Employer and
by each Participant, if any, and identifying the assets attributable to the
various contributions. The Trustee shall have no further liabilities with
respect to assets so transferred.
Article 12. Miscellaneous.
12.01. Communication to Participants. The Plan will be communicated to all
Participants by the Employer promptly after the Plan is adopted.
12.02. Limitation of Rights. Neither the establishment of the Plan and the
Trust, nor any amendment thereof, nor the creation of any fund or account, nor
the payment of any benefits, will be construed as giving to any Participant or
other person any legal or equitable right against the Employer, Administrator or
Trustee, except as provided herein; and in no event will the terms of employment
or service of any Participant be modified or in any way affected hereby. It is a
condition of the Plan, and each Participant expressly agrees by his
participation herein, that each Participant will look solely to the assets held
in the Trust for the payment of any benefit to which he is entitled under the
Plan.
12.03. Nonalienability of Benefits and Qualified Domestic Relations Orders. The
benefits provided hereunder will not be subject to alienation, assignment,
garnishment, attachment, execution or levy of any kind, either voluntarily or
involuntarily, and any attempt to cause such benefits to be so subjected will
not be recognized, except to such extent as may be required by law. The
preceding sentence 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 by the Plan
Administrator 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. The Administrator must establish reasonable procedures to determine the
qualified status of a domestic relations order. Upon receiving a domestic
relations order, the Administrator will promptly notify the Participant and any
alternate payee named in the order, in writing, of the receipt of the order and
the Plan's procedures for determining the qualified status of the order. Within
a reasonable period of time after receiving the domestic relations order, the
Administrator must determine the qualified status of the order and must notify
the Participant and each alternate payee, in writing, of its determination. The
Administrator must provide notice under this
39
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paragraph by mailing to the individual's address specified in the domestic
relations order, or in a manner consistent with the Department of Labor
regulations.
If any portion of the Participant's Account is payable during the period
the Administrator is making its determination of the qualified status of the
domestic relations order, the Administrator must make a separate accounting of
the amounts payable. If the Administrator determines the order is a qualified
domestic relations order within 18 months of the date amounts first are payable
following receipt of the order, the Administrator will direct the Trustee to
distribute the payable amounts in accordance with the order. If the
Administrator does not make his determination of the qualified status of the
order within the 18 month determination period, the Administrator will direct
the Trustee to distribute the payable amounts in the manner the Plan would
distribute if the order did not exist and will apply the order prospectively if
the Administrator later determines the order is a qualified domestic relations
order.
A domestic relations order will not fail to be deemed a qualified domestic
relations order merely because it requires the distribution or segregation of
all or part of a Participant's Account with respect to an alternate payee prior
to the Participant's earliest retirement ago (as defined in Section 414(p) of
the Code) under the Plan. A distribution to an alternate payee prior to the
Participant's attainment of the earliest retirement age is available only if:
(1) the order specifies distribution at that time; and (2) if the present value
of the alternate payee's benefits under the Plan exceeds $3,500, and the order
requires, the alternate payee consents to any distribution occurring prior to
the Participant's attainment of earliest retirement age.
12.04. Facility of Payment. In the event the Administrator determines, on the
basis of medical reports or other evidence satisfactory to the Administrator,
that the recipient of any benefit payments under the Plan is incapable of
handling his affairs by reason of minority, illness, infirmity or other
incapacity, the Administrator may direct the Trustee to disburse such payments
to a person or institution designated by a court which has jurisdiction over
such recipient or a person or institution otherwise having the legal authority
under State law for the care and control of such recipient. The receipt by such
person or institution of any such payments shall be complete acquittance
therefore, and any such payment to the extent thereof, shall discharge the
liability of the Trust for the payment of benefits hereunder to such recipient.
12.05. Information between Employer and Trustee. The Employer agrees to furnish
the Trustee, and the Trustee agrees to furnish the Employer with such
information relating to the Plan and Trust as may be required by the other in
order to carry out their respective duties hereunder, including without
limitation information required under the Code and any regulations issued or
forms adopted by the Treasury Department thereunder or under the provisions of
ERISA and any regulations issued or forms adopted by the Labor Department
thereunder.
12.06. Effect of Failure to Qualify under Code. Notwithstanding any other
provision contained herein, if the Employer fails to obtain or retain approval
of the Plan by the Internal Revenue Service as a qualified Plan under the Code,
the Employer may no longer participate in this prototype Plan arrangement and
will be deemed to have an individually designed plan.
12.07. Notices. Any notice or other communication in connection with this Plan
shall be deemed delivered in writing if addressed as provided below and if
either actually delivered at said address or, in the case
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of a letter, three business days shall have elapsed after the same shall have
been deposited in the United States mails, first-class postage prepaid and
registered or certified:
(a) If to the Employer or Administrator, to it at the address set forth
in the Adoption Agreement, to the attention of the person specified to
receive notice in the Adoption Agreement;
(b) If to the Trustee, to it at the address set forth in the Adoption
Agreement;
or, in each case at such other address as the addressee shall have specified by
written notice delivered in accordance with the foregoing to the addressor's
then effective notice address.
12.08. Governing Law. The Plan and the accompanying Adoption Agreement will be
construed, administered and enforced according to ERISA, and to the extent not
preempted thereby, the laws of the Commonwealth of Massachusetts.
Article 13. Plan Administration.
13.01. Powers and responsibilities of the Administrator. The Administrator has
the full power and the full responsibility to administer the Plan in all of its
details, subject, however, to the requirements of ERISA. The Administrator's
powers and responsibilities include, but are not limited to, the following:
(a) To make and enforce such rules and regulations as it deems necessary
or proper for the efficient administration of the Plan;
(b) To interpret the Plan, its interpretation thereof in good faith to be
final and conclusive on all persons claiming benefits under the Plan;
(c) To decide all questions concerning the Plan and the eligibility of
any person to participate in the Plan;
(d) To administer the claims and review procedures specified in Section
13.03;
(e) To compute the amount of benefits which will be payable to any
Participant, former Participant or Beneficiary in accordance with the
provisions of the Plan;
(f) To determine the person or persons to whom such benefits will be
paid;
(g) To authorize the payment of benefits and provide for the distribution
of Code Section 402(f) notices;
(h) To comply with the reporting and disclosure requirements of Part 1 of
Subtitle B of Title I of ERISA;
(i) To appoint such agents, counsel, accountants, and consultants as may
be required to assist in administering the Plan;
(j) By written instrument, to allocate and delegate its fiduciary
responsibilities in accordance with Section 405 of ERISA including the
formation of an Administrative Committee to administer the Plan;
41
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(k) To provide bonding coverage as required under Section 412 of ERISA.
13.02. Nondiscriminatory Exercise of Authority. Whenever, in the administration
of the Plan, any discretionary action by the Administration is required, the
Administrator shall exercise its authority in a nondiscriminatory manner so that
all persons similarly situated will receive substantially the same treatment.
13.03. Claims and Review Procedures.
(a) claims Procedure. If any person believes he is being denied any
rights or benefits under the Plan, such person may file a claim in
writing with the Administrator. If any such claim is wholly or partially
denied, the Administrator will notify such person of its decision in
writing. Such notification will contain (i) specific reasons for the
denial, (ii) specific reference to pertinent Plan provisions, (iii) a
description of any additional material or information necessary for such
person to perfect such claim and an explanation of why such material or
information is necessary, and (iv) information as to the steps to be
taken if the person wishes to submit a request for review. Such
notification will be given within 90 days after the claim is received by
the Administrator (or within 180 days, if special circumstances require
an extension of time for processing the claim, and if written notice of
such extension and circumstances is given to such person within the
initial 90-day period). If such notification in not given within such
period, the claim will be considered denied as of the last day of such
period and such person may request a review of his claim.
(b) Review Procedure. Within 60 days after the date on which a person
receives a written notice of a denied claim (or, if applicable, within
60 days after the date on which such denial is considered to have
occurred), such person (or his duly authorized representative) may (i)
file a written request with the Administrator for a review of his denied
claim and of pertinent documents and (ii) submit written issues and
comments to the Administrator. The Administrator will notify such person
of its decision in writing. Such notification will be written in a manner
calculated to be understood by such person and will contain specific
reasons for the decision as well as specific references to pertinent Plan
provisions. The decision on review will be made within 60 days after the
request for review is received by the Administrator (or within 120 days,
if special circumstances require an extension of time for processing the
request, such as an election by the Administrator to hold a hearing, and
if written notice of such extension and circumstances is given to such
person within the initial 60-day period). If the decision on review is
not made within such period, the claim will be considered denied.
13.04. Named Fiduciary. The Administrator is a "named fiduciary" for purposes of
Section 402(a)(1) of ERISA and has the powers and responsibilities with respect
to the management and operation of the Plan described herein.
13.05. Costs of Administration. Unless some or all are paid by the Employer, all
reasonable costs and expenses (including legal, accounting, and employee
communication fees) incurred by the Administrator and the Trustee in
administering the Plan and Trust will be paid first from the forfeitures (if
any) resulting under Section 7.07, then from the remaining Trust Fund. All such
costs and expenses paid from the Trust Fund will, unless allocable to the
Accounts of particular Participants, be charged against the Accounts of all
42
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by the Employer or Administrator that the same is for the exclusive benefit of
Participants or their Beneficiaries, or for the payment of expenses of
administering the Plan.
14.08. Transfer of Amounts from Qualified Plan. If the Plan provides that
amounts may be transferred to the Plan from another qualified plan or trust
under Section 401(a) of the Code, such transfer shall be made in accordance with
the provisions of the Plan and with such rules as may be established by the
Trustee. The Trustee will only accept assets which are in a medium proper for
investment under this Agreement or in cash. Such amounts shall be accompanied by
written instructions showing separately the respective contributions by the
prior employer and the transferring Employee, and identifying the assets
attributable to such contributions. The Trustee shall hold such assets for
investment in accordance with the provisions of this Agreement.
14.09. Transfer of Assets from Trust. Subject to the provisions of the Plan, the
Employer may direct the Trustee to transfer all or a specified portion of the
Trust assets to any other plan or plans maintained by the Employer or the
employer or employers of a former Participant or Participants, provided that the
Trustee has received evidence satisfactory to it that such other plan meets all
applicable requirements of the Code. The assets so transferred shall be
accompanied by written instructions from the Employer naming the persons for
whose benefit such assets have been transferred, showing separately the
respective contributions by the Employer and by each Participant, if any, and
identifying the assets attributable to the various contributions. The Trustee
shall have no further liabilities with respect to assets so transferred.
14.10. Separate Trust or Fund for Existing Plan Assets. With the consent of the
Trustee, the Employer may maintain a trust or fund (including a group annuity
contract) under this prototype plan document separate from the Trust Fund for
Plan assets purchased prior to the adoption of this prototype plan document
which are not Fidelity Funds listed in Section 1.14(b). The Trustee shall have
no authority and no responsibility for the Plan assets held in such separate
trust or fund. The duties and responsibilities of the trustee of a separate
trust shall be provided by a separate trust agreement, between the Employer and
the trustee.
Notwithstanding the preceding paragraph, the Trustee or an affiliate of
the Trustee may agree in writing to provide ministerial recordkeeping services
for guaranteed investment contracts held in the separate trust or fund. The
guaranteed investment contract(s) shall be valued as directed by the Employer or
the Trustee of the separate trust.
The trustee of the separate trust (hereafter referred to as "trustee")
will be the owner of any insurance contract purchased prior to the adoption of
this prototype plan document. The insurance contract(s) must provide that
proceeds will be payable to the trustee, however the trustee shall be required
to pay over all proceeds of the contract(s) to the Participant's designated
Beneficiary in accordance with the distribution provisions of this plan. A
Participant's spouse will be the designated Beneficiary of the proceeds in all
circumstances unless a qualified election has been made in accordance with
Article 8. Under no circumstances shall the trust retain any part of the
proceeds. In the event of any conflict between the terms of this plan and the
terms of any insurance contract purchased hereunder, the plan provisions shall
control.
Any life insurance contracts held in the Trust Fund or in the separate
trust are subject to the following limits:
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(a) Ordinary life - For purposes of these incidental insurance
provisions, ordinary life insurance contracts are contracts with both
nondecreasing death benefits and nonincreasing premiums. If such
contracts are held, less than 1/2 of the aggregate employer contributions
allocated to any Participant will be used to pay the premiums
attributable to them.
(b) Term and universal life - No more than 1/4 of the aggregate employer
contributions allocated to any participant will be used to pay the
premiums on term life insurance contracts, universal life insurance
contracts, and all other life insurance contracts which are not ordinary
life.
(c) Combination - The sum of 1/2 of the ordinary life insurance premiums
and all other life insurance premiums will not exceed 1/4 of the
aggregate employer contributions allocated to any Participant.
14.11. Voting; Delivery of Information. The Trustee shall deliver, or cause to
be executed and delivered, to the Employer or Plan Administrator all notices,
prospectuses, financial statements, proxies and proxy soliciting materials
received by the Trustee relating to securities held by the Trust or, if
applicable, deliver these materials to the appropriate Participant or the
Beneficiary of a deceased Participant. The Trustee shall not vote any
securities hold by the Trust except in accordance with the written instructions
of the Employer, Participant or the Beneficiary of the Participant, if the
Participant in deceased; provided, however, that the Trustee may, in the absence
of instructions, vote "present" for the sole purpose of allowing such shares to
be counted for establishment of a quorum at a shareholders' meeting. The Trustee
shall have no duty to solicit instructions from Participants, the Beneficiary or
the Employer.
14.12. Compensation and Expenses of Trustee. The Trustee's fee for performing
its duties hereunder will be such reasonable amounts as the Trustee may from
time to time specify by written agreement with the Employer. Such fee, any taxes
of any kind which may be levied or assessed upon or in respect of the Trust Fund
and any and all expenses, including without limitation legal fees and expenses
of administrative and judicial proceedings, reasonably incurred by the Trustee
in connection with its duties and responsibilities hereunder will, unless some
or all have been paid by said Employer, be paid first from forfeitures resulting
under Section 7.07, then from the remaining Trust Fund and will, unless
allocable to the Accounts of particular Participants, be charged against the
respective Accounts of all Participants, in such reasonable manner as the
Trustee may determine.
14.13. Reliance by Trustee on Other Persons. The Trustee may rely upon and act
upon any writing from any person authorized by the Employer or Administrator to
give instructions concerning the Plan and may conclusively rely upon and be
protected in acting upon any written order from the Employer or Administrator or
upon any other notice, request, consent, certificate, or other instructions or
paper reasonably believed by it to have been executed by a duly authorized
person, so long as it acts in good faith in taking or omitting to take any such
action. The Trustee need not inquire as to the basis in fact of any statement in
writing received from the Employer or Administrator.
The Trustee will be entitled to rely on the latest certificate it has
received from the Employer or Administrator as to any person or persons
authorized to act for the Employer or Administrator hereunder and to sign on
behalf of the Employer or Administrator any directions or instructions, until it
receives from the Employer or Administrator written notice that such authority
has been revoked.
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Notwithstanding any provision contained herein, the Trustee will be under
no duty to take any action with respect to any Participant's Account (other than
as specified herein) unless and until the Employer or Administrator furnishes
the Trustee with written instructions on a form acceptable to the Trustee, and
the Trustee agrees thereto in writing. The Trustee will not be liable for any
action taken pursuant to the Employer's or Administrator's written instructions
(nor for the collection of contributions under the Plan, nor the purpose or
propriety of any distribution made thereunder).
14.14. Indemnification by Employer. The Employer shall indemnify and save
harmless the Trustee from and against any and all liability to which the Trustee
may be subjected by reason of any act or conduct (except willful misconduct or
gross negligence) in its capacity as Trustee, including all expenses reasonably
incurred in its defense.
14.15. Consultation by Trustee with Counsel. The Trustee may consult with legal
counsel (who may be but need not be counsel for the Employer or the
Administrator) concerning any question which may arise with respect to its
rights and duties under the Plan and Trust, and the opinion of such counsel
will, to the extent permitted by law, be full and complete protection in respect
of any action taken or omitted by the Trustee hereunder in good faith and in
accordance with the opinion of such counsel.
14.16. Persons Dealing with the Trustee. No person dealing with the Trustee will
be bound to see to the application of any money or property paid or delivered to
the Trustee or to inquire into the validity or propriety of any transactions.
14.17. Resignation or Removal of Trustee. The Trustee may resign at any time by
written notice to the Employer, which resignation shall be effective 60 days
after delivery to the Employer. The Trustee may be removed by the Employer by
written notice to the Trustee, which removal shall be effective 60 days after
delivery to the Trustee.
Upon resignation or removal of the Trustee, the Employer may appoint a
successor trustee. Any such successor trustee will, upon written acceptance of
his appointment, become vested with the estate, rights, powers, discretion,
duties and obligations of the Trustee hereunder as if he had been originally
named as Trustee in this Agreement.
Upon resignation or removal of the Trustee, the Employer will no longer
participate in this prototype plan and will be deemed to have adopted an
individually designed plan. In such event, the Employer shall appoint a
successor trustee within said 60-day period and the Trustee will transfer the
assets of the Trust to the successor trustee upon receipt of sufficient evidence
(such as a determination letter or opinion letter from the Internal Revenue
Service or an opinion of counsel satisfactory to the Trustee) that such trust
will be a qualified trust under the Code.
The appointment of a successor trustee shall be accomplished by delivery
to the Trustee of written notice that the Employer has appointed such successor
trustee, and written acceptance of such appointment by the successor trustee.
The Trustee may, upon transfer and delivery of the Trust Fund to a successor
trustee, reserve such reasonable amount as it shall deem necessary to provide
for its fees, compensation, costs and expenses, or for the payment of any other
liabilities chargeable against the Trust Fund for which it may be liable. The
Trustee shall not be liable for the acts or omissions of any successor trustee.
47
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14.18. Fiscal Year of the Trust. The fiscal year of the Trust will coincide with
the Plan Year.
14.19. Discharge of Duties by Fiduciaries. The Trustee and the Employer and any
other fiduciary shall discharge their duties under the Plan and this Trust
Agreement solely in the interests of Participants and their Beneficiaries in
accordance with the requirements of ERISA.
14.20. Amendment. In accordance with provisions of the Plan, and subject to the
limitations set forth therein, this Trust Agreement may be Amended by an
instrument in writing signed by the Employer and the Trustee. No amendment to
this Trust Agreement shall divert any part of the Trust Fund to any purpose
other than as provided in Section 2 hereof.
14.21. Plan Termination. Upon termination or partial termination of the Plan or
complete discontinuance of contributions thereunder, the Trustee will make
distributions to the Participants or other persons entitled to distributions as
the Employer or Administrator directs in accordance with the provisions of the
Plan. In the absence of such instructions and unless the Plan otherwise
provides, the Trustee will notify the Employer or Administrator of such
situation and the Trustee will be under no duty to make any distributions under
the Plan until it receives written instructions from the Employer or
Administrator. Upon the completion of such distributions, the Trust will
terminate, the Trustee will be relieved from all liability under the Trust, and
no Participant or other person will have any claims thereunder, except as
required by applicable law.
14.22. Permitted Reversion of Funds to Employer. If it is determined by the
Internal Revenue Service that the Plan does not initially qualify under Section
401 of the Code, all assets then held under the Plan will be returned by the
Trustee, as directed by the Administrator, to the Employer, but only if the
application for determination is made by the time prescribed by law for filing
the Employer's return for the taxable year in which the Plan was adopted or such
later date as may be prescribed by regulations. Such distribution will be made
within one year after the date the initial qualification is denied. Upon such
distribution the Plan will be considered to be rescinded and to be of no force
or effect.
Contributions under Plan are conditioned upon their deductibility under
Section 404 of the Code. In the event the deduction of a contribution made by
the Employer is disallowed under Section 404 of the Code, such contribution (to
the extent disallowed) must be returned to the Employer within one year of the
disallowance of the deduction.
Any contribution made by the Employer because of a mistake of fact must be
returned to the Employer within one year of the contribution.
14.23. Governing Law. This Trust Agreement will be construed, administered and
enforced according to ERISA and, to the extent not preempted thereby, the laws
of the Commonwealth of Massachusetts.
48
51
THE CORPORATEPLAN FOR RETIREMENT
(MONEY PURCHASE PENSION PLAN)
A FIDELITY PROTOTYPE PLAN
Non-Standardized Adoption Agreement 002
Basic Plan No. 09
52
ADOPTION AGREEMENT
ARTICLE I
NON-STANDARDIZED MONEY PURCHASE PENSION PLAN
1.01 PLAN INFORMATION
(a) Name of Plan:
This is the MONEY PURCHASE PENSION PLAN OF JAYCOR
-------------------------------------------------------
(the "Plan").
-----------------------------------------------------
(b) Type of Plan: Money Purchase Pension Plan
-------------------------------------------------------
(c) Name of Plan Administrator, if not the Employer.
Money Purchase Pension Plan Committee
--------------------------------------------------
9775 Towne Centre Drive
Address: San Diego, CA 92121
--------------------------------------------------
Phone Number: (619) 453-6580
--------------------------------------------------
The Plan Administrator is the agent for service of legal process
for the Plan.
(d) Limitation Year (check one):
(1) [ ] Calendar Year
(2) [X] Plan Year
(3) [ ] Other:_______
(e) Three Digit Plan Number: 002
--------------------------------------------
(f) Plan Year End (month/day): 12-31
------------------------------------------
(g) Plan Status (chock one):
(1) [ ] Effective Date of new Plan:
-------------------------
(2) [X] Amendment Effective Date: 01-01-94. This is (check one):
---------
[ ] (A) an amendment of The CORPORATEplan for
Retirement Adoption Agreement previously executed
by the Employer; or
53
[X] (B) a conversion from another plan document into
The CORPORATEplan for Retirement.
The original effective date of the Plan: 07-01-81
--------------
The substantive provisions of the Plan shall apply
prior to the Effective Date to the extent required
by the Tax Reform Act of 1986 or other applicable laws.
1.02 EMPLOYER
(a) The Employer is: JAYCOR
-------------------------------------------------
Address: 9775 Towne Centre Drive
-------------------------------------------------
San Diego, CA 92121
-------------------------------------------------
Contact's Name: Dorothy K. Bidwell
-------------------------------------------------
Telephone Number: (619)453-6580
-------------------------------------------------
(1) Employer's Tax Identification Number: 95-2936834
----------------------
(2) Business form of Employer (check one):
(A) [X] Corporation (D) [ ] Governmental
(B) [ ] Sole proprietor or partnership (E) [ ] Tax-exempt
organization
(C) [ ] Subchapter S Corporation (F) [ ] Rural
Electric
Cooperative
(3) Employer's fiscal year end: FRIDAY CLOSEST TO 1-31
--------------------------------
(4) Date business commenced: 1-27-75
-----------------------------------
(b) The term "Employer" includes the following Related Employer(s) (as
defined in Section 2.01(a)(26)):
JAYCOR TECHNICAL SERVICES, INC.
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
2
54
1.03 COVERAGE
Non-excluded
(a) All Employees who meet the conditions specified below will be
eligible to participate in the Plan:
(1) Service requirement (check one):
(A) [ ] no service requirement.
(B) [X] three consecutive months of service (no minimum
number Hours of Service can be required).
(C) [ ] six consecutive months of service (no minimum
number Hours of Service can be required).
(D) [ ] one Year of Service (1,000 Hours of Service is
required during the Eligibility Computation
Period.)
(2) Age requirement (check one):
(A) [X] no age requirement.
(B) [ ] must have attained age ____ (not to exceed 21).
(3) The class of Employees eligible to participate in the Plan
(check one):
(A) [ ] includes all Employees of the Employer.
(B) [X] includes all Employees of the Employer except
for (check the appropriate box(es)):
(i) [X] Employees covered by a collective
bargaining agreement.
(ii) [ ] Highly Compensated Employees as defined
in Code Section 414(q).
(iii) [ ] Leased Employees as defined in Section
2.01(a)(18).
(iv) [X] Nonresident aliens who do not receive
any earned income from the Employer
which constitutes United States source
income.
(v) [X] Other
PART-TIME 1 AND TEMPORARY EMPLOYEES
------------------------------------------------
------------------------------------------------
------------------------------------------------
------------------------------------------------
3
55
Note: No exclusion in this section may create a
discriminatory class of employees. An Employer's
plan must still pass the Internal Revenue Code
coverage and participation requirements if one or
more of the above groups of Employees have been
excluded from the Plan.
(b) The Entry Date(s) shall be (check one):
(1) [ ] the first day of each Plan Year (not if Section
1.03(a)(1)(D) is elected).
(2) [ ] the first day of each Plan Year and the date six months
later.
(3) [ ] the first day of each Plan Year and the first day of
the fourth, seventh, and tenth months.
(4) [X] the first day of each month.
(c) Date of Initial Participation - An Employee will become a
Participant unless excluded by Section 1.03(a)(3) above on the
Entry Date coinciding with or next following the date the Employee
completes the service and age requirement(s) in Section 1.03(a),
if any, except (check one): (see Section 3.01 of Master Plan)
(1) [ ] No exceptions.
(2) [ ] Employees employed on the Effective Date in Section
1.01(g) will become Participants on that date.
(3) [X] Employees who meet the age and service requirement(s)
of Section 1.03(a) on the Effective Date in Section
1.01(g) will become Participants on that date.
1.04 COMPENSATION
(a) For purposes of determining Contributions under the Plan,
Compensation shall be as defined in Section 2.01(a)(7), but
excluding (check the appropriate box(es)):
(1) [ ] Overtime Pay.
(2) [ ] Bonuses.
(3) [ ] Commissions.
(4) [ ] The value of a qualified or a non-qualified stock
option granted to an Employee by the Employer to the
extent such value is includable in the Employee's
taxable income.
Note: These exclusions shall not apply for purposes of the "Top
Heavy" requirements in Section 9.03, or allocating
Discretionary Employer Contributions if an Integrated
Formula is elected in Section 1.05(a)(2)(B).
(5) [X] No exclusions.
4
56
(b) Compensation for the First Year of Participation
Contributions for the Plan Year in which an Employee first becomes
a Participant shall be determined based on the Employee's
Compensation (check one):
(1) [X] For the entire Plan Year.
(2) [ ] For the portion of the Plan Year in which the Employee
is eligible to participate in the Plan.
1.05 CONTRIBUTIONS
(a) Employer Contributions (check (1) or (2)):
(1) [ ] Nonintegrated Formula:
For each Plan Year, the Employer will contribute for
each eligible Participant an amount equal to ___ % (not
to exceed 25%) of such Participant's Compensation.
(2) [X] Integrated Formula:
For each Plan Year, the Employer shall contribute
for each Participant an amount equal to (complete
both (A) and (B)):
(A) 5% (not less than 3%) of each Participant's
--
Compensation.
PLUS
(B) 5% of each Participant's Compensation in
--
excess of the Integration Level as defined in
(2)(A) below. This percentage may not exceed the
lesser of:
(i) the percentage elected in (A) above, or
(ii) the Applicable Percentage as defined in
(2)(B) below.
The following definitions apply for the purposes of
(1) above (check one):
(A) "Integration Level" shall mean the Taxable
Wage Base as defined in (C) on the next page,
unless the Employer elects a lesser amount in
(i) or (ii) below:
(i) $ xxxx (a flat dollar amount that is
------
less than the Taxable Wage Base), or
(ii) xxxx % (not to exceed 100%) of the
----
Taxable Wage Base.
5
57
(B) "Applicable Percentage" shall mean the percentage provided
by the following table:
If the Integration Level But Less Than
is at Least __% of the __% of the The Applicable
Taxable Wage Base Taxable Wage Base Percentage Is:
------------------------------------------------------------------
0% 20% 5.7%
------------------------------------------------------------------
20% 80% 4.3%
------------------------------------------------------------------
80% 100% 5.4%
------------------------------------------------------------------
100% N/A 5.7%
------------------------------------------------------------------
(C) "Taxable Wage Base" is the contribution and benefit base in
effect under Section 230 of the Social Security Act at the
beginning of the Plan Year. The Taxable Wage Base for 1993
is $57,600.
Note: An Employer who maintains any other plan that provides for
Social Security Integration (permitted disparity) may not
elect (a)(2).
(3) Eligibility Requirement(s)
A Participant shall be entitled to Employer Contributions for a
Plan Year under this Subsection (a) if the Participant satisfies
the following requirement(s) (Check the appropriate box(es) -
Options (B) and (C) may not be elected together):
(A) [X] is employed by the Employer on the last day of the Plan
Year.
(B) [ ] earns at least 500 Hours of Service during the Plan Year.
(C) [X] earns at least 1,000 Hours of Service during the Plan
Year.
(D) [ ] no requirements.
1.06 RETIREMENT AGE(S)
(a) The Normal Retirement Age under the Plan is (check one):
(1) [X] age 65:
(2) [ ] age (specify between 55 and 64).
--
(3) [ ] later of the age (cannot exceed 65) or the fifth
--
anniversary of the Participant's Commencement Date.
(b) [X] The Early Retirement Age is the first day of the month after
the Participant attains age 55 (specify 55 or greater) and
--
completes 5 Years of Service for Vesting,
6
58
(c) [X] A Participant is eligible for Disability Retirement if he/she
(check the appropriate box(es)):
(1) [ ] satisfies the requirements for benefits under the
Employer's Long-Term Disability Plan.
(2) [X] satisfies the requirements for Social Security
disability benefits.
(3) [ ] is determined to be disabled by a physician approved
by the Employer.
1.07 VESTING SCHEDULE
(a) The Participant's vested percentage in Employer Contributions
elected in Section 1.05(a) shall be based upon the schedule
selected below, except with respect to any Plan Year during which
the Plan is Top-Heavy. The schedule elected in Section 1.12(d)
shall automatically apply for a Top-Heavy Plan Year and all Plan
Years thereafter unless the Employer has already elected a more
favorable vesting schedule below.
(1) Employer Contributions (check one):
(A) [Reserved]
(B) [ ] 100% Vesting immediately
(C) [ ] 3 year cliff (see C below)
(D) [X] 5 year cliff (see D below)
(E) [ ] 6 year graduated (see E below)
(F) [ ] 7 year graduated (see F below)
(G) [ ] Other vesting (complete G below)
Years of Vesting Schedule
Service for ----------------
Vesting C D E F G
----------- - - - - -
0-1 0% 0% 0% 0% __
2 0% 0% 20% 0% __
3 100% 0% 40% 20% __
4 100% 0% 60% 40% __
5 100% 100% 80% 60% __
6 100% 100% 100% 80% __
7 100% 100% 100% 100% 100%
NOTE: A schedule elected under G above must be at least as favorable as one of
the schedules in C, D, E or F above.
7
59
(b) [ ] Years of Service for Vesting shall exclude (check one):
(1) [ ] for new plans, service prior to the Effective Date as
defined in Section 1.01(g)(1).
(2) [ ] for existing plans converting from another plan
document, service prior to the original Effective
Date as defined in Section 1.01(g)(2).
1.08 PREDECESSOR EMPLOYER SERVICE
[ ] Service for purposes of eligibility in Section 1.03(a)(1) and
vesting in Section 1.07(a) of this Plan shall include service
with the following employer(s):
(a) _____________________________________________________________
(b) _____________________________________________________________
(c) _____________________________________________________________
(d) _____________________________________________________________
1.09 PARTICIPANT LOANS
[X] Participant loans (check (a) or (b)):
(a) [X] will be allowed in accordance with Section 7.09, subject to a
$1,000 minimum amount and will be granted (check (1) or (2)):
(1) [X] for any purpose.
(2) [ ] for hardship purposes (as defined in Section 7.09)
only.
(b) [ ] will not be allowed.
1.10 RESERVED
1.11 DISTRIBUTIONS
(a) Subject to Articles 8 and (b) below, distributions under the Plan
will be paid as a single lump sum or under a systematic withdrawal
plan (installments) following retirement, death, disability or
other termination of employment.
(b) [X] Check if the Plan was converted (by plan amendment) from
another defined contribution plan, and the benefits were
payable with respect to voluntary after-tax employee
contributions, prior to termination of employment.
NOTE: Under Federal Law, distributions to Participants must generally
begin no later than April 1 following the year in which the
Participant attains age 70 1/2.
8
60
1.12 TOP HEAVY STATUS
(a) The Plan shall be subject to the Top-Heavy Plan requirements of
Article 9 (check one):
(1) [ ] for each Plan Year.
(2) [X] for each Plan Year, if any, for which the Plan is
Top-Heavy as defined in Section 9.02.
(b) In determining Top-Heavy status, if necessary, for an employer
with at least one defined benefit plan, the following assumptions
shall apply:
(1) Interest rate: ____% per annum
(2) Mortality table: __________
(3) [X] Not Applicable
(c) In the event that the Plan is treated as Top-Heavy for a Plan
Year, each non-key Employee shall receive an Employer Contribution
of at least 3% (3, 4, 5, or 7 1/2) % of Compensation for the Plan
Year in accordance with Section 9.03 (check one):
(1) [ ] under this Plan in any event.
(2) [X] under this Plan only if the Participant is not
entitled to such contribution under another qualified
plan of the Employer.
NOTE: Such minimum Employer contribution may be less than
the percentage indicated in (c) above to the extent
provided in Section 9.03(a).
(d) In the event that the Plan is treated as Top-Heavy for a Plan
Year, the following vesting schedule shall apply instead of the
schedule elected in Section 1.07(a) for such Plan Year and each
Plan Year thereafter (check one):
(1) [ ] 100% vested after _____________ (not in excess of 3)
Years of Service for Vesting.
(2) [X] Years of Service for Vesting Vesting Percentage Must be at Least
---------------------------- ------------------ ----------------
0 0% 0%
--------
1 0% 0%
--------
2 20% 20%
--------
3 40% 40%
--------
4 60% 60%
--------
5 80% 80%
--------
6 100% 100%
--------
9
61
NOTE: If the schedule elected in Section 1.07(a) is more
favorable in all cases than the schedule elected in
(d) above then such schedule will continue to apply
even in Plan Years in which the Plan is Top-Heavy.
1.13 TWO OR MORE PLANS - Code Section 415 limitation on annual additions
If the Employer maintains or ever maintained another qualified plan in
which any Participant in this Plan is (or was) a participant or could
become a participant, the Employer must complete this section. The
Employer must also complete this section if it maintains a welfare
benefit fund, as defined in Section 419(e) of the Code, or an individual
medical account, as defined in Section 415(1)(2) of the Code, under which
amounts are treated as annual additions with respect to any Participant
in this Plan.
(a) If the Employer maintains, or had maintained, any other defined
contribution plan or plans which are not Master or Prototype
Plans, Annual Additions for any Limitation Year to this Plan will
be limited (check one):
(1) [X] in accordance with Section 5.03 of this Plan.
(2) [ ] in accordance with another method set forth on an
attached separate sheet.
(3) [ ] Not Applicable.
(b) If the Employer maintains, or had maintained, a defined benefit
plan or plans, the sum of the Defined Contribution Fraction and
Defined Benefit Fraction for a Limitation Year may not exceed the
limitation specified in Code Section 415(e), modified by section
416(h)(1) of the Code. This combined plan limit will be met as
follows (check one):
(1) [X] Annual Additions to this Plan are limited so that the
sum of the Defined Contribution Fraction and the
Defined Benefit Fraction does not exceed 1.0.
(2) [ ] another method of limiting Annual Additions or reducing
projected annual benefits is set forth on an attached
schedule.
(3) [ ] Not Applicable.
1.14 ESTABLISHMENT OF TRUST AND INVESTMENT DECISIONS
(a) Investment Directions
Participant Accounts will be invested (check one):
(1) [ ] in accordance with investment directions provided to
the Trustee by the Employer for allocating all
Participant Accounts among the options listed in (b)
below.
10
62
(2) [X] in accordance with investment directions provided to
the Trustee by each Participant for allocating his
entire Account among the options listed in (b) below.
(b) Plan Investment Options
The Employer hereby establishes a Trust under the plan in accordance with
the provisions of Article 14, and the Trustee signifies acceptance of its
duties under Article 14 by its signature below. Participant Accounts
under the Trust will be invested among the Fidelity Funds listed below
pursuant to Participant or Employer directions.
Fund Name Fund Number
--------- -----------
(A) FMMT Retirement Government Money Market 631
------------------------------------------------- -----------
(B) Investment Grade Bond Fund 26
------------------------------------------------- -----------
(C) Fidelity Asset Manager 314
------------------------------------------------- -----------
(D) Puritan Fund 4
------------------------------------------------- -----------
(E) Growth & Income Portfolio 27
------------------------------------------------- -----------
(F) Fidelity U.S. Equity Index Portfolio 650
------------------------------------------------- -----------
(G) Contrafund 22
------------------------------------------------- -----------
(H) Magellan Fund 21
------------------------------------------------- -----------
(I)
------------------------------------------------- -----------
(J)
------------------------------------------------- -----------
NOTE: An additional annual recordkeeping fee will be charged for each
fund in excess of five funds.
To the extent that the Employer selects as an investment option
the Managed Income Portfolio of the Fidelity Group Trust for
Employee Benefit Plans (the "Group Trust"), the Employer hereby
(A) agrees to the terms of the Group Trust and adopts said terms
as a part of this Agreement and (B) acknowledges that it has
received from the Trustee a copy of the Group Trust, the
Declaration of Separate Fund for the Managed Income Portfolio of
the Group Trust, and the Circular for the Managed Income
Portfolio.
11
63
NOTE: The method and frequency for change of investments will be
determined under the rules applicable to the selected funds or, if
applicable, the rules of the Employer adopted in accordance with
Section 6.03. Information will be provided regarding expenses, if
any, for changes in investment options.
1.15 RELIANCE ON OPINION LETTER
An adopting Employer may not rely on the opinion letter issued by the
National Office of the Internal Revenue Service as evidence that this
Plan is qualified under Section 401 of the Code. If the Employer wishes
to obtain reliance that his or her plan(s) are qualified, application for
a determination letter should be made to the appropriate Key District
Director of the Internal Revenue Service. Failure to properly fill out
the Adoption Agreement may result in disqualification of the Plan.
This Adoption Agreement may be used only in conjunction with Fidelity
Prototype Plan Basic Plan Document No. 09. The Prototype Sponsor shall
inform the adopting Employer of any amendments made to the Plan or of the
discontinuance or abandonment of the prototype plan document.
1.16 PROTOTYPE INFORMATION:
Name of Prototype Sponsor: Fidelity Management & Research Co.
Address of Prototype Sponsor: 82 Devonshire Street
Boston, MA 02109
Questions regarding this prototype document may be directed to the
following telephone number:
1-(800) 343-9184.
12
64
EXECUTION PAGE
(Employer's Copy)
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed this 12th day of October 1993
--------- ----------------,-------.
Employer JAYCOR
_______________________________
By /s/ RANDY JOHNSON
_______________________________
Title CHIEF FINANCIAL OFFICER
_______________________________
Employer JAYCOR TECHNICAL SERVICES, INC.
_______________________________
By /s/ RANDY JOHNSON
_______________________________
Title CHIEF FINANCIAL OFFICER
_______________________________
Accepted by
Fidelity Management Trust Company, as Trustee
By /s/ JUAN L AVILES Date October 22, 1993
___________________________________ _____________________
Title Director
________________________________
14
65
AMENDMENT TO ADOPTION AGREEMENT
OF
MONEY PURCHASE PENSION PLAN
OF JAYCOR
This Amendment is made on September 25, 1996 to amend the Money Purchase Pension
Plan of JAYCOR, effective as of January 1, 1996, as follows:
1. Section 1.03(a)(3)(B)(v) of the Adoption Agreement shall be amended by
adding to following excluded employees:
All employees of JAYCOR Multimedia Services, Inc.
All employees of Howell Intelligence Services, Inc.
2. Except as so amended, the Adoption Agreement is ratified and confirmed.
JAYCOR
by: /s/ Eric P. Wenaas
__________________________________
Eric P. Wenaas, President
JAYCOR Technical Services, Inc.
by: /s/ Eric P. Wenaas
__________________________________
Eric P. Wenaas, President
66
BOARD OF DIRECTORS RESOLUTION
JAYCOR
At a duly constituted meeting of the Board of Directors of JAYCOR, (the
"Corporation"), a Corporation organized under the laws of the State of
California, held on September 25, 1996, at which meeting a quorum was present
and voting throughout:
WHEREAS, the Corporation previously adopted the JAYCOR 401(k) Plan and
the JAYCOR Money Purchase Pension Plan (the "Plans") effective January 1, 1994,
WHEREAS, the Corporation reserves the authority to amend the Plans in
Section 10.01(a) of the Fidelity CORPORATEplan for Retirement(SM) Basic Plan
Document by filing with the Trustee an amended Adoption Agreement, executed by
the Corporation, on which said Corporation has indicated a change or changes in
provisions previously elected;
WHEREAS, the Corporation desires to add two Fidelity Funds to the Plan;
NOW THEREFORE BE IT RESOLVED, that, effective November 1, 1996, the
Corporation amend Section 1.14(b) of the Adoption Agreements to add the
following Fidelity Funds:
Name of Fund Fund Number
------------ -----------
Fidelity Emerging Growth Fund 0324
Fidelity Diversified International Fund 0325
The Addendums to Section 1.14(b) of the Fidelity CORPORATEplan for
Retirement(SM) Adoption Agreements are attached hereto and made a part of the
minutes of this meeting; and
RESOLVED that Dorothy Bidwell, Corporate Secretary and/or Randy Johnson,
the Chief Financial Officer of the Corporation are hereby authorized and
directed to take such actions as may be necessary or desirable to effectuate the
foregoing resolution.
In witness whereof, I have hereunto set my hand and affixed the seal of the
Corporation this 26th day of September, 1996.
JAYCOR
By /s/ Dorothy Bidwell
_____________________________________
Dorothy Bidwell, Corporate Secretary
A true copy
ATTEST: /s/ Randy Johnson
_________________________________
Financial Officer
67
Addendum To Section 1.14(b) of the
Fidelity CORPORATEplan for Retirement(SM)
Adoption Agreement - Plan Investment Options
Employer: JAYCOR
Plan Name: JAYCOR Money Purchase Pension Plan
Plan Number: 40537
The employer originally elected that Participant Accounts under the Plan would
be invested among the Fidelity Funds listed below pursuant to Participant and/or
Employer direction:
Fund Name Fund Number
--------- -----------
Fidelity Retirement Government Money Market 0631
Fidelity Investment Grade Bond Fund 0026
Fidelity Asset Manager Portfolio 0314
Fidelity Puritan Fund 0004
Fidelity Growth and Income Portfolio 0027
Fidelity U.S. Equity Index Portfolio 0650
Fidelity Magellan Fund 0021
Fidelity Contrafund 0022
The Employer amends the Plan to add the following Fidelity Funds effective
November 1, 1996:
Fund Name Fund Number
--------- -----------
Fidelity Emerging Growth Fund 0324
Fidelity Diversified International Fund 0325
Note: The Employer may elect up to ten Fidelity Funds. An additional annual
recordkeeping fee will be charged for each Fidelity Fund in excess of seven.
/s/ RANDY JOHNSON
--------------------------------------
Authorized Signature
9/26/96
--------------------------------------
Date Signed
68
AMENDMENT TO ADOPTION AGREEMENT
OF
MONEY PURCHASE PENSION PLAN
OF JAYCOR
This Amendment is made on February 28, 1995 to amend the Money Purchase Pension
Plan of JAYCOR, effective as of January 1, 1995, as follows:
1. Section 1.03(a)(1) of the Adoption Agreement shall be modified to select
Option (D) in addition to the existing Option (B), with Option (D) to read as
follows:
(D) One Year of Service (1,000 Hours of Service is required during the
Eligibility Computation Period) for any employee who is classified by the
Employer as a part-time or temporary employee, using Hours of Service which
are credited on or after January 1, 1995.
2. Section 1.03(a)(3)(B)(v) of the Adoption Agreement shall be amended by
deleting the categories of excluded employees presently described therein.
3. Section 1.03(b) of the Adoption Agreement shall be modified to select Option
(2) in addition to the existing Option (4), with Option (2) to read as follows:
(1) The first day of the Plan Year and the date six months later, for any
employee who is classified by the Employer as a part-time 1 or temporary
employee.
4. Except as so amended, the Adoption Agreement is ratified and confirmed.
JAYCOR
By: /s/ E. P. WENAAS
_______________________________________
Eric P. Wenaas, President
JAYCOR Technical Services, Inc.
By: /s/ E. P. WENAAS
_______________________________________
Eric P. Wenaas, President