EXHIBIT 4.6
NOKIA
-----
RETIREMENT SAVINGS AND INVESTMENT PLAN
--------------------------------------
AS AMENDED AND RESTATED 2007
----------------------------
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS........................................................1
1.01 "Account".................................................... 1
1.02 "Actual Deferral Percentage".................................. 3
1.03 "Administrative Delegate"..................................... 3
1.04 "Anniversary Date"............................................ 3
1.05 "Annuity Starting Date"....................................... 3
1.06 "Applicable Computation Period"............................... 3
1.07 "Average Contribution Percentage"............................. 3
1.08 "Average Deferral Percentage"................................. 3
1.09 "Beneficiary"................................................. 3
1.10 "Board of Directors".......................................... 4
1.11 "Committee"................................................... 4
1.12 "Company"..................................................... 4
1.13 "Compensation"................................................ 4
1.14 "Contribution Percentage"..................................... 5
1.15 "Controlled or Affiliated Service Group"...................... 6
1.16 "Disability".................................................. 6
1.17 "Effective Dates"............................................. 6
1.18 "Eligible Employee"........................................... 6
1.19 "Employee".................................................... 7
1.20 "Employer".................................................... 7
1.21 "Highly Compensated Employee"................................. 7
1.22 "Inactive Participant"........................................ 8
1.23 "Internal Revenue Code" or "Code"............................. 8
1.24 "Leased Employee"............................................. 8
1.25 "Leave of Absence"............................................ 8
1.26 "Military Absence"............................................ 8
1.27 "Nonhighly Compensated Employee".............................. 8
1.28 "Participant"................................................. 8
1.29 "Plan"........................................................ 9
1.30 "Plan Year"................................................... 9
1.31 "Pooled Investment Account"................................... 9
1.32 "Protected Spouse"............................................ 9
1.33 "Qualified Domestic Relations Order".......................... 9
1.34 "Retirement".................................................. 9
1.35 "Retirement Dates"............................................ 9
1.36 "Service"..................................................... 9
1.37 "Trust Agreement".............................................11
1.38 "Trustee".....................................................11
1.39 "Trust Fund"..................................................11
1.40 "Valuation Date"..............................................11
i
TABLE OF CONTENTS
(continued)
Page
ARTICLE 2 ELIGIBILITY AND PARTICIPATION.....................................12
2.01 Eligibility for Participation.................................12
2.02 Change in Employment Status...................................12
2.03 Election Not to Defer; Cessation of Deferrals.................13
2.04 Suspension of Right to Make Elective Deferrals................13
ARTICLE 3 CONTRIBUTIONS.....................................................14
3.01 Elective Deferral Contributions...............................14
3.02 Reduction of Excess Elective Deferral Contributions...........15
3.03 Matching and Retirement Contributions.........................15
3.04 Voluntary After-Tax Contributions.............................18
3.05 Contribution Changes..........................................19
3.06 Discontinuance of Contributions...............................19
3.07 Rollover Contributions from Other Qualified Plans.............19
3.08 Transfer of Assets from Other Qualified Plans.................21
3.09 Deposit of Contributions; Delay in Payments...................21
ARTICLE 4 CONTRIBUTION LIMITATIONS..........................................22
4.01 Limitation on Elective Deferral Contributions.................22
4.02 Limitation on Elective Deferral and Matching Contributions....22
4.03 Limitation on Allocations.....................................25
4.04 Distribution of Excess Deferrals..............................27
4.05 Distribution of Excess Contributions..........................28
4.06 Distribution of Excess Aggregate Contributions................29
4.07 Incorporation by Reference....................................29
4.08 Allocation of Forfeitures.....................................30
ARTICLE 5 MAINTENANCE OF ACCOUNTS, INVESTMENT FUNDS AND
VALUATION OF THE TRUST FUND.......................................31
5.01 Maintenance of Accounts.......................................31
5.02 Investment Election...........................................31
5.03 Investment Funds..............................................31
5.04 Valuation of Trust Fund.......................................31
5.05 Allocation of Investment Earnings and Expenses................32
ARTICLE 6 DISTRIBUTIONS FROM THE PLAN.......................................33
6.01 Retirement Dates..............................................33
6.02 Retirement Distributions......................................33
6.03 Death Benefits................................................33
6.04 Beneficiary Designation.......................................34
6.05 Disability Retirement.........................................35
6.06 In-Service Distributions......................................35
6.07 Distribution Upon Termination of Employment...................38
ii
TABLE OF CONTENTS
(continued)
Page
6.08 Segregated Accounts...........................................40
6.09 Payment of Benefits; Timing...................................41
6.10 Direct Rollovers..............................................41
ARTICLE 7 CLAIM PROCEDURES..................................................43
7.01 Claim Procedures..............................................43
7.02 Proof of Claim................................................43
ARTICLE 8 ADMINISTRATION OF THE PLAN........................................44
8.01 Assignment of Administrative Authority........................44
8.02 Organization and Operation of the Committee...................44
8.03 Authority and Responsibility..................................45
8.04 Records and Reports...........................................46
8.05 Required Information..........................................46
8.06 Fiduciary Liability...........................................46
8.07 Payment of Expenses...........................................47
8.08 Indemnification...............................................47
8.09 Payment of Expenses...........................................47
8.10 Plan Correction...............................................47
ARTICLE 9 AMENDMENT AND TERMINATION.........................................48
9.01 Amendment.....................................................48
9.02 Termination...................................................48
9.03 Vesting Upon Termination......................................49
9.04 Distribution of Benefits After Termination....................49
9.05 Distributions Upon Sale of Assets.............................49
9.06 Distributions Upon Sale of Subsidiary.........................49
9.07 Satisfaction of Liability.....................................49
ARTICLE 10 PARTICIPATING COMPANIES..........................................50
10.01 Adoption by Other Entities...................................50
10.02 Alternative Provisions.......................................50
10.03 Right to Withdraw (Plan Spin-off)............................50
10.04 Procedure Upon Withdrawal....................................50
10.05 Multiple Employer Plan.......................................51
ARTICLE 11 TOP-HEAVY PROVISIONS.............................................52
11.01 Definition of Top-Heavy and Super Top-Heavy..................52
11.02 Definition of Key Employee...................................53
11.03 Minimum Employer Contribution................................53
11.04 Modification of Top-Heavy Rules..............................55
ARTICLE 12 QUALIFIED DOMESTIC RELATIONS ORDERS..............................57
12.01 Qualified Domestic Relations Orders..........................57
iii
TABLE OF CONTENTS
(continued)
Page
12.02 Specifications...............................................57
12.03 Payment Before Separation From Service.......................57
12.04 Earliest Retirement Age......................................58
12.05 Procedures...................................................58
ARTICLE 13 LOANS............................................................61
13.01 Amount of Loans and Terms of Repayment.......................61
ARTICLE 14 GENERAL PROVISIONS...............................................63
14.01 Exclusiveness of Benefits....................................63
14.02 Limitation of Rights.........................................63
14.03 Limitation of Liability and Legal Actions....................63
14.04 Construction of Agreement....................................63
14.05 Title to Assets; Non-Assignability (Spendthrift Provision)...64
14.06 Severability.................................................64
14.07 Titles and Headings..........................................64
14.08 Counterparts as Original.....................................64
14.09 Merger of Plans..............................................64
14.10 Disposition of Unclaimed Benefits............................65
14.11 Substitute Payee.............................................65
14.12 USERRA.......................................................65
14.13 Impossibility of Performance.................................65
14.14 Dissolution of the Employer..................................65
14.15 Discharge of Trustee's Obligation to Make Payments...........65
14.16 Incapacity...................................................66
14.17 Definition of Words..........................................66
14.18 Titles.......................................................66
ARTICLE 15 MINIMUM DISTRIBUTION REQUIREMENTS................................67
15.01 General Rules................................................67
15.02 Time and Manner of Distribution..............................67
15.03 Required Minimum Distributions During Participant's Lifetime.68
15.04 Required Minimum Distributions After Participant's Death.....69
15.05 Definitions..................................................70
iv
STATEMENT OF PURPOSE
--------------------
The Nokia Retirement Savings and Investment Plan for Employees of Nokia, Inc.
(the "Plan") was established in 1983 to permit Nokia, Inc. to share its profits
with its employees and to provide for the accumulation of funds for the benefit
of eligible employees and their beneficiaries in the manner and to the extent
set forth in such plan. The Plan, to which Nokia, Inc. has been making
contributions since that time, has been restated several times since 1983.
Effective January 1, 1989, Plan was amended and restated in its entirety, and
its name changed to the "Nokia Retirement Savings and Investment Plan."
Nokia Inc. became the sponsor of the Plan as a result of a corporate merger and
reorganization whereby the prior sponsor of the Plan merged into the Company and
assigned all of its assets and liabilities to the Company.
Nokia Inc. has agreed to form a joint venture with Siemens AG, named Nokia
Siemens Networks ("NSN"), which will become effective as of April 1, 2007. Nokia
Inc. and Siemens AG will each own a 50% interest in NSN. Nokia Inc. has
determined that the employees of Nokia's Networks Business Group, which will
become part of NSN, should continue to participate in the Plan. Accordingly, the
Plan will become a multiple employer plan effective April 1, 2007.
Effective April 1, 2007 (the "Restatement Effective Date"), the Plan and its
related trust are again being amended and restated and continued in their
entirety.
The rights of any Plan Participants who retired, terminated employment or died
before the effective date of any amendment shall be determined in accordance
with the terms and provisions of the Plan in effect on the date of such
retirement, termination of employment or death, except as otherwise specifically
provided herein.
ARTICLE 1
---------
DEFINITIONS
-----------
For purposes of the Plan, the following words and phrases shall have the
following meanings unless a different meaning is plainly required by the
context. Wherever used, the masculine pronoun shall include the feminine pronoun
and the feminine pronoun shall include the masculine, and the singular shall
include the plural and the plural shall include the singular.
1.01 "Account"
-------
The interest of a Participant in the Trust Fund as represented by his
accounts as designated below.
(a) "Elective Deferral Contribution Account" (Account A)- The portion of
--------------------------------------
the Trust Fund attributable to a Participant's Elective Deferral
Contributions
1
(i) in accordance with the provisions of Section 3.01
(ii) the provisions of the Plan in effect prior to the Restatement
Effective Date.
(b) "Matching Contribution Account" (Account B)- The portion of the
Trust Fund attributable to the Company's
(i) Matching Contributions in accordance with the provisions of
Subsection 3.03(a) and with the provisions of the Plan in
effect prior to the Restatement Effective Date;
(ii) Additional Matching Contributions in accordance with the
provisions of Subsection 3.03(b).
(c) "Retirement Contribution Account" (Account C)- The portion of the
Trust Fund attributable to the Company's Retirement Contributions in
accordance with the provisions of Subsection 3.03(c) and the
provisions of the Plan in effect prior to the Supplemental Effective
Date, and Top-Heavy Contributions in accordance with Article 11.
(d) "Rollover Account"- The portion of the Trust Fund attributable to
funds rolled over from another qualified plan in accordance with
Section 3.07.
(e) "Transfer Account"- The portion of the Trust Fund attributable to
the Company's contributions during a Participant's participation
under another qualified plan and transferred in accordance with the
provisions of Section 3.08.
(f) "Voluntary After-Tax Contribution Account" (Account D)- The portion
of the Trust Fund attributable (i) to a Participant's Voluntary
After-Tax Contributions based on the first 6% of a Participant's
Compensation under the provisions of the Plan in effect prior to
January 1, 1989, and (ii) to the Voluntary After-Tax Contributions
made on or after July 1, 1997, by certain "Seconded Employees" who
are working for "Nokia Abroad," pursuant to Section 3.04 hereof.
(g) "Additional Voluntary After-Tax Contribution Account" (Account E)-
The portion of the Trust Fund attributable to a Participant's
Voluntary After-Tax Contributions in excess of 6% of a Participant's
Compensation under the provisions of the Plan in effect prior to
January 1, 1989.
(h) "Qualified Matching Contribution Account"- The portion of the Trust
Fund attributable to the Company's Qualified Matching Contributions
in accordance with the provisions of Subsection 3.03(b).
(i) "Qualified Nonelective Contribution Account"- The portion of the
Trust Fund attributable to the Company's Qualified Nonelective
Contributions in accordance with the provisions of Subsection
3.03(d).
2
1.02 "Actual Deferral Percentage"
--------------------------
The ratio (expressed as a percentage) of the amount of Elective Deferral
Contributions and qualified company Contributions paid into the Plan on
behalf of each Participant for such Plan Year to the Participant's
Compensation for such Plan Year.
1.03 "Administrative Delegate"
-----------------------
One or more persons or institutions to whom the Committee has delegated
certain administrative functions pursuant to a written agreement.
1.04 "Anniversary Date"
----------------
Each January 1.
1.05 "Annuity Starting Date"
---------------------
The first day of the first period for which an amount is payable as an
annuity. If a benefit is not payable in the form of an annuity, the first
day on which all events have occurred which entitle the Participant to
such benefit.
1.06 "Applicable Computation Period"
-----------------------------
(a) For purposes of contributions in accordance with Articles 3 and 11,
the Applicable Computation Period shall be the Plan Year.
(b) For all other purposes, the Applicable Computation Period shall be
the 12-month period beginning as of the first day of the month
during which a person first completed an Hour of Employment with the
Employer and each anniversary thereof.
1.07 "Average Contribution Percentage"
-------------------------------
The Average Contribution Percentage, for a specified group of Participants
for a Plan Year, shall mean the average (expressed as a percentage) of the
Contribution Percentages of the Eligible Participants in such group.
1.08 "Average Deferral Percentage"
---------------------------
The Average Deferral Percentage, for a specified group of Participants for
a Plan Year, shall mean the average (expressed as a percentage) of the
Actual Deferral Percentages of the Eligible Participants in such group.
1.09 "Beneficiary"
-----------
The person designated to receive benefits payable under the Plan in the
event of death. In the event a Beneficiary is not designated, the
Participant's surviving spouse shall be deemed his Beneficiary or, in the
absence of a surviving spouse, the benefits shall be paid to the
Participant's estate.
3
1.10 "Board of Directors"
------------------
The Board of Directors of Nokia Inc.
1.11 "Committee"
---------
The person or persons appointed in accordance with Section 8.01 to
administer the Plan. In the absence of such designation, the Company shall
serve as the Committee, and in such case, all references herein to the
Committee shall be deemed a reference to the Company.
1.12 "Company"
-------
(a) Nokia Inc. and any successor which shall maintain this Plan; and
(b) any other business entity, including Nokia Networks Business Group,
which duly adopts the Plan with the approval of the Board of
Directors.
1.13 "Compensation"
------------
(a) Unless otherwise indicated, for purposes of Article 3, the amount
described in Subsection (c) exclusive of any (i) amount paid to an
expatriate pursuant to an international assignment contract which
has not been designated as United States pensionable compensation in
such contract, (ii) amount paid before an Eligible Employee was
eligible to become a Participant in accordance with Section 2.01,
and (iii) amount of any "excess Flex Dollars" (as such term is
defined in the Nokia Benefits By Choice Plan) that were contributed
to the Plan as Elective Deferral Contributions, as defined in
Section 3.01(a), from the Nokia Benefits By Choice Plan. For
purposes of Section 3.01, third party insurance payments shall be
excluded.
(b) For purposes of Section 4.03, the Participant's wages for the Plan
Year paid by the Employer of the type reported on Form W-2. Such
wages shall include amounts within the meaning of section 3401(a) of
the Code plus any other amounts paid to the Participant by the
Employer for which the Employer is required to furnish a written
statement under sections 6041(d) and 6051(a)(3) of the Code,
determined without regard to the rules that limit the amount
required to be reported based on the nature or location of the
employment or services performed, plus all amounts excluded from the
Participant's income for the period under Code Section 125,
402(g)(3), 457 and, for limitation years after 2000, 132(f)(4), but
exclusive of the following:
(i) severance pay on a non payroll basis;
(ii) non-qualified deferred compensation payments;
4
(iii) any amounts paid or reimbursed by the Employer for moving
expenses which the Employer reasonably believes at the time of
such payment to be deductible by the Employee under section
217 of the Code;
(iv) welfare benefits, fringe benefits (cash and non-cash),
reimbursements of other expense allowances, moving expenses,
third party insurance payments and "excess Flex Dollars"; and
(v) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or other property) held by
the Employee either becomes freely "transferable" or is no
longer subject to a "substantial risk of forfeiture" (both
quoted terms within the meaning of Code Section 83(a)).
(c) For purposes of Sections 1.23 and 4.02 and Article 11, the amount
described in Subsection (b), increased by the amount of any
contributions made by the Employer under any salary reduction or
similar arrangement to a qualified deferred compensation, pension or
cafeteria plan (including the amount of any "excess Flex Dollars
that were contributed to the Plan as Elective Deferral Contributions
from the Nokia Benefits By Choice Plan), contributions to a
simplified employee pension plan described in section 408(k) of the
Code, contributions towards the purchase of an annuity contract
described in section 403(b) of the Code, compensation deferred under
a deferred compensation plan within the meaning of section 457(b) of
the Code, and Employee contributions under governmental plans
described in section 414(h)(2) of the Code which are picked up and
treated as Employer contributions and, for Plan Years after 2000,
amounts not includible in gross income by reason of Code Section
132(f)(4). For purposes of Section 1.23, the amount described above
shall be for the applicable period for making the determination of
Highly Compensated Employees.
(d) In addition to other applicable limitations set forth in the Plan,
and notwithstanding any other provision of the Plan to the contrary
the annual Compensation of each Participant taken into account in
determining allocations for any Plan Year shall not exceed $200,000,
as adjusted for cost-of-living increases in accordance with section
401(a)(17)(B) of the Code. Annual Compensation means compensation
during the Plan Year or such other consecutive 12-month period over
which Compensation is otherwise determined under the Plan (the
determination period). The cost-of-living adjustment in effect for a
calendar year applies to annual Compensation for the determination
period that begins with or within such calendar year.
1.14 "Contribution Percentage"
-----------------------
The ratio (expressed as a percentage) of a Participant's Elective
Deferrals (to the extent such Elective Deferrals are not needed to enable
the Plan to pass the Average Deferral Percentage Test for Elective
Deferrals for such
5
Plan Year) and Employer Matching Contributions on behalf of a Participant
for the Plan Year to the Participant's Compensation for the Plan Year.
1.15 "Controlled or Affiliated Service Group"
--------------------------------------
(a) "Controlled Group"- Any group of business entities under common
control, including but not limited to proprietorships and
partnerships, or a controlled group of corporations within the
meaning of sections 414(b), (c) and (o) of the Code. For purposes of
Section 4.03, the phrase "more than 50%" is substituted for the
phrase "at least 80%" each place it appears in section 1563(a)(1) of
the Code.
(b) "Affiliated Service Group"- Any group of business entities within
the meaning of section 414(m) of the Code.
1.16 "Disability"
----------
Any physical or mental condition for which a Participant shall be eligible
to receive benefits under the disability insurance provisions of the
Social Security Act.
1.17 "Effective Dates"
---------------
(a) "Initial Effective Date"- May 1, 1983, the date as of which the Plan
was established.
(b) "Restatement Effective Date"- April 1, 2007.
1.18 "Eligible Employee"
-----------------
An Employee for whom the Company is required to contribute Federal
Insurance Contributions Act taxes, including non-resident aliens but
excluding (a) individuals on temporary assignment with the Company who are
identified as interns or co-ops on its payroll system, (b) Leased
Employees, (c) employees who are members of a collective bargaining unit
covered by a collective bargaining agreement which as a result of good
faith bargaining regarding retirement benefits does not provide for their
participation in the Plan, (d) non-United States citizens employed by a
foreign affiliate who are transferred to the United States pursuant to an
international assignment contract entered into on or after January 1, 2002
and (e), for purposes of determining Company Retirement Contributions in
accordance with subsection 3.03(d), persons currently accruing benefits
under any plan to which contributions are made by a member of the
Controlled or Affiliated Service Group which includes the Company.
Notwithstanding the above, Leased Employees shall be included in the
definition of Eligible Employee if the requirements of section 414(n)(2)
of the Code require such inclusion in order to meet the plan qualification
requirements enumerated in section 414(n) and then only if the coverage
requirements of section 410(b) of the Code would otherwise not be met.
6
1.19 "Employee"
--------
Any person in the employ of the Company. "Leased Employees" shall be
included as Employees unless (i) such individual is covered by a money
purchase pension plan providing (A) a nonintegrated employer contribution
rate of at least ten percent (10%) of compensation, as defined in section
415(c)(3) of the Code, but including amounts contributed by the employer
pursuant to a salary reduction agreement which are excludable from the
Leased Employee's gross income under sections 125, 402(a)(8), 403(h) or
403(b) of the Code; (B) immediate participation; and (C) full and
immediate vesting; and (ii) Leased Employees do not constitute more than
twenty percent (20%) of the Employer's Nonhighly Compensated Employee
workforce.
1.20 "Employer"
--------
The Company and any other business entity in a Controlled or Affiliated
Service Group which includes the Company.
1.21 "Highly Compensated Employee"
---------------------------
"Highly Compensated Employee" shall mean an individual described in
section 414(q) of the Code, as such definition may be changed from time to
time. The term "Highly Compensated Employee" shall mean any employee who
(a) was a "5-percent owner" of the Employer at any time during the Plan
Year or the preceding Plan Year, or
(b) for the preceding Plan Year
(i) had Compensation in excess of $80,000 (which amount shall be
adjusted by the Commissioner at the same time and in the same
manner as under section 415(d) of the Code), and
(ii) if the Employer elects the application of this clause for such
preceding Plan Year, was in the "top-paid group" of Employees
for such preceding Plan Year.
An Employee shall be treated as a "5-percent owner" for any Plan Year if
at any time during such Plan Year such Employee was a 5-percent owner (as
defined in section 416(i)(1) of the Code) of the Employer. An Employee is
in the "top-paid group" of Employees for any Plan Year if such Employee is
in the group consisting of the top twenty percent (20%) of the Employees
when ranked on the basis of Compensation paid during such Plan Year,
excluding those Employees who (A) have not completed six (6) months of
service, (B) normally work less than seventeen and one half (17 1/2) hours
per week, (C) normally work during not more than six (6) months during any
Plan Year, (D) have not attained age twenty one (21), and (E) are 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 the Employer.
7
A former Employee shall be treated as a Highly Compensated Employee if
(I) such Employee was a Highly Compensated Employee when such Employee
separated from service, or
(II) such Employee was a Highly Compensated Employee at any time after
attaining age fifty five (55).
1.22 "Inactive Participant"
--------------------
Any Employee or former Employee who has ceased to be a Participant and on
whose behalf an Account is maintained under the Plan.
1.23 "Internal Revenue Code" or "Code"
-------------------------------
The Internal Revenue Code of 1986, and any amendments thereto.
1.24 "Leased Employee"
---------------
Any person (other than an Employee of the recipient) who, pursuant to an
agreement between the recipient and any other person ("leasing
organization"), has performed services for the recipient (or for the
recipient and related persons, determined in accordance with section
414(n)(6) of the Code) on a substantially full time basis for a period of
at least one year, and such services performed under the primary direction
of the recipient.
1.25 "Leave of Absence"
----------------
Any absence from work which shall have been approved by the Employer under
uniform rules and regulations.
1.26 "Military Absence"
----------------
Absence for any period of military service with the Armed Forces of the
United States, provided that the Employee returns to Employment with the
Employer within the period during which the Employer would be required to
reemploy the Employee under federal law.
1.27 "Nonhighly Compensated Employee"
------------------------------
An Employee of the Employer who is not a Highly Compensated Employee.
1.28 "Participant"
-----------
(a) An Eligible Employee who participates under the Plan in accordance
with Section 2.01.
(b) Each other Eligible Employee, former Eligible Employee, or Inactive
Participant for whom an Account is maintained.
8
1.29 "Plan"
----
The Nokia Retirement Savings and Investment Plan, as herein set forth and
as from time to time supplemented and amended, which Plan is intended to
be a profit-sharing plan for purposes of sections 401(a), 402, 412 and 417
of the Code.
1.30 "Plan Year"
---------
A period of 12 consecutive months commencing each January 1.
1.31 "Pooled Investment Account"
-------------------------
An account established pursuant to an administrative services agreement
between the Company and the Trustee.
1.32 "Protected Spouse"
----------------
The spouse or surviving spouse of a Participant, provided that a former
spouse will be treated as the Protected Spouse to the extent provided
under a qualified domestic relations order as described in section 414(p)
of the Code.
1.33 "Qualified Domestic Relations Order"
----------------------------------
A domestic relations order as defined in Section 8.10 in accordance with
section 414(p) of the Code.
1.34 "Retirement"
----------
The termination of employment of a Participant on his Early, Normal or
Deferred Retirement Date.
1.35 "Retirement Dates"
----------------
(a) "Normal Retirement Date"- The date on which the Participant attains
age 65.
(b) "Early Retirement Date"- The first day of any month coincident with
or following the date on which the Participant attains age 55,
provided he has completed four (4) Years of Service as of such date.
(c) "Deferred Retirement Date"- The first day of any month subsequent to
the Participant's Normal Retirement Date.
1.36 "Service"
-------
(a) All periods of employment with the Employer. A period of employment
begins as of the date the Employee first completes an Hour of
Employment for the Employer and ends on the earlier of the date the
Employee resigns, is discharged, retires or dies or, if the Employee
is absent for any other reason, on the first anniversary of the
first day of such absence (with or without pay) from the
9
Employer. If an Employee is absent for any reason and returns to the
employ of the Employer before incurring a Break-in-Service, as
provided in Subsection (b), he shall receive credit for his period
of absence up to a maximum of 12 months. Service subsequent to a
Break-in-Service will be credited as a separate period of
employment.
(b) "Break-in-Service"- A period of 12-consecutive months during which
an Employee fails to accrue an Hour of Employment with the Employer.
Such period begins on the earlier of the date the Employee resigns,
is discharged, retires or dies or, if the Employee is absent for any
other reason, on the first anniversary of the first day of such
absence (with or without pay) from the Employer. If, commencing on
or after January 1, 1985, an Employee is absent by reason of (i) the
pregnancy of the Employee, (ii) the birth of a child of the
Employee, (iii) the placement of a child with the Employee in
connection with an adoption of such child by such Employee, or (iv)
caring for such child immediately following such birth or placement,
such Employee will not be treated as having retired, resigned or
been discharged and the period between the first and second
anniversary of the first day of such absence shall not be deemed a
Break-in-Service.
(c) "Month of Service"- A calendar month any part of which is in a
period of employment or credited absence.
(d) "Year of Service"- Unless otherwise indicated, twelve (12) Months of
Service based upon the anniversary of the Employee's date of hire.
(e) "Hour of Employment"
(i) For an Employee paid on an hourly basis or for whom hourly
records of employment are required to be maintained, each hour
for which the person is directly or indirectly paid or
entitled to payment for the performance of duties or for the
period of time when no duties are performed, irrespective of
whether the employment relationship has terminated, such as
vacation, holiday or illness.
(ii) For an Employee paid on a non-hourly basis or for whom hourly
records of employment are not required to be maintained, each
week for which the person is directly or indirectly paid or
entitled to payment shall be equal to 45 Hours of Employment.
(iii) A person shall receive an Hour of Employment for each hour for
which back pay has been awarded or agreed to irrespective of
mitigation of damages, provided that each such hour shall be
credited to the Applicable Computation Period to which it
pertains, rather than the Applicable Computation Period in
which the award or agreement is made, and further provided
that no such award or agreement shall have the effect of
crediting
10
an Hour of Employment for any hour for which the person
previously received credit under (i) or (ii) above.
(iv) Notwithstanding the foregoing, Hours of Employment shall be
computed and credited in accordance with Department of Labor
Regulation 2530.200b-2, Subparagraphs (b) and (c), Rules and
Regulations for Minimum Standards for Employee Benefit Plans,
U.S. DEPARTMENT OF LABOR, which are incorporated herein by
reference.
(f) An Employee shall receive credit for the period of his employment
with another business entity to which he had been transferred by the
Company solely for purposes of determining his vested interest in
accordance with Section 6.07.
(g) "Imputed Service"- A Participant shall be credited with service
performed for NVP Management Co., LLC and any other employer
designated by the Board in which the Company has a significant
ownership, control or similar interest, so long as: (1) the Plan
treats all similarly situated employees in the same manner, (2)
there is a legitimate reason crediting the service, and (3)
crediting the service does not discriminate significantly in favor
of highly compensated employees.
1.37 "Trust Agreement"
---------------
The instrument executed by the Company and the Trustee fixing the rights
and liabilities of each with respect to holding and administering the
Trust Fund, which instrument shall be incorporated by reference into this
Plan.
1.38 "Trustee"
-------
The Trustee or any successor Trustee, appointed by the Board of Directors,
acting in accordance with the terms of the Trust Agreement.
1.39 "Trust Fund"
----------
All assets held by the Trustee for the purposes of the Plan in accordance
with the terms of the Trust Agreement.
1.40 "Valuation Date"
--------------
Any day that the New York Stock Exchange is open for business or any other
date selected from time to time by the Committee.
In addition to the foregoing definitions, other terms are defined in the several
sections constituting the Plan.
ARTICLE 2
---------
11
ELIGIBILITY AND PARTICIPATION
-----------------------------
2.01 Eligibility for Participation
-----------------------------
(a) Each Eligible Employee who is scheduled to work at least 1,000 Hours
of Employment in a twelve month period shall become a Participant as
of the first day next following the later of the date he (i)
completes one (1) Hour of Employment or (ii) attains age 18. An
Eligible Employee who is not scheduled to work at least 1,000 Hours
of Employment in a twelve month period shall become a Participant on
the first January 1 or July 1 by which both of the following shall
have occurred: (i) the attainment of age 18, and (ii) the completion
of at least 1,000 Hours of Employment within a 12 month period
measured initially from the Employee's employment commencement date
and thereafter from the first day of a Plan Year, and provided the
individual remains an Employee on the last day of such 12 month
period or Plan Year. A Plan Participant may commence making Elective
Deferrals pursuant to Section 3.01 hereof on the Entry Date
following his satisfaction of the eligibility requirements stated
herein and upon receipt by the Committee of the Employee's Elective
Deferral Agreement and as provided in procedures established by the
Committee.
(b) If a former Participant is reemployed, he shall be eligible to
resume his participation as of the date of his reemployment. Such
Participant may elect to make deferrals to the Plan in accordance
with the provisions of Section 3.01 as soon as it is
administratively feasible after the date of his reemployment.
2.02 Change in Employment Status
---------------------------
(a) In the event a Participant ceases to be an Eligible Employee as the
result of becoming part of an excluded class, only Compensation up
to the date he ceased to be an Eligible Employee shall be considered
for purposes of contributions in accordance with Article 3. Such
Employee shall remain a Participant but shall not be permitted to
contribute in accordance with Article 3 or share in any Company
contributions allocated in accordance with Article 3 for the period
beyond the date he ceased to be an Eligible Employee.
In the event such Participant returns to an eligible class and again
becomes an Eligible Employee, he shall be permitted to share in
Company contributions allocated in accordance with Article 3 as of
the date he again became an Eligible Employee and may elect to make
deferrals to the Plan in accordance with the provisions of Section
3.01 as soon as is administratively feasible. Only Compensation from
the date he again became an Eligible Employee shall be considered
for purposes of such contributions.
(b) If a person otherwise satisfied the eligibility requirements of
Section 2.01 and subsequently becomes an Eligible Employee, he shall
become a Participant as of
12
the date he became an Eligible Employee and may elect to make
deferrals to the Plan in accordance with provisions of Section 3.01
as of such date or at any time thereafter.
(c) In the event a collective bargaining agreement is entered into
between the Company and a representative for any class of Employees
in the employ of the Company subsequent to the Supplemental
Effective Date, eligibility for participation in the Plan by such
Employees who are not Participants shall not be extended beyond the
effective date of the collective bargaining agreement unless the
agreement extends participation in the Plan to such Employees. The
provisions of Subsection (a) shall apply to those Employees who
currently are Participants.
(d) An Eligible Employee who has become a Participant shall not cease to
be a Participant as a result of a reduction in the number of Hours
of Employment.
2.03 Election Not to Defer; Cessation of Deferrals
---------------------------------------------
No Employee shall be required to make Elective Deferrals in the Plan and
any Participant may cease making Elective Deferrals at any time. An
Employee who does not want to make Elective Deferrals to the Plan, or a
Participant who desires to cease making such Elective Deferrals, shall
notify the Committee or its Administrative Delegate in accordance with
procedures established by the Committee. The election to cease making such
Elective Deferrals shall be effective commencing with the beginning of the
next payroll period following the Participant's notification of such
election to the Committee or its Administrative Delegate.
2.04 Suspension of Right to Make Elective Deferrals
----------------------------------------------
An Employee who receives a Hardship Withdrawal pursuant to Section 6.06(c)
of this Plan will have his right to make Elective Deferrals pursuant to
Section 3.1 of the Plan suspended for a period of six (6) months following
the month in which the hardship distribution is made.
ARTICLE 3
---------
13
CONTRIBUTIONS
-------------
3.01 Elective Deferral Contributions
-------------------------------
(a) A Participant, when first eligible or at any time thereafter, may
elect to save, through pay reduction each payroll period, no less
than 1% nor more than 50%, in whole percentages of that portion of
his Compensation attributable to such payroll period, subject to the
limitations of Subsection (c).
Such contributions shall take the form of before tax contributions
(hereinafter known as "Elective Deferral Contributions") and shall
be deemed to be Company contributions for purposes of section 414(h)
of the Code.
(i) An initial election must be made by an Eligible Employee and
submitted to the Committee (or its Administrative Delegate) by
any method approved by the Committee.
(ii) An election, once made shall remain in effect until
subsequently changed by the Eligible Employee in accordance
with the provisions of Section 3.05 or 3.06.
(b) In addition, a Participant may make an election in accordance with
the provisions of the Nokia Benefits By Choice Plan to contribute
his "excess Flex Dollars" from such plan to the Plan subject to the
limitations of subsection (c). Such contributions also shall take
the form of Elective Deferral Contributions and shall be deemed to
be Company contributions for purposes of section 414(h) of the Code.
(c) Contributions of "excess Flex Dollars" from the Nokia Benefits By
Choice Plan that a Participant elected, pursuant to such plan, to
make to the Plan, shall be not be subject to the percentage of
Compensation limitation contained in Section 3.01(a).
Notwithstanding the above, the total amount of Elective Deferral
Contributions, including "excess Flex Dollars", contributed by a
Participant shall be subject to the limitations on Elective Deferral
Contributions under Sections 4.01 and 4.02 and the limitations on
annual additions under Section 4.03.
(d) Notwithstanding anything herein to the contrary, an Employee who is
working outside the United States shall not be eligible to make
Elective Deferral Contributions to the Plan for any payroll period
for which he has elected to make After-Tax Contributions under
Section 3.04(b) or with respect to any Compensation paid by a
non-United States Employer to non-United States citizen.
(e) All Participants who are eligible to make Elective Deferral
Contributions under this Plan and who have attained age 50 before
the close of the Plan Year shall be eligible to make catch-up
contributions in accordance with, and subject to the limitations of,
section 414(v) of the Code. Such catch-up contributions shall not
14
be taken into account for purposes of the provisions of the Plan
implementing the required limitations of sections 402(g) and 415 of
the Code. The Plan shall not be treated as failing to satisfy the
provisions of the Plan implementing the requirements of section
401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416 of the Code, as
applicable, by reason of the making of such catch-up contributions.
Catch-up contributions under this Section 3.01(e) shall not be
eligible for matching contributions under Section 3.03.
3.02 Reduction of Excess Elective Deferral Contributions
---------------------------------------------------
(a) If Elective Deferral Contributions under Section 3.01 are projected
to exceed the limitations of Sections 4.01 or 4.02 at any time
during a Plan Year, the Committee, in a good faith effort to comply
with such limitations, retains the right to reduce the rate of
elective deferrals made by Highly Compensated Employees. Such
reduction shall be made in the sole discretion of the Committee and,
for the purposes of Section 4.02, shall be accomplished by
progressively reducing the dollar amounts of the Elective Deferral
Contributions of Highly Compensated Employees until the limitations
are met.
(b) If a Participant is prevented from making Elective Deferral
Contributions for a payroll period because of the limit in this
Section 3.02, any Elective Deferrals by the Participant in prior
payroll periods during the Plan Year which were in excess of 6% of
Compensation shall be treated as Elective Deferrals for the current
payroll period for purposes of calculating the Participant's
Matching Contribution under Section 3.03
3.03 Matching and Retirement Contributions
-------------------------------------
Subject to the limitations on annual additions under Section 4.03, the
Company shall contribute the following amounts:
(a) Matching Contributions- 100% of such portion of the Participant's
"Voluntary Contributions" (which shall be equal to the sum of the
Participant's Elective Deferral Contributions under Section 3.01 and
the Participant's Voluntary After-Tax Contributions under Section
3.04) each payroll period that does not exceed 6% of the
Participant's Compensation for such payroll period. Only Voluntary
Contributions which are not required to be restricted under Sections
3.02, 4.01 or 4.02 shall be matched. No Matching Contribution will
be provided in excess of the limitations under Subsections 4.02(b)
and (c).
Notwithstanding the foregoing provision, the amount of any "excess
Flex Dollars" that were contributed to the Plan from the Nokia
Benefits By Choice Plan as Elective Deferral Contributions are not
eligible for Matching Contributions.
(b) Additional Matching Contributions- For any Plan Year, the Company,
at its discretion, may contribute such additional amounts as it
shall determine. Such Additional Matching Contributions shall be
allocated to Participants in the
15
employ of the Company on the last business day of such Plan Year in
the same proportion that the Voluntary Contributions of each such
Participant for such Plan Year bears to the aggregate Voluntary
Contributions of all Participants for such Plan Year, taking into
consideration only that portion of each Participant's Voluntary
Contributions which does not exceed 6% of such Participant's
Compensation for each payroll period during such Plan Year.
(c) Qualified Matching Contributions- For any Plan Year, the Company, at
its discretion, may contribute such additional amounts as it shall
determine. Such Additional Matching Contributions shall be allocated
to Participants in the employ of the Company on the last business
day of such Plan Year in the same proportion that the Voluntary
Contributions of each such Participant for such Plan Year bears to
the aggregate Voluntary Contributions of all Participants for such
Plan Year, taking into consideration only that portion of each
Participant's Voluntary Contributions which does not exceed 6% of
such Participant's Compensation for each payroll period during such
Plan Year.
Such contributions shall be subject to Treasury Regulation
1.401(k)-1(g)(13).
Notwithstanding the foregoing provision,
(i) a Participant otherwise eligible shall share in such
Additional or Qualified Matching Contributions for the Plan
Year of (A) his Retirement, Disability or death, (B) the
commencement of a Leave of Absence authorized by the Company,
(C) his transfer to another business entity by the Company,
even if the Participant is not in the employ of the Company on
the last business day of such Plan Year.
(ii) the amount of any "excess Flex Dollars" that were contributed
to the Plan from the Nokia Benefits By Choice Plan as Elective
Deferral Contributions are not eligible for Additional
Qualified Matching Contributions.
(d) Retirement Contributions
(i) For each Plan Year, the Company shall contribute to the Plan
such amount as it shall determine, which amount shall be
credited as of the end of the Plan Year. The Company's
Retirement Contribution shall be allocated to all Participants
in the same proportion that each Participant's Compensation
bears to the Compensation of all Participants.
(ii)
(A) Except as provided in Sections 3.03(d)(ii)(B) and 14.12
of this Plan, no person shall share in any Employer
Contributions pursuant to Section 3.03 of this Plan for
any Plan Year in which he is credited with less than one
thousand (1,000) Hours of Service or is not employed on
the last day of the Plan Year.
16
(B) Notwithstanding the foregoing provision, a Participant
shall be entitled to a share of the Company's Retirement
Contributions for the Plan Year of (x) his Retirement,
Disability or death, (y) the commencement or end of a
Leave of Absence authorized by the Company (including
for reason of military service within the contemplation
of Section 14.12 hereof) or (z) his transfer by the
Company to another business entity in the United States,
even if the Participant is not in the employ of the
Company on the last business day of such Plan Year or
does not complete 1,000 Hours of Employment during such
Plan Year. A Participant shall not share in the
allocation of the Company's Retirement Contributions for
any Plan Year during which he terminated his employment
for reasons other than specified in (x), (y) or (z),
even if he had completed one thousand (1,000) Hours of
Employment with the Company during such Plan Year.
(C) In addition, alien Employees who have been seconded to
the United States from non-United States subsidiaries or
affiliates of Nokia Oyj who participate in a pension
plan or program in their home country and who receive
service credit for purposes of that plan or program
during their United States employment shall not be
permitted to share in the Retirement Contributions made
to the Plan, and their Compensation shall not be counted
or otherwise taken into account in determining the
amount of the Retirement Contribution for any Plan Year.
(D) Notwithstanding the above, in the event the Plan fails
to meet the requirements of sections 401(a)(26) or
410(b) of the Code, those Participants who are in the
employ of the Company as of the last business day of the
Plan Year but who did not complete one thousand (1,000)
Hours of Employment during such Plan Year shall share in
the allocation of the Company's Retirement Contribution
to the extent necessary by progressively including those
Participants with the greatest number of Hours of
Employment until such requirements are met. If, after
the inclusion of such Participants, the requirements
still are not met, those Participants who are not in the
employ of the Company on the last business day of the
Plan Year shall share in the allocation of the Company's
Retirement Contribution to the extent necessary by
progressively including those Participants with the
greatest number of Hours of Employment to a minimum of
five hundred one (501) such hours until such
requirements are met.
(e) Qualified Nonelective Contributions - such amount as the Company
shall determine for any Plan Year, which shall be allocated to those
Participants who are Nonhighly Compensated Employees in the same
proportion that his Compensation bears to the aggregate Compensation
of all such Participants for
17
such Plan Year, provided the Participant is in the employ of the
Company on the last business day of such Plan Year, which amount
shall be credited at the end of the Plan Year.
3.04 Voluntary After-Tax Contributions
---------------------------------
(a) Effective January 1, 1989, Voluntary After-Tax Contributions shall
be neither required nor permitted.
(b) Notwithstanding the above, effective January 1, 1997, Voluntary
After-Tax Contributions shall be permitted solely with respect to
those Participants who are working outside the United States on
temporary assignments ("Seconded Participants"), whether for a
participating Employer or a non-United States subsidiary or
affiliate of Nokia Oyj (collectively, "Nokia Abroad"), who have
determined that, because of international tax laws, Voluntary
After-Tax Contributions will provide a greater benefit to the
Participant than Elective Deferral Contributions. Each such Seconded
Participant may, when first eligible or at any time thereafter,
voluntarily elect to contribute, on an after-tax basis, through pay
reduction each payroll period, no less than 1% nor more than 50%, in
whole percentages of that portion of his Compensation attributable
to such payroll period, subject to the limitations of Subsection (c)
of Section 3.01. Such After-Tax Contributions shall be paid to the
Trustee as soon as practicable following the date on which such
amounts would otherwise have been paid to the Seconded Participant,
but in no event beyond the 15th business day of the month following
the month in which the Seconded Participant made his deferral.
Notwithstanding the foregoing, no Participant shall be permitted to
make a Voluntary After-Tax Contribution if such contribution would
exceed any limit under the Plan or the Code applicable to Elective
Deferral Contributions.
(c) A Participant may elect to withdraw his Voluntary After-Tax
Contributions from his Voluntary After-Tax Contribution Account and
the actual earnings thereon in a manner which is consistent with and
satisfies the provisions of this Plan, including, but not limited
to, all notice and consent requirements of sections 417 and
411(a)(11) of the Code and the Treasury Regulations promulgated
thereunder.
In the event such a withdrawal is made, or in the event a
Participant has received a hardship distribution from his Elective
Account pursuant to this Plan or pursuant to Treasury Regulation
1.401(k)-1(d)(2)(iv)(B) from any other Plan, if any, maintained by
the Employer, then such Participant shall be barred from making any
Voluntary After-Tax Contributions to the Trust for a period of six
(6) months after the receipt of the withdrawal or distribution.
(d) At Normal Retirement Date, or such other date when the Participant
or his Beneficiary shall be entitled to receive benefits, the fair
market value of the Voluntary After-Tax Contribution shall be used
to provide additional benefits to the Participant or his
Beneficiary.
18
(e) The Committee may direct that Voluntary After-Tax Contributions made
after a Valuation Date be segregated into a separate account for
each Participant in a federally insured savings account, certificate
of deposit in a bank or savings and loan association, money market
certificate, or other short term debt security acceptable to the
Trustee until such time as the allocations pursuant to this Plan
have been made, at which time they may remain segregated or be
invested as part of the general Trust Fund, to be determined by the
Administrator.
3.05 Contribution Changes
--------------------
A Participant may, subject to the minimum and maximum percentages as
specified in Section 3.01, increase or reduce the percentage rate of his
Elective Deferral Contributions on any business day, effective the first
payroll period that is administratively feasible, by any method approved
by the Committee.
3.06 Discontinuance of Contributions
-------------------------------
(a) A Participant may discontinue his Elective Deferral Contributions on
any business day, effective the first payroll that is
administratively feasible, by any method approved by the Committee
for such purpose.
(b) A Participant may resume his Elective Deferral Contributions as of
the first payroll following his election to do so, by any method
approved by the Committee for such purpose.
(c) The discontinuance of Elective Deferral Contributions will
automatically include a discontinuance of the Matching
Contributions.
3.07 Rollover Contributions from Other Qualified Plans.
-------------------------------------------------
(a) Any Eligible Employee may make a rollover contribution to the Trust
Fund of all or any portion of the entire amount (including money or
any other property acceptable to the Committee and Trustee) which is
an eligible rollover distribution, as defined in section 402(c)(4)
of the Code and temporary Treasury Regulation 1.402(C)-2T, Q&A 3 and
4, provided such rollover contribution is either (i) a direct
transfer from another qualified plan or (ii) received on or before
the 60th day immediately following the date the Employee received
such distribution from a qualified plan or conduit Individual
Retirement Account or Annuity. Effective July 1, 1997, rollover
contributions may only be made by Eligible Employees who otherwise
have satisfied the eligibility requirements of the Plan and who have
become Participants in the Plan eligible to make Elective Deferrals
and to receive Company Contributions.
A Participant wishing to make a rollover contribution to the Trust
Fund must complete and sign the Plan's rollover request form and
provide such evidence as is requested by the Committee, including
evidence supporting the satisfaction of the remaining provisions of
this Section.
19
(b) The distribution intended to be rolled over must be an eligible
rollover distribution from a
(i) qualified trust, as verified by written evidence from the
administrator of the distributing Plan:
(ii) conduit IRA, as verified in writing by the custodian or
insurance company that the original distribution from the
qualified trust was an eligible rollover distribution; or
(iii) qualified trust as a direct rollover as provided for in
section 402(c) of the Code.
(c) The Committee shall credit the fair market value of any rollover
contribution and investment earnings attributable thereto to the
Participant's Rollover Account. Such rollover contributions shall
not be considered annual additions for purposes of Section 4.03.
(d) An Eligible Employee who becomes a Participant prior to July 1,
1997, by virtue of the acceptance of such rollover contribution, but
who is not otherwise eligible for participation in accordance with
Section 2.01, shall not be entitled to make contributions or share
in any Company contribution allocated in accordance with this
Article 3 or Article 11.
(e) Effective January 1, 2002, the following rollover rules shall apply:
(i) Direct Rollovers: The plan will accept a direct rollover of an
eligible rollover distribution from: (a) a qualified plan
described in section 401(a) or 403(a) of the Code, excluding
after-tax employee contributions, (b) an annuity contract
described in section 403(b) of the Code, excluding after-tax
employee contributions, and (c) an eligible plan under section
457(b) of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a
state or political subdivision of a state.
(ii) Participant Rollover Contributions from Other Plans: The plan
will accept a participant contribution of an eligible rollover
distribution from: (a) a qualified plan described in section
401(a) or 403(a) of the Code, (b) an annuity contract
described in section 403(b) of the Code, and (c) an eligible
plan under section 457(b) of the Code which is maintained by a
state, political subdivision of a state, or any agency or
instrumentality of a state or political subdivision of a
state.
(iii) Participant Rollover Contributions from IRAs: The plan: will
accept a participant rollover contribution of the portion of a
distribution from an individual retirement account or annuity
described in section 408(a) or 408(b) of the Code that is
eligible to be rolled over and would otherwise be includible
in gross income.
20
3.08 Transfer of Assets from Other Qualified Plans.
---------------------------------------------
(a) The Committee may accept the direct transfer to the Trust Fund from
another qualified trust fund of those assets (including money or any
other property acceptable to the Committee and Trustee) attributable
to a Participant's participation in any qualified plan to which such
trust relates. Such transferred amounts shall not be considered
annual additions for purposes of Section 4.03. Prior to July 1,
1997, direct transfers may be accepted by the Committee on behalf of
any Eligible Employee upon commencement of employment.
(b) The amount transferred shall be credited to the Participant's
Accounts as determined by the Committee, taking into account the
applicable vesting schedules, amounts subject to special tax
treatment and withdrawal rules. Additional Transfer Accounts will be
established, if required, to accommodate these objectives.
(c) An Eligible Employee who becomes a Participant by virtue of a
transfer of assets, but who is not otherwise eligible for
participation in accordance with Section 2.01, shall not be entitled
to make contributions or share in any Company contribution allocated
in accordance with this Article 3 or Article 11.
(d) The Committee may promulgate specific rules and regulations
governing all aspects of this Section but until promulgated, all
other provisions of the Plan shall be applicable based on the
Account to which such assets were transferred.
3.09 Deposit of Contributions; Delay in Payments.
-------------------------------------------
(a) The Company shall deposit the Elective Deferral Contributions and
After Tax Contributions with the Trustee as soon as practicable
following the date on which such amounts would otherwise have been
paid to the Participant, but in no event beyond the fifteenth (15th)
business day of the month following the month in which the
Participant made his deferral.
(b) All other Company contributions to the Plan for each Plan Year shall
be made within the time required by law in order to obtain a
deduction of the amount of such payment for federal income tax
purposes for such Plan Year, as determined under applicable
provisions of the Code.
(c) In the event of any delay in payment or in determination of the
amount to be paid, the Employer shall nevertheless pay to the
Trustee the contribution as determined by the Employer as provided
above as soon as may be practicable and any such delay shall not be
considered as any modification of the Employer's obligation to
contribute the amount so determined.
ARTICLE 4
---------
21
CONTRIBUTION LIMITATIONS
------------------------
4.01 Limitation on Elective Deferral Contributions.
---------------------------------------------
Each Participant's Elective Deferral Contributions under Section 3.01,
when added to any additional elective deferrals, as defined in section
402(g) of the Code, under all other plans maintained by the Employer,
shall be limited to $15,000 during any calendar year, adjusted annually
for increases in the cost-of-living in accordance with section 415(d) of
the Code, or such other maximum permitted under section 402(g) of the
Code.
To the extent a Participant's Elective Deferral Contributions exceed the
above limitation, the Employer will notify the Plan of such excess and
such amount will be designated as an excess deferral. Such excess deferral
will be distributed to such Participant with investment experience no
later than April 15 following the close of the calendar year to which such
excess relates. Such excess may be distributed prior to the close of the
calendar year of reference provided the correcting distribution is made
after the date on which the Plan received the excess deferral and is
specifically designated as an excess deferral. Investment experience will
be determined in accordance with Section 4.04 below.
4.02 Limitation on Elective Deferral and Matching Contributions
----------------------------------------------------------
(a) The Actual Deferral Percentage of Highly Compensated Employees in
the Testing Group for any Plan Year shall be limited to the greater
of
(i) the Actual Deferral Percentage for the Nonhighly Compensated
Employees in the Testing Group multiplied by 1.25; or
(ii) the Actual Deferral Percentage for the Nonhighly Compensated
Employees in the Testing Group multiplied by 2.00, provided,
however, that the Actual Deferral Percentage for the Highly
Compensated Employees in the Testing Group may not exceed the
Actual Deferral Percentage for such Nonhighly Compensated
Employees by more than two (2) percentage points.
(b) The Actual Contribution Percentage of Highly Compensated Employees
in the Testing Group for any Plan Year shall be limited to the
greater of
(i) the Actual Contribution Percentage for Nonhighly Compensated
Employees in the Testing Group multiplied by 1.25; or
(ii) the Actual Contribution Percentage for Nonhighly Compensated
Employees in the Testing Group multiplied by 2.00, provided,
however, that the Actual Contribution Percentage for the
Highly Compensated Employees in the Testing Group may not
exceed the Actual Contribution
22
Percentage for such Nonhighly Compensated Employees by more
than two (2) Percentage points.
(c)
(i) To the extent the otherwise applicable Elective Deferral and
Matching Contributions for any Plan Year must be limited due
to the restrictions described in Subsections (a) and (b), such
limitations shall be applied to the Highly Compensated
Employees' Elective Deferral and/or Matching Contribution
percentages, whichever applicable beginning with the highest
of dollar amounts until the limitations are met.
(ii) Any excess Elective Deferral Contributions that result from
the above limitations shall be refunded to such Highly
Compensated Employees with investment experience, no later
than the last day of the Plan Year subsequent to the Plan Year
to which the excess relates. The limitation on Matching
Contributions is effected by limiting the otherwise applicable
Matching Contributions in accordance with Subsection 3.03(a).
(iii) Investment experience shall equal the sum of the allocable
gain or loss for the Plan Year, and effective January 1, 2006,
any allocable gain or loss for the period between the end of
the Plan Year and the date of the corrective distribution
(i.e., the "gap period"). Income for the Plan Year and any gap
period shall be calculated under any reasonable method as
determined by the Committee (or its Administrative Delegate),
provided that such method is used for allocating income to
Participant's Accounts and is used consistently for all
Participants and for all corrective distributions under the
Plan for the Plan Year.
(d) Definitions and Special Rules
(i) The Actual Deferral Percentage for the Highly Compensated
Employees and Nonhighly Compensated Employees for a Plan Year
shall be the average of the ratios (calculated separately for
each such Employee in the Testing Group) of
(A) the amount of contributions credited to the Elective
Deferral Contribution Account on behalf of each such
Employee in the Testing Group during such Plan Year, to
(B) the Compensation of each such Employee in the Testing
Group for such Plan Year.
For purposes of the above, Qualified Matching
Contributions and Qualified Nonelective Contributions
may be taken into account in determining the Actual
Deferral Percentage for each Employee in the Testing
Group for such Plan Year provided such amounts comply
with the provisions of Treasury Regulation
1.401(k)-1(b).
23
Qualified Matching Contributions, Qualified Nonelective
Contributions and Elective Deferral Contributions included in
the calculation of the Actual Contribution Percentages will
not be included in the calculation of Actual Deferral
Percentages.
(ii) The Actual Contribution Percentage for the Highly Compensated
and Nonhighly Compensated Employees in the Testing Group for a
Plan Year shall be the average of the ratios (calculated
separately for each such Employee in the Testing Group) of
(A) the amount of Matching Contributions credited on behalf
of each such Employee in the Testing Group during such
Plan Year, to
(B) the Compensation of each such Employee in the Testing
Group for such Plan Year.
For purposes of the above, Qualified Matching Contributions,
Qualified Nonelective Contributions and Elective Deferral
Contributions may be taken into account in determining the
Actual Contribution Percentage for each Employee in the
Testing Group for such Plan Year provided such amounts comply
with the provisions of Treasury Regulation 1.401(m)-1(b).
Qualified Matching Contributions, Qualified Nonelective
Contributions and Elective Deferral Contributions included in
the calculation of the Actual Deferral Percentages will not be
included in the calculation of Actual Contribution
Percentages.
(iii) Testing Group shall mean the group of all Eligible Employees
eligible for participation in accordance with Section 2.01.
(iv) All Eligible Employees in the Testing Group will be included
in determining the Actual Deferral Percentages and/or the
Actual Contribution Percentages, whichever is applicable. The
ratio averaged into the respective percentages will be zero
for any Eligible Employee in the Testing Group if the
otherwise applicable numerator is zero.
(v) All such ratios and the average of such ratios shall be
calculated to the nearest one-hundredth of one percent.
(vi) The deferral percentage and/or contribution percentage for a
Plan Year for any Highly Compensated Employee who is eligible
to participate under two (2) or more plans or arrangements
described in section 401(a) or 401(k) of the Code that are
maintained by the Employer shall be determined as if all
contributions were made under a single plan.
(vii) In the event that this Plan satisfies the requirements of
section 401(k), 401(a)(4) or 410(b) of the Code only if
aggregated with one or more other
24
plans, or if one or more other plans satisfy the requirements
of such sections of the Code only if aggregated with this
Plan, deferral and contribution percentages shall be
determined as if all such plans were a single plan. Any other
plan may be aggregated with this Plan at the discretion of the
Company. Plans may be aggregated in order to satisfy section
401(k) of the Code only if they have the same Plan Year.
(viii) The Actual Deferral Percentage Test and the Actual
Contribution Percentage Test under this Section 4.02 shall be
applied using the current year testing method.
(ix) For the purpose of this Section 4.2(d), if a Highly
Compensated Employee is a Participant under two or more cash
or deferred arrangements of the Employer, all such cash or
deferred arrangements shall be treated as one cash or deferred
arrangement for the purpose of determining the actual deferral
ratio with respect to such Highly Compensated Employee.
However, if the cash or deferred arrangements have different
Plan Years, this Section shall be applied by treating all cash
or deferred arrangements ending with or within the same
calendar year as a single arrangement.
4.03 Limitation on Allocations
-------------------------
(a) The "annual addition" for any Participant shall not exceed the
amount determined hereunder. Annual addition shall mean the sum of
Employer contributions, Employee contributions and forfeitures
allocated on behalf of a Participant for a Plan Year, which is
defined to be the limitation year.
Annual additions shall also include excess deferrals, excess
contributions and excess aggregate contributions, other than excess
deferrals distributed in accordance with Treasury Regulation
1.402(g)-1(e)(2) or (3).
The determination of the annual addition will be made as if all
defined contribution plans of the Employer were one plan and any
Participant contributions to defined benefit plans will be treated
as contributions to defined contribution plans. Annual additions
will be applied to the applicable Plan Year in accordance with
Treasury Regulation 1.415-6(b).
For purposes of Subsection (b)(i), annual addition shall also
include amounts allocated to an individual medical account, as
defined in section 415(1) of the Code which is part of a defined
benefit plan maintained by the Employer and amounts derived from
contributions which are attributable to post-retirement medical
benefits allocated to the separate account of a Key Employee (as
defined in Section 11.02) under a welfare benefit plan (as defined
in section 419A(d) of the Code) maintained by the Employer.
(b) The annual addition that may be contributed or allocated to a
participant's account under the Plan for any limitation year shall
not exceed the lesser of: (i) $40,000, as adjusted for increases in
the cost-of-living under section 415(d) of the Code, or
25
(ii) 100 percent of the participant's compensation, within the
meaning of section 415(c)(3) of the Code, for the limitation year.
(c) A Participant shall not be permitted to defer Compensation or
contribute amounts, nor shall he be entitled to an allocation of any
Employer contributions or forfeitures under any qualified defined
contribution plan which exceeds the limitations described herein.
(d) The limitations on allocations to a Participant's Account will be
applied by limiting otherwise allocable amounts starting with the
latest allocations during the limitation year. To the extent more
than one type of addition is allocated as of any date, the
limitation will be applied in the following order:
(i) forfeitures;
(ii) Employer contributions under profit-sharing plans other than
matching contributions;
(iii) Employer contributions under money purchase plans other than
matching contributions;
(iv) Employer matching contributions under money purchase plans.
(v) Employer matching contributions under profit-sharing plans;
(vi) Employee contributions; and
(vii) elective deferrals.
Amounts listed above which would have been added to a Participant's
Account based on an allocation method specified in a Plan will be
reallocated among the remaining Participants eligible to share under
the Plan.
Amounts listed above which would have been added to the
Participant's Account based on an individually defined entitlement
will reduce the Employer's contribution commitment.
Employee contributions and elective deferrals will be limited at the
time deposited and will not be permitted to the extent the limits of
this section would be violated.
In the event annual additions on behalf of a Participant
participating in more than one plan of the same type during a Plan
Year are required to be limited under this Section, the limitation
shall be ratably apportioned among all such plans.
(e) Notwithstanding the above, if an excess allocation occurs as a
result of
(i) an allocation of forfeitures;
26
(ii) a reasonable error in determining a Participant's
Compensation;
(iii) a reasonable error in determining the amount of elective
deferrals that may be made under this Section; or
(iv) any other reason acceptable to the Internal Revenue Service,
the resulting additions to the Participant's Account will be reduced
by first eliminating Employee contributions and elective deferrals
to the extent otherwise required to be refunded under sections
402(g), 401(k)(3) or 401(m)(2) of the Code. Any additional
reductions permitted under this Subsection will be applied in the
manner described in Subsection (e).
However, any amounts paid to the Trust for the limitation year which
are not allocated to other Participants will be held in a suspense
account, without investment earnings, and allocated and reallocated
in the following limitation year and, to the extent necessary, each
subsequent limitation year. Allocations from a suspense account in a
money purchase plan will be viewed as an allocation of accrual
requirement for the year in which the amount is ultimately
allocated.
In the event a plan is terminated, suspense accounts shall revert to
the Employer to the extent such accounts may not then be allocated
on behalf of any remaining eligible Participants.
4.04 Distribution of Excess Deferrals
--------------------------------
(a) Notwithstanding any other provision of the Plan, Excess Deferral
Amounts and income allocable thereto shall be distributed no later
than April 15 to Participants who claim such Allocable Excess
Deferral Amounts for the preceding Calendar Year.
(b) For purposes of this Section 4.04, "Excess Deferral Amount" shall
mean the amount of Elective Deferrals for a Calendar Year that the
Participant allocates to this Plan pursuant to the claim procedure
set forth below.
(c) The Participant's claim shall be in writing, shall be submitted to
the Committee (or its Administrative Delegate) no later than March
1, shall specify the Participant's Excess Deferral Amount for the
preceding Calendar Year, and shall be accompanied by the
Participant's written statement that if such amounts are not
distributed, such Excess Deferral Amount, when added to amounts
deferred under other plans or arrangements described in sections
401(k), 408(k) or 403(b) of the Code, exceeds the limit imposed on
the Participant by Section 402(g) of the Code for the year in which
the deferral occurred.
(d) The Excess Deferral Amount distributed with respect to any
Participant shall include the allocable gain or loss for the taxable
year of the Participant, and effective January 1, 2006, any
allocable gain or loss for the period between the end of such
taxable year to the date of distribution (the "gap period"). Income
27
allocable to the Excess Deferral Amount with respect to any
Participant during the taxable year and any gap period shall be
calculated under any reasonable method as determined by the
Committee (or its Administrative Delegate), provided that such
method is used by the Plan for allocating income to Participants'
Accounts, and is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year. If the
distribution of the Excess Deferral Amount occurs during the
Participant's taxable year in which the Participant made the excess
deferral, the income allocable to excess deferrals will be based on
the allocable gain or loss from the first day of the calendar year
to the date of the corrective distribution.
4.05 Distribution of Excess Contributions.
------------------------------------
(a) Notwithstanding any other provision of the Plan, Excess
Contributions and income allocable thereto shall be distributed no
later than the last day of each Plan Year to Participants on whose
behalf such Excess Contributions were made for the preceding Plan
Year. (For purposes of this Plan, "Excess Contribution" shall mean
the amount described in section 401(k)(8)(B) of the Code.)
(b) The income allocable to Excess Contributions shall be determined by
multiplying income allocable to the Participant's Elective Deferrals
and Qualified Employer Deferral Contributions for the Plan Year by a
fraction, the numerator of which is the Excess Contribution on
behalf of the Participant for the preceding Plan Year and the
denominator of which is the sum of the Participant's Account
balances attributable to Elective Deferrals and Qualified Employer
Deferral Contributions on the last day of the preceding Plan Year.
(c) The Excess Contributions which would otherwise be distributed to the
Participant shall be adjusted for income, shall be reduced, in
accordance with regulations, by the amount of Excess Deferrals
distributed to the Participant, and shall, if there is a loss
allocable to the Excess Contributions, in no event be less than the
lesser of the Participant's Account under the Plan or the
Participant's Elective Deferrals and Qualified Employer Deferral
Contributions for the Plan Year.
(d) The Excess Deferral Amount distributed with respect to any
Participant shall include the allocable gain or loss for the taxable
year of the Participant, and effective January 1, 2006, any
allocable gain or loss for the period between the end of such
taxable year to the date of distribution (the "gap period"). Income
allocable to the Excess Deferral Amount with respect to any
Participant during the taxable year and any gap period shall be
calculated under any reasonable method as determined by the
Committee (or its Administrative Delegate), provided that such
method is used by the Plan for allocating income to Participants'
Accounts, and is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year. If the
distribution of the Excess Deferral Amount occurs during the
Participant's taxable year in which the Participant made the excess
deferral, the income allocable to excess deferrals will be based on
the
28
allocable gain or loss from the first day of the calendar year to
the date of the corrective distribution.
(e) Amounts distributed under this Section 4.05 shall first be treated
as distributions from the Participant's Elective Deferral Account
and shall be treated as distributed from the Participant's Qualified
Employer Deferral Contribution Account only to the extent such
Excess Contributions exceed the balance in the Participant's
Elective Deferral Account.
4.06 Distribution of Excess Aggregate Contributions.
----------------------------------------------
(a) Excess Aggregate Contributions and income allocable thereto shall be
forfeited, if otherwise forfeitable under the terms of this Plan, or
if not forfeitable, distributed no later than the last day of each
Plan Year to Participants to whose Accounts Matching Contributions,
if applicable to the Employer's Plan, were allocated for the
preceding Plan Year. Instead, the rules under section 401(m) of the
Code may be satisfied by increasing Matching Contributions for the
benefit of Non-Highly Compensated Employees only.
(b) For purposes of this Plan, "Excess Aggregate Contributions" shall
mean the amount described in section 401(m)(6)(B) of the Code.
(c) The income allocable to Excess Aggregate Contributions with respect
to any Participant shall equal the sum of the allocable gain or loss
for the Plan Year, and effective January 1, 2006, any allocable gain
or loss for the period between the end of the Plan Year and the date
of the forfeiture or corrective distribution (the "gap period").
Income allocable to Excess Aggregate Contributions for the Plan Year
and any gap period shall be calculated under any reasonable method
as determined by the Committee (or its Administrative Delegate),
provided that such method is used consistently for all Participants
and for all corrective distributions under the Plan for the Plan
Year. Any Excess Aggregate Contributions made to the Plan shall be
taken into account as employer contributions to the extent required
in applicable IRS regulations.
(d) Amounts distributed under this Section 4.06 shall first be treated
as distributions from the Participant's Elective Deferral Account
and shall be treated as distributed from the Participant's Qualified
Employer Deferral Contribution Account only to the extent such
Excess Contributions exceed the balance in the Participant's
Elective Deferral Account.
4.07 Incorporation by Reference.
--------------------------
The limitations of Internal Revenue Code Sections 401(k), 401(m) and
414(v) are hereby incorporated by reference. Articles 5 of the Plan sets
forth the basic requirements of Code Sections 401(k) and (m) and Section
414(v). In the event of any conflict between the provisions of this
Article 5 and the Section 401(k), 401((m) and/or 414(v) requirements, the
provisions of Sections 401(k), 401(m) and 414(v) and regulations
29
thereunder shall govern. The Plan also incorporates by reference any
subsequent IRS guidance applicable under these Code provisions.
4.08 Allocation of Forfeitures.
-------------------------
Amounts forfeited by Highly Compensated Employees under Section 4.06 shall
be treated as Annual Additions under Section 4.03 of this Plan and applied
to increase the Account balances of other Participants. Notwithstanding
the foregoing, no forfeitures arising under Section 4.06 shall be
allocated to the Account of any Highly Compensated Employee.
30
ARTICLE 5
---------
MAINTENANCE OF ACCOUNTS, INVESTMENT FUNDS AND
---------------------------------------------
VALUATION OF THE TRUST FUND
---------------------------
5.01 Maintenance of Accounts.
-----------------------
The Committee shall establish and maintain a separate Account in the name
of each Participant to which it shall credit all amounts contributed in
accordance with Articles 3 and 11.
5.02 Investment Election.
-------------------
(a) Initial Election - Each Participant shall designate one or more of
the investment funds established in accordance with Section 5.03 for
the investment of his Account. The percentage elected for investment
in any one of the investment funds must be a multiple of one percent
(1%), and the same percentage shall be applied equally to each of
the Participant's Accounts.
(b) Subsequent Election - A Participant may, on any business day and by
any method approved by the Committee, change his investment fund
election with respect to subsequent contributions but, until
changed, an investment fund election, once made, shall remain in
effect for all subsequent Plan Years. Such change will become
effective the first payroll period as is administratively feasible
thereafter.
(c) Transfer Election - A Participant may, on any business day and by
any method approved by the Committee, elect a change in investment
funds applicable to his then existing Accounts, provided such change
(i) is effected in percentages, dollars or shares, (ii) is applied
to the ending balance determined as of the applicable Valuation Date
and (iii) is applicable equally to each of the Participant's
Accounts.
(d) Additional Rules and Regulations - The Committee may promulgate any
additional rules and regulations it deems necessary or appropriate
to govern all aspects of this Section.
5.03 Investment Funds
----------------
The Trust Fund shall be divided into such investment funds as designated
by the Committee and approved by the Trustee for the investment of all
Accounts, which shall be administered as a unit.
5.04 Valuation of Trust Fund
-----------------------
(a) The Trust Fund shall be valued by the Trustee as of each Valuation
Date on the basis of its fair market value.
31
(b) The Trust Fund may also be valued by the Trustee as of any other
date as the Committee may authorize for any reason the Committee
deems appropriate.
5.05 Allocation of Investment Earnings and Expenses
----------------------------------------------
Following each valuation of the Trust Fund, the Trustee shall allocate net
gains or losses, and process additions to and withdrawals from Participant
Account balances in the following manner:
(a) The Trustee shall first compute the fair market value of securities
and/or the other assets comprising each investment fund designated
by the Committee for direction of investment by the Participants of
this Plan. Each Account balance shall be adjusted each business day
by applying the closing market price of the investment fund on the
current business day to the share/unit balance of the investment
fund as of the close of business on the current business day.
(b) The Trustee then shall account for any requests for additions or
withdrawals made to or from a specific designated investment fund by
any participants, including allocations of contributions and
forfeitures. In completing the valuation procedure described above,
such adjustments in the amounts credited to such accounts shall be
made on the business day to which the investment activity relates.
Contributions received by the Trustee pursuant to this Plan shall
not be taken into account until the Valuation Date coincident with
or next following the date such Contribution was both actually paid
to the Trustee and allocated among the accounts of Participants.
(c) Notwithstanding Subsections (a) and (b) above, in the event a pooled
investment fund is created as a designated fund for Participant
investment election in this Plan, valuation of the pooled investment
fund and allocation of earnings of the pooled investment fund shall
be governed by the Administrative Services Agreement for such pooled
investment fund. The provisions of any such Administrative Services
Agreement shall be deemed a part of this Plan.
It is intended that this Section 5.05 operate to distribute among each
Participant Account in the Trust Fund, all income of the Trust Fund and
changes in the value of assets of the Trust Fund.
32
ARTICLE 6
---------
DISTRIBUTIONS FROM THE PLAN
---------------------------
6.01 Retirement Dates
----------------
(a) Normal Retirement Date. A Participant may retire from active service
with the Employer on his Normal Retirement Date. Upon reaching
Normal Retirement Date (age 65), a Participant shall be 100% vested
in the value of his Matching Contributions Account and his
Retirement Contributions Account.
(b) Early Retirement Date. A Participant may retire from active service
with the Employer on his Early Retirement Date, which shall be the
first day of any month coincident or next following attainment of
age fifty five (55) and completion of four (4) Years of Service, at
which time a Participant shall be 100% vested in the value of his
Matching Contributions Accounts and his Retirement Contributions
Account.
(c) Late Retirement Date. Any Participant who defers his retirement date
beyond his Normal Retirement Date in accordance with applicable law
shall continue to be a Participant for all purposes of the Plan,
provided that the interest of each Participant must be distributed
commencing no later than the April 1 following the Participant's
taxable year in which he attains the age of seventy and one half (70
1/2). Notwithstanding the above, a Participant who continues in
active service with the Employer beyond the date he attains age
seventy and one half (70 1/2) may elect to defer commencement of the
distribution of his Account until the first day of the month
following his termination of service.
6.02 Retirement Distributions.
------------------------
All Participants shall receive the value of their accounts in a lump sum
and no spousal consent shall be required for any distribution. A
Participant's account shall be valued for distribution purposes as of the
Valuation Date immediately preceding the date on which the Participant's
distribution commences.
6.03 Death Benefits
--------------
(a) A Participant shall be fully vested in his Matching Contribution
Account and Retirement Contribution Account upon his death prior to
his termination of employment.
(b) If the Participant dies after distribution of his interest has
commenced, the remaining portion of such interest will continue to
be distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death.
(c) If the Participant dies before distribution of his interest
commences, the Participant's entire interest will be distributed in
a lump sum no later than five (5)
33
years after the Participant's death except to the extent that an
election is made to receive distributions in accordance with (1) or
(2) below:
(i) for any distributions commencing prior to April 2, 2002,
distributions may be made in substantially equal installments
over the life or life expectancy of the designated Beneficiary
commencing no later than one (1) year after the Participant's
death; or
(ii) if the Beneficiary is the Participant's surviving spouse, the
date distributions are required to begin shall not be earlier
than the date on which the Participant would have attained age
seventy and one-half (70 1/2), and, if the spouse dies before
payments begin, subsequent distributions shall be made as if
the spouse had been the Participant.
(d) For purpose of Section 6.03(c)(i) of the Plan, payments will be
calculated by use of the return multiples specified in Section
1.72-9 of the Treasury Regulations promulgated under the Code. Life
expectancy of a surviving spouse may be recalculated annually;
however, in the case of any other designated Beneficiary, such life
expectancy will be calculated at the time payment first commences
without further recalculation.
(e) For purposes of this Section 6.03, any amount paid to a minor 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.
6.04 Beneficiary Designation
-----------------------
(a) Each Participant may designate one or more Beneficiaries, including
contingent Beneficiaries, who shall receive the amount payable on
behalf of such Participant under provisions of this Plan upon the
Participant's death; provided, however, that in the case of a
married Participant, the Participant's Protected Spouse must be
designated as the Beneficiary, unless the Protected Spouse provides
written, notarized consent to the designation of another Beneficiary
on a form provided by the Committee. Such designation shall be made
in writing, notarized, and in such manner as the Committee shall
determine. A Participant may change such designation at any time and
may revoke such designation, subject in either case to the
requirement of spousal consent in the case of a married Participant.
(b) If a Participant dies without having designated a Beneficiary, or if
none of the designated Beneficiaries survives the Participant, or if
the Committee is in doubt as to the effective status of a
Beneficiary designation following reasonable inquiry, then, except
as may be required by Section 6.02(b), the Committee shall direct
the Trustee to make payment of all amounts payable with respect to
such Participant in one lump sum payment, in cash, as follows:
(i) to the Participant's surviving Protected Spouse, or, if none,
34
(ii) in equal shares to the Participant's children, the issue of
any deceased children to take by right of representation the
share to which such child would have been entitled if
surviving, or, if no such children or issue,
(iii) to the duly appointed executor or administrator of the
Participant's estate.
6.05 Disability Retirement
---------------------
(a) If the Committee shall determine that a Participant is unable to
continue in the employ of the Employer by reason of the Disability
of such Participant, the Employer may, at the request of the
Participant or his authorized representative, direct the Trustee to
apply the amount standing to the credit of such Employee's Accounts
to payment pursuant to the provisions of Section 6.02.
(b) A Participant shall be fully vested in his Matching Contribution
Account and his Retirement Contribution Account upon satisfying the
requirements for Disability Retirement.
(c) If any Disabled Participant returns to the employ of the Employer,
he shall become an active Participant upon completion of an Hour of
Service, and such Participant's Service before and after his
Disability shall be aggregated for purposes of Sections 3.2 and
3.3(b) of this Plan.
6.06 In-Service Distributions
------------------------
(a) In-Service Withdrawal Rules. In-Service Withdrawals shall be subject
to the following requirements:
(i) In-Service Distributions are only available from the Accounts
specified in this Section 6.06 for such In-Service
Distributions, and will be made in accordance with rules
established by the Company.
(ii) A Participant is not limited in the number of
In-Service-Distributions he may take per year. However, the
minimum withdrawal amount available is $1,000, or the total
value of the portions if less than $1,000.
(iii) If a loan is outstanding at the time a withdrawal is
requested, such withdrawal shall be permitted only to the
extent that the remaining vested balances in the Participant's
Accounts are not security for an outstanding loan made
pursuant to Section 13.
(iv) An In-Service Distribution will be made as soon as practicable
following a request for such a distribution, based on the
value of the Participant's Accounts as of the Valuation Date
immediately preceding such distribution. Except for
distribution on account of Financial Hardship, such a
distribution will not limit the ability of the Participant to
continue making contributions pursuant to the deferral
election form on file with the Committee or limit the ability
of the Participant to enter into new
35
deferral election form for so long as the Participant shall
remain in the employ of the Employer.
(b) Age 59 1/2 In-Service Distributions
(i) A Participant who has attained age 59 1/2 may, while remaining
in the active employ of the Employer and in accordance with
procedures established by the Committee, apply at any time
thereafter prior to Retirement (as defined in Section 6.01)
for a distribution from his Accounts, to the extent such
Accounts are not security for an outstanding loan made
pursuant to Section 13, and to the extent such Accounts are
available for such Age 59 1/2 In-Service Distribution.
(ii) The following Accounts are available for Age 59 1/2 In-Service
Distributions, and funds will be withdrawn pro-rata from such
Accounts in the following hierarchy:
(A) Voluntary After-Tax Contribution Account (using the
withdrawal method);
(B) Rollover Account;
(C) Elective Deferral Account;
(D) Technophone Matching Contribution Account; and
(E) Matching Contribution Account, to the extent 100%
vested.
(c) Financial Hardship Withdrawals
(i) The Committee may, at such time and pursuant to such terms and
conditions as the Committee may establish, permit Financial
Hardship Withdrawals to be made under the Plan from an
Employee's Elective Deferral Account (exclusive of earnings),
in the event of demonstrated hardship, which shall be limited
to:
(A) emergency medical expenses for a Participant, spouse or
dependents which are not otherwise reimbursable or
covered by medical or other insurance;
(B) purchase of a Participant's principal residence (but not
regular mortgage payments);
(C) tuition for the next semester or quarter of
post-secondary education for a Participant, spouse or
dependents; and
(D) preventing foreclosure on or eviction from a
Participant's principal residence.
36
(ii) A Financial Hardship Withdrawal must be made on account of an
immediate and heavy financial need of a Participant and the
distribution must be necessary to satisfy such financial need.
Such hardship distribution cannot be in excess of the amount
required to relieve such financial need and cannot be
reasonably available from other resources of the Participant.
(A) In determining whether other resources of a Participant
have first been exhausted, the Committee may process
such a withdrawal request without any additional
documentation from the Participant if the following
conditions are satisfied:
(I) The distribution is not in excess of the amount of
the immediate and heavy financial need of the
Participant;
(II) The Participant has already taken all other
distributions and nontaxable loans available from
all plans sponsored by the Company; and
(III) All plans of the Company require a suspension
period of at least 6 months after the Financial
Hardship Withdrawal, during which the Participant
cannot make Elective Deferrals.
(B) In making such a determination, absent evidence to the
contrary, the Committee may reasonably rely on a
Participant's representation that the financial need
cannot be satisfied by any of the above methods.
(iii) The minimum Financial Hardship Withdrawal shall be at least
$1,000. Such withdrawal may be based on the value of the
Participant's Elective Deferral Account as of the Valuation
Date prior to the Financial Hardship Withdrawal distribution.
(iv) The rules and regulations that the Committee shall adopt with
respect to Financial Hardship Withdrawals under this Section
6.06 shall be applied in a uniform and nondiscriminatory
manner.
(d) General In-Service Withdrawals
A Participant may, while remaining in the active employ of the
Employer and in accordance with procedures rules set forth above and
as established by the Committee, apply at any time prior to
Retirement (as defined in Section 6.01) for a distribution from the
following Accounts, to the extent such Accounts are not security for
an outstanding loan made pursuant to Section 13. Funds will be
withdrawn pro-rata from such Accounts in accordance with the
following hierarchy:
37
(A) Voluntary After-Tax Contribution Account (using the withdrawal
method);
(B) Rollover Account;
(C) Technophone Matching Contribution Account; and
(D) Matching Contribution Account, to the extent 100% vested, and
to the extent that the Participant shall also have completed
at least five (5) years of participation in the Plan.
6.07 Distribution Upon Termination of Employment
-------------------------------------------
(a) Upon the termination of a Participant's Employment with the Employer
(other than by indefinite layoff or military service subject to
section 414(u) of the Code and other than as provided in Sections
6.1, 6.3, or 6.5), the Participant shall become a Former Participant
entitled to distribution of his Accounts as set forth in this
Section.
(i) Such Participant shall have a 100% vested interest in his
Elective Deferral Contribution, Voluntary and Additional
Voluntary After-Tax Contribution, Rollover, Transfer,
Qualified Matching Contribution and Qualified Nonelective
Contribution Accounts.
(ii) Such Participant's vested interest in his Matching
Contribution and Retirement Contribution Accounts shall be
determined in accordance with the following schedules on the
basis of such Participant's full Years of Service.
Number of Years Percentage of Account
--------------- ----------------------
Less than 1 full year 0%
1 full year 25%
2 full years 50%
3 full years 75%
4 or more full years 100%
For Participants who were participants in a retirement plan
merged into this Plan, the vested interest of the Accounts of
all such Participants with three or more Years of Service as
of the date of plan merger shall be determined in accordance
with the vesting schedule and definition of year of service
under the predecessor plan to the extent that such schedule
provides a greater vested percentage. All other Participants
shall be entitled to the vested percentage determined under
the schedule in Subsection (a) above, provided that such
vested percentage shall not be less than the vested percentage
as determined under any predecessor plan.
38
(iii) The portion of a Participant's Account which is not vested
shall be forfeited on the earlier of the first business day
immediately following the date on which distribution of a
Participant's vested benefits is made or the last day of the
Plan Year in which such Participant incurs his fifth (5th)
consecutive one (1) year Break-in-Service. If a Participant
does not have a vested interest in his Account, he shall be
deemed to have received an immediate distribution as of the
date on which such Participant terminated employment.
That portion of the Participant's Account which is forfeited
shall be used to reduce the Employer's contributions in
accordance with Section 3.03 or to pay Plan expenses. Pending
their use, forfeitures will be invested as the Committee
directs.
(iv) The Committee shall direct the Trustee to make distribution to
a terminated Participant of the entire benefit to which such
terminated Participant is entitled in accordance with one of
the methods described in Section 6.02. Distribution of the
funds due to a Former Participant shall be made as soon as
practicable following his termination of employment, but no
later than the period described in Section 6.09 hereof.
However, a Former Participant's benefits may not be paid
without his written consent if the total value exceeds (or has
ever exceeded) $1,000.
(v) The Committee shall notify the Trustee of the date on which a
Participant shall have become a Former Participant and of the
amounts, if any, payable to him under this Section 6, and
shall direct the Trustee regarding the time and manner of
payment.
(vi) Whenever any distribution shall be made to or in behalf of a
Participant in accordance with the provisions of Section 6,
his Account shall be charged with the amount of such
distribution. Whenever part or all of the amount standing to
the credit of a Participant's Account is to be segregated into
a separate Account for a terminated Participant in accordance
with Section 6.8 of this Plan, the Account shall be charged
with the amount so applied or segregated. Effective July 1,
1997, separated segregated Accounts will not be set up for
terminated Participants.
(b) A Former Participant with deferred Accounts shall be advised at
least annually of the value of his Account balance which has been so
set aside.
(c) If any Former Participant shall be reemployed by the Employer before
five (5) consecutive 1-Year Breaks in Service have elapsed, and such
Former Participant had received a distribution of his entire vested
Employer Matching and Discretionary Contributions Account prior to
his reemployment, the forfeited portions of such Account shall be
reinstated only if he repays the full amount distributed to him
before the earlier of five (5) years after the first date on which
the Participant is subsequently reemployed by the Employer or the
close of the
39
first period of five (5) consecutive 1-Year Breaks in Service
commencing after the distribution. In the event the Former
Participant does repay the full amount distributed to him, the
undistributed portion of the Participant's Account shall be restored
in full, unadjusted by any gains or losses occurring subsequent to
the Valuation Date preceding his distribution.
(d) The determination of the amount to which a Participant whose
employment is terminated is entitled to shall be made by the
Committee, and the Committee's determination shall be conclusive and
binding upon all persons. If a distribution is made at a time when a
Participant has a nonforfeitable right to less than one hundred
percent (100%) of the Account balances derived from Employer
Matching and/or Discretionary Contributions:
(i) Such Participant's Account will continue to hold the
Participant's interest in the Plan as of the time of the
distribution, and
(ii) At any relevant time the Participant's nonforfeitable portion
of such Account will be equal to an amount ("X") determined by
the following formula:
X = P(AB + (RxD)) - (R x D)
For purposes of applying the formula: P is the nonforfeitable
percentage at the relevant time, AB is the Account balance 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.
6.08 Segregated Accounts
-------------------
(a) Upon receipt of notification from the Committee that distribution of
the Accounts of a Former Participant will be deferred, the Trustee
shall segregate the Former Participant's Account balance, or so much
thereof as he is entitled to receive, from the Accounts of other
Participants, and the Trustee may keep the unpaid balance of such
Account invested for the benefit of the Former Participant in the
Trust Fund, but without sharing in subsequent Company Contributions
or forfeitures. Prior to July 1, 1997, the Committee also may direct
the Trustee to invest such segregated accounts in interest drawing
accounts in a federal or state chartered bank or savings
institution, in obligations of the United States Government, in the
units of common or pooled or group investment funds or similar funds
managed by a bank and permitted under existing or future rulings of
the United States Treasury Department, or in shares of mutual funds
under dividend reinvestment accounts or otherwise.
(b) Effective July 1, 1997, separate segregated Accounts will not be
established for Former Participants; their Participant Accounts in
the Trust Fund will continue to be invested in accordance with their
directions in the funds selected for such purpose by the Company (or
in default of such directions, in such fund(s) as the
40
Committee shall direct), but shall not be entitled to share in
subsequent Company contributions or forfeitures.
6.09 Payment of Benefits; Timing
---------------------------
(a) Payment of benefits attributable to Employee Deferrals either to
Participants who have terminated employment, retired or become
disabled, or to Beneficiaries of deceased Participants shall be made
as soon as possible following the Termination, Retirement,
Disability or death of a Participant, but, except as provided in
Section 9.10(b), below, not later than sixty (60) days following the
close of the Plan Year in which such Termination, Retirement,
Disability or death occurred. A Participant shall not be deemed to
have terminated employment so long as the Participant is employed by
any business entity that is in a Controlled or Affiliated Service
Group with Nokia Inc., even if the Participant ceases to be an
Eligible Employee.
(b) If the amount of benefit required to commence on the commencement
dates specified in Section 6.09(a) above cannot be ascertained by
any such date, payment shall be made not later than sixty (60) days
after the earliest date on which the amount of benefit can be
ascertained under the Plan and related Trust.
(c) Notwithstanding the above, the Account balance of an Participant or
Former Participant must be distributed or commence to be distributed
in accordance with the minimum distribution requirements contained
in Article 15 of the Plan.
6.10 Direct Rollovers
----------------
(a) Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Section, a
distributee may elect, at the time and in the manner prescribed by
the Committee, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified
by the distributee in a direct rollover.
(b) Definitions.
(i) 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 (A) 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 (10) years or more; (B) any distribution to the
extent such distribution is required under section 401(a)(9)
of the Code; and (C) the portion of any distribution that is
not includible in gross income (determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities). Effective for calendar years beginning
on and after January 1, 1999, hardship distributions as
41
described in Code Section 401(k)(2)(B)(i)(IV), which are
attributable to the Participant's elective contributions under
Treasury Regulation 1.401(k)-1(d)(2)(ii), shall not be
considered an eligible rollover distribution. Effective for
distributions made after December 31, 2001, the definition of
eligible rollover distribution shall include after-tax
employee contributions. For purposes of the direct rollover
provisions in the plan, a portion of a distribution shall not
fail to be an eligible rollover distribution merely because
the portion consists of after-tax employee contributions which
are not includible in gross income. However, such portion may
be transferred only to an individual retirement account or
annuity described in section 408(a) or (b) of the Code, or to
a qualified defined contribution plan described in section
401(a) or 403(a) of the Code that agrees to separately account
for amounts so transferred, including separately accounting
for the portion of such distribution which is includible in
gross income and the portion of such distribution which is not
so includible.
(ii) Eligible Retirement Plan: An eligible retirement plan is an
individual retirement account described in section 408(a) of
the Code, an individual retirement annuity described in
section 408(b) of the Code, an annuity plan described in
section 403(a) of the Code, or a qualified trust described in
section 401(a) of the Code, that accepts the distributee's
eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account
or individual retirement annuity. Effective for distributions
made after December 31, 2001, an eligible retirement plan
shall also mean an annuity contract described in section
403(b) of the Code and an eligible plan under section 457(b)
of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a
state or political subdivision of a state and which agrees to
separately account for amounts transferred into such plan from
this plan. The definition of eligible retirement plan shall
also apply in the case of a distribution to a surviving
spouse, or to a spouse or former spouse who is the alternate
payee under a qualified domestic relation order, as defined in
section 414(p) of the Code.
(iii) 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
Protected 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.
(iv) Direct Rollover: A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
42
ARTICLE 7
---------
CLAIM PROCEDURES
----------------
7.01 Claim Procedures
----------------
(a) Any request for specific information with respect to benefits under
the Plan must be made to the Committee in writing by a Participant
or his Beneficiary. Oral communications will not be recognized as a
formal request or claim for benefits.
(b) The Committee shall provide adequate notice in writing to any
Participant or Beneficiary whose claim for benefits under the Plan
has been denied, (i) setting forth the specific reasons for such
denial; specific references to pertinent plan provisions; a
description of any material and information which had been requested
but not received by the Committee; and, (ii) advising such
Participant or beneficiary that any appeal of such adverse
determination must be in writing to the Committee, within such
period of time designated by the Committee but, until changed, not
more than sixty (60) days after receipt of such notification, and
must include a full description of the pertinent issues and basis of
claim.
(c) If the Participant or Beneficiary fails to appeal such action to the
Committee in writing within the prescribed period of time, the
Committee's adverse determination shall be final.
(d) If an appeal is filed with the Committee, the Participant or
Beneficiary shall submit such issues he feels are pertinent and the
Committee shall re-examine all facts, make a final determination as
to whether the denial of benefits is justified under the
circumstances, and advise the Participant or Beneficiary in writing
of its decision and the specific reasons on which such decision was
based, within sixty (60) days of receipt of such written request,
unless special circumstances require a reasonable extension of such
sixty (60) day period. Any final determination by the Committee
shall be binding on all parties. If challenged in court, such
determination shall not be subject to de novo review and shall not
be overturned unless proven to be arbitrary and capricious upon the
evidence considered by the Committee at the time of such
determination.
7.02 Proof of Claim
--------------
The Committee may require such proof of death and such evidence of the
right of any person to receive payment of the value of the interest in the
Trust Fund of a deceased Participant or a Former Participant as the
Committee may deem desirable.
43
ARTICLE 8
---------
ADMINISTRATION OF THE PLAN
--------------------------
8.01 Assignment of Administrative Authority
--------------------------------------
The Plan shall be administered by a Committee consisting of directors,
officers, Employees, or any other individuals appointed by, and who shall
serve at the pleasure of, the Board of Directors or any officer of the
Company. Any Committee member may resign by delivering his written
resignation to the Board of Directors or any officer of the Company and to
the Committee. Vacancies in the Committee arising from resignation, death
or removal shall be filled by the Board of Directors or any officer of the
Company. The Board of Directors shall appoint the Trustee and may appoint
an investment manager.
8.02 Organization and Operation of the Committee
-------------------------------------------
(a) The Committee shall act, in carrying out its duties and
responsibilities, in the interest of the Participants and
Beneficiaries with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man, acting in a like
capacity and familiar with such matters, would use in the conduct of
an enterprise of like character and aims.
(b) The Committee shall act by a majority of its members unless
unanimous consent is required by the Plan or by unanimous approval
of its members if there are two or fewer members in office at the
time. In the event of a Committee deadlock, the Committee shall
determine the method for resolving such deadlock. If there are two
or more Committee members, no member shall act upon any question
pertaining solely to himself, and the other member or members shall
make any determination required by the Plan in respect thereof.
(c) The Committee may authorize any one or more of its members to
execute documents on behalf of the Committee and shall notify the
Trustee in writing of such action and the name or names of the
member or members so designated.
(d) The Committee, may, by unanimous consent, delegate specific
authority and responsibilities to one or more of its members. The
member or members so designated shall be solely liable, jointly and
severally, for their acts or omissions with respect to such
delegated authority and responsibilities. Except as provided under
Subsection 8.06(b), members not so designated shall be relieved from
liability for any act or omission resulting from such delegation.
(e) The Committee shall endeavor not to engage in any prohibited
transactions, as specified in the Employee Retirement Income
Security Act of 1974, or any successor act. However, any member of
the Committee who is a Participant or Beneficiary shall not be
precluded from receiving benefits payable under the Plan.
44
(f) The Committee also shall have the authority and discretion to engage
an Administrative Delegate who shall perform, without discretionary
authority or control, administrative functions within the framework
or policies, interpretations, rules, practices, and procedures made
by the Committee or other Plan Fiduciary. Any action made or taken
by the Administrative Delegate may be appealed by an affected
Participant to the Committee in accordance with the claims review
procedures provided in Section 7. Any decisions which call for
interpretations of Plan provisions not previously made by the
Committee shall be made only by the Committee. The Administrative
Delegate shall not be considered a fiduciary with respect to the
services it provides.
8.03 Authority and Responsibility
----------------------------
The Committee and its delegates shall have full discretionary authority
and responsibility for administration of the Plan. Such authority and
responsibility shall include, but shall not be limited to, the following
areas.
(a) Appointment of qualified accountants, consultants, administrators,
counsel or other persons it deems necessary or advisable, who shall
serve the Committee as advisors only and shall not exercise any
discretionary authority, responsibility or control with respect to
the management or administration of the Plan.
Any action of the Committee on the basis of advice, opinion,
reports, etc., furnished by such qualified accountants, consultants,
administrators and counsel shall be the sole responsibility of the
Committee.
Members of the Committee shall not be precluded from serving the
Committee in any other capacity, provided any compensation paid for
such services is reasonable.
(b) Determination of eligibility to participate and all benefits, and
resolution of all questions arising from the administration,
interpretation and application of the Plan, including the
determination of the validity of any Qualified Domestic Relations
Order in accordance with Section 12.
(c) Notification to the Trustee of all benefits payable under the Plan
and the manner in which such benefits are to be paid.
(d) Adoption of forms and regulations for the administration of the
Plan.
(e) Remedy of any inequity resulting from incorrect information received
or communicated, or of administrative error.
(f) Assurance that its members, the Trustee and other persons who handle
funds or other property of the Trust Fund are bonded as required by
law.
(g) Settlement or compromise of any claims or debts arising from the
operation of the Plan and the commencement of any legal actions or
administrative proceeding.
45
(h) Direction to the Trustee as to specific investments which, under the
terms of the Trust Agreement, may be made only upon written
direction of the Committee or which are made in accordance with
specific provisions of the Plan, such as annuity or group investment
contracts, loans to Participants, or earmarked investments selected
by Participants.
(i) Action as agent for the service of legal process.
(j) Communication regarding the liquidity needs of the Plan so that
investment discretion can be exercised to effect specific
objectives.
8.04 Records and Reports
-------------------
(a) The Committee shall keep a record of its proceedings and acts and
shall keep books of account, records and other data necessary for
the proper administration of the Plan.
(b) The Committee shall make its records available for examination by
the Employer, or any Participant or Beneficiary during business
hours at the principal place of business of the Company. However, a
Participant or Beneficiary may examine only records pertaining
exclusively to himself and such other records specified by law.
(c) The Committee shall make available to any Participant or Beneficiary
any material required by law without cost. The Committee may, upon
written request by any Participant or Beneficiary, provide copies of
such material as it deems appropriate and shall furnish copies of
such material required by law. The Participant or Beneficiary may be
required to pay the reasonable cost as determined by the Committee
of preparing and furnishing such material or the cost as prescribed
by law.
8.05 Required Information.
--------------------
The Company and Participants or Beneficiaries entitled to benefits shall
furnish forms, including but not limited to annuity applications, and any
information or evidence, as requested by the Committee for the proper
administration of the Plan. Failure on the part of any Participant or
Beneficiary to comply with such request within a reasonable period of time
shall be sufficient grounds for delay in the payment of benefits until the
information or evidence requested is received.
8.06 Fiduciary Liability
-------------------
(a) A member of the Committee who breaches the responsibilities,
obligations, or duties imposed by law shall be liable to the Plan
for any losses resulting from such breach.
(b) A member of the Committee shall be liable for a breach of fiduciary
responsibility by another Committee member or Trustee, with respect
to the Plan or Trust Fund, under the following circumstances.
46
(i) The member knowingly participates in or undertakes to conceal
an act or omission of another member of the Committee or
Trustee, with knowledge that the act or omission is such a
breach.
(ii) The member's failure to comply with Subsection 8.02(a) has
enabled another member or Trustee to commit such a breach.
(iii) The member has knowledge of such a breach by another member or
Trustee and does not make reasonable efforts under the
circumstances to remedy the breach.
8.07 Payment of Expenses
-------------------
Those members of the Committee who are full-time paid employees of the
Company shall serve without compensation. The expenses of the Committee,
including reasonable compensation as may be agreed upon in writing between
the Company and the Committee for members of the Committee who are not
full-time employees of the Company, shall be deemed administrative
expenses payable in accordance with Article 3.
8.08 Indemnification.
---------------
The Company shall indemnify members of the Committee against personal
financial loss resulting from liability incurred in the administration of
the Plan, unless such liability and loss were caused by such individual's
gross negligence or willful misconduct.
8.09 Payment of Expenses
-------------------
All fees and expenses incurred by the Plan for its ordinary and necessary
administration and operation, including taxes, brokerage commissions and
registration charges, shall be paid from the Trust Fund with each
Participant bearing his or her allocable portion of such fees and expenses
(as determined by the Company); provided, however, that the Company may
elect to pay the allocable portion of such fees and expenses for any
Participant who is not an Inactive Participant. Any fee or expense paid,
directly or indirectly, by the Company shall not be treated as a Company
contribution to the Plan, provided the fee or the expense relates to the
ordinary and necessary administration of the Plan.
8.10 Plan Correction
---------------
The Committee, in conjunction with the Company, may undertake such
correction of Plan errors as the Committee deems reasonable and
appropriate, including a lump sum principal payment to the Plan. Without
limiting the Committee's authority under the prior sentence, the Committee
may undertake correction of Plan document, operational, demographic and
eligibility failures under a method described in the Plan or under the
Employee Plans Compliance Resolution System or any successor program.
47
ARTICLE 9
---------
AMENDMENT AND TERMINATION
-------------------------
9.01 Amendment
---------
(a) The Plan may be amended or otherwise modified by the Board of
Directors, or the Committee to the extent authorized in accordance
with Subsection (c). Copies of any such amendment or modification
shall be sent to the governing body of each Company for adoption.
(b) No amendment or modification shall
(i) permit any part of the Trust Fund, other than such part as is
required to pay taxes, administrative expenses and expenses
incurred in effectuating such changes, to be used for or
diverted to purposes other than the exclusive benefit of the
Participants or Beneficiaries and/or persons entitled to
benefits under the Plan or permit any portion of the Trust
Fund to revert to or become the property of the Company;
(ii) have the effect of reducing the Account of any Participant as
of the date of such amendment or deprive any Participant or
Beneficiary of a benefit accrued and payable; or
(iii) eliminate any option which constitutes a valuable right
available to a Participant with respect to benefits previously
accrued to the extent the Participant satisfied, either before
or after the amendment, the conditions for the form of payment
except as otherwise permitted by applicable law and
regulations.
(c) The Committee may amend or modify the Plan at any time and for any
reason, provided said amendment or modification does not have a
material effect on the estimated cost of maintaining the Plan and
does not create a new class of benefits or entitlements. The
Committee may amend or modify the Plan at any time to bring the Plan
into compliance with applicable law or regulations.
9.02 Termination
-----------
While the Plan and Trust Fund are intended to be permanent, they may be
terminated at the discretion of the Board of Directors. Written
notification of such action shall be given to each Company, the Trustee
and the Committee. Thereafter, no further contributions shall be made to
the Trust Fund.
48
9.03 Vesting Upon Termination
------------------------
Upon the complete discontinuance of Company contributions or the
termination or partial termination of the Plan and Trust Fund, the Account
of each affected Participant shall become fully vested and shall not be
reduced except
(a) for adjustments resulting from a valuation in accordance with
Article 5, which valuation shall also reflect the expenses incurred
for administration of the Plan and/or Trust Fund after such
discontinuance or termination date, and all expenses incurred in
effectuating the complete discontinuance of Company contributions or
termination or partial termination of the Plan and Trust Fund, such
as the fees and retainers of the Plan's Trustee, accountant,
custodian, administrator, consultant, counsel and other specialists
if such expenses are not paid by the Company;
(b) for distributions of benefits by the Trustee to the Participant in
accordance with the Plan and at the written direction of the
Committee; and
(c) as provided in Section 14.01.
9.04 Distribution of Benefits After Termination
------------------------------------------
As soon as administratively feasible following receipt of a favorable
letter of determination from the Internal Revenue Service with regard to
the termination of the Plan and Trust Fund, the Trustee, as authorized and
directed by the Committee, shall, distribute each Account, after
adjustment in accordance with Subsection 9.03(a), in a manner consistent
with the provisions of Article 7, provided there is no successor defined
contribution plan within the meaning of section 401(k)(10)(A)(i) of the
Code.
9.05 Distributions Upon Sale of Assets
---------------------------------
As soon as is administratively feasible after the sale to an entity that
is not an affiliated Employer of substantially all of the assets used by
the Company in a trade or business in which one or more Participants is
employed, all Accounts of such Participants and income attributable
thereto shall be distributed to such Participants.
9.06 Distributions Upon Sale of Subsidiary
-------------------------------------
As soon as is administratively feasible after the sale of an incorporated
affiliated Employer's interest in a subsidiary to an entity that is not an
affiliated Employer, all Accounts and income attributable thereto of
Participants employed by such subsidiary shall be distributed to such
Participants.
9.07 Satisfaction of Liability
-------------------------
After all benefits have been distributed in full to a Participant or to
his Beneficiary, all liability to such Participant or to his Beneficiary
shall cease.
49
ARTICLE 10
----------
PARTICIPATING COMPANIES
-----------------------
10.01 Adoption by Other Entities
--------------------------
Any corporation or other business entity may, by resolution of its own
governing body, and with the approval of the Board of Directors, adopt the
Plan and thereby become a Company. Except as provided in Section 10.05
below, the Plan will be administered as a single plan and all Plan assets
will be available to pay benefits to all Participants under the Plan.
10.02 Alternative Provisions
----------------------
No Company may adopt alternative provisions as to itself or its Employees.
Upon request of the governing body of a Company, the Board of Directors
may amend the Plan with respect to the Employees of such Company provided
that any change will only apply if any inequity resulting from such
changed Plan provisions is not found to be discriminatory on behalf of
Highly Compensated Employees.
10.03 Right to Withdraw (Plan Spin-off)
--------------------------------
Each Company having adopted the Plan shall have the right as of the last
day of any month to withdraw from the Plan and/or Trust Agreement by
delivering to the Board of Directors, the Committee and the Trustee
written notification from its own governing body of such action and
setting forth the date as of which the withdrawal shall be effective. The
date specified in such written notice shall be deemed a Valuation Date.
10.04 Procedure Upon Withdrawal
-------------------------
(a) If a Company withdraws from the Plan and Trust Agreement as the
result of its adoption of a different plan, the Trustee shall
segregate the portion of the Trust Fund attributable to the Accounts
of Participants employed solely by such Company.
As soon as administratively feasible following receipt of a
favorable letter of determination from the Internal Revenue Service
with regard to the adoption of such successor plan, the Trustee
shall transfer the segregated assets to the insurance carrier or
fiduciary designated by the Company as the agency through which the
benefits of such successor plan are to be disbursed.
(b) If a Company withdraws from the Plan and Trust Agreement as the
result of its adoption of a resolution to terminate its
participation in the Plan and to distribute assets to its Employees
who are Participants, the Trustee shall segregate the portion of the
Trust Fund attributable to the Accounts of the Participants who are
employed solely by such Company, and the termination provisions of
Section 9.03 and 9.04 shall apply with respect to such segregated
assets.
50
10.05 Multiple Employer Plan
----------------------
Effective April 1, 2007, the Plan is amended to create a multiple employer
plan, as described in Section 413(c) of the Code. Nokia Inc. and its
Controlled Group shall be treated as a single employer and Nokia Networks
Business Group shall be treated as a single employer for purposes of
contributions, application of the "ADP" and "ACP" tests described in
Section 4.02, top heavy determinations and application of such other Plan
provisions as Nokia Inc. determines to be appropriate. Employees of Nokia
Networks Business Group shall be subject to the following Plan investment
rules:
(a) The portion of their Accounts attributable to contributions for
periods prior to April 1, 2007 may be invested in any of the
investment alternatives designated by the Committee under Section
5.03, including securities of Nokia Inc. and its affiliates.
(b) The portion of their Accounts attributable to contributions for
periods after March 31, 2007 may be invested in any of the
investment funds designated by the Committee under Section 5.03, but
excluding securities of Nokia Inc. and its affiliates.
51
ARTICLE 11
----------
TOP-HEAVY PROVISIONS
--------------------
11.01 Definition of Top-Heavy and Super Top-Heavy
-------------------------------------------
(a) The Plan will be Top-Heavy for a Plan Year beginning after December
31, 1983, if, as of the final Valuation Date of the preceding Plan
Year, hereinafter referred to as the Determination Date,
(i) the aggregate value of the Accounts of all Participants who
are Key Employees (as defined in Section 11.02) exceeds 60% of
the aggregate value of such Accounts of all Participants and
the Plan cannot be aggregated with any other plans which would
result in the formation of a non-Top-Heavy aggregation group
of plans; or
(ii) the Plan is required to be part of an aggregation group of
plans and the aggregation group is Top-Heavy. The group will
be deemed Top-Heavy if the aggregate value of all defined
contribution plan accounts and the value of all defined
benefit plan accrued benefits attributable to Key Employees
exceeds 60% of such values attributable to all participants of
the aggregated plans. Such benefit values and accounts shall
be aggregated using the Determination Dates of the individual
plans which fall within the same calendar year.
For purposes of this Section, aggregation group means all plans,
including terminated plans, maintained by the Employer if maintained
within the last five years ending on the Determination Date, in
which a Key Employee is a participant or which enables any plan in
which a Key Employee is a participant to meet the requirements of
section 401(a)(4) or section 410 of the Code, as well as all other
plans maintained by the Employer, provided that inclusion of such
other plans in the aggregation group would not prevent the group of
plans from continuing to meet the requirements of such sections of
the Code.
(b) The Plan will be Super Top-Heavy for a Plan Year if the aggregate
value of all defined contribution plan accounts and the value of all
defined benefit plan accrued benefits attributable to all
Participants who are Key Employees exceeds 90% of such values
attributable to all Participants in lieu of 60% as stated in
Subsection (a).
(c) For purposes of determining the aggregate value of the benefit
values and accounts under this Section, distributions, other than
rollovers or direct transfers to another qualified plan maintained
by the Employer or rollovers or direct transfers not initiated by
the Participant, made during the five-year period ending on the
Determination Date of the plan from which such distributions were
made, shall be included to the extent such distributions are not
otherwise reflected in the value of any accrued benefit under a
defined benefit plan as determined with
52
respect to such plan's Determination Date. Such aggregate value
shall not include any (i) assets rolled over or transferred at the
initiation of the Participant directly from a qualified plan
maintained by a business entity other than an Employer to the Plan,
after December 31, 1983, (ii) amounts attributable to former Key
Employees, (iii) amounts attributable to Participants not employed
during such five-year period, or (iv) amounts attributable to
deductible employee contributions under former section 219(e)(2) of
the Code.
A Participant's accounts under any defined contribution plan as of
any Determination Date, other than the Determination Date which
falls within the first Plan Year, shall not include any Employer
contributions due and not yet paid as of the Determination Date, if
the plan under which the account is maintained is not subject to
section 412 of the Code.
Accrued benefit values under defined benefit plans aggregated with
this Plan shall be determined, subject to the rules set forth in
section 416(g)(4)(F)(ii) of the Code, as of the dates of the most
recent valuations preceding or coincident with such defined benefit
plans' Determination Dates, in accordance with the interest and
mortality rate assumptions specified in such defined benefit plans
for this purpose or, if not specified, shall be determined using an
interest rate of 5% and mortality rates in accordance with Group
Annuity Mortality Table for 1951 (Projection "C" to 1970, set back
five years for females). Such accrued benefit values shall be
determined under the method of accrual used for all plans of the
Employer or, if such method is not identical, as if such benefit
accrued under the fractional rule as described in section
411(b)(1)(C) of the Code.
11.02 Definition of Key Employee
--------------------------
An Employee or a former Employee will be considered to be a Key Employee
for a Plan Year if, at any time during the Plan Year or the preceding four
Plan Years, he is an officer of the Employer earning more than 50% of the
maximum dollar limitation under Section 415(b)(1)(A) of the Code; one of
the 10 employees owning the largest interests (minimum 1/2%) in the
Employer earning more than the maximum dollar limitation under Section
415(c)(1)(A) of the Code; a 5% owner; or a 1% owner whose compensation
exceeds $150,000. This definition of Key Employee shall be governed by
section 416 of the Code and Regulations thereunder. For purposes of this
definition, but only to the extent required by law, a Key Employee's
Beneficiary shall be treated as a Key Employee, and ownership percentages
shall be determined without regard to aggregation of entities under common
control within the meaning of sections 414(b), (c) and (m) of the Code. In
no event shall more than 50 employees (or, if less, the greater of three
employees or 10 percent of the employees) be deemed officers for purposes
of this definition.
11.03 Minimum Employer Contribution
-----------------------------
(a) Unless otherwise provided in this Section, for any Plan Year in
which the Plan is determined to be Top-Heavy, the Company
contribution allocated to any non Key
53
Employee Participant in the employ of the Company on the last
business day of that Plan Year, shall not be less than an amount
which, in combination with all other such amounts allocated to him
under all other defined contribution plans maintained by the
Employer, is equal to the lesser of
(i) 3% of the Participant's Compensation or
(ii) the highest percentage of Compensation (net of amounts
contributed under a qualified salary reduction or similar
arrangement) at which contributions (including Employer
matching contributions and forfeitures) are allocated for the
Plan Year under the Plan and under any other defined
contribution plan required to be aggregated with the Plan on
behalf of any Key Employee, times the Participant's
Compensation.
(b) Any contributions made solely to comply with the provisions of this
Section shall be credited at the end of the Plan Year.
(c) For purposes of this Section, only benefits derived from Employer
contributions under the Plan, or any other defined contribution plan
or plans are to be taken into account to determine whether the
minimum Employer contribution or benefit has been satisfied,
excluding matching contributions and any contributions attributable
to a salary reduction or similar arrangement, but including
contributions as defined in Treasury Regulation 1.401(k)-1(g)(13).
Such salary reduction contributions will be taken into account to
determine the Employer contribution made on behalf of any Key
Employee under Subsection 11.03(a)(ii), but not to determine whether
the minimum Employer contribution or benefit has been satisfied.
(d) For purposes of this Section only, Participant shall also include
any Participant who did not meet the 1,000 Hours of Employment
requirement necessary to share in the Company's Retirement
Contributions.
(e) An Eligible Employee who has not met the 90 Days of Service
requirement for eligibility in accordance with Article 2, shall not
be considered a Participant for purposes of this Section.
(f) An employee of a business entity which has not adopted the Plan
shall not be considered a Participant for purposes of this Section
unless also employed by the Company.
(g) An Eligible Employee who becomes a Participant by virtue of the
acceptance of a rollover contribution in accordance with Section
3.07 or a transfer of assets in accordance with Section 3.08 but who
is not otherwise eligible in accordance with Section 2.01, shall not
be entitled to share in any Company contribution allocated in
accordance with this Article.
54
11.04 Modification of Top-Heavy Rules
-------------------------------
(a) Effective date. This section 11.04 shall apply for purposes of
determining whether the plan is a top-heavy plan under section
416(g) of the Code and whether the Plan satisfies the minimum
benefits requirements of section 416(c) of the Code for such years.
(b) Determination of top-heavy status.
(i) Key employee. Key employee means any employee or former
employee (including any deceased employee) who at any time
during the Plan Year that includes the determination date was
an officer of the employer having annual Compensation greater
than $130,000 (as adjusted under section 416(i)(1) of the Code
for Plan Years beginning after December 31, 2002), a 5-percent
owner of the Employer, or a 1- percent owner of the Employer
having annual Compensation of more than $150,000. For this
purpose, annual Compensation means compensation within the
meaning of section 415(c)(3) of the Code. The determination of
who is a key employee will be made in accordance with section
416(i)(1) of the Code and the applicable regulations and other
guidance of general applicability issued thereunder.
(ii) Determination of present values and amounts. This section
shall apply for purposes of determining the present values of
accrued benefits and the amounts of account balances of
employees as of the determination date.
(iii) Distributions during year ending on the determination date.
The present values of accrued benefits and the amounts of
account balances of an employee as of the determination date
shall be increased by the distributions made with respect to
the employee under the Plan and any plan aggregated with the
Plan under section 416(g)(2) of the Code during the 1-year
period ending on the determination date. The preceding
sentence shall also apply to distributions under a terminated
plan which, had it not been terminated, would have been
aggregated with the plan under section 416(g)(2)(A)(i) of the
Code. In the case of a distribution made for a reason other
than separation from service, death, or disability, this
provision shall be applied by substituting "5-year period" for
"1-year period."
(iv) Employees not performing services during year ending on the
determination date. The accrued benefits and accounts of any
individual who has not performed services for the employer
during the 1-year period ending on the determination date
shall not be taken into account.
(c) Minimum benefits.
(i) Matching contributions. Employer matching contributions shall
be taken into account for purposes of satisfying the minimum
contribution
55
requirements of section 416(c)(2) of the Code and the Plan.
The preceding sentence shall apply with respect to matching
contributions under the Plan or, if the plan provides that the
minimum contribution requirement shall be met in another plan,
such other plan. Employer matching contributions that are used
to satisfy the minimum contribution requirements shall be
treated as matching contributions for purposes of the actual
contribution percentage test and other requirements of section
401(m) of the Code.
(ii) Contributions under other plans. The employer may provide that
the minimum benefit requirement shall be met in another plan
(including another plan that consists solely of a cash or
deferred arrangement which meets the requirements of section
401(k)(12) of the Code and matching contributions with respect
to which the requirements of section 401(m)(11) of the Code
are met).
56
ARTICLE 12
----------
QUALIFIED DOMESTIC RELATIONS ORDERS
-----------------------------------
12.01 Qualified Domestic Relations Orders
-----------------------------------
A Qualified Domestic Relations Order (hereinafter referred to as "QDRO")
is a Domestic Relations Order which creates or recognizes the existence of
an Alternate Payee's right to, or assigns to an Alternate Payee the right
to, receive all or a portion of the benefits payable with respect to a
Participant under the Plan, and which the Committee has determined meets
the requirements of Section 12.02.
12.02 Specifications
--------------
A Domestic Relations Order meets the requirements of a QDRO only if the
order
(a) clearly specifies the name and the last known mailing address (if
any) of the Participant and the name and mailing address of each
Alternate Payee covered by the order;
(b) clearly specifies the amount or percentage of the Participant's
benefits to be paid by the Plan to each such Alternate Payee, or the
manner in which such amount or percentage is to be determined;
(c) clearly specifies the number of payments or period to which such
order applies;
(d) clearly specifies that the order applies to this Plan;
(e) does not require the Plan to provide any type or form of benefits,
or any option, not otherwise provided under the Plan;
(f) does not require the Plan to provide increased benefits (determined
on the basis of actuarial value); and
(g) does not require the payment of benefits to an Alternate Payee which
are required to be paid to another Alternate Payee under another
Domestic Relations Order previously determined to be a QDRO.
12.03 Payment Before Separation From Service
--------------------------------------
In the case of any payment before a Participant has separated from
service, a QDRO shall not be treated as failing to meet the requirements
of Section 12.02(g) above solely because the order requires the payment of
benefits to an Alternate Payee
(a) on or after the date on which the Participant attains (or would have
attained) the Earliest Retirement Age;
57
(b) as if the Participant had retired on the date such payment is to
begin under such order; and
(c) in any form in which such benefits may be paid under the Plan to the
Participant (other than in the form of a joint and survivor annuity
with respect to the Alternate Payee and his or her subsequent
spouse).
12.04 Earliest Retirement Age
-----------------------
For purposes of Section 12.03(a), Earliest Retirement Age means the
earlier of
(a) the date on which the Participant is entitled to a distribution
under the Plan; or
(b) the later of (1) the date the Participant attains age 50 or (2) the
earliest date on which the Participant could begin receiving
benefits under the Plan if such Participant separated from service.
Notwithstanding any provisions of the Plan to the contrary, for purposes
of Subsection (a) above, a distribution to an Alternate Payee may be made
prior to the date on which the Participant is entitled to a distribution
under Section 6 if requested by the Alternate Payee to the extent such
distribution is permitted under the QDRO. Nothing in this provision shall
permit the Participant to receive a distribution at a date otherwise not
permitted under Section 6 nor shall it permit the Alternate Payee to
receive a form of payment not permitted in Section 6.
12.05 Procedures
----------
Upon receipt of a Domestic Relations Order, the Committee shall take, or
cause to be taken, the following actions:
(a) The Committee shall promptly notify the Participant, each Alternate
Payee covered by the order and each representative for these parties
of the receipt of the Domestic Relations Order. Such notice shall
include a copy of the order and these QDRO Procedures for
determining whether such order is a QDRO.
(b) Once a Domestic Relations Order has been received (i) the affected
Participant will not be permitted to request a withdrawal or a loan
from the Plan and (ii) no distributions will be made from the Plan
to the Participant upon a subsequent termination until after the
payment to the Alternate Payee has been determined, unless the
Committee determines the order not to be a QDRO.
(c) Within a reasonable period after receipt of a Domestic Relations
Order, the Committee shall determine whether it is a QDRO and shall
notify the parties indicated in Paragraph (a) of such determination.
Such notice shall indicate whether the benefits payable to the
Alternate Payee in accordance with the QDRO are subject to a
previously existing QDRO.
58
(d) Pending the Committee's determination of whether a Domestic
Relations Order is a QDRO, if payments are due to be paid to the
Participant, the Committee shall withhold payment and separately
account for the amounts otherwise payable to the Alternate Payee
during such period if the order is subsequently determined to be a
QDRO (hereinafter referred to as the "segregated amounts"). If,
within the 18-month period beginning with the date the first payment
would have been required to be made under the Domestic Relations
Order, the Committee determines the order to be a QDRO, the
Committee shall pay the segregated amounts, including any interest
thereon, to the person or persons entitled thereto. If, within such
18-month period, the Committee determines an order is not a QDRO or
the Committee fails to reach a decision, the Committee shall pay the
segregated amounts to the Participant. If, after the 18-month
period, the Committee subsequently determines that the order is a
QDRO, the Committee shall pay benefits subsequent to such
determination in accordance with the order. If action is taken in
accordance with this Subsection, the Plan's obligation to the
Participant and each Alternate Payee shall be discharged to the
extent of any payment made pursuant to the QDRO.
(e) In determining the segregated amount in accordance with Paragraph
(d), the Participant's vested interest shall be prorated between the
Participant and Alternate Payee and the entire amount of any
nonvested interest or any outstanding Plan loans will be credited to
the Participant and not taken into consideration in making such
determination. Any future contributions or loan repayment will be
credited to the Participant and not the Alternate Payee.
(f) Upon a determination by the Committee that a Domestic Relations
Order is a QDRO, the Committee shall arrange for benefits to be paid
to the Alternate Payee in accordance with such order and Section 6
and as if the Participant had terminated employment at such time.
(g) If benefits are not immediately distributable to the Alternate
Payee, such amount shall be separately accounted for until such time
as the distribution is made. Any amount subject to a QDRO will not
be available to the Participant under the Plan withdrawal provisions
nor will it be available as collateral for a Plan loan.
(h) The Alternate Payee shall be treated as a Beneficiary for all
purposes of the Plan. The Alternate Payee will be eligible for the
same investment election option in accordance with Article 5 as the
Participant.
(i) Effective August 4, 1994, any expense charges related to the
administration of the QDRO will be paid in accordance with Section
8.09.
59
The foregoing provisions are effective for QDROs entered into on or after
January 1, 1985, except that, in the case of a Domestic Relations Order
entered into before January 1, 1985, the Committee (A) may treat such
order as a QDRO even though such order fails to meet the requirements of
Subsections 12.05(a),(b) and (c) above, and (B) must treat such order as a
QDRO if benefits were being paid pursuant to such order on January 1,
1985.
60
ARTICLE 13
----------
LOANS
-----
13.01 Amount of Loans and Terms of Repayment
--------------------------------------
The Committee shall promulgate any additional specific rules and
regulations governing all aspects of this Article as it deems necessary.
The following general rules shall serve as the basis for any specific
rules and regulations:
(a) Upon request in accordance with procedures established by the
Committee, loans may be granted to a Participant, except shareholder
employees or owner employees as referred to in section 4975(d) of
the Code.
(b) The minimum amount of any loan shall be $1,000.
(c) In no event shall a loan exceed the lesser of
(i) $50,000, reduced by the highest outstanding loan balance
during the one-year period ending on the day before the date
on which any new loan is to be granted, or
(ii) 50% of the amount to which the Participant is vested under
this Plan on the date the loan is granted.
(d) A Participant may have no more than two (2) loans outstanding at any
time.
(e) All loans under this Article shall be considered investments of the
Account of the Participant to whom the loan is granted and shall be
charged to the Accounts and investment funds proportionately (but
excluding any retirement contribution required to be invested in the
Nokia Stock Fund under Section 5.02(a)). Interest shall be charged
thereon at a rate equal to the prime rate reported in The Wall
Street Journal on the first day of the month during which the loan
application was received.
(f) Each loan shall be secured by the assignment of not more than 50% of
the Participant's vested Account balance on the date the loan is
granted, a promissory note executed by the Participant and such
additional collateral as the Committee shall require to assure
repayment of the loan and all interest payable thereon.
(g) Each loan shall be repaid by the Participant either through payroll
deductions or in such other manner as the Committee shall determine,
provided such payment schedule does not permit payment less
frequently than quarterly. All payment schedules shall be calculated
to amortize principal and interest in level payments over the period
of the loan as agreed to by the Committee and the Participant not to
exceed five years from the date of such loan. Notwithstanding the
foregoing, in the event a loan is approved for the purchase of a
principal residence, the five-year repayment requirement will not be
applicable.
61
Principal and interest payments shall be credited to the Account of
the Participant to whom the loan is granted in the same manner as
the loan was charged and shall be invested in accordance with the
Participant's current investment election.
(h) Except as provided in Subsection (k), upon a Participant's
termination of employment for any reason, the entire unpaid balance
of the loan shall be due and payable.
(i) If a Participant should fail to make a payment when due, the entire
unpaid balance of the loan shall be in default and the Committee
shall take any one or more of the following steps, as it deems
necessary, to secure repayment of such loan:
(i) Deduct the amount of the outstanding indebtedness from the
Participant's Account, to the extent permitted and available
under law and in accordance with the terms of the Plan. Such
deduction will not occur until a distributable event occurs
under the terms of the Plan.
(ii) Instruct the Trustee to sell any property held as collateral
for such loan.
(iii) Take such other steps as may be required.
(j) Each loan will require that within the 90-day period before the
granting of the loan, the Participant consents to such loan in
writing, and acknowledge the reduction in the Participant's Account
in the event the loan is in default.
(k) No distribution from the Plan upon termination of employment for any
reason shall be made to any Participant or Beneficiary unless and
until all loans, including interest thereon, have been fully repaid.
(l) Any Participant who is a "party in interest" as defined in ERISA
section 3(14) and who ceases to be an active Eligible Employee may
be eligible to borrow from the Plan under terms and conditions
reflecting valid differences between active Participants and other
Participants which would be considered in a normal commercial
setting, such as the unavailability of payroll deductions for
repayment. In no event will loans be unreasonably withheld from any
eligible applicant.
62
ARTICLE 14
----------
GENERAL PROVISIONS
------------------
14.01 Exclusiveness of Benefits
-------------------------
The Plan has been created for the exclusive benefit of the Participants
and their Beneficiaries. No part of the Trust Fund shall ever revert to
the Company nor shall such Trust Fund ever be used other than for the
exclusive benefit of the Participants and their Beneficiaries, except as
provided in Sections 8.07 and 9.03 and Subsection 4.03(f) provided,
however, that contributions made by the Company by mistake of fact or
which are not deductible under section 404 of the Code, may be returned to
the Company within one year of the mistaken payment of the contribution or
the date of disallowance of the deduction, as the case may be. All
contributions made by the Company shall be conditional upon their
deductibility under section 404 of the Code. No person shall have any
interest in or right to any part of the Trust Fund, or any equitable right
under the Trust Agreement, except to the extent expressly provided in the
Plan or Trust Agreement.
14.02 Limitation of Rights
--------------------
Neither the establishment of the Plan, nor any modification thereof, nor
the creation of any fund, trust or account, nor the purchase of any
policy, nor the payment of any benefits shall be construed as giving any
Participant, Beneficiary, or any other person whomsoever, any legal or
equitable right against the Company, the Committee, or the Trustee, unless
such right shall be specifically provided for in the Plan or conferred by
affirmative action of the Committee or the Company in accordance with the
terms and provisions of the Plan; or as giving any Participant or any
other employee of the Company the right to be retained in the service of
the Company and all Participants and other employees shall remain subject
to discharge to the same extent as if the Plan had never been adopted.
14.03 Limitation of Liability and Legal Actions
-----------------------------------------
In any action or proceeding involving the Trust Fund, or any part thereof,
or the administration thereof, the Company, the Committee, and the Trustee
shall be the only necessary parties. Any final judgment entered in any
such action or proceeding, which is not appealed or appealable, shall be
binding and conclusive on the parties thereto, and all persons having or
claiming to have an interest in the Trust Fund or under the Plan.
14.04 Construction of Agreement
-------------------------
The Plan shall be construed according to the laws of the State in which
the Company named under Article 1 has its principal place of business and
all provisions hereof shall be administered according to, and its validity
shall be determined under, the laws of such State except where preempted
by Federal law. All contributions to the Trust prior to July 1, 1997 shall
be deemed to take place in StateNew York; all contributions to the Trust
after June 30, 1997, shall be deemed to take place in place State
Minnesota.
63
14.05 Title to Assets; Non-Assignability (Spendthrift Provision)
---------------------------------------------------------
(a) No Participant, Beneficiary or any other person shall have any legal
or equitable right or interest in the funds set aside by the
Company, or otherwise received or held under the Plan, or in any
assets of the Trust Fund, except as expressly provided in the Plan,
and no Participant, Beneficiary or any other person shall be deemed
to possess a right to any assets except as herein provided.
(b) No benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any such action shall be void for all
purposes of the Plan. No benefit shall in any manner be subject to
the debts, contracts, liabilities, engagements or torts of any
person, nor shall it be subject to attachments or other legal
process for or against any person, except with respect to a
Qualified Domestic Relations Order and in such other instances and
to such extent as may be required by law and except as provided in
Article 13.
14.06 Severability
------------
Should any provision of the Plan or any regulations adopted thereunder be
deemed or held to be unlawful or invalid for any reason, such fact shall
not adversely affect the other provisions or regulations unless such
invalidity shall render impossible or impractical the functioning of the
Plan and, in such case, the appropriate parties shall immediately adopt a
new provision or regulation to take the place of the one held illegal or
invalid.
14.07 Titles and Headings
-------------------
The titles and headings of the Sections in this instrument are for
convenience of reference only and, in the event of any conflict, the text
rather than such titles or headings shall control.
14.08 Counterparts as Original
------------------------
The Plan has been prepared in counterparts, each of which so prepared
shall be construed an original.
14.09 Merger of Plans
---------------
Upon the merger or consolidation of any other plan with this Plan or the
transfer of assets or liabilities from this Plan to any other plan, all
Participants of this Plan shall be entitled to a benefit immediately after
the merger, consolidation or transfer (if the merged, consolidated or
transferee plan had then been terminated) at least equal to the benefit
they would have been entitled to immediately prior to such merger,
consolidation or transfer (if the Plan had then terminated).
64
14.10 Disposition of Unclaimed Benefits
---------------------------------
If, after five (5) years have expired following reasonable efforts of the
Committee to locate a Participant or his Beneficiary, including sending a
registered letter, return receipt requested to the last known address, the
Committee is unable to locate the Participant or Beneficiary, then the
amounts distributable to such Participant or Beneficiary shall, pursuant
to applicable state or Federal laws, be treated as a forfeiture under the
Plan. Where a Participant or Beneficiary is located subsequent to a
forfeiture, pursuant to applicable state or Federal laws, such benefits
shall be reinstated by the Committee and shall not count as an Annual
Addition under section 415 of the Code.
14.11 Substitute Payee
----------------
If a Participant or Beneficiary entitled to receive any benefits hereunder
is in his minority or is, in the judgment of the Committee, legally,
physically, or mentally incapable of personally receiving and receipting
any distribution, the Committee may instruct the Trustee to make
distributions to his legally appointed guardian.
14.12 USERRA
------
Notwithstanding any provision of this Plan to the contrary, contributions,
benefits and service credit with respect to qualified military service
will be provided in accordance with section 414(u) of the Code.
14.13 Impossibility of Performance
----------------------------
In the event it becomes impossible for the Employer, the Committee or the
Trustee to perform any act under this Plan, that act shall be performed
which, in the judgment of the Employer, will most nearly carry out the
intent and purpose of the Plan and the related Trust. All parties to this
Plan and the related Trust Agreement or in any way interested in this Plan
and any related Trust shall be bound by any acts performed under such
conditions.
14.14 Dissolution of the Employer
---------------------------
In the event that the Employer is dissolved by reason of bankruptcy or
insolvency, without any provisions being made for the continuance of this
Plan and the Trust Agreement by a successor to the business of the
Employer, the Plan and the Trust Agreement hereunder shall terminate and
the Trustee shall proceed in the same manner as though the Plan and the
Trust Agreement were being terminated as provided in Section 9.02.
14.15 Discharge of Trustee's Obligation to Make Payments
--------------------------------------------------
The Trustee shall be required to make distributions only at the direction
of the Committee. Whenever the Trustee is directed by the Committee to
make any payment or payments to any person in accordance with the
provisions of this Plan, the Committee shall notify the Trustee in writing
of such person's last known address as it appears in the
65
Committee's records, and the Trustee's obligation to make such payments
shall be fully discharged by mailing its the same to the address specified
by the Committee.
14.16 Incapacity
----------
If any person to whom a benefit is payable hereunder is an infant or if
the Committee determines that any person to whom such benefit is payable
is incompetent by reason of physical or mental disability, the Committee
may cause the payments becoming due to such person to be made to such
person's legally appointed guardian or conservator.
14.17 Definition of Words
-------------------
Feminine or neuter pronouns shall be substituted for those of masculine
form, and the plural shall be substituted for the singular, in any place
or places herein where the context may require such substitution or
substitutions.
14.18 Titles
------
The titles of Sections and paragraphs are included only for convenience
and shall not be construed as a part of this Plan or in any respect
affecting or modifying its provisions.
66
ARTICLE 15
----------
MINIMUM DISTRIBUTION REQUIREMENTS
---------------------------------
This Article sets forth revised rules regarding minimum distributions
utilizing Model Plan Amendment 1 from Revenue Procedure 2002-29 (with
minor changes as permitted by that Revenue Procedure) as set forth below.
Section 6.09(c) of the Plan is replaced with this Article 15 effective
January 1, 2003. If another provision of the Plan calls for an earlier
distribution or a larger payment on any given date, such provision shall
supercede this Article 15.
15.01 General Rules.
-------------
(a) Effective Date. The provisions of this article will apply for
purposes of determining required minimum distributions for calendar
years beginning with the 2003 calendar year.
(b) Coordination with Minimum Distribution Requirements Previously in
Effect. Not applicable.
(c) Precedence. The requirements of this article will take precedence
over any inconsistent provisions of the Plan.
(d) Requirements of Treasury Regulations Incorporated. All distributions
required under this article will be determined and made in
accordance with the Treasury regulations under Section 401(a)(9) of
the Internal Revenue Code.
(e) TEFRA. Section 242(b)(2) Elections. Notwithstanding the other
provisions of this article, distributions may be made under a
designation made before January 1, 1984, in accordance with Section
242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA)
and the provisions of the Plan that relate to Section 242(b)(2) of
TEFRA.
15.02 Time and Manner of Distribution.
-------------------------------
(a) Required Beginning Date. The Participant's entire interest will be
distributed, or begin to be distributed, to the Participant no later
than the Participant's required beginning date.
(b) Death of Participant Before Distributions Begin. If the Participant
dies before distributions begin, the Participant's entire interest
will be distributed, or begin to be distributed, no later than as
follows:
(i) If the Participant's surviving spouse is the Participant's
sole designated beneficiary, then distributions to the
surviving spouse will begin by December 31 of the calendar
year immediately following the calendar year in which the
Participant died, or by December 31 of the calendar year in
which the Participant would have attained age 70 1/2, if
later.
67
(ii) If the Participant's surviving spouse is not the Participant's
sole designated beneficiary, then distributions to the
designated beneficiary will begin by December 31 of the
calendar year immediately following the calendar year in which
the Participant died.
(iii) If there is no designated beneficiary as of September 30 of
the year following the year of the Participant's death, the
Participant's entire interest will be distributed by December
31 of the calendar year containing the fifth anniversary of
the Participant's death.
(iv) If the Participant's surviving spouse is the Participant's
sole designated beneficiary and the surviving spouse dies
after the Participant but before distributions to the
surviving spouse begin, this Section 15.02, other than Section
15.02(b)(i), will apply as if the surviving spouse were the
Participant.
For purposes of this Section 15.02(b) and Section 15.04, unless Section
15.02(b)(iv) applies, distributions are considered to begin on the Participant's
required beginning date. If Section 15.02(b)(iv) applies, distributions are
considered to begin on the date distributions are required to begin to the
surviving spouse under Section 15.02(b)(i). If distributions under an annuity
purchased from an insurance company irrevocably commence to the Participant
before the Participant's required beginning date (or to the Participant's
surviving spouse before the date distributions are required to begin to the
surviving spouse under Section 15.02(b)(i)), the date distributions are
considered to begin is the date distributions actually commence.
(c) Forms of Distribution. Unless the Participant's interest is
distributed in the form of an annuity purchased from an insurance
company or in a single sum on or before the required beginning date,
as of the first distribution calendar year distributions will be
made in accordance with Sections 15.03 and 15.02 of this article. If
the Participant's interest is distributed in the form of an annuity
purchased from an insurance company, distributions thereunder will
be made in accordance with the requirements of Section 401(a)(9) of
the Code and the Treasury regulations.
15.03 Required Minimum Distributions During Participant's Lifetime.
------------------------------------------------------------
(a) Amount of Required Minimum Distribution For Each Distribution
Calendar Year. During the Participant's lifetime, the minimum amount
that will be distributed for each distribution calendar year is the
lesser of:
(i) the quotient obtained by dividing the Participant's account
balance by the distribution period in the Uniform Lifetime
Table set forth in Section 1.401(a)(9)-9 of the Treasury
regulations, using the Participant's age as of the
Participant's birthday in the distribution calendar year; or
(ii) if the Participant's sole designated beneficiary for the
distribution calendar year is the Participant's spouse, the
quotient obtained by dividing the Participant's account
balance by the number in the Joint and Last Survivor
68
Table set forth in Section 1.401(a)(9)-9 of the Treasury
regulations, using the Participant's and spouse's attained
ages as of the Participant's and spouse's birthdays in the
distribution calendar year.
(b) Lifetime Required Minimum Distributions Continue Through Year of
Participant's Death. Required minimum distributions will be
determined under this Section 15.03 beginning with the first
distribution calendar year and up to and including the distribution
calendar year that includes the Participant's date of death.
15.04 Required Minimum Distributions After Participant's Death.
--------------------------------------------------------
(a) Death On or After Date Distributions Begin.
(i) Participant Survived by Designated Beneficiary. If the
Participant dies on or after the date distributions begin and
there is a designated beneficiary, the minimum amount that
will be distributed for each distribution calendar year after
the year of the Participant's death is the quotient obtained
by dividing the Participant's account balance by the longer of
the remaining life expectancy of the Participant or the
remaining life expectancy of the Participant's designated
beneficiary, determined as follows:
(A) The Participant's remaining life expectancy is
calculated using the age of the Participant in the year
of death, reduced by one for each subsequent year.
(B) If the Participant's surviving spouse is the
Participant's sole designated beneficiary, the remaining
life expectancy of the surviving spouse is calculated
for each distribution calendar year after the year of
the Participant's death using the surviving spouse's age
as of the spouse's birthday in that year. For
distribution calendar years after the year of the
surviving spouse's death, the remaining life expectancy
of the surviving spouse is calculated using the age of
the surviving spouse as of the spouse's birthday in the
calendar year of the spouse's death, reduced by one for
each subsequent calendar year.
(C) If the Participant's surviving spouse is not the
Participant's sole designated beneficiary, the
designated beneficiary's remaining life expectancy is
calculated using the age of the beneficiary in the year
following the year of the Participant's death, reduced
by one for each subsequent year.
(ii) No Designated Beneficiary. If the Participant dies on or after
the date distributions begin and there is no designated
beneficiary as of September 30 of the year after the year of
the Participant's death, the minimum amount that will be
distributed for each distribution calendar year after the year
of the Participant's death is the quotient obtained by
69
dividing the Participant's account balance by the
Participant's remaining life expectancy calculated using the
age of the Participant in the year of death, reduced by one
for each subsequent year.
(b) Death Before Date Distributions Begin.
(i) Participant Survived by Designated Beneficiary. If the
Participant dies before the date distributions begin and there
is a designated beneficiary, the minimum amount that will be
distributed for each distribution calendar year after the year
of the Participant's death is the quotient obtained by
dividing the Participant's account balance by the remaining
life expectancy of the Participant's designated beneficiary,
determined as provided in Section 15.04(a).
(ii) No Designated Beneficiary. If the Participant dies before the
date distributions begin and there is no designated
beneficiary as of September 30 of the year following the year
of the Participant's death, distribution of the Participant's
entire interest will be completed by December 31 of the
calendar year containing the fifth anniversary of the
Participant's death.
(iii) Death of Surviving Spouse Before Distributions to Surviving
Spouse Are Required to Begin. If the Participant dies before
the date distributions begin, the Participant's surviving
spouse is the Participant's sole designated beneficiary, and
the surviving spouse dies before distributions are required to
begin to the surviving spouse under Section 15.02(b)(i), this
Section 15.04(b) will apply as if the surviving spouse were
the Participant.
15.05 Definitions.
-----------
(a) Designated beneficiary. The individual who is designated as the
beneficiary under the Plan and is the designated beneficiary under
Section 401(a)(9) of the Internal Revenue Code and Section
1.401(a)(9)-1, Q&A-4, of the Treasury regulations.
(b) Distribution calendar year. A calendar year for which a minimum
distribution is required. For distributions beginning before the
Participant's death, the first distribution calendar year is the
calendar year immediately preceding the calendar year which contains
the Participant's required beginning date. For distributions
beginning after the Participant's death, the first distribution
calendar year is the calendar year in which distributions are
required to begin under Section 15.02(b). The required minimum
distribution for the Participant's first distribution calendar year
will be made on or before the Participant's required beginning date.
The required minimum distribution for other distribution calendar
years, including the required minimum distribution for the
distribution calendar year in which the
70
Participant's required beginning date occurs, will be made on or
before December 31 of that distribution calendar year.
(c) Life expectancy. Life expectancy as computed by use of the Single
Life Table in Section 1.401(a)(9)-9 of the Treasury regulations.
(d) Participant's account balance. The account balance as of the last
valuation date in the calendar year immediately preceding the
distribution calendar year (valuation calendar year) increased by
the amount of any contributions made and allocated or forfeitures
allocated to the account balance as of dates in the valuation
calendar year after the valuation date and decreased by
distributions made in the valuation calendar year after the
valuation date. The account balance for the valuation calendar year
includes any amounts rolled over or transferred to the Plan either
in the valuation calendar year or in the distribution calendar year
if distributed or transferred in the valuation calendar year.
(e) Required beginning date. The Required Beginning Date shall be as
follows:
(i) Participant. The required beginning date of a Participant is
the later of the April 1 of the calendar year following the
calendar year in which the Participant attains age 70 1/2 or
retires, except that benefit distributions to a 5-percent
owner must commence by the April 1 of the calendar year
following the calendar year in which the Participant attains
age 70 1/2.
(ii) Beneficiary. If the Distributee is a Beneficiary of a
Participant, the required beginning date is the November 30 of
the calendar year in which occurs the fifth (5th) anniversary
of the Participant's death.
71
IN WITNESS WHEREOF, the Company has adopted this Plan as Amended Restated
Effective April 1, 2007, this 13th day of March, 2007.
NOKIA INC.
By: /s/ Linda Fonteneaux
---------------------------
72