401(K) PROFIT SHARING PLAN
OF
RAPIDFORMS, INC.
As Amended and Restated
Effective as of July 1, 1996
INTRODUCTION.................................................................................................... v
SECTION I. DEFINITIONS................................................................................... 1
1.1 "Account"..................................................................................... 1
1.2 "Affiliated Company".......................................................................... 1
1.3 "Amendment Effective Date".................................................................... 1
1.4 "Anniversary Date"............................................................................ 1
1.5 "Code"........................................................................................ 1
1.6 "Committee"................................................................................... 1
1.7 "Company"..................................................................................... 1
1.8 "Compensation"................................................................................ 1
1.9 "Effective Date".............................................................................. 2
1.10 "Elective Deferral Account"................................................................... 2
1.11 "Employee".................................................................................... 2
1.12 "ERISA"....................................................................................... 2
1.13 "Five Percent Owner".......................................................................... 2
1.14 "414(q)(7) Compensation"...................................................................... 2
1.15 "Fund"........................................................................................ 2
1.16 "Highly Compensated Employee"................................................................. 2
1.17 "Hour of Service"............................................................................. 4
1.18 "Investment Fund"............................................................................. 5
1.19 "Key Employee"................................................................................ 5
1.20 "Leased Employee"............................................................................. 5
1.21 "Limitation Year"............................................................................. 5
1.22 "Matching Contribution Account"............................................................... 5
1.23 "Member"...................................................................................... 5
1.24 "Non-Highly Compensated Employee"............................................................. 5
1.25 "Non-Key Employee"............................................................................ 5
1.26 "Normal Retirement Age"....................................................................... 6
1.27 "Participating Member"........................................................................ 6
1.28 "Plan"........................................................................................ 6
1.29 "Plan Year"................................................................................... 6
1.30 "Profit Sharing Account"...................................................................... 6
1.31 "QDRO"........................................................................................ 6
1.32 "Qualified Joint and Survivor Annuity"........................................................ 6
1.33 "Qualified Non-Elective Contribution Account"................................................. 6
1.34 "REA"......................................................................................... 6
1.35 "Rollover Account(s)"......................................................................... 6
1.36 "Sponsor"..................................................................................... 6
1.37 "Spouse"...................................................................................... 6
1.38 "TEFRA"....................................................................................... 6
1.39 "Total Disability"............................................................................ 6
1.40 "Trustee"..................................................................................... 7
SECTION II. PARTICIPATION AND SERVICE..................................................................... 7
2.1 Initial Eligibility........................................................................... 7
2.2 Break-in-Service.............................................................................. 7
i
2.3 Readmission After Termination of Employment................................................... 8
SECTION III. CONTRIBUTIONS................................................................................. 8
3.1 Amount of Contributions....................................................................... 8
3.2 Timining of Contributions..................................................................... 8
SECTION IV. CREDITS OF MEMBERS............................................................................ 8
4.1 Allocation of Company Contributions........................................................... 9
4.2 Eligibility................................................................................... 9
4.3 Participating Members......................................................................... 9
4.4 Allocation of Realized Gains, Losses and Expenses............................................. 9
4.5 Annual Additions Limitations.................................................................. 10
4.6 Allocation of Amounts in Excess of Section 415 Limitations.................................... 11
4.7 Annual Additions Limitations for Multiple Plans............................................... 12
4.8 Allocation Date............................................................................... 12
4.9 Valuation - Fund Assets....................................................................... 12
4.10 Valuation - Profit Sharing Account and Rollover Account(s).................................... 12
SECTION V. VESTING....................................................................................... 13
5.1 Profit Sharing Account, Matching Contribution Account, Qualified
Non-Elective Contribution Account, Elective Deferral Account and
Rollover Account(s)........................................................................... 13
SECTION VI. EMPLOYEE ELECTIVE CASH OR DEFERRED ARRANGEMENT................................................ 14
6.1 Definitions................................................................................... 14
6.2 Amount and Timing of Elective Deferrals....................................................... 16
6.3 Amount of Matching Contributions.............................................................. 17
6.4 Amount of Qualified Non-Elective Contributions................................................ 17
6.5 Amount of Voluntary Non-deductible Contributions.............................................. 17
6.6 Excess Elective Deferrals..................................................................... 17
6.7 Actual Deferral Percentage Test............................................................... 18
6.8 Average Contribution Percentage Test.......................................................... 20
6.9 Allocation and Valuation...................................................................... 23
6.10 Distribution (Normal and Hardship)............................................................ 23
SECTION VII. TOP HEAVY PLAN RULES.......................................................................... 25
7.1 General Rule.................................................................................. 25
7.2 Determination of Top Heavy Status............................................................. 25
7.3 Minimum Contribution.......................................................................... 27
7.4 Vesting....................................................................................... 28
SECTION VIII. INVESTMENT OF FUNDS........................................................................... 29
8.1 Vesting....................................................................................... 29
8.2 Investment Direction by Members............................................................... 29
8.3 Accounting Procedure.......................................................................... 29
8.4 Failure to Direct Investment.................................................................. 30
SECTION IX. DISTRIBUTION OF BENEFITS...................................................................... 30
ii
9.1 Distribution in General....................................................................... 30
9.2 Death or Disability........................................................................... 30
9.3 Valuation and Retirement Options.............................................................. 30
9.4 Form of Benefit............................................................................... 30
9.5 Termination of Employment Other Than Because of Death, Total
Disability or Retirement...................................................................... 36
9.6 Annual Fund Adjustments....................................................................... 39
9.7 Death Benefits................................................................................ 39
9.8 Designation of Beneficiary.................................................................... 39
9.9 Payment to Minors, etc........................................................................ 40
9.10 Commencement of Benefits...................................................................... 40
9.11 Loans to Members.............................................................................. 40
9.12 Nonalienation of Benefits..................................................................... 43
9.13 Receipt of Domestic Relations Order........................................................... 43
9.14 Qualified Spousal Consent..................................................................... 44
9.15 Direct Rollovers.............................................................................. 44
SECTION X. THE COMMITTEE................................................................................. 45
10.1 Appointment of Committee...................................................................... 45
10.2 Adoption of Rules............................................................................. 45
10.3 Delegation;Contracting for Services........................................................... 45
10.4 Construction of the Plan...................................................................... 46
10.5 Records....................................................................................... 46
10.6 Member's Access to the Committee.............................................................. 46
10.7 Designation of Plan Administrator; Power and Duties of the
Committee..................................................................................... 46
10.8 Review of Decisions of the Committee.......................................................... 46
10.9 Reporting and Disclosure...................................................................... 46
10.10 Indemnification............................................................................... 47
10.11 Service of Legal Process...................................................................... 47
SECTION XI. DISTRIBUTION OF BENEFITS...................................................................... 47
11.1 Distribution in General....................................................................... 47
11.2 Voluntary Termination......................................................................... 47
11.3 Liability of the Company...................................................................... 48
11.4 Plan and Trust Qualification.................................................................. 48
SECTION XII. MISCELLANEOUS................................................................................. 48
12.1 Plan Creates No Contract of Employment........................................................ 48
12.2 Exclusive Benefit of Funds.................................................................... 48
12.3 Transfer from Qualified Funds................................................................. 48
12.4 Severability of Provisions.................................................................... 49
12.5 Mergers and Consolidation of Plans............................................................ 49
12.6 Exclusive Benefit; Refund of Contributions.................................................... 50
12.7 Liquidation of the Company.................................................................... 50
12.8 Location of Member or Beneficiary Unknown..................................................... 50
12.9 Headings and Captions......................................................................... 50
iii
INTRODUCTION
------------
This Plan is to provide eligible Employees of RapidForms, Inc., and
Affiliated Companies who adopt the Plan, with deferred compensation.
This Plan was originally effective August 8, 1965 as the RapidForms,
Inc. Profit Sharing Plan. The RapidForms, Inc. Profit Sharing Plan is being
amended and restated effective July 1, 1996 due to (1) the merger of the
RapidForms, Inc. 401(k) Plan and the Russell & Miller, Inc. Profit Sharing Plan
into it and (2) the addition of a 401(k) salary reduction feature.
This Plan is a deferred compensation plan qualified under Section
401(a) of the Internal Revenue Code. It includes this Plan and the related Trust
Agreement.
All trust assets held under the Plan and Trust will be administered,
distributed, forfeited and otherwise governed by the provisions of this Plan and
the Trust Agreement. The Plan is administered by an administrative Committee for
the exclusive benefit of Members (and their beneficiaries).
iv
RAPIDFORMS, INC.
401(K) PROFIT SHARING PLAN
As Amended and Restated
Effective as of July 1, 1996
SECTION I. DEFINITIONS
1.1 "Account" shall mean the entire interest of a Member in the Plan. A
Member's Account will consist of the sum of the Profit Sharing Account, Rollover
Account(s), Elective Deferral Account, Matching Contribution Account and
Qualified Non-Elective Contribution Account.
1.2 "Affiliated Company" shall mean (a) any entity included with the
Company in a controlled group of corporations (as defined in Code Section
414(b)); (b) a trade or business (whether or not incorporated) which is under
common control (as defined in Code Section 414(c)); (c) any organization
(whether or not incorporated) in an affiliated service group (as defined in Code
Section 414(m)); and (d) any other entity required to be aggregated with the
Company pursuant to regulations under Code Section 414(o).
1.3 "Amendment Effective Date" shall mean July 1, 1996, the date when
this Restated Plan shall be effective.
1.4 "Anniversary Date" shall mean any January 1 after the Effective
Date.
1.5 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.6 "Committee" shall mean the administrative Committee appointed as
provided in Section IX.
1.7 "Company" shall mean RapidForms, Inc., a New Jersey corporation,
and any Affiliated Company, that with the approval of the board of directors of
the Sponsor, has joined the Plan by executing a declaration of joinder.
1.8 "Compensation" shall mean the first $150,000 of cash compensation
paid by the Company [or Affiliated Company] to a Member during the Plan Year,
including salary, wages, overtime pay, bonuses and commissions, excluding
reimbursements or other expense allowances, fringe benefits (cash and noncash),
moving expenses, deferred compensation and welfare benefits, but including any
amount contributed which qualifies as an "elective contribution" as defined in
Section 6.1 or amounts which are not includable in the gross income of the
Member under Code Section 125. Compensation shall not include contributions to
this or any other plan for the benefit of Employees, remuneration derived from
nonrecurring extraordinary items, or amounts attributable to service before
becoming a Member. Compensation shall be calculated only for the balance of the
Plan Year during which the Member participates. The limitation on Compensation
shall be adjusted to reflect cost-of-living increases provided in accordance
with Code Section 401(a)(17). Furthermore, for purposes of the limitation on
Compensation, the
"family member rule" as set forth in Section 1.16(c) of the Plan shall apply
in determining a Member's total Compensation. However, for purposes of this
Section, the term "family member" shall include only the Member's spouse and any
children who have not attained age 19 before the close of the Plan Year in
question. See Sections 1.16 and 1.19 for special testing definitions of
compensation.
1.9 "Effective Date" shall mean August 8, 1965, the date as of which
the Plan was effective.
1.10 "Elective Deferral Account" shall mean a Member's account
established pursuant to the provisions of Section 6.2.
1.11 "Employee" shall mean any individual employed by the Company or an
Affiliated Company, including any Leased Employees, but excluding any person who
is (i) an independent contractor, or (ii) a member of or otherwise included in a
collective bargaining unit which has negotiated with the Company in good faith
for retirement benefits.
1.12 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.13 "Five Percent Owner" shall mean any individual who owns (or is
considered as owning within the meaning of Code Section 318) more than 5% of the
outstanding stock of the Company or stock possessing more than 5% of the total
combined voting power of all stock of any Affiliated Company. Code Section 318
shall be applied for purposes of this section by substituting "5%" for "50%" in
Code Section 318(a)(2)(C). In determining percentage ownership hereunder,
employers that would otherwise be aggregated under Code Section 414(b), (c), and
(m) shall be treated as separate employers. In determining whether an Employee
is a Five Percent Owner of an entity which is not a corporation, Five Percent
Owner shall mean any individual who owns more than 5% of the capital or profits
interest in the entity.
1.14 "414(q)(7) Compensation" shall mean 415 Compensation as defined
below, but without excluding therefrom amounts not included in taxable income
because of Code Sections 125 (relating to cafeteria plans), 402(a)(8) (relating
to cash or deferred arrangements), 402(h) (relating to simplified employee
pensions), and Code Section 403(b) (relating to annuity contracts).
1.15 "Fund" shall mean all property held by the Trustee for purposes of
the Plan.
1.16 "Highly Compensated Employee" shall mean:
(a) each Employee who, with respect to the Company or an
Affiliated Company, performed services (an "Active Employee") during the Plan
Year for which a determination is being made (the "Determination Year") and who
during such Determination Year, or the preceding Determination Year,
(i) was at any time a Five Percent Owner;
2
(ii) received 414(q)(7) Compensation in excess of
$100,000 (adjusted to reflect any cost of living increases
provided in accordance with Code Section 415(d));
(iii) received 414(q)(7) Compensation in excess of
$66,000 (adjusted to reflect any cost of living increases
provided in accordance with Code Section 415(d)) and was in
the top 20% of Active Employees (based on 414(q)(7)
Compensation received) during such year; or
(iv) was an officer (as defined in Code Section
416(i) and the regulations issued thereunder) and received
414(q)(7) Compensation greater than 50% of the amount in
effect under Code Section 415(b)(1)(A) for any such Plan year
($120,000 for 1996 to be adjusted to reflect any cost of
living increases provided in accordance with Code Section
415(d)). If the Company does not have at least one officer
whose annual 414(q)(7) Compensation is in excess of 50% of the
amount in effect under Code Section 415(b)(1)(A) for any Plan
Year, then the highest paid officer of the Company will be
treated as a Highly Compensated Employee.
Notwithstanding the foregoing, the provisions of paragraph (ii), (iii) or (iv)
above shall not cause an Employee to be treated as a Highly Compensated Employee
for the Determination Year of reference unless such Employee is one of the top
100 Active Employees (based on 414(q)(7) Compensation received) during such
Determination Year and was a Highly Compensated Employee in accordance with the
provisions of paragraph (ii), (iii) or (iv) above for the preceding
Determination Year (without regard to this sentence).
The term "Highly Compensated Employee" includes a Highly Compensated
Former Employee.
(b) A Highly Compensated Former Employee shall mean any
Employee who separated from service (or was deemed to have separated) prior to
the Determination Year, performs no service for the Company during the
Determination Year and was an active Highly Compensated Employee for either the
separation year or any Determination Year ending on or after the Employee's 55th
birthday.
(c) Family Member Rule - If an Employee is a "family member"
of either (1) a Five Percent Owner or (2) one of the top ten Highly Compensated
Employees based on 414(q)(7) Compensation, then any compensation paid to the
"family member" and any contributions made under the Plan for the "family
member" are aggregated with the compensation paid and contributions made for the
Highly Compensated Employee. An individual is a "family member" with respect to
a Member if he is a spouse, lineal ascendant or descendant or the spouse of a
lineal ascendant or descendant.
(d) The determination of Highly Compensated Employee made
pursuant to this Section shall be made in accordance with Code Section 414(q)
and the regulations issued thereunder.
3
1.17 "Hour of Service" shall mean:
(a) Each hour for which an Employee is paid or entitled to
payment, for the performance of duties for the Company during the applicable
computation period.
(b) Each hour for which an Employee is paid, or entitled to
payment, by the Company on account of a period of time during which no duties
are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including disability)
layoff, jury duty, military duty or leave of absence, provided that an
individual shall be credited with no more than 501 hours of service on account
of any single continuous period during which the Employee performs no duties
(whether or not such period occurs in a single computation period). For purposes
of this subparagraph (b), a payment shall be deemed to be made by or due from
the Company regardless of whether such payment is made by or due from the
Company directly, or indirectly through, among others, a trust fund, or insurer
to which the Company contributes or pays premiums and regardless of whether
contributions made or due to the trust fund, insurer or other entity are for the
benefit of particular Employees or are on behalf of a group of Employees in the
aggregate.
(c) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by the Company. The same hours of
service shall not be credited both under subparagraph (a) or subparagraph (b),
as the case may be, and under this subparagraph. Crediting of hours of service
for back pay awarded or agreed to with respect to periods described in
subparagraph (b) shall be subject to the limitations set forth in that
subparagraph.
(d) For purposes of determining hours of service for reasons
other than the performance of duties and for crediting of hours of service to
computation periods, the rules of DOL Reg. Secs. 2530.200b-2(b) and (c) are
hereby specifically incorporated by reference.
Hours of Service shall also be credited for employment with Affiliated
Companies.
Solely for the purpose of determining whether a One Year
Break-in-Service has occurred, Hours of Service shall be credited for "maternity
and paternity leaves of absence". A "maternity or paternity leave of absence"
shall mean an absence from work for any period by reason of the pregnancy of the
Member, birth of a child of the Member, placement of a child with the Member in
connection with the adoption of such child by such Member, or for purposes of
caring for such child for a period beginning immediately following such birth or
placement. For purposes of this paragraph, Hours of Service shall be credited
for the computation period in which the absence from work begins, only if a
credit therefor is necessary to prevent the Member from incurring a One Year
Break-in-Service, or in any other case, in the immediately following computation
period. The Hours of Service credited for a "maternity or paternity leave of
absence" shall be those which would normally have been credited but for such
absence, or, in any case in which the Committee is unable to determine such
hours normally credited, eight Hours of Service per day. The total Hours of
Service required to be credited for a "maternity or paternity leave of absence"
shall not exceed 501.
4
1.18 "Investment Fund" shall mean all property, except contracts, held
by the Trustee for the purpose of the Plan.
1.19 "Key Employee" means any Employee or former Employee (and his
beneficiaries) who, at any time during the Plan Year ending on the Determination
Date (the last day of the preceding Plan Year, the last of the first Plan Year,
or such other date as defined in Treasury Regulations) or any of the preceding
four Plan Years, is:
(a) an officer of the Company or Affiliated Company (as the
term officer is defined within the meaning of the regulations under Code Section
416), having an annual 414(q)(7) Compensation greater than 50% of the amount in
effect under Code Section 415(b)(1)(A) for any such Plan year ($120,000 for 1996
to be adjusted to reflect any cost of living increases provided in accordance
with Code Section 415(d)), provided that no more than 50 Employees, or if lesser
the greater of 3 or 10% of the Employees, shall be treated as officers;
(b) one of the ten Employees owning (or considered as owning
within the meaning of Code Section 318) the largest interests in the Company or
an Affiliated Company required to be aggregated under Code Sections 414(b), (c),
(m) and (o) and having annual 414(q)(7) Compensation for the Plan year of more
than the dollar amount set forth in Section 4.5(a) applicable to the Plan year;
provided that if two Employees have the same ownership interest in such
employers, the Employee having the greater amount of compensation from the
employers shall be treated as having the larger interest;
(c) a "Five Percent Owner" of the Company or Affiliated
Company.
(d) a "one percent owner" of the Company or Affiliated Company
having an annual 414(q)(7) Compensation of more than $150,000 and who would be a
Five Percent Owner if 1% were substituted for 5% in the definition of Five
Percent Owner.
1.20 "Leased Employee" shall mean a person described in Code Section
414(n)(2). This Plan shall not cover any Leased Employee.
1.21 "Limitation Year" shall mean the Plan Year for purposes of Section
IV.
1.22 "Matching Contribution Account" shall mean a Member's account
established pursuant to the provisions of Section 6.3.
1.23 "Member" shall mean any Employee employed by the Company who meets
the eligibility requirements of Section 2.1, has become a Member of the Plan
pursuant to Section 2.1 and is employed by the Company on the appropriate entry
date pursuant to Section 2.1.
1.24 "Non-Highly Compensated Employee" shall mean an Employee who is
not a Highly Compensated Employee.
1.25 "Non-Key Employee" shall mean any Employee who is not a Key
Employee.
5
1.26 "Normal Retirement Age" shall be age 65.
1.27 "Participating Member" shall mean any Member who meets the
requirements of Section 4.3.
1.28 "Plan" shall mean the 401(k) Profit Sharing Plan of the Company as
set forth herein.
1.29 "Plan Year" shall mean a fiscal year ending on December 31 of any
year.
1.30 "Profit Sharing Account" shall mean a Member's account
attributable to Company contributions under this Plan plus earnings, accretions,
or forfeitures less any loss properly allocated to such Profit Sharing Account.
1.31 "QDRO" shall mean a "qualified domestic relations order" within
the meaning of Section 206(d)(3)(B) of ERISA.
1.32 "Qualified Joint and Survivor Annuity" shall mean an immediate
annuity for the life of the Member, with a benefit payable after the death of
the Member to the surviving Spouse of the Member for the life of such surviving
Spouse, where the periodic benefit payable to such surviving Spouse is not less
than 50% nor more than 100% of the periodic benefit payable to the Member during
his lifetime, and which is the amount of benefit which can be purchased with the
Member's vested Account. Unless otherwise specified in the Plan, any reference
to a Qualified Joint and Survivor Annuity in the Plan shall be a reference to
such an annuity providing a surviving Spouse's benefit of 50% of the benefit
that would have been (or was) payable to the Member during his lifetime.
1.33 "Qualified Non-Elective Contribution Account" shall mean a
Member's account established pursuant to the provisions of Section 6.4.
1.34 "REA" shall mean the Retirement Equity Act of 1984.
1.35 "Rollover Account(s)" shall mean a Member's account established
pursuant to the provisions of Section 11.3.
1.36 "Sponsor" shall mean RapidForms, Inc., a New Jersey corporation.
1.37 "Spouse" shall mean the person to whom the Member was married on
the earlier of his benefit commencement date or his date of death. However,
Spouse shall instead refer to a former spouse to the extent provided under a
QDRO.
1.38 "TEFRA" shall mean the Tax Equity and Fiscal Responsibility Act of
1982.
1.39 "Total Disability" shall mean disability of an apparently
permanent nature based on medical certification which prevents the Employee from
performing the principal duties of his regular occupation with the Company. The
Committee may require physical examinations by its medical representative at
reasonable intervals during the continuance
6
of the disability, and the decision of the Committee regarding the extent of the
disability shall be final.
1.40 "Trustee" shall mean the Trustee or Trustees duly designated by
the board of directors of the Sponsor from time to time pursuant to the terms of
a Trust Agreement ("Trust Agreement").
Terms stated in the masculine or feminine gender shall be construed as
applying in the opposite gender as appropriate in the context or circumstances.
Terms stated in the singular or plural shall be deemed the opposite as
appropriate in the context or circumstances.
SECTION II. PARTICIPATION AND SERVICE
2.1 Initial Eligibility. For purposes of Section 3.1, each Employee
hired prior to August 1, 1996 who has completed a Year of Service during a Plan
Year shall become a Member as of the first day of such Plan Year. For purposes
of eligibility to make Elective Deferrals under Article VI, each employee hired
prior to August 1, 1996 who has completed a Year of Service during a Plan Year
shall become a Member as of the next January 1 or July 1 after the Employee has
completed a Year of Service, provided that the Employee is employed by the
Company on such entry date. Each Employee hired on or after August 1, 1996 who
has completed a Period of Service shall become a Member of the Plan as of the
earlier of the next January 1 or July 1 after the Employee has completed a
Period of Service, provided that the Employee is employed by the Company on such
entry date. Employees of Affiliated Companies which have not adopted the Plan
shall not become Members.
For purposes of this Section 2.1, (a) "Year of Service" shall mean a
computation period of twelve consecutive months of service as an Employee during
which the Employee is credited with at least 1,000 Hours of Service, and (b)
"Period of Service" shall mean a computation period of six consecutive months of
service as an Employee during which the Employee is credited with at least 500
Hours of Service. The initial computation period shall begin with the date on
which the Employee first performs an Hour of Service for the Company, any
Affiliated Company, or any predecessor corporate employer, partnership or sole
proprietorship whether as an Employee, partner or sole proprietor. Subsequent
computation periods will be measured from the end of the immediately preceding
computation period.
2.2 Break-in-Service. A "One Year Break-in-Service" shall occur when a
Member fails to be credited with more than 500 Hours of Service in any Plan
Year. However, a One Year Break-in-Service shall not occur if the Member failed
to be credited with more than 500 Hours of Service because of:
(a) absence for military service under leave granted
by the Company or when required by law, provided the absent Employee
returns to employment with the Company within 90 days of his release
from active military duty or any longer period during which his right
to re-employment is protected by law, or
7
(b) an authorized leave of absence for no longer than
two years, for personal hardship or other unusual circumstances.
Except in the event of an earlier forfeiture under Section 8.5, a
Member shall continue as such until such time as the Member has completed five
consecutive One Year Breaks-in-Service and is not employed by the Company on the
last day of the Plan Year in which occurs the fifth (or later) consecutive One
Year Break-in-Service. Any Employee who has ceased to be a Member under the
preceding sentence shall again become a Member of the Plan as of his date of
re-employment and a Participating Member of the Plan as of the first day of the
Plan Year in which he satisfies the requirements of Section 4.3.
A Member who has completed five consecutive One Year Breaks-in-Service
and is not employed by the Company on the last day of the Plan Year in which
falls the fifth (or later) consecutive One Year Break-in-Service shall forfeit
that portion of the balance in his Profit Sharing Account, determined as of the
beginning of the Plan Year in question, which is not vested as of the end of the
Plan Year during which the fifth (or later) consecutive One Year
Break-in-Service occurs. Thereafter, such a Member will have a 100% vested
interest in the nonforfeited balance and all earnings attributed to this
balance. An earlier forfeiture may occur pursuant to Section 8.5.
Furthermore, in the case of a terminated Member whose vested benefit is
zero, such Member shall be treated as having received a distribution of his
vested benefit upon his termination of employment pursuant to Section 8.5.
Restoration of such amounts shall occur, if need be, pursuant to Section 8.5.
2.3 Readmission After Termination of Employment. A Member of the Plan
who terminates employment and who subsequently is reemployed shall again become
a Member of the Plan as though his employment had been uninterrupted.
SECTION III. CONTRIBUTIONS
3.1 Amount of Contributions. The Company and each Affiliated Company
will contribute annually to the Fund in respect of each Plan Year such amount,
if any, as may be determined by their respective boards of directors, regardless
of whether the Company or the Affiliated Companies have any current or
accumulated profits. The amount of contributions made by each employer shall not
exceed the amount deductible under Code Section 404(a).
3.2 Timing of Contributions. Contributions under Section 3.1 will be
made not later than the time prescribed by law (including any extensions
thereof) for filing the contributing Company's federal income tax return for the
Plan Year for which they are made.
8
SECTION IV. CREDITS OF MEMBERS
4.1 Allocation of Company Contributions. Subject to the provisions of
Section 4.5, the Company's contribution for any Plan Year shall be allocated to
the Profit Sharing Account of each Participating Member in accordance with the
following:
(a) First, the Company's contribution for each Plan Year shall
be allocated to the Profit Sharing Accounts of Participating Members in the
ratio that the sum of each Participating Member's total Compensation plus
"excess compensation" bears to the sum of the total Compensation plus "excess
compensation" of all Participating Members. The amount allocated pursuant to
this paragraph (a) shall not exceed 5.7% of the sum of the total Compensation
plus "excess compensation" of all Participating Members.
(b) Second, that part of the Company's contribution for the
year which exceeds the part of the contribution allocated under paragraph (a)
shall be allocated to the Profit Sharing Accounts of all Participating Members
according to the ratio that each such Participating Member's compensation for
the year bears to the total Compensation of all Participating Members for the
year.
(c) For purposes of this provision "excess compensation" of a
Member shall mean his Compensation in excess of the Social Security Taxable Wage
Base in effect on the first day of the Plan year.
4.2 Eligibility. Before making the allocation pursuant to Section 4.1
above, any amounts released from the Accounts of former Members as forfeitures
shall be credited in the following order: (1) against the expenses of the Plan
and (2) to Participating Member's Profit Sharing Accounts in the same ratio as
the amount of each such Participating Member's Compensation during the Plan Year
bears to all such Participating Members' Compensation during the Plan Year.
4.3 Participating Members. Allocations under Sections 4.1 and 4.2 shall
be made only to Members who are Participating Members for the Plan Year. The
following Members shall be Participating Members for the Plan Year:
(a) Any Member who is credited with 1,000 or more Hours of
Service during a Plan Year and who is employed by the Company on the last day of
the Plan Year; and
(b) A Member (irrespective of the number of Hours of Service
with which he is credited), if his employment was terminated prior to such Plan
Year end if the reason for such termination was because of his retirement, death
or Total Disability.
4.4 Allocation of Realized Gains, Losses and Expenses. As of the last
day of each Plan Year for those Members and former Members who will have a
balance in their Profit Sharing Account and/or Rollover Account(s) on such last
day, all realized net income, net losses and expenses of the Fund for the Plan
Year shall be credited or charged to such Profit Sharing Accounts and/or
Rollover Account(s) in direct proportion to the respective balances (determined
pursuant to Section 4.9) of each as of the first day of the Plan Year
9
in question, except that during the first Plan Year credits under Section 4.1
for the first Plan Year shall be considered.
4.5 Annual Additions Limitations. Notwithstanding anything to the
contrary contained in this Section IV, the maximum Annual Addition to any
Member's Account for any Limitation Year shall in no event exceed the lesser of:
(a) $30,000.00, or, if greater, one-fourth of the defined
benefit dollar limitation set forth in Code section 415(b)(1) as in effect for
the Limitation Year, or
(b) 25% of the Member's 415 Compensation for the Limitation
Year in question.
If a short Limitation Year is created because of an amendment changing
the Limitation Year to a different twelve consecutive month period, the maximum
permissible amount will not exceed the amount in subparagraph (a) above
multiplied by the following fraction:
Number of months in the short Limitation Year
---------------------------------------------
12
The term "Annual Addition" shall mean: (1) the Company's contribution
for the Member, (2) forfeitures allocated to the Member's Profit Sharing
Account, plus (3) amounts described in Code Sections 415(l)(1) and 419A(d)(2).
The term "415 Compensation" shall mean a Member's remuneration
including wages, salaries, fees for professional services and other amounts
received (without regard to whether an amount is paid in cash) for personal
services actually rendered in the course of employment with a Company
maintaining the Plan to the extent that the amounts are includable in gross
income (including, but not limited to, commissions paid salesmen, compensation
for services on the basis of profits, commissions on insurance premiums, tips,
bonuses, fringe benefits, reimbursements and expense allowances), and excluding
the following:
(a) contributions made by the Company to a deferred
compensation plan which, without regard to Code Section 415, are not includable
in the Member's gross income for the taxable year in which contributed;
(b) Company contributions made on behalf of a Member to a
simplified employee pension to the extent they are deductible by the Member
under Code Section 219(b)(7);
(c) distributions from a deferred compensation plan (except
from an unfunded non-qualified plan when includable in gross income);
(d) amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property) held by a Member either
becomes freely transferable or is no longer subject to a substantial risk of
forfeiture;
10
(e) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; or
(f) other amounts which receive special tax benefits, such as
premiums for group term life insurance (to the extent excludable from gross
income) or Company contributions towards the purchase of an annuity contract
described in Code Section 403(b).
The compensation limitation referred to in paragraph (b) above shall
not apply to any contribution for medical benefits (within the meaning of Code
Section 419A(f)(2)) after separation from service which is otherwise treated as
an Annual Addition or any amount otherwise treated as an Annual Addition under
Code Section 415(l)(1).
Contributions made to the Trust pursuant to Section 11.3 shall not be
treated as Annual Additions.
If, in addition to this Plan, the Company maintains one or more other
qualified defined contribution plans as defined by ERISA and the Code, the above
limitation on Annual Additions to a Member's Account shall be applied to the
maximum Annual Addition (as defined above and in the other such Plan or Plans)
made to both Plans in the Limitation Year in question.
4.6 Allocation of Amounts in Excess of Section 415 Limitations. An
allocation may not be made to a Member's Profit Sharing Account in any Plan Year
if it will exceed the limits set forth in Section 4.5. However, if as a result
of the allocation of forfeitures, a reasonable error in estimating a Member's
Compensation, or other limited facts and circumstances which the Commissioner of
the Internal Revenue Service finds justify the availability of the rules set
forth in this Section 4.6, then such allocation would (if made) exceed such
limitations, the following steps must be taken:
(a) Any elective deferrals made by the Participating Member
for the Limitation Year (whether to this Plan or another defined contribution
plan maintained by the Company) causing the excess shall be distributed
immediately to the Participating Member pursuant to Section 6.6.
(b) If after returning any such contributions or deferrals to
the Participating Member as provided in paragraph (a) an excess would still
exist, and if the excess is a result of forfeitures which were available for
allocation pursuant to Section 4.2, the excess amount shall be reallocated to
all the other Participating Members in the ratio of each such Participating
Member's Compensation for the Plan Year to the total Compensation of all
Participating Members sharing the reallocation.
(c) If after complying with the provisions in paragraphs (a)
and (b) an excess would still exist, then such excess shall remain unallocated
and be held in a non-interest bearing suspense account. Amounts held in such
suspense account will be allocated in subsequent Limitation Years in accordance
with Section 4.2 until the suspense account is exhausted. No additional Company
contributions shall be made until the
11
suspense account is exhausted. In no event shall any excess amounts that are
held in such suspense account be distributed to a Member or Former Member.
For purposes of this Section, the term "excess amount" for the
Company's contribution shall be the difference between the credit due the Member
under Section 4.1 less the limitation amount of the Company's contribution for
the Member determined under Section 4.5.
4.7 Annual Additions Limitations for Multiple Plans.
(a) If the Company maintains a qualified Money Purchase
Pension Plan and in any Plan Year the Company's contribution to the Money
Purchase Pension Plan will when added to the Company's planned Profit Sharing
Plan contribution exceed the applicable limitation of Section 4.5, then the
Company's contribution to this Plan will be reduced to zero if necessary to
bring the combined contributions within the limitations prescribed by Section
4.5 before the Company will reduce its contribution under the Money Purchase
Pension Plan.
(b) The Company and all Affiliated Companies shall be
considered a single employer for purposes of applying the limitation of Code
Section 415.
4.8 Allocation Date. Credits under Sections 4.1, 4.2 and 4.4, shall be
deemed to have been made on the same date to which they are related although
actually determined on some later date.
4.9 Valuation - Fund Assets. The Trustee shall ascertain and certify to
the Committee the fair market value of the Fund as of the last day of the Plan
Year. In addition, when requested by the Committee, the Trustee shall within
fifteen (15) days after the last day of that month ascertain and certify to the
Committee, the fair market value of the Fund as of the date requested by the
Committee, provided, however, to the extent that the Fund is invested in a
common Trust Fund of a corporate Trustee, such interests shall be valued as of
the last quarterly valuation date thereof, in the valuation of the Fund. Such
determination of value so made shall, for all purposes of the Plan, conclusively
establish such value. As of the last day of each Plan Year, the balance in each
Member's Profit Sharing Account and Rollover Account(s) shall be adjusted to
reflect the fair market value of the Fund as of such last day by allocating the
value to each Account less transfers made pursuant to Section 11.3 during the
last month of the Plan Year in direct proportion to the respective balances in
each Account determined pursuant to this Section 4.9 as of the end of the last
Plan Year plus the (1) credits and charges under Sections 4.1, 4.2 and 4.4, and
(2) transfers during the first eleven months for the Plan Year in question.
Transfers made pursuant to Section 11.3 during the last month of any Plan Year
will be allocated directly to the Member's Rollover Account(s) on a dollar for
dollar basis.
4.10 Valuation - Profit Sharing Account and Rollover Account(s). For
purposes of distribution to Members or their beneficiaries under Section VIII,
the value of the Profit Sharing Account and Rollover Account(s) for each Plan
Year shall be the respective balance in the Member's Profit Sharing Account and
Rollover Account(s) as of the
12
valuation date following his death, Total Disability, retirement at Normal
Retirement Date or other termination of employment, determined pursuant to
Section 4.9.
SECTION V. VESTING
5.1 Profit Sharing Account, Matching Contribution Account, Qualified
Non-Elective Contribution Account, Elective Deferral Account and Rollover
Account(s). A Member shall have at all times a nonforfeitable interest in his
Qualified Non-Elective Contribution Account, Elective Deferral Account and
Rollover Account(s). Each Member shall have a vested interest in his Profit
Sharing Account and Matching Contribution Accounts determined as of the end of a
Plan Year on the basis of Section 4.9, based upon Years of Service determined as
follows:
Years of Service Percent Vested
---------------- --------------
less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
A member who was employed by CSS Industries, Inc. and had three Years
of Service on December 29, 1989 under the CSS Industries, Inc. Profit Sharing
Plan shall have the following vested interest in the amount credited to his
Profit Sharing Account:
Years of Service Percent Vested
---------------- --------------
less than 3 0%
3 40%
4 60%
5 80%
6 or more 100%
For purposes of this Section 5.1, "Year of Service" shall mean any Plan
Year in which the Employee completes 1,000 Hours of Service.
A Member who was a participant in the RapidForms, Inc. Profit Sharing
Plan who had attained age 60 and had five Years of Service in the RapidForms,
Inc. Profit Sharing Plan as of July 1, 1996, shall have a 100% vested interest
in his Profit Sharing Account. In addition, as of July 1, 1996, a Participant
shall have the greater of the Years of Service calculated under the RapidForms,
Inc. 401(k) Plan or the RapidForms, Inc. Profit Sharing Plan.
A Member who has less than a 100% vested interest in his Profit Sharing
and Matching Accounts pursuant to the applicable above schedule shall
nonetheless be deemed to have a 100% vested interest upon the happening of the
following events:
13
(a) Death prior to termination of his employment by the
Company.
(b) Normal retirement or retirement due to Total Disability.
Any discharge or voluntary termination of employment of a Member who has reached
Normal Retirement Age shall be deemed at retirement.
SECTION VI. EMPLOYEE ELECTIVE CASH OR DEFERRED ARRANGEMENT
6.1 Definitions. The following definitions shall apply for purposes of
this Section VI:
(a) Actual Deferral Percentage ("ADP"): For a specified group
of Members for a Plan Year, the average of the ratios (calculated separately for
each Member in such group) of (i) the amount of Company Contributions actually
paid over to the trust on behalf of such Member for the Plan Year to (ii) the
Member's Compensation for such Plan Year (whether or not the Employee was a
Member for the entire Plan Year). For purposes of computing the Actual Deferral
Percentages, an Employee who would be a Member but for failure to make Elective
Deferrals shall be treated as a Member on whose behalf no Elective Deferrals are
made.
(b) Aggregate Limit: The sum of:
(i) 125% of the greater of the ADP of the Non-Highly
Compensated Employees for the Plan Year or the ACP of
Non-Highly Compensated Employees under the Plan subject to
Code Section 401(m) for the Plan Year beginning with or within
the Plan Year of the CODA; and
(ii) the lesser of 200% or 2 plus the lesser of such
ADP or ACP.
(c) Average Contribution Percentage ("ACP"): The average of
the Contribution Percentages of the Eligible Members in a group. An Eligible
Member is any Member of the Plan who is eligible to receive a Matching
Contribution.
(d) CODA: A cash or deferred arrangement as described under
Code Section 401(k) and the regulations thereunder.
(e) Company Contributions: Company Contributions on behalf of
any Member shall include:
(i) any Elective Deferrals made pursuant to the
Member's deferral election, including Excess Elective
Deferrals, but excluding Excess Elective Deferrals that are
taken into account in the Average Contribution Percentage test
(provided the ADP test is satisfied both with and without
exclusion of these Elective Deferrals); and
14
(ii) Matching Contributions and Qualified
Non-Elective Contributions.
(f) Contribution Percentage: The ratio (expressed as a
percentage) of the Member's Contribution Percentage Amounts to the Member's
Compensation for the Plan Year (whether or not the Employee was a Member for the
entire Plan Year).
(g) Contribution Percentage Amounts: Matching Contributions
(to the extent not taken into account for purposes of the ADP test) made under
the Plan on behalf of the Member for the Plan Year. Such Contribution Percentage
Amounts shall include forfeitures of Excess Aggregate Contributions or Matching
Contributions allocated to the Member's accounts which shall be taken into
account in the year in which such forfeiture is allocated. Qualified
Non-Elective Contributions shall be included in the Contribution Percentage
Amounts. The Company also may elect to use Elective Deferrals in the
Contribution Percentage Amounts so long as the ADP test is met before the
Elective Deferrals are used in the ACP test and continues to be met following
the exclusion of those Elective Deferrals that are used to meet the ACP test.
(h) Elective Deferrals: Any Company Contributions made to the
Plan at the election of the Member, in lieu of cash compensation, and including
contributions made pursuant to a salary reduction agreement or other deferral
mechanism and allocated to a Member's Elective Deferral Account.
(i) Elective Deferral Account: A Member's account attributable
to such Member's Elective Deferrals under this Plan.
(j) Excess Aggregate Contributions: With respect to any Plan
Year, the excess of:
(i) the aggregate Contribution Percentage Amounts
taken into account in computing the numerator of the
Contribution Percentage actually made on behalf of Highly
Compensated Employees for such Plan Year, over
(ii) the maximum Contribution Percentage Amounts
permitted by the ACP test (determined by reducing
contributions made on behalf of Highly Compensated Employees
in order of their Contribution Percentages beginning with the
highest of such percentages).
(k) Excess Contributions: With respect to any Plan Year, the
excess of:
(i) the aggregate amount of Company Contributions
actually taken into account in computing the ADP of Highly
Compensated Employees for such Plan Year, over
(ii) the maximum amount of such contributions
permitted by the ADP test (determined by reducing
contributions made on
15
behalf of Highly Compensated Employees in order of the ADPs,
beginning with the highest of such percentages).
(l) Excess Elective Deferrals: Those Elective Deferrals that
are includible in an Employee's gross income under Code Section 402(g) to the
extent such Employee's Elective Deferrals for a taxable year exceed the dollar
limitation under such Code Section. Excess Elective Deferrals shall be treated
as Annual Additions under the Plan.
(m) Matching Contributions: Company Contributions made to this
Plan on behalf of a Member on account of a Member's Elective Deferral, under a
plan maintained by the Company and allocated to a Member's Matching Contribution
Account.
(n) Matching Contribution Account: A Member's account
attributable to such Member's Matching Contributions under this Plan.
(o) Qualified Non-Elective Contributions: Contributions (other
than Matching Contributions) made by the Company and allocated to Member's
Qualified Non-Elective Contribution Account that the Members may not elect to
receive in cash until distributed from the Plan; that are nonforfeitable when
made; and that are distributable only in accordance with the distribution
provisions that are applicable to Elective Deferrals.
(p) Qualified Non-Elective Contribution Account: shall mean a
Member's account attributable to such Member's Qualified Non-Elective
Contributions under this Plan.
6.2 Amount and Timing of Elective Deferrals. Each Participating Member
shall be eligible to have Elective Deferrals made on his behalf. Each
Participating Member may elect to enter into a written salary reduction
agreement with the Company which provides that the Member agrees to accept a
reduction in salary (in an amount specified by the Participating Member) from
the Company and that the Company will make a contribution to his Elective
Deferral Account in an amount equal to the amount by which the Participating
Member's salary was reduced pursuant to the salary reduction agreement. The
maximum reduction in salary that a Participating Member may elect shall not
exceed 15% of his Compensation. No contributions or benefits (other than
Matching Contributions) shall be conditioned upon a Participating Member's
Elective Deferrals. Elective Deferrals made by a Participating Member shall be
subject to the limitations set forth in Section 6.7.
(a) A Participating Member shall be afforded a reasonable
period at least twice each calendar year, during which he may elect to commence
Elective Deferrals. Such election may not be made retroactively. A Participating
Member's election to commence Elective Deferrals will remain in effect until
modified or terminated.
(b) A Participating Member may elect to increase the amount or
frequency of his Elective Deferrals on the first day of each month.
(c) A Participating Member may elect to decrease or terminate
an election at any time.
16
6.3 Amount of Matching Contributions. The Company will make Matching
Contributions on behalf of all Members who make Elective Deferrals. The amount
of such Matching Contributions shall be determined each year by the Company and
allocated pro rata according to a Member's Elective Deferrals not in excess of a
Company-specified percentage of his Compensation.
(a) Matching Contributions are subject to the limitations set
forth in Section 6.9. Matching Contributions shall be vested in accordance with
Section 5.1.
(b) Forfeitures of Matching Contributions, other than Excess
Aggregate Contributions, shall be made in accordance with Section 4.2.
6.4 Amount of Qualified Non-Elective Contributions. The Company will
make Qualified Non-Elective Contributions to the Plan on behalf of all Members.
The amount of such Qualified Non-Elective Contributions shall be an amount
necessary to satisfy the Actual Deferral Percentage test, Average Contribution
Percentage test, or both. In addition, in lieu of distributing Excess
Contributions as provided in Section 6.7(h), or Excess Aggregate Contributions
as provided in Section 6.8(i) of the Plan, the Company may make Qualified
Non-Elective Contributions on behalf of Non-Highly Compensated Employees that
are sufficient to satisfy either the Actual Deferral Percentage test or the
Average Contribution Percentage test, or both, pursuant to regulations under the
Code.
6.5 Amount of Voluntary Non-deductible Contributions. No Member shall
be permitted to make contributions to the Fund.
6.6 Excess Elective Deferrals. No Member shall be permitted to have
Elective Deferrals made under this Plan, or any other qualified Plan maintained
by the Company, during any taxable year, in excess of the dollar limitation
contained in Code Section 402(g) in effect at the beginning of such taxable
year.
(a) A Member may assign to this Plan any Excess Elective
Deferrals made during a taxable year of the Member by notifying the Committee on
or before January 31 of the subsequent taxable year of the amount of the Excess
Elective Deferrals to be assigned to the Plan.
(b) Notwithstanding any other provision of the Plan, Excess
Elective Deferrals, plus any income and minus any loss allocable thereto, shall
be distributed no later than April 15 to any Member to whose Elective Deferral
Account Excess Elective Deferrals were assigned for the preceding year and who
claims Excess Elective Deferrals for such taxable year.
(c) Excess Elective Deferrals shall be adjusted for any income
or loss up to the date of distribution. The income or loss allocable to Excess
Elective Deferrals is the sum of:
(i) income or loss allocable to the Member's Elective
Deferral Account for the taxable year multiplied by a
fraction, the numerator of which is such Member's Excess
Elective Deferrals for
17
the year and the denominator is the Member's Elective
Deferral Account balance without regard to any income or loss
occurring during such taxable year; and
(ii) 10% of the amount determined under (i)
multiplied by the number of whole calendar months between the
end of the Member's taxable year and the date of distribution,
counting the month of distribution if the distribution occurs
after the 15th of such month.
6.7 Actual Deferral Percentage Test.
(a) The Actual Deferral Percentage for Members who are Highly
Compensated Employees for each Plan Year and the ADP for Members who are
Non-Highly Compensated Employees for the same Plan Year must satisfy one of the
following tests:
(i) The ADP for Members who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP for
Members who are Non-Highly Compensated Employees for the same
Plan Year multiplied by 1.25; or
(ii) The ADP for Members who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP for
Members who are Non-Highly Compensated Employees for the same
Plan Year multiplied by 2.0, provided that the ADP for Members
who are Highly Compensated Employees does not exceed the ADP
for Members who are Non-Highly Compensated Employees by more
than 2 percentage points.
(b) The ADP for any Member who is a Highly Compensated
Employee for the Plan Year and who is eligible to have Elective Deferrals (and
Qualified Non-Elective Contributions if treated as Elective Deferrals for
purposes of the ADP test) allocated to his accounts under 2 or more arrangements
described in Code Section 401(k), that are maintained by the Company, shall be
determined as if such Elective Deferrals (and, if applicable, such Qualified
Non-Elective Contributions) were made under a single arrangement. If a Highly
Compensated Employee participates in 2 or more cash or deferred arrangements
that have different Plan Years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single arrangement.
(c) In the event that this Plan satisfies the requirements of
Code Sections 401(k), 401(a)(4), or 410(b) only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such Code
Sections only if aggregated with this Plan, then this Section shall be applied
by determining the ADP of Members as if all such plans were a single plan. Plans
may be aggregated in order to satisfy Code Section 401(k) only if they have the
same Plan Year.
(d) For purposes of determining the ADP of a Member who is 5%
Owner or one of the 10 most highly-paid Highly Compensated Employees, the
Elective Deferrals
18
(and Qualified Non-Elective Contributions if treated as Elective Deferrals for
purposes of the ADP test) and Compensation of such or Qualified Matching
Contributions, or both, if treated as Elective Deferrals for purposes of Member
shall include the Elective Deferrals (and, if applicable, Qualified Non-Elective
Contributions) and Compensation for the Plan Year of family members (as defined
in Code Section 414(q)(6)). Family members, with respect to such Highly
Compensated Employees, shall be disregarded as separate Members in determining
the ADP both for Members who are Non-Highly Compensated Employees and for
Members who are Highly Compensated Employees.
(e) For purposes of determining the ADP test, Elective
Deferrals and Qualified Non-Elective Contributions must be made before the last
day of the twelve-month period immediately following the Plan Year to which
contributions relate.
(f) The Company shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the amount of Qualified
Non-Elective Contribution, used in such test.
(g) The determination and treatment of the ADP amounts of any
Member shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
(h) Notwithstanding any other provision of this Plan, Excess
Contributions, plus any income and minus any loss allocable thereto, shall be
distributed no later than the last day of each Plan Year to Members to whose
accounts such Excess Con tributions were allocated for the preceding Plan Year.
If such excess amounts are distributed more than 2 1/2 months after the last day
of the Plan Year in which such excess amounts arose, a 10% excise tax will be
imposed on the Company maintaining the Plan with respect to such amounts. Such
distributions shall be made to Highly Compensated Employees on the basis of the
respective portions of the Excess Contributions attributable to each of such
Employees. Excess Contributions shall be allocated to Members who are subject to
the family member aggregation rules of Code Section 414(q)(6) in the manner
prescribed by the regulations.
(i) Excess Contributions (including amounts recharacterized)
shall be treated as Annual Additions under Section IV of the Plan.
(j) Excess Contributions shall be adjusted for any income or
loss up to the date of distribution. The income or loss allocable to Excess
Contributions is the sum of:
(i) income or loss in the Member's Elective Deferral
Account (and, if applicable, the Qualified Non-Elective
Contribution Account) for the Plan Year multiplied by a
fraction, the numerator of which is such Member's Excess
Contributions for the year and the denominator of which is the
Member's Elective Deferral Account balance (and the Qualified
Non-Elective Contribution Account, if any of such
contributions are included in the ADP test) without regard to
any income or loss occurring during the Plan Year; and
19
(ii) 10% of the amount determined under (i)
multiplied by the number of whole calendar months between the
end of the Plan Year and the date of distribution, counting
the month of distribution if distribution occurs after the
15th of such month.
Excess Contributions shall be distributed from the Member's Elective Deferral
Account in proportion to the Member's Elective Deferrals for the Plan Year.
Excess Contributions shall be distributed from the Member's Qualified
Non-Elective Contribution Account only to the extent that such Excess
Contributions exceed the balance in the Member's Elective Deferral Account.
6.8 Average Contribution Percentage Test.
(a) The Average Contribution Percentage for Members who are
Highly Compensated Employees for each Plan Year and the ACP for Members who are
Non-Highly Compensated Employees for the same Plan Year must satisfy one of the
following tests:
(i) The ACP for Members who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for
Members who are Non-Highly Compensated Employees for the same
Plan Year multiplied by 1.25; or
(ii) The ACP for Members who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for
Members who are Non-Highly Compensated Employees for the same
Plan Year multiplied by 2, provided that the ACP for Members
who are Highly Compensated Employees does not exceed the ACP
for Members who are Non-Highly Compensated Employees by more
than 2 percentage points.
(b) If one or more Highly Compensated Employees participate in
both a CODA and a plan subject to the ACP test maintained by the Company and the
sum of the ADP and ACP of those Highly Compensated Employees subject to either
or both tests exceeds the Aggregate Limit, then the ACP of those Highly
Compensated Employees who also participate in a CODA will be reduced (beginning
with such Highly Compensated Employee whose ACP is the highest) so that the
limit is not exceeded. The Aggregate Limit shall be the sum of: (a) 125% of the
greater of the ADP of Non-Highly Compensated Employees for the Plan Year or the
ACP of Non-Highly Compensated Employees under the Plan subject to Code Section
401(m) for the Plan Year beginning with or within the Plan Year of the CODA and
(b) the lesser of 200% or 2 plus the lesser of such ADP or ACP. The amount by
which each Highly Compensated Employee's Contribution Percentage Amounts is
reduced shall be treated as Excess Aggregate Contribution. The ADP and ACP of
the Highly Compensated Employees are determined after any corrections required
to meet the ADP and ACP tests. Multiple use does not occur if both the ADP and
ACP of the Highly Compensated Employees does not exceed 1.25 multiplied by the
ADP and ACP of the Non-Highly Compensated Employees.
20
(c) For purposes of this Section and Code Sections 401(a)(4),
410(b) and 401(m), if two or more plans of the Company to which Matching
Contributions are made are treated as one plan for purposes of Code Section
401(a)(4) or 410(b) (other than the average benefits test under Code Section
410(b)(2)(A)(ii) as in effect for Plan Years beginning after December 31, 1988),
such plans shall be treated as one plan. In addition, two or more plans of the
Company to which Matching Contributions are made may be considered as a single
plan for purposes of determining whether or not such plans satisfy Code Sections
401(a)(4), 410(b) and 401(m). In such a case, the aggregated plans must satisfy
this Section and Code Sections 401(a)(4), 410(b) and 401(m) as though such
aggregated plans were a single plan. For Plan Years beginning after December 31,
1989, plans may be aggregated under this paragraph (c) only if they have the
same plan year.
(d) For purposes of this Section, the Contribution Percentage
for any Member who is a Highly Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his account under 2 or more plans
described in Code Section 401(a), or arrangements described in Code Section
401(k) that are maintained by the Company, shall be determined as if the total
of such Contribution Percentage Amount was made under each plan. If a Highly
Compensated Employee participates in 2 or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single arrangement.
(e) For purposes of determining the Contribution Percentage of
a Member who is a 5% owner or one of the 10 highest-paid Highly Compensated
Employees, the Contribution Percentage Amounts and Compensation of such Member
shall include the Contribution Percentage Amounts and Compensation for the Plan
Year of family members (as defined in Code Section 414(q)(6)). Family Members,
with respect to Highly Compensated Employees, shall be disregarded as separate
Employees in determining the Contribution Percentage both for Members who are
Non-Highly Compensated Employees and for Members who are Highly Compensated
Employees.
(f) For purposes of determining the ACP test, Matching
Contributions and Qualified Non-Elective Contributions will be considered made
for a Plan Year if made no later than the end of the 12-month period beginning
on the day after the close of the Plan Year.
(g) The Company shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the amount of Qualified
Non-Elective Contributions used in such test.
(h) The determination and treatment of the Contribution
Percentage of any Member shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(i) Notwithstanding any other provision of this Plan,
Excess Aggregate Contributions, plus any income and minus any
loss allocable thereto, shall be distributed (on or before the
fifteenth day of the third month following the end of the
Plan Year, but in no event
21
later than the close of the following Plan Year), to
the Highly Compensated Employee having the highest actual
contribution ratio, his portion of Excess Aggregate
Contributions (and income allocable to such contributions)
until either one of the tests set forth in paragraph (a) above
is satisfied or until his actual contribution ratio equals the
actual contribution ratio of the Highly Compensated Employee
having the second highest actual contribution ratio. This
process shall continue until one of the tests set forth in
paragraph (a) above is satisfied. Excess Aggregate
Contributions shall be allocated to Members who are subject to
the family member aggregation rules of Code Section 414(q)(6)
in the manner prescribed by the regulations. If such Excess
Aggregate Contributions are distributed more than 2 1/2 months
after the last day of the Plan Year in which such excess
amounts arose, a 10% excise tax will be imposed on the Company
maintaining the Plan with respect to those amounts.
(i) Excess Aggregate Contributions shall be treated as Annual
Additions under Section IV.
(j) Excess Aggregate Contributions shall be adjusted for any
income or loss up to the date of distribution. The income or loss allocable to
Excess Aggregate Contributions is the sum of:
(i) income or loss allocable to the Member's Matching
Contribution Account and Qualified Non-Elective Contribution
Account, to the extent amounts therein are not used in the ADP
test, and Elective Deferral Account for the Plan Year
multiplied by a fraction the numerator of which is such
Member's Excess Aggregate Contributions for the year and the
denominator of which is the Member's account balances
attributable to Contribution Percentage Amounts without regard
to any income or loss occurring during such Plan Year; and
(ii) 10% of the amount determined under (i)
multiplied by the number of whole calendar months between the
end of the Plan Year and the date of distribution, counting
the month of distribution if distribution occurs after the
15th of such month.
(k) Forfeitures of Excess Aggregate Contributions may either
be reallocated to the accounts of Non-Highly Compensated Employees or applied to
reduce Company Contributions, as elected by the Company.
(l) Excess Aggregate Contributions shall be forfeited, if
forfeitable, or distributed on a pro-rata basis from the Member's Matching
Contribution Account (and, if applicable, the Qualified Non-Elective
Contribution Account or Elective Deferral Account, or both).
22
(m) For purposes of this Section and Code Sections 401(a)(4),
410(b) and 401(m), if two or more plans of the Company to which Matching
Contributions are made are treated as one plan for purposes of Code Section
401(a)(4) or 410(b) (other than the average benefits test under Code Section
410(b)(2)(A)(ii) as in effect for Plan Years beginning after December 31, 1988),
such plans shall be treated as one plan. In addition, two or more plans of the
Company to which Matching Contributions are made may be considered as a single
plan for purposes of determining whether or not such plans satisfy Code Sections
401(a)(4), 410(b) and 401(m). In such a case, the aggregated plans must satisfy
this Section and Code Sections 401(a)(4), 410(b) and 401(m) as though such
aggregated plans were a single plan. For Plan Years beginning after December 31,
1989, plans may be aggregated under this paragraph (m) only if they have the
same plan year.
6.9 Allocation and Valuation. A Member's accrued benefit derived from
Elective Deferrals and Qualified Non-Elective Contributions is nonforfeitable.
An Elective Deferral Account, Qualified Non-Elective Contribution Account and
Matching Contribution Account will be maintained for each Member. Each Account
will be established and credited with the applicable contributions and earnings
thereon in a manner analogous to that set forth in Section IV.
6.10 Distribution (Normal and Hardship).
(a) Elective Deferrals and Qualified Non-Elective
Contributions and income allocable to each are not distributable to a Member or
his beneficiary or beneficiaries, in accordance with such Member's or
beneficiary's or beneficiaries' election, earlier than upon separation from
service, death or disability. Notwithstanding the foregoing, such amounts may
also be distributed in accordance with paragraphs (b) and (c) below.
(b) Amounts described in (a) above may also be distributed
upon:
(i) termination of the Plan without the establishment
of another defined contribution plan;
(ii) the disposition by a corporation to an unrelated
corporation of substantially all of the assets (within the
meaning of Code Section 409(d)(2)) used in a trade or business
of such corporation if such corporation continues to maintain
this Plan after the disposition, but only with respect to
Employees who continue employment with the corporation
acquiring such assets; and
(iii) the disposition by a corporation to an
unrelated entity of such corporation's interest in a
subsidiary (within the meaning of Code Section 409(d)(3)) if
such corporation continues to maintain this Plan, but only
with respect to Employees who continue employment with such
subsidiary.
(c) Distribution of Elective Deferrals (and earnings thereon
accrued as of December 31, 1988), Profit Sharing, Matching and Rollover
contributions, subject to a
23
$1,000 minimum amount, may be made to a Member in the event of hardship. For
purposes of this Section, hardship is defined as an immediate and heavy
financial need of the Member where such Member lacks other available resources.
Hardship distributions are subject to the spousal consent requirements contained
in Code Sections 401(a)(11) and 417.
(i) The following are the only financial needs
considered immediate and heavy:
(i) expenses incurred or necessary for
medical care, described in Code Section 213(d), of
the Member, the Member's Spouse, children, or
dependents;
(ii) the purchase (excluding mortgage
payments) of a principal residence for the Member;
(iii) payment of tuition, related
educational fees, and room and board expenses for the
next twelve months of post-secondary education for
the Member, the Member's Spouse, children or
dependents; or
(iv) the need to prevent the eviction of the
Member from, or a foreclosure on the mortgage of the
Member's principal residence.
(ii) A distribution will be considered as necessary
to satisfy an immediate and heavy financial need of the Member
only if:
(A) the Member has obtained all
distributions, other than hardship distributions, and
all nontaxable loans under all plans maintained by
the Company;
(B) all plans maintained by the Company
provide that the Member's Elective Deferrals (will be
suspended for 12 months after the receipt of the
hardship distribution;
(C) the distribution is not in excess of the
amount of an immediate and heavy financial need
(including amounts necessary to pay any federal,
state or local income taxes or penalties reasonably
anticipated to result from the distribution); and
(D) all plans maintained by the Company
provide that the Member may not make Elective
Deferrals for the Member's taxable year immediately
following the taxable year of the hardship
distribution in excess of the applicable limit
under Code Section 402(g) for such taxable year less
the
24
amount of such Member's Elective Deferrals for
the taxable year of the hardship distribution.
(d) Distributions under this Section 6.10 shall be made to a
Member from his Accounts in the following order with each Account balance being
reduced to $0 before distributions may be made from the next succeeding Account:
Elective Deferral, Rollover, Qualified Non-Elective, Matching and Profit
Sharing.
SECTION VII. TOP HEAVY PLAN RULES
7.1 General Rule. Notwithstanding any provision in the Plan to the
contrary, for any Plan Year in which the Plan is determined to be a Top Heavy
Plan, the provisions of this Section VIA shall become effective.
7.2 Determination of Top Heavy Status. The Plan will be considered a
Top Heavy Plan for the Plan Year, if as of the Determination Date:
(a) the Top-heavy ratio for this Plan exceeds 60% and the Plan
is not part of any Aggregation Group (within the meaning of Code Section
416(g)(2)), or
(b) the Plan is part of an Aggregation Group (within the
meaning of Code Section 416(g)(2)) and the Top-heavy ratio for such Aggregation
Group exceeds 60%.
(c) Top-heavy ratio shall mean:
(i) If the Company maintains one or more defined
contribution plans (including any Simplified Employee Pension
Plan) and the Company has not maintained any defined benefit
plan which during the 5-year period ending on the
Determination Date(s) has or has had accrued benefits, the
Top-heavy ratio for this Plan alone or for the Aggregation
Group (within the meaning of Code Section 416(g)(2)) as
appropriate is a fraction, the numerator of which is the sum
of the account balances of all Key Employees as of the
Determination Date(s) (including any part of any account
balance distributed in the 5-year period ending on the
Determination Date(s)), and the denominator of which is the
sum of all account balances (including any part of any account
balance distributed in the 5-year period ending on the
Determination Date(s)), both computed in accordance with Code
Section 416 and the regulations thereunder. Both the numerator
and denominator of the Top-heavy ratio are increased to
reflect any contribution not actually made as of the
Determination Date, but which is required to be taken into
account on that date under Code Section 416 and the
regulations thereunder.
(ii) If the Company maintains one or more defined
contribution plans (including any Simplified Employee Pension
Plan) and the Company maintains or has maintained one or
more defined benefit plans which during the 5-year period
25
ending on the Determination Date(s) has or has had any accrued
benefits, the Top-heavy ratio for any Aggregation Group
(within the meaning of Code Section 416(g)(2)) as appropriate
is a fraction, the numerator of which is the sum of account
balances under the aggregated defined contribution plan or
plans for all Key Employees, determined in accordance with (i)
above, and the present value of accrued benefits under the
aggregated defined benefit plan or plans for all Key Employees
as of the Determination Date(s), and the denominator of which
is the sum of the account balances under the aggregated
defined contribution plan or plans for all members, determined
in accordance with (i) above, and the present value of accrued
benefits under the defined benefit plan or plans for all
members as of the Determination Date(s), all determined in
accordance with Code Section 416 and the regulations
thereunder. The accrued benefits under a defined benefit plan
in both the numerator and denominator of the Top-heavy ratio
are increased for any distribution of an accrued benefit made
in the 5-year period ending on the Determination Date.
(iii) For purposes of (i) and (ii) above, the value
of account balances and the present value of accrued benefits
will be determined as of the most recent Valuation Date that
falls within or ends with the 12-month period ending on the
Determination Date, except as provided in Code Section 416 and
the regulations thereunder for the first and second Plan Years
of a defined benefit plan. The account balances and accrued
benefits of a Member (1) who is not a Key Employee but who was
a Key Employee in a prior year, or (2) who has not been
credited with at least one Hour of Service with any Company
maintaining the Plan at any time during the 5-year period
ending on the Determination Date will be disregarded. The
calculation of the Top-heavy ratio, and the extent to which
distributions, rollovers, and transfers are taken into account
will be made in accordance with Code Section 416 and the
regulations thereunder. When aggregating plans, the value of
account balances and accrued benefits will be calculated with
reference to the Determination Dates that fall within the same
calendar year.
The accrued benefit of a Member other than a Key Employee shall be
determined under (a) the method, if any, that uniformly applies for accrual
purposes under all defined benefit plans maintained by the Company, or (b) if
there is no such method, as if such benefit accrued not more rapidly than the
slowest accrual rate permitted under the fractional rule of Code Section
411(b)(1)(C).
26
(d) For purposes of this Section 6A.2, Determination Date
shall mean for any Plan Year subsequent to the first Plan Year, the last day of
the preceding Plan Year. For the first Plan Year of the Plan, the last day of
that year.
(e) 'Aggregation Group' means either a Required Aggregation
Group or a Permissive Aggregation Group as hereinafter determined.
(i) For purposes of this Section 6A.2, Required
Aggregation Group shall mean (i) each qualified plan of the
Company in which at least one Key Employee participates or
participated at any time during the determination period
(regardless of whether the plan has terminated), and (ii) any
other qualified plan of the Company which enables a plan
described in (i) to meet the requirements of Code Sections
401(a) or 410.
(ii) For purposes of this Section 6A.2, Permissive
Aggregation Group shall mean the Required Aggregation Group of
plans plus any other plan or plans of the Company which, when
considered as a group with the Required Aggregation Group,
would continue to satisfy the requirements of Code Section
401(a)(4) and 410.
7.3 Minimum Contribution. Instead of the allocation of Company
contributions to Member's Profit Sharing Accounts provided in Section 4.1 and
the allocation of forfeitures provided in Section 4.2, the Company's
contribution and forfeitures for the Plan Year shall be allocated to the
Member's Profit Sharing Accounts of Participating Members in accordance with the
following, subject to the provisions of Section 4.5.
(a) The Company's contribution for each Plan Year shall be
allocated first to the Profit Sharing Accounts of Participating Members
according to the ratio that such Participating Member's Compensation for the
year bears to the compensation of all Participating Members for the Plan Year.
The sum of the allocations under this paragraph (a) and under Section 4.2 shall
not exceed 3% of such Member's Compensation. The minimum contribution under this
subparagraph (a) shall be made on behalf of each Non-Key Employee who is
employed on the last of the Plan Year without regard to whether or not such
Employee has completed 1,000 Hours of Service, his Compensation or whether such
Employee has made any contribution to the Plan in such Plan Year.
(b) The Company's contribution for each Plan Year shall be
allocated to the Profit Sharing Accounts of Participating Members who earned
"excess compensation" for such year. Such allocation shall be made on a pro rata
basis according to the ratio that a Participating Member's "excess compensation"
for the year bears to the "excess compensation" of all participating Members for
the year. However, the portion of the Company's contribution to be allocated
pursuant to this paragraph shall not exceed 3% of the "excess compensation" of
all Participating Members for the year.
(c) That part of the Company's contribution which is in excess
of the amounts allocated under paragraphs (a) and (b) shall be allocated to the
Members' Profit
27
Sharing Account of all Participating Members in the ratio that the sum of each
Participating Member's total Compensation plus "excess compensation" bears to
the sum of the total Compensation plus "excess compensation" of all
Participating Members. The amount allocated pursuant to this paragraph (c) shall
not exceed 2.7% of the sum of the total Compensation plus "excess compensation"
of all Participating Members.
(d) That part of the Company's contribution for the year which
exceeds the part of the contribution allocated under paragraph (c) shall be
allocated to the Profit Sharing Accounts of all Participating Members according
to the ratio that each such Participating Member's compensation for the year
bears to the total Compensation of all Participating Members for the year.
(e) For purposes of this provision "excess compensation" of a
Member shall mean his Compensation in excess of the Social Security Taxable Wage
Base in effect on the first day of the Plan Year.
7.4 Vesting. For any Plan Year in which the Plan is determined to be a
Top Heavy Plan pursuant to Section 6A.2, each Member shall have a vested
interest in the fair market value of his Profit Sharing Account and Matching
Contribution Account determined as of the end of a Plan Year on the basis of
Section 4.9, based upon Years of Service for the Company determined as follows:
Years of Service Percent Vested
---------------- --------------
less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 100%
To the extent that Section 5.1 of the Plan provides for a greater
vesting percentage in a Member's Profit Sharing Account and Matching
Contribution Account, such greater vesting percentage shall be applicable to
such account rather than the vesting percentage set forth in this Section.
The vesting schedule set forth above shall not apply to those Members
or former Members who are not credited with an Hour of Service on or after the
first day of the Plan Year in which the Plan becomes a Top Heavy Plan. Instead,
such Members shall continue to vest according to the schedule which was in
effect prior to the first day of the Plan Year in which the Plan becomes a Top
Heavy Plan.
If in any year the Plan has been a Top Heavy Plan and in a later year
ceases to be a Top Heavy Plan, the Plan shall once again be governed by the
vesting schedule set forth in Section 5.1. However, no decrease in any
Employee's already vested percentage in his Profit Sharing Account and Matching
Contribution Account shall result from such change in vesting schedule.
Furthermore, each Participating Member of the Plan on the date the Plan ceases
to be a Top Heavy Plan who has a vested interest in his Profit Sharing
28
Account and Matching Contribution Account balance and has at least three
Years of Service at the expiration of the election period may elect in writing
during the election period to have his vested interest in his Profit Sharing
Account and Matching Contribution Account balance determined pursuant to the
Plan's vesting schedule in effect on the last day of the last year the Plan was
a Top Heavy Plan. Any such election shall be irrevocable and shall only be
available to Employees who are Members of the Plan at the time such election is
made.
The Member's election period shall commence on the date that it is
determined that the Plan is no longer a Top Heavy Plan and shall end 60 days
after the latest of:
(i) The date that it is determined that the Plan is
no longer a Top Heavy Plan.
(ii) The effective date of the Plan no longer being a
Top Heavy Plan, or
(iii) The date the Member receives written notice of
an amendment to the vesting schedule from the Company or the
Committee describing in detail the change in the vesting
schedule and the election provided for by Section 6A.4.
However, any Participating Member with at least three Years of Service
at the expiration of the election period shall automatically remain subject to
the vesting schedule set forth in this Section 6A.4 if such schedule is more
liberal than the vesting schedule contained in Section 5.1.
SECTION VIII. INVESTMENT OF FUNDS
8.1 Vesting. Investment of the Fund shall be at the direction of each
Member as to his own Account as provided herein and in the Trust Agreement.
8.2 Investment Direction by Members. In conjunction with Section 7.1
and irrespective of anything else contained in this Plan to the contrary, the
investment of the balance in each Member's Profit Sharing Account, his Rollover
Account(s), his Elective Deferral Account, Qualified Non-Elective Contribution
Account and Matching Contribution Account shall be controlled solely by the
Member who will instruct the Trustee, on forms provided by the Committee as to
such investments. The investment options will be limited to those vehicles
chosen by the Committee.
8.3 Accounting Procedure. All earnings and losses with respect to funds
in each Member's Account subject to investment by the Members pursuant to
Section 7.2 will be allocated directly to each Member's Account involved
irrespective of the provisions of Section IV of this Plan. The Trustee shall
ascertain and certify to the Committee the fair market value of each Account as
of the end of each Plan Year. In addition, when requested by the Committee, the
Trustee shall within fifteen (15) days after the last day of the month certify
the fair market value of any or all such Accounts as of the date requested by
the Committee. Any costs and/or expenses related to the Committee's and
29
Trustees' compliance with a Member's direction, pursuant to Section 7.2, shall
be borne by such Member's Account.
8.4 Failure to Direct Investment. In the event that any Member fails to
direct the investment of his Account, the Trustee shall invest all such
non-directed funds in investments selected by the Trustee from among the
vehicles chosen by the Trustee.
SECTION IX. DISTRIBUTION OF BENEFITS
9.1 Distribution in General. The value of the Member's Account shall be
paid to him at the times, to the extent, and in the manner hereinafter provided
in this Section VIII.
9.2 Death or Disability. Upon the death of a Member or former Member or
upon the Total Disability of a Member while employed by the Company, the value
of the Member's Account determined under Section 4.10, shall become payable in
the manner hereinafter provided. Proof of death or Total Disability satisfactory
to the Committee must be furnished prior to any payment.
9.3 Valuation and Retirement Options. When a Member's service is
terminated on or after his Normal Retirement Age, the value of the Member's
Account determined under Section 4.10, shall become payable to him. If the
Member remains in the Company's employ subsequent to the normal retirement date,
subject to the provisions of Sections 2.2 and 4.3, he shall share in all
contributions made in his behalf up to the end of the Plan Year in which actual
termination of employment occurs and he shall be entitled to receive his
retirement benefits only after death, Total Disability or actual termination of
employment, or if earlier, April 1 of the calendar year after the calendar year
in which the Member attains age 70 1/2.
9.4 Form of Benefit.
I. For Members Whose Employment Commences On Or After January 1,
1988.
(a) When the Account of any Member becomes payable, the value of
his Account shall be paid in the form of either a lump sum distribution or in
equal installment payments, as such Member (or such beneficiary, in the event of
death of the Member, if no choice of payment methods was made by the Member or
if the beneficiary wishes to change the payment method selected by the Member)
shall request. The Member or beneficiary, as applicable, shall notify the
Committee in writing of his election of method of distribution within sixty days
of the event in Section 8.2 or 8.3 which causes amounts to become payable under
Section 8.4.
Any designation of the method of distribution shall be by written
notice filed with the Committee on forms supplied by it or by other means
selected by the Committee. The Committee, with the consent of the Member or
beneficiary, shall have the right to accelerate distributions under any method
of distribution selected by the Member or beneficiary.
30
Equal installment payments which the Member, or beneficiary, as
applicable, may select shall be the payment of equal annual, quarterly or
monthly installments over a period not to exceed the period permitted by
paragraph (b) or (c), as applicable, with the first installment to be paid
within 60 days after the end of Plan Year in which actual termination of
employment or death occurred, or such later starting time as the Member may
select, within the constraints set forth in paragraph (b) or (c), as applicable.
If a Member dies before all the funds in his Account have been
distributed to him, the remaining balance shall be paid or made available to the
designated beneficiary or the beneficiary otherwise determined according to the
provisions of Section 8.8, in the form of a lump sum or equal installment
payments as the Member (or such beneficiary, if no choice of payment methods was
made by the Member or if the beneficiary wishes to change the payment method
selected by the Member) shall request in a signed writing. The method of payment
so selected by the beneficiary may be any of the methods listed above.
(b) Notwithstanding the provisions of paragraph (a), no
payment method shall fail to comply with the provisions of Code Section
401(a)(9) and the regulations thereunder including the incidental death benefit
regulations. Such Code and regulation provisions shall override any provisions
of the Plan which are inconsistent therewith.
(i) Distributions of the Member's Account shall
commence not later than the Required Beginning Date. The
Required Beginning Date shall be April 1 of the calendar year
following the calendar year in which the Member attains age
70 1/2.
(ii) Distributions shall be made over a period not
extending beyond the longest of the life of the Member, the
life of the Member and a designated beneficiary, the life
expectancy of the Member, and the life expectancy of the
Member and his designated beneficiary. The Member shall have
the right to elect, no later than the Required Beginning Date,
whether or not life expectancy of the Member (and his spouse,
if the spouse is his beneficiary) will be recalculated
annually in the manner prescribed by Treasury regulations. Any
such election shall become irrevocable on the Required
Beginning Date. In the absence of an election by the Required
Beginning Date, life expectancy shall be recalculated annually
in accordance with Treasury regulations.
(c) Notwithstanding the provisions of paragraph (a), if a
Member dies prior to the distribution of any portion of his Account, no payment
method shall fail to comply with the provisions of this paragraph (c).
(i) The Member's Account shall be distributed to the
beneficiary(ies) of the Member within 5 years of the death of
the Member.
(ii) However, if any portion of such Account is
distributable to a designated beneficiary (as such term is
defined in Treasury
31
regulations), the 5-year distribution rule shall not apply to
such portion if the designated beneficiary so elects and
distributions begin no later than December 31 of the calendar
year following the calendar year in which the Member died in
the case of a non-spouse beneficiary; and the Spousal Required
Beginning Date in the case of a designated beneficiary who is
the Member's spouse. If the election is made, such portion may
be distributed over the life of such designated beneficiary
(or over a period not extending beyond the life expectancy of
such designated beneficiary).
(iii) However, if the designated beneficiary is the
Member's Spouse, the requirement that distributions commence
within one year of the Member's death shall not apply. In lieu
thereof, such distribution must commence no later than the
later of December 31 of the calendar year immediately
following the year in which the Member died and December 31 of
the year in which the Member would have attained age 70 1/2
("the Spousal Required Beginning Date"). The Member's Spouse
shall have the right to elect whether or not to have his life
expectancy recalculated prior to the Spousal Required
Beginning Date in accordance with Treasury regulations. Any
such election shall become irrevocable on the Spousal Required
Beginning Date. In the absence of an election received from
the Spouse prior to the Spousal Required Beginning Date, such
Spouse's life expectancy shall be recalculated annually in
accordance with Treasury regulations. If the surviving Spouse
dies before the distributions to such Spouse begin, then the
5-year distribution requirement of subparagraph (i) shall
apply as if the Spouse were the Member.
(d) Notwithstanding the provisions of paragraph (a), if a
Member dies after payments to the Member commence subject to the rules of
paragraph (b), the portion of the Account of such Member remaining at the
Member's death shall be distributed at least as rapidly as under the method of
payment being used before the Member's death which complies with the
requirements of paragraph (b).
II. For Members Whose Employment Commenced Prior to January 1,
1988.
(a) When the Account of any Member becomes payable, the Member
may elect to have the value of his Account paid in one of the following forms
rather than a lump sum:
(i) Payment of substantially equal monthly, quarterly
or annual installments over a period not to exceed the period
permitted by this Section, with the first installment to be
paid before the end of Plan Year after which actual
termination of employment or death occurred, or such later
starting time as the Member may select, within the constraints
set forth in this Section, as applicable.
32
(ii) An annuity for the life of the Member as
described below.
(b) 1. If a Member elects an annuity form of payment, in
accordance with paragraph (a)(ii) above and the Member is married on the
"Annuity Starting Date", he will be paid in the form of a Qualified Joint and
Survivor Annuity. A Member who elects an annuity form of payment, in accordance
with paragraph (a)(ii) above, and is unmarried on the "Annuity Starting Date"
will be paid in the form of an annuity for his life. Except where an earlier
date is required, payments shall commence no later than the 60th day following
the close of the Plan Year in which the event in Section 8.2 or 8.3 causing such
amounts to become payable occurs, unless the Member elects a later starting date
permitted under this Section.
2. For purposes of this Section, the "Annuity
Starting Date" means the first day of the first period for which an amount is
paid as an annuity (whether by reason of retirement or Total Disability) or any
other form.
3. The Committee shall provide each Member no less
than 30 days and no more than 90 days prior to the Annuity Starting Date a
written explanation of (i) the terms and conditions of the Qualified Joint and
Survivor Annuity (or, if the Member is unmarried, the life annuity), and (ii)
the rights of the Member's spouse. The Member shall also be furnished a general
description of the eligibility, conditions, and other material features of the
optional forms of benefit and sufficient additional information to explain the
relative values of the optional forms of benefit available under the Plan.
4. If the value of the Member's Account determined
under Section 4.10 does not exceed $3,500 at the time of an event causing such
Account to become payable to the Member under this Section 8.4, the Qualified
Joint and Survivor Annuity form of benefit (or, if applicable, the life annuity
form of benefit) shall not be made available to the Member. If any contribution
under Section 3.1 is made to the Member's Account after payment under the
preceding sentence, it shall be distributed within 30 days after it is made to
the Member's Account.
(c) In the event a Member duly elects pursuant to paragraph
(a) above not to receive the value of his Account in a lump sum, or in the event
of the Member's death, the value of his Account shall be paid to the Member or
his surviving designated beneficiary or the beneficiary otherwise determined
according to the provisions of Section 8.8, in such alternative form of payment,
as such Member (or such beneficiary, in the event of death of the Member, if no
choice of payment methods was made by the Member or if the beneficiary wishes to
change the payment method selected by the Member) shall request from the forms
set forth below. The Member or beneficiary, as applicable, shall notify the
Committee in writing of any alternative payment method he has selected before
the end of the "notification period". The notification period shall be:
1. In the case of a living Member, the period ending
on the Annuity Starting Date.
33
2. In the case of a deceased Member, the period
beginning on the date of the Member's death and ending on the
sixtieth day after the close of the Plan Year in which the
Committee learns of the Member's death.
The methods of payment which the Member, beneficiary, or Committee, as
applicable, may select shall include:
(i) Payment of substantially equal monthly, quarterly
or annual installments over a period not to exceed the period
permitted by this Section, with the first installment to be
paid before the end of Plan Year after which actual
termination of employment or death occurred, or such later
starting time as the Member may select, within the constraints
set forth in this Section, as applicable.
(ii) An annuity for the life of the Member.
If a Member dies before all the funds in his Account have been
distributed to him, and such funds were not being distributed in a life annuity
form of benefit, the remaining balance shall be paid or made available to the
designated beneficiary or the beneficiary otherwise determined according to the
provisions of Section 8.8, in a lump sum or equal installment payments as the
Member (or such beneficiary, if no choice of payment methods was made by the
Member or if the beneficiary wishes to alter the payment method selected by the
Member) shall have requested in a signed writing. If no choice of payment
methods was made by the Member and the beneficiary does not select a method of
payment within the notification period after the death of the Member, a lump sum
distribution will be paid.
Any designation of the method of distribution shall be by written
notice filed with the Committee on forms supplied by it or by other means
selected by the Committee. The Committee, with the consent of the Member or
beneficiary, shall have the right to accelerate distributions under any method
of distribution selected by the Member or beneficiary under this paragraph (c).
(d) Notwithstanding the provisions of paragraph (a) or (b), no
payment method shall fail to comply with the provisions of Code Section
401(a)(9) and the regulations thereunder including the incidental death benefit
regulations. Such Code and regulation provisions shall override any provisions
of the Plan which are inconsistent therewith.
(i) Distributions of the Member's Account shall
commence not later than the Required Beginning Date. The
Required Beginning Date shall be April 1 of the calendar year
following the calendar year in which the Member attains age
70 1/2.
(ii) Distributions shall be made over a period not
extending beyond the longest of the life of the Member, the
life of the Member and a designated beneficiary, the life
expectancy of the Member, and
34
the life expectancy of the Member and his designated
beneficiary. The Member shall have the right to elect, no
later than the Required Beginning Date, whether or not life
expectancy of the Member (and his spouse, if the spouse is his
beneficiary) will be recalculated annually in the manner
prescribed by Treasury regulations. Any such election shall
become irrevocable on the Required Beginning Date. In the
absence of an election by the Required Beginning Date, life
expectancy shall be recalculated annually in accordance with
Treasury regulations.
(e) Notwithstanding the provisions of paragraph (a) and (b),
if a Member dies prior to the distribution of any portion of his Account, no
payment method shall fail to comply with the provisions of this paragraph (e).
(i) The Member's Account shall be distributed to the
beneficiary(ies) of the Member within 5 years of the death of
the Member.
(ii) However, if any portion of such Account is
distributable to a designated beneficiary (as such term is
defined in Treasury regulations), the 5-year distribution rule
shall not apply to such portion if the designated beneficiary
so elects and distributions begin no later than December 31 of
the calendar year following the calendar year in which the
Member died in the case of a non-spouse beneficiary; and the
Spousal Required Beginning Date in the case of a designated
beneficiary who is the Member's spouse. If the election is
made, such portion may be distributed over the life of such
designated beneficiary (or over a period not extending beyond
the life expectancy of such designated beneficiary).
(iii) However, if the designated beneficiary is the
Member's Spouse, the requirement that distributions commence
within one year of the Member's death shall not apply. In lieu
thereof, such distribution must commence no later than the
later of December 31 of the calendar year immediately
following the year in which the Member died and December 31 of
the year in which the Member would have attained age 70 1/2
("the Spousal Required Beginning Date"). The Member's Spouse
shall have the right to elect whether or not to have his life
expectancy recalculated prior to the Spousal Required
Beginning Date in accordance with Treasury regulations. Any
such election shall become irrevocable on the Spousal Required
Beginning Date. In the absence of an election received from
the Spouse prior to the Spousal Required Beginning Date, such
Spouse's life expectancy shall be recalculated annually in
accordance with Treasury regulations. If the surviving Spouse
dies before the distributions to such Spouse begin, then the
5-year distribution requirement of subparagraph (i) shall
apply as if the Spouse were the Member.
35
(f) Notwithstanding the provisions of paragraphs (a) and (b),
if a Member dies after payments to the Member commence subject to the rules of
paragraph (d), the portion of the Account of such Member remaining at the
Member's death shall be distri buted at least as rapidly as under the method of
payment being used before the Member's death which complies with the
requirements of paragraph (d).
(g) All annuity contracts under this Plan shall be
non-transferable when distributed. Furthermore, the terms of any annuity
contract purchased for or distributed to a Member or a Member's spouse shall
comply with all of the requirements of the Plan.
9.5 Termination of Employment Other Than Because of Death, Total
Disability or Retirement.
I. For Members Whose Employment Commences On Or After January 1,
1988.
In the event a Member's employment is terminated for a reason other
than death, Total Disability or retirement, the amount to which he has a vested
interest standing to his credit in his Account, determined under Section 4.10
shall be distributed to him or to his surviving designated beneficiary (as the
case may be) as follows:
(a) In a lump sum as set forth in Section 8.4(a), beginning on
the first payment date, to be selected by the Member.
(b) In equal installments as set forth in Section 8.4(a).
If the Member's vested benefit does not exceed $3,500, then
the Committee shall automatically distribute the Member's vested benefit to him
in a lump sum as soon as practicable after termination of employment, and after
completion of the valuation of the Plan as set forth in Section 4.10.
Any former Member who receives a distribution of his vested benefits
attributable to Company contributions pursuant to this paragraph, who once again
qualifies as a Member of the Plan subsequent to his being rehired may buy back
into the Plan and restore his Profit Sharing Account balance by paying to the
Trustee in cash the full amount of the distribution he received under this
paragraph. The Member's restored Profit Sharing Account shall equal the sum of
(i) the amount paid back to the Trustee by the Member, plus (ii) the amount of
the unvested portion of the Member's Profit Sharing Account not distributed to
the Member under this paragraph. In order for a rehired Employee who once again
qualifies as a Member to buy back into the Plan, he must not have been 100%
vested at the time of termination of his employment and the Employee must repay
the full amount of the distribution no later than the earlier of five years
after the first date on which the Member is rehired by the Company or the date
of completion of five consecutive One Year Breaks-in-Service commencing after
the date of distribution. If the Employee complies with the buy-back rules, the
Company shall restore his Profit Sharing Account balance equal to the
predistribution account balance, in accordance with Treasury
Regulation Section 1.411(a)-7(d)(6)(iii). Any member who fails to buy back
into the Plan within
36
the time limitations herein established shall be deemed to have waived his right
to buy back into the Plan.
If a distribution to a partially vested Member is made prior to the
Member's having completed five consecutive One Year Breaks-in-Service pursuant
to the above rules, the Committee shall treat such nonvested portion as
forfeited as of the end of the Plan Year in which the distribution occurs,
subject to the restoration right noted above and the Member shall cease being a
Member at the end of the Plan Year in which the distribution occurs.
If a distribution is one to which Code Sections 401(a)(11) and 417 do
not apply, such distribution may commence less than 30 days after the notice
under Section 1.411(a)-11(c) of the Income Tax Regulations is given, provided
that:
(1) the Committee clearly informs the Member that the
Member has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or
not to elect a distribution (and, if applicable, a particular
distribution option), and
(2) the Member, after receiving the notice,
affirmatively elects a distribution.
The provisions of paragraphs (b), (c) and (d) of Section 8.4 shall
apply to distributions made under this Section 8.5.
II. For Members Whose Employment Commenced Prior To January 1,
1988.
In the event a Member's employment is terminated for a reason other
than death, Total Disability or retirement, the amount to which he has a vested
interest standing to his credit in his Account, determined under Section 4.10
shall be distributed to him or to his surviving designated beneficiary (as the
case may be) as follows:
(a) In a lump sum as set forth in Section 8.4(a), beginning on
the first payment date, to be selected by the Member.
(b) In equal installments or an annuity as set forth in
Section 8.4(a). If the Member elects to receive his benefit in the form of an
annuity in the manner described in Section 8.4(a) in the 90-day period ending on
the 60th day after the close of the Plan Year (the "first payment date") in
which occurs the former Member's 65th birthday or in which the Committee
receives proof prior to such former Member's 65th birthday of his Total
Disability, in the form of a Qualified Joint and Survivor Annuity (or an annuity
for the life of the Member, if unmarried), commencing with the close of the
90-day period described in this paragraph (b). The Committee shall furnish the
Member with the notice required by Section 8.4(a)(3) within a reasonable period
prior to the commencement of benefits hereunder.
(c) The Member may elect to receive his vested benefit as soon
as practicable after termination of employment, and after completion of the
valuation of the
37
Plan as set forth in Section 4.10. If the vested benefit of the Member exceeds
(or at the time of any prior distribution exceeded) $3,500, such vested benefit
shall be distributed to him, with his written consent.
If the vested benefit of the Member does not exceed $3,500, then the
Committee shall automatically distribute the Member's vested benefit to him in a
lump sum as soon as practicable after termination of employment, and after
completion of the valuation of the Plan as set forth in Section 4.10.
Any former Member who receives a distribution of his vested benefits
attributable to Company contributions pursuant to this paragraph (c), who once
again qualifies as a Member of the Plan subsequent to his being rehired may buy
back into the Plan and restore his Profit Sharing Account balance by paying to
the Trustee in cash the full amount of the distribution he received under this
paragraph (c). The Member's restored Profit Sharing Account shall equal the sum
of (i) the amount paid back to the Trustee by the Member, plus (ii) the amount
of the unvested portion of the Member's Profit Sharing Account not distributed
to the Member under paragraph (c). In order for a rehired Employee who once
again qualifies as a Member to buy back into the Plan, he must not have been
100% vested at the time of termination of his employment and the Employee must
repay the full amount of the distribution no later than the earlier of five
years after the first date on which the Member is rehired by the Company or the
date of completion of five consecutive One Year Breaks-in-Service commencing
after the date of distribution. If the Employee complies with the buy-back
rules, the Company shall restore his Profit Sharing Account balance equal to the
predistribution account balance, in accordance with Treasury Regulation Section
1.411(a)-7(d)(6)(iii). Any member who fails to buy back into the Plan within the
time limitations herein established shall be deemed to have waived his right to
buy back into the Plan.
If a distribution to a partially vested Member is made prior to the
Member's having completed five consecutive One Year Breaks-in-Service pursuant
to the above rules, the Committee shall treat such nonvested portion as
forfeited as of the end of the Plan Year in which the distribution occurs,
subject to the restoration right noted above and the Member shall cease being a
Member at the end of the Plan Year in which the distribution occurs.
If a distribution is one to which Code Sections 401(a)(11) and 417 do
not apply, such distribution may commence less than 30 days after the notice
under Section 1.411(a)-11(c) of the Income Tax Regulations is given, provided
that:
(1) the Committee clearly informs the Member that the
Member has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or
not to elect a distribution (and, if applicable, a particular
distribution option), and
(2) the Member, after receiving the notice,
affirmatively elects a distribution.
The provisions of paragraphs (d), (e) and (f) of Section 8.4 shall be
deemed to modify distributions made under this Section 8.5.
38
9.6 Annual Fund Adjustments. Any installments which shall be payable in
accordance with 8.4 or 8.5 shall be adjusted annually to reflect increases in
the value of the Fund by way of interest, dividends, realized and unrealized
gains, and income from other sources and shall bear any realized or unrealized
losses and expenses as provided in Section 4.4. Such adjustments shall not
affect the manner or intervals of payment. However, this provision shall not
cause payments to be reduced below the minimum amount which must be distributed
to the Member in order to comply with plan qualification requirements concerning
the form of payment as set forth in Section 8.4.
If a former Member's interest in the Fund is being paid to him in
installments, such former Member may direct the Committee to pay the value of
the former Member's interest in the Fund to him in a lump sum within 31 days
after the end of such month in which the request is made. The provisions of this
Section shall not apply to payments made in the form of a life annuity.
9.7 Death Benefits.
I. For Members Whose Employment Commences On Or After January 1,
1988.
Within a reasonable time following the death of a Member or former
Member, the sum of the vested portion of the balance of the Member's Account
determined under Section 4.10 shall be paid in a lump sum or installments to the
beneficiary determined under Section 8.8.
II. For Members Whose Employment Commenced Prior To January 1,
1988.
If a married Member or married former Member dies prior to commencement
of payment of benefits to such Member and such Member had elected to be paid in
an annuity form of benefit, then the sum of the vested portion of the balance of
the Member's Account determined under Section 4.10 shall be paid as an annuity
for the life of the Spouse, unless the Spouse elects to have the benefit
distributed in the form of a lump sum or in equal installments.
For all other Members or former Members the sum of the vested portion
of the balance of the Member's Account determined under Section 4.9 shall be
paid in a lump sum or equal installments to the beneficiary determined under
Section 8.8.
9.8 Designation of Beneficiary.
A Member shall designate a beneficiary or beneficiaries to receive any
benefits which may become payable in the event of his death. If the Member is
married, such designation shall be made only with the consent of the Member's
Spouse, in the form of a Qualified Spousal Consent, if the beneficiary is other
than the Member's spouse. A Member may at any time revoke his designation or
change his beneficiary by filing written notification of such change with the
Committee. However, the Member's Spouse must again consent in writing in the
form of a Qualified Spousal Consent to any such change or
39
revocation. A designation made by a Member while unmarried shall not be given
effect if the Member subsequently marries. If a married Member designates a
beneficiary other than his Spouse (and does so prior to the Member's normal
retirement age and prior to receipt of any benefits under Section 8.4 or 8.5),
then such designation shall only be given effect if a General Spouse's Consent
is on file with the Committee. The term "beneficiary" as used in the Plan,
includes beneficiaries if more than one beneficiary is designated. If there is
no beneficiary designated and surviving at the Member's death, payment of any
benefit which may become payable in the event of his death shall be made to any
one of or jointly to any number of the following surviving relatives of the
Member with priority in the order named: (1) spouse, (2) children, (3) parents,
(4) brothers and sisters, (5) nephews and nieces, and (6) the Member's estate.
In the event the benefits are paid to a surviving relative or class of
relatives, they shall be paid to the first-mentioned relative or class of
relatives, if there be such, in order named to the exclusion of all the
following relatives or classes named.
Any designation or change of beneficiary shall be by written notice
filed with the Committee on forms supplied by it. A change of beneficiary shall
take place only upon the filing of a notice of change with the Committee.
9.9 Payment to Minors, etc. 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 (whether or not such incompetency has been recognized in a legal
proceeding), the Committee shall have power to cause the payments becoming due
to such person to be made to another for his benefit without responsibility of
the Committee or the Trustee to see to the application of such payments. Any
payment made pursuant to such powers shall, as to such payment, operate as a
complete discharge of the Fund, the Trustee and the Committee.
9.10 Commencement of Benefits. Irrespective of any other provision in
this Section VIII, unless the Member elects otherwise, the payment of benefits
under the Plan to any Member will begin not later than the 60th day after the
latest of the close of the Plan Year in which:
(a) the Member attains the earlier of age 65
or the Normal Retirement Age specified under the
Plan,
(b) occurs the 10th anniversary of the year
in which the Member commenced participation in the
Plan, or
(c) the Member terminates his service with
the Company.
No Member may elect that benefits commence later than the time
specified in Section 8.4.
9.11 Loans to Members. The Committee is responsible to authorize and
administer all loans under the Plan. Upon written application to the Committee
specifying the amount, duration and security for the loan, a Member or
beneficiary may borrow from
40
the Fund for any reason whatsoever provided that the total amount borrowed from
this Plan and all other Plans enumerated in the following sentence shall not at
any time exceed the lesser of: (1) $50,000.00, reduced by the highest
outstanding balance of all loans from the Plan during the one-year period ending
on the day before the date the loan is made, over the outstanding balance of
loans from the Plan on the date the loan is made, or (2) one-half (1/2)of the
vested interest of such Member's Account. For purposes of the foregoing
limitation, all Plans of the Company in which the Member is a Member (and
beneficiary is a beneficiary) shall be treated as one Plan and all Plans of
Affiliated Companies in which the Member participates (the beneficiary has an
account balance) shall be treated as Plans of the Company. The minimum amount of
a loan shall be $1,000 and no more than three loans may be outstanding at any
time.
A Member may borrow from his Elective Deferral Account and Rollover
Account for any reason, but may only borrow from his Profit Sharing Account,
Qualified Non-Elective and Matching Contribution Account in the case of a
hardship, the criteria for which will be determined by the Committee in
accordance with the provisions of Section 6.10(c)(i). Limitations on the total
amount a Member may borrow are always subject to the provisions set forth in the
preceding paragraph.
Loans will be granted in a uniform and nondiscriminatory manner.
However, a loan request may be denied for failing to meet any one of the
requirements set forth in the following paragraph, for failure to satisfy the
spousal consent requirements set forth in this Section 8.11, or for any other
reason for denial which commercial lending institutions commonly deny loan
requests. If a loan is denied for any reason, a full written explanation will be
provided to the Member or beneficiary.
Any such borrowing shall be permitted only upon the Member's execution
of a promise to repay the amount at a reasonable rate of interest as required to
comply with Section 408(b) of ERISA and Code section 4975(d)(1); any such loan
shall provide for level amortization with payments to be made not less
frequently than quarterly over a period not to exceed 5 years. However, loans
used to acquire any dwelling unit which, within a reasonable time, is to be used
(determined at the time the loan is made) as a principal residence of the Member
shall provide for repayment over a reasonable period of time that may exceed 5
years. All loans shall be repaid on a schedule providing for level amortization
determined by the Committee. All such loans shall be nonrenewable. By accepting
such a loan, the Member automatically assigns to the Plan as security for the
loan his right, title and interest in and to the appropriate portion of his
Account (not to exceed the lesser of $50,000.00 or 50% of such Member's vested
interest in his Account as of the date the loan is made) plus any additional
collateral security as may be required by the Committee in its discretion (such
as title to an automobile, a second mortgage on a residence, etc...). A
reasonable rate of interest will be determined which will be reflective of the
interest rate which would be charged by an independent lending institution with
regard to a similar loan. In determining what the final interest rate and
additional collateral security, if any, will be, the Committee may consider the
creditworthiness of the Member and the security given for the loan.
If a Member borrows pursuant to this section, the amount of such loan
shall be treated for accounting purposes as being taken from the Member's
Account in the
41
following order with each Account balance being reduced to $0 before
distributions may be made from the next succeeding Account: Elective Deferral,
Rollover, Qualified Non-Elective, Matching and Profit Sharing. Any and all
investment results which occur in connection with such loan (i.e., installment
payments of principal and interest and any losses) shall be allocated directly
to the Member's Rollover Account, Elective Deferral Account, Matching
Contribution Account, Qualified Non-Elective Account and Profit Sharing Account
of the Member who borrows from the Plan and shall not be treated as a general
investment of the Fund.
A default of the loan will occur upon the event of:
(a) failure to make a payment within sixty days after the due
date of the payment,
(b) commencement of any insolvency proceedings by or against
the Member, or
(c) the death of the Member.
The Member (or beneficiary) will receive notice that the loan is a taxable
distribution and will be reported to the Internal Revenue Service.
If a default occurs or a Member terminates his employment with the
Company and the debt remains unpaid when the Member (or beneficiary) is
otherwise eligible to receive a distribution, the amount distributable is
reduced by the outstanding indebtedness (principal plus interest).
In the event a Member defaults on any such borrowing, the Committee and
the Trustee are specifically directed to immediately take legal action against
the defaulting Member by filing suit against the Member for breach of his
promise to repay the loan and/or filing suit to obtain title and possession of
any and all security pledged as collateral for the loan except that the
Committee and the Trustee shall not proceed to acquire the Member's vested
interest in his Member's Account for default unless all other legal remedies
have been considered and either pursued or rejected on the advice of legal
counsel. It is the intention of the Company that a Member's vested interest
shall be maintained for that Member free of any alienation except as provided in
this Section 8.11 and that a forfeiture of the Member's interest should only be
considered a remedy of last resort.
No married Member shall be permitted to borrow from the Plan without
the written consent of the Member's Spouse in the form of a Qualified Spousal
Consent. The Member and spouse shall consent to the possible reduction in the
Member's plan benefit in the 90-day period before the making of the loan, which
could occur if the Member defaults on repayment of the loan and the Member's
plan benefit is reduced to satisfy the Member's obligation. Such consent shall
acknowledge the effect of the loan.
No borrowing shall be permitted from a Member's Rollover Account(s)
originally attributable to participation in a non-corporate qualified plan
without an opinion of counsel
42
to the Company or the Plan that such borrowing will not adversely affect the
qualified status of the Plan.
Trust investments (including investments in residential mortgages)
shall not be considered as loans if: (1) such investments are made pursuant to
an established written investment program, (2) the amount of the mortgage loan
does not exceed the fair market value of the property purchased with the loan
proceeds, (3) the mortgage loan was not made as the result of a directed
investment, and (4) the loan does not benefit an officer, director or
shareholder of the Company or the beneficiaries of such person.
9.12 Nonalienation of Benefits.
(a) No benefit payable under the Plan will, except as
otherwise specifically provided by law or herein, be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge and any attempt to so anticipate, alienate, sell, transfer, assign,
pledge, encumber or charge the same will be void; nor will any benefit be in any
manner liable for or subject to the debts, contracts, liabilities, engagements
or torts of the person entitled thereto. Compliance with the provisions and
conditions of a QDRO shall not be considered a violation of this provision.
(b) If the Committee receives a qualified disclaimer (as
defined in Code Section 2518) from any beneficiary entitled to benefits as a
result of and within 9 months after the death of a Member, such benefits shall
instead be paid to an alternate beneficiary determined according to a valid
beneficiary designation made by a Member, or if an alternate beneficiary cannot
be determined according to such a designation, according to the provisions of
Section 8.8. Payment to an alternate beneficiary on account of receipt of a
qualified disclaimer shall not be treated as a violation of paragraph (a) of
this section.
9.13 Receipt of Domestic Relations Order. If the Committee receives a
domestic relations order (as defined in Code Section 414(p)), the Committee
shall promptly notify the Member and any spouse, former spouse, child or other
dependent of the Member who is recognized by the order as having a right to
receive all, or a portion of, the benefits payable to the Member under the Plan
("alternate payee") of the Plan's procedures for determining the qualified
status of such order. Within a reasonable time after receipt of such order, the
Committee shall notify the Member and alternate payee of its determination
whether the domestic relations order is a QDRO. While making its determination,
the Committee shall segregate in a separate account in the Plan the amounts
which would have been payable to the alternate payee during such period if the
order had been determined to be a QDRO. If within 18 months of receipt, the
order is determined to be a QDRO, the Committee shall pay the segregated amounts
to the person or persons entitled thereto under the order. If within 18 months
of receipt the order is determined not to be a QDRO, the Committee shall treat
the segregated account as belonging to the Member in accordance with the other
provisions of this Section 8.13, and shall pay to the Member any amounts in the
segregated account which would have been paid to him during the period of
segregation if no order had been received. If an order is determined to be a
QDRO more than 18 months after receipt by the Committee, it shall be applied
prospectively from the date of determination. Furthermore, once the domestic
relations order is determined to be a QDRO, the alternate payee shall be
entitled to
43
designate a beneficiary pursuant to the provisions of Section 8.8 of the Plan
with respect to the amounts which have been segregated on his or her behalf.
To the extent that an order is determined to be a QDRO, Sections 8.4,
8.5 and 8.7 shall be deemed modified, but only to permit payment to the
alternate payee.
9.14 Qualified Spousal Consent. Any spousal consent referred to in this
Section VIII as a Qualified Spousal Consent shall comply with the provisions of
this Section 8.14 and shall not be required under those circumstances described
in this Section 8.14. A spouse's consent shall be in writing, shall be
irrevocable and must acknowledge the effect of such election and be witnessed by
a member or agent of the Committee or a notary public. Such consent shall not be
required if it is established to the satisfaction of the Committee that the
required consent cannot be obtained because there is no spouse or the spouse
cannot be located. If the spouse is legally incompetent to give the consent, the
spouse's guardian, even if the Member, may give consent. If the Member is
legally separated or has been abandoned (within the meaning of local law) and a
Member has a court order to such effect, spousal consent shall not be required
unless a QDRO provides otherwise. A former Spouse's consent shall not be binding
on a new Spouse. Any spousal consent to a Member's waiver of the Qualified Joint
and Survivor Annuity or the Qualified Pre-retirement Survivor Annuity must state
the specific non-spouse beneficiary who will receive the benefit. Any spousal
consent to a Member's waiver of the Qualified Joint and Survivor Annuity must
specify the particular optional form of benefit.
Notwithstanding the foregoing, a Member's Spouse may execute a "General
Spouse's Consent" which permits a Member who waives the Qualified Joint and
Survivor Annuity to change the designated non-spouse beneficiary or the optional
form of benefit without any further spousal consent requirements. A General
Spouse's Consent must acknowledge that the Spouse has the right to limit his or
her consent to a specific non-spouse beneficiary and a specific optional form of
benefit, in the case of a waiver of a Qualified Joint and Survivor Annuity, and
that the Spouse voluntarily elects to relinquish such rights. However, a Spouse
may execute a General Spouse's Consent that is limited to certain beneficiaries
or optional forms of benefit. A General Spouse's Consent to a Member's waiver of
a Qualified Joint and Survivor Annuity must be made within the period set forth
in Section 8.4(a)(3). A General Spouse's Consent executed prior to October 22,
1986 does not have to meet the requirements of this paragraph.
9.15 Direct Rollovers.
(a) This section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a distributee's election under this section, a distributee
may elect, at the time and in the manner prescribed by the plan administrator,
to have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover.
44
(b) For purposes of this Section the following definitions shall apply:
(1) An "eligible rollover distribution" is any
distribution of all or any portion of the balance to
the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially
equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life
expectancies) of the distributee and the
distributee's designated beneficiary, or for a
specified period of ten years or more; any
distribution to the extent such distribution is
required under Code Section 401(a)(9); and 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).
(2) An "eligible retirement plan" is an individual
retirement account described in Code Section 408(a),
an individual retirement annuity described in Code
Section 408(b), an annuity plan described in Code
Section 403(a), or a qualified trust described in
Code Section 401(a), 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.
(3) A "distributee" includes an Employee or former
Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations
order, as defined in Code Section 414(p), are
distributees with regard to the interest of the
spouse or former spouse.
(4) A "direct rollover" is a payment by the Plan to
the eligible retirement plan specified by the
distributee.
SECTION X. THE COMMITTEE
10.1 Appointment of Committee. The Board of Directors of the Company
shall appoint a Committee to administer the Plan consisting of one or more
persons who shall serve at the Board's pleasure. The Board of Directors shall
fill vacancies on the Committee and shall fix from time to time the compensation
of members of the Committee.
10.2 Adoption of Rules. The Committee shall adopt such rules for the
conduct of its business and administration of the Plan as it considers desirable
provided that they do not conflict with the Plan.
10.3 Delegation;Contracting for Services. The Committee may authorize
one or more of its members or any agent to act on its behalf and may contract
for legal, investment, advisory, medical, accounting, clerical and other
services to carry out the Plan.
45
The costs of such services and expenses of the Committee shall be paid by the
Fund except that the Company may, at its option, pay any or all such costs.
10.4 Construction of the Plan. The Committee may construe the Plan,
correct defects, supply omissions or reconcile inconsistencies to the extent
necessary to effectuate the Plan and such action shall be conclusive.
10.5 Records. The Committee shall keep records reflecting
administration of the Plan which shall be subject to audit by the Company.
Members may examine records pertaining directly to them.
10.6 Member's Access to the Committee. The Committee shall make
available to each Member a copy of the Plan and Trust after a written request
from such Member and such of its records as may pertain to the assets held by
the Trustee for the benefit of such Member.
10.7 Designation of Plan Administrator; Power and Duties of the
Committee. The Company is hereby specifically designated as the administrator of
this Plan and Trust and, as such, is charged with full and complete liability
and responsibility for the administration of the Plan. Each member of the
Committee is hereby designated a "named fiduciary" as this term is used in
Section 402 of ERISA. The Committee shall have the discretionary authority to
interpret the provisions of the Plan and Trust. Decisions regarding eligibility
and payment of benefits shall be made by the Committee in a manner consistent
with the provisions of the Plan. Where deemed necessary, the Committee may
assign the duties of plan interpretation. Any denial by the Committee of the
claim for benefits under the Plan by a Member or beneficiary shall be stated in
writing by the Committee and delivered or mailed to the Member or beneficiary;
and such notice shall set forth the specific reasons for the denial, written to
the best of the Committee's ability in a manner that may be understood without
legal or actuarial counsel. In addition, the Committee shall afford a reasonable
opportunity to any Member or beneficiary whose claim for benefits has been
denied for a review of the decision denying the claim in the manner set forth in
Section 9.8.
10.8 Review of Decisions of the Committee. The Company intends that the
payment of benefits to a Member under this Plan will be automatic and will not
depend on any specific action of the Member. However, any Member or his
beneficiary who feels aggrieved by a decision of the Committee with respect to
such Member's or beneficiary's rights under the Plan, may submit a written
statement to the Committee listing the Member's or beneficiary's position with
respect to the matter in question. The Committee may, at its option, invite the
Member or beneficiary to attend a Committee meeting to present his position to
the Committee or respond in writing to the Member or beneficiary.
10.9 Reporting and Disclosure. The Committee shall exercise such
authority and responsibility as it deems appropriate in order to comply with
ERISA and governmental regulations issued thereunder relating to records of
Member's service, account balances and the percentage of such account balances
which are nonforfeitable under the Plan, notifications to Members, annual
registration with the Internal Revenue Service, and annual reports to the
Department of Labor.
46
10.10 Indemnification. No Committee member or Trustee guarantees the
Fund in any manner against investment loss or depreciation in asset value. The
Company shall, to the maximum extent permitted by ERISA, indemnify each
Committee member, director, officer, and Employee who is a fiduciary of the Plan
and who is a party, or who is threatened with being made a party, to a
threatened, pending, or completed action suit, or proceeding, whether civil,
criminal, administrative, or investigative (including any such action by or in
the right of the Company), by reason of the fact that such person is or was a
fiduciary of the Plan, against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement, actually and reasonably incurred by such
fiduciary in connection with such action, suit, or proceeding. Reasonable
expenses incurred in defending any such action, suit, or proceeding shall be
paid by the Company in advance of a final disposition of such action, suit, or
proceeding, upon presentation of the statements received by him therefor by any
such fiduciary of the Plan.
10.11 Service of Legal Process. Each member of the Committee is hereby
designated agent for the Plan for purposes of accepting service of process in
any judicial or administrative proceeding. Such service shall be effective if
the member is served at 301 Grove Road, Thorofare, NJ 08096-9499.
SECTION XI. DISTRIBUTION OF BENEFITS
11.1 Distribution in General. This Plan may be amended by the Company,
if as amended, it continues to be for the exclusive benefit of Employees. Any
amendment shall be accomplished by a resolution (or, if allowed by applicable
corporate law, unanimous written consent) of the Company's board of directors.
No amendment shall divest a Member's then vested interest. No amendment to this
Plan shall have the effect of eliminating or reducing an early retirement
benefit or retirement type subsidy, nor shall any amendment made to this Plan
have the effect of eliminating a Section 411(d)(6) protected form of benefit
with respect to benefits attributable to service before the amendment except to
the extent permitted by regulations of the Internal Revenue Service or other
publications of the Internal Revenue Service of general applicability. The rules
of Treasury Regulations Section 1.411(d)-4 are incorporated herein for the
purpose of determining what is a Section 411(d)(6) protected form of benefit. In
the case of a retirement type subsidy, the preceding sentence shall apply only
with respect to a Member who satisfies (either before or after the amendment)
the pre-amendment conditions for the subsidy. However, an amendment to this Plan
may have the effect otherwise prohibited by the preceding two sentences to the
extent the amendment is necessary (1) to satisfy a change in the law regarding
plan qualification, if the amendment is timely, the Internal Revenue Service
grants relief under Code Section 7805(b), and the elimination or reduction is
made only to the extent necessary to enable the plan to continue to satisfy the
requirements for qualified plans; or (2) is permitted by Treasury Regulations
Section 1.411(d)-4(b)(2)(ii) relating to multiple forms of qualified joint and
survivor annuities. Notwithstanding any other provisions of this Plan, no
amendment to this Plan shall be construed in a manner to have the effect
prohibited by this Section.
11.2 Voluntary Termination. (a) The Company intends to continue the
Plan indefinitely but reserves the right to terminate it at any time. Upon the
complete or partial termination of the Plan or the complete discontinuance of
the Company's contributions,
47
the total amounts (including contracts) then standing to the Member's Accounts
shall be nonforfeitable and the Fund shall continue to be held for distribution
as provided in Sections V, VIII and XI.
(b) Notwithstanding paragraph (a), upon the full termination
of the Plan, the Company may direct the distribution of the assets of the Fund
to Members in a manner which is consistent with and satisfies the provisions of
Section VIII. Distributions to a Member shall be made in cash or in property or
through the purchase of irrevocable nontransferable deferred commitments from an
insurer. Except as permitted by Regulations, the termination of the Plan shall
not result in the reduction of "Section 411(d)(6) protected benefits" in
accordance with Section 10.1.
11.3 Liability of the Company. The Company shall have no liability for
payments under the Plan or administration of the Fund except to make the
contributions required by Section 3.1. Persons entitled shall look solely to the
Fund for any payments under the Plan.
11.4 Plan and Trust Qualification. This Plan and the accompanying Trust
Agreement have been qualified under the Code and the lawful rules and
regulations of the Secretary of the Treasury or his delegate promulgated
thereunder so as to be a tax-free deferred compensation Plan and Trust,
contributions to which are deductible by the Company in computing taxable
income, and it is intended that they should continue to be so qualified. This
Plan, as restated, will be submitted to the Secretary of the Treasury or his
delegate for a ruling with respect to such continued qualification. If such
authority refuses to rule or withholds his ruling that this Plan and Trust are
so qualified, and if this Plan and Trust can in a manner satisfactory to the
Company be amended and the favorable ruling of such authority be obtained
thereby, the Company reserves the right to so amend and such amendment, anything
else in this plan to the contrary notwithstanding, shall be effective July 1,
1996, the same date as if incorporated herein in the first instance unless a
different effective date is expressly stated in such amendment.
SECTION XII. MISCELLANEOUS
12.1 Plan Creates No Contract of Employment. This Plan shall not confer
upon any Employee any right to be continued as such.
12.2 Exclusive Benefit of Funds. At no time prior to the satisfaction
of all liabilities with respect to Members and their beneficiaries shall any
part of the corpus or income of the Trust be used for or diverted to purposes
other than for the exclusive benefit of Members and their beneficiaries.
12.3 Transfer from Qualified Funds.
(a) With the consent of the Committee, amounts may be
transferred from other qualified corporate and non-corporate plans, provided
that the trust from which such funds are transferred permits the transfer to be
made and, in the opinion of legal counsel for the Company, the transfer will not
jeopardize the tax exempt status of the Plan or Trust, create adverse tax
consequences for the Company or require the Plan to provide any
48
optional form of benefit which it does not already provide. Each such amount
transferred shall be set up in a separate account herein referred to as a
"Rollover Account(s)". A separate account shall be maintained for each rollover
of a given Member. If a rollover is attributable partially to employer
contributions and partially to Employee contributions, a separate Rollover
Account(s) shall be established for the amounts attributable to each such
portion. Such account shall be fully vested at all times and shall not be
subject to forfeiture for any reason.
(b) For purposes of this Section the term "amounts transferred
from another qualified corporate and non-corporate plan" shall mean: (i) amounts
transferred to this Plan directly from another qualified corporate and qualified
non-corporate plan; (ii) lump sum distributions received by a Member from
another qualified Plan which are eligible for tax free rollover treatment and
which are transferred by the Member to this Plan within 60 days following his
receipt thereof; (iii) amounts transferred to this Plan from a conduit
individual retirement account provided that the conduit individual retirement
account has no assets other than assets which were previously distributed to the
Member by another qualified plan (other than an individual retirement account or
if transferred prior to January 1, 1984; an H.R. 10 plan) as a lump sum
distribution which were eligible for tax free rollover treatment and which were
deposited in such conduit individual retirement account within 60 days of
receipt thereof and other than earnings on said assets; and (iv) amounts
distributed to the Member from a conduit individual retirement account meeting
the requirements of clause (iii) above, and transferred by the Member to this
Plan within 60 days of his receipt thereof from such conduit individual
retirement account. Prior to accepting any transfers to which this Section
applies the Committee may require the Member to establish that the amounts to be
transferred to this Plan meet the requirements of this Section and may also
require the Member to provide an opinion of counsel satisfactory to the Company
that the amounts to be transferred meet the requirements of this Section.
(c) For purposes of this Section, the term "qualified
corporate or non-corporate plan" shall mean any tax qualified plan under Code
Section 401(a).
12.4 Severability of Provisions. It is the Company's intention that
this Plan and Trust will meet all of the requirements contained in ERISA and for
qualified plans under the Code, and all regulations issued thereunder. Any
provision contained herein which does not meet any such requirement is hereby
declared null and void as of the effective date of this applicable requirement.
12.5 Mergers and Consolidation of Plans. If the Plan is merged or
consolidated with another Plan or if the assets or liabilities of the Plan are
transferred to any other Plan, each Member in the Plan will (if the Plan then
terminated) receive a benefit immediately after the merger, consolidation or
transfer which is equal to or greater than the benefit the Member would have
been entitled to receive immediately before the merger, consolidation or
transfer (if the Plan had then terminated). Further, all optional forms of
benefit which are available to the Member in this Plan shall be available to
such Member in the transferee plan at least to the extent of the benefit accrued
by the Member in this Plan.
49
12.6 Exclusive Benefit; Refund of Contributions. The assets of the Plan
are intended to be held for the exclusive purposes of providing benefits to
participants in the Plan and their beneficiaries and defraying reasonable
expenses of administering the Plan. The contributions are not intended to inure
to the benefit of the Company; however, as provided in Section 403(c) of ERISA,
the Company may require the Committee to return certain contributions, in whole
or in part, to the Company in the following instances:
(a) In the case of a contribution which is made by the Company
by a good faith mistake of fact, the contribution may be recovered within one
year after the payment of the contribution. Earnings of the Plan attributable to
the excess contributions may not be returned to the Company but any losses
attributable thereto must reduce the amount so returned.
(b) If the contribution is conditioned upon the deductibility
of the contribution under Code Section 404, then to the extent the deduction is
disallowed, the contribution may be recovered by the Company within one year
after the disallowance of the deduction. Earnings of the Plan attributable to
the excess contributions may not be returned to the Company but any losses
attributable thereto must reduce the amount so returned.
12.7 Liquidation of the Company. If at any time the Company is
liquidated, the Company shall designate a plan administrator to serve effective
after the liquidation of the Company. Such plan administrator shall have
authority to exercise all powers granted to the Company and the plan
administrator in Articles 9 and 10 and in the Trust Agreement, including,
without limitation, the power to amend the Plan and the Trust Agreement. If the
Company fails to appoint a plan administrator pursuant to this provision, then
the Trustee shall have the power to appoint a plan administrator (which may
include the Trustee or any one of the Trustees, if more than one is serving) to
act as plan administrator.
12.8 Location of Member or Beneficiary Unknown. In the event that all,
or any portion, of the distribution payable to a Member or his beneficiary
hereunder shall, at the expiration of five years after it shall become payable,
remain unpaid solely by reason of the inability of the Committee, after sending
a registered letter, return receipt requested, to the last known address, and
after further diligent effort, to ascertain the whereabouts of such Member or
his beneficiary, the amount so distributable shall be treated as a forfeiture
pursuant to the Plan. In the event a Member or beneficiary is located subsequent
to his benefit being reallocated, such benefit shall be restored.
12.9 Headings and Captions. The headings and captions herein are
provided for reference and convenience only, shall not be considered part of the
Plan, and shall not be employed in the construction of the Plan.
50