CURTISS-WRIGHT ELECTRO-MECHANICAL DIVISION
SAVINGS PLAN
Effective as of
January 1, 2004
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TABLE OF CONTENTS
INTRODUCTION.....................................................................1
ARTICLE I - DEFINITIONS..........................................................2
ARTICLE II - ELIGIBILITY AND PARTICIPATION......................................12
ARTICLE III - CONTRIBUTIONS.....................................................13
ARTICLE IV - INVESTMENT OPTIONS AND TRANSFERS TO AND FROM THE TRUST.............24
ARTICLE V - VALUATION OF INVESTMENTS AND CREDITS TO ACCOUNTS....................27
ARTICLE VI - VESTING OF ACCOUNTS................................................28
ARTICLE VII - DISTRIBUTION OF ACCOUNTS UPON TERMINATION, RETIREMENT, OR DEATH...29
ARTICLE VIII - IN-SERVICE WITHDRAWALS...........................................35
ARTICLE IX - LOANS..............................................................38
ARTICLE X - DESIGNATION OF BENEFICIARY..........................................41
ARTICLE XI - VOTING OF STOCK....................................................42
ARTICLE XII - TERMINATION OR SUSPENSION OF THE PLAN.............................43
ARTICLE XIII - TRUSTEE..........................................................44
ARTICLE XIV - ADMINISTRATION....................................................45
ARTICLE XV- GENERAL PROVISIONS..................................................51
APPENDIX A - SECTION 415 LIMITATIONS............................................53
APPENDIX B - TOP HEAVY PROVISIONS...............................................56
APPENDIX C - PARTICIPATING EMPLOYERS............................................58
APPENDIX D - SPECIAL RULES......................................................59
1
INTRODUCTION
This Curtiss-Wright Electro-Mechanical Division Savings Plan is effective as of
January, 2004 ("the Effective Date"). It has been established by and shall be
maintained by Curtiss-Wright Corporation, to provide retirement benefits for
eligible employees of Curtiss-Wright Electro-Mechanical Corporation ("CWEMC"), a
wholly owned subsidiary of Curtiss-Wright Corporation. The operations at which
the eligible employees are employed are referred to herein as the
Electro-Mechanical Division ("EMD") operations.
CWEMC acquired the operations that comprise EMD from Westinghouse Government
Services Company LLC. ("WGSC"), a subsidiary of Washington Group International,
Inc. ("WGI"), in a transaction that was effective as of October 29, 2002 ("the
Acquisition Date").
Prior to the acquisition of EMD by CWEMC, eligible employees at EMD participated
in the Westinghouse Government Services Group Savings Plan ("the Predecessor
Plan"), a plan that was maintained by WGSC, that was qualified under section
401(a) of the Code and that included a qualified cash or deferred arrangement,
within the meaning of section 401(k) of the Code. For the period between the
Acquisition Date and December 31, 2003, eligible employees at EMD continued to
participate in the Predecessor Plan pursuant to a Transition Services Agreement
between CWEMC and WGI. In accordance with an agreement between CWEMC and WGSC,
accounts maintained under the Predecessor Plan, for individuals who were
identified as "Employees" in Section 3.15(a) of the Asset Purchase Agreement
dated October 25, 2002 between WGSC and CWEMC relating to the purchase of
certain assets related to WGSC's Electro-Mechanical Division and who commenced
employment with the Employer or an Affiliated Entity in connection with such
agreement, and accounts maintained under the Predecessor Plan for individuals
who became employees of EMD during the period between the Acquisition Date and
the Effective Date, were transferred to the Plan in a transaction that complied
with section 414(l) of the Code, and that was effective as of the Effective
Date.
The provisions of the Plan, as set forth herein, are intended to apply to
participants who were employed at EMD on or after the Acquisition Date.
Intent and Construction:
The Plan is intended to comply with the qualification requirements of sections
401(a) and 401(k) of the Code and applicable regulations and rulings thereunder,
and shall be construed in accordance with such intention.
The Plan is conditioned upon and subject to obtaining such approval of the
Commissioner of Internal Revenue as may be necessary to establish the
deductibility for income tax purposes of any and all contributions hereunder,
other than Employee contributions.
2
ARTICLE I - DEFINITIONS
For purposes of the Plan, masculine pronouns include both men and women unless
the context indicates otherwise. The following words and phrases shall have the
meanings set forth below:
1. "Accounts" shall mean the After-Tax Account, Pre-Tax Account, Catch-Up
Contribution Account Employer Match Contribution Account, Rollover Account,
Pension Rollover Account, Additional Contribution Account, and Top-Heavy
Contribution Account.
2. "Actual Contribution Ratio (ACR)" shall mean, with respect to any
Participant, a fraction, the numerator of which equals the Employer Match
Contributions and After-Tax Contributions paid to the Trust for the Plan
Year on behalf of such Participant, and the denominator of which equals the
Participant's Compensation for the Plan Year. Notwithstanding the preceding
sentence, for all Plan Years after the first plan year (as that term is
defined in IRS Notice 98-1), with respect to a Participant who is a
Non-Highly Compensated Employee, "for the prior Plan Year" shall be
substituted for "for the Plan Year" in the preceding sentence.
3. "Actual Deferral Ratio (ADR)" shall mean, with respect to any Participant,
a fraction, the numerator of which equals the Pre-Tax Contributions paid to
the Trust for the Plan Year on behalf of such Participant, and the
denominator of which equals the Participant's Compensation for the Plan
Year. Notwithstanding the preceding sentence, for all Plan Years after the
first plan year (as that term is defined in IRS Notice 98-1), with respect
to a Participant who is a Non-Highly Compensated Employee, "for the prior
Plan Year" shall be substituted for "for the Plan Year" in the preceding
sentence.
4. "Additional Contribution" shall mean a qualified non-elective contribution
as defined in section 1.401(k)-1(g)(13)(ii) of the Treasury regulations,
which imposes the immediate forfeiture requirement and distribution
restrictions that are applicable to amounts allocable to a Participant's
Pre-Tax Account.
5. "Additional Contribution Account" shall mean an account established and
maintained on behalf of an Employee to which his Additional Contributions
are allocated.
6. "Administrative Committee" shall mean the person(s) appointed by the
Company to act on behalf of the Company as the sponsor and "named
fiduciary" (within the meaning of section 402(a)(2) of ERISA), as
appropriate, with respect to Plan administrative matters. When performing
any activity or exercising any authority under the provisions of the Plan,
the Administrative Committee shall be deemed to act solely on behalf of the
Company, and not in an individual capacity.
7. "Affiliated Entity" shall mean a subsidiary which is at least 50% owned by
the Company or a partnership or joint venture in which the Company is at
least a 50%
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owner that has not been designated as an Employer. The term Affiliated
Entity shall include all entities in the Controlled Group of each Employer.
8. "After-Tax Account" shall mean all After-Tax Contributions made to the Plan
by the Participant, with earnings thereon, and shall also include any
similar contributions (including earnings thereon) transferred to the Plan
from another qualified retirement plan.
9. "After-Tax Contribution" shall mean a contribution to the Plan deducted
from a Participant's Compensation on an after-tax basis in accordance with
the Participant's election made under Article III.1.a.
10. "Alternate Payee" shall mean the recipient or recipients of payments made
pursuant to a Qualified Domestic Relations Order.
11. "Annual Addition" shall mean the total for the Limitation Year of the items
listed below allocated to the account of an Employee under all defined
contribution plans sponsored by the Employer or the Employer's Controlled
Group (except that, for the purpose of this definition, "more than 50%"
shall be substituted for "80%" each place it appears in section 1563(a)(1)
of the Code):
a. employer contributions;
b. forfeitures;
c. employee contributions (other than rollovers); and
d. amounts described in section 415(l)(1) or 419A(d)(2) of the Code.
12. "Beneficiary" shall mean the person, or persons or entity named by a
Participant by written designation to receive benefits in the event of the
Participant's death as described in Article X.
13. "Board" shall mean the Board of Directors of the Company.
14. "Calendar Month" shall mean, with respect to Employees paid on a weekly
basis, the number of weekly payroll periods included by an Employer in a
particular calendar month for accounting purposes and, with respect to
Employees paid on a monthly basis, the particular calendar month.
15. "Casual Employee" shall mean a person who is hired either:
a. For a predetermined limited period of time usually not to exceed 3
months, or
b. For the purpose of completing a specific task that is anticipated not
to exceed 5 months and for whom the Employer has no expectation of
continued employment beyond the completion of that task.
The determination of who is a Casual Employee shall be made on a uniform
and nondiscriminatory basis.
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16. "Catch-Up Contribution" shall mean a contribution to the Plan deducted from
a Participant's Compensation on a pre-tax basis in accordance with the
Participant's election made under Article III.I.b.
17. "Catch-Up Contribution Account" shall mean all Catch-Up Contributions made
to the Plan by the Participant, with earnings thereon.
18. "Code" or "Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended.
19. "Company" shall mean Curtiss-Wright Corporation, a corporation organized
under the laws of the State of Delaware.
20. "Compensation" shall mean wages within the meaning of Code section 3401 (a)
and all other payments of compensation to an Employee by the Employer (in
the course of the Employer's trade or business) for which the Employer is
required to furnish the Employee a written statement on Form W-2 under
sections 6041(d), 6051(a)(3) and 6052 of the Code, and amounts contributed
by the Employer pursuant to a salary reduction agreement that are not
includible in the gross income of the Employee under sections 125,
402(e)(3), 402(h) or 132(f) of the Code.
Notwithstanding the preceding sentence, the term Compensation shall not
include: reimbursements or other expense allowances; fringe benefits (cash
or noncash); moving expenses; deferred compensation; welfare benefits.
Compensation shall also exclude any suggestion award or other
non-performance-related awards (other than retention bonuses or other
bonuses). In addition, the term Compensation does not include any awards
made under a corporate incentive program, such as gainsharing, goalshare,
or all employee variable pay programs, etc., unless (i) the Administrative
Committee determines that such awards shall constitute Compensation under
the Plan, and (ii) the Employer communicates the inclusion of such awards
in Compensation to all affected Participants prior to the effective date of
such inclusion. If the Administrative Committee communicates the inclusion
of gain-sharing awards in Compensation pursuant to (ii) in the preceding
sentence, Compensation under the Plan shall be deemed to include such
awards beginning on the effective date of such inclusion and for all
succeeding periods, unless and until the Employer again communicates that
Compensation shall not include such awards.
In no event shall the term Compensation include any annual incentive award
under a management incentive program, if paid to a Highly Compensated
Employee.
The annual Compensation of each Participant taken into account in
determining allocations for any Plan Year shall not exceed $200,000, as
adjusted for cost-of-living increases in accordance with section
401(a)(17)(B) of the Code. Annual Compensation means Compensation during
the Plan Year or such other consecutive 12-month period over which
Compensation is otherwise determined under the Plan (the determination
period). The cost-of-living adjustment in effect for a calendar year
applies to annual Compensation for the determination period that begins
with or within such calendar year.
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In addition, the Compensation taken into account under this Plan, when
added to compensation previously earned during a Plan Year from an
Affiliated Entity or an Excluded Unit shall not exceed the limit described
in the preceding paragraph in effect for such Plan Year.
21. "Controlled Group" means with respect to an Employer:
a. any corporation which is a member of a controlled group of
corporations within the meaning of section 1563(a) of the Code,
determined without regard to sections 1563(a)(4) and (e)(3)(C),
including the Employer;
b. any trade or business under common control with such Employer, within
the meaning of section 414(c) of the Code;
c. any employer which is included with such Employer in an affiliated
service group, within the meaning of section 414(m) of the Code; or
d. any other entity required to be aggregated with the Employer pursuant
to regulations under section 414(o) of the Code.
For purposes of Appendix A, "more than 50%" shall be substituted for "80%"
each place it appears in section 1563(a)(1) of the Code or section
1.414(c)-2 of the Treasury regulations.
22. "Dollar Limit" shall mean the dollar limitation on Pre-Tax Contributions
under section 402(g) of the Code in effect for a calendar year, as follows:
The Dollar Limit on Pre-Tax Contributions made on a Participant's behalf
with respect to calendar years beginning on or after the Effective Date and
prior to January 1, 2007 are limited in accordance with the following
table:
----------------------------
Calendar Year Dollar Limit
----------------------------
2004 $13,000
----------------------------
2005 $14,000
----------------------------
2006 $15,000
----------------------------
The Dollar Limit on Pre-Tax Contributions made on a Participant's behalf
with respect to any calendar year beginning after December 31, 2006 shall
be $15,000 (or such higher dollar limit as may be in effect with respect to
such year in accordance with Section 402(g)(4) of the Code as in effect for
calendar years beginning after December 31, 2001).
23. "Eligibility Service" shall mean service taken into account to determine a
Participant's vested status and shall be determined as follows:
a. For all Employees:
(1) Subject to the qualifications and limitations stated below in
subsection a(2), Eligibility Service means all periods of service
as an Employee with the Employer for which the Employee is
directly or indirectly paid, or
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entitled to payment, by the Employer for the performance of
duties, and time spent on any of the following:
(i) furlough;
(ii) disability up to a maximum continuous period of 2 years;
(iii) leaves of absence (other than military leaves and leaves
for personal reasons including educational leaves) up to a
maximum of 2 years;
(iv) military leaves of absence up to a maximum equal to that
period of time during which reemployment is required under
applicable Federal statutes; or
(v) layoffs up to a continuous period of one year.
If while an Employee is on disability leave of absence under
subsection a(1)(ii) above he is laid off, he shall begin to
accrue service only under subsection a(1)(v) above from that time
and shall continue to be credited with Eligibility Service under
subsection a(1)(v) for up to 1 year, but in no event shall the
combined service in such situation under subsections a.1(ii) and
a.1(v) exceed 2 years.
Eligibility Service shall be expressed in whole years and
fractions thereof. Any fraction of a year shall be expressed as a
decimal ratio of actual calendar days of service to the number of
days in that year.
(2) If the Employee is absent from service for any reason which does
not otherwise qualify him for Eligibility Service under the Plan,
and such absence is not due to quit, discharge, release,
retirement or death, he shall receive Eligibility Service of up
to 1 year for any continuous period of absence.
If the Employee is separated from service by reason of a quit,
discharge, release or retirement, and then is reemployed within
12 months of the date he was separated, the Employee's
Eligibility Service shall include the period between the date he
was separated and the date he was reemployed.
Notwithstanding the provisions of the previous two paragraphs, if
the Employee is separated from service by reason of a quit,
discharge, release or retirement during an absence from service
of 12 months or less for any reason other than a quit, discharge,
release or retirement and then is reemployed within 12 months of
the date on which he was first absent from service, the
Employee's Eligibility Service shall include the period between
his last day worked and the date he returns to work.
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b. For an individual who is identified as an "Employee" in Section
3.15(a) of the Asset Purchase Agreement dated October 25, 2002 between
WGSC and Curtiss-Wright Electro-Mechanical Corporation relating to the
purchase of certain assets related to WGSC's Electro-Mechanical
Division and who commences employment with the Employer or an
Affiliated Entity in connection with such agreement ("a WGSC
Transferee") (and individuals who would have been identified as such
"Employees" except that they had previously retired or terminated from
employment), Eligibility Service shall include any Eligibility Service
credited under the Westinghouse Government Services Group Savings Plan
for periods prior to transfer of employment pursuant to the agreement.
24. "Employee" shall mean a person who is either not represented or who is
employed in a unit represented by a labor organization or other
representative which is recognized by an Employer as the representative of
such unit for the purpose of collective bargaining and has entered into a
written agreement with an Employer providing for participation in the Plan
by the Employees in such unit, provided:
a. Such person is in the regular service of an Employer and is neither
employed in an Excluded Unit, nor a leased employee (as defined in
section 414(n)(2) of the Code); or
b. Such person is a citizen of the United States or a resident alien (as
defined in section 7701(b) of the Code) who is an Employee of either a
domestic subsidiary (as defined in section 407 of the Code) or of a
foreign subsidiary as to which an Employer has entered into an
agreement under section 3121(l) of the Code and with respect to whom
contributions under a funded plan of deferred compensation (whether or
not described in sections 401(a), 403 (a) or 405(a) of the Code) are
not provided by any person or company other than the Employer with
respect to the remuneration paid to the citizen or resident alien by
the domestic or foreign subsidiary.
25. "Employer" means (a) the Company, (b) an at least 50%-owned subsidiary of
the Company, or (c) an entity designated as an Employer in Appendix C.
26. "Employer Match Contribution Account" shall mean all Employer Match
Contributions made to the Plan by the Employer, with earnings thereon, and
shall also include any similar contributions (including earnings thereon)
transferred to the Plan from another qualified retirement plan.
27. "Employer Match Contribution" shall mean a contribution made by the
Employer pursuant to Article III.2.
28. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
29. "Excluded Unit" means any group, or other organizational unit, of employees
of the Company, other than (a) the business unit denominated as the
Electro-Mechanical Division of Curtiss-Wright Flow Control Corporation and
(b) any group or unit that has been designated by the Administrative
Committee as eligible to participate in this Plan.
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30. "Fixed Income Fund" shall mean an Investment Fund designed to preserve
capital and to provide a relatively stable and predictable rate of
interest.
31. "Highly Compensated Employee" means any Employee who:
(1) was a 5% owner, as defined in section 416(b)(1)(B)(i) of the Code at
any time during the year or the preceding year, or
(2) for the preceding year had compensation from the Company or a
Controlled Group member in excess of $80,000. The $80,000 amount is
adjusted at the same time and in the same manner as under section
415(d) of the Code, except that the base period is the calendar
quarter ending September 30, 1996.
For purposes of determining which Employees shall be deemed Highly
Compensated Employees, the applicable year of the Plan for which a
determination is being made is called a determination year and the
preceding 12-month period is called a look-back year.
A Highly Compensated Former Employee is determined based on the rules
applicable to determining Highly Compensated Employee status for the
determination year in which the Employee separated from service, in
accordance with section 1.414(q)-1T, Q&A-4 of the Treasury regulations and
IRS Notice 97-75.
32. "Investment Fund" shall mean an investment option, selected by the
Administrative Committee, under Article IV.1 of the Plan, to which
Participants may direct investment of amounts in their Accounts. Investment
Funds may include the Fixed Income Fund, the Mutual Funds, and any other
investment option selected by the Administrative Committee.
33. "Investment Manager" shall mean a fiduciary appointed by the Administrative
Committee to manage the investment of any portion of the assets of the
Plan. Each Investment Manager shall either (a) satisfy the conditions to be
an "Investment Manager," as described by section 3(38) of ERISA, or (b) be
a "named fiduciary" of the Plan.
34. "Layoff" shall mean the termination of the employment of an Employee with
an Employer or Affiliated Entity through no fault of the Employee for lack
of work for reasons associated with the business where the Employer or
Affiliated Entity determines there is a reasonable expectation of recall
within one year.
Notwithstanding the foregoing, a person who would otherwise be considered
to be on Layoff may take certain actions which would result in the
severance of his relationship with the Employer. At the time such action is
taken, that person shall become a voluntary quit and shall no longer be
considered on Layoff.
35. "Limitation Year" shall mean the Plan Year.
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36. "Mutual Fund" shall mean an open-end investment company registered under
the Investment Company Act of 1940 that is selected by the Administrative
Committee as an Investment Fund under Article IV.1 of the Plan.
37. "Non-Highly Compensated Employee" shall mean any Employee who is not a
Highly Compensated Employee.
38. "Non-Vested Participant" shall mean an Active Participant who does not have
a nonforfeitable right to his Employer Match Contribution Account.
39. "Normal Retirement Date" shall mean the first of the month following the
later of the month during which the Participant's 65th birthday occurs or
the month during which the Participant completes 5 years of Eligibility
Service.
40. "NYSE" shall mean the New York Stock Exchange.
41. "Participant" shall mean any person who has an Account in the Plan.
42. "Pension Rollover Account" shall mean all amounts attributable to after-tax
employee contributions transferred to the Plan pursuant to Article IV.4
from the Curtiss-Wright Electro-Mechanical Division Pension Plan, with
earnings thereon.
43. "Plan" shall mean the Curtiss-Wright Electro-Mechanical Division Savings
Plan as set forth in this document or as amended from time to time, which
is intended to be qualified under section 401(a) and section 401(k) of the
Code.
44. "Plan Administrator" shall mean the Company the party delegated to serve as
the Plan Administrator in accordance with Article XIV.3.
45. "Plan Year" shall mean the calendar year. The first Plan Year shall be the
calendar year beginning on January 1, 2004, the Effective Date of the Plan.
46. "Pre-Tax Account" shall mean all Pre-Tax Contributions made to the Plan by
the Participants, with earnings thereon, and shall also include any similar
contributions (including earnings thereon) transferred to the Plan from
another qualified retirement plan. Pre-Tax Accounts are subject to the
distribution restrictions set out in section 401(k)(2) of the Code
1.401(k)-1(d)(1) of the Treasury regulations (which regulations permit
distributions only after one of the following events: (i) an employee's
retirement, death, disability, or severance from employment; (ii) the
termination of a plan without establishment or maintenance of another
defined contribution plan other than an ESOP or SEP (but only with respect
to lump sum distributions); and (iii) an employee's attainment of age 59
1/2 or hardship (but only with respect to a profit-sharing or stock bonus
plan).
47. "Pre-Tax Contribution" shall mean a contribution to the Plan deducted from
a Participant's Compensation on a pre-tax basis in accordance with the
Participant's election made under Article III.1.a.
48. "Qualifled Domestic Relations Order" or "QDRO" shall mean a court order as
defined in section 414(p) of the Code.
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49. "Retired Participant" shall mean a Participant who is no longer an Employee
and who has retired under an Employer pension plan. This term does not
refer to a Participant who has terminated with a right to a vested pension
under an Employer pension plan.
50. "Rollover Account" shall mean all amounts transferred to the Plan pursuant
to Article IV.4 as a Rollover Distribution from a qualified defined
contribution or defined benefit plan or a distribution from an individual
retirement account (as described in section 408(d)(3)(A) of the Code), and
earnings thereon, and all amounts, other than after-tax employee
contributions, transferred to the Plan pursuant to Article IV.4 from the
Curtiss-Wright Electro-Mechanical Division Pension Plan.
51. "Rollover Distribution" shall mean one or more distributions which, under
section 402 of the Code, are eligible for rollover to this Plan.
52. "Self-Managed Account" shall mean an Investment Fund designed to allow
Participants to select from among a variety of investment alternatives.
53. "Surviving Spouse" shall mean the spouse of a Participant on the date of
his death.
54. "Terminated Participant" shall mean a Participant (not including a
Participant who has been on Layoff for 12 months or less or is employed at
an Affiliated Entity or employed in an Excluded Unit) who is no longer an
Employee and is not a Retired Participant. A Participant who is not a
Retired Participant, but has incurred a severance from employment shall be
deemed a Terminated Participant.
55. "Top-Heavy Contribution" shall mean a contribution made by the Employer
pursuant to Appendix B of the Plan.
56. "Top-Heavy Contribution Account" shall mean an account established and
maintained on behalf of a Participant to which his Top-Heavy Contributions,
if any, are allocated.
57. "Totally Disabled Participant" shall mean a Participant who at the time he
stops accruing Eligibility Service is not able, because of injury or
sickness, to engage in any gainful occupation for which he is reasonably
fitted by education, training or experience provided he has completed at
least 10 years of Eligibility Service.
58. "Trading Day" shall mean any day on which the NYSE is open for business. A
Trading Day ends when the NYSE closes for business on such day.
59. "Trust" shall mean the Curtiss-Wright Electro-Mechanical Division Savings
Plan Trust established pursuant to the Plan.
60. "Trustee" shall mean the trustee(s) from time to time in office pursuant to
appointments made in accordance with the Plan.
61. "Unit" shall mean the equitable share interest of a Participant within an
Investment Fund other than a Self-Managed Account.
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62. "Valuation Date" shall mean any Trading Day.
63. "Vested Participant" shall mean a Participant who has a nonforfeitable
right to his Employer Match Contribution Account under the requirements of
Article VI.
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ARTICLE II - ELIGIBILITY AND PARTICIPATION
1. Any Employee who was a participant in the Westinghouse Government Services
Group Savings Plan ("the WGSG Plan") on December 31, 2003 shall be eligible
to participate in the Plan on January 1, 2004. Any other Employee shall be
eligible to participate in the Plan immediately upon employment by an
Employer. To participate an Employee must apply in accordance with
procedures established by the Plan Administrator.
2. If a Participant transfers employment from an Employer to an Affiliated
Entity, an Excluded Unit, he shall remain a Participant for all purposes of
the Plan, except that he shall not be eligible to contribute and no
Employer Match Contributions shall be made on his behalf for the period of
time he is employed by the Affiliated Entity, Excluded Unit.
3. If a Retired Participant or a Terminated Participant is rehired as an
Employee, he may immediately participate in the Plan, and any previous
Eligibility Service shall be restored.
4. If a Retired Participant is rehired as an Employee and he has Accounts
remaining in this Plan, the Plan Administrator will segregate any new
contributions into separate Accounts so that the Accounts as a Retired
Participant are always available for immediate withdrawal under any
circumstances.
5. A Participant shall no longer be eligible to contribute to the Plan upon
the earlier of the following:
a. The date the Participant ceases to be an Employee; or
b. The effective date of complete termination of the Plan under Article
XII.
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ARTICLE III - CONTRIBUTIONS
1. Participant Contributions.
a. After-Tax Contributions and Pre-Tax Contributions:
A Participant may elect to save at a rate of 2% to 20% of his
Compensation, in increments of 1%, on an after-tax basis, a pre-tax
basis or a combination thereof.
Contributions to the Plan on an after-tax basis as After-Tax
Contributions shall be deducted from the Participant's Compensation
and shall be allocated to the Participant's After-Tax Account.
Contributions to the Plan on a pre-tax basis as Pre-Tax Contributions
shall be based on a Participant's agreement to reduce his Compensation
and to have the amount by which his Compensation is so reduced
contributed to the Plan by the Employer, and shall be allocated to the
Participant's Pre-Tax Account, provide, however, that a Participant's
Pre-Tax Contributions for a Plan Year shall not exceed the Dollar
Limit.
Each Participant shall make such election with the Plan Administrator,
in accordance with reasonable procedures established by the Plan
Administrator, specifying the portion of his Compensation that is to
be contributed to the Plan as After-Tax and/or Pre-Tax Contributions.
The election of the Participant shall remain in effect until a new
election from that Participant is received by the Plan Administrator.
For an individual who was a participant in the WGSG Plan and who is an
Employee of an Employer as of the Effective Date ("a WGSC Plan
Transferee"), the most recent contribution election under the WGSGS
Plan shall remain in effect under this Plan until changed by the
Participant.
b. Catch-Up Contributions:
(1) A Participant who satisfies the requirements of Article
III.1.b(2) for a Plan Year shall be eligible to elect, in
accordance with Article III.1.b(3), to reduce his Compensation
and to have the amount by which his Compensation is so reduced
contributed to the Plan by his Employer as a Catch-up
Contribution, provided, however, that such Catch-up Contributions
shall be subject to the conditions set forth in Article
III.1.b(4),(5),(6).
(2) A Participant satisfies the requirements of this subsection for a
Plan Year if his 50th birthday is coincident with or prior to the
last day of the Plan Year.
(3) A Participant described in subsection (b) may elect to make
Catch-up Contributions in the amount of 1% to 20% of Compensation
for each payroll period during which such election remains in
effect.
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(4) A Participant's Catch-Up Contributions in calendar years
beginning after on or after the Effective Date and prior to
January 1, 2007 shall be limited in accordance with the following
table:
---------------------------------
Calendar Year Dollar Limitation
---------------------------------
2004 $3,000
---------------------------------
2005 $4,000
---------------------------------
2006 $5,000
---------------------------------
Catch-Up Contributions made on a Participant's behalf with
respect to any calendar year beginning after December 31, 2006
shall limited to $5,000, as adjusted in accordance with section
414(v)(2)(C) of the Code. In no event shall the Participant's
Catch-Up Contributions for a Plan Year exceed the excess of his
Pre-Tax Contributions for such Plan Year over his Compensation
for such Plan Year.
(5) If, as of the end of a Plan Year in which a Participant has made
Catch-up Contributions in accordance with Article III.1.b(3), it
is determined that:
(i) the amount of his Pre-Tax Contributions for such Plan Year
is less than the Dollar Limit in effect for such Plan Year,
and
(ii) the amount of his Pre-Tax Contributions is less than the
excess of 20% of his Compensation over the amount of his
After-Tax Contributions,
then the amount deemed to have been contributed as a Catch-up
Contribution shall be reduced by the lesser of the (A) the excess
of the Dollar Limit over the amount of his Pre-Tax Contributions
or (B) the excess of 25% of his Compensation over the sum of his
Pre-Tax Contributions and his After-Tax Contributions, and the
amount by which his Catch-up Contributions are so reduced shall
be recharacterized as a Pre-Tax Contribution for such Plan Year,
for all purposes of Article III.
(6) The provisions of this subsection shall be subject to the
requirements of section 414(v) of the Code and Regulations
thereunder.
2. Employer Match Contributions
Effective as of the end of each Calendar Month, for each dollar a
Participant contributes on either an after-tax basis or a pre-tax basis,
his Employer shall contribute $0.50 into the Participant's Employer Match
Contribution Account, subject to a maximum Employer Match Contribution of
3% of the Participant's Compensation for that month. Employer Match
Contributions shall first be made with respect to Participant contributions
made on a pre-tax basis, then with respect to Participant contributions
made on an after-tax basis.
15
No Employer Match Contributions shall be made with respect to Catch-Up
Contributions made by a Participant in accordance with Article III.1.b
3. Any amounts credited to any Account for a Participant that are forfeited by
such Participant pursuant to any provision of the Plan shall not be
returned to the Company but shall be used to reduce the obligations of the
Company to make Employer Match Contributions under the Plan.
4. Treatment of Excess Elective Deferral Amounts.
The Plan shall not incur any Excess Elective Deferrals. Notwithstanding any
other provision of the Plan, Excess Elective Deferrals as adjusted for
income or losses thereon shall be distributed to the Participants in
accordance with this Article.
a. For purposes of this Article, the following definitions shall have the
following meanings:
(1) "Elective Deferrals" for a taxable year means the sum of all
Employer contributions made on behalf of a Participant pursuant
to an election to defer under any qualified CODA as described in
section 401(k) of the Code, any simplified employee pension cash
or deferred arrangement as described in section 402(h)(1)(B) of
the Code, any arrangement described in section 408(p)(2)(A)(i) of
the Code, and any Employer contributions made on behalf of a
Participant for the purchase of an annuity contract under section
403(b) of the Code pursuant to a salary reduction agreement.
(2) "Excess Elective Deferrals" shall mean those Elective Deferrals
that are includable in a Participant's gross income under section
402(g) of the Code because they exceed the Dollar Limit. Excess
Elective Deferrals shall be treated as Annual Additions under the
Plan, unless they are distributed by April 15 of the year
following the calendar year in which they were made.
b. A Participant may assign to this Plan any Excess Elective Deferrals
made during the taxable year of the Participant by filing a claim in
writing with the Plan Administrator no later than March 1 following
the year in which the Excess Elective Deferral was made. Said claim
shall specify the Participant's Excess Elective Deferral amount for
the preceding calendar year, and shall be accompanied by the
Participant's written statement that if such amounts are not
distributed, such Excess Elective Deferral amount, when added to
amounts deferred under other plans or arrangements described in
section 401(k), 408(k), 403(b), or 408(p) of the Code, shall exceed
the Dollar Limit for the year in which the deferral occurred. A
Participant shall be deemed to have given the notification described
above if the Excess Elective Deferral results from Elective Deferrals
to this Plan or other plans of the Employer or the Employer's
Controlled Group.
16
c. A Participant who has an Excess Elective Deferral during a taxable
year may receive a corrective distribution. Such a corrective
distribution shall be made if:
(1) the Participant designates the distribution as an Excess Elective
Deferral or is deemed to make the designation under paragraph 4.b
above;
(2) the corrective distribution is made after the date on which the
Plan received the Excess Elective Deferral; and
(3) the Plan Administrator designates the distribution as a
distribution of an Excess Elective Deferral.
d. The Excess Elective Deferral distributed to a Participant with respect
to a calendar year shall be adjusted to reflect income or loss in the
Participant's Pre-Tax Account for the taxable year allocable thereto.
The income or loss allocable to such Excess Elective Deferral Amount
shall be determined in accordance with section 402(g) of the Code and
the regulations thereunder.
e. Excess Elective Deferral amounts, as adjusted for income and losses,
shall be distributed to the Participant no later than April 15 of the
year following the calendar year in which such Excess Elective
Deferral was made.
5. Actual Deferral Percentage Test.
The actual deferral percentage (ADP) for Participants who are Highly
Compensated Employees shall not exceed the greater of a or b, as follows:
a. the ADP of Participants who are Non-Highly Compensated Employees times
1.25; or
b. the ADP of Participants who are Non-Highly Compensated Employees times
2.0, but not to exceed the ADP of Participants who are Non-Highly
Compensated Employees by more than 2 percentage points.
6. ADP Formula.
a. The ADP for a specified group of Participants for a Plan Year shall be
the average of the Actual Deferral Ratios (ADR) calculated separately
for each Participant in such group.
The Plan Administrator shall determine as soon as practicable after
the end of the Plan Year whether the ADP for Highly Compensated
Employees satisfies either of the tests contained in Article III.5. In
the event neither test is satisfied, the Plan Administrator may elect
any of the following:
(1) to recharacterize all or any portion of the Pre-Tax Contributions
for Highly Compensated Employees as After-Tax Contributions as
provided in Article III.8;
17
(2) to reduce the allowable Pre-Tax Contributions for Highly
Compensated Employees as provided in Article III.9; or
(3) to make an Additional Contribution (subject to the requirements
of Article III.10 for all or a portion of Non-Highly Compensated
Employees eligible to make contributions under Article III.1.a,
in a level dollar amount or a uniform percentage of Compensation,
as the Company shall elect, within the time period required by
any applicable law or regulation.
b. The Plan shall take into account the ADRs of all eligible Employees
for purposes of the ADP test. For this purpose, an eligible Employee
is any Employee who is directly or indirectly eligible to make Pre-Tax
Contributions under the Plan for all or a portion of a Plan Year,
including an Employee who would be eligible but for his failure to
make Pre-Tax Contributions and an Employee whose eligibility to make
Pre-Tax Contributions has been suspended because of an election not to
participate. In the case of an eligible Employee who makes no Pre-Tax
Contributions, the ADR for such Employee that is to be included in
determining the ADP is zero.
c. A Pre-Tax Contribution shall be taken into account under the ADP test
for a Plan Year only if it relates to Compensation that either would
have been received by the Employee in the Plan Year (but for the
deferral election) or is attributable to services performed by the
Employee in the Plan Year and would have been received by the Employee
within 2 1/2 months after the close of the Plan Year (but for the
deferral election).
d. A Pre-Tax Contribution shall be taken into account under the ADP test
for a Plan Year only if it is contributed to the Trust before the last
day of the twelve-month period immediately following the Plan Year to
which the contribution relates and is allocated within the Plan Year
to which the contribution relates. A Pre-Tax Contribution is
considered allocated as of a date within a Plan Year if the allocation
is not contingent on participation or performance of services after
such date.
e. The ADR and ADP shall be calculated to the nearest 0.01%.
7. Calculation of Excess Contributions.
a. The aggregate amount of all Pre-Tax Contributions for all Highly
Compensated Employees in excess of that permitted under Article III.5
(hereinafter, "Excess Contributions") shall be determined in the
following manner. First, the ADR of the Highly Compensated Employee
with the highest ADR is reduced to the extent necessary to satisfy the
ADP test or cause such ADR to equal the ADR of the Highly Compensated
Employee with the next highest ADR. This process is repeated until the
ADP test is satisfied. The amount of Excess Contributions for a Highly
Compensated Employee is the difference between the total of Pre-Tax
and other contributions (if any) taken into account for the ADP test,
and the product of the Employee's ADR at the time the ADP test is
satisfied, as determined above, multiplied by the Employee's
Compensation.
18
b. The amount of Excess Contributions that are recharacterized under
Article III.8, or distributed under Article III.9, with respect to an
Employee for a Plan Year, shall be reduced by Excess Elective
Deferrals previously distributed to the Employee for the Employee's
taxable year ending with or within the Plan Year, in accordance with
section 402(g)(2) of the Code, and Excess Elective Deferrals to be
distributed for a taxable year will be reduced by Excess Contributions
previously distributed or recharacterized for the Plan Year beginning
in such taxable year.
8. Recharacterization of Excess Contributions.
Excess Contributions may be recharacterized as After-Tax Contributions.
Recharacterized amounts shall be reallocated to the Participant's After-Tax
Account, but shall continue to be fully vested and subject to distribution
limitations that apply to Pre-Tax Accounts. In no event shall any amount be
recharacterized for a Highly Compensated Employee to the extent such amount
in combination with other contributions exceeds any other limit under the
Plan. Recharacterization must occur no later than April 15 of the year
following the Plan Year in which the original contributions were made. Such
recharacterization of Excess Contributions shall be made, first, with
respect to the Highly Compensated Employee with the highest dollar amount
of Pre-Tax Contributions in an amount sufficient to cause such Highly
Compensated Employee's Pre-Tax Contributions to equal the dollar amount of
Pre-Tax Contributions of the Highly Compensated Employee with the next
highest dollar amount of Pre-Tax Contributions. This process is repeated
until the total Excess Contributions determined in Article III.7 are
recharacterized.
9. Distribution of Excess Contributions.
Excess Contributions may be distributed to Participants on whose behalf
such Excess Contributions were made, in the manner set out in the following
paragraph, no later than the last day of the Plan Year following the Plan
Year for which they were made. Excess Contributions that are distributed
shall be adjusted to reflect income (or loss) allocable thereon, determined
using a reasonable method of computing the income (or loss) allocable to
Excess Contributions, provided that the method does not violate section
401(a)(4) of the Code, is used consistently for all Participants and for
all corrective distributions under the Plan for the Plan Year, and is used
by the Plan for allocating income (or loss) to Participant Accounts.
Distributions of the total Excess Contributions determined in Article III.7
shall be made, first, to the Highly Compensated Employee with the highest
dollar amount of Pre-Tax Contributions in an amount sufficient to cause
such Highly Compensated Employee's Pre-Tax Contributions to equal the
dollar amount of PreTax Contributions of the Highly Compensated Employee
with the next highest dollar amount of Pre-Tax Contributions. This process
is then repeated until the total Excess Contributions determined in Article
III.7 are distributed.
10. Additional and Employer Match Contributions.
19
Additional Contributions and Employer Match Contributions may be treated as
Pre-Tax Contributions for purposes of the ADP test only if such
contributions are nonforfeitable when made and subject to the same
distribution restrictions that apply to elective contributions. Additional
Contributions and Employer Match Contributions which may be treated as
Pre-Tax Contributions must satisfy these requirements without regard to
whether they are actually taken into account as Pre-Tax Contributions for
purposes of satisfying the ADP test.
Additional Contributions and/or Employer Match Contributions may be treated
as Pre-Tax Contributions only if the conditions described in section
1.401(k)-1(b)(5) of the Treasury regulations are satisfied.
In combination, (a) the Additional and Employer Match Contributions for
Non-Highly Compensated Employees made under this Article III.10, (b) the
distribution of Excess Contributions for Highly Compensated Employees in
accordance with Article III.9, and/or (c) the recharacterized contributions
under Article III.8, shall be such that at least one of the tests contained
in Article III.5 is satisfied, or the distribution requirements in Article
III.9 are satisfied.
11. Forfeiture of Employer Match Contributions.
Any Employer Match Contributions made on account of an Excess Contribution
or an Excess Elective Deferral shall be forfeited and shall be used to
reduce the amount of Employer Match Contributions required to be made by
the Employer for the year of forfeiture.
12. Actual Contribution Percentage Test.
The actual contribution percentage (ACP) for Participants who are Highly
Compensated Employees shall not exceed the greater of a or b as follows:
a. the ACP of Participants who are Non-Highly Compensated Employees times
1.25; or
b. the ACP of Participants who are Non-Highly Compensated Employees times
2.0, but not to exceed the ACP of Participants who are Non-Highly
Compensated Employees by more than 2 percentage points.
13. ACP Formula.
a. The ACP for a specified group of Participants for a Plan Year shall be
the average of the Actual Contribution Ratios (ACR) calculated
separately for each Participant in such group.
The Plan Administrator shall determine as soon as practicable after
the end of the Plan Year whether the ACP for Highly Compensated
Employees satisfies either of the tests contained in Article III.12.
In the event neither test is satisfied, the Plan Administrator may
elect either of the following:
20
(1) to reduce the allowable Employer Match Contribution and/or
After-Tax Contributions for Highly Compensated Employees as
provided in Article III.14; or
(2) to make an Additional Contribution for all or a portion of
Non-Highly Compensated Employees eligible to make contributions
under Article III.1.a in a level dollar amount or a uniform
percentage of Compensation, as the Plan Administrator shall
elect, within the time period required by any applicable law or
regulation.
b. The Plan shall take into account the ACRs of all eligible Employees
for purposes of the ACP test. For this purpose, an eligible Employee
is any Employee who is directly or indirectly eligible to receive an
allocation of Employer Match Contributions, including an Employee who
would be eligible but for his failure to make After-Tax and/or Pre-Tax
Contributions and an Employee whose right to receive Employer Match
Contributions has been suspended because of an election not to
participate. In the case of an eligible Employee who receives no
Employer Match Contributions, the ACR that is to be included in
determining the ACP is zero.
c. An Employer Match Contribution shall be taken into account under the
ACP test for a Plan Year only if it is made on account of the eligible
Employee's After-Tax and/or Pre-Tax Contributions for the Plan Year,
contributed to the Trust before the last day of the twelve-month
period immediately following the Plan Year to which the contributions
relate and is allocated within the Plan Year to which the
contributions relate. Employer Match Contributions which are used to
meet the requirements of section 401(k)(3)(A) of the Code are not
taken into account.
d. The ACR and ACP shall be calculated to the nearest 0.01%.
14. Calculation of Excess Aggregate Contributions.
a. The aggregate amount of contributions for all Highly Compensated
Employees in excess of that permitted under Article III.12
(hereinafter, "Excess Aggregate Contributions") shall be determined in
the following manner. First, the ACR of the Highly Compensated
Employee with the highest ACR is reduced (first, as to After-Tax
Contributions, if any, then as to Employer Match Contributions) to the
extent necessary to satisfy the ACP test or cause such ACR to equal
the ACR of the Highly Compensated Employee with the next highest ACR.
This process is repeated until the ACP test is satisfied. The amount
of Excess Aggregate Contribution for a Highly Compensated Employee is
the difference between the total of Employer Match Contributions and
other contributions taken into account for the ACP test, and the
product of the Employee's ACR at the time the ACP test is satisfied,
as determined above, multiplied by the Employee's Compensation.
b. The amount of Excess Aggregate Contributions for a Plan Year shall be
determined only after first determining the Excess Contributions that
are treated as Employee After-Tax Contributions (if any) due to
recharacterization
21
of such contributions made to this Plan, or to another plan aggregated
with this Plan under Article III.18, for the Plan Year.
15. Distribution of Excess Aggregate Contributions.
Excess Aggregate Contributions shall be distributed, in a manner that
satisfies the requirements described in section 1.401(a)(4)-4 of the
Treasury regulations (so that after correction each level of matching
contributions will be currently and effectively available to a group of
employees that satisfies section 410(b) of the Code), to Participants on
whose behalf such Excess Aggregate Contributions were made, in the manner
set out in the following paragraph, to the extent vested, no later than the
last day of the Plan Year following the Plan Year for which they were made.
Non-vested Excess Aggregate Contributions shall be applied as provided in
Article III.17. Excess Aggregate Contributions shall be adjusted to reflect
income (or loss) allocable thereon, determined using a reasonable method of
computing the income (or loss) allocable to Excess Aggregate Contributions,
provided that the method does not violate section 401(a)(4) of the Code, is
used consistently for all Participants and for all corrective distributions
under the Plan for the Plan Year, and is used by the Plan for allocating
income (or loss) to Participant Accounts.
Distributions of the total Excess Aggregate Contributions determined in
Article III.14 shall be made, first, to the Highly Compensated Employee
with the highest dollar amount of Employer Match Contributions and
After-Tax Contributions in an amount sufficient to cause such Highly
Compensated Employee's Employer Match Contributions and After-Tax
Contributions to equal the dollar amount of Employer Match Contributions
and After-Tax Contributions of the Highly Compensated Employee with the
next highest dollar amount of Employer Match Contributions and After-Tax
Contributions. This process is then repeated until the total Excess
Aggregate Contributions determined in Article III.14 are distributed.
16. Additional Contributions.
Additional Contributions may be treated as Employer Match Contributions
only if the conditions described in section 1.401(m)-1(b)(5) of the
Treasury regulations are satisfied.
In combination, (a) the amount of Additional Contributions for Non-Highly
Compensated Employees made under this Article III.16. and/or (b) the
distribution of Excess Aggregate Contributions to Highly Compensated
Employees under Article III.15 shall be such that at least one of the tests
contained in Article III.12 is satisfied, or the distribution requirements
in Article III.15 are satisfied.
17. Forfeitures.
Amounts forfeited by Highly Compensated Employees due to the distribution
of Excess Aggregate Contributions shall be treated as an Annual Addition
under the Plan and shall be applied to reduce future Employer Match
Contributions required to be made by the Employer. No forfeiture arising
under this Article shall be allocated to the account of any Highly
Compensated Employee.
22
18. Special Rules.
a. The ADR and ACR for an Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to make Pre-Tax
Contributions, or to have Employer Match Contributions allocated to
his Accounts, or to make After-Tax Contributions, under 2 or more
plans that are maintained by an Employer or the Employer's Controlled
Group shall be determined as if all such contributions were made under
a single plan.
b. In the event that this Plan satisfies the requirements of sections
410(b) and 401(a)(4) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of
sections 410(b) and 401(a)(4) of the Code only if aggregated with this
Plan, then the contribution percentages and deferral percentages of
Participants shall be determined as if all such plans were a single
plan.
c. The determination and treatment of the contribution percentage of any
Participant shall satisfy such other requirements as may be prescribed
by the Secretary of the Treasury.
19. Adjustments to Contribution Limits.
Notwithstanding any other Plan provision, the Plan Administrator may limit
the Pre-Tax Contribution percentage for Employees who have reached the
Dollar Limit, or the Pre-Tax and/or After-Tax Contribution percentage(s)
for all or a class of Highly Compensated Employees, as it determines is
necessary or desirable to assure that the Plan satisfies the requirements
of this Article II. To the extent no other Plan requirement is violated,
that portion of any elected Pre-Tax Contribution percentage which is
limited under this Article III.19, shall instead be treated as an election
to make After-Tax Contributions.
20. Adjustments to Contributions.
A Participant may increase or decrease his rate of After-Tax and/or Pre-Tax
Contributions at any time by making a new election with the Plan
Administrator in accordance with reasonable procedures established by the
Plan Administrator. A Participant may suspend After-Tax and/or Pre-Tax
Contributions at any time by providing notice to the Plan Administrator in
accordance with reasonable procedures established by the Plan
Administrator. A Participant may recommence After-Tax and/or Pre-Tax
Contributions to the Plan at any time by making a new election with the
Plan Administrator. All elections of adjustments to contributions shall be
effective as soon as practicable after the election is filed with the Plan
Administrator.
21. Permitted Employer Refunds.
Employer contributions hereunder shall be refunded to the Employer under
the limited circumstances listed below:
a. Any contribution made by the Employer due to a mistake of fact shall
be refunded to the Employer within one year of such contribution.
23
b. Employer contributions are expressly conditioned on deductibility
under section 404 of the Code. Any contribution that is disallowed as
a deduction shall be refunded to the Employer within one year of such
disallowance.
c. Contributions under the Plan are conditioned upon the initial
qualification of the Plan under section 401(a) of the Code, and any
contributions shall be refunded to the Employer within one year of a
determination by the Internal Revenue Service that the Plan is not
qualified.
d. Refunds of contributions due to a disallowance of deduction, a mistake
of fact, or a determination by the Internal Revenue Service that the
Plan is not qualified shall not include earnings attributable to the
amount being refunded due to disallowance, mistake, or determination
that the Plan is not qualified, but losses thereto shall reduce the
amount to be refunded.
24
ARTICLE IV - INVESTMENT OPTIONS AND TRANSFERS TO AND FROM THE
TRUST
1. All amounts in the Participants' Accounts shall be invested in one or more
of the Investment Funds, which shall be designated by the Administrative
Committee. Investment Funds may include (but are not limited to) the Fixed
Income Fund, the Self-Managed Account and Mutual Funds as designated by the
Administrative Committee. No contributions may be allocated directly to the
Self-Managed Account.
The Administrative Committee, in its discretion, may change or terminate
the existing Investment Funds or establish additional Investment Funds at
any time. However, any Investment Fund that is not an investment company
registered under the Investment Company Act of 1940 shall be managed by an
Investment Manager appointed by the Administrative Committee. The selection
of Investment Fund choices and the administration of Plan investments are
intended to comply with the requirements of section 404(c) of ERISA and the
regulations thereunder. To the extent the requirements of section 404(c) of
ERISA are satisfied, neither the Administrative Committee, the Plan
Administrator, the Trustee, nor any other Plan fiduciary, shall be
responsible for any losses resulting from a Participant's individual
selection of Investment Fund choices.
2. All funds of the Plan shall be invested by the Trustee in accordance with
the provisions of the Plan and Trust Agreement.
3. A Participant shall elect an investment mix in accordance with procedures
established by the Plan Administrator. Subject to the limitation in Article
IV.1 regarding investments in the Self-Managed Account, contributions may
be invested in any combination of the investment options available under
the Plan in increments of 1%. The Participant may change his election at
any time by notifying the Plan Administrator, in accordance with reasonable
procedures established by the Plan Administrator, to be effective with the
first payroll disbursed after receipt and completion of processing by the
Plan Administrator of such direction.
For a Participant who is a WGSC Plan Transferee, as defined in Article
III.1.a (or an individual who would have been identified as an "Employee"
under Section 3.15(a) of the Asset Purchase Agreement dated October 25,
2002 between WGSC and CWEMC relating to the purchase of certain assets
related to WGSC's Electro-Mechanical Division, except that he had
previously retired or terminated from employment), the Participant's most
recent investment election, if any, under the WGSGS Plan shall remain in
effect under this Plan for purposes of allocating contributions hereunder
until changed by the Participant; provided, however, that any amount
designated to be allocated to an Investment Fund that is not offered under
this Plan shall instead be allocated to the most similar Investment Fund
offered under the Plan, as determined by the Plan Administrator.
4. A Participant other than a Terminated Participant who has received a
Rollover Distribution from a qualified defined contribution plan or defined
benefit plan, or a
25
distribution from an individual retirement account, or a distribution from
an annuity contract described in section 403(b) of the Code, or a
distribution from an eligible plan under section 457B(b) of the Code that
is maintained by an employer described in section 457(e)(1)(A) of the Code,
may elect, in accordance with reasonable procedures established by the Plan
Administrator, to rollover not more than the cash value of the
distribution, less any amount attributable to the Participant's after-tax
contributions, to his Rollover Account within 60 days of receipt of such
distribution.
In addition, a Participant other than a Terminated Participant may
authorize the Trustee of the Curtiss-Wright Electro-Mechanical Division
Pension Plan to transfer the entire balance to the credit of the
Participant in such plan directly to his Pension Rollover Account under
this Plan if such transfer satisfies the requirements of section
1.411(d)-4, Q&A-3(b) of the Treasury regulations.
The Participant may elect to invest any amount rolled over or transferred
to this Plan in any of the investment options available under the Plan in
increments of 1%.
5. Any Participant who ceases to be an Employee shall continue to have the
authority to direct the investment of his Accounts in accordance with the
provisions of Article IV.6.
6. Contributions made by or on behalf of a Participant shall be invested in
the Investment Fund or Funds selected by the Participant until the
effective date of a new designation which has been properly provided to the
Plan Administrator in accordance with reasonable procedures established by
the Plan Administrator. A designation provided by a Participant changing
his investment options shall apply to investment of future deposits and/or
to amounts already accumulated in his Accounts.
A Participant may change his investment options for new contributions
and/or change his investment selection with regard to amounts already
accumulated in his Accounts at any time by providing notice to the Plan
Administrator in accordance with reasonable procedures established by the
Plan Administrator.
Any changes in a Participant's investment mix made under this Article IV.6
for new contributions and any changes in a Participant's investments made
under this Article IV.6 for amounts already accumulated in his Accounts
will take effect as soon as administratively practicable after the
transaction has been accepted by the Plan Administrator. Such change shall
be subject to any actions taken by the Mutual Fund sponsors based upon
liquidity needs.
7. In the event an Employer should sell or acquire shares of stock or other
assets or properties of any other company which has a defined contribution
plan, qualified under Section 401(a) of the Code, in effect at the time of
such sale or acquisition, the Administrative Committee may, in such manner
and to such extent as it deems advisable, accept a trust to trust transfer
of assets from the defined contribution plan of such company for any
employees who will become, or will remain as a Participant in the Plan,
provided that the trust from which such assets are transferred permits the
transfer to be made and the transfer will not jeopardize the tax exempt
status of the Plan or the Trust or create adverse tax consequences for the
Employer.
26
8. If any amounts are directly or indirectly transferred to this Plan in a
trust-to-trust transfer from a plan that is described in clause (i) or (ii)
of Section 401(a)(11)(B) of the Code or to which clause (III) of Section
401(a)(11)(B)(iii) of the Code applies, such amounts and any earnings
thereon shall be subject to the requirements of Section 401(a)(11)(A) and
Section 417 of the Code.
27
ARTICLE V - VALUATION OF INVESTMENTS AND CREDITS TO ACCOUNTS
1. The value of each Participant's Accounts as of each Valuation Date shall be
determined after reflecting any transfers, withdrawals, or contributions as
of such date.
2. The interests of a Participant in all Investment Funds except the
Self-Managed Account shall be represented by Units that shall be valued and
credited to each Participant's Accounts as follows: the value of a Unit of
the Investment Funds within each Account of the Participant shall be
determined as of each Valuation Date by dividing the total number of Units
within each such fund immediately prior to the Valuation Date into the
value of all the assets then held by the Trustee with respect to such Fund.
For investments in all Investment Funds except the Self-Managed Account,
the appropriate Accounts of each Participant as of each Valuation Date
shall be credited with that number of Units (calculated to the fourth
decimal place) determined by dividing (a) contributions made and amounts
transferred into each of the funds by or on behalf of such Participant by
(b) the value of a Unit of such fund as of the Valuation Date.
3. For investments in all Investment Funds except the Self-Managed Account and
any Mutual Funds, the appropriate Accounts of each Participant as of each
Valuation Date shall be credited with that number of Units (calculated to
the fourth decimal place) determined by dividing (a) contributions made and
amounts transferred into each of the funds by or on behalf of such
Participant by (b) the value of a Unit of such fund as of the Valuation
Date.
4. For investments in the Self-Managed Account, the appropriate Accounts of
each Participant as of each Valuation Date shall be credited with that
amount that equals the current cash value of the Self-Managed Account.
5. Each Participant shall be fumished with a statement of his Accounts under
the Plan, as required by section 404(c) of ERISA and the regulations
thereunder, and any other applicable provision of ERISA.
28
ARTICLE VI - VESTING OF ACCOUNTS
1. A Participant shall at all times be one hundred percent (100%) vested in,
and have a nonforfeltable right to, his After-Tax, Pre-Tax, Catch-Up
Contribution, Rollover, Pension Rollover, and Additional Contribution
Accounts.
2. Notwithstanding any other provision of the Plan to the contrary, a
Participant who is a WGSC Plan Transferee, as defined in Article III.1.a
shall remain one 100% vested in, and have a nonforfeitable right to, all
amounts transferred from the WGSGSP to his Accounts under the Plan.
3. a. Subject to Article VI.2 above and Subsection VI.3.b, a Participant
will become vested in amounts credited to his Employer Matching
Contribution Account in accordance with the following schedule:
Years of Eligibility Service Vested Percentage
---------------------------- -----------------
Less than 1 0%
1 but less than 2 20%
2 but less than 3 40%
3 but less than 4 60%
4 but less than 5 80%
5 or more 100%
b. Notwithstanding Subsections VI.3.a, the Employer Match Contribution
Account shall become 100% vested upon the earliest of the retirement,
death or attainment of age 65 of a Participant who is earning
Eligibility Service at such time.
4. If a Participant terminates employment prior to becoming fully vested in
his Employer Match Contribution Account, the unvested portion of such
Account will be forfeited. If the Terminated Participant is subsequently
re-employed by an Employer, an Affiliated Entity, before incurring 5
consecutive 1 year breaks in service (as defined in Code Section
411(a)(6)(C)), the dollar value of the forfeited amount shall be restored
to his Employer Match Contribution Account without adjustment for gains or
losses since the date of forfeiture.
5. Any forfeited amounts that are restored pursuant to Article VI.4 shall be
invested in accordance with the investment election in effect at the time
of restoration. In the event the Participant does not have a current
investment election in effect, the restored amount will be invested in the
Fixed Income Fund.
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ARTICLE VII - DISTRIBUTION OF ACCOUNTS UPON TERMINATION,
RETIREMENT, OR DEATH
1. In the event a Participant becomes a Terminated Participant, the following
shall apply:
a. If the total value of vested Accounts is $5,000 or less, a total
distribution shall be made automatically to a Terminated Participant.
Distributions of all Investment Funds shall be made in cash.
b. If the total value of vested Accounts exceeds $5,000, the Terminated
Participant may elect a total distribution in cash or may elect to
leave his vested Accounts in the Plan. If he elects to leave his
vested Accounts in the Plan, all of his Accounts shall continue to be
invested as they were immediately prior to his becoming a Terminated
Participant, unless he elects to transfer such investments to any
other available investment option in the Plan. Amounts that remain in
the Plan must be withdrawn in one lump sum only on or prior to the
Terminated Participant's Normal Retirement Date; no partial
distributions shall be permitted. Participants will be entitled to
receive an amount equivalent to the value of the vested Accounts on
the first Valuation Date after the distribution has been approved by
the Plan Administrator. If no direction is provided by the Participant
on or prior to the Terminated Participant's Normal Retirement Date,
distributions of all Investment Funds shall be made in cash, as soon
as administratively practicable after such Normal Retirement Date.
2. In the event a Participant becomes a Retired Participant, the following
shall apply:
a. The Retired Participant may elect an immediate distribution of all of
his Accounts in cash. If he elects an immediate distribution, his
Accounts shall be distributed to him as soon as practicable after his
retirement.
b. The Retired Participant may elect to have his Accounts distributed in
accordance with one of the following options:
(1) He may elect to receive monthly or annual installments, the
amount of which is determined by the Retired Participant at
retirement. Installments will begin as soon as practicable after
the request is received from the Retired Participant and approved
by the Plan Administrator. Each subsequent annual installment
will be processed as soon as practicable on the annual
anniversary of the first payment. Monthly installments shall be
processed as of the last Valuation Date in each month.
All payments under this option will be in cash and will be
derived from the available Accounts of the Retired Participant
based upon the following hierarchy:
(i) The portion of the Participant's After-Tax Account
attributable to After-Tax Contributions that were not
matched and the Pension Rollover Account;
30
(ii) The portion of the Participant's After-Tax Account
attributable to After-Tax Contributions that were matched;
(iii) Rollover Account;
(iv) Employer Match Contribution Account;
(v) Catch-Up Contribution Account;
(vi) Pre-Tax Account;
(vii) Additional Contribution Account;
(viii) Top-Heavy Contribution Account.
Within each Account, the payments will be prorated across all
Investment Funds in that Account.
A Retired Participant who elects to receive monthly or annual
installments pursuant to this Article VII.2.b(1) may cancel or
change such election at any time. He may also elect a partial
distribution as described in Article VII.2.b(2).
Notwithstanding the above, payments under this option must be at
least equivalent to the amount required under section 401(a)(9)
of the Code and regulations issued thereunder as described in
Article VII.6.
(2) He may elect to defer receipt of his Accounts until such time as
he instructs the Plan Administrator that he wishes to receive his
Accounts in whole or in part. In no event, however, may he defer
receipt of his first payment beyond April 1 following the
calendar year in which he attains age 70-1/2, and such first
payment and all subsequent payments must be at least equal to the
amounts required under section 401(a)(9) of the Code and
regulations issued thereunder as described in Article VII.6. A
Retired Participant may request a distribution at any time. The
distribution may be either (a) prorated across all Investment
Funds in which the Retired Participant is invested or (b)
directed against specific funds based upon the Participant's
request. The distribution shall be derived from the available
Accounts of the Retired Participant based upon the following
hierarchy:
(i) The portion of the Participant's After-Tax Account
attributable to After-Tax Contributions that were not
matched and the Pension Rollover Account;
(ii) The portion of the Participant's After-Tax Account
attributable to After-Tax Contributions that were matched;
(iii) Rollover Account;
(iv) Employer Match Contribution Account;
(v) Catch-Up Contribution Account;
(vi) Pre-Tax-Account;
(vii) Additional Contribution Account;
(viii) Top-Heavy Contribution Account.
3. A Participant who becomes a Totally Disabled Participant shall be treated
for the purpose of this Article VI as though he were retired on the date he
is declared a Totally
31
Disabled Participant, and he shall be entitled to the same options set
forth above in Article VII.2.
4. In the event of the death of a Participant who is not a Terminated
Participant, the following shall apply:
a. If the total value of Accounts is $5,000 or less, a total distribution
shall be made in cash, automatically, to the designated Beneficiary.
b. If the total value of Accounts exceeds $5,000 and the designated
Beneficiary is not the Surviving Spouse, a total distribution shall be
made in cash, automatically, to the designated Beneficiary.
c. If the total value of Accounts exceeds $5,000 and the designated
Beneficiary is the Surviving Spouse, the Surviving Spouse may elect a
total distribution or may elect to leave his Accounts in the Plan. If
the Surviving Spouse elects to leave his Accounts in the Plan, he
shall be treated as a Retired Participant and the investment and
payment options which are available to Retired Participants shall be
available to the Surviving Spouse.
5. In the event of the death of a Terminated Participant, a total distribution
shall be made in cash, automatically, to the designated Beneficiary.
6. In no event shall a Participant (or Beneficiary, if applicable) receive
less than the minimum annual payment as required by section 401(a)(9) of
the Code and regulations thereunder, including Treasury regulation section
1.401(a)(9)-2. The provisions of this Article VII.6 override any
distribution options in the Plan which are inconsistent with section
401(a)(9) of the Code.
The first minimum payment for a Participant who is required to receive a
distribution in accordance with section 401(a)(9) of the Code shall be
determined by dividing (i) the total value of the Participant's Accounts at
the beginning of the year in which he is required to take a distribution
pursuant to the requirements of section 401(a)(9) of the Code by the life
expectancy factor set forth in Treasury regulations for the life of that
Participant (or, if applicable, the joint life expectancy factor set forth
in Treasury regulations for the lives of the Participant and his designated
Beneficiary).
The first minimum payment must be made by April I of the year following the
later of the year during which the Participant (a) attains age 70 1/2, or
(b) retires; provided, however, that the first minimum payment must be made
by April I following the year in which the Participant attains age 70 1/2
if the Participant is a 5%-owner of the Company. The second minimum payment
uses the total value of the Participant's Accounts at the end of the year
during which the preceding sentence first applies (reduced by the first
payment if such payment is not made during the year in which the preceding
sentence first applies) and the original life expectancy factor decreased
by 1 year. This second minimum payment is due by the end of the year
following the year during which he attains age 70 1/2 or retires (age 70
1/2 if the Participant is a 5%-owner of the Company). All subsequent
minimum payments are required to be made by the end of each year using the
total value of the Participant's Accounts at the end of the previous year
and the previous life expectancy factor decreased by 1 year.
32
If the Participant dies before the time when distributions are considered
to have commenced in accordance with section 401(a)(9) of the Code,
distributions will satisfy section 401(a)(9) of the Code as follows: (1)
any remaining portion of the Participant's Accounts that is not payable to
a Beneficiary will be distributed within five years after the Participant's
death; and (ii) any portion of the Participant's interest that is payable
to a Beneficiary will be distributed either (a) if the Beneficiary elects,
within five years after the Participant's death, or (b) over the life of
the Benefciary or over a period certain not extending beyond the life
expectancy of the Beneficiary, commencing no later than the end of the
calendar year following the calendar year in which the Participant died
(or, if the Beneficiary is the Participant's surviving spouse, commencing
not later than the end of the calendar year following the calendar year in
which the Participant would have attained age 70 1/2). If the Participant
dies after the time when distributions are considered to have commenced in
accordance with section 401(a)(9) of the Code, any remaining portion of the
Participant's Accounts will be distributed at least as rapidly as under the
distribution method being used under section 401(a)(9)(A)(ii) of the Code,
as of the Participant's death.
7. Unless the Alternate Payee is an Employee or a Retired Participant, any
amounts segregated under this Plan for the benefit of the Alternate Payee
pursuant to a QDRO shall be distributed to the Alternate Payee as soon as
practicable following the qualification of the QDRO by the Plan
Administrator.
8. Each Participant shall keep the Plan Administrator informed of his current
address and the current address of his Beneficiary(ies). Neither the Plan
Administrator, the Company, the Administrative Committee nor the Trustee
shall be obligated to search for the whereabouts of any person. If the
location of a Participant is not made known to the Plan Administrator and
after diligent efforts to ascertain the whereabouts of the Participant or
Beneficiary(ies) prove unsuccessful, the total value of the Participant's
Accounts shall be deemed a forfeiture and shall be used to reduce the
amount of Employer Match Contributions required to be made by the Employer
to the Plan for the Plan Year next following the year in which the
forfeiture occurs; provided, however, that in the event that the
Participant or a Beneficiary makes a claim for any amount that has been
forfeited, the Accounts which have been forfeited shall be reinstated
without adjustment for gains or losses.
9. Subject to the minimum distribution rules set forth in Article VII.6,
unless otherwise elected by a Participant, distribution of Plan benefits
will begin not later than 60 days after the close of the Plan Year in which
the latest of the following occurs:
a. the Participant attains age 65;
b. the 10th anniversary of the date the Participant commenced
participation in the Plan; or
c. the date the Participant terminates service with an Employer.
10. Rollovers Out of the Plan.
33
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a Distributee's election under this Article, a
"Distributee" (as defined in Article VII.11) may elect, at the time and in
the manner prescribed by the Plan Administrator, to have any portion of an
"Eligible Rollover Distribution" (as defined in Article VII.12) paid
directly to an "Eligible Retirement Plan" (as defined in Article VII.13)
specified by the Distributee in a "Direct Rollover" (as defined in Article
VII.14).
11. Distributee.
A Distributee includes an 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 QDRO, as defined in
section 414(p) of the Code, are Distributees with regard to the interest of
the spouse or former spouse.
12. Eligible Rollover Distribution.
An Eligible Rollover Distribution is any distribution of all or any portion
of the balance to the credit of the Distributee, except that an Eligible
Rollover Distribution does not include: (i) 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 10 years
or more; (ii) any distribution to the extent such distribution is required
under section 401(a)(9) of the Code; (ii) a hardship distribution as
described in Article VIII.2; and (iii) the portion of any distribution that
is not includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities). Notwithstanding clause (iii) of the foregoing sentence, a
portion of a distribution shall not fail to be an eligible rollover
distribution merely because the portion consists of after-tax employee
contributions which are not includible in gross income, provided, however,
such portion may be transferred only to an individual retirement account or
annuity described in section 408(a) or (b) of the Code, or to a qualified
defined contribution plan described in section 401(a) or 403(a) of the Code
that agrees to separately account for amounts so transferred, including
separately accounting for the portion of such distribution which is
includible in gross income and the portion of such distribution which is
not so includible.
13. Eligible Retirement Plan.
An Eligible Retirement Plan is an individual retirement account described
in section 408(a) of the Code, an individual retirement annuity described
in section 408(b) of the Code, an annuity plan described in section 403(a)
of the Code, or a qualified trust described in section 401(a) of the Code,
that accepts the Distributee's Eligible Rollover Distribution, an annuity
contract described in section 403(b) of the Code, and an eligible plan
under section 457(b) of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or
political subdivision of a state and which agrees to separately account for
amounts transferred into such plan from this plan.
14. Direct Rollover.
34
A Direct Rollover is a payment by the Plan to the Eligible Retirement Plan
specified by the Distributee.
15. A Terminated Participant or a Retired Participant may authorize the Trustee
of this Plan to transfer the total value of such Participant's Accounts
from the Trust of this Plan to the trust of any other qualified plan which
permits such transfers, if such transfer satisfies the requirements of
section 1.411(d)-4, Q&A-3(b) of the Treasury regulations. Any transfer
shall be in a form acceptable to the plan to which such distribution is
being transferred, subject to the terms of this Plan.
16. Subject to Article VII.6, Article VII.7, and Article VII.9, a Participant
who is earning Eligibility Service shall not be eligible to receive a
distribution under the Plan.
35
ARTICLE VIII - IN-SERVICE WITHDRAWALS
1. A Participant shall be permitted to make a withdrawal for any reason from
his Pension Rollover Account or Rollover Account.
A Vested Participant shall be permitted to make a withdrawal for any reason
from his After-Tax Account.
A Non-Vested Participant shall be permitted to make a withdrawal for any
reason from that portion of his After-Tax Account which represents
contributions that were not matched by contributions in the Employer Match
Contribution Account.
A Non-Vested Participant shall be permitted to make a withdrawal from that
portion of his After-Tax Account which represents contributions that were
matched by contributions in the Employer Match Contribution Account only in
the case of a hardship as defined in Article VIII.2. This hardship
withdrawal is available to a Non-Vested Participant only after he has
withdrawn the total amount available under the terms of this Article VIII.
For purposes of this Article VIII.1, a Participant who is vested in his
Employer Match Contribution Account pursuant to Article VI.2 only shall be
treated as a Non-Vested Participant.
2. A Non-Vested Participant shall be permitted to make a withdrawal from his
Pre-Tax Account or his Catch-Up Contribution Account only in the case of a
hardship.
A Vested Participant shall be permitted to make a withdrawal for any reason
from his Pre-Tax Account upon the attainment of age 59 1/2. A Vested
Participant shall be permitted to make a withdrawal from his Pre-Tax
Account or his Catch-Up Contribution Account before attaining age 59 1/2
only in the case of hardship.
For purposes of this Article VIII.2, a Participant who is vested in his
Employer Match Contribution Account pursuant to Article VI.2 only shall be
treated as a Non-Vested Participant.
Hardship withdrawals from the Pre-Tax Account or Catch-Up are limited to
the amount contributed by the Participant to the Pre-Tax Account or
Catch-Up Contribution, or the value of such Account, whichever is less. The
following situations are considered to constitute a hardship for purposes
of this Plan:
a. medical expenses (described in section 213(d) of the Code) incurred by
the Participant, his spouse, his children, or his dependents;
b. purchase of a principal residence of the Participant (excluding
mortgage payments);
36
c. payment of tuition for the next 12 months of post-secondary education
for the Participant, his spouse, his children, or his dependents;
d. the need to prevent eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's
principal residence; or
e. an immediate and heavy financial need as determined in a uniform and
nondiscriminatory manner by the Plan Administrator based upon the
facts and circumstances of a particular situation.
3. Each time a Participant applies for a hardship withdrawal, he must submit
documentation to substantiate the withdrawal as required by the Plan
Administrator.
A hardship withdrawal shall not be permitted from the Pre-Tax Account
and/or the Catch-Up Contribution Account and/or the After-Tax Account
(matched portion), if the Participant has other resources available to meet
the financial need. In order to qualify for a hardship withdrawal from his
Pre-Tax Account and/or the After-Tax Account (matched portion), a
Participant must withdraw the total amount available for withdrawal absent
hardship from his After-Tax Account and Employer Match Contribution Account
and submit a statement that acknowledges that his situation cannot be
relieved by any of the following:
a. the proceeds from an insurance policy;
b. the reasonable liquidation of the Participant's assets;
c. the discontinuance of the Participant's contributions under the Plan;
or
d. a loan from his Pre-Tax Account, a distribution or loan from any other
plan, or a commercial loan.
If a loan is available from this Plan in the amount that would satisfy the
hardship request, a Pre-Tax Account hardship withdrawal will not be
permitted.
A hardship withdrawal from a Participant's Pre-Tax Account or Catch-Up
Contributions Account may not be made unless the Participant is suspended
from making After-tax Contributions to the Plan and he is suspended from
having Pre-Tax Contributions, Catch-up Contributions and Employer Match
Contributions made on his behalf to the Plan (and he is suspended from
making employee contributions and elective contributions to all other
qualified and nonqualified plans of deferred compensation inclusive of
stock option, stock purchase, and similar plans maintained by an Employer
or an Affiliated Entity, excluding mandatory employee contributions to a
defined benefit plan or health or welfare benefit plans, and, further, is
prohibited from exercising any option granted to him under any of the
Company's stock option plans) for the 6 month period beginning on the
effective date of the withdrawal pursuant to Article VIII.2.
4. A Vested Participant shall be permitted to make a withdrawal for any reason
from his Employer Match Contribution Account.
37
A Non-Vested Participant shall not be permitted to make a withdrawal from
his Employer Match Contribution Account.
For purposes of this Article VIII.4 a Participant who is vested in his
Employer Match Contribution Account pursuant to Article VI.2 only shall be
treated as a Non-Vested Participant.
5. To the extent permitted in Articles VIII.1, VIII.2, VIII.3, and VIII.4
in-service withdrawals will be permitted at any time; provided, however,
that no in-service withdrawals of amounts held in the Self-Managed Account
are permitted.
A request for an in-service withdrawal must be made to the Plan
Administrator. All withdrawals, with the exception of hardship withdrawals,
may be either (a) prorated across all Investment Funds in which the
Participant is invested or (b) directed against specific Investment Funds
based upon the Participant's request. Distributions of all Investment Funds
shall be made in cash.
All non-hardship withdrawals will be derived from the available Accounts of
each Participant based upon the following hierarchy:
a. The portion of the Participant's After-Tax Account attributable to
After-Tax Contributions that were not matched and the Pension Rollover
Account;
b. The portion of the Participant's After-Tax Account attributable to
After-Tax Contributions that were matched;
c. Rollover Account;
d. Employer Match Contribution Account (if the Participant is a Vested
Participant);
e. Pre-Tax Account.
Hardship withdrawals will be derived from the Account from which the
hardship is being taken and will be prorated across all Investment Funds in
which the Participant is invested in that Account.
38
ARTICLE IX - LOANS
1. A Participant, other than a Terminated Participant, a Retired Participant,
a Totally Disabled Participant or a Surviving Spouse, may request a loan
from his Accounts in the Plan in accordance with the following:
a. Loans must be requested in multiples of $100 with a minimum amount of
$1,000. The maximum loan amount is limited by law to be 50% of the
vested balance in his Accounts, with an overall maximum of $50,000
reduced by the highest outstanding loan balance during the preceding
12 months. If a Participant requests a loan that exceeds the maximum
allowable loan, the loan will be issued for the maximum amount
available.
b. The Plan Administrator shall determine whether the application for a
loan is to be approved. All applications for loans shall be evaluated
in a uniform and nondiscriminatory manner. A Participant who takes a
loan from the Plan shall be subject to, and will be required to comply
with the specific terms and conditions of any loans made under the
Plan, as established by the Plan Administrator.
c. To the extent permitted in this Article IX, a Participant will be
permitted to have up to 2 outstanding loans at any given time. Loans
may be either (i) prorated across all Investment Funds in which the
Participant is invested or (ii) directed against specific Investment
Funds based upon the Participant's request; provided, however, that no
loan may be taken from amounts held in the Self-Managed Account. All
loans will be derived from the available Accounts of each Participant
based upon the following hierarchy:
(1) Vested Participants:
(i) Pre-Tax Account;
(ii) Employer Match Account;
(iii) After-Tax Account and Pension Rollover Account;
(iv) Rollover Account.
(2) Non-Vested Participants (for purposes of this Article IX, a
Participant who is vested in his Employer Match Contribution
Account pursuant to Article VI.2 only shall be treated as a
Non-Vested Participant):
(i) Pre-Tax Account;
(ii) After-Tax Account and Pension Rollover Account;
(iii) Rollover Account.
39
d. Loans shall be made to the Participant in cash and shall be derived
from the Participant's Investment Funds based upon the value as of the
first Valuation Date after the loan has been approved by the Plan
Administrator.
e. Loan repayments shall be made by payroll deductions. The Participant
may elect repayment periods of 6 to 60 months in increments of 6
months.
At any time prior to the due date of the final loan payment, the
Participant may elect to partially repay the loan or make repayment in
full.
During the repayment period, loan repayments shall be allocated to the
Accounts of Participants in reverse order from which the loan was
derived. Repayments shall be invested in the investment options in
effect for current contributions at the time the repayments are made.
In the event the Participant does not have a current election in
effect for either his Pre-Tax Contributions or his After-Tax
Contributions, the current election in effect for his Employer Match
Contribution Account shall be used; provided, however, that no amount
of a loan repayment shall be allocated to the Self-Managed Account. If
a current election does not exist for his Employer Match Contribution
Account, then the repayments shall be invested in the Fixed Income
Fund.
Repayments to an Investment Fund shall purchase Units based upon the
value of each Unit on the Valuation Date in which the Accounts of
Participants are credited.
f. For each Calendar Month, the interest rate to be charged for the term
of the loans initiated in the Calendar Month shall be the prime
interest rate from the Wall Street Journal as of the last business day
of the month prior to the month in which the loan is processed plus
one percent 1%.
g. (1) A Participant shall be required to continue to meet his loan
repayment obligation for any period during which he is not
receiving pay due to disability, layoff, furlough or leave of
absence. In such event, the Participant shall be required to make
his scheduled loan repayments by check or money order.
Notwithstanding the foregoing, a Participant on an unpaid leave
of absence may elect to not make repayments for a period that
does not extend beyond 12 months after the commencement of such
leave of absence. Such election shall be made in writing and
filed with the Plan Administrator within 30 days after the
commencement of the Participant's leave. At the end of such
period, the Participant's loan repayment installments shall
recommence, and such installments must be at least equal to the
installments required under the original terms of the loan. In
any event, the Participant must repay the entire loan by the end
of the 60-month period beginning when the loan was made.
(2) A Participant who (i) becomes a Retired Participant or a Totally
Disabled Participant, or (ii) transfers employment from an
Employer to an Affiliated Employer, an Excluded Unit (a
"Transferred Employee"),
40
may elect to continue to make repayments by check or money order
while employed by such entity.
A Terminated Participant or a Surviving Spouse may repay the
total outstanding loan balance in a single payment within 60 days
of his termination or death. If a Terminated Participant (other
than a Transferred Employee) or Surviving Spouse does not repay
the loan within 60 days after termination or death, the
outstanding loan balance will be treated as a distribution.
(3) Notwithstanding Subsections IX.1.g.(1) and (2) above, a
Participant who is performing service in the uniformed services
(as defined in chapter 43 of title 38, United States Code) shall
not be required to continue to repay his loan until the end of
such period of service.
h. Any loans made, renewed, renegotiated, modified, or extended after the
Effective Date shall be subject to the provisions of this Article IX.
All loans previously made under the Westinghouse Government Services
Group Savings Plan, or a transferor plan with respect to that plan,
shall be subject to the rules in effect under such plan at the time
the loan was made.
41
ARTICLE X - DESIGNATION OF BENEFICIARY
1. Each Participant shall file with the Plan Administrator a written
designation of Beneficiary which shall be effective when received by the
Plan Administrator. A Beneficiary designation may be changed by the
Participant at any time upon written notice to the Plan Administrator,
subject to the rules below for married Participants.
2. The Beneficiary of a married Participant must be the Participant's spouse
unless the Participant's spouse has given written consent to the
designation of some other person or persons as a Beneficiary. Such consent
must be witnessed by a notary public. Notwithstanding the foregoing, if a
Participant establishes to the satisfaction of the Plan Administrator that
a written consent cannot be obtained because the spouse cannot be located,
or because of such other circumstances as may be permitted by law, spousal
consent shall not be required. Any consent (or establishment that consent
is not required) necessary under this provision will be valid only with
respect to such spouse, but may not be revoked by such spouse. A revocation
of a prior waiver may be made by a Participant without the consent of the
spouse at any time before the Participant's retirement date. The number of
revocations by a Participant shall not be limited. Any new waiver or change
of Beneficiary will require a new spousal consent.
3. An unmarried Participant may designate any person or persons as a
Beneficiary without restriction. However, an unmarried Participant who
later marries must at that time obtain spousal consent (as described in
Article X.2) in order for the Participant's existing Beneficiary
designation to remain valid. If a divorced Participant later remarries, the
Participant must obtain the consent of the Participant's new spouse to the
Beneficiary designation, even if the Participant obtained the consent of
the Participant's former spouse to the Beneficiary designation.
4. In the absence of spousal consent to the designation of some other person
or persons as a Beneficiary, the Participant's interest in the Plan shall
be distributed to the Surviving Spouse at the time of such Participant's
death in accordance with the provisions of Article VII.4 or VII.5.
Notwithstanding the fact that a Participant has obtained spousal consent to
the designation of some other person or persons as a Beneficiary, if the
validly designated Beneficiary is not living at the time of such
Participant's death, or if such designation is not effective for any
reason, then the death benefit shall be payable to the deceased
Participant's Spouse. If there is no Surviving Spouse, distribution shall
be made to the legal representative of the Participant.
5. No Beneficiary shall, prior to the death of the Participant by whom he has
been designated, acquire any interest in the Participant's Accounts in the
Plan or in the assets of the Trust.
42
ARTICLE XI - VOTING OF STOCK
1. Each Participant who has an investment in the Self-Managed Account will
be furnished any proxy material relating to such Self-Managed Account,
together with a form on which may be set forth the Participant's voting of
investments under the Participant's Self-Managed Account.
2. With respect to investments in Mutual Funds, the Administrative Committee
shall vote such investments in accordance with the best interests of the
Participants and Beneficiaries.
43
ARTICLE XII - TERMINATION OR SUSPENSION OF THE PLAN
1. The Company, acting by written resolution of the Board (or a duly
authorized delegate of the Board), may at any time, and from time to time
amend, in whole or in part, any and all of the provisions of the Plan,
suspend the Plan or terminate the Plan. The Administrative Committee (or a
duly authorized delegate) may also adopt certain Plan amendments in
accordance with Article XIV.2. Notwithstanding the above, no amendment,
suspension or termination shall adversely affect any rights of a
Participant to amounts credited to his Accounts prior to the date of
amendment, suspension or termination. Furthermore, if the vesting schedule
of the Plan is amended, in the case of an Employee who is a Participant as
of the later of the date such amendment is adopted or the date it becomes
effective, the nonforfeitable percentage (determined as of such date) of
such Employee's Employer Match Contribution Account will not be less than
the percentage computed under the Plan without regard to such amendment.
2. In the event of the termination or partial termination of the Plan or upon
complete discontinuation of contributions to the Plan, there shall
automatically vest in each Participant affected by such termination or
partial termination all rights to the entire amount credited to his
Employer Match Contribution Account, and all amounts then credited to all
Accounts for each Participant affected by such termination or partial
termination shall be distributed to him in accordance with ERISA and the
Code.
3. If the Plan's vesting schedule is amended, or the Plan is amended in any
way that directly or indirectly affects the computation of the
nonforfeitable percentage of Participants' Employer Match Contribution
Accounts, or if the Plan is deemed amended by an automatic change to or
from a top-heavy vesting schedule, each Participant with at least 3 years
of Eligibility Service may elect, within a reasonable period after the
adoption of the amendment or change, to have the nonforfeitable percentage
computed without regard to such amendment or change.
44
ARTICLE XIII - TRUSTEE
1. The Administrative Committee shall appoint one or more individuals or
corporations to act as Trustee under the Plan and may at any time remove
any Trustee and appoint a successor Trustee.
2. The Administrative Committee and the Trustee shall enter into a trust
agreement providing for the Trust. The Administrative Committee may also
from time to time enter into such further agreements with the Trustee or
other parties, make such amendments to such trust agreement or further
agreements, and take such other steps and execute such other instruments as
it, in its sole discretion, may deem necessary or desirable to carry the
Plan into effect or to facilitate its administration.
45
ARTICLE XIV - ADMINISTRATION
1. Company.
The Company is the sponsor and "named fiduciary" of the Plan within the
meaning of section 402(a)(2) of ERISA. The Company has all powers and
responsibilities not otherwise assigned to the Trustee or the Investment
Manager(s).
2. Administrative Committee.
The Administrative Committee (or its delegate) may act on the Company's
behalf as the sponsor and "named fiduciary" of the Plan with respect to
Plan administrative matters. Acting on behalf of the Company, and subject
to the terms of the Plan, the Trust Agreement and applicable resolutions of
the Board, the Administrative Committee (or its delegate) has full and
absolute discretion and authority to control and manage the operation and
administration of the Plan, and to interpret and apply the terms of the
Plan and the Trust Agreement. This full and absolute discretion and
authority includes, but is not limited to, the power to:
a. interpret, construe, and apply the provisions of the Plan and Trust
Agreement, and any construction adopted by the Administrative
Committee in good faith shall be final and binding;
b. adopt Plan amendments that (1) are required by ERISA or other
applicable law or regulation governing qualification of employee
benefit plans, or are necessary for Plan administration, and which do
not materially increase costs to the Plan or the Company or materially
change Participants' benefits under the Plan, (2) implement special
rules in Article XV.6 for acquisitions, sales, and other dispositions,
(3) revise the list of Employers in Appendix C, or (4) clarify
ambiguous or unclear Plan provisions; provided that such amendments
will be made in writing and will be made according to procedures
established by the Administrative Committee;
c. review appeals from the denial of benefits;
d. change or terminate the existing Investment Fund options offered under
the Plan or establish additional Investment Fund options;
e. appoint and dismiss Investment Managers (as described by section 3(38)
of ERISA) and the Trustee;
f. provide guidelines and directions to, and monitor the performance of,
Investment Managers and the Trustee; and
g. manage the cost and financial aspects of the Plan.
46
The Administrative Committee may employ, appoint, and dismiss advisors and
advisory committees as the Administrative Committee deems necessary to
carry out the provisions of the Plan and the Trust Agreement, including
attorneys, accountants, actuaries, clerks, or other agents, and may
delegate any of its authority and duties to such persons.
3. Plan Administrator.
The Company shall be the Plan Administrator, unless the Company, in its
discretion, shall designate a different Plan Administrator. The Plan
Administrator is responsible for, and has authority to:
a. adopt reasonable and uniform rules and procedures as necessary or
appropriate for Plan administration and the processing of claims for
benefits;
b. make all initial determinations regarding claims for benefits,
including authority to interpret and apply any applicable Plan
provisions to the facts involved in each benefits claim, and provide
notice described in Article XIV.8 to any claimant whose claim is
denied;
c. direct the Trustee regarding: (1) payment of benefits to Participants;
and (2) payment of the reasonable and necessary expenses of the Plan
from Plan assets;
d. obtain fidelity bonds and fiduciary insurance coverage, in accordance
with applicable provisions of ERISA; and
e. comply with and monitor the Plan's continued compliance with all
governmental laws and regulations relating to recordkeeping and
reporting of Participants' benefits, other notifications to
Participants, registration with the Internal Revenue Service, and
reports to the Department of Labor.
4. Trustee.
The Trustee has exclusive responsibility for control and management of Plan
assets, in accordance with the Trust Agreement. The Trustee is responsible
for, and has authority to:
a. invest, manage, and control Plan assets, subject to the direction of
the Administrative Committee and Investment Manager(s) appointed by
the Administrative Committee;
b. maintain records and accounts of all contributions, receipts,
investments, distributions, expenses, disbursements, and all other
transactions; and
c. prepare records, reports, statements, tax returns, and forms required
to be fumished to Participants or filed with the Secretary of Labor or
Treasury, as required by the Trust Agreement, or the directions of the
Administrative Committee.
47
5. Allocation of Fiduciary Authority.
The Company, the Administrative Committee, the Trustee and the Investment
Manager(s), and any other person having fiduciary responsibility, as
described in section 3(21) of ERISA, with respect to the Plan
(collectively, the "Plan Fiduciaries") each have individual responsibility
for the prudent execution of their responsibilities assigned under this
Plan, and are not responsible for acts or failures by another Fiduciary,
unless the Plan provides for shared fiduciary responsibility. Plan
Fiduciaries are obligated to discharge their duties with respect to the
Plan solely and exclusively in the interest of Plan Participants and their
Beneficiaries, and with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of
like character and with like aims.
Whenever the Plan or Trust Agreement requires one Fiduciary to provide
information or direct the activities of another Fiduciary, the two may not
be deemed to have shared fiduciary responsibility -- rather, the Fiduciary
giving directions or providing information is solely responsible for
prudently directing or informing the other, and the Fiduciary receiving the
direction or information is entitled to rely on that direction or
information as proper under the Plan, the Trust Agreement, and applicable
law.
Any individual may serve in more than one capacity, e.g. the same
individual may serve on the Administrative Committee and as an agent of the
Company or the Plan Administrator.
No person or entity shall function or be deemed to function as a fiduciary
in connection with actions affecting the design of the Plan, including,
without limitation, amendments, designations of participating Employers and
Excluded Units, and adoption of rules relating to acquisitions, sales and
other dispositions under Article IV.7.
6. Indemnification.
a. To the extent permitted by applicable law, the Board, the
Administrative Committee, the Plan Administrator, and any employee,
officer, or director of the Employer, an Affiliated Entity, to whom
duties and responsibilities have been allocated or delegated under
this Plan and Trust ("Covered Persons"), shall be indemnified and
saved harmless by the Plan and Trust from and against any and all
claims of liability arising in connection with the exercise of the
Covered Person's duties and responsibilities with respect to the Plan
and Trust by reason of any act or omission, including all expenses
reasonably incurred in the defense of such act or omission, unless:
(1) it will be established by final judgment of a court of competent
jurisdiction that such act or omission, including all expenses
reasonably incurred in the defense of such act or omission,
involved a violation of the duties imposed by Part 4 of Subtitle
B of Title I of ERISA on the part of such Covered Person, or
(2) in the event of settlement or other disposition of such claim
involving the Plan and Trust, it is determined by written opinion
of independent
48
counsel that such act or omission involved a violation of the
duties imposed by Part 4 of Subtitle B of Title I of ERISA on the
part of such Covered Person.
b. To the extent permitted by applicable law, the Trust will pay expenses
(including reasonable attorneys' fees and disbursements), judgments,
fines, and amounts paid in settlement incurred by the Covered Person
in connection with any of the proceedings described above, provided
that:
(1) the Covered Person will repay such advanced expenses to the
Trust, plus reasonable interest, if it is established by a final
judgment of a court of competent jurisdiction, or by written
opinion of independent counsel under the circumstances described
above, that the Covered Person violated duties under Part 4 of
Subtitle B of Title I of ERISA; and
(2) the Covered Person will make appropriate arrangements for
repayment of advanced expenses.
Notwithstanding the foregoing, no such advanced expenses will be made
in connection with any claim against a Covered Person that is made by
the Plan, provided that upon final disposition of such claim, the
expenses (including reasonable attorneys' fees and disbursements),
judgments, fines, and amounts paid in settlement incurred by the
Covered Person will be reimbursed by the Plan to the extent provided
above.
7. Claims for Benefits.
Each person (including any Employee, former Employee, Surviving Spouse, or
other Plan Beneficiary) must file a written claim with the Plan
Administrator for any benefit to which that person believes he is entitled
under this Plan, in accordance with reasonable procedures established by
the Plan Administrator.
Generally, the Plan Administrator is required to decide each claim within
90 days of the date on which the claim is filed. If special circumstances
require a longer period for adjudication, the Plan Administrator must
notify the claimant in writing of the reasons for an extension of time, and
the date by which the Plan Administrator will decide the claim, before the
90 day period expires. Extensions beyond 90 days after the expiration of
the initial 90 day period are not permitted. If the Administrator does not
notify the claimant of its decision to grant or deny a claim within the
time specified by this section, the claim will be deemed to have been
denied and the appeal procedure described in Article XIV.9 below will
become available to the claimant.
8. Notice of Denial.
If the Plan Administrator denies a claim for benefits under the Plan, the
claimant will receive a written notice that explains:
a. the specific reason for the denial, including specific reference to
pertinent Plan provisions on which the denial is based;
49
b. any additional information or material necessary to perfect a claim,
with an explanation of why such material is necessary, if any
information would be helpful or appropriate to further consideration
of the claim; and
c. the steps to be taken if the claimant wishes to appeal, including the
time available for appeal.
9. Appeal of Denied Claims for Benefits.
Claimants must submit a written request appealing the denial of a claim
within 60 days after receipt of notice described by Article XIV.8.
Claimants may review all pertinent documents, and submit issues and
comments in writing. The Administrative Committee (or its delegate) will
provide a full and fair review of all appeals from denial of a claim for
benefits, and its decision will be final and binding.
The decision of the Administrative Committee (or its delegate) ordinarily
will be given within 60 days after receipt of a written request for appeal,
unless special circumstances require an extension (such as for a hearing).
If an extension of time for appeal is necessary, the claimant will receive
written notice of the extension before the 60 day period expires. The
decision may not be delayed beyond 120 days after receipt of the written
request for appeal. Notice of the decision on appeal will be provided in
writing, and will explain the basis for the decision, including reference
to applicable provisions of the Plan, in a manner calculated to be
understood by the person who appealed the denial of a claim.
10. Exhaustion of Remedies.
No legal action for benefits under the Plan may be brought unless and until
the following steps have occurred:
a. the claimant has submitted a written application for benefits in
accordance with Article XIV.7;
b. the claimant has been notified that the claim has been denied, as
provided by Article XIV.8;
c. the claimant has filed a written request appealing the denial in
accordance with Article XIV.9; and
d. the claimant has been notified in writing that the Administrative
Committee (or its delegate) have denied the claimant's appeal, or the
Administrative Committee has failed to act on the appeal within the
time prescribed by Article XIV.9.
11. Spendthrift Provision.
No Plan benefit will be subject in any manner to anticipation, pledge,
encumbrance, alienation, levy, or assignment, nor to seizure, attachment,
or other legal process for the debts of any Employee, former Employee, or
other Plan Beneficiary, except (a) pursuant to a Qualified Domestic
Relations Order under section 414(p) of the Code or
50
a domestic relations order entered before January 1, 1985, that the Plan
Administrator treats as a Qualified Domestic Relations Order, or (b) as
otherwise allowed under section 401(a)(I 3) of the Code.
12. Payment in Event of Incapacity.
If the Plan Administrator determines that a person entitled to receive any
Plan benefit is under a legal disability or is incapacitated in any way so
as to be unable to manage his financial affairs, the Plan Administrator may
direct that payments be made to such person's legal representative, or to a
relative or other individual for such person's benefit, or to otherwise
apply the payment for the benefit of such person, subject to such
conditions as the Plan Administrator deems appropriate. Any payment of a
benefit in accordance with the provisions of this Section will be a
complete discharge of any liability by the Plan to make such payment.
13. Expenses of the Plan.
Reasonable expenses of the Plan, including indemnification under Article
XIV.6, may be paid from Plan assets, unless paid by an Employer. Each
Employer is entitled to reimbursement of direct expenses properly and
actually incurred in providing services to the Plan, in accordance with
applicable provisions of ERISA.
14. Governing Law.
The Plan will be construed, interpreted, and enforced according to the laws
of Pennsylvania, to the extent such laws are not inconsistent with and
preempted by ERISA.
15. Military Service.
Notwithstanding any provision of this Plan to the contrary, contributions,
benefits and service credit with respect to qualified military service will
be provided in accordance with section 414(u) of the Code.
51
ARTICLE XV- GENERAL PROVISIONS
1. The act of establishing the Plan, any provision hereof or any action taken
hereunder shall not be construed as giving any Participant the right to be
retained as an Employee of an Employer, and the right of an Employer to
terminate the employment of any Employee is specifically reserved.
2. An Employer may require compliance with or satisfaction of any legal
requirement which may be deemed by it necessary as a condition for
participation in the Plan or for distribution of interests or benefits
hereunder.
3 By participating in the Plan or accepting any benefits hereunder, a
Participant and any person claiming under or through him shall thereby be
conclusively deemed to have accepted and consented to the application to
him of the provisions of the Plan as interpreted by the Administrative
Committee, as set forth in Article XIV.
4. In the case of any merger or consolidation with, or transfer of assets or
liabilities to any other plan, each Participant in this Plan shall (if the
Plan then terminated) receive a benefit immediately after the merger,
consolidation or transfer, which is equal to or greater than the benefit he
would have been entitled to receive immediately before the merger,
consolidation or transfer (if this Plan had then terminated).
5. Any provisions in this Plan to the contrary notwithstanding, in the event
an Employee transfers directly to any other corporation or affiliate
thereof in connection with the transfer to such other corporation
maintained or operated under contract by an Employer, or who may be
transferred by any such other corporation or affiliate thereof to another
affiliate thereof subsequent to his transfer from an Employer, the
Administrative Committee may, for legitimate business reasons including a
reciprocal service agreement, treat service with any such other
corporations as service with an Employer for purposes of vesting and for
determining eligibility for any account balance to the date of such
transfer or any other benefits under this Plan which are dependent on a
service-eligibility requirement.
6. Any provisions in this Plan to the contrary notwithstanding, special rules
relating to designated corporate transactions, or to the merger or
consolidation with or transfer of assets or liabilities to or from, any
other plan are set out in Appendix D.
52
IN WITNESS WHEREOF, the Companv has caused this instrument to be executed by its
authorized officer, to be effective as of the first day of January, 2004.
CURTISS-WRIGHT CORPORATION
By
-------------------------------------
53
APPENDIX A - SECTION 415 LIMITATIONS
In the event the provisions contained in this Appendix A are inconsistent with
the terms contained in the remainder of the Plan, the provisions of this
Appendix A shall take precedence.
A. Overall Limits on Contributions.
Contributions made on behalf of any Participant during any Plan Year shall
be subject to the following:
1. Except to the extent permitted under section 414(v) of the Code, if
applicable, the annual addition that may be contributed or allocated
to a participant's account under the plan for any limitation year
shall not exceed the lesser of:
(i) $40,000, as adjusted for increases in the cost-of-living under
section 415(d) of the Code, or
(ii) 100% of the participant's compensation, within the meaning of
Appendix A.A.4, for the Limitation Year. The compensation limit
referred to in this paragraph (ii) shall not apply to any
contribution for medical benefits after separation from service
(within the meaning of section 401(h) or section 419A(d)(2) of
the Code) which is otherwise treated as an Annual Addition.
2. Contributions made on behalf of a Participant during a payroll period
which begins in one Plan Year but ends in the next succeeding Plan
Year shall be deemed an Annual Addition for the next succeeding Plan
Year.
3. The limitations of this Appendix A shall be applied to this Plan
before they are applied to any other defined contribution plan of the
Employer or Employer's Controlled Group, except that if Employee
contributions to a defined benefit plan maintained by the Employer or
Employer's Controlled Group are, pursuant to section 1.415-3(d)(1) of
the Treasury regulations, considered a separate defined contribution
plan that is subject to the limitations on contributions and other
additions described in section 1.415-6 of the Treasury regulations,
any required return of excess amounts shall be made last from such
plan. This Appendix A shall be satisfied prior to satisfying the ADP
test.
4. For purposes of this Appendix A, "compensation" means the wages,
salaries, and other amounts paid in respect of an employee for
services actually rendered to an Employer or an Affiliated Entity,
including by way of example, overtime, bonuses, and commissions, but
excluding deferred compensation, stock options, and other
distributions which receive special tax benefits under the Code.
"Compensation" shall include amounts contributed by the Employer
pursuant to a salary reduction agreement which are not includible in
the gross income of the employee under Sections 125, 132(f),
402(g)(3), 414(v) or 457(b)
54
of the Code. "Compensation" for a Plan Year shall be limited to
$200,000, as adjusted in accordance with section 401(a)(17)(B) of the
Code.
B. Distributions Of Excessive Annual Additions
1. If, as a result of a reasonable error in estimating a Participant's
compensation (as defined in section 415(c)(3) of the Code), a
reasonable error in determining the amount of Participant Pre-Tax
Contributions (within the meaning of section 402(g)(3) of the Code)
that may be made with respect to any Participant under the limits of
Appendix A.A.1 or other facts and circumstances to which section
1.415-6(b)(6) of the Treasury regulations shall be applicable, the
Annual Additions under this Plan would cause the maximum Annual
Additions to be exceeded for any Participant, the Plan Administrator
may return any Participant After-Tax Contributions credited for the
year or may distribute any Participant Pre-Tax Contributions (within
the meaning of section 402(g)(3) of the Code) necessary to eliminate
the "excess amount."
2. For purposes of this Appendix A.B, "excess amount" for any Participant
for a year means the excess, if any, of the Annual Additions which
would be credited to his Accounts under the terms of the Plan without
regard to the limitations of section 415 of the Code over the maximum
Annual Additions determined pursuant to Appendix A.A.1.
3. The Company retains the right to adjust both Participant's Pre-Tax and
After-Tax Contributions to ensure compliance with the limits imposed
by section 415(c) of the Code.
4. If the Annual Addition must be limited for any Participant after
application of the above in order to comply with section 415 of the
Code, the excess amounts in the Participant's account in the next
Limitation Year must be held unallocated in a suspense account for the
Limitation Year and allocated and reallocated to all the Participants
in the Plan. The excess amounts must be used to reduce Employer
contributions for the next Limitation Year (and succeeding Limitation
years, as necessary) for all of the Participants in the Plan. Excess
amounts may not be distributed to Participants or former Participants
except as provided in Appendix A.B.1.
5. Excess amounts refunded under Appendix A.B.1 shall not be considered
Pre-Tax Contributions for purposes of the annual Dollar Limit in
section 402(g) of the Code and the ADP test in Article III, nor
After-Tax Contributions for the purpose of the ACP test in Article III
and shall not be considered as an eligible rollover distribution for
purposes of Article VII.12.
6. Distributions of Participant After-Tax Contributions and Participant
PreTax Contributions pursuant to this Appendix A.B.1 shall include
investment gains and losses attributable thereon.
7. Determinations whether to distribute Participant After-Tax
Contributions or Participant Pre-Tax Contributions, determinations of
the investment altemative(s) from which the distribution is to be
made, and computations of
55
attributable investment gains and losses shall be made by the Plan
Administrator in its discretion pursuant to reasonable and uniform
procedures.
56
APPENDIX B - TOP HEAVY PROVISIONS
A. Top-Heavy Preemption.
During any Plan Year in which this Plan is Top-Heavy, as defined in
Appendix B.C below, the Plan shall be governed in accordance with this
Appendix, which shall control over other provisions.
B. Definitions.
The following definitions apply to the terms used in this Appendix B:
(i) "applicable determination date" means the last day of [the later of
the first Plan Year or] the preceding Plan Year;
(ii) "top-heavy ratio" means the ratio of (A) the value of the aggregate of
the Accounts under the Plan for key employees to (B) the value of the
aggregate of the Accounts under the Plan for all key employees and
non-key employees;
(iii) "key employee" means any employee or former employee (including any
deceased employee) who at any time during the Plan Year that includes
the applicable determination date was an officer of an Employer or an
Affiliated Entity having Compensation greater than $130,000 (as
adjusted under Section 416(i)(1) of the Code), a 5% owner (as defined
in Section 416(i)(1)(B)(i) of the Code) of an Employer or an
Affiliated Employer, or a 1% owner (as defined in Section
416(i)(1)(B)(ii) of the Code) of an Employer or an Affiliated Employer
having Compensation greater than $150,000. The determination of who is
a key employee shall be made in accordance with Section 416(i) of the
Code and the applicable regulations and other guidance of general
applicability issued thereunder;
(iv) "non-key employee" means any Employee who is not a key employee;
(v) "applicable Valuation Date" means the Valuation Date coincident with
or immediately preceding the last day of the first Plan Year or the
preceding Plan Year, whichever is applicable;
(vi) "required aggregation group" means any other qualified plan(s) of the
Employer or an Affiliated Entity (including plans that terminated
within the five-year period ending on the applicable determination
date) in which there are members who are key employees or which
enable(s) the Plan to meet the requirements of Section 401(a)(4) or
410 of the Code; and
(vii) "permissive aggregation group" means each plan in the required
aggregation group and any other qualified plan(s) of the Employer or
an Affiliated Entity in which all members are non-key employees, if
the resulting aggregation group continues to meet the requirements of
Sections 401(a)(4) and 410 of the Code.
57
C. Top-Heavy Determination.
For purposes of this Section, the Plan shall be "top-heavy" with respect to
any Plan Year if as of the applicable determination date the top-heavy
ratio exceeds 60 percent. The top-heavy ratio shall be determined as of the
applicable Valuation Date in accordance with Sections 416(g)(3) and (4) of
the Code and Article 5 of this Plan. The determination of whether the Plan
is top-heavy is subject to the following:
(i) the Accounts under the Plan will be combined with the account balances
or the present value of accrued benefits under each other plan in the
required aggregation group and, in the Employer's discretion, may be
combined with the account balances or the present value of accrued
benefits under any other qualified plan in the permissive aggregation
group;
(ii) the Accounts for an employee as of the applicable determination date
shall be increased by the distributions made with respect to the
employee under the Plan and any plan aggregated with the Plan under
Section 416(g)(2) of the Code during the 1-year period (5-year period
in the case of a distribution made for a reason other than separation
from service, death, or disability) ending on the applicable
determination date;
(iii) distributions under any plan that terminated within the 5-year period
ending on the applicable determination date shall be taken into
account if such plan contained key employees and, therefore, would
have been part of the required aggregation group; and
(iv) if an individual has not performed services for the Employer or an
Affiliated Entity at any time during the one-year period ending on the
applicable determination date, such individual's accounts and the
present value of his accrued benefits shall not be taken into account.
D. Special Benefit Provisions for Top-Heavy Plan Years.
For each Plan Year with respect to which the Plan is top-heavy, an
additional Employer contribution shall be allocated on behalf of each
Participant (and each Employee eligible to become a Participant) who is a
non-key employee, and who has not separated from service as of the last day
of the Plan Year, to the extent that the contributions made on his behalf
under Article III.2 and Article III.10 for the Plan Year would otherwise be
less than 3% of his compensation. However, if the greatest percentage of
compensation contributed on behalf of a key employee under Article III.2
would be less than 3%, that lesser percentage shall be substituted for "3%"
in the preceding sentence. Notwithstanding the foregoing provisions of this
subparagraph, no minimum contribution shall be made under this Plan with
respect to a Participant (or an Employee eligible to become a Participant)
if the required minimum benefit under section 416(c)(1) of the Code is
provided to him by any other qualified pension plan of the Employer or an
Affiliated Employer. For purposes of this Appendix B.D, "compensation"
shall have the meaning specified in Appendix A.A.4.
58
APPENDIX C - PARTICIPATING EMPLOYERS
The following entities are Employers under the Plan:
No additional entities.
59
APPENDIX D - SPECIAL RULES
Pursuant to Article XV.6, this Appendix sets out special rules relating to
designated corporate transactions, or the merger or consolidation with, or
transfer of assets or liabilities to or from, any other plan.