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EXHIBIT 10.26
FIRST AMENDMENT
TO
THE TALON INC.
401(k) PLAN AND TRUST
(FORMERLY KNOWN AS THE G & L INDUSTRIES, INC. 401(k) PLAN AND TRUST)
This First Amendment is made as of the 1st day of October, 1992, by G &
L Industries, Inc. Allen-Stevens Corp., Hawthorne Metal Products Company, Talon
Inc., Talon Development Group, Inc. and Pres-Tock, Inc., all Michigan
corporations (the "Employers").
WITNESSETH:
WHEREAS, effective August 1, 1985, G & L Industries, Inc. adopted the G
& L Industries, Inc. 401(k) Plan and Trust (the "Plan"); and
WHEREAS, Allen-Stevens Corp., Hawthorne Metal Products Company and
Pres-Tock, Inc., subsequently adopted the Plan as participating employers; and
WHEREAS, Talon Inc. and Talon Development Group, Inc. hereby
acknowledge their adoption of the Plan as participating employers, effective as
of October 1, 1992, by their signature to this Amendment; and
WHEREAS, under the provisions of the Plan, the Employers reserved for
themselves the right to amend the Plan; and
WHEREAS, it is the Employers' desire to make several amendments to the
Plan, including, but not limited to, changing the name of the Plan to the Talon
Inc. 401(k) Plan and Trust.
NOW, THEREFORE, the Plan is hereby amended effective October 1, 1992 as
follows:
1. ARTICLE I, "DEFINITIONS," SECTION 1.15 SHALL BE DELETED IN ITS
ENTIRETY AND THE FOLLOWING SECTION 1.15 SHALL BE SUBSTITUTED IN ITS PLACE:
1.15 "Employer" means G & L Industries, Inc. and any Participating
Employer (as defined in Section 10.1) which shall adopt this Plan, Allen-Stevens
Corp. (effective November 1, 1989), Hawthorne Metal Products Company (effective
January 1, 1990), Pres-Tock, Inc. (Effective January 1, 1991), Talon Inc.
(effective October 1, 1992) and Talon Development Group, Inc. (effective October
1, 1992).
2. ARTICLE I, "DEFINITIONS," SECTION 1.38 SHALL BE DELETED IN ITS
ENTIRETY AND THE FOLLOWING SECTION 1.38 SHALL BE SUBSTITUTED IN ITS PLACE:
1.38 "Normal Retirement Date" means the first day of the month
coinciding with or next following the Participant's Normal Retirement Age (55th
birthday). A Participant shall become fully Vested in his Account upon attaining
his Normal Retirement Age.
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3. ARTICLE I, "DEFINITIONS," SECTION 1.44 SHALL BE DELETED IN ITS
ENTIRETY AND THE FOLLOWING SECTION 1.44 SHALL BE SUBSTITUTED IN ITS PLACE:
1.44 "Plan" means this instrument; the name of the Plan shall be the
Talon Inc. 401(k) Plan and Trust.
4. ARTICLE I, "DEFINITIONS," SHALL BE AMENDED BY THE ADDITION OF A NEW
SECTION 1.62, TO READ AS FOLLOWS:
1.62 "Pre-Retirement Survivor Annuity" is an immediate annuity for the
life of the Participant's spouse, the payments under which must be equal to the
amount of benefit which can be purchased with the accounts of a Participant used
to provide the death benefit under the Plan.
5. ARTICLE II, "TOP HEAVY AND ADMINISTRATION," SECTION 2.6 SHALL BE
DELETED IN ITS ENTIRETY AND THE FOLLOWING SECTION 2.6 SHALL BE SUBSTITUTED IN
ITS PLACE:
2.6 POWERS AND DUTIES OF THE ADMINISTRATOR
The primary responsibility of the Administrator is to administer the
Plan for the exclusive benefit of the Participants and their Beneficiaries,
subject to the specific terms of the Plan. The Administrator shall administer
the Plan in accordance with its terms and shall have the power and discretion to
construe the terms of the Plan and to determine all questions arising in
connection with the administration, interpretation, and application of the Plan.
Any such determination by the Administrator shall be conclusive and binding upon
all persons. The Administrator may establish procedures, correct any defect,
supply any information, or reconcile any inconsistency in such manner and to
such extent as shall be deemed necessary or advisable to carry out the purpose
of the Plan; provided, however, that any procedure, discretionary act,
interpretation or construction shall be done in a nondiscriminatory manner based
upon uniform principles consistently applied and shall be consistent with the
intent that the Plan shall continue to be deemed a qualified plan under the
terms of Code Section 401(a), and shall comply with the terms of the Act and all
regulations issued pursuant thereto. The Administrator shall have all powers
necessary or appropriate to accomplish his duties under this Plan.
The Administrator shall be charged with the duties of the general
administration of the Plan, including, but not limited to, the following:
(a) the discretion to determine all questions relating to the
eligibility of Employees to participate or remain a Participant hereunder and to
receive benefits under the Plan;
(b) to compute, certify, and direct the Trustee with respect
to the amount and the kind of benefits to which any Participant shall be
entitled hereunder;
(c) to authorize and direct the Trustee with respect to all
nondiscretionary or otherwise directed disbursements from the Trust;
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(d) to maintain all necessary records for the
administration of the Plan;
(e) to interpret the provisions of the Plan and to make and
publish such rules for regulation of the Plan as are consistent with the terms
hereof;
(f) to determine the size and type of Contract to be purchased
from any insurer, and to designate the insurer from which such Contract shall be
purchased;
(g) to compute and certify to the Employer and to the Trustee
from time to time the sums of money necessary or desirable to be contributed to
the Plan;
(h) to consult with the Employer and the Trustee regarding the
short and long-term liquidity needs of the Plan in order that the Trustee can
exercise any investment discretion in a manner designed to accomplish specific
objectives;
(i) to prepare and distribute to Employees a procedure for
notifying Participants and Beneficiaries of their rights to elect joint and
survivor annuities and Pre-Retirement Survivor Annuities as required by the Act
and Regulations thereunder.
(j) to prepare and implement a procedure to notify Eligible
Employees that they may elect to have a portion of their Compensation deferred
or paid to them in cash;
(k) to assist any Participant regarding his rights, benefits
or elections available under the Plan.
6. ARTICLE III, "ELIGIBILITY", SECTION 3.1 IS DELETED IN ITS
ENTIRETY AND THE FOLLOWING SECTION 3.1 SHALL BE SUBSTITUTED IN ITS PLACE:
3.1 CONDITIONS OF ELIGIBILITY
(a) Prior to January 1, 1990, any Eligible Employee who has
attained age twenty and has completed at least one (1) Hour of Service in each
of six (6) calendar months for the Employer or for any member of a group defined
in Internal Revenue Code Sections 414(b), (c) or (m) of which the Employer is a
part, shall be eligible to participate hereunder; and
(b) On and after January 1, 1990, any Eligible Employee who
has completed one Year of Service and has attained age twenty and one-half shall
be eligible to participate hereunder as of the date he has satisfied such
requirements. However, any Employee who was a Participant in the Plan prior to
August 1, 1989 shall continue to participate in the Plan; and
(c) On or after October 1, 1992, any Eligible Employee who
either, (i) makes a rollover contribution pursuant to Section 4.9 or (ii)
presents to the Administrator satisfactory evidence that he or she will make a
rollover contribution with funds from a distribution which will be made to the
Employee in the future, before becoming a Participant pursuant to subsection (b)
of this Section 3.1,
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shall become a Participant, as provided in subsection (c) of Section 3.3.
(d) The Employer shall give each prospective Eligible Employee
written notice of his eligibility to participate in the Plan prior to the close
of the Plan Year in which he first becomes an Eligible Employee.
7. ARTICLE III, "ELIGIBILITY," SECTION 3.3 SHALL BE DELETED IN
ITS ENTIRETY AND THE FOLLOWING SECTION 3.3 SHALL BE SUBSTITUTED IN ITS PLACE:
3.3 EFFECTIVE DATE OF PARTICIPATION
(a) Prior to January 1, 1990, an Eligible Employee shall
become a Participant effective as of the first day of the Plan Year following
his or her satisfaction of the eligibility requirements of Section 3.1(a),
provided he or she has not separated from service prior to that date; and
(b) On and after January 1, 1990, an employee who becomes an
Eligible Employee pursuant to Section 3.1(b) shall become a Participant
effective as of the last day of the calendar quarter coinciding with or next
following the date on which such Employee met the eligibility requirements of
Section 3.1(b), provided said Employee was still employed as of such date (or if
not employed on such date, as of the date of rehire if a 1-Year Break in Service
has not occurred); and
(c) On and after October 1, 1992, an employee who becomes an
Eligible Employee pursuant to Section 3.1(c) shall become a Participant on the
first day of the month coinciding with or next following the date on which such
Employee met the requirements of subsection (c) of Section 3.1.
(d) Notwithstanding the foregoing:
(1) a Participant in the Allen Stevens Corp. Profit
Sharing Retirement Benefit Plan on October 31, 1989
shall become a Participant in this Plan effective
November 1, 1989;
(2) An Employee of Allen-Stevens Corp. who on October
31, 1989: was not represented in collective
bargaining by a union, was at least age 21, and has
completed 1,000 Hours of Service during the
12-consecutive month period measured from his
employment commencement date or during the Plan Year
in which the first anniversary of his employment
commencement date fell or any subsequent Plan Year,
shall participate in the Plan effective November 1,
1989, provided he is employed by the Employer on that
date;
(3) A Participant in the Hawthorne Metal Products
Company Profit Sharing Plan on December 31, 1989
shall become a Participant in this Plan effective
January 1, 1990; and
(4) Any employee of Talon Inc. or Talon Development
Group, Inc. who was a Participant in the F & M
Distributors, Inc. 401(k) Investment Savings
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Plan on September 30, 1992 shall become a participant
in this Plan as of October 1, 1992.
8. EFFECTIVE AS OF JANUARY 1, 1993, ARTICLE IV, "CONTRIBUTION AND
ALLOCATION," SECTION 4.2, "PARTICIPANT'S SALARY REDUCTION ELECTION," SUBSECTION
(a) SHALL BE AMENDED IN ITS ENTIRETY AND THE FOLLOWING SECTION 4.2(a) SHALL BE
SUBSTITUTED IN ITS PLACE:
(a) Each Participant may, beginning January 1, 1993, elect to
defer his Compensation which would have been received in the Plan Year, but for
the deferral election, by up to the greater of 7.5% or $5,200. A deferral
election (or modification of an earlier election) may not be made with respect
to Compensation which is currently available on or before the date the
Participant executed such election.
The amount by which Compensation is reduced shall be that
Participant's Deferred Compensation and be treated as an Employer Elective
Contribution and allocated to that Participant's Elective Account.
9. ARTICLE VI, "DETERMINATION AND DISTRIBUTION OF BENEFITS,"
SHALL BE DELETED IN ITS ENTIRETY AND THE FOLLOWING ARTICLE VI SHALL BE
SUBSTITUTED IN ITS PLACE:
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT
Every Participant may terminate his employment with the Employer and
retire for the purposes hereof on his Normal Retirement Date. Upon such Normal
Retirement Date, all amounts credited to such Participant's Combined Account
shall become distributable. However, a Participant may postpone the termination
of his employment with the Employer to a later date, in which event the
participation of such Participant in the Plan, including the right to receive
allocations pursuant to Section 4.4, shall continue until his Late Retirement
Date. Upon a Participant's Retirement Date, or as soon thereafter as is
practicable, the Trustee shall distribute all amounts credited to such
Participant's Combined Account in accordance with Section 6.5.
6.2 DETERMINATION OF BENEFITS UPON DEATH
(a) Upon the death of a Participant before his Retirement Date
or other termination of his employment, all amounts credited to such
Participant's Combined Account shall become fully vested. The Administrator
shall direct the Trustee, in accordance with the provisions of Sections 6.6 and
6.7, to distribute the value of the deceased Participant's accounts to the
Participant's Beneficiary.
(b) Upon the death of a Former Participant, the Administrator
shall direct the Trustee, in accordance with the provisions of Sections 6.6 and
6.7, to distribute any remaining vested amounts credited to the accounts of a
deceased Former Participant to such Former Participant's Beneficiary.
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(c) Any security interest held by the Plan by reason of an
outstanding loan to the Participant or Former Participant shall be taken into
account in determining the amount of the Pre- Retirement Survivor Annuity.
(d) The Administrator may require such proper proof of death
and such evidence of the right of any person to receive payment of the value of
the account of a deceased Participant or Former Participant as the Administrator
may deem desirable. The Administrator's determination of death and of the right
of any person to receive payment shall be conclusive.
(e) Unless otherwise elected in the manner prescribed in
Section 6.6, the Beneficiary of the death benefit shall be the Participant's
spouse, who shall receive such benefit in the form of a Pre-Retirement Survivor
Annuity pursuant to Section 6.6. Except, however, the Participant may designate
a Beneficiary other than his spouse if:
(1) the Participant and his spouse have validly
waived the Pre-Retirement Survivor Annuity in the
manner prescribed in Section 6.6, and the spouse has
waived his or her right to be the Participant's
Beneficiary, or
(2) the Participant is legally separated or has been
abandoned (within the meaning of local law) and the
Participant has a court order to such effect (and
there is no "qualified domestic relations order" as
defined in Code Section 414(p) which provides
otherwise), or
(3) the Participant has no spouse, or
(4) the spouse cannot be located.
In such event, the designation of a Beneficiary shall
be made on a form satisfactory to the Administrator. A Participant may at any
time revoke his designation of a Beneficiary or change his Beneficiary by filing
written notice of such revocation or change with the Administrator. However, the
Participant's spouse must again consent in writing to any change in Beneficiary
unless the original consent acknowledged that the spouse had the right to limit
consent only to a specific Beneficiary and that the spouse voluntarily elected
to relinquish such right. In the event no valid designation of Beneficiary
exists at the time of the Participant's death, the death benefit shall be
payable to his estate.
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY
In the event of a Participant's Total and Permanent Disability prior to
his Retirement Date or other termination of his employment, all amounts credited
to such Participant's Combined Account shall become fully Vested. In the event
of a Participant's Total and Permanent Disability, the Trustee, in accordance
with the provisions of Sections 6.5 and 6.7, shall distribute to such
Participant all amounts credited to such Participant's Combined Account as
though he had retired.
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6.4 DETERMINATION OF BENEFITS UPON TERMINATION
(a) On or before the Anniversary Date coinciding with or
subsequent to the termination of a Participant's employment for any reason other
than death, Total and Permanent Disability or retirement, the Administrator may
direct the Trustee to segregate the amount of the Vested portion of such
Terminated Participant's Combined Account and invest the aggregate amount
thereof in a separate, federally insured savings account, certificate of
deposit, common or collective trust fund of a bank or a deferred annuity. In the
event the Vested portion of a Participant's Combined Account is not segregated,
the amount shall remain in a separate account for the Terminated Participant and
share in allocations pursuant to Section 4.4 until such time as a distribution
is made to the Terminated Participant.
Distribution of the funds due to a Terminated Participant
shall be made on the occurrence of an event which would result in the
distribution had the Terminated Participant remained in the employ of the
Employer (upon the Participant's death, Total and Permanent Disability or Normal
Retirement). However, at the election of the Participant, the Administrator
shall direct the Trustee to cause the entire Vested portion of the Terminated
Participant's Combined Account to be payable to such Terminated Participant. Any
distribution under this paragraph shall be made in a manner which is consistent
with and satisfies the provisions of Section 6.5, including, but not limited to,
all notice and consent requirements of Code Sections 417 and 411(a)(11) and the
Regulations thereunder.
If the value of a Terminated Participant's Vested benefit
derived from Employer and Employee contributions does not exceed $3,500 and has
never exceeded $3,500 at the time of any prior distribution, the Administrator
shall direct the Trustee to cause the entire Vested benefit to be paid to such
Participant in a single lump sum.
For purposes of this Section 6.4, if the value of a Terminated
Participant's Vested benefit is zero, the Terminated Participant shall be deemed
to have received a distribution of such Vested benefit.
(b) The Vested portion of any Participant's Account shall be a
percentage of the total amount credited to his Participant's Account determined
on the basis of the Participant's number of Years of Service according to the
following schedule:
Vesting Schedule
Years of Service Percentage
3 20%
4 40%
5 60%
6 80%
7 100%
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(c) Notwithstanding the vesting provided for in
paragraph (b) above, for any Top Heavy Plan Year, the Vested portion of the
Participant's Account of any Participant who has an Hour of Service after the
Plan becomes top heavy shall be a percentage of the total amount credited to his
Participant's Account determined on the basis of the Participant's number of
Years of Service according to the following schedule:
Vesting Schedule
Years of Service Percentage
2 20%
3 40%
4 60%
5 80%
6 100%
If in any subsequent Plan Year, the Plan ceases to be a Top
Heavy Plan, the Administrator shall revert to the vesting schedule in effect
before this Plan became a Top Heavy Plan. Any such reversion shall be treated as
a Plan amendment pursuant to the terms of the Plan.
(d) Notwithstanding the vesting schedule above, the Vested
percentage of a Participant's Account shall not be less than the Vested
percentage attained as of the later of the effective date or adoption date of
this amendment and restatement.
(e) Notwithstanding the vesting schedule above, upon the
complete discontinuance of the Employers contributions to the Plan or upon any
full or partial termination of the Plan, all amounts credited to the account of
any affected Participant shall become 100% Vested and shall not thereafter be
subject to Forfeiture.
(f) The computation of a Participant's nonforfeitable
percentage of his interest in the Plan shall not be reduced as the result of any
direct or indirect amendment to this Plan. For this purpose, the Plan shall be
treated as having been amended if the Plan provides for an automatic change in
vesting due to a change in top heavy status. In the event that the Plan is
amended to change or modify any vesting schedule, a Participant with at least
three (3) Years of Service as of the expiration date of the election period may
elect to have his nonforfeitable percentage computed under the Plan without
regard to such amendment. If a Participant fails to make such election, then
such Participant shall be subject to the new vesting schedule. The Participant's
election period shall commence on the adoption date of the amendment and shall
end 60 days after the latest of:
(1) the adoption date of the amendment,
(2) the effective date of the amendment, or
(3) the date the Participant receives written notice
of the amendment from the Employer or Administrator.
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(g) (1) If any Former Participant shall be reemployed by
the Employer before a 1-Year Break in Service occurs,
he shall continue to participate in the Plan in the
same manner as if such termination had not occurred.
(2) If any Former Participant shall be reemployed by
the Employer before five (5) consecutive 1-Year
Breaks in Service, and such Former Participant had
received, or was deemed to have received, a
distribution of his entire Vested interest prior to
his reemployment, his forfeited account shall be
reinstated only if he repays the full amount
distributed to him before the earlier of five (5)
years after the first date on which the Participant
is subsequently reemployed by the Employer or the
close of the first period of five (5) consecutive
1-Year Breaks in Service commencing after the
distribution, or in the event of a deemed
distribution, upon the reemployment of such Former
Participant. If a distribution occurs for any reason
other than a separation from service, the time for
repayment may not end earlier than five (5) years
after the date of distribution. In the event the
Former Participant does repay the full amount
distributed to him, or in the event of a deemed
distribution, the undistributed portion of the
Participant's Account must be restored in full,
unadjusted by any gains or losses occurring
subsequent to the Anniversary Date or other valuation
date coinciding with or preceding his termination.
The source for such reinstatement shall first be any
Forfeitures occurring during the year. If such source
is insufficient, then the Employer shall contribute
an amount which is sufficient to restore any such
forfeited Accounts provided, however, that if a
discretionary contribution is made for such year
pursuant to Section 4.1(c), such contribution shall
first be applied to restore any such Accounts and the
remainder shall be allocated in accordance with
Section 4.4.
(3) If any Former Participant is reemployed after a
1-Year Break in Service has occurred, Years of
Service shall include Years of Service prior to his
1-Year Break in Service subject to the following
rules:
(i) If a Former Participant has a 1-Year
Break in Service, his pre-break and
post-break service shall be used for
computing Years of Service for eligibility
and for vesting purposes only after he has
been employed for one (1) Year of Service
following the date of his reemployment with
the Employer;
(ii) Any Former Participant who under the
Plan does not have a nonforfeitable right to
any interest in the Plan resulting from
Employer contributions shall lose credits
otherwise allowable under (i) above if his
consecutive 1-Year Breaks in Service equal
or exceed the greater of (A) five (5) or (B)
the aggregate number of his pre- break Years
of Service;
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(iii) After five (5) consecutive 1-Year
Breaks in Service, a Former Participant's
Vested Account balance attributable to
pre-break service shall not be increased as
a result of post-break service;
(iv) If a Former Participant who has not
had his Years of Service before a 1-Year
Break in Service disregarded pursuant to
(ii) above completes one (1) Year of Service
for eligibility purposes following his
reemployment with the Employer, he shall
participate in the Plan retroactively from
his date of reemployment;
(v) If a Former Participant who has not
had his Years of Service before a 1-Year
Break in Service disregarded pursuant to
(ii) above completes a Year of Service (a
1-Year Break in Service previously occurred,
but employment had not terminated), he shall
participate in the Plan retroactively from
the first day of the Plan Year during which
he completes one (1) Year of Service.
6.5 DISTRIBUTION OF BENEFITS
(a) (1) Unless otherwise elected as provided below,
a Participant who is married on the "annuity starting
date; and who does not die before the "annuity
starting date" shall receive the value of all of his
benefits in the form of a joint and survivor annuity.
The joint and survivor annuity is an annuity that
commences immediately and shall be equal in value to
a single life annuity. Such joint and survivor
benefits following the Participant's death shall
continue to the spouse during the spouse's lifetime
at a rate equal to 50% of the rate at which such
benefits were payable to the Participant. This joint
and 50% survivor annuity shall be considered the
designated qualified joint and survivor annuity and
automatic form of payment for the purposes of this
Plan. However, the Participant may elect to receive a
smaller annuity benefit with continuation of payments
to the spouse at a rate of seventy-five percent (75%)
or one hundred percent (100%) of the rate payable to
a Participant during his lifetime, which alternative
joint and survivor annuity shall be equal in value to
the automatic joint and 50% survivor annuity. An
unmarried Participant shall receive the value of his
benefit in the form of a life annuity. Such unmarried
Participant, however, may elect in writing to waive
the life annuity. The election must comply with the
provisions of this Section as if it were an election
to waive the joint and survivor annuity by a married
Participant, but without the spousal consent
requirement. The Participant may elect to have any
annuity provided for in this Section distributed upon
the attainment of the "earliest retirement age" under
the Plan. The "earliest retirement age" is the
earliest date on which, under the Plan, the
Participant could elect to receive retirement
benefits.
(2) Any election to waive the joint and survivor
annuity must be made by
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the Participant in writing during the election period
and be consented to by the Participant's spouse. If
the spouse is legally incompetent to give consent,
the spouse's legal guardian, even if such guardian is
the Participant, may give consent. Such election
shall designate a Beneficiary (or a form of benefits)
that may not be changed without spousal consent
(unless the consent of the spouse expressly permits
designations by the Participant with the requirement
of further consent by the spouse). Such spouse's
consent shall be irrevocable and must acknowledge the
effect of such election and be witnessed by a Plan
representative or a notary public. Such consent shall
not be required if it is established to the
satisfaction of the Administrator that the required
consent cannot be obtained because there is no
spouse, the spouse cannot be located, or other
circumstances that may be prescribed by Regulations.
The election made by the Participant and consented to
by his spouse may be revoked by the Participant in
writing without the consent of the spouse at any time
during the election period. The number of revocations
shall not be limited. Any new election must comply
with the requirements of this paragraph. A former
spouse's waiver shall not be binding on a new spouse.
(3) The election period to waive the joint and
survivor annuity shall be the 90 day period ending on
the "annuity starting date."
(4) For purposes of this Section, the "annuity
starting date" means the first day of the first
period for which an amount is paid as an annuity, or,
in the case of a benefit not payable in the form of
an annuity, the first day on which all events have
occurred which entitle the Participant to such
benefit.
(5) With regard to the election, the Administrator
shall provide to the Participant no less than 30 days
and no more than 90 days before the "annuity starting
date" a written explanation of:
(i) the terms and conditions of the
joint and survivor annuity, and
(ii) the Participant's right to make, and
the effect of, an election to waive
the joint and survivor annuity, and
(iii) the right of the Participant's
spouse to consent to any election to
waive the joint and survivor
annuity, and
(iv) the right of the Participant to
revoke such election, and the effect
of such revocation.
(b) In the event a married Participant duly elects
pursuant to paragraph (a)(2) above not to receive his benefit in the form of a
joint and survivor annuity, or if such Participant is not married, in the form
of a life annuity, the Administrator, pursuant to the election of the
Participant, shall direct the Trustee to distribute to a Participant or his
Beneficiary any amount to which he is entitled
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under the Plan in one or more of the following methods:
(1) One lump-sum payment in cash,
(2) Payments over a period certain in monthly,
quarterly, semiannual, or annual cash installments.
In order to provide such installment payments, the
Administrator may (A) segregate the aggregate amount
thereof in a separate, federally insured savings
account, certificate of deposit in a bank or savings
and loan association, money market certificate or
other liquid short-term security or (B) purchase a
nontransferable annuity contract for a term certain
(with no life contingencies) providing for such
payment. The period over which such payment is to be
made shall not exceed one hundred twenty (120)
months.
(c) The present value of a Participant's joint and survivor
annuity derived from Employer and Employee contributions, may not be paid
without his written consent if the value exceeds, or has ever exceeded, $3,500
at the time of any prior distribution. Further, the spouse of a Participant must
consent in writing to any immediate distribution. If the value of the
Participant's benefit derived from Employer and Employee contributions, does not
exceed $3,500 and has never exceeded $3,500 at the time of any prior
distribution, the Administrator may immediately distribute such benefit without
such Participant's consent. No distribution may be made under the preceding
sentence after the "annuity starting date" unless the Participant and his spouse
consent in writing to such distribution. Any written consent required under this
paragraph must be obtained not more than 90 days before commencement of the
distribution and shall be made in a manner consistent with Section 6.5(a)2.
(d) Any distribution to a Participant who has a benefit which
exceeds, or has ever exceeded, $3,500 at the time of any prior distribution
shall require such Participant's consent if such distribution commences prior to
the later of his Normal Retirement Age or age 62. With regard to this required
consent:
(1) No consent shall be valid unless the Participant
has received a general description of the material
features and an explanation of the relative values of
the optional forms of benefit available under the
Plan that would satisfy the notice requirements of
Code Section 417.
(2) The Participant must be informed of his right to
defer receipt of the distribution. If a Participant
fails to consent, it shall be deemed an election to
defer the commencement of payment. However, any
election to defer the receipt of benefits shall not
apply with respect to distributions which are
required under Section 6.5(e).
(3) Notice of the rights specified under this
paragraph shall be provided no less than 30 days and
no more than 90 days before the "annuity starting
date".
(4) Written consent of the Participant to the
distribution must not be made
- 12 -
13
before the Participant receives the notice and must
not be made more than 90 days before the "annuity
starting date".
(5) No consent shall be valid if a significant
detriment is imposed under the Plan on any
Participant who does not consent to the distribution.
(e) Notwithstanding any provision in the Plan to the contrary,
the distribution of a Participant's benefits made on or after January 1, 1985,
whether under the Plan or through the purchase of an annuity contract, shall be
made in accordance with the following requirements and shall otherwise comply
with Code Section 401(a)(9) and the Regulations thereunder (including Regulation
1.401(a)(9)-2), the provisions of which are incorporated herein by reference:
(1) A Participant's benefits shall be distributed to
him not later than April 1st of the calendar year
following the later of (i) the calendar year in which
the Participant attains age 70 1/2 or (ii) the
calendar year in which the Participant retires,
provided, however, that this clause (ii) shall not
apply in the case of a Participant who is a "five (5)
percent owner" at any time during the five (5) Plan
Year period ending in the calendar year in which he
attains age 70 1/2, or, in the case of the
Participant who becomes a "five (5) percent owner"
during any subsequent Plan Year, clause (ii) shall no
longer apply and the required beginning date shall be
the April 1st of the calendar year following the
calendar year in which such subsequent Plan Year
ends. Alternatively, if the distribution is to be in
the form of a joint and survivor annuity or single
life annuity as provided in paragraph (a)(1) above,
then distributions must begin no later than the
applicable April 1st as determined under the
preceding sentence and must be made over the life of
the Participant (or the lives of the Participant and
the Participant's designated Beneficiary) in
accordance with Regulations. Notwithstanding the
foregoing, clause (ii) above shall not apply to any
Participant unless the Participant had attained age
70 1/2 before January 1, 1988 and was not a "five (5)
percent owner" at any time during the Plan Year
ending with or within the calendar year in which the
Participant attained age 66 1/2 or any subsequent
Plan Year.
(2) Distributions to a Participant and his
Beneficiaries shall only be made in accordance with
the incidental death benefit requirements of Code
Section 401(a)(9)(G) and the Regulations thereunder.
Additionally, for calendar years beginning before
1989, distributions may also be made under an
alternative method which provides that the then
present value of the payments to be made over the
period of the Participant's life expectancy exceeds
fifty percent (50%) of the then present value of the
total payments to be made to the Participant and his
beneficiaries.
(f) For purposes of this Section, the life expectancy of a
Participant and a Participant's spouse, other than in the case of a life
annuity, shall not be redetermined in accordance
- 13 -
14
with Code Section 401(a)(9)(D). Life expectancy and joint and last survivor
expectancy shall be computed using the return multiples in Tables V and VI of
Regulation 1.72-9.
(g) Subject to the spouse's right of consent afforded under
the Plan, the restrictions imposed by this Section shall not apply if a
Participant has, prior to January 1, 1984, made a written designation to have
his retirement benefit paid in an alternative method acceptable under Code
Section 401(a) as in effect prior to the enactment of the Tax Equity and Fiscal
Responsibility Act of 1982.
(h) All annuity Contracts under this Plan shall be
non-transferable when distributed. Furthermore, the terms of any annuity
Contract purchased and distributed to a Participant or spouse shall comply with
all of the requirements of the Plan.
(i) If a distribution is made at a time when a Participant is
not fully Vested in his Participant's Account and the Participant may increase
the Vested percentage in such account:
(1) a separate account shall be established for
the Participant's interest in the Plan as of the
time of the distribution; and
(2) at any relevant time, the Participant's Vested
portion of the separate account shall be equal to an
amount ("X") determined by the formula:
X equals P(AB plus (R x D)) - (R x D)
For purposes of applying the formula: P is the Vested
percentage at the relevant time. AB is the account
balance at the relevant time, D is the amount of
distribution, and R is the ratio of the account
balance at the relevant time to the account balance
after distribution.
6.6 DISTRIBUTION OF BENEFITS UPON DEATH
(a) Unless otherwise elected as provided below, a Vested
Participant who dies before the annuity starting date and who has a surviving
spouse shall have his death benefit paid to his surviving spouse in the form of
a Pre-Retirement Survivor Annuity. The Participant's spouse may direct that
payment of the Pre-Retirement Survivor Annuity commence within a reasonable
period after the Participant's death. If the spouse does not so direct, payment
of such benefit will commence at the time the Participant would have attained
the later of his Normal Retirement Age or age 62. However, the spouse may elect
a later commencement date. Any distribution to the Participant's spouse shall be
subject to the rules specified in Section 6.6(g).
(b) Any election to waive the Pre-Retirement Survivor Annuity
before the Participant's death must be made by the Participant in writing during
the election period and shall require that spouse's irrevocable consent in the
same manner provided for in Section 6.5(a)(2). Further, the spouse's consent
must acknowledge the specific nonspouse Beneficiary. Notwithstanding
the foregoing, the nonspouse Beneficiary need not be acknowledged, provided the
consent of the spouse acknowledges that the spouse has the right to limit
consent only to a specific Beneficiary and that the
- 14 -
15
spouse voluntarily elects to relinquish such right.
(c) The election period to waive the Pre-Retirement Survivor
Annuity shall begin on the first day of the Plan Year in which the Participant
attains age 35 and end on the date of the Participant's death. An earlier waiver
(with spousal consent) may be made provided a written explanation of the
Pre-Retirement Survivor Annuity is given to the Participant and such waiver
becomes invalid at the beginning of the Plan Year in which the Participant turns
age 35. In the event a Vested Participant separates from service prior to the
beginning of the election period, the election period shall begin on the date of
such separation from service.
(d) With regard to the election, the Administrator shall
provide each Participant within the applicable period, with respect to such
Participant (and consistent with Regulations), a written explanation of the
Pre-Retirement Survivor Annuity containing comparable information to that
required pursuant to Section 6.5(a)(5). For the purposes of this paragraph, the
term "applicable period" means, with respect to a Participant, whichever of the
following periods ends last:
(1) The period beginning with the first day of the
Plan Year in which the Participant attains age 32 and
ending with the close of the Plan Year preceding the
Plan Year in which the Participant attains age 35;
(2) A reasonable period after the individual becomes
a Participant;
(3) A reasonable period ending after the Plan no
longer fully subsidizes the cost of the
Pre-Retirement Survivor Annuity with respect to the
Participant;
(4) A reasonable period ending after Code Section
401(a)(11) applies to the Participant; or
(5) A reasonable period after separation from service
in the case of a Participant who separates before
attaining age 35. For this purpose, the Administrator
must provide the explanation beginning one year
before the separation from service and ending one
year after such separation. If such a Participant
thereafter returns to employment with the Employer,
the applicable period for such Participant shall be
redetermined.
For purposes of applying this Section 6.6(d), a reasonable
period ending after the enumerated events described in paragraphs (2), (3) and
(4) is the end of the two year period beginning one year prior to the date the
applicable event occurs, and ending one year after that date.
(e) If the present value of the Pre-Retirement Survivor
Annuity derived from Employer and Employee contributions does not exceed $3,500
and has never exceeded $3,500 at the time of any prior distribution, the
Administrator shall direct the immediate distribution of such amount to the
Participant's spouse. No distribution may be made under the preceding sentence
after the annuity starting date unless the spouse consents in writing. If the
value exceeds, or has ever exceeded, $3,500 at the time of any prior
distribution, an immediate distribution of the entire amount may be made to the
- 15 -
16
surviving spouse, provided such surviving spouse consents in writing to such
distribution. Any written consent required under this paragraph must be obtained
not more than 90 days before commencement of the distribution and shall be made
in a manner consistent with Section 6.5(a)(2).
(f) (1) In the event the death benefit is not paid in the
form of a Pre-Retirement Survivor Annuity, it shall
be paid to the Participant's Beneficiary by either of
the following methods, as elected by the Participant
(or if no election has been made prior to the
Participant's death, by his Beneficiary), subject to
the rules specified in Section 6.6(g):
(i) One lump-sum payment in cash.
(ii) Payment in monthly, quarterly,
semi-annual, or annual cash installments
over a period to be determined by the
Participant or his Beneficiary. After
periodic installments commence, the
Beneficiary shall have right to direct the
Trustee to reduce the period over which such
periodic installments shall be made, and the
Trustee shall adjust the cash amount of such
periodic installments accordingly.
(2) In the event the death benefit payable pursuant
to Section 6.2 is payable in installments, then, upon
the death of the Participant, the Administrator may
direct the Trustee to segregate the death benefit
into a separate account, and the Trustee shall invest
such segregated account separately, and the funds
accumulated in such account shall be used for the
payment of the installments.
(g) Notwithstanding any provision in the Plan to the contrary,
distributions upon the death of a Participant made on or after January 1, 1985,
shall be made in accordance with the following requirements and shall otherwise
comply with Code Section 401(a)(9) and the Regulations thereunder. If the death
benefit is paid in the form of a Pre-Retirement Survivor Annuity, then
distributions to the Participant's spouse must commence on or before the later
of (1) December 31st of the calendar year immediately following the calendar
year in which the Participant died; or (2) December 31st of the calendar year in
which the Participant would have attained aged 70-1/2. If it is determined
pursuant to Regulations that the distribution of a Participant's interest has
begun and the Participant dies before his entire interest has been distributed
to him, the remaining portion of such interest shall be distributed at least as
rapidly as under the method of distribution selected pursuant to Section 6.5 as
of his date of death. If a Participant dies before he has begun to receive any
distributions of his interest under the Plan or before distributions are deemed
to have begun pursuant to Regulations and distributions are not to be made in
the form of a Pre-Retirement Survivor Annuity, then his death benefit shall be
distributed to his Beneficiaries by December 31st of the calendar year in which
the fifth anniversary of his date of death occurs.
(h) For purposes of this Section, the life expectancy of a
Participant and a Participant's spouse may, at the election of the Participant
or the Participant's spouse, be redetermined in accordance with Regulations. The
election, once made, shall be irrevocable. If no election is made by the time
distributions must commence, then the life expectancy of the Participant and the
- 16 -
17
Participant's spouse shall not be subject to recalculation. Life expectancy and
joint and last survivor expectancy shall be computed using the return multiples
in Tables V and VI of Regulation 1.72-9.
(i) Subject to the spouse's right of consent afforded under
the Plan, the restrictions imposed by this Section shall not apply if a
Participant has, prior to January 1, 1984, made a written designation to have
his death benefits paid in an alternative method acceptable under Code Section
401(a) as in effect prior to the enactment of the Tax Equity and Fiscal
Responsibility Act of 1982.
6.7 TIME OF SEGREGATION OR DISTRIBUTION
Except as limited by Sections 6.5 and 6.6, whenever the Trustee is to
make a distribution or to commence a series of payments on or as of an
Anniversary Date, the distribution may be made or begun on such date or as soon
thereafter as is practicable, but in no event later than 180 days after the
Anniversary Date. However, unless a Former Participant elects in writing to
defer the receipt of benefits (such election may not result in a death benefit
that is more than incidental), the payment of benefits shall begin not later
than the 60th day after the close of the Plan Year in which the latest of the
following events occurs: (a) the date on which the Participant attains the
earlier of age 65 or the Normal Retirement Age specified herein; (b) the 10th
anniversary of the year in which the Participant commenced participation in the
Plan; or (c) the date the Participant terminates his service with the Employer.
6.8 DISTRIBUTION FOR MINOR BENEFICIARY
In the event a distribution is to be made to a minor, then the
Administrator may direct that such distribution be paid to the legal guardian,
or if none, to a parent of such Beneficiary or a responsible adult with whom the
Beneficiary maintains his residence or to the custodian for such Beneficiary
under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted
by laws of the state in which said Beneficiary resides. Such a payment to the
legal guardian, custodian or parent or a minor Beneficiary shall fully discharge
the Trustee, Employer, and Plan from further liability on account thereof.
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the distribution payable to a
Participant or his Beneficiary hereunder shall, at the later of the
Participant's attainment of age 62 or his Normal Retirement Age, remain unpaid
solely by reason of the inability of the Administrator, after sending a
registered letter, return receipt requested, to the last known address, and
after further diligent effort, to ascertain the whereabouts of such Participant
or his Beneficiary, the amount so distributable shall be treated as a Forfeiture
pursuant to the Plan. In the event a Participant or Beneficiary is located
subsequent to his benefit being reallocated, such benefit shall be restored.
6.10 PRE-RETIREMENT DISTRIBUTION
At such time as a Participant shall have attained the age of 55 years,
the Administrator, at the
- 17 -
18
election of the Participant, shall direct the Trustee to distribute all or a
portion of the Vested amount then credited to the accounts maintained on behalf
of the Participant. (However, no distribution from the Participant's Account
shall occur prior to 100% vesting.) In the event that the Administrator makes
such a distribution, the Participant shall continue to be eligible to
participate in the Plan on the same basis as any other Employee. Any
distribution made pursuant to this Section shall be made in a manner consistent
with Section 6.5, including, but not limited to, all notice and consent
requirements of Code Sections 417 and 411(a)(11) and the Regulation thereunder.
Notwithstanding the above, pre-retirement distributions from a
Participant's Elective Account shall not be permitted prior to the Participant
attaining age 59 1/2 except as otherwise permitted under the terms of the Plan.
6.11 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION
All rights and benefits, including elections, provided to a Participant
in this Plan shall be subject to the rights afforded to any "alternate payee"
under a "qualified domestic relations order." Furthermore, a distribution to an
"alternate payee" shall be permitted if such distribution is authorized by a
"qualified domestic relations order," even if the affected Participant has not
separated from service and has not reached the "earliest retirement age" under
the Plan. For the purposes of this Section, "alternate payee," "qualified
domestic relations order" and "earliest retirement age' shall have the meaning
set forth under Code Section 414(p).
10. ARTICLE VII, "TRUSTEE," SECTION 7.4(a) SHALL BE DELETED IN ITS
ENTIRETY AND THE FOLLOWING SECTION 7.4(a) SHALL BE SUBSTITUTED IN ITS PLACE:
(a) The Trustee may, in the Trustee's discretion, make loans
to Participants and Beneficiaries under the following circumstances: (1) loans
shall be made available to all Participants from their Participant's Elective
Accounts and from their Participant's Rollover Accounts, as defined in Section
4.9 hereof, and to their beneficiaries on a reasonably equivalent basis; (2)
loans shall not be made available to Highly Compensated Employees in an amount
greater than the amount made available to other Participants from their
Participant's Elective Accounts and Participant's Rollover Accounts and to their
Beneficiaries; (3) loans shall bear a reasonable rate of interest; (4) loans
shall be adequately secured; and (5) loans shall provide for repayment over a
reasonable period of time.
11. ARTICLE X, "PARTICIPATING EMPLOYERS," SHALL BE AMENDED BY THE
ADDITION OF A NEW SECTION 10.11, "PLAN NAME," TO READ AS FOLLOWS:
10.11 SUBSTITUTION OF PLAN NAME
When referring to this Plan, Participating Employers may substitute the
name of the Participating Employer for the words, "Talon Inc."
- 18 -
19
12. EXCEPT AS HEREBY AMENDED, THE PLAN, AS IN EFFECT PRIOR TO THIS
AMENDMENT, REMAINS IN FULL FORCE AND EFFECT.
- 19 -
20
IN WITNESS WHEREOF, the Employers have caused this amendment to be
executed as of the date first written above.
G & L INDUSTRIES, INC.
By: __________________________
Its:__________________________
ALLEN-STEVENS CORP.
By: __________________________
Its:__________________________
HAWTHORNE METAL PRODUCTS COMPANY
By: ___________________________
Its:___________________________
TALON INC.
By: ___________________________
Its:___________________________
TALON DEVELOPMENT GROUP, INC.
By: ___________________________
Its:___________________________
PRES-TOCK, INC.
By: ___________________________
Its:___________________________
- 20 -
21
THIRD AMENDMENT
TO
THE TALON INC.
401(k) PLAN AND TRUST
This Third Amendment is made as of the 20th day of July, 1993, by G & L
Industries, Inc. Allen-Stevens Corp., Hawthorne Metal Products Company, Talon
Inc. and Talon Development Group, Inc., all Michigan corporations, and
Pres-Tock, Inc., a Washington corporation (the "Employers").
WITNESSETH:
WHEREAS, effective August 1, 1985, G & L Industries, Inc. adopted the G & L
Industries, Inc. 401(k) Plan and Trust (the "Plan"); and
WHEREAS, Talon Inc., Talon Development Group, Allen-Stevens Corp.,
Hawthorne Metal Products Company and Pres-Tock, Inc., subsequently adopted the
Plan as participating employers; and
WHEREAS, under the provisions of the Plan, the Employers reserved for
themselves the right to amend the Plan; and
WHEREAS, it is the Employers' desire to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended effective January 1, 1993 as
follows:
FIRST, a new Section 6.12, " Distributions on or after January 1,
1993 (Model Language of Rev. Proc. 93-12.)" shall be added to Article
VI, "Determination and Distribution of Benefits," read as follows:
6.12 Distributions on or after January 1, 1993 (model language
of Rev. Proc. 93-12.)
This Article applies to distributions made on or after
January 1, 1993. Notwithstanding any provisions of the plan to
the contrary that would otherwise limit a distributee's election
under this Article, a distributee may elect, at the time and in
the manner prescribed by the Plan Administrator, to
22
have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the
distributee in a direct rollover.
(a) Eligible rollover distribution: An eligible
rollover distribution is any distribution of all or any
portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not
include any distribution that is one of a series of
substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated
beneficiary, or for a specified period of ten years or more;
any distribution to the extent such distribution is required
under section 401(a)(9) of the Code, and the portion of any
distribution that is not includible in gross income
(determined without regard to the exclusion for net
unrealized appreciation with respect to employer
securities).
(b) Eligible retirement plan: An eligible retirement
plan is an individual retirement account described in
section 408(a) of the Code, an individual retirement annuity
described in section 403(a) of the Code, or a qualified
trust described in section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However,
in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an annuity.
(c) Distributee: A distributee includes an employee or
former employee. In addition, the employee's or former
employee's surviving spouse and the employee's or former
employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined
in Section 414(p) of the Code, are distributees with regard
to the interest of the spouse or former spouse.
(d) Direct rollover: A direct rollover is a payment by
the Plan to the eligible retirement plan specified by the
distributee.
23
IN WITNESS WHEREOF, the Employers have caused this amendment to be executed
as of the date first written above.
G & L INDUSTRIES, INC.
By: _______________________
Its:_______________________
ALLEN-STEVENS CORP.
By: _______________________
Its:_______________________
HAWTHORNE METAL PRODUCTS COMPANY
By: ___________________________
Its:___________________________
TALON INC.
By: ___________________________
Its:___________________________
TALON DEVELOPMENT GROUP, INC.
By: ___________________________
Its:___________________________
PRES-TOCK, INC.
By: ___________________________
Its:___________________________
24
FOURTH AMENDMENT
TO
THE TALON INC.
401(k) PLAN AND TRUST
This Fourth Amendment is made as of the 10th day of November, 1994, by G &
L Industries, Inc. Allen-Stevens Corp., Hawthorne Metal Products Company, Talon
Inc. and Talon Development Group, Inc. and Pres-Tock, Inc., all Michigan
corporations (the "Employers").
WITNESSETH:
WHEREAS, the Employers sponsor the Plan and, under the provisions of the
Plan, reserve for themselves the right to amend the Plan; and
WHEREAS, it is the Employers' desire to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended effective January 1, 1994 as
follows:
FIRST, Section 1.8, "Compensation" shall be amended by the addition of
three paragraphs (model language of Rev Proc 94-13) to read as follows:
"In addition to other applicable limitations set forth in the
Plan, and notwithstanding any other provision of the Plan to the
contrary, for Plan Years beginning on or after January 1, 1994, the
annual compensation of each employee taken into account under the Plan
shall not exceed the OBRA '93 annual compensation limit. The OBRA '93
annual compensation limit is $150,000, as adjusted by the Commissioner
for increases in the cost of living in accordance with section
401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not
exceeding 12 months, over which compensation is determined
(determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA '93
annual compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination
period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the Limitation under section 401(a)(17) of
the Code shall mean the OBRA '93 annual compensation limit set forth
in this provision.
If compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current
Plan Year, the compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in effect for that
prior determination period. For this purpose,
25
for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994, the OBRA
'93 annual compensation limit is $150,000."
SECOND, Article I, "Definitions," shall be amended by the addition of a
new Section 1.63, to read as follows:
"1.63 "Contributing Employer" means G & L Industries, Inc.
and any Participating Employer, as defined in Section 10.1."
THIRD, Subsection 4.1(c) shall be deleted in its entirety and the
following subsection 4.1(c) shall be substituted in its place and
stead:
"A discretionary amount, which amount shall be deemed an
Employer's Non-Elective Contribution. Each Contributing Employer
may contribute to the Plan a separate discretionary amount for
their respective employees who are Participants in the Plan,
provided that such contributions or benefits do not cause the
Plan to discriminate in favor of Highly Compensated Employees,
within the meaning of Code Section 401(a)(4) and the regulations
thereunder."
FOURTH, Subsection 4.4(b)(3) shall be deleted in its entirety and the
following subsection 4.4(b)(3) shall be substituted in its place and
stead:
"With respect to the Employer's Non-Elective Contribution
made pursuant to Section 4.1(c), in the following manner:
(i) A dollar amount equal to 5.7% of the sum
of each Participant's total Compensation
plus Excess Compensation shall be allocated
to each Participant's Account. If any
Contributing Employer does not contribute
such amount for all of its respective
Participants, such Participants will be
allocated a share of the Contributing
Employer's contribution in the same
proportion that each such Participant's
total Compensation plus his total Excess
Compensation for the Plan Year bears to the
total Compensation plus the total Excess
Compensation of all Participants employed by
such Contributing Employer for that year.
(ii) The balance of each Contributing
Employer's Non-Elective Contribution, over
the amount allocated above, if any, shall be
allocated to the Participant Account of
those Participants who are Employees of such
Contributing Employer in the same proportion
that each such Participant's total
Compensation for the Plan Year bears to the
total Compensation of all Participants
employed by such Contributing Employer for
that year."
26
FIFTH, Section 8.1 "Amendment" shall be amended by the
addition of the following subsection 8.1(d):
"(d) Amendments to the Plan may be effected by a
written resolution in accordance with the established
procedure of the Employer's Board of Directors. Any such
amendment shall be effective as of such date as the Board of
Directors shall determine. The Plan Administrator shall notify
all covered Participants of any amendment modifying the
substantive terms of the Plan. Such notification shall be in
the form of a Summary of Material Modification unless
incorporated in an updated Summary Plan Description."
IN WITNESS WHEREOF, the Employers have caused this amendment to be
executed as of the date first written above.
TALON INC.
By: _______________________
Its:_______________________
G & L INDUSTRIES, INC.
By: _______________________
Its:_______________________
ALLEN-STEVENS CORP.
By: _______________________
Its:_______________________
27
HAWTHORNE METAL PRODUCTS COMPANY
By: ___________________________
Its:___________________________
TALON DEVELOPMENT GROUP, INC.
By: ___________________________
Its:___________________________
PRES-TOCK, INC.
By: ___________________________
Its:___________________________
28
FIFTH AMENDMENT
TO
THE TALON INC.
401(k) PLAN AND TRUST
This Fifth Amendment is made as of the 15th day of March, 1995, by G & L
Industries, Inc. Allen-Stevens Corp., Talon Inc. and Talon Development Group,
Inc., Hawthorne Metal Products Company, Pres-Tock, Inc., Reflectolite Products
Co., Inc., North American Die Casting Corp., North American Manufacturing Corp.
and Talon Automotive Group L.L.C. (the "Employers").
WITNESSETH:
WHEREAS, the Employers sponsor the Plan and, under the provisions of the
Plan, reserve for themselves the right to amend the Plan; and
WHEREAS, it is the Employers' desire to amend the Plan.
NOW, THEREFORE, effective March 15, 1995, except as provided herein, the
Plan is hereby amended as follows:
FIRST: Article II, "Top Heavy and Administration," Section 2.3(b) is hereby
deleted in its entirety and the following Section 2.3(b) is substituted in its
place and stead:
(b) The Employer shall establish a "funding policy and
method," i.e., it shall determine whether the Plan has a short
run need for liquidity (e.g., to pay benefits) or whether
liquidity is a long run goal and investment growth (and stability
of same) is a more current need, or shall appoint a qualified
person to do so. Such "funding policy and method" shall be
consistent with the objectives of this Plan and with the
requirements of Title I of the Act. The Employer shall also
provide investment directions ("Investment Directions"), insofar
as such Investment Directions are not contrary to the Act, to the
Trustee of any trust holding Assets of the Plan if such trust
requires Investment Directions for other than Directed Investment
Accounts. The Employer or its delegate shall communicate such
needs, goals and, if applicable, Investment Directions to the
Trustee, who shall coordinate such Plan needs with its investment
policy.
SECOND: Upon the approval of a final accounting to be rendered by the
Trustees under the Plan, Article VII, "Trustee," Sections 7.1, 7.2, 7.3, 7.5,
7.6, 7.7, 7.8 and 7.9 are deleted in their entirety;
29
THIRD: Article VII, "Trustee," Section 7.4(a) is hereby deleted in its
entirety and the following Section 7.4(a) is substituted in its place and stead:
(a) The Administrator may, in the Administrator's discretion, direct
the Trustee of any trust holding Assets of the Plan, to make loans to
Participants and Beneficiaries under the following circumstances: (1) loans
shall be made available to all Participants from their Participants' Elective
Accounts and to their Beneficiaries on a reasonably equivalent basis; (2) loans
shall not be made available to Highly Compensated Employees in an amount
greater than the amount made available to other Participants from their
Participants' Elective Accounts and to their Beneficiaries; (3) loans shall
bear a reasonable rate of interest; (4) loans shall be adequately secured; and
(5) shall provide for repayment over a reasonable period of time.
FOURTH: Article IX, "Miscellaneous," Section 9.12 is hereby deleted in its
entirety and the following Section 9.12 is substituted in its place and stead:
9.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY.
The "named Fiduciaries" of this Plan are (1) the Employer (2) the
Administrator, and (3) the Trustee. The named Fiduciaries shall have only
those specific powers, duties, responsibilities, and obligations as are
specifically given them under the Plan. In general, the Employer shall have
the sole responsibility for making the contributions provided for under
Section 4.1; and shall have the sole authority to appoint and remove the
Trustee of any trust and the Administrator; to formulate the Plan's
"funding policy and method"; to provide Investment Directions to the
Trustee of any trust if Investment Directions are required under such
trust, insofar as such Investment Directions are not contrary to the Act;
and to amend or terminate, in whole or in part, the Plan. The Administrator
shall have the sole responsibility for the administration of the Plan,
which responsibility is specifically described in the Plan. The Trustee of
each trust holding assets of the Plan shall have the sole responsibility of
management of the assets held under such Trust, subject to the direction of
the Employer, if applicable, as to the assets not held in Directed
Investment Accounts and subject to the direction of the Participants as to
those assets which are held in Directed Investment Accounts, except those
assets, the management of which are assigned to an Investment Manager, all
as specifically provided in the Plan. Each named Fiduciary warrants that
any directions given, information furnished, or action taken by it shall be
in accordance with the provisions of the Plan, authorizing or providing for
such direction, information or action. Furthermore, each named Fiduciary
may rely upon any such direction, information or action of another named
Fiduciary as being proper under the Plan, and is not required under the
Plan to inquire into the propriety of any such direction, information or
action. It is intended under the Plan that each named Fiduciary shall be
responsible for the proper exercise of its own powers, duties,
responsibilities and obligations under the Plan. No named Fiduciary shall
guarantee the Trust Fund in any manner against investment loss or
depreciation in asset value. Any person or group may serve in more than one
Fiduciary capacity. In the furtherance of their responsibilities hereunder,
the "named Fiduciaries" shall be empowered to interpret the Plan and Trust
and to resolve
30
ambiguities, inconsistencies and omissions, which findings shall be
binding, final and conclusive.
IN WITNESS WHEREOF, the Employers have caused this amendment to be executed
as of the date first written above.
TALON INC.
By: ___________________________
Its:___________________________
G & L INDUSTRIES, INC.
By: __________________________
Its:__________________________
ALLEN-STEVENS CORP.
By: __________________________
Its:__________________________
HAWTHORNE METAL PRODUCTS COMPANY
By: ___________________________
Its:___________________________
TALON DEVELOPMENT GROUP, INC.
By: ___________________________
Its:___________________________
PRES-TOCK, INC.
By: ___________________________
Its:___________________________
31
REFLECTOLITE PRODUCTS CO., INC.
By: __________________________
Its:__________________________
NORTH AMERICAN DIE CASTING CORP.
By: ___________________________
Its:___________________________
NORTH AMERICAN MANUFACTURING CORP.
By: ___________________________
Its:___________________________
TALON AUTOMOTIVE GROUP L.L.C.
By: ___________________________
Its:___________________________
32
SIXTH AMENDMENT
TO
THE TALON INC.
401(k) PLAN AND TRUST
This Sixth Amendment is made as of the 3rd day of April, 1995, by G & L
Industries, Inc. Allen-Stevens Corp., Talon LLC, Talon Development Group, Inc.,
Hawthorne Metal Products Company, Pres-Tock, Inc., Reflectolite Products Co.,
Inc., North American Die Casting Corp., North American Manufacturing Corp. and
Talon Automotive Group L.L.C. (the "Employers").
WITNESSETH:
WHEREAS, the Employers sponsor the Talon Inc. 401(k) Plan and Trust (the
"Plan") and, under the provisions of the Plan, reserve for themselves the right
to amend the Plan; and
WHEREAS, it is the Employers' desire to amend the Plan.
NOW, THEREFORE, effective April 3, 1995, except as provided herein, the
Plan is hereby amended as follows:
1. ARTICLE II, "DEFINITIONS," SECTION 1.8, "COMPENSATION" SHALL BE AMENDED
BY THE ADDITION OF THE FOLLOWING SENTENCE:
Compensation for any Self-Employed Individual shall be equal to his Earned
Income.
2. ARTICLE II, "DEFINITIONS," SHALL BE AMENDED BY THE ADDITION OF THE
FOLLOWING SECTIONS:
Section 1.64 "Earned Income" means with respect to a
Self-Employed Individual, the net earnings from self-employment in the trade or
business with respect to which the Plan is adopted, for which the personal
services of the individual are a material income-producing factor. Net earnings
will be determined without regard to items not included in gross income and the
deductions allocable to such items. Net earnings are reduced by contributions by
the Self-Employed Individual to a qualified Plan to the extent deductible under
Code Section 404. Additionally, net earnings shall be determined with regard to
the deduction allowed to the Self-Employed Individual by Code Section 164(f).
Section 1.65 "Owner Employee" means a partner or member who
owns more than 10% of either the capital interest or the profits interest in the
Employer and who receives income for personal services from the Employer.
Section 1.66 "Self-Employed Individual" means an individual
who has Earned Income for the taxable year from the trade or business for which
the Plan is adopted, and also, an
33
individual who would have had Earned Income but for the fact that the trade or
business had no net profits for the taxable year. A Self-Employed Individual
shall be treated as an Employee.
3. ARTICLE VII, "TRUSTEE," SECTION 7.4(b) SHALL BE DELETED AND THE
FOLLOWING SECTION 7.4(b) SHALL BE SUBSTITUTED IN ITS PLACE:
(b) Loans shall not be made to any Shareholder-Employee or
Owner-Employee unless an exemption for such loan is obtained pursuant to Act
Section 408 and further provided that such loan would not be subject to tax
pursuant to Code Section 4975.
IN WITNESS WHEREOF, the Employers have caused this amendment to be executed
as of the date first written above.
Talon LLC
By: ___________________________
Its:___________________________
G & L INDUSTRIES, INC.
By: __________________________
Its:__________________________
ALLEN-STEVENS CORP.
By: __________________________
Its:__________________________
HAWTHORNE METAL PRODUCTS COMPANY
By: ___________________________
Its:___________________________
34
TALON DEVELOPMENT GROUP, INC.
By: ___________________________
Its:___________________________
PRES-TOCK, INC.
By: ___________________________
Its:___________________________
REFLECTOLITE PRODUCTS CO., INC.
By: __________________________
Its:__________________________
NORTH AMERICAN DIE CASTING CORP.
By: ___________________________
Its:___________________________
NORTH AMERICAN MANUFACTURING CORP.
By: ___________________________
Its:___________________________
TALON AUTOMOTIVE GROUP L.L.C.
By: ___________________________
Its:___________________________
35
SEVENTH AMENDMENT
TO
THE TALON INC.
401(k) PLAN AND TRUST
This Seventh Amendment is made as of the 11th day of June, 1996, by G &
L Industries, Inc., Allen-Stevens Corp., Talon LLC, Talon Development Group,
Inc., Hawthorne Metal Products Company, Pres-Tock, Inc., Reflectolite Products
Co., Inc., North American Die Casting Corp., North American Manufacturing Corp.
and Talon Automotive Group L.L.C. (the "Employers").
WITNESSETH:
WHEREAS, the Employers sponsor the Talon Inc. 401(k) Plan and Trust
(the "Plan") and, under the provisions of the Plan, reserve for themselves the
right to amend the Plan; and
WHEREAS, it is the Employers' desire to amend the Plan.
NOW, THEREFORE, effective June 11, 1996, except as provided herein, the
Plan is hereby amended as follows:
1. ARTICLE I, "DEFINITIONS," SECTION 1.44 SHALL BE DELETED IN
ITS ENTIRETY AND THE FOLLOWING SECTION 1.44 SHALL BE SUBSTITUTED IN ITS PLACE:
1.44 "Plan" means this instrument and any amendments thereto; the name
of the Plan shall be the Talon LLC 401(k) Plan and Trust.
2. ARTICLE III, "ELIGIBILITY", SECTION 3.1 IS DELETED IN ITS
ENTIRETY AND THE FOLLOWING SECTION 3.1 SHALL BE SUBSTITUTED IN ITS PLACE:
3.1 CONDITIONS OF ELIGIBILITY
(a) Prior to January 1, 1990, any Eligible Employee who has
attained age twenty and has completed at least one (1) Hour of Service in each
of six (6) calendar months for the Employer or for any member of a group defined
in Internal Revenue Code Sections 414(b), (c) or (m) of which the Employer is a
part, shall be eligible to participate hereunder; and
(b) On and after January 1, 1990, any Eligible Employee who
has completed one Year of Service and has attained age twenty and one-half shall
be eligible to participate hereunder as of the date he has satisfied such
requirements. However, any Employee who was a Participant in the Plan prior to
August 1, 1989 shall continue to participate in the Plan; and
(c) Effective October 1, 1992, any Eligible Employee who
either, (i) makes a rollover contribution pursuant to Section 4.9 or (ii)
presents to the Administrator satisfactory evidence that he or
36
she will make a rollover contribution with funds from a distribution which will
be made to the Employee in the future, before becoming a Participant pursuant to
subsection (b) of this Section 3.1, shall become a Participant, as provided in
subsection (c) of Section 3.3. Effective June 11, 1996, this provision shall be
of no further effect with respect to Eligible Employees hired on or after such
date.
(d) Effective June 11, 1996, any Eligible Employee hired on or
after June 11, 1996 who makes a rollover contribution before becoming a
Participant pursuant to subsection (b) of this Section 3.1, shall become a
Participant, as provided in subsection (d) of Section 3.3.
(e) The Employer shall give each prospective Eligible Employee
written notice of his eligibility to participate in the Plan prior to the close
of the Plan Year in which he first becomes an Eligible Employee.
3. ARTICLE III, "ELIGIBILITY," SECTION 3.3 SHALL BE DELETED IN
ITS ENTIRETY AND THE FOLLOWING SECTION 3.3 SHALL BE SUBSTITUTED IN ITS PLACE:
3.3 EFFECTIVE DATE OF PARTICIPATION
(a) Prior to January 1, 1990, an Eligible Employee shall
become a Participant effective as of the first day of the Plan Year following
his or her satisfaction of the eligibility requirements of Section 3.1(a),
provided he or she has not separated from service prior to that date; and
(b) On and after January 1, 1990, an employee who becomes an
Eligible Employee pursuant to Section 3.1(b) shall become a Participant
effective as of the last day of the calendar quarter coinciding with or next
following the date on which such Employee met the eligibility requirements of
Section 3.1(b), provided said Employee was still employed as of such date (or if
not employed on such date, as of the date of rehire if a 1-Year Break in Service
has not occurred); and
(c) Effective October 1, 1992, an employee who becomes an
Eligible Employee pursuant to Section 3.1(c) shall become a Participant on the
first day of the month coinciding with or next following the date on which such
Employee met the requirements of subsection (c) of Section 3.1. Effective June
11, 1996, this provision shall be of no further effect with respect to Eligible
Employees hired on or after such date.
(d) Effective June 11, 1996, an Eligible Employee shall become
a Participant on the first day of the month coinciding with or next following
the date on which such Employee met the requirements of subsection (d) of
Section 3.1, but only with respect to their rollover contribution.
(e) Notwithstanding the foregoing:
(1) a Participant in the Allen Stevens Corp. Profit
Sharing Retirement Benefit Plan on October 31, 1989
shall become a Participant in this Plan effective
November 1, 1989;
(2) An Employee of Allen-Stevens Corp. who on October
31, 1989: was not represented in collective
bargaining by a union, was at least age 21, and has
37
completed 1,000 Hours of Service during the
12-consecutive month period measured from his
employment commencement date or during the Plan Year
in which the first anniversary of his employment
commencement date fell or any subsequent Plan Year,
shall participate in the Plan effective November 1,
1989, provided he is employed by the Employer on that
date;
(3) A Participant in the Hawthorne Metal Products
Company Profit Sharing Plan on December 31, 1989
shall become a Participant in this Plan effective
January 1, 1990; and
(4) Any employee of Talon Inc. or Talon Development
Group, Inc. who was a Participant in the F & M
Distributors, Inc. 401(k) Investment Savings Plan on
September 30, 1992 shall become a participant in
this Plan as of October 1, 1992.
4. ARTICLE X, "PARTICIPATING EMPLOYERS," SECTION 10.11, "SUBSTITUTION
OF PLAN NAME," IS DELETED IN ITS ENTIRETY AND THE FOLLOWING SECTION 10.11 SHALL
BE SUBSTITUTED IN ITS PLACE:
10.11 SUBSTITUTION OF PLAN NAME
When referring to this Plan, Participating Employers may substitute the
name of the Participating Employer for the words, "Talon LLC."
IN WITNESS WHEREOF, the Employers have caused this amendment to be
executed as of the date first written above.
TALON LLC
By: ___________________________
Its:___________________________
G & L INDUSTRIES, INC.
By: __________________________
Its:__________________________
38
ALLEN-STEVENS CORP.
By: __________________________
Its:__________________________
HAWTHORNE METAL PRODUCTS COMPANY
By: ___________________________
Its:___________________________
TALON DEVELOPMENT GROUP, INC.
By: ___________________________
Its:___________________________
PRES-TOCK, INC.
By: ___________________________
Its:___________________________
REFLECTOLITE PRODUCTS CO., INC.
By: __________________________
Its:__________________________
NORTH AMERICAN DIE CASTING CORP.
By: ___________________________
Its:___________________________
39
NORTH AMERICAN MANUFACTURING CORP.
By: ___________________________
Its:___________________________
TALON AUTOMOTIVE GROUP L.L.C.
By: ___________________________
Its:___________________________
40
EIGHTH AMENDMENT
TO
THE TALON LLC
401(k) PLAN AND TRUST
This Eighth Amendment is made as of the 3rd day of July, 1996, by G & L
Industries, Inc., Allen-Stevens Corp., Talon LLC, Talon Development Group, Inc.,
Hawthorne Metal Products Company, Pres-Tock, Inc., Reflectolite Products Co.,
Inc., North American Die Casting Corp., North American Manufacturing Corp. and
Talon Automotive Group L.L.C. (the
"Employers").
WITNESSETH:
WHEREAS, the Employers sponsor the Talon LLC 401(k) Plan and Trust (the
"Plan") and, under the provisions of the Plan, reserve for themselves the right
to amend the Plan; and
WHEREAS, it is the Employers' desire to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended effective July 3, 1996 as
follows:
1. ARTICLE I, "DEFINITIONS," SECTION 1.29, "HOUR OF SERVICE," SHALL BE
AMENDED BY THE ADDITION OF THE FOLLOWING SENTENCE:
Hours of Service credited by ASC Incorporated to employees of
ASC Incorporated who were hired by G & L Industries, Inc. on July 3,
1996 shall be recognized for purposes of eligibility and vesting.
2. ARTICLE I, "DEFINITIONS," SECTION 1.51, "YEAR OF SERVICE," SHALL BE
AMENDED BY THE ADDITION OF THE FOLLOWING SENTENCE:
Years of Service credited by ASC Incorporated to employees of
ASC Incorporated who were hired by G & L Industries, Inc. on July 3,
1996 shall be recognized for purposes of eligibility and vesting.
IN WITNESS WHEREOF, the Employers have caused this amendment to be
executed as of the date first written above.
41
TALON LLC
By: ___________________________
Its:___________________________
G & L INDUSTRIES, INC.
By: __________________________
Its:__________________________
ALLEN-STEVENS CORP.
By: __________________________
Its:__________________________
HAWTHORNE METAL PRODUCTS COMPANY
By: ___________________________
Its:___________________________
TALON DEVELOPMENT GROUP, INC.
By: ___________________________
Its:___________________________
PRES-TOCK, INC.
By: ___________________________
Its:___________________________
REFLECTOLITE PRODUCTS CO., INC.
By: __________________________
42
Its:__________________________
NORTH AMERICAN DIE CASTING CORP.
By: ___________________________
Its:___________________________
NORTH AMERICAN MANUFACTURING CORP.
By: ___________________________
Its:___________________________
TALON AUTOMOTIVE GROUP L.L.C.
By: ___________________________
Its:___________________________
43
NINTH AMENDMENT
TO
THE TALON LLC
401(k) PLAN AND TRUST
This Ninth Amendment is made as of the 30th day of September, 1996, by
G & L Industries, Inc., Allen-Stevens Corp., Talon LLC, Talon Development Group,
Inc., Hawthorne Metal Products Company, Pres-Tock, Inc., Reflectolite Products
Co., Inc., North American Die Casting Corp., NADC Leasing, Inc. and Talon
Automotive Group L.L.C. (the "Employers").
WITNESSETH:
WHEREAS, the Employers sponsor the Talon LLC 401(k) Plan and Trust (the
"Plan") and, under the provisions of the Plan, reserve for themselves the right
to amend the Plan; and
WHEREAS, it is the Employers' desire to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended effective September 30, 1996
as follows:
1. ARTICLE I, "DEFINITIONS," SECTION 1.29, "HOUR OF SERVICE," SHALL BE
AMENDED BY THE ADDITION OF THE FOLLOWING SENTENCE:
Hours of Service credited by J & R Manufacturing, Inc. to
employees of J & R Manufacturing, Inc. who were hired by JR Acquisition
Inc. (now known as J & R Manufacturing Inc.) on September 30, 1996
shall be recognized for purposes of eligibility and vesting.
2. ARTICLE I, "DEFINITIONS," SECTION 1.51, "YEAR OF SERVICE," SHALL BE
AMENDED BY THE ADDITION OF THE FOLLOWING SENTENCE:
Years of Service credited by J & R Manufacturing, Inc. to
employees of J & R Manufacturing, Inc. who were hired by JR Acquisition
Inc. (now known as J & R Manufacturing Inc.) on September 30, 1996
shall be recognized for purposes of eligibility and vesting.
IN WITNESS WHEREOF, the Employers have caused this amendment to be
executed as of the date first written above.
44
TALON LLC
By: ___________________________
Its:___________________________
G & L INDUSTRIES, INC.
By: __________________________
Its:__________________________
ALLEN-STEVENS CORP.
By: __________________________
Its:__________________________
HAWTHORNE METAL PRODUCTS COMPANY
By: ___________________________
Its:___________________________
TALON DEVELOPMENT GROUP, INC.
By: ___________________________
Its:___________________________
PRES-TOCK, INC.
By: ___________________________
Its:___________________________
45
REFLECTOLITE PRODUCTS CO., INC.
By: __________________________
Its:__________________________
NORTH AMERICAN DIE CASTING CORP.
By: ___________________________
Its:___________________________
NADC LEASING INC.
By: ___________________________
Its:___________________________
TALON AUTOMOTIVE GROUP L.L.C.
By: ___________________________
Its:___________________________