1
EXHIBIT 10(e)(i)
UST CORP.
EMPLOYEE SAVINGS PLAN
(AMENDED AND RESTATED EFFECTIVE
AS OF JANUARY 1, 1994)
2
88951\ESPC2.PD
3
UST CORP.
EMPLOYEE SAVINGS PLAN
TABLE OF CONTENTS
PAGE
PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (i)
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.1 Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Year of Service . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3 One-Year Break in Service . . . . . . . . . . . . . . . . . . . 13
2.4 Excluded Years of Service . . . . . . . . . . . . . . . . . . . 14
2.5 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 3 PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.1 Eligibility to Participate . . . . . . . . . . . . . . . . . . . 15
3.2 Elections Required . . . . . . . . . . . . . . . . . . . . . . . 15
3.3 Reemployed Employee . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 4 PARTICIPANT CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . 17
4.1 Participant Contributions . . . . . . . . . . . . . . . . . . . 17
4.2 Increase or Decrease in Rate of Contributions . . . . . . . . . 17
4.3 Suspension and Resumption of Contributions . . . . . . . . . . . 18
4.4 Rollover Contributions . . . . . . . . . . . . . . . . . . . . . 18
4.5 Maximum Amount of Salary Deferral and Cash
Option Deferral . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 5 EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.1 Employer Profit Sharing Contribution . . . . . . . . . . . . . . 22
5.2 Employer Matching Contributions . . . . . . . . . . . . . . . . 25
5.3 Deductibility of Employer Contributions . . . . . . . . . . . . 25
5.4 Form and Timing of Employer Contributions . . . . . . . . . . . 25
4
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 6 INVESTMENT PROVISIONS AND PARTICIPANT ACCOUNTS . . . . . . . . . . . . . 26
6.1 Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . 26
6.2 Investment Election . . . . . . . . . . . . . . . . . . . . . . 27
6.3 Change in Investment Election . . . . . . . . . . . . . . . . . 27
6.4 Responsibility of Participant in Selecting
Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . 28
6.5 Establishment of Participant Accounts . . . . . . . . . . . . . 28
6.6 Fair Market Value of Trust Assets . . . . . . . . . . . . . . . 29
6.7 Allocation of Trust Assets . . . . . . . . . . . . . . . . . . . 29
6.8 Correction of Error . . . . . . . . . . . . . . . . . . . . . . 29
6.9 Allocation Shall Not Vest Title . . . . . . . . . . . . . . . . 30
ARTICLE 7 BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.1 Nature of Benefits . . . . . . . . . . . . . . . . . . . . . . 31
7.2 Medium and Method of Distribution . . . . . . . . . . . . . . . 31
7.3 Timing of Distribution . . . . . . . . . . . . . . . . . . . . 31
7.4 Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.5 Forfeitures . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.6 Permanent and Total Disability . . . . . . . . . . . . . . . . 35
7.7 Distribution on Death . . . . . . . . . . . . . . . . . . . . . 35
7.8 Distribution to Alternate Payees . . . . . . . . . . . . . . . 37
7.9 Investment of Deferred Distributions . . . . . . . . . . . . . 37
7.10 Designation of Beneficiary . . . . . . . . . . . . . . . . . . 37
7.11 Advice of Benefits . . . . . . . . . . . . . . . . . . . . . . 38
7.12 Incapacity . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.13 Proof of Claim . . . . . . . . . . . . . . . . . . . . . . . . 38
7.14 Mandatory Payment of Distributions to
Certain Participants at Age 70 1/2 . . . . . . . . . . . . . . 39
7.15 Direct Rollover Distributions . . . . . . . . . . . . . . . . . 39
ARTICLE 8 LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1 Loan Availability . . . . . . . . . . . . . . . . . . . . . . . 41
8.2 Loan Conditions . . . . . . . . . . . . . . . . . . . . . . . . 42
8.3 Loan Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.4 Loans to Parties-In-Interest . . . . . . . . . . . . . . . . . 44
8.5 In Service Withdrawals After Age 59 1/2 . . . . . . . . . . . . 44
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 9 THE BENEFITS COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.1 Establishment and Composition . . . . . . . . . . . . . . . . . 46
9.2 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.3 By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.4 Powers and Duties . . . . . . . . . . . . . . . . . . . . . . . 47
9.5 Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.6 Instructions . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.7 Authority to Sign . . . . . . . . . . . . . . . . . . . . . . . 48
9.8 Administration . . . . . . . . . . . . . . . . . . . . . . . . 48
9.9 Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . 48
9.10 Prudence . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.11 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.12 Claims Procedure . . . . . . . . . . . . . . . . . . . . . . . 49
9.13 Compliance in General . . . . . . . . . . . . . . . . . . . . . 49
9.14 Investment Policy . . . . . . . . . . . . . . . . . . . . . . . 49
9.15 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 10 TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.1 Investment Responsibility . . . . . . . . . . . . . . . . . . . 51
10.2 Investment Direction by the Benefits Committee . . . . . . . . 52
10.3 Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.4 Disbursements and Distributions . . . . . . . . . . . . . . . . 52
10.5 Allocation of Responsibilities Among Trustees
Regarding Plan Assets . . . . . . . . . . . . . . . . . . . . . 52
10.6 Fiduciary Status . . . . . . . . . . . . . . . . . . . . . . . 53
10.7 Administrative Expenses; Advisors . . . . . . . . . . . . . . 53
10.8 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . 53
10.9 Trustee's Miscellaneous Powers . . . . . . . . . . . . . . . . 53
10.10 Trustee's Accounts . . . . . . . . . . . . . . . . . . . . . . 54
10.11 Indemnification of Trustee . . . . . . . . . . . . . . . . . . 55
ARTICLE 11 TOP HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.1 Top Heavy Definitions . . . . . . . . . . . . . . . . . . . . . 56
11.2 Determination of Top Heavy Status . . . . . . . . . . . . . . . 58
11.3 Procedures in the Event of Top Heavy Status . . . . . . . . . . 59
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 12 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . 62
12.1 Spendthrift Provisions . . . . . . . . . . . . . . 62
12.2 Bonding . . . . . . . . . . . . . . . . . . . . . . 62
12.3 No Contractual Obligations . . . . . . . . . . . . 63
12.4 Limitations on Contributions . . . . . . . . . . . . 63
12.5 Nondiscrimination Limitations on Participant
Contributions and Employer Matching Contributions . . 67
ARTICLE 13 AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . 75
13.1 Amendment . . . . . . . . . . . . . . . . . . . . . 75
13.2 Merger, Consolidation or Transfer of Assets . . . . 75
13.3 Termination . . . . . . . . . . . . . . . . . . . . 75
13.4 Consequences of Termination . . . . . . . . . . . . 76
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PREAMBLE
WHEREAS, UST Corp. (the "Sponsoring Employer") established the UST Corp.
Profit Sharing Plan & Trust (the "Plan") effective as of January 26, 1967,
amended from time to time thereafter and restated effective as of January 1,
1984 to comply with voluntary and statutory changes; and
WHEREAS, the principal purposes of the Plan are to (a) set aside a
portion of the profits of the Sponsoring Employer and other participating
Employers from time to time for the distribution to, and the benefit of,
Eligible Employees, and (b) to facilitate systematic savings by Eligible
Employees with funds for their retirement or possible earlier needs; and,
therefore, this Plan was established as a profit sharing plan pursuant to
Section 401(a) of the Internal Revenue Code with a cash or deferred arrangement
pursuant to Internal Revenue Code Section 401(k); and
WHEREAS, the Sponsoring Employer also established this Plan for the
exclusive benefit of its, and for the participating Employers', Eligible
Employees and their Beneficiaries and, except as permitted by law, neither the
principal nor the income of the Plan are to be paid to or reinvested in the
Sponsoring Employer or any other Employer or be used for any purpose other than
the exclusive benefit of their Eligible Employees and their Beneficiaries by
providing benefits as set forth herein, and by defraying reasonable expenses of
administering the Plan; and
WHEREAS, the Sponsoring Employer desires to amend the Plan, effective
January 1, 1994, to expand the cash or deferred features under the Plan; and
WHEREAS, the Sponsoring Employer desires to change the name of the Plan,
effective January 1, 1994; and
WHEREAS, it is necessary to amend the Plan to comply with the Tax Reform
Act of 1986 and other applicable laws;
NOW, THEREFORE, in consideration of the foregoing, the Plan is hereby
renamed the UST Corp. Employee Savings Plan and is hereby amended and restated
as hereinafter set forth, effective January 1, 1994 unless specifically stated
otherwise. It is the intention of the Sponsoring Employer that the Plan as
herein amended and restated shall continue to be recognized as a qualified
profit sharing plan and trust under Sections 401(a) and 501(a) of the Internal
Revenue Code. It is further intended that the amended cash or deferral
arrangement
(i)
8
forming part of the Plan shall continue to qualify under Section 401(k) of the
Internal Revenue Code. The provisions of the Plan as set forth in this
document shall apply only to an Eligible Employee who terminates employment
with the Sponsoring Employer or a participating Employer on or after the
effective date of a provision as set forth herein. The rights and benefits, if
any, of an Employee who terminated employment prior to the effective date of a
provision as set forth herein shall be determined in accordance with the
provisions of the Plan as in effect on the date his employment terminated.
(ii)
9
ARTICLE 1
DEFINITIONS
1.1 "AFFILIATED EMPLOYER" means any of the following:
(a) Any corporation which is a member of a controlled group of
corporations which includes an Employer, determined under the
provisions of Section 414(b) of the Code;
(b) Any trade or business (whether or not incorporated) which is under
common control (as defined in Section 414(c) of the Code) with an
Employer;
(c) Any organization (whether or not incorporated) which is a member
of an affiliated service group (as defined in Section 414(m) of
the Code) which includes an Employer; and
(d) Any other entity required to be aggregated with an Employer
pursuant to regulations under Section 414(o) of the Code.
A corporation, trade or business, or member of an affiliated service
group shall be treated as an Affiliated Employer only while it is a
member of the controlled group.
1.2 "ADVANCE CONTRIBUTION ACCOUNT" means the account which may be
established under the Plan in accordance with Section 5.1(g).
1.3 "ALTERNATE PAYEE" means any Spouse, child, or other dependent of a
Participant recognized by a Qualified Domestic Relations Order as having
a right to receive all, or a portion of, the Participant's
nonforfeitable benefits under the Plan.
1.4 "BEFORE-TAX CONTRIBUTION" means a contribution to the Trust Fund which
is made on behalf of a Participant pursuant to a Salary Deferral
Agreement and which is not included in the Participant's gross income
for Federal income tax purposes for the year in which such contribution
was made.
1.5 "BENEFICIARY" means any one or more members of the Participant's family
or any other person or persons, executor, or administrator, or any
trust, foundation, or other entity
(1)
10
designated by a Participant or by the terms of the Plan as provided in
Section 7.10, who is or who may become entitled to receive benefits from
the Plan. Any person who is an Alternate Payee shall be considered a
Beneficiary for purposes of the Plan.
1.6 "BENEFIT COMMENCEMENT DATE" means the first Valuation Date following the
date on which all events have occurred which entitles the Participant,
or Beneficiary, to a Plan distribution in accordance with the applicable
provisions of the Plan.
1.7 "BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of UST
Corp.
1.8 "CASH OPTION" means a Participant's annual option to receive the Cash
Option Share of the Employer Profit Sharing Contribution for a Plan Year
as an immediate cash payment, instead of deferring payment thereof, as
further described in Section 5.1(b).
1.9 "CASH OPTION DEFERRAL" means such amount of the Cash Option Share of the
Employer Profit Sharing Contribution in any Plan Year for which a
Participant has not elected to receive as an immediate cash payment.
1.10 "CHANGE DATE" means the last day of each March, June, September, and
December.
1.11 "CODE" or "INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time. Reference to a specific provision
of the Code shall include such provision, any valid regulation or ruling
promulgated thereunder, and any comparable provision of future law that
amends, supplements, or supersedes such provision.
1.12 "COMMITTEE" or "BENEFITS COMMITTEE" means the committee appointed by the
Board as set forth in Article 9.
1.13 "COMPENSATION" means, in the case of each Employee, all earned income
paid for services rendered by an Employee for an Employer as reported on
Federal Income Tax Form W-2, but excluding bonuses, incentive payments,
overtime pay, director's fees, retainers and travel allowances and any
income imputed as a result of group life insurance, any Employer
Contribution under this Plan or any other qualified plan of an Employer,
vacation pay, moving expenses, tuition reimbursement, and any other
forms of extraordinary earnings or the value thereof.
In the event an Employee has entered into a salary deferral agreement
under Section 401(k) of the Code or a salary reduction agreement
pursuant to a cafeteria plan established
(2)
11
under Section 125 of the Code, Compensation shall be determined as if
such agreements did not exist.
In no event shall a Participant's Compensation taken into account under
the Plan for any Plan Year commencing on or after January 1, 1989 exceed
$200,000 ($150,000 for Plan Years beginning on and after January 1,
1994) or such other amount as the Secretary of the Treasury may
determine for such Plan Year under Section 401(a)(17) of the Code. In
determining the Compensation of a Participant for purposes of this
limitation, the rules of Section 414(q)(6) of the Code shall apply,
except that in applying such rules, the term family shall include only
the Spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of such year.
1.14 "COMPENSATION DEFERRAL LIMIT" for any Plan Year means the maximum
percentage (determined in accordance with the provisions of Section
12.5) of an Employee's Compensation which may be contributed to the Plan
pursuant to a Salary Deferral Agreement and Cash Option Deferral. The
Benefits Committee shall establish the Compensation Deferral Limit for
each Plan Year for the purpose of meeting the nondiscrimination tests of
Sections 401(k) and 401(m) of the Code, and shall apply the limit to
such Employees as is necessary to assure compliance with such tests.
1.15 "CONTRIBUTION PERCENTAGE LIMIT" means the maximum percentage (determined
in accordance with the provisions of Section 12.5) of an Employee's
Compenation which may be contributed to the Plan as Employer Matching
Contributions under Section 401(m) of the Code. The Benefits Committee
shall establish the Contribution Percentage Limit for each Plan Year for
the purpose of meeting the nondiscrimination tests of Section 401(m) of
the Code, and shall apply the limit to such Employees as is necessary to
assure compliance with such tests.
1.16 "DETERMINATION YEAR" means the Plan Year that is being tested for
purposes of determining if an Employee is a Highly Compensated Employee.
1.17 "DISABILITY" means Permanent and Total Disability, as further described
in Section 7.6.
1.18 "DISABILITY RETIREMENT DATE" means the date on which a Participant's
employment terminates due to Disability.
1.19 "EFFECTIVE DATE" means January 1, 1994 for this amended and restated
Plan. The original Effective Date of the Plan was January 26, 1967.
(3)
12
1.20 "ELIGIBLE EMPLOYEE" means any person who is an Employee of an Employer,
excluding, however:
(a) Any Employee who is a member of a unit of employees covered by a
collective bargaining agreement to which an Employer is a party
and which does not specifically provide for the coverage of such
employees under the Plan;
(b) Any Employee who is a nonresident alien receiving no earned income
from sources within the United States; or
(c) Any Employee who is a leased employee (within the meaning of
Section 414(n)(2) of the Code).
1.21 "EMPLOYEE" means any person currently employed by an Employer or
Affiliated Employer. The term Employee also includes any leased
employees of an Employer within the meaning of Section 414(n)(2) of the
Code. If, however, such leased employees constitute twenty percent or
less of the Employer's nonhighly compensated work force (within the
meaning of Section 414(n)(5)(C)(ii) of the Code), the term Employee
shall not include those leased employees covered by a plan described in
Section 414(n)(5) of the Code.
1.22 "EMPLOYER" means any of the following corporations:
(a) UST Corp.;
(b) United States Trust Company;
(c) USTrust/Norfolk;
(d) USTrust;
(e) UST Data Services Corp.;
(f) UST Bank/Connecticut;
(g) UST Capital Corp.;
(h) UST Leasing Corporation;
(i) UST Merchant Bancorp, Inc.;
(j) Property Research Group, Inc.; and
(k) each parent, subsidiary, affiliate, successor or other corporation
which has, by invitation by the Board and by action of its own
board, elected to join the Plan.
The term "EMPLOYER" as herein defined shall mean UST Corp., individually
or in combination with any or all such affiliates as the context may
require.
(4)
13
1.23 "EMPLOYER CONTRIBUTIONS" means the total contribution made by the
Employer on behalf of a Participant for a Plan Year, comprising the
following contributions:
(a) "EMPLOYER PROFIT SHARING CONTRIBUTION" - The portion of Employer
Contributions consisting of profit sharing contributions made in
accordance with Section 5.1.
(b) "EMPLOYER MATCHING CONTRIBUTION" - The portion of Employer
Contributions consisting of matching contributions made in
accordance with Section 5.2.
1.24 "EMPLOYMENT COMMENCEMENT DATE" means the date on which an Employee is
first credited with an Hour of Service for an Employer or Affiliated
Employer, excluding, however, hours of service credited for an
Affiliated Employer prior to the date such Employer became an Affiliated
Employer, unless such hours are recognized by the Board.
1.25 "ENTRY DATE" means the first January 1 or July 1 of a Plan Year as
determined under Section 3.1(b).
1.26 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to a specific provision of ERISA
shall include such provision, any valid regulation or ruling promulgated
thereunder, and any comparable provision of future law that amends,
supplements, or supersedes such provision.
1.27 "FORFEITURE ACCOUNT" means the Participant's Regular Profit Sharing
Account maintained separately on the books of the Plan by the Trustee
for each terminated Participant with a forfeitable balance.
1.28 "HIGHLY COMPENSATED EMPLOYEE" means, with respect to a Plan Year, any
Employee who performs services for an Employer or Affiliated Employer
during the Determination Year and who, during the Look-Back Year:
(a) Was a 5% owner (within the meaning of Section 416(i)(l)(B)(i) of
the Code) at any time during such year;
(b) Received compensation from an Employer or Affiliated Employer in
excess of $75,000 (as adjusted pursuant to Section 415(d) of the
Code);
(c) Received compensation from an Employer or Affiliated Employer in
excess of $50,000 (as adjusted pursuant to Section 415(d) of the
Code) and was among the top
(5)
14
20% of Employees when ranked on the basis of compensation paid
during the Look-Back Year, excluding however, Employees who:
(i) are under age 21;
(ii) ordinarily work less than six months per year;
(iii) ordinarily work less than 17 1/2 hours per week;
(iv) are included in a unit of Employees covered by a
collective bargaining agreement if 90% or more of the
Employer's Employees are covered by collective bargaining
agreements and the Plan covers only those Employees who
are not covered by such agreements; or
(d) Was an officer of an Employer or Affiliated Employer and received
compensation during the Look-Back Year of more than 50% of the
dollar limitation in effect under Section 415(b)(1)(A) of the
Code. No more than 50 Employees (or, if lesser, the greater of 3
Employees or 10% of the Employees) shall be treated as officers.
If no officer has satisfied this requirement during the Look-Back
Year, the highest paid officer for that year shall be treated as a
Highly Compensated Employee.
Any Employee who during the Determination Year is either a 5% owner at
any time during such year, or who (i) satisfies the requirements in
paragraphs (b), (c), or (d) above, or if no officer satisfies the
requirements of paragraph (d) for that year, the highest paid officer
for that year, and (ii) is among the top 100 Employees ranked by
compensation for the Determination Year shall be treated as a Highly
Compensated Employee.
The term Highly Compensated Employee shall also include any former
Highly Compensated Employee who terminated employment with an Employer
or Affiliated Employer prior to the Determination Year, performs no
services for an Employer or Affiliated Employer during the Determination
Year, and was a Highly Compensated Employee in either his year of
termination of employment or in any Determination Year ending on or
after his attainment of age 55.
If an Employee is, during a Determination Year or Look-Back Year, a
member of the "family" (within the meaning of Section 414(q)(6)(B) of
the Code) of a 5% owner or of one of the ten most Highly Compensated
Employees when ranked on the basis of compensation paid during such
year, then such individual shall not be treated as a separate
(6)
15
Employee and any compensation received by such individual and any
contribution or benefit of such individual shall be aggregated with the
compensation and contribution or benefit of the 5% owner or Highly
Compensated Employee.
For purposes of determining an Employee's compensation under this
Section, "COMPENSATION" shall mean the Employee's total compensation
reportable on Form W-2, plus amounts not otherwise recognized as
compensation because of Sections 125, 402(a)(8) and 402(h)(1)(B) of the
Code.
1.29 "HOUR OF SERVICE" means those hours set forth below:
(a) Employees will receive credit for an Hour of Service for each hour
they are paid, or entitled to payment, for the performance of
duties for an Employer or Affiliated Employer during the Plan
Year.
(b) Except to the extent limited by paragraph (d) below, Employees
will receive credit for an Hour of Service for each hour for which
they are directly or indirectly paid, or entitled to payment, on
account of a period of time during which no duties are performed
for an Employer or Affiliated Employer (irrespective of whether
their employment relationship has terminated) due to and in
accordance with procedures regarding vacation, holiday, illness,
incapacity (including Disability) layoff, jury duty, military
duty, Maternity/Paternity Leave, or Leave of Absence.
(c) Employees will also receive credit for an Hour of Service for each
hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by an Employer or Affiliated Employer,
but the same Hours of Service will not be credited both under
paragraph (a) or paragraph (b), as the case may be, and under this
paragraph (c). Hours credited under this paragraph (c) shall be
credited to the Plan Year in which the award or agreement
pertains, rather than to the Plan Year in which the award,
agreement or payment is made.
(d) Notwithstanding the provisions of paragraph (b) above,
(i) No more than 501 Hours of Service will be credited to an
Employee under paragraph (b) on account of any single
continuous period during which the Employee performs no
duties; except that if the Employee meets the "Disability"
requirements hereunder or is absent due to service in the
Armed Forces of the United States and returns with
reemployment rights under
(7)
16
applicable Federal law(s), such Employee shall continue
to earn Hours of Service solely for eligibility and
vesting purposes based on the number of hours he worked
on an annual basis prior to his Disability or military
service, whichever is applicable.
(ii) No Hours of Service will be credited to an Employee for a
period during which no duties are performed if payment to
the Employee was made or due under a plan maintained
solely for the purpose of complying with workers'
compensation, unemployment compensation or disability
insurance laws.
(iii) No Hours of Service will be credited for a payment which
solely reimburses an Employee for medical or medically
related expenses incurred by the Employee or his
dependents.
The determination of Hours of Service shall be in accordance with
the rules set forth in the United States Department of Labor's
Rules and Regulations for Minimum Standards for Employee Pension
Benefit Plans, Section 2530.200b-2(b) and (c) which are
incorporated herein by this reference.
1.30 "INVESTMENT MANAGER" means any person, firm, or corporation who:
(a) is a registered investment adviser under the Investment Advisers
Act of 1940, a bank, or an insurance company;
(b) has the power to manage, acquire, or dispose of Plan assets; and
(c) acknowledges in writing a fiduciary responsibility to the Plan.
1.31 "LEAVE OF ABSENCE" means a period during which an Employee is:
(a) temporarily absent due to sickness or disability, an authorized
vacation, or jury duty;
(b) on approved extended leave of absence for any reason as granted in
a non-discriminatory manner in writing by an Employer; provided
that the Employee returns to work promptly upon the expiration
thereof;
(8)
17
(c) temporarily laid off, provided however, that no additional Hours
of Service shall be credited to the Employee or Participant, after
12 consecutive calendar months of layoff;
(d) absent due to service in the Armed Forces of the United States,
provided, however, that the Employee shall have returned to
employment with the Employer within 90 days after the termination
of such service or within such longer period as his employment
rights are protected by law;
(e) absent due to a Maternity/Paternity Leave of Absence.
For purposes of the Plan a "MATERNITY/PATERNITY LEAVE OF ABSENCE",
means an absence for any period by reason of the Employee's
pregnancy, birth of the Employee's child, placement of a child
with the Employee in connection with the adoption of such child,
or any absence for the purpose of caring for such child for a
period immediately following such birth or placement.
1.32 "LOAN" means the amount provided as a Loan under the Plan to
Participants, pursuant to Article 8.
1.33 "LOAN FUND" means the fund to be invested in Loans to Participants.
1.34 "LOOK-BACK YEAR" means the period of twelve consecutive months
immediately preceding the Determination Year. In determining the
identity of a Highly Compensated Employee, however, the Committee may
elect that the Look-Back Year shall be the calendar year ending with or
within the Determination Year.
1.35 "NONHIGHLY COMPENSATED EMPLOYEE" means an Employee who is not a Highly
Compensated Employee.
1.36 "NORMAL RETIREMENT DATE" means a Participant's 65th birthday.
1.37 "PARTICIPANT" means an Employee participating in the Plan in accordance
with Article 3.
1.38 "PLAN" means the UST Corp. Employee Savings Plan (formerly the "UST
Corp. Profit Sharing Plan") as herein set forth, or as hereafter may be
amended from time to time. The Plan is also a declaration of trust by
the Trustee.
(9)
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1.39 "PLAN ADMINISTRATOR" means the Benefits Committee which shall be
responsible for disclosure and reporting as required under applicable
law. Compliance with the disclosure and reporting requirements of ERISA
shall be sufficient to discharge any duty to account which would
otherwise exist regarding the Plan.
1.40 "PLAN YEAR" means the twelve month period commencing on January 1st and
ending on December 31st of each calendar year.
1.41 "QUALIFIED DOMESTIC RELATIONS ORDER" means a domestic relations order
which meets the requirements of Section 414(p) of the Code, as
determined by the Benefits Committee.
1.42 "ROLLOVER CONTRIBUTION ACCOUNT" means a rollover of a distribution from
a qualified plan or conduit individual retirement account to this Plan,
provided the distribution is:
(a) either received from a qualified plan prior to January 1, 1993 as
a "qualified total distribution" (within the meaning of Section
402(a)(5)(E) of the Code prior to amendment by the Unemployment
Compensation Amendments of 1992), or is received from a qualified
plan on or after January 1, 1993 as an "eligible rollover
distribution" (within the meaning of Section 402(c)(4) of the
Code);
(b) eligible for a tax-free rollover to a qualified plan; and
(c) either rolled over within 60 days following the date the Eligible
Employee received the distribution, or paid to the Plan as a
"direct rollover" (within the meaning of Section 401(a)(31) of the
Code).
A Rollover Contribution may not include amounts attributable to
voluntary deductible employee contributions.
1.43 "SALARY DEFERRAL AGREEMENT" means an agreement provided by the Benefits
Committee in which an Eligible Employee agrees, on or after January 1,
1994, to reduce his Compensation paid after the execution of such
agreement and to have the amount of such reduction contributed by the
Employer to the Trust Fund on behalf of the Eligible Employee pursuant
to Section 401(k) of the Code. An Eligible Employee may execute a new
Salary Deferral Agreement from time to time pursuant to Article 4.
1.44 "SPONSORING EMPLOYER" means UST Corp. or its successor or successors.
(10)
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1.45 "SPOUSE" means the person, if any, to whom the Participant is lawfully
married at the date of his death, or at his Benefit Commencement Date,
whichever is earlier, provided, however, that a former spouse will be
treated as the Participant's Spouse to the extent provided under a
Qualified Domestic Relations Order.
1.46 "TOTAL ACCOUNT" - means the total amounts held under the Plan for a
Participant, consisting of the following accounts:
(a) "BASIC BEFORE-TAX CONTRIBUTION ACCOUNT" - The portion of the
Participant's Total Account consisting of Basic Before-Tax
Contributions made in accordance with Section 4.1(a), plus (or
minus) any investment earnings (or losses) on such contributions,
less any distributions from such Account.
(b) "SUPPLEMENTAL BEFORE-TAX CONTRIBUTION ACCOUNT" - The portion of
the Participant's Total Account consisting of Supplemental
Before-Tax Contributions made in accordance with Section 4.1(b),
plus (or minus) any investment earnings (or losses) on such
contributions, less any distributions from such Account.
(c) "CASH OPTION DEFERRED ACCOUNT" - The portion of the Participant's
Total Account consisting of Cash Option Deferrals made in
accordance with Section 5.1, plus (or minus) any investment
earnings (or losses) on such contributions, less any distributions
from such Account.
(d) "EMPLOYER MATCHING CONTRIBUTION ACCOUNT" - The portion of the
Participant's Total Account consisting of Employer Matching
Contributions made in accordance with Section 5.2, plus (or minus)
any investment earnings (or losses) on such contributions, less
any distributions from such Account.
(e) "REGULAR PROFIT SHARING ACCOUNT" - The portion of the
Participant's Total Account consisting of the Regular Profit
Sharing Contribution of the Employer made in accordance with
Section 5.1, plus (or minus) any investment earnings (or losses)
on such contributions, less any distributions from such Account.
(f) "ROLLOVER ACCOUNT" - The portion of the Participant's Total
Account consisting of any Rollover Contributions made on behalf of
the Participant in accordance with Section 4.4, plus (or minus)
any investment earnings (or losses) on such contributions, less
any distributions from such Account.
(11)
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1.47 "TRUST FUND" means the assets of the Trust Fund held by the Trustee
hereunder.
1.48 "TRUSTEE" means United States Trust Company, a banking corporation
organized under the laws of the Commonwealth of Massachusetts, in its
capacity as Trustee hereunder and any corporation or one or more
individuals who may from time to time be appointed as successor Trustee
or Trustees. A person so appointed shall become Trustee upon delivery
to the Benefits Committee of his or its acceptance. The duties,
responsibilities and other pertinent information concerning the Trustee
are set forth in Article 10.
1.49 "VALUATION" means the valuation of the assets of the Trust Fund and
adjustment of Participants' Accounts.
1.50 "VALUATION DATE" means the last day of each June and December prior to
January 1, 1994 and the last day of each March, June, September and
December thereafter and such other dates as the Trustee and/or the
Benefits Committee deem appropriate.
1.51 "YEAR OF SERVICE" means such year as specified in Article 2.
1.52 The masculine gender wherever appearing in the Plan shall be deemed to
include the feminine gender and the singular to include the plural,
unless the context clearly indicates the contrary.
(12)
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ARTICLE 2
SERVICE
2.1 SERVICE
"SERVICE" means active employment with the Employer as an Employee. For
purposes of determining Service, employment with any Affiliated Employer
as specified in Section 1.1 of this Plan and certain periods of absence
due to Disability or military leave as specified in Section 1.31(d) of
this Plan, shall be treated as employment with the Employer for vesting
purposes, but not for purposes of allocations hereunder, unless
otherwise provided herein. Service with a predecessor organization of
the Employer also shall be treated as Service with the Employer if the
Employer maintains the Plan of such predecessor organization. In
addition, the Board may recognize employment with an Affiliated Employer
for vesting purposes prior to the date such entity became affiliated
with the Employer.
2.2 YEAR OF SERVICE
The term "YEAR OF SERVICE" means a Plan Year during which an Employee
has completed at least 1,000 Hours of Service.
2.3 ONE-YEAR BREAK IN SERVICE
The term "ONE-YEAR BREAK IN SERVICE" means any Plan Year during which an
Employee fails to complete more than 500 Hours of Service.
Notwithstanding the foregoing, for purposes of determining whether a
One-Year Break in Service has occurred, Hours of Service shall be
credited for periods during which the Employee is on a
Maternity/Paternity Leave of Absence, as follows. Hours of Service
shall be credited for the Plan Year in which the absence from work
begins, only if credit in such year is necessary to prevent the Employee
from incurring a One-Year Break in Service, or, in any other case, in
the immediately following Plan Year. The Hours of Service credited for
a Maternity/Paternity Leave of Absence shall be those which would
normally have been credited but for such absence, or, in any case in
which the Benefits Committee is unable to determine such hours normally
credited, eight Hours of Service per day. The total Hours of Service
credited for a Maternity/Paternity Leave of Absence shall not exceed
501.
(13)
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2.4 EXCLUDED YEARS OF SERVICE
In determining the vested percentage of an Employee in his Regular
Profit Sharing Account at any point in time, all Years of Service shall
be taken into account, except as follows. Years of Service prior to a
One-Year Break in Service shall be disregarded if:
(a) The Participant had no vested interest in the Employer's Regular
Profit Sharing Contributions at the time the break occurred; and
(b) The number of consecutive One-Year Breaks in Service equals or
exceeds the greater of:
(i) Five; or
(ii) The Participant's Years of Service at the time the break
occurred.
Notwithstanding any of the above, Years of Service prior to a One-Year
Break in Service will not count for purposes of determining an
Employee's vesting percentage until the Employee has completed one Year
of Service following the Employee's reemployment date.
2.5 TRANSFERS
(a) If an Employee transfers from employment not covered by this Plan
(e.g., employment pursuant to a collective bargaining agreement)
and subsequently becomes an Eligible Employee hereunder, all of
his Service from his first date of employment with the Employer
shall be considered for purposes of calculating his Service for
vesting.
(b) If an Eligible Employee or Participant transfers to a noncovered
job classification, (e.g., employment covered by a collective
bargaining agreement), he shall cease to participate in the
allocation of contributions and forfeitures hereunder, but he
shall continue to participate in the Plan for purposes of
determining the vested interest in his Regular Profit Sharing
Account pursuant to Article 7.
(14)
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ARTICLE 3
PARTICIPATION
3.1 ELIGIBILITY TO PARTICIPATE
(a) Current Participants
--------------------
Each Eligible Employee of the Employer who was participating in
the Plan on December 31, 1993 shall continue to participate
hereunder, and shall be eligible to have a Basic Contribution
made on his Contribution pursuant to Section 5.2 provided he has
made the required elections pursuant to Section 3.2.
(b) Participation on or after January 1, 1994
-----------------------------------------
(i) Each Employee of the Employer shall automatically become a
Participant in the Plan on the date he becomes an Eligible
Employee.
(ii) Effective January 1, 1994, each Participant shall, on the
first Entry Date coincident with or next following the
date on which he has completed at least 6 months of
Service, be eligible to have a Basic Contribution made on
his behalf pursuant to Section 4.1 and receive an Employer
Matching Contribution pursuant to Section 5.2 provided he
has made the required elections pursuant to Section 3.2.
3.2 ELECTIONS REQUIRED
Each Eligible Employee must, upon satisfying the eligibility
requirements of Section 3.1(b)(ii), make elections in the manner
provided under the Plan and execute such forms as required by the
Benefits Committee. Any elections made pursuant to Section 4.1 shall
become effective beginning with the first paycheck received by the
Eligible Employee on or after the Entry Date which is 30 or more days
after the date the Eligible Employee files his executed forms with the
Benefits Committee. A Participant's elections made pursuant to Section
4.1 shall remain in effect (subject to the contribution limitations
under Sections 4.5, 12.4, and 12.5) while the Participant is an Eligible
Employee or until such time as he files a new election on the
appropriate form with the Benefits Committee.
An Eligible Employee who becomes a Participant shall be entitled to
share in the Regular Profit Sharing Contribution allocations provided
under Article 5 for a Plan Year,
(15)
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regardless of any elections required under this Section or any elections
made by the Eligible Employee pursuant to Section 4.1.
3.3 REEMPLOYED EMPLOYEE
In the case of an individual who ceases to be an Employee and is
subsequently rehired as an Employee, he shall resume participation in
the Plan on the date he becomes an Eligible Employee. Such Eligible
Employee may resume making contributions or having contributions made on
his behalf under the Plan as of the Entry Date following his date of
reemployment provided he has satisfied the eligibility requirement under
Section 3.1(b) and he has made the required elections pursuant to
Section 3.2
(16)
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ARTICLE 4
PARTICIPANT CONTRIBUTIONS
4.1 PARTICIPANT CONTRIBUTIONS
Effective January 1, 1994, each Eligible Employee may, after satisfying
the eligibility requirements of Section 3.1(b)(ii), elect to have a
contribution made on his behalf to the Trust Fund at the rate of 1% to
8% of Compensation. The rate of contribution will be in increments of
1%. Such election shall be in the form of a Salary Deferral Agreement
and shall be subject to the Compensation Deferral Limit, if any,
applicable to such Participant as established by the Committee from time
to time for purposes of meeting the nondiscrimination tests of Section
401(k) of the Code. Contributions made in accordance with this Section
4.1, shall also be subject to the maximum limits in effect under
Sections 4.5 and 12.4.
A Participant's contributions may consist of Basic Before-Tax
Contributions and Supplemental Before-Tax Contributions as described
below:
(a) BASIC BEFORE-TAX CONTRIBUTIONS - The first 4% of Compensation
for a payroll period which is contributed on the Participant's
behalf under a Salary Deferral Agreement shall be known as the
Participant's Basic Before-Tax Contributions and shall be
contributed to the Participant's Basic Before-Tax Contribution
Account.
(b) SUPPLEMENTAL BEFORE-TAX CONTRIBUTIONS - Contributions made on
the Participant's behalf under a Salary Deferral Agreement in
excess of 4% of Compensation for a payroll period shall be known
as the Participant's Supplemental Before-Tax Contributions and
shall be contributed to the Participant's Supplemental Before-Tax
Contribution Account.
Contributions made pursuant to this Section 4.1 shall be made by the
Employer directly to the Trustee no less frequently than once per
calendar month.
4.2 INCREASE OR DECREASE IN RATE OF CONTRIBUTIONS
A Participant may elect to change the rate of his Before-Tax
Contributions, effective as of any Change Date, provided that at least
30 days in advance of such Change Date the Participant files with the
Benefits Committee a new Salary Deferral Agreement. A
(17)
26
Participant's change in his rate of Before-Tax Contributions shall be
subject to the contribution limitations in effect under Sections 4.5,
12.4, and 12.5 at the time the change is made.
4.3 SUSPENSION AND RESUMPTION OF CONTRIBUTIONS
A Participant may elect to suspend his Before-Tax Contributions
effective as of the first day of any succeeding payroll period, provided
that at least 7 days in advance of such date the Participant files with
the Benefits Committee a new Salary Deferral Agreement. Before-Tax
Contributions may be resumed as of any January 1 or July 1 which
coincides with or next follows a six month period of suspension,
provided that at least 30 days in advance of such date the Participant
files with the Benefits Committee a new Salary Deferral Agreement.
A Participant may not make up suspended Before-Tax Contributions.
During a period of suspension, the Participant's Total Account will
continue to share in the investment experience of the Trust Fund, and
the Participant will remain entitled to those benefits and rights under
the Plan not conditioned on Before- Tax Contributions, including the
right to receive an allocation of Regular Profit Sharing Contributions,
if any, and the right to make an in-service withdrawal or receive a Plan
Loan.
A Participant's election to resume making Before-Tax Contributions shall
remain in effect while the Participant is an Eligible Employee or until
such time as he files a new election on the appropriate form with the
Benefits Committee. Any election to resume making Before-Tax
Contributions shall be subject to the contribution limitations in effect
under Sections 4.5, 12.4, and 12.5.
4.4 ROLLOVER CONTRIBUTIONS
(a) ROLLOVERS - An Eligible Employee may file a written request with
the Benefits Committee to accept his Rollover Contribution. Any
such request shall state the amount of the Rollover Contribution
and include a statement that such contribution constitutes a
Rollover Contribution.
The Benefits Committee shall determine, in accordance with a
uniform and nondiscriminatory policy, whether or not such
contribution shall be accepted, and may require the Eligible
Employee to submit such other evidence and documentation
(18)
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as the Benefits Committee determines necessary to ensure that
the contribution qualifies as a Rollover Contribution.
All Rollover Contributions must be made in cash.
The amount paid to the Trust Fund in the form of a Rollover
Contribution and any subsequent investment experience on such
amount shall be credited to the Participant's Rollover Account.
(b) An Eligible Employee shall have at all times a nonforfeitable
interest in 100% of his Rollover Contribution, and any investment
experience on such amount.
(c) At the time the Rollover Contribution is made to the Trust Fund,
the Eligible Employee must elect to have it invested in
accordance with the terms of Section 6.2.
(d) An Eligible Employee who makes a Rollover Contribution to the
Trust Fund shall be deemed to be a Participant with respect to
such amount for all purposes of the Plan, except for purposes of
Sections 2.1 through 2.5, Sections 4.1 through 4.3, Sections 5.1
and 5.2, and Section 12.5.
(e) In no event shall any Rollover Contribution be subject to
Employer Matching Contributions.
4.5 MAXIMUM AMOUNT OF SALARY DEFERRAL AND CASH OPTION DEFERRAL
(a) On or after January 1, 1987, contributions made during a
Participant's taxable year (which is presumed to be the calendar
year) on behalf of the Participant under a Salary Deferral
Agreement and Cash Option Deferral shall be limited to $7,000 (or
such other limit as may be in effect at the beginning of such
taxable year under Section 402(g)(1) of the Code), reduced by the
amount of "elective deferrals" (as defined in Section 402(g)(3)
of the Code) made during the taxable year of the Participant
under any plans or agreements maintained by the Employer or an
Affiliated Employer other than this Plan. Elective deferrals
shall not include any elective deferrals returned to the Employee
pursuant to Section 12.4(d).
(b) If contributions made on a Participant's behalf for the preceding
taxable year of the Participant under a Salary Deferral
Agreement, and Cash Option Deferral, and any other elective
deferrals (within the meaning of Section 402(g)(3) of the Code)
made
(19)
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on the Participant's behalf under any other qualified cash or deferred
arrangement of the Employer or Affiliated Employer for such taxable year
exceed $7,000 (or such other amount as adjusted in accordance with
paragraph (a) above), the Participant shall notify the Benefits
Committee in writing within two months following the close of such
taxable year of the amount of such excess. Such notification shall
include a statement that if such amounts are not distributed, the excess
deferral amount, when added to amounts deferred under other plans or
arrangements described in Section 401(k), 408(k), or 403(b) of the Code,
will exceed the limit imposed on the Participant by Section 402(g) of
the Code for the taxable year of the Participant in which the deferral
occurred.
If the elective deferral limit is exceeded for a Participant for a
taxable year, the excess amount, adjusted (as described below) for
allocable gains or losses for the taxable year with respect to which the
deferral was made, shall be refunded to the Participant in a single
payment no later than 3 1/2 months following the Participant's taxable
year following the taxable year in which such excess deferral arose. If
the Participant's Before-Tax Contribution Account and/or Cash
Option Deferred Account is invested in more than one investment fund,
such refund shall be made pro rata, to the extent practicable, from all
such investment funds. The amount refunded shall not exceed the
Participant's Before-Tax Contributions and Cash Option Deferrals under
the Plan for the taxable year. If the foregoing refund is made, the
payment shall be deemed to have been made before the close of the
taxable year in which such excess deferral arose. Any Employer Matching
Contributions made with respect to returned excess deferral amounts
shall be forfeited.
Excess deferrals shall be adjusted for allocable gains or losses for the
taxable year in which the excess deferrals arose by multiplying the
gains or losses credited to the Participant's Basic and Supplemental
Before-Tax Contribution Accounts and Cash Option Deferred Account for
that taxable year by a fraction, the numerator of which is the excess
deferral amount made by the Participant for the taxable year, and the
denominator of which is the sum of (i) the balance in the Participant's
Basic and Supplemental Before-Tax Contribution Accounts and Cash
Option Deferred Account as of the beginning of the taxable year, and
(ii) the amount of Before-Tax Contributions and the Cash Option Share
credited to the Participant's Basic and Supplemental Before-Tax
Contribution Accounts and Cash Option Deferred Account for the taxable
year.
(20)
29
If the Participant fails to notify the Benefits Committee by the
2-month period specified above, no refund will be made.
(21)
30
ARTICLE 5
EMPLOYER CONTRIBUTIONS
5.1 EMPLOYER PROFIT SHARING CONTRIBUTION
(a) AMOUNT
An Employer may make a profit sharing contribution to the Trust
Fund, as of the end of each Plan Year, in such amount as is
determined in the discretion of the Board prior to the date on
which the contribution is required to be made.
For purposes of this Section, "NET PROFITS" means the net income
of the Employer before payment of any Federal and/or state income
taxes and/or any other Federal taxes imposed on or measured by
net income for the taxable year in question, determined in
accordance with generally accepted accounting principles,
provided, however, that in computing the Net Profits for any
taxable year, neither the amount of the contribution to be made
under this Plan nor the amount of any contribution made by the
Employer under any other plan qualified under Section 401(a) of
the Code shall be included among the deductions.
The Employer Profit Sharing Contribution shall consist of two
parts as described below:
(i) REGULAR PROFIT SHARING CONTRIBUTION - The portion of the
Employer Profit Sharing Contribution equal to 66-2/3% of
the total Employer Profit Sharing Contribution.
(ii) CASH OPTION SHARE - The portion of the Employer Profit
Sharing Contribution equal to 33-1/3% of the total
Employer Profit Sharing Contribution.
(b) CASH OPTION
(i) CASH OPTION ELECTION
Within a reasonable time prior to the close of each Plan
Year, the Trustee shall deliver to each Participant a Cash
Option election form. Pursuant to such form, each
Participant may elect in writing by the end of the Plan
Year
(22)
31
to receive in cash his Cash Option Share. Any election
under this Section shall be irrevocable for the year in
which such election is made.
If a Participant fails to make an election to receive an
immediate cash payment of the Cash Option Share under this
Section, it shall be assumed that he intended to have his
Cash Option Share deferred and credited to his Cash Option
Deferred Account.
(ii) PAYMENT OF CASH OPTION SHARE
The Cash Option Share which a Participant elects to
receive in cash shall be paid to him as soon as
practicable after the year for which the election is made,
which generally shall be either February or March of such
following year; provided that in any event such payment
shall be made within any time limits prescribed by
applicable law.
(c) ALLOCATION OF EMPLOYER PROFIT SHARING CONTRIBUTIONS
The Trustee shall make an allocation under this Section 5.1(c)
and Section 7.5 to the Regular Profit Sharing Account and, if
applicable, the Cash Option Deferred Account of each Participant
who completed a Year of Service during, and is employed on the
last day of, the Plan Year to which the Employer Profit Sharing
Contribution relates. The Trustee shall allocate a portion of
the current Employer Profit Sharing Contribution to each such
Participant equal to a fraction as described below:
(i) The numerator shall be the Participant's Compensation for
the Plan Year,
(ii) The denominator shall be the total Compensation for all
Participants eligible to share in the contribution for
the Plan Year.
(d) ALLOCATION AMONG TOTAL ACCOUNT
As of the last day of each Plan Year, the Trustee shall allocate
to the Regular Profit Sharing Account and, if applicable, the
Cash Option Deferred Account of each Participant entitled, in
accordance with Section 5.1(c), to share in the Employer's Profit
Sharing Contribution and forfeitures for such Plan Year, an
amount (computed in dollars) equal to his proportionate share of
the Employer's Profit Sharing Contribution and forfeitures for
such Plan Year, as set forth in Sections
(23)
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5.1(c) and 7.5, respectively. Except as provided in Section
5.1(b), one third of the Employer's Profit Sharing Contribution
made on behalf of a Participant shall be credited to the
Participant's Cash Option Deferred Account. The remaining
portion of the Employer's Profit Sharing Contribution, together
with the Participant's share of forfeitures, shall be allocated
to the Participant's Regular Profit Sharing Account.
(e) SHARING OF EMPLOYER PROFIT SHARING CONTRIBUTION
To the extent an Employer is prevented from making a Profit
Sharing Contribution under this Section 5.1, because such
Employer has no current or accumulated Net Profits or because
such profits are less than the contributions it otherwise would
have made, the following shall occur. Such prevented
contribution shall be made by the other Employers out of their
Net Profits, provided that the contributions of these Employers
shall be limited, in cases which the Employers do not file a
consolidated Federal Corporate income tax return, as follows.
The amount contributed shall equal the proportion of each such
Employer's Net Profits remaining after adjustment for its
deductible contribution without regard to Section 404(a)(3)(B) of
the Code which the total prevented contribution bears to the Net
Profits of all the Employers remaining after adjustment for all
deductible contributions without regard to said Code Section.
(f) RESPONSIBILITY OF COMMITTEE AND TRUSTEE
If no contribution under this Section shall be made for any year,
the Employer shall so advise the Benefits Committee and the
Trustee. Neither the Trustee nor the Benefits Committee shall be
under any duty to inquire into the correctness of the amounts
contributed and paid over to the Trustee hereunder or to
determine whether any contribution is payable under this Section
5.1 or to enforce payment of any contribution by the Employer.
(g) ADVANCE CONTRIBUTIONS
The Employer, at any time, may make payments on account of its
contribution for the year. Such payment shall constitute a part
of the Trust Fund upon receipt by the Trustee but may be
segregated in an Advance Contribution Account which shall be held
in cash or such other property as may be permissible under
applicable law. The total market value of such Advance
Contribution Account on the last day of the
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Plan Year, together with any other contribution by the Employer,
shall be allocated as provided in Section 5.1(c).
5.2 EMPLOYER MATCHING CONTRIBUTIONS
As of each Valuation Date, an Employer Matching Contribution shall be
credited to the Employer Matching Contribution Account of each
Participant who made Basic Before-Tax Contributions to the Trust Fund
since the previous Valuation Date and who is employed by the Employer on
said Valuation Date. The amount of Employer Matching Contributions made
on behalf of each such Participant shall be 25% of the Participant's
Basic Before-Tax Contributions made since the previous Valuation Date.
No Employer Matching Contributions shall be made with respect to
Supplemental Before-Tax Contributions or Cash Option Deferrals made by
or on behalf of any Participant.
5.3 DEDUCTIBILITY OF EMPLOYER CONTRIBUTIONS
The Employer shall not make any Employer Contributions to the extent
such Contributions would exceed the maximum amount allowable as a
deduction under Section 404 of the Code for the Plan Year in question,
giving effect to the provisions for carryover of unused deductions, if
any.
5.4 FORM AND TIMING OF EMPLOYER CONTRIBUTIONS
Employer Contributions for each fiscal year shall be made by the
Employer within the period required by the provisions of the Code
applicable to such year. The Employer's Contribution for each year may
be paid to the Trustee either in cash or other property, to the extent
permissible under law; provided that any securities so contributed
shall be valued at fair market value on the date of the contribution
pursuant to the valuation methods set forth in Section 6.6.
(25)
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ARTICLE 6
INVESTMENT PROVISIONS AND PARTICIPANT ACCOUNTS
6.1 INVESTMENT FUNDS
The Trustee shall establish one or more investment funds as the
Sponsoring Employer may from time to time direct. The Sponsoring
Employer may direct that each investment fund be invested:
(a) At the discretion of the Trustee in accordance with such
investment guidelines and objectives as may be established by the
Sponsoring Employer for such investment fund; or
(b) At the discretion of a duly appointed Investment Manager in
accordance with such investment guidelines and objectives as may
be established by the Sponsoring Employer; or
(c) In such investments as the Sponsoring Employer may specify for
such investment fund.
Notwithstanding the foregoing, Employer Profit Sharing Contribution made
in accordance with Section 5.1 shall be invested in the UST Managed
Growth Retirement Fund. This Fund contains a balanced investment
portfolio consisting of stocks, bonds, and other fixed income
instruments.
The Sponsoring Employer may from time to time change its direction with
respect to any investment fund and may, at any time, eliminate any
investment fund or establish additional funds. Whenever an investment
fund is eliminated, the Trustee shall promptly liquidate the assets of
such investment fund and reinvest the proceeds thereof in accordance
with the directions of the Sponsoring Employer.
The Trustee may maintain from time to time reasonable amounts in cash or
cash equivalents in any fund. All expenses properly attributable to an
investment fund, including but not limited to brokerage fees and stock
transfer taxes, shall be paid from such investment fund, unless paid by
the Employer.
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All dividends, interest and other income of each investment fund, as
well as stock splits, stock dividends, and the like, shall be reinvested
in that investment fund.
6.2 INVESTMENT ELECTION
(a) At the time an Eligible Employee becomes a Participant in the
Plan and makes an election in accordance with Section 4.1, the
Eligible Employee must choose, on a form provided by the Benefits
Committee, the percentage in which contributions made by or on
behalf of such Participant are to be invested in each investment
fund. Such percentage may be 0%, or in increments of 10% or 25%,
up to a total of 100%. A Participant's investment elections must
total 100%.
(b) During the absence of a valid election by a Participant, the
contributions made by or on behalf of such Participant, and Loan
repayments, if any, shall be credited to the fund with the least
investment risk.
(c) Notwithstanding the foregoing, the Regular Profit Sharing Account
and Cash Option Deferred Account shall be invested solely in the
UST Managed Growth Retirement Fund.
6.3 CHANGE IN INVESTMENT ELECTION
A Participant may elect, effective as of any Change Date, to reallocate
in 10% or 25% increments his Basic and Supplemental Before-Tax
Contribution Accounts, Employer Matching Contribution Account, and
Rollover Account among the investment funds, provided that at least 30
days in advance of such Change Date the Participant files with the
Benefits Committee a new election on the appropriate form, and further
provided that any such election shall not apply to the Loan Fund. Any
elections made in accordance with this paragraph shall apply to the
amounts existing in the Participant's Basic and Supplemental Before-Tax
Contribution Accounts, Employer Matching Contribution Account, and
Rollover Account on the Change Date and to all contributions credited to
such Accounts on or after such Change Date.
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The Benefits Committee may from time to time:
(a) Limit or restrict a Participant's ability to change the
allocation of his Basic and Supplemental Before-Tax Contribution
Accounts, Employer Matching Contribution Account, and Rollover
Account among the investment funds and/or withdraw balances from
the various investment funds in order to conform to the
practices, provisions, or restrictions of any investment media
held in any such investment fund; and
(b) Adopt procedures relating to the determination and allocation of
the investment earnings among the Participants' Basic and
Supplemental Before-Tax Contribution Account, Employer Matching
Contribution Account, and Rollover Account, in order to
facilitate the administration of the Plan on an equitable and
practicable basis.
6.4 RESPONSIBILITY OF PARTICIPANT IN SELECTING INVESTMENT FUNDS
The selection of an investment fund or funds is the sole responsibility
of each Participant. The Benefits Committee, the Trustee, the
Investment Manager, the Employer, or any other fiduciary to the Plan
may not advise a Participant as to the election of any investment fund
or the manner in which contributions shall be invested. The fact that a
security is available to Participants for investment under the Plan
shall not be construed as a recommendation as to the purchase of that
security, nor shall the designation of an investment fund impose any
liability on the Benefits Committee, the Trustee, the Investment
Manager, or the Employer.
6.5 ESTABLISHMENT OF PARTICIPANT ACCOUNTS
(a) The Trustee shall establish and maintain for each Participant a
Total Account, consisting of the following accounts, and any such
other accounts as may be deemed necessary by the Benefits
Committee:
(i) Basic Before-Tax Contribution Account;
(ii) Supplemental Before-Tax Contribution Account;
(iii) Employer Matching Contribution Account;
(iv) Regular Profit Sharing Account;
(v) Cash Option Deferred Account; and
(vi) Rollover Account.
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(b) Within each of the accounts described in paragraph (a) above,
separate records shall be kept of the portion of the account
credited to each investment fund and the Loan Fund.
(c) Such accounts as described in Sections 6.5(a)(iv) and (v) above
shall be maintained primarily for bookkeeping purposes. The
Trustee shall not be required to segregate the assets in these
accounts of Participants for purposes of investment or otherwise.
6.6 FAIR MARKET VALUE OF TRUST ASSETS
The fair market value of all of the assets of the Trust Fund shall be
determined by the Trustee on each Valuation Date.
6.7 ALLOCATION OF TRUST ASSETS
The balance of each Participant's Total Account (including the Regular
Profit Sharing Account portion, if any, of a Forfeiture Account
attributable to a Participant and not yet available for reallocation
pursuant to Section 7.5) shall be adjusted as of each Valuation Date.
In addition to the rules set forth above, the credit balance of the
Total Accounts of Participants shall be reduced by any distributions
made since the most recent Valuation Date.
6.8 CORRECTION OF ERROR
The Benefits Committee may adjust the Total Accounts of any or all
Participants or Beneficiaries in order to correct errors or rectify
omissions, including, without limitation, any allocations to a
Participant's Total Account made in excess of the limits specified in
Sections 4.5, 12.4, and 12.5, in such manner as it believes will best
result in the equitable and nondiscriminatory administration of the
Plan.
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6.9 ALLOCATION SHALL NOT VEST TITLE
The fact that an allocation is made and amounts are credited to the
Total Account of a Participant shall not vest in such Participant any
right, title, or interest in and to any assets except at the time or
times and upon the terms and conditions expressly set forth in this
Plan, nor shall the Trustee be required to segregate physically the
assets of the Trust Fund by reason thereof.
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ARTICLE 7
BENEFITS
7.1 NATURE OF BENEFITS
The benefits provided by this Plan consist of the right of a Participant
to receive a distribution of the vested portion of his Total Account in
accordance with the provisions of this Article 7. The value of a
Participant's Total Account shall be determined as of the Valuation Date
preceding the date on which payment is made.
7.2 MEDIUM AND METHOD OF DISTRIBUTION
The amount payable to a Participant (or Beneficiary) under the terms of
the Plan shall be distributed in the form of a single lump sum payment
in cash.
7.3 TIMING OF DISTRIBUTION
Except as noted below and otherwise provided in this Plan, the vested
portion of a Participant's Total Account shall be paid as soon as
administratively feasible following the first Valuation Date following
the date the Employee's employment with the Employer or an Affiliated
Employer terminates.
If the value of a Participant's vested Account is in excess of $3,500,
payment to the Participant shall not be made in accordance with the
above unless the Participant consents to such distribution. In
addition, a Participant who elects not to receive his distribution in
accordance with the above, may elect to receive such distribution at any
time between the date the Participant attains age 59 1/2 and the April 1
following the calendar year in which the Participant attains age 70 1/2.
7.4 VESTING
A Participant shall always have a nonforfeitable, or 100% vested,
interest in his Basic and Supplemental Before-Tax Contribution Accounts,
Cash Option Deferred Account, Employer Matching Contribution Account,
and Rollover Account. A Participant's vested interest in his Regular
Profit Sharing Account shall become 100% vested, upon the earliest of
his:
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(a) Normal Retirement Date,
(b) Death (while actively employed), or
(c) Disability Retirement Date.
The vested interest of a Participant in his Regular Profit Sharing
Account at any time prior to the date indicated above, shall be based
upon the Participant's Years of Service in accordance with the
following:
YEARS OF SERVICE VESTED PERCENTAGE
Less than 3 0%
3 30%
4 40%
5 60%
6 80%
7 or more 100%
If any Plan amendment changes the vesting schedule set forth above, each
Participant who has completed at least three Years of Service as of the
later of (a) the date the Plan amendment is adopted, or (b) the date the
Plan amendment becomes effective shall have the vested percentage of his
Regular Profit Sharing Account computed in accordance with the vesting
schedule that produces the higher vested benefit.
7.5 FORFEITURES
(a) Prior to January 1, 1985:
------------------------
If a Participant incurs a One-Year Break in Service before his
Regular Profit Sharing Account had become 100% vested pursuant to
the provisions of the Plan in effect on his date of termination,
the nonvested portion of such Account shall be forfeited
effective as of the last day of the Plan Year during which the
Participant incurred a One-Year Break in Service. Upon such
date, the amount forfeited shall be added to the Employer Profit
Sharing Contribution for the Plan Year ending on such date and
shall be allocated in the same manner as such Employer Profit
Sharing Contribution.
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(b) After January 1, 1985:
---------------------
(i) Timing of Forfeitures:
---------------------
If a Participant terminates his employment with the
Employer before his Regular Profit Sharing Account had
become 100% vested, the nonvested amount remaining in
such Participant's Regular Profit Sharing Account shall
be forfeited as of the last day of the Plan Year in
which the Participant's employment terminates. Solely
for purposes of this paragraph, a Participant who
terminates on the last day of a Plan Year shall be
treated as though he terminated employment on the first
day of the following Plan Year. The amount forfeited
shall be allocated in the same manner as the Regular
Profit Sharing Contribution for such year.
(ii) Rehire Within Five Years of Reemployment - Repayments
Permitted:
-----------------------------------------------------
In the event a Participant described in subparagraph (i)
above is rehired prior to incurring five consecutive
One-Year Breaks in Service, the Participant shall be
permitted to repay the entire amount of the distribution
in order to restore the nonvested portion of his Regular
Profit Sharing Account balance to his Total Account for
the purpose of future vesting as if he had not separated
from Service or received a distribution. The
permissible repayment period shall continue until the
fifth anniversary of the day on which the Employee is
reemployed by the Employer.
If such repayment is not made before such period, such
Participant's vested amount will be determined by
including Years of Service accrued before such
Participant's separation from Service but without regard
to amounts allocated prior to such separation.
In the event that the terminated Participant's vested
balance in his Regular Profit Sharing Account was zero,
(A) distribution of the vested balance in his Regular
Profit Sharing Account shall be deemed to have
been made to him as of the date of his termination
of employment,
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(B) repayment shall be deemed to be made on his
reemployment commencement date, and
(C) the balance in his Regular Profit Sharing Account
shall be restored accordingly.
(iii) Restoration of Regular Profit Sharing Account Balances:
------------------------------------------------------
A Participant who made or who is deemed to have made a
repayment pursuant to subparagraph (ii) above will have
recredited to his Regular Profit Sharing Account, as of
the last day of the Plan Year coinciding with or next
following his date of rehire, the portion of such
Account balance which he forfeited upon his prior
termination from Service with the Employer unadjusted
for any subsequent gains or losses. The sources for
restoring a previous forfeiture in a subsequent year
will be, in order of priority:
(A) Forfeitures occurring in the Plan Year in which
the Regular Profit Sharing Account balances are
recreated, if not sufficient then;
(B) Earnings allocable to nonsegregated Regular Profit
Sharing Account balances and realized during the
Plan Year in which such Account balances are
recreated, if still not sufficient then;
(C) Employer Profit Sharing Contributions made by the
Employer for the Plan Year in which the Regular
Profit Sharing Account balances are recreated.
Such reinstated Regular Profit Sharing Account balances
shall be subject to the vesting requirements described
in Article 7.4.
(iv) Rehire After Five Years:
-----------------------
In the event a former Participant is rehired after
incurring five consecutive One-Year Breaks in Service,
the portion of the Participant's Regular Profit Sharing
Account which he forfeited upon his prior termination
shall be deemed to be a permanent forfeiture and shall
not be recredited to the Participant's Regular Profit
Sharing Account if he subsequently becomes eligible to
participate in the Plan, except as follows:
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Such a former participant shall have his prior nonvested
portion in his Regular Profit Sharing Account restored,
if such former Participant repays the entire amount of
the distribution he previously received under the Plan
(upon his prior termination) by the close of five
consecutive One-Year Breaks in Service commencing after
such prior distribution.
To the extent applicable, the procedures of paragraph
(iii) above shall apply to the restoration of the
Participant's nonvested portion of his Regular Profit
Sharing Account if he repays his prior distribution
under this paragraph (iv).
7.6 PERMANENT AND TOTAL DISABILITY
"PERMANENT AND TOTAL DISABILITY" shall be a disability which satisfies
the requirements for benefit entitlement under the Social Security Act
and any long term disability plan or program sponsored by the Employer.
If any disabled Participant returns to the employ of the Employer, he
shall become a Participant on his reemployment date, and the various
Plan sections regarding reemployment with an Employer shall be applied
to him.
7.7 DISTRIBUTION ON DEATH
Upon the death of any Participant, the vested portion of the
Participant's Total Account shall be distributed to the Participant's
designated Beneficiary in accordance with the following rules:
(a) If the Participant has a Spouse at his date of death, the
distribution shall be paid to his Spouse as designated
Beneficiary. The distribution may be paid to a designated
Beneficiary other than the Participant's Spouse while the Spouse
is living only with the written consent of the Participant's
Spouse. A spousal consent must:
(i) Be in writing on a form provided by the Benefits
Committee;
(ii) Specify the Beneficiary;
(iii) Acknowledge the effect of such consent; and
(iv) Be witnessed by a notary public.
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Any such consent will be valid only with respect to the Spouse
who signs the consent. A spousal consent is not required,
however, if the Participant establishes to the satisfaction of
the Benefits Committee
(A) that there is no Spouse;
(B) that the Spouse cannot be located;
(C) that the Participant has been abandoned by the
Spouse within the meaning prescribed by applicable
law and evidenced by a court order; or
(D) that spousal consent is not required under other
applicable regulations.
If the Participant does not have a Spouse at his date of death,
the distribution shall be paid to the designated Beneficiary
elected by the Participant.
If a Participant's designated Beneficiary shall have predeceased
the Participant, or if a Beneficiary designation shall have
lapsed or failed for any reason, payment will be made to the
Beneficiary designated under Section 7.10.
(b) The distribution shall be paid to the Beneficiary as soon as
administratively feasible following the Valuation Date after the
date the Participant's death is reported to the Benefits
Committee; provided the designated Beneficiary has filed a
proper distribution election form with the Benefits Committee.
Distribution shall be made in a single lump sum cash payment.
(c) If the Participant's designated Beneficiary is his Spouse, such
Spouse may elect to defer distribution until any time between the
date the deceased Participant would have reached age 59 1/2, and
December 31 of the calendar year in which the deceased
Participant would have attained age 70 1/2. Such election must
be made no later than the date distribution is required under
paragraph (b) above. If the Participant's Spouse dies before any
distribution is made, the provisions of this Section shall be
applied as though the Spouse were the Participant.
(d) Notwithstanding the preceding, if the benefit payable to a
Beneficiary under this Section does not exceed $3,500,
distribution shall be made to the Beneficiary in a single lump
sum cash payment as soon as practicable after the Valuation Date
next following the date the Participant's death is reported to
the Benefits Committee.
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7.8 DISTRIBUTION TO ALTERNATE PAYEES
The Benefits Committee may authorize the Trustee to make a lump sum
distribution to an Alternate Payee pursuant to a Qualified Domestic
Relations Order as soon as administratively practicable after the
Valuation Date next following the earlier of:
(a) the date the Participant terminates employment; or
(b) the later of:
(i) the date the Participant attains age 50, or
(ii) the earliest date the Participant is entitled to a
distribution under the Plan,
provided the Alternate Payee has filed a request for distribution with
the Committee.
If the Alternate Payee's nonforfeitable interest in the Plan does not
exceed $3,500, distribution to the Alternate Payee shall be made at the
earliest possible date described above.
7.9 INVESTMENT OF DEFERRED DISTRIBUTIONS
Any amounts deferred in accordance with this Article 7 shall be held in
the Participant's Total Account and shall continue to share in the
investment experience of the Trust Fund as long as a balance remains.
7.10 DESIGNATION OF BENEFICIARY
(a) Each Participant may designate, on a form provided by the
Benefits Committee, a Beneficiary or Beneficiaries to receive any
benefits distributable hereunder after the death of the
Participant. Such designation of a Beneficiary or Beneficiaries
shall not be effective for any purpose unless and until it has
been filed by the Participant with the Benefits Committee,
provided, however, that a designation mailed by the Participant
to the Benefits Committee prior to his death and received by the
Benefits Committee after his death shall take effect upon such
receipt, but prospectively only and without prejudice to any
payor or payee on account of any payments made before receipt of
such designation by the Benefits Committee.
Notwithstanding the above, the following provisions shall apply:
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(i) A Participant's Beneficiary shall be his surviving
Spouse, if the Participant has a surviving Spouse,
unless the Participant has designated another
Beneficiary pursuant to the spousal consent requirements
of Section 7.7(a).
(ii) A Participant may from time to time change his
designated Beneficiary or Beneficiaries, but any such
designation which has the effect of naming a person
other than the Participant's surviving Spouse, if any,
as sole Beneficiary is subject to the spousal consent
requirements of Section 7.7(a).
(b) In the absence of a Beneficiary designation by the deceased
Participant, or if a designation of Beneficiary lapses or fails
for any reason, distribution of the deceased Participant's
nonforfeitable interest in the Trust Fund shall be distributed to
the surviving Spouse of the Participant or, if there be none
surviving, to the duly appointed and currently acting personal
representative of the Participant's estate.
7.11 ADVICE OF BENEFITS
The Benefits Committee shall establish such rules and procedures as it
deems necessary to properly advise all Participants and other persons as
to any rights they may have to a benefit under this Plan and may impose
upon any such person reasonable requirements with respect to filing
application for such benefits.
7.12 INCAPACITY
If any person to whom a benefit is payable hereunder is an infant or if
the Benefits Committee determines that any person to whom such benefit
is payable is incompetent by reason of physical or mental disability,
the Benefits Committee may cause the payments becoming due to such
person to be made to such person's legally appointed guardian or
conservator.
7.13 PROOF OF CLAIM
The Benefits Committee may require such proof of death and such evidence
of the right of any person to receive payment of the value of the vested
interest in the Trust Fund of a deceased Participant or former
Participant as the Benefits Committee may deem desirable.
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7.14 MANDATORY PAYMENT OF DISTRIBUTIONS TO CERTAIN PARTICIPANTS AT AGE 70 1/2
Notwithstanding anything in the Plan to the contrary, distribution of
Plan benefits shall commence no later than April 1 following the Plan
Year in which the Participant attains age 70 1/2, regardless of whether
the Participant has retired; provided, however, that any Participant who
attained age 70 1/2 on or before January 1, 1988 and who was not a 5%
owner of the Employer (as defined in Section 416(i)(1)(B) of the Code)
in the Plan Year in which he attained age 66 1/2 or in any succeeding
Plan Year, may elect to defer the commencement of his benefits until his
actual date of retirement. For purposes of this paragraph, any
Participant who on January 1, 1989 remains actively employed by the
Employer after having attained age 70 1/2 during 1988, and who is not a
5% owner of the Employer, shall be treated as having retired on January
1, 1989; benefits payable to such Participant shall commence no later
than April 1, 1990.
7.15 DIRECT ROLLOVER DISTRIBUTIONS
Notwithstanding any provision of the Plan to the contrary, if any
distribution to a Distributee (i) is made on or after January 1, 1993,
(ii) totals $200 or more, and (iii) constitutes an Eligible Rollover
Distribution, the Distributee may elect on a form provided by the
Benefits Committee to have all or part of such Eligible Rollover
Distribution paid in a direct rollover to an Eligible Retirement Plan
selected by the Distributee. For this purpose, a Distributee, an
Eligible Rollover Distribution, and an Eligible Retirement Plan shall be
defined as follows:
(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.
(b) Eligible Rollover Distribution means any distribution of all or
any portion of the balance to the credit of a 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
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includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
(c) Eligible Retirement Plan means a plan described below:
(i) an individual retirement account described in Section
408(a) of the Code;
(ii) an individual retirement annuity (other than an endowment
contract) described in Section 408(b) of the Code;
(iii) with respect to Participants and Distributees who are
alternate payees only, a qualified defined contribution
plan and exempt trust described in Sections 401(a) and
501(a) of the Code respectively, the terms of which
permit the acceptance of rollover contributions; or
(iv) with respect to Participants and Distributees who are
alternate payees only, an annuity plan described in
Section 403(a) of the Code.
If an election is made to have only a part of an eligible rollover
distribution paid in a direct rollover, the amount of the direct
rollover must total $500 or more.
Direct rollovers shall be accomplished in accordance with procedures
established by the Benefits Committee.
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ARTICLE 8
LOANS AND IN SERVICE WITHDRAWALS
8.1 LOAN AVAILABILITY
(a) Except to the extent provided in Section 8.4, any Participant who
is not an "owner-employee" within the meaning of Section 4975(d)
of the Code may request a Loan in an amount which does not exceed
an amount equal to the lesser of (i) or (ii) below:
(i) $50,000 reduced by the individual's highest outstanding
Loan balance from this Plan and all other qualified
plans of the Employer and all Affiliated Employers
during the 12 month period ending on the day before the
date the new Loan is made.
(ii) 50% of the individual's vested interest in his Total
Account reduced by the outstanding balance of all
previous Loans made to the individual from this Plan.
(b) An applicant may request a Loan from the Plan to meet certain
financial needs, as follows:
(i) To pay expenses associated with the purchase and/or
renovation of the applicant's primary residence;
(ii) To pay medical expenses incurred by the applicant or his
immediate family which are not covered by insurance or
to purchase medical insurance not paid by the Employer;
and
(iii) To pay educational expenses beyond the high school level
incurred by the applicant or applicant's immediate
family member.
(c) Loans shall be borrowed from the individual's Total Account in
the following order until the full amount of the Loan has been
provided:
(i) from his Supplemental Before-Tax Contribution Account;
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(ii) from his Basic Before-Tax Contribution Account;
(iii) from his Cash Option Deferred Account;
(iv) from his Rollover Account;
(v) from his Employer Matching Contribution Account; and
(vi) from his Regular Profit Sharing Account (to the extent
vested).
(d) Requests for Loans must be submitted in writing to the Benefits
Committee on a form designated for that purpose by the Benefits
Committee. Decisions by the Benefits Committee regarding Loans
shall be made on a uniform, nondiscriminatory basis, shall be
final and shall be communicated to the applicant approximately 30
days from the date the Loan application is received by the
Benefits Committee.
8.2 LOAN CONDITIONS
A Plan Loan shall be subject to the following conditions:
(a) A new Plan Loan shall not be made to an applicant until he fully
repays any previous Plan Loan.
(b) The minimum Loan shall be $1,000.
(c) The maximum Loan amount shall be based upon the vested balance in
the applicant's Total Account as of the Valuation Date preceding
the date the Loan is made.
(d) Each Loan shall bear interest at a rate equal to 1% point above
the United States Treasury rate for an instrument with a similar
maturity to that of the Plan Loan on the date the Plan Loan
request is made. Notwithstanding the foregoing, the Plan Loan
interest shall conform to the amount necessary to comply with
Department of Labor Regulation 2550.408b- 1(e).
(e) Each Loan shall be secured by collateral consisting of the
applicant's vested interest in his Total Account, supported by a
promissory note for the amount of the Loan, made payable to the
Trustee.
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(f) In applying for a Loan, the applicant shall agree to repay the
Loan plus interest over a period of years from one to five, as
elected by the Participant, unless the Loan is to be used for the
purchase of the Participant's principal place of residence, in
which case the repayment period may be any period of years up to
fifteen years, as elected by the Participant.
(g) Repayment by Participants actively employed by an Employer during
the repayment period shall be in equal installments by weekly or
bi-monthly payroll deductions and shall commence with the first
paycheck received by the Participant in the month following
receipt of the Loan.
(h) Full repayment of the entire outstanding balance of a Loan may be
as of the last day of any month during the repayment period.
(i) If any individual fails to repay a Plan Loan in accordance with
its terms, the Loan shall be in default. The balance will be
paid automatically from the applicant's Total Account (unless he
repays the Loan prior to the last day of the month in which he
terminates). If the Loan remains in default at the time the
applicant terminates employment, in accordance with governmental
regulations, the Benefits Committee shall authorize the Trustee
to cancel and distribute the promissory note and report a taxable
distribution to the Internal Revenue Service equal to the amount
transferred from his Total Account to repay the loan.
8.3 LOAN FUND
(a) The portion of an individual's Total Account constituting a Loan
shall be segregated into a separate fund, which shall be known as
the individual's Loan Fund. The Loan Fund as of any Valuation
Date shall equal the sum of the following components:
(i) the principal amount due his Supplemental Before-Tax
Contribution Account;
(ii) the principle amount due his Basic Before-Tax
Contribution Account;
(iii) the principal amount due his Cash Option Deferred
Account;
(iv) the principal amount due his Rollover Account;
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52
(v) the principal amount due his Employer Matching
Contribution Account; and
(vi) the principal amount due his Regular Profit Sharing
Account.
Each of the above amounts shall be increased with its
proportionate share of interest charged to the Loan Fund.
(b) As of each Valuation Date, the balance of the Loan Fund shall be
reduced by the payments made since the previous Valuation Date.
Loan repayments shall be applied in the reverse order designated
in paragraph (a) above.
(c) Loan repayments shall be allocated among the investment funds in
the same percentage as the individual's most recent investment
election in effect under the Plan, except that loan repayments to
the Regular Profit Sharing Account shall be invested in the UST
Managed Growth Retirement Fund.
8.4 LOANS TO PARTIES-IN-INTEREST
(a) Notwithstanding anything to the contrary in the Plan, Plan Loans
shall be made available to Participants (either active or former)
and Beneficiaries who are "parties-in-interest" as defined in
Section 3(14) of ERISA, to the extent required by applicable law.
(b) The provisions of this Section 8.4 shall be null and void without
amendment to the Plan in the event that by ruling of the
Commissioner of Internal Revenue and/or the Secretary of Labor
the rules herein set forth are no longer necessary to prevent any
prohibited discrimination that may occur in the Plan's Loan
program.
8.5 IN SERVICE WITHDRAWALS AFTER AGE 59 1/2
A Participant who has attained age 59 1/2 and completed ten or more
Years of Service may elect to withdraw all or any part of the vested
portion of his Total Account, by submitting a written request to the
Benefits Committee at least fifteen days prior to a Valuation Date.
The amount to be withdrawn shall be taken from the Participant's Total
Account in the following order, with the full amount available from each
account to be fully withdrawn before any amount is taken from the next
account:
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(a) from the Participant's Rollover Account;
(b) from the Participant's Employer Matching Contribution Account;
(c) from the Participant's Regular Profit Sharing Account (to the
extent vested);
(d) from the Participant's Cash Option Deferred Account;
(e) from the Participant's Supplemental Before-Tax Contribution
Account; and
(f) from the Participant's Basic Before-Tax Contribution Account.
The distribution shall be made as soon as practicable following the
Valuation Date following the date the application is received.
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ARTICLE 9
THE BENEFITS COMMITTEE
9.1 ESTABLISHMENT AND COMPOSITION
The general administration of the Plan and the responsibility for
carrying out its provisions shall be vested in the Benefits Committee,
which shall be composed of at least three persons appointed from time
to time by the Board. The Benefits Committee shall be the "NAMED
FIDUCIARY" of the Plan in accordance with Section 402(a) of ERISA.
Any one or more of the members of such Committee may be officers or
directors of the Employer and need not be Participants in the Plan.
The Trustee shall accept and rely upon a certification by the Board as
to the number and identity of the individuals comprising the Benefits
Committee at any time at its sole discretion. A person appointed to
be a member of such Committee shall signify his acceptance to the
Board in writing. He may resign by delivering his written resignation
to the Board and such resignation shall become effective upon its
delivery or any later date specified therein.
If at any time there shall be a vacancy in the membership of the
Benefits Committee, the remaining member or members of the Committee
shall continue to act until such vacancy is filled by action of the
Board. The Benefits Committee shall appoint from among its members a
chairman, and may appoint as secretary a person who may, but need not
be, a member of the Benefits Committee or a Participant in the Plan.
9.2 MEETINGS
The Benefits Committee shall hold meetings upon such notice, at such
place or places, and at such times as its members may from time to
time determine. A simple majority or three, whichever is less, of the
members of the Benefits Committee at the time in office shall
constitute a quorum for the transaction of business. All action taken
by the Benefits Committee at any meeting shall be by vote of the
simple majority of its members present at such meeting at which a
quorum is present, but the Benefits Committee may act without a
meeting by unanimous action of its members evidenced by a writing
signed by all such members; provided, however, that no member of such
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Committee shall take any part in any action relating solely to himself
or to his rights or benefits under the Plan.
9.3 BY-LAWS
Subject to the terms of the Plan, the Benefits Committee may from time
to time adopt by-laws, rules and regulations for the administration of
the Plan and the conduct and transaction of its business and affairs.
8.4 POWERS AND DUTIES
The Benefits Committee shall have and shall exercise complete
discretionary authority to discharge its duties hereunder, including,
but not limited to, the authority to interpret and construe the Plan
to determine all questions of eligibility, duration of service, dates
of birth, participation or retirement, allocation of benefits, value
of benefits, and similarly related matters for the purpose of the
Plan, the authority to prescribe forms to be used for designating
Beneficiaries or for changing or revoking such designation, and the
authority to take such other action not inconsistent with the Plan or
with any action of the Board as it deems appropriate in order to
administer the Plan. Any such construction, administration,
interpretation or application shall be final, binding and conclusive
upon all persons concerned. All matters falling outside the scope of
the powers and duties of the Benefits Committee, and not otherwise
provided for in the Plan, shall be referred to the Board which shall
have the power to act thereon.
9.5 RECORDS
All acts and determinations by the Benefits Committee shall be duly
recorded, and all such records, together with such other documents as
may be necessary for the administration of this Plan, shall be
preserved in the custody of the Benefits Committee.
9.6 INSTRUCTIONS
The Benefits Committee shall, from time to time, issue written
instructions to the Trustee with respect to the payments to be made
out of the Fund pursuant to the Plan.
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9.7 AUTHORITY TO SIGN
From time to time, the Benefits Committee may authorize one or more of
its members to execute any or all documents on behalf of such
Committee and shall notify the Trustee in writing of the names of the
persons so designated. The Trustee shall accept and rely upon any
document executed by the person or persons so designated as
representing action by the Benefits Committee until receipt from such
Committee of a written revocation of such designation.
9.8 ADMINISTRATION
The Benefits Committee may retain or employ such legal, accounting and
clerical assistance as it deems expedient in carrying out the
provisions of the Plan, and may delegate to any member, or members of
the Benefits Committee and/or any employee or employees of the
Employer any ministerial or routine act or duty in connection with the
administration of the Plan.
9.9 PAYMENT OF EXPENSES
The Employer shall upon receipt of notice thereof from the Benefits
Committee promptly pay the operation and administrative expenses of
such Committee. No Employee of the Employer who is a member of the
Benefits Committee shall receive compensation for his services as a
member, but a member of the Benefits Committee who is not an Employee
may be compensated as the Board may determine.
9.10 PRUDENCE
Any person serving as a member of the Benefits Committee shall use
that standard of 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 a like character and with like aims.
9.11 DISCLOSURE
The Benefits Committee shall cause to be furnished to each Participant
a written summary of the Plan and any amendment thereto. Such summary
shall include the names of the members of the Benefits Committee and
the name of the Trustee, and shall set forth the Participant's rights
and duties with respect to the benefits available to him
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under the Plan. Any decisions of the Benefits Committee respecting an
Employee's or Participant's right to be included in the Plan or to
benefits hereunder shall be delivered to the Employee or Participant
in writing.
9.12 CLAIMS PROCEDURE
In the event that an Employee or Participant disagrees with any
decision of the Benefits Committee regarding his rights to receive a
benefit under the Plan, the amount of any such benefit, or any other
factor affecting his rights under the Plan, the Employee or
Participant may request a hearing before the full Benefits Committee
concerning his rights. Such a request must be made in writing to the
Benefits Committee within 60 days after receipt of such Committee's
decision. The Employee or Participant shall be entitled to review
documents pertinent to his claim and to submit issues and comments in
writing to the Benefits Committee. The Benefits Committee shall
within 60 days after receiving the Employee's or Participant's
request, grant the Employee or Participant such a hearing, at which
the Employee or Participant shall be entitled to have his attorney, or
other person of his choice, present. Within 120 days after the
request for such hearing is first received, the Benefits Committee
shall issue a written decision to the Employee or Participant with
respect to his case, giving specific reasons for its decision and
specific references to the pertinent Plan provisions on which the
decision is based.
9.13 COMPLIANCE IN GENERAL
The Benefits Committee shall exercise such authority and
responsibility as it deems appropriate in order to comply with ERISA
and governmental regulations issued thereunder relating to records of
Participant's service, Total Account balances and the percentage of
such Total Account balances which are nonforfeitable under the Plan,
notifications to Participants, registration with the Internal Revenue
Service, and reports to the Department of Labor.
9.14 INVESTMENT POLICY
Although the Trustee shall have the sole responsibility for the
specific investments chosen for the assets of the Trust Fund, the
Benefits Committee shall have the authority to establish general
investment policy guidelines that the Trustee shall rely upon in the
choice of investments for the Trust Fund. Such directions or
guidelines shall be contained in a document or documents executed by
such person or persons as are authorized to sign on behalf of the
Benefits Committee pursuant to Section 9.7.
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9.15 INSURANCE
The Benefits Committee shall have the right to purchase such insurance
as it deems necessary to protect the Plan and the Fund from loss due
to any breach of fiduciary responsibility by any person. Any premiums
due on such insurance may be paid from Fund assets provided that, if
such premiums are so paid, such policy of insurance must permit
recourse by the insurer against the person who breaches his fiduciary
responsibility. Nothing in this Section shall prevent the Benefits
Committee or the Employer, at its, or his own expense, from providing
insurance to any person to cover potential liability of that person as
a result of a breach of fiduciary responsibility, nor shall any
provisions of the Plan preclude the Employer from purchasing from any
insurance company the right of recourse under any policy issued by
such insurance company.
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ARTICLE 10
TRUSTEE
10.1 INVESTMENT RESPONSIBILITY
The responsibility for investment of the Trust Fund assets shall rest
with the Trustee, except to the extent that the Trustee has delegated
such responsibility to another Trustee or Trustees, as described in
Section 10.5, or to an Investment Manager.
In the absence of any direction to the contrary from the Benefits
Committee, the Trustee shall invest the assets of the Trust Fund in
such stocks, bonds or other securities or certificates of
participation or shares of any mutual investment company, trust or
fund, or any other property of any kind, real or personal, tangible or
intangible, as it may deem advisable, whether or not authorized under
any present or future laws for the investment of trust funds, provided
that the Trustee may hold funds of the Trust Fund uninvested without
liability for interest if and to the extent that it may deem advisable
from time to time; and the Trustee is authorized to commingle part or
all of the assets of the Trust Fund in or with any one or more trusts
created for the investments or collective investment of funds held
under Employees' retirement benefit plans or trusts which are
qualified within the meaning of and exempt from tax under the revenue
laws of the United States, and permitted by existing or future rulings
of the United States Treasury Department to pool their respective
funds in a group trust, and the terms of any such collective
investment trust shall be deemed incorporated herein and made a part
hereof. The Trustee may accumulate and invest income.
The Trustee, if a bank or trust company, is specifically authorized to
maintain checking and earnings accounts in its own bank or trust
company and is further authorized to purchase money market investments
issued by itself. If otherwise permitted by law the Trustee may hold
property in the name of a nominee without disclosure of its trust. No
transfer agent, bank or other person dealing with the Trustee need
inquire into the Trustee's authority to make transfers or need see to
the application of property received by the Trustee.
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10.2 INVESTMENT DIRECTION BY THE BENEFITS COMMITTEE
The Benefits Committee may establish certain investment policy
guidelines for the Trustee. Such authority shall include directions
to both purchase and sell such securities. The Trustee will not be
responsible for any loss incurred with respect to any investment made
or retained pursuant to any such direction or instructions, and the
Trustee shall not have any responsibility or duty to approve, review,
or follow the advisability of sale, retention or disposal of such
directed investment, nor to determine if any direction is consistent
with the purpose of the Plan and/or applicable law and shall not be
subject to any liability for action taken or omitted in reliance on
advice of counsel.
10.3 CUSTODY
The Trustee shall have the exclusive responsibility for custody of the
Trust Fund, including any income, from and after the receipt of an
Employer Contribution or other addition to the Trust Fund.
10.4 DISBURSEMENTS AND DISTRIBUTIONS
The Trustee shall make disbursements for the purposes of investment
pursuant to the direction of the Benefits Committee and in the absence
of such direction as the Trustee in its sole discretion deems
advisable and proper, provided, however, that such disbursement
decisions shall be made in a manner consistent with the general
investment policy guidelines established by the Benefits Committee
pursuant to Section 10.2. The Trustee shall make disbursements for
the payment of expenses upon approval by the Benefits Committee, and
the Trustee shall have no other responsibility with respect to such
disbursements. The Trustee shall make distributions to Participants
and their Beneficiaries in accordance with the written instructions of
the Benefits Committee, observing the names, addresses and other
similar instructions given by such Committee, and the Trustee shall
have no other responsibility with respect to such distributions.
10.5 ALLOCATION OF RESPONSIBILITIES AMONG TRUSTEES REGARDING PLAN ASSETS
If there shall be more than one Trustee, the Trustees shall jointly
manage and control the assets of the Trust Fund, except that with the
approval of the Benefits Committee the Trustees may by agreement
allocate any such specific responsibilities, obligations or duties
among themselves as they deem advisable, including (without
limitation) the duties of the Trustees respecting custody and
registration of securities.
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10.6 FIDUCIARY STATUS
The Trustee is a fiduciary and shall be free from interference by the
Employer with the discharge of its duties as set forth in the Plan and
the requirements of law. The Benefits Committee may remove the
Trustee for any reasons which the Benefits Committee, in its sole
discretion, deems sufficient.
10.7 ADMINISTRATIVE EXPENSES; ADVISORS
All administrative expenses of the Plan shall be charged to and paid
by the Employer. In the event that they are not so paid, such
expenses shall be charged to and paid out by the Trust Fund provided,
however, that all of the Trustee's administrative fees and expenses
may be charged against the Trust Fund without the prior approval of
the Benefits Committee. The Benefits Committee shall not approve any
expense whose payment would be inconsistent with the obligations of a
fiduciary under ERISA or would constitute a prohibited transaction
thereunder. Expenses payable hereunder include, without limitation,
Trustees' fees, actuarial, accounting and legal fees, appraisal
expenses incurred in the valuation of securities, and fees for
investment or insurance advice. The Benefits Committee, the Employer
and the Trustee may employ persons to render accounting, legal,
appraisal, investment or insurance advice and may rely upon such
advice.
10.8 RESIGNATION
The Trustee may resign upon 30 days' prior written notice to the
Benefits Committee.
10.9 TRUSTEE'S MISCELLANEOUS POWERS
The Trustee shall have the following powers exercisable without leave
of court and without limiting any power otherwise given to the
Trustee:
(a) VOTING. The Trustee may vote all securities held in the Trust
Fund either directly or by proxy.
(b) TRANSFERS. The Trustee may buy, sell, mortgage, grant a
security interest in, lease (for any length of time) or
otherwise deal with real or personal property on such terms as
the Trustee deems proper; the Trustee shall take any action
which the Benefits Committee directs regarding the sale or
exchange of securities in
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connection with any merger or other reorganization described in
the Code or otherwise; the Trustee may execute instruments of
conveyance in such form as the Trustee deems proper.
(c) CONTRACTS. The Trustee may make contracts binding upon the
trust estate without assuming personal liability therefor.
(d) LOANS. The Trustee may borrow and lend on such terms as the
Trustee deems proper.
(e) CLAIMS. The Trustee may pay a claim on such proof as the
Trustee deems sufficient and may compromise disputed claims of
or against the Trustee on such terms as the Trustee deems
adequate.
(f) BANKING TRANSACTIONS. The Trustee may authorize one or more
persons to sign checks and other commercial paper and engage in
banking transactions on behalf of the Trust Fund. A Trustee
which is a bank may use its own banking facilities, to the
extent permitted by law, for deposits of funds of the Trust
Fund.
10.10 TRUSTEE'S ACCOUNTS
The Trustee shall render periodic accounts to the Benefits Committee
and the Employer. It shall have no duty to account to Participants
and their Beneficiaries, who shall look exclusively to the Benefits
Committee as Plan Administrator for disclosure and reporting.
Within a reasonable time after the close of each fiscal year of the
Employer, or of any termination of the duties of the Trustee
hereunder, the Trustee shall prepare and deliver to the Benefits
Committee an account of its acts and transactions as Trustee during
such fiscal year or during such period from the close of the last
fiscal year to the termination of the Trustee's duties, respectively,
including a statement of the then current value of the Trust Fund.
Any such account shall be deemed accepted and approved by the Benefits
Committee, and the Trustee shall be relieved and discharged, as if
such account had been settled and allowed by a judgment or decree of a
court of competent jurisdiction, unless protested by written notice to
the Trustee within 60 days of receipt thereof by the Benefits
Committee.
The Trustee or the Benefits Committee shall have the right to apply at
any time to a court of competent jurisdiction for judicial settlement
of any account of the Trustee not
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previously settled as herein provided or for the determination of any
question of construction or for instructions. In any such action or
proceeding it shall be necessary to join as parties only the Trustee
and the Benefits Committee (although the Trustee may also join such
other parties as it may deem appropriate), and any judgment or decree
entered therein shall be conclusive.
10.11 INDEMNIFICATION OF TRUSTEE
The Employer and the Benefits Committee shall indemnify and hold
harmless the Trustee for any liability or expenses, including without
limitation reasonable attorney's fees, incurred by the Trustee with
respect to taking such investment direction as the Benefits Committee
may authorize, and, in addition, with respect to holding, managing,
investing or otherwise administering the Trust Fund, except for its
lack of good faith or lack of due care or except as may be judicially
determined.
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ARTICLE 11
TOP HEAVY PROVISIONS
11.1 TOP HEAVY DEFINITIONS
For purposes of this Article, the following terms shall have the
meanings indicated below:
(a) "KEY EMPLOYEE" means any employee or former employee (including
any deceased employee) of an Employer or an Affiliated Employer
who at any time during the Plan Year containing the
Determination Date for the Plan Year in question, or any of the
four preceding Plan Years is:
(i) An officer of an Employer or Affiliated Employer, if
such individual received Annual Compensation (as
defined below) of more than 50% of the dollar
limitation in effect under Section 415(b)(1)(A) of the
Code. No more than 50 employees (or, if lesser, the
greater of 3 employees or 10% of the employees) shall
be treated as officers (exclusive of employees
described in Section 414(q)(8) of the Code).
(ii) One of the 10 employees owning or considered as owning
(within the meaning of Section 416(i) of the Code) both
more than a 1/2 percent ownership interest and one of
the ten largest ownership interests in an Employer or
Affiliated Employer, if such employee's Annual
Compensation (as defined below) exceeds 100% of the
maximum annual limit under Section 415(c)(1)(A) of the
Code.
(iii) A 5% owner of an Employer or Affiliated Employer. A
"5% owner" means a person owning (or considered as
owning, within the meaning of Section 416(i) of the
Code) more than 5% of the outstanding stock of an
Employer or Affiliated Employer, or stock possessing
more than 5% of the total combined voting power of all
stock of an Employer or Affiliated Employer (or having
more than 5% of the capital or profits interest in any
Employer or Affiliated Employer that is not a
corporation determined under similar principles).
(iv) A 1% owner of an Employer or Affiliated Employer having
Annual Compensation (as defined below) of more than
$150,000. A "1% owner"
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means any person who would be described in paragraph
(a)(iii) above if "1%" were substituted for "5%" in
each place where it appears in paragraph (a)(iii).
A Key Employee shall be determined in accordance with
the provisions of Section 416(i) of the Code and the
regulations thereunder.
(b) "ANNUAL COMPENSATION"means for years beginning after 1988, 415
Compensation (as defined in Section 12.4(b)) in addition to any
amounts contributed on behalf of the Employee by an Employer or
an Affiliated Employer pursuant to a salary deferral agreement
or cash option deferral under the Plan (or any other cash or
deferred arrangement described in Section 401(k) of the Code) or
a salary reduction agreement pursuant to a cafeteria plan
established under Section 125 of the Code, or toward the
purchase of an annuity described in Section 403(b) of the Code.
(c) "DETERMINATION DATE" means the last day of the preceding Plan
Year, except that for the first Plan Year the Determination Date
is the last day of that Plan Year.
(d) "AGGREGATION GROUP" means either:
(i) A "REQUIRED AGGREGATION GROUP" which is each qualified
plan of an Employer or Affiliated Employer which
provides benefits to a Key Employee, and each other
qualified plan of an Employer or Affiliated Employer
(including terminated plans maintained within the
five-year period ending on the Determination Date), if
any, which is included with such plan during the period
of five years ending on such plan's Determination Date
for purposes of meeting the requirements of Section
401(a)(4) or Section 410 of the Code; or
(ii) A "PERMISSIVE AGGREGATION GROUP" which is this Plan
and each other qualified plan of an Employer or
Affiliated Employer which in total would continue to
meet the requirements of Section 401(a)(4) and Section
410 of the Code with such other qualified plan being
taken into account (i.e., such other qualified plan
provides comparable benefits and satisfies the coverage
test).
(e) "NON-KEY EMPLOYEE" means an employee who is not a Key Employee,
including any employee who is a former Key Employee.
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(f) "VALUATION DATE" means the date used to calculate the value of
account balances or accrued benefits for purposes of determining
the top heavy ratio specified in Section 11.2.
For purposes of this Plan, the Valuation Date shall be the
Determination Date. For each other plan, the Valuation Date
shall be, subject to Section 416 of the Code, the most recent
Valuation Date which falls within or ends within the period of
twelve months ending on the applicable determination date for
such plan.
(g) "EMPLOYEE", "FORMER EMPLOYEE", "KEY EMPLOYEE" and "NON-KEY
EMPLOYEE" shall also include Beneficiaries of such an employee.
11.2 DETERMINATION OF TOP HEAVY STATUS
The Plan shall be deemed a top heavy plan for a Plan Year if, as of a
Valuation Date, the sum of the account balances of Key Employees under
this Plan and all other defined contribution plans in the Aggregation
Group, and the present value of accrued benefits of Key Employees
under all defined benefit plans in the Aggregation Group exceeds 60%
of the sum of the account balances of all Participants under this Plan
and all other defined contribution plans in the Aggregation Group and
the present value of accrued benefits of all Participants under all
defined benefit plans in the Aggregation Group (but excluding
participants who are former Key Employees).
For purposes of this test, the following rules shall apply:
(a) Subject to paragraph (b) below, any distributions made during
the five Plan Years ending on the Determination Date shall be
taken into account.
(b) For Plan Years commencing after December 31, 1984, the accounts
of all former employees who have not been credited with at least
one Hour of Service during the period of five years ending on
the Determination Date shall be disregarded, provided, however,
that if such former Employee again completes an Hour of Service
with the Employer after such five year period, such former
Employee's accounts shall be taken into consideration.
(c) If an employee is a Non-Key Employee for the Plan Year
containing the Determination Date, but such individual was a Key
Employee during any previous Plan Year, the value of his
accounts shall not be taken into consideration.
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(d) Solely for purposes of determining if the Plan or any other plan
in the Required Aggregation Group is a top heavy plan for a Plan
Year, the accrued benefits of Non-Key Employees under any
defined benefit plans shall be determined for Plan Years
beginning after 1986 under the method, if any, which is
uniformly applied for accrual purposes under all defined benefit
plans maintained by an Employer or Affiliated Employer or, if
there is no such method, as if such benefit accrued not more
rapidly than under the slowest accrual rate permitted under
Section 411(b)(1)(C) of the Code.
(e) The determination of the present value of accrued benefits under
all defined benefit plans in the Aggregation Group shall be
based on the interest rate and mortality table specified in the
qualified defined benefit plan maintained by the Sponsoring
Employer.
In no event shall the Plan be considered top heavy if it is part of a
Required Aggregation Group or a Permissive Aggregation Group which is
not top heavy.
11.3 PROCEDURES IN THE EVENT OF TOP HEAVY STATUS
Notwithstanding any other provision of the Plan to the contrary, for
any Plan Year in which the Plan is deemed to be top heavy, the
following provisions shall apply:
(a) MINIMUM VESTING - Any Participant who completes an Hour of
Service in a Plan Year in which the Plan is deemed to be top
heavy shall have a nonforfeitable interest in the Employer
Profit Sharing Contribution made on his behalf to his Regular
Profit Sharing Account for such Plan Year. Furthermore, if the
vesting schedule under the Plan for any Plan Year shifts into or
out of the above schedule because of the Plan's top heavy
status, such shift shall be regarded as an amendment to the
Plan's vesting schedule and the provisions of Section 7.4 shall
be applied.
(b) MINIMUM CONTRIBUTION - The Employer shall make a minimum
contribution for each Participant who is a Non-Key Employee and
who is employed by an Employer or Affiliated Employer on the
last day of the Plan Year as follows:
(i) If the Participant is also a participant in a defined
benefit plan or another defined contribution plan
sponsored by an Employer or Affiliated Employer
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which provides a top heavy minimum benefit, then the
minimum contribution to this Plan is 0%.
(ii) If the Participant is also a participant in a defined
benefit plan or another defined contribution plan
sponsored by an Employer or Affiliated Employer which
provides a top heavy minimum benefit offset by the
minimum benefit under this Plan, or if the Participant
is not a participant in any other defined benefit plan
or defined contribution plan sponsored by the Employer,
then the minimum contribution to this Plan is the
lesser of:
(A) 3% of the Participant's Section 415 Compensation
(as defined in Section 12.4(b)) for such Plan
Year, or
(B) The largest percentage of Employer contributions,
as a percentage of Section 415 Compensation (as
defined in Section 12.4(b)), allocated to the
Total Account of any Key Employee for such Plan
Year.
For purposes of this paragraph (b)(ii), Participants
shall also include Eligible Employees who have waived
participation in this Plan, if applicable.
(c) In any Plan Year in which the Plan is top heavy, but not super
top heavy (substituting 90% for 60% in Section 11.2 above),
Section 12.4(e) shall be applied by substituting "1.0" for
"1.25", unless subparagraph (b)(ii)(A) above is amended to
substitute "4%" for "3%" therein.
(d) In any Plan Year in which the Plan is super top heavy
(substituting 90% for 60% in Section 11.2), the factor of "1.25"
shall be changed to "1.0" in Section 12.4(e).
(e) In any Plan Year that the Plan ceases to be top heavy, the above
provisions shall no longer apply, except that the portion of a
Participant's Regular Profit Sharing Account which was vested
pursuant to paragraph (a) above shall remain vested.
(f) The minimum allocation provisions of paragraph (b) above shall,
to the extent necessary, be satisfied by special contributions
made by the Employer for that purpose. Neither Before-Tax
Contributions nor Employer Matching Contributions shall be taken
into account in satisfying the minimum allocation provisions of
paragraph (b) above.
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(g) The provisions of this Section 11.3 above shall not apply to any
Employee included in a unit of Employees covered by a collective
bargaining agreement if, within the meaning of Section 416(i)(4)
of the Code, retirement benefits were the subject of good faith
bargaining.
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ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 SPENDTHRIFT PROVISION
No benefit payable under the Plan will, except as otherwise
specifically provided by law, be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any attempt so to anticipate, alienate,
sell, transfer, assign, pledge, encumber or charge the same will be
void; nor will any benefit be in any manner liable for or subject to
the debts, contracts, loans, liabilities, engagements or torts of the
person entitled thereto, except for any loans or other indebtedness
due the Trust Fund within the limitations stated in Section 4975(d)(3)
of the Code and 1.401(a)-13 of the Code of Federal Regulations or
similar substitute provisions of applicable regulation. Upon the
occurrence or threatened occurrence of any act or thing in violation
of or contrary to the foregoing provision, then the benefit affected
will, in the discretion of the Benefits Committee, cease and
terminate, and in that event the Benefits Committee will make or hold
the payments which would otherwise be payable on account thereof to or
for the benefit of the Participant or Beneficiary involved, his
spouse, children or other dependents, or any of them, in such manner
and in such proportion as the Benefits Committee may deem proper.
This provision shall not apply to a Qualified Domestic Relations
Order, and those other domestic relations orders permitted to be so
treated by the Administrator under the provisions of the Retirement
Equity Act of 1984. The Administrator shall establish a written
procedure to determine the qualified status of domestic relations
orders and to administer distributions under such qualified orders.
Further, to the extent provided under a Qualified Domestic Relations
Order, a former spouse of a Participant shall be treated as the Spouse
or surviving Spouse for all purposes under the Plan.
12.2 BONDING
The requirement of giving bond by any Trustee or other fiduciary or of
giving surety on any bond shall be dispensed with to the extent
permitted or required by applicable law.
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12.3 NO CONTRACTUAL OBLIGATIONS
This Plan shall not constitute an express or implied contract between
the Employer and any Participant and nothing contained herein shall
give to any Employee or Participant the right to be retained in the
employ of the Employer or to interfere with the management of the
Employer's business or, except as otherwise provided by law, the right
of the Employer to discharge any Employee or Participant at any time,
nor shall it give the Employer the right to require any Employee to
remain in its employ, nor shall it interfere with the right of any
Employee to terminate his employment at any time.
12.4 LIMITATIONS ON CONTRIBUTIONS
(a) The maximum annual addition that may be contributed or allocated
to a Participant's accounts under this Plan, all other defined
contribution plans, all individual medical accounts (as defined
in Section 415(l)(2) of the Code) which are part of a defined
benefit plan, and, with respect to contributions paid or accrued
after December 31, 1985, all separate accounts for
post-retirement medical benefits of key employees (as defined in
Section 419A(d)(3) of the Code) under a welfare benefit fund
(as defined in Section 419(e) of the Code), maintained by all
Employers and Affiliated Employers for any Limitation Year
commencing on or after January 1, 1987 shall not exceed the
lesser of (i) or (ii) below:
(i) $30,000 (or, if greater, 25% of the defined benefit
dollar limitation in effect under Section 415(b)(1)(A)
of the Code for the Limitation Year), or
(ii) 25% of the Participant's "Section 415 Compensation" (as
defined in paragraph (b) below) for such Limitation
Year.
(b) The term "Section 415 Compensation" means wages, salaries, and
fees for professional services and other amounts received from
the Employer and all Affiliated Employers during the Limitation
Year (without regard to whether or not an amount is paid in
cash) for personal services actually rendered in the course of
employment with the Employer, to the extent such amounts are
includable in gross income, including, but not limited to,
overtime pay, tips, bonuses, commissions to paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, fringe benefits,
reimbursements, and expense allowances, and excluding the
following:
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(i) amounts contributed by the Employer or Affiliated
Employer on behalf of the Employee pursuant to a salary
deferral agreement under this Plan or any other cash or
deferred arrangement described in Section 401(k) of the
Code, to any salary reduction agreement pursuant to a
cafeteria plan established under Section 125 of the
Code, or to any other plan of deferred compensation,
and which are not includable in the Employee's gross
income for the taxable year in which contributed, or
any distributions from a plan of deferred compensation;
(ii) amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property)
held by the Employee either becomes freely transferable
or is no longer subject to a substantial risk of
forfeiture;
(iii) amounts realized with respect to the sale, exchange, or
other disposition of stock acquired under a qualified
stock option; and
(iv) other amounts which receive special tax benefits, or
contributions made by the Employer (whether or not
under a salary reduction agreement) towards the
purchase of an annuity described in Section 403(b) of
the Code (whether or not the amounts are excludable
from the Employee's gross income).
For Limitation Years beginning after December 31, 1991, for
purposes of applying the limitations of this Section, the term
"Section 415 Compensation" means the compensation actually paid
or includable in the Employee's gross income for the Limitation
Year.
(c) For purposes of the Plan, an annual addition consists of the
amounts allocated to a Participant's accounts during the
Limitation Year that constitute:
(i) Employer Contributions (including Cash Option
Deferrals) and forfeitures allocable to a Participant
under all plans (or portions thereof) maintained by the
Employer subject to Section 415(c) of the Code;
(ii) the Participant's employee contributions under all such
plans (or portions thereof); and
(iii) amounts allocated after March 31, 1984 to an individual
medical account (as defined in Section 415(l)(2) of the
Code) under a pension or annuity
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plan maintained by the Employer, or amounts derived from
contributions paid or accrued after December 31, 1985, in
taxable years ending after such date, which are
attributable to post-retirement medical benefits,
allocated to the separate account of a key employee (as
defined in Section 419(A)(d)(3) of the Code) under a
welfare benefit fund (as defined in Section 419(e) of the
Code) maintained by the Employer.
Any excess amount applied under paragraph (d) below in the
Limitation Year to reduce Employer Contributions shall be
considered annual additions for such Limitation Year.
A Participant's employee contributions as described in clause
(ii) above shall be determined without regard to any rollover
contributions, any employee contributions transferred directly
from another plan qualified under Section 401(a) of the Code, or
any Loan repayments.
Employer and employee contributions taken into account as annual
additions shall include "excess contributions" as defined in
Section 401(k)(8)(B) of the Code, "excess aggregate
contributions" as defined in Section 401(m)(6)(B) of the Code,
and "excess deferrals" as defined in Section 402(g) of the Code,
regardless of whether such amounts are distributed or forfeited,
unless such amounts constitute "excess deferrals" that were
distributed to the Participant no later than April 15 of the
taxable year following the taxable year of the Participant in
which such deferrals were made.
(d) In the event a Participant's total annual additions for a
Limitation Year exceed the limitations of paragraph (a) above,
Employer Contributions otherwise required with respect to such
Participants under Article 5 shall be reduced to the extent
necessary to comply with the limitations of paragraph (a) above.
If such reduction is not effected in time to prevent such
allocations for any Limitation Year from exceeding the
limitations of paragraph (a), such excess amount shall, if
permissible under Income Tax Regulation 1.415-6(b)(6)(iv), be
distributed to the Participant. If such excess amount is not
distributed, it shall be used to reduce Employer Contributions
for such Participant in the next Limitation Year, and each
succeeding Limitation Year, if necessary, provided that if the
Participant is not covered by the Plan at the end of the current
Limitation Year, the portion exceeding the limitation set forth
in paragraph (a) above shall be held unallocated in a suspense
account for such Limitation Year, and shall be reallocated in
the next Limitation Year to the
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accounts of other Participants to the extent such allocations do not
exceed the limitations of paragraph (a) above.
All amounts held in the suspense account shall be used to reduce
future Employer Contributions for all remaining Participants in
succeeding Limitation Years (subject to the limitations of
paragraph (a) above) before any Employer Contributions or
Before-Tax Contributions which would constitute annual additions
may be made to the Plan for the Limitation Year.
If a suspense account is in existence at any time during a
Limitation Year, it will participate in the allocation of the
Trust Fund's investment gains or losses.
Upon termination of the Plan, any unallocated amounts remaining
in a suspense account shall be allocated to the extent possible
under this Section for the Limitation Year of termination. Any
amount remaining in such suspense account upon termination of
the Plan shall be returned to the Employer, notwithstanding any
other provision of the Plan or Trust Agreement.
(e) If the Employer maintains, or at any time maintained, a
qualified defined benefit plan covering any Participant in this
Plan, the sum of the Participant's defined benefit plan fraction
and defined contribution plan fraction (as described below) for
any Limitation Year shall not exceed 1.0.
The DEFINED BENEFIT PLAN FRACTION for any Limitation Year is a
fraction, the numerator of which is the sum of the Participant's
projected annual benefits under all defined benefit plans
(whether or not terminated) maintained by the Employer, and the
denominator of which is the lesser of 1.25 times the dollar
limit determined under Sections 415(b) and 415(d) of the Code
for the Limitation Year, or 1.4 times 100% of the Participant's
highest average annual Section 415 Compensation (including any
adjustments under Section 415(b) of the Code) for any three
consecutive years.
The DEFINED CONTRIBUTION PLAN FRACTION for any Limitation Year
is a fraction, the numerator of which is the sum of the annual
additions to the Participant's accounts under all defined
contribution plans (whether or not terminated) maintained by the
Employer for the current and all prior Limitation Years
(including the annual additions attributable to the
Participant's nondeductible employee contributions to all
defined benefit plans (whether or not terminated) maintained by
the Employer,
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and the annual additions attributable to all welfare benefit
funds, as defined in Section 419(e) of the Code, and individual
medical accounts, as defined in Section 415(l)(2) of the Code)
maintained by the Employer, and the denominator of which is
the sum of the maximum aggregate amounts for the current and
all prior Limitation Years of service with the Employer
(regardless of whether a defined contribution plan was
maintained by the Employer). The maximum aggregate amount in
any Limitation Year is the lesser of 1.25 times the dollar
limitation determined under Sections 415(b) and 415(d) of the
Code in effect under Section 415(c)(1)(A) of the Code, or 35% of
the Participant's Section 415 Compensation for such Limitation
Year.
Any adjustment necessary to comply with the limitations of this
paragraph (e) shall be made in the Participant's benefit payable
under the relevant defined benefit plan; but under no
circumstances may the accrued benefit of a Participant in a
defined benefit plan decrease as a result of a Plan amendment to
change the combined plan limits.
(f) For purposes of this Section, the Employer and all Affiliated
Employers shall be considered one employer, and the limitations
shall be applicable to the total benefits received from the
Employer and all Affiliated Employers. Furthermore, in
determining who is an Affiliated Employer for this purpose, the
phrase "more than 50%" shall be substituted for "at least 80%"
each place it appears in Section 1563(a)(i) of the Code.
12.5 NONDISCRIMINATION LIMITATIONS ON PARTICIPANT CONTRIBUTIONS AND
EMPLOYER MATCHING CONTRIBUTIONS
(a) For purposes of this Section, the following terms shall have the
meaning indicated below:
(i) "ACTUAL DEFERRAL PERCENTAGE" means the average
(expressed as a percentage) of the deferral percentages
of Eligible Employees in a group. An Eligible
Employee's deferral percentage is equal to the ratio
(expressed as a percentage) of the Employee's
Before-Tax Contributions and Cash Option Deferrals
(including any Before-Tax Contributions and Cash Option
Deferrals returned to the Employee pursuant to Section
4.5(b) but excluding Before-Tax Contributions and Cash
Option Deferrals returned to the Employee pursuant to
Section 12.4(d) contributed to the Trust Fund in the
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Plan Year to the Eligible Employee's Compensation for
that Plan Year. The individual ratios and the
percentages for any groups of individuals shall be
calculated to the nearest one-hundredth of one percent
(.01%).
(ii) "ACTUAL CONTRIBUTION PERCENTAGE" means the average
(expressed as a percentage) of the contribution
percentages of Eligible Employees in a group. An
Eligible Employee's contribution percentage is equal to
the ratio of the Employer Matching Contributions
contributed to the Trust Fund in the Plan Year to the
Eligible Employee's Compensation for that Plan Year.
The individual ratios and the percentages for any
groups of individuals shall be calculated to the
nearest one-hundredth of one percent (.01%).
(iii) "ELIGIBLE EMPLOYEE" means any Employee of the Employer
who, during the Plan Year, is eligible to make
Before-Tax Contributions or Cash Option Deferrals in
accordance with the provision of Sections 4.1 and 5.1
respectively, or who is eligible to receive Employer
Matching Contributions in accordance with the
provisions of Section 5.2. An individual shall be
treated as an Eligible Employee for a Plan Year if he
so qualifies for any part of the Plan Year.
(iv) "COMPENSATION" means the Employee's Section 415
Compensation (as defined in Section 12.4(b)) but not in
excess of the limit under Section 401(a)(17) of the
Code, and including any amounts contributed by the
Employer or an Affiliated Employer on behalf of the
Employee pursuant to a salary deferral agreement or
cash option deferral under this Plan (or any other cash
or deferred arrangement described in Section 401(k) of
the Code) or a salary reduction agreement pursuant to a
cafeteria plan established under Section 125 of the
Code, or toward the purchase of an annuity described in
Section 403(b) of the Code.
Notwithstanding the foregoing, in determining the
amount of Compensation to be taken into account for
purposes of this Section, the Employer may limit the
period used to determine an Employee's Compensation for
the Plan Year to the portion of the Plan Year in which
the Employee was an Eligible Employee (as defined in
subparagraph (iii) above), provided that this limit is
applied uniformly to all Eligible Employees with
respect to such Plan Year.
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(b) For purposes of determining the Actual Deferral Percentage and
Actual Contribution Percentage of an Eligible Employee who is a
5% owner or one of the ten most Highly Compensated Employees,
and, for purposes of determining his excess contributions and
excess aggregate contributions, if any, the Compensation,
Before-Tax Contributions, Cash Optional Deferrals, and Employer
Matching Contributions of such Employee shall include the
Compensation, Before-Tax Contributions, Cash Option Deferrals,
and Employer Matching Contributions for the Plan Year of his
family members. For this purpose, the term "family member"
means such Employee's Spouse and lineal ascendants and
descendants, and the spouses of such lineal ascendants and
descendants. Family members shall be disregarded in determining
the Actual Deferral Percentage and Actual Contribution
Percentage for Eligible Employees who are not 5% owners or among
the ten most Highly Compensated Employees.
(c) If more than one plan providing for a cash or deferred
arrangement, or for matching contributions, or employee
contributions (within the meaning of Sections 401(k) and 401(m)
of the Code) is maintained by the Employer or an Affiliated
Employer, then the individual ratios of any Highly Compensated
Employee who participates in more than one such plan or
arrangement shall, for purposes of determining the individual's
Actual Contribution Percentage and Actual Deferral Percentage,
be determined as if all such arrangements were a single plan or
arrangement. If a Highly Compensated Employee participates in
two or more cash or deferred arrangements that have different
plan years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single
arrangement. Notwithstanding the foregoing, plans that are
mandatorily disaggregated pursuant to regulations under Section
401(k) of the Code shall not be aggregated for purposes of this
paragraph but shall be treated as separate plans.
(d) In the event that this Plan satisfies the requirements of
Sections 401(a)(4) and 410(b) of the Code only if aggregated
with one or more other plans, and for Plan Years beginning after
December 31, 1988 all such plans have the same Plan Year, then
this Section shall be applied by determining the Actual Deferral
Percentage and Actual Contribution Percentage of Eligible
Employees as if all such plans were a single plan.
(e) In accordance with the nondiscrimination requirements of Section
401(k) of the Code, the Committee shall establish a Compensation
Deferral Limit with respect to Before-Tax Contributions and the
Cash Option Share credited to a Participant's
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Total Account during a Plan Year and may adjust such deferral
limit (in accordance with paragraph (g)(i) below) from time to
time during the Plan Year in order to satisfy one of the
following tests:
(i) The Actual Deferral Percentage of the group of Eligible
Employees who are Highly Compensated Employees for the
Plan Year shall not exceed the Actual Deferral
Percentage of the group of Eligible Employees who are
Nonhighly Compensated Employees for the same Plan Year
multiplied by 1.25.
(ii) The Actual Deferral Percentage of the group of Eligible
Employees who are Highly Compensated Employees for the
Plan Year shall not exceed the Actual Deferral
Percentage of the group of Eligible Employees who are
Nonhighly Compensated Employees for the same Plan Year
multiplied by two, provided that the Actual Deferral
Percentage for such Highly Compensated Employees is not
more than two percentage points higher than the Actual
Deferral Percentage for such Nonhighly Compensated
Employees.
(f) In accordance with the nondiscrimination requirements of Section
401(m) of the Code, the Committee shall establish a Contribution
Percentage Limit with respect to Employer Matching Contributions
credited to a Participant's Total Account, and may adjust such
percentage limit (in accordance with paragraph (g)(i) below)
from time to time during the Plan Year in order to satisfy one
of the following tests:
(i) The Actual Contribution Percentage of the group of
Eligible Employees who are Highly Compensated Employees
for the Plan Year shall not exceed the Actual
Contribution Percentage of the group of Eligible
Employees who are Nonhighly Compensated Employees for
the same Plan Year multiplied by 1.25.
(ii) The Actual Contribution Percentage of the group of
Eligible Employees who are Highly Compensated Employees
for the Plan Year shall not exceed the Actual
Contribution Percentage of the group of Eligible
Employees who are Nonhighly Compensated Employees for
the same Plan Year, multiplied by two, provided that
the Actual Contribution Percentage for such Highly
Compensated Employees is not more than two percentage
points higher than
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the Actual Contribution Percentage for such Nonhighly
Compensated Employees.
(g) The Committee may take the following actions to assure
compliance with the nondiscrimination limitations of Section
401(k) and/or Section 401(m) of the Code:
(i) If the average percentages described in paragraphs (e)
and/or (f) above applicable to the group of Eligible
Employees who are Highly Compensated Employees are
expected to exceed the maximum average percentage
necessary to comply with the rules described in said
paragraphs, the Committee may direct that the Actual
Deferral Percentage and/or the Actual Contribution
Percentage, as the case may be, for each member of such
group of Highly Compensated Employees be reduced,
prospectively only, beginning with the Highly Compensated
Employee whose Actual Deferral Percentage or Actual
Contribution Percentage, as the case may be, is the
highest so that the limit is not exceeded.
(ii) If the average percentages described in paragraphs (e)
and/or (f) above applicable to the group of Eligible
Employees who are Highly Compensated Employees exceed the
maximum average percentage necessary to comply with the
rules described in said paragraphs, the Committee shall
direct the successive reductions of the highest individual
Actual Deferral Percentage and/or Actual Contribution
Percentage attributable to one or more members of such
group of Highly Compensated Employees (beginning with the
Highly Compensated Employee whose Actual Deferral
Percentage or Actual Contribution Percentage, as the case
may be, is the highest) until the average percentage for
such group of Highly Compensated Employees does not exceed
the applicable limit.
The reduction of a Highly Compensated Employee's Actual Deferral
Percentage and/or Actual Contribution Percentage shall be made
in accordance with the following procedure:
FIRST, if a Highly Compensated Employee's Actual Deferral
Percentage for the Plan Year exceeds the limit described in
paragraph (e) above, his Actual Deferral Percentage shall be
reduced by returning to him all (or a portion) of the amount
contributed for such Plan Year in excess of such limit.
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Any amounts to be returned shall first be reduced, but not below
zero, by any excess deferrals contributed for the Plan Year and
previously returned to the Employee in the taxable year ending
with or within that Plan Year pursuant to Section 4.5.
The reduction of excess contributions shall be made by first
reducing the Participant's Supplemental Before-Tax Contributions
and, if that is insufficient, by reducing his Basic Before-Tax
Contributions and, if that is insufficient, by reducing his Cash
Option Deferrals.
SECOND, in the case of a Participant to whom Basic Before-Tax
Contributions are returned, the amount of his Employer Matching
Contributions shall be reduced by distributing to the
Participant his Employer Matching Contributions that were
attributable to such Basic Before-Tax Contributions.
THIRD, if a Highly Compensated Employee's Actual Contribution
Percentage for the Plan Year exceeds the limit described in
paragraph (f) above, his Actual Contribution Percentage shall be
reduced by returning to him the amount contributed for such Plan
Year in excess of such limit.
The reduction of excess aggregate contributions shall be made by
distributing Employer Matching Contributions to the Participant
on a pro rata basis.
Contributions which are returned, forfeited or distributed shall
be adjusted for allocable gains and losses for the Plan Year
with respect to which the contributions were made in accordance
with the method described below for such contributions.
ALLOCATING INCOME TO EXCESS CONTRIBUTIONS. Excess contributions
shall be adjusted for allocable gains or losses for the Plan
Year in which such excess contributions arose by multiplying the
gains or losses credited to the Participant's Basic and
Supplemental Before-Tax Contribution Accounts and Cash Option
Deferred Account for such Plan Year by a fraction, the numerator
of which is the Participant's excess contributions for the Plan
Year, and the denominator of which is the sum of (i) the balance
in the Participant's Basic and Supplemental Before-Tax
Contribution Accounts and Cash Option Deferred Account as of the
beginning of the Plan Year, and (ii) the amount of Before-Tax
Contributions and Cash Option Deferrals credited to the
Participant's Total Account for the Plan Year.
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ALLOCATING INCOME TO EXCESS AGGREGATE CONTRIBUTIONS. Excess
aggregate contributions shall be adjusted for allocable gains or
losses for the Plan Year in which such excess aggregate
contributions arose by multiplying the gains or losses credited
to the Participant's Employer Matching Contribution Account for
such Plan Year by a fraction, the numerator of which is the
Participant's excess aggregate contributions for the Plan Year,
and the denominator of which is the sum of (i) the balance in
the Participant's Employer Matching Contribution Account as of
the beginning of the Plan Year, and (ii) the amount of Employer
Matching Contributions credited to the Participant's Total
Account for the Plan Year.
Excess contributions and excess aggregate contributions (and
income allocable thereto) shall be returned, distributed, or, if
applicable, forfeited, not later than the last day of the Plan
Year following the close of the Plan Year in which such excess
arose. Excess contributions shall be allocated to Participants
who are subject to the family aggregation rules of Section
414(q)(6) of the Code in the manner prescribed by applicable
regulations.
(i) For purposes of this Section, the "aggregate limit" for any Plan
Year shall mean a percentage equal to the greater of (i) or (ii)
below:
(i) The percentage equal to the sum of (A) and (B) below:
(A) 125% of the greater of:
(1) The Actual Deferral Percentage for
Eligible Employees who are Nonhighly
Compensated Employees for the Plan Year,
or
(2) The Actual Contribution Percentage of
such Eligible Employees, and
(B) 2% plus the lesser of (A)(1) or (A)(2) above. In
no event, however, shall this percentage exceed
200% of the lesser of (A)(1) or (A)(2) above.
(ii) The percentage equal to the sum of (A) and (B) below:
(A) 125% of the lesser of:
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(1) The Actual Deferral Percentage for
Eligible Employees who are Nonhighly
Compensated Employees for the Plan Year,
or
(2) The Actual Contribution Percentage of
such Eligible Employees, and
(B) 2% of the greater of (A)(1) or (A)(2) above. In
no event, however, shall this percentage exceed
200% of the greater of (A)(1) or (A)(2) above.
The "aggregate limit" shall be calculated to the nearest
one-hundredth of one percent (.01%).
The "aggregate limit" shall be applied to reduce allocations
otherwise permissible for a Plan Year if after application of
paragraph (g) above the sum of the average percentages described
in paragraphs (e) and (f) above applicable to the group of
Eligible Employees who are Highly Compensated Employees exceeds
the "aggregate limit" for such Plan Year.
The "aggregate limit" shall not apply to reduce allocations
otherwise permissible for a Plan Year unless the Actual Deferral
Percentage and the Actual Contribution Percentage for Eligible
Employees who are Highly Compensated Employees for the Plan Year
each exceed 125% of the corresponding percentages determined for
Eligible Employees who are Nonhighly Compensated Employees for
the Plan Year.
The reduction of the Actual Contribution Percentage and/or
Actual Deferral Percentage of the group of Eligible Employees
who are Highly Compensated Employees shall be applied to those
Highly Compensated Employees who are eligible to make Before-Tax
Contributions or Cash Option Deferrals, or are eligible to
receive Employer Matching Contributions. Reductions shall be
made in the manner described in paragraph (g) above to the
extent necessary to comply with the aggregate limit, except that
the reductions shall be applied first to reduce Actual
Contribution Percentages and then, if necessary, to reduce
Actual Deferral Percentages.
(j) The Committee shall maintain sufficient records to demonstrate
that the Plan satisfies the nondiscrimination tests described in
paragraphs (e) and (f) above.
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ARTICLE 13
AMENDMENT AND TERMINATION
13.1 AMENDMENT
The Sponsoring Employer may amend the Plan, from time to time, by a
written instrument duly executed by an authorized officer of the
Sponsoring Employer pursuant to a resolution of the Board and
delivered to the Trustee, provided that no amendment which affects the
Trustee shall be effective without the Trustee's consent.
13.2 MERGER, CONSOLIDATION OR TRANSFER OF ASSETS
In the case of any merger or consolidation of the Trust Fund with, or
transfer of assets or liabilities of the Trust Fund to, any trust
under any other plan, such transaction shall be structured in such a
way that each Participant would (if the Plan then terminated) receive
a benefit immediately after the transaction which is equal to or
greater than the benefit he would have been entitled to receive
immediately before the transaction (if the Plan had then terminated).
13.3 TERMINATION
The Sponsoring Employer may terminate the Plan established hereunder
at its option at any time by written resolution of the Board. Without
thereby undertaking a legal duty, however, the Sponsoring Employer
hereby expresses the intention of establishing a permanent plan under
which the Sponsoring Employer will make recurring and substantial
contributions. The Plan shall be automatically terminated if the
Sponsoring Employer is adjudicated bankrupt, makes an assignment for
benefit of creditors, suffers the appointment of a receiver, or
dissolves, except that the reorganization of the Employer under the
applicable sections of the Code shall not be deemed to result in
dissolution for purposes of this Section 13.3.
A participating Employer may discontinue or revoke its participation
in the Plan with respect to its Eligible Employees. At the time of
discontinuance or revocation, the Committee may authorize the Trustee
to transfer, deliver, and assign vested Trust Fund assets attributable
to the Participants employed by such participating Employer to a new
trustee as shall have been designated by the participating Employer,
in the event that it has established a separate qualified plan for its
employees. If a separate qualified plan
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is not established, the Trustee shall retain such assets for the
benefit of the Participants employed by such participating Employer.
In no event shall any part of the corpus or income of the Trust Fund
as it relates to such participating Employer be used for or diverted
to purposes other than for the exclusive benefit of the Participants
employed by such participating Employer and their Beneficiaries.
13.4 CONSEQUENCES OF TERMINATION
In the event that the Board shall decide to terminate the Plan, or in
the event of a partial termination or complete cessation of Employer
Contributions, the rights of Participants to the amounts in their
Total Accounts shall be fully vested. Thereupon, the Benefits
Committee shall direct the Trustee to liquidate the entire Trust Fund
after payment of all expenses and proportional adjustment of Total
Accounts to reflect such expenses and the value of the Fund. The
Trustees shall make payment of all amounts due to the Participants in
accordance with the applicable provisions of the Plan.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of this Plan
instrument by the Sponsoring Employer and the Trustee, the Sponsoring Employer
and the Trustee have caused these presents to be executed on their behalf and
the Corporate Seal of the Sponsoring Employer is to be hereunder affixed as of
this 22nd day of March, 1994.
ATTEST:
/s/ Eric R. Fischer
--------------------
Clerk
UST CORP.
By: /s/ Neal F. Finnegan
--------------------
President
UNITED STATES TRUST COMPANY AS TRUSTEE
By: /s/ Domenic Colasacco
---------------------
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(c) The reduction of a Highly Compensated Employee's Actual Deferral
Percentage shall be made in accordance with the following
procedure:
(i) If a Highly Compensated Employee's Actual Deferral
Percentage for the Plan Year exceeds the limit
described in paragraph (d) above, his Actual
Deferral Percentage shall be reduced by returning
to him all of the amount contributed for such Plan
Year in excess of such limit.
(ii) Excess contributions (and income allocable thereto)
shall be returned, distributed, or, if applicable,
forfeited, within 2 1/2 months of the beginning of
the next Plan Year, if practicable, but in no event
no later than the last day of the Plan Year
following the close of the Plan Year in which such
excess arose.
The following method shall be used to determine the
income allocable on excess contributions
accumulated from the last day of the Plan Year in
which the excess contributions arose to the date of
distribution of such excess ("gap period"):
The income on the excess contributions for the gap
period shall equal 10% of the income earned in the
Plan Year in which the excess arose multiplied by
the number of calendar months contained in the gap
period to the date of distribution of such excess.
A distribution of the excess occurring on one of
the first fifteen days of a calendar month shall be
deemed to have been made on the last day of the
preceding month. A distribution occurring after
the fifteenth day of a calendar month shall be
deemed to have been made on the first day of the
next succeeding calendar month.
(d) Notwithstanding anything in the Plan to the contrary and to the
extent permitted by applicable law, the Plan may be restructured
into component parts based on employee groups or any other
methods permitted by applicable law for a Plan Year in order to
determine whether the Plan meets the Code Section 401(k)
nondiscrimination requirements and/or the Code Section 401(a)(4)
nondiscrimination requirements for such year.
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