1
EXHIBIT 10(d)
UST CORP.
EMPLOYEE SAVINGS PLAN
(AMENDED AND RESTATED EFFECTIVE
AS OF JULY 1, 1996)
May 28, 1997
2
UST CORP.
EMPLOYEE SAVINGS PLAN
TABLE OF CONTENTS
PAGE
PREAMBLE .............................................................................. (i)
ARTICLE 1 DEFINITIONS................................................................... 1
ARTICLE 2 SERVICE ..................................................................... 14
2.1 Service.............................................................. 14
2.2 Year of Service...................................................... 14
2.3 One-Year Break in Service............................................ 14
ARTICLE 3 PARTICIPATION ................................................................ 16
3.1 Eligibility to Participate........................................... 16
3.2 Elections Required................................................... 17
3.3 Reemployed Employee.................................................. 18
ARTICLE 4 PARTICIPANT CONTRIBUTIONS..................................................... 19
4.1 Participant Contributions............................................ 19
4.2 Increase or Decrease in Rate of Contributions........................ 20
4.3 Suspension and Resumption of Contributions........................... 20
4.4 Rollover Contributions............................................... 21
4.5 Maximum Amount of Salary Deferral and Cash
Option Deferral...................................................... 22
4.6 Participant Contributions for Returning Veterans..................... 23
ARTICLE 5 EMPLOYER CONTRIBUTIONS ....................................................... 25
5.1 Employer Profit Sharing Contribution................................. 25
5.2 Employer Matching Contributions...................................... 27
5.3 Form and Timing of Employer Contributions............................ 28
5.4 Employer Contributions for Returning Veterans........................ 28
3
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 6 INVESTMENT PROVISIONS AND PARTICIPANT ACCOUNTS................................ 29
6.1 Investment Funds..................................................... 29
6.2 Investment Election.................................................. 30
6.3 Change in Investment Election........................................ 30
6.4 Responsibility of Participant in Selecting
Investment Funds..................................................... 31
6.5 Establishment of Participant Accounts................................ 31
6.6 Fair Market Value of Trust Assets.................................... 32
6.7 Allocation of Trust Assets........................................... 32
6.8 Correction of Error.................................................. 32
6.9 Allocation Shall Not Vest Title...................................... 33
ARTICLE 7 BENEFITS ..................................................................... 34
7.1 Nature of Benefits .................................................. 34
7.2 Medium and Method of Distribution ................................... 34
7.3 Timing of Distribution .............................................. 34
7.4 Vesting ............................................................. 35
7.5 Forfeitures.......................................................... 35
7.6 Permanent and Total Disability ...................................... 38
7.7 Distribution on Death ............................................... 39
7.8 Distribution to Alternate Payees .................................... 40
7.9 Investment of Deferred Distributions ................................ 41
7.10 Designation of Beneficiary .......................................... 41
7.11 Advice of Benefits .................................................. 42
7.12 Incapacity .......................................................... 42
7.13 Proof of Claim ...................................................... 42
7.14 Direct Rollover Distributions........................................ 42
7.15 General Distribution Requirements.................................... 43
ARTICLE 8 LOANS ..................................................................... 45
8.1 Loan Availability ................................................... 45
8.2 Loan Conditions ..................................................... 46
8.3 Loan Fund............................................................ 47
8.4 Loans to Parties-In-Interest ........................................ 48
8.5 In Service Withdrawals After Age 59-1/2.............................. 48
4
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 9 THE BENEFITS COMMITTEE........................................................ 49
9.1 Establishment and Composition ....................................... 49
9.2 Meetings ............................................................ 49
9.3 Powers and Duties ................................................... 49
9.4 Instructions ........................................................ 50
9.5 Administration ...................................................... 50
9.6 Compensation of Benefits Committee .................................. 50
9.7 Prudence ............................................................ 50
9.8 Claims Procedure .................................................... 50
9.9 Insurance ........................................................... 51
ARTICLE 10 TRUSTEE ..................................................................... 52
10.1 Investment Responsibility ........................................... 52
10.2 Custody ............................................................. 53
10.3 Distributions ....................................................... 53
10.4 Allocation of Responsibilities Among Trustees
Regarding Plan Assets ............................................... 53
10.5 Fiduciary Status .................................................... 53
10.6 Plan and Trust Expenses ............................................. 53
10.7 Resignation ......................................................... 54
10.8 Trustee's Miscellaneous Powers ...................................... 54
10.9 Trustee's Accounts .................................................. 55
10.10 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
5
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
12.6 Leased Employees..................................................... 75
12.7 Exclusive Benefit of Participants.................................... 76
12.8 Return of Contributions.............................................. 76
ARTICLE 13 AMENDMENT AND TERMINATION .................................................... 77
13.1 Amendment ........................................................... 77
13.2 Merger, Consolidation or Transfer of Assets ......................... 77
13.3 Termination ......................................................... 77
13.4 Consequences of Termination ......................................... 78
6
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,
1994 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 certain provisions of
the Plan and incorporate prior amendments; and
NOW, THEREFORE, in consideration of the foregoing, the Plan is hereby
amended and restated as hereinafter set forth, effective July 1, 1996 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 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.
(i)
7
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)
8
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,
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 under
(2)
9
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
Compensation 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.
(3)
10
1.19 "EFFECTIVE DATE" means July 1, 1996 for this amended and restated Plan.
The original Effective Date of the Plan was January 26, 1967.
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 the Employer or an
Affiliated Employer. The term "Employee" also includes any leased
employees of the Employer or an Affiliated Employer within the meaning
of Section 414(n) or Section 414(o) of the Code to the extent such
employees are deemed to be "Employees" in accordance with the provisions
of Section 12.6.
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.
(4)
11
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.
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) or such other dates designated by the
Benefits Committee.
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;
(5)
12
(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 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
(6)
13
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 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 (e) 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, or Leave of Absence. (No credit towards Hours of Service
shall be given on account of severance.)
(7)
14
(c) An Employee who is on a Maternity/Paternity Leave of Absence shall
be credited with Hours of Service during the Maternity/Paternity
Leave of Absence up to the number of Hours of Service which would
have been credited to such Employee but for such absence, or if
the Benefits Committee is unable to determine such number of Hours
of Service, eight Hours of Service per day of such absence up to a
maximum of 501 Hours of Service. Hours of Service under this
paragraph (c) shall be credited in the manner specified in Section
2.3 hereof.
(d) 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 (d). Hours credited under this paragraph (d) 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.
(e) 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 (A) the
"Disability" requirements hereunder, or (B) is absent due
to service in the Armed Forces of the United States and
returns with reemployment rights under applicable Federal
law(s), such Employee shall continue to earn Hours of
Service 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.
(8)
15
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;
(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.
(9)
16
1.32 "LOAN" means the amount provided as a Loan under the Plan to
Participants, pursuant to Article 8.
1.33 Reserved.
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.
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 "QUALIFIED MILITARY SERVICE" means any service in the Armed Forces (or
other uniformed service as provided by USERRA).
(10)
17
1.43 "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.
1.44 "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.
1.45 "SPONSORING EMPLOYER" means UST Corp. or its successor or successors.
1.46 "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.
1.47 "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
(11)
18
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.
1.48 "TRUST FUND" means the assets of the Trust Fund held by the Trustee
hereunder.
1.49 "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.
(12)
19
1.50 "USERRA" means the Uniformed Services Employment and Reemployment Rights
Act of 1994.
1.51 "VALUATION" means the valuation of the assets of the Trust Fund and
adjustment of Participants' Accounts.
1.52 "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.
1.53 "YEAR OF SERVICE" means such year as specified in Article 2.
1.54 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.
(13)
20
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.
(14)
21
A Break in Service shall not occur with respect to an Employee who is
absent from work on account of Qualified Military Service, provided such
Employee is reemployed by the Employer within the period during which
his or her reemployment rights are protected by USERRA.
(15)
22
ARTICLE 3
PARTICIPATION
3.1 ELIGIBILITY TO PARTICIPATE
(a) Current Participants
Each Eligible Employee of the Employer who was participating in
the Plan on September 30, 1995 shall continue to participate
hereunder, and shall be eligible to have a Before-Tax
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.
(b) Participation on October 1, 1995
Notwithstanding the above, each Eligible Employee on September
30, 1995 who is scheduled to work at least 1,000 hours per year
shall be eligible to have Before-Tax Contributions made on his
behalf pursuant to Section 4.1 and receive Employer Matching
Contributions pursuant to Section 5.2, provided he has made the
required elections pursuant to Section 3.2.
(c) Participation on or after January 1, 1996 and prior to January 1,
1997
(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, 1996, each Participant shall, on the
first Entry Date coincident with or next following the
earliest date on which he has completed (A) 500 or more
hours in the first six months of employment, (B) 1,000 or
more hours on the first anniversary of employment, or (C)
1,000 or more hours in any subsequent calendar year, be
eligible to have Before-Tax Contributions 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.
For purposes of this subparagraph, "six months of
employment" shall mean that the Participant is employed on
the date which is six months after the date the
Participant is first credited with an Hour of Service.
(d) Participation on January 1, 1997
(16)
23
Notwithstanding the above, each Eligible Employee on November 15,
1996 who is scheduled to work at least 20 hours per week shall be
eligible on January 1, 1997 to have Before-Tax Contributions made
on his behalf pursuant to Section 4.1 and receive Employer
Matching Contributions pursuant to Section 5.2, provided he has
made the required elections pursuant to Section 3.2.
(e) Participation after January 1, 1997
Each Participant shall, on the first Entry Date coincident with
or next following the earliest date on which he has completed (i)
500 or more hours in the first six months of employment, (ii)
1,000 or more hours on the first anniversary of employment, or
(iii) 1,000 or more hours in any subsequent calendar year, be
eligible to have Before-Tax Contributions 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. For purposes of this
subparagraph, "six months of employment" shall mean that the
Participant is employed on the date which is six months after the
date the Participant is first credited with an Hour of Service.
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 15 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, 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
(17)
24
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
(18)
25
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
10% (12% effective January 1, 1997) 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 5% (6% effective
January 1, 1997) 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 5% (6% effective January 1, 1997) 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.
(19)
26
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
15 days in advance of such Change Date the Participant files with the
Benefits Committee a new Salary Deferral Agreement. In addition, a
Participant may, within one week of a change in his base rate of
compensation, elect to change the rate of his Before-Tax Contributions
to be effective as soon as practicable following the Participant's
election. A 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 15 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.
(20)
27
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 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.
(21)
28
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 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.
(22)
29
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.
If the Participant fails to notify the Benefits Committee by the
2-month period specified above, no refund will be made.
4.6 PARTICIPANT CONTRIBUTIONS FOR RETURNING VETERANS
(a) If a Participant incurs a Leave of Absence on account of
Qualified Military Service and such Participant is reemployed by
the Employer within the period during which his or her
reemployment rights are protected by USERRA, upon reemployment
such Participant shall be entitled to contribute to the Plan, in
accordance with and subject to the limitations provided in
Section 414(u) of the Code, the Before-Tax Contributions he or
she would have been entitled to make had he or she remained
actively employed by the Employer during such Leave of Absence.
(b) All such contributions must be made during the period which
commences on the date of such a Participant's reemployment and
has the same length as the lesser of (i) 3 multiplied by the
period of such Participant's Qualified Military Service and (ii)
five years. All such contributions will be invested in accordance
with Section 6.2 and shall be credited with investment earnings
(or losses) as provided in Section 6.7.
(c) For purposes of determining the amount of the Before Tax
Contributions a Participant may contribute pursuant to paragraph
(a) above, such Participant's Compensation during his or her
Qualified Military Service shall be equal to: (i) the
Compensation he
(23)
30
or she would have received during the period of Qualified
Military Service based on the rate of pay he or she would have
received but for the absence during the period of Qualified
Military Service or (ii) if the Compensation he or she would have
received during the period of Qualified Military Service is not
reasonably certain, his or her average Compensation during the
12-month period immediately before the Qualified Military Service
or, if shorter, the period of employment immediately before the
Qualified Military Service.
(24)
31
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.
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 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 either
receive an immediate cash payment of or to defer the Cash
Option Share under this Section, it shall be assumed that
he intended to receive his Cash Option Share in cash.
(25)
32
(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 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) RESPONSIBILITY OF COMMITTEE AND TRUSTEE
(26)
33
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.
(f) 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 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 Employer Matching Contributions made on behalf
of each such Participant shall be based upon the Participant's Basic
Before-Tax Contributions and Compensation since the previous Valuation
Date, and shall be equal to the sum of (a) 100% of the Participant's
Basic Before-Tax Contributions which do not exceed 1% (2% effective
January 1, 1997) of Compensation, plus (b) 25% of the Participant's
Basic Before-Tax Contributions which exceed 1% (2% effective January 1,
1997) of Compensation.
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.
(27)
34
5.3 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.
5.4 EMPLOYER MATCHING CONTRIBUTIONS
If a Participant incurs a Leave of Absence on account of Qualified
Military Service and such Participant is reemployed by the Employer
within the period during which his or her reemployment rights are
protected by USERRA, Employer Matching Contributions which would have
been credited to the Employer Matching Contribution Account had such
former Participant remained actively employed by the Employer during
such Leave of Absence shall be made to the extent provided in and in
accordance with Section 414(u) of the Code; and Employer Profit Sharing
Contributions which would have been credited to the Employer Profit
Sharing Contribution Account had such former Participant remained
actively employed by the Employer during such Leave of Absence shall be
made in accordance with Section 414(u) of the Code.
(28)
35
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.
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.
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.
(29)
36
6.2 INVESTMENT ELECTION
(a) The Plan permits Participants or Beneficiaries to exercise
control over the assets in his Total Account in a manner which is
intended to bring the Plan within the rule of Section 404(c) of
the Employee Retirement Income Security Act of 1974. By allowing
Participants and Beneficiaries to elect among several investment
funds, the Employer intends that fiduciaries of the Plan be
relieved of fiduciary responsibility for any loss, or by reason
of any breach, which results from the Participant's or
Beneficiary's exercise of control.
The Participant's Total Account shall be invested in one or a
combination of the available investment alternatives established
and maintained by the Trustee. These alternatives may include,
but are not limited to: an Equity Fund, seeking growth of capital
by investing in a wide range of companies, a Stable Asset Fund,
consisting primarily of FDIC-insured deposits, and a Balanced
Fund, investing in both stocks and fixed-income securities. The
Employer and/or Trustee reserves the right to add to or change
the types of investment alternatives available to Participants
and Beneficiaries.
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 5%, up to a
total of 100%. Participant's investment elections must total
100%. A Participant or Beneficiary may elect to have all of his
Total Account invested in a single investment vehicle.
(b) During the absence of a valid election by a Participant, the
contributions made by or on behalf of such Participant, shall be
credited to the fund with the least investment risk.
6.3 CHANGE IN INVESTMENT ELECTION
A Participant may elect, effective as of any Change Date, to reallocate
in 5% increments his Basic and Supplemental Before-Tax Contribution
Accounts, Employer Matching Contribution Account, and Rollover Account
among the investment funds, provided that the Participant files with the
Benefits Committee a new election on the appropriate form at such time
and in such manner as the Benefits Committee may require. Any elections
made in accordance with this paragraph shall apply to the amounts
existing in the Participant's Basic
(30)
37
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.
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;
(31)
38
(v) Cash Option Deferred Account; and
(vi) Rollover Account.
(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.
(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.
(32)
39
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.
(33)
40
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 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. Distribution shall be made no later than 60 days
after the close of the Plan Year in which occurs the latest of the
Participant's (A) Normal Retirement Date, (B) tenth anniversary of Plan
participation, or (C) separation from service with the Employer and all
Affiliated Employers.
If the value of a Participant's vested Account has ever exceeded $3,500
during his participation in the Plan, payment to such 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 prior to the date distributions
must commence in accordance with IRC Section 401(a)(9).
(34)
41
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:
(a) Normal Retirement Date,
(b) death (while actively employed),
(c) Disability Retirement Date, or
(d) September 30, 1995.
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
(35)
42
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.
(b) After January 1, 1985:
(i) Timing of Forfeitures:
If a Participant who terminates his employment with the
Employer before his Regular Profit Sharing Account had
become 100% vested and receives a distribution of the
vested portion of his Regular Profit Sharing Account,
the non-vested amount remaining in such Participant's
Regular Profit Sharing Account, after distribution of
the vested portion of his Regular Profit Sharing
Account, shall be forfeited as of the last day of the
Plan Year in which his termination of employment from
the Employer occurs and has received the vested portion
of his Regular Profit Sharing Account. If a Participant
who terminates employment before his Regular Profit
Sharing Account had become 100% vested does not receive
a distribution of the vested portion of his Regular
Profit Sharing Account, the non-vested amount in such
Participant's Regular Profit Sharing Account shall be
forfeited on the last day of the Plan Year during which
the Participant incurs five consecutive One Year Breaks
in Service. 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 - Repayments Permitted Within Five Years of
Reemployment:
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.
(36)
43
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,
(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;
(37)
44
(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:
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 total disability which
satisfies the requirements for benefit entitlement under any long-term
disability plan or program sponsored by the Employer and the Benefits
Committee concludes that such total disability is likely to be
permanent.
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.
(38)
45
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.
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.
(39)
46
(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 prior to
the date distributions must commence in accordance with IRC
Section 401(a)(9). 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 Participant's Account to
which the Beneficiary is entitled under this Section did not, at
any time, exceed $3,500 during the Participant's participation in
the Plan, 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.
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 date 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 as soon
as administratively possible.
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
(40)
47
(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:
(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
(41)
48
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.
7.14 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 includable in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(42)
49
(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.
7.15 GENERAL DISTRIBUTION REQUIREMENTS
All distributions made under this Article 7 shall be determined and made
in accordance with the provisions of Section 401(a)(9) of the Code
(including, for calendar years beginning after December 31, 1988, Income
Tax Regulations prescribed under Section 401(a)(9) of the Code for the
minimum distribution of incidental benefits). The consent of neither the
Participant nor the Participant's Spouse shall be required to the extent
a distribution must be made to satisfy the provisions of Section
401(a)(9) of the Code. All applicable provisions of Section 401(a)(9) of
the Code and the Regulations prescribed thereunder are hereby
incorporated by reference.
(43)
50
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 prevent eviction or foreclosure from your primary
residence;
(iii) To pay medical expenses incurred by the applicant or his
immediate family which are not covered by insurance;
(iv) To pay educational expenses beyond the high school level
incurred by the applicant or applicant's immediate
family member, or
(v) To pay funeral expenses for an immediate family member.
(44)
51
(c) 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.
(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
(45)
52
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) in the following order until the full amount of the
Loan has been provided:
(i) from his Supplemental Before-Tax Contribution Account;
(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).
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 separate loan fund shall not be established; instead, Participant
loans shall be considered an asset of the investment fund which contains
the least investment risk or such other fund selected by the Trustee.
(46)
53
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:
(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.
(47)
54
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 to serve at its pleasure. The Benefits Committee shall
be a "NAMED FIDUCIARY" of the Plan in accordance with Section 402(a) of
ERISA.
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.
9.2 RULES AND REGULATIONS
The Benefits Committee may from time to time establish rules,
regulations, and procedures for the administration of the Plan and the
conduct and transaction of its business and affairs.
9.3 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.
(48)
55
9.4 INSTRUCTIONS
The Benefits Committee shall, from time to time, issue instructions to
the Trustee with respect to the payments to be made out of the Fund
pursuant to the Plan.
9.5 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.
9.6 COMPENSATION OF BENEFITS 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.
9.7 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.
9.8 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
review of such decision, including 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 for a
hearing, grant the
(49)
56
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 60 days after the request for a review is
first received (or within 120 days after a request for a 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.
9.9 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.
(50)
57
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.
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.
(51)
58
10.2 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.
10.3 DISTRIBUTIONS
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.
10.4 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, 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.
10.5 FIDUCIARY STATUS
The Trustee is a fiduciary and shall discharge of its duties as set forth
in the Plan and the requirements of law.
10.6 PLAN AND TRUST EXPENSES
The Benefits Committee or the Sponsoring Employer may direct the Trustee
to pay from the Trust Fund any or all expenses of administering the Plan
and Trust, to the extent such expenses are reasonable. The Benefits
Committee or the Sponsoring Employer will determine what constitutes a
reasonable expense of administering the Plan and Trust, and whether such
expenses shall be paid from the Trust Fund. Any such expenses not paid out
of the Trust Fund shall be paid by the Sponsoring Employer; provided,
however, that to the extent permitted by ERISA, the Benefits Committee or
the Sponsoring Employer may direct the Trustee to reimburse the Sponsoring
Employer out of the Trust Fund for a
(52)
59
reasonable expense of administering the Plan which is paid by the
Sponsoring Employer prior to a determination with respect to such
expense.
10.7 RESIGNATION
The Trustee may resign upon 30 days' prior written notice to the Benefits
Committee.
10.8 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 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.
(53)
60
10.9 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 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.
10.10 INDEMNIFICATION OF TRUSTEE
The Employer 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.
(54)
61
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"
(55)
62
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.
(56)
63
(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). When aggregating plans, the value of account balances and
accrued benefits will be calculated with reference to the Determination
Dates that fall within the same calendar year.
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.
(57)
64
(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.
(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:
(58)
65
(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 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
(59)
66
shall be taken into account in satisfying the minimum allocation
provisions of paragraph (b) above.
(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.
(60)
67
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.
(61)
68
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:
(62)
69
(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
(63)
70
(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 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)
(64)
71
above shall be held unallocated in a suspense account for such
Limitation Year, and shall be reallocated in the next Limitation
Year to the 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
(65)
72
defined benefit plans (whether or not terminated) maintained by the
Employer, 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 Plan Year to the
(66)
73
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.
(67)
74
(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 Total
(68)
75
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 the Actual Contribution Percentage for such
Nonhighly Compensated Employees.
(69)
76
(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.
(70)
77
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.
(71)
78
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:
(72)
79
(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.
(73)
80
12.6 LEASED EMPLOYEES
For purposes of the Plan, the term "leased employee" means any person who
would not otherwise be considered an Employee but who, pursuant to an
agreement between the Employer or an Affiliated Employer and a leasing
organization (within the meaning of Section 414(n)(2) of the Code) has
performed services for the Employer or Affiliated Employer on a
substantially full time basis for a period of at least one year, and such
services are of a type historically performed by employees in the
business field of the Employer or Affiliated Employer. Contributions or
benefits provided a leased employee by the leasing organization which are
attributable to services performed for the Employer or Affiliated
Employer shall be treated as provided by the Employer or Affiliated
Employer.
A leased employee shall not be considered an Employee if:
(a) Such individual is covered by a money purchase pension plan providing
(i) a nonintegrated employer contribution rate of at least ten
percent of his or her "Section 415 Compensation" (as defined in
Section 12.4(b)), but including amounts contributed pursuant to a
salary reduction agreement which are not includable in gross income
under Section 125, 402(a)(8), 402(h), or 403(b) of the Code, (ii)
immediate participation, and (iii) full and immediate vesting; and
(b) leased employees constitute twenty percent or less of the Employer's
or Affiliated Employer's nonhighly compensated workforce (within the
meaning of Section 414(n)(5)(C)(ii) of the Code).
12.7 EXCLUSIVE BENEFIT OF PARTICIPANTS
All assets of the Trust Fund shall be held for the exclusive purposes of
providing benefits to Participants and Beneficiaries under the Plan and
defraying reasonable expenses of administering the Plan. Except as
otherwise provided in the Plan, or permitted by law, in no event shall it
be possible, under the Plan for any part of the assets of the Trust Fund,
whether principal or income, to be used for, or diverted to, purposes
other than those stated herein.
12.8 RETURN OF CONTRIBUTIONS
Nothing herein shall prohibit a return to the Employer, within one year
after payment, of excess sums contributed to the Trust Fund as a result
of a mistake of fact.
(74)
81
In the event that the Commissioner of Internal Revenue (or his delegate)
determines that the Plan is not initially qualified under the Code, any
Employer contributions made to the Plan shall be returned to the Employer
within one year after the date the initial qualification is denied,
provided application for qualification is made by the time prescribed by
law for filing the Employer's return for the Fiscal Year in which the
Plan is adopted, or such later date as the Secretary of the Treasury may
prescribe.
Each Employer contribution is conditioned on the deductibility of the
contribution under Section 404 of the Code, and to the extent such
contribution deduction is disallowed, the contribution shall be returned
to the Employer within one year after the date of disallowance.
(75)
82
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
(76)
83
established a separate qualified plan for its employees. If a separate
qualified plan 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 7th day of July, 1997.
ATTEST:
/s/ Eric R. Fischer
________________________________
Clerk
UST CORP.
/s/ Linda J. Lerner
By:________________________________
Sr. Vice President
________________________________
The Trustee hereby acknowledges receipt and to the extent it affects the
Trustee, I hereby accept the responsibility.
UNITED STATES TRUST COMPANY AS TRUSTEE
/s/ Domenic Colasacco
By:________________________________
(77)
84
UST CORP. EMPLOYEE SAVINGS PLAN
FIRST AMENDMENT
WHEREAS, UST Corp. (the "Employer") maintains the UST Corp. Employee Savings
Plan, (the "Plan") for the benefit of its eligible employees and their
beneficiaries; and
WHEREAS, the Employer reserves the right to amend the Plan at any time;
NOW THEREFORE, the Plan is hereby amended effective June 30, 1997 to merge the
SBERA 401(k) Plan Adopted by the Bank of Braintree into the Plan subject to the
terms and conditions of the Plan as modified by the retained provisions set
forth in Exhibit A, Special Provisions, Applicable to Former Participants of the
SBERA 401(k) Plan Adopted by the Bank of Braintree, which such Exhibit A is
hereby incorporated and made a part of the Plan.
IN WITNESS WHEREOF, the Employer has caused this Amendment to be executed by its
duly elected officer this 30th day of June, 1997.
UST CORP.
/s/ Linda J. Lerner
By: ____________________________
/s/ Eric R. Fischer
Attest: _____________________________
85
EXHIBIT A
SPECIAL PROVISIONS APPLICABLE TO FORMER PARTICIPANTS OF THE SBERA
401(K) PLAN ADOPTED BY THE BANK OF BRAINTREE
The following provisions shall be applicable to Participants who were formerly
participants in the SBERA 401(k) Plan Adopted by The Bank of Braintree (Prior
Plan) with respect to their account balances (Merged Account or Merged Account
Balances) under the Prior Plan that was merged into the UST Corp. Employee
Savings Plan effective June 30, 1997.
1. "MERGED ACCOUNT OR MERGED ACCOUNT BALANCE" shall mean the Participant's
total account balance under the Prior Plan as of June 30, 1997, plus any
investment earnings (or losses) on such account subsequent to such date and
up to the date of distribution.
2. With respect to each Participant's Merged Account Balance the following
provisions shall also apply in addition to the provisions set forth in the
Plan with regard to options upon distribution:
AUTOMATIC ANNUITY The Participant's Merged Account will be applied to
purchase a Qualified Joint & Survivor Annuity for a married
Participant. If the Participant is not married the Participant's Merged
Account will be applied to purchase a life annuity. In the 90 day
period prior to his annuity starting date the Participant may make a
Qualified Election to receive an alternative distribution. A
Participant may elect to have such annuity distributed upon the
attainment of the Participant's Earliest Retirement Age. A deceased
Participant's Merged Account will be paid as a death benefit to the
surviving Spouse or Beneficiary. Unless an Optional form of benefit
within the Election Period pursuant to a Qualified Election has been
selected, the surviving Spouse may elect distribution of the automatic
pension within a reasonable period after the Participant's death.
NOTICE a) In the case of a Qualified Joint & Survivor Annuity notice
shall be provided not less than 30 days or more than 90 days prior to
the annuity starting date and in the case of a Qualified Preretirement
Survivor Annuity the later of the following periods that ends last: i)
the period beginning the first day of the Plan Year the Participant
attains age 32 and ending the last day of the Plan Year preceding the
Plan Year the Participant attains age 35 or ii) the period beginning
one year prior to and ending one year after the date the Employee
becomes a Participant or iii) the period one year before and ending one
year after this section first applies to the Participant or iv) the
period beginning one year prior to and ending one year after this
section ceased to apply to the Participant. Notice shall be provided
within the period beginning one year prior to and ending one year
following the date employment terminates for a Participant who has not
attained age 35. If such Participant is reemployed the applicable
period shall be redetermined. A Participant may elect, with appropriate
spousal consent, to waive the requirement that the written notice be
provided at least 30 days prior to the annuity starting date provided
such distribution commences more than 7 days after the notice is
provided.
86
SBERA Exhibit A
6/30/97
Page 2
b) Notwithstanding this section, the respective notices prescribed by this
section need not be given to a Participant if the Plan fully subsidizes the
costs of a Qualified Joint and Survivor Annuity or a Qualified Preretirement
Survivor Annuity and the Plan does not allow the Participant to waive the
Qualified Joint and Survivor Annuity or the Qualified Preretirement Survivor
Annuity and does not allow a married Participant to designate a non-Spouse
Beneficiary.
The notice will be written and will inform the Participant that his vested
Merged Account Balance will be paid as a Qualified Joint & Survivor Annuity
unless an alternate distribution method is selected in a Qualified Election.
The notice will include an explanation of the terms and conditions of a
Qualified Joint and Survivor Annuity or a Qualified Preretirement Survivor
Annuity, the effect of an Election to waive the Qualified Joint and Survivor
Annuity, the Spouse's right regarding the required consent, the right to make
and the effect of revoking an Election, and a statement of any benefits which
may be forfeitable for any reason including death.
If a Participant elects to receive distribution in one sum or in a series of
sums which may constitute a lump sum distribution, the Plan Administrator will
furnish notice using a format provided by the Secretary of Treasury explaining
that the distribution is not taxable currently to the extent transferred to
another qualified Plan or individual retirement account or individual retirement
annuity within 60 days after the date of its receipt and that the 60 day period
begins when the last distribution is made, and 10 or 5 year income averaging
and/or capital gains income tax provisions may apply.
"ELECTION" means a written instrument executed by a Participant and filed with
the Plan Administrator on or before its effective date, exercising one or more
rights under this Plan.
"ELECTION PERIOD" means the period beginning on the first day of the Plan Year
in which the Participant attains age 35 and ending on the date of his death. If
a Participant separates from service prior to the first day of the Plan Year in
which he is 35, the Election Period shall begin on the date his employment
terminates. A Participant may make a special Qualified Election to waive the
Qualified Preretirement Survivor Annuity for the period beginning on the date of
such Election and ending on the first day of the Plan Year in which he attains
age 35 provided that the Participant has received a written explanation of the
Qualified Preretirement Survivor Annuity stating that such coverage will be
reinstated as of the first day of the Plan Year in which he attains age 35. Any
new waiver on or after such date shall be subject to the full extent of this
Article.
"EARLIEST RETIREMENT AGE" means the date on which the Participant can elect to
receive retirement benefits.
"QUALIFIED ELECTION" means a waiver of a Qualified Joint and Survivor Annuity or
a Qualified Preretirement Survivor Annuity neither of which shall be effective
unless: the Spouse gives written consent to the Election; the Election
designates a specific Beneficiary
87
SBERA Exhibit A
6/30/97
Page 3
or Beneficiaries or contingent Beneficiaries, which may not be changed
without spousal consent unless the Spouse has permitted the Participant to
change designations without further consent; the Spouse's consent
acknowledges the effect of the Election; and the Spouse's consent is
witnessed by a Plan representative or Notary Public. If it is established
to the satisfaction of a Plan representative that written consent may not
be obtained because there is no Spouse or the Spouse cannot be located, a
waiver will be deemed a Qualified Election.
"QUALIFIED JOINT AND SURVIVOR ANNUITY" means the actuarial equivalent of a
straight life annuity paid to the Participant and his spouse for their
joint lives and reduced by 50% at the first death.
"QUALIFIED PRERETIREMENT SURVIVOR ANNUITY" means a straight life annuity
paid to the Participant's spouse by applying the Participant's Merged
Account Balance to the purchase of such an annuity.
Consent, or the deemed consent of a Spouse shall be effective only with
respect to such Spouse. Consent that permits designations by the
Participant without requirement of further consent by such Spouse shall
acknowledge that the Spouse has the right to limit consent to a specific
Beneficiary, and a specific form of benefit, and that the Spouse
voluntarily elects to relinquish either or both such rights. A Participant
may revoke a waiver without Spouse consent at any time before benefits
commence without limit. Consent shall not be valid unless the Participant
has received Notice under this section.
Subject to the above limitations, distributions may also be made over one
of the following periods.
a) the life of the Participant, or the life of the Participant and the life
of the Designated Beneficiary; and
b) the period contains not greater than the Participant's life expectancy
or the joint and last survivor life expectancy of the Participant and
his or her Beneficiary.
Distributions based on a life contingency or period certain will be made by
applying the Participant's Merged Account to purchase a non-transferable
annuity from an insurance company to provide the benefit for the
Participant.
3. With respect to each Participant's Merged Account Balance, the following
provisions shall also apply with respect to hardship distributions.
HARDSHIP DISTRIBUTION Distribution of Before-Tax Contributions (and
earnings thereon accrued as of December 31, 1988) out of a Participant's
Merged Account Balance may be made to a Participant in the event of
hardship. For the purposes of this section, hardship is defined as an
immediate and heavy financial need of the Employee where such Employee
lacks other available resources. Hardship Distributions are subject to the
spousal consent requirements contained in IRC 401(a)(11) and 417.
88
SBERA Exhibit A
6/30/97
Page 4
The following are the only financial needs considered immediate and heavy:
funeral expenses of an immediate family member, deductible medical expenses
(within the meaning of IRC 213(d)) of the Employee, the Employee's spouse,
children, or dependents; the purchase (excluding mortgage payments) of a
principal residence for the Employee; payment of tuition for the next
quarter or semester of post-secondary education for the Employee, the
Employee's spouse, children or dependents; or the need to prevent the
eviction of the Employee from, or a foreclosure on the mortgage of, the
Employee's principal residence, including any federal, state or local taxes
or penalties reasonably expected to result from the distribution.
A distribution will be considered as necessary to satisfy an immediate and
heavy financial need of the Employee only if:
a) The Employee has obtained all distributions, other than Hardship
Distributions, and all non-taxable loans under all Plans maintained by
the Employer;
b) All Plans maintained by the Employer provide that the Employee's
Before-Tax Contributions (and employee contributions) will be suspended
for twelve months after the receipt of the Hardship Distribution;
c) The distribution is not in excess of the amount of an immediate and
heavy financial need; and
d) All Plans maintained by the Employer provide that the Employee may not
make Before-Tax Contributions for the Employee's taxable year
immediately following the taxable year of the Hardship Distribution in
excess of the applicable limit under IRC 402(g) for such taxable year
less the amount of such Employee's Before-Tax Contributions for the
taxable year of the Hardship Distribution.
89
SECOND AMENDMENT TO THE
UST CORP. EMPLOYEES SAVINGS PLAN
WHEREAS, UST Corp. (the "Sponsoring Employer") maintains the UST Corp. Employees
Savings Plan (the "Plan") which was amended and restated effective July 1, 1996
for the benefit of its eligible employees and their beneficiaries; and
WHEREAS, the Sponsoring Employer reserves the right to amend the Plan at any
time in accordance with Section 13.1 of the Plan;
WHEREAS, the Sponsoring Employer desires to amend the Plan to:
(a) to recognize the participation of the BankBoston and Walden employees in the
Plan, and
(b) with respect to the employees of UST Bank/Connecticut to provide matching
contributions for the month of December, 1996.
NOW THEREFORE, the Plan is hereby amended effective January 1, 1997 unless
otherwise stated as follows:
1. Section 1.2 is hereby amended by replacing the reference to "5.1(g)" with the
reference to "5.1(f)".
2. Section 1.22 is hereby amended in its entirety to read as follows:
"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 Captial Corp.;
(g) UST Leasing Corporation;
(h) UST Merchant Bancorp, Inc.;
(i) Property Researach Group, Inc.; and
(j) each parent, subsidiary, affiliate, successor or other corporation
which has, by invitation by the Board and by action of its own board, elected to
joint the Plan.
The "EMPLOYER" as herein defined shall mean UST Corp., individually or in
combination with any or all such affiliates as the context may require."
3. Section 3.1 is hereby amended by adding the following paragraph (f) to the
end thereof:
90
"(f) An Eligible Employee who was an active participant in either the SBERA
401(k) Plan Adopted by the Bank of Braintree or the Cooperative Benefits
Employees Retirement Association Defined Contribution Plan - Plan A on July 31,
1997 shall become a Participant in this Plan on August 1, 1997 and be eligible
to have Before-Tax Contributions 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.
An Eligible Employee who was an active participant in either the SBERA 401(k)
Plan Adopted by the Bank of Braintree or the Cooperative Benefits Employees
Retirement Association Defined Contribution Plan - Plan A on October 1, 1996 and
whose employment during the period commencing October 1, 1996 and ending prior
to the date of acquisition (January 3, 1997) was terminated with Walden Bancorp
and commenced immediately thereafter with an Employer shall become a Participant
in this Plan and eligible on his or her Employment Commencement Date to have
Before-Tax Contributions 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."
4. Section 5.2 is hereby amended by adding the following paragraph between the
first and second paragraphs:
"Each Participant who was employed by UST Bank/Connecticut on November 30, 1996
and continued employment with HUBCO through December 31, 1996 shall be entitled
to an Employer Matching Contribution as of December 31, 1996 computed as though
his Basic Before-Tax Contributions continued through December 31, 1996 at the
rate in effect on November 30, 1996."
5. Section 13.1 shall be amended by replacing the first sentence of paragraph
(a) with the following:
"The Sponsoring Employer, by written action of a duly authorized officer of the
Sponsoring Employer, unanimous approval of the Benefits Committee and delivered
to the Trustee, shall have the right at any time to terminate this Plan and
shall have the right at any time and from time to time to amend, in whole or in
part, any or all of the provisions of this Plan, provided that no amendment
which affects the Trustee shall be effective without the Trustee's consent."
IN WITNESS WHEREOF, the Sponsoring Employer has caused this Amendment to be
executed by its duly elected officer this 31st day of July, 1997.
UST CORP.
By: /s/ Linda J. Lerner
-----------------------------
Attest: /s/ Eric R. Fischer
----------------------------
91
THIRD AMENDMENT TO THE
UST CORP. EMPLOYEES SAVINGS PLAN
WHEREAS, UST Corp. (the "Sponsoring Employer") maintains the UST Corp. Employees
Savings Plan (the "Plan") which was amended and restated effective July 1, 1996
for the benefit of its eligible employees and their beneficiaries; and
WHEREAS, the Sponsoring Employer reserves the right to amend the Plan at any
time in accordance with Section 13.1 of the Plan; and
WHEREAS, the Sponsoring Employer desires to amend the Plan to (a) merge the UST
Corp. Employee Stock Ownership Plan into the Plan, (b) improve benefits, and (c)
update the Plan for recent legislative changes.
NOW THEREFORE, the Plan is hereby amended as follows:
1. Effective December 31, 1997, the UST Corp. Employee Stock Ownership Plan
(UST ESOP) is hereby merged into the Plan subject to the terms and
conditions of the Plan as modified by the retained provisions set forth in
Exhibit B that is hereby incorporated and made a part of the Plan. Amounts
in the Employer Stock Account, Other Investments Account and Alternative
Investment Account of the UST ESOP shall be transferred to the ESOP
Account of this Plan.
2. Effective January 1, 1998, all Participants who are employed by the
Employer on December 31, 1997 shall be fully vested in their ESOP
Accounts.
3. Effective January 1, 1997, Section 1.13 of the Plan is amended to delete
in its entirety the last sentence of the last paragraph.
4. Effective January 1, 1998, Section 1.20 of the Plan is amended to read as
follows:
"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;
(c) Any Employee who is a leased employee within the meaning of
Section 414(n)(2) of the Code;
92
(d) Any Employee who became an Employee as a result of the
acquisition of Firestone Financial Corp. by the Employer; or
(e) Any Employee(s) who became an Employee(s) by reason of merger
with or acquisition by the Sponsoring Employer prior to the
date participation in the Plan is extended to such Employee(s)
by the Sponsoring Employer."
5. Effective January 1, 1998, Section 1.25 is amended to read as follows:
"1.25 "ENTRY DATE" means the first day of a calendar quarter as determined
under Section 3.1(b) or such other dates designated by the Benefits
Committee."
6. Effective January 1, 1998, Section 1.27 is amended to add the following
sentence.
"Forfeiture Account also means the ESOP Account maintained separately on
the books of the Plan by the Trustee for each terminated Participant with
a forfeitable Account balance. All amounts held in the Forfeiture Accounts
as of May 1, 1998 shall be immediately forfeitable."
7. Effective January 1, 1997, Section 1.28 of the Plan is amended to read as
follows:
"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:
(a) Was a 5% owner (within the meaning of Section 416(i)(l)(B)(i)
of the Code) at any time during the Determination Year or Look
Back Year; or
(b) Received compensation from an Employer or Affiliated Employer
in excess of $80,000 (as adjusted pursuant to Section 415(d)
of the Code) and was among the top 20% of Employees when
ranked on the basis of compensation paid during the Look-Back
Year. In determining who is among the top 20% of Employees
when ranked on the basis of Compensation there shall be
excluded Employees who:
(i) are under age 21;
(ii) have completed less than six months of service;
(iii) ordinarily work less than six months per year;
2
93
(iv) ordinarily work less than 17-1/2 hours per week; or
(v) 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.
The term Highly Compensated Employee shall also include any
former Employee who terminated employment with an Employer or
Affiliated Employer prior to the Determination Year, and was a
Highly Compensated Employee in either his year of termination
of employment or in any prior Determination Year ending on or
after his attainment of age 55.
For purposes of determining an Employee's compensation under this Section,
"COMPENSATION" shall mean the Employee's total compensation as set forth
in Section 414(q)(4) of the Code."
8. Effective January 1, 1998, Section 1.47 is amended to add subsection (g)
as follows:
"(g) "ESOP ACCOUNT" - The portion of the Participant's Total Account
consisting of amounts transferred from the Employer Stock Account,
Other Investments Account and Alternative Investment Account of the
UST ESOP, plus (or minus) any investment earnings (or losses) on
such amounts, less any distributions from such Account."
9. Effective with regard to reemployment initiated after December 12, 1994,
Article 2 is amended to delete the last paragraph of Section 2.3 and to
add a new Section 2.4 as follows:
"2.4 VETERAN'S RIGHTS
Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to any
qualified military service will be provided in accordance with
Section 414(u) of the Code. In addition, loan repayments will be
suspended under this Plan as permitted by Code Section 414(u)."
3
94
10. Effective January 1, 1998, Section 3.1(e) of the Plan is amended to read
as follows:
"(e) Participation after January 1, 1997
Each Participant shall, on the first Entry Date coincident with or
next following the earliest date on which he has completed (i) 500
(250, effective January 1, 1998) or more hours in the first six
months (three months, effective January 1, 1998) of employment, (ii)
1,000 or more hours on the first anniversary of employment or (iii)
1,000 or more hours in any subsequent calendar year, be eligible to
have Before-Tax Contributions 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. For purposed of this subparagraph, "six months of
employment" ("three months of employment", effective January 1,
1998) shall mean that the Participant is employed on the date which
is six months (three months, effective January 1, 1998) after the
date the Participant is first credited with an Hour of Service."
11. Effective January 1, 1998, Section 4.1 of the Plan is amended to read as
follows:
"4.1 PARTICIPANT CONTRIBUTIONS
Effective January 1, 1998, 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 a
rate of 1% to 15% 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 6% 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.
4
95
(b) SUPPLEMENTAL BEFORE-TAX CONTRIBUTIONS - Contributions made on
the Participant's behalf under a Salary Deferral Agreement in
excess of 6% 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."
12. Effective May 1, 1998, Section 5.1(d) of the Plan is amended to read as
follows:
"(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 for such
Plan Year, an amount (computed in dollars) equal to his
proportionate share of the Employer's Profit Sharing
Contribution for such Plan Year, as set forth in the Section
5.1(c). 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 shall be allocated to the
Participant's Regular Profit Sharing Account."
13. Effective January 1, 1998, Section 5.2 of the Plan is amended so that the
first paragraph reads as follows:
"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 Employer Matching Contributions made on behalf of each
such Participant shall be based upon the Participant's Basic Before-Tax
Contributions and Compensation since the previous Valuation Date, and
shall be equal to the sum of (a) 100% of the Participant's Basic
Before-Tax Contributions which do not exceed 2% of Compensation, plus (b)
50% of the Participant's Basic Before-Tax Contributions which exceed 2% of
Compensation."
5
96
14. Effective January 1, 1998, Section 6.2 of the Plan is amended so that the
second paragraph reads as follows:
"The Participant's Total Account shall be invested in one or a combination
of the available investment alternatives established and maintained by the
Trustee. These alternatives may include, but are not limited to: an Equity
Fund, seeking growth of capital by investing in a wide range of companies,
a Stable Asset Fund, consisting primarily of FDIC-insured deposits, an
Indexed Stock Fund, a Balanced Fund, investing in both stocks and
fixed-income securities, and an Employer Stock Fund consisting of
qualifying employer securities as defined in Code Section 409(l). The
Employer and/or Trustee reserves the right to add to or change the types
of investment alternatives available to Participants and Beneficiaries."
15. Effective January 1, 1998, Section 6.3 is amended to read as follows:
"6.3 CHANGE IN INVESTMENT ELECTION
Any Participant, employed by the Employer on or after January 1,
1998, may elect, effective as of any Change Date, to reallocate in
5% increments his Basic and Supplemental Before-Tax Contribution
Accounts, Employer Matching Contribution Account, ESOP Account, and
Rollover Account among the investment funds, provided that the
Participant files a new election in the appropriate form at such
time and in such manner as the Benefits Committee may require. 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, ESOP Account, and Rollover Account on the Change Date and
to all contributions credited to such Accounts on or after such
Change Date.
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,
ESOP 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
6
97
Account, ESOP Account and Rollover Account, in order to
facilitate the administration of the Plan on an equitable and
practicable basis.
Any Participant who terminated employment with the Employer prior to
January 1, 1998 shall be subject to the provisions of this Section
6.3 with respect to all Accounts except for his ESOP Account which
will be subject to the provisions of Part F of Exhibit B."
16. Effective January 1, 1998, Section 6.5(a) of the Plan is amended to add
subsection (vii) entitled "ESOP Account".
17. Effective May 1, 1998, Section 6.7 of the Plan is amended so that the
first paragraph reads as follows:
"The balance of each Participant's Total Account shall be adjusted as of
each Valuation Date."
18. Effective January 1, 1998, Section 7.3 of the Plan to replace "$3,500"
with "$5,000" in the second paragraph thereof.
19. Effective January 1, 1998, Section 7.4 is amended to read as follows:
"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 Deferral Account, Employer Matching
Contribution Account, Rollover Account and Regular Profit Sharing
Account. Any Participant employed by the Employer on December 31,
1997 shall have a nonforfeitable or 100% vested interest in his ESOP
Account."
20. Effective May 1, 1998, Section 7.5 of the Plan is amended to read as
follows:
"(a) Timing of Forfeitures:
If a Participant who terminates his employment with the
Employer before his Regular Profit Sharing Account or ESOP
Account has become 100% vested and receives a distribution of
the vested portion of his Regular Profit Sharing Account or
ESOP Account, the non-vested amount remaining in such
Participant's Regular Profit Sharing Account or ESOP Account
after distribution of the vested portion of his Regular Profit
Sharing Account or ESOP Account shall be forfeited as of the
date he
7
98
has received the vested portion of his Regular Profit Sharing
Account or ESOP Account.
If a Participant terminated employment prior to December 31,
1997 before his regular Profit Sharing Account or ESOP Account
had become 100% vested and did not receive a distribution of
the vested portion of his regular Profit Sharing Account or
ESOP Account, the non-vested amounts held in the Forfeiture
Account shall be immediately forfeited as of May 1, 1998 and
shall be allocated in the following manner:
(i) Forfeitures shall first be used to pay any Plan expenses
that may be authorized pursuant to Section 10.6 of the
Plan;
(ii) Any remaining forfeitures shall then be used to reduce
Employer Contributions made pursuant to Section 5.1 and
Section 5.2; and
(iii) Any remaining forfeitures shall then be allocated to
Participant's Regular Profit Sharing Accounts and/or
ESOP Accounts in the same manner as set forth in Section
5.1(c).
(b) Rehire - Repayments Permitted Within Five Years of
Reemployment:
In the event a Participant described in subparagraph (a) above
is rehired prior to incurring five consecutive One-Year Breaks
in Service, the Participant shall be permitted to repay to his
Total Account the entire amount of the distribution in order
to restore the nonvested portion of his Regular Profit Sharing
Account or ESOP Account balance for the purpose of future
vesting as if he had not separated from Service and received a
distribution. The permissible repayment period shall continue
until the fifth anniversary of the day on which the Employer
reemploys the Employee.
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 or ESOP Account was
zero,
(A) distribution of the vested balance in his Regular Profit
Sharing Account or ESOP Account shall be deemed to have
been made to him as of the date of his termination of
employment,
8
99
(B) repayment shall be deemed to be made on his reemployment
commencement date, and
(C) the balance in his Regular Profit Sharing Account or
ESOP Account shall be restored accordingly.
(c) Restoration of Regular Profit Sharing Account or ESOP Account
Balances:
A Participant who made or who is deemed to have made a
repayment pursuant to paragraph (b) above will have recredited
to his Regular Profit Sharing Account or ESOP 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) Earnings allocable to the Plan's Regular Profit Sharing
Account or ESOP Account balances for the Plan Year in
which such Account balance is recreated, if still not
sufficient then;
(B) Contributions made by the Employer for the Plan Year in
which the Regular Profit Sharing Account or ESOP Account
balance is recreated.
(d) 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 or ESOP
Account which he forfeited shall not be recredited to the
Participant's Regular Profit Sharing Account or ESOP Account
if he subsequently becomes eligible to participate in the
Plan, except as follows:
(A) Such former Participant shall have his prior nonvested
portion in his Regular Profit Sharing Account or ESOP
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.
(B) To the extent applicable, the procedures of paragraph
(c) above shall apply to the restoration of the
Participant's nonvested portion of his Regular Profit
Sharing Account or ESOP
9
100
Account if he repays his prior distribution under this
paragraph (d)."
21. Effective January 1, 1998, Section 7.7(d) shall be amended to replace
"$3,500" with "$5,000".
22. Effective January 1, 1998, Section 7.8 shall be amended to replace
"$3,500" with "$5,000" in the second paragraph thereof.
23. Effective January 1, 2000, Section 12.4 of the Plan is amended to delete
paragraph (e) and to redesignate paragraph (f) as paragraph (e).
24. Effective January 1, 1998, Section 12.4(b) of the Plan is amended to read
as follows:
"(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 paid to
salesmen, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums,
fringe benefits, reimbursements, expense allowances, and
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 salary deferred arrangement
described in Section 402(g)(3) of the Code or to any salary
reduction agreement pursuant to a cafeteria plan established
under Section 125 of the Code which are not includable in the
Employee's gross income for the taxable year in which
contributed and excluding the following:
(i) amounts contributed by the Employer or Affiliated
Employer 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; and
(iii) amounts realized with respect to the sale, exchange, or
other disposition of stock acquired under a qualified
stock option".
10
101
25. Effective January 1, 1997, Section 12.5 of the Plan is amended to read as
follows:
"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 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 provisions 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.
11
102
(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.
(b) 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.
(c) 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.
(d) In accordance with the nondiscrimination requirements of
Section 401(k) of the Code, the Committee shall establish a
Compensation Deferral
12
103
Limit with respect to Before-Tax Contributions and the Cash
Option Deferral credited to a Participant's Total Account
during a Plan Year and may adjust such deferral limit (in
accordance with paragraph (f)(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.
(iii) Amounts in excess of these limits in (d) are called
"Excess Contributions".
(e) 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 (f)(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
13
104
higher than the Actual Contribution Percentage for such
Nonhighly Compensated Employees.
(iii) Amounts in excess of these limits in (e) are called
"Excess Aggregate Contributions".
(f) 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 (d)
and/or (e) 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 (d)
and/or (e) 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 that any distribution of Excess
Contributions or Excess Aggregate Contributions shall be
made to Highly Compensated Employees on the basis of the
amount of Before-Tax Contributions and Cash Option
Deferrals in the case of percentages described in (d)
and the amount of Employer Matching Contributions in the
case of percentages described in (e) in accordance with
the following method. The Committee shall first
calculate the dollar amount of the Excess Contributions
or Excess Aggregate Contributions described in
paragraphs (d) and (e), respectively. The Before-Tax
Contributions and Cash Option Deferral or the Employer
Matching Contributions of the Highly Compensated
Employee with the highest dollar amount shall be reduced
to equal the dollar amount of Before-Tax Contributions
or Cash Option Deferral or Employer Matching
Contributions of the Highly Compensated Employee with
the next highest dollar amount. This amount shall be
distributed to such Highly Compensated Employee.
However, if a lesser reduction when added to the total
dollar amount already distributed under this
14
105
step would equal the total Excess Contributions or
Excess Aggregate Contributions, the lesser reduction
shall be distributed. If the total amount distributed is
less than the total Excess Contributions or Excess
Aggregate Contributions, the above process will be
repeated until the total dollar amount of Excess
Contributions or Excess Aggregate Contributions, as the
case may be, is distributed.
Once distribution of the total Excess Contributions or
Excess Aggregate Contributions is made, the
nondiscrimination tests of Code Sections 401(k)(3) or
401(m)(3) are deemed satisfied. In the event that any
Basic Before-Tax Contributions are returned as described
above, the amount of such Participant's Employer
Matching Contributions attributable to the returned
Basic Before-Tax Contributions shall be forfeited and
used to reduce Employer Matching Contributions.
(iii) ALLOCATING INCOME TO EXCESS CONTRIBUTIONS. Any returned
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
Deferral Account for such Plan Year by a fraction, the
numerator of which is the Participant's returned 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 Deferral 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.
(iv) ALLOCATING INCOME TO EXCESS AGGREGATE CONTRIBUTIONS. Any
returned 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 returned 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.
15
106
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.
(g) 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:
(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 (f) above the sum of the
average percentages described in paragraphs (d) and (e)
above applicable to the group of Eligible Employees who
are Highly
16
107
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 (f) 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.
(h) The Committee shall maintain sufficient records to
demonstrate that the Plan satisfies the
nondiscrimination tests described in paragraphs (d), (e)
and (g) above".
26. Effective January 1, 1997, Section 12.6 is amended so that the first
sentence reads as follows:
"For purposes of the Plan, the term "leased employee" means any
person who would not otherwise be considered an Employee but who,
pursuant to an agreement between the Employer or an Affiliated
Employer and a leasing organization (within the meaning of Section
414(n)(2) of the Code) has performed services for the Employer or
Affiliated Employer on a substantially full time basis for a period
of at least one year, and such services are performed under the
direction and control of the Employer or Affiliated Employer."
17
108
IN WITNESS WHEREOF, the Sponsoring Employer has caused this Amendment to be
executed by its duly elected officer this 31st day of December, 1997.
UST CORP.
Attest: /s/ Eric R. Fischer By: /s/ Linda J. Lerner
--------------------------- -------------------------
18
109
FOURTH AMENDMENT TO THE
UST CORP. EMPLOYEE SAVINGS PLAN
WHEREAS, UST Corp. (the "Sponsoring Employer") maintains the UST Corp. Employee
Savings Plan (the "Plan") which was amended and restated effective July 1, 1996
for the benefit of its eligible employees and their beneficiaries; and
WHEREAS, the Sponsoring Employer reserves the right to amend the Plan at any
time in accordance with Section 13.1 of the Plan; and
WHEREAS, the Sponsoring Employer desires to amend the Plan to
a) recognize a portion of the commissions earned by certain employees, and
b) enhance the employer matching contribution to be an IRS safe harbor
formula;
NOW THEREFORE, the Plan is hereby amended effective January 1, 1999 in the
following ways:
1. Section 1.13 is hereby amended to add the following paragraph
immediately after the first paragraph thereof:
"Notwithstanding the foregoing, in the case of an Employee who is
specifically assigned to a formal commission-based incentive plan as
either a
a) Mortgage Originator,
b) The Investment Group at USTrust sales representative, or
c) UST Leasing Corp. sales representative,
Compensation shall be 80% of the sum of base pay plus commissions paid
to such Employee by an Employer and included in the income reported on
Federal Income Tax Form W-2. "Commission-based incentive plans" are
those that provide for variable payments directly related to the sale
of company services and products, and provide for payment on a
quarterly or more frequent basis."
2. Section 4.1 is hereby amended to change the phrase "6% of Compensation"
to "5% of Compensation" throughout.
3. Section 5.2 is hereby amended so that the first paragraph reads as
follows:
"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. The Employer Matching Contributions
made on behalf of each such
110
Participant shall be based upon the Participant's Basic Before-Tax
Contributions and Compensation since the previous Valuation Date, and
shall be equal to the sum of (a) 100% of the Participant's Basic
Before-Tax Contributions which do not exceed 3% of Compensation, plus
(b) 50% of the Participant's Basic Before-Tax Contributions which
exceed 3% of Compensation."
4. Section 12.5 is amended to add the following paragraph to the beginning
thereof.
"This Section 12.5 shall only apply to the extent required by law."
IN WITNESS WHEREOF, the Sponsoring Employer has caused this Amendment to be
executed by its duly elected officer this 16th day of December, 1998.
UST CORP.
Attest: /s/ Kathleen Bruno By: /s/ Eric R. Fischer
--------------------------- ---------------------------
Kathleen Bruno Eric R. Fischer
Executive Vice President