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EXHIBIT 10.41
NORRELL CORPORATION
401(K) RETIREMENT SAVINGS PLAN
(1994 RESTATEMENT)
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NORRELL CORPORATION
401(K) RETIREMENT SAVINGS PLAN
(1994 RESTATEMENT)
On this 30th day of December, 1994, Norrell Corporation, a corporation
duly organized and existing under the laws of the State of Georgia (the
"Controlling Company"), hereby amends and restates the Norrell Corporation
Horizon Plan (Pace and Strides), which shall hereinafter be called the Norrell
Corporation 401(k) Retirement Savings Plan (the "Plan").
STATEMENT OF PURPOSE
A. The Plan initially was adopted effective as of November 1,
1972, and was last restated on June 7, 1994.
B. The Plan, as set forth in this document, is intended and
should be construed as a restatement and continuation of the Plan as previously
in effect. This restatement of the Plan is intended to effect the merger of
the Tascor Retirement Savings Plan (the "Tascor Plan") with and into the Plan,
effective as of December 31, 1994.
C. This restatement of the Plan also is intended to bring the
Plan (and, to the extent necessary, the Tascor Plan) into compliance with the
requirements of the Tax Reform Act of 1986 and all current laws and regulations
enacted or issued prior to the adoption date of this restatement. Therefore,
except as specified in this restatement or as otherwise necessary to bring
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the Plan into legal compliance, this restatement shall be effective as of
January 1, 1994, and the terms of the prior restatement (as amended) shall
control through December 31, 1993.
D. The primary purpose of the Plan is to recognize the
contributions made to the Controlling Company and its participating affiliates
by employees and to reward those contributions by providing eligible employees
with an opportunity to accumulate savings for their future security.
D. The Controlling Company intends that the Plan be a profit
sharing plan qualified under Sections 401(a) and 401(k) of the Internal Revenue
Code of 1986, as amended.
STATEMENT OF AGREEMENT
To amend and restate the Plan with the purposes and goals as
hereinabove described, the Controlling Company hereby sets forth the terms and
provisions as follows:
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NORRELL CORPORATION
401(K) RETIREMENT SAVINGS PLAN
(1994 RESTATEMENT)
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 ACP or Average Contribution Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 ACP Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Active Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.5 Additional Discretionary Matching Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Additional Discretionary Matching Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Administrative Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 ADP or Actual Deferral Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.9 ADP Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.10 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.11 Annual Addition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.12 Basic Matching Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.13 Basic Matching Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.14 Before Tax Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.15 Before Tax Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.16 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.17 Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.18 Break in Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.19 Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.20 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.21 Company Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.22 Compensations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Benefit Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Section 415 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Key Employee Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Testing Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.23 Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.24 Controlling Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.25 Covered Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.26 Deferral Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.27 Defined Benefit Minimum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.28 Defined Benefit Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.29 Defined Benefit Plan Fraction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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1.30 Defined Contribution Minimum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.31 Defined Contribution Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.32 Defined Contribution Plan Fraction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.33 Determination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.34 Disability or Disabled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.35 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.36 Elective Deferrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.37 Eligible Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.38 Eligible Retirement Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.39 Eligible Rollover Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.40 Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.41 Employment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.42 Entry Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.43 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.44 Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.45 Highly Compensated Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Excluded Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(c) Family Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(d) Nonresident Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(e) Determination of Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(f) Compliance with Code Section 414(q) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.46 Hour of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.47 Investment Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.48 Investment Fund or Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.49 Investment Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.50 Key Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.51 Leave of Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.52 Limitation Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.53 Management Services Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.54 Matching Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.55 Matching Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.56 Maternity or Paternity Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.57 Maximum Deferral Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.58 Named Fiduciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.59 Non-Key Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.60 Normal Retirement Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.61 Norrell Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.62 Norrell Stock Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.63 Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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1.64 Participating Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.65 Permissive Aggregation Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.66 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.67 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.68 Profit Sharing Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.69 Qualified Spousal Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.70 Related Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.71 Required Aggregation Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.72 Rollover Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.73 Rollover Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.74 Severance Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.75 Specified Matching Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.76 Spouse or Surviving Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.77 Staffing Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.78 Tascor Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.79 Temporary Services Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.80 Top-Heavy Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.81 Top-Heavy Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.82 Trust or Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.83 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.84 Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.85 Valuation Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.86 Years of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) Aggregation Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) Counting Periods of Severance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(c) Pre-Break Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(d) Post-Break Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(e) Predecessor Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(f) Predecessor Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE II ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1 Initial Eligibility Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Grandfathered Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(c) New Participating Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.2 Treatment of Interruptions of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Leave of Absence or Layoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Reemployment Before Break in Service . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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(c) Reemployment After Break in Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Reparticipation Upon Reemployment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.3 Change in Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Loss of Covered Employee Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Change to Covered Employee Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Change by Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.4 Limited Participant by Certain Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE III CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.1 Before-Tax Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Before-Tax Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Deferral Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.2 Matching Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.3 Additional Discretionary Matching Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.4 Form of Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.5 Timing of Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Before-Tax Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Matching, Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.6 Contingent Nature of Company Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.7 Restoration of Forfeitures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.8 Pre-1995 Employer Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV ROLLOVERS CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.1 Rollover Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Request by Covered Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Acceptance of Rollover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE V PARTICIPANTS' ACCOUNTS; CREDITING AND ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.1 Establishment of Participants' Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.2 Allocation and Crediting of Before-Tax, Matching, Rollover
and Transfer Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.3 Allocation and Crediting of Additional Discretionary Matching
Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.4 Allocation and Crediting of Investment Experience . . . . . . . . . . . . . . . . . . . . . . . . . 23
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(a) General Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(b) Per Capita Supplemental Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.5 Allocation of Forfeitures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.6 Notice to Participants of Account Balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.7 Good Faith Valuation Binding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.8 Errors and Omissions in Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VI CONTRIBUTION AND SECTION 415 LIMITATIONS AND
NONDISCRIMINATION REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.1 Deductibility Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.2 Maximum Limitation on Elective Deferrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Maximum Elective Deferrals Under Participating Company Plans . . . . . . . . . . . . . . . 26
(b) Return of Excess Before-Tax Contributions . . . . . . . . . . . . . . . . . . . . . . . . . 26
(c) Return of Excess Elective Deferrals Provided by Other
Participating Company Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(d) Discretionary Return of Elective Deferrals . . . . . . . . . . . . . . . . . . . . . . . . 27
(e) Return of Excess Annual Additions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.3 Nondiscrimination Requirements for Before-Tax Contributions . . . . . . . . . . . . . . . . . . . . 27
(a) ADP Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(b) Multiple Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(c) Adjustments to Actual Deferral Percentages . . . . . . . . . . . . . . . . . . . . . . . . 28
6.4 Nondiscrimination Requirements for Matching Contributions . . . . . . . . . . . . . . . . . . . . . 29
(a) ACP Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(b) Multiple Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(c) Adjustments to Average Contribution Percentages . . . . . . . . . . . . . . . . . . . . . . 29
6.5 Multiple Use of Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(a) Aggregate Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(b) Multiple Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(c) Correction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(d) Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.6 Order of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.7 Code Section 415 Limitations on Maximum Contributions . . . . . . . . . . . . . . . . . . . . . . . 31
(a) General Limit on Annual Additions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(b) Combined Plan Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(c) Correction of Excess Annual Additions . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(d) Special Definitions Applicable to Code Section 415 Limitations . . . . . . . . . . . . . . 34
(e) Compliance with Code Section 415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.8 Construction of Limitations and Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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ARTICLE VII INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.1 Establishment of Trust Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.2 Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(a) Named Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(b) Other Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(c) Reinvestment of Cash Earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.3 Participant Direction of Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(a) Investment of Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(b) Investment of Existing Account Balances . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(c) Conditions Applicable to Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(d) Restrictions on Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(e) Sales and Purchases of Norrell Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.4 Investment of Additional Discretionary Matching and Profit
Sharing Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.5 Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.6 Voting and Tender Offer Rights With Respect to Norrell Stock . . . . . . . . . . . . . . . . . . . . 39
(a) Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(b) Tender Offer Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(c) Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(d) Dissemination of Pertinent Information . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.7 Voting and Tender Offer Rights with Respect to Investment Funds
Other Than the Norrell Stock Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.8 Fiduciary Responsibilities for Investment Directions . . . . . . . . . . . . . . . . . . . . . . . . 40
7.9 Appointment of Investment Manager; Authorization to Invest in
Collective Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(a) Investment Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(b) Collective Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.10 Purchase of Life Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VIII VESTING IN ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.1 General Vesting Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(a)General Vesting Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(b)Special Schedule for Certain Tascor Plan Participants . . . . . . . . . . . . . . . . . . . . . . 42
8.2 Vesting Upon Attainment of Normal Retirement Age, Death or
Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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8.3 Timing of Forfeitures and Vesting After Restoration . . . . . . . . . . . . . . . . . . . . . . . . 43
(a) Reemployment and Vesting Before any Distribution . . . . . . . . . . . . . . . . . . . . . 43
(b) Reemployment and Vesting After Distribution . . . . . . . . . . . . . . . . . . . . . . . . 43
8.4 Amendment to Vesting Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE IX PAYMENT OF BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.1 Benefit Payments Upon Termination of Service For Reasons Other Than
Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(a) General Rule Concerning Benefits Payable . . . . . . . . . . . . . . . . . . . . . . . . . 45
(b) Timing of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(c) Restrictions on Distributions from Before-Tax Accounts . . . . . . . . . . . . . . . . . . 46
(d) Delay Upon Reemployment or Termination of Disability . . . . . . . . . . . . . . . . . . . 47
9.2 Death Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.3 Form of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(a) Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(b) Assets Distributed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(c) Distributions From the Norrell Stock Fund . . . . . . . . . . . . . . . . . . . . . . . . . 49
(d) Direct Rollover Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9.4 Beneficiary Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(b) No Designation or Designee Dead or Missing . . . . . . . . . . . . . . . . . . . . . . . . 50
9.5 Hardship Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(a) Parameters of Hardship Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(b) Immediate and Heavy Financial Need . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(c) Necessary to Satisfy a Financial Need . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(d) Election to Withdraw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(e) Payment of Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.6 Withdrawals After Age 592 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.7 Qualified Domestic Relations Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.8 Unclaimed Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.9 Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(a) Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(b) Review Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(c) Satisfaction of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.10 Explanation of Rollover Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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ARTICLE X ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.1 Administrative Committee; Appointment and Term of Office . . . . . . . . . . . . . . . . . . . . . . 55
(a) Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(b) Removal; Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(c) Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.2 Organization of Administrative Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
10.3 Powers and Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
10.4 Records of Administrative Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(a) Notices and Directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
(b) Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.5 Reporting and Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.6 Construction of the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
10.7 Assistants and Advisers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
(a) Engaging Advisors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(b) Reliance on Advisors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.8 Investment Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(a) Funding Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(b) Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(c) Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.9 Direction of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.10 Bonding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.11 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XI ALLOCATION OF AUTHORITY AND RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.1 Controlling Company and Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
(a) General Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
(b) Allocation of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
(c) Authority of Participating Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.2 Administrative Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
11.3 Investment Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
11.4 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
11.5 Limitations on Obligations of Fiduciaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
11.6 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
11.7 Multiple Fiduciary Roles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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ARTICLE XII AMENDMENT, TERMINATION AND ADOPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
12.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
12.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
(a) Right to Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
(b) Vesting Upon Complete Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
(c) Dissolution of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
(d) Vesting Upon Partial Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
12.3 Adoption of the Plan by a Participating Company . . . . . . . . . . . . . . . . . . . . . . . . . . 63
(a) Procedures for Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
(b) Single Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
(c) Authority Under Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
(d) Contributions to Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
(e) Withdrawal from Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
12.4 Merger, Consolidation and Transfer of Assets or Liabilities . . . . . . . . . . . . . . . . . . . . 64
ARTICLE XIII TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
13.1 Top-Heavy Plan Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
13.2 Determination of Top-Heavy Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
(a) Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
(b) Special Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
(c) Special Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
13.3 Top-Heavy Minimum Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
(a) Multiple Defined Contribution Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
(b) Defined Contribution and Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . 69
(c) Defined Contribution Minimum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
(d) Defined Benefit Minimum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
13.4 Top-Heavy Minimum Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
13.5 Adjustments in Code Section 415 Limitations for Top-Heavy Plans . . . . . . . . . . . . . . . . . . 70
(a) Special Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
(b) Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
13.6 Special Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
13.7 Construction of Limitations and Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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ARTICLE XIV MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
14.1 Nonalienation of Benefits and Spendthrift Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 72
(a) General Nonalienation Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
(b) Exception for Qualified Domestic Relations Orders . . . . . . . . . . . . . . . . . . . . . 72
14.2 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.3 Construction, Controlling Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.4 No Contract of Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.5 Legally Incompetent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.6 Heirs, Assigns and Personal Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.7 Title to Assets, Benefits Supported Only By Trust Fund . . . . . . . . . . . . . . . . . . . . . . . 73
14.8 Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
14.9 No Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
14.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
14.11 Exclusive Benefit; Refund of Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
(a) Permitted Refunds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
(b) Payment of Refund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
(c) Limitation on Refund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
14.12 Special Effective Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
(a) Intent of Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
(b) Effective Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
14.13 Predecessor Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
14.14 Plan Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SCHEDULE A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SCHEDULE B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SCHEDULE C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
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ARTICLE I
DEFINITIONS
For purposes of the Plan, the following terms, when used with an
initial capital letter, shall have the meanings set forth below unless a
different meaning plainly is required by the context.
1.1 Account shall mean, with respect to a Participant or
Beneficiary, the amount of money or other property in the Trust Fund, as is
evidenced by the last balance posted in accordance with the terms of the Plan
to the account record established for such Participant or Beneficiary. The
Administrative Committee, as required by the terms of the Plan and otherwise as
it deems necessary or desirable in its sole discretion, may establish and
maintain separate subaccounts for each Participant and Beneficiary, provided
allocations are made to such subaccounts in the manner described in Article V
of the Plan. "Account" shall refer to the aggregate of all separate
subaccounts or to individual, separate subaccounts, as may be appropriate in
context.
1.2 ACP or Average Contribution Percentage shall mean, with
respect to a specified group of Participants for a Plan Year, the average of
the ratios (calculated separately for each Participant in such group and
rounded to the nearest 1/100th of a percent) of (i) the total of the amount of
Matching Contributions and, to the extent designated by the Administrative
Committee, the Before-Tax Contributions (excluding Before-Tax Contributions
counted for purposes of Section 6.3 and any Contributions returned to a
Participant or otherwise removed from his Account to correct excess Annual
Additions) actually paid to the Trustee on behalf of each such Participant for
such Plan Year, to (ii) such Participant's Compensation for such Plan Year.
If a Highly Compensated Employee participates in the Plan and one or more other
plans of any Affiliates to which matching or after-tax contributions are made
(other than a plan for which aggregation with the Plan is not permitted), the
matching and after-tax contributions made with respect to such Highly
Compensated Employee shall be aggregated for purposes of determining his ACP.
The ACP shall be rounded to the nearest 1/100th of a percent and shall be
calculated in a manner consistent with the terms of Code Section 401(m) and the
regulations promulgated thereunder (including, without limitation, the family
consolidation rules for certain Highly Compensated Employees). If a
Participant is eligible to participate in the Plan for all or a portion of a
Plan Year by reason of satisfying the eligibility requirements of Article II
but makes no Before-Tax Contributions which are taken into account (as
described above) for purposes of calculating his ACP, and if he receives no
allocations of Matching Contributions which are taken into account (as
described above) for purposes of calculating his ACP, such Participant's ACP
for such Plan Year shall be zero.
1.3 ACP Tests shall mean the nondiscrimination tests described in
Section 6.4.
1.4 Active Participant shall mean, for any Plan Year (or any
portion thereof), any Covered Employee who, pursuant to the terms of Article
II, has been admitted to, and not
15
removed from, active participation in the Plan since the last date his
employment commenced or recommenced.
1.5 Additional Discretionary Matching Account shall mean the
separate subaccount established and maintained on behalf of a Participant or
his Beneficiary to reflect his interest in the Trust Fund attributable to
Additional Discretionary Matching Contributions.
1.6 Additional Discretionary Matching Contributions shall mean the
Additional Discretionary Matching Contributions made to the Plan by the
Participating Companies, all as pursuant to Section 3.3.
1.7 Administrative Committee shall mean the Benefits Advisory
Committee appointed by the Board, which shall act on behalf of the Controlling
Company to administer the Plan as provided in Article X. The Administrative
Committee shall be the plan administrator, as that term is defined in Code
Section 414(g); provided, the Controlling Company may act in lieu of the
Administrative Committee as it deems appropriate or desirable.
1.8 ADP or Actual Deferral Percentage shall mean, with respect to
a specified group of Participants for a Plan Year, the average of the ratios
(calculated separately for each Participant in such group and rounded to the
nearest 1/100th of a percent) of (i) the total of the amount of Before-Tax
Contributions (excluding Before-Tax Contributions, if any, designated by the
Administrative Committee to be taken into account under Section 6.4(c)(1) to
help satisfy the ACP Tests, or returned to a Participant to correct excess
Annual Additions) actually paid to the Trustee on behalf of each such
Participant for such Plan Year, to (ii) such Participant's Compensation for
such Plan Year. If a Highly Compensated Employee participates in the Plan and
one or more other plans of any Affiliates to which before-tax contributions
are made (other than a plan for which aggregation with the Plan is not
permitted), the before-tax contributions made with respect to such Highly
Compensated Employee shall be aggregated for purposes of determining his ADP.
The ADP shall be rounded to the nearest 1/100th of a percent and shall be
calculated in a manner consistent with the terms of Code Section 401(k) and the
regulations promulgated thereunder (including, without limitation, the family
consolidation rules for certain Highly Compensated Employees). If a
Participant is eligible to participate in the Plan for all or a portion of a
Plan Year by reason of satisfying the eligibility requirements of Article II
but makes no Before-Tax Contributions, such Participant's ADP for such Plan
Year shall be zero percent.
1.9 ADP Tests shall mean the nondiscrimination tests described in
Section 6.3.
1.10 Affiliate shall mean, as of any date and separately with
respect to the Controlling Company and each Related Company, (i) a
Participating Company, and (ii) any company, person or organization which, on
such date, (A) is a member of the same controlled group of corporations [within
the meaning of Code Section 414(b)] as is a Participating Company; (B) is a
trade or business (whether or not incorporated) which controls, is controlled
by or is under common control [within the meaning of Code Section 414(c)] with
a Participating Company; (C) is a member of an affiliated service group[as
defined in Code Section 414(m)] which includes a Participating
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16
Company; or (D) is required to be aggregated with a Participating Company
pursuant to regulations promulgated under Code Section 414(o); provided, solely
for purposes of Section 6.7, the term "Affiliate" as defined in this Section
shall be deemed to include corporations that would be Affiliates if the phrase
"more than 50 percent" were substituted for the phrase "at least 80 percent"
in each place the latter phrase appears in Code Section 1563(a)(1).
1.11 Annual Addition shall mean the sum of the amounts described in
Section 6.7(d)(1).
1.12 Basic Matching Account shall mean the separate subaccount
established and maintained on behalf of a Participant or his Beneficiary to
reflect his interest in the Trust Fund attributable to Basic Matching
Contributions.
1.13 Basic Matching Contributions shall mean the amounts paid by
each Participating Company to the Trust Fund as a match to Participants'
Before-Tax Contributions, all as pursuant to the terms of Section 3.2.
1.14 Before-Tax Account shall mean the separate subaccount
established and maintained on behalf of a Participant or his Beneficiary to
reflect his interest in the Trust Fund attributable to his Before-Tax
Contributions.
1.15 Before-Tax Contributions shall mean the amounts paid by each
Participating Company to the Trust Fund at the election of Participants, all as
pursuant to the terms of Section 3.1.
1.16 Beneficiary shall mean the person(s) designated in accordance
with Section 9.4 to receive any death benefits that may be payable under the
Plan upon the death of a Participant.
1.17 Board shall mean the board of directors of the Controlling
Company. A reference to the board of directors of any other Participating
Company shall specify it as such.
1.18 Break in Service shall mean, with respect to an Employee, a
period of 12 consecutive months beginning on a Severance Date or an anniversary
of such date, during which an Employee does not complete an Hour of Service. A
Break in Service shall be deemed to have commenced on the first day of the
12-month period for which it occurs.
For purposes of determining whether or not an Employee has incurred a
Break in Service, and solely for the purpose of avoiding a Break in Service, an
employee absent from work due to a Maternity or Paternity Leave shall not have
a Break in Service until the second anniversary of the first day of such
absence from employment, provided that the period between the first and second
anniversary of such first day of absence is not a period of severance for any
other purpose.
1.19 Business Day shall mean each day on which the Trustee
operates, and is open to the public for, its business.
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17
1.20 Code shall mean the Internal Revenue Code of 1986, as amended,
and any succeeding federal tax provisions.
1.21 Company Contributions shall mean Before-Tax, Basic Matching
and Additional Discretionary Matching Contributions made by the Participating
Companies pursuant to the terms of the Plan.
1.22 Compensation shall have the meaning set forth in subsection
(a), (b), (c) or (d) hereof, whichever is applicable; provided, in no event
shall the annual compensation taken into account under the Plan for Plan Years
(or other applicable periods) beginning after December 31, 1988 exceed $200,000
($150,000 beginning after December 31, 1993) (both as adjusted by the Secretary
of the Treasury under Code Section 401(a)(17) for cost of living increases). In
determining the Compensation of a Participant for purposes of the Code Section
401(a)(17) maximum compensation limitation, the rules of Code Sectin 414(q)(6)
shall apply; provided, for purposes of applying said rules, the term "family"
shall include only the Spouse of the Participant and lineal descendants of the
Participant who have not attained age 19 before the close of the year.
(a) Benefit Compensation. For purposes of determining
the amount of Before-Tax Contributions in Section 3.1, the amount of Basic
Matching Contributions in Section 3.2 and the allocation of Additional
Discretionary Matching Contributions in Section 5.3, and for all other purposes
except those set forth in subsections (b), (c) and (d) hereof, "Compensation"
shall mean, for any Plan Year, the total of the amounts described in
subsections (1) and (2), minus the amount described in subsection (3):
(1) all of a Participant's wages, as defined in Code
Section 3401(a) for purposes of income tax withholding at the source,
that are reportable by the Affiliates for federal income tax purposes
on IRS Form W-2, but determined without regard to any rules that limit
the remuneration included in wages based on the nature or location of
the employment or the services performed [(such as the exception for
agricultural labor in Code Section 3401(a)(2)]; plus
(2) all before-tax, salary deferral or reduction
contributions made to the Plan and other Section401(k) and Section
125 plans of the Affiliates on behalf of a Participant for such Plan
Year [including any contributions made under Code Section 402 (e)(3),
Section 402(h)(1)(B) or Section 403(b)]; minus
(3) all amounts included in subsection (1) or (2)
that consist of either (i) reimbursements or other expense allowances,
fringe benefits (cash and noncash), moving expenses, deferred
compensation and welfare benefits (even if includable in gross
income), or (ii) any amounts paid or made available to a Participant
during the Plan Year while he is not an Active Participant.
(b) Section 415 Compensation. Solely for purposes of Section
6.1 (relating to maximum deductible contribution limitations under Code Section
404), Section 6.7 (relating to maximum contribution and benefit limitations
under Code Section 415) and Section 13.3 (relating to minimum Contributions
under
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18
a Top-Heavy Plan), "Compensation" shall mean, with respect to a Participant
for a specified period, the amounts from all Affiliates referred to in
subsection (a)(1) hereof.
(c) Key Employee Compensation. Solely for purposes of
determining which Employees are Key Employees under Section 13.2 and which
Employees are Highly Compensated Employees under Section 1.45, for any
applicable Plan Year, "Compensation" shall mean the total of the amounts from
all Affiliates determined under subsections (a)(1) plus (a)(2) hereof.
(d) Testing Compensation. For purposes of performing
discrimination testing to ensure compliance with Code Section 401(a)(4),
Section 401(k) and Section 401(m), the definition of Compensation as set forth
in subsection (c) hereof generally shall be used; provided, on a plan
year-by-plan year basis, the Administrative Committee may elect to use the
definition of "Compensation" as set forth in subsection (b) hereof or any
other definition that satisfies the nondiscrimination requirements of Code
Section 414(s). Compensation for testing purposes shall be determined
separately with respect to (i) the Controlling Company and its Affiliates and
(ii) each Related Company and its Affiliates.
1.23 Contributions shall mean, individually or collectively, the
Before-Tax, Basic Matching, Additional Discretionary Matching and Rollover
Contributions permitted under the Plan.
1.24 Controlling Company shall mean Norrell Corporation, a Georgia
corporation with its principal office in Atlanta, Georgia, and its successors
which adopt the Plan.
1.25 Covered Employee shall mean an Employee other than:
(a) A Highly Compensated Employee;
(b) A Temporary Services Employee;
(c) A Management Services Employee or Staffing Employee
with respect to whom a client for which such Employee is performing services
has elected, pursuant to the terms of its formal services agreement with the
Participating Company, not to fund or have funded retirement benefits for such
Employee under the Plan;
(d) An Employee who is a "leased employee" within the
meaning of Code Section 414(n); or
(e) An Employee who is a member of a collective
bargaining unit, unless the terms of the collective bargaining agreement
between the Participating Company of the Employee and the bargaining unit
require that the Employee be eligible to participate in the Plan.
1.26 Deferral Election shall mean an election, on a form provided
by the Administrative Committee or in such other manner as the Administrative
Committee may prescribe, by an Active Participant directing the Participating
Company of which he is an
-5-
19
Employee to withhold a percentage of his current Compensation from his
paychecks and to contribute such withheld amounts to the Plan as Before-Tax
Contributions, all as provided in Section 3.1.
1.27 Defined Benefit Minimum shall mean the minimum benefit level
as described in Section 13.3(d).
1.28 Defined Benefit Plan shall mean a plan described in Section
6.7(d)(2).
1.29 Defined Benefit Plan Fraction shall mean the fraction
described in Section 6.7(d)(3).
1.30 Defined Contribution Minimum shall mean the minimum
contribution level as described in Section 13.3(c).
1.31 Defined Contribution Plan shall mean a plan described in
Section 6.7(d)(4).
1.32 Defined Contribution Plan Fraction shall mean the fraction
described in Section 6.7(d)(5).
1.33 Determination Date shall mean the date described in Section
13.2(b)(1).
1.34 Disability or Disabled shall mean that a Participant is, in
the opinion of the Administrative Committee, wholly prevented from performing
the duties assigned to such Participant by the Participating Company employing
such Participant, by reason of a medically-determinable physical or mental
impairment which can be expected to result in death or to be of long-continued
and indefinite duration. In making such determination, the Administrative
Committee, in its sole discretion, may require such medical proof as it deems
necessary, including the certificate of one or more licensed physicians
selected by the Administrative Committee. The decision of the Administrative
Committee as to Disability shall be final and binding.
1.35 Effective Date shall mean January 1, 1994, the date that this
restatement of the Plan generally shall be effective; provided, any effective
date specified herein for any provision or otherwise necessary to bring the
Plan into legal compliance, if different from the Effective Date, shall
control. (The Plan initially was adopted effective as of November 1, 1972.)
The effective date of participation in the Plan for each Participating Company
shall be the date approved by the Board and the Participating Company and set
forth with respect to the Participating Company in the records of the
Controlling Company and/or the Plan.
1.36 Elective Deferrals shall mean, with respect to a Participant
for any calendar year, the total amount of his Before-Tax Contributions plus
such other amounts as shall be determined pursuant to the terms of Code
Section 402(g)(3).
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20
1.37 Eligible Participant shall mean, for any Plan Year, any Active
Participant (other than a Management Services or Staffing Employee) who was in
the active employ of an Affiliate on the last day of such Plan Year.
1.38 Eligible Retirement Plan shall mean a plan which is a defined
contribution plan, the terms of which permit the acceptance of rollover
distributions and which is either (i) an individual retirement account
described in Code Section 408(a), (ii) an individual retirement annuity
described in Code Section 408(b) (other than an endowment contract), (iii) a
qualified trust described in Code Section 401(a) and exempt from tax under
Code Section 501(a), or (iv) an annuity plan described in Code Section 403(a).
In the case of a distribution to the Surviving Spouse, Eligible Retirement Plan
shall mean the plan described in either clause (i) or (ii) hereof.
1.39 Eligible Rollover Distribution shall mean any distribution to
an employee of all or any portion of the balance to his credit in a qualified
trust (including any distribution to a Participant of all or any portion of his
Account); provided, an employee's "Eligible Rollover Distribution" shall not
include (i) any distribution which is one of a series of substantially equal
periodic payments made, not less frequently than annually, (A) for the life (or
life expectancy) of the employee or the joint lives (or joint life
expectancies) of the employee and his beneficiary, or (B) for a specified
period of 10 years or more, (ii) any distribution to the extent such
distribution is required under Code Section 401(a)(9), (iii) the portion of any
distribution that is not includable in gross income of the employee and (iv)
distributions which total less than $200 during the Plan Year.
1.40 Employee shall mean any individual who is employed by a
Participating Company (including officers, but excluding independent
contractors and directors who are not officers or otherwise employees) and
shall include leased employees of a Participating Company within the meaning of
Code Section 414(n). Notwithstanding the foregoing, if leased employees
constitute 20 percent or less of a Participating Company's nonhighly
compensated work force within the meaning of Code Section 414(n)(5)(C)(ii),
the term "Employee" shall not include those leased employees covered by a plan
described in Code Section 414(n)(5)(B).
1.41 Employment Date shall mean, with respect to any employee of an
Affiliate, the date on which he first completes an Hour of Service. In the
case of an employee of an Affiliate who incurs a Break in Service and is
reemployed, "Employment Date" shall mean: (i) with respect to service before
the Break in Service, the date determined pursuant to the preceding sentence;
and (ii) with respect to service after the Break in Service, the date on which
he or she first completes an Hour of Service after reemployment.
1.42 Entry Date shall mean the first day of each calendar month
during the period in which the Plan remains in effect.
1.43 ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended.
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21
1.44 Forfeiture shall mean, for any Plan Year, the dollar amount of
an Account of a former Employee that is removed from the Account during such
Plan Year.
1.45 Highly Compensated Employee shall mean an employee of an
Affiliate who is described in subsection (a) below, as modified by subsections
(b), (c) and (d) hereof. The determination of who is a Highly Compensated
Employee shall be made separately for (i) the Controlling Company and its
Affiliates, and (ii) each Related Company and its Affiliates.
(a) General Rule.
(1) An employee who, as of the first day of the
Plan Year, owns [or is considered as owning within the constructive
ownership rules of Code Section 318 as modified by Code Section 416(i)
(1)(B)(iii)] more than 5 percent of the outstanding stock of a
corporate Affiliate or stock possessing more than 5 percent of the
total combined voting power of all stock of a corporate Affiliate or
more than 5 percent of the capital or profits interest in a
noncorporate Affiliate; or
(2) An employee who, as of the first day of the
Plan Year, is reasonably expected to:
(A) receive Compensation from an
Affiliate during the Plan Year in excess of $75,000 [as adjusted by the
Internal Revenue Service under Code Section 414(q) (which references Code
Section 415(d) and the regulations promulgated thereunder for cost of living
increases]; or
(B) receive Compensation from an
Affiliate during the Plan Year in excess of $50,000 [as adjusted by the
Secretary of Treasury under Code Section 414(q) (which references Code Section
415(d) and the regulations promulgated thereunder for cost of living increases]
ad is within the group consisting of the most highly compensated 20 percent of
the employees of all Affiliates (determined as of the first day of the Plan
Year); or
(3) An employee who, as of the first day of the
Plan Year, is an officer of an Affiliate whose Compensation for the
Plan Year is reasonably expected to be greater than 50 percent of the
dollar limitation in effect under Code Section 415(b)(1)(A) for the
calendar year in which the Plan Year ends, where the term "officer"
means an administrative executive in regular and continual service
with an Affiliate; provided, in no event shall the number of officers
exceed the lesser of subsections (A) or (B) of this subsection (a)(3),
where:
(A) equals 50; and
(B) equals the greater of 3 employees or 10
percent of the number of employees [including leased employees as defined in
Code Section 414(n)] of any Affiliate.
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22
If for any year no officer meets the requirements of this subsection
(a)(3), the highest paid officer for the Plan Year shall be considered a person
who satisfies the requirements of this subsection (a)(3); or
(4) An employee who becomes employed subsequent
to the first day of the Plan Year and (i) is described in subsection
(a)(1) hereof, (ii) whose compensation for the Plan Year is reasonably
expected to be greater than or equal to the projected compensation of
any employee who is a Highly Compensated Employee as of the first day
of the Plan Year pursuant to subsection (a)(2) hereof, or (iii) is an
officer of an Affiliate whose compensation for the Plan Year
reasonably is expected to be greater than or equal to any other
employee who is a Highly Compensated Employee as of the first day of
the Plan Year solely because that person is an officer of an
Affiliate.
(b) Excluded Employees. For purposes of subsections
(a)(2)(B) and (a)(3) hereof, the following may be excluded when determining the
most highly compensated 20 percent of the employees and the total number of
officers, respectively, of an Affiliate:
(1) employees who have not completed 6 months of
service;
(2) employees who normally work fewer than
17-1/2 hours per week;
(3) employees who normally work during not more
than 6 months during any Plan Year;
(4) employees who have not attained age 21; and
(5) employees who are included in a unit of
employees covered by an agreement which the Secretary of Labor finds
to be a collective bargaining agreement between employee
representatives and an Affiliate.
(c) Family Rules. For purposes of this Section, if any
employee is a member of the family of a 5 percent owner as defined in
subsection (a)(1) hereof or a member of the family of a Highly Compensated
Employee whose Compensation is such that he is among the ten Highly Compensated
Employees receiving the greatest amount of Compensation from all Affiliates
during the Plan Year, then (i) the employee shall not be considered a separate
employee, and (ii) any Compensation paid to the employee, and any applicable
contribution or benefit on behalf of the employee, shall be treated as if it
were paid to, or on behalf of, the 5 percent owner or the employee who is among
the ten Highly Compensated Employees receiving the greatest amount of
Compensation from all Affiliates during the Plan Year. For purposes of this
subsection (c), the term "family" means with respect to any employee, the
employee's spouse, lineal descendants or ascendants and the spouses of such
lineal descendants or ascendants.
-9-
23
(d) Nonresident Aliens. For purposes of this Section,
nonresident aliens who receive no earned income from an Affiliate which
constitutes income from sources within the United States [as described in Code
Section 414(q)(11)] shall not be treated as employees.
(e) Determination of Compensation. In determining the
compensation of any employee for purposes of subsection (a) hereof, the
employee's compensation for the Plan Year shall be projected under a reasonable
method established by the Controlling Company.
(f) Compliance with Code Section 414(q). The
determination of who is a Highly Compensated Employee, including all of the
parts of that definition, shall be made in accordance with Code Section 414(q)
and the regulations promulgated thereunder. The determination of who is a
Highly Compensated Employee shall be made pursuant to the "snapshot" method
described in Revenue Procedure 93-42.
1.46 Hour of Service shall mean an hour for which an individual is
paid, or entitled to payment, for the performance of duties for an Affiliate
during the any period of employment. The determination of hours of service
shall be consistent with the minimum requirements of Labor Regulation
Section 2530.200b-2.
1.47 Investment Committee shall mean the committee which shall act
on behalf of the Controlling Company with respect to making and effecting
investment decisions, all as provided in Article X. Unless the Controlling
Company specifies otherwise, the Administrative Committee shall serve as the
Investment Committee. The Controlling Company may act in lieu of the
Investment Committee as it deems appropriate or desirable.
1.48 Investment Fund or Funds shall mean one or all of the
investment funds established from time to time pursuant to the terms of
Section 7.2.
1.49 Investment Manager shall mean an "investment manager" within
the meaning of ERISA Section 3(38).
1.50 Key Employee shall mean a person described in Section
13.2(b)(2).
1.51 Leave of Absence shall mean an excused leave of absence
granted to an Employee by an Affiliate in accordance with applicable federal or
state law or the Affiliate's personnel policy. Among other things, Leave of
Absence shall be granted to an Employee:
(a) who leaves the service of an Affiliate, voluntarily
or involuntarily, to enter the Armed Forces of the United States; provided, (i)
the Employee is legally entitled to reemployment under the veteran's
reemployment rights provisions as codified at 38 USC Section 2021, et seq., its
predecessors and successors; and (ii) the Employee applies for and reenters
service with an Affiliate within the time, in the manner and under the
conditions prescribed by law; and
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24
(b) under such other circumstances as the Administrative
Committee shall determine are fair, reasonable and equitable, as applied
uniformly among Employees under similar circumstances.
1.52 Limitation Year shall mean the 12-month period ending on each
December 31, which shall be the "limitation year" for purposes of Code Section
415 and the regulations promulgated thereunder.
1.53 Management Services Employee shall mean an Employee designated
as a "management services employee" under the Controlling Company's customary
employment classification practices. Management Services Employees generally
perform services for clients of a Participating Company on assignments which
have an expected duration of at least 1 year and in connection with which such
clients generally have requested that the Participating Company provide
benefits for such Employees.
1.54 Matching Accounts shall mean a Participant's Basic Matching
Account and Additional Discretionary Matching Account.
1.55 Matching Contributions shall mean Basic Matching Contributions
and Additional Discretionary Matching Contributions.
1.56 Maternity or Paternity Leave shall mean any period, beginning
on or after January 1, 1985, during which an Employee is absent from work as an
employee of an Affiliate (i) because of the pregnancy of such Employee; (ii)
because of the birth of a child of such Employee; (iii) because of the
placement of a child with such Employee in connection with the adoption of such
child by such Employee; or (iv) for purposes of such Employee caring for a
child immediately after the birth or placement of such child.
1.57 Maximum Deferral Amount shall mean $7,000, as adjusted from
time to time in accordance with Code Section 402(g)(5).
1.58 Named Fiduciary shall mean the Controlling Company, the Board,
the Trustee, the Administrative Committee and the Investment Committee.
1.59 Non-Key Employee shall mean the persons described in
Section 13.2(b)(3).
1.60 Normal Retirement Age shall mean age 62.
1.61 Norrell Stock shall mean the common stock, no par value, of
the Controlling Company.
1.62 Norrell Stock Fund shall mean the Investment Fund invested
primarily in Norrell Stock.
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25
1.63 Participant shall mean any person who has been admitted to,
and has not been removed from, participation in the Plan pursuant to the
provisions of Article II. "Participant" shall include Active Participants and
former Employees who have an Account under the Plan.
1.64 Participating Company shall mean all companies that have
adopted or hereafter may adopt the Plan for the benefit of their employees and
which continue to participate in the Plan, all as provided in Section 12.3.
1.65 Permissive Aggregation Group shall mean the group of plans
described in Section 13.2(b)(4).
1.66 Plan shall mean the Norrell Corporation 401(k) Retirement
Savings Plan as contained herein and all amendments thereto. The Plan is
intended to be a profit sharing plan qualified under Code Section Section
401(a) and 401(k).
1.67 Plan Year shall mean the 12-month period ending on each
December 31.
1.68 Profit Sharing Account shall mean the separate subaccount
established and maintained on behalf of a Participant or his Beneficiary to
reflect his interest in the Trust Fund attributable to Profit Sharing
Contributions paid to the Trust Fund by Participating Companies. No such
contributions shall be made to the Trust Fund for periods after December 31,
1994.
1.69 Qualified Spousal Waiver shall mean a written election
executed by a Spouse, delivered to the Administrative Committee and witnessed
by a notary public or a Plan representative, which consents to the payment of
all or a specified portion of a Participant's death benefit to a Beneficiary
other than such Spouse and which acknowledges that such Spouse has waived his
right to be the Participant's Beneficiary under the Plan. A Qualified Spousal
Waiver shall be valid only with respect to the Spouse who signs it and shall
apply only to the alternative Beneficiary designated therein, unless the
written election expressly permits other designations without further consent
of the Spouse. A Qualified Spousal Waiver shall be irrevocable unless revoked
by the Participant by way of (i) a written statement executed by the
Participant and delivered to the Administrative Committee or (ii) a written
revocation of the nonspouse Beneficiary designation to which such Spouse has
consented; provided, any such revocation must be received by the Administrative
Committee prior to the Participant's date of death.
1.70 Related Company shall mean, as of any date, any Participating
Company which is an Affiliate solely because the Controlling Company has
permitted it to become a Participating Company, but which is not (i) a member
of the same controlled group of corporations [within the meaning of Code
Section 414(b)], (ii) a member of a group of trades or businesses under common
control [within the meaning of Code Section 414(c)], (iii) a member of an
affiliated service group [within the meaning of Code Section 414(m)], or (iv)
required to be aggregated with a group [in accordance with Code Section
414(o)], which includes the Controlling Company.
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1.71 Required Aggregation Group shall mean the group of plans
described in Section 13.2(b)(5).
1.72 Rollover Account shall mean the separate subaccount
established and maintained on behalf of a Participant or his Beneficiary to
reflect his interest in the Trust Fund attributable to Rollover Contributions.
1.73 Rollover Contributions shall mean the amounts contributed to
the Trust Fund (and received and accepted by the Trustee) as "rollover"
contributions as defined in Code Section 402 and/or Eligible Rollover
Distributions. An amount shall be treated as a Rollover Contribution only to
the extent that its acceptance by the Trustee is permitted under the Code
(including the regulations and rulings promulgated thereunder).
1.74 Severance Date shall mean, with respect to an employee of an
Affiliate, the earliest of:
(i) the date employment with all Affiliates
terminates (such that he ceases to be credited with Hours of Service);
(ii) the first anniversary of the first date such
employee is absent from employment with all Affiliates (with or
without pay) for any reason other than his termination of employment,
Leave of Absence or Disability (for example, vacation or layoff); or
1.75 Specified Matching Compensation Percentage shall mean the
percentage of Compensation that is specified by the Board for the Plan Year for
purposes of determining the maximum amount of Matching Contributions for such
Plan Year.
1.76 Spouse or Surviving Spouse shall mean, with respect to a
Participant, the person who is treated as married to such Participant under the
laws of the state in which the Participant resides. The determination of a
Participant's Spouse or Surviving Spouse shall be made as of the earlier of the
date as of which benefit payments from the Plan to such Participant are made or
commence (as applicable) or the date of such Participant's death. In addition,
a Participant's former spouse shall be treated as his Spouse or Surviving
Spouse to the extent provided under a qualified domestic relations order, as
defined in Code Section 414(p).
1.77 Staffing Employee shall mean an Employee designated as a
"staffing employee" under the Controlling Company's customary employment
classification practices. Staffing Employees generally perform services for
clients of a Participating Company on assignments which have an expected
duration of at least 1 year and in connection with which such clients generally
have requested that the Participating Company provide benefits for such
Employees.
1.78 Tascor Plan shall mean the Tascor Retirement Savings Plan,
which shall be merged with and into the Plan effective as of December 31, 1994.
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1.79 Temporary Services Employee shall mean an Employee designated
as a "temporary services employee" under the Controlling Company's customary
employment classification practices. Temporary Services Employees generally
perform services for clients of a Participating Company on the basis of
assignments of relatively short duration.
1.80 Top-Heavy Group shall mean the group of plans described in
Section 13.2(b)(6).
1.81 Top-Heavy Plan shall mean a plan to which the conditions set
forth in Article XIII apply.
1.82 Trust or Trust Agreement shall mean the separate agreement
between the Controlling Company and the Trustee governing the creation of the
Trust Fund, and all amendments thereto.
1.83 Trustee shall mean the party or parties so designated from
time to time pursuant to the Trust Agreement.
1.84 Trust Fund shall mean the total amount of cash and other
property held by the Trustee (or any nominee thereof) at any time under the
Trust Agreement.
1.85 Valuation Date shall mean each Business Day; provided, the
value of an Account or the Trust Fund on a day other than a Business Day shall
be the value determined for the immediately preceding Business Day.
1.86 Years of Service shall mean, with respect to a Participant,
the number of whole 12-month periods of service commencing on the employee's
Employment Date and ending on his Severance Date, subject to the following
provisions:
(a) Aggregation Rule. In determining an employee's
number of whole 12-month periods of service for purposes of this Section,
nonsuccessive periods of service shall be aggregated (to the extent that any
portion of such service is not excluded pursuant to the terms of subsection (c)
or (d) hereof) on the basis of days of service, with 365 days (366 days in a
leap year) of service equal to one Year of Service. Periods of service of less
than 365 days (366 days in a leap year) shall be disregarded.
(b) Counting Periods of Severance. In determining an
employee's periods of service for purposes of this Section, the following
periods of severance shall be taken into account and treated as periods of
service:
(i) If an employee's employment with all
Affiliates terminates and the employee then performs an Hour of
Service within 12 months of his Severance Date, the period between his
Severance Date and his next, succeeding Employment Date shall be
treated as a period of service; and
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(ii) If an employee's employment with all
Affiliates terminates before the end of the initial 12-month period
that begins on the first date such employee is absent from employment
with all Affiliates for any reason other than termination of his
employment (for example, vacation, disability, Leave of Absence or
layoff), and if such employee then performs an Hour of Service before
the end of said initial 12-month period, the period from his initial
date of absence to his next succeeding Employment Date shall be
treated as a period of service.
(c) Pre-Break Service. Service shall include any period
of time prior to a Break in Service unless the employee was not vested in his
Account prior to the Break in Service and has incurred 5 or more consecutive
1-year Breaks in Service.
(d) Post-Break Service. If a former employee is rehired
after one or more consecutive 1-year Breaks in Service and completes 1 Year of
Service after his latest Employment Date, Years of Service after his latest
Employment Date shall count in vesting his Account that accrued before such
Break in Service, as long as the employee has not incurred 5 or more
consecutive 1-year Breaks in Service prior to such latest Employment Date.
(e) Predecessor Plan. To the extent required by Code
Section 414(a)(1) and not otherwise counted hereunder, if an Affiliate
maintains a plan that is or was the qualified retirement plan of a predecessor
employer, an Employee's periods of employment with such predecessor employer
shall be taken into account in determining his Years of Service.
(f) Predecessor Employer. To the extent determined by
the Administrative Committee, set forth on a schedule hereto and not otherwise
counted hereunder, an Employee's periods of employment with one or more
companies or enterprises acquired by or merged into, or all or a portion of the
assets or business of which are acquired by, an Affiliate shall be taken into
account in determining his Years of Service. For purposes hereof, acquisition
of all or a portion of a business of a company or enterprise shall include an
Affiliate's agreement to perform services for a client and to correspondingly
employ some or all of the individuals previously performing such services for,
as employees of, such client.
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ARTICLE II
ELIGIBILITY
2.1 Initial Eligibility Requirements.
(a) General Rule. Except as provided in subsections (b),
(c) and (d) hereof, every Covered Employee shall become an Active Participant
in the Plan on the Entry Date coinciding with or next following the first date
on which he has completed 1 Year of Service, provided he is a Covered Employee
on such Entry Date.
(b) Grandfathered Participants. Each Covered Employee who
is an Active Participant in the Plan on the day immediately preceding the
Effective Date shall continue as an Active Participant in accordance with the
terms of the Plan.
(c) New Participating Companies. For employees of
companies that become Participating Companies after the Effective Date, each
Covered Employee employed by a Participating Company on the date such
Participating Company first becomes a Participating Company shall become an
Active Participant as of such Participating Company's effective date under the
Plan, if, as of the Participating Company's effective date, the Covered
Employee has completed 1 Year of Service (calculated from the date he first
completes an Hour of Service with the new Participating Company or any other
Affiliate).
2.2 Treatment of Interruptions of Service.
(a) Leave of Absence or Layoff. If a Covered Employee
satisfies the eligibility requirements set forth in Section 2.1 but is on a
Leave of Absence or is laid off at the time he would have become an Active
Participant, he shall become an Active Participant on the date he subsequently
resumes the performance of duties as a Covered Employee in accordance with the
terms of his Leave of Absence or layoff, with such active participation being
retroactively effective (to the extent feasible) as of the Entry Date he would
have become an Active Participant but for his Leave of Absence or layoff.
(b) Reemployment Before Break in Service. If a Covered
Employee satisfies the eligibility requirements set forth in Section 2.1,
terminates employment with the Participating Company before the Entry Date on
which he otherwise would become an Active Participant, and then is reemployed
by the Participating Company prior to completing a Break in Service, he shall
become an Active Participant as of the later of (i) the Entry Date on which he
otherwise would have become an Active Participant if he had not terminated
employment or (ii) the date he is reemployed as a Covered Employee.
(c) Reemployment After Break in Service. If a Covered
Employee satisfies the eligibility requirements set forth in Section 2.1,
terminates employment with the Participating Company before the Entry Date on
which he otherwise would become an Active Participant, and
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then is reemployed as a Covered Employee by the Participating Company after
completing a Break in Service, he shall become an Active Participant as of the
Entry Date coinciding with or next following his completion of 1 Year of
Service (calculated from the date he first completes an Hour of Service
following his last Break in Service).
(d) Reparticipation Upon Reemployment. If an Active
Participant terminates employment with all Participating Companies, his active
participation in the Plan shall cease immediately, and he again shall become an
Active Participant as of the day he again becomes a Covered Employee. However,
regardless of whether he again becomes an Active Participant, he shall continue
to be a Participant until he no longer has an Account under the Plan.
2.3 Change in Status.
(a) Loss of Covered Employee Status. If a Covered
Employee (i) satisfies the eligibility requirements set forth in Section 2.1,
(ii) changes his employment status (but remains employed) so that he ceases to
be a Covered Employee before the Entry Date on which he otherwise would become
an Active Participant, and (iii) then again changes his employment status and
becomes a Covered Employee prior to completing a Break in Service, he shall
become an Active Participant as of the date he again becomes a Covered
Employee. If an Employee covered by this subsection does complete a Break in
Service prior to again becoming a Covered Employee, his entry to participation
in the Plan will be governed by Section 2.2(c).
(b) Change to Covered Employee Status. If an Employee
who first satisfies the eligibility requirements of Section 2.1 while he is
not a Covered Employee subsequently changes his employment status so that he
becomes a Covered Employee, he shall become an Active Participant on the Entry
Date coinciding with or next following the date of his change in status.
(c) Change by Participant. If an Active Participant
changes his status of employment (but remains employed) so that he is no longer
a Covered Employee, his active participation in the Plan shall cease
immediately, and he shall again become an Active Participant in the Plan as of
the day he again becomes a Covered Employee. However, regardless of whether he
again becomes an Active Participant, he shall continue to be a Participant
until he no longer has an Account under the Plan.
2.4 Limited Participation by Certain Employees.
Notwithstanding anything herein to the contrary, Management
Services Employees and Staffing Employees shall be eligible to make Rollover
Contributions and Before-Tax Contributions to the Plan but shall not be
eligible to receive allocations of Matching Contributions for any period in
which they are employed in such status, as provided in Section 1.37 and
Section 3.2.
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ARTICLE III
CONTRIBUTIONS
3.1 Before-Tax Contributions.
(a) Before-Tax Contributions. Each Participating Company
shall contribute to the Plan, on behalf of each Active Participant employed by
such Participating Company for each regular payroll period and for each other
payment of Compensation (such as cash bonuses) for which such Active
Participant has a Deferral Election in effect with such Participating Company,
a Before-Tax Contribution in an amount equal to the amount by which such Active
Participant's Compensation has been reduced for such period pursuant to his
Deferral Election. The amount of the Before-Tax Contribution shall be
determined in increments of 1 percent of such Active Participant's Compensation
for each payroll period or such other increment as the Administrative Committee
may permit. The Active Participant may elect to reduce his Compensation for
any period by a minimum of 1 percent and a maximum of 15 percent (or such other
minimum and maximum percentages and/or amounts, if any, established by the
Administrative Committee from time-to-time); provided, the maximum limitations
in Article VI shall apply.
(b) Deferral Elections. Each Active Participant who
desires that his Participating Company make a Before-Tax Contribution on his
behalf shall make a Deferral Election that shall provide for the reduction of
his Compensation for each regular payroll period ending or occurring while he
is an Active Participant employed by such Participating Company. The
Administrative Committee, in its sole discretion, may also prescribe such
nondiscriminatory terms and conditions governing the method of making such
election as it deems appropriate. Subject to any modifications, additions or
exceptions which the Administrative Committee, in its sole discretion, deems
necessary, appropriate or helpful, the following terms shall apply to Deferral
Elections:
(1) Effective Date. An Active Participant's
initial Deferral Election with a Participating Company shall be
effective for the first payroll period which ends after the Deferral
Election is made and after the effective date of such Deferral
Election. If an Active Participant fails to make a Deferral Election
in a timely manner, he shall be deemed to have elected a deferral of
zero percent. For purposes of this subsection, the "effective date"
of a Deferral Election shall mean: (A) for a Participant who
commences participation in the Plan on an Entry Date, that Entry Date;
and (B) for a Participant who commences or recommences participation
in the Plan on a date other than an Entry Date, the Entry Date next
following the Participant's commencement of participation in the Plan.
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(2) Term. Each Active Participant's Deferral
Election with a Participating Company shall remain in effect in
accordance with its original terms until the earlier of (A) the date
the Active Participant ceases to be a Covered Employee of all
Participating Companies, (B) the date the Active Participant revokes
such Deferral Election pursuant to the terms of subsection (c)(3)
hereof, or (C) the date the Active Participant or the Administrative
Committee modifies such Deferral Election pursuant to the terms of
subsection (c)(4) or (c)(5) hereof. If a Participant is transferred
from the employment of a Participating Company to the employment of
another Participating Company, his Deferral Election with the first
Participating Company will remain in effect and will apply to his
Compensation from the second Participating Company until the earlier
of (A), (B) or (C) of the preceding sentence.
(3) Revocation. An Active Participant's Deferral
Election shall terminate upon his ceasing to be a Covered Employee.
In addition, an Active Participant may revoke his Deferral Election
with a Participating Company by giving notice of revocation, on a form
provided by the Administrative Committee in such other manner as the
Administrative Committee may prescribe, and such revocation shall be
effective as soon as practicable after the date on which it is given.
An Active Participant who revokes a Deferral Election may enter into a
new Deferral Election, effective for the first payroll period which
both begins after the new Deferral Election is made and ends after any
Entry Date; provided, the Administrative Committee, in its sole
discretion, may specify a suspension period for all Participants who
voluntarily revoke their Deferral Election(s), such that any new
Deferral Election shall not be effective until a later Entry Date.
(4) Modification by Participant. Effective for
the first payroll period which both begins after a new Deferral
Election is made and ends after any Entry Date, an Active Participant
may modify his existing Deferral Election to increase or decrease the
percentage of his Before-Tax Contributions by making a new Deferral
Election.
(5) Modification by Administrative Committee.
Notwithstanding anything herein to the contrary, the Administrative
Committee may modify any Deferral Election of any Active Participant
at any time by decreasing the percentage of any Before-Tax
Contributions to any extent the Administrative Committee believes
necessary to comply with the limitations described in Article VI.
3.2 Basic Matching Contributions.
For each Active Participant (other than a Management Services
or Staffing Employee) on whose behalf a Participating Company has made, with
respect to a payroll period, any Before-Tax Contributions, such Participating
Company shall make, with respect to such payroll period, a Basic Matching
Contribution equal to such percentage of the amount of such Before-Tax
Contributions as the Administrative Committee, in its sole discretion, may
decide from time to time; provided, the total amount of the Basic Matching
Contribution which a
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Participating Company shall make for any Active Participant shall not exceed
an amount determined by multiplying such matching percentage by the portion of
such Participant's Before-Tax Contribution that does not exceed the Specified
Matching Compensation Percentage of such Active Participant's Compensation for
such payroll period (that is, the Basic Matching Contribution as determined by
the Administrative Committee will not be applied to the amount of a Before-Tax
Contribution that exceeds the Specified Matching Compensation Percentage of a
Participant's Compensation). Until the Administrative Committee determines
otherwise, the amount of Basic Matching Contributions shall be determined in
accordance with Schedule B hereto.
3.3 Additional Discretionary Matching Contributions.
The Participating Companies may, but shall not be required to,
make an Additional Discretionary Matching Contribution to the Plan with respect
to each Plan Year. Subject to the limitations set forth in Section 6.1,
Section 6.4 and Section 6.7, the amount of any such Discretionary Contribution
shall be determined at the discretion of the Board; provided, the Board may
delegate this authority to the Administrative Committee. If the Participating
Companies make an Additional Discretionary Matching Contribution to the Plan
for a Plan Year, each Participating Company shall contribute to the Plan for
such Plan Year the same percentage of the total Before-Tax Contributions
(calculated by taking into account only the amount of Before-Tax Contributions
for any Participant that is not in excess of the Specified Matching
Compensation Percentage of his Compensation for the Plan Year) that the
Participating Company defers for its Employees who are Eligible Participants
for such Plan Year.
3.4 Form of Contributions.
All Contributions shall be paid to the Trustee in the form of
cash or Norrell Stock or a combination thereof, as the Controlling Company or
Administrative Committee may determine from time to time.
3.5 Timing of Contributions.
(a) Before-Tax Contributions. Each Participating Company
that withholds Before-Tax Contributions from an Active Participant's paycheck
pursuant to a Deferral Election shall pay such Before-Tax Contributions to the
Trustee as of the earliest date (not to exceed 90 days from the date on which
such amounts otherwise would have been payable to such Active Participant in
cash) on which such Contributions can reasonably be segregated from the
Participating Company's general assets.
(b) Matching Contributions. Each Participating Company
shall pay its Matching Contributions to the Trustee (i) on or before the date
for filing its federal income tax return (including extensions thereof) for the
tax year to which such Matching Contributions relate, or (ii) on or before such
other date as shall be within the time allowed to permit the Participating
Company to properly deduct, for federal income tax purposes and for the tax
year
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of the Participating Company in which the obligation to make such Contributions
was incurred, the full amount of such Matching Contributions.
3.6 Contingent Nature of Company Contributions.
Notwithstanding Section 3.1 and subject to the terms of
Section 14.11, each Company Contribution made to the Plan by a Participating
Company is made expressly contingent upon the deductibility thereof for federal
income tax purposes for the taxable year of the Participating Company with
respect to which such Company Contribution is made.
3.7 Restoration of Forfeitures.
If a Participant has forfeited his nonvested Account in
accordance with Section 8.3, and such Participant subsequently is rehired as a
Covered Employee prior to the occurrence of 5 consecutive Breaks in Service, his
Account shall be credited with all of the benefits (unadjusted for gains or
losses) which were forfeited, as determined pursuant to the terms of Section
8.3.
3.8 Pre-1995 Employer Contributions.
Notwithstanding Section Section 3.2 and 3.3 hereof, which shall
be effective for Plan Years beginning on and after January 1, 1995, employer
contributions for the Plan Year ending December 31, 1994 shall be determined
and made in accordance with Schedule C hereto, which reflects the separate
provisions of the Plan and the Tascor Plan as in effect immediately prior to
the merger of such plans effective December 31, 1994.
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ARTICLE IV
ROLLOVER CONTRIBUTIONS
4.1 Rollover Contributions.
(a) Request by Covered Employee. A Covered Employee may
make a written request to the Administrative Committee that he be permitted to
contribute, or cause to be contributed, to the Trust Fund a Rollover
Contribution which is received by such Covered Employee or to which such
Covered Employee is entitled. Such written request shall contain information
concerning the type of property constituting the Rollover Contribution and a
statement and/or other documentation, satisfactory to the Administrative
Committee, that the property constitutes a Rollover Contribution. If a Covered
Employee who is not a Participant makes a Rollover Contribution, the time and
method of distribution of such Covered Employee's Rollover Account shall be
determined under the terms of the Plan as if such Covered Employee were a
Participant, but he shall not be considered a Participant under the Plan for
any other purpose.
(b) Acceptance of Rollover. Subject to the terms of the
Plan and the Code (including regulations and rulings promulgated thereunder),
the Administrative Committee, in its sole discretion, shall determine whether
(and if so, under what conditions and in what form) a Rollover Contribution
shall be accepted at any time by the Trustee. For example, the Administrative
Committee, in its sole discretion, may decide to allow Rollover Contributions
from Participants and/or direct Rollover Contributions from another qualified
retirement plan [as described in Code Section 401(a)(31)]. In the event the
Administrative Committee permits an Active Participant to make a Rollover
Contribution, the amount of the Rollover Contribution shall be transferred to
the Trustee and allocated as soon as practicable thereafter to a Rollover
Account for the Active Participant. Unless the Administrative Committee
permits otherwise, all Rollover Contributions shall be made in cash.
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ARTICLE V
PARTICIPANTS' ACCOUNTS; CREDITING AND ALLOCATIONS
5.1 Establishment of Participants' Accounts.
To the extent appropriate, the Administrative Committee shall
establish and maintain, on behalf of each Participant and Beneficiary, an
Account which shall be divided into segregated subaccounts. The subaccounts
shall include Before-Tax, Basic Matching, Additional Discretionary Matching,
Profit Sharing and Rollover Accounts and such other subaccounts as the
Administrative Committee shall deem appropriate or helpful. Each Account shall
be credited with Contributions allocated to such Account and generally shall be
credited with income on investments derived from the assets of such Accounts.
Notwithstanding anything herein to the contrary, while Contributions may be
allocated to a Participant's Account as of a particular date (as specified in
the Plan), such Contributions shall actually be added to a Participant's
Account and shall be credited with investment experience only from the date
such Contributions are received and credited to the Participant's Account by
the Trustee. Each Account of a Participant or Beneficiary shall be maintained
until the value thereof has been distributed to or on behalf of such
Participant or Beneficiary.
5.2 Allocation and Crediting of Before-Tax, Basic Matching and
Rollover Contributions.
As of each Valuation Date coinciding with or immediately
following the date on which Before-Tax, Basic Matching and Rollover
Contributions are received on behalf of an Active Participant, such
Contributions shall be allocated and credited directly to the appropriate
Before-Tax, Basic Matching and Rollover Accounts, respectively, of such Active
Participant.
5.3 Allocation and Crediting of Additional Discretionary Matching
Contributions.
As of the last day of each Plan Year for which the
Participating Companies make (or are deemed to have made) Additional
Discretionary Matching Contributions, each Eligible Participant for such Plan
Year shall have allocated and credited to his Additional Discretionary Matching
Account a portion of such Additional Discretionary Matching Contributions.
Such Contributions shall be allocated to the Additional Discretionary Matching
Account of each Eligible Participant in the same proportion that (i) such
Eligible Participant's Before-Tax Contributions of the Plan Year that do not
exceed the Specified Matching Compensation Percentage of his Compensation for
the Plan Year, bears to (ii) the total of all such Eligible Participants'
Before-Tax Contributions for the Plan Year (calculated by taking into account
for each such Eligible Participant only his Before-Tax Contributions that do
not exceed the Specified Matching Compensation Percentage of his Compensation
for such Plan Year).
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5.4 Allocation and Crediting of Investment Experience.
As of each Valuation Date, the Trustee shall determine the
fair market value of the Trust Fund which shall be the sum of the fair market
values of the Investment Funds. The Administrative Committee shall determine
the amount of the Accounts as follows:
(a) Determination of Earnings or Losses. As of each
Valuation Date, the investment earnings (or losses) of each Investment Fund
shall be the amount by which the sum determined in (1) exceeds (or is less
than) the sum determined in (2), where (1) and (2) are as follows:
(1) The sum of (A) the fair market value of such
Investment Fund as of such Valuation Date, plus (B) the amount of
distributions and withdrawals and any transfers to other Investment
Funds made since the immediately preceding Valuation Date from amounts
invested in the Investment Fund; and
(2) The sum of (A) the fair market value of the
Investment Fund as of the immediately preceding Valuation Date, plus
(B) Contributions deposited in and amounts transferred to such
Investment Fund since the immediately preceding Valuation Date.
(b) Formula For Allocation. To the extent directed by
the Administrative Committee, investment earnings initially shall be used to
restore a rehired Participant's Account as provided in Section 3.7 or to replace
abandoned Accounts as provided in Section 9.8. As of each Valuation Date and
prior to the allocations described in Section 5.2 and Section 5.3, each
Participant's Account shall be allocated and credited with a portion of such
earnings or debited with a portion of such losses of each Investment Fund, as
determined in accordance with subsection (a) hereof, in the proportion that
(i)(A) the amount credited to such Account that was invested in such Investment
Fund as of the immediately preceding Valuation Date, minus (B) any
distributions or withdrawals or transfers to other Investment Funds which were
made from such Account since such preceding Valuation Date and on or before
such current Valuation Date, plus (C) any amounts transferred to such
Investment Fund since the immediately preceding Valuation Date; bears to
(ii)(A) the total amount invested in such Investment Fund by all Participants
as of the immediately preceding Valuation Date, minus (B) any distributions or
withdrawals or transfers to other Investment Funds which were made since such
preceding Valuation Date and on or before such current Valuation Date, plus
(C) any amounts transferred to such Investment Fund since the immediately
preceding Valuation Date.
5.5 Allocation of Forfeitures.
To the extent Forfeitures for a Plan Year are not used to
restore a rehired Participant's Account as provided in Section 3.7 or to replace
abandoned Accounts as provided in Section 9.8, such Forfeitures shall be used to
reduce the Participating Companies' obligation to make Matching Contributions
pursuant to the terms of the Plan, and such Forfeitures shall be allocated
pursuant to the terms of Section 5.2 and Section 5.3, as applicable.
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5.6 Notice to Participants of Account Balances.
At least once for each Plan Year, the Administrative Committee
shall cause a written statement of a Participant's Account balance to be
distributed to the Participant.
5.7 Good Faith Valuation Binding.
In determining the value of the Trust Fund and the Accounts,
the Trustee and the Administrative Committee shall exercise their best
judgment, and all such determinations of value (in the absence of bad faith)
shall be binding upon all Participants and Beneficiaries.
5.8 Errors and Omissions in Accounts.
If an error or omission is discovered in the Account of a
Participant or Beneficiary, the Administrative Committee shall cause
appropriate, equitable adjustments to be made as of the Valuation Date
coinciding with or immediately following the discovery of such error or
omission.
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ARTICLE VI
CONTRIBUTION AND SECTION 415 LIMITATIONS
AND NONDISCRIMINATION REQUIREMENTS
6.1 Deductibility Limitations.
In no event shall the total Company Contribution amount for
any taxable year of a Participating Company exceed that amount which is
properly deductible for federal income tax purposes under the then appropriate
provisions of the Code. Generally, the maximum, tax-deductible Company
Contribution amount for any taxable year of a Participating Company shall be
equal to 15 percent of the total Compensation paid or accrued during such
taxable year to all Participants employed by the Participating Company;
provided, no Company Contribution amount shall be deductible if it shall cause
the Plan to exceed the applicable maximum allocation limitations under Code
Section 415, as described in Section 6.7. For purposes of this Section, a
Company Contribution may be deemed made by a Participating Company for a
taxable year if it is paid for such year to the Trustee on or before the date
of filing the Participating Company's federal income tax return (including
extensions thereof) for that year or on or before such other date as shall be
within the time allowed to permit proper deduction by the Participating
Company of the amount so contributed for federal income tax purposes for the
year in which the obligation to make such Company Contribution was incurred.
6.2 Maximum Limitation on Elective Deferrals.
(a) Maximum Elective Deferrals Under Participating
Company Plans. The aggregate amount of a Participant's Elective Deferrals made
for any calendar year under the Plan and any other plans, contracts or
arrangements with the Participating Companies shall not exceed the Maximum
Deferral Amount.
(b) Return of Excess Before-Tax Contributions. If the
aggregate amount of a Participant's Before-Tax Contributions made for any
calendar year by itself exceeds the Maximum Deferral Amount, the Participant
shall be deemed to have notified the Administrative Committee of such excess,
and the Administrative Committee shall cause the Trustee to distribute to such
Participant, on or before April 15 of the next succeeding calendar year, the
total of (i) the amount by which such Before-Tax Contributions exceed the
Maximum Deferral Amount, plus (ii) any earnings allocable thereto (including,
in the Administrative Committee's discretion, any gap income). In addition,
Matching Contributions made on behalf of the Participant which are attributable
to the distributed Before-Tax Contributions shall be forfeited.
(c) Return of Excess Elective Deferrals Provided by Other
Participating Company Arrangements. If after the reduction described in
subsection (b) hereof, a Participant's aggregate Elective Deferrals under
plans, contracts and arrangements with Participating Companies still exceed the
Maximum Deferral Amount, then, the Participant shall be deemed
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to have notified the Administrative Committee of such excess, and,
unless the Administrative Committee directs otherwise, such excess shall be
reduced by distributing to the Participant Elective Deferrals that were made
for the calendar year under such plans, contracts and/or arrangements with
Participating Companies other than the Plan. However, if the Administrative
Committee decides to make any such distributions from Before-Tax Contributions
made to the Plan, such distributions (including forfeiture of Matching
Contributions) shall be made in a manner similar to that described in
subsection (b) hereof.
(d) Discretionary Return of Elective Deferrals. If after
the reductions described in subsections (b) and (c) hereof, (i) a Participant's
aggregate Elective Deferrals made for any calendar year under the Plan and any
other plans, contracts or arrangements with Participating Companies and any
other employers still exceed the Maximum Deferral Amount, and (ii) such
Participant submits to the Administrative Committee, on or before the March 1
following the end of such calendar year, a written request that the
Administrative Committee distribute to such Participant all or a portion of his
remaining Before-Tax Contributions made for such calendar year, and any
earnings attributable thereto (including, in the Administrative Committee's
discretion, any gap income), then the Administrative Committee may, but shall
not be required to, cause the Trustee to distribute such amount to such
Participant on or before the following April 15. However, if the
Administrative Committee decides to make any such distributions from Before-Tax
Contributions made to the Plan, such distributions (including forfeiture of
Matching Contributions) shall be made in a manner similar to that described in
subsection (b) hereof.
(e) Return of Excess Annual Additions. Any Before-Tax
Contributions returned to a Participant to correct excess Annual Additions
shall be disregarded for purposes of determining whether the Maximum Deferral
Amount has been exceeded.
6.3 Nondiscrimination Requirements for Before-Tax Contributions.
(a) ADP Test. The annual allocation of the aggregate of
all Before-Tax Contributions shall satisfy at least one of the following ADP
Tests for each Plan Year:
(1) The ADP for the Highly Compensated Employees
who are Active Participants shall not exceed the product of (A) the
ADP for the Active Participants who are not Highly Compensated
Employees, multiplied by (B) 1.25; or
(2) The ADP for the Highly Compensated Employees
who are Active Participants shall not exceed the ADP for the Active
Participants who are not Highly Compensated Employees by more than 2
percentage points, nor shall it exceed the product of (A) the ADP of
the Active Participants who are not Highly Compensated Employees,
multiplied by (B) 2.
The ADP Tests described herein shall be performed separately with
respect to (a) the Controlling Company and its Affiliates, and (b) each Related
Company and its Affiliates.
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(b) Multiple Plans. If before-tax, matching and/or
supplemental contributions are made to one or more other plans [other than
employee stock ownership plans as described in Code Section 4975(e)(7)] which,
along with the Plan, are considered as a single plan for purposes of Code
Section 401(a)(4) or Section 410(b), such plans shall be treated as one plan
for purposes of this Section, and the before-tax and applicable matching and
supplemental contributions made to those other plans shall be combined with
the Before-Tax Contributions for purposes of performing the tests described in
subsection (a) hereof. In addition, the Administrative Committee may elect to
treat the Plan as a single plan along with the one or more other plans [other
than employee stock ownership plans as described in Code Section 4975(e)(7)]
to which before-tax, matching and/or supplemental contributions are made for
purposes of this Section; provided, the Plan and all of such other plans also
must be treated as a single plan for purposes of satisfying the requirements
of Code Section 401(a)(4) and Section 410(b) [other than the requirements of
Code Section 410(b)(2)(A)(ii)]. However, plans may be aggregated for purposes
of this subsection only if they have the same plan year.
(c) Adjustments to Actual Deferral Percentages. In the
event that the allocation of the Before-Tax Contributions for a Plan Year does
not satisfy one of the ADP Tests, by the last day of the Plan Year following
the Plan Year in which the annual allocation failed both of the ADP Tests, the
Administrative Committee may direct the Trustee to reduce the Before-Tax
Contributions taken into account with respect to Highly Compensated Employees
under such failed ADP Tests by an amount necessary to satisfy one of the ADP
Tests. Any amount by which Before-Tax Contributions are so reduced, plus any
earnings attributable thereto (including, in the Administrative Committee's
discretion, any gap income), shall be distributed to the Highly Compensated
Employees from whose Before-Tax Accounts such reductions shall have been made.
Such reductions in Before-Tax Contributions shall be made in accordance with,
and solely to the Accounts of those Highly Compensated Employees who are
affected by, the following procedure:
(A) First, the Before-Tax Contributions
of the Highly Compensated Employee(s) with the highest
ADP for such Plan Year shall be reduced by the lesser of (i)
the entire amount necessary to satisfy one of the ADP Tests,
or (ii) that part of the amount necessary to satisfy one of
the ADP Tests as shall cause the ADP of each such Highly
Compensated Employee to equal the ADP of each of the Highly
Compensated Employees with the next highest ADP for such Plan
Year. In addition, to the extent that a Highly Compensated
Employee's Before-Tax Contributions are reduced pursuant to
this Section, any Matching Contributions made on behalf of a
Highly Compensated Employee which are attributable to the
distributed Before-Tax Contributions shall be forfeited.
(B) Substantially identical steps shall
be followed for making further reductions in the Before-Tax
Contributions of each of the Highly Compensated Employees with
the next highest ADP for such Plan Year until one of the ADP
Tests has been satisfied.
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In reducing the Contributions of Highly Compensated Employees
in subsections (2)(A) and (B) hereof, the Administrative Committee
shall comply with the special "family member" rules contained in the
regulations under Code Section 401(m).
6.4 Nondiscrimination Requirements for Matching Contributions.
(a) ACP Test. The amount of the aggregate of all
Matching Contributions and, to the extent designated by the Administrative
Committee, Before-Tax Contributions made for each Plan Year, shall satisfy at
least one of the following ACP Tests:
(1) The ACP for the Highly Compensated Employees
who are Active Participants during the Plan Year shall not exceed the
product of (A) the ACP for the Active Participants who are not Highly
Compensated Employees during the Plan Year, multiplied by (B) 1.25; or
(2) The ACP for the Highly Compensated Employees
who are Active Participants during the Plan Year shall not exceed the
ACP for the Active Participants who are not Highly Compensated
Employees during the Plan Year by more than 2 percentage points, nor
shall it exceed the product of (A) the ACP of the Active Participants
who are not Highly Compensated Employees during the Plan Year,
multiplied by (B) 2.
The ACP Tests described herein shall be performed separately with
respect to (a) the Controlling Company and its Affiliates, and (b) each Related
Company and its Affiliates.
(b) Multiple Plans. If matching, after-tax, before-tax
and/or supplemental contributions are made to one or more other plans [other
than employee stock ownership plans as described in Code Section 4975(e)(7)]
which, along with the Plan, are considered as a single plan for purposes of Code
Section 401(a)(4) or Section 410(b), such plans shall be treated as one plan
for purposes of this Section, and the matching, after-tax, before-tax and
applicable supplemental contributions made to those other plans shall be
combined with the Matching and Before-Tax Contributions for purposes of
performing the tests described in subsection (a) hereof. In addition, the
Administrative Committee may elect to treat the Plan as a single plan along
with one or more other plans [other than employee stock ownership plans as
described in Code Section 4975(e)(7)] to which matching, after-tax, before-tax
and/or supplemental contributions are made for purposes of this Section;
provided, the Plan and all of such other plans also must be treated as a
single plan for purposes of satisfying the requirements of Code Section
401(a)(4) and Section 410(b) [other than the requirements of Code Section
410(b)(2)(A)(ii)]. However, plans may be aggregated for purposes of this
subsection only if they have the same plan year.
(c) Adjustments to Average Contribution Percentages. In
the event that the allocation of the Before-Tax and Matching Contributions for
a Plan Year, after the application of subsections (a) and (b) hereof, does not
satisfy one of the ACP Tests, by the last day of the Plan Year following the
Plan Year in which the annual allocation failed both of the ACP Tests, the
Administrative Committee may direct the Trustee to reduce the Matching
Contributions taken
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into account with respect to Highly Compensated Employees under such failed
ACP Tests by an amount necessary to satisfy one of the ACP Tests. Any amount
by which Matching Contributions are to be reduced, plus any earnings
attributable thereto (including, in the Administrative Committee's discretion,
any gap income), shall be forfeited and reallocated as Contributions as
described in Section 5.5 with respect to such Plan Year; provided, if the
Matching Contributions to be reduced are vested and therefore may not be
forfeited, those Matching Contributions (plus any earnings attributable
thereto) shall be distributed to the Highly Compensated Employees from whose
Matching Accounts such reductions have been made. Such reductions in
Contributions shall be made in accordance with, and solely to the Accounts of
those Highly Compensated Employees who are affected by, the following procedure:
(A) First, the Matching Contributions of
the Highly Compensated Employee(s) with the highest ACP
for such Plan Year shall be reduced by the lesser of (i) the
entire amount necessary to satisfy one of the ACP Tests, or
(ii) that part of the amount necessary to satisfy one of the
ACP Tests as shall cause the ACP of each such Highly
Compensated Employee to equal the ACP of each of the Highly
Compensated Employees with the next highest ACP(s) for such
Plan Year.
(B) The Administrative Committee shall
follow substantially identical steps for making further
reductions in the Contributions of each of the Highly
Compensated Employees with the next highest ACP for such Plan
Year until one of the ACP Tests has been satisfied.
In reducing the Contributions of Highly Compensated Employees in
subsections (2)(A) and (B) hereof, the Administrative Committee shall
comply with the special "family member" rules contained in the
regulations under Code Section 401(m).
6.5 Multiple Use of Tests.
(a) Aggregate Limitation. The sum of the ADP and the ACP
for a Plan Year for the entire group of eligible Highly Compensated Employees
who are Active Participants, following the application of Section Section
6.3(c) and 6.4(c) for such Plan Year, may not exceed the greater of (1) or (2)
below (or such other applicable limits as may be established under the Code,
regulations or otherwise):
(1) the sum of:
(A) 125 percent of the greater of (i)
the ADP of the group of non-Highly Compensated Employees
eligible under the Plan for the Plan Year, or (ii) the ACP of
the group of non-Highly Compensated Employees who are eligible
under the Plan for the Plan Year; plus
(B) the lesser of 2 plus or 2 times the
lesser of the amount determined in subsection (a)(1)(A)(i) or
(a)(1)(A)(ii) hereof; or
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(2) the sum of:
(A) 125 percent of the lesser of (i) the
actual deferral percentage of the group of non-Highly
Compensated Employees eligible under the Code Section 401(k)
arrangements for the Plan Year, or (ii) the ACP of the group
of non-Highly Compensated Employees who are eligible under the
Plan beginning with or within the plan year of the Code
Section 401(k) arrangement; plus
(B) the lesser of 2 plus or 2 times the
greater of the amount determined in subsection (a)(2)(A)(i)
or (a)(2)(A)(ii) hereof.
(b) Multiple Plans. If at least one Highly Compensated
Employee participates in another qualified retirement plan maintained by a
Participating Company which (i) permits before-tax contributions and/or
after-tax contributions or matching contributions, and (ii) is not aggregated
with the Plan for purposes of nondiscrimination testing, then the multiple use
aggregate limitations described in subsection (a) shall apply in testing the
Plan separately against each such other plan.
(c) Correction. If the maximum limitation of the
combination of the ADP and ACP, as described in subsection (a) hereof, is
exceeded, this excess shall be reduced or otherwise corrected by any method
permissible under Section 6.3 for satisfying the ADP Test or through any method
permitted under Section 6.4 to satisfy the ACP Test, or any combination
thereof. Any adjustment necessary to satisfy said maximum limitation shall be
made by adjusting the ADP's or the ACP's of Highly Compensated Employees.
(d) Application. This Section shall be operated and
interpreted in a manner consistent with regulations promulgated under Code
Section 401(m) and shall be applied separately with respect to (i) the
Controlling Company and its Affiliates and (ii) each Related Company and its
Affiliates.
6.6 Order of Application.
For any Plan Year in which adjustments shall be necessary or
otherwise made pursuant to the terms of Section Section 6.2, 6.3 and/or 6.4,
such adjustments shall be applied in the order prescribed by the Secretary of
Treasury in Treasury Regulations or other published authority.
6.7 Code Section 415 Limitations on Maximum Contributions.
(a) General Limit on Annual Additions. In no event shall
the Annual Addition to a Participant's Account for any Limitation Year, under
the Plan and any other Defined Contribution Plan maintained by an Affiliate,
exceed the lesser of:
(1) $30,000 [or, if greater, 25 percent of the
dollar limitation in effect under Code Section 415(b)(1)(A)]; or
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(2) 25 percent of such Participant's Compensation.
(b) Combined Plan Limitation. If an Employee is a
Participant in the Plan and any one or more Defined Benefit Plans, welfare
benefit funds [as defined in Code Section 419(d)] or individual medical
accounts [as defined in Code Section 415(l)(2)], maintained by an Affiliate,
the sum of his Defined Benefit Plan Fraction and his Defined Contribution Plan
Fraction shall not exceed 1.0 for any Limitation Year. (For purposes of this
subsection, any adjustments in the definition of "Compensation" permitted by
the Internal Revenue Service for purposes of determining this combined limit
are included herein by reference.) If any corrective adjustment in any
Participant's benefits is required to comply with this subsection, such
adjustment shall be made exclusively under the Defined Benefit Plans maintained
by the Affiliates. If an Employee is a Participant in the Plan and any one or
more other Defined Contribution Plans maintained by an Affiliate and a
corrective adjustment in such Participant's benefits is required to comply with
this subsection, such adjustment shall be made under the Plan.
(c) Correction of Excess Annual Additions. If, as a
result of a reasonable error in estimating a Participant's Compensation or
Elective Deferrals, or such other occurrences as the Internal Revenue Service
permits to trigger this subsection, the Annual Addition made on behalf of a
Participant exceeds the limitations set forth in this Section, the
Administrative Committee shall direct the Trustee to take the following
actions, specifying the amount of contributions involved:
(1) A Participant's Annual Addition first shall
be reduced by reducing his Before-Tax Contributions to the extent of any such
excess, up to the total amount of Before-Tax Contributions made on behalf of
such Participant, and the amount of the reduction (plus any investment earnings
thereon) shall be returned to such Participant. In addition, any Matching
Contributions (and earnings thereon) attributable to the returned Before-Tax
Contributions shall be forfeited and reallocated to the Matching Accounts of
Active Participants who otherwise are eligible for allocations of
Contributions, who are employed by the Participating Company or Companies
employing the Participant and who are not affected by such limitations, in the
same proportion as Matching Contributions otherwise are allocated to such
Accounts, disregarding the Compensation of those Active Participants whose
Annual Addition equals or exceeds the limitations hereunder.
(2) If the reallocation to the Accounts of other
Participants in the then current Limitation Year is impossible without causing
them or any of them to exceed the Annual Addition limitations described in this
Section, the amount that cannot be reallocated without exceeding such
limitations shall continue to be held in a suspense account and shall be
applied to reduce permissible Contributions in each successive year until such
amount is fully allocated; provided, so long as any suspense account is
maintained pursuant to this Section: (A) no Contributions shall be made to the
Plan which would be precluded by this Section; (B) investment gains and losses
of the Trust Fund shall not be allocated to such suspense account; and (C)
amounts in the suspense account shall be allocated in the same manner as
Contributions as of the earliest Valuation Date possible, until such suspense
account is exhausted.
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(d) Special Definitions Applicable to Code Section 415
Limitations.
(1) Annual Addition. For purposes of this
Section, the term "Annual Addition" for any Participant means the sum
for any Limitation Year of:
(A) contributions made by an Affiliate
on behalf of the Participant under all Defined Contribution
Plans;
(B) contributions made by the
Participant under all Defined Contribution Plans of an
Affiliate [excluding rollover contributions as defined in Code
Section 402(c)(4), 403(a)(4), 403(b)(8) and 408(d)(3) and
contributions of previously distributed benefits which result
in such a Plan's restoration of previously forfeited benefits
pursuant to Treasury Regulations Section 1.411(a)-7(d)];
provided, the Annual Additions limitation for Limitation Years
beginning before January 1, 1987 shall not be recomputed to
treat all after-tax Contributions as Annual Additions;
(C) forfeitures allocated to the
Participant under all Defined Contribution Plans of an
Affiliate;
(D) amounts allocated for the benefit of
the Participant after March 31, 1984, to an individual medical
account established under a pension or annuity plan maintained
by an Affiliate, as described in Code Section 415(l); and
(E) if the Participant was a key
employee [as defined in Code Section 419A(d)(3)] at any
time during the Plan Year during which or coincident with
which the Limitation Year ends or during any preceding Plan
Year, any amount paid or accrued after December 31, 1985 by an
Affiliate to a special account under a welfare benefit fund
[as defined in Code Section 419(e)] to provide post-retirement
medical or life insurance benefits to the Participant, as
described in Code Section 419A(d)(2).
Contributions do not fail to be Annual Additions merely because they
are (i) Before-Tax Contributions that exceed the Maximum Deferral
Amount, (ii) Before-Tax Contributions that cause the Plan to fail the
ADP Tests, or (iii) Matching Contributions that cause the Plan to fail
the ACP Tests, or merely because the Contributions described in
clauses (ii) and (iii) immediately above are corrected through
distribution or recharacterization; Contributions described in clause
(i) immediately above that are distributed in accordance with the
terms of Section 6.2 shall not be Annual Additions.
(2) Defined Benefit Plan. The term "Defined
Benefit Plan" shall mean any qualified retirement plan maintained by
an Affiliate which is not a Defined Contribution Plan.
(3) Defined Benefit Plan Fraction. The term
"Defined Benefit Plan
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Fraction" shall mean, with respect to a Participant for any Limitation
Year, a fraction, the numerator of which is his projected annual
benefit under all Defined Benefit Plans maintained by an Affiliate, as
determined as of the close of the Limitation Year, and the
denominator of which is the lesser of:
(A) 125 percent of the dollar limitation
in effect for such year under Code Section 415(b)(1)(A); or
(B) 140 percent of his average
compensation for his highest three consecutive plan years of
participation in such Defined Benefit Plans.
In appropriate cases, the Defined Benefit Plan Fraction will be
adjusted to reflect applicable transition rules provided by Code
Section 415 [inclusive of Code Section 415(b)] and the regulations
thereunder.
(4) Defined Contribution Plan. The term "Defined
Contribution Plan" shall mean any qualified retirement plan maintained
by an Affiliate which provides for an individual account for each
Participant and for benefits based solely on the amount contributed to
the Participant's account and any income, expenses, gains, losses and
forfeitures of accounts of other Participants, which may be allocated
to such Participant's account.
(5) Defined Contribution Plan Fraction. The term
"Defined Contribution Plan Fraction" shall mean, with respect
to a Participant for any Limitation Year, a fraction, the numerator of
which is the sum of the Annual Additions to his Accounts in this Plan
and to his accounts in any other Defined Contribution Plans required
to be aggregated with this Plan under Code Section 415(h), as of the
close of the Limitation Year, and the denominator of which is the sum
of the lesser of the following amounts determined separately for the
current Limitation Year and for each prior Limitation Year in which
the Participant was employed by an Affiliate:
(A) 125 percent of the dollar limitation
in effect under Code Section 415(c)(1)(A) as of the last day
of such Limitation Year; or
(B) 35 percent of the Participant's
Compensation from Affiliates for the Limitation Year.
In appropriate cases, the Defined Contribution Plan Fraction will be
adjusted to reflect applicable transition rules provided by Code
Section 415 and regulations thereunder.
(e) Compliance with Code Section 415. The limitations
in this Section are intended to comply with the provisions of Code Section 415
so that the maximum benefits permitted under plans of the Affiliates shall be
exactly equal to the maximum amounts allowed under Code Section 415 and the
regulations promulgated thereunder. The provisions of this Section generally
are effective as of the Effective Date, but to the extent the Code requires an
earlier or later effective date with
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respect to any portion(s) of this Section, such other effective date shall
apply. If there is any discrepancy between the provisions of this Section and
the provisions of Code Section 415 and the regulations promulgated thereunder,
such discrepancy shall be resolved in such a way as to give full effect to the
provisions of the Code.
6.8 Construction of Limitations and Requirements.
The descriptions of the limitations and requirements set forth
in this Article are intended to serve as statements of the minimum legal
requirements necessary for the Plan to remain qualified under the applicable
terms of the Code. The Participating Companies do not desire or intend, and
the terms of this Article shall not be construed, to impose any more
restrictions on the operation of the Plan than required by law. Therefore, the
terms of this Article and any related terms and definitions in the Plan shall
be interpreted and operated in a manner which imposes the least restrictions on
the Plan. For example, if use of a more liberal definition of "Compensation"
or a more liberal multiple use test is permissible at any time under the law,
then the more liberal provisions may be applied as if such provisions were
included in the Plan.
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ARTICLE VII
INVESTMENTS
7.1 Establishment of Trust Account.
All Contributions are to be paid over to the Trustee to be
held in the Trust Fund and invested in accordance with the terms of the Plan
and the Trust.
7.2 Investment Funds.
(a) Named Investment Funds. In accordance with
instructions from the Administrative Committee and the terms of the Plan and
the Trust, the Trustee shall establish and maintain for the investment of
assets of the Trust Fund, the following Investment Funds:
(i) Guaranteed Long-Term Account which generally
shall be invested in guaranteed investment contracts issued by
insurance companies.
(ii) Fidelity Asset Manager Fund which shall be
invested in both equity and fixed income securities.
(iii) Fidelity Advisor Growth Opportunities Fund
which shall be invested primarily in common stocks and securities
convertible into common stocks.
(iv) Twentieth Century Ultra Fund which shall be
invested in stocks of medium-sized companies.
(v) Warburg Pincus International Equity Fund
which shall be invested in equity securities of companies that have
their principal business activities and interests outside the United
States.
(vi) Norrell Stock Fund which shall be invested
exclusively in Norrell Stock.
(b) Other Investment Funds. At the proper direction of
the Investment Committee, the Trustee shall establish other Investment Funds
(or modify the investment mix of the Investment Funds), in addition to or in
lieu of the Investment Funds with the investment criteria described herein,
which may include, for example, other fixed income funds or one or more equity
funds. Such other Investment Funds shall be established without necessity of
amendment to the Plan and shall have the investment objectives prescribed by
the Investment Committee and to which the Trustee consents. Such other
Investment Funds also may be established and maintained for any limited
purpose(s) the Investment Committee may properly direct (for example, for the
investment of certain specified Accounts transferred from a prior plan).
Similarly, at the proper direction of the Investment Committee, the Trustee may
eliminate one or more of the then existing Investment Funds.
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(c) Reinvestment of Cash Earnings. Any investment
earnings received in the form of cash with respect to any Investment Fund (in
excess of the amounts necessary to make cash distributions or to pay Plan or
Trust expenses) shall be reinvested in such Investment Fund.
7.3 Participant Direction of Investments.
Each Participant or Beneficiary generally may direct the
manner in which his Before-Tax, Basic Matching and Rollover Contributions and
Accounts shall be invested in and among the Investment Funds described in
Section 7.2(a); provided, such investment directions shall be made in
accordance with the following terms:
(a) Investment of Contributions. Except as otherwise
provided in this Section, each Participant may elect, on a form provided by the
Administrative Committee, through an interactive telephone system or in such
other manner as the Administrative Committee may prescribe, the percentage of
his future Before-Tax, Basic Matching and Rollover Contributions that will be
invested in each Investment Fund. An initial election of a Participant shall
be made as of the Entry Date coinciding with or immediately following the date
the Participant commences or recommences participation in the Plan and shall
apply to all such specified Contributions credited to such Participant's
Account after such Entry Date. Such Participant may make subsequent elections
as of any Business Day, and such elections shall apply to all such
Contributions credited to such Participant's Accounts after such date; for
purposes hereof, Contributions and/or Forfeitures that are credited to a
Participant's or Beneficiary's Account shall be subject to the investment
election in effect on the date on which such amounts are actually received and
credited, regardless of any prior date "as of" which such Contributions may
have been allocated to his Account. Any election made pursuant to this
subsection with respect to future Contributions shall remain effective until
changed by the Participant. In the event a Participant never makes an
investment election or makes an incomplete or insufficient election in some
manner, the Trustee, based on proper directions from the Administrative
Committee, shall direct the investment of the Participant's future
Contributions.
(b) Investment of Existing Account Balances. Except as
otherwise provided in this Section, each Participant or Beneficiary may elect,
on a form provided by the Administrative Committee, through an interactive
telephone system or in such other manner as the Administrative Committee may
prescribe, the percentage of his existing Before-Tax, Basic Matching and
Rollover Accounts that will be invested in each Investment Fund. Such
Participant or Beneficiary may make such elections effective as of any Business
Day following his Entry Date into the Plan. Each such election shall remain in
effect until changed by such Participant or Beneficiary. In the event a
Participant fails to make an election for his existing Account pursuant to the
terms of this subsection (b) which is separate from any election he made for
his Contributions pursuant to the terms of subsection (a) hereof, or if a
Participant's or Beneficiary's investment election is incomplete or
insufficient in some manner, the Participant's or Beneficiary's existing
Account will continue to be invested in the same manner provided under the
terms of the most recent election affecting his Account.
(c) Conditions Applicable to Elections. Allocations of
investments in the various Investment Funds, as described in subsections (a)
and (b) hereof, shall be made in even multiples of 5 percent as directed by the
Participant or Beneficiary. A Participant or Beneficiary
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51
may make an election under subsection (a) and (b) on any Business Day and as
frequently as he desires. The Administrative Committee shall have complete
discretion to adopt and revise procedures to be followed in making such
investment elections. Such procedures may include, but are not limited to, the
process of the election, the permitted frequency of making elections, the
deadline for making elections and the effective date of such elections;
provided, elections must be permitted at least once every 3 months. Any
procedures adopted by the Administrative Committee that are inconsistent with
the deadlines or procedures specified in this Section shall supersede such
provisions of this Section without the necessity of a Plan amendment.
(d) Restrictions on Investments. To the extent any
investment or reinvestment restrictions apply with respect to any Investment
Funds (for example, restrictions on changes of investments between competing
funds), those restrictions may limit a Participant's or Beneficiary's ability
to direct investments hereunder.
(e) Sales and Purchases of Norrell Stock. Up to 100
percent of the Trust Account may be invested in Norrell Stock by investing in
the Norrell Stock Fund, as follows:
(i) To the extent that any cash amounts received
by or held in the Trust Fund are to be invested in the Norrell Stock
Fund, the Trustee, as properly directed by the Administrative
Committee, shall effect purchases of whole shares of Norrell Stock
pursuant to the schedule described in subsection (e)(iii) hereof. The
Trustee shall make such purchases in compliance with all applicable
securities laws and may purchase Norrell Stock (i) in the open market,
(ii) in privately negotiated transactions with holders of Norrell
Stock and/or the Controlling Company, and/or (iii) through the
exercise of stock rights, warrants or options. Alternatively, the
Trustee may acquire the requisite number of shares of Norrell Stock
from shares already acquired for other Participants' Accounts and made
available pursuant to the procedure described in subsection (e)(ii)(B)
hereof. The Trustee shall make all purchases of Norrell Stock at a
price or prices which, in the judgment of the Trustee, do not exceed
the fair market value of such Norrell Stock as of the date of the
purchase; with respect to Norrell Stock purchased on the open market,
the total cost to Participants will include acquisition costs.
(ii) To the extent that any shares of Norrell
Stock held in the Trust Fund are to be liquidated for purposes of
investing in one or more of the other Investment Funds, making
distributions and/or otherwise, the Trustee, in a manner consistent
with the terms of subsection (e)(i) hereof, shall either (A) sell, at
fair market value, the appropriate number of shares of Norrell Stock
to effect such election, or (B) retain such shares for credit to other
Participants' Accounts; any shares of Norrell Stock so retained shall
be deemed to have been sold at fair market value on the day the
election to sell is to be effective as described in subsection
(e)(iii) hereof.
(iii) If Norrell Stock is to be purchased or sold,
such purchases and sales shall be made as soon as administratively
practicable.
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7.4 Investment of Additional Discretionary Matching and Profit
Sharing Accounts.
Except as otherwise directed or permitted by the Investment
Committee, all Additional Discretionary Matching and Profit Sharing Accounts
shall at all times be invested in the Norrell Stock Fund.
7.5 Valuation.
As of each Valuation Date, the Trustee shall determine the
fair market value of each of the Investment Funds after first deducting any
expenses which have not been paid by the Participating Companies. All costs
and expenses incurred in connection with Plan investments and, unless paid by
the Participating Companies, all costs and expenses incurred in connection with
the general administration of the Plan and the Trust shall be allocated between
the Investment Funds in the proportion in which the amount invested in each
Investment Fund bears to the amount invested in all Investment Funds as of the
appropriate Valuation Date; provided, all costs and expenses directly
identifiable to one Investment Fund shall be allocated to that Investment Fund.
Notwithstanding the foregoing, for accounting and reporting purposes, the
Norrell Stock Fund and, as permitted by the Administrative Committee, any other
Investment Funds for which share accounting is available shall be accounted for
in terms of whole and fractional shares of stock or other measures of
Investment Fund ownership interests, as applicable, as well as in terms of the
fair market value of such stock or ownership interests.
7.6 Voting and Tender Offer Rights With Respect to Norrell Stock.
(a) Voting Rights. All shares of Norrell Stock held in
the Trust shall be voted by the Trustee in accordance with the proper direction
of the Administrative Committee.
(b) Tender Offer Rights. Each Participant or Beneficiary
shall have the right to direct the Trustee as to whether, in accordance with
the terms of any tender offer for shares of Norrell Stock, to tender the whole
shares of Norrell Stock in his Account, and the Trustee shall follow such
directions to the extent they are proper. To the extent possible, the Trustee
shall combine fractional shares of Norrell Stock in the Accounts of
Participants or Beneficiaries and shall tender such fractional shares of
Norrell Stock in the same proportion as the whole shares of such Norrell Stock
are tendered by the tendering Participants or Beneficiaries. Unless otherwise
required by ERISA, the Trustee shall not tender whole shares of Norrell Stock
credited to a Participant's or Beneficiary's Account for which it has received
no directions from such Participant or Beneficiary.
(c) Confidentiality. The Administrative Committee shall
establish procedures to protect the tender offer rights of the Participants and
Beneficiaries and to assure that the manner in which each Participant or
Beneficiary exercises his tender offer rights is confidential with respect to
the Administrative Committee and the management of the Company.
(d) Dissemination of Pertinent Information. The
Administrative Committee shall deliver, or cause to be delivered, to each
Participant or Beneficiary, all materials relating to any tender offer,
including the materials distributed by any tender offerer (that is, any
bidder). The Administrative Committee shall notify each Participant or
Beneficiary of each occasion for
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the exercise of tender offer rights within a reasonable time before such
rights are to be exercised, and such notification shall include all of the
relevant information that the Controlling Company distributes to shareholders
regarding the exercise of such rights.
7.7 Voting and Tender Offer Rights with Respect to Investment
Funds Other Than the Norrell Stock Fund.
Only if, to the extent and in the manner, permitted by the
Trust and/or any documents establishing or controlling any of the Investment
Funds other than the Norrell Stock Fund, shall Participants and Beneficiaries
be given the opportunity to vote and tender their interests in each such
Investment Funds. Otherwise, such interests shall be voted and/or tendered by
the Investment Manager or other fiduciary that controls such Investment Fund,
as may be provided in the controlling documents.
7.8 Fiduciary Responsibilities for Investment Directions.
All fiduciary responsibility with respect to the selection of
Investment Funds for the investment of a Participant's or Beneficiary's
Accounts shall be allocated to the Participant or Beneficiary who directs the
investment. Neither the Administrative Committee, the Investment Committee,
the Trustee, nor any Participating Company shall be accountable for any loss
sustained by reason of any action taken, or investment made, pursuant to an
investment direction.
7.9 Appointment of Investment Manager; Authorization to Invest in
Collective Trust.
(a) Investment Manager. Either the Controlling Company,
through action of the Board, or the Investment Committee may appoint any one or
more individuals or entities to serve as the Investment Manager or Managers of
the entire Trust or of all or any designated portion of a particular Investment
Fund or Investment Funds. The Investment Manager shall certify that it is
qualified to act as an "investment manager" within the meaning of Section
3(38) of ERISA and shall acknowledge in writing its fiduciary status with
respect to the assets placed under its control. The appointment of the
Investment Manager shall be effective upon the Trustee's receipt of a copy of
an appropriate Board or Investment Committee resolution (or such later
effective date as may be contained therein), and the appointment shall
continue in effect until receipt by the Trustee of a copy of a Board or
Investment Committee resolution removing or accepting the resignation of the
Investment Manager (or such later effective date as may be specified therein).
If an Investment Manager is appointed, the Investment Manager shall have the
power to manage, acquire and dispose of any and all assets of the Trust Fund,
as the case may be, which have been placed under its control, except to the
extent that such power is reserved to the Trustee by the Controlling Company.
If an Investment Manager is appointed, the Trustee shall be relieved of any and
all liability for the acts or omissions of the Investment Manager, and the
Trustee shall not be under any obligation to invest or otherwise manage any
assets which are subject to the management of the Investment Manager.
(b) Collective Trust. Either the Controlling Company,
through action of the Board, or the Investment Committee may designate that all
or any portion of the Trust Fund shall be invested in a collective trust fund,
in accordance with the provisions of Revenue Ruling
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81-100 or any successor ruling, which collective trust fund shall have been
specifically identified in the Trust and adopted thereby as part of the Plan.
The trustee of said collective trust shall be appointed as either a co-trustee
or Investment Manager of the Plan, effective upon the Trustee's receipt of a
copy of an appropriate Board or Investment Committee resolution (or such later
effective date as may be contained therein), and the investment in said
collective trust shall continue in effect until receipt by the Trustee of a
copy of a Board or Investment Committee resolution terminating said investment
(or such later effective date as may be contained therein). Said designation
or direction shall be in addition to the powers to invest in commingled funds
maintained by the Trustee provided for in the Trust.
7.10 Purchase of Life Insurance.
Life insurance contracts shall not be purchased.
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ARTICLE VIII
VESTING IN ACCOUNTS
8.1 General Vesting Rule.
(a) General Vesting Schedule. All Participants who first
complete an Hour of Service on or after the Effective Date shall at all times
be fully vested in their Before-Tax and Rollover Accounts. Except as provided
in subsection (b) below and Section Section 8.2 and 8.3, the Matching and
Profit Sharing Accounts of such a Participant shall vest in accordance with the
following vesting schedule, based on the total of the Participant's Years of
Service:
Vested Percentage of
Years of Service Participant's Matching
Completed by Participant and Profit Sharing Account
------------------------ --------------------------
Less than 3 Years None
3 Years or more 100%
(b) Special Schedule for Certain Tascor Plan Participants.
Notwithstanding subsection (a) above, any Participant who, as of January 1,
1994, was within the class of Employees eligible to participate in the Tascor
Plan, shall become vested in his Matching and Profit Sharing Accounts in
accordance with the following vesting schedule:
Vested Percentage of
Years of Service Participant's Matching
Completed by Participant and Profit Sharing Account
------------------------ --------------------------
Less than 2 Years None
2 Years or more 100%
8.2 Vesting Upon Attainment of Normal Retirement Age, Death or
Disability.
Notwithstanding Section 8.1, a Participant's Matching and
Profit Sharing Accounts shall become 100 percent vested and nonforfeitable
upon the occurrence of any of the following events:
(a) The Participant's attainment of Normal Retirement Age
while still employed as an employee of any Affiliate;
(b) The Participant's death while still employed as an
employee of any Affiliate; or
(c) The Participant's becoming Disabled while still
employed as an employee of any Affiliate.
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8.3 Timing of Forfeitures and Vesting after Restoration.
If a Participant who is not yet 100 percent vested in his
Matching and Profit Sharing Accounts separates from service with all
Affiliates, the nonvested amount in his Matching and Profit Sharing Accounts
shall be immediately forfeited and shall become available for allocation as a
Forfeiture (in accordance with the terms of Section 5.5) as of the end of the
Plan Year during which such separation occurs; provided, if a Participant has no
vested interest in his Account at the time he separates from service, he shall
be deemed to have received a cash-out distribution at the time he separates
from service, and the forfeiture provisions of this Section shall apply. If
such a Participant resumes employment with an Affiliate after he has incurred 5
or more consecutive Breaks in Service, such nonvested amount shall not be
restored. If such a Participant resumes employment with an Affiliate before he
has incurred 5 consecutive Breaks in Service, the nonvested amount shall be
restored as follows:
(a) Reemployment and Vesting Before any Distribution. If
by the date of reemployment such a Participant has not received any
distributions of his vested interest in his Account, or if he has no vested
interest in his Account, the nonvested amount of his Matching and Profit
Sharing Accounts shall be restored pursuant to the terms of Section 3.7 and
shall be credited to his Matching and Profit Sharing Accounts, respectively.
The Participant's Matching and Profit Sharing Accounts then shall be subject
to all of the vesting rules in this Article VIII as if no Forfeitures had
occurred.
(b) Reemployment And Vesting After Distribution. If by
the date of reemployment such a Participant has received a distribution of his
vested Account, then, notwithstanding the general rules set forth in Section
8.1, the nonvested amount of his Matching and Profit Sharing Accounts shall be
restored pursuant to the terms of Section 3.7, and the total amount of his
undistributed Matching and Profit Sharing Accounts (including the restored
amount) shall be credited to his Matching and Profit Sharing Accounts. The
vested interest of such Participant in such Matching and Profit Sharing
Accounts prior to the date such Participant (i) again separates from service
with all Affiliates, (ii) incurs 5 consecutive Breaks in Service (such that the
nonvested portion of his Matching and Profit Sharing Accounts is forfeited),
or (iii) becomes 100 percent vested pursuant to the terms of Section 8.1 or
Section 8.2 hereof (whichever is earliest), shall be determined pursuant to the
following formula:
X = P (AB + [R x D]) - (R x D),
where X is the vested interest at the relevant time (that is, the time at which
the vested percentage in such Matching and Profit Sharing Accounts cannot
increase); P is the vested percentage at the relevant time; AB is the balance
of his Matching and Profit Sharing Accounts at the relevant time; D is the
amount of the distribution; and R is the ratio of his Matching and Profit
Sharing Accounts balance at the relevant time to such Accounts' balance
immediately after the distribution.
8.4 Amendment to Vesting Schedule.
Notwithstanding anything herein to the contrary, in no event
shall the terms of any amendment to the Plan reduce the vested percentage that
any Participant has earned under
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the Plan. In the event that the Plan provides for Participants to vest in
their Accounts at a rate which is faster than that provided under any amendment
hereto (or in the event any other change is made that directly has an adverse
effect on Participants' vested percentage), any Participant who has 3 or more
years of vesting service [calculated in a manner consistent with Treasury
Regulation Section 1.411(a)-8T (or any successor section)] may elect to have his
vested percentage calculated under the schedule in the Plan before any such
change, and the Administrative Committee shall give each such Participant
notice of his rights to make such an election. The period during which the
election may be made shall commence with the date the amendment is adopted or
deemed to be made and shall end on the latest of: (1) 60 days after the
amendment is adopted; (2) 60 days after the amendment becomes effective; or (3)
60 days after the Participant is issued written notice of the amendment by a
Participating Company or Administrative Committee.
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ARTICLE IX
PAYMENT OF BENEFITS
9.1 Benefit Payments Upon Termination of Service For Reasons Other
Than Death.
(a) General Rule Concerning Benefits Payable. In
accordance with the terms of subsection (b) hereof and subject to the
restrictions set forth in subsections (c), (d) and (e) hereof, if a Participant
separates from service with all Affiliates for any reason other than death, he
(or his Beneficiary, if he dies after such separation from service) shall be
entitled to receive a distribution of the total of (i) the entire vested amount
credited to his Account, determined as of the Valuation Date on which the
distribution is processed, plus (ii) the vested amount of any Contributions
made on his behalf since such Valuation Date. For purposes of this subsection,
the "date on which the distribution is processed" refers to the date
established for such purpose by administrative practice, even if actual payment
and/or processing is made at a later date due to delays in the valuation,
administrative or any other procedure.
(b) Timing of Distribution.
(1) Except as provided in subsections (b)(2),
(b)(3) and (e) hereof, benefits payable to a Participant under this
Section shall be distributed as soon as administratively feasible
after such Participant separates from service with all Affiliates for
any reason other than death.
(2) Notwithstanding the foregoing, in the event
that (A) the value of the vested amount of the Participant's Account
exceeds (or at the time of any prior distribution exceeded) $3,500
and (B) the benefit distribution date described in subsection (b)(1)
hereof occurs prior to the Participant's Normal Retirement Age,
benefits shall not be distributed to such Participant at the time set
forth in subsection (b)(1) hereof without the Participant's written
consent, on a form provided by the Administrative Committee. Prior to
accepting such written consent, the Administrative Committee shall
provide to the Participant, no less than 30 days and no more than 90
days prior to the benefit distribution date described in subsection
(b)(1) hereof, a notice to such Participant describing the features
and forms of payment available and the Participant's right to defer
receipt of his distribution. With the Participant's written consent,
the distribution may commence less than 30 days after such notice is
given; provided, the Administrative Committee informs the Participant
that he has a right to a period of at least 30 days after receiving
the notice to consider to elect a distribution (or a form of
distribution, if applicable) and the Participant affirmatively elects
to receive a distribution after receiving the notice. If the
Participant does not consent in writing to the distribution of his
benefit at such time, his vested benefit shall be distributed as soon
as practicable after he files a written election with the
Administrative Committee requesting such payment. If a Participant
fails to file a written election specifying the time of payment to a
later time, then, unless he elects in writing to defer the payment of
his benefit to a later time (within the limits set forth in subsection
(b)(3) hereof), his vested benefit shall be distributed as
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soon as administratively feasible after the end of the Plan Year in
which he attains Normal Retirement Age, but in no event later
than the 60th day after the end of the Plan Year in which he attains
Normal Retirement Age; provided, if the amount of payment required to
be made on such date cannot be ascertained by such date, payment shall
be made no later than 60 days after the earliest date on which such
payment can be ascertained under the Plan.
(3) Notwithstanding anything in the Plan to the
contrary, unless a participant elects in writing to defer the
payment of his benefit to the date described below, payment of a
Participant's benefit shall be made no later than 60 days after the
end of the Plan Year which includes the latest of (i) the date on
which the Participant attained Normal Retirement Age, (ii) the date
which is the 10th anniversary of the date he commenced participation
in the Plan, or (iii) the date he actually separates from service with
all Affiliates; provided, if the amount of the payment cannot be
ascertained by the date as of which payments are scheduled to be made
hereunder, payment shall be made no later than 60 days after the
earliest date on which such payment can be ascertained under the Plan;
and provided, further, the Participant's benefit payments shall be
made no later than the April 1 following the calendar year in which
the Participant attains age 702 without regard to whether he has
actually ceased employment as an employee of all Affiliates prior to
such date. All distributions will be made in accordance with Code
Section 401(a)(9), the regulations promulgated under Code Section
401(a)(9), including Treasury Regulation Section 1.401(a)(9)-2
(relating to incidental benefit limitations) and any other provisions
reflecting the requirements of Code Section 401(a)(9) and prescribed
by the Internal Revenue Service; and the terms of the Plan reflecting
the requirements of Code Section 401(a)(9) override the distribution
options (if any) in the Plan which are inconsistent with those
requirements.
(c) Restrictions on Distributions from Before-Tax
Accounts. Notwithstanding anything in the Plan to the contrary, amounts in a
Participant's Before-Tax Account shall not be distributable to such Participant
or, if applicable, his Beneficiary, earlier than the earliest of the following
to occur:
(1) The Participant's death, Disability or
separation from service of all Affiliates;
(2) The termination of the Plan without the
establishment or maintenance of a successor defined contribution plan
[other than an employee stock ownership plan as defined in Code
Section 4975(e)] at the time the Plan is terminated or within the
period ending 12 months after the final distribution of all assets in
all Before-Tax Accounts described above in this subsection (c);
provided, if fewer than 2 percent of the Employees who are or were
eligible under the Plan at the time of its termination are or were
eligible under another defined contribution plan at any time during
the 24 month period beginning 12 months before the time of
termination, such other plan shall not be a successor plan;
(3) The date of disposition by the Participating
Company employing such Participant of substantially all of its assets
[within the meaning of Code Section 409(d)(2)]
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that were used by such Participating Company in a trade or
business; provided, such Participant continues employment with the
corporation acquiring such assets. For the sale of "substantially
all" of the assets used in a trade or business to have occurred, at
least 85 percent of such assets must have been sold;
(4) The date of disposition by the Participating
Company employing such Participant of its interest in a subsidiary
[within the meaning of Code Section 409(d)(3)]; provided, such
Participant continues employment with such subsidiary;
(5) The attainment by such Participant of age
59-1/2; or
(6) The Participant's incurrence of a financial
hardship as described in Section 9.5;
provided, for an event described in subsections (c)(2), (c)(3) or (c)(4) to
constitute events permitting a distribution from the Before-Tax Account , such
distribution must be made on account of such event in the form of a lump-sum
distribution, as defined in Code Section 402(d)(4) (without regard to clauses
(i), (ii), (iii) and (iv) of subparagraph (A), or subparagraphs (B) and (F)
thereof); and provided, further, for the events described in subsections (c)(3)
or (c)(4) to constitute events permitting such a distribution, the
Participating Company must maintain the Plan after the disposition.
(d) Delay Upon Reemployment. If a Participant becomes
eligible to receive a benefit payment in accordance with the terms of
subsection (a) hereof and subsequently is reemployed by an Affiliate prior to
the time his entire Account has been distributed, the distribution to such
Participant shall be delayed or cease until such Participant again becomes
eligible to receive a distribution from the Plan pursuant to the terms of this
or any other Section of the Plan.
9.2 Death Benefits.
If a Participant dies before payment of his benefits from the
Plan is made, the Beneficiary or Beneficiaries designated by such Participant
in his latest beneficiary designation form filed with the Administrative
Committee in accordance with the terms of Section 9.4 shall be entitled to
receive a distribution of the total of (i) the entire vested amount credited
to such Participant's Account, determined as of the Valuation Date on which the
distribution is processed, plus (ii) any Contributions made on such
Participant's behalf since such Valuation Date. For purposes of this
subsection, the "date on which the distribution is processed" refers to the
date established for such purpose by administrative practice, even if actual
payment and/or processing is made at a later date due to delays in the
valuation, administrative or any other procedure. Benefits shall be
distributed to such Beneficiary or Beneficiaries as soon as administratively
feasible (and, if practicable, within 90 days) after the date of the
Participant's death (or, if later, after timing restrictions and requirements
under the Code are satisfied). As required by Code Section 401(a)(9), in no
event shall any such distribution be made later than 5 years after the date of
his death. Notwithstanding the foregoing, if the Participant dies before his
Normal Retirement Age and the Participant's Spouse is his Beneficiary, his
Spouse may instead elect (in a manner that satisfies the requirements of the
Retirement Equity Act of 1984) for
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payment to commence as of the first day of any calendar month following the
Participant's death. The Administrative Committee may direct the Trustee to
distribute a Participant's Account to a Beneficiary without the written consent
of such Beneficiary.
9.3 Form of Distribution.
(a) Method of Payment. The method pursuant to which a
Participant's benefits under the Plan shall be distributed shall be determined
as follows:
(1) Except as provided in subsections (a)(2) and
(a)(3) hereof, the payment of any distribution to a Participant or his
Beneficiary from the Plan shall be in the form selected by the
Participant or his Beneficiary, by written notice delivered to the
Administrative Committee, all in accordance with the terms of this
subsection (b)(1) and subsections (b)(4)-(b)(8) hereof. The
Participant may choose between (A) a single sum payment and (B) equal
installments (adjusted for investment earnings and losses between
payments), paid annually or quarterly, as he elects, over a term
certain.
(2) If the total vested amount of the
Participant's total Account is less than or equal to $3,500 at the
time the distribution of his Account commences (and did not exceed
$3,500 at the time of any prior distributions), payment of the vested
amount of his entire Account shall be made in the form of a single sum
payment, without the consent of the Participant.
(3) If a Participant designates more than one
Beneficiary to receive payment of his benefit upon his death, the
Participant and his Beneficiaries shall be deemed to have selected a
single sum payment as the form of benefit distribution; provided, such
single sum payment may be divided among multiple Beneficiaries, as
applicable.
(4) If a Participant dies before payment of his
benefits from the Plan is made or commenced, his benefit will be paid
to his Beneficiary in a single lump sum payment.
(5) If a Participant dies after payment of his
benefits from the Plan has begun under this subsection but before his
entire benefit has been distributed, his Beneficiary may elect to
receive the remainder of the deceased Participant's Account in the
form of a single sum payment or to continue to receive the same
installment payments which would have been paid to the deceased
Participant if he had survived.
(6) If a Beneficiary who has begun receiving
installment payments pursuant to the terms of subsection (a)(5) hereof
dies prior to the full payment thereof, the remaining vested amount of
the Account balance shall be distributed in a single sum to the
designated beneficiary of such Beneficiary or, if no such beneficiary
has been designated or survives, to the estate of such Beneficiary.
(7) If a distribution is to be made to a
Participant and/or his Spouse Beneficiary in the form of installments
payable over the life expectancy or joint life expectancy of such
persons, the life
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expectancy or joint life expectancy, as applicable, of such
persons shall be calculated at the time distributions commence and
shall not thereafter be recalculated, unless, for purposes of the
minimum distribution rules under Code Section 401(a)(9), the
Participant makes an irrevocable election prior to the time his
benefit payments are scheduled to begin, to have the life expectancy
or joint life expectancy, as applicable, recalculated annually.
Notwithstanding anything herein to the contrary, distributions from
the Plan must satisfy the requirements of Code Section 401(a)(9)(G).
This means that the incidental benefit rules as described in Treasury
Regulation Section 1.401(a)(9)-2 shall be satisfied.
(b) Assets Distributed. Except as provided in subsection
(c) hereof, any distribution to a Participant shall be made in the form of
cash. However, the Administrative Committee may direct the Trustee to purchase
an annuity (other than a life annuity), which shall be distributed to a
Participant in satisfaction of his election to receive payment in the form of
installments.
(c) Distributions from the Norrell Stock Fund. Subject
to the election of the Participant, a Participant's vested balance in the
Norrell Stock Fund may be distributed in the form of cash or in the form of
whole shares of Norrell Stock in the number of such shares allocated to such
Account as of the Valuation Date on which the Trustee processes such
distribution, with the value of fractional shares being distributed in cash.
The cash value of any whole or fractional shares of Norrell Stock shall be
determined as of the Valuation Date on which the Trustee processes the
distribution. Such election must be exercised in a timely manner as determined
by the Administrative Committee. In the absence of receipt of an election from
a Participant, his vested balance in the Norrell Stock Fund will be distributed
in whole shares with fractional shares in cash.
(d) Direct Rollover Distributions. If a Participant or
his Spouse who is his Beneficiary, or an alternate payee under a qualified
domestic relations order, who is the recipient of any Eligible Rollover
Distribution, elects to have such Eligible Rollover Distribution paid directly
to an Eligible Retirement Plan and specifies (in such form and at such time as
the Administrative Committee may prescribe) the Eligible Retirement Plan to
which such distribution is to be paid, such distribution shall be made in the
form of a direct trustee-to-trustee transfer to the specified Eligible
Retirement Plan; provided, such transfer shall be made only to the extent that
the Eligible Rollover Distribution would be included in gross income if not so
transferred [determined without regard to Code Section 402(c) and Section
403(a)(4)].
9.4 Beneficiary Designation.
(a) General. Participants shall designate and from time
to time may redesignate their Beneficiary or Beneficiaries in such form and
manner as the Administrative Committee may determine. A Participant shall be
deemed to have named his Spouse, if any, as his sole Beneficiary unless his
Spouse consents to the payment of all or a specified portion of the
Participant's death benefit to a Beneficiary other than or in addition to the
Spouse in a manner satisfying the requirements of a Qualified Spousal Waiver
and such other procedures as the Administrative Committee may establish.
Notwithstanding the foregoing, a married Participant may designate a nonspouse
Beneficiary without a Qualified Spousal Waiver if the
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Participant establishes to the satisfaction of the Administrative Committee
that a Qualified Spousal Waiver may not be obtained because his Spouse cannot
be located or such other permissible circumstances exist as the Secretary of
the Treasury may prescribe by regulation. If any Participant dies prior to
receiving his benefits under the Plan, his Account shall be changed to the name
of such deceased Participant's named or deemed Beneficiary or Beneficiaries.
(b) No Designation or Designee Dead or Missing. In the
event that:
(1) a Participant dies without designating a
Beneficiary;
(2) the Beneficiary designated by a Participant
is not surviving when a payment is to be made to such person under the
Plan, and no contingent Beneficiary has been designated; or
(3) the Beneficiary designated by a Participant
cannot be located by the Administrative Committee within 1 year from
the date benefits are to commence to such person;
then, in any of such events, the Beneficiary of such Participant with respect
to any benefits that remain payable under the Plan shall be the Participant's
Surviving Spouse, if any, and if not, then the estate of the Participant.
9.5 Hardship Withdrawals.
(a) Parameters of Hardship Withdrawals. A Participant
may make, on account of hardship prior to the time he separates from the
service of all Affiliates, a withdrawal from his Account in an amount up to,
but not exceeding, the total of his Before-Tax and Rollover Accounts (other
than investment earnings attributable to Before-Tax Contributions held in the
Before-Tax Account and earned after December 31, 1988). For purposes of this
subsection, a withdrawal will be on account of "hardship" if it is necessary to
satisfy an immediate and heavy financial need of the Participant. A withdrawal
based on financial hardship cannot exceed the amount necessary to meet the
immediate financial need created by the hardship and not reasonably available
from other resources of the Participant. The Administrative Committee shall
make its determination, as to whether a Participant has suffered an immediate
and heavy financial need and whether it is necessary to use a hardship
withdrawal from the Plan to satisfy that need, on the basis of all relevant
facts and circumstances.
(b) Immediate and Heavy Financial Need. For purposes of
the Plan, an immediate and heavy financial need exists if the withdrawal is on
account of (i) expenses for medical care described in Code Section 213(d)
previously incurred by the Participant, his Spouse or dependents, or necessary
to obtain such medical care for such persons, (ii) the purchase (excluding
mortgage payments) of a principal residence for the Participant, (iii) the
payment of tuition and related educational fees for the next 12 months of
post-secondary education for the Participant, his Spouse or dependents or (iv)
the need to prevent eviction of the Participant from his principal residence
or foreclosure on the mortgage of the Participant's principal residence.
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(c) Necessary to Satisfy a Financial Need. In determining
whether the withdrawal is necessary to relieve the Participant's immediate and
heavy financial need, the Administrative Committee shall rely upon the
Participant's reasonable representation that the need cannot be relieved: (i)
through reimbursement or compensation by insurance or otherwise; (ii) by
reasonable liquidation of the Participant's assets to the extent that
liquidation would not itself cause an immediate and heavy financial need; (iii)
by cessation of Before-Tax Contributions to the Plan; or (iv) by other
distributions or nontaxable (at the time of the loan) loans from plans
maintained by one or more Participating Companies or by borrowing from
commercial sources on reasonable commercial terms. In determining the amount
of a Participant's assets, the resources of his spouse and minor dependents are
considered to be reasonably available to the Participant unless they are held
for his child or children under an irrevocable trust or under the Uniform Gifts
to Minors Act. The amount of an immediate and heavy financial need may include
amounts necessary for the Participant to pay any federal, state or local taxes
which are reasonably anticipated to result from the hardship withdrawal.
(d) Election to Withdraw. All applications for hardship
withdrawals shall be in writing on a form provided by the Administrative
Committee and shall contain such information as the Administrative Committee
may reasonably request. The Administrative Committee may, in its sole
discretion, require that a Participant's spouse consent to the application for
a hardship withdrawal.
(e) Payment of Withdrawal. The amount of a hardship
withdrawal shall be paid to a Participant in a single-sum, cash payment as soon
as practicable after the Administrative Committee receives and approves a
properly completed withdrawal application. The amount of a Participant's
Hardship Distribution shall be charged against the eligible portion of the
Participant's Account in the following order:
(1) first his Rollover Account; then
(2) his Before-Tax Account.
As the hardship withdrawal is paid from each of the Accounts (exhausting each
such Account before beginning withdrawals from the next Account), the assets
shall be charged pro-rata against the Investment Funds in which such Accounts
shall be invested. For purposes of making a hardship withdrawal, a
Participant's Account shall be valued as of the Valuation Date on which the
Trustee processes the distribution.
(f) Limitation on Number of Hardship Withdrawals. A
Participant may not make more than 2 hardship withdrawals during any 12-month
period.
9.6 Withdrawals After Age 59 1/2.
A Participant who has attained age 59 1/2 and who is an
employee of an Affiliate may request a withdrawal of all or part of his
Account. A Participant may make only one such withdrawal during any 12-month
period. Subject to any rules and procedures established by the Administrative
Committee, any such request must be submitted in writing to the Administrative
Committee at least 30 days (or such shorter period as the Committee may allow)
before the
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withdrawal is desired. As soon as practicable after receipt of such request,
the Administrative Committee shall direct the Trustee to pay the requested
amount, and such amount shall be charged against the Participant's Account in
the following order:
(1) first his Rollover Account; then
(2) his Before-Tax Account; then
(3) his Profit Sharing Account; then
(4) his Basic Matching Account; and finally
(5) his Additional Discretionary Matching Account.
As the withdrawal is paid from each of the Accounts (exhausting each such
Account before beginning withdrawals from the next Account), the assets shall
be charged pro-rata against the Investment Funds in which such Accounts shall
be invested. For purposes of making such a withdrawal, a Participant's Account
shall be valued as of the Valuation Date on which the Trustee processes the
distribution.
9.7 Qualified Domestic Relations Orders.
In the event the Administrative Committee receives a domestic
relations order which it determines to be a qualified domestic relations order
[see Section 14.1(b)], the Plan shall pay such benefit to the prescribed
alternate payee(s) at such time and in such form, as shall be described in the
qualified domestic relations order and permitted under Section 14.1(b). If
the qualified domestic relations order requires immediate payment, the
specified benefit shall be paid to the alternate payee as soon as practicable
after the Administrative Committee determines that the order is qualified or,
if later, after timing restrictions and requirements under the Code are
satisfied. To the extent consistent with the qualified domestic relations
order, the amount of the payment to an alternate payee shall include earnings,
interest and other investment proceeds through (but not after) the Valuation
Date as of which the Trustee processes the distribution. If a Participant's
Account is partially paid or payable to an alternate payee, the Participant's
remaining portion of his Account shall be reduced accordingly and shall be
subject to the distribution provisions in this Article IX.
9.8 Unclaimed Benefits.
In the event a Participant becomes entitled to benefits under
the Plan other than death benefits and the Administrative Committee is unable
to locate such Participant (after sending a letter, return receipt requested,
to the Participant's last known address, and after such further diligent
efforts as the Administrative Committee in its sole discretion deems
appropriate) within 1 year from the date upon which he becomes so entitled, the
Administrative Committee shall direct that such benefits be paid to the
Beneficiary of such Participant; provided, if the distribution is payable upon
the termination of the Plan, the Administrative Committee shall not be required
to wait until the end of such 1-year period. If the Participant and the
Beneficiary cannot be located and fail to claim such benefits by the end of the
5th Plan Year following the
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Plan Year in which such Participant becomes entitled to such benefits, then the
full Account of the Participant shall be deemed abandoned, may be removed from
such Participant's Account, and may be used to offset Contributions or other
amounts payable by the Participant Companies to the Plan; provided, in the
event such Participant or Beneficiary is located or makes a claim subsequent to
the allocation of the abandoned Account, the amount of the abandoned Account
(unadjusted for any investment gains or losses from the time of abandonment)
shall be restored (from abandoned Accounts, Forfeitures, Trust earnings or
Contributions made by the Participating Companies) and paid to such Participant
or Beneficiary, as appropriate; and, provided further, the Administrative
Committee, in its sole discretion, may delay the deemed date of abandonment of
any such Account for a period longer than the prescribed 5 Plan Years if it
believes that it is in the best interest of the Plan to do so.
9.9 Claims.
(a) Procedure. Claims for benefits under the Plan may be
filed with the Administrative Committee on forms supplied by the Administrative
Committee. The Administrative Committee shall furnish to the claimant written
notice of the disposition of a claim within 90 days after the application
therefor is filed; provided, if special circumstances require an extension of
time for processing the claim, the Administrative Committee shall furnish
written notice of the extension to the claimant prior to the end of the initial
90-day period, and such extension shall not exceed one additional, consecutive
90-day period. In the event the claim is denied, the notice of the disposition
of the claim shall provide the specific reasons for the denial, cites of the
pertinent provisions of the Plan, and, where appropriate, an explanation as to
how the claimant can perfect the claim and/or submit the claim for review.
(b) Review Procedure. Any Participant or Beneficiary who
has been denied a benefit, or his duly authorized representative, shall be
entitled, upon request to the Administrative Committee, to appeal the denial of
his claim. To do so, the claimant must request further consideration of his
position. The claimant, or his duly authorized representative, may review
pertinent documents related to the Plan and in the Administrative Committee's
possession in order to prepare the appeal. The form containing the request for
review, together with a written statement of the claimant's position, must be
filed with the Administrative Committee no later than 60 days after receipt of
the written notification of denial of a claim provided for in subsection (a).
The Administrative Committee's decision shall be made within 60 days following
the filing of the request for review and shall be communicated in writing to
the claimant; provided, if special circumstances require an extension of time
for processing the appeal, the Administrative Committee shall furnish written
notice to the claimant prior to the end of the initial 60-day period, and such
extension shall not exceed one additional 60-day period. If unfavorable, the
notice of decision shall explain the reason or reasons for denial and indicate
the provisions of the Plan or other documents used to arrive at the decision.
(c) Satisfaction of Claims. Any payment to a Participant
or Beneficiary or to their legal representative or heirs at law, all in
accordance with the provisions of the Plan, shall to the extent thereof be in
full satisfaction of all claims hereunder against the Trustee, the
Administrative Committee and the Controlling Company, any of whom may require
such Participant, Beneficiary, legal representative or heirs at law, as a
condition to such payment, to execute a receipt and release therefor in such
form as shall be determined by the Trustee, the
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Administrative Committee or the Controlling Company, as the case may be. If
receipt and release shall be required but execution by such Participant,
Beneficiary, legal representative or heirs at law shall not be accomplished so
that the terms of Section 9.1(b), Section 9.2 and Section 9.3 may be
fulfilled, such benefits may be distributed or paid into any appropriate court
or to such other place as such court shall direct, for disposition in
accordance with the order of such court, and such distribution shall be deemed
to comply with the requirements of Section 9.1(b), Section 9.2 and Section 9.3.
9.10 Explanation of Rollover Distributions.
Within a reasonable period of time [as defined for purposes of
Code Section 402(f)] before making an Eligible Rollover Distribution from the
Plan to a Participant or Beneficiary, the Administrative Committee shall
provide such Participant or Beneficiary with a written explanation (i) of the
provisions under which the distributee may have the distribution directly
transferred to another Eligible Retirement Plan, (ii) of the provisions which
require the withholding of tax on the distribution if it is not directly
transferred to another Eligible Retirement Plan, (iii) of the provisions under
which the distribution will not be subject to tax if transferred to an Eligible
Retirement Plan within 60 days after the date on which the distributee receives
the distribution, and (iv) such other terms and provisions as may be required
under Code Section 402(f) and the regulations promulgated thereunder.
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ARTICLE X
ADMINISTRATION
10.1 Administrative Committee; Appointment and Term of Office.
(a) Appointment. The Administrative Committee shall
consist of not less than one member who shall be appointed by and serve at the
pleasure of the Board.
(b) Removal; Resignation. The Board shall have the right
to remove any member of the Administrative Committee at any time. A member may
resign at any time by written resignation to the Board. If a vacancy in the
Administrative Committee should occur, a successor may be appointed by the
Board.
(c) Certification. A written certification shall be
given to the Trustee by the Board of all members of the Administrative
Committee together with a specimen signature of each member. For all purposes
hereunder, the Trustee shall be conclusively entitled to rely upon such
certification until the Trustee is otherwise notified in writing.
10.2 Organization of Administrative Committee.
The Administrative Committee may elect a Chairman and a
Secretary from among its members. In addition to those powers set forth
elsewhere in the Plan, the Administrative Committee may appoint such agents,
who need not be members of such Administrative Committee, as it may deem
necessary for the effective performance of its duties and may delegate to such
agents such powers and duties, whether ministerial or discretionary, as the
Administrative Committee may deem expedient or appropriate. The compensation
of such agents who are not full-time Employees of a Participating Company shall
be fixed by the Administrative Committee within limits set by the Board and
shall be paid by the Controlling Company (to be divided equitably among the
Participating Companies) or from the Trust Fund as determined by the
Administrative Committee. The Administrative Committee shall act by majority
vote. Its members shall serve as such without compensation.
10.3 Powers and Responsibility.
The Administrative Committee shall fulfill the duties of
"administrator" as set forth in Section 3(16) of ERISA and shall have complete
control of the administration of the Plan hereunder, with all powers necessary
to enable it properly to carry out its duties as set forth in the Plan and the
Trust Agreement. The Administrative Committee shall have the following duties
and responsibilities:
(a) to construe the Plan and to determine all questions
that shall arise thereunder;
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(b) to have all powers elsewhere herein conferred upon
it;
(c) to decide all questions relating to the eligibility
of Employees to participate in the benefits of the Plan;
(d) to determine the benefits of the Plan to which any
Participant or Beneficiary may be entitled;
(e) to maintain and retain records relating to
Participants and Beneficiaries;
(f) to prepare and furnish to Participants all
information required under federal law or provisions of the Plan to be
furnished to them;
(g) to prepare and furnish to the Trustee sufficient
employee data and the amount of Contributions received from all sources so that
the Trustee may maintain separate accounts for Participants and Beneficiaries
and make required payments of benefits;
(h) to prepare and file or publish with the Secretary of
Labor, the Secretary of the Treasury, their delegates and all other appropriate
government officials all reports and other information required under law to be
so filed or published;
(i) to provide directions to the Trustee with respect to
methods of benefit payment, and all other matters where called for in the Plan
or requested by the Trustee;
(j) to engage assistants and professional advisers;
(k) to arrange for fiduciary bonding; and
(l) to provide procedures for determination of claims for
benefits;
all as further set forth herein.
10.4 Records of Administrative Committee.
(a) Notices and Directions. Any notice, direction,
order, request, certification or instruction of the Administrative Committee to
the Trustee shall be in writing and shall be signed by a member of the
Administrative Committee. The Trustee and every other person shall be entitled
to rely conclusively upon any and all such proper notices, directions, orders,
requests, certifications and instructions received from the Administrative
Committee and reasonably believed to be properly executed, and shall act and be
fully protected in acting in accordance with any such directions that are
proper.
(b) Records. All acts and determinations of the
Administrative Committee shall be duly recorded by its Secretary or under his
supervision, and all such records (including records necessary to demonstrate
compliance with the nondiscrimination requirements of the
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Code), together with such other documents as may be necessary for the
administration of the Plan, shall be preserved in the custody of such
Secretary.
10.5 Reporting and Disclosure.
The Administrative Committee shall keep all individual and
group records relating to Participants and Beneficiaries and all other records
necessary for the proper operation of the Plan. Such records shall be made
available to the Participating Companies and to each Participant and
Beneficiary for examination during normal business hours except that a
Participant or Beneficiary shall examine only such records as pertain
exclusively to the examining Participant or Beneficiary and the Plan and Trust
Agreement. The Administrative Committee shall prepare and shall file as
required by law or regulation all reports, forms, documents and other items
required by ERISA, the Code and every other relevant statute, each as amended,
and all regulations thereunder. This provision shall not be construed as
imposing upon the Administrative Committee the responsibility or authority for
the preparation, preservation, publication or filing of any document required
to be prepared, preserved or filed by the Trustee or by any other Named
Fiduciary to whom such responsibilities are delegated by law or by the Plan.
10.6 Construction of the Plan.
The Administrative Committee shall take such steps as are
considered necessary and appropriate to remedy any inequity that results from
incorrect information received or communicated in good faith or as the
consequence of an administrative error. The Administrative Committee, in its
sole and full discretion, shall interpret the Plan and shall determine the
questions arising in the administration, interpretation and application of the
Plan. The Administrative Committee shall endeavor to act, whether by general
rules or by particular decisions, so as not to discriminate in favor of or
against any person and so as to treat all persons in similar circumstances
uniformly. The Administrative Committee shall correct any defect, reconcile
any inconsistency or supply any omission with respect to the Plan.
10.7 Assistants and Advisors.
(a) Engaging Advisors. The Administrative Committee
shall have the right to hire, at the expense of the Controlling Company (to be
divided equitably among the Participating Companies), such professional
assistants and consultants as it, in its sole discretion, deems necessary or
advisable. To the extent that the costs for such assistants and advisors are
not so paid by the Controlling Company, they shall be paid at the direction of
the Administrative Committee from the Trust Fund as an expense of the Trust
Fund.
(b) Reliance on Advisors. The Administrative Committee
and the Participating Companies shall be entitled to rely upon all certificates
and reports made by an accountant, attorney or other professional adviser
selected pursuant to this Section; the Administrative Committee, the
Participating Companies, and the Trustee shall be fully protected in respect to
any action taken or suffered by them in good faith in reliance upon the advice
or opinion of any
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such accountant, attorney or other professional adviser; and any action so
taken or suffered shall be conclusive upon each of them and upon all other
persons interested in the Plan.
10.8 Investment Committee.
(a) Funding Policy. The Investment Committee is the
named fiduciary to act on behalf of the Controlling Company to establish and
carry out a funding policy consistent with the Plan objectives and with the
requirements of any applicable law. Such policy shall be in writing and shall
have due regard for the liquidity needs of the Trust. Such funding policy
shall also state the general investment objectives of the Trust and the
philosophy upon which maintenance of the Plan is based.
(b) Appointment. The Board shall determine the
membership of the Investment Committee, and the members shall serve at the
pleasure of the Board or until their resignation. Unless and until the Board
appoints the Investment Committee, the Administrative Committee shall serve as
the Investment Committee.
(c) Duties. The Investment Committee also shall carry
out the Controlling Company's responsibility and authority:
(1) To appoint one or more persons to serve as
investment manager with respect to all or part of the Plan assets,
including assets maintained under separate accounts of an insurance
company;
(2) To allocate the responsibility and authority
being carried out by the Investment Committee among the members of the
Committee;
(3) To take any action appropriate to ensure that
the Plan assets are invested for the exclusive purpose of providing
benefits to Participants and their Beneficiaries in accordance with
the Plan and defraying reasonable expenses of administering the Plan,
subject to the requirements of any applicable law; and
(4) To employ one or more persons to render
advice with respect to any responsibility or authority being carried
out by the Investment Committee. To the extent that the costs for
such assistants and advisors are not paid by the Controlling Company,
they shall be paid at the direction of the Investment Committee from
the Trust Fund as an expense of the Trust Fund.
10.9 Direction of Trustee.
The Investment Committee shall have the power to provide the
Trustee with general investment policy guidelines and directions to assist the
Trustee respecting investments made in compliance with, and pursuant to, the
terms of the Plan.
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10.10 Bonding.
The Administrative Committee shall arrange for fiduciary
bonding as is required by law, but no bonding in excess of the amount required
by law shall be required by the Plan.
10.11 Indemnification.
Each of the Administrative Committee and the Investment
Committee and each member of those Committees shall be indemnified by the
Participating Companies against judgment amounts, settlement amounts (other
than amounts paid in settlement to which the Participating Companies do not
consent) and expenses, reasonably incurred by the Committee or him in
connection with any action to which the Committee or he may be a party (by
reason of his service as a member of a Committee) except in relation to matters
as to which the Committee or he shall be adjudged in such action to be
personally guilty of gross negligence or willful misconduct in the performance
of its or his duties. The foregoing right to indemnification shall be in
addition to such other rights as such Committee or each Committee member may
enjoy as a matter of law or by reason of insurance coverage of any kind.
Rights granted hereunder shall be in addition to and not in lieu of any rights
to indemnification to which such Committee or each Committee member may be
entitled pursuant to the by-laws of the Controlling Company. Service on the
Administrative or Investment Committee shall be deemed in partial fulfillment
of a Committee member's function as an Employee, officer and/or director of the
Controlling Company or any Participating Company, if he serves in such other
capacity as well.
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ARTICLE XI
ALLOCATION OF AUTHORITY AND RESPONSIBILITIES
11.1 Controlling Company and Board.
(a) General Responsibilities. The Controlling Company,
as Plan sponsor, and the Board each shall serve as a Named Fiduciary having the
following (and only the following) authority and responsibilities:
(1) To appoint the Trustee, the Administrative
Committee and the Investment Committee and to monitor each of their
performances;
(2) To communicate such information to the
Trustee, the Administrative Committee and the Investment Committee as
each needs for the proper performance of its duties; and
(3) To provide channels and mechanisms through
which the Administrative Committee and/or the Trustee can communicate
with Participants and Beneficiaries.
In addition, the Controlling Company shall perform such duties as are imposed
by law or by regulation and shall serve as Plan Administrator in the absence of
an appointed Administrative Committee.
(b) Allocation of Authority. In the event any of the
areas of authority and responsibilities of the Controlling Company and the
Board overlap with that of any other Plan fiduciary, the Controlling Company
and the Board shall coordinate with such other fiduciaries the execution of
such authority and responsibilities; provided, the decision of the Controlling
Company and the Board with respect to such authority and responsibilities
ultimately shall be controlling.
(c) Authority of Participating Companies.
Notwithstanding anything herein to the contrary, and in addition to the
authority and responsibilities specifically given to the Participating
Companies in the Plan, the Controlling Company, in its sole discretion, may
grant the Participating Companies such authority and charge them with such
responsibilities as the Controlling Company deems appropriate.
11.2 Administrative Committee.
The Administrative Committee shall have the authority and
responsibilities imposed by Article X hereof. With respect to said authority
and responsibilities, the Administrative Committee shall be a Named Fiduciary,
and as such, shall have no authority or responsibilities other than as granted
in the Plan or as imposed as a matter of law.
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11.3 Investment Committee.
The Investment Committee, if any is appointed, shall be a
Named Fiduciary with respect to its authority and responsibilities, as imposed
by Article X. The Investment Committee shall have no authority or
responsibilities other than those granted in the Plan and the Trust. If no
Investment Committee is appointed, then the Administrative Committee shall
serve as the Investment Committee.
11.4 Trustee.
The Trustee shall be a Named Fiduciary with respect to
investment of Trust Fund assets and shall have the powers and duties set forth
in the Trust Agreement.
11.5 Limitations on Obligations of Fiduciaries.
No fiduciary shall have authority or responsibility to deal
with matters other than as delegated to it under the Plan, under the Trust
Agreement or by operation of law. A fiduciary shall not in any event be liable
for breach of fiduciary responsibility or obligation by another fiduciary
(including Named Fiduciaries) if the responsibility or authority for the act or
omission deemed to be a breach was not within the scope of such fiduciary's
authority or delegated responsibility.
11.6 Delegation.
Named Fiduciaries shall have the power to delegate specific
fiduciary responsibilities (other than Trustee responsibilities). Such
delegations may be to officers or Employees of a Participating Company or to
other persons, all of whom shall serve at the pleasure of the Named Fiduciary
making such delegation and, if full-time Employees of a Participating Company,
without compensation. Any such person may resign by delivering a written
resignation to the delegating Named Fiduciary. Vacancies created by any reason
may be filled by the appropriate Named Fiduciary or the assigned
responsibilities may be reabsorbed or redelegated by the Named Fiduciary.
11.7 Multiple Fiduciary Roles.
Any person may hold more than one position of fiduciary
responsibility and shall be liable for each such responsibility separately.
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ARTICLE XII
AMENDMENT, TERMINATION AND ADOPTION
12.1 Amendment.
The provisions of the Plan may be amended at any time and from
time to time by the Board; provided, the Board may delegate amendment
authority, or any part thereof, to the Administrative Committee; and, provided
further:
(a) No amendment shall increase the duties or liabilities
of the Trustee without the consent of such party;
(b) No amendment shall decrease the balance or vested
percentage of an Account or eliminate an optional form of benefit;
(c) No amendment shall be made which would divert any of
the assets of the Trust Fund to any purpose other than the exclusive benefit of
Participants and Beneficiaries, except that the Plan and Trust Agreement may be
amended retroactively and to affect the Accounts of Participants and
Beneficiaries if necessary to cause the Plan and Trust to be qualified and
exempt from taxation under the Code; and
(d) Each amendment shall be approved by the Board or the
Administrative Committee (as applicable) by resolution.
12.2 Termination.
(a) Right to Terminate. The Controlling Company expects
the Plan to be continued indefinitely, but it reserves the right to terminate
the Plan or to completely discontinue Contributions to the Plan at any time by
action of the Board. In either event, the Administrative Committee, Investment
Committee, each Participating Company and the Trustee shall be promptly advised
of such decision in writing. [For termination of the Plan by a Participating
Company as to itself (rather than the termination of the entire Plan) refer to
Section 12.3(e).]
(b) Vesting Upon Complete Termination. If the Plan is
terminated by the Controlling Company or Contributions to the Plan are
completely discontinued, the Accounts of all Participants, Beneficiaries or
other successors in interest as of such date shall become 100 percent vested
and nonforfeitable. Upon termination of the Plan, the Administrative
Committee, in its sole discretion, shall instruct the Trustee either (i) to
continue to manage and administer the assets of the Trust for the benefit of
the Participants and their Beneficiaries pursuant to the terms and provisions
of the Trust Agreement, or (ii) if there is no successor plan permitted under
the terms of Section 9.1(c) or no benefits subject to the restrictions in said
Section, to pay over to each Participant the value of his interest in a single
sum and to thereupon dissolve the Trust.
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(c) Dissolution of Trust. In the event that the
Administrative Committee decides to dissolve the Trust, as soon as practicable
following the termination of the Plan or the Administrative Committee's
decision, whichever is later, the assets under the Plan shall be converted to
cash or other distributable assets, to the extent necessary to effect a
complete distribution of the Trust assets as described hereinbelow. Following
completion of the conversion, on a date selected by the Administrative
Committee, each individual with an Account under the Plan on such date shall
receive a distribution of the total amount then credited to his Account;
provided, if the Participating Companies maintain any defined Contribution plan
other than the Plan or an employee stock ownership plan as defined in Code
Section 4975(e)(9), and if the balance of a Participant's Account is greater
than $3,500 and such Participant does not consent to a lump sum distribution,
the Administrative Committee shall direct that the Participant's Account be
distributed by the purchase and distribution of a nonparticipating annuity with
distribution terms comparable to those in Section 9.1 (and the applicable
provisions in Article IX). The amount of cash and other property distributable
to each such individual shall be determined as of the date of distribution
(treating, for this purpose, such distribution date as the Valuation Date as
of which the distributable amount is determined). In the case of a termination
distribution as provided herein, the Administrative Committee may direct the
Trustee to take any action provided in Section 9.8 (dealing with unclaimed
benefits), except that it shall not be necessary to hold funds for any period
of time stated in such Section. Within the expense limitations set forth in
the Plan, the Administrative Committee may direct the Trustee to use assets of
the Trust Fund to pay any due and accrued expenses and liabilities of the Trust
and any expenses involved in termination of the Plan (other than expenses
incurred for the benefit of the Participating Companies).
(d) Vesting Upon Partial Termination. In the event of a
partial termination of the Plan [as provided in Code Section 411(d)(3)], the
Accounts of those Participants and Beneficiaries affected shall become 100
percent vested and nonforfeitable and, unless transferred to another qualified
plan, shall be distributed in a manner and at a time consistent with the terms
of Article IX.
12.3 Adoption of the Plan by a Participating Company.
(a) Procedures for Participation. As of the Effective
Date, the Controlling Company and the other Affiliates listed on Schedule A
hereto shall be Participating Companies in the Plan. Any other company may
become a Participating Company and commence participation in the Plan subject
to the provisions of this subsection. In order for a company to become a
Participating Company, the Administrative Committee must designate such company
as a Participating Company and specify the effective date of such designation.
The name of any company which shall commence participation in the Plan, along
with the effective date of its participation, shall be recorded in the records
of the Controlling Company and/or the Plan. To adopt the Plan as a
Participating Company, the board of directors of the company must approve a
resolution expressly adopting the Plan for the benefit of its eligible
employees and accepting designation as a Participating Company, subject to all
of the provisions of this Plan and of the Trust. The resolution shall specify
the date as of which the designation as a Participating Company shall be
effective. A copy of the resolution (certified if requested) of the board of
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directors of the adopting Participating Company shall be provided to the
Administrative Committee. Upon adoption of the Plan by a Participating Company
as herein provided, the Employees of such company shall be eligible to
participate in the Plan subject to the terms hereof and of the resolution of
the Administrative Committee designating the adopting company as such.
(b) Single Plan. The Plan, as adopted by all
Participating Companies, shall be considered a single plan for purposes of
Treasury Regulation Section 1.414(l)-1(b)(1). All assets contributed to the
Plan by the Participating Companies shall be held together in a single fund
and shall be available to pay benefits to all Participants and Beneficiaries.
Nothing contained herein shall be construed to prohibit the separate accounting
of assets contributed by the Participating Companies for purposes of cost
allocation, contributions, forfeitures and other purposes, pursuant to the
terms of the Plan and as directed by the Administrative Committee.
(c) Authority under Plan. As long as a Participating
Company's designation as such remains in effect, such Participating Company
shall be bound by, and subject to, all provisions of the Plan and the Trust.
The exclusive authority to amend the Plan and the Trust shall be vested in the
Board and/or the Administrative Committee, and no other Participating Company
shall have any right to amend the Plan or the Trust. Any amendment to the Plan
or the Trust adopted by the Administrative Committee shall be binding upon
every Participating Company without further action by such Participating
Company.
(d) Contributions to Plan. Except as specified on a
Schedule to the Plan, a Participating Company shall be required to make
Contributions to the Plan at such times and in such amounts as specified in
Articles III and VI. The Contributions made (or to be made) to the Plan by the
Participating Companies shall be allocated between and among such companies in
whatever equitable manner or amounts as the Administrative Committee shall
determine.
(e) Withdrawal from Plan. The Administrative Committee
may terminate the designation of a Participating Company, effective as of any
date. A Participating Company may withdraw from participation in the Plan,
with the approval of the Administrative Committee, by action of its board of
directors, provided such action is communicated in writing to the
Administrative Committee. The withdrawal of a Participating Company shall be
effective as of the last day of the Plan Year in which the notice of withdrawal
is received by the Administrative Committee (unless the Controlling Company or
Administrative Committee consents to a different effective date). Any such
Participating Company which ceases to be a Participating Company shall be
liable for all costs and liabilities (whether imposed under the terms of the
Plan, the Code or ERISA) accrued through the effective date of its withdrawal
or termination. The withdrawing or terminating Participating Company shall
have no right to direct that assets of the Plan be transferred to a successor
plan for its employees unless such transfer is approved by the Controlling
Company or Administrative Committee in its sole discretion.
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12.4 Merger, Consolidation and Transfer of Assets or Liabilities.
In the event of any merger or consolidation of the Plan with,
or transfer of assets or liabilities of the Plan to, any other plan, each
Participant and Beneficiary shall have a plan benefit in the surviving or
transferee plan (determined as if such plan were then terminated immediately
after such merger, consolidation or transfer of assets or liabilities) that is
equal to or greater than the benefit he would have been entitled to receive
under the Plan immediately before such merger, consolidation or transfer of
assets or liabilities, if the Plan had terminated at that time.
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ARTICLE XIII
TOP-HEAVY PROVISIONS
13.1 Top-Heavy Plan Years.
The provisions set forth in this Article XIII shall become
effective for any Plan Years with respect to which the Plan is determined to be
a Top-Heavy Plan and shall supersede any other provisions of the Plan which are
inconsistent with these provisions; provided, if the Plan is determined not to
be a Top-Heavy Plan in any Plan Year subsequent to a Plan Year in which the
Plan was a Top-Heavy Plan, the provisions of this Article XIII shall not apply
with respect to such subsequent Plan Year; and, provided, further, to the
extent that any of the requirements of this Article XIII shall no longer be
required under Code Section 416 or any other section of the Code, such
requirements shall be of no force or effect.
13.2 Determination of Top-Heavy Status.
(a) Application. The Plan will be considered a Top-Heavy
Plan for a Plan Year if either:
(1) the Plan is not part of a Required
Aggregation Group or a Permissive Aggregation Group and, as of the
Determination Date of such Plan Year, the value of the Accounts of the
Participants who are Key Employees under the Plan exceeds 60 percent
of the value of the Accounts of all Participants; or
(2) the Plan is part of a Required Aggregation
Group which, as of the Determination Date of such Plan Year, is a
Top-Heavy Group;
provided, the Plan shall not be considered a Top-Heavy Plan for a Plan Year
under subsection (a)(2) hereof if the Plan also is part of a Permissive
Aggregation Group which is not a Top-Heavy Group for such Plan Year.
(b) Special Definitions.
(1) Determination Date. The term "Determination
Date" shall mean (i) in the case of the Plan Year that includes the
Effective Date of the Plan, the last day of such Plan Year, and (ii)
with respect to any other Plan Year of the Plan, the last day of the
immediately preceding Plan Year and (iii) for any plan year of each
other qualified plan maintained by a Participating Company or
Affiliate which is part of a Required or Permissive Aggregation Group,
the date determined under (i) or (ii) above as if the term "Plan Year"
means the plan year for each such other qualified plan.
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(2) Key Employee. The term "Key Employee" shall
mean an Employee defined in Code Section 416(i) and the Treasury
regulations thereunder. Generally, Key Employee shall mean an
Employee, former Employee or deceased Employee (and the beneficiaries
of any such Employee) who, at any time during the Plan Year or the 4
previous Plan Years, was either:
(A) an officer of an Affiliate having a
combined annual Compensation [as defined in Section
1.22(c)] from all Affiliates greater than 50 percent of the
amount in effect under Code Section 415(b)(1)(A) for any such
Plan Year; provided, no less than one nor more than fifty
individuals shall be treated as officers of an Affiliate;
(B) one of the ten individuals owning
[or considered as owning under Code Section 318, as
modified by Code Section 416(i)(1)(B)(iii)] the largest
percentage ownership interests in value in the Affiliates (as
more fully described in Treasury Regulation Section 1.416-1,
T-19 and T-20) and having a combined annual Compensation [as
defined in Section 1.22(c)] from all Affiliates of more than
the limitation in effect under Code Section 415(c)(1)(A);
(C) a 5-percent owner [or constructive
owner within the meaning of Code Section 318, as modified by
Code Section 416(i)(1)(B)(iii)] of an Affiliate; or
(D) a 1-percent owner [or constructive
owner within the meaning of Code Section 318, as
modified by Code Section 416(i)(1)(B)(iii) and the Treasury
regulations thereunder] of an Affiliate having a combined
annual Compensation [as defined in Section 1.22(c)] from all
Affiliates of more than $150,000.
For purposes of subsection (B) hereof, if two individuals have the
same percentage ownership interest in an Affiliate, the individual
having greater combined annual Compensation from all Affiliates shall
be treated as having the larger interest. In determining percentage
ownership hereunder, employers that otherwise would be aggregated
under Code Section 414(b), (c) and (m) shall be treated as separate
employers.
(3) Non-Key Employee. The term "Non-Key
Employee" shall mean any Employee who is not a Key Employee. For
purposes hereof, former Key Employees shall be treated as Non-Key
Employees.
(4) Permissive Aggregation Group. The term
"Permissive Aggregation Group" shall mean a Required Aggregation Group
and any other qualified plan or plans maintained or contributed to by
an Affiliate which, when considered with the Required Aggregation
Group, would continue to satisfy the requirements of Code Section
Section 401(a)(4) and 410.
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(5) Required Aggregation Group. The term
"Required Aggregation Group" shall mean a group of plans of the
Affiliates consisting of (i) each plan which, for such Plan Year or
any of the 4 preceding Plan Years, qualifies under Code Section 401(a)
and in which a Key Employee is a participant, and (ii) each other plan
which, during this 5-year period, qualifies under Code Section 401(a)
and which enables any plan described in clause (i) hereof to satisfy
the requirements of Code Section Section 401(a)(4) or 410.
(6) Top-Heavy Group. The term "Top-Heavy Group"
shall mean a Required or Permissive Aggregation Group with respect to
which the sum (determined as of a Determination Date) of (i) the
present value of the cumulative accrued benefits for Key Employees
under all Defined Benefit Plans included in such group, and (ii) the
aggregate of the accounts of Key Employees under all Defined
Contribution Plans included in such group, exceeds 60 percent of a
similar sum determined for all Employees.
(c) Special Rules. The following rules shall apply in
determining whether the Plan is a Top-Heavy Plan under subsection (a)(1) or
(a)(2) above:
(1) The value of any account balance under any
Defined Contribution Plan and the value of any accrued benefit under
any Defined Benefit Plan shall be determined as of the most recent
valuation date that falls within, or ends with, the 12-month period
ending on the Determination Date or, if plans are aggregated, the
Determination Dates that fall within the same calendar year;
(2) The value of the Accounts under the Plan or
the accounts under any other Defined Contribution Plan included in a
Required or Permissive Aggregation Group for any Determination Date,
other than the Determination Date for the first plan year, shall
include the amounts actually contributed and paid to the plan on or
before the Determination Date, and shall exclude any amounts to be
contributed with respect to such preceding plan year but not actually
paid to the plan on or before the Determination Date. The value of
the accounts under any Defined Contribution Plan for the Determination
Date of the first plan year shall include all amounts contributed to
the plan as of the Determination Date, regardless of whether such
amounts shall have been actually paid or merely accrued as of the
Determination Date;
(3) The value of any account balance under any
Defined Contribution Plan and the present value of any accrued benefit
under any Defined Benefit Plan as of any Determination Date shall be
increased by the aggregate distributions made under the plan during
the 5-year period ending on the Determination Date;
(4) Accrued benefits and accounts of the
following individuals shall not be taken into account for a Plan Year:
(A) any Non-Key Employee who, in a prior Plan Year, was a Key Employee
or (B) any Employee who had not performed any services for a
Participating Company at any time during the 5-year period ending on
the Determination Date for such Plan Year;
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(5) The value of any account balance shall not
include deductible employee contributions, as described in Code
Section 72(o)(5)(A);
(6) The extent to which rollovers and plan to
plan transfers are taken into account in determining the value of any
account balance or accrued benefit shall be determined in accordance
with Code Section 416 and the regulations thereunder; and
(7) Effective for plan years beginning after
December 31, 1986, each Non-Key Employee's accrued benefit under the
Plan and any Defined Benefit Plans shall be determined (A) under the
method, if any, that uniformly applies for accrual purposes under all
Defined Benefit Plans, or (B) if there is no such method, as if such
benefit accrued more rapidly than the slowest accrual rate permitted
under the fractional accrual rate set forth under Code Section
411(b)(1)(C).
13.3 Top-Heavy Minimum Contribution.
(a) Multiple Defined Contribution Plans. For any Plan
Year in which the Plan is a Top-Heavy Plan, the aggregate Company Contributions
(when added to similar contributions made under other defined contribution
plans) allocated to the Account of any Active Participant who is a Non-Key
Employee shall not be less than the Defined Contribution Minimum. To the
extent that the Company Contributions are less than the Defined Contribution
Minimum, additional Company Contributions shall be provided under the Plan.
For purposes hereof, a Non-Key Employee shall not fail to
receive a minimum contribution hereunder for a Plan Year because (i) such
Non-Key Employee fails to complete 1,000 Hours of Service for such Plan Year or
(ii) such Non-Key Employee is excluded from participation (or receives no
allocation) merely because his Compensation is less than a stated amount or
because he failed to make a Deferral Election for such Plan Year.
(b) Defined Contribution and Benefit Plans. In the event
that Non-Key Employees are covered under both the Plan and one or more Defined
Benefit Plans maintained by an Affiliate, the minimum contribution level set
forth in subsection (a) hereof shall be satisfied if each such Non-Key Employee
receives a benefit level under such Defined Contribution and Defined Benefit
Plans which is not less than the Defined Benefit Minimum offset by any benefits
provided under the Plan and any other Defined Contribution Plans maintained by
any Affiliate.
(c) Defined Contribution Minimum. The term "Defined
Contribution Minimum" means, with respect to the Plan, a minimum level of
Company Contributions allocated with respect to a Plan Year to the Account of
each Active Participant who is a Non-Key Employee; such level being the lesser
of:
(1) 3 percent of such Active Participant's
Compensation for such Plan Year; or
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(2) if no Defined Benefit Plan of an Affiliate
uses the Plan to satisfy the requirements of Code Section Section
401(a)(4) or 410, the highest percentage of Compensation at which
Company Contributions are made, or are required to be made, under the
Plan for such Plan Year for any Key Employee.
For purposes of this subsection, (i) qualified nonelective contributions made
by the Company in order to satisfy the anti-discrimination tests of Code
Section 401(k) or Section 401(m) may be treated as Company Contributions; (ii)
Before-Tax and Matching Contributions shall be taken into account as Company
Contributions for Key Employees; (iii) Matching Contributions may be treated
as Company Contributions and may be taken into account for satisfying the
Minimum Contribution Requirement for Non-Key Employees, but only if such
Matching Contributions are not treated as Matching Contributions for purposes
of the ADP Tests or Code Section 401(m) and instead satisfy the requirements
of Code Section 401(a)(4) as Company Contributions; and (iv) Before-Tax
Contributions shall not be taken into account for satisfying the Minimum
Contribution Requirement for Non-Key Employees.
(d) Defined Benefit Minimum. The term "Defined Benefit
Minimum" means, with respect to a Defined Benefit Plan, a minimum level of
accrued benefit derived from employer contributions with respect to a plan year
for each participant who is a Non-Key Employee; such level, when expressed as
an annual retirement benefit, being not less than the product of (1) and (2),
where:
(1) equals the Non-Key Employee's average
Compensation for the period of consecutive years (not exceeding 5)
when such Non-Key Employee had the highest aggregate Compensation from
all Affiliates; and
(2) equals the lesser of (A) 2 percent times such
Non-Key Employee's number of years of service or (B) 20 percent.
For purposes of determining the Defined Benefit Minimum, "years of service"
shall not include any year of service if the plan was not a Top-Heavy Plan for
the plan year ending during such year of service and shall not include any
years of service completed in a plan year beginning before January 1, 1984.
Compensation in years before January 1, 1984, and Compensation in years after
the close of the last plan year in which the plan is a Top-Heavy Plan shall be
disregarded. All accruals of employer-provided benefits, whether or not
attributable to years for which the Plan is top heavy, may be used in
determining whether the minimum contribution requirements set forth in this
Section are satisfied.
13.4 Top-Heavy Minimum Vesting.
The Plan's normal vesting schedule satisfies the top-heavy
minimum vesting requirements.
13.5 Adjustments in Code Section 415 Limitations for Top-Heavy
Plans.
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(a) Special Adjustment. In the event that, during a Plan
Year in which the Plan is a Top-Heavy Plan, an individual is a participant in
both a Defined Benefit Plan and a Defined Contribution Plan maintained by an
Affiliate, the computation of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction, as set forth in subsections 6.7(d)(3) and (5)
hereof, shall be modified by substituting "100 percent" for "125 percent" each
time it appears in said subsections; provided, in the event that the
requirements set forth in subsection (b) hereof are satisfied, the
modifications otherwise required by this subsection (a) shall not be required
and shall be of no effect.
(b) Exception. In the event that:
(1) the Plan would not be a Top-Heavy Plan if "90
percent" were substituted for "60 percent" each time it appears in
Section 13.2(a)(1) hereof and in the definition of Top-Heavy Group in
Section 13.2(b)(6);
(2) the Plan would continue to satisfy the
requirements of Section 13.3 hereof if "3 percent" were substituted
for "2 percent" each time it appears in Section 13.3(d), and if "20
percent", as used in Section 13.3(d), were increased by one percentage
point (but not by more than 10 percentage points) for each year for
which the plan was taken into account under this Section 13.5; and
(3) the Plan would continue to satisfy the
requirements of Section 13.3 hereof if "4 percent" were substituted
for "3 percent" each time it is used in Section 13.3(c);
then, the substitution of "100 percent" for "125 percent" as otherwise required
in subsection (a) hereof, shall not be required or effected.
13.6 Special Effective Date.
The provisions of this Article generally are effective as of
the Effective Date, but to the extent the Code requires an earlier or later
effective date with respect to any portion(s) of this Article, such other
effective date shall apply.
13.8 Construction of Limitations and Requirements.
The descriptions of the limitations and requirements set forth
in this Article are intended to serve as statements of the minimum legal
requirements necessary for the Plan to remain qualified under the applicable
terms of the Code. The Participating Companies do not desire or intend, and
the terms of this Article shall not be construed, to impose any more
restrictions on the operation of the Plan than required by law. Therefore, the
terms of this Article and any related terms and definitions in the Plan shall
be interpreted and operated in a manner which imposes the least restrictions on
the Plan. For example, if use of a more liberal definition of "Compensation"
is permissible at any time under the law, then the more liberal provisions may
be applied as if such provisions were included in the Plan.
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ARTICLE XIV
MISCELLANEOUS
14.1 Nonalienation of Benefits and Spendthrift Clause.
(a) General Nonalienation Requirements. Except to the
extent permitted by law and as provided in subsections (b) and (c) hereof, none
of the Accounts, benefits, payments, proceeds or distributions under the Plan
shall be subject to the claim of any creditor of a Participant or Beneficiary
or to any legal process by any creditor of such Participant or of such
Beneficiary; and neither such Participant nor any such Beneficiary shall have
any right to alienate, commute, anticipate or assign any of the Accounts,
benefits, payments, proceeds or distributions under the Plan except to the
extent expressly provided herein.
(b) Exception for Qualified Domestic Relations Orders.
(1) The nonalienation requirements of subsection
(a) hereof shall apply to the creation, assignment or recognition of
a right to any benefit, payable with respect to a Participant pursuant
to a domestic relations order, unless such order is (i) determined to
be a qualified domestic relations order, as defined in Code Section
414(p), entered on or after January 1, 1985, or (ii) any domestic
relations order, as defined in Code Section 414(p), entered before
January 1, 1985, pursuant to which a transferor plan was paying
benefits on January 1, 1985. The Administrative Committee shall
establish reasonable written procedures to determine the qualified
status of a domestic relations order. 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.
(2) The Administrative Committee shall establish
reasonable procedures to administer distributions under qualified
domestic relations orders which are submitted to it. The
Administrative Committee, to the extent provided in a qualified
domestic relations order, shall direct the Trustee to pay, in a single
sum payment, the full amount of the benefit payable to any alternate
payee under a qualified domestic relations order. Such cash-out
payment shall be made as soon as practicable after the end of the
month within which the Administrative Committee determines that a
domestic relations order is a qualified domestic relations order, or
if later, when the terms of the qualified domestic relations order
permit such a distribution. (See also Section 9.7.) If the terms of a
qualified domestic relations order do not permit an immediate cash-out
payment, the benefits shall be paid to the alternate payee in
accordance with the terms of such order and the applicable terms of
the Plan.
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14.2 Headings.
The headings and subheadings in the Plan have been inserted
for convenience of reference only and are to be ignored in any construction of
the provisions hereof.
14.3 Construction, Controlling Law.
In the construction of the Plan, the masculine shall include
the feminine and the feminine the masculine, and the singular shall include the
plural and the plural the singular, in all cases where such meanings would be
appropriate. Unless otherwise specified, any reference to a section shall be
interpreted as a reference to a section of the Plan. The Plan shall be
construed in accordance with the laws of the State of Georgia and applicable
federal laws.
14.4 No Contract of Employment.
Neither the establishment of the Plan, nor any modification
thereof, nor the creation of any fund, trust or account, nor the payment of any
benefits shall be construed as giving any Participant, Employee or any person
whomsoever the right to be retained in the service of any Affiliate, and all
Participants and other Employees shall remain subject to discharge to the same
extent as if the Plan had never been adopted.
14.5 Legally Incompetent.
The Administrative Committee may in its discretion direct that
payment be made and the Trustee shall make payment on such direction, directly
to an incompetent or disabled person, whether incompetent or disabled because
of minority or mental or physical disability, or to the guardian of such person
or to the person having legal custody of such person, without further liability
with respect to or in the amount of such payment either on the part of any
Participating Company, the Administrative Committee or the Trustee.
14.6 Heirs, Assigns and Personal Representatives.
The Plan shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties, including each
Participant and Beneficiary, present and future.
14.7 Title to Assets, Benefits Supported Only By Trust Fund.
No Participant or Beneficiary shall have any right to, or
interest in, any assets of the Trust Fund upon termination of his employment or
otherwise, except as provided from time to time under the Plan, and then only
to the extent of the benefits payable under the Plan to such Participant out of
the assets of the Trust Fund. Any person having any claim under the Plan shall
look solely to the assets of the Trust Fund for satisfaction. The foregoing
sentence notwithstanding, each Participating Company shall indemnify and save
any of its officers, members of its board of directors or agents, and each of
them, harmless from any and all claims, loss, damages, expense and liability
arising from their responsibilities in connection with
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the Plan and from acts, omissions and conduct in their official capacity,
except to the extent that such effects and consequences shall result from their
own willful misconduct or gross negligence.
14.8 Legal Action.
In any action or proceeding involving the assets held with
respect to the Plan or Trust Fund or the administration thereof, the
Participating Companies, the Administrative Committee and the Trustee shall be
the only necessary parties and no Participants, Employees, or former Employees
of the Company, their Beneficiaries or any other person having or claiming to
have an interest in the Plan shall be entitled to any notice of process;
provided, that such notice as is required by the Internal Revenue Service and
the Department of Labor to be given in connection with Plan amendments,
termination, curtailment or other activity shall be given in the manner and
form and at the time so required. Any final judgment which is not appealed or
appealable that may be entered in any such action or proceeding shall be
binding and conclusive on the parties hereto, the Administrative Committee and
all persons having or claiming to have an interest in the Plan.
14.9 No Discrimination.
The Controlling Company, through the Administrative Committee,
shall administer the Plan in a uniform and consistent manner with respect to
all Participants and Beneficiaries and shall not permit discrimination in favor
of officers, stockholders, supervisory or highly compensated Employees.
14.10 Severability.
If any provisions of the Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof, and the Plan shall be construed and enforced as if such
provisions had not been included.
14.11 Exclusive Benefit; Refund of Contributions.
No part of the Trust Fund shall be used for or diverted to
purposes other than the exclusive benefit of the Participants and their
Beneficiaries, subject, however, to the payment of all costs of maintaining and
administering the Plan and Trust. Notwithstanding the foregoing, Contributions
to the Trust by a Participating Company may be refunded to the Participating
Company under the following circumstances and subject to the following
limitations:
(a) Permitted Refunds. If and to the extent permitted by
the Code and other applicable laws and regulations thereunder, upon the
Participating Company's request, a Contribution which is (i) made by a mistake
in fact, or (ii) conditioned upon the deductibility of the Contribution under
Code Section 404, shall be returned to the Participating Company making the
Contribution within 1 year after the payment of the Contribution, the denial of
the
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qualification, or the disallowance of the deduction (to the extent disallowed),
whichever is applicable.
(b) Payment of Refund. If any refund is paid to a
Participating Company hereunder, such refund shall be made without interest or
other investment gains, shall be reduced by any investment losses attributable
to the refundable amount and shall be apportioned among the Accounts of the
Participants as an investment loss, except to the extent that the amount of the
refund can be attributed to one or more specific Participants (for example, as
in the case of certain mistakes of fact), in which case the amount of the
refund attributable to each such Participant's Account shall be debited
directly against such Account.
(c) Limitation on Refund. No refund shall be made to a
Participating Company if such refund would cause the balance in a Participant's
Account to be less than the balance would have been had the refunded
contribution not been made.
14.12 Special Effective Dates.
(a) Intent of Plan. The Plan generally is effective as
of January 1, 1994 and, as of such date, shall begin serving as the amendment
and restatement of the Plan. As such a restatement and amendment, the Plan is
intended to bring the Plan into compliance with all current laws and
regulations, including the following laws and regulations (which are listed in
Section 4 of IRS Revenue Procedure 88-42):
(1) Titles XI and XVIII of the Tax Reform Act of
1986;
(2) Subtitle C of Title IX of the Omnibus Budget
Reconciliation Act of 1986;
(3) Sections 9343(c) and 9346 of the Omnibus
Budget Reconciliation Act of 1987;
(4) Optional Form of Benefit Regulations;
(5) Temporary regulations under Code Section
414(q) and (s);
(6) Proposed regulations under Code Section
401(a)(9), 410 and 411;
(7) Notice 87-20, regarding amendments to Code
Section 411(a)(11)(B) and 417(e)(3) made by Code Section 1139 of the
Tax Reform Act of 1986;
(8) Notice 87-21, regarding changes to Code
Section 415 made by the Tax Reform Act of 1986; and
(9) Rev. Rul. 86-74, regarding changes to the
plan integration rules resulting from the Social Security Amendments
of 1983.
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In addition, the Plan is intended to include all provisions required by the
Technical Corrections and Miscellaneous Revenue Act of 1988.
(b) Effective Dates. To the extent any of the changes
and provisions described above have requisite effective dates prior to or after
January 1, 1994, the effective date of the Plan shall be deemed to be effective
as of such requisite effective dates solely for the purpose of satisfying such
legal and regulatory requirements.
14.13 Predecessor Service.
In the event a Participating Company maintains the Plan as
successor to a predecessor employer who maintained the Plan, service for the
predecessor employer shall be treated as service for the Participating Company.
14.14 Plan Expenses.
As permitted under the Code and ERISA, expenses incurred with
respect to administering the Plan and Trust shall be paid by the Trustee from
the Trust Fund to the extent such costs are not paid by the Participating
Companies or to the extent the Controlling Company requests that the Trustee
reimburse it for its payment of such expenses.
IN WITNESS WHEREOF, the Controlling Company has caused the
Plan to be executed by its duly authorized officers, as of this 30th day of
December, 1994.
NORRELL CORPORATION
By: /s/ Madeson CO??
---------------------------------
Title: V.P.
----------------------------
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NORRELL CORPORATION 401(K) RETIREMENT SAVINGS PLAN
(1994 RESTATEMENT)
SCHEDULE A
PARTICIPATING COMPANIES AND EFFECTIVE DATES
[See Plan Section 1.64 and Section 12.3]
Name Effective Date
- ---- --------------
Norrell Corporation November 1, 1972
Norrell Services, Inc. November 1, 1972
Norrell Temporary Services, Inc. November 1, 1972
HCA-Health Care Services, Inc. April 1, 1988
Norrell Health Care of New York, Inc. April 1, 1988
Tascor, Inc.* August 1, 1992
Health Task L.P. (a Related Company) September 1, 1994
*Date of participation in Tascor Plan.
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NORRELL CORPORATION 401(K) RETIREMENT SAVINGS PLAN
(1994 RESTATEMENT)
SCHEDULE B
MATCHING CONTRIBUTIONS
[See Plan Section 3.2]
For each Active Participant on whose behalf a Participating Company
has made, with respect to a payroll period, any Before-Tax Contributions, such
Participating Company shall make, with respect to such payroll period, a
Matching Contribution equal to 25 percent of the amount of the total of such
Before-Tax Contributions; provided, the total amount of the Matching
Contributions which a Participating Company shall make for any Active
Participant for any payroll period shall not exceed 4 percent (the Specified
Matching Compensation Percentage) of such Active Participant's Compensation
paid by such Participating Company for such payroll period (that is, the
25-percent Matching Contribution shall not be applied to the amount of a
Before-Tax Contribution that exceeds 4 percent of a Participant's Compensation
for a payroll period), nor shall such amount exceed (or cause the Contributions
to exceed) any of the maximum limitations described in Section 6.1, Section
6.4 or Section 6.7. The Administrative Committee, in its sole discretion, may
change the 25 percent and 4 percent levels set forth hereinabove, and any such
change shall be effective without amendment to the Plan.
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NORRELL CORPORATION 401(K) RETIREMENT SAVINGS PLAN
(1994 RESTATEMENT)
SCHEDULE C
PRE-1995 CONTRIBUTIONS
[See Plan Section 3.8]
Notwithstanding anything in the Plan to the contrary, all Company
Contributions (other than Before-Tax Contributions) to the Plan for the Plan
Year ending December 31, 1994 shall be determined and made in accordance with
the following provisions, which reflect the terms of the Plan and the Tascor
Plan as in effect immediately prior to the merger of such plans effective as of
December 31, 1994.
Profit Sharing Contributions under the Plan
The Controlling Company may, but shall not be required to, make a
Profit Sharing Contribution to the Plan with respect to the Plan Year ending
December 31, 1994. Subject to the limitations set forth in Section 6.1 and
6.7, the amount of any such Profit Sharing Contribution shall be determined at
the discretion of the Administrative Committee. If the Controlling Company
makes a Profit Sharing Contribution to the Plan for such Plan Year, each other
Participating Company (other than Participating Companies which participated in
the Tascor Plan and make Basic Matching Contributions to the Plan for such Plan
Year as described below) shall contribute to the Plan for such Plan Year the
same percentage of Compensation that such Participating Companies pays to its
Employees who are Eligible Participants for such Plan Year, as the Controlling
Company contributes with respect to its Employees who are Eligible Participants
for such Plan Year.
If Profit Sharing Contributions are made for the Plan Year ending
December 31, 1994, each Eligible Participant who is employed by a Participating
Company making such a contribution (excluding Participating Companies which
participated in the Tascor Plan) shall have allocated and credited to his
Profit Sharing Account a portion of such Profit Sharing Contribution in the
same proportion that the Compensation of such Eligible Participant for such
Plan Year bears to the total Compensation of all such Eligible Participants for
such Plan Year.
Matching Contributions under the Tascor Plan.
Participating Companies that participated in the Tascor Plan as of
December 31, 1994 shall make Basic Matching Contributions equal to 25 percent
of the amount of the total Before-Tax Contributions for each Participant on
whose behalf such Participating Companies made Before-Tax Contributions for any
payroll period; provided, the total amount of the Basic Matching contributions
which a Participating Company shall make for any Participant for any payroll
period shall not exceed 4% of such Participant's Compensation for such payroll
period,
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nor shall such amount exceed (or cause the Contributions to exceed) any of the
maximum limitations described in Section 6.1, Section 6.4 or Section 6.7.
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FIRST AMENDMENT TO THE
NORRELL CORPORATION 401(k) RETIREMENT SAVINGS PLAN
(1994 RESTATEMENT)
THIS FIRST AMENDMENT to the Norrell Corporation 401(k) Retirement
Savings Plan (1994 Restatement) (the "Plan") is made on this 12 day of
December, 1995, by Norrell Corporation (the "Company"), to be effective as of
January 1, 1996.
W I T N E S S E T H:
WHEREAS, Section 12.1 of the Plan provides that the Company has the
right to amend the Plan at any time; and
WHEREAS, the Company desires to amend the Plan to allow certain
Temporary Services Employees to participate in the Plan under the terms and
conditions set forth herein;
NOW, THEREFORE, the Plan hereby is amended as follows:
I.
Section 1.25(b) is amended to read as follows:
(b) A Temporary Services Employee who has not
completed 1,000 Hours of Service in accordance with Section
3. 1 (d).
II.
Section 1.37 is amended to read as follows:
1.37 Eligible Participant shall mean, for any Plan Year,
any Active Participant (other than a Management Services,
Staffing or Temporary Services Employee) who was in the
active employ of an Affiliate on the last day of the Plan
Year.
Section 1.46 is amended to read as follows:
1.46 Hour of Service shall mean the increments of
time described in subsection (a) hereof, as modified by
subsections (b) and (c) hereof:
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(a) General Rule.
(1) Each hour for which an Employee is paid, or
entitled to payment, for the performance of duties for an Affiliate
during the applicable computation period;
(2) Each hour for which an Employee is paid, or
entitled to payment, by an Affiliate on account of a period of
time during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff, jury duty,
military duty or Leave of Absence; provided:
(A) No more than 501 Hours of Service shall
be credited under this subsection (2) to an Employee for any single
continuous period during which he performs no duties as an employee of
an Affiliate (whether or not such period occurs in a single
computation period);
(B) An hour for which an Employee is
directly or indirectly paid, or entitled to payment, on account
of a period during which he performs no duties as an employee of an
Affiliate shall not be credited as an Hour of Service if such payment
is made or due under a plan maintained solely to comply with
applicable workers' compensation, unemployment compensation or
disability insurance laws; and
(C) Hours of Service shall not be credited
to an Employee for a payment which solely reimburses such Employee
for medical or medically related expenses incurred by him.
(D) Hours of Service credited under this
subsection (a)(2) will be credited for the computation period(s) in
which the duties were or would have been performed.
For purposes of this subsection (2), a payment shall be deemed to be
made by or due from an Affiliate regardless of whether such payment is
made by or due from an Affiliate directly, or indirectly through,
among others, a trust fund or insurer, to which the Affiliate
contributes or pays premiums and regardless of whether contributions
made or due to the trust fund, insurer or other entity are for the
benefit of particular employees or are on behalf of a group of
employees in the aggregate; and
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(3) Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by an Affiliate;
provided, the same Hours of Service shall not be credited both under
subsection (1) or subsection (2), as the case may be, and under this
subsection (3); and, provided further, crediting of Hours of Service
for back pay awarded or agreed to with respect to periods described
in subsection (2) shall be subject to the limitations set forth in
that subsection. The Hours of Service credited under this subsection
(a)(3) will be credited for the computation period(s) to which the
award or agreement pertains rather than the computation period(s) in
which the award, agreement or payment is made.
(b) Equivalencies. Each Employee for whom an Affiliate
does not keep records of actual Hours of Service shall be credited, in
accordance with this Section and applicable regulations promulgated by
the Department of Labor, as follows:
(1) If a daily basis is used, the Employee shall
be credited with 10 Hours of Service for each day for which the
Employee would be credited with at least one Hour of Service;
(2) If a weekly basis is used, the Employee shall
be credited with 45 Hours of Service for each week for which the
Employee would be credited with at least one Hour of Service;
(3) If a semi-monthly basis is used, the Employee
shall be credited with 95 Hours of Service for each semi-monthly
period for which the Employee would be credited with at least one Hour
of Service; or
(4) If a monthly basis is used, the Employee
shall be credited with 190 Hours of Service for each calendar month
for which the Employee would be credited with at least one Hour of
Service.
The exact basis for determining the number of Hours of Service
to be credited to any Employee shall be determined by the
Participating Company, but the same basis shall be used for all
similarly situated Employees.
(c) DOL Standards. Hours of Service shall be credited and
determined in compliance with Department of Labor Regulation
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Section 2530.200b-2(b) and (c), 29 CFR Part 2530, as may be amended
from time to time, or such other federal regulations as may from time
to time be applicable.
IV.
A new Section 2.1 (d) is added to read as follows:
(d) Temporary-Services Employees. A Temporary Services
Employee shall become an Active Participant in the Plan on the
Entry Date coinciding with or next following the first date on which
he completes 1,000 Hours of Service during a 12-consecutive-month
computation period. For this purpose, the computation period
initially shall be the 12-consecutive-month period beginning on the
date the Temporary Services Employee first completes an Hour of
Service and thereafter shall be the Plan Year which includes the first
anniversary of the Employee's employment or reemployment commencement
date.
V.
Section 2.4 is amended to read as follows:
2.4 Limited Participation by Certain Employees
Notwithstanding anything herein to the contrary, Management
Services Employees, Staffing Employees and Temporary Services
Employees [provided such Temporary Services Employees have completed
1,000 Hours of Service as provided in sec. 3.1(d)] shall be eligible
to make Rollover Contributions and Before-Tax Contributions to the
Plan but shall not be eligible to receive allocations of Matching
Contributions for any period in which they are employed in such
status, as provided in Section 1.37 and Section 3.2.
VI.
Section 3.2 is amended by revising the parenthetical in the first
sentence thereof to read as follows:
(other than a Management Services, Staffing or Temporary Services
Employee)
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IN WITNESS WHEREOF, the Company has caused its duly authorized officer
to execute this Amendment on the date first written above.
NORRELL CORPORATION
By:
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Title:
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