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EXHIBIT 10.3
LAMALIE AMROP INTERNATIONAL
PROFIT SHARING PLAN
AS AMENDED THROUGH APRIL 30, 1997
ARTICLE I
DEFINITIONS
(a) "ACCOUNT" or "ACCOUNTS" shall mean a Participant's Employer
Contribution Account, Rollover Contribution Account, Voluntary Contribution
Account and/or such other accounts as may be established by the Plan
Administrator.
(b) "ADMINISTRATOR" shall mean the Plan Administrator.
(c) "AFFILIATE" shall mean, with respect to an Employer, any
corporation other than such Employer that is a member of a controlled group of
corporations, within the meaning of Section 414(b) of the Code, of which such
Employer is a member; all other trades or businesses (whether or not
incorporated) under common control, within the meaning of Section 414(c) of the
Code, with such Employer; any service organization other than such Employer
that is a member of an affiliated service group, within the meaning of Section
414(m) of the Code, of which such Employer is a member; and any other
organization that is required to be aggregated with such Employer under Section
414(o) of the Code. For purposes of determining the limitations on Annual
Additions, the special rules of Section 415(h) of the Code shall apply.
(d) "AGREEMENT AND DECLARATION OF TRUST" shall mean the agreement
providing for the Trust Fund, as it may be amended from time to time.
(e) "ANNUAL ADDITIONS" shall mean, with respect to each Limitation
Year beginning after December 31, 1986, the sum of:
(1) the amount of Employer contributions allocated to the
Participant under any defined contribution plan maintained by an
Employer or an Affiliate;
(2) the amount of the Employee's contributions (other
than rollover contributions, if any) to any contributory defined
contribution plan maintained by an Employer or an Affiliate;
(3) any forfeitures allocated to the Participant under
any defined contribution plan maintained by an Employer or an
Affiliate; and
(4) if the Participant is a Key Employee, to the extent
required by law, any contributions allocated to any individual account
on behalf of such Participant under Section 401(h) or Section 419A(d)
of the Code.
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(f) "BOARD OF DIRECTORS" and "BOARD" shall mean the board of
directors of the Company.
(g) "CODE" shall mean the Internal Revenue Code of 1986, as
amended, or any successor statute. Reference to a specific section of the Code
shall include a reference to any successor provision.
(h) "COMPANY" shall mean Lamalie Associates, Inc. and its
successors.
(i) "COMPENSATION" shall mean, with respect to a Participant, the
regular salaries and wages, overtime pay, bonuses and commissions paid (or, for
Limitation Years beginning before January 1, 1992, accrued) by an Employer, but
shall not include third party disability payments, stock options, relocation
expense payments, benefits under this Plan, any amount contributed to any
pension, employee welfare, life insurance or health insurance plan or
arrangement, or any other tax-favored fringe benefits. No Compensation in
excess of $200,000 ($150,000 for Plan Years beginning on or after January 1,
1994) (adjusted under such regulations as may be issued by the Secretary of the
Treasury) shall be taken into account for any Employee; for these purposes, if
any Employee is a Family Member of a Highly Compensated Employee who is (1) a
5% owner of an Employer or (2) one of the ten Highly Compensated Employees paid
the greatest amount of Compensation during the Plan Year, then such Family
Member shall not be considered as a separate Employee and any Compensation paid
to such Family Member shall be treated as if it were paid to or on behalf of
the related Highly Compensated Employee.
(j) "EFFECTIVE DATE" of this Amendment shall mean March 1, 1989,
except as may otherwise be noted herein.
(k) "ELIGIBILITY DATE" shall mean the last day of February of each
year.
(l) "EMPLOYEE" shall mean any person employed by an Employer or an
Affiliate. The term "Employee" shall also include any individual required to
be treated as an Employee by reason of Section 414(n) of the Code (but only for
the purposes specified in such Section 414(n)).
(m) "EMPLOYER" shall mean the Company and any subsidiary, related
corporation, or other entity that adopts this Plan with the consent of the
Company.
(n) "EMPLOYER CONTRIBUTION ACCOUNT" shall mean an account
established pursuant to Article VII(b) with respect to Employer contributions
made to this Plan pursuant to paragraph (a) of Article VI.
(o) "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, or any successor statute. References to a specific
section of ERISA shall include references to any successor provisions.
(p) "FAMILY MEMBER" of a Highly Compensated Employee shall mean
such Employee's spouse, lineal descendant or ascendant, or the spouse of his
lineal descendant or ascendant; provided,
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however, that for purposes of determining the $200,000 limit on a Highly
Compensated Employee's Compensation, the term "Family Member" shall include
only the Employee's spouse and his lineal descendants who have not attained age
19 before the close of the Plan Year.
(q) "HIGHLY COMPENSATED EMPLOYEE" shall mean, for each Plan Year
beginning after December 31, 1986, any Employee during the Plan Year or the
immediately preceding Plan Year
(1) who was a 5% owner of an Employer;
(2) whose Section 415 Compensation was more than $75,000
(adjusted under such regulations as may be issued by the Secretary of
Treasury);
(3) whose Section 415 Compensation was more than $50,000
(adjusted under such regulations as may be issued by the Secretary of
Treasury), and who was a member of the "top paid group." As used
herein, "top paid group" shall mean all Employees who are in the top
20% of the Employer's work force on the basis of Section 415
Compensation paid during the year; or
(4) who was an officer of an Employer and received
compensation in excess of 50% of the amount in effect under Section
415(b)(1)(A) of the Code for any such Plan Year; provided, however,
that in no event shall more than 50 Employees be considered Highly
Compensated Employees merely by reason of their status as officers of
an Employer.
The term "Highly Compensated Employee" shall also mean any former Employee who
separated from service (or was deemed to have separated from service) prior to
the Plan Year, performs no service for an Employer during the Plan Year, and
was an actively employed Highly Compensated Employee in the separation year or
any Plan Year ending on or after the date the Employee attained age 55. For
purposes of determining whether a Participant is a Highly Compensated Employee,
if any Employee is a Family Member of a Highly Compensated Employee who is (i)
a 5% owner of an Employer or (ii) one of the ten Highly Compensated Employees
paid the greatest amount of Compensation during the Plan Year, then such Family
Member shall not be considered as a separate Employee and any Compensation paid
to such Family Member (and any applicable benefit or contribution on behalf of
such Family Member) shall be treated as if it were paid to or on behalf of the
related Highly Compensated Employee.
(r) "HOUR OF SERVICE" shall mean
(1) (A) an hour for which an Employee is paid, or
entitled to payment, for the performance of duties for an
Employer or an Affiliate;
(B) an hour for which an Employee is paid, or
entitled to payment, by an Employer or 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), lay-off, jury duty, military duty or
leave of absence. Notwithstanding the preceding,
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(i) no more than 501 Hours of Service shall
be credited under this section (B) to an Employee on
account of any single continuous period during which
the Employee performs no duties (whether or not such
period occurs in a single Plan Year);
(ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment,
on account of a period during which no duties are
performed shall not be credited to the Employee if
such payment is made or due under a plan maintained
solely for the purpose of complying with applicable
workmen's compensation, or unemployment compensation
or disability insurance laws; and
(iii) an hour shall not be credited for a
payment which solely reimburses an Employee for
medical or medically related expenses incurred by the
Employee; and
(C) an hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by an
Employer or an Affiliate; provided, however, that the same
Hour of Service shall not be credited both under section (A)
or section (B), as the case may be, and under this section
(C). Crediting of an Hour of Service for back pay awarded or
agreed to with respect to periods described in section (B)
shall be subject to the limitations set forth in that section.
The definition set forth in this subparagraph (1) is subject to the
special rules contained in Department of Labor Regulations Sections
2530.200b-2(b) and (c), and any regulations amending or superseding
such Sections, which special rules are hereby incorporated in the
definition of "Hour of Service" by this reference.
(2) An Employee required to be credited with at least one
Hour of Service during any calendar month under subparagraph (1) shall
be credited with 190, and only 190, Hours of Service for such month.
(3) (A) Notwithstanding the other provisions of this
"Hour of Service" definition, in the case of an Employee who
is absent from work for any period by reason of her pregnancy,
by reason of the birth of a child of the Employee, by reason
of the placement of a child with the Employee in connection
with the adoption of such child by the Employee or for
purposes of caring for such child for a reasonable period
beginning immediately following such birth or placement, the
Employee shall be treated as having those Hours of Service
described in section (B).
(B) The Hours of Service to be credited to an
Employee under the provisions of section (A) are the Hours of
Service that otherwise would normally have been credited to
such Employee but for the absence in question or, in any case
in which the Plan is unable to determine such hours, eight
Hours of Service per day of such absence; provided, however,
that the total number of hours treated as Hours
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of Service under this subparagraph (3) by reason of any such
pregnancy or placement shall not exceed 501 hours.
(C) The hours treated as Hours of Service under
this subparagraph (3) shall be credited only in the Plan Year
in which the absence from work begins, if the crediting is
necessary to prevent a One Year Break in Service in such Plan
Year or, in any other case, in the immediately following Plan
Year.
(D) Credit shall be given for Hours of Service
under this subparagraph (3) solely for purposes of determining
whether a One Year Break in Service has occurred for
participation or vesting purposes; credit shall not be given
hereunder for any other purposes (including, without
limitation, benefit accrual).
(E) Notwithstanding any other provision of this
subparagraph (3), no credit shall be given under this
subparagraph (3) unless the Employee in question furnishes to
the Administrator such timely information as the Administrator
may reasonably require to establish that the absence from work
is for reasons referred to in section (A) and the number of
days for which there was such an absence.
(s) "KEY EMPLOYEE" shall mean any Employee or former Employee (or
any beneficiary of such Employee) who is at any time during the Plan Year (or
was at any time during the four preceding Plan Years) (1) an officer of an
Employer (within the meaning of Section 416(i)(1)(B) of the Code) having an
aggregate annual compensation from the Employer and its Affiliates in excess of
50% of the amount in effect under Section 415(b)(1)(A) of the Code for any such
Plan Year, (2) one of the ten Employees owning (or considered as owning) the
largest interests in an Employer, owning more than a 1/2% interest in the
Employer, and having an aggregate annual compensation from the Employer and its
Affiliates of more than the limitation in effect under Section 415(c)(1)(A) of
the Code for the calendar year that includes the last day of the Plan Year (if
two Employees have equal interests in an Employer, the Employee having the
greater annual compensation from the Employer shall be deemed to have a larger
interest), (3) a 5% owner of an Employer (within the meaning of Section
416(i)(1)(B) of the Code) or (4) a 1% owner of an Employer (within the meaning
of Section 416(i)(1)(B) of the Code) having an aggregate annual compensation
from the Employer and its Affiliates of more than $150,000.
(t) "LEAVE OF ABSENCE" shall mean the time granted to an Employee
for vacation, sick leave, temporary layoff or other purposes, all as authorized
in accordance with uniform rules adopted by his Employer from time to time.
Leave of Absence shall also include the time that an Employee serves in the
armed forces of the United States of America during a period of national
emergency or as a result of the operation of a compulsory military service law
of the United States of America and during any period after his discharge from
such armed forces in which his employment rights are guaranteed by law.
(u) "LIMITATION YEAR" shall mean the Plan Year.
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(v) "NON-KEY EMPLOYEE" shall mean, with respect to any Plan Year,
an Employee or former Employee who is not a Key Employee (including any such
Employee who formerly was a Key Employee).
(w) "NORMAL RETIREMENT DATE" shall mean the date on which a
Participant attains the age of 65 years.
(x) "ONE YEAR BREAK IN SERVICE" shall mean a Plan Year in which an
Employee has 500 or fewer Hours of Service, and it shall be deemed to occur on
the last day of any such Plan Year.
(y) "PARTICIPANT" shall mean any eligible Employee of an Employer
who has become a Participant under the Plan and shall include any former
employee of an Employer who became a Participant under the Plan and who still
has a balance in an Account under the Plan.
(z) "PLAN" shall mean the profit sharing plan as herein set forth,
as it may be amended from time to time.
(aa) "PLAN ADMINISTRATOR" shall mean the Company.
(bb) "PLAN YEAR" shall mean the 12-month period ending on the last
day of February.
(cc) "ROLLOVER CONTRIBUTION ACCOUNT" shall mean an account
established pursuant to Article VII(b) with respect to rollover contributions
to this Plan made pursuant to paragraph (d) of Article VI.
(dd) "SECTION 415 COMPENSATION" shall mean all compensation
received by or made available to the Participant from all Employers and all
Affiliates for personal services actually rendered, but does not include
deferred compensation, stock options and other distributions that receive
special tax benefit.
(ee) "TOP HEAVY PLAN" shall mean this Plan if the aggregate account
balances (not including voluntary rollover contributions made by any
Participant from an unrelated plan) of the Key Employees and their
beneficiaries for such Plan Year exceed 60% of the aggregate account balances
(not including voluntary rollover contributions made by any Participant from an
unrelated plan) for all Participants and their beneficiaries. Such values
shall be determined for any Plan Year as of the last day of the immediately
preceding Plan Year. The account balances on any determination date shall
include the aggregate distributions made with respect to Participants during
the five-year period ending on the determination date. For the purposes of
this definition, the aggregate account balances for any Plan Year shall include
the account balances and accrued benefits of all retirement plans qualified
under Section 401(a) of the Code with which this Plan is required to be
aggregated to meet the requirements of Section 401(a)(4) or 410 of the Code
(including terminated plans that would have been required to be aggregated with
this Plan) and all plans of an Employer or an Affiliate in which a Key Employee
participates; and such term may include (at the discretion of the Plan
Administrator) any other retirement plan qualified under Section 401(a) of the
Code that is maintained by an Employer or an Affiliate, provided the resulting
aggregation group satisfies the
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requirements of Sections 401(a) and 410 of the Code. All calculations shall be
on the basis of actuarial assumptions that are specified by the Plan
Administrator and applied on a uniform basis to all plans in the applicable
aggregation group. The account balance of any Participant shall not be taken
into account if:
(1) he is a Non-Key Employee for any Plan Year, but was a
Key Employee for any prior Plan Year, or
(2) for Plan Years beginning after December 31, 1984, he
has not performed any service for an Employer during the five- year
period ending on the determination date.
(ff) "TRUST" shall mean the trust established by the Agreement and
Declaration of Trust.
(gg) "TRUSTEE" shall mean the individual, individuals or
corporation designated as trustee under the Agreement and Declaration of Trust.
(hh) "TRUST FUND" shall mean the trust fund established under the
Agreement and Declaration of Trust from which the amounts of supplementary
compensation provided for by the Plan are to be paid or are to be funded.
(ii) "VALUATION DATE" shall mean the last day of February, May,
August or November of each year or such other date as may be selected by the
Plan Administrator.
(jj) "VALUATION PERIOD" shall mean the period beginning with the
first day after a Valuation Date and ending with the next Valuation Date.
(kk) "VOLUNTARY CONTRIBUTION ACCOUNT" shall mean an account
established pursuant to Article VII(b) with respect to voluntary after- tax
contributions previously made to this Plan.
(ll) (1) "YEAR OF SERVICE" shall mean a Plan Year during which
an Employee completes 1,000 or more Hours of Service.
(2) For purposes of Article VIII and paragraph (a)(5) of
the Article entitled "Amendment and Termination," an Employee's "Years
of Service" shall not include the following:
(A) any Year of Service during which the Company
did not maintain this Plan or a predecessor plan;
(B) any Year of Service prior to a One Year Break
in Service, but only prior to such time as the Participant has
completed a Year of Service after such One Year Break in
Service; and
(C) any Year of Service prior to a One Year Break
in Service if the Participant had no vested interest in the
balance of his Employer Contribution
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Account at the time of such One Year Break in Service and if
the number of consecutive years in which a One Year Break in
Service occurred equaled or exceeded the greater of five or
the number of Years of Service completed by the Employee prior
thereto (not including any Years of Service not required to be
taken into consideration under the Plan as then in effect as a
result of any prior One Year Break in Service); provided,
however, that for these purposes, any One Year Break in
Service resulting from a Leave of Absence shall not be counted
but shall be disregarded.
Notwithstanding the foregoing, Years of Service shall not be
determined under this subparagraph (2) until the first Plan Year
beginning after December 31, 1984, but shall be determined for prior
periods under the Plan as then in effect; and, provided further, that
any Year of Service not required to be taken into account as of the
day before the first day of the first Plan Year beginning after
December 31, 1984, shall not be taken into account as a Year of
Service under this Amendment.
ARTICLE II
NAME OF THE PLAN
A profit sharing plan is hereby continued in accordance with the terms
hereof and shall be known as the "LAMALIE AMROP INTERNATIONAL PROFIT SHARING
PLAN."
ARTICLE III
PURPOSE OF THE PLAN AND THE TRUST
(a) EXCLUSIVE BENEFIT. This Plan is created for the sole purpose
of providing benefits to the Participants and enabling them to share in the
growth of their Employer. Except as otherwise permitted by law, in no event
shall any part of the principal or income of the Trust be paid to or reinvested
in any Employer or be used for or diverted to any purpose whatsoever other than
for the exclusive benefit of the Participants and their beneficiaries.
(b) RETURN OF CONTRIBUTIONS. Notwithstanding the provisions of
paragraph (a), any contribution made by an Employer to this Plan by a mistake
of fact may be returned to the Employer within one year after the payment of
the contribution; and any contribution made by an Employer that is conditioned
upon the deductibility of the contribution under Section 404 of the Code (each
contribution shall be presumed to be so conditioned unless the Employer
specifies otherwise) may be returned to the Employer if the deduction is
disallowed and the contribution is returned (to the extent disallowed) within
one year after the disallowance of the deduction.
(c) PARTICIPANT'S RIGHTS. The establishment of this Plan shall
not be considered as giving any Employee, or any other person, any legal or
equitable right against any Employer, any
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Affiliate, the Plan Administrator, the Trustee or the principal or the income
of the Trust, except to the extent otherwise provided by law. The
establishment of this Plan shall not be considered as giving any Employee, or
any other person, the right to be retained in the employ of any Employer or any
Affiliate.
(d) QUALIFIED PLAN. This Plan and the Trust, are intended to
qualify under the Code as a tax-free employees' plan and trust, and the
provisions of this Plan and the Trust should be interpreted accordingly.
ARTICLE IV
PLAN ADMINISTRATOR
(a) ADMINISTRATION OF THE PLAN. The Plan Administrator shall
control and manage the operation and administration of the Plan, except with
respect to investments. The Administrator shall have no duty with respect to
the investments to be made of the funds in the Trust except as may be expressly
assigned to it by the terms of the Agreement and Declaration of Trust.
(b) POWERS AND DUTIES. The Administrator shall have complete
control over the administration of the Plan herein embodied, with all powers
necessary to enable it to carry out its duties in that respect. Not in
limitation, but in amplification of the foregoing, the Administrator shall have
the power and discretion to interpret or construe this Agreement and to
determine all questions that may arise as to the status and rights of the
Participants and others hereunder.
(c) DIRECTION OF TRUSTEE. It shall be the duty of the
Administrator to direct the Trustee with regard to the allocation and the
distribution of the benefits to the Participants and others hereunder.
(d) SUMMARY PLAN DESCRIPTION. The Administrator shall prepare or
cause to be prepared a Summary Plan Description (if required by law) and such
periodic and annual reports as are required by law.
(e) DISCLOSURE. At least once each year, the Administrator shall
furnish to each Participant a statement containing the value of his interest in
the Trust Fund and such other information as may be required by law.
(f) CONFLICT IN TERMS. The Administrator shall notify each
Employee, in writing, as to the existence of the Plan and Trust and the basic
provisions thereof. In the event of any conflict between the terms of this
Plan and Trust as set forth in this Agreement and in the Agreement and
Declaration of Trust and as set forth in any explanatory booklet or other
description, this Agreement and the Agreement and Declaration of Trust shall
control.
(g) NONDISCRIMINATION. The Administrator shall not take any
action or direct the Trustee to take any action whatsoever that would result in
unfairly benefiting one Participant or group of
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Participants at the expense of another or in improperly discriminating between
Participants similarly situated or in the application of different rules to
substantially similar sets of facts.
(h) RECORDS. The Administrator shall keep a complete record of
all its proceedings as such Administrator and all data necessary for the
administration of the Plan. All of the foregoing records and data shall be
located at the principal office of the Administrator.
(i) FINAL AUTHORITY. Except to the extent otherwise required by
law, the decision of the Administrator in matters within its jurisdiction shall
be final, binding and conclusive upon each Employer and each Employee, member
and beneficiary and every other interested or concerned person or party.
(j) CLAIMS.
(1) Claims for benefits under the Plan may be made by a
Participant or a beneficiary of a Participant on forms supplied by the
Plan Administrator. Written notice of the disposition of a claim
shall be furnished to the claimant by the Administrator within ninety
(90) days after the application is filed with the Administrator,
unless special circumstances require an extension of time for
processing, in which event action shall be taken as soon as possible,
but not later than one hundred eighty (180) days after the application
is filed with the Administrator; and in the event that no action has
been taken within such ninety (90) or one hundred eighty (180) day
period, the claim shall be deemed to be denied for the purposes of
subparagraph (2). In the event that the claim is denied, the denial
shall be written in a manner calculated to be understood by the
claimant and shall include the specific reasons for the denial,
specific references to pertinent Plan provisions on which the denial
is based, a description of the material information, if any, necessary
for the claimant to perfect the claim, an explanation of why such
material information is necessary and an explanation of the claim
review procedure.
(2) If a claim is denied (either in the form of a written
denial or by the failure of the Plan Administrator, within the
required time period, to notify the claimant of the action taken), a
claimant or his duly authorized representative shall have sixty (60)
days after the receipt of such denial to petition the Plan
Administrator in writing for a full and fair review of the denial,
during which time the claimant or his duly authorized representative
shall have the right to review pertinent documents and to submit
issues and comments in writing. The Plan Administrator shall promptly
review the claim and shall make a decision not later than sixty (60)
days after receipt of the request for review, unless special
circumstances require an extension of time for processing, in which
event a decision shall be rendered as soon as possible, but not later
than one hundred twenty (120) days after the receipt of the request
for review. If such an extension is required because of special
circumstances, written notice of the extension shall be furnished to
the claimant prior to the commencement of the extension. The decision
of the review shall be in writing and shall include specific reasons
for the decision, written in a manner calculated to be understood by
the claimant, with specific references to the Plan provisions on which
the decision is based.
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(k) APPOINTMENT OF ADVISORS. The Administrator may appoint such
accountants, counsel (who may be counsel for an Employer), specialists and
other persons that it deems necessary and desirable in connection with the
administration of this Plan. The Administrator, by action of its Board of
Directors, may designate one or more of its employees to perform the duties
required of the Administrator hereunder.
ARTICLE V
ELIGIBILITY AND PARTICIPATION
(a) CURRENT PARTICIPANTS. Any Employee who was a Participant in
this Plan on the date of adoption of this Amendment shall remain as a
Participant in the Plan.
(b) ELIGIBILITY AND PARTICIPATION. Thereafter, any Employee of an
Employer shall be eligible to become a Participant in the Plan upon completing
one month of service. Any such eligible Employee shall enter the Plan as a
Participant, if he is still an Employee of an Employer, on the first
Eligibility Date concurring therewith or occurring thereafter and shall be
deemed to be a Participant as of the first day of the Plan Year during which he
became a Participant or, if later, the date he became an Employee of an
Employer.
(c) FORMER EMPLOYEES. An Employee who ceases to be a Participant
and who subsequently reenters the employ of an Employer shall be eligible again
to become a Participant on the date of his reemployment. An Employee who has
completed one month of service prior to becoming an Employee of an Employer
shall enter the Plan as a Participant on the date he becomes an Employee of an
Employer.
(d) RIGHT TO DECLINE PARTICIPATION. An Employee, with the
approval of the Plan Administrator, may decline to participate in the Plan, but
any request by an Employee for such approval shall be in writing.
ARTICLE VI
CONTRIBUTIONS TO THE TRUST
(a) EMPLOYER CONTRIBUTIONS. The amount, if any, to be contributed
to the Trust by an Employer for each Plan Year shall be determined by its Board
of Directors.
(b) FORM AND TIMING OF CONTRIBUTIONS. Payments on account of the
contributions due from an Employer for any Plan Year shall be made in cash.
Such payments may be made by a contributing Employer at any time, but payment
of the contribution for any Plan Year shall be completed on or before the time
prescribed by law, including extensions thereof, for filing such Employer's
federal income tax return for its taxable year with which or within which such
Plan Year ends.
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(c) PARTICIPANTS' VOLUNTARY CONTRIBUTIONS. This Plan will not
accept voluntary employee contributions for Plan Years beginning after December
31, 1988. Employee contributions for Plan Years beginning after December 31,
1986, shall be limited so as to meet the nondiscrimination test of Section
401(m) of the Code.
(d) ROLLOVER CONTRIBUTIONS. Each Participant at any time during a
Plan Year, with the consent of the Plan Administrator and in such manner as
prescribed by the Plan Administrator, may pay or cause to be paid to the
Trustee a rollover contribution (as defined in the applicable sections of the
Code, except that for this purpose "rollover contribution" shall be deemed to
include both a direct payment from a Participant and a direct transfer from a
trustee of another qualified plan in which the Participant is or was a
participant). Any Rollover Contribution Account that would cause this Plan to
be a transferee plan within the meaning of Section 401(a)(11)(B)(iii)(III) of
the Code shall be accounted for separately, and shall be subject to the
requirements of Sections 401(a)(11) and 417 of the Code.
(e) NO DUTY TO INQUIRE. The Trustee shall have no right or duty
to inquire into the amount of any contribution made by an Employer or any
Participant or the method used in determining the amount of any such
contribution, or to collect the same, but the Trustee shall be accountable only
for funds actually received by it.
ARTICLE VII
PARTICIPANTS' ACCOUNTS AND ALLOCATION OF CONTRIBUTIONS
(a) COMMON FUND. The assets of the Trust shall constitute a
common fund in which each Participant shall have an undivided interest.
(b) ESTABLISHMENT OF ACCOUNTS. The Plan Administrator shall
establish and maintain with respect to each Participant an account, designated
as an Employer Contribution Account, that shall reflect the Participant's
interest in the Trust Fund with respect to contributions made by his Employer.
In addition, for each Participant who has made a voluntary contribution
pursuant to Article VI, the Plan Administrator shall establish and maintain a
Voluntary Contribution Account; and for each Participant who has made a
rollover contribution pursuant to Article VI, the Plan Administrator shall
establish and maintain a Rollover Contribution Account. The Plan Administrator
may establish such additional Accounts as are necessary to reflect a
Participant's interest in the Trust Fund.
(c) INTERESTS OF PARTICIPANTS. The interest of a Participant in
the Trust Fund shall be the vested balance remaining from time to time in his
Accounts after making the adjustments required pursuant to paragraph (d) of
this Article VII.
(d) ADJUSTMENTS TO ACCOUNTS. Subject to the provisions of
paragraph (e) of this Article VII, the Accounts of a Participant shall be
adjusted from time to time as follows:
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(1) As of each Valuation Date, each of a Participant's
Accounts shall be credited or charged, as the case may be, with a
share of the "earnings factor" of the Trust Fund for the Valuation
Period ending with such current Valuation Date. The earnings factor
of the Trust Fund and the share attributable to a Participant's
Accounts are to be determined as follows:
(A) The earnings factor attributable to the
Trust Fund for any Valuation Period shall consist of the
aggregate of the unrealized appreciation or depreciation
occurring in the value of the Trust Fund during such period
that is attributable to contributions theretofore made to the
Participants' Accounts and earnings thereon, and that portion
of the income earned or the loss sustained by the Trust Fund
during such period (whether from investments or from the sale
or exchange of assets) that is attributable to contributions
theretofore made to the Participants' Accounts and earnings
thereon.
(B) The share of the earnings factor attributable
to each Account of a Participant for any Valuation Period
shall be that amount that shall bear the same ratio to such
earnings factor as the balance in such Account as of the end
of the immediately preceding Valuation Period (less any
amounts distributed from such Account to the Participant
during the Valuation Period ending with the current Valuation
Date) bears to the aggregate of the balances in the Accounts
of like kind as of the end of the immediately preceding
Valuation Period of all Participants who are entitled to share
in the earnings factor (less the aggregate amounts distributed
from such Accounts to such Participants during the Valuation
Period ending with the current Valuation Date).
(2) Each of a Participant's Accounts shall be credited
with contributions made during the Plan Year as follows:
(A) As of each Valuation Date that is the last
day of a Plan Year, the Employer Contribution Account of a
Participant shall be credited with his share of the
contribution, if any, made by his Employer with respect to the
Plan Year ending with such Valuation Date. The Participants
entitled to share in any contribution and their respective
shares thereof shall be determined as follows:
(i) Subject to the provisions of
subsections (ii), (iii), (iv) and (v), a
Participant's share of the amount of the contribution
for the Plan Year shall be the amount that shall bear
the same ratio to the total of such contribution as
the Participant's Compensation for such Plan Year
bears to the aggregate of the Compensation of all
Participants employed by such Employer for such Plan
Year who are entitled to share in the contribution
for such Plan Year.
(ii) A Participant shall be entitled to
share in the contribution if
a. the Plan Year constitutes a
Year of Service for such Participant and
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b. he is employed by his Employer
on the last day of the Plan Year.
(iii) In the event that the requirement set
forth in subsection (ii)b. immediately above would
cause this Plan to fail to meet the requirements of
Section 401(a)(26) and 410(b)(1) of the Code (and any
regulations thereunder issued by the Secretary of the
Treasury), a Participant shall be entitled to share
in the contribution if such Plan Year constitutes a
Year of Service for such Participant, regardless of
whether he is employed by his Employer on the last
day of the Plan Year.
(iv) In the event that the requirements
set forth in subsections (ii) and (iii) immediately
above would cause this Plan to fail to meet the
requirements of Sections 401(a)(26) and 410(b)(1) of
the Code (and any regulations thereunder issued by
the Secretary of the Treasury), a Participant shall
be entitled to share in the contribution if he
completes 500 Hours of Service during such Plan Year,
regardless of whether such Plan Year constitutes a
Year of Service for such Participant or whether he is
employed by his Employer on the last day of the Plan
Year.
(v) For each Plan Year in which this Plan is
a Top Heavy Plan, a Participant who is employed by an
Employer on the last day of such Plan Year, who is a
Non-Key Employee and who earns Compensation from an
Employer for such Plan Year shall be entitled to
share in the contribution (as described in this
section (A)) to the extent such allocation does not
exceed at least three percent (3%) of his Section 415
Compensation (or, if less, the highest percentage of
such Section 415 Compensation allocated to the
Employer Contribution Account of a Key Employee
hereunder, as well as his employer contribution
accounts under any other defined contribution plan
maintained by such Employer or an Affiliate,
including any elective contribution to any plan
subject to Code Section 401(k)), regardless of
whether such Plan Year constitutes a Year of Service
for such Participant, except to the extent such a
contribution is made by an Employer or any Affiliate
thereof on behalf of the Employee for the Plan Year
to any other defined contribution plan maintained by
such Employer or Affiliate.
(B) As of each Valuation Date, the Rollover
Contribution Account of a Participant shall be credited with
the rollover contributions, if any, made by the Participant
pursuant to Article VI with respect to the Valuation Period
ending with such Valuation Date.
(3) As of each Valuation Date that is the last day of a
Plan Year, the Employer Contribution Account of a Participant shall be
credited with his share of the value of interests forfeited pursuant
to Article VIII (except to the extent applied pursuant to Article
VIII(c)(4)(C)) by Participants employed by his Employer during such
Plan Year. A
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Participant's share of the forfeitures attributable to Employees of
his Employer shall be the amount that shall bear the same ratio to the
total of the forfeited interests for such Plan Year as the
Compensation of the Participant with respect to such Plan Year bears
to the aggregate of all Compensation of all Participants of such
Employer for that period who are entitled to share in forfeitures for
such Plan Year; provided, however, that a Participant shall not be
entitled to share in forfeitures for a Plan Year unless such
Participant shall be entitled to share in the Employer's contribution
for such Plan Year as provided in subparagraph (2)(A), and unless such
Participant was also a Participant as of the end of the immediately
preceding Plan Year.
(4) As of each Valuation Date, each Account of a
Participant shall be charged with the amount of any distribution made
to the Participant or his beneficiary from such Account during the
Valuation Period ending with such Valuation Date.
(5) For purposes of all computations required by this
Article VII, the accrual method of accounting shall be used, and the
Trust Fund and the assets thereof shall be valued at their fair market
value as of each Valuation Date.
(6) In making the adjustments for any Valuation Date as
provided in this paragraph (d), any life insurance contract or
contracts purchased and held by the Trustee shall be disregarded, and
the value of such contracts shall not be included in the value of a
Participant's Account or in the appreciation, depreciation, income or
loss of the Trust for any such purposes. For all other purposes, the
value of such contracts shall be included in the value of a
Participant's Account.
(7) The Plan Administrator may adopt such additional
accounting procedures as are necessary to accurately reflect each
Participant's interest in the Trust Fund, which procedures shall be
effective upon approval by the Employer. All such procedures shall be
applied in a consistent and nondiscriminatory manner.
(e) LIMITATION ON ALLOCATION OF CONTRIBUTIONS.
(1) Notwithstanding anything contained in this Plan to
the contrary, the aggregate Annual Additions to a Participant's
Accounts under this Plan and under any other defined contribution
plans maintained by an Employer or an Affiliate for any Limitation
Year shall not exceed the lesser of $30,000 (or, for Plan Years
beginning after December 31, 1986, if greater, one quarter of the
dollar limitation in effect under Section 415(b)(1)(A) of the Code) or
25% of the Participant's Section 415 Compensation for such Plan Year.
(2) In the event that the Annual Additions, under the
normal administration of the Plan, would otherwise exceed the limits
set forth above for any Participant, or in the event that any
Participant participates in both a defined benefit plan and a defined
contribution plan maintained by any Employer or any Affiliate and the
aggregate annual additions to and projected benefits under all of such
plans, under the normal administration of such plans, would otherwise
exceed the limits provided by law, then the Plan Administrator shall
take
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such actions, applied in a uniform and nondiscriminatory manner, as
will keep the annual additions and projected benefits for such
Participant from exceeding the applicable limits provided by law.
Excess Annual Additions shall be disposed of as provided in
subparagraph (3). Adjustments shall be made to this Plan, if
necessary to comply with such limits, before any adjustments shall be
made to any other plan; provided, however, that any excess Annual
Additions attributable to voluntary contributions to other plans shall
first be returned to the Participant from such other plans.
(3) If as a result of the allocation of forfeitures, a
reasonable error in estimating a Participant's Section 415
Compensation or other circumstances permitted under Section 415 of the
Code, the Annual Additions attributable to Employer contributions for
a particular Participant would cause the limitations set forth in this
paragraph (e) to be exceeded, the excess amount shall be held
unallocated in a suspense account for the Plan Year and reallocated
among the Participants as of the end of the next Plan Year to all of
the Participants in the Plan in the same manner as an Employer
contribution under the terms of paragraph (d)(2) of this Article VII
before any further Employer contributions are allocated to the
Accounts of the Participants, and such allocations shall be treated as
Annual Additions to the Accounts of the Participants. In the event
that the limits on Annual Additions for any Participant would be
exceeded before all of the amounts in the suspense account are
allocated among the Participants, then such excess amounts shall be
retained in the suspense account to be reallocated as of the end of
the next Plan Year and any succeeding Plan Years until all amounts in
the suspense account are exhausted. The suspense account shall be
credited or charged, as the case may be, with a share of the "earnings
factor" for each Valuation Period during which it is in existence as
if it were an Account of a Participant.
(4) In the event that any Participant participates in
both a defined benefit plan and a defined contribution plan maintained
by his Employer or an Affiliate thereof, then the sum of the Defined
Benefit Plan Fraction and the Defined Contribution Plan Fraction for
any Limitation Year shall not exceed 1.0. For these purposes,
(A) The Defined Benefit Plan Fraction is a
fraction, the numerator of which is the projected annual
benefit of the Participant under the defined benefit plan
determined as of the close of the Limitation Year and the
denominator of which is the lesser of (1) the product of 1.25
times the dollar limitation in effect under Section
415(b)(1)(A) of the Code for such Limitation Year or (2) the
product of 1.4 times the amount that may be taken into account
under Section 415(b)(1)(B) of the Code with respect to such
Participant for such Limitation Year.
(B) The Defined Contribution Plan Fraction is a
fraction, the numerator of which is the sum of the Annual
Additions to the Participant's Accounts as of the close of the
Limitation Year (less any amount that may be subtracted from
the numerator in accordance with any applicable statutes,
notices or rulings) and the denominator of which is the sum of
the lesser of the following amounts determined for such year
and for each prior Year of Service with the Employer: (1) the
product of 1.25 times the dollar limitation in effect under
Section 415(c)(1)(A) of the Code
16.
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for such Limitation Year (determined without regard to Section
415(c)(6) of the Code) or (2) the product of 1.4 times the
amount that may be taken into account under Section
415(c)(1)(B) of the Code with respect to such Participant for
such Limitation Year.
(C) The figure "1.0" shall be substituted for the
figure "1.25" set forth in sections (A) and (B) for each year
in which this Plan is a Top Heavy Plan unless (1) the defined
benefit plan provides a minimum benefit equal to 3% of each
Participant's Compensation times the number of years (not
exceeding 10) the Plan is a Top Heavy Plan or the defined
contribution plan provides a minimum contribution equal to 4%
(7-1/2% if the Participant participates in both the defined
benefit plan and the defined contribution plan) of each
Participant's Section 415 Compensation, and (2) the present
value of the cumulative accrued benefits (not including
rollover contributions made after December 31, 1983) of the
Key Employees for such year does not exceed 90% of the present
value of the accrued benefits (not including rollover
contributions made after December 31, 1983) under all plans.
Such values shall be determined in the same manner as
described in the "Top Heavy" definition in Article I.
(D) At the election of the Administrator, the
denominator under section (B) may be determined with respect
to all Limitation Years ending before January 1, 1983, by
multiplying (1) the denominator, as calculated under section
(B) (as in effect for the Plan Year ending in 1982), for the
Limitation Year ending in 1982 by (2) the transition fraction.
For these purposes, the term "transition fraction" means a
fraction with a numerator equal to the lesser of (1) $51,875
or (2) 1.4 multiplied by 25% of the Compensation of the
Participant for the Limitation Year ending in 1981 and with a
denominator equal to the lesser of (1) $41,500 or (2) 25% of
the Compensation of the Participant for the Plan Year ending
in 1981. The transition fraction shall be applied by
substituting the figure $41,500 for the figure $51,875 if this
Plan is a Top Heavy Plan.
(5) For purposes of applying the limitations of this
paragraph (e) for a particular Limitation Year,
(A) all qualified defined benefit plans (without
regard to whether a plan has been terminated) ever maintained
by the Employer will be treated as one defined benefit plan,
and
(B) all qualified defined contribution plans
(without regard to whether a plan has been terminated) ever
maintained by the Employer will be treated as one defined
contribution plan.
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ARTICLE VIII
BENEFITS UNDER THE PLAN
(a) RETIREMENT BENEFIT.
(1) A Participant shall be entitled to retire from the
employ of his Employer upon such Participant's Normal Retirement Date.
Until a Participant actually retires from the employ of his Employer,
no retirement benefits shall be payable to him, and he shall continue
to be treated in all respects as a Participant; provided, however,
that a Participant who attains age 70-1/2 shall begin receiving
payment of his retirement benefit no later than the April 1 after the
end of the calendar year in which he attains age 70-1/2.
(2) Upon the retirement of a Participant as provided in
subparagraph (1), and subject to adjustment as provided in paragraph
(d) of Article IX, such Participant shall be entitled to a retirement
benefit in an amount equal to 100% of the balances in his Accounts as
of the Valuation Date immediately preceding or concurring with the
date of his retirement, plus the amount of any contributions to his
Rollover Contribution Account made subsequent to such Valuation Date
and not used to purchase insurance.
(b) DISABILITY BENEFIT.
(1) In the event a Participant's employment with his
Employer is terminated by reason of his total and permanent
disability, and subject to adjustment as provided in paragraph (d) of
Article IX, such Participant shall be entitled to a disability benefit
in an amount equal to 100% of the balances in his Accounts as of the
Valuation Date immediately preceding or concurring with the date of
the termination of his employment, plus the amount of any
contributions to his Rollover Contribution Account made subsequent to
such Valuation Date and not used to purchase insurance.
(2) Total and permanent disability shall mean the total
incapacity of a Participant to perform the usual duties of his
employment with his Employer and will be deemed to have occurred only
when certified by a physician who is acceptable to the Plan
Administrator and only if such proof is received by the Administrator
within sixty (60) days after the date of the termination of such
Participant's employment.
(c) SEVERANCE OF EMPLOYMENT BENEFIT.
(1) In the event a Participant's employment with his
Employer is terminated for reasons other than retirement, total and
permanent disability or death, and subject to adjustment as provided
in paragraph (d) of Article IX, such Participant shall be entitled to
a severance of employment benefit in an amount equal to his vested
interest in the balances in his Accounts as of the Valuation Date
immediately preceding or concurring with the date of the termination
of his employment, plus the amount of any contributions to his
Rollover
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Contribution Account made subsequent to such Valuation Date and not used to
purchase insurance.
(2) A Participant's vested interest in his Employer
Contribution Account shall be a percentage of the balance of such
Account as of the applicable Valuation Date, based upon such
Participant's Years of Service as of the date of the termination of
his employment, as follows:
TOTAL NUMBER OF VESTED
YEARS OF SERVICE INTEREST
---------------- --------
Less than 1 Year of Service 0%
1 year, but less than 2 years 25%
2 years, but less than 3 years 50%
3 years, but less than 4 years 75%
4 years or more 100%
Notwithstanding the foregoing, a Participant shall be 100% vested in
his Employer Contribution Account upon attaining his Normal Retirement
Date, and he shall be 100% vested in his Rollover Contribution Account
and his Voluntary Contribution Account at all times, regardless of his
age or the number of his Years of Service.
(3) (A) If the termination of employment results in
five consecutive One Year Breaks in Service, then upon the
occurrence of such five consecutive One Year Breaks in
Service, the nonvested interest of the Participant in his
Employer Contribution Account as of the Valuation Date
immediately preceding or concurring with the date of his
termination of employment shall be deemed to be forfeited and
such forfeited amount shall be reallocated, pursuant to the
provisions of paragraph (d) of Article VII, at the end of the
Plan Year concurring with the date the fifth such consecutive
One Year Break in Service occurs. If the Participant is later
reemployed by an Employer or an Affiliate, the unforfeited
balance, if any, in his Employer Contribution Account that has
not been distributed to such Participant shall be set aside in
a separate account, and such Participant's Years of Service
after any five consecutive One Year Breaks in Service
resulting from such termination of employment shall not be
taken into account for the purpose of determining the vested
interest of such Participant in the balance of his Employer
Contribution Account that accrued before such five consecutive
One Year Breaks in Service.
(B) Notwithstanding any other provision of this
paragraph (c), if a Participant is reemployed by an Employer
or an Affiliate and, as a result, no five consecutive One Year
Breaks in Service occur, the Participant shall not be entitled
to any severance of employment benefit as a result of such
termination of employment; provided, however, that nothing
contained herein shall require or permit the Participant to
return or otherwise have restored to his Employer Contribution
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Account any funds distributed to him prior to his reemployment
and the determination that no five consecutive One Year Breaks
in Service would occur.
(4) (A) Notwithstanding any other provision of this
paragraph (c), if at any time a Participant is less than 100%
vested in his Employer Contribution Account and, as a result
of his severance of employment, he receives his entire vested
severance of employment benefit pursuant to the provisions of
Article IX, and the distribution of such benefit is made not
later than the close of the fifth Plan Year following the Plan
Year in which such termination occurs (or such longer period
as may be permitted by the Secretary of the Treasury, through
regulations or otherwise), then upon the occurrence of such
distribution, the non-vested interest of the Participant in
his Employer Contribution Account shall be deemed to be
forfeited and such forfeited amount shall be reallocated,
pursuant to the provisions of paragraph (d) of Article VII, at
the end of the Plan Year immediately following or concurring
with the date such distribution occurs.
(B) If a Participant is not vested as to any
portion of his Employer Contribution Account, he will be
deemed to have received a distribution immediately following
his severance of employment. Upon the occurrence of such
deemed distribution, the non-vested interest of the
Participant in his Employer Contribution Account shall be
deemed to be forfeited and such forfeited amount shall be
reallocated, pursuant to the provisions of paragraph (d) of
Article VII, at the end of the Plan Year immediately following
or concurring with the date such deemed distribution occurs.
(C) If a Participant whose interest is forfeited
under this subparagraph (4) is reemployed by an Employer or an
Affiliate, then such Participant shall have the right to repay
to the Trust, before the date that is the earlier of (1) five
years after the Participant's resumption of employment or (2)
the close of a period of five consecutive One Year Breaks in
Service commencing after his distribution, the full amount of
the severance of employment benefit previously distributed to
him. If the Participant elects to repay such amount to the
Trust within the time periods prescribed herein, or if a non-
vested Participant whose interest was forfeited under this
subparagraph (4) is reemployed by an Employer or an Affiliate
prior to the occurrence of five consecutive One Year Breaks in
Service, the non-vested interest of the Participant previously
forfeited pursuant to the provisions of this subparagraph (4)
shall be restored to the Employer Contribution Account of the
Participant, such restoration to be made from forfeitures of
non-vested interests and, if necessary, by contributions of
his Employer, so that the aggregate of the amounts repaid by
the Participant and restored by the Employer shall not be less
than the Employer Contribution Account balance of the
Participant at the time of forfeiture unadjusted by any
subsequent gains or losses.
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(d) DEATH BENEFIT.
(1) In the event of the death of a Participant, and
subject to adjustment as provided in paragraph (d) of Article IX, his
beneficiary shall be entitled to a death benefit in an amount equal to
100% of the balances in his Accounts as of the Valuation Date
immediately preceding or concurring with the date of his death, plus
the death benefits provided by any insurance contract or contracts
purchased and held by the Trustee in excess of the cash value, if any,
thereof included in such balances as of such Valuation Date, and plus
the amount of any contributions to his Rollover Contribution Account
made subsequent to such Valuation Date and not used to purchase
insurance.
(2) Subject to the provisions of subparagraph (3), at any
time and from time to time, each Participant shall have the
unrestricted right to designate a beneficiary to receive his death
benefit and to revoke any such designation. Each designation or
revocation shall be evidenced by written instrument filed with the
Plan Administrator, signed by the Participant and bearing the
signatures of at least two persons as witnesses to his signature. In
the event that a Participant has not designated a beneficiary or
beneficiaries, or if for any reason such designation shall be legally
ineffective, or if such beneficiary or beneficiaries shall predecease
the Participant, then the estate of such Participant shall be deemed
to be the beneficiary designated to receive such death benefit, or if
no personal representative is appointed for the estate of such
Participant, then his next of kin under the statute of descent and
distribution of the state of such Participant's domicile at the date
of his death shall be deemed to be the beneficiary or beneficiaries to
receive such death benefit.
(3) Notwithstanding the foregoing, if the Participant is
married as of the date of his death, the Participant's surviving
spouse shall be deemed to be his designated beneficiary and shall
receive the full amount of the death benefit attributable to the
Participant unless the spouse consents or has consented to the
Participant's designation of another beneficiary. Any such consent to
the designation of another beneficiary must acknowledge the effect of
the consent, must be witnessed by a Plan representative or by a notary
public and shall be effective only with respect to that spouse. A
spouse's consent may be either a restricted consent (which may not be
changed as to the beneficiary or (except as otherwise permitted by
law) form of payment unless the spouse consents to such change in the
manner described herein) or a blanket consent (which acknowledges that
the spouse has the right to limit consent only to a specific
beneficiary or a specific form of payment, and that the spouse
voluntarily elects to relinquish one or both of such rights).
Notwithstanding the preceding provisions of this subparagraph (3), a
Participant shall not be required to obtain a spousal consent if (A)
the Participant is legally separated or the Participant has been
abandoned, and the Participant provides the Administrative Committee
with a court order to such effect, or (B) the spouse cannot be
located.
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ARTICLE IX
FORM AND PAYMENT OF BENEFITS
(a) TIME FOR DISTRIBUTION OF BENEFITS.
(1) Except as otherwise provided under this Article IX,
the amount of the benefit to which a Participant is entitled under
paragraphs (a), (b) or (d) of Article VIII shall be paid to him or, in
the case of a death benefit, shall be paid to said Participant's
beneficiary or beneficiaries as provided in paragraph (b) of this
Article IX, beginning as soon as practicable following the
Participant's retirement, disability or death, as the case may be.
(2) Except as otherwise provided under this Article IX,
the amount of the severance of employment benefit to which a
Participant is entitled under paragraph (c) of Article VIII shall be
paid to a Participant as provided in paragraph (b) of this Article IX,
as soon as practicable following the Participant's severance of
employment.
(3) Notwithstanding the provisions of subparagraphs (1)
and (2):
(A) Any distribution paid to a Participant (or,
in the case of a death benefit, to his beneficiary or
beneficiaries) pursuant to subparagraph (1) or (2) shall
commence not later than the earlier of:
(i) the 60th day after the last day of
the Plan Year in which the Participant's employment
is terminated or, if later, in which occurs the
Participant's Normal Retirement Date, or in the case
of a retirement benefit, such later date as the
Participant may request; or
(ii) April 1 of the year immediately
following the calendar year in which he reaches age
70-1/2.
(B) No distribution shall be made of the benefit
to which a Participant is entitled under paragraph (a), (b) or
(c) of Article VIII prior to his Normal Retirement Date unless
the value of his benefit does not exceed $3,500, or unless the
Participant consents to the distribution. In the event that a
Participant does not consent to a distribution of a benefit in
excess of $3,500 to which he is entitled under paragraph (a),
(b) or (c) of Article VIII, the amount of his benefit shall
begin to be paid to the Participant not later than sixty (60)
days after the last day of the Plan Year in which the
Participant reaches his Normal Retirement Date, or in the case
of a retirement benefit, such later date as the Participant
may request.
(b) MANNER OF PAYMENT.
(1) Solely with respect to the retirement benefit
provided under paragraph (a) of Article VIII, the manner of payment
shall be determined by the Participant. The options are:
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(A) Option A - Such amount shall be paid or
applied in annual installments as nearly equal as practicable;
provided, however, that no annual payment shall be less than
$100; and provided, further, that the Participant may elect to
accelerate the payment of any part or all of the unpaid
installments or to provide that the unpaid balance shall be
used for the benefit of the Participant under Option B. In
the event this option is selected, the portion of the account
of a Participant that is not needed to make annual payments
during the then current Plan Year shall remain a part of the
Trust Fund under Article VII and shall participate in the net
increase or net decrease in the value of said Trust Fund as
provided therein. In no event shall payments under this
Option A extend beyond the life expectancy of the Participant
or the joint life expectancy of the Participant and his
designated beneficiary. If the Participant dies before
receiving the entire amount payable to him, the balance shall
be paid in a lump sum to his designated beneficiary as
specified in paragraph (d) of Article VIII.
(B) Option B - Such amount shall be paid in a
lump sum.
(2) With respect to all benefits other than a retirement
benefit, the benefit shall be paid in a lump sum.
(3) The Participant (or his spouse) shall be permitted to
elect whether life expectancies will be recalculated for purposes of
distributions hereunder. Such election must be made by the
Participant (or his spouse) no later than the date that distributions
are required to commence pursuant to Section 401(a)(9) of the Code.
If the Participant (or his spouse) fails to make such election, life
expectancies shall not be recalculated.
(4) Notwithstanding the foregoing, payments under any of
the options described in this paragraph shall satisfy the incidental
death benefit requirements and all other applicable provisions of
Section 401(a)(9) of the Code, the regulations issued thereunder
(including Prop. Reg. Section 1.401(a)(9)-2), and such other rules
thereunder as may be prescribed by the Commissioner.
(c) LUMP SUM PAYMENT. Notwithstanding the provisions of
paragraphs (a) and (b) of this Article IX, any benefit provided under this Plan
that is not more than $3,500 shall be paid in the form of a lump sum.
(d) PERIODIC ADJUSTMENTS. To the extent the balance of a
Participant's Account has not been distributed and remains in the Plan as of a
Valuation Date and notwithstanding anything contained in the Plan to the
contrary, the value of such remaining balance shall be subject to adjustment
pursuant to the provisions of Article VII.
(e) DISTRIBUTION ELECTIONS BEFORE JANUARY 1, 1984. To the extent
permitted by the Code and other applicable law, the provisions of this Article
IX shall not apply to the distribution of any portion of the balance of a
Participant's Account that is subject to a designation made by the
23.
24
Participant prior to January 1, 1984, if such designation was accepted by the
Plan Administrator and met the requirements of applicable law on December 31,
1983.
(f) DIRECT ROLLOVER DISTRIBUTIONS.
(1) Notwithstanding any provision of this Plan to the
contrary that would otherwise limit a Distributee's election under
this Article XIV, a Distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to have all or any
portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan specified by the Distributee in a Direct
Rollover. In the event that a Distributee elects to have only a
portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan, the portion must not be less than $500
(adjusted under such regulations as may be issued from time to time by
the Secretary of the Treasury).
(2) For purposes of this paragraph (f):
(A) "Direct Rollover" shall mean a payment by the
Plan to the Eligible Retirement Plan specified by the
Distributee.
(B) "Distributee" shall mean
(i) a Participant, or former
Participant, who is entitled to benefits payable as a
result of his retirement, disability or other
severance of employment as provided in Article VIII;
(ii) a Participant's, or former
Participant's, surviving spouse who is entitled to
death benefits payable pursuant to paragraph (d) of
Article VIII; and
(iii) a Participant's, or former
Participant's, spouse or former spouse who is the
alternate payee under a qualified domestic relations
order, as defined in Section 414(p) of the Code,
entitled to benefits payable as provided by paragraph
(b)(2) of Article XV.
(C) "Eligible Retirement Plan" shall mean an
individual retirement account described in Section 408(a) of
the Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in
Section 401(a) of the Code that will accept a Distributee's
Eligible Rollover Distribution; provided, however, that in the
case of an Eligible Rollover Distribution to a Participant's,
or former Participant's, surviving spouse who is entitled to
death benefits payable pursuant to paragraph (d) of Article
VIII, an Eligible Retirement Plan shall mean only an
individual retirement account described in Section 408(a) of
the Code or an individual retirement annuity described in
Section 408(b) of the Code.
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(D) "Eligible Rollover Distribution" shall mean
any distribution of all or any portion of the balance to the
credit of a Distributee, other than:
(i) any distribution made under the
provisions of paragraph (b)(1)(A) of Article IX that
is one of a series of substantially equal periodic
payments made for a specified period of ten years or
more;
(ii) any distribution to the extent that
such distribution is required under Section 410(a)(9)
of the Code; and
(iii) the portion of any distribution that is
not includable in gross income (determined without
regard to the exclusion for net unrealized
appreciation with respect to employer securities).
Notwithstanding the preceding provisions of this subparagraph
(D), an Eligible Rollover Distribution shall not include one
or more distributions during a Plan Year if the aggregate
amount distributed during the Plan Year is less than $200
(adjusted under such regulations as may be issued from time to
time by the Secretary of the Treasury).
ARTICLE X
DESIGNATED INVESTMENTS
(a) SELECTION OF INVESTMENT FUNDS. The Plan Administrator shall
select four or more mutual funds to be available to Participants for the
investment of their Accounts. The available funds shall include at least one
fund meeting the description below for Fund A, at least one fund meeting the
description below for Fund B, at least one fund meeting the description below
for Fund C, and at least one fund meeting the description below for Fund D:
(1) Fund A - a money market fund or short-term income
fund, which shall consist of commercial paper, U.S. Government or
federal agency obligations, short term corporate obligations, bank
certificates of deposit and/or other types of similar short maturity
investments;
(2) Fund B - an income fund, which fund may consist of
United States treasury and agency bonds, notes and bills, corporate
bonds, fixed rate annuity contracts (provided, however, that no such
annuity contract shall be deemed to permit any Participant to receive
any benefit under this Plan in the form of a life annuity), mortgages,
savings accounts or comparable investments;
(3) Fund C - an equity fund, which shall consist of
common stock and other equity investments;
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(4) Fund D - an international fund, which shall consist
of equity securities and/or fixed income securities issued outside of
the United States.
In addition to the foregoing mutual or collective fund offerings, each
Participant shall also be given an election to designate that all or a portion
of the funds in his Accounts are to be invested in an employer stock fund,
which shall invest primarily in the Company's common stock; provided, however,
that the Agreement of Trust that provides for custody of such fund shall permit
the Trustee thereof to invest such funds, or any part thereof, in other
investments; and provided, further, that no amount shall be invested in the
Company's common stock until all securities registration requirements
applicable to either the Company's common stock or the Plan have been complied
with. Notwithstanding the foregoing, with respect to investments in existing
mutual or collective fund offerings, no Participant may direct more than 10% of
the amounts allocated to his Accounts at the time of the direction be invested
in the employer stock fund and, with respect to future contributions, no
Participant may direct more than 10% of the contributions allocated to his
Accounts for any Plan Year be invested in the employer stock fund.
(b) ELECTION PROCEDURE. The election described in paragraph (a)
shall be made in writing on such forms as may be approved by the Plan
Administrator, with the Participant designating the percentage of the funds
held in his Accounts that are to be allocated to the various fund offerings;
provided, that such designations shall be in increments of 5% only and may be
changed no more than once in any quarter (and only during such period during
the quarter as may be determined by the Plan Administrator) by written notice
to the Administrator; and, provided further, that the percentage to be
allocated to the various fund offerings shall be the same for each Account of a
Participant. Funds in a Participant's Accounts that are not specifically
elected to be invested in the fund offerings (including those situations where
a Participant fails to make any election at all) shall be invested by the
Trustee in accordance with the general provisions of Article V of the Agreement
and Declaration of Trust.
(c) INVESTMENT OF FUNDS WHERE NO ELECTION IS MADE. Any
unallocated funds in the Trust shall be deemed part of the general fund and
shall be invested by the Trustee in accordance with the general provisions of
Article V of the Agreement and the Declaration of Trust.
ARTICLE XI
IN-SERVICE WITHDRAWALS
(a) HARDSHIP WITHDRAWALS. Notwithstanding the provisions of
Article IX and any other provisions of this Plan to the contrary, if a
Participant incurs a Hardship, he may apply to the Administrator for the
withdrawal of all or a portion of the vested balance in his Accounts, the total
amount not to be in excess of the amount of such Hardship. If the
Administrator approves a Hardship withdrawal, it shall direct the Trustee to
distribute to the Participant the amount so approved. The Administrator, in
its absolute discretion, shall determine whether or not the Participant has
incurred a Hardship and shall determine the amount of such Hardship (or a
lesser amount, if any, to be distributed to the Participant) pursuant to the
provision of paragraph (b) below.
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(b) DEFINITION. "Hardship," for purposes of this Article XI,
shall mean an immediate and substantial financial need of the Participant that
cannot readily be met by other financial resources to the Participant. As
determined in the Administrator's discretion, which shall be exercised in a
uniform and non-discriminatory manner, such financial need may include (1)
expenses of medical care of the Participant or a member of his family that
cannot be met by other financial resources, (2) expenditures committed prior to
a change in the Participant's financial situation that makes it not possible to
satisfy such obligations with available resources, and (3) other similar
situations of financial Hardship. Such financial need shall not include
expenses related to the purchase or repair of the principal residence of the
Participant or expense related to the education of a member of the
Participant's family, except as such expenses may come within the provisions of
subparagraph (2) above.
(c) ADJUSTMENTS TO ACCOUNTS. Any distribution that is provided
pursuant to the provisions of this Article XI shall, in accordance with the
provisions of Article VII, reduce the balances of the affected Accounts of the
Participant. If the distribution should occur between the last Valuation Date
immediately prior to the retirement, death, disability or other separation from
service of a Participant and the date of such termination of service, than,
notwithstanding any other provision of Article VIII to the contrary, the
benefits otherwise payable upon the retirement, disability, death or severance
of employment of a Participant shall be reduced by the amount of such
distribution.
ARTICLE XII
TRUST FUND
The Trust Fund shall be held by Jack P. Wissman and Cynthia S. Jetmore
as Trustee, or by a successor trustee or trustees, for use in accordance with
the Plan under the Agreement and Declaration of Trust. The Agreement and
Declaration of Trust may from time to time be amended in the manner therein
provided. Similarly, the Trustee may be changed from time to time in the
manner provided in the Agreement and Declaration of Trust.
ARTICLE XIII
EXPENSES OF ADMINISTRATION OF THE PLAN AND THE TRUST FUND
The Company shall bear all expenses of implementing this Plan and the
Trust. For its services, any corporate trustee shall be entitled to receive
reasonable compensation in accordance with its rate schedule in effect from
time to time for the handling of a retirement trust. Any individual Trustee
shall be entitled to such compensation as shall be arranged between the Company
and the Trustee by separate instrument; provided, however, that no person who
is already receiving full-time pay from any Employer or any Affiliate shall
receive compensation from the Trust Fund (except for the reimbursement of
expenses properly and actually incurred). The Company may pay all expenses of
the administration of the Trust Fund, including the Trustee's compensation, the
com-
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pensation of any investment manager, the expense incurred by the Plan
Administrator in discharging its duties, all income or other taxes of any kind
whatsoever that may be levied or assessed under existing or future laws upon or
in respect of the Trust Fund, and any interest that may be payable on money
borrowed by the Trustee for the purpose of the Trust and any Employer may pay
such expenses as relate to Participants employed by such Employer. Any such
payment by the Company or an Employer shall not be deemed a contribution to
this Plan. Such expenses shall be paid out of the assets of the Trust Fund
unless paid or provided for by the Company or another Employer.
Notwithstanding anything contained herein to the contrary, no excise tax or
other liability imposed upon the Trustee, the Plan Administrator or any other
person for failure to comply with the provisions of any federal law shall be
subject to payment or reimbursement from the assets of the Trust.
ARTICLE XIV
AMENDMENT AND TERMINATION
(a) RESTRICTIONS ON AMENDMENT AND TERMINATION OF THE PLAN. It is
the present intention of the Company to maintain the Plan set forth herein
indefinitely. Nevertheless, the Company specifically reserves to itself the
right at any time and from time to time to amend or terminate this Plan in
whole or in part; provided, however, that no such amendment:
(1) shall have the effect of vesting in any Employer,
directly or indirectly, any interest, ownership or control in any of
the present or subsequent funds held subject to the terms of the
Trust;
(2) shall cause or permit any property held subject to
the terms of the Trust to be diverted to purposes other than the
exclusive benefit of the Participants and their beneficiaries or for
the administrative expenses of the Plan Administrator and the Trust;
(3) shall reduce any vested interest of a Participant on
the later of the date the amendment is adopted or the date the
amendment is effective, except as permitted by law;
(4) shall reduce the Accounts of any Participant;
(5) shall amend any vesting schedule with respect to any
Participant who has at least three Years of Service at the end of the
election period described below, except as permitted by law, unless
each such Participant shall have the right to elect to have the
vesting schedule in effect prior to such amendment apply with respect
to him, such election, if any, to be made during the period beginning
not later than the date the amendment is adopted and ending no earlier
than sixty (60) days after the latest of the date the amendment is
adopted, the amendment becomes effective or the Participant is issued
written notice of the amendment by his Employer or the Plan
Administrator; or
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(6) shall increase the duties or liabilities of the
Trustee without its written consent.
(b) AMENDMENT OF PLAN. Subject to the limitations stated in
paragraph (a), the Company shall have the power to amend this Plan in any
manner that it deems desirable, and, not in limitation but in amplification of
the foregoing, it shall have the right to change or modify the method of
allocation of contributions hereunder, to change any provision relating to the
administration of this Plan and to change any provision relating to the
distribution or payment, or both, of any of the assets of the Trust.
(c) TERMINATION OF PLAN. Any Employer, in its sole and absolute
discretion, may permanently discontinue making contributions under this Plan or
may terminate this Plan and the Trust (with respect to all Employers if it is
the Company, or with respect to itself alone if it is an Employer other than
the Company), completely or partially, at any time without any liability
whatsoever for such permanent discontinuance or complete or partial
termination. In any of such events, the affected Participants, notwithstanding
any other provisions of this Plan, shall have fully vested interests in the
amounts credited to their respective Accounts at the time of such complete or
partial termination of this Plan and the Trust or permanent discontinuance of
contributions. All such vested interests shall be nonforfeitable.
(d) METHOD OF DISCONTINUANCE. In the event an Employer decides to
permanently discontinue making contributions, such decision shall be evidenced
by an appropriate resolution of its Board and a certified copy of such
resolution shall be delivered to the Plan Administrator and the Trustee. All
of the assets in the Trust Fund belonging to the affected Participants on the
date of discontinuance specified in such resolutions shall, aside from becoming
fully vested as provided in paragraph (c), be held, administered and
distributed by the Trustee in the manner provided under this Plan. In the
event of a permanent discontinuance of contributions without such formal
documentation, full vesting of the interests of the affected Participants in
the amounts credited to their respective Accounts will occur on the last day of
the year in which a substantial contribution is made to the Trust.
(e) METHOD OF TERMINATION.
(1) In the event an Employer decides to terminate this
Plan and the Trust, such decision shall be evidenced by an appropriate
resolution of its Board and a certified copy of such resolution shall
be delivered to the Plan Administrator and the Trustee. After payment
of all expenses and proportional adjustments of individual accounts to
reflect such expenses and other changes in the value of the Trust Fund
as of the date of termination, each affected Participant or the
beneficiary of any such Participant shall be entitled to receive, in a
lump sum, any amount then credited to his Accounts.
(2) At the election of the Participant, the Plan
Administrator may transfer the amount of any Participant's
distribution under this paragraph (e) to the trustee of another
qualified plan or the trustee of an individual retirement account or
individual retirement
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annuity instead of distributing such amount to the Participant. Any
such election by a Participant shall be in writing and filed with the
Plan Administrator.
ARTICLE XV
MISCELLANEOUS
(a) MERGER OR CONSOLIDATION. This Plan and the Trust may not be
merged or consolidated with, and the assets or liabilities of this Plan and the
Trust may not be transferred to, any other plan or trust unless each
Participant would receive a benefit immediately after the merger, consolidation
or transfer, if the plan and trust then terminated, that is equal to or greater
than the benefit the Participant would have received immediately before the
merger, consolidation or transfer if this Plan and the Trust had then
terminated.
(b) ALIENATION.
(1) Except as provided in subparagraph (2), no
Participant or beneficiary of a Participant shall have any right to
assign, transfer, appropriate, encumber, commute, anticipate or
otherwise alienate his interest in this Plan or the Trust or any
payments to be made thereunder; no benefits, payments, rights or
interests of a Participant or beneficiary of a Participant of any kind
or nature shall be in any way subject to legal process to levy upon,
garnish or attach the same for payment of any claim against the
Participant or beneficiary of a Participant; and no Participant or
beneficiary of a Participant shall have any right of any kind
whatsoever with respect to the Trust, or any estate or interest
therein, or with respect to any other property or right, other than
the right to receive such distributions as are lawfully made out of
the Trust, as and when the same respectively are due and payable under
the terms of this Plan and the Trust.
(2) Notwithstanding the provisions of subparagraph (1),
the Plan Administrator shall direct the Trustee to make payments
pursuant to a Qualified Domestic Relations Order as defined in Section
414(p) of the Code. The Plan Administrator shall establish procedures
consistent with Section 414(p) of the Code to determine if any order
received by the Plan Administrator or any other fiduciary of the Plan
is a Qualified Domestic Relations Order.
(c) GOVERNING LAW. This Plan shall be administered, construed and
enforced according to the laws of the State of Florida, except to the extent
such laws have been expressly preempted by federal law.
(d) ACTION BY EMPLOYER. Whenever the Company or another Employer
under the terms of this Plan is permitted or required to do or perform any act,
it shall be done and performed by the Board of Directors of the Company or such
other Employer and shall be evidenced by proper resolution of such Board of
Directors certified by the Secretary or Assistant Secretary of the Company or
such other Employer.
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(e) ALTERNATIVE ACTIONS. In the event it becomes impossible for
the Company, another Employer, the Plan Administrator or the Trustee to perform
any act required by this Plan, then the Company, such other Employer, the Plan
Administrator or the Trustee, as the case may be, may perform such alternative
act that most nearly carries out the intent and purpose of this Plan.
(f) GENDER. Throughout this Plan, and whenever appropriate, the
masculine gender shall be deemed to include the feminine and neuter; the
singular, the plural; and vice versa.
ARTICLE XVI
LOANS TO PARTICIPANTS
(a) AVAILABILITY OF LOANS.
(1) The Plan Administrator, in accordance with its
uniform nondiscriminatory policy, may direct the Trustee, upon
application of a Participant who is actively employed by an Employer,
to make a loan to such Participant out of his Accounts as a designated
investment by such Participant.
(2) Unless otherwise directed by the Administrator, Jack
Wissman in Tampa, Florida shall act as agent of the Administrator for
purposes of the loan program and shall be authorized to coordinate the
loan program set forth herein on behalf of the Administrator.
Applications shall be submitted to such person on forms obtained from
such person.
(3) The amount advanced, when added to the outstanding
balance of all other loans to the Participant from this Plan or any
other qualified retirement plan adopted by the Participant's Employer
or an Affiliate, may not exceed the lesser of:
(A) $50,000, reduced by the excess, if any, of:
(i) the Participant's highest aggregate
outstanding balance of all loans from the Plan (or
any other qualified retirement plan adopted by the
Participant's Employer or an Affiliate) during the
one (1) year period ending on the day before the date
on which the loan is made, over
(ii) the aggregate outstanding balance of
all loans from the Plan (or any other qualified
retirement plan adopted by the Participant's Employer
or an Affiliate) on the date on which the loan is
made; or
(B) 50% of the vested aggregate balances of the
Participant's Accounts.
(4) The minimum amount that may be borrowed by the
Participant shall be $500.
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(5) A Participant may have only one loan outstanding at
any one time; and a Participant may obtain only one loan in any one
twelve-month period.
(6) Notwithstanding the foregoing, no Participant shall
be entitled to borrow an amount that the Plan Administrator determines
could not be adequately secured by the portion of such Participant's
Accounts that is permitted to be held as security pursuant to
applicable Department of Labor Regulations.
(7) Each loan shall be secured by 50% of the vested
interest of the Participant in his Accounts. The Administrator shall
not accept any other form of security.
(b) TIME AND MANNER OF REPAYMENT. Any loan made under this
Article shall be repayable to the Trust at such times and in such manner as may
be provided by the Administrator, subject to the following limitations:
(1) The Administrator may, but is not obligated to,
require each Participant to agree to have each required loan payment
deducted from his pay and remitted to the Trustee.
(2) Each loan shall bear interest at a reasonable rate
and shall provide for substantially level amortization of principal
and interest no less frequently than quarterly. The interest rate
charged shall be comparable to the rate charged by commercial lending
institutions in the region in which the Employer is located for
comparable loans as determined by the Plan Administrator at the time
the loan is approved.
(3) Each loan shall be repaid within a specified period
of time. Such period shall not exceed (5) years, unless the loan is
used to acquire the principal residence of the Participant.
(c) DEFAULT. In the event of default, the Trustee, at the
direction of the Administrator, may proceed to collect said loan with any legal
remedy available, including reducing the amount of any distribution permitted
under Articles VIII and IX by the amount of any such loan that may be due and
owing as of the date of distribution or any other action that may be permitted
by law. "Events of Default" shall include any failure to make a payment of
principal or interest attributable to the loan when due; failure to perform or
to comply with any obligations imposed by any agreement executed by the
Borrower securing his loan obligation; and any other conditions or requirements
set forth within a promissory note or security agreement that may be required
in order to ensure that the terms of the loan are consistent with commercially
reasonable practices.
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