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EXHIBIT 10.3
TWENTY-THIRD AMENDMENT
OF THE
LAI WARD HOWELL, INC.
PROFIT SHARING AND SAVINGS PLAN
AMENDED AND RESTATED
AS OF
AUGUST 1, 1998
This Twenty-Third Amendment of the LAI Ward Howell, Inc. Profit Sharing
and Savings Plan (formerly known as the Lamalie Associates, Inc. Profit Sharing
and Savings Plan) is made and entered into this 30th day of July, 1998, but is
effective for all purposes as of August 1, 1998, except as may be otherwise
noted herein, by Lamalie Associates, Inc. (the "Company").
W I T N E S S E T H:
WHEREAS, the Company has previously adopted the LAI Ward Howell Profit
Sharing and Savings Plan (formerly known as the Lamalie Associates, Inc. Profit
Sharing Plan), which has been amended from time to time (as amended to date, the
"Plan"); and
WHEREAS, the Company is authorized and empowered to amend the Plan
further; and
WHEREAS, the Company deems it advisable and in the best interests of
the Participants to amend the Plan further to add a cash or deferred arrangement
to the Plan and to make other desired changes.
NOW, THEREFORE, the Plan is hereby amended and restated in its entirety
to read as follows:
ARTICLE I
DEFINITIONS
(a) "ACCOUNT" or "ACCOUNTS" shall mean a Participant's Employer
Contribution Account, Elective Contribution Account, Matching Contribution
Account, Non-Elective Contribution Account, Rollover Contribution Account,
Voluntary Contribution Account and/or such other accounts as may be established
by the Plan Administrator.
(b) "ACTUAL CONTRIBUTION PERCENTAGE" shall mean, with respect to a
group of Participants for the Plan Year, the average of the Actual Contribution
Ratios (calculated separately for each member of the group) of each Participant
who is a member of such group.
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(c) "ACTUAL CONTRIBUTION RATIO" shall mean the ratio of the amount of
matching and voluntary contributions (including elective and/or qualified
non-elective contributions, if any, treated as matching contributions in
accordance with Treasury Regulation Section 1.401(m)-1(b)(5)) made on behalf of
a Participant for a Plan Year to the Participant's Compensation for the Plan
Year.
(d) "ACTUAL DEFERRAL PERCENTAGE" shall mean, with respect to a group of
Participants for the Plan Year, the average of the Actual Deferral Ratios
(calculated separately for each member of the group) of each Participant who is
a member of such group.
(e) "ACTUAL DEFERRAL RATIO" shall mean the ratio of the amount of
elective contributions (including matching and non-elective contributions, if
any, treated as elective contributions, and including elective contributions by
Highly Compensated Employees in excess of the limitation set forth in paragraph
(a)(1)(A) of Article VI to the extent required by Treasury Regulation Section
1.402(g)-1(e)(1)(ii)) made on behalf of a Participant for a Plan Year to the
Participant's Compensation for the Plan Year.
(f) "ADMINISTRATOR" shall mean the Plan Administrator.
(g) "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.
(h) "AGREEMENT AND DECLARATION OF TRUST" shall mean the agreement
providing for the Trust Fund, as it may be amended from time to time.
(i) "ANNUAL ADDITIONS" shall mean 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
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(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.
(j) "BOARD OF DIRECTORS" and "BOARD" shall mean the board of directors
of the Company.
(k) "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.
(l) "COMPANY" shall mean Lamalie Associates, Inc. and its successors.
(m) "COMPENSATION" shall mean, with respect to a Participant, the
regular salaries and wages, overtime pay, bonuses and commissions paid 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 $150,000 (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.
(n) "DIRECT ROLLOVER" shall mean a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
(o) "DISTRIBUTEE" shall mean
(1) 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;
(2) a Participant's, or former Participant's, surviving spouse who
is entitled to death benefits payable pursuant to paragraph (d) of
Article VIII; and
(3) 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 XVI.
(p) "EFFECTIVE DATE" of this Amendment shall mean August 1, 1998,
except as may otherwise be noted herein.
(q) "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
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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.
(r) "ELIGIBLE ROLLOVER DISTRIBUTION" shall mean any distribution of all
or any portion of the balance to the credit of a Distributee, other than:
(1) 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;
(2) any distribution to the extent that such distribution is
required under Section 401(a)(9) of the Code; and
(3) 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).
(s) "ELECTIVE CONTRIBUTION ACCOUNT" shall mean an account established
pursuant to Article VII(b) with respect to contributions made under salary
reduction arrangements pursuant to paragraph (a) of Article VI.
(t) "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)).
(u) "EMPLOYER" shall mean the Company, LAI Ward Howell, Inc. and any
subsidiary, related corporation, or other entity that adopts this Plan with the
consent of the Company.
(v) "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 (c) of Article VI.
(w) "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.
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(x) "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, however, that for purposes of determining the
$150,000 limit on a Highly Compensated Employee's Compensation for Plan Years
beginning before January 1, 1997, 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.
(y) "HIGHLY COMPENSATED EMPLOYEE" shall mean any Employee who:
(1) was a 5% owner of an Employer at any time during the Plan Year
or the preceding Plan Year; or
(2) for the preceding Plan Year,
(A) had Section 415 Compensation in excess of $80,000
(adjusted under such regulations as may be issued by the Secretary
of the Treasury), and
(B) if an Employer elects the application of this section (B)
for such preceding Plan Year, 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.
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.
(z) "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,
(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
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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 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.
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(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.
(aa) "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.
(bb) "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.
(cc) "LIMITATION YEAR" shall mean the Plan Year.
(dd) "MATCHING CONTRIBUTION ACCOUNT" shall mean an account established
pursuant to Article VII(b) with respect to contributions to this Plan on behalf
of a Participant by an Employer pursuant to paragraph (b) of Article VI.
(ee) "NON-ELECTIVE CONTRIBUTION ACCOUNT" shall mean an account
established pursuant to Article VII(b) with respect to Employer non-elective
contributions pursuant to Article VI.
(ff) "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).
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(gg) "NORMAL RETIREMENT DATE" shall mean the date on which a
Participant attains the age of 65 years.
(hh) "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.
(ii) "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.
(jj) "PLAN" shall mean the Profit Sharing and Savings Plan as herein
set forth, as it may be amended from time to time.
(kk) "PLAN ADMINISTRATOR" shall mean the Company.
(ll) "PLAN YEAR" shall mean the 12-month period ending on the last day
of February.
(mm) "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 (g) of Article VI.
(nn) "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; provided, however, that beginning after December 31, 1997, the term
"Section 415 Compensation" shall also include any amount that is contributed by
an Employer at the election of the Employee and that is not includible in the
gross income of the Employee under Sections 125, 401(k), 402(h), 403(b), or 457
of the Code.
(oo) "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 requirements
of Sections 401(a) and 410 of the Code. All calculations shall be on the basis
of actuarial assumptions that are specified by
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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) he has not performed any service for an Employer during the
five-year period ending on the determination date.
(pp) "TRUST" shall mean the trust established by the Agreement and
Declaration of Trust.
(qq) "TRUSTEE" shall mean the individual, individuals or corporation
designated as trustee under the Agreement and Declaration of Trust.
(rr) "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.
(ss) "VALUATION DATE" shall mean each business day of each year or
such other date as may be selected by the Plan Administrator.
(tt) "VALUATION PERIOD" shall mean the period beginning with the first
day after a Valuation Date and ending with the next Valuation Date.
(uu) "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.
(vv) (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 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
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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.
(3) For all purposes of this Plan, an Employee's "Years of
Service" shall include his Years of Service (determined in accordance
with the provisions of this Plan) for Chartwell Partners International,
Inc., provided such Employee was: (A) hired by the Company on January
5, 1998; and (B) an employee of Chartwell Partners International, Inc.
on January 2, 1998.
(4) For all purposes of this Plan, an Employee's "Years of
Service" shall include his Years of Service (determined in accordance
with the provisions of this Plan) for Ward Howell International, Inc.,
provided such Employee was: (A) hired by the Company on February 27,
1998 and (B) an employee of Ward Howell International, Inc. on February
27, 1998.
ARTICLE II
NAME OF THE PLAN
A profit sharing and 401(k) plan is hereby continued in accordance with
the terms hereof and shall be known as the "LAI WARD HOWELL PROFIT SHARING AND
SAVINGS 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 Affiliate, the Plan Administrator, the Trustee
or the principal or the income of the Trust, except to the extent
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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
benefitting one Participant or group of 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.
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(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.
(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
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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 Effective Date shall remain as a Participant in the Plan.
(b) ELIGIBILITY AND PARTICIPATION. Effective as of February 1, 1998,
any Employee of an Employer shall be eligible to become a Participant in the
Plan upon becoming an Employee. Any such eligible Employee shall enter the Plan
as a Participant on the day he becomes an Employee.
(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 and shall enter the Plan on the date of his reemployment.
(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.
(e) CARVE OUT. Notwithstanding anything contained in this Plan to the
contrary, the Employees of the Employer's Lake Geneva Office and members of the
insurance practice shall be eligible to participate in this Plan only to the
extent of making elective contributions to the Plan pursuant to paragraph (a) of
Article VI and for no other purposes.
ARTICLE VI
CONTRIBUTIONS TO THE TRUST
(a) PARTICIPANTS' ELECTIVE CONTRIBUTIONS.
(1) AMOUNT CONTRIBUTED. The Employer shall contribute to the
Trust, on behalf of each Participant, an elective contribution as
specified in a written salary reduction agreement (if any) between the
Participant and such Employer; provided, however, that such
contribution for a Participant shall not exceed the lesser of:
(A) (i) $10,000 (adjusted under such regulations as may be
issued from time to time by the Secretary of the Treasury)
with respect to any calendar year;
(ii) reduced, during the calendar year immediately following
the year of a Participant's withdrawal pursuant to paragraph
(a) of Article XI, by
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the amount of such Participant's elective contributions for
the year of the withdrawal; or
(B) 15% of the Participant's Compensation for such Plan Year.
(2) (A) REFUND OF EXCESS ELECTIVE CONTRIBUTIONS. If a
Participant's elective contributions, together with any elective
contributions by the Participant to any other plans of his Employer
or an Affiliate intended to qualify under Sections 401(k) or 403(b)
of the Code, exceed the limitation set forth in paragraph (a)(1)(A)
of this Article VI for any calendar year, the Administrator, upon
notification from the Participant or his Employer, shall refund to
such Participant the portion of such excess that is attributable to
elective contributions to the Plan, increased by the earnings
thereon for such calendar year (and the subsequent period preceding
the date of the refund) (such earnings shall be determined by the
Plan Administrator, as of the last day of the calendar year
preceding the date the refund is made, in a manner consistent with
the provisions of paragraph (d)(1) of Article VII and Treasury
Regulation Section 1.402(g)-1(e)(5)) and reduced by any excess
elective contributions and earnings for the Plan Year beginning
with or within the calendar year that have been previously
distributed to the Participant in accordance with the provisions of
paragraph (a)(7). Any such refund shall be made on or before April
15 immediately following the calendar year in which the excess
elective contribution is made.
(B) If a Participant's elective contributions, together with
any elective contributions by the Participant to any other plans
intended to qualify under Sections 401(k), 403(b), 408(k) or 457 of
the Code, exceed the limitation set forth in paragraph (a)(1)(A) of
this Article VI for any calendar year (after the application of
paragraph (a)(2)(A)), the Administrator may refund to such
Participant, at the Participant's request, the portion of such
excess that is attributable to elective contributions to the Plan,
increased by the earnings thereon for such calendar year (and the
subsequent period preceding the date of the refund) (determined as
provided in paragraph (a)(2)(A)) and reduced by any excess elective
contributions and earnings for the Plan Year beginning with or
within the calendar year that have been previously distributed to
the Participant in accordance with the provisions of paragraph
(a)(7). Any such refund shall be made on or before April 15
immediately following the calendar year in which the excess
elective contribution is made.
(C) Excess elective contributions and earnings shall be
determined for purposes of paragraphs (a)(1)(A), (a)(2)(A) and
(a)(2)(B) after taking into account any previous refunds to the
Participant of excess elective contributions and earnings for the
Plan Year ending with or within the calendar year made in
accordance with the provisions of paragraph (a)(7).
(3) SALARY REDUCTION AGREEMENT. Any salary reduction agreement
shall be executed and in effect prior to the first day of the first pay period
to which it applies. Any such agreement may be revised by the Participant, with
the approval of the Administrator, as of any January 1, April 1, July 1 or
October 1, for pay periods beginning on or after the date such
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revision is executed and made effective. Any salary reduction agreement relating
to a cash bonus shall be executed and in effect prior to the date on which the
bonus is declared.
(4) REFUSAL OF DEFERRAL. The Administrator shall have the right to
require any Participant to reduce his elective contributions under any such
agreement, or to refuse deferral of all or part of the amount set forth in such
agreement, if necessary to comply with the requirements of this Plan and the
Code.
(5) SUSPENSION OF PARTICIPANTS' ELECTIVE CONTRIBUTIONS. A
Participant may suspend further elective contributions to the Plan at any time,
provided the request for such suspension is received by the Plan Administrator
prior to the first day of the first pay period to which such suspension applies.
Any Participant who suspends further contributions relating to periodic pay may
reinstate such contributions by providing written notice to the Plan
Administrator prior to any business day of the Plan Year.
(6) HARDSHIP DISTRIBUTIONS. In the event that a Participant
receives a withdrawal pursuant to paragraph (a) of Article XI, such Participant
is not permitted to make elective contributions to the Plan until the day
following the expiration of 12 months from the date of such distribution.
(7) REFUND OF EXCESS DEFERRALS.
(A) In the event that the elective contributions of Highly
Compensated Employees exceed the limitations set forth in paragraph
(i), such excess (plus the earnings thereon for the Plan Year to
which the excess contributions relate), determined as set forth
below, shall be distributed to the Highly Compensated Employees on
or before the 15th day of the third month after the close of the
Plan Year to which the excess contributions relate. Notwithstanding
the preceding sentence, the Plan Administrator may delay the
distribution of any excess elective contributions (plus the
earnings thereon for the Plan Year to which the excess
contributions relate) attributable to an Employer beyond the 15th
day of the third month of such Plan Year, if the Employer consents
to such delay and the Administrator refunds all such excess amounts
not later than 12 months after the close of the Plan Year to which
the excess contributions relate.
(B) (i) The amount of such excess for a Highly Compensated
Employee for the Plan Year shall be determined by reducing the
elective contribution of the Highly Compensated Employee with
the largest elective contribution to the extent required to
a. enable the arrangement to satisfy the limitations
set forth in paragraph (i), or
b. cause such Highly Compensated Employee's elective
contribution to equal the elective contribution of the
Highly Compensated Employee with the next highest elective
contribution.
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This process shall be repeated until the arrangement satisfies
the limitations set forth in paragraph (i).
(ii) For each Highly Compensated Employee, the amount of
such excess shall be deemed to equal
a. the total elective contributions, plus matching and
non-elective contributions, if any, that are treated as
elective contributions, on behalf of the Participant
(determined prior to the application of this paragraph
(a)(7)), minus
b. the amount determined by multiplying the
Participant's Actual Deferral Ratio (determined after
application of this paragraph (a)(7)) by his Compensation
used in determining such ratio.
(C) Earnings attributable to excess contributions of a Highly
Compensated Employee shall be determined by the Plan Administrator,
as of the last day of the Plan Year to which such excess
contributions relate (and taking into account the subsequent period
preceding the date of the refund), in a manner consistent with the
provisions of paragraph (d)(1) of Article VII and Treasury
Regulation Section 1.401(k)-1(f)(4)(ii).
(D) Excess elective contributions and earnings determined under
paragraph (a)(7)(B) and (C) shall be reduced by any excess elective
contributions and earnings for the calendar year ending with or
within the Plan Year that have been previously refunded to the
Participant in accordance with the provisions of paragraph (a)(2)
(E) In the event that a Highly Compensated Employee's Actual
Deferral Ratio is determined on the basis of both his contributions
and the contributions of his Family Members, any excess elective
contributions and earnings attributable to such Highly Compensated
Employee under this paragraph (a)(7) shall be distributed to the
Highly Compensated Employee and his Family Members in proportion to
the relative elective contributions of the Highly Compensated
Employee and his Family Members for the Plan Year.
(b) MATCHING CONTRIBUTIONS.
(1) Each Employer, at the discretion of its Board of Directors, may
contribute to the Trust a matching contribution on behalf of each
eligible Participant (as determined pursuant to subparagraph (b)(2))
for whom an elective contribution is made during the Plan Year. Such
matching contribution shall be equal to a specified percentage of the
amount of the elective contribution made to the Plan by the
Participant, and may be limited to a specified percentage of the
Participant's Compensation or a specified maximum dollar amount. The
percentage of the matching contribution, and any maximum percentage or
dollar amount, shall be determined by the Board of such Employer. No
matching contribution shall be required for the portion
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of a Participant's elective contribution subject to the refund
requirements of paragraphs (a)(2) and (a)(7).
(2) Except as otherwise provided in this subparagraph (2), a
Participant shall be eligible to share in the matching contribution
described in subparagraph (1) for a Plan Year if he is employed by his
Employer on the last day of such Plan Year (or if his employment is
terminated by his retirement, disability (as defined in paragraph
(b)(2) of Article IX) or death). In the event that the requirement set
forth in the preceding sentence would cause this Plan to fail to meet
the requirements of Section 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 matching contribution if:
(A) he is a Non-Highly Compensated Employee; and
(B) the allocation of a matching contribution to the
Participant is required by this section (B). The number of
Participants entitled to an allocation required by this section (B)
(the "Required Number of Participants"), when added to the
Non-Highly Compensated Employees who are eligible to receive an
allocation pursuant to the provisions of subparagraph (2) above,
shall be equal to the minimum number of Non-Highly Compensated
Employees who are required to benefit from the Plan during the Plan
Year in order to meet the minimum requirements of Section
410(b)(1)(B) of the Code (and any regulations thereunder issued by
the Secretary of the Treasury). An allocation is required by this
section (B) if a Participant is among the Required Number of
Participants paid the lowest Compensation by their Employers for
the Plan Year (determined without regard to those Participants who
are entitled to an allocation pursuant to subparagraph (2) above).
(3) Except as noted in subparagraph (4), any matching contribution
made by an Employer on account of an elective contribution that has
been refunded pursuant to paragraph (a)(2) or paragraph (a)(7), above,
shall be forfeited, and used to reduce matching contributions for the
Plan Year in which the forfeiture occurs. In the event that forfeitures
arising pursuant to this subparagraph (3) exceed the amount that may be
used to reduce matching contributions for the Plan Year, any additional
forfeitures shall be allocated in accordance with paragraph (d)(4) of
Article VII, to the Matching Contribution Accounts of Participants
other than those whose matching contributions have been reduced
hereunder.
(4) In the event that the matching contributions for Highly
Compensated Employees exceed the limitations of paragraph (i):
(A) The nonvested portion of such excess (including earnings
thereon for the Plan Year to which the excess contributions
relate), if any, shall be forfeited and allocated pursuant to
paragraph (d)(2) of Article VII, to the Matching Contribution
Account of Participants other than those whose matching
contributions have been reduced hereunder.
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(B) The vested portion of such excess (including earnings
thereon for the Plan Year to which the excess contributions
relate), if any, shall be distributed to the Highly Compensated
Employees on or before the 15th day of the third month after the
close of the Plan Year to which the matching contributions relate.
Notwithstanding the preceding sentence, the Plan Administrator may
delay the distribution of any excess matching contributions (plus
the earnings thereon for the Plan Year to which the excess
contributions relate) attributable to an Employer beyond the 15th
day of the third month of such Plan Year, if the Employer consents
to such delay and the Administrator refunds all such excess amounts
not later than 12 months after the close of the Plan Year to which
the excess contributions relate.
(C) (1) The amount of such excess for a Highly Compensated
Employee for the Plan Year shall be determined by the
following leveling method, under which the matching
contribution of the Highly Compensated Employee with the
largest matching contribution amount is reduced to the
extent required to
(a) enable the Plan to satisfy the limitations set
forth in paragraph (i), or
(b) cause such Highly Compensated Employee's matching
contribution to equal the matching contribution of the
Highly Compensated Employee with the next highest matching
contribution.
This process shall be repeated until the Plan satisfies the
limitations set forth in paragraph (i).
(2) For each Highly Compensated Employee, the amount of
such excess is deemed to equal
(a) the total matching contributions, plus elective
contributions, if any, treated as matching contributions,
on behalf of the Employee (determined prior to the
application of this paragraph (b)(4)(C)), minus
(b) the amount determined by multiplying the Employee's
Actual Contribution Ratio (determined after application of
this paragraph (b)(4)(C)) by his Compensation used in
determining such ratio.
(D) In determining the amount of such excess, Actual
Contribution Ratios shall be rounded to the nearest one-hundredth
of one percent of the Employee's Compensation.
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(E) In no case shall the amount of such excess with respect to
any Highly Compensated Employee exceed the amount of matching
contributions on behalf of such Highly Compensated Employee for
such Plan Year.
(F) Earnings attributable to excess contributions shall be
determined by the Plan Administrator, as of the last day of the
Plan Year to which such excess contributions relate in a manner
consistent with the provisions of paragraph (d)(1) of Article VII
and Treasury Regulation Section 1.401(m)-1(e)(3)(ii).
(c) 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.
(d) NON-ELECTIVE CONTRIBUTIONS. An Employer, at the discretion of its
Board of Directors, may make non-elective contributions to the Non-Elective
Contribution Accounts of Participants.
(e) FORM AND TIMING OF CONTRIBUTIONS. Payments on account of the
contributions due from an Employer for any Plan Year shall be made in cash to
the Trustee. Such payments may be made by a contributing Employer at any time,
but payment of the matching or Employer contributions 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. Payments of any elective contribution
shall be made as of the earliest date on which such contribution can reasonably
be segregated from the employer's general assets; provided, however, that such
payment shall be made no later than the fifteenth business day of the month
following the month in which the contribution is withheld from a Participant's
pay.
(f) PARTICIPANTS' VOLUNTARY CONTRIBUTIONS. This Plan will not accept
voluntary employee contributions for Plan Years beginning after December 31,
1988.
(g) 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.
(h) 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.
(i) LIMITATIONS ON ELECTIVE, MATCHING AND VOLUNTARY CONTRIBUTIONS. The
amounts contributed as elective and matching contributions shall be limited as
follows:
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(1) Actual Deferral Percentage:
(A) The Actual Deferral Percentage for the group of Highly
Compensated Employees for a Plan Year shall not exceed the Actual
Deferral Percentage for the group of all other eligible Employees
for the preceding Plan Year multiplied by 1.25, or
(B) The excess of the Actual Deferral Percentage for the group
of Highly Compensated Employees for a Plan Year over the Actual
Deferral Percentage for the group of all other eligible Employees
for the preceding Plan Year shall not exceed two (2) percentage
points (or such lesser amount as may be required by subparagraph
(3)); and the Actual Deferral Percentage for the group of Highly
Compensated Employees shall not exceed the Actual Deferral
Percentage for the group of all other eligible Employees,
multiplied by 2.0 (or such lesser amount as may be required by
subparagraph (3)); and
Notwithstanding the foregoing, if the Company so elects for a given
Plan Year, the Plan may apply this subparagraph (i)(1) using the Actual
Deferral Percentage for all eligible Non-Highly Compensated Employees
for the current Plan Year rather than their Actual Deferral Percentage
for the preceding Plan Year; provided, however, that if such an
election is made, it may not be changed except as provided by the
Secretary of the Treasury.
(2) Actual Contribution Percentage:
(A) The Actual Contribution Percentage for the group of Highly
Compensated Employees for a Plan Year shall not exceed the Actual
Contribution Percentage for the group of all other eligible
Employees for the preceding Plan Year multiplied by 1.25, or
(B) The excess of the Actual Contribution Percentage for the
group of Highly Compensated Employees for a Plan Year over the
Actual Contribution Percentage for the group of all other eligible
Employees for the preceding Plan Year shall not exceed two (2)
percentage points (or such lesser amount as may be required by
subparagraph (3)); and the Actual Contribution Percentage for the
group of Highly Compensated Employees shall not exceed the Actual
Contribution Percentage for the group of all other eligible
Employees, multiplied by 2.0 (or such lesser amount as may be
required by subparagraph (3)).
Notwithstanding the foregoing, if the Company so elects for a given
Plan Year, the Plan may apply this subparagraph (i)(2) using the Actual
Contribution Percentage for all eligible Non-Highly Compensated
Employees for the current Plan Year rather than their Actual
Contribution Percentage for the preceding Plan Year; provided, however,
that if such an election is made, it may not be changed except as
provided by the Secretary of the Treasury.
(3) Multiple Use Restriction:
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(A) The provisions of this subparagraph (3) shall apply if:
(i) one or more Highly Compensated Employees are
subject to both the Actual Deferral Percentage test
described in subparagraph (1) and the Actual Contribution
Percentage test described in subparagraph (2);
(ii) the sum of the Actual Deferral Percentage and the
Actual Contribution Percentage of those Highly Compensated
Employees subject to either or both tests exceeds the
Aggregate Limit defined in subparagraph (3)(C) below;
(iii) the Actual Deferral Percentage for the group of
Highly Compensated Employees eligible to make elective
contributions for a Plan Year exceeds the limitation set
forth in subparagraph (1)(A); and
(iv) the Actual Contribution Percentage for the group
of Highly Compensated Employees eligible to receive
matching contributions and/or electing to make voluntary
contributions for a Plan Year exceeds the limitation set
forth in subparagraph (2)(A).
(B) The Actual Deferral Percentage and the Actual Contribution
Percentage for the Highly Compensated Employees described in
subparagraph (3)(A) above shall be determined after any corrections
required by paragraphs (a), (b) and (d) of this Article VI to meet
the requirements of paragraph (f)(1) and paragraph (f)(2).
(C) "Aggregate Limit" shall mean the greater of:
(i) the sum of:
a. 125 percent of the greater of the Actual Deferral
Percentage of the Non-Highly Compensated Employees for the
Plan Year or the Actual Contribution Percentage of
Non-Highly Compensated Employees for the preceding Plan
Year, and
b. the lesser of 200% of, or two percentage points
plus, the lesser of such Actual Deferral Percentage and
such Actual Contribution Percentage; or
(ii) the sum of:
a. 125 percent of the lesser of the Actual Deferral
Percentage of the Non-Highly Compensated Employees for the
Plan Year or the Actual Contribution Percentage of
Non-Highly Compensated Employees for the preceding Plan
Year, and
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b. the lesser of 200% of, or two percentage points
plus, the greater of such Actual Deferral Percentage and
such Actual Contribution Percentage.
(D) If each of the provisions of subparagraph (3)(A) are met,
then the Actual Contribution Percentage of those Highly Compensated
Employees eligible to receive matching contributions for a Plan
Year will be reduced (beginning with such Highly Compensated
Employee whose Actual Contribution Ratio is the highest) so that
the Aggregate Limit is not exceeded. The amount by which each
Highly Compensated Employee's Actual Contribution Ratio is reduced
shall be treated as excess amounts subject to paragraph (b)(3).
Notwithstanding the foregoing, if the Company elects for a given Plan
Year to apply subparagraphs (i)(1) or (i)(2) using the Actual Deferral
Percentage or the Actual Contribution Percentage for all eligible
Non-Highly Compensated Employees for the current Plan Year rather than
their Actual Deferral Percentage or Actual Contribution Percentage for
the preceding Plan Year, then the current Plan Year must also be used
for purposes of applying the Multiple Use Restriction.
(4) For purposes of this paragraph (i), if two or more plans of an
Employer to which elective salary reduction contributions, voluntary
contributions or matching contributions are made are elected by the
Employer to be treated as one Plan for purposes of Section 410(b)(6) of
the Code, such plans shall be treated as a single plan for purposes of
determining the Actual Deferral Percentage and the Actual Contribution
Percentage. For purposes of determining the Actual Deferral Percentages
and the Actual Contribution Percentages for the group of Highly
Compensated Employees and the group of all other eligible Employees,
all Employees of the respective group who are directly or indirectly
eligible to receive allocations of elective contributions, non-elective
contributions and/or matching contributions under the Plan for any
portion of the Plan Year or the preceding Plan Year, as the case may
be, and all Employees of the respective group who elect not to enter
into salary reduction agreements pursuant to paragraph (a) of Article
VI or whose eligibility to enter into salary reduction agreements has
been suspended or otherwise limited because of an election not to
participate, a withdrawal, a loan, or a restriction on Annual Additions
as set forth in paragraph (e) of Article VII, shall be included. For
purposes of determining the Actual Deferral Ratio and the Actual
Contribution Ratio for a Highly Compensated Employee, all cash or
deferred arrangements in which the Employee is eligible to receive
allocations of elective contributions and/or matching contributions
shall be taken into account, unless otherwise required by Treasury
Regulation Sections 1.401(k)-1(g)(1)(ii)(B) and
1.401(m)-1(f)(1)(ii)(B).
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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, Elective Contribution Account, Matching
Contribution Account and Non-Elective 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:
(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
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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, the Elective Contribution
Account of a Participant shall be credited with any elective
contributions made by his Employer on his behalf with respect to a
date occurring during the Valuation Period ending with such
Valuation Date.
(B) As of each Valuation Date that is the last day of a Plan
Year, the Matching Contribution Account of a Participant shall be
credited with any matching contributions made by his Employer on
his behalf with respect to such Plan Year. A Participant will not
be entitled to share in the matching contributions unless he is
employed by his Employer on the last day of the Plan Year.
(C) 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)
and (iv), 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 he is employed by his Employer on the last day
of the Plan Year, effective March 1, 1989.
(iii) In the event that the requirement set forth in
subsection (ii) immediately above would cause this Plan to fail
to meet the requirements of Section 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 regardless of whether he is employed by his
Employer on the last day of the Plan Year.
(iv) 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
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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.
(D) As of each Valuation Date that is the last day of a Plan
Year, the Non-Elective Contribution Account of a Participant shall
be credited with his share of the non-elective contributions, if
any, made by his Employer with respect to the Plan Year ending with
such Valuation Date, such share being the amount that shall bear
the same ratio to the total of such non-elective contribution as
the Participant's Compensation for such Plan Year ending with such
Valuation Date bears to the aggregate of the Compensation from such
Employer for that period of all Participants who are entitled to
share in the non-elective contribution for such Plan Year. A
Participant who is a Highly Compensated Employee shall not be
entitled to share in the non-elective contribution; provided,
further, that a Participant shall not be entitled to share in the
non-elective contribution unless such Plan Year constitutes a Year
of Service for such Participant and he is employed by his Employer
on the last day of the Plan Year
(E) 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
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)(C), 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.
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(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:
(A) $30,000 (adjusted under such regulations as may be issued
by the Secretary of the Treasury); or
(B) 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 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
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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 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
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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.
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 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 or actually retires from the employ of his Employer,
whichever is later; provided, however, that an Employee who is a 5%
owner (as defined in Section 416 of the Code) 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, even if he has
not actually retired from the employ of his Employer at that time.
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Notwithstanding the preceding provisions of this paragraph (a)(1),
nothing contained herein shall affect a Participant's right to begin
receiving his benefit in accordance with the minimum distribution
requirements under Section 401(a)(9) of the Code.
(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 Contribution Account
made subsequent to such Valuation Date and not used to purchase
insurance.
(2) A Participant's vested interest in his Matching Contribution
Account and 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:
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TOTAL NUMBER OF VESTED YEARS
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 and Matching Contribution Account
upon attaining his Normal Retirement Date, and he shall be 100% vested
in his Elective Contribution Account, Non-Elective Contribution
Account, 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 Matching Contribution Account
and 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 Matching
Contribution Account and 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
Matching Contribution Account and his Employer Contribution 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
Matching Contribution Account and 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
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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 Matching Contribution
Account and 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
Matching Contribution Account and 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 Matching Contribution Account and 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 Matching Contribution
Account and 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 Matching
Contribution Account and Employer Contribution Account balance of
the Participant at the time of forfeiture unadjusted by any
subsequent gains or losses.
(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
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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.
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.
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(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) a. for calendar years beginning before January 1,
1997, he reaches age 70 1/2 (except that a Participant who is
still employed after December 31, 1996 may elect to defer all
further distributions under this section until after his
retirement), or
b. for calendar years beginning after December 31,
1997, he attains age 70 1/2 or retires, whichever is later;
provided, however, that an Employee who is a 5% owner (as
defined in Section 416 of the Code) 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, even if he has not actually retired from the employ of his
Employer at that time.
Notwithstanding the foregoing, nothing contained herein shall
affect a Participant's right to begin receiving his benefit in
accordance with the minimum distribution requirements under Section
401(a)(9) of the Code.
(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 $5,000 (or, for Plan Years beginning before
March 1, 1998, $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 $5,000 (or, for Plan Years
beginning before March 1, 1998, $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.
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(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:
(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 $5,000 (or, for Plan Years beginning before March 1, 1998, $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.
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(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 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. Notwithstanding any provision of
this Plan to the contrary that would otherwise limit a Distributee's election
under this Article IX, 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).
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;
(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 and 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,
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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. Notwithstanding the foregoing, no Participant may direct an
investment in the employer stock fund with respect to amounts previously
allocated to his Accounts at the time of the direction, and, with respect to
future contributions, no Participant may direct more than 10% of such future
contributions 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,
however, that:
(1) such designation shall be in increments of 1% only; and
(2) 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.
ARTICLE XI
IN-SERVICE WITHDRAWALS
(a) HARDSHIP WITHDRAWALS.
(1) If a Participant incurs a Hardship, such Participant may apply
to the Administrator for the withdrawal of a portion of the vested
balance in his Accounts not in excess of the amount of such Hardship;
provided, however, that in the case of his Employee Contribution
Account, withdrawals may not exceed the actual contributions thereto,
less previous distributions. The Administrator shall determine whether
an immediate and heavy financial need exists and the amount necessary
to meet the need (which amount may include the amount necessary to pay
income taxes and penalties reasonably anticipated to result from the
withdrawal), or the lesser amount, if any, to be distributed to such
Participant, in a uniform and nondiscriminatory manner.
(2) An immediate and heavy financial need shall be deemed to
include
(A) expenses of medical care (as defined in Section 213(d) of
the Code) incurred by the Participant or his spouse or other
dependents (as defined in Section 152 of the Code) or necessary for
such persons to obtain such medical care,
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(B) payments (other than mortgage payments) directly related to
the purchase of the Participant's principal residence,
(C) payment of tuition and related educational fees for the
next 12 months of post-secondary education for the Participant or
his spouse, children or other dependents,
(D) payments necessary to prevent the eviction of the
Participant from his principal residence or the foreclosure on the
mortgage of such residence, or
(E) such other events as may be prescribed by the Commissioner
of the Internal Revenue Service in revenue rulings, notices and
other documents of general applicability.
A financial need shall not fail to qualify as immediate and heavy
merely because such need was reasonably foreseeable or voluntarily
incurred by the Participant.
(3) A distribution of elective contributions will be deemed
necessary to satisfy the financial need of a Participant if
(A) the distribution is not in excess of the amount of the
immediate and heavy financial need of the employee (including any
amount necessary to pay income taxes and penalties reasonably
anticipated to result from the distribution);
(B) the Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans currently
available under all plans maintained by an Employer;
(C) the Participant's elective contributions to the Plan or any
other qualified or nonqualified plans of deferred compensation
maintained by an Employer are suspended and he is not permitted to
make further elective contributions to the Plan or any other plan
maintained by an Employer for the Participant's taxable year
immediately following the taxable year of the hardship distribution
in excess of the applicable limit under Section 402(g) of the Code
for such next taxable year less the amount of such Participant's
elective contributions for the taxable year of the hardship
distribution; and
(D) the Participant's elective contributions to the Plan or any
other plan maintained by an Employer are suspended and he is not
permitted to make further elective contributions until the day
following the expiration of 12 months from the date of such
distribution; and
(4) Any Participant who withdraws an amount pursuant to
subparagraph (1) shall be subject to the limitations of paragraphs
(a)(1)(A)(ii) and (a)(6) of Article VI.
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(b) WITHDRAWALS AFTER AGE 59 1/2. Upon reaching age 59 1/2, a
Participant may apply to the Administrator for the withdrawal of his Elective
Contribution Account in a lump sum. The Administrator shall establish uniform
and nondiscriminatory rules and procedures regarding the distribution of
benefits pursuant to this paragraph. The Administrator shall direct the Trustee
to distribute to a Participant who has applied for such a withdrawal the amount
held in his Elective Contribution Account.
ARTICLE XII
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, Merrill Lynch
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.
(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.
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(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) REPAYMENT UPON DISTRIBUTION. If, at the time benefits are to be
distributed (or to commence being distributed) to a Participant upon his
retirement, death, disability or separation from service, there remains any
unpaid balance of a loan hereunder, such unpaid balance shall, to the extent
consistent with Department of Labor regulations, become immediately due and
payable in full. Whether or not there is a default pursuant to paragraph (d) of
this Article XII, such unpaid balance, together with any accrued but unpaid
interest on the loan, shall be deducted from such Participant's Accounts before
any distribution is made. Except as may be required in order to comply (in a
manner consistent with continued qualification of the Plan under Section 401(a)
of the Code) with Department of Labor regulations, no loans shall be made or
remain outstanding with respect to a Participant under this Article XII after
the time distributions to the Participant are to be paid or commence.
(d) 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. Failure to make any installment payment when due in accordance with
the terms of the loan results in a deemed distribution at the time of such
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failure (or, if later, the last day of any grace period permitted by the Plan
Administrator). However, in no event shall the Plan Administrator apply the
defaulting Participant's Accounts to satisfy his repayment obligation, unless
the amount so applied otherwise could be distributed in accordance with the
terms of the Plan, the Code and any applicable Treasury Regulations.
ARTICLE XIII
TRUST FUND
The Trust Fund shall be held by Jack P. Wissman and Philip R. Albright,
as Trustees, 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(s) may be changed from time to time in the
manner provided in the Agreement and Declaration of Trust.
ARTICLE XIV
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
compensation 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.
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ARTICLE XV
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
(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
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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 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 XVI
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
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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) VETERANS' REEMPLOYMENT RIGHTS. Notwithstanding any provision of
this Plan to the contrary, effective as of December 12, 1994, contributions,
benefits and service credit with respect to qualified military service will be
provided in accordance with Section 414(u) of the Code.
(e) 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.
(f) 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.
(g) 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.
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IN WITNESS WHEREOF, this Twenty-Third Amendment has been executed this
___ day of July, 1998.
ATTEST: LAMALIE ASSOCIATES, INC.
(CORPORATE SEAL)
By:
- ------------------------------------- ----------------------------------
Secretary President
"COMPANY"
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TWENTY-THIRD AMENDMENT
OF THE
LAI WARD HOWELL
PROFIT SHARING AND SAVINGS PLAN
AMENDED AND RESTATED
AS OF
AUGUST 1, 1998
46
TWENTY-THIRD AMENDMENT
OF THE
LAI WARD HOWELL
PROFIT SHARING AND SAVINGS PLAN
AMENDED AND RESTATED
AS OF
AUGUST 1, 1998
PAGE
ARTICLE TITLE NUMBER
ARTICLE I Definitions................................... 1
ARTICLE II Name of the Plan.............................. 10
ARTICLE III Purpose of the Plan and the Trust............. 10
ARTICLE IV Plan Administrator............................ 11
ARTICLE V Eligibility and Participation................. 13
ARTICLE VI Contributions to the Trust.................... 13
ARTICLE VII Participants' Accounts and
Allocation of Contributions................. 23
ARTICLE VIII Benefits Under the Plan....................... 28
ARTICLE IX Form and Payment of Benefits.................. 32
ARTICLE X Designated Investments........................ 35
ARTICLE XI In-Service Withdrawals........................ 36
ARTICLE XII Loans to Participants......................... 38
ARTICLE XIII Trust Fund.................................... 40
ARTICLE XIV Expenses of Administration of
the Plan and the Trust Fund................. 40
ARTICLE XV Amendment and Termination..................... 41
ARTICLE XVI Miscellaneous................................. 42