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EXHIBIT 4(c)
FETZER VINEYARDS
PROFIT SHARING PLAN
PLAN NO.: 001
EMPLOYER IDENTIFICATION NO.: 94-2458321
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FETZER VINEYARDS
PROFIT SHARING PLAN
Fetzer Vineyards, located in Redwood Valley, California (Employer),
adopted a profit sharing plan effective December 1, 1981, known as Fetzer
Vineyards Profit Sharing Plan. Effective December 1, 1984, the Employer adopted
an amended and restated prototype 401(k) profit sharing plan (Prior Plan).
Effective December 1, 1989 and December 1, 1993, the Employer adopted amendments
and restatements of the Prior Plan.
Effective December 1, 1994 (Effective Date), unless otherwise
indicated, the Employer, in accordance with the provisions of the Prior Plan,
cancels participation in the Prior Plan and amends and restates the Prior Plan
in its entirety as a 401(k) profit sharing plan, known as Fetzer Vineyards
Profit Sharing Plan (Plan). The Plan is established to recognize and reward
employees for their contribution to the Employer's successful operation, and is
for the exclusive benefit of Participants and their Beneficiaries.
The Plan is intended to meet the requirements of Section 401(a) and
501(a), and to qualify as a Cash or Deferred Arrangement under Section 401(k),
of the Internal Revenue Code of 1986, as amended (Code).
The provisions of this Plan apply only to an Employee who terminates
employment on or after the Effective Date. Any rights and benefits of a former
employee are determined in accordance with the provisions of the Prior Plan in
effect on the date the employee's employment terminated.
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FETZER VINEYARDS PROFIT SHARING PLAN
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS........................................................1
1.01 Accounts..........................................................1
1.02 Accounting Date...................................................1
1.03 Affiliated Employer...............................................1
1.04 Beneficiary.......................................................1
1.05 Break in Service..................................................2
1.06 Code..............................................................2
1.07 Compensation......................................................2
1.08 Employee..........................................................3
1.09 Employer..........................................................3
1.10 Fiscal Year.......................................................4
1.11 Highly Compensated Employee.......................................4
1.12 Hour of Service...................................................4
1.13 Leased Employee...................................................5
1.14 Normal Retirement Age.............................................6
1.15 Plan Year.........................................................6
1.16 Spouse (Surviving Spouse).........................................6
1.17 Total and Permanent Disability....................................6
1.17 Year of Service...................................................6
ARTICLE II - PARTICIPATION.....................................................8
2.01 Eligibility.......................................................8
2.02 Reemployment of Participant.......................................8
2.03 Reemployment of Non-Participant...................................8
2.04 Transferred Employees.............................................8
2.05 Employment Status Change..........................................8
2.06 Participation Following Normal Retirement Age.....................9
ARTICLE III - VESTING ........................................................10
3.01 Elective Account Fully Vested....................................10
3.02 Vesting of Other Accounts........................................10
3.03 Credit for Vesting when Eligibility Computation Period
Overlaps Vesting Computation Period..............................10
3.04 Vesting Schedule.................................................10
3.05 Effect of Break in Service on Vesting............................11
3.06 Service Disregarded..............................................11
3.07 Date of Termination of Employment................................11
3.08 Vesting and Nonforfeitability of Account Upon Plan Termination...11
3.09 Amendment of Vesting Schedule....................................11
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ARTICLE IV - TIME AND MANNER OF PAYMENT.......................................13
4.01 Time of Initial Payment of Retirement Benefits....................13
4.02 Consent To Payment Of Benefits....................................13
4.03 Early Retirement Distribution.....................................14
4.04 Manner of Payment of Retirement Benefits..........................14
4.05 Election to Waive Joint and Survivor Annuity and Single
Life Annuity......................................................15
4.06 Payment Upon Death of ............................................16
4.07 Payment Upon Death of a Participant...............................17
4.08 Election to Waive Pre-Retirement Survivor Annuity.................18
4.09 Minimum Amounts to be Distributed.................................19
4.10 Calculation of Distributions......................................19
4.11 Forfeiture of Non-vested Benefits.................................21
4.12 Fully Vested Account..............................................23
4.13 Suspension of Benefits............................................23
4.14 Pre-1984 Election.................................................23
4.15 Pre-Retirement Distribution.......................................23
4.16 Hardship Distribution.............................................23
4.17 Limitation for Qualified Domestic Relations Order.................24
ARTICLE V - CONTRIBUTIONS BY THE EMPLOYER.....................................26
5.01 Profit Sharing Contribution by Employer...........................26
5.02 Elective Contribution by Employer.................................26
5.03 Matching Contribution by Employer.................................26
5.04 Deduction of Employer Contributions...............................26
5.05 Limits on Elective and Matching Contributions.....................26
5.06 Special Employer Contributions....................................28
5.07 Correction of Excess Elective Contributions.......................28
5.08 Correction of Excess Employer Matching Contributions .............28
5.09 Mistaken Contribution.............................................29
5.10 Plan and Trust Conditioned on Approval and Qualification..........29
5.11 Funding Policy....................................................30
ARTICLE VI - ELECTIVE CONTRIBUTIONS...........................................31
6.01 Amount of Contribution............................................31
6.02 Election Request..................................................31
6.03 Change of Rate....................................................31
6.04 Distributions from Elective Account...............................31
ARTICLE VII - ALLOCATION TO INDIVIDUAL PARTICIPANTS...........................33
7.01 Allocation of Profit Sharing Contribution.........................33
7.02 Allocation of Elective Contributions..............................34
7.03 Allocation of Matching Contribution...............................34
7.04 Allocation of Forfeitures.........................................34
7.05 Amendment of Allocation Eligibility...............................34
7.06 Maximum Additions to Participant's Account........................35
7.07 Date of Allocation to Accounts....................................36
7.08 Expenses of Plan..................................................37
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7.09 Participant Direction of Investment...............................37
7.10 Periodic Adjustments to Account...................................37
ARTICLE VIII - TOP HEAVY PROVISIONS...........................................39
8.01 When Provisions Effective.........................................39
8.02 Determination of Top Heavy........................................39
8.03 Minimum Benefits..................................................40
ARTICLE IX - PORTABILITY OF ACCOUNT...........................................41
9.01 Transfers to Another Qualified Plan...............................41
9.02 Eligible Rollover Distributions...................................41
9.03 Transfers to this Plan............................................42
ARTICLE X - PLAN ADMINISTRATOR................................................43
10.01 Appointment of Plan Administrator.................................43
10.02 Duties of Plan Administrator......................................43
10.03 Decisions of Plan Administrator and Indemnification...............44
10.04 Instructions to Trustee...........................................44
10.05 Claims Procedure..................................................44
10.06 Delegating Responsibility.........................................44
ARTICLE XI - MISCELLANEOUS....................................................46
11.01 Right to Terminate................................................46
11.02 Plan Voluntary on Part of Employer................................46
11.03 Benefits Not Subject to Creditors' Claim..........................46
11.04 Trust Agreement...................................................46
11.05 Assets for Exclusive Benefits to Participants.....................46
11.06 Nonguarantee of Employment........................................47
11.07 Amendment.........................................................47
11.08 Acts by Trustee...................................................47
11.09 Laws of Kentucky..................................................47
11.10 Distribution to Minor or Incompetent Beneficiary..................47
11.11 Construction......................................................47
11.12 Merger or Consolidation...........................................47
11.13 Discretionary Action..............................................48
11.14 Lost Beneficiaries; Escheat.......................................48
11.15 Participating Employers...........................................48
ARTICLE XII - SIGNATURES......................................................50
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ARTICLE I - DEFINITIONS
As used in this Plan, the following terms have the following meanings
unless the context plainly requires a different meaning:
1.01 Accounts.
(a) Elective Account. The separate Account established and
maintained on behalf of the Participant to which shall be credited the Elective
Contributions and the Special Employer Contributions (if any), made by the
Employer on behalf of the Participant, and the share of the net gains or losses
of the Trust attributable to such contributions. The Elective Account shall be
fully vested and nonforfeitable at all times.
(b) Matching Account. The separate Account established and
maintained on behalf of a Participant to which shall be credited the
Participant's share of Employer Matching Contributions and the share of the net
gains or losses of the Trust attributable to such contributions. The Matching
Contribution Account shall be subject to the vesting provisions of Article III.
(c) Profit Sharing Account. The separate Account established
and maintained on behalf of a Participant to which shall be credited the
Participant's share of Employer Profit Sharing Contributions and the share of
the net gains or losses of the Trust attributable to such contributions. The
Profit Sharing Contribution Account shall be subject to the vesting provisions
of Article III.
1.02 Accounting Date. Any date on which the Trustee calculates the
Participant's Account balance. Unless the Trustee performs the calculations more
frequently, effective December 1, 1994, the Accounting Date shall be the last
day of each calendar quarter. Prior to that date, the Accounting Date was the
last day of the Plan Year.
1.03 Affiliated Employer. The Employer and any corporation which is a
member of a controlled group of corporations (as defined in Code section 414(b))
which includes the Employer; any trade or business, whether or not incorporated,
which is under common control (as defined in Code section 414(c)) with the
Employer; any organization, whether or not incorporated which is a member of an
affiliated service group (as defined in Code section 414(m)) which includes the
Employer; and any other entity required to be aggregated with the Employer
pursuant to regulations under 414(o).
1.04 Beneficiary. The person or entity designated by the Participant in
a written notice to the Plan Administrator to receive the Participant's death
benefits; provided, however, if no person or entity is named or the person
designated is not surviving when a benefit becomes payable, or if the person or
entity designated is not the Spouse and such designation does not conform to the
spousal consent requirements of Section 4.05, then the Beneficiary shall be the
person(s) in the first
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of the following classes surviving at the death of the Participant: (i) widow or
widower, or (ii) the Participant's estate.
A Beneficiary designation may be changed by submitting a new notice to
the Plan Administrator. Such a notice is not effective until the Plan
Administrator actually receives it.
1.05 Break in Service. A twelve consecutive month computation period
during which an Employee does not complete more than five hundred (500) Hours of
Service.
Solely for purposes of determining whether a Break in Service has
occurred in a computation period, an Employee who is absent from work for
maternity or paternity reasons receives credit for the Hours of Service which
would otherwise have been credited but for the absence. An absence from work for
maternity or paternity reasons means an absence (1) by reason of the pregnancy
of the Employee, (2) by reason of the birth of a child of the Employee, (3) by
reason of the placement of a child with the Employee in connection with the
adoption of a child by the Employee, or (4) for purposes of caring for the child
for a period beginning immediately following the child's birth or placement. The
Hours of Service credited under this paragraph are credited (1) in the
computation period in which the absence begins if the crediting is necessary to
prevent a Break in Service in that period, or (2) in all other cases, in the
following computation period. In any case in which hours normally credited
cannot be determined, the Employee receives credit for eight (8) Hours of
Service per day of absence, for a maximum of five hundred-one (501) Hours of
Service.
No credit is given pursuant to this Section unless the Employee timely
furnishes the Plan Administrator with information the Plan Administrator may
require to establish (1) that the absence from work is for reasons referred to
in this Section, and (2) the number of days for which there was an absence.
No credit is given pursuant to this Section unless the Employee timely
furnishes the Plan Administrator with information the Plan Administrator may
require to establish (1) that the absence from work is for reasons referred to
in this Section, and (2) the number of days for which there was an absence.
1.06 Code. The Internal Revenue Code of 1986, as amended.
1.07 Compensation. Compensation for any Employee shall mean total
earnings which are subject to withholding for federal income tax purposes, paid
to an Employee by the Employer during the Plan Year to which the Employer
contribution relates. Amounts contributed by the Employer under the Plan and any
nontaxable fringe benefits shall not be considered Compensation.
Compensation in excess of $200,000 is disregarded. Such amount shall be
adjusted for cost-of-living at the same time and in the same manner as permitted
under Code section 415(d). If the aggregate Compensation of the "Family Group"
exceeds $200,000, (as indexed), the Compensation considered under the Plan for
each Family Group member is proportionately reduced so the total
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equals $200,000 (as indexed) (except for purposes of determining the portion of
Compensation up to the integration level, if this Plan provides for permitted
disparity). "Family Group" includes a Participant who owns more than 5% interest
in any entity comprising the Employer or is one of ten Highly Compensated
Employees paid the greatest Compensation during the Plan Year, and the
Participant's Spouse or children under age 19 (who are Participants at the close
of the period used to compute Compensation).
In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provisions of the plan to the contrary, for plan years
beginning on or after January 1, 1994, the annual compensation of each employee
taken into account under the plan shall not exceed the OBRA '93 annual
compensation limit is $150,000, as adjusted by the Commissioner for increases in
the cost of living in accordance with Section 401 (a) 17 (B) of the Internal
Revenue Code. The cost-of-living adjustment in effect for a calendar year
applies to any period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of which is
the number of months in the determination period, and the denominator of which
is 12.
For plan years beginning on or after January 1, 1994, any reference in
this plan to the limitation under Section 401 (a) (17) of the Code shall mean
the OBRA '93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current plan year,
the compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first plan year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
1.08 Employee. Any person employed by the Employer. Employee shall also
include any person employed by Jekel Vinyards, effective May 1, 1994. However,
the term Employee excludes the following:
(a) any employee required to be and included in a unit of
employees covered by a collective bargaining agreement between employee
representatives and the Employer, provided that (i) retirement benefits
were the subject of good faith bargaining between the employee
representatives and the Employer; and (ii) the collective bargaining
agreement does not expressly provide that the employee is eligible for
initial or continued participation in the Plan; or
(b) any person employed as an independent contractor;
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1.09 Employer. Fetzer Vineyards or its successor(s)and any Affiliated
Employer which elects to become a party to the Plan, with the approval of the
Brown-Forman Corporation, by adopting the Plan for the benefit of its eligible
Employees.
1.10 Fiscal Year. May 1 to April 30, the tax and accounting year of the
Employer.
1.11 Highly Compensated Employee. A highly compensated employee is
determined in accordance with Code section 414(q) and includes highly
compensated active employees and former employees. In making such determination,
the "determination year" shall be the Plan Year, and the "look-back year" shall
be the immediately preceding 12-month period.
A Highly Compensated active employee includes any employee who performs
service for the Employer during the determination year and who, during the
look-back year: (i) received Compensation from the Employer in excess of $75,000
(as adjusted pursuant to section 415(d) of the Code); (ii) received Compensation
from the Employer in excess of $50,000 (as adjusted pursuant to section 415(d)
of the Code) and was a member of the top-paid group for such year; or (iii) was
an officer of the Employer and received Compensation during such year that is
greater than 50 percent of the dollar limitation in effect under section
415(b)(1)(A) of the Code. The term highly compensated employee also includes:
(i) employees who are both described in the preceding sentence if the term
"determination Year is substituted for the term "look-back year" and the
employee is one of the 100 employees who received the most compensation from the
employer during the determination year; and (ii) employees who are 5 percent
owners at any time during the look-back year or determination year.
If no officer has satisfied the Compensation requirement of (iii) above
during either a determination year or look-back year, the highest paid officer
for such year shall be treated as a highly compensated employee.
A highly compensated former employee included any employee who
separated from service (or was deemed to have separated) prior to the
determination year, and was a highly compensated active employee for either the
separation year or any determination year ending on or after the employee's 55th
birthday.
If an employee is, during a determination year or look-back year, a
family member of either a 5 percent owner who is an active or former employee or
a highly compensated employee who is one of the 10 most highly compensated
employees who is ranked on the basis of Compensation paid by the Employer during
such year, then the family member and the 5 percent owner or top-ten highly
compensated employee shall be aggregated. In such case, the family member and 5
percent owner or top-ten highly compensated employee shall be treated as a
single employee receiving Compensation and plan contributions or benefits equal
to the sum of such Compensation and contributions or benefits of the family
member and 5 percent owner or top-ten highly compensated employee. For purposes
of this section, family member includes the spouse, lineal ascendants and
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descendants of the employee or former employee and the spouses of such lineal
ascendants and descendants.
1.12 Hour of Service. Each hour: (i) for which an Employee is paid, or
entitled to payment, for the performance of duties for the Employer during the
applicable computation period; (ii) for which an Employee is paid, or entitled
to payment, by the Employer on account of a period of time during which no
duties are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty, or leave of absence authorized in
writing by the Employer; (iii) for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same Hour of
Service is credited no more than once to a single Employee, even though it may
fall within more than one of categories (i), (ii) and (iii) of the preceding
sentence.
Notwithstanding the above provisions, (i) no more than five hundred one
(501) Hours of Service will be credited to an Employee for any single continuous
period during which the Employee performs no duties (whether or not such period
occurs in a single computation period); (ii) Hours of Service are not credited
for hours for which an Employee is directly or indirectly paid, or entitled to
payment, for a period during which no duties are performed if such payment is
made or due under a plan maintained solely to comply with applicable worker's
compensation, or unemployment compensation or disability insurance laws; (iii)
Hours of Service are not credited for a payment which solely reimburses an
Employee for medical or medically related expenses incurred by the Employee; and
(iv) Hours of Service are not credited to an Employee for payments made by this
Plan or any other pension or profit sharing plan maintained by the Employer.
To the extent they may be applicable to any Employee, the provisions of
the Department of Labor regulations section 2530.200b-2 are incorporated into
this Section by reference. Hours of Service are credited for employment with any
Affiliated Employer. If the Employer maintains the plan of a predecessor
employer, Hours of Service with the predecessor will count as service with this
Employer.
If the Employer maintains records which accurately reflect actual Hours
of Service credited to a particular Employee, the Hours of Service to be
credited to the Employee are determined from such records. Alternatively, if the
Employer has not maintained such records, the Employee is credited with ten (10)
Hours of Service for each day for which the Employee is required to be credited
with at least one (1) Hour of Service under this Section; or forty-five (45)
Hours of Service for each week for which the Employee is required to be credited
with at least one (1) Hour of Service under this Section.
An Employee on leave of absence for service on active duty in the Armed
Forces of the United States shall receive upon return to the service of the
Employer, in addition to credit for Hours of Service to which the Employee is
entitled under this Section, such other credit as may be prescribed by Federal
laws relating to military and veterans' reemployment rights.
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1.13 Leased Employee. Any person (other than an employee of the
recipient) who pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the recipient (or for
the recipient and related persons determined in accordance with section
414(n)(6) of the Code) on a substantially full time basis for a period of at
least one year, and such services are of a type historically performed by
employees in the business field of the recipient employer. Contributions or
benefits provided a leased employee by the leasing organization which are
attributable to services performed for the recipient employer shall be treated
as provided by the recipient.
A leased employee shall not be considered an employee of the recipient
if: (i) such employee is covered by a money purchase pension plan providing: (1)
a non-integrated employer contribution rate of at least 10 percent of
compensation, as defined in section 415(c)(3) of the Code, but including amounts
contributed pursuant to a salary reduction agreement which are excludable from
the employee's gross income under section 125, 402(a)(8), 402(h) or 403(b) of
the Code. (2) immediate participation, and (3) full and immediate vesting; and
(ii) leased employees do not constitute more than 20 percent of the recipient's
non-highly compensated workforce.
1.14 Normal Retirement Age. A Participant's 65th birthday.
1.15 Plan Year. January 1 to December 31, the accounting year of the
Plan.
1.16 Spouse (Surviving Spouse). The spouse or surviving spouse of the
Participant on the date of determination, provided that a former spouse is
treated as the Spouse or Surviving Spouse to the extent provided under a
Qualified Domestic Relations Order.
1.17 Total and Permanent Disability. The inability of a Participant to
continue to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which is expected to result
in death or be of long continued or indefinite duration. The permanence and
degree of the impairment shall be supported by medical evidence satisfactory to
the Plan Administrator.
Total and Permanent Disability excludes any disability which:
(a) is contracted, suffered, or incurred while the Participant
is engaged in a criminal enterprise;
(b) results from an intentional self-inflicted injury
(c) occurs while in service in the Armed Forces and which
prevents the Participant from returning to employment with the
Employer, and for which the Participant receives a military pension.
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1.17 Year of Service. A Year of Service is a 12-consecutive month
period (computation period) during which an Employee completes at least 1000
Hours of Service. To determine Years of Service and Breaks in Service the
computation periods shall be the following:
(a) For purposes of determining eligibility to participate, the
computation period shall begin on the date the Employee first
performs an Hour of Service for the Employer (employment
commencement date).
After the initial eligibility computation period, the
computation period shall shift to the Plan Year which includes
the first anniversary of the employment commencement date. An
Employee who completes 1000 Hours of Service in both the
initial computation period and the Plan Year which includes
the first anniversary of the employment commencement date,
shall be credited with two (2) Years of Service for purposes
of eligibility.
(b) For purposes of determining an employee's vested percentage in
the account balance derived from Employer contributions, the
computation period shall be the Plan Year.
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ARTICLE II - PARTICIPATION
2.01 Eligibility. An Employee becomes a Participant as of the first day
of the calendar quarter coinciding with or next following the date the Employee
completes a Year of Service with the Employer and attains age 21.
Participants in the Plan as of the effective date of this amendment and
restatement shall continue to participate in the Plan.
2.02 Reemployment of Participant. A Participant who terminates
employment with the Employer and who is subsequently reemployed by the Employer
resumes participation under the Plan immediately upon reemployment.
2.03 Reemployment of Non-Participant. If an Employee who is not a
Participant has a Break in Service before satisfying the Plan's eligibility
requirements, the Employee receives no credit for pre-break service and must
satisfy current Plan eligibility requirements.
If an Employee terminates employment after meeting the Plan's
requirement for eligibility but before becoming a Participant, and does not
incur a Break in Service, the Employee shall commence participation under the
Plan immediately upon reemployment.
2.04 Transferred Employees. An Employee transferred to the Employer who
becomes a Participant in this Plan is credited with service for eligibility and
vesting purposes for the Participant's Years of Service with the Employer and
nonparticipating Affiliated Employers. Such Employee is credited with service
for contribution purposes only for Years of Service with the Employer. This
section, however, is subject to and limited by the provisions of Sections 1.10
and 11.15.
2.05 Employment Status Change. A Participant who is no longer a member
of an eligible class of Employees but is still employed by the Employer is not
eligible for contributions under the Plan, but for all other purposes is treated
as a Participant during any such periods of employment. The employee's interest
in the Plan continues to vest for each Year of Service completed while an
employee, until the account is forfeited or distributed pursuant to the terms of
the Plan. Additionally, the employee's account balance in the Plan continues to
share in the earnings or losses of the Trust.
Such employee will participate immediately upon returning to the class
of Employees. If the employee incurs a Break in Service, eligibility will be
determined under the Break in Service rules of this Plan.
Should an employee who was not a member of the eligible class of
Employees become an Employee, the employee becomes a Participant immediately if
the employee satisfies the eligibility requirements of the Plan and would
otherwise have become a Participant.
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2.06 Participation Following Normal Retirement Age. A Participant who
continues to be employed beyond Normal Retirement Age continues to be a
Participant under the Plan.
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ARTICLE III - VESTING
3.01 Elective Account Fully Vested. A Participant's Elective Account is
fully vested at all times.
3.02 Vesting of Other Accounts. A Participant's Profit Sharing Account
and Matching Account are fully vested upon the first of the following events to
occur:
(a) The Participant's attaining Normal Retirement Age.
(b) The Participant's attaining Early Retirement Age (age
55) and completion of six (6) years of employment;
(c) The Participant's Total and Permanent Disability;
(d) The Participant's death.
3.03 Credit for Vesting when Eligibility Computation Period Overlaps
Vesting Computation Period. If an Employee's eligibility computation period for
a Plan requiring one Year of Service for eligibility:
(a) overlaps two vesting computation periods, and
(b) the Employee completes 1,000 Hours of Service in the
eligibility computation period, but fails to complete the
1,000 Hours of Service in either of the overlapped vesting
computation periods, and
(c) the Employee becomes a Participant,
then the Year of Service completed for eligibility
purposes is also a Year of Service for vesting purposes at
the time the Employee becomes a Participant.
3.04 Vesting Schedule. The vested portion of a Participant's Profit
Sharing Account and Matching Account prior to the occurrence of an event stated
in Section 3.02 is a percentage of such Account determined on the basis of Years
of Service according to the following schedule:
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Vested Percentage
Years of Service of Account
---------------- -----------------
Less than 2 years 0%
2 years but less than 3 20%
3 years but less than 4 40%
4 years but less than 5 60%
5 years but less than 6 80%
6 years or more 100%
3.05 Effect of Break in Service on Vesting. For purposes of vesting,
service will not be disregarded because of a Break in Service.
3.06 Service Disregarded. In determining Years of Service for purposes
of vesting, service before an Employee attains age 18 shall be disregarded.
3.07 Date of Termination of Employment. The date a Participant
terminates employment other than by attaining Normal Retirement Age, Total and
Permanent Disability or death shall be the actual date of termination; provided,
however, if a Participant fails to resume employment with the Employer within
the terms of an authorized leave of absence, that Participant shall be deemed to
have terminated employment as of the date that Participant's authorized leave of
absence commenced.
3.08 Vesting and Nonforfeitability of Account Upon Plan Termination.
Upon termination, partial termination or complete discontinuance of Employer
contributions under the Plan, the rights of all affected Participants to
benefits accrued to the date of such termination, partial termination, or
discontinuance, to the extent funded as of such date, or the amounts credited to
the Participants' Accounts, are nonforfeitable. The Plan Administrator shall
compute and direct the Trustee to segregate such Accounts and the Accounts of
any other persons having an interest in the Trust.
3.09 Amendment of Vesting Schedule. No amendment to the Plan shall be
effective to the extent that, in the case of an Employee who is a Participant on
the later of the effective date or the adoption date of such amendment, it has
the effect of reducing such Participant's vested accrued benefit as calculated
without regard to the amendment. If the Plan's vesting schedule is amended or
the Plan is amended in any way that directly or indirectly affects the
computation of a Participant's vested percentage, or if the Plan is deemed
amended by an automatic change to or from a Top Heavy vesting schedule, each
Participant with at least 3 Years of Service as of the end of the election
period may elect to have such Participant's vested percentage computed under the
Plan without regard to such amendment or change.
The election period shall commence with the date the amendment is
adopted or deemed to be made and shall end on the latest of:
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(a) 60 days after the amendment is adopted;
(b) 60 days after the amendment becomes effective; or
(c) 60 days after the Participant receives written notice
of the amendment from the Employer or Plan Administrator.
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ARTICLE IV - TIME AND MANNER OF PAYMENT
4.01 Time of Initial Payment of Retirement Benefits.
(a) In the event of termination of employment for any reason,
and upon Participant's filing of the necessary forms, documentation,
and application for benefits, initial payment of Participant's benefits
will begin as soon as administratively feasible;
However, unless the Participant elects in writing a later
commencement date, the payment of benefits shall begin not later than
the sixtieth (60th) day after the close of the Plan Year in which the
latest of the following occurs: (1) the Participant reaches age
sixty-five (65) or Normal Retirement Age, (2) the tenth (10th)
anniversary of commencing participation in the Plan, or (3) termination
of employment with the Employer.
(b) Under no circumstances will distribution of benefits begin
later than April 1 of the calendar year following the year in which the
Participant attains age 70-1/2 (the "required beginning date").
4.02 Consent To Payment Of Benefits. Notwithstanding Section 4.01, if
the value of the Participant's vested benefit derived from Employer and Employee
contributions has ever exceeded $3,500, and the benefit is immediately
distributable, the Participant and the Participant's Spouse (or, where either
has died, the survivor) must consent to the distribution of benefits. The
consent must be obtained in writing within the 90 day period ending on the
Annuity Starting Date (the first day of the first period for which an amount is
payable as an annuity or any other form).
Spousal consent shall not be required if distribution is in the form of
a Qualified Joint and Survivor Annuity. Further, no consent shall be required if
a distribution is required to satisfy Code section 401(a)(9) or 415. In
addition, upon termination of the Plan if the Plan does not offer the option of
a commercial annuity, the Participant's account balance may, without the
Participant's consent, be distributed to the Participant or transferred to
another defined contribution plan (other than an employee stock ownership plan
under Code section 4975(e)(7)) within the same controlled group.
An account balance is immediately distributable if any part of it could
be distributed to the Participant (or Surviving Spouse) before the Participant
attains (or would have attained) the later of Normal Retirement Age or age 62.
Absent the required consent to receive benefits in excess of $3,500,
distribution of benefits shall begin no sooner than the later of age 62 or
Normal Retirement Age.
If the value of the Participant's vested benefit derived from Employer
and Employee contributions has never exceeded $3,500, the Plan Administrator
shall distribute the value of the entire vested portion of such account balance
as soon as administratively feasible in a single lump
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sum without the need for consent of the Participant or Spouse. For purposes of
this Section, if the value of a Participant's vested account balance is zero,
the Participant shall be deemed to have received a distribution of such vested
account balance.
4.03 Early Retirement Distribution. A terminated Participant shall be
entitled to an early retirement distribution upon attaining age 55 and
completion of at least six (6) years of employment with the Employer. The early
retirement distribution shall be payable in accordance with the terms of this
Article IV and shall be equal to the Participant's vested Account balance valued
as of the Accounting Date coincident with or immediately preceding the date of
distribution. If the Participant has no vested Account balance, there will be no
early retirement distribution.
4.04 Manner of Payment of Retirement Benefits. Distribution of a
Participant's benefits will be made to the Participant or Beneficiary by one of
the following methods:
(a) Automatic Form of Payment of Retirement Benefits. Unless
the Participant elects otherwise as provided below, distribution of a
Participant's benefits will be made to the Participant by one of the
following methods, as applicable:
(i) Joint and Survivor Annuity. A Participant who is
married on the Annuity Starting Date shall receive the value
of the benefits in the form of a Joint and Survivor Annuity.
The Joint and Survivor Annuity shall be the actuarial
equivalent of a single life annuity. Such Joint and Survivor
benefits following the Participant's death shall continue to
the Spouse during the Spouse's lifetime at a rate equal to
fifty percent (50%) of the rate at which such benefits were
payable to the Participant. However, the Participant may elect
to receive a smaller annuity benefit with continuation of
payments to the Spouse at sixty-six and two-thirds percent (66
2/3%) or one hundred percent (100%) of the rate which such
benefits were payable to the Participant, which alternative
joint and survivor annuity shall equal in value the automatic
Joint and Survivor Annuity.
A Joint and Survivor Annuity will not be provided unless
the Participant and Spouse have been married the entire 1-year
period ending on the earlier of (1) the Annuity Starting Date,
or (2) the Participant's death. However, if a Participant
marries within 1 year before the Annuity Starting Date and
such marriage continues for at least a 1 year period ending on
or before the Participant's death, then the Participant and
such Spouse must be treated as having been married for 1 year
prior to the Annuity Starting Date.
(ii) Single Life Annuity. A Participant who is not
married on the Annuity Starting Date shall receive benefits in
the form of a Single Life Annuity.
(b) Optional Form of Payment of Retirement Benefits. If a
Participant duly elects pursuant to Section 4.05 to waive the Joint and
Survivor Annuity or Single Life Annuity, as
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applicable, distribution of a Participant's benefits will be made to
the Participant or Beneficiary by one of the following methods, as
elected by the Participant:
(i) By lump-sum payment in cash;
(ii) Payments may be made over a period not extending
beyond the life expectancy of the Participant or the joint
life expectancies of the Participant and the Participant's
Beneficiary;
(iii) Purchase of or providing an annuity in the form
of a straight life annuity; a single life annuity with periods
certain of five, ten or fifteen years; a single life annuity
with installment refund; or a fixed period annuity over a
period not extending beyond either the life or life expectancy
of the Participant or the Participant and designated
Beneficiary.
4.05 Election to Waive Joint and Survivor Annuity and Single Life
Annuity.
(a) Election and Spousal Consent. An election to waive the
Joint and Survivor Annuity must be made by the Participant in writing
during the Election Period and be consented to by the Participant's
Spouse. Such election shall designate a Beneficiary or a form of
benefits that may not be changed without spousal consent (unless the
original consent acknowledged the Spouse's right to limit consent to a
specific Beneficiary or form of benefits and the Spouse voluntarily
chose to relinquish one or both of such rights). Such Spouse's consent
shall be irrevocable and must acknowledge the effect of such election
and be witnessed by a Plan representative or a notary public. Such
consent shall not be required if it is established to the satisfaction
of the Plan Administrator that the required consent cannot be obtained
because there is no Spouse, or the Spouse cannot be located, or other
circumstances that may be prescribed by Regulations. The election made
by the Participant and consented to by the Spouse may be revoked by the
Participant in writing without the consent of the Spouse at any time
during the Election Period. The number of revocations shall not be
limited. Any new election must comply with the requirements of this
Section. A former Spouse's waiver shall not be binding on a new Spouse.
(b) Election Period. For purposes of this Section, the
Election Period to waive the Joint and Survivor Annuity shall be the
ninety (90) day period ending on the Annuity Starting Date.
(c) Notice Period. With regard to the election, the Plan
Administrator shall provide the Participant a written explanation no
less than 30 and no more than 90 days before the Annuity Starting Date
containing:
(i) the terms and conditions of the Joint and
Survivor Annuity, and
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(ii) the Participant's right to make and the effect
of an election to waive the Joint and Survivor Annuity, and
(iii) the rights of the Participant's Spouse, and
(iv) the right of the Participant to revoke such
election and the effect of such revocation.
(v) the relative values of the various optional
forms of benefits under the Plan.
(d) Election to Waive Single Life Annuity. An unmarried
Participant may elect to waive the Single Life Annuity form of payment
by complying with the provisions of this Section as if electing to
waive the Joint and Survivor Annuity, but without the spousal consent
requirements.
4.06 Payment Upon Death of Participant. If a Participant dies before
having received the entire vested balance of that Participant's benefits, such
remaining vested balance, plus the proceeds of any insurance on the life of the
Participant held in the Participant's Accounts shall be paid to or for the
benefit of the Participant's Beneficiary by any of the following methods, as
elected by the Participant or the Beneficiary:
(a) Continuation of Payments Already Commenced. If
distributions have commenced before the Participant's death, payments
may be continued to the Participant's Beneficiary at least as rapidly
as under the method selected by the Participant as of the date of
death.
(b) Single Payment. If the Participant dies before
distributions have commenced payment may be in a single lump sum in
cash on or before the last day of the calendar year in which the fifth
anniversary of death occurs.
(c) Installment Payments. If the Participant dies before
distributions have commenced payments may be made in annual or more
frequent installments not extending beyond the last day of the calendar
year in which the fifth anniversary of death occurs.
(i) The 5-year distribution requirement of this
subsection (c) shall not apply to any portion of the deceased
Participant's interest which is payable to or for the benefit
of a designated Beneficiary. In such event, at the election of
the Beneficiary such portion may be distributed over a period
not extending beyond the life or life expectancy of such
designated Beneficiary, provided such distribution begins not
later than the last day of the calendar year following the
year of the Participant's death.
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(ii) Except, however, if the Participant's Spouse is
the designated Beneficiary, the requirement that distributions
commence within one year of the Participant's death shall not
apply. In lieu thereof, at the Spouse's election,
distributions may commence no later than the last day of the
calendar year in which the deceased Participant would have
attained age seventy and one-half (70-1/2). If the Surviving
Spouse dies before the distributions to such Spouse begin,
then the 5-year distribution requirement of this subsection
(c) shall apply as if the Spouse were the Participant.
(iii) For purposes of this Subsection (c), a
Beneficiary's election to be excepted from the 5-year
distribution requirement must be made by the last day of the
calendar year following the year of death. Except, however, if
the Beneficiary is the Spouse, the election must be made by
the earlier of (i) the last day of the calendar year following
the year of death, or, if later the year in which the
Participant would have attained 70-1/2, or (ii) the last day
of the calendar year which contains the fifth anniversary of
the Participant's death. Absent a written election by a
Beneficiary or the Participant, the 5-year distribution
requirement shall apply.
4.07 Payment Upon Death of a Participant.
(a) Pre-Retirement Survivor Annuity. Other than an annuity
payable pursuant to Section 4.04, if a Participant dies before having
received the entire vested balance of that Participant's benefits and
has a Surviving Spouse, such remaining vested balance, plus the
proceeds of any insurance on the life of the Participant held in the
Participant's Accounts, shall be paid to or for the benefit of the
Participant's Spouse in the form of a Pre-Retirement Survivor Annuity,
unless the Participant has elected to waive the annuity pursuant to
Section 4.08. Payment of such annuity shall commence within a
reasonable time after the Participant's death unless the Spouse elects
a later commencement date. However, payment must commence on or before
the later of (i) the last day of the calendar year following the year
of the Participant's death, or (ii) the last day of the year in which
the Participant would have attained age 70-1/2.
(b) Optional Forms. If a Participant's death benefit is not
paid in the form of a Pre-Retirement Survivor Annuity, distribution of
the Participant's death benefits shall be paid by one of the following
methods as elected by the Participant or Beneficiary:
(i) Continuation of Payments Already Commenced. If
distributions have commenced before the Participant's death,
payments may be continued to the Participant's Beneficiary at
least as rapidly as under the method selected by the
Participant as of the date of death.
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(ii) Single Payment. If the Participant dies before
distributions have commenced payment may be in a single lump
sum in cash on or before the last day of the calendar year in
which the fifth anniversary of death occurs.
(iii) Installment Payments. If the Participant dies
before distributions have commenced payments may be in annual
or more frequent installments not extending beyond the last
day of the calendar year in which the fifth anniversary of
death occurs.
(A) The 5-year distribution requirement of
this subsection shall not apply to any portion of the
deceased Participant's interest which is payable to
or for the benefit of a designated Beneficiary. In
such event, at the election of the Beneficiary, such
portion may be distributed over a period not
extending beyond the life or life expectancy of such
designated Beneficiary, provided such distribution
begins not later than the last day of the calendar
year following the year of the Participant's death.
(B) Except, however, if the Participant's
Spouse is the designated Beneficiary, the requirement
that distributions commence within one year of the
Participant's death shall not apply. In lieu thereof,
at the Spouse's election, distributions may commence
no later than the last day of the calendar year in
which the Participant would have attained age seventy
and one-half (70-1/2). If the Surviving Spouse dies
before the distributions to such Spouse begin, then
the 5-year distribution requirement of this
subsection shall apply as if the Spouse were the
Participant.
(C) For purposes of this subsection, a
Beneficiary's election to be excepted from the 5-year
distribution requirement must be made by the last day
of the calendar year following the year of death.
Except, however, if the Beneficiary is the Spouse,
the election must be made by the earlier of (i) the
last day of the calendar year following the year of
the Participant's death or, if later, the year in
which the Participant would have attained age 70-1/2,
or (ii) the last day of the calendar year which
contains the fifth anniversary of the Participant's
death. Absent a written election by a Beneficiary or
the Participant, the 5-year distribution requirement
shall apply.
4.08 Election to Waive Pre-Retirement Survivor Annuity. Any election to
waive the Pre-Retirement Survivor Annuity before the Participant's death must
be made by the Participant in writing during the Election Period and shall
require the Spouse's irrevocable consent in the same manner provided for in
Section 4.05. Further, the Spouse's consent must acknowledge the specific
nonspouse Beneficiary or the alternative form of death benefit to be paid in
lieu of the Pre-Retirement Survivor Annuity (unless the consent of the Spouse
acknowledges that the Spouse has
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the right to limit consent only to a specific Beneficiary or a specific form of
benefit and that the Spouse voluntarily elects to relinquish one or both of such
rights.)
(a) The Election Period to waive the Pre-Retirement Survivor
Annuity shall begin on the first day of the Plan Year in which the
Participant attains age thirty-five (35) and end on the date of the
Participant's death. In the event a vested Participant separates from
service prior to the beginning of the Election Period, the Election
Period shall begin on the date of such separation from service.
Pre-age 35 waiver: A Participant who will not yet attain age 35 as of
the end of any current Plan Year may make a special qualified election
to waive the Pre-Retirement Survivor Annuity for the period beginning
on the date of such election and ending on the first day of the Plan
Year in which the Participant will attain age 35. Such election shall
not be valid unless the Participant receives a written explanation of
the Pre-Retirement Survivor Annuity in such terms as are described
below. Pre-Retirement Survivor Annuity coverage will be automatically
reinstated as of the first day of the Plan Year in which the
participant attains age 35. Any new waiver on or after such date shall
be subject to the full requirements of this Section.
(b) With regard to the election, the Plan Administrator shall
provide each Participant within the "applicable period", with respect
to such Participant (and consistent with regulations), a written
explanation of the Pre-Retirement Survivor Annuity containing
comparable information to that required pursuant to Section 4.05. The
term "applicable period" means, with respect to a Participant,
whichever of the following periods ends last:
(i) The period beginning with the first day of the
Plan Year in which the Participant attains age thirty-two (32)
and ending with the close of the Plan Year preceding the Plan
Year in which the Participant attains age thirty-five (35);
(ii) A reasonable period ending after the individual
becomes a Participant. For this purpose, in the case of an
individual who becomes a Participant after age thirty-two
(32), the explanation must be provided by the end of the
three-year period beginning with the first day of the first
Plan Year for which the individual is a Participant;
(iii) A reasonable period ending after the Plan no
longer fully subsidizes the Pre-Retirement Survivor Annuity
with respect to the Participant;
(iv) A reasonable period ending after Code section
401(a)(11) applies to the Participant; or
(v) A reasonable period after separation from
service in the case of a Participant who separates before
attaining age thirty-five (35). For this purpose, the
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Plan Administrator must provide the explanation at the time
of separation or within one year after separation.
4.09 Minimum Amounts to be Distributed. Notwithstanding any provisions
to the contrary, all distributions required under this Article IV shall comply
with Code section 401(a)(9) and the proposed regulations thereunder, including
the minimum distribution incidental benefit requirement of Regulation
1.401(a)(9)-2.
4.10 Calculation of Distributions.
(a) Minimum Amounts to be Distributed. Notwithstanding any
provisions to the contrary, all distributions required under this
Article IV shall comply with Code section 401(a)(9) and the proposed
regulations thereunder, including the minimum distribution incidental
benefit requirement of regulation 1.401(a)(9)-2.
(b) Determination Of Amount To Be Distributed Each Year. If
the Participant's interest is to be distributed in other than a single
sum, the following minimum distribution rules shall apply on or after
the required beginning date:
(i) If a Participant's benefit is to be distributed
over (1) a period not extending beyond the life expectancy of
the Participant or the joint life and last survivor expectancy
of the Participant and the Participant's designated
Beneficiary or (2) a period not extending beyond the life
expectancy of the designated Beneficiary, the amount required
to be distributed for each calendar year, beginning with
distributions for the first distribution calendar year, must
at least equal the quotient obtained by dividing the
Participant's benefit by the applicable life expectancy.
(ii) For calendar years beginning before January 1,
1989, if the Participant's Spouse is not the designated
Beneficiary, the method of distribution selected must assure
that at least 50% of the present value of the amount available
for distribution is paid within the life expectancy of the
Participant.
(iii) For calendar years beginning after December 31,
1988, the amount to be distributed each year shall not be less
than the quotient obtained by dividing the Participant's
benefit by the lesser of (1) the applicable life expectancy or
(2) if the Participant's Spouse is not the designated
Beneficiary, the applicable divisor determined from the table
set forth in Q&A-4 of section 1.401(a)(9)-2 of the proposed
regulations. Distributions after the death of the Participant
shall be distributed using the applicable life expectancy in
subsection (i) above as the relevant divisor without regard to
proposed regulations section 1.401(a)(9)-2.
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(iv) The minimum distribution required for the
Participant's first distribution calendar year must be made on
or before the Participant's required beginning date. The
minimum distribution for other calendar years, including the
minimum distribution for the distribution calendar year in
which the employee's required beginning date occurs, must be
made on or before December 31 of that distribution calendar
year.
(v) If the participant's benefit is distributed in
the form of an annuity purchased from an insurance company,
distributions thereunder shall be made in accordance with the
requirements of section 401(a)(9) of the Code and the proposed
regulations thereunder.
(c) Calculation of Life Expectancy. A determination of life
expectancy and joint and last survivor life expectancy will be made by
use of the expected return multiples in Section 1.72-9 of the
regulations under the Code. Unless otherwise elected by the Participant
or Spouse by the time distributions are required to begin, life
expectancies will be recalculated annually. Such election shall be
irrevocable. The life expectancy of a non-Spouse Beneficiary may not be
recalculated.
4.11 Forfeiture of Non-vested Benefits.
(a) Forfeiture Upon Five Year Break in Service. Upon
termination of a Participant whose benefits are at least partially
vested, the non-vested portion of such benefits shall be transferred to
an account holding potential forfeitures. This account shall continue
to be adjusted by earnings and losses of the Trust; provided, however,
in the case of any Participant who has incurred five (5) or more
consecutive Breaks in Service (Five Year Break in Service) prior to the
resumption of employment with the Employer, the non-vested portion of
such terminated Participant's benefits, and all regular periodic
adjustments thereto, shall be deemed forfeited and shall be added to
the Employer's contribution for the Plan Year within which the Five
Year Break in Service occurs. Upon such forfeiture, such terminated
Participant's Account shall be closed and if the vested Account balance
has not been paid to the Participant, the vested portion of such
Account shall be transferred to a separate Fully Vested Account for
such terminated Participant's benefit; provided, however, at such time
as the terminated Participant resumes employment with the Employer, an
additional separate Account shall be established for the Participant's
benefit as if the Participant were a new Participant, which Account
shall be maintained separate and distinct from the Participant's Fully
Vested Account, until such Account becomes fully vested at which time
the Accounts may be merged.
(b) Forfeiture Prior to Five Year Break in Service. Upon
termination of employment of a non-vested Participant, or upon
distribution of the vested portion of a terminated Participant's
benefits before the Accounting Date of the second Plan Year following
termination of employment, the non-vested portion of such terminated
Participant's
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benefits shall be deemed forfeited and shall be allocated as of the
Accounting Date of the Plan Year of termination of a non-vested
Participant, or the Plan Year in which distribution to a vested
Participant is made, in accordance with subsection (a) as though a
Five Year Break in Service had occurred. If less than the entire
vested portion of the account balance derived from Employer
contributions is distributed, the part of the nonvested portion that
will be treated as a forfeiture is the total nonvested portion
multiplied by a fraction, the numerator of which is the amount of the
distribution attributable to Employer contributions and the
denominator of which is the total value of the vested Employer derived
account balance.
(c) Restoration of Accounts.
(i) Partially Vested Participant. If a terminated
Participant, who has received a distribution of the entire
vested portion of such Participant's benefits is reemployed by
the Employer prior to a Five Year Break in Service, and repays
to the Plan (in cash and/or kind, as initially distributed) an
amount equal to the full amount of such distribution
(repayment), then that portion of such terminated
Participant's benefits which was forfeited at the time of
distribution shall be reinstated by the Employer (in cash
and/or kind as initially forfeited) and added to such
repayment to constitute the opening balance of such
Participant's Account upon the Participant's reemployment;
provided, however, reinstatement of such Participant's
forfeiture shall occur only where repayment by the Participant
is completed by the earlier of: (1) the last day of the Plan
Year within which the Participant has five consecutive Breaks
in Service or (2) five years after the Participant is
reemployed by the Employer. If a terminated Participant incurs
five consecutive Breaks in Service, repayment will not be
permitted.
(ii) Non-Vested Participant. If a terminated
Participant who had no vested interest in his benefits is
reemployed by the Employer before the Participant's
consecutive Breaks in Service equal or exceed the greater of
(1) five, or (2) the aggregate number of pre-break Years of
Service, that terminated Participant's benefits, if previously
forfeited shall be reinstated (in cash or in kind as initially
forfeited) to constitute the opening balance of such
Participant's Account.
(d) Source of Restoration. Restoration pursuant to subsection
(c) of this Section shall be made from the following sources in the
order described:
(1) From the forfeiture of such terminated
Participant's Account which has not yet been applied pursuant
to subsection (a) above (the account of potential
forfeitures); or if insufficient,
(2) From forfeitures applicable as of the Accounting
Date of the Plan Year within which repayment is completed; or
if insufficient,
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(3) From the Employer contributions for the Plan Year
within which such repayment is completed; and if necessary,
for the Plan Year next following.
(e) Make-Up Contribution and Time of Restoration. Notwithstanding any
contrary provision of the Plan, an Employer contribution may be made in order to
provide a source of restoration pursuant to subsection (d), even though the
Employer may have no net profits for the Plan Year in question. Restoration of a
forfeiture pursuant to this subsection (e) shall in all events be completed by
the Accounting Date of the Plan Year next following the Plan Year within which
the repayment is completed.
4.12 Fully Vested Account. The Fully Vested Account is the account
established for the benefit of a Participant to hold the vested portion of a
Participant's benefits upon forfeiture of the non-vested portion of the
Participant's benefits. Where a Fully Vested Account is not distributed
coincident with the application of the Participant's forfeiture, it shall
continue to be adjusted by earnings and losses of the Trust; provided, however,
it shall no longer be increased by contributions or forfeitures. A Fully Vested
Account shall be subject to the time and manner of payment provisions of Article
IV of the Plan.
4.13 Suspension of Benefits. Payment of benefits attributable to
Employer contributions may be suspended for any period during which a terminated
Participant is reemployed by the Employer.
4.14 Pre-1984 Election. The preceding Sections of this Article IV
notwithstanding, if the Participant has, before January 1, 1984, made an
election to receive benefits in a form acceptable under Code section 401(a) as
in effect prior to the enactment of the Tax Equity and Fiscal Responsibility Act
of 1982, and if the Participant filed such election in a timely manner with the
Plan Administrator, said election shall be effective unless and until revoked by
the Participant. If an election is revoked any subsequent distributions must
meet the requirements of this Article IV.
4.15 Pre-Retirement Distribution. A Participant who has been a
Participant for at least two years and who attains age 59 1/2 may elect to
receive a distribution of the entire amount credited to such Participant's
Accounts, or a portion thereof. However, no distribution shall occur prior to
100% vesting. A Participant who receives such a distribution shall continue to
participate in the Plan. Any such distribution shall be made in a manner
consistent with Article IV including all notice and consent requirements.
Notwithstanding the above, no pre-retirement distribution shall be
permitted from a Participant's Elective Account prior to the Participant's
attaining age 59 1/2, except as otherwise permitted under the Plan.
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4.16 Hardship Distribution.
(a) The Plan Administrator, at the election of the
Participant, shall permit a distribution from the Participant's
Account(s) (except for Special Employer Contributions and earnings
credited to the Participant's Elective Account after December 31, 1988)
of an amount necessary to satisfy the Participant's immediate and heavy
financial need where the Participant lacks other available resources on
account of:
(i) accident or illness involving the Participant or
a member of the Participant's immediate family or household
or other dependent,
(ii) tuition and related educational fees for the
next twelve (12) months for post-secondary education of a
member of the Participant's immediate family or other
dependent,
(iii) the cost of buying the principal residence of
the Participant, not including making mortgage payments,
(iv) the cost of preventing an eviction or mortgage
foreclosure on the Participant's principal residence, or
(v) another circumstance which the Plan
Administrator determines constitutes an immediate and heavy
financial need.
No hardship distribution shall exceed the vested portion of a
Participant's Account determined as of the most recent Accounting Date. Such a
distribution is deemed made as of the first day of the Plan Year, or if later,
the most recent Accounting Date, and the Participant's Account(s) shall be
reduced accordingly. Any distribution shall be made in a manner consistent with
Article IV, including all notice and consent requirements.
(b) Rules for Hardship Distributions. Distributions shall be
carried out under the following rules:
(i) The Participant shall apply for the distribution
under procedures fixed by the Plan Administrator.
(ii) The application shall include a signed statement
of the facts causing financial hardship and any other facts
required by the Plan Administrator.
(iii) The distribution shall not exceed the amount of
the financial need.
(iv) The Participant shall obtain all distributions
and nontaxable loans available under all plans of the
Employer.
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(v) The Participant's Elective Contributions and
Voluntary Contributions under all plans of the Employer shall
be suspended for twelve (12) months after receipt of the
hardship distribution.
(vi) The Participant's Elective Contributions under
all plans of the Employer for the year immediately following
the year of the hardship distribution shall not exceed $7,979
(adjusted pursuant to the method provided in Code section
415(d)) less the amount of the Participant's Elective
Contributions for the year of the hardship distribution.
4.17 Limitation for Qualified Domestic Relations Order. All rights and
benefits, including elections, provided to a Participant in this Plan shall be
subject to the rights afforded to any Alternate Payee under a Qualified Domestic
Relations Order as those terms are defined in Code section 414(p). Upon receipt
of a Qualified Domestic Relations Order which orders plan benefits for a
Participant's Spouse, the Trustee may immediately pay such benefits in
accordance with the Qualified Domestic Relations Order regardless of the fact
that the Participant may not have reached "the earliest retirement age" as
defined in Code section 414(p). Attorneys fees and expenses directly related to
the determination of qualification of a domestic relations order and the
preparation and administration of such Qualified Domestic Relations Order may be
charged against and paid from the Accounts of the Participant named in the
order.
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ARTICLE V - CONTRIBUTIONS BY THE EMPLOYER
5.01 Profit Sharing Contribution by Employer. Each Plan Year the
Employer shall contribute to the Trust such amount in cash in or in kind as may
be determined by the Employer (Profit Sharing Contribution). The contributions
made pursuant to this Section shall be credited to the Profit Sharing Account of
eligible Participants in accordance with Section 7.01.
5.02 Elective Contribution by Employer. Each Plan Year the Employer
shall contribute to the Trust the amount of the total salary reduction Election
Requests of all Participants made pursuant to Article VI (Elective
Contribution). The contributions made pursuant to this Section shall be credited
to each Participant's Elective Account in accordance with Section 7.02.
5.03 Matching Contribution by Employer. Each Plan Year the Employer
shall contribute to the Trust a Matching Contribution on behalf of each
Participant receiving an Elective Contribution for the Plan Year. The amount of
the Matching Contribution shall be equal to 50% of the Participant's Elective
Contribution. Except, however, in applying the matching percentage only
Participant Elective Contributions up to 5% of Compensation shall be considered.
The Matching Contribution shall be credited to the Matching Account of eligible
Participant's in accordance with Section 7.03.
5.04 Deduction of Employer Contributions. Notwithstanding the foregoing
Sections of Article V, to the extent that any deduction for an Employer
contribution is disallowed, such contribution (to the extent disallowed) may at
the option of the Employer be returned to the Employer provided the return is
accomplished within one (1) year after the disallowance of the deduction.
5.05 Limits on Elective and Matching Contributions. For each Plan Year,
the Plan shall satisfy the nondiscrimination tests of Code sections 401(a)(4),
401(k)(3) and 401(m) in accordance with Regulation 1.401(k)-1 and proposed
Regulation 1.401(m)-1 and -2. The Code and Regulation sections are incorporated
by this reference.
Neither the Actual Deferral Percentage ("ADP") nor the Actual
Contribution Percentage ("ACP") of the Highly Compensated Employees may exceed
the greater of the following:
(a) 1.25 times the ADP or ACP of all other eligible Employees,
or
(b) 2 percentage points higher than the ADP or ACP of all
other eligible Employees, up to 2 times such ADP or ACP.
For Plan Years beginning after December 31, 1988, to prevent the
multiple use of the tests in this subsection (b), if a Highly Compensated
Participant is eligible to make elective deferrals pursuant to any cash or
deferred arrangement maintained by the Employer or an Affiliated Employer,
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or to make Employee contributions or receive matching contributions under this
or any other plan maintained by the Employer or an Affiliated Employer, such
Participant's Actual Contribution Percentage shall be reduced pursuant to
Treasury regulation 1.401(m)-2. The provisions of regulations 1.401(m)-1(b) and
1.401(m)-2 are incorporated by reference.
The Actual Deferral Percentage for each Participant is calculated by
dividing the Participant's Elective Contributions for a Plan Year by the
Participant's Compensation for such Plan Year. The ADP for each group ((i)
Highly Compensated Employees and (ii) non-Highly Compensated Employees) is the
average of the ADPs of each eligible Participant in the group, calculated to the
nearest one-hundredth of one percent. Elective Contributions allocated to
non-Highly Compensated Participants shall not include Excess Deferrals
(determined pursuant to Section 6.01.)
The Actual Contribution Percentage for each Participant is calculated
by dividing the Participant's Matching Contributions and Voluntary Contributions
(including Excess Contributions recharacterized as Voluntary Contributions) for
the Plan Year by the Participant's Compensation for such Plan Year. The ACP for
each group ((i) Highly Compensated Employees and (ii) non-Highly Compensated
Employees) is the average of the ACPs of each eligible Participant in the group
calculated to the nearest one-hundredth of one percent.
For purposes of this Section, Compensation shall include salary
reduction contributions made under this Plan or to a cafeteria plan.
For purposes of determining the ADP and ACP of a Participant who is a
5-percent owner or one of the ten most highly-paid Highly Compensated Employees,
the Elective Contributions, Matching Contributions, Voluntary Contributions and
Compensation of such Participant shall include the Elective Contributions,
Matching Contribution, Voluntary Contribution and Compensation of "family
members" (as defined in Code section 414(q)(6)), and the family group shall be
treated as one Highly Compensated Participant. Family members shall be
disregarded for purposes of determining the ADP and ACP of the group of
non-Highly Compensated Participants.
If a Highly Compensated Participant is a Participant under 2 or more
plans of the Employer or an Affiliated Employer (other than an employee stock
ownership plan as defined in Code section 4975(e)(7)) to which Elective
Contributions, Matching Contributions or Voluntary Contributions are made, such
contributions on behalf of such Highly Compensated Participant shall be
aggregated in determining the ADP and ACP of such Participant. For Plan Years
beginning after December 31, 1988, if the plans have different plan years, all
plans ending within the same calendar year shall be treated as a single plan.
If this Plan satisfies the requirements of Code sections 401(k),
401(m), 401(a)(4), or 410(b) only if aggregated with one or more other plans, or
if one or more other plans satisfy such requirements only if aggregated with
this Plan, then the ADP and ACP of employees shall be determined as if all such
plans were a single plan. For Plan Years beginning after December 31,
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1989, plans may be aggregated to satisfy Code section 401(k) and 401(m) only if
they have the same Plan Year.
5.06 Special Employer Contributions. Within 12 months after the end of
the Plan Year the Employer may contribute to the Trust a discretionary Special
Employer Contribution which shall be allocated to the Elective Accounts of
non-Highly Compensated Participants to the extent necessary to meet the
nondiscrimination tests specified in Section 5.05.
Special Employer Contributions shall be allocated to eligible
non-Highly Compensated Participants in the proportion that the Compensation for
such Participant bears to the Compensation for all such Participants.
Such Special Employer Contributions, if any, shall not be considered
Elective Contributions for purposes of matching pursuant to Section 5.03. If
Special Contributions are made for purposes of satisfying the ACP test, a
separate accounting shall be maintained within the Participant's Elective
Account for purposes of excluding such contributions from the ADP test.
5.07 Correction of Excess Elective Contributions. If the amount of
Elective Contributions allocated to the group of Highly Compensated Participants
exceeds the nondiscrimination tests specified in Section 5.05, the Plan
Administrator shall distribute to the Highly Compensated Participant having the
highest ADP such Participant's excess amounts ("Excess Contributions") and
income allocable thereto (determined under applicable regulations) until the
nondiscrimination tests are satisfied, or until such Participant's ADP equals
the ADP of the Highly Compensated Participant having the second highest ADP.
This process shall continue until the nondiscrimination tests are satisfied. The
amount of Excess Contributions for a Highly Compensated Participant is then
equal to the total of elective and other contributions taken into account for
the ADP test, minus the product of the employee's ADP (as determined after
application of this Section) and the employee's compensation used in determining
that ratio. The amount of Excess Contributions to be distributed or
recharacterized shall be reduced by any previous distribution of Excess
Deferrals (pursuant to Section 6.01) for the employee's taxable year ending in
the same Plan Year.
The income allocable to Excess Contributions includes income for the
Plan Year for which the Excess Contributions were made.
Distribution shall be made first from unmatched Elective Contributions,
and then simultaneously from matched Elective Contributions and Matching
Contributions which relate to such Elective Contributions. However, any such
Matching Contributions which are not vested shall be forfeited in lieu of
distribution.
Correction of Excess Contributions of a Highly Compensated Participant
whose ADP is determined under the family aggregation rules shall be made in
accordance with Regulation 1.401(k)-1(f)(5)(ii).
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5.08 Correction of Excess Employer Matching Contributions . If the
amount of Matching Contributions allocated to the group of Highly Compensated
Participants exceeds the nondiscrimination tests specified in Section 5.05, the
Plan Administrator shall distribute to the Highly Compensated Participant having
the highest ACP such Participant's excess amounts ("Excess Aggregate
Contributions") and income allocable thereto (determined under applicable
regulations) until the nondiscrimination tests are satisfied, or until such
Participant's ACP equals the ACP of the Highly Compensated Participant having
the second highest ACP. This process shall continue until the nondiscrimination
tests are satisfied. The amount of Excess Aggregate Contributions for a Highly
Compensated Employee is then equal to the total of voluntary, matching and other
contributions taken into account for the ACP test, minus the product of the
Employee's ACP (as determined after application of this Section) and the
Employee's Compensation used in determining that ratio.
Excess Aggregate Contributions shall be forfeited or distributed within
two and one-half months after the Plan Year end. Forfeiture/distribution may be
postponed but not later than the close of the Plan Year following the Plan Year
in which the excess amount was allocable; however, if the Excess Aggregate
Contributions are not corrected within two and one-half months after the Plan
Year end, a 10% excise tax will be imposed on the Employer on such amounts. The
Employer shall designate the forfeiture/distribution as Excess Aggregate
Contributions. The order of forfeiture/distribution shall be as follows:
(a) Matching Contributions distributed and/or forfeited
pursuant to Section 5.07;
(b) remaining Matching Contributions.
The income allocable to Excess Aggregate Contributions includes income
for the Plan Year for which the Excess Aggregate Contributions were made.
The determination of Excess Aggregate Contributions for any Plan Year
shall be made after first determining the amount of any Excess Contributions to
be recharacterized as Voluntary Contributions for the Plan Year of the Plan
subject to Code section 401(k) ending with or within the Plan Year of this Plan.
Correction of Excess Aggregate Contributions of a Highly Compensated Participant
whose ACP is determined under the family aggregation rules shall be made in
accordance with Regulation 1.401(m)-1(e)(2)(iii).
5.09 Mistaken Contribution. In the case of a contribution which is made
by the Employer by a mistake of fact, such contribution may be returned to the
Employer within one (1) year after the payment of the contribution.
5.10 Plan and Trust Conditioned on Approval and Qualification. The
Employer has established the Plan and Trust conditioned on their being qualified
by the Internal Revenue Service pursuant to Code sections 401 and 501 and other
applicable sections. If the Internal Revenue Service
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rules that such Plan is not qualified, the Employer reserves the right to
recover contributions which were made prior to a final ruling from the Internal
Revenue Service with respect to the initial determination as to qualification of
the Plan and Trust. Any contribution of the Employer shall be returned to the
Employer within one (1) year after the date of the final ruling with respect to
the denial of initial qualification of the Plan and Trust.
5.11 Funding Policy. The Employer shall establish a funding policy for
the Plan and a method to carry out Plan objectives which shall satisfy the
requirements of Title I of the Employee Retirement Income Security Act of 1974.
All actions taken with respect to such funding policy and method and the reasons
therefore shall be recorded by the Employer and communicated to the Trustee.
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ARTICLE VI - ELECTIVE CONTRIBUTIONS
6.01 Amount of Contribution. Each Participant may elect to defer his or
her Compensation and have the Employer make an Elective Contribution to the
Trust on behalf of the Participant. Elective Contributions may be an amount
between one percent (1%) and fifteen percent (15%) (in increments of 1%) of the
Participant's Compensation for the Plan Year in question, but shall not exceed
$7,979 (adjusted pursuant to the method provided in Code section 415(d)) for the
Participant's taxable year. The Plan Administrator may fix lower maximums for
Highly Compensated Employees to satisfy the nondiscrimination tests of Section
5.05.
If the dollar limitation provided above is exceeded, the excess amount
("Excess Deferral"), plus any income and minus any loss attributable to such
amount, shall be distributed to the Participant by April 15 of the year
following the year in which the excess amount was contributed, and in no event
later than the last day of the Plan Year following the Plan Year in which the
excess arose. The amount distributed shall not exceed the Participant's salary
reduction contribution under the Plan for the year. A Participant's Excess
Deferral shall be reduced (but not below zero) by any previous distribution or
recharacterization of Excess Contributions pursuant to Section 5.07 for the Plan
Year beginning within the Participant's taxable year.
6.02 Election Request. Elective Contributions for Participants shall be
such amounts as the Participant elects to have contributed on the Participant's
behalf pursuant to a salary reduction Election Request completed by the
Participant and filed with the Employer. Under no circumstances may an Election
Request be adopted retroactively.
6.03 Change of Rate. Participants may change the rate of the Elective
Contribution (in accordance with the Election Request form) quarterly by
notifying the Plan Administrator. However, a Participant may elect to
prospectively revoke the Participant's Election Request in its entirety at any
time during the Plan Year upon 10 days notice to the Plan Administrator (or upon
such shorter notice as is acceptable to the Plan Administrator).
6.04 Distributions from Elective Account. Amounts held in a
Participant's Elective Account may be distributed only upon:
(i) the Participant's retirement, death, Total and Permanent
Disability, separation from service, or attainment of age 59 1/2;
(ii) the termination of the Plan without the existence or
establishment of another defined contribution plan (other than an
employee stock ownership plan);
(iii) the sale by the Employer to an unrelated entity of
substantially all of the assets (within the meaning of Code section
409(d)(2)) used in a trade or business of such
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corporation if the Participant continues employment with the
corporation acquiring such assets;
(iv) the sale by the Employer to an unrelated entity of its
interest in a subsidiary (within the meaning of Code section
409(d)(3)), with respect to a Participant who continues employment with
such subsidiary;
(v) the Participant's financial hardship, pursuant to
Section 4.16; or
(vi) pursuant to Sections 6.01 and 5.07 (Correction of Excess
Elective Contributions).
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ARTICLE VII - ALLOCATION TO INDIVIDUAL PARTICIPANTS
7.01 Allocation of Profit Sharing Contribution. The Employer
contribution shall be allocated to the Profit Sharing Accounts of all eligible
Participants covered by the Plan as of the Accounting Date of the Plan, in the
following manner:
(a) An amount equal to 5.7% multiplied by the sum of each
Participant's total Compensation plus Excess Compensation shall be
allocated to each Participant's Profit Sharing Account. If the Employer
does not contribute such amount, each Participant shall be allocated a
share of the contribution in the same proportion that such
Participant's total Compensation plus Excess Compensation bears to the
total Compensation plus Excess Compensation of all Participants.
(b) The balance of the Employer's contribution over the amount
allocated in (a), if any, shall be allocated to each Participant's
Profit Sharing Account in the proportion that each Participant's
Compensation bears to the total Compensation of all Participants for
the Plan Year.
Notwithstanding the foregoing, if the Plan is top heavy pursuant to
Article VIII, a minimum contribution must be provided by the Employer
contribution and/or forfeitures (if any) to the Profit Sharing Account of all
non-Key Participants equal to the lesser of (1) 3% of Compensation, or (2) the
largest percentage of Employer contribution and/or forfeitures (if any)
allocated to the Accounts of a Key Employee (including salary deferral amounts).
Such minimum contribution must be allocated to the Account of all non-Key
Participants who are employed by the Employer on the Accounting Date, regardless
of the number of Hours of Service credited during the Plan Year to which the
contribution relates, regardless of whether or not such Participant makes
nonelective contributions for the Plan Year to which the contribution relates,
and regardless of such Participant's level of compensation.
If the Employer maintains one or more other qualified defined
contribution plans that are a part of a Required or Permissive Aggregation Group
the minimum benefit for non-Key Employees may be provided in any one of the
plans, or may be satisfied by aggregating the contributions made in all of the
aggregated defined contribution plans of the Employer (not including Elective
Contributions or Matching Contributions needed to satisfy the ADP or ACP tests,
for Plan Years beginning after December 31, 1988).
"Excess Compensation" means the portion of a Participant's Compensation
which is in excess of the Social Security taxable wage base in effect on the
first day of the Plan Year.
Participants shall be eligible to receive a portion of the Employer
Profit Sharing Contribution (other than the minimum contribution) only if they
complete 1,000 Hours of Service during the Plan Year and are employed on the
Accounting Date to which the contribution relates where termination
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is for reasons other than death, retirement after reaching Normal Retirement
Age, or Total and Permanent Disability.
7.02 Allocation of Elective Contributions. Each Plan Year the Employer
shall allocate the Elective Contribution made on behalf of a Participant subject
to such Participant's Election Request to the Elective Account of such
Participant in the same manner as the contribution is determined pursuant to
Section 6.01.
7.03 Allocation of Matching Contribution. Each Plan Year Employer
Matching Contributions shall be allocated on a monthly basis to the Matching
Account of each eligible Participant receiving an Elective Contribution in the
same manner as the Matching Contribution is determined pursuant to Section 5.03.
Participants shall be eligible to receive a Matching Contribution only
if they have made elective contributions for the calendar quarter to which the
employer matching contribution relates.
7.04 Allocation of Forfeitures. As of each Accounting Date, any amounts
which became forfeitures shall first be made available to reinstate previously
forfeited account balances of reemployed Participants, if any. The remaining
forfeitures shall be added to the Employer's contribution and allocated in the
same manner as the Employer's contribution for the current year.
7.05 Amendment of Allocation Eligibility. Notwithstanding anything to
the contrary, for Plan Years beginning after December 31, 1989, if this is a
Plan that would otherwise fail to meet the requirements of Code sections
401(a)(26), 410(b)(1) or 410(b)(2)(A)(i) and the Regulations thereunder because
Employer contributions have not been allocated to a sufficient number or
percentage of Participants for a Plan Year, then the following rules shall
apply:
(a) The group of Participants eligible to share in the
Employer's contribution and forfeitures for the Plan Year shall be
expanded to include the minimum number of Participants who would not
otherwise be eligible as are necessary to satisfy the applicable test
specified above. The specific Participants who shall become eligible
under the terms of this paragraph shall be those who are actively
employed on the last day of the Plan Year and, when compared to
similarly situated Participants, have completed the greatest number of
Hours of Service in the Plan Year.
(b) If after application of paragraph (a) above, the
applicable test is still not satisfied, then the group of Participants
eligible to share in the Employer's contribution and forfeitures for
the Plan Year shall be further expanded to include the minimum number
of Participants who are not actively employed on the last day of the
Plan Year as are necessary to satisfy the applicable test. The specific
Participants who shall become eligible to share shall be those
Participants, when compared to similarly situated Participants, who
have completed the greatest number of Hours of Service in the Plan Year
before terminating employment.
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(c) Nothing in this Section shall permit the reduction of a
Participant's accrued benefit. Any adjustment to the allocations
pursuant to this paragraph shall be considered a retroactive amendment
adopted by the last day of the Plan Year.
7.06 Maximum Additions to Participant's Account. Notwithstanding any
Plan provisions to the contrary, the maximum "Annual Additions" credited to any
Participant's Accounts and the "Annual Additions" to the account of the same
Employee as a Participant in any other defined contribution plan of the Employer
shall equal the lesser of: (1) thirty thousand dollars ($30,000), or, if
greater, one-fourth of the dollar limitation in effect under Code section
415(b)(1)(A)), or (2) twenty-five percent (25%) of the Participant's
compensation.
"Annual Additions" with respect to any Participant shall mean the sum
credited to a Participant's Accounts for any Limitation Year of: (1) Employer
contributions; (2) Employee contributions; (3) forfeitures; (4) amounts
allocated, after March 31, 1984, to an individual medical account (as defined in
Code section 415(1)(2)) which is part of a pension or annuity plan maintained by
the Employer, and (5) amounts derived from contributions paid or accrued after
December 31, 1985, in taxable years ending after such date, which are
attributable to post-retirement medical benefits allocated to the account of a
key employee (as defined in Code section 419(A)(d)(3)) under a welfare benefit
plan of the Employer. Annual Additions shall not include the transfer of funds
from one qualified plan to another, rollover contributions, repayment of a loan
made from the plan, repayment of distributions after cash-outs, and Employee
contributions to a SEP which are excludible from gross income.
The "Limitation Year" is the Fiscal Year, or such other twelve (12)
consecutive month period as designated by resolution of the Employer; however,
in the absence of such resolution, the Limitation Year shall be the Fiscal Year.
If as a result of the allocation of forfeitures, a reasonable error in
estimating a Participant's Compensation, or other facts and circumstances which
the Commissioner finds justify the availability of the rules of this Section,
the Annual Additions to a Participant under this Plan would cause the maximum
Annual Additions to such Participant's Accounts to be exceeded, the Plan
Administrator shall:
(a) Return any voluntary contributions credited for the
Limitation Year to the extent the return would reduce the excess amount
in the Participant's Accounts;
(b) Hold any remaining excess after the return of voluntary
contributions in the Participant's Account to be used to reduce
Employer contributions (including allocation of forfeitures) in the
next Limitation Year and succeeding years if necessary, and
(c) If an excess amount still exists and the Participant is
not covered by the Plan at the end of a Limitation Year, the excess
amount will be held in a suspense account and
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applied to reduce Employer contributions for all remaining
Participant's in the next Limitation Year (and succeeding years if
necessary) before any Employer or Employee contributions may be made
to the Plan for that Limitation Year.
Such suspense account may or may not be adjusted by investment gains or
losses. Upon termination of the Trust any amounts held in such suspense account
shall not be distributed but shall be returned to the Employer to the extent
they cannot be allocated to Participants because of the limitations under Code
section 415.
For purposes of this Section, "compensation" for any Employee shall
mean a Participant's earned income, wages, salaries, fees for professional
services and other amounts for personal services rendered in the course of
employment with the Employer (including, but not limited to, commissions paid
salespersons, compensation for services based on a percentage of profits,
commissions on insurance premiums, tips and bonuses) paid during the Limitation
Year, but excluding the following:
(a) Employer contributions to a plan of deferred compensation
which are not includible in the Participant's gross income in the year
in which contributed;
(b) any distributions from a plan of deferred compensation
(except from an unfunded nonqualified plan when includible in gross
income);
(c) Employer contributions under a simplified employee pension
plan to the extent such contributions are deductible by the employee;
(d) amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property) held by the
employee either becomes freely transferrable or is no longer subject to
a substantial risk of forfeiture;
(e) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option;
(f) other amounts which receive special tax benefits, or
contributions made by the Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity described in
Code section 403(b) (whether or not the amounts are actually excludible
from the employee's gross income.)
For Limitation Years beginning after December 31, 1988, compensation
shall be limited to $200,000 as adjusted in the same manner as permitted under
Code section 415(d).
7.07 Date of Allocation to Accounts. For all purposes of this Plan,
allocations to Participants' Accounts shall be deemed to have been made on the
Accounting Date to which they are related, although they may actually be
determined on some later date.
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7.08 Expenses of Plan. All necessary expenses of administering this
Plan, including Trustee's fees, attorney's fees, or consulting fees, and any
other necessary expenses that may arise in connection with this Plan shall be
paid by the Trustee from the income or corpus of the Trust unless they are paid
by the Employer.
7.09 Participant Direction of Investment.
(a) A Participant has the right to direct the Trustee with
respect to the investment or re-investment of the assets comprising the
Participant's individual accounts. The Trustee will accept direction
from each Participant on a written election form (or other written
agreement), as a part of this Plan containing such conditions,
limitations and other provisions the parties deem appropriate. The
Trustee or, with the Trustee's consent, the Plan Administrator, may
establish written procedures, incorporated specifically as part of this
Plan, relating to Participant direction of investment under this
Section 7.09.
(b) The Trustee will maintain a segregated investment Account
to the extent a Participant's Account is subject to Participant
self-direction. Each such segregated investment Account shall be
adjusted with the earnings, losses and expenses attributable to said
Account.
(c) The Employer and the Trustee intend that this Plan qualify
as an ERISA 404(c) Plan, and as such, the Plan's fiduciaries are
relieved of fiduciary responsibility or liability for any losses
resulting from a Participant's direction of the investment of any part
of the Participant's directed Accounts.
7.10 Periodic Adjustments to Account. The Account(s) held in trust for the
benefit of a Participant shall be adjusted in an equitable and reasonable
manner, generally to be determined as follows unless circumstances require
otherwise in fairness:
(a) Regular Periodic Adjustments. As of each Accounting Date,
before allocation of contributions and forfeitures, any increase or
decrease in the fair market value of the Trust since the immediately
preceding Accounting Date shall be computed by the Trustee, and such
increase or decrease shall be credited to or deducted from the
nonsegregated accounts of all Participants in the proportion that the
balance of each Participant's Accounts bears to the total current
balance of all Participant's Accounts. An equitable adjustment shall be
made to the Account(s) of any Participant receiving distributions
during the Plan Year.
(b) Determination of Increase or Decrease. For the purposes of
subsection (a) of this Section, the increase or decrease in the fair
market value of the Trust shall be the difference between the
following:
(i) The fair market value of the Trust (other than
segregated accounts and insurance company contracts) on the
current Accounting Date as of which the
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calculation is made, excluding the Employer's contribution and
all voluntary contributions of Participants for the current
Accounting Date, less
(ii) The fair market value of the Trust (other than
segregated accounts and insurance company contracts) on the
immediately preceding Accounting Date, including the
Employer's contribution and all voluntary contributions of
Participants as of such Accounting Date, but not including any
amount falling due and paid from the Trust during such Plan
Year.
(iii) If Employer or employee contributions are made
during the year prior to the Accounting Date, equitable
adjustment may by made to the account balances for such
Participant for the preceding Accounting Date for the purpose
of approximating earnings on such contributions for the
current year.
(c) Account Valuation for Distribution Purposes. For purposes
of benefit distribution, a Participant's Account shall be valued as of
the Accounting Date coincident with or immediately preceding the date
of distribution; (but in the case of a Participant's Voluntary
Contribution Account shall also include the amount of any voluntary
contributions made by the Participant after such Accounting Date):
provided, however, if the Plan Administrator directs payment of a
Participant's Accounts in any manner other than a single payment to be
made prior to the next regular periodic adjustment of Accounts such
Participant's Accounts shall continue to receive regular periodic
adjustments as aforesaid, but shall no longer be increased by the
allocation of Employer contributions or forfeitures.
(d) Single Payment and Interim Valuation. In the event that,
for whatever reason, distribution of a Participant's Account is to be
made in a single payment, such Account may, at the option of the Plan
Administrator, be adjusted for the purposes of such distribution in
order to account for any substantial changes in the value of the Trust
assets since such Account's most recent regular periodic adjustment. In
such event, the Plan Administrator shall restate the value of the Trust
assets in order to determine the percentage of increase or decrease in
the fair market value of all net Trust assets (deducting any advance
contributions and any voluntary contributions of Participants for the
Plan Year in question) as of the end of the month (hereinafter referred
to as the Interim Valuation Date) next preceding the date of
distribution of the Account. The Participant's Account, as of the
Accounting Date immediately preceding such Interim Valuation Date,
shall, for the purpose of distribution only, be adjusted to reflect
such increase or decrease, as the case may be, by multiplying such
Account by the percentage determined as aforesaid. Such interim
valuation percentage once determined shall be applied to the Accounts
of any other Participants who are to receive a distribution of their
Account in a single payment following such Interim Valuation Date but
prior to the next regular periodic adjustment of Accounts, or the next
Interim Valuation Date, whichever is earlier.
(e) Self-Directed Accounts. Participants segregated accounts
shall be adjusted with their separate increase or decrease.
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ARTICLE VIII - TOP HEAVY PROVISIONS
8.01 When Provisions Effective. The following Top Heavy provisions
shall become effective in any Plan Year in which the Plan is determined to be a
Top Heavy Plan, and will supersede any conflicting Plan provisions.
8.02 Determination of Top Heavy. The Plan will be considered a Top
Heavy Plan for the Plan Year if as of the Determination Date (the last day of
the preceding Plan Year, or in the first Plan Year the last day of the Plan
Year) the sum of the present value of accrued benefits of Key Employees and/or
the total of the account balances of Key Employees under this Plan and all plans
of an "Aggregation Group" (as defined below), exceeds 60% of the sum of the
present value of accrued benefits and the total account balances of all
Participants under this Plan and/or all plans of an Aggregation Group. However,
this Plan shall not be considered Top Heavy if it is part of an Aggregation
Group that is not Top Heavy.
The determination of account balances and/or accrued benefits to be
used in the calculation of the Top Heavy ratio and the extent to which
distributions, rollovers and transfers are taken into account will be made in
accordance with Section 416(g) of the Code and the regulations thereunder.
The accrued benefits and/or account balance of a Participant (1) who is
not a Key Employee but was a Key Employee in a prior year, or (2) has not
performed any services for any Employer maintaining the Plan during the 5-year
period ending on the Determination Date, shall be disregarded.
"Aggregation Group" means either a Required Aggregation Group or a
Permissive Aggregation Group as defined below:
(a) Required Aggregation Group means: (1) each plan of the
Employer in which a Key Employee is a Participant, and (2) each other
plan of the Employer which enables any plan described in (1) above to
meet the requirements of Section 401(a)(4) or 410 of the Code. A
Required Aggregation Group shall include any terminated plan of the
Employer if it was maintained within the last five (5) years ending on
the Determination Date.
(b) Permissive Aggregation Group means any plans of the
Employer not required to be included in a Required Aggregation Group
but which may be combined and treated as part of such group if such
group would continue to meet the requirements of Section 401(a)(4) and
410 of the Code. In the case of a Permissive Aggregation Group, only a
plan that is part of the Required Aggregation Group will be considered
a Top Heavy plan if the Permissive Aggregation Group is Top Heavy.
Key Employee means an employee as defined in Code section 416(i) and
the regulations thereunder. For purposes of determining who is a Key Employee,
"compensation" shall mean
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compensation as defined in Code section 415(c)(3), but including amounts
contributed by the Employer pursuant to a salary reduction agreement which are
excludible from the employee's gross income under Code section 125, 402(a)(8),
402(h) or 403(b).
8.03 Minimum Benefits. The provisions of Article VIII notwithstanding,
a minimum contribution must be provided by the Employer contribution and/or
forfeitures to the account of each non-Key Participant equal to the lesser of
(1) 3% of Compensation, or (2) the largest percentage of Employer contribution
and/or forfeitures allocated to the Account of a Key Employee. Such minimum
contribution must be allocated to the account of all non-Key Participants who
are employed by the Employer on the Accounting Date, regardless of the number of
Hours of Service credited during the Plan Year to which the contribution
relates, regardless of whether or not the Participant makes mandatory
contributions for the Plan Year to which the contribution relates, and
regardless of the Participant's level of Compensation.
If the Employer maintains one or more other qualified defined
contribution plans, and if the Plans are a part of the Required or Permissive
Aggregation Group, the minimum benefit for Non-Key Employees may be provided in
any one of the Plans, or the minimum benefit requirement may be satisfied by
aggregating the contributions made in all of the aggregated defined contribution
plans of the Employer.
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ARTICLE IX - PORTABILITY OF ACCOUNT
9.01 Transfers to Another Qualified Plan. If a Participant shall be
entitled to receive benefits under this Plan, and the Participant shall be
subsequently employed by another Employer which has a plan qualified pursuant to
Internal Revenue Code section 401(a) as now in effect or hereafter amended, the
Trustee, at the direction of the Plan Administrator, may transfer the
Participant's vested interest in that Participant's Account under this Plan
directly to the trustee of the plan of the Participant's new employer if the
following are satisfied: (1) the trustee of the other plan shall be authorized
to accept the benefits under this Plan; (2) the Participant's transferred
Account shall not be forfeitable or reduce in any way the obligation of the new
Employer; and (3) the Participant's transferred Account shall be maintained in a
separate account in the other plan. The Trustee may transfer a Participant's
benefits under this Plan to another plan of the Employer, subject to the above
requirements.
9.02 Eligible Rollover Distributions. This section applies to
distributions made on or after January 1, 1993. Notwithstanding any provision of
the Plan to the contrary that would otherwise limit a distributee's election
under this section, a distributee may elect, at the time and in the manner
prescribed by the plan administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan specified by
the distributee in a direct rollover. The following definitions are applicable
under this section:
(a) Eligible Rollover Distribution. An eligible rollover
distribution is any distribution of all or any portion of the balance
to the credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a series
of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the distributee or
the joint lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period of ten
years or more; any distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to
employer securities).
(b) Eligible Retirement Plan. An eligible retirement plan is
an individual retirement account described in section 408(a) of the
Code, an individual retirement annuity described in section 408(b) of
the Code, an annuity plan described in section 403(a) of the Code, or a
qualified trust described in section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However, in the case
of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
(c) Distributee. A distributee includes an employee or former
employee. In addition, the employee's or former employee's surviving
spouse and the employee's or former
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employee's spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in section 414(p) of the
Code, are distributees with regard to the interest of the spouse or
former spouse.
(d) Direct Rollover. A direct rollover is a payment by the
plan to the eligible retirement plan specified by the distributee.
9.03 Transfers to this Plan. With the consent of the Plan
Administrator, the Trustee of this Plan is authorized to accept the following
assets upon the terms and conditions set forth above from a trustee of another
qualified plan or from a former Participant of another qualified plan: (i)
amounts transferred directly from a trustee of another qualified plan, (ii) lump
sum distributions received by a former Participant of another qualified plan
which are eligible for tax free rollover and are rolled into this Plan within 60
days of receipt by such Participant, or (iii) amounts transferred from a conduit
individual retirement account and rolled into this Plan within 60 days of
receipt from such account.
The Trustee may not accept assets coming directly or indirectly from
(1) any defined benefit plan, (2) any defined contribution plan which is subject
to the funding standards of Section 412 of the Code, or (3) any other plan which
offered an annuity in any form to its Participants, unless the acceptance of
such assets does not require any additional optional form of benefit to be
provided under this Plan. Such transfers from other qualified plans, are placed
in a segregated fully vested Participant Rollover Account.
Amounts attributable to elective contributions (as defined in
Regulation 1.401(k)-1(g)(4)), including amounts treated as elective
contributions, which are transferred to this Plan from another plan in a
plan-to-plan transfer shall continue to be subject to the distribution
limitations provided in regulation 1.401(k)-1(d).
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ARTICLE X - PLAN ADMINISTRATOR
10.01 Appointment of Plan Administrator. The Employer will appoint one
(1) or more persons or the Employer as the Plan Administrator who shall serve
without compensation from the Trust. The Plan Administrator is a named fiduciary
for purposes of the Employee Retirement Income Security Act of 1974. The
Employer shall notify the Trustee of the name or names of the Plan Administrator
and or any changes in Plan Administrator. The Plan Administrator shall serve
until resignation or dismissal by the Employer and vacancies shall be filled in
the same manner as the original appointments. The Board of Directors of the
Employer may dismiss the Plan Administrator at any time with or without cause.
10.02 Duties of Plan Administrator. The Plan Administrator shall have
the duty, full discretionary authority and full discretionary control to manage
the operation and administration of the Plan, including, but not limited to, the
duty and authority to:
(a) Records. Keep records regarding Participants' service with
the Employer and resultant benefits under the Plan;
(b) Reports to Governmental Authorities. Make periodic reports
to the Internal Revenue Service and Department of Labor as required by
law;
(c) Notices. Provide proper notification to Participants as
required by law;
(d) Administration of Benefits. Construe and interpret the
Plan, including supplying any omissions in accordance with the intent
of the Plan, decide all questions of eligibility, determine the amount,
manner and time of payment of any benefits hereunder, authorize the
payment of benefits, and issue directions to the Trustee (and/or
insurance company, if applicable) regarding the payment of such
benefits;
(e) Plan Information. Prepare and distribute, in such manner
as the Plan Administrator determines to be appropriate, information
explaining the Plan; and receive from the Employer and from
Participants information necessary for the proper administration of the
Plan;
(f) Reports to Employer. Furnish the Employer upon request,
such annual reports with respect to the administration of the Plan as
are reasonable and appropriate;
(g) Financial Reports. Receive, review and keep on file (as it
may deem convenient or proper) reports of the financial condition, and
of the receipts and disbursements, of the Trust Fund from the Trustee;
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(h) Designation of Agents. Appoint, employ or designate
individuals to assist in the administration of the Plan and any other
agents it deems advisable, including legal and actuarial counsel;
(i) Adjustments. Make equitable and practical adjustments
necessary to correct mistakes of fact or other errors;
(j) Interim Valuations. Direct an interim valuation as set
forth in the Plan; and
(k) Generally. Exercise other powers and duties the Employer
may delegate to it.
10.03 Decisions of Plan Administrator and Indemnification. Every
decision and action of the Plan Administrator shall be valid if concurred in by
a majority of the persons then in office, which concurrence may be had without a
formal meeting. The Plan Administrator shall keep a permanent record of its
meetings and actions. The Plan Administrator shall not be jointly or severally
liable to any person for any actions or omissions of actions in connection with
the duties of the Plan Administrator, except to the extent that the Plan
Administrator does not exercise the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims. From the assets of the Trust,
the Trustee or the Employer shall indemnify the Plan Administrator against any
and all claims, losses, damages, expenses and liabilities arising from any act
of commission or omission if the act is judicially determined not to be a breach
of fiduciary responsibility by the Plan Administrator. The indemnification shall
include attorney's fees and all other costs and expenses reasonably incurred by
the Plan Administrator in defense of any action brought against said Plan
Administrator arising from such act of commission or omission.
10.04 Instructions to Trustee. The Trustee may request instructions in
writing from the Plan Administrator on other matters and may rely and act upon
them.
10.05 Claims Procedure. The Plan Administrator shall establish a claims
procedure for the benefit of Participants and their Beneficiaries which shall:
(a) provide adequate notice in writing to any Participant or
Beneficiary whose claim for benefits under the Plan has been denied,
setting forth the specific reasons for such denial, written in a manner
calculated to be understood by the Participants, and
(b) afford any Participant or Beneficiary whose claim for
benefits has been denied a reasonable opportunity for a full and fair
review by the appropriate named fiduciary.
10.06 Delegating Responsibility. The Plan Administrator may delegate in
writing all or any part of its responsibilities under this document to the
Trustee and in the same manner, revoke any
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such delegation of responsibility. Any action of the Trustee in the exercise of
such delegated responsibilities shall have the same force and effect for all
purposes as if such action had been taken by the Plan Administrator. The Trustee
shall have the right, in its sole discretion, by written instrument delivered
to the Plan Administrator, to reject and to refuse to exercise any such
delegated authority.
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ARTICLE XI - MISCELLANEOUS
11.01 Right to Terminate. This Plan shall be terminated upon the
adoption of an appropriate resolution by the Employer and the delivery of a copy
thereof to the Trustee.
11.02 Plan Voluntary on Part of Employer. It is the intention of the
Employer that this Plan shall be continued and its contributions made in each
year in accordance with the provisions of this Plan. However, this Plan is
entirely voluntary on the part of the Employer. The Employer does not guarantee
or promise to pay, or cause to be paid any of the benefits provided in this
Plan. Each Participant, retired Participant, disabled Participant, terminated
Participant, Beneficiary, or any other person who shall claim the right to any
payment or benefit under this Plan, shall be entitled only to look to the Trust
for such payment or benefit and shall not have any right, claim or demand
therefor against the Employer. The Employer specifically reserves the right, in
its sole and uncontrolled discretion to modify or suspend this Plan from time to
time in whole or in part or to terminate this Plan at any time.
11.03 Benefits Not Subject to Creditors' Claim. To the fullest extent
permitted by law, none of the benefits under the Plan are subject to the claims
of creditors of Participants, or of retired Participants, or of disabled
Participants or their Beneficiaries, and will not be subject to assignment,
alienation, attachment, garnishment or any other legal process, either
voluntarily or involuntarily. Neither a Participant, a retired Participant, a
disabled Participant nor the Participant's Beneficiaries may assign, sell,
borrow on, or otherwise encumber any of such person's beneficial interest in the
Plan and Trust Fund, nor shall any such benefits be in any manner liable for or
subject to the deeds, contracts, liabilities, engagements, or torts of any
Participant, retired Participant, disabled Participant, or Beneficiary.
The preceding sentence shall also apply to the creation, assignment, or
recognition of a right to any benefit payable with respect to a Participant
pursuant to a domestic relations order, unless such order is determined to be a
Qualified Domestic Relations Order, or any domestic relations order entered
before January 1, 1985. Any domestic relations order entered before January 1,
1985 will be treated as a qualified domestic relations order if payment of
benefits pursuant to the order has commenced as of such date, and may be treated
as a qualified domestic relations order if payment of benefits has not commenced
as of such date, even though the order does not satisfy the requirements of Code
section 414(p).
11.04 Trust Agreement. The Employer has entered into a Trust Agreement
and said Trust Agreement is made a part hereof. The Trust and any income
therefrom received by the Trustee shall be received, held in trust, and
disbursed by the Trustee in accordance with written instructions from the Plan
Administrator.
11.05 Assets for Exclusive Benefits to Participants. Except as provided
in Article V, it shall not be possible (within the taxable year or thereafter)
for any part of the corpus or income to be used
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for purposes other than for the exclusive benefit of the Participants or their
Beneficiaries at any time prior to the satisfaction of all liabilities with
respect to Participants and their Beneficiaries under the Trust.
11.06 Nonguarantee of Employment. The Plan shall not be deemed to
constitute a contract between the Employer and Participant or to be a
consideration or inducement for the employment of any Participant or Employee.
Nothing contained in this Plan shall be deemed to give any Participant or
Employee the right to be retained in the service of the Employer or to interfere
with the right of the Employer to discharge any Participant or Employee at any
time regardless of the effect which such discharge may have upon that Employee
or Participant as a Participant in this Plan.
11.07 Amendment. The Employer shall have the right at any time by an
instrument in writing duly executed, to modify, alter or amend this Plan in
whole or in part, provided that no such amendment shall entitle the Employer to
receive, directly or indirectly, any part of the corpus or income of the Trust,
including any forfeitures thereto. No amendment shall be made which in effect
will take away any rights accrued to any Participant up to the time of such
amendment, or eliminate an optional form of distribution.
11.08 Acts by Trustee. The Employer shall not be responsible for any of
the acts of the Trustee.
11.09 Laws of Kentucky. The provisions of this Plan shall be construed,
administered, and enforced in accordance with the laws of the Commonwealth of
Kentucky, to the extent such laws are not superseded by Federal law.
11.10 Distribution to Minor or Incompetent Beneficiary. In making
distribution to or for the benefit of any minor or incompetent Beneficiary, the
Plan Administrator shall direct the Trustee to make such distribution to a legal
or natural guardian or other person who shall have full authority and discretion
to expend such distribution for the use and benefit of such minor or
incompetent, and the receipt of such distribution by the guardian, relative or
other person shall be a complete discharge to the Plan Administrator and the
Trustee, without any responsibility on its part to see to the application
thereof.
11.11 Construction. The masculine pronoun wherever used shall include
the feminine. Whenever words are used herein in the singular, they shall be
construed as though they were used in the plural, in any case where they would
so apply.
11.12 Merger or Consolidation. In the event of a merger, consolidation
or transfer of assets and/or liabilities to any other Plan, each Participant
shall be entitled to a benefit immediately after the merger, consolidation, or
transfer (if the Plan then terminated) which is equal to or greater than the
benefit the Participant would have been entitled to receive immediately before
such transaction if the Plan had then terminated.
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11.13 Discretionary Action. The Plan Administrator may exercise full
discretionary authority or discretionary control in connection with the
management of this Plan unless otherwise prohibited by validly promulgated
rules, regulations, and terms of the Internal Revenue Code or the Employee
Retirement Income and Security Act, as amended. The Plan Administrator's
discretionary power includes, but is not limited to, construing and interpreting
this Plan, construing disputed or doubtful terms, supplying omissions in
accordance with the intent of the Plan, deciding questions of eligibility for
participation, determining the amount, timing and payment of benefits under the
terms of the Plan, reviewing benefit eligibility determinations, and authorizing
the payment of benefits. Whenever the Administrator acts pursuant to the terms
of this Plan, such action will be taken in a uniform and nondiscriminatory
manner. Any construction of the Plan or Trust adopted by the Administrator in
good faith, and any discretionary action exercised by the Administrator in good
faith, shall be binding upon Employees, Participants, and Beneficiaries.
11.14 Lost Beneficiaries; Escheat. When a benefit is payable to a
terminated Participant, and when the Plan Administrator is unable to find the
Participant or the Beneficiary to whom the payment is due, the benefit shall be
forfeited and shall be treated as any other forfeiture under the Plan. Upon
termination of the Plan or in the event a claim is made by the Participant or
Beneficiary for the forfeited benefit, the Plan Administrator shall direct the
Trustee to establish a savings account in the name of the Participant in the
amount of the forfeiture. Said savings account shall be at a savings and loan
institution or other banking institution in the same geographic location as the
Trustee of the Trust and the establishment of said account shall be a complete
and full discharge of the Trustee and Plan Administrator for any liability to
the Participant for said benefit and the account shall be governed by applicable
state law including, but not by way of limitation, the appropriate rules of
escheat.
11.15 Participating Employers.
(a) Adoption by Other Employers. With the consent of
Brown-Forman Corporation, any Affiliated Employer may adopt this Plan and all of
its provisions, participate in the Plan, and be known as a participating
Employer, by a properly executed document evidencing the intent and will of
Brown-Forman Corporation.
The aforementioned document may contain such specific changes
and variation in Plan terms and provisions applicable to such participant
Employer and its Employees as may be acceptable to the Plan Administrator.
However, the sole, exclusive right of termination of or of any other amendment
to the Plan, of whatever kind or extent, is reserved by Brown-Forman
Corporation. The aforementioned document becomes, as to such participant
Employer and its Employees, a part of this Plan as then amended or thereafter
amended. It is not necessary for the participating Employer to sign or execute
the original or then-amended Plan document. The coverage date for any such
participating Employer is the date stated in the aforementioned document. From
and after the effective date of coverage, the participating Employer shall
assume all the rights, obligations, and liabilities of an Employer under the
Plan. The administrative powers of and control by Brown-Forman Corporation, as
provided in the Plan, including the sole right to terminate or amend, and to
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appoint and remove the Plan Administrator, are not diminished by reason of the
participation of any participating Employer in the Plan.
(b) Withdrawal from the Plan. Any participating Employer, by
action of its governing authority, may withdraw from the Plan after giving 90
days advance notice to the Board of Directors of Brown-Forman Corporation,
provided the Board of Directors consents to such withdrawal.
(c) Action of a Single Employer. The term "Employer" refers to
all Affiliated Employers that adopt this Plan with the consent of Brown-Forman
Corporation; however, whenever action is taken by an Affiliated Employer to
commence or terminate participation or to alter the Plan terms or provisions as
they apply to its Employees, such action applies only to said Affiliated
Employer and does not affect this Plan document with respect to any other
participating Employer.
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ARTICLE XII - SIGNATURES
IN WITNESS WHEREOF, the Employer has caused this Plan to be executed by
an officer duly authorized this 22nd day of December, 1994.
FETZER VINEYARDS
By: /s/ Milton B. Gillis
---------------------------------
MILTON B. GILLIS, Vice President
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CORRECTIVE AMENDMENT
FETZER VINEYARDS
PROFIT SHARING PLAN
A restated Profit Sharing Plan effective December 1, 1994 was adopted
by Fetzer Vineyards. The Plan provides in Article XI that the Plan may
be amended by an instrument in writing duly executed.
It is advisable to correctively amend the Plan in certain respects.
IT IS THEREFORE AGREED:
1. Section 1.05 of Article I is correctively amended by deleting the
final paragraph of the section which is a duplicate of the immediately preceding
paragraph.
2. Section 1.09 of Article I is correctively amended by adding the
following provision:
Jekel Vineyards adopted the Plan as an additional Employer
effective May 1, 1994. The Plan Administrator will account
separately for each Employer's contributions under the Plan, will
allocate each Employer's contributions to the accounts of those
Participants actually employed by that Employer during the Plan
Year, and will attribute Participant forfeitures to the Employer
that actually employed the forfeited Participant in the year of
forfeiture.
In all other respects, the Fetzer Vineyards Profit Sharing Plan as
initially adopted and subsequently amended shall remain in full force and
effect.
IN WITNESS WHEREOF, the Employer has caused this Corrective Amendment
to the Fetzer Vineyards Profit Sharing Plan to be executed by its duly
authorized officer this 20th day of December, 1995.
FETZER VINEYARDS
By: /s/ Milton B. Gillis
---------------------------------
Milton B. Gillis, Vice-President
1
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FIRST AMENDMENT
FETZER VINEYARDS PROFIT SHARING PLAN
The restated Fetzer Vineyards Profit Sharing Plan was adopted by Fetzer
Vineyards effective December 1, 1994.
The Plan provides in Article XI that the Plan may be amended by an
instrument in writing duly executed.
It is advisable to amend the Plan in certain respects.
IT IS THEREFORE AGREED:
1. Section 4.06 of Article IV is deleted in its entirety (duplicative
of Section 4.07), to be replaced as follows:
4.06 [Reserved.]
2. Section 4.04(a)(i) of Article IV is amended by adding a phrase at
the close of the second paragraph, effective January 1, 1997, said paragraph to
read in its amended form as follows:
A Joint and Survivor Annuity will not be provided unless the
Participant and Spouse have been married the entire 1-year period
ending on the earlier of (1) the Annuity Starting Date, or (2)
the Participant's death. However, if a Participant marries within
1 year before the Annuity Starting Date and such marriage continues
for at least a 1 year period ending on or before the Participant's
death, then the Participant and such Spouse must be treated as
having been married for 1 year prior to the Annuity Starting Date,
provided that the said Participant notifies the Plan Administrator
when the said Participant has been married for one year.
3. Section 4.07(a), Pre-Retirement Survivor Annuity, of Article IV is
correctively amended by adding the following paragraph:
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Notwithstanding the foregoing, a Pre-Retirement Survivor
Annuity will not be provided unless the Participant and Spouse
have been married the entire one-year period ending on the earlier
of (1) the Annuity Starting Date, or (2) the Participant's Death.
In all other respects, the Fetzer Vineyards Profit Sharing Plan as
initially adopted and subsequently amended shall remain in full force and
effect.
IN WITNESS WHEREOF, the Employer has caused this First Amendment to the
Fetzer Vineyards Profit Sharing Plan to be executed by its duly authorized
officer this 13th day of March, 1997, effective December 1, 1994 unless
otherwise set forth herein.
FETZER VINEYARDS
By: /s/ Russell C. Buzby
-----------------------------------
RUSSELL C. BUZBY,
Senior Vice President
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SECOND AMENDMENT
FETZER VINEYARDS PROFIT SHARING PLAN
The restated Fetzer Vineyards Profit Sharing Plan was adopted by Fetzer
Vineyards effective December 1, 1994.
The Plan provides in Article XI that the Plan may be amended by an
instrument in writing duly executed.
It is advisable to amend the Plan in certain respects.
IT IS THEREFORE AGREED:
1. Section 1.08, Employee, of Article I is amended by adding the
following subsection (c) as an additional excluded classification of employee,
effective May 1, 1997:
1.08 (continued)
(c) those persons classified as Sales and Brand Support
Employees, said employees being eligible to participant in the
Brown-Forman Corporation Savings Plan.
2. Section 7.01, Allocation of Profit Sharing Contribution, of Article
VII is amended by adding the following additional paragraph:
Those Participants who are classified as Sales and Brand
Support Employees shall receive a portion of the Profit Sharing
Contribution for the year ended December 31, 1997, based upon the
said Participant's Compensation for the 1997 Plan Year through
April 30, 1997, pro rating the social security integration, provided
that the said Employee completes 1,000 Hours of Service during
the 1997 Plan Year and is employed on the last day of the Plan Year.
In all other respects, the Fetzer Vineyards Profit Sharing Plan as
initially adopted and subsequently amended shall remain in full force and
effect.
60
IN WITNESS WHEREOF, the Employer has caused this Second Amendment to
the Fetzer Vineyards Profit Sharing Plan to be executed by its duly authorized
officer this 30th day of April, 1997, effective May 1, 1997.
FETZER VINEYARDS
By: /s/ Milton B. Gillis
-------------------------------
MILTON B. GILLIS
Vice President
2
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THIRD AMENDMENT
FETZER VINEYARDS PROFIT SHARING PLAN
The restated Fetzer Vineyards Profit Sharing Plan was adopted by Fetzer
Vineyards effective December 1, 1994.
The Plan provides in Article XI that the Plan may be amended by an
instrument in writing duly executed.
It is advisable to amend the Plan in certain respects.
IT IS THEREFORE AGREED:
1. Effective for Plan Years beginning on or after January 1, 1999,
Article IV, Time and Manner of Payment, is amended to increase the involuntary
cashout limit from $3,500 to $5,000. The $3,500 dollar limit is amended to read
$5,000 wherever that $3,500 dollar limit amount appears in Article IV of this
Plan.
2. Effective April 1, 1999, Sections 4.03 and 4.04 of Article IV are
amended in their entirety as follows:
4.03 Manner of Payment of Retirement Benefits. Distribution of
a Participant's benefits will be made to the Participant or Beneficiary
by one of the following methods as elected by the Participant:
(a) Single Payment. Payment may be made in one
lump-sum payment in cash in the year in which distribution is
to be made. However, payment of all or any portion of a
Participant's account balance invested in the Brown-Forman
Stock Fund may be made in one lump-sum payment in cash or in
kind, with in-kind distribution in the form of Brown-Forman
Corporation Class B shares.
(b) Lifetime Payments. Payments may be made in cash
over a period not extending beyond the life expectancy of the
Participant or the joint life expectancies of the Participant
and the Participant's Beneficiary.
4.04 Payment Upon Death of Participant. If a Participant dies
before having received the entire vested balance of that
62
Participant's benefits, such remaining vested balance, plus
the proceeds of any insurance on the life of the Participant
held in the Participant's Accounts, shall be paid to or for
the benefit of the Participant's Beneficiary in a lump sum
payment in cash; provided, however, that payment of all or any
portion of the Participant's account balance invested in the
Brown-Forman Stock Fund may be made in one lump-sum payment in
cash or in kind, with in kind distribution in the form of
Brown-Forman Corporation Class B shares.
3. Effective April 1, 1999, Section 7.09, Participant Direction of
Investment, of Article VII is amended by adding subsection (d) as follows:
(d) The Employer and the Trustee have established the
Brown-Forman Stock Fund, composed of employer securities in
the form of Brown-Forman Corporation Class B shares, as an
additional investment option under the Plan. A Participant may
direct the investment of his/her account balance into said
Stock Fund under the terms and conditions as agreed upon
between the Trustee and the Plan Administrator.
4. Effective April 1, 1999, Article XI, Miscellaneous, is amended by
adding Section 11.16 as follows:
11.16 Action by the Employer. Any action by the Employer
under this Plan may be by the Board of Directors of
Brown-Forman Corporation, or by any person or persons duly
authorized by such Board to take such action.
In all other respects, the Fetzer Vineyards Profit Sharing Plan as
initially adopted and subsequently amended shall remain in full force and
effect.
IN WITNESS WHEREOF, the Employer has caused this Third Amendment to the
Fetzer Vineyards Profit Sharing Plan to be executed by its duly authorized
officer this 2nd day of March, 1999, effective as set forth herein.
FETZER VINEYARDS
By: /s/ Mary Barrazotto
-------------------------------
MARY BARRAZOTTO
OFFICER
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