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Exhibit 4(d)
BINDLEY WESTERN INDUSTRIES PLAN
PRISM(R) PROTOTYPE RETIREMENT PLAN AND TRUST
ARTICLE I
DEFINITIONS
1.1 Definitions. Unless the context indicates otherwise, the following terms,
when used herein with initial capital letters, shall have the meanings set
forth below:
(A) Accounting Date: The date which is the last business day of each
month of the Employer's Plan Year or such other date as may be
agreed upon between the Employer and the Trustee, but only if the
Employer has specifically requested the Trustee to prepare an
accounting on or before such date. Notwithstanding the foregoing,
the Trustee shall value the assets held in the Trust on each
business day that the Trustee and the New York Stock Exchange are
open for business.
(B) Adoption Agreement: The Adoption Agreement adopting this Plan which
has been executed by the Employer and accepted by the Trustee,
including any amendment thereof, which is incorporated herein by
reference.
(C) Basic Plan Document: This document, which, in connection with the
Adoption Agreement forms the Plan.
(D) Beneficiary: The person or persons to whom a deceased Participant's
benefits are payable under the Plan.
(E) Break In Service: A 12-consecutive month period during which the
Participant does not complete more than one-half of the Hours of
Service with the Employer required for a Year of Service, as elected
in the Adoption Agreement. For eligibility purposes, the initial
12-consecutive month period is the period beginning on the Employees
date of hire. Subsequent 12-consecutive month periods for
eligibility purposes will be either the period ending on the annual
anniversary of the Employee's date of hire or the Plan Year,
as selected in the Adoption Agreement. For all other purposes,
the 12-consecutive month period shall be the Plan Year, or other
computation period as selected in the Adoption Agreement. If the
elapsed time method of crediting service is elected in the
Adoption Agreement, "Break In Service" will mean a Period of
Severance of at least 12 consecutive months.
(F) Code: The Internal Revenue Code of 1986, and amendments thereto.
(G) Committee: The Committee provided for in Article XI, which shall be
a Named Fiduciary as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). To the extent that the
Employer does not appoint a Committee, the Employer shall have the
duty of the day to day administration of the Plan and shall be the
Named Fiduciary for that purpose.
(H) Compensation: Compensation shall have the following various
definitions, as may be appropriate within the context of the Plan:
(1) Compensation as that term is defined in Section 6.6(A) of the
Plan. For any Self-Employed Individual covered under the Plan,
Compensation will mean Earned Income. Compensation shall
include only that compensation which is actually paid to the
Participant during the determination period. Except as
provided elsewhere in this Plan, the determination period
shall be the period elected by the Employer in the Adoption
Agreement. If the Employer makes no election, the
determination period shall be the Plan Year. For purposes of
allocations of Employer Profit Sharing or Matching
Contributions, the definition of Compensation in Section
6.6(A)(2)(a) shall be used, as modified in the Adoption
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Agreement.
Notwithstanding the above, if elected by the Employer in the
Adoption Agreement, Compensation for allocation purposes shall
include any amount which is contributed by the Employer
pursuant to a salary reduction agreement and which is not
includible in the gross income of the employee under Sections
125, 402(e)(3), 402(h)(1)(B) or 403(b) of the Code.
(2) For years beginning after December 31, 1988, and prior to
January 1, 1994, the annual Compensation of each Participant
taken into account for determining all benefits provided under
the Plan for any determination period shall not exceed
$200,000. This limitation shall be adjusted by the Secretary
at the same time and in the same manner as under Section
415(d) of the Code except that the dollar increase in effect
on January 1 of any calendar year is effective for plan years
beginning in such calendar year and the first adjustment to
the $200,000 limitation is effective on January 1, 1990. After
December 31, 1993, the annual Compensation of each Participant
taken into account for determining all benefits provided under
the Plan for any determination period shall not exceed
$150,000, or such other lesser amount as may be specified in
the Adoption Agreement. This limitation shall be adjusted by
the Secretary at the same time and in the same manner as under
Section 415(d) of the Code. If a Plan determines Compensation
on a period of time that contains fewer than 12 calendar
months, then the annual Compensation limit is an amount equal
to the annual Compensation limit for the calendar year in
which the Compensation period begins multiplied by a ratio
obtained by dividing the number of full months in the period
by 12.
In determining the Compensation of a Participant for purposes
of this limitation, the rules of Section 414(q)(6) of the Code
shall apply, except in applying such rules, the term "family"
shall include only the Spouse of the Participant and any
lineal descendants of the Participant who have not attained
age 19 before the close of the year. If, as a result of the
application of such rules the adjusted annual compensation
limitation is exceeded, then (except for purposes of
determining the portion of Compensation up to the integration
level if this Plan provides for permitted disparity), the
limitation shall be prorated among the affected individuals in
proportion to each such individual's Compensation as
determined under this Section prior to the application of this
limitation.
If compensation for any prior determination period is taken
into account in determining an Employee's allocations or
benefits for the current determination period, the
compensation for such prior year is subject to the applicable
annual compensation limit in effect for that prior year. For
this purpose, for years beginning before January 1, 1990, the
applicable compensation limit is $200,000. In addition, in
determining allocations in plan years beginning on or after
January 1, 1994, the annual compensation limit in effect for
determination periods beginning before that date is $150,000.
(I) Disability: The inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve (12) months. The permanence and degree of such
impairment shall be supported by medical evidence. The Employer
shall determine the existence of a Disability based on its current
disability policy, applied on a uniform and nondiscriminatory basis.
(J) Earned Income:The net earnings from self-employment in the trade or
business with respect to which the Plan is established, for which
personal services of the individual are a material income-producing
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factor. Net earnings will be determined without regard to items not
included in gross income and the deductions allocable to such items.
Net earnings are reduced by contributions by the Employer to a
qualified Plan to the extent deductible under Section 404 of
the Code. Net earnings shall be determined with regard to the
deduction allowed to the taxpayer by Section 164(f) of the Code for
taxable years beginning after December 31, 1989.
(K) Early Retirement Date: The date specified in the Adoption Agreement
at which a participating Employee may receive an early retirement
benefit.
(L) Effective Date: The date specified in the Adoption Agreement which
shall be the effective date of the provisions of this Plan, unless
modified in Item B(18) of the Adoption Agreement. If the Plan is a
restatement of an existing Plan, the original effective date of the
Plan shall be as specified in the Adoption Agreement.
(M) Eligible Employee: Any Employee who is eligible to receive an
Employer contribution (including forfeitures), as defined in Item
B(6) of the Adoption Agreement.
(N) Eligibility Computation Period: For purposes of determining Years of
Service and Breaks in Service for purposes of eligibility, the
initial Eligibility Computation Period is the 12-consecutive month
period beginning on the Employee's Employment Commencement Date.
(1) For plans in which the Eligibility Computation Periods
commence on the 12-consecutive month anniversary of the
Employee's Employment Commencement Date, the succeeding
12-consecutive month periods commence with the first
anniversary of the Employee's Employment Commencement Date.
(2) For plans in which the Eligibility Computation Period shifts
to the Plan Year, the succeeding 12-consecutive month periods
commence with the first Plan Year which commences prior to the
first anniversary of the Employee's Employment Commencement
Date regardless of whether the Employee is entitled to be
credited with number of Hours of Service specified in the
Adoption Agreement during the initial Eligibility Computation
Period. An Employee who is credited with number of Hours of
Service specified in the Adoption Agreement in both the
initial Eligibility Computation Period and the first Plan Year
which commences prior to the first anniversary of the
Employee's initial Eligibility Computation Period will be
credited with two Years of Service for purposes of eligibility
to participate.
Years of Service and Breaks in Service will be measured on the
same Eligibility Computation Period.
(3) Notwithstanding any other provisions of this section, if the
elapsed time method of crediting service is elected in the
Adoption Agreement for purposes of eligibility, an Employee
will receive credit for the aggregate of all time periods
completed (as may be elected in the Adoption Agreement)
beginning with the Employee's Employment Commencement Date or
Reemployment Commencement Date and ending on the date a Break
In Service begins. The Employee will receive credit for any
Period of Severance of less than 12 consecutive months.
(O) Employee: Any employee, including any Self Employed Individual, of
the Employer maintaining the Plan or of any other employer required
to be aggregated with such Employer under Sections 414(b), (c), (m)
or (o) of the Code.
The term Employee shall also include any Leased Employee deemed to
be an Employee of any Employer described in the previous paragraph
as provided in Sections 414(n) or (o) of the Code.
(P) Employer: The Employer specified in the Adoption Agreement and any
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successor to the business of the Employer establishing the Plan,
which shall be the Plan Administrator for purposes of Section 3(16)
of ERISA, a Named Fiduciary as defined in ERISA, and which may
delegate all or any part of its powers, duties and authorities in
such capacity without ceasing to be such Plan Administrator.
(Q) Employment Commencement Date: The date on which an Employee first
performs an Hour of Service for the Employer.
(R) Entry Date: The date selected by the Employer in Item B(6)(d) of the
Adoption Agreement, which shall be:
(1) The Effective Date of the Plan, for any Employee who has
satisfied the eligibility requirements set forth in the
Adoption Agreement;
(2) The first day of the month which coincides with or immediately
follows the date on which the Employee satisfies the
eligibility requirements set forth in the Adoption Agreement;
(3) The first day of the Plan Year or the fourth, seventh, or
tenth month of the Plan Year which coincides with or
immediately follows the date on which the Employee satisfies
such eligibility requirements;
(4) The first day of the Plan Year or the seventh month of the
Plan Year which coincides with or immediately follows the date
on which the Employee satisfies such eligibility requirements;
(5) The first day of the Plan Year, but only if the eligibility
service requirements specified in Item B(6)(d) are six months
or less; or,
(6) As soon as practicable after the Employee satisfies such
eligibility requirements specified in the Adoption Agreement,
but in no event beyond the date which would be six months
following the date on which the Employee first completes the
eligibility requirements specified in the Adoption Agreement.
(S) ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
(T) Highly Compensated Employee: The term Highly Compensated Employee
includes highly compensated active employees and highly compensated
former employees.
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 receive 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.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve-month period immediately
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preceding the determination year. A highly compensated former
employee includes any Employee who separated from service (or was
deemed to have separated) prior to the determination year, performs
no service for the Employer during 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 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 descendants of the employee or former employee
and the spouses of such lineal ascendants and descendants.
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identity of Employees in the
top-paid group, the top 100 Employees, the number of Employees
treated as officers and the Compensation that is considered, will be
made in accordance with Section 414(q) of the Code and the
regulations thereunder.
(U) Hour of Service:
(1) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer. These
hours shall be credited to the Employee for the computation
period in which the duties are performed; and
(2) Each hour 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. No more than
501 Hours of Service shall be credited under this paragraph
for any single continuous period (whether or not such period
occurs in a single computation period). Hours under this
paragraph shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations which are
incorporated herein by reference; and
(3) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The
same Hours of Service shall not be credited both under
subparagraph (1) or subparagraph (2), as the case may be, and
under this subparagraph (3). These hours shall be credited to
the Employee for the computation period or periods to which
the award or agreement pertains rather than for the
computation period in which the award, agreement or payment is
made.
Hours of Service will be credited for employment with other
members of an affiliated service group (under Section 414(m)),
a controlled group of corporations (under Section 414(b)), or
a group of trades or businesses under common control (under
Section 414(c)) of which the adopting Employer is a member,
and any other entity required to be aggregated with the
Employer pursuant to Section 414(o).
Hours of Service will also be credited for any individual
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considered an Employee for purposes of this Plan under
Sections 414(n) or 414(o).
(4) Where the Employer maintains the Plan of a predecessor
employer, service for such predecessor employer shall be
treated as service for the Employer. If the Employer does not
maintain the Plan of a predecessor employer, the Plan does not
credit service with the predecessor employer, unless the
Employer identifies the predecessor in its Adoption Agreement
and specifies the purposes for which the Plan will credit
service with that predecessor employer.
(5) Solely for purposes of determining whether a Break-in-Service,
as defined in Section 1.1(E), for participation and vesting
purposes has occurred in a computation period, an individual
who is absent from work for maternity or paternity reasons
shall receive credit for the Hours of Service which would
otherwise have been credited to such individual but for such
absence, or in any case in which such hours cannot be
determined, 8 Hours of Service per day of such absence. For
purposes of this paragraph, an absence from work for maternity
or paternity reasons means an absence (1) by reason of the
pregnancy of the individual, (2) by reason of a birth of a
child of the individual, (3) by reason of the placement of a
child with the individual in connection with the adoption of
such child by such individual, or (4) for purposes of caring
for such child for a period beginning immediately following
such birth or placement. The Hours of Service credited under
this paragraph shall be 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.
(6) Hours of Service will be determined on the basis of the method
selected in the Adoption Agreement.
(V) Investment Fund: One of the funds provided for in Section 10.7, and
as selected by the Employer, as a Named Fiduciary, on the Investment
Fund Designation portion of the Adoption Agreement.
(W) 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 employer.
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 nonintegrated 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, Section 402(e)(3),
Section 402(h)(1)(B) or Section 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
nonhighly compensated workforce.
(X) Net Profits: Current and accumulated earnings of the Employer before
Federal and state taxes and contributions to this and any other
qualified Plan, determined by the Employer in accordance with
generally accepted accounting principles.
(Y) Nonhighly Compensated Employee: An Employee of the Employer who is
neither a Highly Compensated Employee nor a Family Member.
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(Z) Normal Retirement Date: The date specified in the Adoption Agreement
at which a participant shall become fully vested in his account
balances, as provided for in this document.
(AA) Owner-Employee: An individual who is a sole proprietor, or who is a
partner owning more than 10 percent of either the capital or profits
interest of the partnership.
(BB) Paired Plans: The Employer has adopted Plan #001 and Plan #003,
both using this basic Plan document, which constitutes a set of
"paired plans" as defined by the Internal Revenue Service in Revenue
Procedure 89-9, or any successor thereto.
(CC) Participant: A person who becomes eligible to participate in
accordance with the provisions of Article II, and whose
participation has not been terminated.
(DD) Permitted Disparity Level: The level selected in the Adoption
Agreement, not to exceed the Taxable Wage Base in effect at the
beginning of the Plan Year. The Taxable Wage Base is the
contribution and benefit base under section 230 of the Social
Security Act at the beginning of the year.
(EE) Period of Service: The period beginning on the Employee's Employment
Commencement Date or Reemployment Commencement Date, and ending on
the date a Period of Severance begins. The Employee will receive
credit for any Period of Service of less than 12 consecutive months.
Fractional periods of a year will be expressed in days.
(FF) Period of Severance: A continuous period of time during which the
Employee is not employed by the Employer. A Period of Severance
begins on the date the Employee retires, quits, or is discharged or
dies, or if earlier, the twelve month anniversary of the date on
which the Employee was first absent from work for any other reason;
provided, that if an Employee is absent from work for any other
reason and retires, quits, is discharged, or dies within 12 months,
the Period of Severance begins on the day the Employee quits,
retires, is discharged, or dies.
(GG) Plan: This Plan established by the Employer as embodied in this
agreement and in the Adoption Agreement, and all subsequent
amendments thereto.
(HH) Plan Year: The 12-consecutive month period designated by the
Employer in the Adoption Agreement. In the event that the original
Effective Date is not the first day of the Plan Year, the first Plan
Year shall be a short Plan Year, beginning on the original Effective
Date, and ending on the last day of the Plan Year as specified in
the Adoption Agreement.
(II) Qualified Distribution Date: For purposes of Section 7.13, the
Qualified Distribution Date, if selected in the Adoption Agreement,
shall be the earliest retirement date specified in Code Section
414(p) and shall operate to allow a distribution to an Alternate
Payee at the time a domestic relations order is determined to be
qualified.
(JJ) Reemployment Commencement Date: The date on which an Employee
completes an Hour of Service with the Employer after a Break In
Service or a Period of Severance.
(KK) Related Employers: Any employer related to the Employer as a
controlled group of corporations (as defined in Section 414(b of
the Code), a group of trades or businesses (whether or not
incorporated) which are under common control (as defined in Section
414(c)) or an affiliated service group (as defined in Section 414(m)
or in Section 414(o) of the Code). If the Employer is a member of a
related group, the term "Employer" includes the related group
members for purposes of crediting Hours of Service, determining
Years of Service and Breaks in Service
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under Article II, applying participation and coverage testing,
applying the limitations on allocations in Section 6.6, applying the
top heavy rules and the minimum allocation requirements of Article
IX, the definitions of Employee,Highly Compensated Employee,
Compensation and Leased Employee, and for any other purpose required
by the applicable Code section or by a Plan provision. However, an
Employer may contribute to the Plan only by signing the Adoption
Agreement or a Participation Agreement to the Employer's Adoption
Agreement. If one or more of the Employer's related group members
become Participating Employers by executing a Participation
Agreement to the Employer's Adoption Agreement, the term "Employer"
includes the participating related group members for all purposes of
the Plan, and "Plan Administrator" means the Employer that is the
signatory to the Adoption Agreement.
If the Employer's Plan is a standardized Plan, all Employees of the
Employer or of any member of the Employer's related group, are
eligible to participate in the Plan, irrespective of whether the
related group member directly employing the Employee is a
Participating Employer. If the Employer's Plan is a nonstandardized
Plan, the Employer must specify in Item B(5) of its Adoption
Agreement, whether the Employees of related group members that are
not Participating Employers are eligible to participate in the Plan.
Under a nonstandardized Plan, the Employer may elect to exclude from
the definition of "Compensation" for allocation purposes any
Compensation received from a related employer that has not executed
a Participation Agreement and whose Employees are not eligible to
participate in the Plan.
(LL) Self-employed Individual: An individual who has Earned Income for
the taxable year from the trade or business for which the Plan is
established; also, an individual who would have had Earned Income
but for the fact that the trade or business had no Net Profits for
the taxable year.
(MM) Spouse: The person to whom the Participant is legally married at the
relevant time. Notwithstanding the foregoing, if selected in the
Adoption Agreement, Spouse shall only refer to an individual to whom
a Participant has been married to for a period of at least one year,
ending at the relevant time.
(NN) Stockholder-Employee: An employee or officer of an electing small
business (Subchapter S) corporation who owns (or is considered as
owning within the meaning of Section 318(a)(1) of the Code), on any
day during the taxable year of such corporation, more than 5% of the
outstanding stock of the corporation.
(OO) Termination Date: The date on which a Participant's employment is
terminated as provided in Section 5.1.
(PP) Trustee: The entity specified in Item B(17) of the Adoption
Agreement, which shall be any bank or trust company which is
affiliated with KeyCorp. within the meaning of Section 1504 of the
Code, each of which with full trust powers, and its successors by
merger or reorganization.
(QQ) Trust Fund: All assets held under the Plan by the Trustee.
(RR) Valuation Date. The date on which the assets of the Trust shall be
valued, as provided for herein, with earning or losses since the
previous Valuation Date being credited,as appropriate to Participant
accounts. Notwithstanding anything to the contrary in the Plan, the
Valuation date shall be each business day that the Trustee and the
New York Stock Exchange are each open for business, provided,
however, that the Trustee shall not be obligated to value the Trust
in the event, through circumstances beyond its control, appropriate
prices may not be obtained for the assets held in the Investment
Funds.
(SS) Vesting Computation Period. The Vesting Computation Period shall be
the 12-consecutive month period selected by the Employer in the
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Adoption Agreement.
(TT) Year of Participation: For purposes of vesting, a twelve (12) month
period in which an Employee has a balance in an account established
under a 401(k)/401(m) arrangement regardless of whether the Employee
is currently making contributions under the arrangement.
(UU) Year of Service: (i) If the elapsed time method of crediting service
is elected in the Adoption Agreement, a Year of Service will mean a
one-year Period of Service. If the actual hours method of crediting
service is elected in the Adoption Agreement, a Year of Service will
mean a 12-consecutive month period as specified in the Adoption
Agreement during which the Employee completes the number of Hours of
Service (not to exceed 1000) specified in the Adoption Agreement.
1.2 Gender and Number. Unless the context indicates otherwise, the masculine
shall include the feminine, and the use of any words herein in the
singular shall include the plural and vice versa.
1.3 Control of Trades or Businesses by Owner-Employee. If this Plan provides
contributions or benefits for one or more Owner-Employees who control both
the business for which this Plan is established and one or more other
trades or businesses, this Plan and the Plan established for other trades
or businesses must, when looked at as a single Plan, satisfy Sections
401(a) and (d) for the employees of this and all other trades or
businesses.
If the Plan provides contributions or benefits for one or more
Owner-Employees who control one or more other trades or businesses, the
employees of the other trades or businesses must be included in a Plan
which satisfies Sections 401(a) and (d) and which provides contributions
and benefits not less favorable than provided for Owner-Employees under
this Plan.
If an individual is covered as an Owner-Employee under the plans of two or
more trades or businesses which are not controlled and the individual
controls a trade or business, then the contributions or benefits of the
employees under the Plan of the trades or businesses which are controlled
must be as favorable as those provided for him under the most favorable
Plan of the trade or business which is not controlled.
For purposes of the preceding paragraphs, an Owner-Employee, or two or
more Owner-Employees, will be considered to control a trade or business if
the Owner-Employee, or two or more Owner-Employees together:
(1) Own the entire interest in an unincorporated trade or business, or
(2) In the case of a partnership, own more than 50 percent of either
capital interest or the profits interest in the partnership.
For purposes of the preceding sentence, an Owner-Employee, or two or
more Owner-Employees shall be treated as owning any interest in a
partnership which is owned, directly or indirectly, by a partnership
which such Owner-Employee, or such two or more Owner-Employees, are
considered to control within the meaning of the preceding sentence.
ARTICLE II
ELIGIBILITY AND VESTING
2.1 Eligibility.
(A) Participation. Every Employee who meets the eligibility requirements
specified by the Employer in the Adoption Agreement shall become
eligible to commence participation in this Plan.
(B) Commencement of Participation.
(1) For purposes of Money Purchase Pension Plans, Profit Sharing
Plans and 401(k) Plans with Profit Sharing Contributions, each
Eligible Employee shall commence participation on the Entry
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Date.
(2) For purposes of 401(k) and 401(m) arrangements, an Eligible
Employee may, but is not required to, enroll as a Participant
as of the Entry Date on which such Employee is initially
eligible by filing with the Committee before such date, an
enrollment form prescribed by the Committee. The time period
for filing an enrollment form shall be determined by the
Committee. The form shall include an authorization and request
to the Employer to deduct from such Participant's Compensation
in each pay period the designated After Tax Contributions,
and/or to reduce such Participant's Compensation in each pay
period by the amount of the designated Before Tax
Contributions.
(C) Years of Service Counted Towards Eligibility. All Years of Service
with the Employer are counted toward eligibility except the
following:
(1) In a Plan which (a) requires an Employee to complete more than
one Year of Service as an eligibility requirement and (b)
provides immediate 100% vesting in a Participant's Employer
Contribution Account after not more than two (2) Years of
Service, if an Employee has a 1-year Break in Service before
satisfying the Plan's requirement for eligibility, service
before such break will not be taken into account.
(2) In the case of a Participant who does not have any
nonforfeitable right to the account balance derived from
Employer contributions, Years of Service before a period of
consecutive 1-year Breaks in Service will not be taken into
account in computing eligibility service if the number of
consecutive 1-year Breaks in Service in such period equals or
exceeds the greater of 5 or the aggregate number of Years of
Service. Such aggregate number of Years of Service will not
include any Years of Service disregarded under the preceding
sentence by reason of prior Breaks in Service.
(3) If a Participant's Years of Service are disregarded pursuant
to the preceding paragraph, such Participant will be treated
as a new Employee for eligibility purposes. If a Participant's
Years of Service may not be disregarded pursuant to the
preceding paragraph, such Participant shall continue to
participate in the Plan, or, if terminated, shall participate
immediately upon reemployment.
(D) Eligibility Break in Service, One Year Hold-Out Rule. If the Plan is
a nonstandardized Plan, then:
(1) In the case of any Participant who has a 1-year Break in
Service or Severance, years of eligibility service before such
break will not be taken into account until the Employee has
completed a Year of Service after returning to employment.
(2) For plans in which the eligibility computation is measured
with reference to the Employment Commencement Date, such Year
of Service will be measured beginning on the Employee's
Reemployment Commencement Date and, if necessary, subsequent
12-consecutive month periods beginning on anniversaries of the
Reemployment Commencement Date.
(3) For plans which shift the Eligibility Computation Period to
the Plan Year, such Year of Service will be measured by the
12-consecutive month period beginning on the Employee's
Reemployment Commencement Date and, if necessary, Plan Years
beginning with the Plan Year which includes the first
anniversary of the Reemployment Commencement Date.
(4) If a Participant completes a Year of Service in accordance
with this provision, his or her participation will be
reinstated as a Participant as of the Reemployment
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Commencement Date.
(E) Participation Upon Return to Eligible Class.
(1) In the event a Participant is no longer a member of an
eligible class of Employees and becomes ineligible to
participate but has not incurred a Break In Service, such
Employee shall participate immediately upon returning to an
eligible class of Employees. If such Participant incurs a
Break In Service eligibility will be determined under the
Break in Service rules of the Plan.
(2) In the event an Employee who is not a member of an eligible
class of Employees becomes a member of an eligible class, such
Employee will participate immediately if such Employee has
satisfied the minimum age and service requirements and would
have otherwise previously become a Participant.
2.2 Vesting.
(A) Vesting Schedule. In the case of an Employee who terminates
participation under this Plan for any reason other than death,
Disability, or employment at the Normal Retirement Date, such
Participant, as of the last day of his participation under this
Plan, shall have a vested interest in his Employer Contribution
Account pursuant to the formula specified by the Employer in the
Adoption Agreement.
(B) Vesting Upon Normal Retirement Date. Notwithstanding the vesting
schedule elected by the Employer in Items B(7)(a) or C(4)(d) of the
Adoption Agreement, an Employee's right to his or her Employer
Contribution balance shall be nonforfeitable at the Employee's
Normal Retirement Date.
(C) Vesting Break in Service - 1 Year Holdout. In the case of any
Participant who has incurred a 1-year Break in Service, Years of
Service before such break will not be taken into account until the
Participant has completed a Year of Service after such Break in
Service.
(D) Vesting for Pre-Break and Post-Break Account. In the case of a
Participant who has 5 or more consecutive 1-year Breaks in Service,
all service after such Breaks in Service will be disregarded for the
purpose of vesting the employer-derived account balance that accrued
before such Breaks in Service. Such Participant's pre-break service
will count in vesting the post-break employer-derived account
balance only if either:
(1) such Participant has any nonforfeitable interest in the
account balance attributable to employer contributions at the
time of separation from service; or
(2) upon returning to service the number of consecutive 1-year
Breaks in Service is less than the number of Years of Service.
Separate accounts will be maintained for the Participant's
pre-break and post-break Employer Contribution Account
balance. Both accounts will share in the earnings and losses
of the Trust Fund.
(E) Amendment of Vesting Schedule. If the Plan's vesting schedule is
amended, or the Plan is amended in any way that directly or
indirectly affects the computation of the Participant's
nonforfeitable 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 three (3) Years of Service with the
Employer may elect within a reasonable period after the adoption of
the amendment or change, to have the nonforfeitable percentage
computed under this Plan without regard to such amendment or change.
For Participants who do not have at least 1 Hour of Service in any
Plan Year beginning after December 31, 1988, the preceding sentence
shall be applied by substituting "5
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Years of Service" for "3 Years of Service" where such language
appears.
This period during which the election may be made shall commence
with the date the amendment is adopted or deemed to be made and
shall end on the latest of:
(1) Sixty (60) days after the amendment is adopted;
(2) Sixty (60) days after the amendment becomes effective; or
(3) Sixty (60) days after the Participant is issued written
notice of the amendment by the Employer or Committee.
(F) Amendment Affecting Vested and/or Accrued Benefits. No amendment to
the Plan shall be effective to the extent that it has the effect of
decreasing a Participant's accrued benefit. Notwithstanding the
preceding sentence, a Participant's account balance may be reduced
to the extent permitted under Section 412(c)(8) of the Code. For
purposes of this paragraph, a Plan amendment which has the effect of
decreasing a Participant's account balance or eliminating an
optional form of benefit, with respect to benefits attributable to
service before the amendment shall be treated as reducing an accrued
benefit. Furthermore,if the vesting schedule of a Plan is amended,
in the case of an Employee who is a Participant as of the later of
the date such amendment is adopted or the date it becomes effective,
the nonforfeitable percentage (determined as of such date) of such
Employee's Employer-derived accrued benefit will not be less than
the percentage computed under the Plan without regard to such
amendment.
ARTICLE III
CODE 401(k) AND CODE 401(m) ARRANGEMENTS
3.1 Provision Relating to Both Before Tax Contributions and After Tax
Contributions.
(A) Definitions: The following definitions are applicable to this
Article of the Plan.
(1) Actual Deferral Percentage or ADP: for a specified group of
Participants for a Plan Year, the average of the ratios
(calculated separately for each Participant in such group) of
(1) the amount of Employer contributions actually paid over to
the trust on behalf of such Participant for the Plan Year to
(2) the Participant's Compensation for such Plan Year (whether
or not the Employee was a Participant for the entire Plan
Year, but limited to that portion of the Plan Year in which
the Employee was an Eligible Participant if the Employer so
elects for such Plan Year to so limit Compensation for all
Eligible Employees). Employer contributions on behalf of any
Participant shall include (1) any Before Tax Contributions
made pursuant to the Participant's deferral election,
including Excess Before Tax Contributions, but excluding
Before Tax Contributions that are taken into account in the
Contribution Percentage test (provided the ADP test is
satisfied both with and without exclusion of these Before Tax
Contributions); and (2) at the election of the Employer,
Qualified Non-elective Contributions and Qualified Matching
Contributions. For purposes of computing Actual Deferral
Percentages, an Employee who would be a Participant but for
the failure to make Before Tax Contributions shall be treated
as a participant on whose behalf no Before Tax Contributions
are made.
(2) After Tax Contributions ("Employee Contributions"): Any
contribution made to the Plan by or on behalf of a Participant
that is included in the Participant's gross income in the year
in which made and that is maintained under a separate account
to which earnings and losses are allocated.
(3) Aggregate Limit: The sum of (i) 125 percent of the greater of
the ADP of the Non-highly Compensated Employees for the Plan
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13
Year or the ACP of Non-highly Compensated Employees under the
Plan subject to Code Section 401(m) for the Plan Year
beginning with or within the Plan Year of the cash or deferred
arrangement and (ii) the lesser of 200% or two plus the lesser
of such ADP or ACP. "Lesser" is substituted for "greater" in
"(i)", above, and "greater" is substituted for "lesser" after
"two plus the" in "(ii)" if it would result in a larger
Aggregate Limit.
(4) Average Contribution Percentage or ACP: the average (expressed
as a percentage) of the Contribution Percentages of the
Eligible Participants in a group.
(5) Before Tax Contributions ("Elective Deferrals"): Employer
contributions made to the Plan at the election of the
Participant, in lieu of cash compensation, which shall include
contributions made pursuant to a salary reduction agreement or
other deferral mechanism. With respect to any taxable year, a
Participant's Before Tax Contributions are the sum of all
Employer contributions made on behalf of such Participant
pursuant to an election to defer under any qualified cash or
deferred arrangement as described in Section 401(k) of the
Code, any simplified employee pension cash or deferred
arrangement as described in Code Section 402(h)(1)(B), any
eligible deferred compensation Plan under Code Section 457,
any Plan as described under Code Section 457, any Plan as
described under Code Section 501(c)(18), and any Employer
contributions made on behalf of a Participant for the purchase
of an annuity contract under Code Section 403(b) pursuant to a
salary reduction agreement.
(6) Contribution Percentage: The ratio (expressed as a percentage)
of the Participant's Contribution Percentage Amounts to the
Participant's Compensation for the Plan Year (whether or not
the Employee was a Participant for the entire Plan Year, but
limited to that portion of the Plan Year in which the Employee
was an Eligible Participant if the Employer so elects for such
Plan Year to so limit Compensation for all Eligible
Employees).
(7) Contribution Percentage Amounts: The sum of the After Tax
Contributions, Matching Contributions, and Qualified Matching
Contributions (to the extent not taken into account for
purposes of the ADP test) made under the Plan on behalf of the
Participant for the Plan Year. Such Contribution Percentage
Amounts shall not include Matching Contributions that are
forfeited either to correct Excess Aggregate Contributions or
because the contributions to which they relate are Excess
Before Tax Contributions, Excess Contributions or Excess
Aggregate Contributions. If so elected in the Adoption
Agreement the Employer may include Qualified Non-elective
Contributions in the Contribution Percentage Amounts. The
Employer also may elect to use Before Tax Contributions in the
Contribution Percentage Amounts so long as the ADP test is met
before the Before Tax Contributions are used in the ACP test
and continues to be met following the exclusion of those
Before Tax Contributions that are used to meet the ACP test.
(8) Eligible Participant: Any Employee who is eligible to make an
After Tax Contribution or a Before Tax Contribution (if the
Employer takes such contributions into account in the
calculation of the Contribution Percentage), or to receive a
Matching Contribution (including forfeitures) or a Qualified
Matching Contribution. If an After Tax Contribution is
required as a condition of participation in the Plan, any
Employee who would be a Participant in the Plan if such
Employee made such a contribution shall be treated as an
eligible Employee on behalf of whom no After Tax Contributions
are made.
(9) Excess Aggregate Contributions: With respect to any Plan Year,
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the excess of:
(a) The aggregate Contribution Percentage Amounts taken into
account in computing the numerator of the Contribution
Percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over
(b) The maximum Contribution Percentage Amounts permitted by
the ACP test (determined by reducing contributions made
on behalf of Highly Compensated Employees in order of
their Contribution Percentages beginning with the
highest of such percentages).
Such determination shall be made after first determining
Excess Before Tax Contributions pursuant to Section
3.2(D) and (E) and then determining Excess Contributions
pursuant to section 3.2(F), (G) and (H).
(10) Excess Before Tax Contributions ("Excess Elective Deferrals"):
Those Before Tax Contributions that are includible in a
Participant's gross income under Section 402(g) of the Code to
the extent such Participant's Before Tax Contributions for a
taxable year exceed the dollar limitation under such Code
section. Excess Before Tax Contributions shall be treated as
Annual Additions under the Plan, unless such amounts are
distributed no later than the first April 15 following the
close of the Participants taxable year. Excess Before Tax
Contributions shall be adjusted for income or loss up to the
end of the taxable year of the Employee, and if elected in the
Adoption Agreement, for the income or loss attributable to the
period from the end of the Employee's taxable year to the date
of distribution (the "Gap Period"). The income or loss
allocable to Excess Before Tax Contributions is (1) the income
or loss allocable to the Participant's Before Tax Contribution
Account for the taxable year multiplied by a fraction, the
numerator of which is such Participant's Excess Before Tax
Contributions for the year and the denominator is the
Participant's account balance attributable to Before Tax
Contributions without regard to any income or loss occurring
during such taxable year plus, (2) if Gap Period income or
loss applies, ten percent of the amount determined under (1)
multiplied by the number of whole calendar months between the
end of the Participant's taxable year and the date of
distribution, counting the month of distribution if
distribution occurs after the 15th of such month.
(11) Excess Contributions: With respect to any Plan Year, the
excess of:
(a) The aggregate amount of Employer contributions actually
taken into account in computing the ADP of Highly
Compensated Employee for such Plan Year, over
(b) The maximum amount of such contributions permitted by
the ADP test (determined by reducing contributions made
on behalf of Highly Compensated Employee in order of the
ADPs, beginning with the highest of such percentages).
(12) Matching Contributions: An Employer contribution made to this
or any other defined contribution Plan on behalf of a
Participant on account of an After Tax Contribution made by
such Participant, or on account of a Participant's Before Tax
Contribution, under a Plan maintained by the Employer.
(13) Qualified Matching Contributions: Matching Contributions which
are subject to the distribution and nonforfeitability
requirements under Section 401(k) of the Code when made.
Qualified Matching Contributions shall be allocated, in the
discretion of Employer, to the accounts of all Employees, or
only to the accounts of Non-highly Compensated Employees.
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(14) Qualified Non-elective Contributions: Contributions (other
than Matching Contributions or Qualified Matching
Contributions) made by the Employer and allocated to
Participants' accounts that the Participants may not elect to
receive in cash until distributed from the Plan; that are
nonforfeitable when made; and that are distributable only in
accordance with the distribution provisions that are
applicable to Before Tax Contributions and Qualified Matching
Contributions. Qualified Non-elective Contributions shall be
allocated, in the discretion of Employer, to the accounts of
all Employees, or only to the accounts of Non-highly
Compensated Employees.
(B) Nonforfeitability and Vesting. The Participant's accrued benefits
derived from Before Tax Contributions and After Tax Contributions
are nonforfeitable and fully vested.
(C) Notice to Committee. The Committee shall set the time period during
which a Participant may provide written notice to increase, decrease
or terminate Before Tax Contributions and After Tax Contributions.
(D) Suspension After Receipt of Hardship Distribution. If the Employer
has elected in the Adoption Agreement to have the "safe harbor"
hardship rules apply, an Employee's Before Tax Contributions and
After Tax Contributions shall be suspended for twelve months after
the receipt by such Employee of a Hardship distribution (as defined
in Section 3.9) from this Plan or any other Plan maintained by the
Employer.
(E) Separate Accounts. Separate accounts for Before Tax Contributions
and After Tax Contributions will be maintained for each Participant.
Each account will be credited with the applicable contributions and
earnings thereon.
3.2 Before Tax Contributions. (Elective Deferrals).
(A) Allocation of Before Tax Contributions. If the Employer selects Item
C(2) in the Adoption Agreement, for each Plan Year the Employer will
contribute and allocate to each Participant's Before Tax
Contribution Account an amount equal to the amount of the
Participant's Before Tax Contributions. The provisions of the cash
or deferred arrangement may be made effective as of the first day of
the Plan Year in which the cash or deferred option is adopted,
however, under no circumstances may a salary reduction agreement or
other deferral mechanism be adopted retroactively. Before Tax
Contributions must be contributed and allocated to the Plan no later
than thirty (30) days after the close of the Plan Year for which the
contributions are deemed to be made, or such other time as provided
in applicable regulations under the Code.
(B) Before Tax Contributions Pursuant to a Salary Reduction Agreement.
To the extent provided in the Adoption Agreement, a Participant may
elect to have Before Tax Contributions made under this Plan. Before
Tax Contributions shall be continuing contributions through payroll
deduction made pursuant to a salary reduction agreement.
(1) Commencement of Before Tax Contributions. An Employee may
elect to commence Before Tax Contributions as of his or her
Entry Date as described in Section 2.1(B). Such election shall
not become effective before the Entry Date. Such election may
not be made retroactively.
(2) Modification and Termination of Before Tax Contributions. A
Participant's election to commence Before Tax Contributions
shall remain in effect until modified or terminated. A
Participant may increase or decrease his or her Before Tax
Contributions as of any date as selected by the Employer in
Item C(3) of the Adoption Agreement upon notice to the
Committee. A Participant may terminate his or her election to
make Before Tax Contributions as of the Participant's next
wage payment date upon notice to the Committee. Any
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Participant who terminates Before Tax Contributions may elect
to recommence making Before Tax Contributions as of the date
selected by the Employer in Item C(3) of the Adoption
Agreement following his or her suspension of contributions.
(C) Cash bonuses. If Item C(2)(c) of the Adoption Agreement is selected
a Participant may also enter into a salary reduction agreement
on cash bonuses that, directing that the amount of such salary
reduction be contributed to the Plan as a Before Tax Contribution,
or received by the Participant in cash. A Participant shall be
afforded a reasonable period to elect to defer amounts described
in this Section 3.2 to the Plan. Such election shall not become
effective before the Participant's Entry Date.
(D) Maximum Amount of Before Tax Contributions. A Participant's Before
Tax Contributions are subject to any limitations imposed in Item
C(2) of the Adoption Agreement, calculated on an annual basis, and
any further limitations under the Plan. No Participant shall be
permitted to have Before Tax Contributions made under this Plan, or
any other qualified Plan maintained by the Employer, during any
taxable year in excess of the dollar limitation contained in Code
Section 402(g) in effect at the beginning of such taxable year.
Furthermore, if an Employee receives a Hardship distribution (as
defined in Section 3.9, utilizing the "safe harbor" rules) from this
Plan or any other Plan maintained by the Employer, the Employee may
not make Before Tax Contributions for the Employee's taxable year
immediately following the taxable year of the Hardship distribution
in excess of the applicable limit under Section 402(g) of the Code
for such taxable year less the amount of the Employee's Before Tax
Contributions for the taxable year of the Hardship distribution.
(E) Distribution of Excess Before Tax Contributions. If a Participant
makes Before Tax Contributions to this Plan and to another Plan, and
the Participant has made Excess Before Tax Contributions to one or
more of the plans, the Participant may assign the amount of any such
Excess Before Tax Contributions among the plans under which such
Before Tax Contributions were made. The Participant may assign to
this Plan any Excess Before Tax Contributions made during a taxable
year of the Participant to this Plan by notifying the Committee on
or before the date specified in the Adoption Agreement of the amount
of the Excess Before Tax Contributions to be assigned to the Plan. A
Participant is deemed to notify the Committee of any Excess Before
Tax Contributions that arise by taking into account only those
Before Tax Contributions made under the Plan or Plans of this
Employer.
Notwithstanding any other provision of the Plan, Excess Before Tax
Contributions, plus any income and minus any loss allocable thereto,
shall be distributed no later than April 15 to any Participant to
whose account Excess Before Tax Contributions were assigned for the
preceding year and who claims Excess Before Tax Contributions for
such taxable year.
The Participant's claim shall be in writing; shall be submitted to
the Committee not later than the date elected in Item CC of the
Adoption Agreement; shall specify the amount of the Participant's
Excess Before Tax Contribution for the preceding calendar year; and
shall be accompanied by the Participant's written statement that if
such amounts are not distributed, such Excess Before Tax
Contributions, when added to amounts deferred under other plans or
arrangements described in Sections 401(k), 408(k), or 403(b) of the
Code, will exceed the limit imposed on the Participant by Section
402(g) of the Code for the year in which the deferral occurred.
(F) Actual Deferral Percentage. The ADP for Participants who are Highly
Compensated Employees for each Plan Year and the ADP for Non-highly
Compensated Employees for the same Plan Year must satisfy one of the
following tests:
(1) 1.25 Limit. The ADP for Participants who are Highly
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Compensated Employees for the Plan Year shall not exceed the
ADP for Participants who are Non-highly Compensated Employees
for the same Plan Year multiplied by 1.25; or
(2) 2.0 Limit. The ADP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 2.0, provided that the ADP for
Participants who are Highly Compensated Employees does not
exceed the ADP for Participants who are Non-highly Compensated
Employees by more than two (2) percentage points.
(3) Special Rules.
(a) The ADP for any Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to have
Before Tax Contributions (and Qualifie Non-elective
Contributions, or Qualified Matching Contributions, or
both,if treated as Elective Deferrals for purposes of
the ADP test) allocated to his or her accounts under two
or more arrangements described in Section 401(k) of the
Code, that are maintained by the Employer, shall be
determined as if such Before Tax Contributions (and, if
applicable, such Qualified Non-elective Contributions or
Qualified Matching Contributions, or both,) were made
under a single arrangement. If a Highly Compensated
Employee participates in two or more cash or deferred
arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same
calendar year shall be treated as a single arrangement.
(b) In the event that this Plan satisfies the requirements
of Sections 401(k), 401(a)(4), or 410(b) of the Code
only if aggregated with one or more other plans, or if
one or more other plans satisfy the requirements of such
Sections of the Code only if aggregated with this Plan,
then this section shall be applied by determining the
ADP of Employees as if all such plans were a single
Plan. For Plan Years beginning after December 31, 1989,
plans may be aggregated in order to satisfy Section
401(k) of the Code only if they have the same Plan Year.
(c) For purposes of determining the ADP of a Participant who
is a 5-percent owner or one of the ten most highly-paid
Highly Compensated Employees, the Before Tax
Contributions (and Qualified Non-elective Contributions
or Qualified Matching Contributions, or both, if treated
as Before Tax Contributions for purposes of the ADP
test) and Compensation of such Participant shall include
the Before TaxContributions (and if applicable,
Qualified Non-elective Contributions) and Compensation
for the Plan Year of Family Members (as defined in
Section 414(q)(6) of the Code). Family Members, with
respect to such Highly Compensated Employees, shall be
disregarded as separate employees in determining the ADP
both for Participants who are Non-highly Compensated
Employees and for Participants who are Highly
Compensated Employees.
(d) For purposes of determining the ADP test, Before Tax
Contributions if treated as Before Tax Contributions and
Qualified Non-elective Contributions must be made before
the last day of the twelve-month period immediately
following the Plan Year to which contributions relate.
(e) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the amount
of Qualified Non-elective Contributions used in such
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test.
(f) The determination and treatment of the ADP amounts of
any Participant shall satisfy such other requirements as
may be prescribed by the Secretary of the Treasury.
(G) Distribution of Excess Contributions. Notwithstanding any other
provision of the Plan, Excess Contributions, plus any income and
minus any loss allocable thereto, shall be distributed no later than
the last day of each Plan Year to Participants to whose accounts
Excess Contributions were allocated for the preceding Plan Year. If
such excess amounts are distributed more than 2-1/2 months after the
last day of the Plan Year in which such excess amounts arose, a ten
(10) percent excise tax will be imposed on the Employer maintaining
the Plan with respect to such amounts. Such distributions shall be
made to Highly Compensated Employee on the basis of the respective
portions of the Excess Contribution attributable to each of such
Employees. Excess Contributions of Participants who are subject to
the Family Member aggregation rules shall be allocated among the
Family Members in proportion to the Before Tax Contributions(and
amounts treated as Before Tax Contributions) of each Family Member
that is combined to determine the combined ADP.
Excess Contributions (including the amounts recharacterized) shall
be treated as Annual Additions under the Plan.
(1) Determination of Income or Loss. The Excess Contributions
shall be adjusted for income or loss up to the date of
distribution. The income or loss allocable to Excess
Contributions is (1) the income or loss allocable to the
Participant's Before Tax Contribution Account (and, if
applicable, the Qualified Non-elective Contribution Account or
the Qualified Matching Contribution Account or both)
multiplied by a fraction, the numerator of which is such
Participant's Excess Contribution for the year and the
denominator is the Participant's account balance attributable
to Before Tax Contributions (and Qualified Non-Elective
Contributions or Qualified Matching Contributions or both, if
any of such contributions are included in the ADP test)
without regard to any income or loss occurring during such
taxable year, plus, (2) if Gap Period income or loss applies,
as elected in the Adoption Agreement, ten percent of the
amount determined under (1) multiplied by the number of whole
calendar months between the end of the Plan Year and the date
of distribution, counting the month of distribution if
distribution occurs after the 15th of such month.
(2) Accounting for Excess Contributions. Excess Contributions
shall be distributed from the Participant's Before Tax
Contribution Account and Qualified Matching Contribution
Account (if applicable) in proportion to the Participant's
Before Tax Contributions and Qualified Matching Contributions
(to the extent used in the ADP test) for the Plan Year. Excess
Contributions shall be distributed from the participant's
Qualified Non-elective Contribution Account only to the extent
that such Excess Contributions exceed the balance in the
Participant's Before Tax Contribution Account.
(H) Recharacterization. If the Plan permits After Tax Contributions
(Employee Contributions), Excess Contributions may be
recharacterized pursuant to this subsection. Recharacterized amounts
may be used in the Plan from which Excess Contributions arose or in
another Plan of the employer with the same Plan Year.
(1) Treatment of Amounts Recharacterized. A Participant may treat
his or her Excess Contributions as an amount distributed to
the Participant and then contributed by the Participant to the
Plan. Recharacterized amounts will remain nonforfeitable and
subject to the same distribution requirements as Before Tax
Contributions. Amounts may not be recharacterized by a Highly
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Compensated Employee to the extent that such amount in
combination with other After Tax Contributions made by that
Employee would exceed any stated limit under the Plan on After
Tax Contributions.
(2) Timing of Recharacterization. Recharacterization must occur no
later than two and one-half months after the last day of the
Plan Year in which such Excess Contributions arose and is
deemed to occur no earlier than the date the last Highly
Compensated Employee is informed in writing of the amount
recharacterized and the consequences thereof. Recharacterized
amounts will be taxable to the Participant for the
Participant's tax year in which the Participant would have
received them in cash.
(I) Adjustments to Before Tax Contribution Percentages. Anything to the
contrary in this Article III notwithstanding, the Committee shall
have the right to reduce the percentages designated pursuant to
Section 3.2(B), of any one or more Highly Compensated Employees in a
manner prescribed or approved by the Committee to the extent
necessary or convenient to ensure that at least one of the ADP tests
set forth in Section 3.2(F) is satisfied, but in no event shall such
reduction result in a percentage less than zero. An such reduction
shall be effected quarterly, or more frequently as the Committee may
determine and each affected Highly Compensated Employee shall be
deemed to have elected the permissible percentage determined by the
Committee. The Committee may, on a prospective basis, and subject to
the percentage limits of Section 3.3 below, treat amounts
contributed to the Plan pursuant to a salary reduction agreement as
After Tax Contributions by each affected Highly Compensated
Employee; provided that if any such reduction cannot be so treated
because of the said percentage limits or because of the
nondiscrimination requirements of Code Section 401(m) or otherwise,
then the amount of such reduction (and any income allocable thereto)
shall be distributed to each affected Highly Compensated Employee
pursuant to Code Section 401(k)(8)or Code Section 401(m)(6), if
applicable, not later than the close of the first 2-1/2 months of
the Plan Year following the Plan Year in which the contribution was
made.
3.3 After Tax Contributions. (Employee Contributions).
(A) Allocation of After Tax Contributions. If the Employer selects Item
C(2)(b) in the Adoption Agreement, the Employer will deduct from the
Participant's pay and allocate to each Participant's After Tax
Contribution Account an amount equal to the percentage of
Compensation authorized by the Participant as an After Tax
Contribution. The Employer shall transmit After Tax Contributions to
the Trustee within thirty (30) days after the month end in which
such deductions are made.
(B) Employee Authorizes After Tax Contributions. To the extent provided
in the Adoption Agreement, a Participant may elect to make After Tax
Contributions under the Plan.
(1) Election to Make After Tax Contributions. An Employee may
elect to make After Tax Contributions as of his or her Entry
Date as described in Section 2.1(B). Such election will not
become effective before the Entry Date.
(2) Modification and Termination of After Tax Contributions. A
Participant's election to commence After Tax Contributions
shall remain in effect until modified or terminated. A
Participant may increase or decrease his or her After Tax
Contributions as selected by the Employer in Item C(3) of the
Adoption Agreement upon written notice to the Committee. A
Participant may terminate his or her election to make After
Tax Contributions at any time as of the Participant's next
wage payment date upon written notice to the Committee. Any
Participant who terminates After Tax Contributions may elect
to recommence making After Tax Contributions as of the date
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selected by the Employer in Item C(3) of the Adoption
Agreement following his or her suspension of contributions.
(C) Maximum Amount of After Tax Contributions. A Participant's After Tax
Contributions are subject to any limitations imposed in Item C(3) of
the Adoption Agreement, calculated on an annual basis, and any
further limitations under the Plan.
(D) Cash Bonuses. If Item C(2)(c) of the Adoption Agreement is selected,
a Participant may also enter into a salary reduction agreement on
cash bonuses, directing that the amount of such salary reduction be
contributed to the Plan as an After Tax Contribution, or received by
the Participant in cash. A Participant shall be afforded a
reasonable period to elect to defer amounts described in this
Section 3.3 to the Plan. Such election shall not become effective
before the Participant's Entry Date.
3.4 Employer Contributions.
(A) Matching Contributions. If elected by the Employer in the Adoption
Agreement, the Employer will or may make Matching Contributions to
the Plan. The amount of such Matching Contributions shall be
calculated by reference to the Participants' Before Tax
Contributions and/or After Tax Contributions as specified by the
Employer in the Adoption Agreement.
(B) Qualified Matching Contributions. If elected by the Employer in the
Adoption Agreement, the Employer may make Qualified Matching
Contributions to the Plan.
In addition, in lieu of distributing Excess Contributions as
provided in Section 3.2(G) of the Plan, or Excess Aggregate
Contributions as provided in Section 3.5(C) of the Plan, the
Employer may make Qualified Matching Contributions on behalf of
Employees that are sufficient to satisfy either the Actual Deferral
Percentage or the Average Contribution Percentage test, or both,
pursuant to regulations under the Code.
(C) Qualified Non-elective Contributions. If elected by the Employer in
the Adoption Agreement, the Employer may make Qualified Non-elective
Contributions to the Plan.
In addition, in lieu of distributing Excess Contributions as
provided in Section 3.2(G) of the Plan, or Excess Aggregate
Contributions as provided in Section 3.5(C) of the Plan, the
Employer may make Qualified Non-elective Contributions on behalf of
Employees that are sufficient to satisfy either the Actual Deferral
Percentage or the Average Contribution Percentage test, or both,
pursuant to regulations under the Code.
(D) Separate Accounts. An Employer Matching Account shall be maintained
for a Participant's accrued benefit attributable to Matching
Contributions. A Qualified Matching Contribution Account shall be
maintained for a Participant's accrued benefit attributable to
Qualified Matching Contributions. A Qualified Non-elective
Contribution Account shall be maintained for a Participant's accrued
benefit attributable to Qualified Non-elective Contributions. Such
accounts shall be credited with the applicable contributions,
earnings and losses, distributions, and other adjustments.
(E) Vesting. Matching Contributions will be vested in accordance with
the Employer's election in Items C(4)(d) and C(4)(e) of the Adoption
Agreement. In any event, Matching Contributions shall be fully
vested at Normal Retirement Date, upon the complete or partial
termination of the Plan, or upon the complete discontinuance of
Matching Contributions, as applicable. Qualified Non-elective
Contributions and Qualified Matching Contributions are
nonforfeitable when made.
(F) Forfeitures. Forfeitures of Matching Contributions shall be used to
reduce such contributions, or shall be allocated to Participants, in
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accordance with the Employer's election in Item C(6) of the Adoption
Agreement.
(G) Allocation of Discretionary Matching Contributions. If he Employer
selects Item C(4)(b) in the Adoption Agreement, any discretionary
Matching Contributions shall be allocated as of the allocation date
specified in Item C(4)(c)(ii) of the Adoption Agreement, to the
Employer Matching Account of each Participant who has made Before
Tax Contributions and/or After Tax Contributions eligible for
matching. If Item C(4)(c)(ii)(e) has been selected (imposing a last
day of the Plan Year requirement) the allocation shall be made to a
Participant who (1)if a Participant in a nonstandardized Plan, is
employed or on leave of absence on the last day of the Plan Year,
and (2) if a Participant in a standardized Plan, either completes
more than 500 Hours of service during the Plan Year or is employed
on the last day of the Plan Year. The following Participants will
also share in the Matching Contributions for the year, if elected in
the Adoption Agreement: (1) Participants in a nonstandardized Plan
whose employment terminated before the end of the Plan Year because
of retirement, death, disability or as specified in the Adoption
Agreement, and (2) Participants in a standardized Plan whose
employment terminated before the end of the Plan Year because of
retirement, death, disability or as specified in the Adoption
Agreement,and completed 500 Hours of Service or less.
Notwithstanding the foregoing, if the Employer makes a contribution
prior to the end of the Plan Year, Participants shall be entitled to
an allocation of that contribution when made, without regard to any
end of the Plan Year requirement.
(H) Limitation on Employer Contributions. The Employer's contributions
for any Plan Year shall not exceed the maximum amount which the
Employer may deduct pursuant to Section 404 of the Code.
3.5 Limitations on After Tax Contributions(Employee Contributions)and Matching
Contributions.
(A) Contribution Percentage. The ACP for Participants who are Highly
Compensated Employees for each Plan Year and the ACP for
Participants who are Non-highly Compensated Employees for the same
Plan Year must satisfy one of the following tests:
(1) 1.25 Limit. The ACP for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the
ACP for Participants who are Non-highly Compensated Employees
for the same Plan Year by 1.25, or
(2) 2.0 Limit. The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by two (2), provided that the ACP
for Participants who are Highly Compensated Employees does not
exceed the ACP for Participants who are Non-highly Compensated
Employees by more than two (2) percentage points.
(B) Special Rules.
(1) Multiple Use. If one or more Highly Compensated Employees
participate in both a cash or deferred arrangement and a Plan
subject to the ACP test maintained by the Employer and the sum
of the ADP and ACP of those Highly Compensated Employees
subject to either or both tests exceeds the Aggregate Limit,
then the ACP of those Highly Compensated Employees who also
participate in a cash or deferred arrangement will be reduced
(beginning with such Highly Compensated Employee whose ACP is
the highest) so that the limit is not exceeded. The amount by
which each Highly Compensated Employee's Contribution
Percentage amounts is reduced shall be treated as an Excess
Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections
required to meet the ADP and ACP tests. Multiple use does not
occur if either the ADP and ACP of the Highly Compensated
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Employees does not exceed 1.25 multiplied by the ADP and ACP
of the Non-highly Compensated Employees.
(2) Aggregation of Contribution Percentages. For purposes of this
section, the Contribution Percentage for any Participant who
is a Highly Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his or her
accounts under two or more plans described in Section 401(a)
of the Code, or arrangements described in Section 401(k) of
the Code, that are maintained by the Employer, shall be
determined as if the total of such Contribution Percentage
Amounts was made under each Plan. If a Highly Compensated
Employee participates in two or more cash or deferred
arrangements that have different Plan years all cash or
deferred arrangements ending with or within the same calendar
year shall be treated as a single arrangement. Notwithstanding
the foregoing, certain plans shall be treated as separate if
mandated to be disaggregated under regulations under Section
401(m) of the Code.
(3) Aggregation of Plans. In the event that this Plan satisfies
the requirements of Sections 401(m), 401(a)(4) or 410(b) of
the Code only if aggregated with one or more other plans, or
if one or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan, then
this section shall be applied by determining the Contribution
Percentage of Employees as if all such plans were a single
Plan. For Plan Years beginning after December 31, 1989, plans
may be aggregated in order to satisfy Section 401(m) of the
Code only if they have the same Plan Year.
(4) Family Aggregation. For purposes of determining the
Contribution Percentage of a Participant who is a five-percent
owner or one of the ten most highly-paid Highly Compensated
Employees, the Contribution Percentage Amounts and
Compensation of such Employee shall include the Contribution
Percentage Amounts and Compensation for the Plan Year of
Family Members, as defined in Section 414(q)(6) of the Code.
Family Members, with respect to Highly Compensated Employees,
shall be disregarded as separate employees in determining the
Contribution Percentage both for Participants who are
Non-highly Compensated Employees and for Participants who are
Highly Compensated Employees.
(5) Time of Contributions. For purposes of determining the
Contribution Percentage test, After Tax Contributions are
considered to have been made in the Plan Year in which
contributed to the Trust. Matching Contributions and Qualified
Non-elective Contributions will be considered made for a Plan
Year if made no later than the end of the twelve-month period
beginning on the day after the close of the Plan Year.
(6) Records. The Employer shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the amount of
Qualified Non-elective Contributions or Qualified Matching
Contributions, or both, used in such test.
(7) Regulations. The determination and treatment of the
Contribution Percentage of any Participant shall satisfy such
other requirements as may be prescribed by the Secretary of
the Treasury.
(C) Distribution of Excess Aggregate Contributions.
(1) General Rule. Notwithstanding any other provision of this
Plan, Excess Aggregate Contributions, plus any income and
minus any loss allocable thereto, shall be forfeited, if
forfeitable, or if not forfeitable, distributed no later than
the last day of each Plan Year to Participants to whose
accounts Excess Aggregate Contributions were allocated for the
preceding Plan Year. Excess Aggregate Contributions of
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Participants who are subject to the Family Member aggregation
rules shall be allocated among the Family Members in
proportion to the After Tax and Matching Contributions (or
amounts treated as Matching Contributions) of each Family
Member that is combined to determine the combined ACP. If such
Excess Aggregate Contributions are distributed more than 2-1/2
months after the last day of the Plan Year in which such
excess amounts arose, a ten (10) percent excise tax will be
imposed on the Employer maintaining the Plan with respect to
those amounts. Excess Aggregate Contributions shall be treated
as Annual Additions under the Plan.
(2) Determination of Income or Loss. Excess Aggregate
Contributions shall be adjusted for income or loss up to the
date of distribution. The income or loss allocable to Excess
Aggregate Contributions is the sum of: (1) income or loss
allocable to the Participant's After Tax Contribution Account,
Matching Contribution Account, Qualified Matching Contribution
Account, (if any, and if all amounts therein are not used in
the ADP test) and, if applicable, the Qualified Non-elective
Contribution Account and Before Tax Contribution Account for
the Plan Year multiplied by a fraction, the numerator of which
is such Participant's Excess Aggregate Contributions for the
year and the denominator is the Participant's account
balance(s) attributable to Contribution Percentage Amounts
without regard to any income or loss occurring during such
Plan Year; and (2) ten percent of the amount determined under
(1) multiplied by the number of whole calendar months between
the end of the Plan Year and the date of distribution,
counting the month of distribution if distribution occurs
after the 15th of such month.
(3) Forfeitures of Excess Aggregate Contributions. Forfeitures of
Excess Aggregate Contributions may either be reallocated to
the accounts of Non-Highly Compensated Employees or applied to
reduce Employer Contributions, as elected by the Employer in
Item C(6)(c) of the Adoption Agreement.
(4) Accounting for Excess Aggregate Contributions. Excess
Aggregate Contributions shall be forfeited, if forfeitable, or
distributed on a pro-rata basis from the Participant's After
Tax Contribution Account and Matching Contribution Account and
Qualified Matching Contribution Account (and, if applicable,
the Participant's Qualified Non-elective Contribution Account
and Before Tax Contribution Account, or both).
3.6 Net Profits Not Required if So Elected in Adoption Agreement. If the
Employer elects, Matching Contributions may be made without regard to Net
Profits in accordance with Item C(4)(c)(iii) of the Adoption Agreement. If
the Plan is a profit-sharing Plan, the Plan shall continue to be designed
to qualify as a profit-sharing Plan for purposes of Sections 401(a), 402,
412, and 417 of the Code. Net Profits shall not be required for Before Tax
Contributions or After Tax Contributions to be made to the Plan.
3.7 Form, Payment and Allocation of Contributions. All contributions under
this Article III made for a Plan Year shall be made in cash, and shall be
delivered to the Trustee at such time or times as shall be agreed upon
between the Committee and the Trustee. The Committee shall instruct the
Trustee as to the allocation of contributions to the Participant's
accounts.
3.8 Distribution Requirements for Before Tax Contribution Account. Before Tax
Contributions, Qualified Non-elective Contributions and Qualified Matching
Contributions, and income allocable to each are not distributable to a
Participant or his or her Beneficiary or Beneficiaries, in accordance with
such Participant's, Beneficiary's or Beneficiaries' election, earlier than
upon separation from service, death, disability, or as selected in the
Adoption Agreement. Such amounts may not be distributed unless in
accordance with the Participant's election made pursuant to rules
established by the Committee as authorized in the Adoption Agreement, and
upon:
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(A) Termination of the Plan without the establishment of another defined
contribution Plan, other than an employee stock ownership Plan (as
defined in Section 4975(e) or Section 409 of the Code) or a
simplified employee pension Plan as defined in Section 408(k).
(B) The disposition by a corporation to an unrelated corporation of
substantially all of the assets (within the meaning of Section
409(d)(2) of the Code) used in a trade or business of such
corporation if such corporation continues to maintain this Plan
after the disposition, but only with respect to Employees who
continue employment with the corporation acquiring such assets.
(C) The disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary (within the meaning of
Section 409(d)(3) of the Code) if such corporation continues to
maintain this Plan, but only with respect to Employees who continue
employment with such subsidiary.
(D) The attainment of age 59-1/2 in the case of a profit-sharing Plan,
or the attainment of the Plan's Normal Retirement Date, if either or
both are selected in the Adoption Agreement.
(E) The Hardship of the Participant as described in Section 3.9, if
selected in the Adoption Agreement.
All distributions that may be made pursuant to one or more of the
foregoing distributable events are subject to the spousal and
Participant consent requirements (if applicable) contained in
Sections 411(a)(11) and 417 of the Code. In addition, distributions
after March 31, 1988, that are triggered by any of the first three
events above, in Sections 3.8(A), (B) and (C) must be made in a lump
sum.
3.9 Hardship Distribution.
(A) Amount Available for Withdrawal. Upon the written request of a
Participant received and approved by the Committee, a Participant
may withdraw, in cash, up to one hundred per cent (100%) of the
amount of such Participant's Before Tax Contributions (and any
earnings credited to a Participant's account as of the end of the
last Plan Year ending before July 1, 1989) or such lesser amount as
the Committee may approve, in the event of Hardship. For purposes of
this Section, Hardship is defined as immediate and heavy financial
need of the Employee where such Employee lacks other available
resources. Hardship distributions are subject to the spousal consent
requirements contained in Sections 411(a)(11) and 417 of the Code.
The Committee is authorized to and shall request from the
Participant making such a request such evidence as the Committee
deems necessary and appropriate to substantiate a Hardship, the
amount of expenses resulting from such Hardship and the other
resources of the Participant reasonably available to meet such
expenses.
(B) Special Rules:
(1) Immediate and Heavy Need. The following are the only financial
needs considered immediate and heavy: expenses incurred or
necessary for medical care, described in Section 213(d) of the
Code, of the Employee, the Employee's Spouse or dependents;
the purchase (excluding mortgage payments) of a principal
residence for the Employee; payment of tuition and related
educational fees for the next twelve months of post-secondary
education for the Employee, the Employee's Spouse, children or
dependents; or the need to prevent the eviction of the
Employee from, or a foreclosure on the mortgage of, the
Employee's principal residence.
(2) Satisfaction of Need. A distribution will be considered as
necessary to satisfy an immediate and heavy financial need of
the Employee only if:
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(a) The Employee has obtained all distributions, other than
Hardship distributions, and all nontaxable loans under
all plans maintained by the Employer;
(b) All plans maintained by the Employer provide that the
Employee's Before Tax Contributions (and After Tax
Contributions) will be suspended for twelve months after
the receipt of the Hardship distribution;
(c) The distribution is not in excess of an immediate and
heavy financial need (including amounts necessary to pay
any federal, state or local income taxes or penalties
reasonably anticipated to result from the distribution);
and
(d) All plans maintained by the Employer provide that the
Employee may not make Before Tax Contributions for the
Employee's taxable year immediately following the
taxable year of the Hardship distribution in excess of
the applicable limit under Section 402(g) of the Code
for such taxable year less the amount of such Employee's
Before Tax Contributions for the taxable year of the
Hardship distribution.
(3) Taxes and Penalties. The amount of an immediate and heavy
financial need may include any amounts necessary to pay any
federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution.
3.10 Withdrawal of After Tax Contributions. Subject to the provisions of the
Plan, in accordance with rules for giving notice as determined by the
Committee, a Participant may withdraw as of the first Accounting Date
subsequent to receipt by the Committee of such notice:
(A) Maximum Amount. An amount equal to not more than 100% o the
Participant's After Tax Contribution Account determined as of such
Accounting Date. No Participant who has made any withdrawal of After
Tax Contributions in the twelve (12) months preceding the giving of
such notice may make a withdrawal under this Section. A Participant
who makes a withdrawal of After Tax Contributions shall be required
to suspend After Tax Contributions for a period of six (6) months,
commencing with the effective date of such withdrawal. A Participant
may, pursuant to Article III, elect to commence After Tax
Contributions as of the first day of the first payroll period of the
month following the conclusion of such suspension period, or the
first payroll period of any month thereafter, upon advance written
notice to the Committee.
(B) Minimum Amount. Notwithstanding anything to the contrary in this
Section 3.10, any withdrawal made pursuant to Section 3.10(A) shall
be for a minimum whole dollar amount not less than Five Hundred
Dollars ($500.00); except that if the amount available for
withdrawal is less than Five Hundred Dollars ($500.00) then the
minimum amount of the withdrawal shall be the amount available.
(C) Forfeitures. No forfeitures will occur solely as a result of an
Employee's withdrawal of After Tax Contributions.
(D) Loan Security. Notwithstanding anything to the contrary in this
Section 3.10, a Participant may not make a withdrawal pursuant to
this Section of any portion of the Participants vested interest
which has been assigned to secure repayment of a loan in accordance
with Section 11.10, below, until such time as the Committee shall
have released said portion so assigned.
3.11. Withdrawal of Matching Contributions. Subject to the provisions of the
Plan, in accordance with rules for giving notice as determined by the
Committee, and as elected in the Adoption Agreement, a Participant may
withdraw as of the first Accounting Date subsequent to receipt by the
Committee of such notice:
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(A) Maximum Amount. An amount equal to not more than 100% of the vested
amounts in the Participant's Matching Contribution Account
determined as of such Accounting Date. No Participant who has made
any withdrawal of Matching Contributions in the twelve (12) months
preceding the giving of such notice may make a withdrawal under this
Section.
(B) Minimum Amount. Notwithstanding anything to the contrary in this
Section 3.11, any withdrawal made pursuant to Section 3.11(A) shall
be for a minimum whole dollar amount not less than Five Hundred
Dollars ($500.00); except that if the amount available for
withdrawal is less than Five Hundred Dollars ($500.00) then the
minimum amount of the withdrawal shall be the amount available.
(C) Forfeitures. No forfeitures will occur solely as a result of an
Employee's withdrawal of Matching Contributions.
(D) Loan Security. Notwithstanding anything to the contrary in this
Section 3.11, a Participant may not make a withdrawal, pursuant to
this Section of any portion of the Participant's vested interest
which has been assigned to secure repayment of a loan in accordance
with Section 11.10, below, until such time as the Committee shall
have released said portion so assigned.
ARTICLE IV
OTHER CONTRIBUTIONS
4.1 Employer Contributions.
(A) Money Purchase Pension Plans Only. As elected by the Employer in the
Adoption Agreement, the Employer shall make contributions to the
Plan.
(B) Profit Sharing Plans and 401(k) Plans Only.
(1) Employer Contributions. For each Plan Year, the Employer,
shall or may make contributions to the Plan in an amount as
selected in the Adoption Agreement or determined by Resolution
of the Board of Directors of the Employer.
(2) Net Profits Not Required if So Elected in Adoption Agreement.
If the Employer elects, Employer Contributions under a profit
sharing Plan may be made without regard to Net Profits in
accordance with Item B(8)(a)(iii) of the Adoption Agreement.
The Plan shall continue to be designed to qualify as a
profit-sharing Plan for purposes of Sections 401(a), 402, 412,
and 417 of the Code.
4.2 Separate Accounts. An Employer Contribution Account shall be maintained
for each Participant to which will be credited the employer pension or
profit sharing contributions ("Employer Contributions"). Such accounts
shall be credited with the applicable contributions, earnings and losses,
distributions, and other adjustments.
4.3 Vesting. Employer Contributions will be vested in accordance with the
Employer's election in Item B(7), as applicable, of the Adoption
Agreement. In any event, Employer Contributions shall be fully vested at
Normal Retirement Date, upon the complete or partial termination of the
Plan, and, in profit sharing plans, upon the complete discontinuance of
Employer Contributions.
4.4 Limitation on Employer Contributions. The Employer's Contribution for any
Plan Year shall not exceed the maximum amount which the Employer may
deduct pursuant to Section 404 of the Code. The Employer Contributions
shall be payable not later than the time for filing the Employer's federal
income tax return, including extensions.
4.5 Employee Contributions.
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(A) Distributions from Qualified Plans - Rollovers.
(1) If the Employer selects Item B(9) in the Adoption Agreement,
an Employee who is entitled to make a rollover contribution
described in Section 402(a)(5), Section 403(a)(4) or Section
408(d)(3) of the Code ("Rollover Contribution"), may elect,
with the approval of the Committee, to make such a Rollover
Contribution to the Plan. The Employee shall deliver or cause
to be delivered, to the Trustee the cash which constitutes
such Rollover Contribution at such time or times and in such
manner as shall be specified by the Committee. As of the date
of receipt of such property by the Trustee, a Rollover Account
shall be established in the name of the Employee who has made
a Rollover Contribution as provided in this Section 4.5 and
shall be credited with such assets on such date. A Rollover
Contribution shall not be deemed to be a contribution of such
Employee for any purpose of this Agreement. All Rollover
Contributions and the earnings on these contributions shall be
immediately fully vested and nonforfeitable.
(2) Subject to the provisions of the Plan, on advance notice given
to the Committee in accordance with rules established by the
Committee a Participant in a profit sharing Plan or 401(k)
profit sharing Plan may withdraw all or any part (in any whole
dollar amount specified by the Participant) of the value of
any Rollover Account, provided no Participant who has made any
withdrawal under Section 4.5(A) during the calendar year in
which such notice is given may make an additional withdrawal
under this Section 4.5(A) during the remainder of such year.
(B) Nondeductible Employee Contributions and Matching Contributions No
Longer Accepted.
(1) This Plan will not accept nondeductible employee contributions
and matching contributions except pursuant to a 401(m)
arrangement described in Article III. Employee contributions
for Plan Years beginning after December 31, 1986, together
with any matching contributions as defined in Section 401(m)
of the Code, will be limited so as to meet the
nondiscrimination test of Section 401(m).
(2) A separate account will be maintained by the Trustee for the
previously made nondeductible employee contributions of each
Participant.
(3) Employee contributions and earnings thereon will be
nonforfeitable at all times. No forfeitures will occur solely
as a result of an Employee's withdrawal of Employee
contributions.
(C) Deductible Employee Contributions No Longer Accepted. The Committee
will not accept deductible Employee contributions which are made
for a taxable year beginning after December 31, 1986. Contributions
made prior to that date will be maintained in a separate account
which will be nonforfeitable at all times. The account will share
in the gains and losses of the Trust Fund in the same manner as
described in Article VI of the Plan. No part of the deductible
voluntary contribution account will be used to purchase life
insurance. Subject to Section 7.10, Joint and survivor annuity
requirements (if applicable), the Participant may withdraw any part
of the deductible voluntary contribution account by making a
written application to the Committee.
4.6 Exclusive Benefit. Except as provided in the Plan, the Employer has no
beneficial interest in the Trust Fund, and no part of the Trust Fund shall
revert or be repaid to the Employer, directly or indirectly, or diverted
to purposes other than for the exclusive benefit of Participants and their
Beneficiaries, except that (1) any contribution made by the Employer
because of a mistake of fact must be returned to the Employer within one
year of the contribution; (2) in the event the deduction of a contribution
made by the Employer is disallowed under Section 404 of the Code, such
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contribution (to the extent disallowed) must be returned to the Employer
within one year of the disallowance of the deduction; and (3) in the event
that the Commissioner of Internal Revenue determines that the Plan is not
initially qualified under the Internal Revenue Code, any contribution made
incident to that initial qualification by the Employer must be returned to
the Employer within one year after the date the initial qualification is
denied, but only if the application for the qualification is made by the
time prescribed by law for filing the Employer's return for the taxable
year in which the Plan is adopted or such later date as the Secretary of
the Treasury may prescribe.
4.7 Form, Payment and Allocation of Contributions. Contributions made for a
Plan Year shall be made in cash; provided, however, that if the Plan has
an Employer Stock Fund, contributions for the Employer Stock Fund may be
made in Employer Stock. Contributions shall be delivered to the Trustee at
such time or times as shall be agreed upon between the Committee and the
Trustee. The Committee shall instruct the Trustee as to the allocation of
contributions to the Participant's accounts pursuant to the elections made
in the Adoption Agreement. Employer Stock contributed to the Plan shall be
valued at fair market value at the time of its transfer to the Plan.
4.8 Safe Harbor Allocation. Notwithstanding anything to the contrary in the
Adoption Agreement, in the event the requirements of Code Sections
401(a)(26) or 410(b) are not met during the Plan Year, Employer
Contributions will be allocated to Eligible Employees in the following
order until the applicable requirements are met:
(A) Eligible Employees employed by the Employer on the last day of the
Plan Year and who have completed more than 750 Hours of Service
during the Plan Year;
(B) Eligible Employees employed by the Employer on the last day of the
Plan Year and who have completed more than 500 but less than 750
Hours of Service during the Plan Year;
(C) Eligible Employees employed by the Employer on the last day of the
Plan Year and who have completed 500 or fewer Hours of Service
during the Plan Year;
(D) Eligible Employees who have completed 750 or more Hours of Service
during the Plan Year;
(E) Eligible Employees who have completed more than 500 but less than
750 Hours of Service during the Plan Year.
In no event will Employees who have terminated employment with the
Employer during the Plan Year and who have completed 500 or fewer
Hours of Service during the Plan Year receive any allocation of
Employer Profit Sharing Contributions.
ARTICLE V
PERIOD OF PARTICIPATION
5.1 Termination Dates. A Participant's Termination Date will be the date on
which his employment with the Employer is terminated because of the first
to occur of the following events:
(A) Normal Retirement. The Participant retires from the employ of the
Employer upon attaining the Normal Retirement Date selected in the
Adoption Agreement. If the Employer enforces a mandatory retirement
age the Normal Retirement Date is the date the Participant attains
the lesser of that mandatory age or the age specified in the
Adoption Agreement.
(B) Early Retirement. The Participant retires from the employ of the
Employer upon attaining the Early Retirement Date selected in the
Adoption Agreement. If a Participant terminates employment prior to
meeting any minimum age specified in the Adoption Agreement but
after having completed the specified minimum service requirement,
the terminated Participant shall be entitled to an early retirement
benefit upon attaining the minimum age required.
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(C) Late Retirement. The Participant retires from the employ of the
Employer after the Normal Retirement Date. A Participant who
continues to work beyond the Normal Retirement Date shall continue
participation in the Plan on the same basis as the other
Participants.
(D) Disability Retirement. The Participant is terminated from the employ
of the Employer because of Disability, as determined by the
Committee, as defined in Section 1.1(I), irrespective of his age.
(E) Death. The Participant's death.
(F) Other Termination. The Participant terminates employment before
Normal, Early, Late or Disability Retirement.
If a Participant continues in the employ of the Employer but no
longer is a member of a class of Employees to which the Plan has
been and continues to be extended by the Employer, the Participant's
Termination Date nevertheless will be as stated above and his or her
accounts will be held as stated in Section 5.2.
5.2 Restricted Participation. When distribution of part or all of the benefits
to which a Participant is entitled under the Plan is deferred beyond or
cannot be made until after the Participant's Termination Date, or during
any period that a Participant continues in the employ of the Employer but
no longer is a member of a class of Employees to which the Plan has been
and continues to be extended by the Employer, the Participant, or in the
event of his or her death such Participant's Beneficiary, will be
considered and treated as a Participant for all purposes of the Plan,
except that no share of contributions or forfeitures will be credited to
his or her Accounts (a) for any period such Participant continues in the
employ of the Employer but no longer is a member of a class of Employees
to which the Plan has been and continues to be extended by the Employer,
or (b) after the Participant's Termination Date.
ARTICLE VI
ACCOUNTING
6.1 Accounts Established. There shall be established and maintained for each
Participant such accounts as are applicable, to reflect such Participant's
interest in each Investment Fund.
All income, expenses, gains and losses attributable to each account shall
be separately accounted for. The interest of each Participant in the Trust
Fund at any time shall consist of the amount credited to his or her
accounts as of the last preceding Valuation Date plus credits and minus
debits to such accounts since that date.
6.2 Employer Contributions Considered Made On Last Day of Plan Year. Unless
otherwise elected in the Adoption Agreement, for purposes of this Article
VI, the Employer's Contribution under Article IV will be considered to
have been made on the last day of the Plan Year for which contributed.
6.3 Accounting Steps. As of each Valuation Date, the Trustee shall:
(A) Charge to the prior account balances all previously uncharged
payments or distributions made from Participants' accounts since the
last preceding Valuation Date.
(B) Adjust the net credit balances in Participants' accounts upward or
downward, pro rata, so that the total of such net credit balances
will equal the then adjusted net worth of the Trust Fund;
(C) Allocate and credit Employer Contributions and any forfeitures (as
described in Section 7.3) that are to be allocated and credited as
of that date in accordance with Sections 6.5 and 6.6.
Notwithstanding the preceding, the Trustee shall be authorized to
utilize such other method of accounting for the gains or losses
experience by the Trust as may accurately reflect each Participant's
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interest therein.
6.4 Allocation of Employer Contributions.
(A) Discretionary Profit Sharing Contributions.
(1) Nonstandardized Plans. If the Plan is a nonstandardized Plan,
Employer Contributions for the Plan Year shall be allocated
among and credited to the Employer Contribution Accounts of
each Participant, including a Participant on leave of absence,
who is entitled to receive a contribution as elected by the
Employer in the Adoption Agreement, pursuant to the formula
elected by the Employer in Item B(8)(b) of the Adoption
Agreement If elected in the Adoption Agreement, Participants
whose employment terminated because of retirement, death or
disability before the end of the Plan Year will share in the
contributions for the year if elected in the Adoption
Agreement.
(2) Standardized Plans. Employer Contributions for the Plan Year
shall be allocated among and credited to the Employer
Contribution Account of each Participant who either completes
more than 500 Hours of Service during the Plan Year (or such
lesser number of Hours of Service as may be specified in the
Adoption Agreement) or is employed on the last day of the Plan
Year pursuant to the formula elected by the Employer in Item
B(8)(b) of the Adoption Agreement. If elected in the Adoption
Agreement, Participants whose employment terminated before the
end of the Plan Year because of retirement, death or
disability will share in the contributions for the year if
elected in the Adoption Agreement.
(B) Money Purchase Pension Plans. Employer Contributions will be made
and allocated to the Employer Contribution Accounts of Participants
for the Plan Year as elected in the Adoption Agreement. Sections
6.4(A)(1) and (2) above also apply to the Money Purchase Pension
Plans.
(C) Paired Plans. Notwithstanding anything in the Plan to the contrary,
if the Employer maintains two plans which are Paired Plans, only one
may contain an allocation, as elected in the Adoption Agreement,
utilizing permitted disparity as defined in Code Section 401(l).
6.5 Allocation of Forfeitures. As elected in Items B(11) and/or C(6) of the
Adoption Agreement, as of the last day of the Plan Year, any forfeitures
which arose under the Plan during that year shall be used to: (i) pay the
expenses of the Plan; (ii) reduce Employer Contributions; or, (iii) be
allocated to Participants accounts, as may be selected in the Adoption
Agreement. Forfeitures under (iii) shall be allocated as provided in
Section 6.4.
6.6 Limitation on Allocations.
(A) Definitions: For purposes of limiting allocations pursuant to this
section, the following definitions shall apply:
(1) Annual Additions: The sum of the following amounts credited to
a Participant's account for the Limitation Year:
(a) Employer Contributions;
(b) Employee Contributions;
(c) forfeitures;
(d) amounts allocated, after March 31, 1984, to an
individual medical account, as defined in Section 415
(l)(2) of the Code, which is part of a pension or
annuity Plan maintained by the Employer are treated as
Annual Additions to a defined contribution Plan. Also
amounts derived from contributions paid or accrued after
December 31, 1985, in taxable years ending
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after such date, which are attributable to
post-retirement medical benefits, allocated to the
separate account of a Key Employee, as defined in
Section 419A(d)(3) of the Code, under a welfare benefit
fund, as defined in Section 419(e) of the Code,
maintained by the Employer are treated as Annual
Additions to a defined contribution Plan; and,
(e) allocations under a simplified employee pension.
For this purpose, any Excess Amount applied under Sections
6.6(B)(4) or 6.6(C)(6) in the Limitation Year to reduce
Employer Contributions will be considered Annual Additions for
such Limitation Year.
(2) Compensation: Compensation as described below, interpreted
consistently with the provisions of Code Section 414(s) and
the regulations issued thereunder, as may be selected by the
Employer, and uniformly applied for testing purpose:
(a) W-2 Compensation (Wages, Tips, and Other Compensation
required to be reported under Sections 6041, 6051, and
6052 of the Code, as reported on Form W-2). Compensation
is defined as wages within the meaning of Section
3401(a) and all other payments of compensation to an
Employee by the Employer (in the course of the
Employer's trade or business) for which the Employer is
required to furnish the Employee a written statement
under Sections 6041(d), 6051(a)(3) and 6052 of the Code.
Compensation must be determined without regard to any
rules under Section 3401(a) that limit the remuneration
included in wages based on the nature or location of the
employment or the service performed (such as the
exception for agricultural labor in Section 3401(a)(2).
(b) Withholding Compensation (ss.3401(a)). Compensation is
defined as wages within the meaning of Section 3401(a)
for the purposes of income tax withholding at the source
but determined without regard to any rules that limit
the remuneration included in wages based on the nature
or location of the employment or the services performed
(such as the exception for agricultural labor in Section
3401(a)(2)).
(c) Section 415 safe-harbor compensation. Compensation is
defined as wages, salaries, and fees for professional
services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment
with the Employer maintaining the Plan to the extent
that the amounts are includible\ in gross income
(including, but not limited to, commissions paid
salesman, compensation for services on the basis of a
percentage of profits, commissions on insurance
premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a
nonaccountable Plan (as described in 1.62-2(c)), and
excluding the following:
(i) Employer contributions to a Plan of deferred
compensation which are not includible in the
Employee's gross income for the taxable year in
which contributed, or Employer contributions under
a simplified employee pension Plan to the extent
such contributions are deductible by the Employee,
or any distributions from a Plan of deferred
compensation;
(ii) amounts realized from the exercise of a
non-qualified stock option, or when restricted
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stock (or property) held by an Employee becomes
freely transferable or is no longer subject to a
substantial risk of forfeiture;
(iii) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified
stock option; and
(iv) other amounts which received special tax benefits,
or contributions made by the Employer (whether or
not under a salary reduction agreement) towards
the purchase of an annuity contract described in
Section 403(b) of the Code (whether or not the
contributions are actually excludable from the
gross income of the Employee).
Notwithstanding anything in the definitions of Compensation
preceding, at the discretion of the Employer, uniformly
applied, Compensation shall, for purposes of ADP and ACP
testing as provided for in Article III, include amounts not
currently includible in income pursuant to Code Sections 125,
402(a)(8), 402(h) and 403(b). For allocation purposes, such
amounts shall be includible as elected in the Adoption
Agreement.
For any self-employed Individual, Compensation will mean
Earned Income.
For Limitation Years beginning after December 31, 1991, for
purposes of applying the limitations of Section 6.6,
Compensation for a Limitation Year is the compensation
actually paid or made available during such Limitation Year.
Notwithstanding the preceding sentence, Compensation for a
Participant in a defined contribution Plan who is permanently
and totally disabled (as defined in Section 22(e)(3) of the
Code) is the Compensation such Participant would have received
for the Limitation Year if the Participant had been paid at
the rate of Compensation paid immediately before becoming
permanently and totally disabled; such imputed compensation
for the disabled Participant may be taken into account only if
the Participant is not a Highly Compensated Employee, (as
defined in Section 414(q) of the Code), and contributions made
on behalf of such Participant are nonforfeitable when made.
(3) Defined Benefit Fraction: A fraction, the numerator of which
is the sum of the Participant's Projected Annual Benefits
under all the defined benefit plans (whether or not
terminated) maintained by the Employer, and the denominator of
which is the lesser of 125 percent of the dollar limitation
determined for the Limitation Year under Sections 415(b) and
(d) of the Code or 140 percent of the Participant's Highest
Average Compensation, including any adjustments under Section
415(b) of the Code.
Notwithstanding the above if the Participant was a participant
as of the first day of the first Limitation Year beginning
after December 31, 1986, in one or more defined benefit plans
maintained by the Employer which were in existence on May 6,
1986, the denominator of this fraction will not be less than
125 per cent of the sum of the annual benefits under such
plans which the Participant had accrued as of the close of the
last Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the
Plan after May 5, 1986. The preceding sentence applies only if
the defined benefit plans individually and in the aggregate
satisfied the requirements of Section 415 for all Limitation
Years beginning before January 1, 1987.
(4) Defined Contribution Dollar Limitation: For purposes of
calculating the Maximum Permissible Amount: $30,000 or, if
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greater, one-fourth of the defined benefit dollar limitation
set forth in Section 415(b)(1) of the Code as in effect for
the Limitation Year.
(5) Defined Contribution Fraction: A fraction, the numerator of
which is the sum of the Annual Additions to the Participant's
accounts under all the defined contribution plans (whether or
not terminated) maintained by the Employer for the current and
all prior Limitation Years, (including the Annual Additions
attributable to the Participant's nondeductible employee
contributions to all defined benefit plans, whether or not
terminated, maintained by the Employer, and the Annual
Additions attributable to all welfare benefit funds, as
defined in Section 419(e) of the Code, individual medical
accounts, as defined in Section 415(l)(2) of the Code, and
simplified employee pension, maintained by the Employer), and
the denominator of which is the sum of the maximum aggregate
amounts for the current and all prior Limitation Years of
service with the Employer (regardless of whether a defined
contribution Plan was maintained by the Employer). The maximum
aggregate amount in any Limitation Year is the lesser of 125
percent of the dollar limitation determined under Sections
415(b) and (d) of the Code in effect under Section
415(c)(1)(A) of the Code or 35 percent of the Participant's
Compensation for such year.
If the Employee was a participant as of the end of the first
day of the first Limitation Year beginning after December 31,
1986, in one or more defined contribution plans maintained by
the Employer which were in existence on May 6, 1986, the
numerator of this fraction will be adjusted if the sum of this
fraction and the Defined Benefit Fraction would otherwise
exceed 1.0 under the terms of this Plan. Under the adjustment,
an amount equal to the product of (1) the excess of the sum of
the fractions over 1.0 times (2) the denominator of this
fraction, will be permanently subtracted from the numerator of
this fraction. The adjustment is calculated using the
fractions as they would be computed as of the end of the last
Limitation Year beginning before January 1, 1987, and
disregarding any changes in the terms and conditions of the
Plan made after May 5, 1986, but using the Section 415
limitation applicable to the first Limitation Year beginning
on or after January 1, 1987.
The Annual Addition for any Limitation Year beginning before
January 1, 1987, shall not be recomputed to treat all Employee
contributions as Annual Additions.
(6) Employer: For purposes of this Section 6.6: the Employer that
adopts this Plan, and all members of a controlled group of
corporations (as defined in section 414(b) of the Code as
modified by Section 415(h), all commonly controlled trades or
businesses (as defined in Section 414(c) as modified by
Section 415(h)) or affiliated service groups (as defined in
Section 414(m)) of which the adopting Employer is a part, and
any other entity required to be aggregated with the Employer
pursuant to regulations under Section 414(o) of the Code.
(7) Excess Amount: The excess of the Participant's Annual
Additions for the Limitation Year over the Maximum Permissible
Amount.
(8) Highest Average Compensation: For purposes of calculating the
Defined Benefit Fraction, the average compensation for the
three (3) consecutive Years of Service with the Employer that
produces the highest average. A Year of Service with the
Employer is the twelve-consecutive month period defined in
Item B(4)(j) of the Adoption Agreement.
(9) Limitation Year: A calendar year or any other 12 consecutive
month period elected in Item B(4)(d) of the Adoption
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Agreement. All qualified plans maintained by the Employer must
use the same Limitation Year. If the Limitation Year is
amended to a different 12-consecutive month period, the new
Limitation Year must begin on a date within the Limitation
Year in which the amendment is made.
(10) Master or Prototype Plan: A Plan the form of which is the
subject of a favorable opinion letter from the Internal
Revenue Service.
(11) Maximum Permissible Amount: The maximum Annual Addition that
may be contributed or allocated to a Participant's account
under the Plan for any Limitation Year shall not exceed the
lesser of:
(a) the Defined Contribution Dollar Limitation, or
(b) 25 percent of the Participant's Compensation for the
Limitation Year.
The Compensation limitation referred to in (b) shall not
apply to any contribution for medical benefits (within
the meaning of Section 401(h) or Section 419A(f)(2) of
the Code) which is otherwise treated as an Annual
Addition under Section 415(l)(1) or 419A(d)(2) of the
Code.
If a short Limitation Year is created because of an
amendment changing the Limitation Year to a different
12-consecutive month period, the Maximum Permissible
Amount will not exceed the Defined Contribution Dollar
Limitation multiplied by the following fraction:
Number of months in the short Limitation Year
12
(12) Projected Annual Benefit: For purposes of calculating the
Defined Benefit Fraction: the annual retirement benefit
(adjusted to an actuarially equivalent straight life annuity
if such benefit is expressed in a form other than a straight
life annuity or qualified joint and survivor annuity) to which
the Participant would be entitled under the terms of the Plan,
assuming: (1) the Participant will continue employment until
Normal Retirement Date under the Plan, (or current age, if
later), and (2) the Participant's Compensation for the current
Limitation Year and all other relevant factors used to
determine benefits under the Plan will remain constant for all
future Limitation Years.
(B) Annual Addition Limitations:
(1) If the Participant does not participate in, and has never
participated in another qualified Plan or welfare benefit
fund, as defined in Section 419(e) of the Code maintained by
the Employer, or an individual medical account, as defined in
Section 415(l)(2) of the Code, maintained by the Employer, or
a simplified employee pension, as defined in Section 408(K) of
the Code, maintained by the Employer which provides an Annual
Addition as defined in Section 6.6(E), the amount of Annual
Additions which may be credited to the Participant's account
for any Limitation Year will not exceed the lesser of the
Maximum Permissible Amount or any other limitation contained
in this Plan. If the Employer Contribution that would
otherwise be contributed or allocated to the Participant's
account would cause the Annual Additions for the Limitation
Year to exceed the Maximum Permissible Amount, the amount
contributed or allocated will be reduced so that the Annual
Additions for the Limitation Year will equal the Maximum
Permissible Amount.
(2) Prior to determining the Participant's actual Compensation for
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the Limitation Year, the Employer may determine the Maximum
Permissible Amount for a Participant on the basis of a
reasonable estimation of the Participant's Compensation for
the Limitation Year, uniformly determined for all Participants
similarly situated.
(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the
Limitation Year will be determined on the basis of the
Participant's actual Compensation for the Limitation Year.
(4) If pursuant to Section 6.6(B)(3) or as result of the
allocation of forfeitures, there is an Excess Amount, the
excess will be disposed of as follows:
(a) Any nondeductible voluntary employee contributions, to
the extent they would reduce the Excess Amount, will be
returned to the Participant.
(b) If after the application of paragraph (a) an Excess
Amount still exists and the Participant is covered by
the Plan at the end of the Limitation Year, the Excess
Amount in the Participant's account will be used to
reduce Employer Contributions (including any allocation
of forfeitures) for such Participant in the next
Limitation year, and each succeeding Limitation Year, if
necessary.
(c) If after the application of paragraph (a) 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 unallocated in a suspense account.
The suspense account will be applied to reduce future
Employer Contributions (including allocation of any
forfeitures) for all remaining Participants in the next
Limitation Year and each succeeding Limitation Year, if
necessary.
(d) If a suspense account is in existence at any time during
a Limitation Year pursuant to this Section 6.6(A), it
will not participate in the allocation of the trust's
investment gains and losses. If a suspense account is in
existence at any time during a particular Limitation
Year, all amounts in the suspense account must be
allocated and reallocated to Participants' accounts
before any Employer Contributions or any Employee
contributions may be made to the Plan for that
Limitation Year. Excess Amounts may not be distribute to
Participants or former Participants.
(C) Multiple Plan Limitation.
(1) This Section 6.6(C) applies if, in addition to this Plan, the
Participant is covered under another qualified Master or
Prototype defined contribution Plan maintained by the
Employer, a welfare benefit fund, as defined in Section 419(e)
of the Code maintained by the Employer, or an individual
medical account, as defined in Section 415(l)(2) of the Code,
maintained by the Employer, or a simplified employee pension
maintained by the employer which provides an Annual Addition
as defined in Section 6.6(A) during any Limitation Year. The
Annual Additions which may be credited to a Participant's
accounts under this Plan for any such Limitation Year shall
not exceed the Maximum Permissible Amount reduced by the
Annual Additions credited to a Participant's accounts under
the other qualified master and prototype defined contribution
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plans, welfare benefit funds, individual medical accounts, and
simplified employee pensions for the same Limitation Year. If
the Annual Additions with respect to the Participant under
other qualified master and prototype defined contribution
plans and welfare benefit funds, individual medical accounts,
and simplified employee pension, maintained by the Employer
are less than the Maximum Permissible Amount and the
contributions that would otherwise be contributed or allocated
to the Participant's Employer Contribution Account under this
Plan would cause the Annual Additions for the Limitation Year
to exceed this limitation, the amount contributed or allocated
will be reduced so that the Annual Additions under all such
plans and funds for the Limitation Year will equal the Maximum
Permissible Amount. If the Annual Additions with respect to
the Participant under such other qualified master and
prototype defined contribution plans, welfare benefit funds
individual medical accounts, and simplified employee pension,
in the aggregate are equal to or greater than the Maximum
Permissible Amount, no amount will be contributed or allocated
to the Participant's Employer Contribution Account under this
Plan for the Limitation Year.
(2) Prior to determining the Participant's actual Compensation for
the Limitation Year, the Employer may determine the Maximum
Permissible Amount for a Participant in the manner described
in Section 6.6(B)(2).
(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the
Limitation Year will be determined on the basis of the
Participant's actual Compensation for the Limitation Year.
(4) If, pursuant to Section 6.6(C)(3) or as a result of the
allocation of forfeitures, a Participant's Annual Additions
under this Plan and all other plans result in an Excess Amount
for a Limitation Year, the Excess Amount shall be deemed to
consist of the amounts last allocated, except that Annual
Additions attributable to a simplified employee pension will
be deemed to have been allocated first, followed by annual
additions to a welfare benefit fund or individual medical
account regardless of the actual allocation date.
(5) If an Excess Amount was allocated to a Participant on an
allocation date of this Plan which coincides with an
allocation date of another Plan, the Excess Amount attributed
to this Plan will be the product of:
(a) the total Excess Amount allocated as of such date, times
(b) the ratio of (i) the Annual Additions allocated to the
Participant for the Limitation Year as of such date
under this Plan to (ii) the total Annual Additions
allocated to the Participant for the Limitation Year as
of such date under this and all other qualified Master
or Prototype defined contribution plans.
(6) Any Excess Amount attributed to this Plan should be disposed
of as provided in Section 6.6(C)(4).
(D) If the Participant is covered under another qualified defined
contribution Plan maintained by the Employer which is not a Master
or Prototype Plan, Annual Additions which may be credited to the
Participant's accounts under this Plan for any Limitation Year will
be limited in accordance with Section 6.6(C) (1-6) as though the
Plan were a Master or Prototype Plan unless the Employer provides
other limitations in Item B(12) of the Adoption Agreement.
(E) If the Employer maintains, or at any time maintained, a qualified
defined benefit Plan covering any Participant in this Plan, the sum
of the Participant's Defined Benefit Plan Fraction and Defined
Contribution Plan Fraction will not exceed 1.0 in any Limitation
Year. The Annual Additions which may be credited to the
Participant's accounts under this Plan for any Limitation Year will
be limited in accordance with Item B(12) of the Adoption Agreement.
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6.7 Reports to Participants. The Committee shall cause reports to be made at
least annually to each Participant and to the Beneficiary of each deceased
Participant as to the value of each such Participant's accounts, as of an
appropriate preceding Valuation Date.
ARTICLE VII
PAYMENT OF ACCOUNT BALANCES
7.1 Termination of Employment Upon Disability or Death. A Participant shall
become fully vested in his or her Employer Contribution Accounts if the
Participant becomes Disabled under Sections 5.1(A), (B), (C) or (D) or
dies while still employed. The accounts of a Participant who retires
becomes Disabled or dies will become distributable to the Participant or
to his or her Spouse or Beneficiary. If distributed immediately, subject
to Section 7.4, the distributable balance, after adjustments, will be
determined as soon as practicable following the receipt by the Trustee of
written notice of the Participant's termination from the Committee.
7.2 Timing for Determining Account Balance Upon Termination of Employment
Prior to Retirement, Disability or Death. If a Participant terminates
employment with the Employer before retirement under Sections 5.1(F) the
vested portion of the Participant's Employer Contribution Account and/or
Matching Account shall be determined and such Participant's accounts will
be distributable to the Participant. If distributed immediately, subject
to Section 7.4, the distributable balance, after adjustments, will be
determined as soon as practicable following receipt by the Trustee of
written notice of the Participant's termination from the Committee. The
account balance shall be distributable at such time as elected in the
Adoption Agreement, but in no event shall an account balance not be
distributable later than the Participant's Normal Retirement Date.
7.3 Vesting On Distribution Before Break-in-Service; Cash-Outs.
(A) If an Employee terminates service, and the value of the Employee's
vested account balance derived from Employer and Employee
contributions is not greater than $3,500, the Employee will receive
a distribution of the value of the entire vested portion of such
account balances, and Rollover Account balance, if any. The
nonvested portion will be treated as a forfeiture. For purposes of
this Section 7.3, if the value of an Employee's vested account
balance is zero, the Employee shall be deemed to have received a
distribution of such vested account balance. A Participant's vested
account balance shall not include accumulated deductible employee
contributions within the meaning of Section 72(o)(5)(B) of the Code
for Plan Years beginning prior to January 1, 1989.
(B) If an Employee terminates service, and elects, in accordance with
the requirements of Section 7.4, to receive the value of the
Employee's vested account balance, the nonvested portion will be
treated as a forfeiture. If the Employee elects to have distributed
less than the entire vested portion of the balance in the Employer
Contribution Account, 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 balance in the Employer
Contribution Account.
(C) If an Employee receives a distribution pursuant to this Section 7.3
and the Employee resumes employment covered under this Plan, the
Employee's Employer Contribution Account and/or Matching Account
balance will be restored to the amount on the date of distribution
if the Employee repays to the Plan the full amount of the
distribution attributable to Employer contributions before the
earlier of 5 years after the first date on which the Participant is
subsequently reemployed by the Employer, or the date the Participant
incurs five (5) consecutive one (1) year Breaks in Service following
the date of the distribution. If an Employee is deemed to receive a
distribution pursuant to this Section 7.3,
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and the Employee resumes employment covered under this Plan before
the date the Participant incurs five (5) consecutive one (1) year
Breaks in Service, upon the reemployment of such Employee, the
Employer Contribution Account balance and/or Matching Account
balance of the Employee will be restored to the amount on the date
of such deemed distribution.
7.4 Restrictions on Immediate Distributions.
(A) If the value of a Participant's vested account balance derived from
Employer and Employee contributions exceeds (or at the time of any
prior distribution exceeded) $3,500, and the account balance is
immediately distributable, the Participant and the Participant's
Spouse (or where either the Participant or the Spouse has died, the
survivor) must consent to any distribution of such account balance.
The consent of the Participant and the Participant's Spouse shall be
obtained in writing within the 90-day period ending on the annuity
starting date. The annuity starting date is the first day of the
first period for which an amount is paid as an annuity or any other
form. The Committee shall notify the Participant and the
Participant's Spouse of the right to defer any distribution until
the Participant's account balance is no longer immediately
distributable. Such notification shall include a general description
of the material features, and an explanation of the relative values
of, the optional forms of benefit available under the Plan in a
manner that would satisfy the notice requirements of Section
417(a)(3), and shall be provided no less than 30 days and no more
than 90 days prior to the annuity starting date. However,
distribution may commence less than 30 days after the notice
described in the preceding sentence is given, provided the
distribution is one to which sections 401(a)(11) and 417 of the
Internal Revenue Code do not apply, the plan administrator clearly
informs the participant that the participant has a right to a period
of at least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and the participant,
after receiving the notice, affirmatively elects a distribution.
Notwithstanding the foregoing, only the Participant need consent to
the commencement of a distribution in the form of a Qualified Joint
and Survivor Annuity while the account balance is immediately
distributable. (Furthermore, if payment in the form of a Qualified
Joint and Survivor Annuity is not required with respect to the
Participant pursuant to Section 7.10 of the Plan, only the
Participant need consent to the distribution of an account balance
that is immediately distributable. Neither the consent of the
Participant nor the Participant's Spouse shall be required to the
extent that a distribution is required to satisfy Section 401(a)(9)
or Section 415 of the Code. In addition, upon termination of this
Plan if the Plan does not offer an annuity option (purchased from a
commercial provider), and if the Employer or any entity within the
same controlled group as the Employer does not maintain another
defined contribution Plan (other than an employee stock ownership
Plan as defined in Section 4975(e)(7) of the Code), the
Participant's account balance will, without the Participant's
consent, be distributed to the Participant. However, if any entity
within the same controlled group as the Employer maintains another
defined contribution Plan (other than an employee stock ownership
Plan as defined in Section 4975(e)(7) of the Code) then the
Participant's account balance will be transferred, without the
Participant's consent, to the other Plan if the Participant does not
consent to an immediate distribution.
An account balance is immediately distributable if any part of the
account balance could be distributed to the Participant (or
surviving spouse) before the Participant attains or would have
attained if not deceased) the later of the Normal Retirement Date or
age 62.
(B) For purposes of determining the applicability of the foregoing
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consent requirements to distributions made before the first day of
the first Plan Year beginning after December 31, 1988, the
Participant's vested account balance shall not include amounts
attributable to accumulated deductible employee contributions within
the meaning of Section 72(o)(5)(B) of the Code.
7.5 Commencement of Benefits. Unless the Participant elects otherwise,
payments will be made or commence to a Participant by the Trustee, as
directed by the Committee, no later than the sixtieth (60th) day after the
latest of the close of the Plan Year in which (1) the Participant attains
age sixty-five (65) (or Normal Retirement Date; if earlier); (2) occurs
the tenth (10th) anniversary of the year in which the Participant
commenced participation in the Plan; or (3) the Participant terminates his
or her service with the Employer.
Notwithstanding the foregoing, the failure of a Participant and Spouse to
consent to a distribution while a benefit is immediately distributable,
within the meaning of Section 7.4 of the Plan, shall be deemed to be an
election to defer commencement of payment of any benefit sufficient to
satisfy this section.
7.6 Timing and Modes of Distribution.
(A) General Rules.
(1) Subject to Section 7.10, Joint and Survivor Annuity
Requirements, the requirements of this Section 7.6 shall apply
to any distribution of a Participant's interest and will take
precedence over any inconsistent provisions of this Plan.
Unless otherwise specified, the provisions of this Section 7.6
apply to calendar years beginning after December 31, 1984.
(2) All distributions required under this Section 7.6 shall be
determined and made in accordance with the Income Tax
Regulations under Section 401(a)(9), including the minimum
distribution incidental benefit requirement of Section
1.401(a)(9)-2 of the regulations.
(3) The normal form of payment for a profit-sharing Plan
satisfying the requirements of Section 7.10(F) hereof shall be
a single sum with no option for annuity payments; provided,
however, that distributions may be made:
(a) In installment payments, if the Employer has elected
installment payments in Item B(10)(a) of the Adoption
Agreement;
(b) Through such other form of benefit as may be identified
in Item B(10)(a) of the Adoption Agreement, which shall
be available to Participants as an optional form of
benefit payment, and shall preclude Employer discretion;
(c) Through such other form of benefits as may be required
to be protected as Section 411(d)(6) protected benefits.
(B) Required Beginning Date. The entire interest of a Participant must
be distributed or begin to be distributed no later than the
Participant's required beginning date.
(C) Limits on Distribution Periods. As of the first distribution
calendar year, distributions, if not made in a single-sum, may only
be made over one of the following periods (or a combination
thereof):
(1) the life of the Participant,
(2) the life of the Participant and a designated Beneficiary,
(3) a period certain not extending beyond the life expectancy of
the Participant, or
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40
(4) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a designated
Beneficiary.
(D) 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:
(1) Individual Account.
(a) If a Participant's benefit is to be distributed over:
(i) 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
(ii) 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.
(b) 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.
(c) For calendar years beginning after December 31, 1988 the
amount to be distributed each year, beginning with
distributions for the first distribution calendar 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 Income Tax Regulations.
Distributions after the death of the Participant shall
be distributed using the applicable life expectancy in
Section (1)(a) above as the relevant divisor without
regard to Regulations Section 1.401(a)(9)-2.
(d) 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.
(2) Other Forms. 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
regulations thereunder.
(E) Death Distribution Provisions
(1) Distribution Beginning Before Death. If the Participant dies
after distribution of his or her interest has begun, the
remaining portion of such interest will continue to be
distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death.
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41
(2) Distribution Beginning After Death. If the Participant dies
before distribution of his or her interest begins,
distribution of the Participant's entire interest shall be
completed by December 31 of the calendar year containing the
fifth anniversary of the Participant's death except to the
extent that an election is made to receive distributions in
accordance with (a) or (b) below:
(a) if any portion of the Participant's interest is payable
to a designated Beneficiary, distributions may be made
over the life or over a period certain not greater than
the life expectancy of the designated Beneficiary
commencing on or before December 31 of the calendar year
immediately following the calendar year in which the
Participant died;
(b) if the designated Beneficiary is the Participant's
surviving Spouse, the date distributions are required to
begin in accordance with (a) above shall not be earlier
than the later of (1) December 31 of the calendar year
immediately following the calendar year in which the
Participant died and (2) December 31 of the calendar
year in which the Participant would have attained age
70-1/2.
If the Participant has not made an election pursuant to
this Section 7.6(E)(2) by the time of his or her death,
the Participant's designated Beneficiary must elect the
method of distribution no later than the earlier of (1)
December 31 of the calendar year in which distributions
would be required to begin under this section, or (2)
December 31 of the calendar year in which contains the
fifth anniversary of the date of death of the
Participant. If the Participant has no designated
Beneficiary, or if the designated Beneficiary does not
elect a method of distribution, distribution of the
Participant's entire interest must be completed by
December 31 of the calendar year containing the fifth
anniversary of the Participant's death.
(3) Surviving Spouse's Death. For purposes of Section (E)(2)
above, if the surviving Spouse dies after the Participant, but
before payments to such Spouse begin, the provisions of
Section (E)(2) with the exception of paragraph (b) therein,
shall be applied as if the surviving Spouse were the
Participant.
(4) Minor Beneficiary. For purposes of this Section (E), any
amount paid to a child of the Participant will be treated as
if it had been paid to the surviving Spouse if the amount
becomes payable to the surviving Spouse when the child reaches
the age of majority.
(5) Distribution Considered to Begin on Required Beginning Date.
For the purposes of this Section (E), distribution of a
Participant's interest is considered to begin on the
Participant's required beginning date (or, if Section (E)(3)
above is applicable, the date distribution is required to
begin to the surviving Spouse pursuant to Section (E)(2)
above). If distribution in the form of an annuity irrevocably
commences to the Participant before the required beginning
date, the date distribution is considered to begin is the date
distribution actually commences.
(F) Definitions.
(1) Applicable life expectancy: The life expectancy (or joint and
last survivor expectancy) calculated using the attained age of
the Participant (or designated Beneficiary) as of the
Participant's (or designated Beneficiary's) birthday in the
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42
applicable calendar year reduced by one for each calendar year
which has elapsed since the date life expectancy was first
calculated. If life expectancy is being recalculated, the
applicable life expectancy shall be the life expectancy as so
recalculated. The applicable calendar year shall be the first
distribution calendar year, and if life expectancy is being
recalculated such succeeding calendar year.
(2) Designated Beneficiary: The individual who is designated as
the Beneficiary under the Plan in accordance with Section
401(a)(9) and the proposed regulations thereunder.
(3) Distribution calendar year: A calendar year for which a
minimum distribution is required. For distributions beginning
before the Participant's death, the first distribution
calendar year is the calendar year immediately preceding the
calendar year which contains the Participant's required
beginning date. For distributions beginning after the
Participant's death, the first distribution calendar year is
the calendar year in which distributions are required to begin
pursuant to Section (E) above.
(4) Life expectancy: Life expectancy and joint and last survivor
expectancy are computed by use of the expected return
multiples in Tables V and VI of Section 1.72-9 of the Income
Tax Regulations.
Unless otherwise elected by the Participant (or Spouse, in the
case of distributions described in Section (E)(2)(b) above) by
the time distributions are required to begin, life
expectancies shall be recalculated annually. Such election
shall be irrevocable as to the Participant (or Spouse) and
shall apply to all subsequent years. The life expectancy of a
non-spouse Beneficiary may not be recalculated.
(5) Participant's benefit:
(a) The account balance as of the last valuation date in the
calendar year immediately preceding the distribution
calendar year (valuation calendar year) increased by the
amount of any contributions or forfeitures allocated to
the account balance as of dates in the valuation
calendar year after the valuation date and decreased by
distributions made in the valuation calendar year after
the valuation date.
(b) Exception for second distribution calendar year. For
purposes of paragraph (a) above, if any portion of the
minimum distribution for the first distribution calendar
year is made in the second distribution calendar year on
or before the required beginning date, the amount of the
minimum distribution made in the second distribution
calendar year shall be treated as if it had been made in
the immediately preceding distribution calendar year.
(6) Required beginning date:
(a) General rule. The required beginning date of a
Participant is the first day of April of the calendar
year following the calendar year in which the
Participant attains age 70-1/2.
(b) Transitional rules. The required beginning date of a
Participant who attains age 70-1/2 before January 1,
1988, shall be determined in accordance with (1) or (2)
below:
(i) Non-5-percent owners. The required beginning date
of a Participant who is not a 5-percent owner is
the first day of April of the calendar year
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following the calendar year in which the later of
retirement or attainment of age 70-1/2 occurs.
(ii) 5-percent owners. The required beginning date of a
Participant who is a 5-percent owner during any
year beginning after December 31, 1979, is the
first day of April following the later of:
(a) the calendar year in which the participant
attains age 70-1/2, or
(b) the earlier of the calendar year with or
within which ends the Plan Year in which the
Participant becomes a 5-percent owner, or
the calendar year in which the Participant
retires.
The required beginning date of a Participant who is not
a 5-percent owner who attains age 70-1/2 during 1988 and
who has not retired as of January 1, 1989, is April 1,
1990.
(c) 5-percent owner. A Participant is treated as a 5-percent
owner for purposes of this Section if such Participant
is a 5-percent owner as defined in Section 416(i) of the
Code(determined in accordance with Section 416 but
without regard to whether the Plan is top-heavy) at any
time during the Plan Year ending with or within the
calendar year in which such owner attains age 66-1/2 or
any subsequent Plan Year.
(d) Once distributions have begun to a 5-percent owner under
this Section, they must continue to be distributed, even
if the Participant ceases to be a 5-percent owner in a
subsequent year.
(G) Transitional Rule.
(1) Distributions to 5-percent Owners. Notwithstanding the other
requirements of this Section 7.6 and subject to the
requirements of Section 7.10, Joint and Survivor Annuity
Requirements, distributions on behalf of any Employee,
including a 5-percent owner, may be made in accordance with
all of the following requirements (regardless of when such
distribution commences):
(a) The distribution by the plan is one which would not have
disqualified such plan under Section 401(a)(9) of the
Internal Revenue Code as in effect prior to amendment by
the Deficit Reduction Act of 1984.
(b) The distribution is in accordance with a method of
distribution designated by the Employee whose interest
in the plan is being distributed or, if the Employee is
deceased, by a Beneficiary of such Employee.
(c) Such designation was in writing, was signed by the
Employee or the Beneficiary, and was made before January
1, 1984.
(d) The Employee had accrued a benefit under the Plan as of
December 31, 1983.
(e) The method of distribution designated by the Employee or
the Beneficiary specifies the time at which distribution
will commence, the period over which distributions will
be made, and in the case of any distribution upon the
Employee's death, the Beneficiaries of the Employee
listed in order of priority.
(2) Distribution on Death. A distribution upon death will not be
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44
covered by this transitional rule unless the information in
the designation contains the required information described
above with respect to the distributions to be made upon the
death of the Employee.
(3) Designation of Distribution Method. For any distribution which
commences before January 1, 1984, but continues after December
31, 1983, the Employee, or the Beneficiary, to whom such
distribution is being made, will be presumed to have
designated the method of distribution under which the
distribution is being made if the method of distribution was
specified in writing and the distribution satisfies the
requirements in subsections (G)(1)(a) and (e).
(4) Revocation of Designations. If a designation is revoked any
subsequent distribution must satisfy the requirements of
Section 401(a)(9) of the Code and the regulations thereunder.
If a designation is revoked subsequent to the date
distributions are required to begin, the plan must distribute
by the end of the calendar year following the calendar year in
which the revocation occurs the total amount not yet
distributed which would have been required to have been
distributed to satisfy Section 401(a)(9) of the Code and the
regulations thereunder, but for the Section 242(b)(2)
election. For calendar years beginning after December 31,
1988, such distributions must meet the minimum distribution
incidental benefit requirements in Section 1.401(a)(9)-2 of
the Income Tax Regulations. Any changes in the designation
will be considered to be a revocation of the designation.
However, the mere substitution or addition of another
Beneficiary (one not named in the designation) under the
designation will not be considered to be a revocation of the
designation, so long as such substitution or addition does not
alter the period over which distributions are to be made under
the designation, directly or indirectly (for example, by
altering the relevant measuring life). In the case in which an
amount is transferred or rolled over from one Plan to another
Plan, the rules in Q&A J-2 and Q&A J-3 shall apply.
7.7 Designation of Beneficiary.
(A) Default Beneficiary. In the case of a Participant who is married,
the Participant's Beneficiary shall be the Participant's Spouse, but
if the Participant's Spouse consents as provided in this Section
7.7, or if the Participant is not married, then the Participant
shall have the right to designate that after such Participant's
death such Participant's accounts shall be distributed to a
designated Beneficiary or Beneficiaries.
(B) Spousal Consent. Any consent of a Spouse given pursuant to this
Section must be in writing and given prior to the death of the
Participant. Such consent must acknowledge the effect of the
Participant's Beneficiary designation, the identity of any
non-Spouse Beneficiary, including any class of Beneficiaries and
contingent Beneficiaries, and the consent must be witnessed by a
Plan representative or a Notary Public. The Participant may not
subsequently change the designation of his or her Beneficiary unless
his Spouse consents to the new designation in accordance with the
requirements set forth in the preceding sentence The consent of a
Participant's Spouse shall not be required if the Participant
establishes to the satisfaction of the Committee that consent may
not be obtained because there is no Spouse, the Spouse cannot be
located or because of such other circumstances as the Secretary of
the Treasury may prescribe by regulations. A Spouse's consent shall
be irrevocable. Any consent by a Spouse, or establishment that the
consent of the Spouse may not be obtained, shall be effective only
with respect to that Spouse.
(C) Changing Beneficiaries. Subject to Subparagraphs (A) and (B) above,
the Participant's designation of Beneficiary may be made, changed
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or revoked by the Participant at any time by a written instrument,
in form satisfactory to the Committee, and shall become effective
only when executed by such Participant (and, i applicable, consented
to by the Participant's Spouse as set forth in Section 7.7(B)) and
filed with the Committee prior to such Participant's death. If all
of the Beneficiaries named in such designation shall have
predeceased such Participant, or die prior to complete distribution
of the Participant's accounts, or if such Participant fails to
execute and file a designation and is not survived by a Spouse the
payment of such Participant's accounts shall be made pursuant to the
Plan and to such Beneficiaries as required by state law. Neither the
Employer, the Committee, nor the Trustee, shall have any duty to see
that such Participant, any Spouse or any Beneficiary executes and
files any such designation with the Committee.
7.8 Optional Forms of Benefit. The optional forms of benefit provided by this
Plan are not subject to Employer discretion and are made available to all
Participants on a nondiscriminatory basis. The optional forms of benefit
are described in Articles III and VII, as may be selected in the Adoption
Agreement. If selected in Item B(13) of the Adoption Agreement, the
Employer may attach to the Plan a list of the Section "411(d)(6) protected
benefits" that must be preserved from a individually designed Plan or
other prototype Plan which this Plan amends.
7.9 Distribution Upon Disability. In the event of the Disability of the
Participant, the Trustee, following receipt of notification of such
Disability from the Committee, shall make distributions from the Account.
7.10 Joint and Survivor Annuity Requirements.
(A) Application. The provisions of this Section 7.10 shall apply to any
Participant who is credited with at least one Hour of Service with
the Employer on or after August 23, 1984, and such other
Participants as provided in Section 7.10(G).
(B) Qualified Joint and Survivor Annuity. Unless an optional form of
benefit is selected pursuant to a Qualified Election within the
ninety-day period ending on the Annuity Starting Date, a married
Participant's Vested Account Balance will be paid in the form of a
Qualified Joint and Survivor Annuity and an unmarried Participant's
Vested Account Balance will be paid in the form of a life annuity.
The Participant may elect to have such annuity distributed upon
attainment of the Earliest Retirement Age under the Plan.
(C) Qualified Pre-Retirement Survivor Annuity. Unless an optional form
of benefit has been selected within the election period pursuant to
a Qualified Election, if a Participant dies before the Annuity
Starting Date then the Participant's Vested Account Balance shall be
applied toward the purchase of an annuity for the life of the
surviving Spouse. The surviving Spouse may elect to have such
annuity distributed within a reasonable period after the
Participant's death.
(D) Definitions.
(1) Election period: The period which begins on the first day of
the Plan Year in which the Participant attains age 35 and ends
on the date of the Participant's death. If a Participant
separates from service prior to the first day of the Plan Year
in which age 35 is attained, with respect to the account
balance as of the date of separation, the election period
shall begin on the date of separation.
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 Qualified Preretirement
Survivor Annuity for the period beginning on the date of such
election and ending on the first day of the Plan Year in which
the Participant will attain age 35. Such election shall not be
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46
valid unless the Participant receives a written explanation of
the Qualified Preretirement Survivor Annuity in such terms as
are comparable to the explanation required under Section
7.10(E). Qualified Preretirement 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 7.10.
(2) Earliest retirement age: The earliest date on which, under the
Plan, the Participant could elect to receive retirement
benefits.
(3) Qualified Election: A waiver of a Qualified Joint and Survivor
Annuity or a Qualified Preretirement Survivor Annuity. Any
waiver of a Qualified Joint and Survivor Annuity or a
Qualified Preretirement Survivor Annuity shall not be
effective unless: (a) the Participant's Spouse consents in
writing to the election; (b) the election designates a
specific Beneficiary including any class of Beneficiaries or
any contingent Beneficiaries, which may not be changed without
spousal consent (or the Spouse expressly permits designations
by the Participant without any further spousal consent); (c)
the Spouse's consent acknowledges the effect of the election;
and (d) the Spouse's consent is witnessed by a Plan
representative or Notary Public. Additionally, a Participant's
waiver of the Qualified Joint and Survivor Annuity shall not
be effective unless the election designates a form of benefit
payment which may not be changed without spousal consent (or
the spouse expressly permits designations by the Participant
without any further spousal consent). If it is established to
the satisfaction of a Plan representative that there is no
Spouse or that the Spouse cannot be located, a waiver will be
deemed a Qualified Election.
Any consent by a Spouse obtained under this provision (or
establishment that the consent of a Spouse may not be
obtained) shall be effective only with respect to such Spouse.
A consent that permits designations by the Participant without
any requirement of further consent by such Spouse must
acknowledge that the Spouse has the right to limit consent to
a specific Beneficiary, and a specific form of benefit where
applicable, and that the Spouse voluntarily elects to
relinquish either or both of such rights. A revocation of a
prior waiver may be made by a Participant without the consent
of the Spouse at any time before the commencement of benefits.
The number of revocations shall not be limited. No consent
obtained under this provision shall be valid unless the
Participant has received notice as provided in Paragraph (E)
below.
(4) Qualified Joint and Survivor Annuity: An immediate annuity for
the life of the Participant with a survivor annuity for the
life of the Spouse which is not less than 50 percent and not
more than 100 percent of the amount of the annuity which is
payable during the joint lives of the Participant and the
Spouse and which is the amount of benefit which can be
purchased with the Participant's vested account balance. The
percentage of the survivor annuity under the Plan shall be
50%.
(5) Spouse (surviving spouse): the Spouse or surviving Spouse of
the Participant, provided that a former Spouse will be treated
as the Spouse or surviving Spouse and the current Spouse will
not be treated as the Spouse or surviving Spouse to the extent
provided under a qualified domestic relations order as
described in Section 414(p) of the Code.
(6) Annuity Starting Date: The first day of the first period for
which an amount is payable as an annuity or any other form.
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47
(7) Vested Account Balance: The aggregate value of the
Participant's vested account balances derived from Employer
and Employee contributions (including rollovers), whether
vested before or upon death. The provisions of this Section
7.10 shall apply to a Participant who is vested in amounts
attributable to Employer contributions, Employee contributions
(or both) at the time of death or distribution.
(E) Notice Requirements.
(1) Qualified Joint and Survivor Annuity. In the case of a
Qualified Joint and Survivor Annuity as described in Section
7.10(B), the Committee shall no less than 30 days and no more
than 90 days prior to the Annuity Starting Date provide each
Participant a written explanation of: (i) the terms and
conditions of a Qualified Joint and Survivor Annuity; (ii) the
Participant's right to make and the effect of an election to
waive the Qualified Joint and Survivor Annuity form of
benefit; (iii) the rights of a Participant's Spouse; and (iv)
the right to make, and the effect of, a revocation of a
previous election to waive the Qualified Joint and Survivor
Annuity.
(2) Qualified Pre-Retirement Survivor Annuity. In the case of a
Qualified Pre-Retirement Survivor Annuity as described in
Section 7.10(C), the Committee shall provide each Participant
within the applicable period for such Participant a written
explanation of the Qualified Pre-Retirement Survivor Annuity
in such terms and in such manner as would be comparable to the
explanation provided for meeting the requirements of Section
7.10(E) applicable to a Qualified Joint and Survivor Annuity.
The applicable period for a Participant is whichever of the
following periods ends last: (i) the period beginning with the
first day of the Plan Year preceding the Plan Year in which
the Participant attains age thirty-two (32) and ending with
the close of the Plan Year in which the Participant attains
age thirty-five (35); (ii) a reasonable period ending after
the individual becomes a Participant; (iii) a reasonable
period ending after Section 7.10(E)(3) ceases to apply to the
Participant; and (iv) a reasonable period ending after Section
7.10 first applies to the Participant. Notwithstanding the
foregoing, notice must be provided within a reasonable period
ending after separation from service in the case of a
Participant who separates from service before attaining age
thirty-five (35).
For purposes of applying the preceding paragraph, a reasonable
period ending after the enumerated events described in (ii),
(iii) and (iv) is the end of the two-year period beginning one
year prior to the date the applicable event occurs, and ending
one year after that date. In the case of a Participant who
separates from service before the Plan Year in which age 35 is
attained, notice shall be provided within the two-year period
beginning one-year prior to separation and ending one year
after separation. If such a Participant thereafter returns to
employment with the Employer, the applicable period for such
participant shall be redetermined.
(3) Subsidized Annuity Distributions. Notwithstanding the other
requirements of this Section 7.10(E), the respective notices
prescribed by this Section 7.10(E) need not be given to a
Participant if (1) the Plan "fully subsidizes" the cost of a
Qualified Joint and Survivor Annuity or Qualified
Pre-Retirement Survivor Annuity, and (2) the Plan does not
allow the Participant to waive the Qualified Joint and
Survivor Annuity or Qualified Preretirement Survivor Annuity
and does not allow a married Participant to designate a
non-Spouse Beneficiary. For purposes of this Section 7.10(E),
a Plan fully subsidizes the cost of a benefit if no increase
in cost, or decrease in benefits to the Participant may result
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from the Participant's failure to elect another benefit.
(F) Safe harbor rules.
(1) Application. This Section shall apply to a Participant in a
profit-sharing Plan, and to any distribution, made on or after
the first day of the first Plan Year beginning after December
31, 1988, from or under a separate account attributable solely
to accumulated deductible employee contributions, as defined
in Section 72(o)(5)(B) of the Code, and maintained on behalf
of a Participant in a money purchase pension Plan, (including
a target benefit Plan) if the following conditions are
satisfied: (1) the Participant does not or cannot elect
payments in the form of a life annuity, and (2) on the death
of the Participant, the Participant's vested account balance
will be paid to the Participant's surviving Spouse, but if
there is no surviving Spouse or, if the surviving Spouse has
already consented in a manner conforming to a Qualified
Election, then to the Participant's designated Beneficiary.
The surviving Spouse may elect to have distribution of the
vested account balance commence within the 90-day period
following the date of the Participant's death. The account
balance shall be adjusted for gains or losses occurring after
the Participant's death in accordance with the provisions of
the Plan governing the adjustment of account balances for
other types of distributions. This Section 7.10(F) shall not
be operative with respect to a Participant in a profit-sharing
Plan if the Plan is a direct or indirect transferee of a
defined benefit Plan, money purchase Plan, a target benefit
Plan, stock bonus, or profit-sharing Plan which is subject to
the survivor annuity requirements of Section 401(a)(11) and
Section 417 of the Code. If this Section 7.10(F) is operative,
then the provisions of this Section 7.10, other than in
Section 7.10(G), shall be inoperative.
(2) Waiver. The Participant may waive the spousal death benefit
described in this section at any time provided that no such
waiver shall be effective unless it satisfies the conditions
of Section 7.10(D)(3) (other than the notification requirement
referred to therein) that would apply to the Participant's
waiver of the Qualified Preretirement Survivor Annuity.
(3) Vested Account Balance. For purposes of this Section 7.10(F),
vested account balance shall mean, in the case of a money
purchase pension Plan or a target benefit Plan, the
Participant's separate account balance attributable solely to
accumulated deductible employee contributions within the
meaning of Section 72(o)(5)(B) of the Code. In the case of a
profit-sharing Plan, vested account balance shall have the
same meaning as provided in Section 7.10(D)(7).
(G) Transitional Rules.
(1) Any living Participant not receiving benefits on August 23,
1984, who would otherwise not receive the benefits prescribed
by the previous sections of this Section 7.10 must be given
the opportunity to elect to have the prior sections of this
Section 7.10 apply if such Participant is credited with at
least one Hour of Service under this Plan or a predecessor
Plan in a Plan Year beginning on or after January 1, 1976, and
such Participant had at least ten (10) years of vesting
service when he or she separated from service.
(2) Any living Participant not receiving benefits on August 23,
1984 who was credited with at least one Hour of Service under
this Plan or predecessor Plan on or after September 2, 1974,
and who is not otherwise credited with any service in a Plan
Year beginning on or after January 1, 1976 must be given the
opportunity to have his or her benefits paid in accordance
with Section 7.10(G)(4).
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(3) The respective opportunities to elect (as described in Section
7.10(G)(1) and (2) above) must be afforded to the appropriate
Participants during the period commencing on August 23, 1984
and ending on the date benefits would otherwise commence to
these Participants.
(4) Any Participant who has elected pursuant to Section 7.10(G)(2)
and any Participant who does not elect under Section
7.10(G)(1) or who meets the requirements of Section 7.10(G)(1)
except that such Participant does not have at least ten (10)
years of vesting service when he or she separates from
service, shall have his or her benefits distributed in
accordance with all of the following requirements of benefits
would have been payable in the form of a life annuity:
a) Automatic joint and survivor annuity. If benefits in the
form of a life annuity become payable to a married
participant who:
(i) begins to receive payments under the Plan on or
after Normal Retirement Date; or
(ii) dies on or after Normal Retirement Date while
still working for the Employer; or
(iii) begins to receive payments on or after the
Qualified Early Retirement Age; or
(iv) separates from service on or after attaining
Normal Retirement Date (or the Qualified Early
Retirement Age) and after satisfying the
eligibility requirements for the payment of
benefits under the Plan and thereafter dies before
beginning to receive such benefits;
then such benefits will be received under this Plan in
the form of a Qualified Joint and Survivor Annuity,
unless the Participant has elected otherwise during the
election period. The election period must begin at least
6 months before the Participant attains Qualified Early
Retirement Age and end not more than 90 days before the
commencement of benefits. Any election hereunder will be
in writing and may be changed by the Participant at any
time.
b) Election of early survivor annuity. A Participant who is
employed after attaining the Qualified Early Retirement
Age will be given the opportunity to elect, during the
election period, to have a survivor annuity payable on
death. If the Participant elects the survivor annuity,
payments under such annuity must not be less than the
payments which would have been made to the Spouse under
the Qualified Joint and Survivor Annuity if the
Participant had retired on the day before his or her
death. Any election under this provision will be in
writing and may be changed by the Participant at any
time. The election period begins on the later of (1) the
90th day before the Participant attains the Qualified
Early Retirement Age, or (2) the date on which
participation begins, and ends on the date the
Participant terminates employment.
c) For purposes of this Section 7.10(G)(4):
(i) Qualified Early Retirement Age is the latest of:
(i) the earliest date, under the Plan, on which
the Participant may elect to receive retirement
benefits, (ii) the first day of the 120th month
beginning before the Participant reaches Normal
Retirement Date, or (iii) the date the Participant
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begins participation.
(ii) Qualified Joint and Survivor Annuity is an annuity
for the life of the participant with a survivor
annuity for the life of the Spouse as described in
Section 7.10(D)(4).
(H) Nontransferability. Any annuity distributed from the Plan must be
nontransferable.
(I) Incorporation of Terms. The terms of any annuity contract purchased
and distributed by the Plan to a Participant or Spouse shall comply
with the requirements of this Plan.
7.11 Distributions to Qualified Plans. In the event a former Employee whose
accounts have not been fully distributed becomes an active participant in
a Plan qualified under Section 401(a) of the Code, the Committee may
direct the Trustee to transfer the amount in such Participant's account(s)
to any such Plan provided the Plan to receive such transfers authorizes
accepting the transfer, provides that assets transferred shall be held in
a separate account and requires that the assets transferred shall not be
subject to any forfeiture provisions.
7.12 Profit Sharing Plans and 401(k) Profit Sharing Plans Only - Withdrawal of
Employer Contributions. Subject to the provisions of the Plan, in
accordance with rules for giving notice as determined by the Committee,
and as elected in the Adoption Agreement, a Participant may withdraw as of
the first Accounting Date subsequent to receipt by the Committee of such
notice:
(A) An amount equal to not more than 100% of the Participant's Employer
Contribution Account determined as of such Accounting Date. No
Participant who has made any withdrawal of Employer Contributions in
the twelve (12) months preceding the giving of such notice may make
a withdrawal under this Section.
(B) Notwithstanding anything to the contrary in this Section 7.12, any
withdrawal made pursuant to Section 7.12(A) shall be for a minimum
whole dollar amount not less than Five Hundred Dollars ($500.00);
except that if the amount available for withdrawal is less than Five
Hundred Dollars ($500.00) then the minimum amount of the withdrawal
shall be the amount available.
(C) No forfeitures will occur solely as a result of an Employee's
withdrawal of Employer Contributions.
(D) Notwithstanding anything to the contrary in this Section 7.12, a
Participant may not make a withdrawal, pursuant to this Section of
any portion of the Participant's vested interest which has been
assigned to secure repayment of a loan in accordance with Section
10.10, below, until such time as the Committee shall have released
said portion so assigned.
7.13. Prohibition Against Alienation.
(A) Except as provided in Sections 401(a)(13) and 414(p) of the Code, no
benefit or interest available under this Plan will be subject to
assignment or alienation, either voluntarily or involuntarily.
(B) 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 the
Committee determines that such order is a qualified domestic
relations order, as defined in Section 414(p) of the Code, or any
domestic relations order entered before January 1, 1985.
(C) 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."
Furthermore, an immediate distribution to an "alternate payee" shall
be permitted if such distribution is authorized by
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a "qualified domestic relations order," even if the affected
Participant has not reached the "earliest retirement age" under the
Plan, provided that in no event will any such distribution
accelerate the repayment of any loan made to the affected
Participant under the Plan, unless such Participan consents thereto
in writing. For purposes of this Section 7.13, "alternate payee,"
"qualified domestic relations order" and "earliest retirement age"
shall have the meaning set forth under Code Section 414(p), unless a
Qualified Distribution Date has been selected in the Adoption
Agreement, in which case the earliest retirement age shall be the
date on which the domestic relations order is determined to be
qualified.
7.14 Missing Participant or Beneficiary. Each Participant and/or each
Beneficiary must file with the Committee from time to time in writing his
or her post office address and each change of post office address. Any
communication, statement or notice addressed to a Participant and/or
Beneficiary at such last post office address filed with the Committee or
if no address is filed with the Committee then at the last post office
address as shown on the Employer's records, will be binding on the
Participant and/or Beneficiary for all purposes of the Plan. Neither the
Committee nor the Trustee shall be required to search for or locate a
Participant or Beneficiary.
Any other provision of the Plan to the contrary notwithstanding, if any
application for a benefit has not been filed by a Participant otherwise
eligible therefor within ninety (90) days after the Plan Year in which
occurred his or her termination date, the Committee shall mail to such
Participant and/or Beneficiary at his or her last known address an
application for benefit and a reminder that he or she is eligible for such
benefit. If such application is not filed with the Committee in accordance
with the provisions of the Plan within ninety (90) days after it is so
mailed to such Participant or his or her termination date, whichever is
later, the benefit shall be forfeited and shall be used to reduce future
Employer Contributions as though the Participant were not vested in his or
her accounts as of the end of said ninety (90) day period. Upon the
subsequent filing of an application therefor by the Participant and/or his
Beneficiary, such accounts shall be immediately reinstated pursuant to
this provision as though the Participant were 100% vested in his or her
accounts in an amount equal to the cash value of the accounts on the date
forfeited. To the extent forfeited amounts are not available, the Employer
shall contribute the amount required to reinstate the Participant's
account balance.
7.15 Limitation on Certain Distributions. Notwithstanding anything contained
herein to the contrary, the Trustee may, in its discretion, delay
satisfying requests for distributions for up to one year where
distributions require amounts to be withdrawn from the Guaranteed
Investment Contract Fund; provided, however, that in no event shall the
Trustee delay distributions to a Participant beyond the legally required
time for distribution as set forth in Section 7.5.
7.16 Form of Distributions and Withdrawals. The Trustee shall make all
distributions and withdrawals under the Plan, including Hardship
withdrawals, other withdrawals while the Participant is still employed,
and distributions upon retirement, disability, death and separation from
service, pro rata, from all accounts and Investment Funds, as follows:
(A) In a Plan with no Employer Stock Fund, all withdrawals and
distributions under the Plan shall be made in cash.
(B) In a Plan with an Employer Stock Fund:
(1) Withdrawals and distributions under the Plan from the other
Investment Fund(s) shall be made in cash.
(2) Withdrawals and distributions under the Plan from the Employer
Stock Fund may be made in cash or in full shares of Employer
Stock, with any fractional share paid in cash, as elected by
the Participant. For the cash portion of any distribution or
withdrawal, the Participant will receive the cash proceeds
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from the sale of shares of Employer Stock as of the sale date.
ARTICLE VIII
DIRECT ROLLOVERS
8.1 General. This Article 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 Article, 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.
8.2 Definitions.
(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 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.
(E) Waiver of Notice. If a distribution is one to which Sections 401(a)
(11) and 417 of the Internal Revenue Code do not apply, such
distribution may commence less than 30 days after the notice
required under Section 1.411(a)-(11)(c) of the Income Tax
Regulations is given, provided that: (1) the plan administrator
clearly informs the Participant that the Participant has a right to
a period of at least 30 days after receiving the notice to consider
the decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and (2) the
Participant, after receiving the notice, affirmatively elects a
distribution.
ARTICLE IX
TOP-HEAVY PROVISIONS
9.1 Use of Top-Heavy Provisions. If the Plan becomes a Top-Heavy Plan in any
Plan Year after December 31, 1983, the provisions of this Article IX will
supersede any conflicting provision in the Plan or the Adoption Agreement.
The Committee has sole responsibility to make the determination as to the
top-heavy status of the Plan.
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9.2 Top-Heavy Definitions.
(A) Key Employee: Any Employee or former Employee (and the Beneficiaries
of such Employee) who at any time during the determination period
was an officer of the Employer if such individual's annual
Compensation exceeds 50% of the dollar limitation under Section
415(b)(1)(A) of the Code, an owner (or considered an owner under
Section 318 of the Code) of one of the ten largest interests in the
Employer if such individual's Compensation exceeds 100% of the
dollar limitation under Section 415(c)(1)(A) of the Code, a 5 per
cent owner of the Employer, or a 1 per cent owner of the Employer
who has an annual Compensation of more than $150,000. Annual
compensation means compensation as defined in Item B(4)(a) of the
Adoption Agreement, but including amounts contributed by the
Employer pursuant to a salary reduction agreement which are
excludable from the Employee's gross income under Section 125,
Section 402(e)(3), Section 402(h)(1)(B) or Section 403(b) of the
Code. The determination period is the Plan Year containing the
Determination Date and the 4 preceding Plan Years.
The determination of who is Key Employee will made by the Committee
in accordance with Section 416(i)(1) of the Code and the regulations
thereunder.
(B) Top-Heavy Plan: This Plan, for any Plan Year beginning after
December 31, 1983, if any of the following conditions exists:
(1) If the Top-Heavy Ratio for this Plan exceeds 60 percent and
this Plan is not part of any Required Aggregation Group or
Permissive Aggregation Group of plans.
(2) If this Plan is a part of a Required Aggregation Group of
plans but not part of a Permissive Aggregation Group and the
Top-Heavy Ratio for the group of plans exceeds 60 percent.
(3) If this Plan is a part of a Required Aggregation Group and
part of a Permissive Aggregation Group of plans and the
Top-Heavy Ratio for the Permissive Aggregation Group exceeds
60 percent.
(C) Top-Heavy Ratio: For purposes of determining if the Plan is a
Top-Heavy Plan:
(1) If the Employer maintains one or more defined contribution
plans (including any Simplified employee pension Plan) and the
Employer has not maintained any defined benefit Plan which
during the 5-year period ending on the Determination Date(s)
has or has had accrued benefits, the Top-Heavy Ratio for this
Plan alone or for the Required or Permissive Aggregation Group
as appropriate is a fraction, the numerator of which is the
sum of the account balances of all Key Employees as of the
Determination Date(s) (including any part of any account
balance distributed in the 5-year period ending on the
Determination Date(s)), and the denominator of which is the
sum of all account balances (including any part of any account
balance distributed in the 5-year period ending on the
Determination Date(s), both computed in accordance with
Section 416 of the Code and the regulations thereunder. Both
the numerator and denominator of the Top-Heavy Ratio are
increased to reflect any contribution not actually made as of
the Determination Date, but which is required to be taken into
account on that date under Section 416 of the Code and the
regulations thereunder.
(2) If the Employer maintains one or more defined contribution
plans (including any Simplified Employee Pension Plan) and the
Employer maintains or has maintained one or more defined
benefit plans which during the 5-year period ending on the
Determination Date(s) has or has had any accrued benefits, the
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Top-Heavy Ratio for any Required or Permissive Aggregation
Group as appropriate is a fraction, the numerator of which is
the sum of account balances under the aggregated defined
contribution plan or plans for all Key Employees determined in
accordance with (1) above, and the Present Value of accrued
benefits under the aggregated defined benefit plan or plans
for all Key Employees as of the Determination Date(s), and the
denominator of which is the sum of the account balances under
the aggregated defined contribution plan or plans for all
Participants, determined in accordance with (1) above, and the
Present Value of accrued benefits under the defined benefit
plan or plans for all Participants as of the Determination
Date(s), all determined in accordance with Section 416 of the
Code and regulations thereunder. The accrued benefits under a
defined benefit plan in both the numerator and denominator of
the Top-Heavy Ratio are increased for any distribution of an
accrued benefit made in the five-year period ending on the
Determination Date.
(3) For purposes of (1) and (2) above, the value of account
balances and the Present Value of accrued benefits will be
determined as of the most recent Valuation Date that falls
within or ends with the 12-month period ending on the
Determination Date, except as provided in Section 416 of the
Code and the regulations thereunder for the first and second
Plan years of a defined benefit Plan. The account balances and
accrued benefits of a Participant (a) who is not a Key
Employee but who was a Key Employee in a prior year, or (b)
who has not been credited with at least one Hour of Service
with any Employer maintaining the Plan at any time during the
five-year period ending on the Determination Date will be
disregarded. 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
of the Code and the regulations thereunder. Voluntary
deductible employee contributions will not be taken into
account for purposes of computing the Top-Heavy Ratio. When
aggregating plans the value of account balances and accrued
benefits will be calculated with reference to the
Determination Dates that fall within the same calendar year.
The accrued benefit of a Participant other than a Key Employee
shall be determined under (a) the method, if any, that
uniformly applies for accrual purposes under all defined
benefit plans maintained by the Employer, or (b) if there is
no such method, as if such benefit accrued not more rapidly
than the slowest accrual rate permitted under the fractional
rule of Section 411(b)(1)(C) of the Code.
(D) Permissive Aggregation Group: The Required Aggregation Group of
plans plus any other Plan or plans of the Employer which, when
considered as a group with the Required Aggregation Group, would
continue to satisfy the requirements of Section 401(a)(4) and
Section 410 of the Code.
(E) Required Aggregation Group: (1) Each qualified Plan of the Employer
in which at least one Key Employee participates or participated at
any time during the determination period (regardless of whether the
Plan has terminated), and (2) any other qualified Plan of Employer
which enables a Plan described in (1) to meet the requirements of
Section 401(a)(4) or Section 410 of the Code.
(F) Determination Date: For purposes of determining if there is a Key
Employee and for calculating the Top-Heavy Ratio: 1) for any Plan
Year subsequent to the first Plan Year, the last day of the
preceding Plan Year, and 2) for the first Plan Year of the Plan, the
last day of that year.
(G) Valuation Date: The date specified in Item B(14)(c) of the Adoption
Agreement as of which account balances or accrued benefits are
valued for purposes of calculating the Top-Heavy Ratio.
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(H) Present Value: Present Value shall be based only on the interest and
mortality rates specified in the Adoption Agreement.
9.3 Minimum Allocation.
(A) Except as otherwise provided in Section 9.3(C) and (D) below, the
Employer Contributions and forfeitures allocated on behalf of any
Participant who is not a Key Employee shall not be less than the
lesser of three per cent (3%) of such Participant's Compensation or
in the case where the Employer has no defined benefit Plan which
designates this Plan to satisfy Section 401 of the Code, the largest
percentage of Employer contributions and forfeitures, as a
percentage of the Key Employee's Compensation, as limited by Section
401(a)(17) of the Code, allocated on behalf of any Key Employee for
that year. The minimum allocation is determined without regard to
any Social Security contribution. This minimum allocation shall be
made even though, under other Plan provisions, the Participant would
not otherwise be entitled to receive an allocation or would have
received a lesser allocation for the year because of (i) such
Participants failure to complete 1,000 Hours of Service (or any
other equivalent provided in the Plan) or (ii) the Employee's
failure to make mandatory contributions or (iii) Compensation less
than a stated amount.
(B) For purposes of computing the minimum allocation, Compensation shall
mean Compensation as defined in Section 6.6(A) as limited by Section
401(a)(17) of the Code.
(C) Section 9.3(A) shall not apply to any Participant who was not
employed by the Employer on the last day of the Plan Year.
(D) Section 9.3(A) shall not apply to any Participant to the extent the
Participant is covered under any other plan or plans of the Employer
and the Employer has provided in Item B(14) of the Adoption
Agreement that the minimum allocation or benefit requirement
applicable to Top-Heavy Plans will be met in the other plan or
plans.
(E) The minimum allocation required (to the extent required to be
nonforfeitable under Section 416(b) of the Code) may not be
forfeited under Section 411(a)(3)(B) or Section 411(a)(3)(D) of the
Code.
(F) For each Plan Year in which the Paired Plans are Top-Heavy, the
Top-Heavy requirements set forth in Article VIII of the Plan and
Item B(14) of the Adoption Agreement shall apply.
(G) Neither Before Tax Contributions nor Matching Contributions may be
taken into account for the purpose of satisfying the minimum
Top-Heavy contribution requirements.
9.4 Minimum Vesting Schedules. For any Plan Year in which this Plan is a
Top-Heavy Plan, the vesting schedule elected by the Employer in Item B(14)
and/or C(4)(d) of the Adoption Agreement will automatically apply to the
Plan. The minimum vesting schedule applies to all benefits within the
meaning of Section 411(a)(7) of the Code except those attributable to
Employee contributions, including benefits accrued before the effective
date of Section 416 and benefits accrued before the Plan became a
Top-Heavy Plan. Further, no decrease in a Participant's nonforfeitable
percentage may occur in the event the Plan's status as a Top-Heavy Plan
changes for any Plan Year. However, this Section 9.4 does not apply to the
account balance of any Employee who does not have an Hour of Service after
the Plan has initially become a Top-Heavy Plan and such Employee's account
balance attributable to employer contributions and forfeitures will be
determined without regard to this Section 9.4.
ARTICLE X
TRUSTEE
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10.1 Trustee. The Trustee shall receive, hold, invest, administer and
distribute the Trust Fund in accordance with the provisions of the Plan as
herein set forth.
10.2 Records and Accounts of Trustee. The Trustee shall maintain accurate and
detailed records and accounts of all its transactions of the Trust Fund,
which shall be available at all reasonable times for inspection or audit
by any person designated by the Employer and by any other person or entity
to the extent required by law.
10.3 Reports to Employer. As soon as practicable following the close of each
accounting period and following the effective date of the termination of
the Plan, the Trustee shall file a written report with the Employer. The
report shall set forth all transactions with respect to the Trust Fund
during the period listing the Trust Fund assets with their market value as
of the close of the period covered by the report.
10.4 Powers of Trustee. The Trustee shall administer the Trust Fund as a
nondiscretionary Trustee, and the Trustee shall not have any discretion or
authority with regard to the investment of the Trust Fund and shall act
solely as a directed Trustee of the fund contributed to it. The Trustee,
as a nondiscretionary Trustee, as may be directed by the Employer (or the
Participants to the extent provided herein) is authorized and empowered,
by way of limitation, with the following powers, rights and duties, each
of which the Trustee shall exercise in a nondiscretionary manner as
directed in accordance with the direction of the Employer (or the
Participants) as a Named Fiduciary (except to the extent that Plan assets
are subject to the control and management of a properly appointed
Investment Manager):
(A) At the direction of the Named Fiduciary, to sell, write options on,
convey or transfer, invest and reinvest any part thereof in each and
every kind of property, whether real, personal or mixed, tangible
orintangible, whether income or non-income producing and wherever
situated, including, but not limited to, time deposits (including
time deposits in the Trustee or its affiliates, or any successor
thereto, if the deposits bear a reasonable rate of interest), fee
simple, leasehold or lesser estates in real estate, shares of common
and preferred stock, mortgages, bonds, leases, notes, debentures,
equipment or collateral trust certificates, rights, warrants,
convertible or exchangeable, and other corporate, individual or
government securities or obligations, annuity, retirement or other
insurance contracts, mutual funds (including funds for which the
Trustee or its affiliates serve as investment advisor), units of
group or collective trusts established to permit the pooling of
funds of separate pension and profit sharing trusts, provided the
Internal Revenue Service has ruled such group trust to be qualified
under Code Section 401(a) and exempt under Code Section 501(a) (or
the applicable corresponding provision of any other Revenue Act) or
in units of any other common, collective o commingled trust fund
heretofore or hereafter established and maintained by the Trustee or
its affiliates; as long as the Trustee holds any units hereunder,
the instrument establishing such common trust fund (including all
amendments thereto) shall be deemed to have been adopted and made a
part of this Plan, and such other investments as the Named Fiduciary
shall direct the Trustee to invest Plan assets or hold as an
Investment Fund for the investment of Plan assets pursuant to
Participant direction.
(B) At the direction of the Named Fiduciary, to sell, convert, redeem,
exchange, grant options for the purchase or exchange of, or
otherwise dispose of any property held hereunder, at public or
private sale, for cash or upon credit with or without security,
without obligation on the part of any person dealing with the
Trustee to see to the application of the proceeds of or to inquire
into the validity, expediency, or propriety of any such disposal;
(C) At the direction of the Named Fiduciary, to manage, operate, repair,
partition and improve and mortgage or lease (with or without an
option to purchase) for any length of time any property
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held in the Trust Fund; to renew or extend any mortgage or lease,
upon such terms as the Trustee may deem expedient; to agree to
reduction of the rate of interest on any mortgage; to agree to any
modification in the terms of any lease or mortgage, or of an
guarantee pertaining to either of them; to exercise and enforce any
right of foreclosure; to bid in property on foreclosure; to take a
deed in lieu of foreclosure with or without paying consideration
therefor and in connection therewith to release the obligation on
the bond secured by the mortgage; and to exercise and enforce in any
action, suit or proceeding at law or in equity any rights,
covenants, conditions, or remedies with respect to any lease or
mortgage or to any guarantee pertaining to either of them or to
waive any default in the performance thereof;
(D) In accordance with the direction of a Named Fiduciary, to vote,
personally or by general or limited proxy, any shares of stock or
other securities held in the Trust Fund, provided that all voting
rights pertaining to shares of any financial institution in the
state where the Trustee is located shall be exercised by the trustee
only if and as directed in writing by the Committee; provided
further, that the Trustee and the Employer may agree in writing that
such voting rights be passed through to the Participant's in
proportion to their interest in the Investment Funds, to delegate
discretionary voting power to the trustees of a voting trust for any
period of time; and to exercise or sell, personally or by power of
attorney, any conversion or subscription or other rights appurtenant
to any securities or other property held in the Trust Fund;
(E) As may be directed by the Named Fiduciary, to join in or oppose any
reorganization, recapitalization, consolidation, merger or
liquidation, or any Plan therefor, or any lease (with or without an
option to purchase), mortgage or sale of the property of any
organization the securities of which are held in the Trust Fund; to
pay from the Trust Fund any assessments, charges, or compensation
specified in any Plan of reorganization, recapitalization,
consolidation, merger or liquidation; to deposit any property with
any committee or depository; and to retain any property allotted to
the Trust Fund in any reorganization, recapitalization,
consolidation, merger or liquidation;
(F) In accordance with the written instructions of a Named Fiduciary, to
settle, compromise or commit to arbitration any claim, debt or
obligation of or against the Trust Fund; to enforce or abstain from
enforcing any right, claim, debt, or obligation; and to abandon any
property determined by it to be worthless;
(G) As may be directed by the Named Fiduciary, to continue to hold any
property of the Trust Fund, whether or not productive of income; to
reserve from investment and keep unproductive of income, without
liability for interest, such cash as it deems advisable and,
consistent with its obligations as Trustee hereunder, to hold such
cash in a demand deposit in the Trustee bank, its affiliates, or any
successor thereto;
(H) To hold property of the Trust Fund in its own name, or in the name
of nominee, without disclosure of this trust, or in bearer form so
that it may pass by delivery, and to deposit property with any
depository, but no such holding or depositing shall relieve the
Trustee of its responsibility for the safe custody and disposition
of the Trust Fund in accordance with the provisions of this
agreement as may be directed by the Named Fiduciary, and the
Trustee's records shall at all times show that such property is part
of the Trust Fund;
(I) As directed by the Named Fiduciary, to make, execute and deliver, as
Trustee, any deeds, conveyances, leases (with or without option to
purchase), mortgages, options, contracts, waivers, or other
instruments that the Trustee shall deem necessary or desirable in
the exercise of its powers under this agreement;
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(J) To employ, at the expense of the Employer or the Trust Fund, agents
and delegate to them such duties as the Trustee sees fit; the
Trustee shall not be responsible for any loss occasioned by any such
agents selected by it with reasonable care; the Trustee may consult
with legal counsel(who may be counsel for the Employer) concerning
any questions which may arise with reference to its power or duties
under this Plan, and the written opinion of such counsel shall be
full and complete protection with respect to any action taken or not
taken by the Trustee in good faith and in accordance with the
written opinion of such counsel;
(K) To pay out of the Trust Fund any taxes imposed or levied with
respect to the Trust Fund and may contest the validity or amount of
any tax, assessment, penalty, claim or demand respecting the Trust
Fund; however, unless the Trustee shall have first been indemnified
to its satisfaction, it shall not be required to contest the
validity of any tax, or to institute, maintain or defend against any
other action or proceeding either at law or in equity;
(L) To make loans to Participants in accordance with policies
established by the Committee and in accordance with the terms of the
Plan and the and to segregate or otherwise identify property of the
Trust Fund as directed by the Committee for such purpose including
providing collateral for loans made pursuant to the Plan.
10.5 Trustee's Fees and Expenses. The Trustee shall be entitled to receive
reasonable fees for its services hereunder in accordance with its schedule
of fees then in effect and shall be entitled to receive reimbursement for
all reasonable expenses incurred by it in the administration of this Plan.
Except to the extent that the Employer shall pay such fees and expenses,
they shall be charged to and collected by the Trustee from each
Participant's accounts. The Trustee's fees and expenses for extraordinary
services in connection with any Participant's accounts may be charged to
and collected by the Trustee from such accounts.
10.6 Trustee May Resign or Be Removed. The Trustee may resign by written notice
to the Employer which shall be effective sixty (60) days after delivery
unless the Trustee and the Employer agree to an earlier effective date.
The Trustee may be removed by the Employer by written notice to the
Trustee which shall be effective sixty (60) days after delivery unless the
Trustee and the Employer agree to an earlier effective date. Prior to the
effective date of such resignation or removal, the Employer shall amend
its Plan to eliminate any reference to the PRISM(R) Prototype Retirement
Plan and Trust, and appoint a new trustee. The Trustee shall deliver the
Trust Fund to its successor on the effective date of resignation or
removal, or as soon after such effective date as practicable. However, the
Trustee may first subtract any amounts owed it from the Trust Fund for
compensation, expenses and taxes due.
If the Employer fails to so amend the Plan and appoint a successor trustee
within the sixty (60) days, or longer period as the Trustee permits in
writing, the Trustee shall apply to a court of competent jurisdiction for
appointment of a successor trustee.
10.7 Separate Investment Funds.
(A) The assets of the Trust Fund shall be held in such number of
Investment Funds as the Employer and the Trustee may agree, plus an
Employer Stock Fund if selected by the Employer in the Adoption
Agreement, as the Employer shall designate in writing on the
Investment Fund Designation form affixed to the Adoption Agreement.
Such Investment Funds shall be selected by the Employer from among
the funds offered by the Trustee for use as Investment Funds in the
PRISM(R)Prototype Retirement Plan & Trust. The Trustee reserves the
right to change the funds available for use as Investment Funds in
the PRISM(R)Prototype Retirement Plan Trust, from time to time, and
the Employer agrees to execute an amended Investment Fund
Designation form to reflect any such changes as may impact the
Investment Funds available to the Employer's Plan. The Employer
hereby acknowledges that,
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available as Investment Funds are interests in registered investment
companies (i.e. mutual funds) for which the sponsoring organization,
its parent, affiliates or successors may serve as investment advisor
and receive compensation from the registered investment company for
its services as investment advisor. The Employer acknowledges that
it, as Named Fiduciary, has the sole responsibility for selection of
the Investment Funds offered under the Plan, and it has done so on
the basis of the Employer's determination, after due inquiry, of the
appropriateness of the selected Investment Funds as vehicles for the
investment of Plan assets pursuant to the terms of the Plan,
considering all relevant facts and circumstances, including but not
limited to (i) the investment policy and philosophy of the Employer
developed pursuant to ERISA ss.402(b)(1); (ii) the Participants,
including average level of investment experience and sophistication;
(iii) the ability of Participants, using an appropriate mix of
Investment Funds, to diversify the investment of Plan assets held
for their benefit; (iv) the ability of Participants to, utilizing an
appropriate mix of Investment Funds, to structure an investment
portfolio within their account in the Plan with risk and return
characteristics within the normal range of risk and return
characteristics for individuals with similar investment backgrounds,
experience and expectations; and, (v) in making the selection of
Investment Funds, the Employer did not rely on any representations
or recommendations from the Trustee or any of its employees, except
as may have been provided through written materials, including
marketing materials provided by the various sponsors or distributors
of the Investment Funds, and that the Investment Fund selection has
not be influenced, approved, or encouraged through the actions of
the Trustee or its employees.
For purposes of the Plan, "Employer Stock" shall mean common stock
listed on a recognized securities exchange issued by an Employer of
Employees covered by the Plan or by an affiliate of such Employer
and which shall be a "qualifying employer security" as defined in
ERISA. The Employer Stock Fund shall be invested and reinvested in
shares of Employer Stock, which stock shall be purchased by the
Trustee to the extent not contributed to the Plan by the Employer,
except for amounts which may reasonably be expected to be necessary
to satisfy distributions to be made in cash. No Employer Stock shall
be acquired or held in any Investment Fund other than the Employer
Stock Fund. Up to 100% of the assets of the Trust Fund may be
invested in Employer Stock.
All contributions shall be allocated by the Trustee to the Plan's
Investment Funds specified by the Employer. Dividends, interest and
other distributions shall be reinvested in the same Investment Fund
from which received.
Employers sponsoring 401(k) profit sharing plans may elect to
determine the Investment Funds, including an Employer Stock Fund, if
applicable, into which Matching Contributions and/or Employer
Contributions will be invested and/or into which Participants may
not direct contributions. By making these designations, the Employer
shall be deemed to have advised the Trustee in writing regarding the
retention of investment powers.
Notwithstanding the foregoing provisions of this Section 10.7(A),
the Trustee may, in its discretion, accept certain investments which
have been, and are, held as part of the Trust Fund prior to the date
the Employer adopted this Plan. Such investments shall be considered
investments directed by the Employer or an Investment Committee for
the Plan ("Investment Committee"), if one is acting. The Trustee
shall hold, administer and dispose of such investments in accordance
with directions to the Trustee contained in a written notice from
the Employer or Investment Committee. Any such notice shall advise
the Trustee regarding the retention of investment powers by the
Employer or the Investment Committee and shall be of a continuing
nature or otherwise, and may be revoked in writing by the Employer
or Investment Committee.
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The Trustee shall not be liable but shall be fully protected by
reason of its taking or refraining from taking any action at the
direction of the Employer or Investment Committee, nor shall the
Trustee be liable but shall be fully protected by reason of its
refraining from taking any action because of the failure of the
Employer or the Investment Committee to give a direction or order.
The Trustee shall be under no duty to question or make inquiry as to
any direction, notification or order or failure to give a direction,
notification or order by the Employer or the Investment Committee.
The Trustee shall be under no duty to make any review of investments
directed by the Employer or Investment Committee acquired for the
Trust Fund and under no duty at any time to make any recommendation
with respect to disposing of or continuing to retain any such
investments. While the Employer may direct the Trustee with respect
to Plan investments, the Employer may not (1) borrow from the Fund
or pledge any assets of the Fund as security for a loan; (2) buy
property or assets from or sell property or assets to the Fund; (3)
charge any fee for services rendered to the Fund; or (4) receive any
services from the Fund on a preferential basis.
The Employer hereby indemnifies and holds the Trustee or its nominee
harmless from any and all actions, claims, demands, liabilities,
losses, damages or reasonable expenses of whatsoever kind and nature
in connection with or arising out of (1) any action taken or omitted
in good faith or any investment or disbursement of any part of the
Trust Fund made by the Trustee in accordance with the directions of
the Employer or the Investment Committee or any inaction with
respect to any Employer or Investment Committee directed investment
or with respect to any investment previously made at the direction
of the Employer or Investment Committee in the absence of directions
from the Employer or Investment Committee therefor, or (2) any
failure by the Trustee to pay for any property purchased by the
Employer or the Investment Committee for the Trust Fund by reason of
the insufficiency of funds in the Trust Fund.
Anything hereinabove to the contrary notwithstanding, the Employer
shall have no responsibility to the Trustee under the foregoing
indemnification if the Trustee knowingly participated in or
knowingly concealed any act or omission of the Employer or
Investment Committee knowing that such act or omission constituted a
breach of fiduciary responsibility, or if the Trustee fails to
perform any of the duties undertaken by it under the provisions of
this Plan, or if the Trustee fails to act in conformity with the
directions of an authorized representative of the Employer or the
Investment Committee.
(B) Each Participant shall by such mechanism as may be agreed upon
between the Trustee and Employer, direct that the contributions made
to his or her accounts for which the Participant may direct
investments, as selected by the Employer in the Adoption Agreement,
be invested in one or more of the Investment Funds, including the
Employer Stock Fund, if applicable. At the time an Employee becomes
eligible for the Plan, he or she shall specify the percentage of his
or her accounts (expressed in percentage increments as may be agreed
to between the Employer and the Trustee) to be invested pro-rata in
each such Investment Fund.
(C) Upon prior written notice to the Trustee, or other form of
notice acceptable to the Trustee, a Participant may change an
investment direction with respect to future contributions.
Through acceptable notice to the Trustee, the Participant may
elect to transfer all or a portion of such Participant's interest
in each Investment Fund (based on the value of such interest on the
Valuation Date immediately preceding such election), including
an Employer Stock Fund, if applicable, to any other of the
Investment Funds selected by the Employer so that the
Participant's interest in the said Investment Funds immediately
after the transfer is allocated in percentage increments as may
be agreed to by the Employer and the Trustee.
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Notwithstanding any Participant's election to change Investment
Funds, the Trustee may, in its discretion, delay satisfaction of
requests to change from a guaranteed investment contract fund for up
to one year, or delay satisfaction of changes in Investment Funds
pending settlement of prior changes in Investment Funds.
(D) The Employer will be responsible when transmitting Employer and
Employee contributions to show the dollar amount to be credited to
each Investment Fund for each Employee.
(E) Except as otherwise provided in the Plan, neither the Trustee, nor
the Employer, nor any fiduciary of the Plan shall be liable to the
Participant or any of his or her beneficiaries for any loss
resulting from action taken at the direction of the Participant.
(F) In a 401(k) profit sharing Plan where the Employer has elected to
invest a portion or all of the Matching Contributions and/or
Employer Contributions in the Employer Stock Fund, then the
following shall apply:
If selected by the Employer in the Adoption Agreement, a Participant
who is fifty-five (55) years of age or older and who is 100% vested
in his Matching Contribution account and/or Employer Contribution
account may elect to have the Employer Stock (and any earnings
thereon) attributable to such Matching Contributions and/or Employer
Contributions diversified in the other Investment Funds under the
Plan in accordance with the following rules and limitations. The
amount of Employer Stock which may be diversified each Plan Year
shall be determined in accordance with the following schedule:
=============================================================
then the percent of the
number of whole shares
(rounded to the nearest
whole number) credited to
If the age attained by the Participants' Matching
the Participant Account and/or Employer
during the Plan Year is: Contribution Account on the
last day of the preceding
Plan Year which may be
diversified pursuant to the
rules below may not exceed
=============================================================
55 25%
======================================================
56 25%
======================================================
57 30%
======================================================
58 40%
======================================================
59 50%
======================================================
60 60%
======================================================
61 70%
======================================================
62 80%
======================================================
63 90%
======================================================
64 100%
======================================================
The election to diversify may only be made once each Plan Year. The
election may be made in any month by providing notice to the
Committee in accordance with the frequency selected by the Employer
for other Investment Fund changes under the Plan. Each election to
make a transfer pursuant to this Section shall specify the
Investment Fund(s) into which the shares subject to diversification
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will be reinvested so that the Participant's interest in the said
Investment Fund(s), immediately after the transfer, is allocated in
increments as may be allowed by the Trustee. Thereafter, the
Participant's interest in said Investment Fund(s) shall be subject
to transfer in accordance with this Section.
(G) Forfeitures arising under the Plan will be invested in an Investment
Fund as may be selected in the discretion of the Employer.
(H) In the event the Trust holds life insurance, the following
restrictions shall apply:
(1) Limitations on Premium Payments
(a) If ordinary or whole life insurance contracts are
purchased on the life of a Participant, less than
one-half of the insured Participant's current allocation
of contributions will be used to pay premiums
attributable to such insurance. Ordinary or whole life
insurance contracts are those with both nondecreasing
benefits and nonincreasing premiums.
(b) If term or universal life insurance contracts are
purchased, no more than one-quarter of the insured
Participant's current allocation of contributions will
be used to pay premiums attributable to such insurance.
(c) If a combination of ordinary or whole life insurance
contracts and term or universal life insurance contracts
are purchased, the sum of one-half of the ordinary life
insurance premiums and all other life insurance premiums
will not exceed one-fourth of the aggregate employer
contributions allocated to any participant.
(2) The Plan Administrator will direct the Trustee to convert the
entire value of any life insurance contract at or before the
Participant's actual retirement or distribution on termination
of employment, but not later than the Participant's Required
Beginning Date to provide cash values or retirement annuity
income, or, subject to the Joint and Survivor Annuity waiver
requirements of Section 7.10, the Plan Administrator may
direct the Trustee to distribute the insurance contract
directly to the Participant.
(3) The Trustee, at the direction of the Employer shall be
entitled to exercise all rights and options with respect to
any such life insurance contracts held by the Plan.
10.8 Registration, Distribution and Voting of Employer Stock and Procedures
Regarding Tender Offers.
(A) All voting rights on shares of Employer Stock held in the Employer
Stock Fund shall be exercised by the Trustee only as directed by the
Participants acting in their capacity as "Named Fiduciaries" (as
defined in Section 402 of the Act) in accordance with the following
provisions of this Section 10.8(A):
(1) As soon as practicable before each annual or special
shareholders' meeting of the Employer, the Trustee shall
furnish to each Participant sufficient copies of the proxy
solicitation material sent generally to shareholders, together
with a form requesting confidential instructions on how the
shares of Employer Stock allocated to such Participant's
account, and, separately, such shares of Employer Stock as may
be unallocated ("Unallocated Shares") or allocated to
Participant accounts but for which the Trustee does not
receive timely voting instruction from the Participant
("Non-Directed Shares"), (including fractional shares to
1/1000th of a share) are to be voted. The direction with
respect to Non-Directed Shares and Unallocated Shares shall
apply to such number of votes equal to the total number of
votes attributable to Non-Directed Shares and Unallocated
Shares multiplied by a fraction, the numerator of which is the
number of shares of Employer Stock credited to the
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Participant's account and the denominator of which is the
total number of shares credited to the accounts of all such
Participants who have timely provided directions to the
Trustee with respect to Non-Directed Shares and Unallocated
Shares under this Section 10.8(A)(1). The Employer and the
Committee will cooperate with the Trustee to ensure that
Participants receive the requisite information in a timely
manner. The materials furnished to the Participants shall
include a notice from the Trustee that the Trustee will vote
any shares for which timely instructions are not received by
the Trustee as may be directed by those voting Participants,
acting in their capacity as Named Fiduciaries of the Plan as
provided above. Upon timely receipt of such instructions, the
Trustee shall vote the shares as instructed. The instructions
received by the Trustee from Participants or Beneficiaries
shall be held by the Trustee in strict confidence and shall
not be divulged or released to any person including directors,
officers or employees of the Employer, or of any other
company, except as otherwise required by law.
(2) With respect to all corporate matters submitted to
shareholders, all shares of Employer Stock shall be voted only
in accordance with the directions of such Participants as
Named Fiduciaries as given to the Trustee as provided in
Section 10.8(A)(1). With respect to shares of Employer Stock
allocated to the account of a deceased Participant, such
Participant's Beneficiary, as Named Fiduciary, shall be
entitled to direct the voting of shares of Employer Sock as if
such Beneficiary were the Participant.
(B) All tender or exchange decisions with respect to Employer Stock held
in the Employer Stock Fund shall be made only by the Participants
acting in their capacity as Named Fiduciaries with respect to the
Employer Stock allocated to their accounts in accordance with the
following provisions of this Section 10.8(B):
(1) In the event an offer shall be received by the Trustee
(including a tender offer for shares of Employer Stock subject
to Section 14(d)(1) of the Securities Exchange Act of 1934 or
subject to Rule 13e-4 promulgated under that Act, as those
provisions may from time to time be amended) to purchase or
exchange any shares of Employer Stock held by the Trust, the
Trustee will advise each Participant who has shares of
Employer Stock credited to such Participant's account in
writing of the terms of the offer as soon as practicable after
its commencement and will furnish each Participant with a form
by which he may instruct the Trustee confidentially whether or
not to tender or exchange shares allocated to such
Participant's account, and, separately, Unallocated Shares and
Non-Directed Shares (including fractional shares to 1/1000th
of a share). The directions with respect to Non-Directed
Shares and Unallocated Shares shall apply to such number of
Non-Directed Shares and Unallocated Shares equal to the total
number of Non-Directed Shares and Unallocated Shares
multiplied by a fraction, the numerator of which is the number
of shares of Employer Stock credited to the Participant's
account and the denominator of which is the total number of
shares credited to the accounts of all such Participants who
have timely provided directions to the Trustee with respect to
Non-Directed Shares and Unallocated Shares under this Section
10.8(B). The materials furnished to the Participants shall
include (i) a notice from the Trustee that, except as provided
in this Section 10.8(B), the Trustee will not tender or
exchange any shares for which timely instructions are not
received by the Trustee and (ii) such related documents as are
prepared by any person and provided to the shareholders of the
Employer pursuant to the Securities Exchange Act of 1934. The
Committee and the Trustee may also provide Participants with
such other material concerning the tender or exchange offer as
the Trustee or the Committee in its discretion determines to
be appropriate; provided, however, that prior to any
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distribution of materials by the Committee, the Trustee shall
be furnished with sufficient numbers of complete copies of all
such materials. The Employer and the Committee will cooperate
with the Trustee to ensure that Participants receive the
requisite information in a timely manner.
(2) The Trustee shall tender or not tender shares or exchange
shares of Employer Stock (including fractional shares to
1/1000th of a share) only as and to the extent instructed by
the Participants as Named Fiduciaries as provided in Section
10.8(B)(1). With respect to shares of Employer Stock allocated
to the account of a deceased Participant, such Participant's
Beneficiary, as a Named Fiduciary, shall be entitled to direct
the Trustee whether or not to tender or exchange such shares
as if such Beneficiary were the Participant. If tender or
exchange instructions for shares of Employer Stock allocated
to the account of any Participant are not timely received by
the Trustee, the Trustee will treat the non-receipt as a
direction not to tender or exchange such shares. The
instructions received by the Trustee from Participants or
Beneficiaries shall be held by the Trustee in strict
confidence and shall not be divulged or released to any
person, including directors, officers or employees of the
Employer, or of any other company, except as otherwise
required by law.
(3) In the event, under the terms of a tender offer or otherwise,
any shares of Employer Stock tendered for sale, exchange or
transfer pursuant to such offer may be withdrawn from such
offer, the Trustee shall follow such instructions respecting
the withdrawal of such securities from such offer in the same
manner and the same proportion as shall be timely received by
the Trustee from the Participants, as Named Fiduciaries,
entitled under this Section 10.8(B) to give instructions as to
the sale, exchange or transfer of securities pursuant to such
offer.
(4) In the event an offer shall be received by the Trustee and
instructions shall be solicited from Participants pursuant to
Section 10.8(B)(1-3) regarding such offer, and prior to
termination of such offer, another offer is received by the
Trustee for the securities subject to the first offer, the
Trustee shall use its best efforts under the circumstances to
solicit instructions from the Participants to the Trustee (i)
with respect to securities tendered for sale, exchange or
transfer pursuant to the first offer, whether to withdraw such
tender, if possible, and, if withdrawn, whether to tender any
securities so withdrawn for sale, exchange or transfer
pursuant to the second offer and (ii) with respect to
securities not tendered for sale, exchange or transfer
pursuant to the first offer, whether to tender or not to
tender such securities for sale, exchange or transfer pursuant
to the second offer. The Trustee shall follow all such
instructions received in a timely manner from Participants in
the same manner and in the same proportion as provided in
Section 10.8(B)(1-3). With respect to any further offer for
any Employer Stock received by the Trustee and subject to any
earlier offer (including successive offers from one or more
existing offerors), the Trustee shall act in the same manner
as described above.
(5) A Participant's instructions to the Trustee to tender or
exchange shares of Employer Stock will not be deemed a
withdrawal or suspension from the Plan or a forfeiture of any
portion of the Participant's interest in the Plan. Funds
received in exchange for tendered shares will be credited to
the account of the Participant whose shares were tendered and
will be used by the Trustee to purchase Employer Stock, as
soon as practicable. In the interim, the Trustee will invest
such funds in short-term investments permitted under the Plan,
and in the same manner in which forfeited amounts are
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invested.
(6) In the event the Employer initiates a tender or exchange
offer, the Trustee may, in its sole discretion, enter into an
agreement with the Employer not to tender or exchange any
shares of Employer Stock in such offer, in which event, the
foregoing provisions of this Section 10.8(B) shall have no
effect with respect to such offer and the Trustee shall not
tender or exchange any shares of Employer Stock in such offer.
(C) The Trustee acting with respect to the Employer Stock Fund may with
the consent of the Committee designate any Employee or other Trustee
as agent to solicit the instructions to vote provided for in
Subsection (A) of this Section, and shall be held harmless in
relying upon such agent's written advice as to how shares are to be
voted, and said Trustee may, with the consent of the Committee,
designate any Employee as agent to solicit instructions from
Participants regarding such a tender offer, as required under
Subsection (B) above, and shall be held harmless in relying upon
such agent's written advice as to whether shares of Employer Stock
are to be tendered.
(D) The Employer shall be responsible for complying with applicable
federal and state securities laws and regulations.
10.9 Valuation of Investment Funds and Accounts.
(A) As of each Valuation Date, the Trustee shall determine the fair
market value of each Investment Fund, including an Employer Stock
Fund, if any, being administered by the Trustee. With respect to
each such Investment Fund, the Trustee shall determine (a) the
change in value between the current Valuation Date and the then last
preceding Valuation Date, (b)the net gain or loss resulting from
expenses paid (including fees and expenses, if any, which are to be
charged to such Fund) and (c) realized and unrealized gains and
losses.
The transfer of funds to or from an Investment Fund pursuant to
Section 10.7(C) and payments, distributions and withdrawals from an
Investment Fund to provide benefits under the Plan for Participants
or Beneficiaries shall not be deemed to be gains, expenses or losses
of an Investment Fund.
After each Valuation Date, the Trustee shall allocate the net gain
or loss of each Investment Fund as of such Valuation Date to the
accounts of Participants participating in such Investment Fund on
such Valuation Date. Contributions, forfeitures and rollovers
received and credited to Participants' accounts as of such Valuation
Date, or as of any earlier date since the last preceding Valuation
Date shall not be considered in allocating gains or losses allocated
to Participants' accounts.
(B) The reasonable and equitable decision of the Trustee as to the value
of each Investment Fund, including an Employer Stock Fund, if any,
and of any account as of each Valuation Date shall be conclusive and
binding upon all persons having any interest, direct or indirect, in
the Investment Funds or in any account.
ARTICLE XI
ADMINISTRATION
11.1 Committee Membership. The Employer shall appoint a Committee which shall
consist of at least one member. The Committee members will be named in the
Adoption Agreement and may be, but are not required to be, Employees of
the Employer. All members of the Committee shall serve at the pleasure of
the Employer. In the event that the Committee has more than one member,
one member shall serve as Chairman and one as Secretary. Any member of the
Committee may resign by notice in writing to the Employer. Any vacancy in
the Committee shall be filled by the Employer as soon as practicable after
a vacancy. If the Employer does not designate a Committee, the Employer
shall assume all of the duties of the Committee.
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11.2 Powers and Duties of Committee. The Committee shall have all powers and
duties and only the powers and duties as are specifically conferred upon
it by this Plan or as the Employer may delegate to or impose upon it
consistent with the provisions of this Plan, ERISA and the Code. Without
limiting the generality of the foregoing, the Committee shall have the
following powers and duties:
(A) to interpret and construe the terms and provisions of this Plan and
to decide any questions which may arise hereunder, including but not
limited to --
(1) the amount of a Participant's Compensation,
(2) a Participant's Years of Service,
(3) the age of any person who might be entitled to receive
benefits,
(4) the right of any person to receive benefits,
(5) the amount of any benefits to be paid to any persons;
(B) to cause to be maintained all necessary records and accounts under
this Plan and to keep in convenient form any data as may be
necessary for valuation of the assets and liabilities;
(C) to rely upon the records of the Employer or upon any certificate,
statement or other representation made to it by a Participant, a
Beneficiary, the authorized representative of the Participant or
Beneficiary, or the Trustee concerning any fact required to be
determined under any of the provisions of this Plan, and the
Committee shall not be required to make inquiry into the propriety
of any action by the Employer or the Trustee;
(D) to give written notice to a Participant, a Beneficiary, or the
authorized representative of the Participant or Beneficiary, of the
amount of benefits payable under this Plan;
(E) to make and enforce any rules, not inconsistent with this Plan, as
it shall deem necessary or proper for the efficient administration
of this Plan;
(F) to have and exercise such other authority as it deems necessary to
carry out the purposes and provisions of this Plan, provided that
any act of discretion permitted shall be exercised in a uniform
non-discriminatory manner with respect to individuals in like or
similar circumstances;
(G) to adopt rules and guidelines for the administration of this Plan,
provided that they are not inconsistent with the terms of this Plan
and are uniformly applicable to all persons similarly situated and
to delegate in accordance with Section 11.8 such functions and
duties as the Committee deems advisable;
(H) to establish a funding policy and investment objectives consistent
with the purposes of the Plan and the requirements of law;
(I) to employ such attorneys, accountants and agents as it shall
determine to assist it in carrying out its duties hereunder.
Except as otherwise provided in this Plan or determined by the Employer,
any action or determination taken or made by the Committee or any
interpretation or construction made by the Committee shall be final and
shall be binding upon all persons. The Committee shall at all times
exercise the power and authority given to it under this Plan in a fair,
reasonable and non-discriminatory manner.
11.3 Actions of the Committee. Any act authorized or required to be taken by
the Committee shall be taken by a decision of the majority of the members
acting at the time. Any decision of the Committee may be expressed by a
vote at a Committee meeting or in writing, signed by all members of the
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Committee, without a meeting. All allocation statements, notices,
directions, approvals, instructions and all other communications required
or authorized to be given by the Committee under this Plan shall be in
writing and signed by a majority of the members of the Committee. The
Committee may, however, by an instrument in writing signed by all the
members and filed with the Trustee, designate one or more if its members
as having the authority to sign all such communications on behalf of the
Committee. Until notified in writing to the contrary, the Trustee shall be
fully protected in acting in accordance with all communications which it
considers genuine and to have been signed on behalf of the Committee by
the members authorized to sign communications. If at any time for any
reason the Committee shall be unable to act with respect to any matter,
the Employer shall act with respect to that matter and its action shall be
final and it shall be binding upon all persons.
11.4 Resignation, Removal and Designation of Successors. Any member of the
Committee may resign at any time and any member may be removed by the
Employer with or without cause. In case of resignation, death, removal or
inability or failure for any cause of any member of the Committee to serve
or to continue to serve, a successor shall be appointed by the Employer.
The Committee shall promptly notify the Trustee of any change in its
membership.
11.5 Committee Review. If any Participant, Spouse, Beneficiary, or other
authorized representative of a Participant, Spouse or Beneficiary shall
file an application with the Committee for benefits under the Plan and the
application is denied, in whole or in part, such applicant shall be
notified of the denial in writing within ninety (90) days of receipt of
the claim. The notice to the applicant shall state that the Committee has
denied the application pursuant to the exercise of its discretionary
powers. This notice shall set forth the specific reasons for the denial,
specific reference to pertinent Plan provisions upon which the denial is
based, a description of any additional information needed to perfect the
claim with an explanation of why it is necessary and an explanation of
procedure for appeal.
Any Participant, Spouse, Beneficiary, or other authorized representative
of the Participant, Spouse or Beneficiary whose application for benefits
has been denied may, within sixty (60) days after receiving the
notification, make a written application to the Committee to review the
denial. The applicant may request that the review be made by written
statements submitted by the applicant and the Committee, at a hearing, or
by both. Any hearing shall be held in the main offices of the Employer on
a date and time as the Employer shall designate with at least seven (7)
days notice to the applicant unless the applicant accepts shorter notice.
Within sixty (60) days after the review has been completed, the Employer
shall render a written decision and shall send a copy to the applicant.
This decision shall include specific reasons for the decision, as well as
specific references to the pertinent Plan provisions upon which the
decision is based.
If the Participant, Spouse, Beneficiary, or other authorized
representative of a Participant, Spouse or Beneficiary does not file
written notice with the Employer at the times set forth above, the
individual shall have waived all benefits under this Plan other than as
set forth in the notice from the Committee.
11.6 Records. The Committee shall keep or cause to be kept records of all
meetings, proceedings and actions held, undertaken or performed by it and
shall furnish to the Employer reports as the Employer may request.
11.7 Compensation. The members of the Committee shall serve without
compensation for services as such, but all reasonably incurred fees and
expenses shall be paid by the Employer.
11.8 Designation of Named Fiduciaries and Allocation of Responsibility Among
Fiduciaries. The Employer, the Committee and the Trustee shall be "Named
Fiduciaries" with respect to this Plan as that term is defined in ERISA.
The Named Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are given to them under this Plan. The
Named Fiduciaries may designate any person or persons as a fiduciary and
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may delegate to such person or persons any one or more of their powers,
functions, duties and responsibilities with respect to the Plan as set
forth in this Plan, authorizing or providing for such direction,
information or action. Any such designation shall be made in writing and
shall become effective upon written acceptance. No such designation or
delegation by the Employer or the Committee of any of its powers,
authority or responsibilities to the Trustee shall become effective unless
such designation or delegation shall first be accepted by the Trustee in a
writing signed by it and delivered to the Employer or the Committee, as
applicable. Furthermore, each Named Fiduciary may rely upon any such
direction, information or action of another Named Fiduciary as being
proper under this Plan and is not required to inquire into the propriety
of any such direction, information or action. It is intended that under
this Plan each Named Fiduciary shall be responsible for the proper
exercise of its own powers, duties, responsibilities and obligations and
shall not be responsible for act or failure to act of another fiduciary.
11.9 Notice by Committee or Employer. Any communication or notice to any person
by the Committee or the Employer shall be in writing and may be given by
delivery to the person or by first class mail with postage prepaid
addressed to the person at the last address on file with the Committee or
the Employer. Any notice delivered as provided above shall be deemed to
have been given when delivered, and any notice mailed as provided above
shall be deemed to have been given when mailed.
11.10 Loans to Participants.
(A) (1) In accordance with Section 11.8 above, the Committee is
hereby designated as the named fiduciary with sole
authority and responsibility to approve or deny loans and,
except as provided in subsections (G) and (H) of this Section,
collect unpaid loans, in accordance with the provisions
of this Section 11.10. This Section 11.10 shall apply
if the Employer is eligible to and elects Item B(16) of the
Adoption Agreement.
(2) Subject to the consent of the Committee, loans may be made
upon approval of the written application of a Participant or
Beneficiary submitted to the Committee. Such application shall
be submitted during a specified period established by the
Committee prior to the date the loan is to be made. The
Committee shall notify the Participant or Beneficiary whether
the loan has been approved or denied. Loans shall be made
available to all Participants and Beneficiaries on a
reasonably equivalent basis, except that no loans will be made
to any Stockholder-Employee or Owner-Employee and no loan
shall be made to any Participant which the Committee, upon
reviewing the Participant's written application determines may
be reasonably expected to be unable to repay the loan. Loans
shall not be made available to Highly Compensated Employees
(as defined in Section 414(q) of the Code) in an amount
greater than the amount made available to other Employees.
Except for loans made prior to the date this Plan is adopted,
a Participant or Beneficiary shall have no more than five
loans outstanding at any given time.
(3) All loans will be adequately secured and will bear a
reasonable rate of interest. Rates of interest will be
determined daily by the Trustee for Plan loans. The Committee
will determine the minimum loan amount for the Plan.
(B) In reviewing and approving or denying loan applications hereunder,
the Committee shall bear sole responsibility for ensuring compliance
with all applicable federal or state laws and regulations, including
the federal Truth In Lending Act (15 U.S.C. ss.1601 et seq.), and
Equal Credit Opportunity Act (15 U.S.C. ss.1691 et seq.). The
Committee shall upon request supply the Trustee with evidence that
it has complied with such federal or state law.
(C) Notwithstanding Section 7.13 above, each loan made hereunder shall
be secured by a written assignment, in favor of the Plan, of that
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portion of the Participant's accounts which the Committee determines
to be necessary to adequately secure repayment of the loan.
(D) A Participant must obtain the consent of his or her Spouse, if any,
to use the account balance as security for the loan. Spousal consent
shall be obtained no earlier than the beginning of the ninety (90)
day period that ends on the date the loan is to be so secured. The
consent must be in writing and must be witnessed by a Plan
representative or Notary Public. Such consent shall thereafter be
binding with respect to the consenting spouse or any subsequent
spouse with respect to that loan. A new consent shall be required if
the account balance is used for renegotiation, extension, renewal,
or other revision of the loan.
Notwithstanding the preceding paragraph, no spousal consent is
required for the use of the account balance as security for a Plan
loan to the Participant under a safe-harbor profit sharing Plan as
described in Section 7.10(F).
(E) No loan shall be approved by the Committee to any Participant or
Beneficiary in any amount which exceeds the lesser of
(1) $50,000, reduced by the excess (if any) of -
(a) the highest outstanding balance of loans from the Plan
during the one-year period ending on the day before the
date on which such loan was made, over,
(b) the outstanding balance of loans from the Plan on the
date on which such loan was made, or
(2) fifty percent (50%) of the present value of the Participant's
nonforfeitable accrued benefit.
For purposes of the above limitation, all loans from all plans of
the Employer and other members of a group of employers described in
Sections 414(b), (c), (m) and (o) of the Code are aggregated.
The term of the loan shall be determined by the Committee.
Furthermore, any loan shall, by its terms require that repayment
(principal and interest) be amortized in level payments, not less
frequently than quarterly over a period not extending beyond five
years from the date of the loan, except that the Committee, in its
discretion, may permit a repayment period in excess of five years
for loans made to a Participant or Beneficiary used to acquire a
dwelling unit which, within a reasonable time (determined at the
time the loan is made) will be used as a principal residence of the
borrower.
An assignment or pledge of any portion of the participant's interest
in the Plan will be treated as a loan under this paragraph.
(F) Each loan hereunder shall be made pro rata from the borrowing
Participant's available accounts and Investment Funds. Loan
repayments shall generally be made via payroll deduction, except
that the repayment of outstanding principal at maturity, in the
event the loan is called, or in the event the Participant chooses to
prepay the loan shall be made in such manner as the Committee shall
determine. Loan repayments and interest thereon shall be credited to
the Investment Funds and accounts in accordance wit current
elections. No loan shall be considered a general investment of the
Trust Fund. Each loan shall be evidenced by a written agreement,
evidencing the Participant's obligation to repay the borrowed amount
to the Plan, in such form and with such provisions consistent with
this Section 11.10 as is acceptable to the Trustee. All loan
agreements shall be deposited with the Trustee.
(G) In the event a Participant does not repay the principal of such loan
or interest thereon at such times as are required by the terms of
the loan or if the Participant ceases to be an Employee while such
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Participant has a loan made hereunder which is outstanding, the
Committee, in its discretion, may direct the Trustee to take such
action as the Committee may reasonably determine, including:
(1) demand repayment of the loan and, subject to Section 10.4(K),
institute legal action against the Participant to enforce
collection of any balance due from the Participant, or
(2) demand repayment of the loan, and charge the total amount of
the unpaid loan and unpaid interest against the balance
credited to the Participant's vested account balance which was
assigned as security for the loan and reduce any payment or
distribution from the Trust Fund to which the Participant or
the Participant's Beneficiary may become entitled to the
extent necessary to discharge the obligation on the loan.
Notwithstanding the foregoing provisions of this Paragraph (G), in
the event of default, foreclosure on the note and attachment of
security will not occur until a distributable event occurs in the
Plan.
(H) In the event the Committee fails or refuses for any reason to direct
the Trustee as provided in Paragraph (G) above or if the Trustee
otherwise reasonably concludes that the collectibility of a loan
hereunder is in jeopardy, the Trustee is authorized to take such
action as it may reasonably determine to enforce repayment and
satisfaction of the loan. The Employer shall be responsible for
costs and expenses incurred in collecting any loan balance.
(I) In the event that the amount of any payment or distribution from the
Trust Fund is insufficient to repay the balance due on any loan, the
Participant shall be liable for and continue to make repayments on
such balance.
(J) If a valid spousal consent has been obtained in accordance with
Paragraph (D), then, notwithstanding any other provision of this
Plan, the portion of the Participant's vested account balance used
as a security interest held by the Plan by reason of a loan
outstanding to the Participant shall be taken into account for
purposes of determining the amount of the account balance payable at
the time of death or distribution, but only if the reduction is used
as repayment of the loan. If less than 100% of the Participant's
vested account balance (determined without regard to the preceding
sentence) is payable to the surviving Spouse, then the account
balance shall be adjusted by first reducing the vested account
balance by the amount of the security usedas repayment of the loan,
and then determining the benefit payable to the surviving Spouse.
ARTICLE XII
FAILURE TO ATTAIN OR RETAIN QUALIFIED STATUS
12.1 Failure to Qualify as a Prototype. This Plan is established with the
intent that it shall qualify under Section 401 of the Code and that it
shall comply with ERISA and all other applicable laws, regulations and
rulings. It may be modified and amended retroactively, if necessary, to
secure such qualification. Should the Internal Revenue Service determine
that this Plan does not qualify under the Code or any statute of similar
import, or fails or refuses to issue an opinion, and if the Plan is not
amended, as required to qualify, before the time allowed by law for the
Employer to file its corporate federal tax return for the taxable year in
which the Effective Date occurs, the Plan shall be considered to be
rescinded and of no force and effect. Any assets attributable to
contributions made by the Employer shall be returned to the Employer by
the Trustee as soon as administratively feasible. The Employer shall
refund to the Participant any contributions made by the Participant to the
Plan.
12.2 Failure of Employer to Attain or Retain Qualification. If the Employer's
Plan fails to attain or retain qualification, such Plan will no longer
participate in this prototype Plan and will be considered an individually
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designed Plan.
ARTICLE XIII
MISCELLANEOUS
13.1 Employer Action. Except as may be specifically provided herein, any action
required or permitted to be taken by the Employer may be taken on behalf
of the Employer by any officer of the Employer.
13.2 No Guarantee of Interests. Neither the Trustee, the Employer nor any other
named fiduciary in any way guarantees the Trust Fund from loss or
depreciation, nor do they guarantee any payment to any person. The
liability of the Trustee, the Employer and a named fiduciary to make any
payments hereunder is limited to the available assets of the Trust Fund.
13.3 Employment Rights. The Plan is not a contract of employment. Participation
in the Plan will not give any Participant the right to be retained in the
Employer's employ, nor any right or claim to any benefit under the Plan,
unless the right or claim has specifically accrued under the Plan.
13.4 Interpretations and Adjustments. To the extent permitted by law, an
interpretation of the Plan and a decision on any matter within a named
fiduciary's discretion made in good faith is binding on all persons. A
misstatement or other mistake of fact shall be corrected when it becomes
known and the person responsible shall make such adjustment on account
thereof as he or she considers equitable and practicable.
13.5 Uniform Rules. In the administration of the Plan, uniform rules will be
applied to all Participants similarly situated.
13.6 Evidence. Evidence required of anyone under the Plan may be by
certificate, affidavit, document or other information which the person
acting on it considers pertinent and reliable and signed, made or
presented by the proper party or parties.
13.7 Waiver of Notice. Any notice required under the Plan may be waived by the
person entitled to notice.
13.8 Controlling Law. The law of the state where the Trustee is located shall
be the controlling state law in all matters relating to the Plan and shall
apply to the extent that it is not preempted by the laws of the United
States of America.
13.9 Tax Exemption of Trust. The trust herein created is designated as
constituting a part of a Plan intended to qualify under Sections 401(a) of
the Code and to be tax-exempt under Section 501(a) of the Code.
13.10 Counterparts. The Plan may be executed in two or more counterparts, any
one of which will be an original without reference to the others.
13.11 Annual Statement of Account. The assets of the Trust Fund will be valued
annually at fair market as of the last day of each Plan Year. On such date
the earning and losses of the Trust Fund will be allocated to each
Participant's accounts in the ratio that such account balance bears to all
account balances. The Trustee will deliver to the Employer a statement of
each Participant's account balances as of the last day of Plan Year.
13.12 No Duty to Inquire. No person shall have any duty to make any inquiry as
to the application or use of the Trust Fund, or any part thereof, or to
inquire into the validity, expediency or propriety of any matter or thing
done or proposed to be done by the Trustee.
13.13 Invalidity. In case any provisions of this Plan shall be invalid, this
fact shall not affect the validity of any other provision.
13.14 Titles. Titles to Articles and Sections are for convenience only and shall
have no bearing upon the construction or interpretation of this Plan.
13.15 No Duty of Trustee to Collect Contributions. The Trustee shall be
accountable for all contributions received but shall have no duty to
require any contributions to be delivered or to determine if the
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contributions received comply with the Plan or with any Board of Directors
resolution of the Employer providing for contributions.
13.16 Trustee Distributes by Committee Direction. The Trustee shall make
distributions only through Committee direction. The Trustee shall have no
responsibility to see how distributions are applied or to ascertain
whether the Committee's directions comply with the Plan. Notwithstanding
anything in the Plan to the contrary, payments made in accordance with
these provisions will continue only so long as amounts remain in the
Participant's accounts.
ARTICLE XIV
AMENDMENT OR TERMINATION
14.1 Amendment by the Sponsor. Society National Bank, the sponsoring
organization, reserves the right without being required to obtain the
approval of the Employer to amend any part of the Plan from time to time,
subject to the provisions of Article XII, Section 14.2 and the following:
(A) Except as provided in Section 14.1(B) and (C), no amendment shall
become effective until at least thirty (30) days' prior written
notice (unless the Employer agrees to shorter notice) has been given
to the Employer, nor shall any such amendment reduce Participants'
benefits to less than the benefits to which they would have been
entitled if they had resigned from the employ of the Employer on the
effective date of the amendment;
(B) An amendment of the Plan and Trust which the sponsor deems necessary
to enable the Plan and Trust to meet the requirements of Section
401(a) of the Code may be made effective as of the date the Plan and
Trust was established by the sponsor or as of any subsequent date;
(C) An amendment of the Plan and Trust to conform the Plan and Trust to
any change in the law, regulations or rulings of the United States
may take effect as of the date such amendment is required to be
effective. Any amendment executed pursuant to the provisions of this
Section 14.1 shall be executed by an authorized officer of the
sponsor, or its successor. For purposes of this Section 14.1, the
Employer shall be deemed to have been furnished a copy of any
amendment on the business day next following the mailing by the
sponsor or the Trustee.
14.2 Amendment by Adopting Employer. The Employer may (1) change the choice of
options in the Adoption Agreement, (2) add overriding language in the
Adoption Agreement when such language is necessary to satisfy Section 415
or Section 416 of the Code because of the required aggregation of multiple
plans, and (3) add certain model amendments published by the Internal
Revenue Service which specifically provide that their adoption will not
cause the Plan to be treated as individually designed. An Employer that
amends the Plan for any other reason, including a waiver of the minimum
funding requirement under Section 412(d) of the Code, will no longer
participate in this Master or Prototype Plan and will be considered to
have an individually designed Plan.
14.3 Vesting - Plan Termination. In the event of termination or partial
termination of the Plan, the account balance of each affected Participant
will be nonforfeitable.
14.4 Vesting - Complete Discontinuance of Contributions. In the event of a
complete discontinuance of contributions under the Plan, the account
balance of each affected Participant will be nonforfeitable.
14.5 Plan Merger - Maintenance of Benefit. In the event of a merger or
consolidation with, or transfer of assets to any other Plan, each
Participant will receive a benefit immediately after the merger,
consolidation or transfer (if the Plan then terminated) which is at least
equal to the benefit the Participant was entitled to immediately before
such merger, consolidation or transfer (if the Plan had then terminated).
14.6 Direct Transfer. In its discretion, the Trustee may accept the direct
transfer of Plan assets from the trustee of other retirement plans
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described in Code Section 401(a). If the Plan receives a direct transfer
of elective deferrals (or amounts treated as elective deferrals) under a
Plan with a Code Section 401(k) arrangement, the distribution restrictions
of Code Sections 401(k)(2) and (10) continue to apply to those transferred
elective deferrals.
14.7 Termination of Participation by Employer. The Employer expects to continue
its participation in this Plan indefinitely but reserves the right to
terminate this Plan as to its Employees at any time by written instrument
filed with the Trustee. In the event of such termination, partial
termination or complete discontinuance of contributions, or termination as
provided in Section 13.3, the account balance of each affected Participant
will be nonforfeitable. Distribution to Participants who have theretofore
become entitled to the payment of any benefits hereunder or to Spouses or
Beneficiaries of deceased Participants shall be made in the same manner as
if the Employer's participation had not terminated or contributions had
not been discontinued.
The account(s) of each such Participant, in the event of payment in other
than a single sum, need not be converted into cash, but may continue to
remain in the trust, with a right and obligation thereafter to participate
in the net earnings, losses, taxes and expenses of the trust.
If any Participant shall die after the termination of the Employer's
participation and before all of said Participant's interest has been paid,
then, upon the written direction of Employer, the entire undistributed
portion shall be paid in a single sum to the Participant's Beneficiary.
In the event of complete discontinuance of contributions, the Employer
shall terminate this Plan as to its Employees and each Participant's
interest shall be distributed to such Participant.
14.8 Notice of Amendment, Termination or Partial Termination. The Committee
will notify affected Participants of an amendment, termination or partial
termination of the Plan within a reasonable time.
14.9 Substitution of Trustee. Any corporation or association into which the
Trustee may be converted, merged or with which it may be consolidated, or
any corporation or association resulting from any conversion, merger,
reorganization or consolidation to which the Trustee may be a party, shall
be the successor of the Trustee hereunder without the execution or filing
of any instrument or the performance of any further act.
ARTICLE XV
DISCHARGE OF DUTIES BY FIDUCIARIES
15.1 Discharge of Duties. Subject to the provisions of Articles IX and X, the
Named Fiduciaries and any other fiduciary shall discharge their respective
duties set forth in the Plan solely in the interest of the Participants
and their Spouses and Beneficiaries and:
(A) for the exclusive purpose of:
(1) providing benefits to Participants and their Spouses and
Beneficiaries; and
(2) defraying reasonable expenses of administering the Plan;
(B) with 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; and
(C) by diversifying the investments of the Plan so as to minimize the
risk of large losses, unless under the circumstances it is clearly
prudent not to do so.
ARTICLE XVI
AMENDMENT AND CONTINUATION OF ORIGINAL PLAN
16.1 Amendment and Continuation. Notwithstanding any of the foregoing
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provisions of the Plan to the contrary, an Employer which has previously
established a profit sharing Plan and trust or money purchase pension Plan
and trust, as applicable, (the "Original Plan") may, in accordance with
the provisions of the Original Plan, amend and continue that Plan in the
form of this Plan and Trust and become an Employer hereunder, subject to
the following:
(A) Subject to the conditions and limitations of the Plan, each person
who is a Participant or former Participant under the Original Plan
immediately prior to the Effective Date of the amendment and
continuation thereof in the form of this Plan will continue as a
Participant under this Plan;
(B) The words "Original Plan" shall be substituted for the word "Plan"
where the word appears in Section 2.2 of the Plan;
(C) No election may be made in the Adoption Agreement if such election
will reduce the benefits of a Participant under the Original Plan to
less than the benefits to which he would have been entitled if he
had resigned from the employ of the Employer on the date of the
amendment and continuation of the Original Plan in the form of this
Plan;
(D) The amounts, if any, credited to a Participant's or former
Participant's accounts, immediately prior to the Effective Date of
the amendment and continuation of the Original Plan in the form of
this Plan shall constitute the opening balances in his or her
accounts, as appropriate, under this Plan and Trust;
(E) Amounts being paid to a former Participant or Beneficiary in
accordance with the provisions of the Original Plan shall continue
to be paid in accordance with such provisions; and
(F) Any Beneficiary designation in effect under the Original Plan
immediately before its amendment and continuation in the form of
this Plan shall be deemed to be a valid Beneficiary designation
filed with the Employer under Section 7.7 of this Plan, to the
extent consistent with the provisions of this Plan, unless and until
the Participant or former Participant revokes such Beneficiary
designation or makes a new Beneficiary designation under this Plan.
IN WITNESS WHEREOF, Society National Bank has established this prototype
Plan as of the 24th day of March, 1995.
SOCIETY NATIONAL BANK
By:/s/ Ed Tognetti
------------------
Ed Tognetti
Title:Senior Vice President and
General Counsel
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AMENDMENT TO PAGE 4 OF THE 401(K) PROFIT SHARING PLAN (NONSTANDARDIZED)
ADOPTION AGREEMENT OF REGISTRANT
Plan 003
(4) Eligibility for New Plans. (Select if Applicable):
_____ For new Plans, Employees who have not satisfied the age and/or
service requirements of the Plan, but would otherwise be
eligible to participate in the Plan, shall be eligible to
participate on the Effective Date.
(5) Service for Predecessor Employer. (Plan Sec. 1.1((Q)(4)).
(Select and Complete if Desired):
_____ For eligibility purposes, in addition to the predecessor
service the Plan must credit by reason of Section 1.1(Q)(4),
the Plan credits service with the following predecessor
employer(s): _________________________
3-C Medical, Inc. & Kendall Drug Company
---------------------------------------------------------- .
(6) Eligibility Date. (Plan Sec. 1.1(K)) (Select One):
Employees satisfying the eligibility requirements of the Plan are
eligible for participation
(a) semi-annually.
-----
(b) X quarterly.
-----
G. Vesting. (Discretionary Profit Sharing Contributions) (Plan Sec. 2.2).
(1) The percentage of a Participant's Account Employer Contribution
(attributable to discretionary profit sharing contributions) Account
to be vested in him or her upon termination of employment prior to
retirement shall be:
Check and complete the desired vesting schedule.
Completed Years of Vesting Service
1 2 3 4 5 6 7
----- ----- ----- ----- ----- ----- -----
(a) 100%
----- -----
(b) 100%
----- ----- -----
(c) 20% 40% 60% 80% 100%
----- -----
(d) X 20% 40% 60% 80% 100%
----- ----- -----
(e) 10% 20% 30% 40% 60% 80% 100%
-----
(f) 100%
----- ----- ----- ----- -----
Page 76
77
PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST
SECTION 401(K) PROFIT SHARING PLAN
(NONSTANDARDIZED)
ADOPTION AGREEMENT(1)
The Employer 2, designated below, hereby establishes a profit-sharing plan
(optionally including a cash or deferred arrangement (as defined in
Section 401(k) of the Internal Revenue Code)) for all Eligible Employees as
defined in this Adoption Agreement pursuant to the terms of the PRISM(R)
PROTOTYPE RETIREMENT PLAN & TRUSTBASIC PLAN DOCUMENT # 05.
A. EMPLOYER INFORMATION:
1. NAME: Bindley Western Industries, Inc.
2. ADDRESS: 8909 Purdue Road
3. ADDRESS: Indianapolis, IN 46268
4. ATTENTION: Marion McDermott TELEPHONE: 317-704-4130
5. EMPLOYER TAXPAYER IDENTIFICATION NUMBER (3): 84-0601662
----------
B. BASIC PLAN PROVISIONS:
1. PLAN NAME (SELECT ONE):
This plan is established effective , (the "Effective
Date") as a profit sharing plan (optionally with a
cash or deferred arrangement as defined in Code
Section 401(k)) to be known as (the "Plan") in the
form of the PRISM(R) PROTOTYPE RETIREMENT PLAN &
TRUST.
B. This plan is an amendment and restatement in the form
of the PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST,
effective 01/01/96, (the "Effective Date") of the
Bindley Western Industries, Inc. & Subsidiaries
Profit Sharing Plan (the "Plan"), originally
effective as of 01/01/79 (the "Original Effective
Date").
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78
2. EMPLOYERS THREE DIGIT PLAN NUMBER: 001
3. COMMITTEE MEMBERS(4): Michael D. Mccormick, Kathy Messick
and Mike Shinn
4. DEFINITIONS:
a. COMPENSATION for allocation purposes:
i Will be determined over the following
applicable period (select only one):
(a) the Plan Year
the period of Plan participation
during the Plan Year
a consecutive 12 month period
commencing on and ending with, or
within, the Plan Year.
If selected, Compensation will include
Employer contributions made pursuant
to a Salary Reduction Agreement, or
other arrangement, which are not
includible in the gross income of the
Employee under Sections 125,
402(e)(3), 402(h)(1)(B) or 403(b) of
the Internal Revenue Code.
iii Shall NOT include (select as many as
desired):
Bonuses
Commissions
Taxable fringe benefits identified below:
(d) Other items of remuneration
identified below: 1) Income
derived from exercise of stock
options. 2)Any benefit not
included in the employee's
taxable income for the year.
iv Shall be limited to $ , which
shall be the maximum amount of
compensation
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79
considered for plan allocation
purposes (but not for testing
purposes), and may not be an amount
in excess of the Internal Revenue
Code Section 401(a)(17) limit in
effect
for the Plan Year(5). If no amount
is specified, Compensation shall be
limited to the Internal Revenue
Code Section 401(a)(17) amount, as
adjusted by the Secretary of the
Treasury from time to time.
b. EARLY RETIREMENT DATE:
i is not applicable to this Plan is
the latter of the date on which the
Participant attains age (not less
than 55) and the date on which the
Participant completes Years of
Service.
c. HOUR OF SERVICE shall be determined on the
basis of the method selected below. Only one
method may be selected. The method shall be
applied to all Employees covered under the Plan
as follows (select only one):
i On the basis of actual hours for
which an Employee is paid, or
entitled to be paid. On the basis
of days worked. An Employee shall
be credited with ten (10) Hours of
Service if under Section 1.1(U) of
the Plan such Employee would be
credited with at least one (1) Hour
of Service during the day.
On the basis of weeks worked. An
Employee shall be credited with
forty-five (45) Hours of Service if
under Section 1.1(U) of the Plan
such Employee would be credited
with at least one (1) Hour of
Service during the week.
On the basis of semi-monthly
payroll periods. An Employee shall
be credited with ninety-five (95)
Hours of Service if under
Section 1.1(U) of the Plan such
Employee would be credited with at
least one (1) Hour of service
during the semi-monthly payroll
period.
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80
On the basis of months worked. An
Employee shall be credited with one
hundred ninety (190) Hours of
Service if under Section 1.1(U) of
the Plan such Employee would be
credited with at least one (1) Hour
of Service during the month.
d. LIMITATION YEAR shall mean the 12 month period
commencing on January 1 and ending on December
31.
e. NORMAL RETIREMENT DATE for each Participant shall
mean (select one):
i the date the Participant attains
age: 65 (not to exceed 65)
the latter of the date the
Participant attains age (not to
exceed 65) or the (not to exceed
5th) anniversary of the
participation commencement date. If
for the Plan Years beginning before
January 1, 1988, Normal Retirement
Date was determined with reference
to the anniversary of the
participation commencement date
(more than 5 but not to exceed 10
years), the anniversary date for
Participants who first commenced
participation under the Plan before
the first Plan Year beginning on or
after January 1, 1988 shall be the
earlier of (A) the tenth
anniversary of the date the
Participant commenced participation
in the Plan (or such anniversary as
had been elected by the employer,
if less than 10) or (B) the fifth
anniversary of the first day of the
first Plan Year beginning on or
after January 1, 1988.
Notwithstanding any other
provisions of the Plan, the
participant commencement date is
the first day of the first Plan
Year in which the Participant
commenced participation in the
Plan.
f. PERMITTED DISPARITY LEVEL, for purposes of
allocating Employer Contributions, shall mean
(select only one):
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81
i Not applicable - the Plan does not
use permitted disparity.
The Taxable Wage Base, which is the
contribution and benefit base under
section 230 of the Social Security
Act at the beginning of the year.
% (not greater than 100%) of the
Taxable Wage Base as defined in
B(4)(f)(ii) above.
$ , provided that the amount does
not exceed the Taxable Wage Base as
defined in B(4)(f)(ii) above.
g. PLAN YEAR shall mean (select and complete only
one of the following):
i The 12-consecutive month period
which coincides with the Limitation
Year. The first Plan Year shall be
the period commencing on the
Effective Date and ending on the
last day of the Limitation Year.
The 12-consecutive month period
commencing on, , , and each annual
anniversary thereof.
The calendar year (January 1
through December 31).
h. QUALIFIED DISTRIBUTION DATE, for purposes of
making distributions under the provisions of a
Qualified Domestic Relations Order (as defined in
Internal Revenue Code Section 414(p)), SHALL be
the date the order is determined to be qualified.
If SHALL is selected, the Alternate Payee will be
entitled to an immediate distribution of benefits
as directed by the Qualified Domestic Relations
Order. If SHALL NOT is selected, the Alternate
Payee may only take a distribution on the
earliest date that the Participant is entitled to
a distribution.
i. SPOUSE:
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82
If selected, Spouse shall mean only
that person who has actually been
the Participants spouse for at
least one year.
j. YEAR OF SERVICE shall mean:
i For ELIGIBILITY purposes (select one of the
following):
(a) the 12 consecutive months during
which an Employee is credited with
1000 (not more than 1000) Hours of
Service.
a Period of Service (using
the elapsed time method of counting
Service, as described in
Section 1.1(N)(3) of the Plan).
ii For ALLOCATION accrual purposes (select one of
the following):
(a) the 12 consecutive months during which an
Employee is credited with 1000 (not more
than 1000) Hours of Service.
a Period of Service (using the elapsed time
method of counting Service, as described in
Section 1.1(N)(3) of the Plan).
iii For VESTING service purposes (select one of the
following):
(a) the 12 consecutive months during which an
Employee is credited with 1000 (not more
than 1000) Hours of Service.
a Period of Service (using the elapsed time
method of counting Service, as described in
Section 1.1(N)(3) of the Plan).
iv For purpose of computing Years of Service in
plans where Year of Service is defined in
terms of Hours of Service), the consecutive 12
month period shall be:
(a) For ELIGIBILITY purposes, the first Year of
Service shall be computed using the 12
month period
Page 82
83
commencing on the Employee's date of hire
and ending on the first annual anniversary
of the Employee's date of hire (the
"Initial Computation Period"). In the event
an employee does not complete an
eligibility Year of Service during this
initial computation period, the computation
period shall be (select only one):
the period commencing on each
annual anniversary of the
Employee's date of hire and ending
on the next annual anniversary of
the Employee's date of hire.
(2) the Plan Year, commencing with
the Plan Year in which the Initial
Computation Period ends.
(b) For VESTING purposes, Years of Service
shall be computed on the basis of:
the period commencing on each
annual anniversary of the
Employee's date of hire and ending
on the next annual anniversary of
the Employee's date of hire.
(2) the Plan Year, commencing with
the first Plan Year an Employee
completes an Hour of Service.
(c) For ALLOCATION accrual purposes, Year of
Service shall be computed on the basis of
the Plan Year.
v For ELIGIBILITY purposes, Years of Service with
the following Predecessor Employers shall count
in fulfilling the eligibility requirements for
this Plan: Kendall Drug Company: 3-C Medical
Inc., IV-I. Inc: IV-One Services Inc.: National
Pharmacy providers, Inc.
For VESTING purposes, Years of Service with the
following Predecessor Employers shall count for
purposes of determining the
Page 83
84
nonforfeitable amount of a
Participant's account:
5. COVERAGE:
This Plan is extended by the Employer to the following
Employees who have met the eligibility requirements (select
as many as appropriate):
All Employees
Salaried Employees
Sales Employees
Hourly Employees
Leased Employees
vi All Employees except (select as applicable):
(a) those who are members of a unit of
Employees covered by a collective
bargaining agreement between the
Employer and Employee
representatives, if retirement
benefits were the subject of good
faith bargaining and if two percent
or less of the Employees who are
covered pursuant to that agreement
are professionals as defined in
Section 1.410(b)-9 of the
Regulations. For this purpose, the
term Employee representative does
not include any organization more
than half of whose members are
Employees who are owners, officers,
or executives of the Employer.
those who are nonresident aliens
(within the meaning of
Page 84
85
Internal Revenue Code
Section 7701(b)(1)(B)) and who
receive no earned income (within
the meaning of Internal Revenue
Code Section 911(d)(2)) from the
Employer WHICH constitutes income
from sources within the United
States (within the meaning of
Internal Revenue Code
Section 861(a)(3)).
Union Employees (who are members of
the following unions or union
affiliates):
Other Employees, described as
follows:
6. ELIGIBILITY:
An Employee covered by the Plan may become a Participant
upon completion of the following eligibility requirements:
a. SERVICE(6):
There shall be no minimum service
requirement for an Employee to
become a Participant.
ii The Employee must complete 1 Year
of Service (not more than 2 years)
to be a Participant for purposes of
receiving allocations of Employer
Profit Sharing Contributions.
b. AGE:
There shall be no minimum age
requirement for an Employee to
become a Participant.
ii The Employee must attain age 21
(not more than 21) to be a
Participant in the Plan.
c. WAIVER OF AGE AND SERVICE REQUIREMENTS:
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86
Notwithstanding the provisions of
Items B(6)(a) and (b), Employees
who have not satisfied the age and
service requirements, but would
otherwise be eligible to
participate in the plan, shall be
eligible to participate on the
Effective Date. For new Plans,
notwithstanding the provisions of
Items B(6)(a) and (b), Employees
who have not satisfied the age and
service requirements, but would
otherwise be eligible to
participate in the plan, shall be
eligible to participate on the
Effective Date.
d. ENTRY DATES:
Upon completion of the eligibility requirements, an
Employee shall commence participation in the Plan
(select only one):
As soon as practicable under the
payroll practices utilized by the
Employer, and consistently applied
to all Employees, or if earlier,
the first day of the Plan Year (7).
As of the first day of the month
following the completion of the
eligibility requirements.
iii As of the earliest of the first day
of the Plan Year, fourth, seventh
or tenth month of the Plan Year
next following completion of the
eligibility requirements.
As of the earliest of the first day
of the Plan Year or seventh month
of the Plan Year next following
completion of the eligibility
requirements.
As of the first day of the Plan
Year next following completion of
the eligibility requirements (may
only be selected if the eligibility
year of service requirement is 6
months or less).
7. VESTING:
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87
a. The percentage of a Participant's Employer
Contribution Account (attributable to Employer Profit
Sharing Contributions) to be vested in him or her upon
termination of employment prior to attainment of the
Plan's Normal Retirement Date shall be (8):
COMPLETED YEARS OF SERVICE
1 2 3 4 5 6 7
------- ------- ------- ------- ------- ------- ----
0% 100%
-- ----
0% 0% 100%
-- -- ----
0% 20% 40% 60% 80% 100%
-- --- --- --- --- ----
Iv 0% 0% 20% 40% 60% 80% 100%
-- -- --- --- --- --- ----
10% 20% 30% 40% 60% 80% 100%
--- --- --- --- --- --- ----
0% 0% 0% 0% 100%
-- -- -- -- ----
0% 0% 0% 0% 0% 0% 100%
-- -- -- -- -- -- ----
Full and immediate vesting upon entry into the Plan
(9)
Notwithstanding anything to the contrary in the Plan,
the amount inserted in the blanks above shall not
exceed the limits specified in Code Section 411(a)(2).
b. For purposes of computing a Participant's vested
account balance, Years of Service for vesting purposes
SHALL include Years of Service before the Employer
maintained this Plan or any predecessor plan, and
SHALL include Years of Service before the Employee
attained age 18.
c. Notwithstanding the provisions of this Item B(7)(c) of
the Adoption Agreement, a Participant shall become
fully vested in his Participant's Employer
Contribution if: (10)
the Participant's job is eliminated
without the Participant being
offered a comparable position
elsewhere with the Employer.
for such reason as is described
below:
8. EMPLOYER PROFIT SHARING CONTRIBUTIONS:
a. CONTRIBUTIONS:
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88
i In its discretion, the Employer may
contribute Employer Profit Sharing
Contributions to the Plan.
The Employer shall contribute
Employer Profit Sharing
Contributions to the Plan in the
amount of % of the Compensation of
all Eligible Participants under the
Plan.
If selected, the Employer may make
Employer Profit Sharing
Contributions without regard to
current or accumulated Net Profits
of the Employer for the taxable
year ending with, or within the
Plan Year.
If selected, the Employer may
designate all or any part of the
Employer Profit Sharing
Contributions as Qualified
Nonelective Contributions,
provided, however, that
contributions so designated will be
subject to the same vesting,
distribution, and withdrawal
restrictions as Before Tax
Contributions (11).
b. ALLOCATIONS:
Employer Profit Sharing Contributions shall be
allocated to the accounts of eligible Participants
according to the following selected allocation
formula:
i The Employer Profit Sharing
Contributions shall be allocated to
each eligible Participant's account
in the ratio which the
Participant's Compensation bears to
the Compensation of all eligible
Participants. Employer Profit
Sharing Plan Contributions, shall
be allocated to the accounts of
Participants who have
completed a Year of Service (12)
(select one):
as of the last day of the month
preceding the month in
Page 88
89
which the contribution was made.
as of the last day of the Plan
quarter preceding the quarter in
which the contribution was made.
(c) as of the last day of the Plan
Year.
The Employer Profit Sharing Contributions shall be
allocated in accordance with the following formula:
(a) If the Plan is Top-Heavy, the
contribution shall be first
credited to each eligible
Participant's Account in the ratio
which the Participant's
Compensation bears to the total
Compensation of all eligible
Participants, up to 3% of each
Participant's Compensation.
(b) If the Plan is Top-Heavy, any
Employer Profit Sharing
Contribution remaining after the
allocation in (a) above shall be
credited to each eligible
Participant's account in the ratio
which the Participant's Excess
Compensation (13) bears to the
total Excess Compensation of all
eligible Participants, up to 3% of
each eligible Participant's Excess
Compensation .
(c) Any contributions remaining after
the allocation in (b) above shall
be credited to each eligible
Participant's account in the ratio
which the sum of the Participant's
total Compensation and Excess
Compensation bears to the sum of
the total Compensation and Excess
Compensation of all eligible
Participants, up to an amount equal
to the maximum Excess Percentage
times the sum of the
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90
Participant's Compensation and
Excess Compensation. If the Plan is
Top-Heavy, the maximum Excess
Percentage is % (insert
percentage). If the Plan is not
Top-Heavy, the maximum Excess
Percentage is % (insert percentage,
which shall not exceed the prior
Excess Percentage limitation
specified by more than 3).
NOTE: If the Permitted Disparity Level
defined at Item B(4)(f) is the
Taxable Wage Base (which is the
contribution and benefit base under
section 230 of the Social Security
Act at the beginning of the year),
then the maximum Excess Percentage
should be 2.7% if the Plan is
Top-Heavy and 5.7% if the Plan is
not Top-Heavy.
If the Permitted Disparity Level
defined at Item B(4)(f) is greater
than 80% but less than 100% of the
Taxable Wage Base, then the maximum
Excess Percentage should be 2.4% if
the Plan is Top-Heavy and 5.4% if
the Plan is not Top-Heavy.
If the Permitted Disparity Level
defined at Item B(4)(f) is greater
than the greater of $10,000 or 20%
of the Taxable Wage Base, but not
more than 80%, then the maximum
Excess Percentage should be 1.3% if
the Plan is Top-Heavy and 4.3% if
the Plan is not Top-Heavy.
(d) Any remaining Employer Profit
Sharing Contribution shall be
allocated among eligible
Participants' accounts in the ratio
which the Participant's
Compensation bears to the total
Compensation of all Participants.
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91
iii If selected, and the Employer has
elected to allocate Employer Profit
Sharing Plan Contributions as of
the last day of the Plan Year, a
Participant must be employed by the
Employer on the last day of the
Plan Year in order to receive an
allocation(14).
A Participant who terminates before
the end of the period for which
contributions are allocated shall
share in the allocation of Employer
Profit Sharing Contributions if
termination of employment was the
result of (select all that apply):
retirement
disability
death
other, as specified below:
9. ROLLOVER & TRANSFER CONTRIBUTIONS (SELECT ONE):
a. Subject to policies, applied in a consistent and
nondiscriminatory manner, adopted by the Committee,
each Employee, who would otherwise be eligible to
participate in the Plan except that such Employee has
not yet met the eligibility requirements, and each
Participant may make a Rollover Contribution as
described in Internal Revenue Code
Sections 402(a)(5), 403(a)(4) or 408(d)(3).
Subject to policies, applied in a consistent and
nondiscriminatory manner, adopted by the Committee,
each Participant may make a Rollover Contribution as
described in Internal Revenue Code Sections
402(a)(5), 403(a)(4) or 408(d)(3).
No Employee shall make Rollover Contributions to the
Plan.
Page 91
92
10. DISTRIBUTIONS:
a. DISTRIBUTIONS UPON SEPARATION FROM SERVICE:
The Normal Form of Benefit under the Plan shall be a
single lump sum distribution, made (if selected) as
soon as administratively practical after receipt of a
distribution request from a Participant entitled to a
distribution or upon the Participant's attainment of
the Plan's Early Retirement Date or the Plan's Normal
Retirement Date, whichever is earlier.
In addition to the Normal Form of Benefit, the
Participant shall be entitled to select from among
the following optional forms of benefit specified by
the employer (select as many as apply):
Installment payments
Such other forms as may be specified below:
b. IN-SERVICE DISTRIBUTIONS (SELECT AS MAY BE
APPROPRIATE):
i There shall be no in-service
distribution of Participant account
balances derived from Employer
Profit Sharing Contributions.
Participants may request an
in-service distribution of their
account balance attributable to
Employer Profit Sharing
Contributions, for the following
reasons:
For purposes of satisfying a
financial hardship, as determined
in accordance with the uniform
nondiscriminatory policy of the
Committee;
Attainment of age 59-1/2 by the
Participant; or
Page 92
93
Attainment of the Plan's Normal
Retirement Date by the Participant.
11. FORFEITURES:
a. Forfeitures of amounts attributable to Employer
Profit Sharing Contributions shall be reallocated as
of:
i the last day of the Plan Year in
which the Forfeiture occurred.
the last day of the Plan Year
following the Plan Year in which
the Forfeiture occurred.
the last day of the Plan Year in
which the Participant suffering the
Forfeiture has incurred five
consecutive One Year Breaks in
Service.
b. Forfeitures of Employer Profit Sharing Contributions
shall be reallocated as follows:
Not applicable as Employer Profit
Sharing Contributions are always
100% vested and nonforfeitable.
Used first to pay the expenses of
administering the Plan, and then
allocated pursuant to one of the
following two options (15):
Forfeitures shall be allocated to
Participant's accounts in the same
manner as Employer Profit Sharing
Contributions, Employer Matching
Contributions, Qualified
Nonelective Contributions or
Qualified Matching Contributions,
in the discretion of the Employer,
for the year in which the
Forfeiture arose.
iv Forfeitures shall be applied to
reduce the Employer Profit Sharing
Contributions, Employer Matching
Contributions, Qualified
Nonelective Contributions or
Qualified Matching Contributions,
in the discretion of the Employer,
for the Plan Year following the
Plan Year in which the Forfeiture
arose.
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94
12. LIMITATIONS ON ALLOCATIONS:
If the Employer maintains or ever maintained another
qualified retirement plan in which any Participant in this
Plan is (or was) a participant, or could possibly become a
participant, the Employer must complete the following:
a. If the Participant is covered under another qualified
defined contribution plan maintained by the Employer
other than a Master or Prototype Plan:
The provisions of this Plan shall
apply as if the other plan were a
Master or Prototype plan; or,
The following provisions will be
effective to limit the total Annual
Additions to the Maximum
Permissible Amount, and will
properly reduce any Excess Amounts,
in a manner that precludes Employer
discretion:
b. If the Participant is or ever has been a participant
in a qualified defined benefit plan maintained by the
Employer, the following provisions will be effective
to satisfy the 1.0 limitation of Internal Revenue
Code Section 415(e), in a manner that precludes
Employer discretion:
13. INTERNAL REVENUE CODE SECTION 411(d)(6) PROTECTED BENEFITS:
If selected, the Plan has Internal Revenue Code
Section 411(d)(6) Protected Benefits from a prior plan that
this Plan amends, that must be protected.
(ATTACH ADDENDUM)
14. TOP-HEAVY PLAN PROVISIONS:
For each Plan Year in which the Plan is a Top-Heavy Plan
the following provisions will apply:
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95
a. The percentage of a Participant's Employer
Contribution Account to be vested in him upon
termination of employment prior to retirement shall
be:
i a percentage determined in
accordance with the following
schedule:
YEARS OF SERVICE PERCENTAGE
---------------- ----------
Less than two 0
Two but less than three 20
Three but less than four 40
Four but less than five 60
Five but less than six 80
Six or more 100;
100% vesting after (not to exceed
3) Years of Service; provided,
however, that Years of Service may
not exceed two (2) if the service
requirement for eligibility exceeds
1 year; or
computed in accordance with the
vesting schedule selected by the
Employer in Items B(7)(a) or
C(4)(d), as long as the benefits
under the vesting schedule in Items
B(7)(a) or C(4)(d) vest at least as
rapidly as the two options
specified in this Item B(14)(a),
above.
If the vesting schedule under the Plan shifts in or
out of the schedules above for any Plan Year because
of the Plan's Top-Heavy status, such shift is an
amendment to the vesting schedule and the election in
Section 2.2 of the Basic Plan Document applies.
b. For purposes of minimum Top-Heavy allocations,
contributions and forfeitures equal to 3% (not less
than 3%) of each Non-key Employee's Compensation will
be allocated to each Participant's Contribution
Account
Page 95
96
when the Plan is a Top-Heavy Plan, except as
otherwise provided in the Basic Plan Document. This
Item 14 will not apply to any Participant to the
extent the Participant is covered under any other
plan or plans of the Employer and the Employer
completes the following: (Insert the name of the plan
or plans which will meet the minimum allocation or
benefit requirement applicable to Top-Heavy plans.)
c. The Valuation Date as of which account balances or
accrued benefits are valued for purposes of computing
the Top-Heavy Ratio shall be the last day of each
Plan Year.
d. If the Employer maintains or has ever maintained one
or more defined benefit plans which have covered or
could cover a Participant in this Plan, complete the
following:
Present Value: For purposes of establishing Present
Value to compute the Top-Heavy Ratio, any benefit
shall be discounted only for mortality and interest
based on the following:
Interest rate: % Mortality table:
15. INVESTMENTS:
a. Investments made pursuant to the investment direction
provisions of the Basic Plan Document shall be made
into any appropriate Investment Fund as selected by
the Employer. In addition, investment of Plan assets
is expressly authorized, as required by Revenue
Ruling 81-100, in each of the following common or
collective funds sponsored by the Trustee, or an
affiliate of the Trustee (16):
__KEY TRUST EB MANAGED GUARANTEED INCOME CONTRACT
FUND, KEY TRUST MULTIPLE INVESTMENT TRUST FOR
EMPLOYEE BENEFIT TRUSTS, AND OTHER COLLECTIVE TRUSTS
EXEMPT FROM TAX UNDER IRC SECTION 501 AND AS
DESCRIBED IN REV. RUL. 81-100.
If selected, an Employer Stock Fund shall be
available as an Investment Fund pursuant to the terms
of the Basic Plan Document.
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97
If selected, and an Employer Stock
Fund is available as an Investment
Fund, Participants will have the
right, notwithstanding any other
provisions of the Plan, to direct
that a portion of the Plan assets
held for their benefit and invested
in the Employer Stock Fund be
diversified pursuant to the
provisions of Section 10.7(F) of
the Basic Plan Document.
c. Participants may make changes of existing account
balances and future contributions from among the
Investment Funds offered:
i Once during each business day that
the Trustee and the New York Stock
Exchange are open.
Once during each calendar month.
Once during each quarter of the
Plan Year.
Once during each rolling day
period.
If selected, the Participant shall be restricted in
making changes of existing account balances from any
Investment Fund, as specified in the terms or
conditions of such Investment Fund, and the Employer
shall attach an addendum specifying such restriction.
e. The Participant will designate into which Investment
Funds all contributions to their accounts are made,
EXCEPT the following:
Employer Profit Sharing
Contributions
Employer Mandatory Matching
Contributions
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98
Employer Discretionary Matching
Contributions
Qualified Matching Contributions
Qualified Nonelective Contributions
If selected, and to the extent a selection is made
above, the Employer shall attach an Investment
Direction Addendum specifying how the contributions
so specified shall be invested among the Investment
Fund.
If selected, the Participant shall be restricted in
the use of the Employer Stock Fund as an Investment
Fund for designating the investment of contributions
in the Participant's account, as follows:
The Participant may not direct the
investment of Plan assets held in
their account into the Employer
Stock Fund.
The Participant may direct % of the
following contributions into the
Employer Stock Fund:
Employer Profit Sharing
Contributions
Employer Mandatory Matching
Contributions
Employer Discretionary Matching
Contributions
Qualified Matching Contributions
Qualified Nonelective Contributions
% of the above referenced
contributions will be invested into
the
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99
Employer Stock Fund, with the
balance invested among:
the other Investment Funds,
including the Employer Stock Fund
the other Investment Funds,
NOT including the Employer Stock
Fund
16. LOANS (SELECT ONE):
a. Loans may be made from the Plan in accordance with
the Basic Plan Document and such policies and
procedures as the Committee may adopt and apply on a
consistent and nondiscriminatory basis (17).
No loans shall be made from the Plan.
17. TRUSTEE:
The Trustee of this Plan shall be KeyBank National
Association (a bank or trust company affiliated with
KeyCorp within the meaning of Internal Revenue Code
Section 1504).
18. EFFECTIVE DATE ADDENDUM:
If selected, the following provisions shall have the
specified effective dates (which are different from
the date specified in Item B(1)):
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100
C. SECTION 401(k) PLAN PROVISIONS:
1. SERVICE:
An Eligible Employee shall be required to fulfill the
following eligibility service requirements in order to
participate in the Plan through a salary reduction
agreement and for purposes of receiving an allocation of
Employer Matching Contributions:
The Employee must complete of Service (not more than
1 year) to be a Participant for purposes of receiving
allocations of Employer Matching Contributions.
b. The Employee must complete 1 Year of Service (not
more than 1 year) to be a Participant for purposes of
entering into a Salary Reduction Agreement and having
Employee Before Tax Contributions or Employee After
Tax Contributions contributed to the Plan on the
Employee's behalf.
2. EMPLOYEE SALARY DEFERRALS:
a. Participants shall be entitled to enter into a Salary
Reduction Agreement providing for Before Tax
Contributions to be made to the Plan.
i The minimum Before Tax Contribution
shall be 1% of the Participant's
Compensation.
ii The maximum Before Tax Contribution
shall be 13% of the Participant's
Compensation.
Participants shall be entitled to enter into a Salary
Reduction Agreement providing for After Tax
Contributions to be made to the Plan.
The minimum After Tax Contribution
shall be % of the Participant's
Compensation.
The maximum After Tax Contribution
shall be % of the Participant's
Compensation.
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101
If selected, notwithstanding the
above, a Participant shall not be
able to enter into a Salary
Reduction Agreement providing for
After Tax Contributions to be made
to the Plan unless the Participant
has entered into a Salary Reduction
Agreement that provides for Before
Tax Contributions to be made to the
Plan in an amount of at least % of
the Participant's Compensation.
If selected, a Participant shall be entitled to enter
into a Salary Reduction Agreement providing that any
extraordinary item of compensation, not yet payable
(including bonuses), be withheld from the
Participant's Compensation and contributed to the
Plan as either a Before Tax Contribution, or After
Tax Contribution (provided such contributions are
authorized above, and to the extent that such
contribution, when aggregated with either the
Participants other Before Tax Contributions or After
Tax Contributions do not exceed the limitations
specified above, on an annual basis).
3. CONTRIBUTION CHANGES:
a. Participants may increase or decrease the amount of
contributions made to the Plan pursuant to a Salary
Reduction Agreement once each:
Plan Year
Semi-annual period, based on the
Plan Year
iii Quarter, based on the Plan Year
Month
Other, as specified below (provided
that it is at least once per year):
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102
b. Claims for returns of Excess Before Tax Contributions
for the Participant's preceding taxable year must be
made in writing, and submitted to the Committee by
March 1 (specify a date between March 1 and April
15).(18)
4. EMPLOYER MATCHING CONTRIBUTIONS(19):
a. MANDATORY MATCHING CONTRIBUTIONS:
The Employer shall make contributions to the Plan, in
an amount as specified below:
An amount, equal to % of each
Participant's Before Tax
Contributions, however, no match
shall be made on Participants
Before Tax Contributions in excess
of % (or $ ) of the Participant's
Compensation.
An amount, equal to % of each
Participant's After Tax
Contributions, but not to exceed %
of the Participant's Compensation,
or $.
An amount, equal to % of each
Participant's contributions made
pursuant to a Salary Reduction
Agreement (including both Before
Tax Contributions and After Tax
Contributions), but only if the
Participant has entered into a
Salary Reduction Agreement
providing for Before Tax
Contributions of at least % of the
Participant's Compensation, but not
to exceed % of the Participant's
Compensation, or $ .
An amount equal to the sum of the
following:
(a) % of the first % of the
Participant's Compensation
deferred pursuant to a Salary
Reduction Agreement; plus,
(b) % of the next % of the
Participant's Compensation
deferred pursuant to a Salary
Reduction Agreement; plus,
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103
(c) % of the next % of the
Participant's Compensation
deferred pursuant to a Salary
Reduction Agreement, but not
to exceed % of the
Participant's Compensation, or
$ .
An amount equal to $ , for each
Participant who enters into a
Salary Reduction Agreement
providing for Before Tax
Contributions, After Tax
Contributions, or either Before Tax
Contributions or After Tax
Contributions (or a combination of
both) equal to or exceeding % of
the Participant's Compensation.
Such contributions shall be made
and allocated:
only during the first Plan Year the
Plan is in effect, or if a
restatement, for the first Plan
Year beginning with, or containing
the restatement Effective Date.
each Plan Year that a Participant
has in force a Salary Reduction
Agreement meeting the criteria
specified above.
during the first Plan Year that the
Participant participates through a
Salary Reduction Agreement meeting
the criteria specified above.
b. DISCRETIONARY MATCHING CONTRIBUTIONS:
The Employer shall make contributions to the Plan, in
an amount determined by resolution of the Board of
Directors on an annual basis. The Board resolution
shall provide for the percentage and/or amount of
Before Tax Contributions and/or After Tax
Contributions to be matched and the maximum
percentage and/or
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104
amount of Before Tax Contributions and/or
After Tax Contributions eligible for matching.
c. ALLOCATION OF MATCHING CONTRIBUTIONS:
Employer Matching Contributions shall be allocated
pursuant to the terms of the Basic Plan Document,
notwithstanding the foregoing:
A Participant who terminates before
the end of the period for which
contributions are allocated shall
share in the allocation of Employer
Matching Contributions if
termination of employment was the
result of (select all that apply):
retirement
disability
death
other, as specified below:
Employer Matching Contributions
shall be allocated to the accounts
of Participants (select one):
as of each pay period for which a
contribution was made pursuant to a
Salary Reduction Agreement.
semi-monthly.
as of the last day of the month
preceding the month in which the
contribution was made.
as of the last day of the Plan
quarter preceding the quarter in
which the contribution was made.
as of the last day of the Plan
year.
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105
If selected, the Employer may make Employer Matching
Contributions without regard to current or
accumulated Net Profits of the Employer for the
taxable year ending with, or within the Plan
Year(20).
d. The percentage of a Participant's Employer Matching
Contribution Account(21) (attributable to Employer
Matching Contributions) to be vested in him or her
upon termination of employment prior to attainment of
the Plan's Normal Retirement Date shall be(22):
COMPLETED YEARS OF SERVICE
1 2 3 4 5 6 7
------- ------- ------- ------- ------- ------- ----
0% 100%
-- ----
0% 0% 100%
-- -- ----
0% 20% 40% 60% 80% 100%
-- --- --- --- --- ----
0% 0% 20% 40% 60% 80% 100%
-- -- --- --- --- --- ----
10% 20% 30% 40% 60% 80% 100%
--- --- --- --- --- --- ----
0% 0% 0% 0% 100%
-- -- -- -- ----
0% 0% 0% 0% 0% 0% 100%
-- -- -- -- -- -- ----
Full and immediate vesting upon entry into the Plan
Notwithstanding anything to the contrary in the Plan,
the amount inserted in the blanks above shall not
exceed the limits specified in Code Section
411(a)(2).
e. Notwithstanding the provisions of this Item C(4)(e)
of the Adoption Agreement, a Participant shall become
fully vested in his Participant's Employer Matching
Contribution Account if(23):
the Participant's job is eliminated
without the Participant being
offered a comparable position
elsewhere with the Employer.
for such reason as is described
below:
f. CORRECTIVE CONTRIBUTIONS:
If selected, the Employer shall be
authorized to make Qualified
Matching
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106
Contributions, subject to the terms
of the Basic Plan Document, in an
amount determined by resolution of
the Board of Directors on an annual
basis.
ii If selected, the Employer shall be
authorized to make Qualified
Nonelective Contributions, subject to
the terms of the Basic Plan Document,
in an amount determined by resolution
of the Board of Directors on an annual
basis.
5. GAP EARNINGS:
If selected, Gap Earnings, as defined in
Section 3.2(G)(1) of the Basic Plan Document, will be
calculated for Excess Elective Deferrals, Excess
Contributions and Excess Aggregate Contributions, and
refunded to the Participant as provided for in
Article III of the Basic Plan Document.
6. FORFEITURES:
a. Forfeitures of amounts attributable to Employer
Matching Contributions shall be reallocated as of:
the last day of the Plan Year in
which the Forfeiture occurred.
the last day of the Plan Year
following the Plan Year in which
the Forfeiture occurred.
the last day of the Plan Year in
which the Participant suffering the
Forfeiture has incurred the fifth
consecutive One Year Break in
Service.
b. Forfeitures of Employer Matching Contributions shall
be reallocated as follows:
Not applicable as Employer Matching
Contributions are always 100%
vested and nonforfeitable.
Used first to pay the expenses of
administering the Plan, and then
allocated pursuant to one of the
following two options:
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Forfeitures shall be allocated to
Participant's accounts in the same manner as
Employer Profit Sharing Contributions,
Employer Matching Contributions, Qualified
Nonelective Contributions or Qualified
Matching Contributions, in the discretion of
the Employer, for the year in which the
Forfeiture arose.
Forfeitures shall be applied to reduce the
Employer Profit Sharing Contributions,
Employer Matching Contributions, Qualified
Nonelective Contributions or Qualified
Matching Contributions, in the discretion of
the Employer, for the Plan Year following
the Plan Year in which the Forfeiture arose.
c. Forfeitures of Excess Aggregate Contributions shall be:
Applied to reduce Employer contributions for
the Plan Year in which the excess arose, but
allocated as below, to the extent the excess
exceeds Employer contributions for the Plan
Year, or the Employer has already
contributed for such Plan Year.
Allocated after all other forfeitures under the Plan:
to the Matching Contribution account of each
Non-highly Compensated Participant who made
Before Tax Contributions or After Tax
Contributions in the ratio which each such
Participant's Compensation for the Plan Year
bears to the total Compensation of all such
Participants for the Plan Year; or,
to the Matching Contribution account of each
Non-highly Compensated
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Eligible Participant in the ratio which each
Eligible Participant's Compensation for the
Plan Year bears to the total Compensation of
all Eligible Participants for the Plan Year.
7. IN-SERVICE DISTRIBUTIONS (SELECT AS MAY BE APPROPRIATE):
There shall be no in-service distribution of
Participant account balances derived from Before Tax
Contributions (including Qualified Nonelective
Contributions and Qualified Matching Contributions
treated as Before Tax Contributions under the terms
of the Basic Plan Document), or Employer Matching
Contributions.
Participants may request an in-service distribution
of their account balance attributable to Employer
Matching Contributions, for the following reasons:
For purposes of satisfying a financial
hardship, as determined in accordance with
the uniform nondiscriminatory policy of the
Committee; Attainment of age 59-1/2 by the
Participant; or Attainment of the Plan's
Normal Retirement Date by the Participant.
c. Participants may request an in-service distribution
of their account balance attributable to Employee
Before Tax Contributions, for the following reasons:
For purposes of satisfying a financial
hardship, as determined by the facts and
circumstances of an Employee's situation, in
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109
accordance with the provisions of Section3.9
of the Basic Plan Document;
ii For purposes of satisfying a financial
hardship, using the "safe harbor" provisions
of Section3.9 of the Basic Plan Document.
Attainment of age 59-1/2 by the Participant;
or
Attainment of the Plan's Normal Retirement Date by the
Participant.
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110
NOTICE: The adopting Employer may not rely on an opinion letter issued by the
National Office of the Internal Revenue Service as evidence that the Plan is
qualified under the provisions of Section 401 of the Internal Revenue Code. In
order to obtain reliance with respect to the Plan's qualification, the Employer
must apply to the Key District Office of the Internal Revenue Service for a
determination letter.
This Adoption Agreement may only be used in conjunction with Basic Plan Document
#05.
This Plan document may only be used under the express authority of KeyCorp, its
subsidiaries and affiliates, and is not effective as completed until executed by
a duly authorized officer of KeyCorp, one of its subsidiaries or affiliates, and
approved by KeyCorp's counsel.
KeyCorp, as sponsor, may amend or discontinue this prototype plan document upon
proper notification to all adopting Employers pursuant to Revenue Ruling 89-13.
Failure to properly fill out an Adoption Agreement may result in
disqualification of the Plan, and adverse tax consequences to the Employer and
Plan Participants.
This Plan is sponsored by:
KeyCorp, on behalf of its operating subsidiaries, banking and trust
company affiliates
127 Public Square
Cleveland, Ohio 44114
(800)982-3811
Page 110
111
IN WITNESS WHEREOF, the Employer and the Trustee, by their respective
duly authorized officers, have caused this Adoption Agreement to be executed on
this ______ day of _______, ______.
EMPLOYER: Bindley Western Industries, Inc.
By:
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Title:
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TRUSTEE: KeyBank National Association
By:
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Title:
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and
By:
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Title:
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APPROVED ON BEHALF OF TRUSTEE:
Initials: Date:
----------------------- ----------------------
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INVESTMENT FUND DESIGNATION
Bindley Western Industries, Inc. (the "Named Fiduciary"), as an
independent fiduciary with respect to the Bindley Western Industries, Inc. &
Subsidiaries Profit Sharing Plan (the "Plan"), an employee benefit pension plan
covered by the applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") and its employees who participate therein (the
"Participants"), hereby acknowledges, confirms and directs that the following
actions shall be taken in connection with the assets held in trust for the
benefit of the Participants under the plan.
SELECTION OF INVESTMENTS AND MAPPING OVER TO NEW INVESTMENT FUNDS: The Named
Fiduciary has received and examined the various available Investment Funds and
designates the following investment funds from among the investment fund options
available for adopting employers of the PRISM(R) PROTOTYPE RETIREMENT PLAN &
TRUST (as defined in Section 10.7 of the Plan) to be available for selection by
Participants for the investment of Plan assets held for their benefit ("PRISM(R)
Funds"):
SELECTION OF INVESTMENTS: The Named Fiduciary has received and examined the
various available Investment Funds and designates the following investment funds
from among the investment fund options available for adopting employers of the
PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST (as defined in Section 10.7 of the
Plan) to be available for selection by Participants for the investment of Plan
assets held for their benefit ("PRISM(R) Funds"):
(a) Fidelity Advisor Equity Growth Fund: Class T
(b) Franklin Small Cap Growth Fund
(c) The American Funds Group(R): EuroPacific Growth Fund
(d) The American Funds Group(R): Washington Mutual Investors Fund
(e) The Victory Balanced Fund: Class A
(f) The Victory Investment Quality Bond Fund
(g) The Victory Stock Index Fund
(h) The Victory U.S. Government Obligations Fund
The plan assets are currently invested in the funds more fully described below
("Existing Funds"). The Named Fiduciary directs that the Existing Funds shall be
liquidated and forwarded to the Trustee of the Plan for reinvestment as follows.
The Named Fiduciary further designates that assets held in each of the Existing
Funds by the Plan prior to liquidation and transfer to the Trustee shall be
reinvested in the corresponding PRISM(R) Fund as specified below:
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Existing Funds: PRISM(R) Funds:
(a) (a) Fidelity Advisor Equity Growth Fund: Class T
, if selected, an Employer Stock Fund will also be available.
TEMPORARY INVESTMENT PLAN ASSETS: The named Fiduciary directs that a temporary
holding account will be setup for the Plan. Any Plan assets that are received by
the Trustee and are not invested for any reason in the Investment Funds listed
above will be invested in the EB Money Market collective fund.
INVESTMENT FUND DECISION PROCESS AND DISCLOSURE: In making the selection of
Investment Funds, the Named Fiduciary hereby confirms and acknowledges that:
INVESTMENT FUND DECISION PROCESS AND DISCLOSURE: In making the selection of
Investment Funds, and in designating the PRISM(R) Funds into which the
Page 113
114
liquidated assets from each of the Existing Funds will be invested in, the Named
Fiduciary hereby confirms and acknowledges that:
The Named Fiduciary has had made available to it copies of the
prospectuses (to the extent required under applicable federal
securities law and regulation) for each investment fund
available for selection by adopting employers of the PRISM(R)
PROTOTYPE RETIREMENT PLAN & TRUST, and has received copies of
each such prospectus for the Investment Funds selected;
The Named Fiduciary acknowledges that the Trustee of the Plan
may receive certain fees for services provide to, or on behalf
of an Investment Fund, or the sponsors or distributors
thereof, pursuant to plans of distribution adopted by the fund
under the provisions of Rule 12b-1 of the Investment Company
Act of 1940, and further acknowledges that (i) such fee, if
paid, is appropriate for services rendered to the fund, and
when aggregated with other fees for service payable to the
Trustee constitutes reasonable compensation for the Trustee's
services to the Plan; and (ii) the Plan will be able to redeem
its interest in any such Investment Fund on reasonably short
notice without penalty;
The Named Fiduciary further acknowledges that it has selected
the Investment Funds, and designated the PRISM(R) Funds into
which the liquidated assets from each of the Existing Funds
will be invested, in its sole determination, after due
inquiry, that the Investment Funds are appropriate vehicles
for the investment of Plan assets pursuant to the terms of the
Plan, considering all relevant facts and circumstances,
including but not limited to (i) the investment policy and
philosophy of the Named Fiduciary developed pursuant to ERISA
Section 404; (ii) the ability of Participants, using an
appropriate mix of Investment Funds, to diversify the
investment of Plan assets held for their benefit; and, (iii)
the ability of Participants to, utilizing an appropriate mix
of Investment Funds, structure an investment portfolio within
their account in the Plan with risk and return characteristics
within the normal range of risk and return characteristics for
individuals with similar investment backgrounds, experience
and expectations, and that the investment of assets which will
be liquidated from the Existing Funds in the specified
PRISM(R) Funds is appropriate considering the above described
criteria; and,
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115
The Named Fiduciary acknowledges that it has not relied on any
representations or recommendations from the Trustee or any of
its employees in selecting the Investment Funds.
The Named Fiduciary acknowledges that it has not relied on any
representations or recommendations from the Trustee or any of
its employees in selecting the Investment Funds, or in
specifying which of the selected PRISM(R) Funds into which the
liquidated assets from each of the Existing Funds will be
invested.
The Trustee agrees to follow the Named Fiduciary's direction with respect to
offering the Investment Funds available for selection by the Participants in the
Plan for the investment of Plan assets held for their benefit.
IN WITNESS WHEREOF, the Employer, by its duly authorized representative, has
executed this document in connection with maintenance of the Plan utilizing the
PRISM(R) PROTOTYPE RETIREMENT PLAN & TRUST documents, as provided by the
Trustee.
NAMED FIDUCIARY: BINDLEY WESTERN INDUSTRIES, INC.
By:
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Seen and accepted by the Trustee, which shall provide the Investment
Funds selected by the Employer pursuant to the terms of this document, and
pursuant to the Plan.
TRUSTEE: KEYBANK NATIONAL ASSOCIATION
By:
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116
(1) Footnotes in this Adoption Agreement are not to be construed
as part of the Plan provisions but are explanatory only. To
the extent a footnote is inconsistent with the provisions of
the Basic Plan Document or applicable law, the provisions of
the Plan shall be construed in conformity with the Basic Plan
Document or law.
(2) Terms that are capitalized are defined in the PRISM(R)
PROTOTYPE RETIREMENT PLAN & TRUST BASIC PLAN DOCUMENT.
(3) The Plan will have an individual TIN, distinct from the
Employer TIN.
(4) Committee members direct the day to day operation of the Plan.
Committee members serve at the pleasure of the Employer.
See Section 11.4 for changes in Committee membership. If no
Committee members are specified, the Employer shall assume
responsibility for the operations of the Plan.
(5) If no amount is specified, the maximum amount of Compensation
allowed under Code Section 401(a)(17)(the "$150,000 limit"
("$200,000 limit" prior to the Plan Year beginning before
January 1, 1994)), as adjusted from time to time, shall be
used.
(6) If a fractional year is elected, the elapsed time method of
computing service shall be used for the fractional year.
Eligibility provisions for optional cash or deferred
arrangements are contained in Item C of this Adoption
Agreement.
(7) Notwithstanding the foregoing, an Employee who has met the
eligibility requirements may not enter the Plan later than six
months following the date on which the Employee first
completes the eligibility requirements.
(8) Notwithstanding the selection made in this Item B(7)(a), a
participant shall be fully vested in his or her Employer
Contribution Accounts if the Participant dies or becomes
Disabled while in the employ of the Employer.
(9) If more than one Year of Service is an eligibility
requirement, Item viii must be selected.
(10) The provisions of this section will be administered by the
Employer on a consistent and nondiscriminatory basis.
(11) Amounts designated as Qualified Nonelective Contributions will
be allocated pursuant to Section 3.1(A)(14) of the Basic Plan
Document.
(12) In the event contributions are allocated on a basis other than
a full plan year, the Year of Service shall be based on the
elapsed time method of calculation, and a Participant shall be
deemed to have completed an appropriate Period of Service for
allocation purposes if the Participant has completed a
pro-rata Period of Service corresponding to the interval on
which contributions are allocated.
(13) Excess Compensation means a Participant's Compensation in
excess of the Permitted Disparity Level specified in the
Definitions section of this Adoption Agreement.
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117
(14) Even if this Item is selected, the provisions of Section 4.8
of the Basic Plan Document may supersede this requirement if
necessary to satisfy Code Sections 401(a)(26) and 410(b).
(15) If this option is selected, iii or iv must be selected to
reallocate Forfeitures of Employer Profit Sharing
Contributions remaining after expenses of administering the
Plan have been paid.
(16) This Item is for use in identifying collective trust funds,
which, pursuant to Revenue Ruling 81-100 must be specifically
referenced in the Plan. Actual Investment Funds are referenced
on the Investment Fund Designation form attached to this
Adoption Agreement.
(17) If this option is selected, the Employer must establish
appropriate procedures for implementation of the Plan's loan
program.
(18) The date specified is for the refund of amount deferred in
excess of the Code Section 402(g) limit (the $7,000 limit) for
the Participant's taxable year.
(19) The Employer shall have the right to designate all, or any
portion of Employer Matching Contributions as Qualified
Matching Contributions, which shall then be subject to the
same vesting, distribution, and withdrawal restrictions as
Before Tax Contributions.
(20) Net Profits will never be required for the contribution of
Before Tax Contributions, After Tax Contributions, Qualified
Nonelective Contributions or Qualified Matching Contributions.
(21) Notwithstanding anything in the Adoption Agreement to the
contrary, amounts in a Participant's account attributable to
Before Tax Contributions, Qualified Nonelective Contributions,
and Qualified Matching Contributions shall be 100% vested and
nonforfeitable at all time.
(22) Notwithstanding the selection made in this item B(7)(b), a
Participant shall be fully vested in his or her Employer
Contribution Accounts if the Participant dies or becomes
Disabled while in the employ of the Employer.
(23) The provisions of this section will be administered by the
Employer on a consistent and nondiscriminatory basis.
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118
SPIN-OFF AMENDMENT FOR THE SEPARATION
OF ASSETS AND LIABILITIES OF THE
BINDLEY WESTERN INDUSTRIES, INC.
&
SUBSIDIARIES PROFIT PRIORITYARING PLAN
WHEREAS, Bindley Western Industries, Inc. (the "Company") previously adopted and
presently maintains the Bindley Western Industries, Inc. & Subsidiaries Profit
Priorityaring Plan (the "Bindley Western Plan"), and Priority Healthcare
Corporation (the "Subsidiary") participated in the Bindley Western Plan; and,
WHEREAS, Section 14.5 of the Bindley Western Plan expressly provides that the
Company has the right to transfer assets to any other Plan or otherwise modify
the terms of the Bindley Western Plan, retroactively if necessary; and,
WHEREAS, the Company and Subsidiary desires to spin-off assets and liabilities
of the Subsidiaries Employees effective as of October 15, 1998 (the "Setup
Date"), and establiPriority the Profit Priorityaring Plan of Priority Healthcare
Corporation and Affiliates (the "Priority Plan") independent of the Bindley
Western Plan to benefit the Subsidiary's Employees pursuant to the terms of the
Priority Plan with no obligation to make contributions to the Bindley Western
Plan;
NOW THEREFORE,
BE IT RESOLVED, the assets and liabilities of the Subsidiary are hereby
separated and transferred into the Priority Plan with identical terms (except as
modified for purposes of accomplishing the spin-off) as the Bindley Western Plan
prior to separation. Capitalized terms, to the extent not defined herein, shall
have the same meaning as in the Bindley Western Plan:
MODIFICATION OF THE BINDLEY WESTERN PLAN:
Notwithstanding anything in the Bindley Western Plan to the contrary, the
Bindley Western Plan is hereby amended, as of the Setup Date, as follows:
1. All contributions (or other benefit accruals) from the
Subsidiary shall cease, effective as of the Setup Date, no
Participant of the Subsidiary therein Shall accrue any
additional benefits thereunder, and no Employee of the
Subsidiary, otherwise eligible to participate in the Bindley
Western Plan as of the Setup Date, Shall enter the Bindley
Western Plan;
2. All amounts held for the benefit of Participants of the
Subsidiary in the Bindley Western Plan, including the
non-vested portions thereof, Shall be preserved, and
transferred, as soon as practicable, to the Priority Plan;
3. Notwithstanding anything contained in the provisions of the
Bindley Western Plan, the Priority Plan, or this amendment,
all Participants under the Bindley Western Plan will receive a
benefit immediately after the separation which is at least as
great as the benefit the Participant would have received under
the terms of the Bindley Western Plan had the Bindley Western
Plan terminated on the day before the Setup Date, subject only
to vesting pursuant to the terms of the Bindley Western Plan.
4. On and after the Setup Date (or the date assets of the Bindley
Western Plan are received and held under the terms of the
Priority Plan and this amendment, if later) the Bindley
Western Plan Shall continue to exist, and all provisions
thereof, except as modified pursuant to this amendment Shall
be in full force and effect.
TERMS OF THE PRIORITY PLAN:
Notwithstanding anything in the Priority Plan to the contrary, the Priority Plan
is hereby established, as of the Setup Date, as follows:
1. The Priority Plan Shall accept, and hold, assets transferred
from the Bindley Western Plan pursuant to this amendment and
separation. The Priority Plan Shall accept all records,
accountings, and other descriptions
Page 118
119
of benefits accrued under the Bindley Western Plan, and Shall
maintain such benefits as part of and payable from the
Priority Plan, to the extent of assets actually received by
the Priority Plan.
2. All benefits payable to Employees of the Subsidiary from the
Bindley Western Plan as of the Setup Date will be provided by
the Priority Plan on the same terms and conditions, in the
same amount, form and manner, and at the same time and
frequency as under the Bindley Western Plan as in effect from
time to time prior to the Setup Date, and the Priority Plan
shall contain appropriate provisions to protect all benefits,
rights and features required to be protected under the
provisions of Internal Revenue Code Section 411(d)(6).
3. All beneficiary designation forms, option election forms,
spousal consent forms, and other administrative forms and
materials executed under the terms of the Bindley Western Plan
Shall continue in full force and effect with respect to the
Priority Plan, unless otherwise required by law.
4. All Priority Healthcare Corporation Participants of the
Bindley Western Plan shall immediately become Participants of
the Priority Plan, as of the Setup Date, and all Subsidiary
employees otherwise eligible to participate in the Bindley
Western Plan, but who have not yet entered as Participants in
the Bindley Western Plan Shall become Participants in the
Priority Plan as of the next Entry Date. All service performed
by Employees of the Subsidiary, as credited pursuant to the
terms of the Bindley Western Plan Shall be credited for
purposes of calculating eligibility and vesting Years of
Service under the terms of the Priority Plan. Notwithstanding
the foregoing, under no circumstances Shall the vested
percentage of a Participant credited with Years of Service
while in the employ of the Subsidiary be reduced with respect
to any benefits accrued under the terms of the Bindley Western
Plan prior to the Setup Date, or with respect to the benefits
accrued under the terms of the Priority Plan on or after the
Setup Date.
5. Notwithstanding anything contained in the provisions of the
Priority Plan, the Bindley Western Plan, or this amendment,
all Participants under the Priority Plan will receive a
benefit immediately after the separation which is at least as
great as the benefit the Participant would have received under
the terms of the Bindley Western Plan had the Bindley Western
Plan terminated on the day before the Setup Date, subject only
to vesting pursuant to the terms of the Bindley Western Plan.
IN WITNESS WHEREOF, the Company and the Subsidiary have executed this Amendment,
as of this _____ day of ________________, 1998.
BINDLEY WESTERN INDUSTRIES, INC.
By:
---------------------------------------
------------------------------------------
PRIORITY HEALTHCARE CORPORATION
By:
---------------------------------------
------------------------------------------
Page 119
120
FIRST AMENDMENT TO THE PROFIT SHARING PLAN OF
BINDLEY WESTERN INDUSTRIES, INC., & SUBSIDIARIES
WHEREAS, Bindley Western Industries, Inc. (the "Company") established the Profit
Sharing Plan of Bindley Western Industries, Inc. and its Subsidiaries originally
effective on January 1, 1979, and amended and restated in the PRISM (R)
Nonstandardized Prototype Adoption Agreement effective January 1, 1996 (the
"Plan"); and
WHEREAS, the Company in the Adoption Agreement appointed the original members of
the Committee who were charged with operating the Plan; and
WHEREAS, the Company has decided to reconstitute the Committee effective October
1,1997.
NOW THEREFORE,
BE IT RESOLVED, that the Company amends the provisions of Item B.3. of the
Adoption Agreement to provide as follows:
B. BASIC PLAN PROVISIONS:
3. COMMITTEE MEMBERS:
Michael L. Shinn, Michael D. McCormick, Thomas Weakley, and Marion A.
McDermott
AND BE IT FURTHER RESOLVED, that except as amended herein, all other provisions
of the Profit Sharing Plan of Bindlet Western Industries, Inc. and its
Subsidiaries shall remain effective as set forth in the Adoption Agreement.
PLAN SPONSOR: BINDLEY WESTERN INDUSTRIES, INC.
BY: ______________________________ DATED: _____________
TRUSTEE: KEY TRUST COMPANY OF INDIANA, N.A.
BY: ______________________________ DATED: _____________
Page 120
121
SECOND AMENDMENT TO THE PROFIT SHARING PLAN OF
BINDLEY WESTERN INDUSTRIES, INC., AND ITS SUBSIDIARIES
WHEREAS, Bindley Western Industries, Inc. (the "Company") established the Profit
Sharing Plan of Bindley Western Industries, Inc. and its Subsidiaries originally
effective on January 1, 1979, and amended and restated in the PRISM (R)
Nonstandardized Prototype Adoption Agreement effective January 1, 1996 (the
"Plan"); and
WHEREAS, the Company has completed its acquisition of Central Pharmacy Services,
Inc. and is desirous of allowing the employees of Central Pharmacy Services,
Inc. to enter the Plan as of the next succeeding entry date (January 1, 2000) by
crediting their prior service with their former employer for purposes of
eligibility, but not crediting such prior service for purposes of vesting of
benefits under the Plan; and
WHEREAS, the Company desires that the amendment be effective December 31, 1999.
NOW THEREFORE,
BE IT RESOLVED, that the Company, effective December 31, 1999, amends the
provisions of Item B.4.j.(v.) of the Adoption Agreement to provide as follows:
B. Basic Plan Provisions:
4. Definitions:
j. Year of Service shall mean:
v X For eligibility purposes, Years of Service with the following
Predecessor Employers shall count in fulfilling the eligibility
requirements for this Plan: Kendall Drug Company; Tennessee Wholesale
Drug; and Central Pharmacy Services, Inc.
AND BE IT FURTHER RESOLVED, that except as amended herein, all other provisions
of the Profit Sharing Plan of Bindley Western Industries, Inc. and its
Subsidiaries shall remain effective as set forth in the Adoption Agreement.
Page 121
122
Plan Sponsor: Bindley Western Industries, Inc.
By: ______________________________ Dated: _____________
Trustee: Key Trust Company of Indiana, National Association
By: ______________________________ Dated: _____________
Page 122
123
THIRD AMENDMENT TO THE PROFIT SHARING PLAN OF
BINDLEY WESTERN INDUSTRIES, INC., AND ITS SUBSIDIARIES
WHEREAS, Bindley Western Industries, Inc. (the "Company") established the Profit
Sharing Plan of Bindley Western Industries, Inc. and its Subsidiaries originally
effective on January 1, 1979, and amended and restated in the PRISM (R)
Nonstandardized Prototype Adoption Agreement effective January 1, 1996 (the
"Plan"); and
WHEREAS, the Company has determined that it would adopt the necessary Plan
amendments to comply with the provisions of IRC Section 401(k)(12) to make the
Plan a "safe harbor" Plan commencing January 1, 2000 by electing to make an
Employer Non- Elective Contribution to the Plan; and
WHEREAS, the Company desires that the amendment be effective January 1, 2000.
NOW THEREFORE,
BE IT RESOLVED, that the Company, effective January 1, 2000, amends the
provisions of Item B.7.a of the Adoption Agreement to provide as follows:
B. BASIC PLAN PROVISIONS:
7. VESTING:
a. The percentage of a Participant's Employer
Contribution Account (attributable to Employer Profit
Sharing Contributions) to be vested in him or her
upon termination of employment prior to attainment of
the Plan's Normal Retirement Date shall be : THE
PROVISIONS OF THIS ITEM B.7.a.(iv) SHALL APPLY TO ALL
EMPLOYER DISCRETIONARY CONTRIBUTIONS. THE PROVISIONS
OF ITEM B.7.a.(viii) SHALL APPLY TO ALL EMPLOYER NON
ELECTIVE CONTRIBUTIONS MADE UNDER ITEM B.8.a.(ii).
COMPLETED YEARS OF SERVICE
Page 123
124
1 2 3 4 5 6 7
--- --- --- --- --- --- ---
I 0% 100%
Ii 0% 0% 100%
Iii 0% 20% 40% 60% 80% 100%
iv X 0% 0% 20% 40% 60% 80% 100%
V 10% 20% 30% 40% 60% 80% 100%
Vi 0% 0% 0% 0% 100%
Vii 0% 0% 0% 0% 0% 0% 100%
viii X Full and immediate vesting upon entry into the Plan - AND BE IT
FURTHER RESOLVED, that the Company, effective January 1, 2000, amends the
provisions of Item B.8.a. of the Adoption Agreement to provide as follows:
B. BASIC PLAN PROVISIONS:
8. EMPLOYER PROFIT SHARING CONTRIBUTIONS:
a. CONTRIBUTIONS:
i X In its discretion, the Employer may
___ contribute Employer Profit Sharing
Contributions to the Plan.
ii X The Employer shall contribute Employer
___ Profit Sharing Contributions to the Plan in
the amount of 3% of the Compensation of all
Eligible Participants under the Plan.
iii X If selected, the Employer may make Employer
___ Profit Sharing Contributions without regard
to current or accumulated Net Profits of the
Employer for the taxable year ending with,
or within the Plan Year.
iv___ If selected, the Employer may designate all
or any part of the Employer Profit Sharing
Contributions as Qualified Nonelective
Contributions, provided, however, that
contributions so designated will be subject
to the same vesting, distribution, and
withdrawal restrictions as Before Tax
Contributions.
Page 124
125
AND BE IT FURTHER RESOLVED, that effective January 1, 2000, the Company amends
the provisions of Item B.18 of the Adoption Agreement to provide as follows:
B. BASIC PLAN PROVISIONS:
18. X EFFECTIVE DATE ADDENDUM:
___
If selected, the following provisions shall have the specified
effective dates (which are different from the date specified in Item
B(1)):
Notwithstanding the provisions of Item B.7.a. or any other provision of
the Adoption Agreement or the Basic Plan Document to the contrary, all
Employer Contributions made under Item B.8.a.(ii) shall:
(1) Become fully and immediately vested upon being made to the Plan;
(2) There shall be no In-Service withdrawal for a Participant; and
(3) Shall be contributed to the Plan whether or not the Participant is
employed by the Company on the last day of the Plan Year or has
completed 1,000 Hours of Service.
AND BE IT FURTHER RESOLVED, that the Company adopts "Addendum A" attached hereto
as a portion of the Adoption Agreement to note the Company's determination to be
considered a "safe harbor" plan for the Plan Year commencing on January 1, 2000;
and
AND BE IT FURTHER RESOLVED, that except as amended herein, all other provisions
of the Profit Sharing Plan of Bindley Western Industries, Inc. and its
Subsidiaries shall remain effective as set forth in the Adoption Agreement.
PLAN SPONSOR: BINDLEY WESTERN INDUSTRIES, INC.
BY: ______________________________ DATED: _____________
TRUSTEE: KEY TRUST COMPANY OF INDIANA, NATIONAL ASSOCIATION
Page 125
126
BY: ______________________________ DATED: _____________
Page 126
127
PARTICIPATION AGREEMENT
FOR PARTICIPATION BY RELATED GROUP MEMBERS
(PLAN SECTION 1.1(KK))
The undersigned Employer, by executing this Participation Agreement,
elects to become a Participating Employer in the Plan, as if the Participating
Employer were a signatory to the Adoption Agreement. The Participating Employer
accepts, and agrees to be bound by, all of the elections granted under the
provisions of the Plan as made by Bindley Western Industries, Inc., Employer of
the Adoption Agreement ("Signatory Employer").
(1) The Effective Date of the undersigned Employer's participation in the
designated Plan is: January 1, 1996
(2) The undersigned Employer's adoption of this Plan constitutes:
(a)___ The adoption of a new plan by the Participating Employer.
(b)___ The adoption of an amendment and restatement of a plan
currently maintained by the Employer, identified as Bindley
Western Industries, Inc. & Subsidiaries Profit Sharing Plan
and having an original effective date of January 1, 1979.
In Witness Whereof, the Employer and the Trustee, by their respective
duly authorized officers, have caused this Adoption Agreement to be executed on
this 1st day of March, 1998.
Tennessee Wholesale Drug (TWG) Key Trust Company of Indiana, NA
(Name of Participating Employer) (Name Of Trustee)
By: /s/ Michael D. McCormick By: /s/ April M. Czenkusch
(Title) Secretary (Title) Vice President
Bindley Western Industries, Inc.
(Name of Signatory Employer)
By: /s/ Thomas Salentine
(Title) Executive Vice President
and CFO
Page 127
128
PARTICIPATION AGREEMENT
FOR PARTICIPATION BY RELATED GROUP MEMBERS
(PLAN SECTION 1.1(KK))
The undersigned Employer, by executing this Participation Agreement,
elects to become a Participating Employer in the Plan, as if the Participating
Employer were a signatory to the Adoption Agreement. The Participating Employer
accepts, and agrees to be bound by, all of the elections granted under the
provisions of the Plan as made by Bindley Western Industries, Inc., Employer of
the Adoption Agreement ("Signatory Employer").
(1) The Effective Date of the undersigned Employer's participation in the
designated Plan is: April 1, 1996
(2) The undersigned Employer's adoption of this Plan constitutes:
(a)____ The adoption of a new plan by the Participating Employer.
(b)____ The adoption of an amendment and restatement of a plan
currently maintained by the Employer, identified as Bindley
Western Industries, Inc. & Subsidiaries Profit Sharing Plan
and having an original effective date of January 1, 1979.
In Witness Whereof, the Employer and the Trustee, by their respective
duly authorized officers, have caused this Adoption Agreement to be executed on
this ___ day of February, 1998.
National Infusion Services, Inc. Key Trust Company of Indiana, NA
(Name of Participating Employer) (Name Of Trustee)
By: /s/ Michael D. McCormick By: /s/ April M. Czenkusch
(Title) Secretary (Title) Vice President
Bindley Western Industries, Inc.
(Name of Signatory Employer)
By: /s/ Thomas Salentine
(Title) Executive Vice President
and CFO
Page 128
129
PARTICIPATION AGREEMENT
FOR PARTICIPATION BY RELATED GROUP MEMBERS
(PLAN SECTION 1.1(KK))
The undersigned Employer, by executing this Participation Agreement,
elects to become a Participating Employer in the Plan, as if the Participating
Employer were a signatory to the Adoption Agreement. The Participating Employer
accepts, and agrees to be bound by, all of the elections granted under the
provisions of the Plan as made by Bindley Western Industries, Inc., Employer of
the Adoption Agreement ("Signatory Employer").
(1) The Effective Date of the undersigned Employer's participation in the
designated Plan is: July 31, 1997
(2) The undersigned Employer's adoption of this Plan constitutes:
(a) ____ The adoption of a new plan by the Participating Employer.
(b) ____ The adoption of an amendment and restatement of a plan
currently maintained by the Employer, identified as Bindley
Western Industries, Inc. & Subsidiaries Profit Sharing Plan
and having an original effective date of January 1, 1979.
In Witness Whereof, the Employer and the Trustee, by their respective
duly authorized officers, have caused this Adoption Agreement to be executed on
this 1st day of March, 1998.
Tennesse WholesaleDrug (TWD) Key Trust Company of Indiana, NA
(Name of Participating Employer) (Name Of Trustee)
By: /s/ Michael D. McCormick By: /s/ April M. Czenkusch
(Title) Secretary (Title) Vice President
Bindley Western Industries, Inc.
(Name of Signatory Employer)
By: /s/ Thomas Salentine
(Title) Executive Vice President
and CFO
Page 129
130
PARTICIPATION AGREEMENT
FOR PARTICIPATION BY RELATED GROUP MEMBERS
(PLAN SECTION 1.1(KK))
The undersigned Employer, by executing this Participation Agreement,
elects to become a Participating Employer in the Plan, as if the Participating
Employer were a signatory to the Adoption Agreement. The Participating Employer
accepts, and agrees to be bound by, all of the elections granted under the
provisions of the Plan as made by Bindley Western Industries, Inc., Employer of
the Adoption Agreement ("Signatory Employer").
(1) The Effective Date of the undersigned Employer's participation in the
designated Plan is: August 8, 1997
(2) The undersigned Employer's adoption of this Plan constitutes:
(a) ____ The adoption of a new plan by the Participating Employer.
(b) ____ The adoption of an amendment and restatement of a plan
currently maintained by the Employer, identified as Bindley
Western Industries, Inc. & Subsidiaries Profit Sharing Plan
and having an original effective date of January 1, 1979.
In Witness Whereof, the Employer and the Trustee, by their respective
duly authorized officers, have caused this Adoption Agreement to be executed on
this 1st day of March, 1998.
Groveway Pharmacy Key Trust Company of Indiana, NA
(Name of Participating Employer) (Name Of Trustee)
By: /s/ Michael D. McCormick By: /s/ April M. Czenkusch
(Title) Secretary (Title) Vice President
Bindley Western Industries, Inc.
(Name of Signatory Employer)
By: /s/ Thomas Salentine
(Title) Executive Vice President
and CFO
Page 130
131
PARTICIPATION AGREEMENT
FOR PARTICIPATION BY RELATED GROUP MEMBERS
(PLAN SECTION 1.1(KK))
The undersigned Employer, by executing this Participation Agreement,
elects to become a Participating Employer in the Plan, as if the Participating
Employer were a signatory to the Adoption Agreement. The Participating Employer
accepts, and agrees to be bound by, all of the elections granted under the
provisions of the Plan as made by Bindley Western Industries, Inc., Employer of
the Adoption Agreement ("Signatory Employer").
(1) The Effective Date of the undersigned Employer's participation in the
designated Plan is: Octobr 1, 1997
(2) The undersigned Employer's adoption of this Plan constitutes:
(a) ____ The adoption of a new plan by the Participating Employer.
(b) ____ The adoption of an amendment and restatement of a plan
currently maintained by the Employer, identified as Bindley
Western Industries, Inc. & Subsidiaries Profit Sharing Plan
and having an original effective date of January 1, 1979.
In Witness Whereof, the Employer and the Trustee, by their respective
duly authorized officers, have caused this Adoption Agreement to be executed on
this 1st day of March, 1998.
Tennessee Wholesale Drug (TWG) Key Trust Company of Indiana, NA
(Name of Participating Employer) (Name Of Trustee)
By: /s/ Michael D. McCormick By: /s/ April M. Czenkusch
(Title) Secretary (Title) Vice President
Bindley Western Industries, Inc.
(Name of Signatory Employer)
By: /s/ Thomas Salentine
(Title) Executive Vice President
and CFO
Page 131
132
FIFTH AMENDMENT TO THE BINDLEY WESTERN INDUSTRIES, INC. & SUBSIDIARIES
PROFIT SHARING PLAN
WHEREAS, Bindley Western Industries, Inc. (the "Company") sponsors the Bindley
Western Industries, Inc. & Subsidiaries Profit Sharing Plan (the "Plan"),
originally effective as of Janaury 1, 1979, as amended and restated in the
PRISM(R) Nonstandardized Prototype Plan as provided by the Trustee, effective
January 1, 1996; and
WHEREAS, the Company in accepting assets into the Plan, as a part of a Plan
Merger transaction, effective July 1, 2000 with Central Pharmacy Services, Inc.,
it was determined that certain distribution options for Plan benefits in the
Central Plan should be preserved to allow various annuity and installment
options to remain available for such Participants' account balances merged into
the Plan; and
WHEREAS, the Company has been informed that the Internal Revenue Service has
issued new final regulations that would permit the elimination of the annuity
and installment options as a benefit payment option since the Plan offers a lump
sum cash payment option when a Participant terminates employment; and
WHEREAS, the Company has determined that as these options are rarely utilized by
the Participants, the elimination of these options would have little effect on
the Participants and would eliminate substantial record keeping and
administrative issues in the Plan that relate to the offering of the annuity and
installment options; and
WHEREAS, the Company in consideration of these facts, desires to eliminate the
annuity and installment optional forms of benefit payments, but retain the
single lump sum option for benefit distributions and to make this change as soon
as possible in accordance with the timing rules set forth by the Internal
Revenue Service.
NOW THEREFORE,
BE IT RESOLVED, that the Appendix "A" to the Joint Amendment for the Merger of
the Bindley Western Industries, Inc. and Subsidiaries Profit Sharing Plan and
the Central Pharmacy Services, Inc. 401(k) Profit Sharing Plan is hereby amended
to provide that the Protected Benefit for distribution options for the payment
of Central Participants in any of the annuity or installment methods are hereby
eliminated effective as of the earliest date after proper notification of the
Participants of the change in this provision, but no earlier than March 1, 2001.
AND BE IT FURTHER RESOLVED, that except as AMENDED herein, all other provisions
of the Bindley Western Industries, Inc. & Subsidiaries Profit Sharing Plan, as
amended, shall remain effective.
SPONSOR: BINDLEY WESTERN INDUSTRIES, INC.
BY: ______________________________ DATED:_____________
Page 132
133
TRUSTEE: KEY TRUST COMPANY OF INDIANA, NATIONAL ASSOCIATION
BY: ______________________________ DATED: _____________
Page 133
134
JOINT AMENDMENT FOR THE MERGER OF THE
BINDLEY WESTERN INDUSTRIES, INC. AND SUBSIDIARIES PROFIT SHARING PLAN
AND THE
CENTRAL PHARMACY SERVICES, INC. 401(k) PROFIT SHARING PLAN
WHEREAS, Bindley Western, Inc. (the "Company") previously adopted and
presently maintains the Bindley Western Industries, Inc. and Subsidiaries Profit
Sharing Plan (the "Bindley Western Plan"), and presently maintains the Central
Pharmacy Services, Inc. 401(k) Profit Sharing Plan (the "Central Pharmacy Plan")
as a result of the merger of Central Pharmacy Services, Inc. with, and into
Bindley Western Industries, Inc.;
WHEREAS, Section 9.01 of the Central Pharmacy Plan expressly provides
that the Company (as successor Plan sponsor) has the right to amend, terminate
or otherwise modify the terms of the Central Pharmacy Plan, retroactively if
necessary; and,
WHEREAS, the Company desires to merge the Central Pharmacy Plan into
the Bindley Western Plan effective as of July 1, 2000, (the "Merger Date") and
to continue the Bindley Western Plan for the benefit of the Company's employees
pursuant to the terms of the Bindley Western Plan;
NOW THEREFORE: the Plans are hereby merged, with the terms of the
Bindley Western Industries, Inc. and Subsidiaries Profit Sharing Plan surviving
as the operative terms of the Central Pharmacy Plan, modified for purposes of
accomplishing the merger as hereafter provided. Capitalized terms, to the extent
not defined herein, shall have the same meaning as in the Bindley Western Plan):
MODIFICATION OF THE CENTRAL PHARMACY PLAN:
Notwithstanding anything in the Central Pharmacy Plan to the contrary, the
Central Pharmacy Plan is hereby amended, as of the Merger Date, as follows:
1. All contributions (or other benefit accruals) have ceased, effective as of
the January 1, 2000, no Participant therein shall accrue any additional benefits
thereunder, and no Employee otherwise eligible to participate in the Central
Pharmacy Plan as of January 1, 2000, shall enter the Central Pharmacy Plan;
2. All amounts held for the benefit of Participants in the Central Pharmacy Plan
("Account Balances"), shall be preserved, and trans-ferred, as soon as
practicable, to the Bindley Western Plan;
3. Notwithstanding anything contained in the provisions of the Central Pharmacy
Plan, the Bindley Western Plan, or this amendment, all Participants under the
Central Pharmacy Plan will receive a benefit immediately after the merger which
is at least as great as the benefit the
Page 134
135
Participant would have received under the terms of the Central Pharmacy Plan had
the Central Pharmacy Plan terminated on the day before the Merger Date.
4. On and after the Merger Date (or the date assets of the Central Pharmacy Plan
are received and held under the terms of the Bindley Western Plan and this
amendment, if later) the Central Pharmacy Plan shall cease to exist, and all
provisions thereof, except as preserved pursuant to this amendment, shall be of
no further force or effect.
5. All account balances that are merged into the Bindley Western Plan from the
Central Pharmacy Plan shall have been vested at 100% prior to the transfer to
the Bindley Western Plan.
MODIFICATION OF THE BINDLEY WESTERN PLAN:
Notwithstanding anything in the Bindley Western Plan to the contrary, the
Bindley Western Plan is hereby amended, as of the Merger Date, as follows:
1. The Bindley Western Plan shall accept, and hold, assets transferred from the
Central Pharmacy Plan pursuant to this amendment and merger. The Bindley Western
Plan shall accept all records, accountings, and other descriptions of benefits
accrued under the Central Pharmacy Plan, and shall maintain such benefits as
part of and payable from the Bindley Western Plan, to the extent of assets
actually received by the Bindley Western Plan. Notwithstanding anything in the
Bindley Western Plan to the contrary, those benefits, rights and features,
identified on the attached Appendix A to this amendment as "Section 411(d)(6)
Protected Benefits" shall be preserved with respect to assets transferred from
the Central Pharmacy Plan to the Bindley Western Plan pursuant to this
amendment. The "Section 411(d)(6) Protected Benefits" identified in Appendix "A"
will only apply to the assets transferred from the Central Pharmacy Plan into
the Bindley Western Plan, and not to any future Employee or Employer
Contributions made to the Bindley Western Plan.
2. All benefits payable from the Central Pharmacy Plan as of the Merger Date
will be provided by the Bindley Western Plan on the same terms and conditions,
in the same amount, form and manner, and at the same time and frequency as under
the Central Pharmacy Plan as in effect from time to time prior to the Merger
Date for those assets transferred to the Bindley Western Plan from the Central
Pharmacy Plan. All other benefits for Employer and/or Employee Contributions to
the Bindley Western Plan made on or after January 1, 2000 shall be administered
under the terms of the Bindley Western Plan.
3. All beneficiary designation forms, option election forms, spousal consent
forms, and other administrative forms and materials executed under the terms of
the Central Pharmacy Plan shall continue in full force and effect with respect
to the Bindley Western Plan, unless otherwise required by law.
Page 135
136
4. All Participants of the Central Pharmacy Plan have become Participants of the
Bindley Western Plan, as of January 1, 2000, and all employees otherwise
eligible to participate in the Central Pharmacy Plan, but who have not yet
entered as Participants in the Central Pharmacy Plan became Participants in the
Bindley Western Plan as of January 1, 2000. All service performed by Employees
with Central Pharmacy Services, Inc., as credited pursuant to the terms of the
Central Pharmacy Plan shall be credited for purposes of calculating eligibility
and vesting Years of Service under the terms of the Bindley Western Plan.
Notwithstanding the foregoing, under no circumstances shall the vested
percentage of a Participant credited with Years of Service while in the employ
of Central Pharmacy Services, Inc. be reduced with respect to any benefits
accrued under the terms of the Central Pharmacy Plan prior to the Merger Date,
or with respect to the benefits accrued under the terms of the Bindley Western
Plan on or after the Merger Date.
5. Notwithstanding anything contained in the provisions of the Bindley Western
Plan, the Central Pharmacy Plan, or this amendment, all Participants under the
Bindley Western Plan will receive a benefit immediately after the merger which
is at least as great as the benefit the Participant would have received under
the terms of the Bindley Western Plan had the Bindley Western Plan terminated on
the day before the Merger Date, subject only to vesting pursuant to the terms of
the Plan.
6. All Participants in the Central Pharmacy Plan shall not be eligible for the
"paperless" loan program under the Bindley Western Plan due to the annuity
optional form of benefit preserved under the 411(d)(6) Protected Benefits
Addendum attached hereto. Loans for such Participants shall be handled as
"Direct" Loans under the Loan Policy.
All other provisions of the Bindley Western Plan shall remain in full force and
effect, and shall survive this merger unaltered except as specified herein, or
as may be required by law.
IN WITNESS WHEREOF, the Company has executed this Amendment, as of this_________
day of__________, 2000.
BINDLEY WESTERN INDUSTRIES, INC.
By: _______________________________
Title: ____________________________
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137
APPENDIX "A"
TO THE
JOINT AMENDMENT
FOR THE MERGER
OF THE
BINDLEY WESTERN INDUSTRIES, INC. AND SUBSIDIARIES PROFIT SHARING PLAN
AND THE
CENTRAL PHARMACY SERVICES, INC. 401(k) PROFIT SHARING PLAN
SECTION 411(d)(6) PROTECTED BENEFITS
Notwithstanding anything in the Bindley Western Plan to the contrary,
pursuant to the Joint Amendment for the Merger of the Central Pharmacy Services,
Inc. Profit Sharing Plan and the Bindley Western Industries, Inc. and
Subsidiaries Profit Sharing Plan, the following are Section 411(d)(6) Protected
Benefits, which shall be preserved with respect to Account Balances transferred
from the Central Pharmacy Plan to the Bindley Western Plan:
- - A Participant shall have the right to withdraw his or her Deferral Account
balances from the Central Pharmacy Plan upon reaching age 59-1/2.
- - A Participant may receive his or her benefits from the account balances
transferred from the Central Pharmacy Plan to the Bindley Western Plan in one of
the following forms:
(a) A straight life annuity;
(b) A joint and 50%, 66 2/3% or 100% survivors annuity;
(c) A single life annuity with period certain benefits of 5, 10, or 15 years;
(d) A single life annuity with installment refunds;
(e) An annuity for a fixed period of no less than 60 months, nor greater than
the life expectancy of the Participant and his or her beneficiary, not subject
to recalculation;
(f) A series of Installment payments that meet the criteria for Required Minimum
Distribution payments commencing when a Participant reaches age 70 -1/2.
All other provisions of the Bindley Western Plan, to the extent not
inconsistent with the provisions of this Appendix and the Amendment shall remain
in full force and effect.
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