Exhibit 4(d)
SYNCOR INTERNATIONAL CORPORATION
EMPLOYEES' SAVINGS AND
STOCK OWNERSHIP PLAN
AS AMENDED AND RESTATED
EFFECTIVE JANUARY 1, 1997
INTRODUCTION
Syncor International Corporation, a Delaware corporation (the "Company"),
previously established the Syncor International Corporation Employees' Savings
and Stock Ownership Plan (the "Plan") effective as of July 31, 1986 for the
benefit of eligible employees of the Company and its participating affiliates.
The Plan is intended to constitute a qualified profit-sharing stock bonus plan,
as described in Section 401(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), which includes an employee stock ownership plan, as described in
Section 4975(e)(7) of the Code, such portion of which is designed to invest
primarily in the common stock of the Company, and also a qualified cash or
deferred arrangement, as described in Section 401(k) of the Code.
In order to consolidate all prior amendments to the Plan since its restatement
as of July 1, 1994, and in order to enable the Plan to comply with various
amendments to the Code effective since such restatement (including without
limitation those amendments made by the Small Business Job Protection Act of
1996 and the Taxpayer Relief Act of 1997) as well as the regulations and rulings
of the Internal Revenue Service under the Code, the Company hereby amends and
restates the Plan, in the form set forth in Exhibit A hereto, effective as of
January 1, 1997 (except as otherwise provided in Exhibit A).
Date: February 25, 2002 SYNCOR INTERNATIONAL CORPORATION
By: /s/ Sheila H. Coop
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Sheila H. Coop
Senior Vice President, Human Resources
and Communications
EXHIBIT A
SYNCOR INTERNATIONAL CORPORATION
EMPLOYEES' SAVINGS AND STOCK OWNERSHIP PLAN AND TRUST
AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1997
TABLE OF CONTENTS
1 DEFINITIONS............................................................ 1
1.1 "Account"........................................................ 1
1.2 "ACP" or "Average Contribution Percentage"....................... 2
1.3 "Administrator".................................................. 2
1.4 "ADP" or "Average Deferral Percentage"........................... 2
1.5 "Acquisition Loan"............................................... 2
1.6 "Beneficiary".................................................... 2
1.7 "Board of Directors"............................................. 2
1.8 "Break in Service"............................................... 2
1.8A "Cash Forfeiture Account"........................................ 2
1.9 "Code"........................................................... 2
1.10 "Committee"...................................................... 3
1.11 "Company"........................................................ 3
1.12 "Company Stock".................................................. 3
1.13 "Compensation"................................................... 3
1.14 "Contribution"................................................... 3
1.15 "Contribution Dollar Limit"...................................... 4
1.16 "Conversion Period".............................................. 4
1.17 "Direct Rollover"................................................ 4
1.18 "Directed Investment Accounts"................................... 4
1.19 "Disability"..................................................... 5
1.20 "Distributee".................................................... 5
1.21 "Effective Date"................................................. 5
1.22 "Eligible Employee".............................................. 5
1.23 "Eligible Retirement Plan"....................................... 6
1.24 "Eligible Rollover Distribution"................................. 6
1.25 "Employee"....................................................... 6
1.26 "Employer"....................................................... 6
1.27 "ERISA".......................................................... 6
1.28 "Fair Market Value".............................................. 7
1.29 "Financed Shares"................................................ 7
1.29A "Foreign Employee"............................................... 7
1.30 "Forfeiture Account"............................................. 7
1.31 "HCE" or "Highly Compensated Employee"........................... 7
1.32 "Hour of Service"................................................ 7
1.33 "Ineligible"..................................................... 8
1.34 "Investment Fund" or "Fund"...................................... 8
1.34A "Lafayette Plan"................................................. 8
1.34B "Lafayette Plan Merger Date"..................................... 8
1.35C "Lafayette Plan Participant"..................................... 8
1.35 "Leased Employee"................................................ 8
1.36 "Leave of Absence"............................................... 8
1.37 "Loan Suspense Account".......................................... 9
1.38 "NHCE" or "Non-Highly Compensated Employee"...................... 9
1.39 "Normal Retirement Date"......................................... 9
1.39A "North Star Trust Agreement"..................................... 9
1.40 "Owner".......................................................... 9
1.41 "Parental Leave"................................................. 9
1.42 "Participant".................................................... 9
1.43 "Pay"............................................................ 9
1.44 "Plan".......................................................... 10
1.45 "Plan Year"..................................................... 10
1.46 "Qualified Election Period"..................................... 10
1.47 "Qualified Participant"......................................... 10
1.48 "QDRO".......................................................... 10
1.49 "Related Company"............................................... 10
1.50 "Settlement Date"............................................... 10
1.51 "Spousal Consent"............................................... 10
1.52 "Stock Investment Company Accounts"............................. 11
1.53 "Stock Investment Participant Account".......................... 11
1.54 "Subsidiary".................................................... 11
1.55 "Sweep Account"................................................. 11
1.56 "Sweep Date".................................................... 11
1.57 "Taxable Income"................................................ 11
1.58 "Trade Date".................................................... 11
1.58A "T. Rowe Price Trust Agreement"................................ 12
1.59 "Trust"......................................................... 12
1.60 "Trustee"....................................................... 12
1.61 "Year of Participation"......................................... 12
1.62 "Year of Vesting Service"....................................... 12
2 ELIGIBILITY........................................................... 13
2.1 Eligibility..................................................... 13
2.2 Ineligible Employees............................................ 14
2.3 Ineligible or Former Participants............................... 14
2.4 Inapplicability of Certain Provisions to Participants Who are Foreign
Employees..................................................... 14
3 PARTICIPANT CONTRIBUTIONS............................................. 15
3.1 Pre-Tax Contribution Election................................... 15
3.2 Changing a Contribution Election................................ 15
3.3 Revoking and Resuming a Contribution Election................... 15
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3.4 Contribution Percentage Limits.................................. 16
3.5 Refunds When Contribution Dollar Limit Exceeded................. 16
3.6 Timing, Posting and Tax Considerations.......................... 17
4 ROLLOVERS AND TRUST-TO-TRUST TRANSFERS................................ 18
4.1 Rollovers....................................................... 18
4.2 Transfers from Other Qualified Plans............................ 18
5 EMPLOYER CONTRIBUTIONS................................................ 20
5.1 Order of Employer Contributions................................. 20
5.2 Syncor Match Contributions...................................... 20
5.3 Syncor Stock Bonus Contributions................................ 21
5.4 Syncor Booster Contributions.................................... 22
5.5 Syncor Cash Bonus Contributions................................. 23
6 ACCOUNTING............................................................ 24
6.1 Individual Participant Accounting............................... 24
6.2 Sweep Account is Transaction Account............................ 24
6.3 Trade Date Accounting and Investment Cycle...................... 24
6.4 Accounting for Investment Funds................................. 25
6.5 Payment of Fees and Expenses.................................... 25
6.6 Accounting for Participant Loans................................ 26
6.7 Error Correction................................................ 26
6.8 Participant Statements.......................................... 26
6.9 Special Accounting During Conversion Period..................... 26
6.10 Accounts for QDRO Beneficiaries................................. 26
7 INVESTMENT OF DIRECTED INVESTMENT ACCOUNTS............................ 28
7.1 Investment Funds................................................ 28
7.2 Investment Fund Elections....................................... 28
7.3 Responsibility for Investment Choice............................ 28
7.4 Default if No Election.......................................... 28
7.5 Timing.......................................................... 29
7.6 Investment Fund Election Change Fees............................ 29
8 INVESTMENT OF STOCK INVESTMENT COMPANY ACCOUNTS AND STOCK
INVESTMENT PARTICIPANT ACCOUNTS................................. 30
8.1 Normal Investment............................................... 30
8.2 Diversification of Stock Investment Company Accounts (Prior to
January 1, 2002).............................................. 30
8.3 Diversification of Stock Investment Company Accounts and Stock
Investment Participant Accounts (Effective January 1, 2002)... 31
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9 VESTING AND FORFEITURES............................................... 32
9.1 Fully Vested Contribution Accounts.............................. 32
9.2 Full Vesting upon Certain Events................................ 32
9.3 Vesting Schedule................................................ 32
9.4 Forfeitures..................................................... 33
9.5 Rehired Employees............................................... 33
9.6 Forfeitures from Syncor Cash Bonus Accounts .................... 34
10 PARTICIPANT LOANS..................................................... 35
10.1 Participant Loans Permitted..................................... 35
10.2 Loan Application, Note and Security............................. 35
10.3 Spousal Consent................................................. 35
10.4 Loan Approval................................................... 35
10.5 Loan Funding Limits............................................. 35
10.6 Maximum Number of Loans......................................... 36
10.7 Source and Timing of Loan Funding............................... 36
10.8 Interest Rate................................................... 36
10.9 Repayment....................................................... 36
10.10 Repayment Hierarchy............................................. 37
10.11 Repayment Suspension............................................ 37
10.12 Loan Default.................................................... 37
10.13 Call Feature.................................................... 37
11 IN-SERVICE WITHDRAWALS................................................ 38
11.1 In-Service Withdrawals Permitted................................ 38
11.2 In-Service Withdrawal Application and Notice.................... 38
11.3 Spousal Consent................................................. 38
11.4 In-Service Withdrawal Approval.................................. 38
11.5 Minimum Amount, Payment Form and Medium......................... 39
11.6 Source and Timing of In-Service Withdrawal Funding.............. 39
11.7 Hardship Withdrawals............................................ 39
11.8 Rollover Account Withdrawals.................................... 41
11.9 Over Age 59-1/2 Withdrawals..................................... 41
12 DISTRIBUTIONS ONCE EMPLOYMENT ENDS OR AS REQUIRED BY LAW ............. 43
12.1 Benefit Information, Notices and Election....................... 43
12.2 Spousal Consent................................................. 43
12.3 Payment Form and Medium......................................... 44
12.4 Distribution of Small Amounts................................... 44
12.5 Source and Timing of Distribution Funding....................... 44
12.6 Deemed Distribution............................................. 45
12.7 Latest Commencement Permitted................................... 45
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12.8 Payment Within Life Expectancy.................................. 46
12.9 Incidental Benefit Rule......................................... 46
12.10 Payment to Beneficiary.......................................... 46
12.11 Beneficiary Designation......................................... 47
12.12 Effect of Certain Distributions and Deemed Distributions; Repayment 47
12.13 Required Distributions on or After January 1, 2002.............. 48
13 ADP AND ACP TESTS..................................................... 49
13.1 Contribution Limitation Definitions............................. 49
13.2 ADP and ACP Tests............................................... 51
13.3 Correction of ADP and ACP Tests................................. 51
13.4 Multiple Use Test............................................... 53
13.5 Correction of Multiple Use Test................................. 53
13.6 Adjustment for Investment Gain or Loss.......................... 53
13.7 Testing Responsibilities and Required Records................... 53
13.8 Separate Testing................................................ 53
14 MAXIMUM CONTRIBUTION AND BENEFIT LIMITATIONS.......................... 55
14.1 "Annual Addition" Defined....................................... 55
14.2 Maximum Annual Addition......................................... 55
14.3 Avoiding an Excess Annual Addition.............................. 55
14.4 Correcting an Excess Annual Addition............................ 55
14.5 Correcting a Multiple Plan Excess............................... 56
14.6 "Defined Benefit Fraction" Defined.............................. 56
14.7 "Defined Contribution Fraction" Defined......................... 56
14.8 Combined Plan Limits and Correction............................. 57
15 TOP-HEAVY RULES....................................................... 58
15.1 Top-Heavy Definitions........................................... 58
15.2 Special Contributions........................................... 59
15.3 Special Vesting................................................. 59
15.4 Adjustment to Combined Limits for Different Plans............... 60
16 PLAN ADMINISTRATION................................................... 61
16.1 Plan Delineates Authority and Responsibility.................... 61
16.2 Fiduciary Standards............................................. 61
16.3 Company is ERISA Plan Administrator............................. 61
16.4 Administrator's Authority....................................... 62
16.5 Advisors May be Retained........................................ 63
16.6 Delegation of Administrator's Duties............................ 63
16.7 Committee Operating Rules....................................... 63
16.8 Multiple Employer Plan Requirements............................. 64
16.9 Veterans' Rights................................................ 65
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17 MANAGEMENT OF INVESTMENTS............................................. 66
17.1 In General...................................................... 66
17.2 Investment Funds................................................ 66
17.3 Authority to Hold Cash.......................................... 67
17.4 Trustee to Act Upon Instructions................................ 67
17.5 Administrator Has Right to Vote Registered Investment Company Shares 67
17.6 Custom Fund Investment Management .............................. 67
17.7 Authority to Segregate Assets................................... 68
17.8 Investment in Company Stock..................................... 68
17.9 Voting and Tendering Company Stock.............................. 68
17.10 Registration and Disclosure for Company Stock................... 69
17.11 Investment of Amounts Credited to Syncor Cash Bonus Accounts.... 69
18 LEVERAGED TRANSACTIONS................................................ 70
18.1 Authority to Use Leverage....................................... 70
18.2 Acquisition Loans............................................... 70
18.3 Acquisition Loan Payments....................................... 70
18.4 Employer Contributions.......................................... 71
18.5 Allocation of Financed Shares................................... 71
18.6 Net Income or Loss and Dividends................................ 72
18.7 Accounting for Transactions..................................... 73
18.8 Allocation Limitation........................................... 73
18.9 Forfeitures..................................................... 73
18.10 Restrictions.................................................... 73
19 TRUST ADMINISTRATION.................................................. 74
19.1 Trustee to Construe Trust....................................... 74
19.2 Trustee To Act As Owner of Trust Assets......................... 74
19.3 United States Indicia of Ownership.............................. 74
19.4 Tax Withholding and Payment..................................... 75
19.5 Trust Accounting................................................ 75
19.6 Valuation of Certain Assets..................................... 75
19.7 Legal Counsel................................................... 76
19.8 Fees and Expenses............................................... 76
19.9 Trustee Duties and Limitations.................................. 76
19.10 Applicability of T. Rowe Price Trust Agreement and North Star
Trust Agreement............................................ 76
20 RIGHTS, PROTECTION, CONSTRUCTION AND JURISDICTION..................... 78
20.1 Plan Does Not Affect Employment Rights.......................... 78
20.2 Limited Return of Contributions................................. 78
20.3 Assignment and Alienation....................................... 79
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20.4 Facility of Payment............................................. 80
20.5 Reallocation of Lost Participant's Accounts..................... 80
20.6 Put Options..................................................... 81
20.7 Claims Procedure................................................ 81
20.8 Construction.................................................... 82
20.9 Jurisdiction and Severability................................... 82
20.10 Indemnification by Employer..................................... 83
21 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION....................... 84
21.1 Amendment....................................................... 84
21.2 Merger.......................................................... 84
21.2A Merger with Lafayette Plan...................................... 84
21.3 Divestitures.................................................... 86
21.4 Plan Termination................................................ 87
21.5 Amendment and Termination Procedures............................ 87
21.6 Termination of Employer's Participation......................... 88
21.7 Replacement of Trustee.......................................... 88
21.8 Final Settlement and Accounting of Trustee...................... 88
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1 DEFINITIONS
When capitalized, the words and phrases below have the following
meanings unless different meanings are clearly required by the context:
1.1 "Account" means the records maintained for purposes of
accounting for a Participant's interest in the Plan. "Account"
may refer to one or all of the following accounts which have
been created on behalf of a Participant to hold specific types
of Contributions under the Plan and intra-Plan transfers:
(a) "Fund Deferrals Account": An account created to hold
Pre-Tax Contributions designated by the Participant
as to be deposited to his or her Fund Deferrals
Account.
(b) "Syncor Stock Deferrals Account": An account created
to hold Pre-Tax Contributions designated by the
Participant as to be deposited to his or her Syncor
Stock Deferrals Account.
(c) "Rollover Account": An account created to hold (i)
Rollover Contributions and (ii) amounts from a
Participant's Stock Investment Company Account
diversified in accordance with Subsections 8.2 or
8.3.
(d) "Syncor Match/Bonus Account": An account created to
hold Syncor Match and Syncor Stock Bonus
Contributions.
(e) "Syncor Booster Account": An account created to hold
Syncor Booster Contributions.
(f) "Pre-ESSOP Shares Account": An account created to
hold Pre-ESSOP Shares Contributions.
(g) "Syncor Cash Bonus Account": An account created to
hold Syncor Cash Bonus Contributions. This Subsection
1.1(g) is effective January 1, 1999.
(h) "Lafayette Deferrals Account": With respect to a
Participant who was a Lafayette Plan Participant
immediately prior to the Lafayette Plan Merger Date,
an account created to hold the amount which had been
credited to such Participant's account in the
Lafayette Plan as of the Lafayette Plan Merger Date
which was attributable to such Participant's salary
deferral contributions under Code Section 401(k).
(i) "Lafayette Matching Account": With respect to a
Participant who was a Lafayette Plan Participant
immediately prior to the Lafayette Plan Merger Date,
an account created to hold the amount which had been
credited to such Participant's account in the
Lafayette Plan as of the Lafayette Plan Merger Date
which was attributable to employer
matching contributions on his or her behalf
(including forfeitures allocated on the same basis as
matching contributions).
(j) "Lafayette Rollover Account": With respect to a
Participant who was a Lafayette Plan Participant
immediately prior to the Lafayette Plan Merger Date,
an account created to hold the amount which had been
credited to such Participant's account in the
Lafayette Plan as of the Lafayette Plan Merger Date
and which was attributable to rollover contributions
on his or her behalf.
1.2 "ACP" or "Average Contribution Percentage" means the
percentage calculated in accordance with Subsection 13.1.
1.3 "Administrator" means the Company, which has delegated all or
a portion of the duties of the Administrator under the Plan to
a Committee in accordance with Subsection 16.6.
1.4 "ADP" or "Average Deferral Percentage" means the percentage
calculated in accordance with Subsection 13.1.
1.5 "Acquisition Loan" means a loan or other extension of credit
which is made to the Plan or guaranteed by a "disqualified
person" [as defined in Code Section 4975(e)(2)] to finance the
acquisition of Company Stock or to repay an existing
Acquisition Loan.
1.6 "Beneficiary" means the person or persons who is to receive
benefits after the death of the Participant pursuant to
Subsection 12.11 or as a result of a QDRO.
1.7 "Board of Directors" means the Board of Directors of the
Company.
1.8 "Break in Service" means the end of five consecutive Plan
Years (or six consecutive Plan Years if absence from
employment was due to a Parental Leave) for which a
Participant is credited with less than 501 Hours of Service in
each year, except that for the short Plan Year commencing June
1, 1993 and ending December 31, 1993, "292" shall be
substituted for the preceding reference to "501."
1.8A "Cash Forfeiture Account" means an account holding amounts
previously allocated as Syncor Cash Bonus Contributions and
forfeited by Participants who have left the Employer, invested
in interest-bearing deposits of the Trustee, pending
disposition as provided in this Plan and Trust and as directed
by the Administrator. This Subsection 1.8A is effective
January 1, 1999.
1.9 "Code" means the Internal Revenue Code of 1986, as amended.
Reference to any specific Code section shall include such
section, any valid regulation
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promulgated thereunder and any comparable provision of any
future legislation amending, supplementing or superseding such
section.
1.10 "Committee" means the Committee which has been appointed by
the Board of Directors to administer the Plan in accordance
with Subsection 16.6.
1.11 "Company" means Syncor International Corporation, a Delaware
corporation, or any successor by merger, purchase or
otherwise.
1.12 "Company Stock" means common stock of the Company, its
predecessor(s), or its successors or assigns, or any
corporation with or into which said corporation may be merged,
consolidated or reorganized, or to which a majority of its
assets may be sold.
1.13 "Compensation" means the sum of a Participant's Taxable Income
and (a) any "elective deferral" [as defined in Section
402(g)(3) of the Code] and (b) any amount which is contributed
or deferred by an Employer at the election of such Participant
and which is not included in his or her gross income by reason
of Sections 125 or 132(f)(4) of the Code. Effective January 1,
1998, the term "Compensation" shall mean Taxable Income. For
purposes of determining benefits under this Plan, Compensation
is limited to $160,000 [as adjusted for the cost of living
pursuant to Code Section 401(a)(17)] per Plan Year. For the
purpose of determining HCEs and Key Employees [as defined in
Section 15.1(c)], Compensation for the entire Plan Year shall
be used. For the purpose of determining ADP and ACP,
Compensation shall be limited to amounts paid to an Eligible
Employee while a Participant. Effective January 1, 1999, and
notwithstanding the preceding provisions of this Subsection
1.13, "Compensation" with respect to a Participant who is a
Foreign Employee shall mean wages within the meaning of Code
Section 3401(a) (for 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 employment or the services performed [such as the
exception for agricultural labor in Section 3401(a)(2) of the
Code].
1.14 "Contribution" means an amount contributed to the Plan by the
Employer or an Eligible Employee, and allocated by
contribution type to Participants' Accounts, as described in
Subsection 1.1. Specific types of Contributions include:
(a) "Pre-Tax Contribution": An amount contributed by the
Employer on an eligible Participant's behalf in
conjunction with a Participant's Code Section 401(k)
salary deferral election. References to Pre-Tax
Contribution shall include Pre-Tax Contributions
designated to be deposited to a Participant's Fund
Deferrals Account or Syncor Stock Deferrals Account.
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(b) "Rollover Contribution": An amount contributed by an
Eligible Employee which originated from another
employer's or an Employer's qualified plan.
(c) "Syncor Match Contribution": An amount contributed by
the Employer on an eligible Participant's behalf
based upon the amount contributed by the eligible
Participant.
(d) "Syncor Stock Bonus Contribution": An amount
contributed by the Employer on an eligible
Participant's behalf and allocated on a pay based
formula to the Participant.
(e) "Syncor Booster Contribution": An amount contributed
by the Employer on an eligible Participant's behalf
and allocated in an equal amount to qualifying
Participants.
(f) "Pre-ESSOP Shares Contribution": An amount previously
contributed by the Employer on an eligible
Participant's behalf and allocated on a pay based
formula to the Participant.
(g) "Syncor Cash Bonus Contribution": An amount
contributed by the Employer on an eligible
Participant's behalf and allocated on a pay-based
formula to the Participant. This Subsection 1.14(g)
is effective January 1, 1999.
1.15 "Contribution Dollar Limit" means the annual limit placed on
each Participant's Pre-Tax Contributions, which shall be
$9,500 per calendar year [as adjusted for the cost of living
pursuant to Code Section 402(g)(5)]. For purposes of this
Subsection 1.15, a Participant's Pre-Tax Contributions shall
consist of any employer contribution made under any qualified
cash or deferred arrangement as defined in Code Section 401(k)
to the extent not includible in gross income for the taxable
year under Code Section 402(e)(3), determined without regard
to Code Section 402(g).
1.16 "Conversion Period" means the period of converting the prior
accounting system of the Plan and Trust, if such Plan and
Trust were in existence prior to July 1, 1994, or the prior
accounting system of any plan and trust which is merged into
this Plan and Trust subsequent to July 1, 1994, to the
accounting system described in Section 6.
1.17 "Direct Rollover" means an Eligible Rollover Distribution that
is paid directly to an Eligible Retirement Plan for the
benefit of a Distributee.
1.18 "Directed Investment Accounts" means a Participant's Fund
Deferrals and Rollover Accounts.
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1.19 "Disability" means a Participant's physical or mental
condition presumed to be total and permanent which, in the
judgment of the Administrator based upon medical evidence
satisfactory to the Administrator, prevents a Participant from
performing his or her regular occupation with the Employer.
1.20 "Distributee" means an Employee or former Employee, the
surviving spouse of an Employee or former Employee and a
spouse or former spouse of an Employee or former Employee
determined to be an alternate payee under a QDRO.
1.21 "Effective Date" means January 1, 1997, unless stated
otherwise herein. The date upon which the provisions of this
document become effective. In general, the provisions of this
document only apply to Participants who are Employees on or
after the Effective Date. However, investment and distribution
provisions apply to all Participants with Account balances to
be invested or distributed after the Effective Date.
1.22 "Eligible Employee" means an Employee of an Employer, except
any Employee:
(a) Whose compensation and conditions of employment are
covered by a collective bargaining agreement to which
an Employer is a party unless the agreement calls for
the Employee's participation in the Plan.
(b) Who is treated as an Employee because he or she is a
Leased Employee; or
(c) Who is a nonresident alien who (i) either receives no
earned income (within the meaning of Code Section
911(d)(2)), from sources within the United States
under Code Section 861(a)(3); or (ii) receives such
earned income from such sources within the United
States but such income is exempt from United States
income tax under an applicable income tax convention.
Effective January 1, 1999, the term "Eligible Employee" shall
mean an Employee of an Employer, except any Employee:
(a) Whose compensation and conditions of employment are
covered by a collective bargaining agreement to which
an Employer is a party unless the agreement calls for
the Employee's participation in the Plan; or
(b) Who is treated as an Employee because he or she is a
Leased Employee.
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Notwithstanding the preceding sentence, effective January 1,
1999, a Foreign Employee shall be an Eligible Employee only
with respect to sharing in allocations of Syncor Cash Bonus
Contributions under Subsection 5.5 and forfeitures from Syncor
Cash Bonus Accounts under Subsection 9.6, provided he or she
otherwise satisfies the requirements of Section 2.
1.23 "Eligible Retirement Plan" means an individual retirement
account described in Code Section 408(a), an individual
retirement annuity described in Code Section 408(b), or a
qualified trust described in Code Section 401(a), that accepts
a Distributee's Eligible Rollover Distribution, except that
with regard to an Eligible Rollover Distribution to a
surviving spouse, an Eligible Retirement Plan is an individual
retirement account or an individual retirement annuity.
1.24 "Eligible Rollover Distribution" means a distribution of all
or any portion of the balance to the credit of a Distributee,
excluding a 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 a
Distributee or the joint lives (or joint life expectancies) of
a Distributee and the Distributee's designated Beneficiary, or
for a specified period of ten years or more; a distribution to
the extent such distribution is required under Code Section
401(a)(9); and the portion of a distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
Employer securities). Effective as to distributions made after
December 31, 1998, the term "Eligible Rollover Distribution"
shall not include any hardship distribution described in
Section 402(k)(2)(B)(i)(IV) of the Code.
1.25 "Employee" means an individual who is:
(a) Directly employed by the Employer or any Related
Company and for whom any income for such employment
is subject to withholding of income or social
security taxes; or
(b) A Leased Employee.
Effective January 1, 1999, the term "Employee" shall include a
Foreign Employee.
1.26 "Employer" means the Company, and any Subsidiary or Related
Company of the Company which adopts this Plan with the
approval of the Company.
1.27 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended. Reference to any specific section shall
include such section, any valid regulation promulgated
thereunder and any comparable provision of any future
legislation amending, supplementing or superseding such
section.
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1.28 "Fair Market Value" means, respect to Company Stock traded on
a national exchange, the closing sales price of a share of
Company Stock as reported on a national exchange. With respect
to Company Stock for which no public market exists, the value
of a share of Company Stock as determined by the Administrator
based upon a valuation by an independent appraiser.
1.29 "Financed Shares" means shares of Company Stock acquired with
the proceeds of an Acquisition Loan.
1.29A "Foreign Employee" means a person who is directly employed by
a Subsidiary or a Related Company which is organized under the
laws of a jurisdiction other than (1) the United States or (2)
the states and territories of the United States; provided,
however, that an employee of a Subsidiary or Related Company
organized under the laws of the Commonwealth of Puerto Rico
shall be treated as a Foreign Employee. This Subsection 1.29A
is effective January 1, 1999.
1.30 "Forfeiture Account" means an account holding amounts
forfeited by Participants who have left the Employer, invested
in shares of Company Stock and interest bearing deposits of
the Trustee, pending disposition as provided in this Plan and
Trust and as directed by the Administrator.
1.31 "HCE" or "Highly Compensated Employee" means an Employee
described as a Highly Compensated Employee in Section 13.
1.32 "Hour of Service" means each hour for which an Employee is
entitled to:
(a) Payment for the performance of duties for any Related
Company;
(b) Payment from any Related Company for any period
during which no duties are performed (irrespective of
whether the employment relationship has terminated)
due to vacation, holiday, sickness, incapacity
(including disability), layoff, leave of absence,
jury duty or military service;
(c) Back pay, irrespective of mitigation of damages, by
award or agreement with any Related Company (and
these hours shall be credited to the period to which
the agreement pertains); or
(d) No payment, but is on a Leave of Absence (and these
hours shall be based upon his or her normally
scheduled hours per week or a 40-hour week if there
is no regular schedule).
The crediting of hours for which no duties are performed shall
be in accordance with Department of Labor regulation Sections
2530.200b-2(b) and (c). Actual hours shall be used whenever an
accurate record of hours is maintained for an Employee.
Otherwise, an equivalent number of hours shall
-7-
be credited for each payroll period in which the Employee
would be credited with at least one hour. The payroll period
equivalencies are 45 hours weekly, 90 hours biweekly, 95 hours
semimonthly and 190 hours monthly. An Employee's service with
a predecessor or acquired company shall only be counted in the
determination of his or her Hours of Service for eligibility
and/or vesting purposes if (1) the Company directs that credit
for such service be granted, or (2) a qualified plan of the
predecessor or acquired company is subsequently maintained by
any Employer or Related Company. In the event a person was
employed by an entity at the time such entity's assets were
acquired by the Company or a Related Company and at the time
of acquisition such person became an employee of the Company
or a Related Company, his or her service with such entity
shall be treated as service for the Company unless the
Administrator decides otherwise; provided, however, that the
decision by the Administrator shall be uniform as to all
similarly-situated persons as to such entity.
1.33 "Ineligible" means the Plan status of an individual during the
period in which he or she is (a) an Employee of a Related
Company which is not then an Employer, (B) an Employee, but
not an Eligible Employee, or (c) not an Employee.
1.34 "Investment Fund" or "Fund" means an investment fund as
described in Subsection 17.2.
1.34A "Lafayette Plan" means the Lafayette Pharmaceuticals
Incorporated 401(k) Profit-Sharing Plan.
1.34B "Lafayette Plan Merger Date" means the date as of which the
Lafayette Plan was merged into this Plan, which date is
December 31, 2001.
1.34C "Lafayette Plan Participant" means a Participant who was a
Participant in the Lafayette Plan as of the Lafayette Plan
Merger Date.
1.35 "Leased Employee" means any person (other than an employee of
the Company or a Related Company) who pursuant to an agreement
between the Company and any other person has performed
services for the Company [or for the Company 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 performed under primary
direction or control by the Company or a Related Company.
1.36 "Leave of Absence" means a period during which an individual
is deemed to be an Employee, but is absent from active
employment, provided that the absence:
(a) Was authorized by a Related Company; or
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(b) Was due to military service in the United States
armed forces and the individual returns to active
employment within the period during which he or she
retains employment rights under federal law.
1.37 "Loan Suspense Account" means an account created to hold
unallocated Financed Shares.
1.38 "NHCE" or "Non-Highly Compensated Employee" means an Employee
described as a Non-Highly Compensated Employee in Section 13.
1.39 "Normal Retirement Date" means the date of a Participant's
65th birthday.
1.39A "North Star Trust Agreement" means the agreement between the
Company and North Star ESOP & Fiduciary Services, LLC, as
amended from time to time, establishing a trust forming a part
of the Plan with respect to assets of the Plan to be used to
fund the benefits provided under the employee stock ownership
portion of the Plan and to be used to fund benefits provided
under the non-employee stock ownership portion of the Plan
which are invested in Company Stock. This Subsection 1.39A is
effective May 1, 2000.
1.40 "Owner" means a person with an ownership interest in the
capital, profits, outstanding stock or voting power of a
Related Company within the meaning of Code Sections 318 or 416
(which exclude indirect ownership through a qualified plan).
1.41 "Parental Leave" means the period of absence from work by
reason of pregnancy, the birth of an Employee's child, the
placement of a child with the Employee in connection with the
child's adoption, or caring for such child immediately after
birth or placement as described in Code Section 410(a)(5)(E).
1.42 "Participant" means an Eligible Employee who begins to
participate in the Plan after completing the eligibility
requirements as described in Subsection 2.1. An Eligible
Employee who makes a Rollover Contribution prior to completing
the eligibility requirements as described in Subsection 2.1
shall also be considered a Participant except for purposes of
provisions related to Contributions (other than a Rollover
Contribution). A Participant's participation continues until
his or her employment with all Related Companies ends and his
or her Account is distributed or forfeited. Effective January
1, 1999, the preceding sentence shall read as follows: "A
Participant's participation continues until his or her
employment with the Employer, all Related Companies and any
Subsidiary ends and his or her Account is distributed or
forfeited."
1.43 "Pay" means the base pay and overtime paid to an Eligible
Employee by an Employer while a Participant during the current
period. Pay shall include any "elective deferral" [as defined
in Section 402(g)(3) of the Code] and any
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amount which is contributed or deferred by an Employer at the
election of a Participant and which is not included in his or
her gross income by reason of Section 125 of the Code. Pay
shall also include any amount which is contributed or deferred
by an Employer on or after January 1, 1998 at the election of
a Participant and which is not included in his or her gross
income by reason of Section 132(f) of the Code. Pay shall be
limited to $160,000 [as adjusted for the cost of living
pursuant to Code Section 401(a)(17)] per Plan Year.
1.44 "Plan" means the Syncor International Corporation Employees'
Savings and Stock Ownership Plan set forth in this document,
as from time to time amended.
1.45 "Plan Year" means the annual accounting period of the Plan and
Trust which ends on each December 31.
1.46 "Qualified Election Period" means the period of six Plan Years
commencing with the Plan Year an Employee first becomes a
Qualified Participant. Effective January 1, 2002, the term
"Qualified Election Period" shall mean, with respect to a
Participant, the period beginning with the first Plan Year in
which he or she becomes a Qualified Participant and ending
with the last Plan Year in which he or she is a Participant.
1.47 "Qualified Participant" means an Employee who has completed at
least ten Years of Participation in the Plan and has attained
age 55. Effective January 1, 2002, the term "Qualified
Participant" shall mean an Employee who has completed at least
ten Years of Participation in the Plan.
1.48 "QDRO" means a domestic relations order which the
Administrator has determined to be a qualified domestic
relations order within the meaning of Code Section 414(p).
1.49 "Related Company" means, with respect to the Company, and any
corporation, trade or business which is, together with the
Company, a member of the same controlled group of
corporations, a trade or business under common control, or an
affiliated service group within the meaning of Code Sections
414(b), (c), (m) or (o) and except that for purposes of
Section 14, "within the meaning of Code Sections 414(b), (c),
(m) or (o), as modified by Code Section 415(h)" shall be
substituted for the preceding reference to "within the meaning
of Code Sections 414(b), (c), (m) or (o)."
1.50 "Settlement Date" means, for each Trade Date, the Trustee's
next business day.
1.51 "Spousal Consent" means the written consent given by a spouse
to a Participant's election or waiver of a specified form of
benefit, including a loan or in-service withdrawal, or
Beneficiary designation. The spouse's
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consent must acknowledge the effect on the spouse of the
Participant's election, waiver or designation and be duly
witnessed by a Plan representative or notary public. Spousal
Consent shall be valid only with respect to the spouse who
signs the Spousal Consent and only for the particular choice
made by the Participant which requires Spousal Consent. A
Participant may revoke (without Spousal Consent) a prior
election, waiver or designation that required Spousal Consent
at any time before payments begin. Spousal Consent also means
a determination by the Administrator that there is no spouse,
the spouse cannot be located or such other circumstances as
may be established by applicable law.
1.52 "Stock Investment Company Accounts" means a Participant's
Syncor Match/Bonus, Syncor Booster and Pre-ESSOP Shares
Accounts.
1.53 "Stock Investment Participant Account" means a Participant's
Syncor Stock Deferrals Account.
1.54 "Subsidiary" means an entity which is 50% or more owned,
directly or indirectly, by the Company.
1.55 "Sweep Account" means the subsidiary Account for each
Participant through which all transactions are processed,
which is invested in interest bearing deposits of the Trustee.
1.56 "Sweep Date" means the cut off date and time for receiving
instructions for transactions to be processed on the next
Trade Date.
1.57 "Taxable Income" means wages within the meaning of Code
Section 3401(a) and all other payments of compensation to a
participant by the Employer (in the course of the Employer's
trade or business) for which the Employer is required to
furnish such Participant a written statement under Code
Sections 6041(d), 6051(a)(3) and 6052, determined without
regard to any rules under Code Section 3401(a) which limit
remuneration included in wages based on the nature or location
of the employment or the services performed [such as the
exception for agricultural labor in Code Section 3401(a)(2)].
Notwithstanding the preceding sentence, the Taxable Income of
a Participant who is a Foreign Employee shall mean his or her
Compensation as defined in Subsection 1.13. Effective for Plan
Years beginning after December 31, 1997 as to all
Participants, "Taxable Income" shall include (a) any "elective
deferral" of a Participant [as defined in Section 402(g)(3)]
and (b) any amount which is contributed or deferred by the
Employer at the election of a Participant and which is not
includable in the gross income of such Participant by reason
of Code Sections 125 or 132(f)(4).
1.58 "Trade Date" Means each day the Investment Funds are valued,
which is normally every day the assets of such Funds are
traded.
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1.58A "T. Rowe Price Trust Agreement" means the agreement between the
Company and T. Rowe Price Trust Company, as amended from time to
time, establishing a trust forming a part of the Plan with respect
to assets of the Plan to be used to fund the benefits provided under
the non-employee stock ownership portion of the Plan which are not
invested in Company Stock. This Subsection 1.58A is effective May 1,
2000.
1.59 "Trust" means the legal entity created by those provisions of this
document which relate to the Trustee. The Trust is part of the Plan
and holds the Plan assets which are comprised of the aggregate of
Participants' Accounts, any unallocated funds invested in deposit or
money market type assets pending allocation to Participants'
Accounts or disbursement to pay Plan fees and expenses and the
Forfeiture Account. Effective May 1, 2000, the term "Trust" shall
mean, with respect to the assets of the Plan held pursuant to the
North Star Trust Agreement, the trust created pursuant to said
agreement. Effective May 1, 2000, the term "Trust" shall mean, with
respect to the assets of the Plan held pursuant to the T. Rowe Price
Trust Agreement, the trust created pursuant to said agreement.
1.60 "Trustee" means Wells Fargo Bank, National Association. Effective
January 1, 1998, the term "Trustee" shall mean Merrill Lynch Trust
Company, FSB, a federal savings bank, chartered under the laws of
the United States. Effective May 1, 2000, with respect to the assets
of the Plan held pursuant to the North Star Trust Agreement, the
term "Trustee" shall mean North Star ESOP & Fiduciary Services, LLC,
and with respect to the assets of the Plan held pursuant to the T.
Rowe Price Agreement, the term "Trustee" shall mean T. Rowe Price
Trust Company.
1.61 "Year of Participation" means a 12-month period during which an
Employee, after completing the eligibility requirements and
beginning participation in the Plan, is a Participant in the Plan.
1.62 "Year of Vesting Service" means a 12-consecutive-month period ending
on the last day of a Plan Year in which an Employee is credited with
at least 1,000 Hours of Service. To provide for the change in the
Plan Year effective in 1993 from June 1 to May 31 to January 1 to
December 31, a Participant was credited with a Year of Vesting
Service for the period June 1, 1993 to May 31, 1994 if he or she was
credited with at least 1,000 Hours of Service in such period and a
Year of Vesting Service for the period January 1, 1993 to December
31, 1993 if he or she was credited with at least 1,000 Hours of
Service in such period. Years of Vesting Service shall include
service credited prior to July 31, 1986, except service credited
prior to the date the Company was incorporated.
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2 ELIGIBILITY
2.1 Eligibility
(a) All Eligible Employees who are Participants as of December 31,
1996 shall continue their eligibility to participate as of the
Effective Date if they remain Eligible Employees on the
Effective Date. Each other Eligible Employee shall become a
Participant on the first January 1, April 1, July 1 or October
1 after the date he or she attains age 21, and completes a
12-month eligibility period in which he or she is credited
with at least 1,000 Hours of Service. This Subsection 2.1(a)
shall no longer apply effective May 1, 2000.
(b) The initial eligibility period begins on the date an Employee
first performs an Hour of Service. Subsequent eligibility
periods begin with the start of each Plan Year beginning after
the first Hour of Service is performed.
(c) Effective January 1, 1999, in the case of any Subsidiary or
Related Company which adopts the Plan effective on or after
January 1, 1999, any Eligible Employee of such Subsidiary or
Related Company who had satisfied the requirements of
Subsection 2.1 as of the date such Subsidiary or Related
Company adopted the Plan shall become a Participant in the
Plan as of that date.
(d) Effective May 1, 2000, each Eligible Employee who is not then
a Participant shall become a Participant on the first day of
the month after the date he or she attains age 18, and
completes a 12-month eligibility period in which he or she is
credited with at least 1,000 Hours of Service. This Subsection
2.1(d) shall no longer apply effective August 1, 2001.
(e) Effective August 1, 2001:
(1) Each Eligible Employee who is not a Participant on July
31, 2001 but who, as of August 1, 2001, has attained age
18 and has completed three months of employment as an
Employee, shall become a Participant on August 1, 2001.
(2) Each Eligible Employee who is not a Participant on
August 1, 2001 and who is not described in Subsection
2.1(e)(1) shall become a Participant on the first day of
the calendar month following the later of (i) the month
in which he or she attains 18 or (ii) his or her
completion of three months of employment as an Employee.
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2.2 Ineligible Employees
If an Employee completes the above eligibility requirements, but is
Ineligible at the time participation would otherwise begin (if he or
she were not Ineligible), he or she shall become a Participant on
the first subsequent date on which he or she is an Eligible
Employee.
2.3 Ineligible or Former Participants
A Participant may not make or share in Plan Contributions, nor
generally be eligible for a new Plan loan, during the period he or
she is Ineligible, but he or she shall continue to participate for
all other purposes. An Ineligible Participant or former Participant
shall automatically become an active Participant on the date he or
she again becomes an Eligible Employee.
2.4 Inapplicability of Certain Provisions to Participants Who Are
Foreign Employees
Sections 3 and 4 and Subsections 5.2, 5.3 and 5.4 shall not apply to
Participants who are Foreign Employees. This Subsection 2.4 is
effective January 1, 1999.
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3 PARTICIPANT CONTRIBUTIONS
3.1 Pre-Tax Contribution Election
Upon becoming a Participant, an Eligible Employee may elect to
reduce his or her Pay by an amount which does not exceed the
Contribution Dollar Limit, within the limits described in Subsection
3.4, and have such amount contributed to the Plan by the Employer as
a Pre-Tax Contribution. The election shall include a designation
regarding the percentage to be deposited to his or her Fund
Deferrals Account and the percentage to be deposited to his or her
Syncor Stock Deferrals Account. The election shall be made as a
whole percentage of Pay in such manner and with such advance notice
as prescribed by the Administrator. In no event shall an Employee's
Pre-Tax Contributions under the Plan and comparable contributions to
all other plans, contracts or arrangements of all Related Companies
exceed the Contribution Dollar Limit for the Employee's taxable year
beginning in the Plan Year.
3.2 Changing a Contribution Election
(a) A Participant who is an Eligible Employee may change his or
her Pre-Tax Contribution election, including his or her
designation regarding the percentage to be deposited to his or
her Fund Deferrals Account and the percentage to be deposited
to his or her Syncor Stock Deferrals Account, as of any
January 1, April 1, July 1 or October 1, in such manner and
with such advance notice as prescribed by the Administrator,
and such election shall be effective with the first payroll
paid after such date. This Subsection 3.2(a) shall no longer
apply effective May 1, 2000.
(b) Effective May 1, 2000, a Participant who is an Eligible
Employee may change his or her Pre-Tax Contribution election,
including his or her designation regarding the percentage to
be deposited to his or her Fund Deferrals Account and the
percentage to be deposited to his or her Syncor Stock
Deferrals Account, on any date in the Plan Year, in such
manner and with such advance notice as prescribed by the
Administrator, and such election shall be effective with the
first payroll paid after such date.
(c) Participants' Contribution election percentages shall
automatically apply to Pay increases or decreases.
3.3 Revoking and Resuming a Contribution Election
(a) A Participant may revoke his or her Contribution election at
any time in such manner and with such advance notice as
prescribed by the Administrator, and such election shall be
effective with the first payroll paid after such date.
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(b) A Participant may resume Contributions by making a new
Contribution election at the same time in which a Participant
may change his or her election in such manner and with such
advance notice as prescribed by the Administrator, and such
election shall be effective with the first payroll paid after
such date.
3.4 Contribution Percentage Limits
(a) The Administrator may establish and change from time to time,
in writing, without the necessity of amending the Plan, the
minimum, if applicable, and maximum Pre-Tax Contribution
percentages, prospectively or retrospectively (for the current
Plan Year), for all Participants. In addition, the
Administrator may establish any lower percentage limits for
Highly Compensated Employees as it deems necessary. As of the
Effective Date, the Pre-Tax Contribution maximum percentage is
16%.
(b) The Administrator may establish and change from time to time,
in writing, without the necessity of amending the Plan, the
minimum, if applicable, and maximum percentage of a
Participant's Pre-Tax Contribution percentage election that a
Participant may designate to be deposited to his or her Fund
Deferrals and Syncor Stock Deferrals Accounts. As of the
Effective Date, the maximum of a Participant's Pre-Tax
Contribution percentage election that may be designated to be
deposited to his or her Fund Deferrals Account is 14% and the
maximum of a Participant's Pre-Tax Contribution percentage
election that may be designated to be deposited to his or her
Syncor Stock Deferrals Account is 2%.
(c) Irrespective of the limits that may be established by the
Administrator in accordance with this Subsection 3.4, in no
event shall the contributions made by or on behalf of a
Participant for a Plan Year exceed the maximum allowable under
Code Section 415.
3.5 Refunds When Contribution Dollar Limit Exceeded
A Participant who makes Pre-Tax Contributions for a calendar year to
this Plan and comparable contributions to any other qualified
defined contribution plan in excess of the Contribution Dollar Limit
may notify the Administrator in writing by the following March 1 (or
as late as April 14 if allowed by the Administrator) that an excess
has occurred. In this event, the amount of the excess specified by
the Participant, adjusted for investment gain or loss, shall be
refunded to him or her by April 15 and shall not be included as an
Annual Addition under Code Section 415 for the year contributed.
Refunds shall not include investment gain or loss for the period
between the end of the applicable Plan Year and the date of
distribution. Excess amounts shall first be taken from unmatched
Pre-Tax Contributions and then from matched
- 16 -
Pre-Tax Contributions, first from matched Pre-Tax Contributions
deposited to the Participant's Fund Deferrals Account and then from
matched Pre-Tax Contributions deposited to the Participant's Syncor
Stock Deferrals Account. Any Syncor Match Contributions attributable
to refunded excess Pre-Tax Contributions as described in this
Subsection 3.5 shall be forfeited and used as described in
Subsection 9.4.
3.6 Timing, Posting and Tax Considerations
Participants' Contributions, other than Rollover Contributions, may
only be made through payroll deduction. Such amounts shall be paid
to the Trustee in cash and posted to each Participant's Account(s)
as soon as such amounts can reasonably be separated from the
Employer's general assets and balanced against the specific amount
made on behalf of each Participant. In no event, however, shall such
amounts be paid to the Trustee more than 15 business following the
end of the calendar month in which such amounts are deducted from a
Participant's Pay. Pre-Tax Contributions shall be treated as
Employer Contributions in determining tax deductions under Code
Section 404(a).
- 17 -
4 ROLLOVERS AND TRUST-TO-TRUST TRANSFERS
4.1 Rollovers
(a) The Administrator may authorize the Trustee to accept a
rollover contribution in accordance with Code Sections 402(c)
or 408(d)(3)(A)(ii), in cash, directly from an Eligible
Employee or as a Direct Rollover from another qualified plan
on behalf of the Eligible Employee, even if he or she is not
yet a Participant. The Employee shall be responsible for
furnishing satisfactory evidence, in such manner as prescribed
by the Administrator, that the amount is eligible for rollover
treatment. A rollover contribution received directly from an
Eligible Employee must be paid to the Trustee in cash within
60 days after the date received by the Eligible Employee from
a qualified plan or conduit individual retirement account.
Contributions described in this paragraph shall be posted to
the applicable Employee's Rollover Account as of the date
received by the Trustee.
(b) If it is later determined that an amount contributed pursuant
to Subsection 4.1(a) did not in fact qualify as a rollover
contribution under Code Sections 402(c) or 408(d)(3)(A)(ii),
the balance credited to the Employee's Rollover Account shall
immediately be (1) segregated from all other Plan assets, (2)
treated as a nonqualified trust established by and for the
benefit of the Employee, and (3) distributed to the Employee.
Any such nonqualifying rollover shall be deemed never to have
been a part of the Plan.
4.2 Transfers from Other Qualified Plans
(a) The Administrator may instruct the Trustee to receive assets
in cash or in kind directly from another qualified plan;
provided that a transfer should not be directed if:
(1) Any amounts are not exempted by Code Section
401(a)(11)(B) from the annuity requirements of Code
Section 417 unless the Plan complies with such
requirements; or
(2) Any amounts include benefits protected by Code Section
411(d)(6) which would not be preserved under applicable
Plan provisions.
Such amounts shall be posted to the appropriate Accounts of
Participants as of the date received by the Trustee.
(b) The Trustee may refuse the receipt of any transfer if:
(1) The Trustee finds the in-kind assets unacceptable; or
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(2) Instructions for posting amounts to Participants'
Accounts are incomplete.
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5 EMPLOYER CONTRIBUTIONS
5.1 Order of Employer Contributions
The order of funding for Employer Contributions described in this
Section 5 is as follows: Syncor Match Contributions, then Syncor
Booster Contributions and then Syncor Stock Bonus Contributions.
Effective January 1, 1999, Employer Contributions which are Syncor
Cash Bonus Contributions are not subject to the preceding sentence
and are governed by Subsection 5.5.
5.2 Syncor Match Contributions
(a) Frequency and Eligibility. For each quarter of the Plan Year,
the Employer shall make Syncor Match Contributions, as
described in Subsection 5.2(b), on behalf of each Participant
who contributed during the quarter of the Plan Year and was an
Eligible Employee on the last day of the quarter of the Plan
Year. Notwithstanding the preceding sentence, effective as to
Eligible Employees who become Participants on or after August
1, 2001, the Employer shall not make Syncor Matching
Contributions on behalf of a Participant as to his or her
Pre-Tax Contributions, if any, with respect to his or her Pay
until he or she has been a Participant for 12 calendar months.
(b) Allocation Method.
(1) With regard to a Participant's Pre-Tax Contributions to
be deposited to his or her Fund Deferrals Account, the
Syncor Match Contributions (including any Forfeiture
Account amounts applied as Syncor Match Contributions in
accordance with Subsection 9.4) for each quarter of the
Plan Year shall be the number of shares of Company Stock
having a Fair Market Value as of the end of such period
equal to 50% of each eligible Participant's Pre-Tax
Contributions for such period, provided that no Syncor
Match Contributions shall be made based upon a
Participant's Contributions designated as such in excess
of 4% of his or her Pay.
(2) With regard to a Participant's Pre-Tax Contributions
deposited to his or her Syncor Stock Deferrals Account,
the Syncor Match Contributions (including any Forfeiture
Account amounts applied as Syncor Match Contributions in
accordance with Subsection 9.4) for each quarter of the
Plan Year shall be equal to the number of shares of
Company Stock purchased with each eligible Participant's
Pre-Tax Contributions for such period designated as
such.
- 20 -
Irrespective of the allocation method as set forth in the
preceding subsections, in no event shall the contributions
made by or on behalf of a Participant for a Plan Year exceed
the maximum allowable under Code Section 415.
(c) Medium, Timing and Posting.
(1) The Employer shall make each half of the Plan Year's
Syncor Match Contributions through the allocation of
Financed Shares from the Loan Suspense Account as set
forth in Section 18 or if there is no Acquisition Loan
outstanding, in shares of Company Stock.
(2) The Employer shall make each half of the Plan Year's
Syncor Match Contributions as soon as feasible, and not
later than the Employer's federal tax filing date,
including extensions, for deducting such Contribution.
The Trustee shall post such amount to each Participant's
Syncor Match/Bonus Account once the total number of
Financed Shares to be allocated or the shares of Company
Stock received has been balanced against the specific
amount to be credited to each Participant's Syncor
Match/Bonus Account.
5.3 Syncor Stock Bonus Contributions
(a) Frequency and Eligibility. For each Plan Year, the Employer
may make Syncor Stock Bonus Contributions on behalf of each
Participant who was an Eligible Employee on the last day of
the Plan Year.
(b) Allocation Method.
(1) The Syncor Stock Bonus Contributions (including any
Forfeiture Account amounts applied as Syncor Stock Bonus
Contributions in accordance with Subsection 9.4) for
each Plan Year shall be in an amount determined by the
Employer and allocated among eligible Participants in
direct proportion to their Pay.
(2) Irrespective of the allocation method as set forth in
the preceding subsection, in no event shall the
contributions made by or on behalf of a Participant for
a Plan Year exceed the maximum allowable under Code
Section 415.
(c) Medium, Timing and Posting.
(1) The Employer shall make each Plan Year's Syncor Stock
Bonus Contributions through the allocation of Financed
Shares from
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the Loan Suspense Account as set forth in Section 18 or
if there is no Acquisition Loan outstanding, in shares
of Company Stock.
(2) The Employer shall make each Plan Year's Syncor Stock
Bonus Contributions as soon as feasible, and not later
than the Employer's federal tax filing date, including
extensions, for deducting such Contribution. The Trustee
shall post such amount to each Participant's Syncor
Match/Bonus Account once the total number of Financed
Shares to be allocated or shares of Company Stock
received has been balanced against the specific amount
to be credited to each Participant's Syncor Match/Bonus
Account.
5.4 Syncor Booster Contributions
(a) Frequency and Eligibility. For each Plan Year, the Employer
may make Syncor Booster Contributions on behalf of each
Non-Highly Compensated Employee Participant who was an
Eligible Employee on the last day of the Plan Year.
(b) Allocation Method.
(1) The Syncor Booster Contributions (including any
Forfeiture Account amounts applied as Syncor Booster
Contributions in accordance with Subsection 9.4) for
each Plan Year shall be in an amount of shares of
Company Stock determined by the Employer as necessary
for purposes of satisfying the tests described in
Subsections 13.2 and 13.4 and allocated among eligible
Participants equally.
(2) Irrespective of the allocation method as set forth in
the preceding subsection, in no event shall the
contributions made by or on behalf of a Participant for
a Plan Year exceed the maximum allowable under Code
Section 415.
(c) Medium, Timing and Posting.
(1) The Employer shall make each Plan Year's Syncor Booster
Contributions through the allocation of Financed Shares
from the Loan Suspense Account as set forth in Section
18 or if there is no Acquisition Loan outstanding, in
shares of Company Stock.
(2) The Employer shall make each Plan Year's Syncor Booster
Contributions as soon as is feasible, and not later than
the Employer's federal tax filing date, including
extensions, for
- 22 -
deducting such Contribution. Notwithstanding the
preceding sentence, for purposes of satisfying the tests
described in Subsections 13.2 and 13.4, Syncor Booster
Contributions must be made before the end of the Plan
Year following the Plan Year being tested. The Trustee
shall post such amount to each Participant's Syncor
Booster Account once the total number of Financed Shares
to be allocated or shares of Company Stock received has
been balanced against the specific amount to be credited
to each Participant's Syncor Booster Account.
5.5 Syncor Cash Bonus Contributions
(a) Frequency and Eligibility. For each Plan Year, the Employer at
its discretion may make Syncor Cash Bonus Contributions on
behalf of each Participant who was an Eligible Employee on the
last day of the Plan Year, provided that such Participant was
a Foreign Employee during all of such Plan Year.
(b) Allocation Method. The Syncor Cash Bonus Contributions
(including any Cash Forfeiture Account amounts applied as
Syncor Cash Bonus Contributions in accordance with Subsection
9.6) for each Plan Year, shall be in an amount determined by
the Employer and allocated among eligible participants [as
specified in Subsection 5.5(a)] in direct proportion to their
Pay.
(c) Change of Status. If a Participant who is a Foreign Employee
changes his or her status so that he is no longer a Foreign
Employee, but he continues to be an Employee, he shall not be
entitled to any further allocations of Syncor Cash Bonus
Contributions (or Cash Forfeiture Account amounts applied as
Syncor Cash Bonus Contributions in accordance with Subsection
9.6).
(d) This Subsection 5.5 is effective January 1, 1999.
- 23 -
6 ACCOUNTING
6.1 Individual Participant Accounting
(a) The Administrator shall maintain an individual set of Accounts
for each Participant in order to reflect transactions both by
type of Contribution and investment medium. Financial
transactions shall be accounted for at the individual Account
level by posting each transaction to the appropriate Account
of each affected Participant. Participant Account values shall
be maintained as follows:
(1) In shares of the Investment Funds and in dollars for a
Participant's Directed Investment Accounts; and
(2) In whole and fractional shares of Company Stock and in
dollars for any portion not invested in Company Stock,
for a Participant's Stock Investment Company Accounts
and Stock Investment Participant Account.
(b) At any point in time, the Account value shall be determined
using the most recent Trade Date values provided by the
Trustee.
(c) The Trustee shall be responsible for maintaining adequate
records to account for such, including the aggregate cost
basis of Company Stock held in a Participant's Stock
Investment Company Accounts and Stock Investment Participant
Account.
6.2 Sweep Account is Transaction Account
All transactions related to amounts being contributed to or
distributed from the Trust shall be posted to each affected
Participant's Sweep Account. Any amount held in the Sweep Account
will be credited with interest up until the date on which it is
removed from the Sweep Account.
6.3 Trade Date Accounting and Investment Cycle
Participant Account values shall be determined as of each Trade
Date. For any transaction to be processed as of a Trade Date, the
Trustee must receive instructions for the transaction by the Sweep
Date. Such instructions shall apply to amounts held in the Account
on that Sweep Date. Financial transactions of the Investment Funds
shall be posted to Participants' Accounts as of the Trade Date,
based upon the Trade Date values provided by the Trustee, and
settled on the Settlement Date.
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6.4 Accounting for Investment Funds
Investments in each Investment Fund shall be maintained in shares.
The Trustee is responsible for determining the share values of each
Investment Fund as of each Trade Date. To the extent an Investment
Fund is comprised of collective investment funds of the Trustee, or
any other fiduciary to the Plan, the share values shall be
determined in accordance with the rules governing such collective
investment funds, which are incorporated herein by reference. All
other share values shall be determined by the Trustee. The share
value of each Investment Fund shall be based on the fair market
value of its underlying assets.
6.5 Payment of Fees and Expenses
(a) Except to the extent Plan fees and expenses related to Account
maintenance, transaction and Investment Fund management and
maintenance, as set forth below, are paid by the Employer
directly, or indirectly, through the Forfeiture Account as
directed by the Administrator, such fees and expenses shall be
paid as set forth below. The Employer may pay a lower portion
of the fees and expenses allocable to the Accounts of
Participants who are no longer Employees or who are not
Beneficiaries, unless doing so would result in discrimination.
(b) Account Maintenance: Account maintenance fees and expenses,
may include but are not limited to, administrative, Trustee,
government annual report preparation, audit, legal,
nondiscrimination testing, and fees for any other special
services. Account maintenance fees shall be charged to
Participants on a per Participant basis provided that no fee
shall reduce a Participant's Account balance below zero.
(c) Transaction: Transaction fees and expenses, may include but
are not limited to, recurring payment, Investment Fund
election change and loan fees. Transaction fees shall be
charged to the Participant's Account involved in the
transaction provided that no fee shall reduce a Participant's
Account balance below zero.
(d) Investment Fund Management and Maintenance: Management and
maintenance fees and expenses related to the Investment Funds
shall be charged at the Investment Fund level and reflected in
the net gain or loss of each Fund.
(e) The Administrator shall determine from time to time which Plan
fees and expenses shall generally be borne by the Trust (and
charged to individual Participants' Accounts) and which such
fees and expenses shall be paid by the Employer, directly or
indirectly, without the necessity of amending the Plan.
- 25 -
(f) The Trustee shall have the authority to pay from the Trust any
such fees and expenses which remain unpaid by the Employer for
60 days, except to the extent of any such fees and expenses in
dispute.
6.6 Accounting for Participant Loans
Participant loans shall be held in a separate Account of the
Participant and accounted for in dollars as an earmarked asset of
the borrowing Participant's Account.
6.7 Error Correction
The Administrator may correct any errors or omissions in the
administration of the Plan by restoring any Participant's Account
balance with the amount that would be credited to the Account had no
error or omission been made. Funds necessary for any such
restoration shall be provided through payment made by the Employer,
or by the Trustee to the extent the error or omission is
attributable to actions or inactions of the Trustee, or if the
restoration involves an Employer Contribution Account, the
Administrator may direct the Trustee to use amounts from the
Forfeiture Account.
6.8 Participant Statements
The Administrator shall provide Participants with statements of
their Accounts as soon after the end of each quarter of the Plan
Year as is administratively feasible.
6.9 Special Accounting During Conversion Period
The Administrator and Trustee may use any reasonable accounting
methods in performing their respective duties during any Conversion
Period. This includes, but is not limited to, the method for
allocating net investment gains or losses and the extent, if any, to
which contributions received by and distributions paid from the
Trust during this period share in such allocation.
6.10 Accounts for QDRO Beneficiaries
(a) A separate Account shall be established for an alternate payee
entitled to any portion of a Participant's Account under a
QDRO as of the date and in accordance with the directions
specified in the QDRO. In addition, a separate Account may be
established during the period of time the Administrator, a
court of competent jurisdiction or other appropriate person is
determining whether a domestic relations order qualifies as a
QDRO. Such a separate Account shall be valued and accounted
for in the same manner as any other Account.
- 26 -
(b) Distributions Pursuant to QDROs. If a QDRO so provides, the
portion of a Participant's Account payable to an alternate
payee may be distributed, in a form as permissible under
Section 12, to such alternate payee at the time specified in
such QDRO, regardless of whether the Participant is entitled
to a distribution from the Plan at such time.
(c) Participant Loans. Except to the extent required by law, an
alternate payee, on whose behalf a separate Account has been
established, shall not be entitled to borrow from such
Account. If a QDRO specifies that the alternate payee is
entitled to any portion of the Account of a Participant who
has an outstanding loan balance, all outstanding loans shall
generally continue to be held in the Participant's Account and
shall not be divided between the Participant's and alternate
payee's Accounts.
(d) Investment Direction. Where a separate Account has been
established on behalf of an alternate payee and has not yet
been distributed, the alternate payee may direct the
investment of such Account in the same manner as if he or she
were a Participant.
- 27 -
7 INVESTMENT OF DIRECTED INVESTMENT ACCOUNTS
7.1 Investment Funds
Each Participant's Directed Investment Accounts shall be invested in
various Investment Funds. The Administrator shall select the
Investment Funds offered to Participants and may change the number
or composition of the Investment Funds, subject to the terms and
conditions agreed to with the Trustee. The Administrator may change
the Investment Funds offered to Participants from time to time, in
writing, without the necessity of amending the Plan.
7.2 Investment Fund Elections
(a) Each Participant shall direct the investment of his or her
Directed Investment Accounts.
(b) A Participant shall make his or her investment election in any
combination of one or any number of the Investment Funds
offered in accordance with the procedures established by the
Administrator and Trustee. However, during any Conversion
Period, Trust assets of Directed Investment Accounts may be
held in any investment vehicle permitted by the Plan, as
directed by the Administrator, irrespective of Participant
investment elections.
(c) The Administrator may set, in writing, a maximum percentage of
the total election that a Participant may direct into any
specific Investment Fund may change such maximum percentage in
writing from time to time without the necessity of amending
the Plan.
7.3 Responsibility for Investment Choice
Each Participant shall be solely responsible for the selection of
his or her Investment Fund choices for his or her Directed
Investment Accounts. No fiduciary with respect to the Plan is
empowered to advise a Participant as to the manner in which his or
her Directed Investment Accounts are to be invested, and the fact
that an Investment Fund is offered shall not be construed to be a
recommendation for investment.
7.4 Default if No Election
The Administrator shall specify an Investment Fund for the
investment of that portion of a Participant's Directed Investment
Accounts which is not yet held in an Investment Fund and for which
no valid investment election is on file and may change such
Investment Fund from time to time without the necessity of amending
the Plan.
- 28 -
7.5 Timing
A Participant shall make his or her initial investment election upon
becoming a Participant and may change his or her election at any
time in accordance with the procedures established by the
Administrator and Trustee. Investment elections received by the
Trustee by the Sweep Date will be effective on the following Trade
Date.
7.6 Investment Fund Election Change Fees
A reasonable processing fee may be charged directly to a Participant's
Account for Investment Fund election changes in excess of a
specified number per year as determined by the Administrator.
- 29 -
8 INVESTMENT OF STOCK INVESTMENT COMPANY ACCOUNTS AND STOCK INVESTMENT
PARTICIPANT ACCOUNTS
8.1 Normal Investment
Each Participant's Stock Investment Company Accounts and Stock
Investment Participant Account shall be invested entirely in shares
of Company Stock, except for any deposit or money market type assets
pending investment in shares of Company Stock.
8.2 Diversification of Stock Investment Company Accounts (Prior to
January 1, 2002)
(a) A Qualified Participant shall have the right to elect to
diversify a portion of his or her Stock Investment Company
Accounts during the Qualified Election Period pursuant to Code
Section 401(a)(28)(B). The election shall be made within the
90-day period after the close of each Plan Year in the
Qualified Election Period.
(b) The Administrator shall be responsible for notifying a
Qualified Participant of his or her right to elect to
diversify. An election to diversify shall be made in such
manner as may be prescribed by the Administrator. Within 90
days after the end of the 90-day period specified in
Subsection 8.2(a), (i) the shares of Company Stock which a
Qualified Participant elects to diversify shall be sold from
his or her Stock Investment Company Accounts and (ii) the
proceeds shall be invested in his or her Rollover Account.
(c) For each of the first five Plan Years in the Qualified
Election Period the Participant may elect to diversify 25% of
the number of shares of Company Stock allocated to his or her
Stock Investment Company Accounts since the establishment of
such Accounts on his or her behalf, less the number of shares
of Company Stock previously diversified in accordance with an
election under this Subsection 8.2. For the final Plan Year in
the Qualified Election Period, "50%" shall be substituted for
"25%" in the preceding sentence.
(d) Notwithstanding the preceding provisions of this Subsection
8.2, the Administrator may permit diversification of Stock
Investment Company Accounts in amounts in excess of that
required by Code Section 401(a)(28) and at times other than,
but no less than the times required by Code Section
401(a)(28).
(e) Effective January 1, 2002, this Subsection 8.2 shall no longer
be in effect.
- 30 -
8.3 Diversification of Stock Investment Company Accounts and Stock
Investment Participant Accounts (Effective January 1, 2002)
(a) This Subsection 8.3 shall take effect as of January 1, 2002.
(b) A Qualified Participant shall have the right to elect to
diversify a portion of his or her Stock Investment Company
Accounts and Stock Investment Participant Account as specified
in Subsection 8.3(c). An election to diversify may be made
during the 90-day period at the beginning of each Plan Year
within the Qualified Election Period.
(c) Each Qualified Participant shall be permitted to diversify 10%
of the number of shares of Company Stock allocated to his or
her Stock Investment Company Accounts and Stock Investment
Participant Account during each Plan Year of the Qualified
Election Period, except that:
(1) During the five Plan Years of the Qualified Election
Period beginning with the Plan Year in which he or she
attained age 55, he or she shall be permitted to
diversify 25% of the number of shares of Company Stock
allocated to his or her Stock Investment Company
Accounts and Stock Investment Participant Account; and
(2) During the Plan Year of the Qualified Election Period
which is the fifth Plan Year after the Plan Year in
which he or she attained age 55, he or she shall be
permitted to diversify 50% of the number of shares of
Company Stock allocated to his or her Stock Investment
Company Accounts and Stock Investment Participant
Account.
(d) The Administrator shall be responsible for notifying a
Qualified Participant of his or her right to elect to
diversify. An election to diversify shall be made in such
manner as may be prescribed by the Administrator. Within 90
days after the end of the 90-day period specified in
Subsection 8.3(b), (i) the shares of Company Stock which a
Qualified Participant elects to diversify shall be sold from
his or her Stock Investment Company Accounts and Stock
Investment Participant Account and (ii) the proceeds shall be
invested in his or her Rollover Account.
(e) In the event any Qualified Participant's diversification
rights during any Plan Year are less than what he or she is
entitled under Section 401(a)(28)(B) of the Code, the terms of
said under Section 401(a)(28)(B) shall control.
- 31 -
9 VESTING AND FORFEITURES
9.1 Fully Vested Contribution Accounts
A Participant shall be fully vested in these Accounts at all times:
(a) Fund Deferrals Account
(b) Syncor Stock Deferrals Account
(c) Rollover Account
(d) Syncor Booster Account
(e) Pre-ESSOP Shares Account
9.2 Full Vesting upon Certain Events
A Participant's entire Account shall become fully vested once he or
she has attained his or her Normal Retirement Date as an Employee or
upon his or her leaving the Employer due to his or her Disability or
death.
9.3 Vesting Schedule
(a) In addition to the vesting provisions provided in Subsections
9.1 and 9.2, a Participant's Syncor Match/Bonus Account shall
become vested in accordance with the following schedule:
Years of Vesting Vested
Service. Percentage
Less than 3 0%
3 but less than 4 40%
4 but less than 5 70%
5 or more 100%
(b) If the Plan is amended to change the above schedule, the
vested percentage for each Participant shall not be less than
his or her vested percentage determined as of the last day
prior to this change, and for any Participant with at least
three Years of Vesting Service when the schedule is changed,
vesting shall be determined using the more favorable vesting
schedule.
- 32 -
(c) Effective January 1, 1999, this Subsection 9.3 shall
also apply to a Participant's Syncor Cash Bonus Account.
9.4 Forfeitures
(a) A Participant's non-vested Account balance shall be
forfeited as of the Settlement Date following the Sweep
Date on which the Administrator has reported to the
Trustee that the Participant's employment has terminated
with all Related Companies. Effective January 1, 1999,
the preceding sentence shall read as follows: "A
Participant's non-vested Account balance shall be
forfeited as of the Settlement Date following the Sweep
Date on which the Administrator has reported to the
Trustee that the Participant's employment has terminated
with the Employer and all Related Companies."
Forfeitures from all Employer Contribution Accounts
shall be transferred to and maintained in a single
Forfeiture Account, which shall be invested in shares of
Company Stock and interest bearing deposits of the
Trustee. Forfeiture Account amounts shall be allocated
as Contributions as described in Section 5, utilized to
restore Accounts and to pay Plan fees and expenses as
directed by the Administrator.
(b) Effective January 1, 1999, and notwithstanding
Subsection 9.4(a), forfeitures from Syncor Cash Bonus
Accounts shall be disposed of pursuant to Subsection 9.6
rather than this Subsection 9.4.
9.5 Rehired Employees
(a) Service. If a former Employee is rehired, all Years of
Vesting Service credited prior to his or her termination
of employment shall be counted in determining his or her
vested interest.
(b) Account Restoration. If a former Employee is rehired
before he or she has a Break in Service, the number of
shares of Company Stock and the amount of cash forfeited
when his or her employment last terminated shall be
restored to his or her Account. The amount shall come
from the Forfeiture Account to the extent possible, and
any additional amount needed shall be contributed by the
Employer. The vested interest in his or her restored
Account shall then be equal to:
- 33 -
V% times (AB + D) minus D
where:
V% = current vested percentage;
AB = current account balance; and
D = amount previously distributed.
9.6 Forfeitures from Syncor Cash Bonus Accounts.
A Participant's non-vested Syncor Cash Bonus Account balance shall
be forfeited as of the Settlement Date following the Sweep Date on
which the Administrator has reported to the Trustee that the
Participant's employment has terminated with the Employer and all
Related Companies. Forfeitures from all Syncor Cash Bonus Accounts
shall be transferred to and maintained in a single Cash Forfeiture
Account, which shall be invested in interest-bearing deposits of the
Trustee. Cash Forfeiture Account amounts shall be allocated as
Contributions as described in Subsection 5.5(b), utilized to restore
Syncor Cash Bonus Accounts and to pay Plan fees and expenses as
directed by the Administrator. This Subsection 9.6 is effective
January 1, 1999.
- 34 -
10 PARTICIPANT LOANS
10.1 Participant Loans Permitted
Loans to Participants are permitted pursuant to the terms and
conditions set forth in this Section 10.
10.2 Loan Application, Note and Security
A Participant shall apply for any loan in such manner and with such
advance notice as prescribed by the Administrator. All loans shall
be evidenced by a promissory note, secured only by 50% of the
Participant's Account(s) from which the loan is made, and the Plan
shall have a lien on this portion of his or her Account(s).
10.3 Spousal Consent
A Participant is not required to obtain Spousal Consent in order to
take out a loan under the Plan.
10.4 Loan Approval
The Administrator, or the Trustee if otherwise authorized by the
Administrator and agreed to by the Trustee, is responsible for
determining that a loan request conforms to the requirements
described in this Section 10 and granting such request.
10.5 Loan Funding Limits
The loan amount must meet all of the following limits as determined
as of the Sweep Date the loan is processed:
(a) Plan Minimum Limit. The minimum amount for any loan is $500.
(b) Plan Maximum Limit. Subject to the legal limit described in
Subsection 10.5(c), the maximum a Participant may borrow,
including the outstanding balance of existing Plan loans, is
100% of the following Accounts which are fully vested:
(1) Fund Deferrals Account;
(2) Syncor Stock Deferrals Account; and
(3) Rollover Account.
(c) Legal Maximum Limit. The maximum a Participant may borrow,
including the outstanding balance of existing Plan loans, as
well as
- 35 -
loans from any other qualified plan sponsored by the Employer
or a Related Employer, is 50% of his or her vested Account
balance, not to exceed $50,000. However, the $50,000 maximum
shall be reduced by the Participant's highest outstanding loan
balance during the 12-month period ending on the day before
the Sweep Date as of which the loan is made. For purposes of
this Subsection 10.5(c), the qualified plans of all Related
Companies shall be treated as though they are part of this
Plan to the extent it would decrease the maximum loan amount.
10.6 Maximum Number of Loans
A Participant may have only one loan outstanding at any given time.
10.7 Source and Timing of Loan Funding
(a) A loan to a Participant shall be made solely from the assets of
his or her own Accounts. The available assets shall be determined
first by Account type and then by investment type within each type
of Account. The hierarchy for loan funding by type of Account shall
be the order listed in the preceding Plan Maximum Limit paragraph.
Within each Account used for funding a loan, amounts shall first be
taken from the Sweep Account and then taken by type of investment in
direct proportion to the market value of the Participant's interest
in each Investment Fund as of the Trade Date on which the loan is
processed.
(b) Loans will be funded on the Settlement Date following the Trade
Date as of which the loan is processed. The Trustee shall make
payment to the Participant as soon thereafter as
administratively feasible.
10.8 Interest Rate
The interest rate charged on Participant loans shall be a fixed
reasonable rate of interest, determined from time to time by the
Administrator, which provides the Plan with a return commensurate
with the prevailing interest rate charged by persons in the business
of lending money for loans which would be made under similar
circumstances.
10.9 Repayment
Substantially level amortization shall be required of each loan with
payments made at least monthly, generally through payroll deduction.
Loans may be prepaid in full or in part at any time. The Participant
may choose the loan repayment period, not to exceed 5 years.
However, the term may be for any period not to exceed 15 years if
the purpose of the loan is to acquire the Participant's principal
residence.
- 36 -
10.10 Repayment Hierarchy
Loan principal repayments shall be credited to the Participant's
Accounts in the inverse of the order used to fund the loan. Loan
interest shall be credited to the Participant's Accounts in direct
proportion to the principal payment. Loan payments are credited by
investment type based upon the Participant's current investment
election for new Contributions.
10.11 Repayment Suspension
The Administrator may agree to a suspension of loan payments for up
to 6 months for a Participant who is on a Leave of Absence without
pay. During the suspension period interest shall continue to accrue
on the outstanding loan balance. At the expiration of the suspension
period all outstanding loan payments and accrued interest thereon
shall be due unless otherwise agreed upon by the Administrator.
10.12 Loan Default
(a) A loan is treated as a default if scheduled loan payments are
more than 90 days late. A Participant shall then have 30 days
from the time he or she receives written notice of the default
and a demand for past due amounts to cure the default before
it becomes final.
(b) In the event of default, the Administrator may direct the
Trustee to report the default as a taxable distribution. As
soon as a Plan withdrawal or distribution to such Participant
would otherwise be permitted, the Administrator may instruct
the Trustee to execute upon its security interest in the
Participant's Account by distributing the note to the
Participant.
10.13 Call Feature
The Administrator shall have the right to call any Participant loan
once a Participant's employment with all Related Companies has
terminated or if the Plan is terminated. Effective January 1, 1999,
the preceding sentence shall read as follows: "The Administrator
shall have the right to call any Participant loan once a
Participant's employment with the Employer and all Related Companies
has terminated or if the Plan is terminated."
- 37 -
11 IN-SERVICE WITHDRAWALS
11.1 In-Service Withdrawals Permitted
In-service withdrawals to a Participant who is an Employee are
permitted pursuant to the terms and conditions set forth in this
Section 11 and as required by law as set forth in Section 12.
11.2 In-Service Withdrawal Application and Notice
(a) A Participant shall apply for any in-service withdrawal in
such manner and with such advance notice as prescribed by the
Administrator. The Participant shall be provided the notice
prescribed by Code Section 402(f).
(b) If an in-service withdrawal is one to which Code Sections
401(a)(11) and 417 do not apply, such in-service withdrawal
may commence less than 30 days after the aforementioned notice
is provided, if:
(1) The Participant is clearly informed that he or she has
the right to a period of at least 30 days after receipt
of such notice to consider his or her option to elect or
not elect a Direct Rollover for all or a portion, if
any, of his or her in-service withdrawal which will
constitute an Eligible Rollover Distribution; and
(2) The Participant after receiving such notice,
affirmatively elects a Direct Rollover for all or
portion, if any, of his or her in-service withdrawal
which will constitute an Eligible Rollover Distribution
or alternatively elects to have all or a portion made
payable directly to him or her, thereby not electing a
Direct Rollover for all or a portion thereof.
11.3 Spousal Consent
A Participant is required to obtain Spousal Consent in order to make
an in-service withdrawal under the Plan.
11.4 In-Service Withdrawal Approval
The Administrator, or the Trustee if otherwise authorized by the
Administrator and agreed to by the Trustee, is responsible for
determining that an in-service withdrawal request conforms to the
requirements described in this Section 11 and granting such request.
- 38 -
11.5 Minimum Amount, Payment Form and Medium
(a) There shall be no minimum amount for any type of in-service
withdrawal.
(b) With regard to the portion of an in-service withdrawal
representing an Eligible Rollover Distribution, a Participant
may elect a Direct Rollover for all or a portion of such
amount. The form of payment for an in-service withdrawal shall
be a single lump sum and payment shall be made in cash.
11.6 Source and Timing of In-Service Withdrawal Funding
(a) An in-service withdrawal to a Participant shall be made solely
from the assets of his or her own Accounts and will be based
on the Account values as of the Trade Date the in-service
withdrawal is processed. The available assets shall be
determined first by Account type and then by investment type
within each type of Account. Within each Account used for
funding an in-service withdrawal, amounts shall first be taken
from the Sweep Account and then taken by type of investment in
direct proportion to the market value of the Participant's
interest in each Investment Fund (which excludes Participant
loans) as of the Trade Date on which the in-service withdrawal
is processed.
(b) In-Service withdrawals shall be funded on the Settlement Date
following the Trade Date as of which the in-service withdrawal
is processed. The Trustee shall make payment as soon
thereafter as administratively feasible.
11.7 Hardship Withdrawals
(a) Requirements. A Participant who is an Employee may request the
withdrawal of up to the amount necessary to satisfy a
financial need including amounts necessary to pay any federal,
state or local income taxes or penalties reasonably
anticipated to result from the withdrawal. Only requests for
withdrawals (1) on account of a Participant's "Deemed
Financial Need" or "Demonstrated Financial Need," and (2)
which are "Deemed Necessary" to satisfy the financial need
will be approved.
(b) "Deemed Financial Need" means financial commitments of a
Participant relating to:
(1) Expenses for "medical care" [as defined in Code Section
213(d)] previously incurred by the Participant his or
her spouse or any of the Participant's dependents (as
defined in Code
- 39 -
Section 152) or necessary for these persons to obtain
medical care
(2) The purchase (excluding mortgage payments) of the
Employee's principal residence;
(3) The payment of unreimbursable tuition and related
educational fees and room and board expenses for up to
the next 12 months of post-secondary education for the
Participant, his or her spouse or dependents (as defined
in Code Section 152);
(4) The payment of funeral expenses of a Participant's
family member;
(5) The payment of amounts necessary for the Participant to
the eviction of the Participant from his or her
principal residence or foreclosure on the mortgage on
said residence; or
(6) Any other circumstance specifically permitted pursuant
to regulations under Code Section 401(k)(2)(B)(i)(IV).
(c) "Demonstrated Financial Need" means a determination by the
Administrator that a severe financial hardship to the
Participant has resulted from:
(1) A sudden and unexpected illness or accident to the
Employee or his or her spouse or dependents;
(2) The loss, due to casualty, of the Employee's property
other than nonessential property (such as a boat or a
television); or
(3) Some other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the
control of the Employee.
(d) "Deemed Necessary." A withdrawal shall be "Deemed Necessary"
to satisfy the financial need only if the withdrawal amount
does not exceed the financial need and all of these conditions
are met:
(1) The Participant has obtained all other possible
withdrawals and nontaxable loans available from all
plans maintained by Related Companies;
(2) The Participant is prohibited, under the terms of the
plan or an otherwise legally-enforceable agreement, from
making any contributions, pre-tax as well as after-tax,
to all plans maintained by Related Companies for 12
months from the date the withdrawal payment is made; and
- 40 -
(3) For the taxable year next following the taxable year of
the withdrawal, the Participant's maximum "elective
deferrals" [as defined in Code Section 402(g)(3)] under
all plans maintained by Related Companies are reduced by
the amount of the Participant's elective deferrals for
the calendar year of the withdrawal.
For purposes of this Subsection 11.7(d), the term "all plans
maintained by Related Companies" means all qualified and
nonqualified plans of deferred compensation maintained by
related Companies, including stock option, stock purchase or
similar plans and "cash-or-deferred" arrangements which are
part of "cafeteria plans" described in Code Section 125, but
excluding (i) mandatory contributions to a defined benefit
plan and (ii) a health or welfare benefit plan, including one
that is part of a cafeteria plan. The prohibition referred to
in Subsection 11.7(d)(2) and the reduction referred to in
Subsection 11.7(d)(3) are hereby made a part of this Plan.
(e) Account Sources for Withdrawal. The withdrawal amount shall
come from the following of the Participant's fully vested
Accounts, in the priority order as follows:
(1) Rollover Account;
(2) Syncor Stock Deferrals Account; and
(3) Fund Deferrals Account
The amount that may be withdrawn from a Participant's Fund
Deferrals and Syncor Stock Deferrals Accounts shall not
include any earnings credited to his or her Pre-Tax Account
after December 31, 1988.
(f) Permitted Frequency. There is no restriction on the number of
Hardship withdrawals permitted to a Participant.
11.8 Rollover Account Withdrawals
No in-service withdrawals are permitted from a Participant's
Rollover Account except as provided elsewhere in this Section 11.
11.9 Over Age 59-1/2 Withdrawals
(a) Requirements. A Participant who is an Employee and over age
59-1/2 may withdraw from the Accounts listed in paragraph (b)
below.
- 41 -
(b) Account Sources for Withdrawal. The withdrawal amount shall
come from the following of the Participant's fully vested
Accounts, in the priority order as follows:
(1) Rollover Account; and
(2) Fund Deferrals Account
(c) Permitted Frequency. The maximum number of withdrawals
permitted to a Participant under this Subsection 11.9 is one.
(d) Suspension from Further Contributions. A withdrawal pursuant
to this Subsection 11.9 shall not affect a Participant's
ability to make or be eligible to receive further
Contributions.
- 42 -
12 DISTRIBUTIONS ONCE EMPLOYMENT ENDS OR AS REQUIRED BY LAW
12.1 Benefit Information, Notices and Election
(a) A Participant, or his or her Beneficiary in the case of his or
her death, shall be provided with information regarding all
optional times and forms of distribution available, to include
the notices prescribed by Code Section 402(f) and Code Section
411(a)(11). Subject to the other requirements of this Section
12, a Participant, or his or her Beneficiary in the case of
his or her death, may elect, in such manner and with such
advance notice as prescribed by the Administrator, to have his
or her vested Account balance paid to him or her beginning
upon any Settlement Date following the Participant's
termination of employment with all Related Companies or, if
earlier, at the time required by law as set forth in
Subsection 12.7. Effective January 1, 1999, the preceding
sentence shall read as follows: "Subject to the other
requirements of this Section 12, a Participant, or his or her
Beneficiary in the case of his or her death, may elect, in
such manner and with such advance notice as prescribed by the
Administrator, to have his or her vested Account balance paid
to him or her beginning upon any Settlement Date following the
Participant's termination of employment with the Employer and
all Related Companies or, if earlier, at the time required by
law as set forth in Subsection 12.7."
(b) If a distribution is one to which Code Sections 401(a)(11) and
417 do not apply, such distribution may commence less than 30
days after the aforementioned notices are provided, if:
(1) The Participant is clearly informed that he or she has
the right to a period days after receipt of such notices
to consider the decision as to whether to elect a
distribution and if so to elect a particular form of
distribution and to elect or not elect a Direct Rollover
for all or a portion, if any, of his or her distribution
which will constitute an Eligible Rollover Distribution;
and
(2) The Participant after receiving such notices,
affirmatively elects a distribution and a Direct
Rollover for all or a portion, if any, of his or her
distribution which will constitute an Eligible Rollover
Distribution or alternatively elects to have all or a
portion made payable directly to him or her, thereby not
electing a Direct Rollover for all or a portion thereof.
12.2 Spousal Consent
A Participant shall be required to obtain Spousal Consent in order
to receive a distribution under the Plan, except with regard to a
distribution that may be
- 43 -
made to a Participant without his or her consent in accordance with
Subsection 12.4. This Subsection 12.2 shall not apply to
distributions made after February 28, 2002.
12.3 Payment Form and Medium
(a) A Participant shall be paid in the form of a single lump sum.
Notwithstanding the preceding sentence, a Participant who is
an Employee at the time he or she is required by law to
commence distribution, or anytime thereafter, may instead
elect to be paid annually in a lump sum an amount sufficient
to comply with Code Section 401(a)(9).
(b) Distributions shall be made in cash except to the extent a
distribution consists of an offset amount as described in
Subsection 10.13 and to the extent a Participant elects that
payment be made in a combination of cash for his or her
Directed Investment Accounts and any portion of his or her
Stock Investment Company Accounts and Stock Investment
Participant Account not held in whole shares of Company Stock
and in shares of Company Stock for the number of whole shares
of Company Stock held in his or her Stock Investment Company
Accounts and Stock Investment Participant Account.
(c) With regard to the portion of a distribution representing an
Eligible Rollover Distribution, a Distributee may elect a
Direct Rollover for all or a portion of such amount.
12.4 Distribution of Small Amounts
If, after a Participant's employment with all Related Companies
ends, the Participant's vested Account balance is $3,500 or less,
and if at the time of any prior in-service withdrawal or
distribution the Participant's vested Account balance did not exceed
$3,500, the Participant's benefit shall be paid as a single lump sum
as soon as is administratively feasible in accordance with
procedures prescribed by the Administrator. Effective January 1,
1998, "$5,000" shall be substituted for "$3,500" in the preceding
sentence. Effective January 1, 1999, the second preceding sentence
shall read as follows: "If, after a Participant's employment with
all Related Companies ends, and the Participant's vested Account
balance is $5,000 or less, the Participant's benefit shall be paid
as a single lump sum as soon as is administratively feasible in
accordance with procedures prescribed by the Administrator."
12.5 Source and Timing of Distribution Funding
(a) A distribution to a Participant shall be made solely from the
assets of his or her own Accounts and will be based on the
Account values as
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of the Trade Date the distribution is processed. The available
assets shall be determined first by Account type and then by
investment type within each type of Account.
(b) Within each Account used for funding a distribution, amounts
shall first be taken from the Sweep Account and then taken by
type of investment in direct proportion to the market value of
the Participant's interest in each Investment Fund as of the
Trade Date on which the distribution is processed.
(c) Distributions will be funded on the Settlement Date following
the Trade Date as of which the distribution is processed. The
Trustee shall make payment as soon thereafter as
administratively feasible.
12.6 Deemed Distribution
For purposes of Subsection 9.4, if at the time a Participant's
employment with all Related Companies has terminated, the
Participant's vested Account balance attributable to Accounts
subject to vesting as described in Section 9, is zero, his or her
vested Account balance shall be deemed distributed as of the
Settlement Date following the Sweep Date on which the Administrator
has reported to the Trustee that the Participant's employment with
all Related Companies has terminated.
12.7 Latest Commencement Permitted
(a) In addition to any other Plan requirements and unless a
Participant elects otherwise, his or her benefit payments will
begin not later than 60 days after the end of the Plan Year in
which he or she attains his or her Normal Retirement Date or
retires, whichever is later. However, if the amount of the
payment or the location of the Participant (after a reasonable
search) cannot be ascertained by that deadline, payment shall
be made no later than 60 days after the earliest date on which
such amount or location is ascertained but in no event later
than as described below. A Participant's failure to elect in
such manner as prescribed by the Administrator to have his or
her vested Account balance paid to him or her, shall be deemed
an election by the Participant to defer his or her
distribution.
(b) Benefit payments shall begin by the April 1 immediately
following the end of the calendar year in which the
Participant attains age 70-1/2 (whether or not he or she is an
Employee), except that distribution for an Employee who was
born before July 1, 1917 does not need to begin until his or
her employment with all Related Companies ends. Effective
January 1, 1999, the preceding sentence shall read as follows:
"Benefit payments shall begin by the April 1 immediately
following the end of the calendar year in which the
Participant attains
- 45 -
age 70-1/2 (whether or not he or she is an Employee), except
that distribution for an Employee who was born before July 1,
1917 does not need to begin until his or her employment with
the Employer and all Related Companies ends."
(c) Effective January 1, 2000, notwithstanding the preceding
paragraph, a Participant who is an Employee and who has
attained age 70-1/2, other than a "5-percent owner" [as
defined in Code Section 416(i)(1)(B)(i) of the Code], may
elect to defer the beginning of benefit payments until April 1
of the calendar year following the calendar year in which he
or she terminates his or her employment with the Employer and
all Related Companies.
12.8 Payment Within Life Expectancy
The Participant's payment election must be consistent with the
requirement of Code Section 401(a)(9) that all payments are to be
completed within a period not to exceed the lives or the joint and
last survivor life expectancy of the Participant and his or her
Beneficiary. The life expectancies of a Participant and his or her
Beneficiary may not be recomputed annually.
12.9 Incidental Benefit Rule
The Participant's payment election must be consistent with the
requirement that, if the Participant's spouse is not his or her sole
primary Beneficiary, the minimum annual distribution for each
calendar year, beginning with the year in which he or she attains
age 70-1/2 (or such later date as provided otherwise in Section 12),
shall not be less than the quotient obtained by dividing (a) the
Participant's vested Account balance as of the last Trade Date of
the preceding year by (b) the applicable divisor as determined under
the incidental benefit requirements of Code Section 401(a)(9).
12.10 Payment to Beneficiary
Payment to a Beneficiary must be completed by the end of the
calendar year that contains the fifth anniversary of the
Participant's death, except that:
(a) If the Participant dies after the April 1 immediately
following the end of the calendar year in which he or she
attains age 70-1/2, payment to his or her Beneficiary must be
made at least as rapidly as provided in the Participant's
distribution election;
(b) If the surviving spouse is the Beneficiary, payments need not
begin until the end of the calendar year in which the
Participant would have attained age 70-1/2 and must be
completed within the spouse's life or life expectancy; and
- 46 -
(c) If the Participant and the surviving spouse who is the
Beneficiary die (1) before the April 1 immediately following
the end of the calendar year in which the Participant would
have attained age 70-1/2 and (2) before payments have begun to
the spouse, the spouse will be treated as the Participant in
applying these rules.
12.11 Beneficiary Designation
(a) Each Participant may complete a beneficiary designation form
indicating the Beneficiary who is to receive the Participant's
remaining Plan interest at the time of his or her death. The
designation may be changed at any time.
(b) Notwithstanding Subsection 12.11(a), a Participant's spouse
shall be the sole primary Beneficiary unless the designation
includes Spousal Consent for another Beneficiary. If no proper
designation is in effect at the time of a Participant's death
or if the Beneficiary is not in existence at the time of such
Participant's death, the Beneficiary shall be, in the order
listed:
(1) The Participant's surviving spouse,
(2) The Participant's children, in equal shares, per stirpes
(by right of representation), or
(3) The Participant's estate.
12.12 Effect of Certain Distributions and Deemed Distributions; Repayment
(a) If, following termination of employment with the Employer and
all Related Companies, a Participant receives a single lump
sum distribution of his or her entire vested Account balance,
in accordance with Subsections 12.1 and 12.3, or Subsection
12.4, the non-vested balance in his or her Account shall
thereupon be forfeited and disposed of in accordance with
Subsection 9.4. If such Participant should return to the
employ of the Employer and repay the full amount of the
distribution prior to the earlier of (i) 5 years after the
first date on which he or she is subsequently re-employed by
the Employer or (ii) the close of the first Break in Service
commencing after such distribution, the previously-forfeited
portion, unadjusted by any subsequent gains or losses, shall
be reinstated by use of amounts in the Forfeiture Account, or
if there are none, by means of an additional contribution by
the Administrator to the Plan for this purpose. It shall be
the duty of the Employer to give timely notice to any rehired
Participant, if such Participant is eligible to make a
repayment of the distribution to him, of the consequences of
not making such repayment.
- 47 -
(b) If, following termination of employment with the Employer and
all Related Companies, a Participant is deemed to have
received a distribution of his entire vested Account balance,
in accordance with Subsection 12.6, the non-vested balance in
his Account shall thereupon be forfeited and disposed of in
accordance with Subsection 9.4. If such Participant should
return to the employ of the Employer prior to the earlier of
(i) 5 years after the first date on which he is subsequently
re-employed by the Employer or (ii) the close of the first
Break in Service commencing after the date of such deemed
distribution, the previously-forfeited portion, unadjusted by
any subsequent gains or losses, shall be reinstated by use of
amounts in the Forfeiture Account, or if there are none, by
means of an additional contribution by the Employer to the
Plan for this purpose.
(c) Years of Service attributable to a distribution or a deemed
distribution in accordance with Subsections 12.1 and 12.3,
12.4 or 12.6 shall not be disregarded for purposes of
eligibility or vesting under the Plan.
(d) This Subsection 12.12 is effective January 1, 1999.
12.13 Required Distributions on or After January 1, 2002
With respect to distributions under the Plan made in calendar years
beginning on or after January 1, 2002, the Plan shall apply the
minimum distribution requirements of Section 401(a)(9) of the Code
in accordance with the regulations under said Section 401(a)(9)
which were proposed in January 2001, notwithstanding any provision
of the Plan to the contrary. This Subsection 12.13 shall continue in
effect until the end of the last calendar year beginning before the
effective date of final regulations under said Section 401(a)(9) or
such other date specified in guidance published by the Internal
Revenue Service.
- 48 -
13 ADP AND ACP TESTS
13.1 Contribution Limitation Definitions
The following definitions are applicable to this Section 13 (where a
definition is contained in both Sections 1 and 13, for purposes of
Section 13 the Section 13 definition shall be controlling):
(a) "ACP" or "Average Contribution Percentage" means the Average
Percentage calculated using Contributions allocated to
Participants as of a date within a Plan Year.
(b) "ACP Test" means the determination of whether the ACP is in
compliance with the Basic or Alternative Limitation for a Plan
Year (as defined in Subsection 13.2).
(c) "ADP" or "Average Deferral Percentage" means the Average
Percentage calculated using Deferrals allocated to
Participants as of a date within a Plan Year.
(d) "ADP Test" means the determination of whether the ADP is in
compliance with the Basic or Alternative Limitation for a Plan
Year (as defined in Subsection 13.2).
(e) "Average Percentage" means the average of the calculated
percentages for Participants within the specified group. The
calculated percentage refers to either the "Deferrals" or
"Contributions" (as defined in this Subsection 13.1) made on
each Participant's behalf for a Plan Year, divided by his or
her Compensation for the portion of such Plan Year in which he
or she was an Eligible Employee while a Participant. (Pre-Tax
Contributions to this Plan or comparable contributions to
plans of Related Companies which will be refunded solely
because they exceed the Contribution Dollar Limit are included
in the percentage for the HCE Group but not for the NHCE
Group.)
(f) "Contributions" means Syncor Match Contributions. In addition,
Contributions may include Pre-Tax and Syncor Booster
Contributions, but only to the extent that (1) the Employer
elects to use them, (2) they are not used or counted in the
ADP Test, (3) Syncor Booster Contributions are fully vested
when made and not withdrawable by an Employee before he or she
attains age 59-1/2 and (4) they otherwise satisfy the
requirements as prescribed under Code Section 401(m)
permitting treatment as Contributions for purposes of the ACP
Test, including with regard to Syncor Booster Contributions
satisfaction of the requirements of Code Section 401(a) in the
manner prescribed under Code Section 401(m).
- 49 -
(g) "Deferrals" means Pre-Tax Contributions. In addition,
Deferrals may include Syncor Booster Contributions, but only
to the extent that (1) the Employer elects to use them, (2)
they are not used or counted in the ACP Test, (3) they are
fully vested when made, not withdrawable by an Employee before
he or she attains age 59-1/2 and (4) they otherwise satisfy
the requirements as prescribed under Code Section 401(k)
permitting treatment as Deferrals for purposes of the ADP
Test, including satisfaction of the requirements of Code
Section 401(a) in the manner prescribed under Code Section
401(k).
(h) "HCE" or "Highly Compensated Employee" means, with respect to
a Plan Year, any Employee who:
(1) During such Plan Year or the preceding Plan Year was or
at any time a "5-percent owner" within the meaning of
Section 416(i)(B)(i) of the Code; or
(2) During such preceding Plan Year received Compensation
from the Employer in excess of $80,000 and was in the
group of Employees of the Employer consisting of the top
20% of such Employees when ranked on the basis of
Compensation paid during such preceding Plan Year.
The $80,000 amount in Subsection 13.1(h)(2) shall be adjusted
in the same time and in the same manner as provided in Code
Section 415(d), except that the base period shall be the
calendar quarter ended September 30, 1996.
(i) "HCE Group" and "NHCE Group" Means with respect to each
Employer and its Related Companies, the respective group of
HCEs and NHCEs who are eligible to have amounts contributed on
their behalf for the Plan Year, including Employees who would
be eligible but for their election not to participate or to
contribute, or because their Pay is greater than zero but does
not exceed a stated minimum.
(1) If the Related Companies maintain two or more plans
which are subject to the ADP or ACP Test and are
considered as one plan for purposes of Code Sections
401(a)(4) or 410(b), all such plans shall be aggregated
and treated as one plan for purposes of meeting the ADP
and ACP Tests, provided that, for Plan Years beginning
after December 31, 1989, plans may only be aggregated if
they have the same Plan Year.
(2) If an HCE is covered by more than one cash or deferred
arrangement, or more than one arrangement permitting
employee or matching contributions, maintained by the
Related Companies, all such plans shall be aggregated
and treated as
- 50 -
one plan for purposes of calculating the separate
percentage for the HCE which is used in the
determination of the Average Percentage.
(j) "Multiple Use Test" means the test described in Subsection
13.4 which a Plan must meet where the Alternative Limitation
[described in Subsection 13.2(b)] is used to meet both the ADP
and ACP Tests.
(k) "NHCE" or "Non-Highly Compensated Employee" means an Employee
who is not an HCE.
13.2 ADP and ACP Tests
For each Plan Year, the ADP and ACP for the HCE Group must meet
either the Basic or Alternative Limitation when compared to the
respective ADP and ACP for the NHCE Group, defined as follows:
(a) Basic Limitation. The HCE Group Average Percentage for each
Plan Year may not exceed 1.25 times the NHCE Group Average
Percentage for the preceding Plan Year.
(b) Alternative Limitation. The HCE Group Average Percentage for
each Plan Year is limited by reference to the NHCE Group
Average Percentage for the preceding Plan Year as follows:
If the NHCE Group Then the Maximum HCE
Average Percentage is: Group Average Percentage is:
---------------------- ----------------------------
Less than 2% 2 times NHCE Group Average %
2% to 8% NHCE Group Average % plus 2%
More than 8% NA - Basic Limitation applies
13.3 Correction of ADP and ACP Tests
(a) ADP Correction. In the event that the initial allocation of
Deferrals for a Plan Year does not satisfy one of the tests
set forth in Subsection 13.2 (after taking into account any
distributions to NHCEs, but not to HCEs, pursuant to
Subsection 3.5), the Administrator shall adjust such Deferrals
as follows: On or before the 15th day of the third month
following the end of each Plan Year, but in no event later
than the close of the following Plan Year, the amount
necessary to reduce the Deferrals of HCEs to the point where
one of such tests is satisfied, determined by reducing
Deferrals on behalf of HCEs in the order of their ADPs,
beginning with the highest of such percentages (the "Excess
Deferrals"), shall be distributed among such HCEs with
- 51 -
the largest amount of Deferrals taken into account in
calculating the ADP tests for the Plan Year in which such
Excess Deferrals arose, beginning with the HCE with the
largest amount of such Deferrals and continuing in descending
order until all such Excess Deferrals have been allocated.
Income or loss shall be allocated to such Excess Deferrals in
accordance with Regulation Section 1.401(k)-1(f)(4)(ii),
excluding income or loss for the period between the end of the
Plan Year in which such Excess Deferrals arose and the date of
distribution. Excess Deferrals shall first be taken from
unmatched Pre-Tax Contributions and then from matched Pre-Tax
Contributions, first from matched Pre-Tax Contributions
deposited to the Participant's Fund Deferrals Account and then
from matched Pre-Tax Contributions deposited to the
Participant's Syncor Stock Deferrals Account. Any Syncor Match
Contributions attributable to refunded excess Pre-Tax
Contributions as described in this Section 13 shall be
forfeited and used as described in Subsection 9.4.
(b) ACP Correction. In the event that the initial allocation of
Contributions for a Plan Year does not satisfy one of the
tests set forth in Subsection 13.2, the Administrator shall
adjust such Contributions as follows: On or before the 15th
day of the third month following the end of each Plan Year,
but in no event later than the close of the following Plan
Year, the amount necessary to reduce the Contributions of HCEs
to the point where one of such tests is satisfied, determined
by reducing Contributions on behalf of HCEs in the order of
their ACPs, beginning with the highest of such percentages
(the "Excess Contributions"), shall be forfeited (or if not
forfeitable, distributed) among such HCEs with the largest
amount of Contributions taken into account in calculating the
ACP tests for the Plan Year in which such Excess Contributions
arose, beginning with the HCE with the largest amount of such
Contributions and continuing in descending order until all
such Excess Contributions have been allocated. Income or loss
shall be allocated to such Excess Contributions in accordance
with Regulation Section 1.401(m)-1(e)(3)(ii), excluding income
or loss for the period between the end of the Plan Year in
which such Excess Contributions arose and the date of
distribution.
(c) Investment Fund Sources. Once the amount of excess Deferrals
and/or Contributions is determined amounts shall then be taken
by type of investment in direct proportion to the market value
of the Participant's interest in each Investment Fund (which
excludes Participant loans) at the time the correction is
made.
- 52 -
13.4 Multiple Use Test
If the Alternative Limitation (defined in Subsection 13.2) is used
to meet both the ADP and ACP Tests, the ADP and ACP for the HCE
Group must also comply with the requirements of Code Section
401(m)(9), which requires that the sum of the ADP and ACP for the
HCE Group (as determined after any corrections needed to meet the
ADP and ACP Tests have been made) not exceed the sum (which produces
the most favorable result) of:
(a) The Basic Limitation [as defined in Subsection 13.2(a)]
applied to either the ADP or ACP for the NHCE Group, and
(b) The Alternative Limitation [as defined in Subsection 13.2(b)]
applied to the other NHCE Group percentage.
13.5 Correction of Multiple Use Test
If the multiple use limit is exceeded, the Administrator shall
determine a maximum percentage to be used in place of the calculated
percentage for all HCEs that would reduce either or both the ADP or
ACP for the HCE Group by a sufficient amount to meet the multiple
use limit. Any excess shall be handled in the same manner that the
distribution of Excess Deferrals or Excess Contributions is handled.
13.6 Adjustment for Investment Gain or Loss
Any excess Deferrals or Contributions to be refunded to a
Participant or forfeited in accordance with Subsections 13.3 or 13.5
shall be adjusted for investment gain or loss. Refunds or
forfeitures shall not include investment gain or loss for the period
between the end of the applicable Plan Year and the date of
distribution.
13.7 Testing Responsibilities and Required Records
The Administrator shall be responsible for ensuring that the Plan
meets the ADP Test, the ACP Test and the Multiple Use Test, and that
the Contribution Dollar Limit is not exceeded. In carrying out its
responsibilities, the Administrator shall have sole discretion to
limit or reduce Deferrals or Contributions at any time. The
Administrator shall maintain records which are sufficient to
demonstrate that the ADP Test, the ACP Test and the Multiple Use
Test, have been met for each Plan Year for at least as long as the
Employer's corresponding tax year is open to audit.
13.8 Separate Testing
(a) Multiple Employers: The determination of HCEs, NHCEs, and the
performance of the testing and any corrective action resulting
- 53 -
therefrom shall be made separately with regard to the
Employees of each Employer (and its Related Companies) that is
not a Related Company with the other Employer(s).
(b) Collective Bargaining Units: The performance of the ADP Test,
and if applicable, the ACP Test and Multiple Use Test, and any
corrective action resulting therefrom shall be applied
separately to Employees who are eligible to participate in the
Plan as a result of a collective bargaining agreement.
In addition, separate testing may be applied, at the discretion of
the Administrator and to the extent permitted under Treasury
regulations, to any group of Employees for whom separate testing is
permissible.
- 54 -
14 MAXIMUM CONTRIBUTION AND BENEFIT LIMITATIONS
14.1 "Annual Addition" Defined
The sum of all amounts allocated to the Participant's Account for a
Plan Year. Amounts include contributions (except for rollovers or
transfers from another qualified plan), forfeitures and, if the
Participant is a Key Employee (pursuant to Section 15) for the
applicable or any prior Plan Year, medical benefits provided
pursuant to Code Section 419A(d)(1). For purposes of this Subsection
14.1, "Account" also includes a Participant's account in all other
defined contribution plans currently or previously maintained by any
Related Company. The Plan Year refers to the year to which the
allocation pertains, regardless of when it was allocated. The Plan
Year shall be the Code Section 415 "limitation year."
14.2 Maximum Annual Addition
The Annual Addition to a Participant's accounts under this Plan and
any other defined contribution plan maintained by any Related
Company for any Plan Year shall not exceed the lesser of (a) 25% of
his or her Taxable Income or (b) $30,000 [as adjusted pursuant to
Code Section 415(d)].
14.3 Avoiding an Excess Annual Addition
If, at any time during a Plan Year, the allocation of any additional
Contributions would produce an excess Annual Addition for such year,
Contributions to be made for the remainder of the Plan Year shall be
limited to the amount needed for each affected Participant to
achieve the maximum Annual Addition.
14.4 Correcting an Excess Annual Addition
(a) Upon the discovery of an excess Annual Addition to a
Participant's Account (resulting from forfeitures,
allocations, reasonable error in determining Participant
compensation or the amount of elective contributions, or other
facts and circumstances acceptable to the Internal Revenue
Service) the excess amount (adjusted to reflect investment
gains) shall first be returned to the Participant to the
extent of his or her Pre-Tax Contributions (however, to the
extent Pre-Tax Contributions were matched, the applicable
Syncor Match Contributions shall be forfeited in proportion to
the returned matched Pre-Tax Contributions) and the remaining
excess, if any, shall be forfeited by the Participant and
together with forfeited Syncor Match Contributions allocated
as Contributions as described in Section 5 as soon as is
administratively feasible.
- 55 -
(b) To the extent Pre-Tax Contributions are refunded, excess
amounts shall first be taken from unmatched Pre-Tax
Contributions and then from matched Pre-Tax Contributions,
first from matched Pre-Tax Contributions deposited to the
Participant's Fund Deferrals Account and then from matched
Pre-Tax Contributions deposited to the Participant's Syncor
Stock Deferrals Account.
14.5 Correcting a Multiple Plan Excess
If a Participant, whose Account is credited with an excess Annual
Addition, received allocations to more than one defined contribution
plan, the excess shall be corrected by reducing the Annual Addition
to this Plan only after all possible reductions have been made to
the other defined contribution plans.
14.6 "Defined Benefit Fraction" Defined
The fraction, for any Plan Year, where the numerator is the
"projected annual benefit" and the denominator is the greater of
125% of the "protected current accrued benefit" or the normal limit
which is the lesser of (1) 125% of the maximum dollar limitation
provided under Code Section 415(b)(1)(A) for the Plan Year or (2)
140% of the amount which may be taken into account under Code
Section 415(b)(1)(B) for the Plan Year, where a Participant's:
(a) "Projected annual benefit" is the annual benefit provided by
the Plan determined pursuant to Code Section 415(e)(2)(A); and
(b) "Protected current accrued benefit" in a defined benefit plan
in existence (1) on July 1, 1982, shall be the accrued annual
benefit provided for under Public Law 97-248, Section
235(g)(4), as amended, or (2) on May 6, 1986, shall be the
accrued annual benefit provided for under Public Law 99-514,
Section 1106(i)(3).
14.7 "Defined Contribution Fraction" Defined
The fraction where the numerator is the sum of the Participant's
Annual Addition for each Plan Year to date and the denominator is
the sum of the "annual amounts" for each year in which the
Participant has performed service with a Related Company. The
"annual amount" for any Plan Year is the lesser of (1) 125% of the
Code Section 415(c)(1)(A) dollar limitation [determined without
regard to Subsection (c)(6)] in effect for the Plan Year and (2)
140% of the Code Section 415(c)(1)(B) amount in effect for the Plan
Year, where:
(a) Each Annual Addition is determined pursuant to the Code
Section 415(c) rules in effect for such Plan Year; and
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(b) The numerator is adjusted pursuant to Public Law 97-248,
Section 235(g)(3), as amended, or Public Law 99-514, Section
1106(i)(4).
14.8 Combined Plan Limits and Correction
(a) If a Participant has also participated in a defined benefit
plan maintained by a Related Company, the sum of the Defined
Benefit Fraction and the Defined Contribution Fraction for any
Plan Year may not exceed 1.0. If the combined fraction exceeds
1.0 for any Plan Year, the Participant's benefit under any
defined benefit plan (to the extent it has not been
distributed or used to purchase an annuity contract) shall be
limited so that the combined fraction does not exceed 1.0
before any defined contribution limits will be enforced.
(b) This Subsection 14.8 shall not apply to Plan Years beginning
after December 31, 1999.
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15 TOP-HEAVY RULES
15.1 Top-Heavy Definitions
When capitalized, the following words and phrases have the following
meanings when used in this Section 15:
(a) "Aggregation Group" means the group consisting of each
qualified plan of an Employer (and its Related Companies) (1)
in which a Key Employee is a participant or was a participant
during the determination period (regardless of whether such
plan has terminated), or (2) which enables another plan in the
group to meet the requirements of Code Sections 401(a)(4) or
410(b). The Employer may also treat any other qualified plan
as part of the group if the group would continue to meet the
requirements of Code Sections 401(a)(4) and 410(b) with such
plan being taken into account.
(b) "Determination Date" means the last Trade Date of the
preceding Plan Year or, in the case of the Plan's first year,
the last Trade Date of the first Plan Year.
(c) "Key Employee" means a current or former Employee (or his or
her Beneficiary) who at any time during the five-year period
ending on the Determination Date was:
(1) An officer of a the Employer or Related Company whose
Compensation exceeds 50% of the amount in effect under
Code Section 415(b)(1)(A);
(2) A more-than-5% Owner;
(3) A more-than-1% Owner whose Compensation exceeds
$150,000; or
(4) One of the 10 Employees having annual Compensation from
the Employer of more than the limitation in effect under
Code Section 415(c)(1)(A) and owning (or considered as
owning within the meaning of Code Section 318) the
largest interests in the Employer.
(d) "Plan Benefit" means the sum as of the Determination Date of
(1) an Employee's Account, (2) the present value of his or her
other accrued benefits provided by all qualified plans within
the Aggregation Group, and (3) the aggregate distributions
made within the five-year period ending on such date. Plan
Benefits shall exclude rollover contributions and plan to plan
transfers made after December 31,
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1983 which are both employee initiated and from a plan
maintained by a non-related employer.
(e) "Top-Heavy" means the Plan's status when the Plan Benefits of
Key Employees account for more than 60% of the Plan Benefits
of all Employees who have performed services at any time
during the five year period ending on the Determination Date.
The Plan Benefits of Employees who were, but are no longer,
Key Employees (because they have not been an officer or Owner
during the five year period), are excluded in the
determination.
15.2 Special Contributions
(a) Minimum Contribution Requirement. For each Plan Year in which
the Plan is Top-Heavy, the Employer shall not allow any
contributions (other than a Rollover Contribution) to be made
by or on behalf of any Key Employee unless the Employer makes
a contribution (other than Pre-Tax and Syncor Match
Contributions) on behalf of all Participants who were Eligible
Employees as of the last day of the Plan Year in an amount
equal to at least 3% of each such Participant's Taxable
Income.
(b) Overriding Minimum Benefit. Notwithstanding, contributions
shall be permitted on behalf of Key Employees if the Employer
also maintains a defined benefit plan which automatically
provides a benefit which satisfies the Code Section 416(c)(1)
minimum benefit requirements, including the adjustment
provided in Code Section 416(h)(2)(A), if applicable. If this
Plan is part of an aggregation group in which a Key Employee
is receiving a benefit and no minimum is provided in any other
plan, a minimum contribution of at least 3% of Taxable Income
shall be provided to the Participants specified in Subsection
15.2(a). In addition, the Employer may offset a defined
benefit minimum by contributions (other than Pre-Tax and
Syncor Match Contributions) made to this Plan.
15.3 Special Vesting
If the Plan becomes Top-Heavy after the Effective Date, vesting for
all Employees shall thereafter be accelerated to the extent the
following vesting schedule produces a greater vested percentage for
the Employee than the normal vesting schedule at any relevant time:
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Years of Vesting Vested
Service Percentage
------- ----------
Less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 70%
5 or more 100%
15.4 Adjustment to Combined Limits for Different Plans
For each Plan Year in which the Plan is Top-Heavy, "100%" shall be
substituted for "125%" in determining the Defined Benefit Fraction
and the Defined Contribution Fraction. This Subsection 15.4 shall
not apply to Plan Years beginning after December 31, 1999.
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16 PLAN ADMINISTRATION
16.1 Plan Delineates Authority and Responsibility
Plan fiduciaries include the Company, the Administrator, the
Committee and/or the Trustee, as applicable, whose specific duties
are delineated in this Plan and Trust. In addition, Plan fiduciaries
also include any other person to whom fiduciary duties or
responsibility is delegated with respect to the Plan. Any person or
group may serve in more than one fiduciary capacity with respect to
the Plan. To the extent permitted under ERISA Section 405, no
fiduciary shall be liable for a breach by another fiduciary.
16.2 Fiduciary Standards
Each fiduciary shall:
(a) Discharge his or her duties in accordance with this Plan and
Trust to the extent they are consistent with ERISA;
(b) Use that degree of care, skill, prudence and diligence 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;
(c) Act with the exclusive purpose of providing benefits to
Participants and their Beneficiaries, and defraying reasonable
expenses of administering the Plan;
(d) Diversify Plan investments, to the extent such fiduciary is
responsible for directing the investment of Plan assets, so as
to minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so; and
(e) Treat similarly situated Participants and Beneficiaries in a
uniform and nondiscriminatory manner.
16.3 Company is ERISA Plan Administrator
The Company is the "plan administrator," within the meaning of ERISA
Section 3(16), which is responsible for compliance with all
reporting and disclosure requirements, except those that are
explicitly the responsibility of the Trustee under applicable law.
The Administrator and/or Committee shall have any necessary
authority to carry out such functions through the actions of the
Administrator and/or the Committee.
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16.4 Administrator's Authority
The Administrator shall have the discretionary authority to construe
this Plan and Trust, other than the provisions which relate to the
Trustee, and to do all things necessary or convenient to effect the
intent and purposes thereof, whether or not such powers are
specifically set forth in this Plan and Trust. Actions taken in good
faith by the Administrator shall be conclusive and binding on all
interested parties, and shall be given the maximum possible
deference allowed by law. In addition to the duties listed elsewhere
in this Plan and Trust, the Administrator's authority shall include,
but not be limited to, the discretionary authority to:
(a) Determine who is eligible to participate, if a contribution
qualifies as a rollover contribution, the allocation of
Contributions, and the eligibility for loans, in-service
withdrawals and distributions;
(b) Recognize for eligibility and vesting purposes an Eligible
Employee's prior service with an entity whose assets are
acquired by the Company, a Subsidiary or a Related Company;
(c) Provide each Participant with a summary plan description no
later than 90 days after he or she has become a Participant
[or such other period permitted under ERISA Section
104(b)(1)], as well as informing each Participant of any
material modification to the Plan in a timely manner;
(d) Make a copy of the following documents available to
Participants during normal work hours: this Plan and any
separate trust agreement as to the Trust (including subsequent
amendments), all annual and interim reports of the Trustee
related to the entire Plan, the latest annual report and the
summary plan description;
(e) Determine the fact of a Participant's death and of any
Beneficiary's right to receive the deceased Participant's
interest based upon such proof and evidence as it deems
necessary;
(f) Establish and review at least annually a funding policy
bearing in mind both the short-run and long-run needs and
goals of the Plan. To the extent Participants may direct their
own investments, the funding policy shall focus on which
Investment Funds are available for Participants to use; and
(g) Adjudicate claims pursuant to the claims procedure described
in Section 20.
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16.5 Advisors May be Retained
The Administrator may retain such agents and advisors (including
attorneys, accountants, actuaries, consultants, record keepers,
investment counsel and administrative assistants) as it considers
necessary to assist it in the performance of its duties. The
Administrator shall also comply with the bonding requirements of
ERISA Section 412.
16.6 Delegation of Administrator's Duties
The Company, as Administrator of the Plan, has appointed a Committee
to administer the Plan on its behalf. The Company shall provide the
Trustee with the names and specimen signatures of any persons
authorized to serve as Committee members and act as or on its
behalf. Any Committee member appointed by the Company shall serve at
the pleasure of the Company, but may resign by written notice to the
Company. Committee members shall serve without compensation from the
Plan for such services. Except to the extent that the Company
otherwise provides, any delegation of duties to a Committee shall
carry with it the full discretionary authority of the Administrator
to complete such duties.
16.7 Committee Operating Rules
(a) Actions of Majority. Any act delegated by the Company to the
Committee may be done by a majority of its members. The
majority may be expressed by a vote at a meeting or in writing
without a meeting, and a majority action shall be equivalent
to an action of all Committee members.
(b) Meetings. The Committee shall hold meetings upon such notice,
place and times as it determines necessary to conduct its
functions properly.
(c) Reliance by Trustee. The Committee may authorize one or more
of its members to execute documents on its behalf and may
authorize one or more of its members or other individuals who
are not members to give written direction to the Trustee in
the performance of its duties. The Committee shall provide
such authorization in writing to the Trustee with the name and
specimen signatures of any person authorized to act on its
behalf. The Trustee shall accept such direction and rely upon
it until notified in writing that the Committee has revoked
the authorization to give such direction. The Trustee shall
not be deemed to be on notice of any change in the membership
of the Committee, the parties authorized to direct the Trustee
in the performance of its duties, or the duties delegated to
and by the Committee until notified in writing.
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16.8 Multiple Employer Plan Requirements
(a) If two or more Employers who are not aggregated pursuant to
Section 414 of the Code contribute to the Plan, and the Plan
therefore becomes subject to Section 413(c) of the Code, the
following requirements shall apply notwithstanding any other
provision of the Plan:
(1) The annual Compensation limit in Subsection 1.13 shall
be applied as if each Contributing Employer had
maintained a separate plan.
(2) The amount of each Contributing Employer's Syncor Match
Contributions, Syncor Stock Bonus Contributions, Syncor
Cash Bonus Contributions and Syncor Booster
Contributions, and the allocation of such contributions,
shall be determined as if each Contributing Employer had
maintained a separate plan.
(3) Forfeitures shall be accounted for separately for each
Contributing Employer. To the extent expenses are
charged against forfeitures pursuant to Subsections 6.5,
9.4 and 9.6, the forfeitures attributable to each
Contributing Employer's Participants shall bear such
expenses on a pro rata basis, determined as of the time
each such expense is charged. Where forfeitures are
allocated rather than being used to pay expenses, such
allocation shall be determined as if each Contributing
Employer had maintained a separate plan.
(4) The ACP Test and the ADP Test in Subsection 13.2 shall
be applied as if each Contributing Employer maintained a
separate plan.
(5) Eligibility under Section 2 and vesting under Section 9
shall be determined as if all Contributing Employers
were a single entity.
(6) The Annual Addition limits of Subsection 14.2 with
respect to each Participant shall be determined by
taking into account Annual Additions for the benefit of
such Participant which are attributable to all
Contributing Employers, and for this purpose
Compensation paid to such Participant from all
Contributing Employers shall be aggregated.
(7) For purposes of the exclusive benefit requirements of
Section 401(a) of the Code, all Participants shall be
treated as employees of each Contributing Employer.
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(8) The Top-heavy Plan requirements in Section 15 shall be
determined separately for each Contributing Employer.
(b) For purposes of this Subsection 16.8, the term "Contributing
Employer" means (1) collectively, each group of Employers
which is aggregated pursuant to Section 414 of the Code and
(2) each Employer which is not so aggregated with any other
Employer.
16.9 Veterans' Rights
Notwithstanding any provision of this Plan to the contrary,
effective December 12, 1994, contributions, benefits and service
credit with respect to qualified military service shall be provided
in accordance with Section 414(u) of the Code.
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17 MANAGEMENT OF INVESTMENTS
17.1 In General
All Plan assets shall be held by the Trustee in trust, in accordance
with those provisions of this Plan and Trust which relate to the
Trustee, and subject to Subsection 19.10, for use in providing Plan
benefits and paying Plan expenses not paid directly by the Employer.
Plan benefits will be drawn solely from the Trust and paid by the
Trustee as directed by the Administrator. Notwithstanding the
preceding sentence, the Administrator may appoint, with the approval
of the Trustee, another trustee to hold and administer Plan assets
which do not meet the requirements of Subsection 17.2.
17.2 Investment Funds
(a) The Administrator is hereby granted authority to direct the
Trustee to invest Trust assets in one or more Investment Funds
or in Company Stock. The number and composition of Investment
Funds may be changed from time to time, in writing, without
the necessity of amending this Plan and Trust document. The
Trustee may establish reasonable limits on the number of
Investment Funds as well as the acceptable assets for any such
Investment Fund. Each of the Investment Funds may be comprised
of any of the following:
(1) Shares of a registered investment company, whether or
not the Trustee or any of its affiliates is an advisor
to, or other service provider to, such company;
(2) Collective investment funds maintained by the Trustee,
or any other fiduciary to the Plan, which are available
for investment by trusts which are qualified under Code
Sections 401(a) and 501(a);
(3) Individual equity and fixed income securities which are
readily tradeable on the open market;
(4) Guaranteed investment contracts issued by a bank or
insurance company; and
(5) Interest-bearing deposits of the Trustee.
(b) Any Investment Fund assets invested in a collective investment
fund, shall be subject to all the provisions of the
instruments establishing and governing such fund. These
instruments, including any subsequent amendments, are
incorporated herein by reference.
- 66 -
17.3 Authority to Hold Cash
The Trustee shall have the authority to cause the investment manager
of each Investment Fund to maintain sufficient deposit or money
market type assets in each Investment Fund to handle the Fund's
liquidity and disbursement needs. Each Participant's and
Beneficiary's Sweep Account, which is used to hold assets pending
investment or disbursement, shall consist of interest bearing
deposits of the Trustee.
17.4 Trustee to Act Upon Instructions
The Trustee shall carry out instructions to invest assets in the
Investment Funds or Company Stock as soon as practicable after such
instructions are received from the Administrator, Participants, or
Beneficiaries. Such instructions shall remain in effect until
changed by the Administrator, Participants or Beneficiaries.
17.5 Administrator Has Right to Vote Registered Investment Company Shares
The Administrator shall be entitled to vote proxies or exercise any
shareholder rights relating to shares held on behalf of the Plan in
a registered investment company. Notwithstanding, the authority to
vote proxies and exercise shareholder rights related to such shares
held in a Custom Fund is vested as provided otherwise in Section 17.
17.6 Custom Fund Investment Management
(a) The Administrator may designate, with the consent of the
Trustee, an investment manager for any Investment Fund
established by the Trustee solely for Participants of this
Plan (a "Custom Fund"). The investment manager may be the
Administrator, Trustee or an investment manager pursuant to
ERISA Section 3(38). The Administrator shall advise the
Trustee in writing of the appointment of an investment manager
and shall cause the investment manager to acknowledge to the
Trustee in writing that the investment manager is a fiduciary
to the Plan.
(b) A Custom Fund shall be subject to the following:
(1) Guidelines. Written guidelines, acceptable to the
Trustee, shall be established for a Custom Fund. If a
Custom Fund consists solely of collective investment
funds or shares of a registered investment company (and
sufficient deposit or money market type assets to handle
the Fund's liquidity and disbursement needs), its
underlying instruments shall constitute the guidelines.
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(2) Authority of Investment Manager. The investment manager
of a Custom Fund shall have the authority to vote or
execute proxies, exercise shareholder rights, manage,
acquire and dispose of Trust assets.
(3) Custody and Trade Settlement. Unless otherwise agreed to
by the Trustee, the Trustee shall maintain custody of
all Custom Fund assets and be responsible for the
settlement of all Custom Fund trades. For purposes of
this Subsection 17.6, shares of a collective investment
fund, shares of a registered investment company and
guaranteed investment contracts issued by a bank or
insurance company, shall be regarded as the Custom Fund
assets instead of the underlying assets of such
instruments.
(4) Limited Liability of Co-Fiduciaries. Neither the
Administrator nor the Trustee shall be obligated to
invest or otherwise manage any Custom Fund assets for
which the Trustee or Administrator is not the investment
manager nor shall the Administrator or Trustee be liable
for acts or omissions with regard to the investment of
such assets except to the extent required by ERISA.
17.7 Authority to Segregate Assets
The Committee may direct the Trustee to split an Investment Fund
into two or more funds in the event any assets in the Fund are
illiquid or the value is not readily determinable. In the event of
such segregation, the Committee shall give instructions to the
Trustee on what value to use for the split-off assets, and the
Trustee shall not be responsible for confirming such value.
17.8 Investment in Company Stock
A Participant's Stock Investment Company Accounts and Stock
Investment Participant Account shall be entirely invested in shares
of Company Stock except to the extent of any deposit or money market
type assets pending investment in shares of Company Stock.
17.9 Voting and Tendering Company Stock
(a) Allocated Shares. Each Participant or Beneficiary shall be
entitled to instruct the Trustee as to the voting or tendering
of any full or partial shares of Company Stock held on his or
her behalf. Prior to such voting or tendering of Company
Stock, each Participant or Beneficiary shall receive a copy of
the proxy solicitation or other material relating to such vote
or tender decision and a blank form for the Participant or
Beneficiary to complete which confidentially instructs the
Trustee to
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vote or tender such shares in the manner indicated by the
Participant or Beneficiary. A Participant's or Beneficiary's
failure to instruct the Trustee with respect to a tender offer
shall be regarded as an instruction not to tender his or her
shares of Company Stock. The Administrator shall instruct the
Trustee with respect to how to vote any shares for which
instructions are not received from Participants or
Beneficiaries. The Trustee shall act with respect to such
shares as instructed.
(b) Unallocated Shares. The Administrator shall instruct the
Trustee with respect to how to vote or tender any full or
partial shares of Company Stock held in the Forfeiture Account
and the Loan Suspense Account.
17.10 Registration and Disclosure for Company Stock
The Administrator shall be responsible for determining the
applicability (and, if applicable, complying with) the requirements
of the Securities Act of 1933, as amended, the California Corporate
Securities Law of 1968, as amended, and any other applicable
securities laws. The Administrator shall also specify what
restrictive legend or transfer restriction, if any, is required to
be set forth on the certificates for the securities and the
procedure to be followed by the Trustee to effectuate a resale of
such securities.
17.11 Investment of Amounts Credited to Syncor Cash Bonus Accounts
Notwithstanding Subsections 17.1 to 17.10, the Trustee shall have
the sole authority to invest amounts credited to Syncor Cash Bonus
Accounts and Participants for whom such accounts have been
established shall not give investment instructions as to such
accounts to the Trustee. The Trustee shall, in its discretion,
invest and reinvest such portion of the Trust as is attributable to
the amounts credited to Syncor Cash Bonus Accounts, without
distinction between principal and income, in common and preferred
stocks, bonds, notes, debentures, securities convertible into common
stock, interest-bearing accounts, insurance contracts, certificates
of deposit (including if the Trustee is a bank, those within its own
banking department), or in such other property, real or personal,
situated within the United States, as the Trustee shall deem
advisable, subject to the other provisions of the Plan. The Trustee
in its discretion may hold in cash such portion of the Trust
attributable to the amounts credited to Syncor Cash Bonus Accounts
as shall be reasonable under the circumstances, pending investment,
payment of expenses or distribution of benefits from such accounts.
This Subsection 17.11 is effective January 1, 1999.
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18 LEVERAGED TRANSACTIONS
18.1 Authority to Use Leverage
The Plan may be used to provide a method of corporate finance to the
Company. The provisions of this Section 18 shall be effective if an
Acquisition Loan is made and shall continue in effect for the
duration of the period an Acquisition Loan is outstanding.
18.2 Acquisition Loans
(a) The Administrator, with the approval of the Company's board of
directors, may direct the Trustee to incur an Acquisition
Loan. An installment obligation incurred in connection with
the purchase of Company Stock shall be treated as an
Acquisition Loan, and all indebtedness incurred to acquire
Company Stock in a single transaction shall be treated as one
Acquisition Loan.
(b) An Acquisition Loan shall be for a specific term, shall bear a
reasonable rate of interest and shall not be payable on demand
except in the event of default. An Acquisition Loan may be
secured by a pledge of the Company Stock so acquired or
acquired with the proceeds of a prior Acquisition Loan which
is being refinanced. No other Trust assets may be pledged as
collateral for an Acquisition Loan, and no lender shall have
recourse against Trust assets other than any Financed Shares
remaining subject to pledge. The Acquisition Loan must provide
for a transfer of Trust assets to the lender on default only
upon and to the extent of the failure of the Trust to meet the
payment schedule of the Acquisition Loan.
(c) Any pledge of Financed Shares must provide for the release of
the shares so pledged as payments on the Acquisition Loan are
made by the Trustee and such Financed Shares are allocated to
Participants' Accounts under Subsection 18.5.
18.3 Acquisition Loan Payments
(a) Payments of principal and/or interest on any Acquisition Loan
shall be made by the Trustee, as directed by the
Administrator, from Employer Contributions as described in
Section 5 paid in cash to enable the trust to repay such
Acquisition Loan, from earnings attributable to such while
held in the Loan Suspense Account and from any cash dividends
received by the Trust on unallocated Financed Shares
attributable to such Acquisition Loan. The payments made with
respect to an Acquisition Loan for a Plan Year must not exceed
the sum of the Employer Contributions, earnings and dividends
described
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in the preceding sentence, for that Plan Year and prior Plan
Years, less the amount of such payments for prior Plan Years.
(b) If the Company (or an Employer) is the lender with respect to
an Acquisition Loan, Employer Contributions as described in
Section 5 may be paid in the form of cancellation of
indebtedness under the Acquisition Loan. If the Company (or an
Employer) is not the lender with respect to an Acquisition
Loan, the Company (or an Employer) may elect to make payments
on the Acquisition Loan directly to the lender and to treat
such payments as Employer Contributions as described in
Section 5.
(c) If the Trustee is unable to make payments of principal and/or
interest on an Acquisition Loan when due from the sources of
funds described in the preceding paragraphs, the
Administrator, with the approval of the Company's board of
directors, may direct the Trustee either to sell any
unallocated Financed Shares or to obtain a new Acquisition
Loan in an amount sufficient to make such payments.
(d) Notwithstanding the other provisions of this Subsection 18.3,
the Administrator may direct the Trustee to apply the proceeds
from the sale of unallocated Financed Shares to repay the
Acquisition Loan incurred to finance the purchase of such
Financed Shares in the event of the sale of the Company or the
termination of the Plan or if the Plan ceases to be an
employee stock ownership plan under Code Section 4975(e)(7).
18.4 Employer Contributions
Employer Contributions shall be paid by the Employer in such amounts
no less than sufficient to make all payments of principal and
interest which are required during the Plan Year in accordance with
the terms of the Acquisition Loan, net of earnings attributable to
Employer Contributions while held in the Loan Suspense Account and
from any cash dividends received by the Trust on unallocated
Financed Shares attributable to such Acquisition Loan and used to
repay such Acquisition Loan. Employer Contributions shall be paid by
the Employer no later than at such times and in such amounts
necessary to make all payments of principal and interest which are
required during the Plan Year in accordance with the terms of the
Acquisition Loan.
18.5 Allocation of Financed Shares
Financed Shares shall initially be credited to the Loan Suspense
Account. The Financed Shares will be allocated to the Accounts of
Participants as Employer Contributions described in Section 5 only
as payments on the Acquisition Loan are made by the Trustee and as
soon as practicable thereafter in accordance with the frequency
described for such Employer
- 71 -
Contributions. The number of Financed Shares to be released from the
Loan Suspense Account for allocation to Participants' Accounts shall
be determined by the Administrator or the Trustee, if authorized by
the Administrator and agreed to by the Trustee, each time a payment
is made as follows:
(a) Principal/Interest Method. The number of Financed Shares held
in the Loan Suspense Account immediately before the release
for the current payment shall be multiplied by a fraction. The
numerator of the fraction shall be the amount of principal
and/or interest paid on the Acquisition Loan for the current
payment. The denominator of the fraction shall be the sum of
the numerator plus the total payments of principal and
interest on that Acquisition Loan to be paid for all future
payments. The number of future payments must be definitely
ascertainable and must be determined without taking into
account any possible extension or renewal period. For this
purpose, the interest to be paid in future payments is to be
computed by using the interest rate in effect for the current
payment.
(b) Principal-Only Method. The number of Financed Shares held in
the Loan Suspense Account immediately before the release for
the current payment shall be multiplied by a fraction. The
numerator of the fraction shall be the amount of principal
paid on the Acquisition Loan for the current payment. The
denominator of the fraction shall be the sum of the numerator
plus the total payments of principal on that Acquisition Loan
to be paid for all future payments. The number of future
payments must be definitely ascertainable and must be
determined without taking into account any possible extension
or renewal period. This method may be used only to the extent
that:
(1) The Acquisition Loan provides for annual payments of
principal and interest at a cumulative rate that is not
less rapid at any time than level annual payments of
such amounts for ten years;
(2) Interest included in any payment on the Acquisition Loan
is determined to be interest under standard loan
amortization tables; and
(3) The entire duration of the Acquisition Loan repayment
period does not exceed ten years, even in the event of a
renewal, extension or refinancing of the Acquisition
Loan.
18.6 Net Income or Loss and Dividends
The determination of the net income or loss of the Trust shall not
take into account any interest paid by the Trust under an
Acquisition Loan. Any cash
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dividends received on any Financed Shares credited to the Loan
Suspense Account shall be included in the computation of the net
income or loss of the Trust. Any stock dividends received on
Financed Shares in the Loan Suspense Account shall be credited to
the Loan Suspense Account.
18.7 Accounting for Transactions
With regard to an Acquisition Loan, the Administrator or the
Trustee, if authorized by the Administrator and agreed to by the
Trustee, shall establish accounting procedures to account for (1)
Financed Shares attributable to such Acquisition Loan, (2) Employer
Contributions as described in Section 5 paid in cash or in the form
of cancellation of indebtedness to enable the trust to repay such
Acquisition Loan, (3) earnings attributable to Employer
Contributions described in (2) and used to repay such Acquisition
Loan and (4) any cash dividends received by the Trust on unallocated
Financed Shares attributable to such Acquisition Loan and used to
repay such Acquisition Loan.
18.8 Allocation Limitation
Any Employer Contributions described in Section 5 which are used by
the Trust (not later than the Employer's federal tax filing date,
including extensions, for deducting such Contribution) to pay
interest on an Acquisition Loan and any Financed Shares which are
allocated as forfeitures shall not be included as Annual Additions
under Subsection 14.1; provided, however, that the provisions of
this Subsection 18.8 shall be applicable for any Plan Year only if
not more than one-third of the Employer Contributions described in
Section 5 applied to pay principal and/or interest on an Acquisition
Loan are allocated to Participants who are Highly Compensated
Employees.
18.9 Forfeitures
If an Employer Contribution Account subject to vesting consists of
Company Stock representing Financed Shares, the Company Stock
representing Financed Shares shall be forfeited under Subsection 9.4
only after all other Company Stock held in such Account has been
forfeited.
18.10 Restrictions
Except as provided in Subsection 20.6, Financed Shares held or
distributed by the Trust may be subject to a put, call or other
option, or buy-sell or similar arrangement even if the Plan is not
then an employee stock ownership plan under Section 4975(e)(7) of
the Code.
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19 TRUST ADMINISTRATION
19.1 Trustee to Construe Trust
The Trustee shall have the discretionary authority to construe
reasonably those provisions of this Plan and Trust which relate to
the Trustee and to do all things necessary or convenient to the
administration of the Trust, whether or not such powers are
specifically set forth in this Plan and Trust. Actions taken in good
faith by the Trustee shall be conclusive and binding on all
interested parties, and shall be given the maximum possible
deference allowed by law.
19.2 Trustee To Act As Owner of Trust Assets
Subject to the specific conditions and limitations set forth in this
Plan and Trust, the Trustee shall have all the power, authority,
rights and privileges of an absolute owner of the Trust assets and,
not in limitation but in amplification of the foregoing, may:
(a) Receive, hold, manage, invest and reinvest, sell, tender,
exchange, dispose of, encumber, hypothecate, pledge, mortgage,
lease, grant options respecting, repair, alter, insure, or
distribute any and all property in the Trust;
(b) Borrow money, participate in reorganizations, pay calls and
assessments, vote or execute proxies, exercise subscription or
conversion privileges, exercise options and register any
securities in the Trust in the name of the nominee, in federal
book entry form or in any other form as will permit title
thereto to pass by delivery;
(c) Renew, extend the due date, compromise, arbitrate, adjust,
settle, enforce or foreclose, by judicial proceedings or
otherwise, or defend against the same, any obligations or
claims in favor of or against the Trust; and
(d) Lend, through a collective investment fund, any securities
held in such collective investment fund to brokers, dealers or
other borrowers and to permit such securities to be
transferred into the name and custody and be voted by the
borrower or others.
19.3 United States Indicia of Ownership
The Trustee shall not maintain the indicia of ownership of any Trust
assets outside the jurisdiction of the United States, except as
authorized by ERISA Section 404(b).
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19.4 Tax Withholding and Payment
(a) Withholding. The Trustee shall calculate and withhold federal
(and, if applicable, state) income taxes with regard to any
Eligible Rollover Distribution that is not paid as a Direct
Rollover in accordance with the Participant's withholding
election or as required by law if no election is made or the
election is less than the amount required by law. With regard
to any taxable distribution that is not an Eligible Rollover
Distribution, the Trustee shall calculate and withhold federal
(and, if applicable, state) income taxes in accordance with
the Participant's withholding election or as required by law
if no election is made.
(b) Taxes Due From Investment Funds. The Trustee shall pay from
the Investment Fund any taxes or assessments imposed !,by any
taxing or governmental authority on such Fund or its income,
including related interest and penalties.
19.5 Trust Accounting
(a) Annual Report. Within 60 days (or other reasonable period)
following the close of the Plan Year, the Trustee shall
provide the Administrator with an annual accounting of Trust
assets and information to assist the Administrator in meeting
ERISA's annual reporting and audit requirements.
(b) Periodic Reports. The Trustee shall maintain records and
provide sufficient reporting to allow the Administrator to
properly monitor the Trust's assets and activity.
(c) Administrator Approval. Approval of any Trustee accounting
will automatically occur 90 days after such accounting has
been received by the Administrator, unless the Administrator
files a written objection with the Trustee within such time
period. Such approval shall be final as to all matters and
transactions stated or shown therein and binding upon the
Administrator.
19.6 Valuation of Certain Assets
If the Trustee determines the Trust holds any asset which is not
readily tradable and listed on a national securities exchange
registered under the Securities Exchange Act of 1934, as amended,
the Trustee may engage a qualified independent appraiser to
determine the fair market value of such property, and the appraisal
fees shall be paid from the Investment Fund containing the asset.
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19.7 Legal Counsel
The Trustee may consult with legal counsel of its choice, including
counsel for the Employer or counsel of the Trustee, upon any
question or matter arising under this Plan and Trust. When relied
upon by the Trustee, the opinion of such counsel shall be evidence
that the Trustee has acted in good faith.
19.8 Fees and Expenses
The Trustee's fees for its services as Trustee shall be such as may
be mutually agreed upon by the Company and the Trustee. Trustee fees
and all reasonable expenses of counsel and advisors retained by the
Trustee shall be paid in accordance with Section 6.
19.9 Trustee Duties and Limitations
(a) In addition to the duties described in this Section 19, unless
otherwise agreed to by the Trustee, the Trustee's duties shall
be confined to construing the terms of the Plan and Trust as
they relate to the Trustee, receiving funds on behalf of and
making payments from the Trust, safeguarding and valuing Trust
assets, and investing and reinvesting Trust assets in the
Investment Funds and shares Company Stock as directed by the
Administrator or Participants.
(b) The Trustee shall have no duty or authority to ascertain
whether Contributions are in compliance with the Plan, to
enforce collection or to compute or verify the accuracy or
adequacy of any amount to be paid to it by the Employer. The
Trustee shall not be liable for the proper application of any
part of the Trust with respect to any disbursement made at the
direction of the Administrator.
19.10 Applicability of T. Rowe Price Trust Agreement and North Star Trust
Agreement
Effective May 1, 2000 the assets of the Plan held pursuant to the
North Star Trust Agreement shall be subject to the provisions of
said agreement in addition to the provisions of the Plan, and in the
event of any conflict between the provisions of the Plan and the
provisions of the North Star Trust Agreement as to such assets, the
provisions of the North Star Trust Agreement shall be controlling.
Effective May 1, 2000 the assets of the Plan held pursuant to the T.
Rowe Price Trust Agreement shall be subject to the provisions of
said agreement in addition to the provisions of the Plan, and in the
event of any conflict between the provisions of the Plan and the
provisions of the T. Rowe Price Trust Agreement as to such assets,
the provisions of the T. Rowe Price Trust Agreement shall be
controlling; provided, further, that with respect to T. Rowe Price
Trust Company, no
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provision of the Plan shall be construed so as to provide in T. Rowe
Price Trust Company any discretionary power, function or
responsibility, nor shall any provision of the Plan be construed in
a manner which would deem T. Rowe Price Trust Company to be other
than a directed trustee pursuant to the provisions of Section
403(a)(1) of ERISA.
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20 RIGHTS, PROTECTION, CONSTRUCTION AND JURISDICTION
20.1 Plan Does Not Affect Employment Rights
The Plan does not provide any employment rights to any Employee. The
Employer expressly reserves the right to discharge an Employee at
any time, with or without cause, without regard to the effect such
discharge would have upon the Employee's interest in the Plan.
20.2 Limited Return of Contributions
(a) Except as otherwise provided in this Subsection 20.2, (1) Plan
assets shall not revert to the Employer nor be diverted for
any purpose other than the exclusive benefit of Participants
or their Beneficiaries; and (2) a Participant's vested
interest shall not be subject to divestment. As provided in
ERISA Section 403(c)(2), the actual amount of a Contribution,
or a portion thereof, made by the Employer (or the current
value of the Contribution, or a portion thereof, if a net loss
has occurred) may revert to the Employer if:
(1) Such Contribution is made by reason of a mistake of
fact; or
(2) Such Contribution is not deductible under Code Section
404 (such Contributions being hereby conditioned upon
such deductibility) in the taxable year of the Employer
for which the Contribution is made.
(b) The maximum amount that may revert to the Employer in the case
of Subsections 20.2(a)(1) or (2) is the excess of the amount
contributed, over as relevant, the amount that would have been
contributed had no mistake of fact occurred or the amount that
would have been contributed had the Contribution been limited
to the amount that is determined to be deductible. Earnings
attributable to such amount may not be returned to the
Employer, but losses attributable to such amount must reduce
the amount to be returned to the Employer. Furthermore, if the
withdrawal of the amount attributable to the mistaken or
nondeductible Contribution would cause a Participant's Account
balance to be reduced to less than what his or her Account
balance would have been had the mistaken or nondeductible
amount not been contributed, then the amount to be returned to
the Employer must be limited so as to avoid such reduction.
(c) The maximum amount that may revert to the Employer in the case
of Subsection 20.2(a)(2) is all Plan assets attributable to
Contributions made by the Employer.
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(d) The reversion to the Employer must be made (if at all) within
one year of the mistaken payment of the Contribution, the date
of denial of qualification, or the date of disallowance of
deduction, as the case may be. A Participant shall have no
rights under the Plan with respect to any such reversion.
20.3 Assignment and Alienation
(a) As provided by Code Section 401(a)(13) and to the extent not
otherwise required by law, no benefit provided by the Plan may
be anticipated, assigned or alienated, except:
(1) To create, assign or recognize a right to any benefit
with respect to a Participant pursuant to a QDRO; or
(2) To use a Participant's vested Account balance as
security for a loan from the Plan which is permitted
pursuant to Code Section 4975.
(b) The prohibition on anticipation, assignment and alienation in
Subsection 20.3(a) shall not apply to any offset of a
Participant's benefits provided under the Plan against an
amount that he is ordered or required to pay to the Plan if:
(1) The order or requirement to pay arises (i) under a
judgment of conviction for a crime involving the Plan;
(ii) under a civil judgment (including a consent order
or decree) entered by a court in an action brought in
connection with a violation (or alleged violation) of
Part 4 of Subtitle B of Title I of ERISA; or (iii)
pursuant to a settlement agreement between the Secretary
of Labor and such Participant, or a settlement agreement
between the Pension Benefit Guaranty Corporation and
such Participant, in connection with a violation (or
alleged violation) of Part 4 of such subtitle by a
fiduciary or any other person;
(2) Such judgment, order, decree, or settlement agreement
expressly provides for the offset of all or part of the
amount ordered or required to be paid to the Plan
against such Participant's benefits provided under the
Plan; and
(3) In a case in which the survivor annuity requirements of
Code Section 401(a)(11) apply with respect to
distributions from the Plan to such Participant, if such
Participant has a spouse at the time at which such
offset is to be made, (i) either such spouse has
consented in writing to such offset and such consent is
witnessed by a notary public or representative of the
Plan [or it is established to the satisfaction of a Plan
representative that
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such consent may not be obtained by reason of
circumstances described in Code Section 417(a)(2)(B)],
or an election to waive the right of such spouse to
either a "qualified joint and survivor annuity" [within
the meaning of Code Section 417(b)] or a "qualified
preretirement survivor annuity" [within the meaning of
Code Section 417(c)] is in effect in accordance with the
requirements of Code Section 417(a); (ii) such spouse is
ordered or required in such judgment, order, decree or
settlement to pay an amount to the Plan in connection
with a violation of Part 4 of such subtitle; or (iii) in
such judgment, order, decree, or settlement, such spouse
retains the right to receive the survivor annuity under
such a qualified joint and survivor annuity provided
pursuant to Code Section 401(a)(11)(A)(i) and under such
a qualified preretirement survivor annuity provided
pursuant to Code Section 401(a)(11)(A)(ii), determined
in accordance with Code Section 401(a)(13)(D).
This Subsection 20.3(b) shall apply to judgments, orders and
decrees issued, and settlement agreements entered into, on or
after August 5, 1997.
20.4 Facility of Payment
If a Plan benefit is due to be paid to a minor or if the
Administrator reasonably believes that any payee is legally
incapable of giving a valid receipt and discharge for any payment
due him or her, the Administrator shall have the payment of the
benefit, or any part thereof, made to the person (or persons or
institution) whom it reasonably believes is caring for or supporting
the payee, unless it has received due notice of claim therefor from
a duly appointed guardian or conservator of the payee. Any payment
shall to the extent thereof, be a complete discharge of any
liability under the Plan to the payee.
20.5 Reallocation of Lost Participant's Accounts
If the Administrator cannot locate a person entitled to payment of a
Plan benefit after a reasonable search, the Administrator may at any
time thereafter treat such person's Account as forfeited and
allocate such amount as Contributions as described in Section 5 as
soon as is administratively feasible or as otherwise provided in
Section 9. If such person subsequently presents the Administrator
with a valid claim for the benefit, such person shall be paid the
amount treated as forfeited, plus the interest that would have been
earned in the Sweep Account to the date of determination. The
Administrator shall pay the amount through an additional Employer
Contribution or direct the Trustee to pay the amount from the
Forfeiture Account.
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20.6 Put Options
(a) In the event that a Participant receives a distribution of
Company Stock as provided in Section 12 that is not readily
tradeable on an established market at the time of receipt, he
or she shall have the option to sell the Company Stock to the
Company at any time during two option periods at the then Fair
Market Value of the Company Stock by written notice to the
Company. The first option period shall commence at the time
the Company Stock is distributed and shall extend for 60 days
thereafter. The second option period shall commence the later
of the date six months after the expiration of the first
option period or the first day of the Plan Year following the
Plan Year in which the first option period expired and shall
extend for 60 days thereafter.
(b) Payment for Company Stock distributed as all or part of a
single lump sum distribution shall commence no later than 30
days after the exercise of the put option and at the option of
the Company may be made in a single lump sum or in
substantially equal annual installments over a period not to
exceed 5 years. The Company shall provide adequate security
and pay reasonable interest on any unpaid amounts as
determined by the Administrator. Payment for Company Stock
distributed as all or part of an installment distribution
shall be made in a single lump sum no later than 30 days after
the exercise of the put option for each installment
distribution.
20.7 Claims Procedure
(a) Right to Make Claim. An interested party who disagrees with
the Administrator's determination of his or her right to Plan
benefits must submit a written claim and exhaust this claim
procedure before legal recourse of any type is sought. The
claim must include the important issues the interested party
believes support the claim. The Administrator, pursuant to the
authority provided in this Plan, shall either approve or deny
the claim.
(b) Process for Denying a Claim. The Administrator's partial or
complete denial of an initial claim must include an
understandable, written response covering (1) the specific
reasons why the claim is being denied (with reference to the
pertinent Plan provisions) and (2) the steps necessary to
perfect the claim and obtain a final review.
(c) Appeal of Denial and Final Review. The interested party may
make a written appeal of the Administrator's initial decision,
and the Administrator shall respond in the same manner and
form as prescribed for denying a claim initially.
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(d) Time Frame. The initial claim, its review, appeal and final
review shall be made in a timely fashion, subject to the
following timetable:
Days to Respond
Action From Last Action
Administrator determines benefit NA
Interested party files initial request 60 days
Administrator's initial decision 90 days
Interested party requests final review 60 days
Administrator's final decision 60 days
However, the Administrator may take up to twice the maximum
response time for its initial and final review if it provides
an explanation within the normal period of why an extension is
needed and when its decision will be forthcoming.
20.8 Construction
Headings are included for reading convenience. The text shall
control if any ambiguity or inconsistency exists between the
headings and the text. The singular and plural shall be interchanged
wherever appropriate. References to Participant shall include
Beneficiary when appropriate and even if not otherwise already
expressly stated.
20.9 Jurisdiction and Severability
The Plan and Trust shall be construed, regulated and administered
under ERISA and other applicable federal laws and, where not
otherwise preempted, by the laws of the State of California.
Effective January 1, 1998, the preceding sentence shall read as
follows: "The Plan and Trust shall be construed, regulated and
administered under ERISA and other applicable federal laws and,
where not otherwise preempted, by the laws of the State of New
Jersey." Effective May 1, 2000, the Plan and Trust shall be
construed, regulated and administered under ERISA and other
applicable federal laws and, where not otherwise preempted, by the
laws of the State of California. If any provision of this Plan and
Trust shall become invalid or unenforceable, that fact shall not
affect the validity or enforceability of any other provision of this
Plan and Trust. All provisions of this Plan and Trust shall be so
construed as to render them valid and enforceable in accordance with
their intent.
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20.10 Indemnification by Employer
The Employers hereby agree to indemnify all Plan fiduciaries against
any and all liabilities resulting from any action or inaction,
(including a Plan termination in which the Company fails to apply
for a favorable determination from the Internal Revenue Service with
respect to the qualification of the Plan upon its termination), in
relation to the Plan or Trust (1) including (without limitation)
expenses reasonably incurred in the defense of any claim relating to
the Plan or its assets, and amounts paid in any settlement relating
to the Plan or its assets, but (2) excluding liability resulting
from actions or inactions made in bad faith, or resulting from the
negligence or willful misconduct of the Trustee. The Company shall
have the right, but not the obligation, to conduct the defense of
any action to which this Subsection 20.10 applies. The Plan
fiduciaries are not entitled to indemnity from the Plan assets
relating to any such action.
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21 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION
21.1 Amendment
The Company reserves the right to amend this Plan and Trust at any
time, to any extent and in any manner it may deem necessary or
appropriate. The Company (and not the Trustee) shall be responsible
for adopting any amendments necessary to maintain the qualified
status of this Plan and Trust under Code Sections 401(a) and 501(a).
The Committee, acting in accordance with Subsection 16.6, shall have
the authority to adopt Plan and Trust amendments which have no
substantial adverse financial impact upon any Employer or the Plan.
All interested parties shall be bound by any amendment, provided
that no amendment shall:
(a) Become effective unless it has been adopted in accordance with
the procedures set forth in Subsection 21.5;
(b) Except to the extent permissible under ERISA and the Code,
make it possible for any portion of the Trust assets to revert
to an Employer or to be used for, or diverted to, any purpose
other than for the exclusive benefit of Participants and
Beneficiaries entitled to Plan benefits and to defray
reasonable expenses of administering the Plan;
(c) Decrease the rights of any Employee to benefits accrued
(including the elimination of optional forms of benefits) to
the date on which the amendment is adopted, or if later, the
date upon which the amendment becomes effective, except to the
extent permitted under ERISA and the Code; nor
(d) Permit an Employee to be paid the balance of his or her Fund
Deferrals Account and Syncor Stock Deferrals Account unless
the payment would otherwise be permitted under Code Section
401(k).
21.2 Merger
This Plan and Trust may not be merged or consolidated with, nor may
its assets or liabilities be transferred to, another plan unless
each Participant and Beneficiary would, if the resulting plan were
then terminated, receive a benefit just after the merger,
consolidation or transfer which is at least equal to the benefit
which would be received if either plan had terminated just before
such event.
21.2A Merger with Lafayette Plan
The Lafayette Plan shall be merged into this Plan as of the
Lafayette Plan Merger Date. In connection with such merger, and
effective as of the Lafayette Plan Merger Date:
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(a) All of the assets and liabilities of the Lafayette Plan shall
be deemed to be assets and liabilities of this Plan.
(b) Each Lafayette Plan Participant's benefits in the Lafayette
Plan shall be credited to his Lafayette Deferrals Account,
Lafayette Matching Account and Lafayette Rollover Account, as
the case may be.
(c) A Lafayette Plan Participant shall always be 100% vested in
his Lafayette Deferrals Account and Lafayette Rollover
Account, and shall be vested in his Lafayette Matching Account
in accordance with Subsection 9.2 as if such account was a
Syncor Match/Bonus Account.
(d) A Lafayette Plan Participant's Lafayette Deferrals Account,
Lafayette Matching Account and Lafayette Rollover Account
shall be considered Directed Investment Accounts subject to
the provisions of Section 7.
(e) Loans made to a Lafayette Plan Participant from the Lafayette
Plan shall be repaid to this Plan in accordance with their
respective terms and payments on such loans shall be credited
as follows:
(1) To such Participant's Lafayette Deferrals Account to the
extent such loans were made from his or her account in
the Lafayette Plan attributable to his or her salary
reduction contributions under Code Section 401(k);
(2) To such Participant's Lafayette Matching Account to the
extent such loans were made from his or her account in
the Lafayette Plan attributable to employer matching
contributions on his or her behalf.
(3) To such Participant's Lafayette Rollover Account to the
extent such loans were made from his or her account in
the Lafayette Plan attributable to rollover
contributions on his or her behalf.
(f) At such time as a Lafayette Plan Participant shall have
attained age 59-1/2, the Committee shall, at the election of
such Lafayette Plan Participant, direct the Trustee to
distribute all or a portion of the amounts credited to his or
her Lafayette Deferrals Account, Lafayette Matching Account
and Lafayette Rollover Account, but no such distribution shall
be made from any such Account prior to the time he or she is
100% vested in such Account.
(g) In the event a Lafayette Plan Participant is entitled to a
distribution of his or her Lafayette Deferrals Account,
Lafayette Matching Account or Lafayette Rollover Account,
payment may be made in accordance with Subsection 12.3 or in
monthly, quarterly, semiannual or annual
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cash installments over a period certain (with no life
contingencies) not extending beyond the life expectancy of
such Lafayette Plan Participant (or the life expectancy of
such Lafayette Plan Participant and his or her designated
Beneficiary). In order to provide such installment payments,
the Committee may (1) segregate the aggregate amount thereof
in a separate, federally insured savings account, certificate
of deposit in a bank or savings and loan association, money
market certificate or other liquid short-term security; or (2)
purchase a nontransferable annuity contract for a term certain
(with no life contingencies) providing for such payment. This
Subsection 21.2A(g) shall not apply as to distributions to a
Lafayette Plan Participant beginning on or after the 90th day
after the Committee has furnished such Lafayette Plan
Participant with a summary reflecting this Subsection 21.2A
and which satisfies the requirements of 29 C.F.R. Section
2520.104b-3. As of the date this Subsection 21.2A(g) shall not
apply as to distributions to a Lafayette Plan Participant, the
balance in his or her Lafayette Deferrals Account shall be
transferred to his or her Fund Deferrals Account and the
balance in his or her Lafayette Rollover Account shall be
transferred to his or her Rollover Account.
(h) A Lafayette Plan Participant's Lafayette Deferrals Account and
Lafayette Rollover Account shall be considered as if they were
a Fund Deferrals Account and a Rollover Account, respectively,
for purposes of Subsections 10.5 and 11.7.
(i) Any Beneficiary designation made by a Lafayette Plan
Participant prior to the Lafayette Plan Merger Date shall be
honored under this Plan, as to all benefits payable on account
of his or her death, provided that:
(1) Such designation satisfies the Spousal Consent
requirements of this Plan if the primary designated
Beneficiary is other than such Lafayette Plan
Participant's spouse; and
(2) Such designation has been delivered to the Committee
prior to such Participant's death.
Subsection 12.11 shall apply to all benefits payable on
account of the death of a Lafayette Plan Participant if no
proper Beneficiary designation is inn effect at the time of
his or her death, or if any Beneficiary designated by such
Lafayette Plan Participant is not in existence at the time of
his or her death.
21.3 Divestitures
(a) In the event of a sale by an Employer which is a corporation
of: (1) substantially all of the Employer's assets used in a
trade or business
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to an unrelated corporation, or (2) a sale of such Employer's
interest in a subsidiary to an unrelated entity or individual,
lump sum distributions shall be permitted from the Plan,
except as provided below, to Participants with respect to
Employees who continue employment with the corporation
acquiring such assets or who continue employment with such
subsidiary, as applicable.
(b) Notwithstanding Subsection 21.3(a), distributions shall not be
permitted if the purchaser agrees, in connection with the
sale, to be substituted as the Company as the sponsor of the
Plan or to accept a transfer of the assets and liabilities
representing the Participants' benefits into a plan of the
purchaser or a plan to be established by the purchaser.
21.4 Plan Termination
The Company may, at any time and for any reason, terminate the Plan
in accordance with the procedures set forth in Subsection 21.5, or
completely discontinue contributions. Upon either of these events,
or in the event of a partial termination of the Plan within the
meaning of Code Section 411 (d)(3), the Accounts of each affected
Employee who has not yet incurred a Break in Service shall be fully
vested. If no successor plan is established or maintained, lump sum
distributions will be made in accordance with the terms of the Plan
as in effect at the time of the Plan's termination or as thereafter
amended provided that a post-termination amendment will not be
effective to the extent that it violates Subsection 21.1 unless it
is required in order to maintain the qualified status of the Plan
upon its termination. The Trustee's and Employer's authority shall
continue beyond the Plan's termination date until all Trust assets
have been liquidated and distributed.
21.5 Amendment and Termination Procedures
The following procedural requirements shall govern the adoption of
any amendment or termination (a "Change") of the Plan:
(a) The Company may adopt any Change by action of its board of
directors in accordance with its normal procedures.
(b) The Committee, acting as Administrator in accordance with
Subsection 16.6, may adopt any amendment within the scope of
its authority provided under Subsection 21.1 and in the manner
specified in Subsection 16.7(a).
(c) Any Change must be (1) set forth in writing, and (2) signed
and dated by an executive officer of the Company or, in the
case of an amendment adopted by the Committee, at least one of
its members.
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(d) If the effective date of any Change is not specified in the
document setting forth the Change, it shall be effective as of
the date it is signed by the last person whose signature is
required under Subsection 21.5(c)(2), except to the extent
that another effective date is necessary to maintain the
qualified status of the Plan under Code Sections 401(a) and
501(a).
(e) No Change which affects the duties or responsibilities of the
Trustee shall become effective until it is accepted and signed
by the Trustee (which acceptance shall not unreasonably be
withheld).
21.6 Termination of Employer's Participation
Any Employer may, at any time and for any reason, terminate its Plan
participation by action of its board of directors in accordance with
its normal procedures. Written notice of such action shall be signed
and dated by an executive officer of the Employer and delivered to
the Committee. If the effective date of such action is not
specified, it shall be effective on, or as soon as reasonably
practicable, after the date of delivery. Upon the Employer's
request, the Committee may instruct the Trustee to spin off all
affected Accounts and underlying assets into a separate qualified
plan under which the Employer shall assume the powers and duties of
the Company. Alternatively, the Company may treat the event as a
partial termination for purposes of Subsection 21.4 or it may
continue to maintain the Accounts under the Plan.
21.7 Replacement of Trustee
The Trustee may resign as Trustee under this Plan and Trust or may
be removed by the Company at any time upon at least 90 days' written
notice (or a lesser period, if agreed to by both parties). In such
event, the Company shall appoint a successor trustee by the end of
the notice period. The successor trustee shall then succeed to all
the powers and duties of the Trustee under this Plan and Trust. If
no successor trustee has been named by the end of the notice period,
the Company's chief executive officer shall become the trustee, or
if he or she declines, the Trustee may petition the court for the
appointment of a successor trustee.
21.8 Final Settlement and Accounting of Trustee
(a) Final Settlement. As soon as is administratively feasible
after its resignation or removal as Trustee, the Trustee shall
transfer to the successor trustee all property currently held
by the Trust. However, the Trustee is authorized to reserve
such sum of money as it may deem advisable for payment of its
accounts and expenses in connection with the settlement of its
accounts or other fees or expenses payable by the Trust upon
presentation of written estimates
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of such fees and expenses to the Administrator. Any balance
remaining after payment of such fees and expenses shall then
be paid to the successor trustee as soon as is
administratively feasible.
(b) Final Accounting. The Trustee shall provide a final accounting
to the Administrator within 90 days of the date Trust assets
are transferred to the successor trustee.
(c) Administrator Approval. Approval of the final accounting will
automatically occur 90 days after such accounting has been
received by the Administrator, unless the Administrator files
a written objection with the Trustee within such time period.
Such approval shall be final as to all matters and
transactions stated or shown therein and binding upon the
Administrator.
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AMENDMENT NO. 1 TO THE
2002 RESTATEMENT OF THE SYNCOR INTERNATIONAL CORPORATION
EMPLOYEES' SAVINGS AND STOCK OWNERSHIP PLAN
WHEREAS, Syncor International Corporation (the "Company") approved and
adopted the Syncor International Corporation Employees' Savings and Stock
Ownership Plan, originally effective July 31, 1986 and most recently restated on
February 25, 2002 effective January 1, 1997 (the "Plan"); and
WHEREAS, Subsections 21.1 and 21.5(b) of the Plan provide that the
Committee under the Plan may adopt amendments to the Plan which have no
substantial adverse financial impact on any employer thereunder or on the Plan;
and
WHEREAS, the Committee has determined that the amendment set forth below
does not have any substantial adverse financial impact on any employer under the
Plan or on the Plan.
NOW, THEREFORE, the Plan is hereby amended effective as of January 1, 2002
by deleting Subsection 5.2(c)(1) thereof and substituting the following in its
place:
(1) If there is an Acquisition Loan outstanding, the Employer
shall make each half of the Plan Year's Syncor Match
Contributions through the allocation of Financed Shares from
the Loan Suspense Account as set forth in Section 18. If there
is no Acquisition Loan outstanding, the Employer shall make
each half of the Plan Year's Syncor Match Contributions by
contributing shares of Company Stock directly to the Plan or
by contributing cash to the Plan to enable it to purchase
shares of Company Stock on the open market.
Dated as of this 30th day of October, 2002.
COMMITTEE UNDER SYNCOR
INTERNATIONAL CORPORATION
EMPLOYEES' SAVINGS AND
STOCK OWNERSHIP PLAN
By /s/ Sheila H. Coop
---------------------------------
Sheila H. Coop, Member
AMENDMENT NO. 2 TO THE
2002 RESTATEMENT OF THE SYNCOR INTERNATIONAL CORPORATION
EMPLOYEES' SAVINGS AND STOCK OWNERSHIP PLAN
WHEREAS, Syncor International Corporation (the "Company") approved and
adopted the Syncor International Corporation Employees' Savings and Stock
Ownership Plan, originally effective July 31, 1986 and most recently restated on
February 25, 2002 effective January 1, 1997 and thereafter amended by Amendment
No. 1 (the "Plan"); and
WHEREAS, Subsections 21.1 and 21.5(b) of the Plan provide that the
Committee under the Plan may adopt amendments to the Plan which have no
substantial adverse financial impact on any employer thereunder or on the Plan;
and
WHEREAS, the Committee has determined that the amendment set forth below
does not have any substantial adverse financial impact on any employer under the
Plan or on the Plan.
NOW, THEREFORE, the Plan is hereby further amended as effective January 1,
2002 except as otherwise indicated:
1. The following sentence is added to Subsection 1.13 of the Plan:
Effective for Plan Years beginning after December 31, 2001, the third
sentence of this Subsection 1.13 shall read as follows: "For purposes of
determining benefits under this Plan, Compensation is limited to $200,000
[as adjusted for the cost of living pursuant to Code Section
401(a)(17)(B)] per Plan Year."
2. Section 1.14(h) is added to the Plan to read as follows:
(h) "Syncor Corrective Contribution": An amount contributed by the
Employer on an eligible Participant's behalf in accordance with
Section 5.6.
3. The following sentences are added to Subsection 1.15 of the Plan:
Notwithstanding the first sentence of this Subsection 1.15, effective for
taxable years beginning after December 31, 2001, the Contribution Dollar
Limit shall be as follows:
For Taxable Years Contribution Dollar
Beginning in Limit
Calendar Year
2002 $11,000
2002 12,000
2004 13,000
2005 14,000
2006 and thereafter 15,000
For taxable years beginning in calendar years after 2006, the $15,000
Contribution Dollar Limit shall be adjusted in accordance with Code
Section 402(g)(4).
4. The following sentences are added to Subsection 1.23 of the Plan:
Effective for distributions made after December 31, 2001, the term
"Eligible Retirement Plan" shall also include (i) an annuity contract
described in Section 403(a) of the Code and (ii) an eligible plan which is
maintained under Section 457(b) of the Code and which is maintained by a
state or political subdivision of a state or instrumentality of a state
and which agrees to separately account for amounts transferred to such
plan from this Plan. Also effective for distributions made after December
31, 2001, the definition of "Eligible Retirement Plan" shall apply in the
case of a distribution to a surviving spouse of a Participant or to a
spouse or former spouse of a Participant who is an alternate payee under a
QDRO.
5. The following sentence is added to Subsection 1.24 of the Plan:
Effective as to distributions made after December 31, 2001, the term
"Eligible Rollover Distribution" shall not include any amount which is
distributed on account of hardship.
6. The last sentence of Subsection 5.2(a) of the Plan is deleted and the
following is substituted in its place effective as to Eligible Employees who
become Participants on or after August 1, 2001:
Notwithstanding the preceding sentence, effective as to Eligible Employees
who become Participants on or after August 1, 2001, the Employer shall not
make Syncor Matching Contributions on behalf of a Participant as to his or
her Pre-Tax Contributions, if any, with respect to his or her Pay during
his or her first 9 calendar months as a Participant.
7. Section 5.6 is added to the Plan to read as follows:
5.6 Syncor Corrective Contributions
(a) Frequency and Eligibility. For each Plan Year, the Employer
may make Syncor Corrective Contributions on behalf of each
Participant as to whom there has been an "Operational Failure"
as to the Plan under the Internal Revenue Service's Employee
Plans Compliance Resolution System (as set forth in Revenue
Procedure 2002-47 or any successor thereto) ("EPCRS").
(b) Allocation Method. The Syncor Corrective Contribution for each
Plan Year the shall be allocated to the Fund Deferrals Account
of the Participant on whose behalf such contribution is being
made, with the amount of such contribution being equal to the
amount necessary to cure the Plan's "Operational Failure" as
to such Participant.
(c) Medium, Timing and Posting. Syncor Corrective Contributions
for a Plan Year shall be made in cash within the time, if any,
prescribed under EPCRS and shall be posted to the Fund
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Deferrals Accounts of the Participants described in Section
5.6(a).
8. The following sentence is added to Subsection 9.3(a) of the Plan:
Notwithstanding the preceding schedule, the following schedule shall
govern the vesting of a Participant's Syncor Match/Bonus Account effective
as to Syncor Match Contributions for Plan Years beginning after December
31, 2001:
Years of Vesting Service Vested Percentage
Less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 70%
5 or more 100%
9. The following sentence is added to Subsection 11.7(d) of the Plan:
Effective as to Participants making withdrawals after December 31, 2001,
"6 months" shall be substituted for "12 months" in Subsection 11.7(d)(2)
and Subsection 11.7(d)(3) shall not apply.
10. The last sentence of Subsection 11.7(e) of the Plan is deleted and the
following sentence is substituted in its place effective January 1, 1997:
The amount that may be withdrawn from a Participant's Fund Deferrals and
Syncor Stock Deferrals Accounts shall not include any earnings credited to
said accounts after December 31, 1988.
11. Subsection 12.1(c) is added to the Plan to read as follows:
(c) If and when an entity ceases to be a Related Company, the employees
of such entity who are Participants shall thereupon be considered to
have severed and terminated their employment with the Employer for
purposes of Section 401(k)(2)(B)(i)(I) of the Code and Subsection
12.1(a) of the Plan.
12. The following sentence is added to Subsection 12.4 of the Plan:
Effective January 1, 2002, for purposes of determining whether a
Participant's vested Account balance is $5,000 or less, the balance in his
or her Rollover Account shall not be taken into account.
13. The following sentence is added to Subsection 13.4 of the Plan:
- 3 -
Effective for Plan Years beginning after December 31, 2001, this
Subsection 13.4 shall no longer apply.
14. The following sentence is added to Subsection 14.2 of the Plan:
Effective as to Limitation Years beginning after December 31, 2001, the
preceding sentence shall read as follows: "The Annual Addition to a
Participant's accounts under this Plan and any other defined contribution
plan maintained by any Related Company for any Plan Year shall not exceed
the lesser of (a) 100% of his or her Taxable Income or (b) $40,000 [as
adjusted pursuant to Code Section 415(d)]."
15. Subsection 15.1(c) of the Plan is deleted and the following is
substituted in its place:
(c) "Key Employee" means a current or former Employee (or his or her
Beneficiary) who at any time during a plan year containing the
Determination Date was: (1) an officer of the Employer having an
annual Compensation greater than $130,000 [subject to cost-of-living
adjustments pursuant to Code Section 416(i)(1)(A)]; (2) a
more-than-5% Owner; or (3) a more-than-1% Owner whose Compensation
exceeds $150,000.
16. Subsections 15.1(d) and 15.1(e) of the Plan are deleted and the
following are substituted in their place:
(d) "Plan Benefit" means the sum as of the Determination Date of (1)
an Employee's Account, (2) the present value of his or her other
accrued benefits provided by all qualified plans within the
Aggregation Group, and (3) the aggregate distributions made within
the one-year period ending on such date. In the case of a
distribution made for a reason other than severance from employment,
death or disability, "5-year period" shall be substituted for
"one-year period" in the preceding sentence. Plan Benefits shall
exclude rollover contributions and plan-to-plan transfers made after
December 31, 1983 which are both employee-initiated and from a plan
maintained by a non-related employer.
(e) "Top-Heavy" means the Plan's status when the Plan Benefits of
Key Employees account for more than 60% of the Plan Benefits of all
Employees who have performed services at any time during the
one-year period ending on the Determination Date. The Plan Benefits
of Employees who were, but are no longer, Key Employees (because
they have not been an officer or Owner during such one-year period),
are excluded in the determination.
17. Subsection 21.3(c) is added to the Plan to read as follows:
(c) This Subsection 21.3 shall not apply effective January 1, 2002.
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Dated as of this 31st day of December, 2002.
COMMITTEE UNDER SYNCOR
INTERNATIONAL CORPORATION
EMPLOYEES' SAVINGS AND
STOCK OWNERSHIP PLAN
By: /s/ Sheila H. Coop
--------------------------
Sheila H. Coop, Member
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