Exhibit (99c)
COOPER TIRE & RUBBER COMPANY
PRE-TAX SAVINGS PLAN
(Findlay)
As Amended and Restated Effective as of January 1, 2001
or as otherwise provided in Plan
TABLE OF CONTENTS
PAGE
I Definitions.............................................................................................2
II Eligibility And Participation..........................................................................11
III Participants' Contributions............................................................................13
IV Company Contributions..................................................................................16
V Investment Of Contributions............................................................................20
VI Vesting Of Contributions...............................................................................23
VII Suspension Of Participation............................................................................24
VIII Application Of Company Contributions Forfeited.........................................................25
IX Withdrawal Of Contributions............................................................................26
X Designation Of Beneficiary.............................................................................28
XI Distribution Of Contributions..........................................................................29
XII Maximum Contribution Limitation........................................................................36
XIII Reserved...............................................................................................41
XIV Administration Of The Plan.............................................................................42
XV Securities Transactions By Trustee.....................................................................52
XVI Assignability..........................................................................................54
XVII Amendment, Modification, Suspension Or Termination Of The Plan.........................................55
XVIII ESOP Feature...........................................................................................56
-i-
AGREEMENT
THIS AGREEMENT is made and entered into this 6th day of November, 2000, by and
between Cooper Tire & Rubber Company hereinafter referred to as the "Company"
for its plant located in Findlay, Ohio and the United Steelworkers of America,
and Local 207L thereof executing this Agreement; the International Union and the
Local Union collectively being hereinafter referred to as the "Union."
Effective January 1, 2002, an ESOP will be established under the Plan described
in this Agreement. The ESOP feature is described in Article XVIII of the Plan
and in other relevant Plan sections. The provisions of the Plan relating to the
ESOP feature shall not be effective until January 1, 2002.
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ARTICLE I
DEFINITIONS
For the purposes of this Plan, the following words and phrases shall have the
following meanings unless a different meaning is clearly required by the
context:
(1) "Account" of a Participant or "Participant's Account" - the then total
current market value of the account in the Participant's name as
determined by the Trustee representing the entire interest of a
Participant in the Plan. Effective January 1, 2002, each account shall
consist of the Non-ESOP Account and ESOP Account. Prior to January 1,
2002, each account shall consist of a Pre-Tax Savings Plan Contribution
subaccount which will reflect the amount of Pre-Tax Savings Plan
Contributions attributable to a Participant and allocated earnings
attributable thereto, a Transfer Contributions subaccount which will
reflect the amount of Transfer Contributions attributable to a
Participant and allocated earnings attributable thereto and a Company
Contribution subaccount which will reflect the amount of Company
Contributions made pursuant to Article IV herein and allocated earnings
attributable thereto.
(2) "Active Participation" - the making of Participant contributions to the
Plan and the right to share in the allocation of Company Contributions
and ESOP Contributions, if any.
(3) "Actual Deferral Percentage" - for each Plan Year, the ratios
(expressed as a percentage and calculated separately for each Eligible
Employee in a specified group) of
(a) the total amount of Company Wage Reduction Contributions to
(b) the Eligible Employee's aggregated Compensation for such Plan
Year.
Effective until January 1, 1997, for purposes of determining the Actual
Deferral Percentage for any Eligible Employee who is a Highly
Compensated Employee for the Plan Year, any Compensation paid to a
Family Member or any contribution made by the Company on such Family
Member's behalf under Section 1 of Article III shall be treated as paid
to or contributed on behalf of the Highly Compensated Employee. Such
Family Member shall be disregarded in determining the Actual Deferral
Percentage for Non-Highly Compensated Employees.
In addition, the Actual Deferral Percentage for any Highly Compensated
Employee for the Plan Year and who is a participant under two or more
plans described in Section 401(k) of the Code which are maintained by
the Company, shall be the sum of the Actual Deferral Percentages under
each of such plans.
(4) "Adjusted Employment Date" - the date arrived at when the Employee's
prior Continuous Credited Service is subtracted, according to Section 2
of Article II, from the date on which the Employee first renders
service entitling him/her to credit for an Hour of Service subsequent
to a prior period of Continuous Credited Service.
(5) "Affiliated Group" - means the Company and any and all other
corporations, trades and/or businesses, the employees of which together
with Employees of the Company are
2
required, by the first sentence of Subsection (b) or Subsection (c) of
section 414 of the Code to be treated as if they were employed by a
single employer. Each corporation or unincorporated trade or business
that is or was a member of the Affiliated Group shall be referred to
herein as an "Affiliated Group Member" or an "Affiliated Company" but
only during such period as it is or was such a member.
(6) "Code" - the Internal Revenue Code of 1986, as amended to date, and as
it may hereafter be amended, or any successor statute of similar
purpose.
(7) "Committee" - the Defined Contribution Plan Committee established
herein.
(8) "Common Stock" - common stock of Cooper Tire & Rubber Company, which is
intended to be 'employer securities' within the meaning of Section
409(l) of the Code, and 'qualifying employer securities' within the
meaning of Section 407(d)(5) of ERISA. The Plan shall be permitted to
acquire and hold Common Stock, and shall be an eligible individual
account plan, as that term is defined in Section 407(d)(3)(A) of ERISA.
(9) "Company" - Cooper Tire & Rubber Company and any of its subsidiary
corporations which adopt this Plan.
(10) "Company Contributions" - contributions made by the Company pursuant to
Article IV of the Plan, other than Company Wage Reduction
Contributions.
(11) "Company Wage Reduction Contributions" - amounts transferred to the
Plan by the Company pursuant to wage reduction arrangements between the
Company and Participants, also sometimes referred to herein as Pre-tax
Savings Plan Contributions.
(12) "Compensation" - includes all payments of wages, bonus, Company Wage
Reduction Contributions to this Plan and any taxable payments paid to
the Participant in a calendar year, except that there shall be excluded
from Compensation: supplemental unemployment benefits, supplemental
worker's compensation, accident and sickness benefits, and other
amounts which either are excludable or deductible from income in whole
or in part for federal income tax purposes or which represent payments
pursuant to a program of benefits or deferred compensation (other than
Company Wage Reduction Contributions), whether or not qualified under
the Code.
Notwithstanding the above, the maximum amount of compensation taken
into account each year for all computations shall not exceed the amount
prescribed pursuant to Section 401(a)(17) of the Code, as amended, or
such amount as the Secretary of the Treasury shall prescribe from time
to time. Effective until January 1, 1997, in determining the
compensation of a Participant for purposes of the limitation, the rules
of section 414(q)(6) of the Code shall apply, except in applying such
rules, the term family shall include only the spouse of the Participant
and any lineal descendants of the Participant who have not attained age
19 before the close of the year. If, as a result of the application of
the rules described in the preceding sentence the limitation of Section
401(a)(17) of the Code is exceeded, then the limitation shall be
prorated among the affected individual's Compensation as determined
under this section prior to the application of this limitation.
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In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provision of the plan to the contrary, for
plan years beginning on or after January 1, 1994, the annual
compensation of each employee taken into account under the plan shall
not exceed the Omnibus Budget Reconciliation Act of 1993 (OBRA '93)
annual compensation limit. The OBRA '93 annual compensation limit is
$150,000, as adjusted by the Commissioner for increases in the cost of
living in accordance with section 401(a)(17)(B) of the Internal Revenue
Code. The cost-of-living adjustment in effect for a calendar year
applies to any period, not exceeding 12 months, over which compensation
is determined (determination period) beginning in such calendar year.
If a determination period consists of fewer than 12 months, the OBRA
'93 annual compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination period,
and the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in
this plan to the limitation under section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this
provision.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current
plan year, the compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in effect for that
prior determination period. For this purpose, for determination periods
beginning before the first day of the first plan year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit is
$150,000.
(13) "Continuous Credited Service" - the number of years aggregated under
the provisions of Article II, Section 2, except that Continuous
Credited Service prior to January 1, 1976, shall be calculated from the
most recent Employment Date.
(14) "Current Earnings" - net income before federal income taxes of the
Company for its current fiscal year and before deducting any Company
Contributions or ESOP Contributions to this Plan for such fiscal year
determined on the basis of generally accepted accounting principles.
(15) "Designated Beneficiary" - the beneficiary chosen by the Participant,
in accordance with the provisions of Article VIII herein, to receive,
upon the Participant's death, any benefit payable under this Plan by
reason of the Participant's death.
(16) "Eligible Employee" - any Employee who has satisfied the provisions of
Section 1 of Article II.
(17) "Employee" - any employee of the Findlay plant of the Company whose
terms and conditions of employment are determined through collective
bargaining with the Union. The term "Employee" includes Company
employee out-of-town truck drivers. To the extent required by Section
414(n) of the Code, the term "Employee" includes any person who is a
"leased employee" of the Company or any other Controlled Group Member.
For purposes of this Subsection, a "leased employee" means any person
who, pursuant to an agreement between the Company or a Controlled Group
Member and any other person
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("leasing organization"), has performed services for the Company or
Controlled Group Member on a substantially full-time basis for a period
of at least one year, and, effective January 1, 1997, such services are
performed under primary direction or control of the Company or
Controlled Group Member. Contributions or benefits provided to a leased
employee by the leasing organization that are attributable to services
performed for the Company or a Controlled Group Member will be treated
as provided by the Company or Controlled Group Member. A leased
employee will not be considered an Employee of the Company or a
Controlled Group Member, however, if (1) leased employees do not
constitute more than 20% of the Company's or Controlled Group Member's
non- highly compensated work force (within the meaning of Section
414(n)(5)(C)(ii) of the Code and (2) such leased employee is covered by
a money purchase pension plan maintained by the leasing organization
that provides (i) a non-integrated employer contribution rate of at
least 10% of compensation, (ii) immediate participation and (iii) full
and immediate vesting. All personal and relative pronouns, singular or
plural, and words "person", "Employee", and "Employees" shall refer to
both male and female Employees generally.
(18) "Employment Date" - the date on which the Employee first completes an
Hour of Service in the employ of the Company, whether or not that
service is performed as an Employee.
(19) "ESOP Account" - shall include all amounts in the Participant's Account
that are transferred to the ESOP Account pursuant to Section 3 and
Section 5 of Article V. The ESOP Account shall be established under the
ESOP Feature of the Plan. The ESOP Account shall consist of a Pre-Tax
Savings Plan Contributions subaccount which will reflect the amount of
Pre-Tax Savings Plan Contributions in the ESOP Account attributable to
a Participant and allocated earnings attributable thereto, a Transfer
Contributions subaccount which will reflect the amount of Transfer
Contributions in the ESOP Account attributable to a Participant and
allocated earnings attributable thereto, a Company Contributions
subaccount which will reflect the amount of Company Contributions in
the ESOP Account made pursuant to Article IV herein and allocated
earnings attributable thereto, and an ESOP Contributions subaccount
which will reflect the amount of ESOP Contributions in the ESOP Account
made pursuant to Article XVIII herein and allocated earnings
attributable thereto.
(20) "ESOP Contributions" - are the discretionary contributions made by the
Company pursuant to Section 3 of Article XVIII.
(21) "ESOP Feature" - is the portion of the Plan described in Article XVIII
and shall be effective January 1, 2002. The ESOP Feature consists of
the ESOP Account.
(22) "Family Member" - effective until January 1, 1997, with respect to any
Employee, such Employee's spouse and lineal ascendants and descendants
and the spouses of such lineal ascendants and descendants.
(23) "Highly Compensated Employee" - the term Highly Compensated Employee
includes highly compensated active Employees and highly compensated
former Employees.
5
For a particular Plan Year, effective January 1, 1997, a highly
compensated active Employee means any Employee who: (i) was a 5-percent
owner at any time during the current or the preceding Plan Year or (ii)
for the preceding Plan Year received compensation from the Company in
excess of the amount in effect for such Plan Year under Section
414(q)(1)(B) of the Code and was in the top-paid group of Employees for
such preceding Plan Year.
For the purposes of this Subsection, (i) the term "compensation" shall
mean (A) for the period prior to January 1, 1998, the sum of an
Employee's compensation under Section 415(c)(3) of the Code and the
Employee's Pre-Tax Savings Plan Contributions (subject to the
limitations of Section 401(a)(17) of the Code), and (B) for periods
commencing on and after January 1, 1998, an Employee's compensation
under Section 415(c)(3) of the Code (subject to the limitation of
Section 401(a)(17) of the Code), and (ii) the term "top-paid group"
shall mean that group of Employees of the Company consisting of the top
20 percent (20%) of such Employees when ranked on the basis of
compensation paid by the Company during the Plan Year.
A highly compensated former Employee includes any Employee who
separated from service (or was deemed to have separated) prior to the
determination year, performs no service for the Company during the
determination year, and was a highly compensated active Employee for
either the separation year or any determination year ending on or after
the Employee's 55th birthday.
This paragraph shall apply until January 1, 1997. If any Employee is,
during a determination year or look-back year, a family member of
either a 5 percent owner who is any active or former Employee or a
Highly Compensated Employee who is one of the 10 most Highly
Compensated Employees ranked on the basis of Compensation paid by the
Company during such year, then the family member and 5 percent owner or
top-ten Highly Compensated Employee shall be aggregated. In such case,
the family member and 5 percent owner or top-ten Highly Compensated
Employee shall be treated as a single Employee receiving compensation
and Plan contribution or benefits equal to the sum of such Compensation
and contributions or benefits of the family member and 5 percent owner
or top-ten Highly Compensated Employee. For purposes of this section,
family member includes the spouse, lineal ascendants and descendants of
the Employee or former Employee and the spouses of such lineal
ascendants and descendants.
The determination of who is a Highly Compensated Employee, including
the determination of the number and identity of Employees in the
top-paid group, and the compensation that is considered, will be made
in accordance with section 414(q) of the Code and the regulations
thereunder.
(24) "Hour of Service" - each hour for which an employee is paid, or
entitled to payment, by the Company for the performance of duties or on
account of a period of time during which no duties are performed due to
vacation, holiday, jury duty, short-term military duty or funeral
absence. Each hour for which an employee is not paid, or not entitled
to payment, on account of a period of time during which the employee
continues to accrue
6
Continuous Credited Service while under an approved leave of absence
for illness, incapacity or disability, long-term military duty or
personal reasons.
Each hour for which an employee is paid back pay, regardless of
mitigation of damages, except for hours previously credited for the
same period, or severance pay. Hours of Service shall not be credited
due to payments received by an employee from a plan maintained for the
sole purpose of complying with applicable worker's or unemployment
compensation laws, complying with disability insurance laws, or
reimbursement of medical or medically related expenses.
Such hours shall be credited as specified in Section 201 of the
Employee Retirement Income Security Act of 1974, as amended, and as
specified at Title 29, Code of Federal Regulations, 2530.200b.
Hours of Service performed at premium rates (such as holiday pay
overtime or shift differential) shall be credited as single Hours of
Service, regardless of the rate of compensation in effect for such
service.
If an Employee is absent from work for any period which commences on or
after the Effective Date:
(a) by reason of the pregnancy of the Employee,
(b) by reason of the birth of a child of the Employee,
(c) by reason of the placement of a child with the Employee in
connection with the adoption of such child by the Employee, or
(d) for purposes of caring for any such child for a period
beginning immediately following such birth or placement,
and the absence is permitted under the Company-Union basic labor
agreement, the Employee shall not, solely by reason of such absence, be
considered to have incurred a Severance Date for purposes of
participation and for determining his/her vested interest until the
expiration of the consecutive twenty-four (24) month period commencing
on the first day of the absence.
If an Employee is absent from work for any period for any reasons
referred to in subparagraphs (a), (b), (c) and (d) of this subsection,
and such period includes the last day of the Plan Year, the Employee
shall be deemed to be employed on such date for purposes of Section 3
of Article II.
(25) "Investment Option" - one of those forms of investment which are
available to a Participant to invest Company Wage Reduction
Contributions, vested Company Contributions and related earnings under
the Plan.
(26) "Leave of Absence" - leave of absence granted by the Company due to
illness or injury, required U.S. Military Service, or other special
leave of absence set forth in the
7
Company-Union basic labor agreement, under which all Participants in
similar circumstances shall be treated alike.
(27) "Non-ESOP Account" - shall include all Pre-Tax Savings Plan
Contributions, Company Contributions, and Transfer Contributions made
to the Plan pursuant to Articles III and IV of the Plan; except that
the Non-ESOP Account shall not include any portion of such
contributions transferred to the Participant's ESOP Account pursuant to
Section 3 and Section 5 of Article V. The Non-ESOP Account shall be
established under the Non-ESOP Feature of the Plan. The Non-ESOP
Account shall consist of a Pre-Tax Savings Plan Contributions
subaccount which will reflect the amount of Pre-Tax Savings Plan
Contributions in the Non-ESOP Account attributable to a Participant and
allocated earnings attributable thereto, a Transfer Contributions
subaccount which will reflect the amount of Transfer Contributions in
the Non-ESOP Account attributable to a Participant and allocated
earnings attributable thereto, and a Company Contributions subaccount
which will reflect the amount of Company Contributions in the Non-ESOP
Account made pursuant to Article IV herein and allocated earnings
attributable thereto.
(28) "Non-ESOP Feature" - is the portion of the Plan, on and after January
1, 2002, (a) which is not included within the ESOP Feature, (b) which
is intended to qualify as a profit sharing plan under Code Section
401(a), and (c) which includes a qualified cash or deferred arrangement
within the meaning of Code Section 401(k). The Non-ESOP Feature
consists of the Non-ESOP Account.
(29) "Non-Highly Compensated Employee - any Eligible Employee who is neither
a Highly Compensated Employee nor, effective until January 1, 1997, a
Family Member of a Highly Compensated Employee.
(30) "Normal Retirement Date" - the later of the day the Participant attains
age sixty-five (65) or the completion of five (5) years of
participation in the Company's Findlay Hourly Employee's Retirement
Plan.
(31) "One-Year Break in Service" - a Plan Year during which a Participant
has five hundred (500) or fewer Hours of Service. Temporary excused
absences, including military leave, shall not constitute a One-Year
Break in Service. Further, solely for the purpose of determining
whether a Participant has incurred a One- Year Break in Service, Hours
of Service shall be recognized for "maternity and paternity leaves of
absence." A "maternity or paternity leave of absence" shall mean, for
Plan Years beginning after December 31, 1984, an absence from work for
any period by reason of the Employee's pregnancy, birth of the
Employee's child, placement of a child with the Employee in connection
with the adoption of such child, or any absence for the purpose of
caring for such child for a period immediately following such birth or
placement. For this purpose, Hours of Service shall be credited for the
computation period in which the absence from work begins, only if
credit therefore is necessary to prevent the Employee from incurring a
One-Year Break in Service, or, in any other case, in the immediately
following computation period. The Hours of Service credited for a
"maternity or paternity leave of absence" shall be those which would
normally have been credited but for such absence, or, in any case in
which the plan administrator is unable to determine such hours
8
normally credited, eight (8) Hours of Service per day. The total Hours
of Service required to be credited for a "maternity or paternity leave
of absence" shall not exceed five hundred one (501).
(32) "Participant" - any person who has been admitted to participation in
this Plan pursuant to the provisions of Article II. The term
"Participant" shall include active Participants (those currently
eligible to share in Company Contributions and ESOP Contributions, if
any), inactive Participants (those individuals who are employed by the
Company and have been active Participants but are not eligible to share
in Company Contributions or ESOP Contributions), and any former
Employee who has an Account under the Plan.
(33) "Plan" - the Pre-tax Savings Plan as set forth herein, and as it may be
modified or amended from time to time. Effective January 1, 2002, the
Plan consists of the ESOP Feature and the Non-ESOP Feature.
(34) "Plan Year" - except as otherwise provided herein, a Plan Year shall be
the calendar year beginning January 1 and ending December 31. With
respect to each person becoming employed by the Company or an
Affiliated Company, for purposes of eligibility to participate herein,
the initial Plan Year shall be the calendar year which commences
coincident with or immediately following the Employee's Employment
Date.
(35) "Pre-tax Savings Plan Contribution" - the percentage of a Participant's
Compensation which the Company contributes to the Plan pursuant to a
wage reduction agreement, under which a Participant elects to forego a
percentage of such Compensation, reduced for purposes of the Plan, also
sometimes referred to as a Company Wage Reduction Contribution.
(36) "Severance Date" - the earliest of (a) the date on which the Employee
retires, dies, quits, or is discharged or (b) the date on which the
Employee ceases to accrue Continuous Credited Service in accordance
with the Company-Union basic labor agreement provisions for leave of
absence; but in no event shall the Severance Date, as defined in (a)
and (b), be earlier than the first anniversary of the first day of a
period throughout which the Employee remains absent, with or without
pay, from the service of the Company by reason of the absence.
(37) "Severance Period" - the period of time between the Employee's
Severance Date and the date on which he again performs an Hour of
Service.
(38) "Total and Permanent Disability" - a condition of a Participant as the
result of bodily injury or disease from an unavoidable cause which
prevents such Participant from being physically able to meet his/her
present job requirements as the same existed at the time of the
Participant's cessation of service due to such condition and which
disability will (in the opinion of a qualified physician designated by
the Committee) presumably be permanent and continuous during the
remainder of his/her life. Such condition shall be deemed to have
resulted from an unavoidable cause unless it:
(a) was contracted, suffered or incurred while the Participant was
engaged in, or resulted from having engaged in, a felonious
enterprise, or
9
(b) resulted from habitual drunkenness or addiction to
hallucinogenic and/or narcotic drugs not prescribed by a
qualified physician for treatment of a condition other than
drug addiction, or
(c) resulted from an intentional self-inflicted injury or self-
induced sickness.
(39) "Transaction Period" - a period defined in Article XV herein during
which certain rules and regulations, as established by the Committee
and the Trustee, shall govern all transactions relating to securities.
(40) "Transactions" - all purchases, sales, redemptions or other
dispositions of securities by the Trustee under the Plan.
(41) "Transfer Contributions" - those amounts transferred to the Plan on
behalf of an Employee from another plan qualified under Section 401(a)
of the Code as described in Article III, Section 8.
(42) "Trustee" - the Trustee or Trustees designated by the Company as
provided herein.
(43) "Trust Fund" - assets of the Plan and Trust as the same shall exist
from time to time.
(44) "Unvested" - that portion of a Participant's Account balance which is
not vested pursuant to Article VI herein.
(45) "Vested" - that portion of a Participant's Account balance to which
he/she has a nonforfeitable right pursuant to Article VI herein.
10
ARTICLE II
ELIGIBILITY AND PARTICIPATION
SECTION 1. ELIGIBILITY
Any Employee of the Company eligible for membership in the Union who has
completed thirty days of Continuous Credited Service is eligible to participate
in the Plan.
Notwithstanding the foregoing, no Employee who serves only as a leased employee
as defined in Section 414(n) of the Code shall be covered by the Plan or deemed
to be a Participant.
SECTION 2. CONTINUOUS CREDITED SERVICE
(a) Continuous Credited Service for purposes of computing eligibility shall
be defined as the period of time (as computed by completed 1/12ths of a
year) between the Employee's Employment Date or Adjusted Employment
Date and the current date or the Employee's most recent Severance Date.
(b) Any person who incurs a Severance Period after January 1, 1990, shall
have Continuous Credited Service restored on the following basis:
(1) A person who before the Severance Date had established a
nonforfeitable right to any vested benefit will for all
purposes have pre-Severance Period and post-Severance Period
Continuous Credited Service aggregated to create an Adjusted
Employment Date.
(2) A person who before the Severance Date had not established a
nonforfeitable right to any vested benefit will have
Continuous Credited Service restored on the following basis to
create an Adjusted Employment Date:
(i) If the Severance Period is less than the Continuous
Credited Service prior to the Severance Date, the
Continuous Credited Service prior to the Severance
Date shall be aggregated with any Continuous Credited
Service after the Severance Period to create an
Adjusted Employment Date for all purposes. Such
aggregation of Continuous Credit Service shall not
include any period of time during the Severance
Period.
(ii) If the Severance Period equals or exceeds the greater
of five (5) years or the Continuous Credited Service
prior to the Severance Date, the Continuous Credited
Service prior to the Severance Date shall not be
aggregated and the Employee shall become a
Participant as specified in Section 3 of this
Article.
SECTION 3. PARTICIPATION
An Employee described in Section 1 will become a Participant in the Plan upon
satisfaction of all the following requirements:
11
(a) completion of thirty days of Continuous Credited Service,
(b) receipt by the Committee of a completed application,
(c) agreement to an appropriate payroll deduction from his/her
Compensation,
(d) agreement to accept a reduction of his/her Compensation equal to the
whole percentage of his/her Compensation per payroll period he/she
elects to have contributed by the Company as a Pre-tax Savings Plan
Contribution.
A Participant shall cease to be eligible to make contributions to the Plan and
to share in Company Contributions or ESOP Contributions under the Plan when
he/she is no longer an Employee due to: resignation, termination, retirement,
death, Total and Permanent Disability, or otherwise ceasing to be an Employee or
the Participant's voluntary election to suspend participation pursuant to
Article VII hereof. Participation in the Plan will cease when the Employee or
former Employee no longer has an Account under the Plan. A Participant who
voluntarily ceases Active Participation from this Plan while still an Employee
accumulating Continuous Credited Service shall be ineligible to resume Active
Participation for a period of twelve (12) months from the date Active
Participation last ceased.
Notwithstanding the above paragraph, a Participant who retires under the
Company's Findlay Pension and Insurance Agreement may elect to continue to be a
Participant in the Plan and maintain an Account until the earlier of the date
he/she withdraws the balance in his/her Account or April 1 of the calendar year
following the calendar year in which he/she attains age 70-1/2. After the
effective date of such retirement, such a Participant shall not be entitled to
make contributions to the Plan or share in the allocation of Company
Contributions or ESOP Contributions.
Participation in the Plan by Eligible Employees shall be voluntary.
12
ARTICLE III
PARTICIPANTS' CONTRIBUTIONS
SECTION 1. AMOUNT OF PARTICIPANT PRE-TAX SAVINGS PLAN CONTRIBUTION
To be an Active Participant, an eligible individual must have made on his/her
behalf or agree to make a Pre-tax Savings Plan Contribution in the following
manner:
(a) A Participant may agree to have contributed on his/her behalf as a
Pre-tax Savings Plan Contribution, an amount, at his/her election, not
to exceed the lesser of: (i) 15% of his/her Compensation or (ii) $7,979
(or such greater amount as determined by the Secretary of Treasury). In
calculating the limit under Code Section 402(g) for purposes of Code
Section 401(k), the amounts to be deferred by an eligible Employee
under each plan for which he/she is eligible to make wage deferrals
will be aggregated by treating all cash or deferred arrangements under
which the Employee is eligible as a single arrangement. If the limit
set forth by Code Section 402(g) is exceeded, then the deferrals in
excess of the limits must be distributed by April 15 of the following
year. Such reduction in Compensation must be made at the time the
Participant would normally receive his Compensation from the Company.
(b) A Participant, by agreeing to have contributed on his/her behalf a
Pre-tax Savings Plan Contribution, shall enter into a written wage
reduction agreement with the Company. The terms of such reduction
agreement shall provide that the Participant accepts a reduction in
his/her Compensation from the Company equal to any whole percentage of
his/her Compensation per pay period which he/she elects to have
contributed on his/her behalf as a Pre-tax Savings Plan Contribution.
(c) Pre-tax Savings Plan Contributions shall be fully vested and
nonforfeitable at all times.
(d) The Company may amend or revoke its wage reduction agreement with any
Participant at any time, if the Company determines that such revocation
or amendment is necessary to insure that contributions by or on behalf
of a Participant for any Plan Year will not exceed the limitations of
Section 415 or to insure that the discrimination tests of section
401(k) of the Code are met for such Plan Year.
(e) If a Participant's Compensation for any Plan Year is such that he or
she is a Highly Compensated Employee for the Plan Year, the actual
deferral percentage test of Section 401(k)(3) of the Code will be met.
The Plan incorporates by reference the provisions of Sections 401(k)(3)
of the Code and regulation Section 1.401(k) - 1(b) thereunder.
SECTION 2. LIMITATIONS ON PARTICIPANT CONTRIBUTIONS
All contributions made by or on behalf of a Participant are subject to the
limitations imposed by section 401(k), and section 415 of the Code as further
set forth in Article XII hereof.
The maximum amount of such contributions is limited under Section 401(k)(3)
determined by reducing contributions made on behalf of Highly Compensated
employees in order of their contribution percentages beginning with the highest
of such percentages.
13
SECTION 3. CHANGING CONTRIBUTION PERCENTAGE
The contribution percentage(s) designated by a Participant shall continue in
effect, notwithstanding any change in his/her Compensation, until he/she shall
change such contribution percentage(s). A Participant may elect, at any time,
but not less than thirty (30) days from the last change in contribution
percentage(s) to increase or decrease the contribution percentage(s) within the
applicable limits to be effective as soon as practicable after receipt of notice
of change.
SECTION 4. CONTRIBUTIONS TO BE EXPRESSED IN WHOLE MULTIPLES
Each Participant's Pre-tax Savings Plan Contributions shall be in whole
multiples of 1% of Compensation, subject to adjustment pursuant to Section 5
hereof.
SECTION 5. METHOD OF PARTICIPANTS' CONTRIBUTIONS
(a) Each Pre-tax Savings Plan Contribution made by the Company on behalf of
a Participant shall be transferred to the Plan pursuant to the terms of
a written wage reduction agreement between such Participant and the
Company. A Participant's wage reduction agreement shall be modified
automatically to correspond to the change in the amount of the Pre-tax
Savings Plan Contributions made on his/her behalf as set forth in
Section 3 hereof.
(b) The tentative wage reduction amount set forth in any salary reduction
agreement shall be in any amount as the Participant shall elect, but
shall be not less than 1% and not more than 15% of Compensation of such
Participant. Tentative wage reductions shall become final, and then
shall constitute Pre-tax Savings Plan Contributions, only after the
Company or the Committee has made such adjustments thereto as they (or
either of them) deem necessary to maintain the qualified status of this
Plan or to maintain the status of any portion of this Plan as a
qualified cash or deferred arrangement under section 401(k) of the
Code.
(c) All amounts withheld pursuant to a wage reduction agreement and
thereafter contributed to the Plan as Pre-tax Savings Plan
Contributions shall be so delivered only if the Company in good faith
believes that such amounts do not exceed the amounts permissible
pursuant to the limitations hereinabove set forth. If any amount shall
be withheld from the Compensation of a Participant pursuant to a wage
reduction agreement which exceeds the maximum amount permissible
pursuant to Section 5(b) hereof, and if such amount is contributed to
the Plan as a Pre-tax Savings Plan Contribution by way of a mistake of
fact, it shall be refunded to the Company and shall thereafter be paid
as promptly as practicable (subject, however, to the withholding of
taxes and other amounts as though such amount were current
compensation) by the Company to the Employee from whose Compensation
such amount was obtained pursuant to a wage reduction agreement.
14
SECTION 6. CREDITING OF CONTRIBUTION AMOUNTS
Company Wage Reduction Contributions shall be transferred by the Company to the
Trustee as soon as practicable, but not less than monthly. All payments so made
by the Company shall be reported to the Committee.
All such contributions shall be appropriately credited to the Account of each
Participant by the Trustee.
SECTION 7. VETERANS
Notwithstanding any provision of this Plan to the contrary, effective December
12, 1994, contributions, benefits and Continuous Credited Service with respect
to qualified military service will be provided in accordance with Section 414(u)
of the Code. "Qualified military service" means any service in the uniformed
services (as defined in chapter 43 of title 38 of the United States Code) by any
individual if such individual is entitled to reemployment rights under such
chapter with respect to such service.
SECTION 8. TRANSFER CONTRIBUTIONS
The Trustee is authorized to accept on behalf of a Participant, and hold as part
of a Participant's Account, assets from a trustee of another plan qualified
under Section 401(a) of the Code, provided that such other plan permits such a
transfer and provided that the Committee approves such transfer from such other
plan. All amounts so transferred to a Participant's Account shall be referred to
herein as "Transfer Contributions."
SECTION 9. CONTRIBUTIONS MADE TO THE NON-ESOP FEATURE
Effective January 1, 2002, when transmitted to the Plan pursuant to this Article
III, the Pre-Tax Savings Plan Contributions shall be transmitted to and held
under the Non-ESOP Feature of the Plan. As provided in Section 3 and Section 5
of Article V, such contributions may be transferred later from the Non-ESOP
Feature to the ESOP Feature.
15
ARTICLE IV
COMPANY CONTRIBUTIONS
SECTION 1. AMOUNT OF COMPANY CONTRIBUTIONS
The Company shall contribute to the Trustee out of Current Earnings for that
fiscal year or, at its discretion as set forth below out of its accumulated
earnings, in cash or in its treasury or authorized but unissued Common Stock the
value of which shall be computed at the applicable fair market value on the date
of contribution by the Company, an amount equal to the lesser of:
(a) the aggregate of seventy-five percent (75%) of all Pre-Tax Savings Plan
Contributions which represent up to four percent (4%) of each
Participant's Compensation during such year, less any forfeitures (as
defined in Article VIII, Section 1), or
(b) an amount equal to fifteen percent (15%) of the Company's Current
Earnings for such year in excess of ten percent (10%) of the
stockholder's equity of the Company at the beginning of such year.
The Company's Board of Directors may, at its discretion, waive the limitations
in paragraph (b) above and contribute to the Trustee out of Current Earnings for
that fiscal year or its accumulated earnings an amount not to exceed the
limitations in paragraph (a) above.
The Company will not match, nor allocate its contributions to, any portion of
Pre-Tax Savings Plan Contributions which represent an amount in excess of four
percent (4%) of a Participant's Compensation during each Plan Year.
Company Contributions will be subject to the nondiscrimination test pursuant to
Section 401(m)(2) of the Code. For any Plan year the contribution percentage for
eligible Highly Compensated Employees shall not exceed the greater of:
(a) 125 percent of such percentage for all other Eligible Employees, or
(b) the lesser of 200 percent of such percentage for all other Eligible
Employees, or such percentage for all other Eligible Employees plus 2
percentage points.
For nondiscrimination testing purposes, the multiple use rules pursuant to
Regulation Section 1.401(m)-2 shall apply. If a correction of multiple use is
required, Pre-Tax Savings Plan Contributions will be distributed as provided by
Regulation Section 1.401(m)-2(c).
At any time corrections are required to either the nondiscrimination test of
multiple use rules by distributing Pre-tax Savings Plan Contributions any
related Company Contributions will also be distributed or forfeited to avoid
discrimination.
SECTION 2. COMPANY WAGE REDUCTION CONTRIBUTIONS
The Company shall contribute with respect to each Plan Year the aggregate of the
Company Wage Reduction Contributions for such Plan Year, as determined pursuant
to wage reduction
16
agreements in force between the Company and Participants in the Plan. Company
Wage Reduction Contributions shall be fully Vested and nonforfeitable at all
times.
SECTION 3. ALLOCATION OF COMPANY CONTRIBUTIONS
The Company Contributions for each fiscal year shall be allocated by the Trustee
to each Participant's Account in proportion to seventy-five percent (75%) of
each Participant's Pre-Tax Savings Plan Contributions made on his/her behalf up
to an aggregate contribution thereof of four percent (4%) of a Participant's
Compensation for such year.
If a Participant or Designated Beneficiary becomes entitled to distribution of
his/her Account under the Plan as a result of the Participant either retiring
from the Company under one of its retirement programs (except a Deferred Vested
Pension), suffering a Total and Permanent Disability or dying and Pre-Tax
Savings Plan Contributions have been made on his/her behalf to which Company
Contributions, if any, are allocated in the year in which such event
(retirement, Total and Permanent Disability, or death) occurred, such
Participant shall be entitled to share in the Company Contribution which it may
make with respect to such year, as herein provided, as if such event had not
occurred.
There shall be directly and promptly allocated to the Pre-Tax Savings Plan
Contributions subaccount of each Participant the Company Wage Reduction
Contributions, as set forth in Section 2 hereof.
Company Contributions will be allocated to the Participant only if the
Participant is employed on the last day of the Plan Year, except in the case of
retirement, Total and Permanent Disability or death.
SECTION 4. REPORTING THE CONTRIBUTIONS
The Company Contributions and Company Wage Reduction Contributions shall be
reported to the Committee by the Company.
SECTION 5. CONTINGENT NATURE OF CONTRIBUTIONS
To the extent that the deductibility thereof is subsequently denied, each
Company Contribution and each Company Wage Reduction Contribution made by the
Company pursuant to the provisions of this Article IV hereof is hereby made
expressly contingent upon the deductibility thereof for federal income tax
purposes for the year with respect to which such contribution is made. Each such
contribution is further contingent upon the maintenance of qualified status by
the Plan for the year with respect to which such contribution is made, to the
extent that the loss of qualified status would deprive the Company of the
deduction taken for such contribution.
SECTION 6. EXCLUSIVE BENEFIT; REFUND OF CONTRIBUTIONS
All contributions made by the Company are made for the exclusive benefit of the
Participants and their beneficiaries, and such contributions shall not be used
for nor diverted to purposes other than for the exclusive benefit of the
Participants and their beneficiaries, including the costs of maintaining and
administering the Plan and Trust. Notwithstanding the foregoing, refunds of
17
Company Contributions shall be made to the Company under the following
circumstances and subject to the following limitations, to the extent that such
refunds do not, in themselves, deprive the Plan of its qualified status:
(a) To the extent that a Federal income tax deduction is disallowed for any
Company Contribution, the Trustee shall refund to the Company the
amount so disallowed within one (1) year of the date of such
disallowance.
(b) In the case of a contribution, or for any Company Wage Reduction
Contribution, which is made in whole or in part by reason of a mistake
of fact, so much of the Company Contribution as is attributable to the
mistake of fact shall be returnable to the Company upon demand, upon
presentation of evidence of the mistake of fact to the Trustee and of
calculations as to the impact of such mistake of fact. Demand and
repayment must be effected within one (1) year after the last
installment payment of the contribution to which the mistake applies.
In the event that any refund of amounts contributed under Section 1 hereof is
paid to the Company, such refund shall be made without interest and shall be
deducted from among the Company Contributions subaccounts of Participants only
to the extent that the amount of the refund can be identified to specific
Participants (as in the case of certain mistakes of fact). Refunds of amounts
contributed pursuant to Section 2 hereof (relating to contributions attributable
to wage reduction) are treated at Section 6 of Article III.
Notwithstanding any other provision of this Section 6, no refund shall be made
to the Company which is specifically chargeable to the Account of any
Participant in excess of one hundred percent (100%) of the amount in such
Account, nor shall a refund be made by the Trustee of any funds, otherwise
subject to refund hereunder, which have been distributed to Participants and/or
beneficiaries. In the case that such distributions become refundable, the
Company shall have a claim directly against the distributees to the extent of
the refund to which it is entitled. All refunds pursuant to this Section 6 shall
be limited in amount, circumstance and timing to the provisions of Section
403(c) of the Employee Retirement Income Security Act of 1974, as amended, and
no such refund shall be made if, solely on account of such refund, the Plan
would cease to be a qualified Plan pursuant to Section 401(a) of the Code.
SECTION 7. TRANSMITTING THE COMPANY CONTRIBUTIONS
Each Company Contribution shall be sent to the Trustee as promptly as
practicable following the determination of the amount thereof, and, in any
event, on or before the date established by law (including any extension
thereof) for the filing of the Company's federal income tax return for the
taxable year with respect to which such Company Contribution is made.
Contributions made pursuant to Section 2 hereof shall be made no later than the
date specified in the preceding sentence, and shall be made at such earlier
dates as may be practicable provided, however, that no wage reduction amount
shall be held by the Company without contributing same to the Plan for a period
longer than the longest period that is permissible under regulations published
under Section 401(k) of the Code, and, in any event, amounts contributed under
18
Section 2 hereof with respect to any Plan Year shall be deemed credited to the
Pre-Tax Savings Plan Contributions subaccount of the Participant not later than
the last day of such Year.
SECTION 8. CONTRIBUTIONS MADE TO THE NON-ESOP FEATURE
Effective January 1, 2002, when transmitted to the Plan pursuant to this Article
IV, the Company Contributions and Company Wage Reduction Contributions shall be
transmitted to and held under the Non-ESOP Feature of the Plan. As provided in
Section 3 and Section 5 of Article V, such contributions may be transferred
later from the Non-ESOP Feature and ESOP Feature.
19
ARTICLE V
INVESTMENT OF CONTRIBUTIONS
SECTION 1. INVESTMENT OF FUNDS
Except for Unvested Company Contributions and, subject to Section 4 of Article
XVIII, ESOP Contributions, the amounts in a Participant's Account may be
invested on behalf of such Participant in one or more of the following
Investment Options, at the Participant's discretion:
(a) Option A: Cash with Interest. - Cash will be invested in a fixed income
account with a bank, insurance company, or an investment adviser
registered under the Investment Advisers Act of 1940.
(b) Option B: Mutual Fund(s). - Cash will be invested in one or more mutual
funds approved by the Committee and made available to Participants.
(c) Option C: A fund comprising a pooled account of Common Stock of the
Company.
The amounts credited to a Participant's Account from, subject to Section 4 of
Article XVIII, the ESOP Contributions and Unvested Company Contributions shall
be invested in the Common Stock fund.
SECTION 2. INSTRUCTIONS TO THE TRUSTEE
A Participant will instruct the Trustee in writing as to the manner in which
his/her contributions in his/her Account, other than Company Contributions and
ESOP Contributions, shall be invested in any one or more of the Investment
Options in such proportions as he/she sees fit, except that the amounts so
specified shall be in multiples of one percent (1%). A Participant may likewise
instruct the Trustee with respect to the retention or investment of the Vested
portion of the Company Contributions subaccount and, subject to Section 4 of
Article XVIII, the ESOP Contributions subaccount allocated to his/her Account,
subject to the same limitations as apply to the investment of the contributions
in his/her Account other than Company Contributions.
Investment instructions with respect to the contributions in his/her Account
other than Company Contributions and ESOP Contributions, and with respect to the
Vested portion of the Company Contributions and, subject to Section 4 of Article
XVIII, the ESOP Contributions subaccount may be different, both as to the kind
of investment and as to the relative amounts to be invested in such investments.
Subject to Section 4 of Article XVIII, the ESOP Contributions subaccount and the
Unvested portion of the Company Contributions subaccount shall remain invested
in the Common Stock fund.
SECTION 3. TRANSFER TO THE ESOP FEATURE
Effective January 1, 2002, any amount of the Participant's Non-ESOP Account
invested in the Common Stock fund shall transfer to the Participant's ESOP
Account as of the first day of the Plan Year immediately succeeding the Plan
Year in which the contributions comprising such amounts invested in the Common
Stock fund were made to the Plan. Notwithstanding the
20
foregoing, any amount in a Participant's Account that is attributable to
contributions made to the Plan prior to January 1, 2002 and that is invested in
the Common Stock fund on December 31, 2001 shall be transferred to the
Participant's ESOP Account effective as of January 1, 2002.
SECTION 4. TRUSTEE OPTIONS
The Trustee is authorized to purchase treasury or authorized but unissued Common
Stock of and from the Company, if offered by it, at the applicable fair market
value.
SECTION 5. CHANGING OF INVESTMENTS
As to the investment of future contributions with respect to which the
Participant has investment discretion, the Participant shall have the right, at
any time, but not more often than once daily, to instruct the Trustee to change
the amounts to be invested in any Investment Option(s) for all his/her
contributions. A Participant shall instruct the Trustee pursuant to this Section
5 with regard to the investment of any portion of the Participant's Account
attributable to Transfer Contributions.
Subject to Section 9 of Article III, Section 8 of Article IV and Section 3 of
this Article V, any amount that the Participant chooses to invest in the Common
Stock fund, pursuant to this Section 5, shall be held in the Participant's
Non-ESOP Account on and after January 1, 2002, subject to transfer to the
Participant's ESOP Account. Effective January 1, 2002, any such amount invested
in the Common Stock fund shall transfer to the Participant's ESOP Account as of
the first day of the Plan Year immediately succeeding the Plan Year in which the
investments were changed into the Common Stock fund. On and after January 1,
2002, any amount that the Participant chooses to invest in any Investment
Option(s) other than the Common Stock fund, pursuant to this Section 5, shall
beheld in the Participant's Non-ESOP Account.
All such directions to sell or to redeem securities held in the Participant's
Account or to reinvest the proceeds and all changed investment directions shall
become effective during the Transaction Period, as such term is defined in
Section 1 of Article XV. All such directions received and completed prior to
4:00 p.m. Eastern Time on a day when both the Trustee and the New York Stock
Exchange are open for business shall be effective as of the close of the
business day of receipt of such directions. All such directions received and
completed after 4:00 p.m. Eastern Time on a day when both the Trustee and the
New York Stock Exchange are open for business shall be effective as of the
following day when both the Trustee and the New York Stock Exchange are open for
business.
SECTION 6. EARNINGS FROM INVESTMENTS
Except as provided in Section 6 of Article XVIII, earnings from the Investment
Options shall be reinvested in the Investment Option producing such earnings.
SECTION 7. UNINVESTED FUNDS UNDER INVESTMENT OPTIONS
Any funds in the hands of the Trustee as to which the Participant has instructed
the Trustee to invest in any given Investment Option but which temporarily
remains uninvested may be held by the Trustee in cash. Shares of Common Stock
shall be in full shares only, with no fractional
21
shares being purchased or held. Amounts creditable to the Accounts of
Participants which cannot be invested in the Investment Option selected because
such amounts are insufficient to purchase a full share of Common Stock shall be
temporarily held pursuant to this Section 6 as uninvested funds for the benefit
of the Account to which such amount is allocable.
SECTION 8. SELECTION OF INVESTMENT OPTION
The selection of an Investment Option by a Participant will be entirely the
responsibility of such Participant. Neither Trustee, the Committee, the Company,
nor any of its personnel shall be empowered to advise a Participant as to the
manner in which the amounts credited to any Account shall be invested. The fact
that a security is available to Participants for investment under this Plan
shall not be construed as a recommendation for the purchase of that security,
nor shall the designation of any Investment Option impose any liability on the
Trustee, the Committee, the Union, the Company, or any of its personnel.
22
ARTICLE VI
VESTING OF CONTRIBUTIONS
SECTION 1. VESTING OF PARTICIPANT CONTRIBUTIONS
A Participant shall have a nonforfeitable interest in his/her Account balance to
the extent that it is attributable to contributions made by him/her or on
his/her behalf including (but not limited to) Company Wage Reduction
Contributions (but not including Company Contributions), at all times (subject
to the terms and conditions of Articles IX and XI), and in all assets in his/her
Account attributable thereto.
SECTION 2. VESTING OF COMPANY CONTRIBUTIONS AND ESOP CONTRIBUTIONS
Company Contributions and ESOP Contributions, if any, shall become Vested to the
Participant on the date such Participant completes five (5) years of Continuous
Credited Service (Article II, Section 2). For Participants with five (5) or more
years of Continuous Credited Service, Company Contributions and ESOP
Contributions will become Vested immediately upon being placed in his/her
Account. Notwithstanding the foregoing, a Participant shall at all times be
Vested in any earnings and dividends paid on the investments of Unvested Company
Contributions and ESOP Contributions held in the Participant's Account. Full one
hundred percent (100%) vesting shall also occur upon attainment of the
Participant's Normal Retirement Date.
Should a Participant terminate participation in the Plan by reason of any of the
following, all Company Contributions and ESOP Contributions will become one
hundred percent (100%) Vested to the Participant:
(a) Total and Permanent Disability
(b) Death
(c) Termination of the Plan, (or partial termination of the Plan if the
Participant is affected thereby), or
(d) Complete and final discontinuance of Company Contributions.
If a Participant terminates employment at a time when his/her Company
Contributions and ESOP Contributions are Unvested, such Unvested contributions
shall be forfeited upon the earlier of (i) the distribution to the Participant
of the Vested portion of his/her Account or (ii) the close of five consecutive
Severance Periods after such termination of employment.
SECTION 3. VESTING OF RESTORED COMPANY CONTRIBUTIONS AND ESOP CONTRIBUTIONS
A Participant who has restored previously forfeited ESOP Contributions or
Company Contributions (as described in Section 7 of Article XI) shall have these
restored ESOP Contributions and Company Contributions vest provided restoration
is made prior to the attainment of five (5) years Continuous Credited Service by
the Participant.
23
ARTICLE VII
SUSPENSION OF PARTICIPATION
SECTION 1. SUSPENSION RESULTING FROM JOB TRANSFER
In the event that a Participant is transferred to a job with the Company which
renders such Participant ineligible to participate actively in this Plan, then,
in such event, such Participant's Active Participation shall be deemed to be
suspended. However, during the period of suspension the Participant's Account
shall continue to be vested as if no suspension had occurred.
Such suspension shall remain in effect until:
(a) the Participant is transferred to a job whereby he/she would be
re-eligible to be an active Participant in the Plan, or
(b) a termination occurs pursuant to Article XI of the Plan.
24
ARTICLE VIII
APPLICATION OF COMPANY CONTRIBUTIONS FORFEITED
SECTION 1. APPLICATION OF FORFEITURES
All Company Contributions and ESOP Contributions forfeited in accordance with
Article VI, Section 2 shall be used to reduce the Company's subsequent
contributions to the Plan. However, such forfeited Company Contributions and
ESOP Contributions will be restored to the Participant's Account should the
Participant exercise restoration rights as defined in Section 7 of Article XI.
In the event that the Plan is terminated, any forfeitures not previously applied
to reduce Company Contributions shall be credited (on the basis of each
individual Participant's current year Compensation as a ratio to the total
current year Compensation of all Participants) to the Accounts of all
Participants entitled to share in the allocation of Company Contributions at the
time of such termination.
SECTION 2. TREATMENT OF FORFEITED SECURITIES
Forfeited securities shall be converted to cash and be invested by the Trustee;
such cash shall be applied to the reduction of the next contribution by the
Company.
Upon forfeiture of a portion of the Company Contributions or ESOP Contributions,
the Trustee shall sell such amount of the securities allocated to the
Participant's Account as may be necessary to effect the forfeiture.
25
ARTICLE IX
WITHDRAWAL OF CONTRIBUTIONS
SECTION 1. WITHDRAWAL EVENTS
No amount may be withdrawn by a Participant from Company Wage Reduction
Contributions, Company Contributions, or ESOP Contributions earlier than the
occurrence of hardship (see Section 2 below) or one of the following events:
(a) the Participant's retirement, death, Total and Permanent Disability, or
termination of Employee status;
(b) termination of the Plan without establishment of a successor plan;
(c) the Participant's attainment of age 59 1/2;
(d) the sale or other disposition by the Company to an unrelated
corporation, which does not maintain the Plan, of substantially all of
the assets used in a trade or business, but only with respect to
employees who continue employment with the acquiring corporation;
(e) the sale or other disposition by the Company of its interest in a
subsidiary to an unrelated entity which does not maintain the Plan, but
only with respect to employees who continue employment with the
subsidiary.
(f) An Eligible Rollover Distribution by a Distributee to an Eligible
Retirement Plan in accordance with the provisions of Article XI,
Section 6.
SECTION 2. HARDSHIP WITHDRAWALS
If a Participant requests a hardship withdrawal prior to the occurrence of an
event in Section 1 above, such request will require the consent of the Committee
and such consent shall be given only if, under uniform rules, the Committee
determines that
(a) the purpose of the withdrawal is to meet immediate and heavy financial
needs of the Participant,
(b) the amount does not exceed such financial need, and
(c) the amount of the withdrawal is not immediately available from the
resources of the Participant.
A withdrawal made on account of hardship must be made first, from Company
Contributions and earnings (if Vested) and then only from Company Wage Reduction
Contributions of the Participant, and not from earnings credited thereto.
Employees who make a hardship withdrawal may not make elective contributions for
the tax year following the tax year of distribution, greater than the Code
Section 402(g) limit minus the elective contributions for the year of
distribution.
26
SECTION 3. FREQUENCY OF WITHDRAWALS.
Except for distribution at retirement, disability, or death, [Article XI,
Section 2(b)], withdrawals may not be made more frequently than once in any
twelve (12) month period.
27
ARTICLE X
DESIGNATION OF BENEFICIARY
Each Participant must file with the Committee a written designation of a
Designated Beneficiary or Beneficiaries in the form prescribed by the Committee
with respect to all or part of the securities and cash held for the account of
such Participant. Such Designated Beneficiary shall be a Participant's spouse
or, if he/she has no spouse or his/her spouse consents (in the manner
hereinafter described in this Article) to the designation hereinafter provided
for in this Article, such person or persons other than, or in addition to,
his/her spouse as may be designated by a Participant as his/her death
beneficiary under the Plan. Such a designation may be made, revoked or changed
only by an instrument (in form acceptable to the Committee) which is signed by
the Participant, which includes his/her spouse's written consent to the action
to be taken pursuant to such instrument (unless such action results in the
spouse being named as the Participant's sole Beneficiary), and which is filed
with the Committee before the Participant's death. A spouse's consent required
by this Article shall be signed by the spouse, shall acknowledge the effect of
such consent, shall be witnessed by a member of the Committee or by a notary
public and shall be effective only with respect to such spouse. At any time when
all the persons designated by the Participant as his/her Designated Beneficiary
have ceased to exist, his/her Designated Beneficiary shall be his/her spouse or,
if he/she does not then have a spouse, the Participant's estate. If a
Participant has no spouse and he/she has not made an effective Beneficiary
designation pursuant to this Article, his/her Designated Beneficiary shall be
his/her estate.
28
ARTICLE XI
DISTRIBUTION OF CONTRIBUTIONS
SECTION 1. DISTRIBUTION UPON OCCURRENCE OF EVENTS
Subject to the provisions of Section 3 of this Article, distributions may be
made to a Participant or the Designated Beneficiary, as the case may be, upon
the occurrence of the following stated events:
(a) Termination of a Participant's participation in the Plan, or cessation
of the Participant's right to share in the allocation of the Company
Contributions or ESOP Contributions made to the Plan (other than a
temporary cessation on account of a temporary suspension of Participant
contributions), or
(b) Termination of the Plan without establishment of a successor plan, or
(c) The sale or other disposition by the Company to an unrelated
corporation, which does not maintain the Plan, of substantially all of
the assets used in a trade or business, but only with respect to
employees who continue employment with the acquiring corporation, or
(d) The sale or other disposition by the Company of its interest in a
subsidiary to an unrelated entity which does not maintain the Plan, but
only with respect to employees who continue employment with the
subsidiary.
Effective as of January 1, 1998, if the present value of any nonforfeitable
accrued benefit, at the time of distribution or at the time of any subsequent
distribution, exceeds $5,000 such benefit may not be immediately distributed
without the consent of the Participant.
SECTION 2. TERMINATION OF A PARTICIPANT'S ACTIVE PARTICIPATION IN THE PLAN
A Participant's Active Participation in the Plan will be terminated if he/she:
(a) Voluntarily elects to cease contributions to the Plan,
(b) Terminates employment from the Company voluntarily or involuntarily,
(c) Retires from the Company under one of its retirement programs,
(d) Suffers a Total and Permanent Disability,
(e) Dies,
(f) Becomes Vested in all Company Contributions and ESOP Contributions in
his/her Account and remains in a job whereby he/she is ineligible to be
an active Participant in the Plan.
29
SECTION 3. DISTRIBUTION PRIOR TO VESTING OF COMPANY CONTRIBUTIONS AND ESOP
CONTRIBUTIONS
If a Participant terminates employment with the Company, either voluntarily or
involuntarily, before the Company Contributions or ESOP Contributions are
Vested, the Participant will receive the then current market value of the larger
of:
(a) the Participant's Pre-Tax Savings Plan Contributions, plus all earnings
(not to exceed the current market value of the entire Account), or
(b) the current market value of the entire Account less the Unvested
Company Contributions and Unvested ESOP Contributions.
If a Participant, who remains an employee of the Company but is not at least age
59 1/2, voluntarily elects to withdraw from the Plan before any of the Company
Contributions or ESOP Contributions are Vested, he/she will receive the amount
described above in this Section 3, less the then current market value of his/her
Pre-Tax Savings Plan Contributions subaccount. Such Participant shall, upon
attainment of age 59 1/2, receive the then current market value of his/her
Pre-Tax Savings Plan Contributions subaccount.
SECTION 4. DISTRIBUTION AFTER VESTING OF COMPANY CONTRIBUTIONS AND ESOP
CONTRIBUTIONS
Subject to Article XI, Section 1, if a Participant terminates employment with
the Company after Company Contributions and ESOP Contributions are Vested, the
Participant will receive the then current market value of the entire Account
when he/she elects to make a voluntary withdrawal.
If a Participant, who remains an Employee of the Company but is not at least age
59 1/2, voluntarily elects to withdraw from the Plan after Company Contributions
and ESOP Contributions are Vested, or remains in a job whereby he/she is
ineligible to be an active Participant in the Plan, he/she will receive the
amount described above in this Section 4, less the then current market value of
his/her Pre-Tax Savings Plan Contributions subaccount. Such Participant shall,
upon attainment of age 59 1/2, receive the then current market value of his/her
Pre-Tax Savings Plan Contributions subaccount. If a Participant who remains
employed by the Company and who has attained age 59 1/2, voluntarily elects to
withdraw from the Plan after he/she becomes Vested in Company Contributions and
ESOP Contributions credited to his/her Account, he/she will receive the entire
amount described in this Section 4 as if he/she had terminated employment with
the Company.
SECTION 5. DISTRIBUTION UPON RETIREMENT, DEATH OR DISABILITY
If a Participant dies, retires or suffers a Total and Permanent Disability, the
Participant or Designated Beneficiary will receive the then current market value
of his/her Account. Distribution will not occur upon retirement or Total and
Permanent Disability in the event a Participant elects to defer the commencement
of distribution in accordance with Section 6 of this Article.
SECTION 6. DISTRIBUTION OF ACCOUNTS
30
(a) Form of Distribution of Accounts to a Participant During His/Her
Lifetime:
If a Participant terminates participation in the Plan, due to a
separation from service or, if earlier, age 59 1/2, distribution shall
be made, subject to other limitations of this Plan, by one of the
following methods as he/she shall elect:
(1) Payment in cash, or
(2) If the Participant has selected one or more of the Investment
Options:
(i) payment in cash,
(ii) payment in securities held for the Participant's
Account, or
(iii) a combination of (i) and (ii) above at the option of
the Participant.
(b) Distribution of Cash and/or Securities
Distribution of cash and/or securities to a Participant who either (i)
retires from the Company under one of its retirement programs (ii)
suffers a Total and Permanent Disability, or (iii) dies, or (iv)
becomes Vested in all Company Contributions and ESOP Contributions in
his/her Account and remains in a job whereby he/she is ineligible to be
an active Participant in the Plan, shall be made, at the Participant's
or Designated Beneficiary's option, in one of the following forms:
(1) A single distribution to be received within ninety (90) days
from the date the Participant terminated participation in the
Plan,
(2) Two (2) installment distributions, with the first installment
to be at least fifty percent (50%) of the Participant's
Account balance (as determined in Section 3, 4 or 5 of this
Article) and to begin within ninety (90) days from the date
the Participant terminated participation in this Plan, and the
second and final installment to include the remainder of the
Account balance and to be received within twenty-four (24)
months after the date the Participant terminated participation
in this Plan.
(3) For events described in Section 1(c) or 1(d) of this Article,
distribution will be made in a lump sum as provided by Section
401(k)(10) of the Code.
Distribution of cash and/or securities to a Participant who voluntarily
elects to withdraw from the Plan or terminates employment from the
Company, voluntarily or involuntarily, shall be made in a single
distribution to be received within ninety (90) days from the date the
Participant terminated participation in the Plan.
Notwithstanding the foregoing, a Participant who retires from the
Company under one of its retirement programs (except a deferred vested
pension) may elect to defer the commencement of distribution and remain
a Participant in this Plan until no later than
31
April 1 of the calendar year following the calendar year in which
he/she attains age 70-1/2.
Should the Participant fail to select a form of distribution as
previously described, the final distribution will be made in a single
distribution as described in Section 6(b) (1) of this Article, in the
form of the Investment Option(s) then in the Account.
If a Participant should die before (all) distribution(s) has (have)
been made, such distribution(s) shall be made to the Designated
Beneficiary.
(c) Distribution in Case of the Death of a Participant While an Employee
In the event of the death of a Participant while an employee,
distribution shall be made in accordance with Article X. Each
Designated Beneficiary shall make an appropriate election as provided
in Section 6(b) of this Article.
If the Designated Beneficiary should die before the final distribution
has been made then such final distribution shall be made to the legally
appointed representative(s) of the Designated Beneficiary.
(d) Direct Rollover of Eligible Rollover Distributions
This subsection applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a Distributee's election under this subsection, a
Distributee, as defined under paragraph (1)(iii) of this subsection,
may elect, at the time and in the manner prescribed by the plan
administrator, to have any portion of an Eligible Rollover
Distribution, as defined under paragraph (1)(i) of this subsection,
paid directly to an Eligible Retirement Plan, as defined under
paragraph (1)(ii) of this subsection, specified by the Distributee in a
Direct Rollover, as defined under paragraph (1)(iv) of this subsection.
(1) Definitions
(i) Eligible Rollover Distribution: An Eligible Rollover
Distribution is any distribution of all or any portion of the
balance to the credit of the Distributee except that an
Eligible Rollover Distribution does not include any
distribution to the extent such distribution is required under
section 401(a)(9) of the Code, any distribution that is one of
a series of substantially equal periodic payments (paid not
less frequently than annually) over the life (or life
expectancy) of the distributee or the joint lives (or life
expectancies) of the distributee and a designated beneficiary
or for a specified period of ten years or more, the portion of
any distribution that is not includible in gross income, such
other amounts specified in Treasury regulations and rulings,
notices or announcements issued under Section 402(c) of the
Code, and, effective January 1, 1999, any "hardship"
distribution (as defined in Code Section 401(k)).
32
(ii) Eligible Retirement Plan: An Eligible Retirement Plan is an
individual retirement account described in section 408(a) of
the Code, an individual retirement annuity described in
section 408(b) of the Code, an annuity plan described in
section 403(a) of the Code, or a qualified trust described in
section 401(a) of the Code, that accepts the Distributee's
Eligible Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to the surviving spouse, an
Eligible Retirement Plan is an individual retirement account
or individual retirement annuity.
(iii) Distributee: A Distributee includes a Participant or the
Participant's surviving spouse or Participant's former spouse
who is the alternate payee under a qualified domestic
relations order, as defined in section 414(p) of the Code.
(iv) Direct Rollover: A Direct Rollover is a payment by the Plan to
the Eligible Retirement Plan specified by the Distributee.
(e) Miscellaneous Provisions Relating to Distributions
Any distribution to which a Participant or the Designated Beneficiary
may be entitled shall have deducted therefrom all incident expenses
and/or taxes.
The Committee shall be notified upon forms prescribed by it as to all
actions which are to be taken under this Section by a Participant or
Designated Beneficiary.
The Trustee shall be notified in writing by the Committee concerning
any action required by the Trustee to be taken under this Section.
Unless the Participant elects otherwise, in no event shall any
retirement, death, or disability benefit commence later than the
sixtieth (60th) day after the latest of the close of the Plan Year in
which (1) occurs the date on which the Participant attains the earlier
of age 65 or the normal retirement age specified hereunder (if other
than 65) (whether or not by reason of reference to the Company's
retirement programs), (2) occurs the tenth anniversary of the year in
which the Participant commenced participation in the Plan, or (3) the
Participant terminates service with the Company.
(f) Provision Pursuant to Code Section 401(a)(9)
All distributions required under this Article XI shall be determined
and made in accordance with the proposed regulations under Code Section
401(a)(9) including the minimum distribution incidental benefit
requirement of section 1.401(a)(9)-2 of the proposed regulations, as
may be amended or promulgated from time to time.
(1) Notwithstanding any other provision of the Plan, for
individuals who are five percent (5%) owners (as defined in
Section 416 of the Code) or who attain age seventy and
one-half (70 1/2) in Plan Years prior to 2003, the entire
interest of each such Participant under the Plan shall be
distributed, commencing not later than April 1
33
of the calendar year following the calendar year in which
he/she attains age seventy and one-half (70 1/2).
For individuals who are not five percent (5%) owners (as
defined in Section 416 of the Code) and who attain age seventy
and one-half (70 1/2) in Plan Years after 2002, the entire
interest of each such Participant in the Plan shall be
distributed to him/her by April 1 of the calendar year
following the later of either:
(i) the calendar year in which the Employee attains age
seventy and one-half (70-1/2), or
(ii) the calendar year in which the Employee retires.
Such distribution shall be (1) in accordance with regulations
prescribed by the Secretary of the Treasury, over the life of
such Participant and his/her Designated Beneficiary, or (2) in
accordance with such regulations, over a period not extending
beyond the life expectancy of such Participant or the life
expectancy of such Participant and his/her Designated
Beneficiary.
(2) If distribution of a Participant's interest under the Plan has
begun in accordance with paragraph (1) of this subsection and
such Participant dies before his/her entire interest has been
distributed to him/her, the remaining portion of such interest
shall be distributed to his/her Designated Beneficiary at
least as rapidly as under the method of distribution being
used under such paragraph (1) as of the date of his/her death.
(3) If a Participant dies before the distribution of his/her
interest under the Plan has begun in accordance with paragraph
(1) of this subsection, the entire interest of the Participant
shall be distributed to his/her Designated Beneficiary within
five (5) years after such Participant's death; provided,
however, that such five-year rule shall not be applicable to
any portion of the Participant's interest under the Plan which
is payable to any individual designated by the Participant as
his/her Designated Beneficiary if:
(i) such portion will be distributed (in accordance with
regulations prescribed by the Secretary of the
Treasury) over the life of such Designated
Beneficiary, and
(ii) such distributions to such Designated Beneficiary
begin not later than one year after the date of the
Participant's death or such later date as the
Secretary of the Treasury may by regulations
prescribe or, if such Designated Beneficiary is the
Participant's surviving spouse, not later than the
date on which the Participant would have attained age
70-1/2.
(4) If the Participant's surviving spouse is his/her Designated
Beneficiary and such spouse dies before the distributions to
such spouse begin, paragraph (3) shall be applied as if the
surviving spouse were the Participant.
34
(5) Under regulations prescribed by the Secretary of the Treasury,
for purposes of this subsection, any amount paid to a child
shall be treated as if it had been paid to the surviving
spouse if such amount will become payable to the surviving
spouse upon such child reaching majority (or other designated
event permitted under such regulations).
SECTION 7. RESTORATION OF FORFEITED COMPANY CONTRIBUTIONS AND ESOP CONTRIBUTIONS
Each Participant who has forfeited any Company Contributions or ESOP
Contributions has the right to gain restoration of the forfeited Company
Contributions and ESOP Contributions. A Participant who (i) terminates
participation in this Plan pursuant to Sections 2(a), (b) or (c) of this Article
XI, (ii) ceases to be an Employee of the Controlled Group, (iii) forfeits his
Unvested Company Contributions and ESOP Contributions pursuant to clause (i) of
the third paragraph of Section 2 of Article VI and (iv) subsequently becomes
rehired by the Controlled Group, will have the right within the earlier of (1)
five (5) years after re-employment or (2) the close of five (5) consecutive
Severance Periods commencing after the date of distribution, to restore to the
Account the dollar value of the previously forfeited Company Contributions and
ESOP Contributions by contributing back to the Account the total lump sum amount
(dollar value as of the date of distribution) of the distribution which caused
the forfeiture.
SECTION 8. DETERMINATION OF VALUE
Determinations of value hereunder shall be made pursuant to an annual valuation
by the Trustee at the fair market value as of the close of business on the
annual valuation date to be established by the Trustee. If no such date is
established, the annual valuation date shall be the last day of the Plan Year.
Interim valuations, or partial valuations of one or more of the investment
funds, may occur upon the direction of the Committee. The then current value of
a Participant's Account, or any part thereof, as of any date, shall be
determined by reference to the valuation (whether or not the annual valuation)
coincident with or last preceding the date as of which such Account is to be
valued.
35
ARTICLE XII
MAXIMUM CONTRIBUTION LIMITATION
SECTION 1. PROVISION PURSUANT TO CODE SECTION 415(c)
(a) MAXIMUM ANNUAL ADDITION: The "annual addition" to a Participant's
Account shall not exceed the lesser of (i) $30,000 (as adjusted,
effective January 1, 1995, pursuant to Section 415(d) of the Code) or
(ii) twenty-five percent (25%) of the Participant's Compensation (as
defined in paragraph (d) below) for that Plan Year. The Compensation
limitation in (a)(ii) above shall not apply to amounts treated as
Annual Additions under Sections 415(l)(1) or 419A(f)(2) of the Code.
The term "annual addition" means the amount allocated to a
Participant's Account during the limitation year (as hereinafter
defined) that constitutes:
1. Forfeitures;
2. all Employee contributions; and
3. amounts allocated to an individual medical account,
as defined in section 415(1)(2) of the Code, which is
part of a pension or annuity plan maintained by the
Company are treated as annual additions to a defined
contribution plan. Also amounts derived from
contributions paid or accrued which are attributable
to post-retirement medical benefits, allocated to the
separate account of a key employee, as defined in
section 419A(d)(3) of the Code, under a welfare
benefit fund, as defined in section 419(e) of the
Code, maintained by the Company are treated as annual
additions to a defined contribution plan.
4. all Company Contributions
Any amount which may be excluded from the computation of annual
additions under Treas. Reg. 1.415-6 shall be excluded from such
computation.
In addition, all defined contribution plans of the Company, terminated
or not, shall, for purposes of these limitations, be considered as one
Plan.
(b) LIMITATION YEAR: For purposes of determining "annual additions", the
Limitation Year shall be the Plan Year.
(c) In the case of a group of Companies which constitutes a controlled
group of corporations (as defined in Section 1563(a) of the Code), all
such Companies shall be considered a single Company or employer for
purposes of applying the limitation of Section 415 of the Code.
(d) COMPENSATION. For purposes of this Section 1, Compensation shall mean
compensation within the meaning of Section 415(c)(3) of the Code and
the regulations thereunder. For limitation years beginning on and after
January 1, 2001, for purposes of applying the limitations described in
this section, compensation paid or made available during such
36
limitation years shall include elective amounts that are not includible
in the gross income of the Employee by reason of Section 132(f)(4) of
the Code.
(e) ADJUSTMENT FOR EXCESSIVE CONTRIBUTION. If, as a result of the
allocation of forfeitures, a reasonable error in estimating a
Participant's Compensation, or under other facts and circumstances
provided for under Treasury Regulation 1.415- 6(b)(6), the annual
addition to a Participant would exceed the maximum provided in this
Section 1, the administrator shall return any voluntary Participant
contributions credited for the Limitation Year to the extent the return
would reduce the excess amounts in the Participant's Accounts; to the
extent excess amounts continue to exist, the excess amounts shall be
allocated and reallocated to other Participants in the Plan. However,
if such allocation or reallocation of the excess amounts causes the
limitations of Section 415 to be exceeded with respect to each Plan
Participant for the Limitation Year, then such amounts shall be held
unallocated in a suspense account (the "Section 415 Suspense Account").
If a Section 415 Suspense Account is in existence at any time during a
particular Limitation Year, other than the Limitation Year described in
the preceding sentence, all amounts in the Section 415 Suspense Account
shall be allocated and reallocated (subject to the limitations of
Section 415) before any contributions by the Company which would
constitute annual additions may be made to the Plan for that Limitation
Year. The Section 415 Suspense Account shall not share in any earnings
or losses of the Trust Fund.
SECTION 2. PROVISION PURSUANT TO SECTION 415(e) OF THE CODE
This Section 2 shall not apply after December 31, 1999.
(a) Except as otherwise provided in Section 415(e) of the Code, in any case
in which an individual is a participant in both a defined benefit plan
and a defined contribution plan maintained by the Affiliated Group, the
sum of the defined benefit plan fraction and the defined contribution
plan fraction for any Plan Year commencing on or after the Effective
Date shall not exceed 1. For purposes of the preceding sentence,
(1) the defined benefit plan fraction for any Plan Year is a
fraction (i) the numerator of which is the projected annual
benefit of the participant under the plan (determined as of
the close of the Plan Year), and (ii) the denominator of which
is the lesser of (A) the product of 1.25, multiplied by the
dollar limitation in effect under Section 415(b)(1)(A) of the
Code for such Year, or (B) the product of 1.4, multiplied by
the amount which may be taken into account under Section
415(b)(l)(B) of the Code with respect to such participant
under the plan for such Year; and
(2) the defined contribution plan fraction for any Plan Year is a
fraction (i) the numerator of which is the sum of the annual
additions to the participant's account as of the close of the
Plan Year and for all prior Plan Years, and (ii) the
denominator of which is the sum of the lesser of the following
amounts determined for such Plan Year and for each prior Plan
Year of service with the Affiliated Group;
37
(A) the product of 1.25, multiplied by the
dollar limitation in effect under Section
415(c)(1)(A) of the Code for such Plan Year,
or
(B) the product of 1.4, multiplied by the amount
which may be taken into account under
Section 415(c)(1)(B) of the Code with
respect to such participant under such plan
for such Plan Year.
(b) Such reductions as are necessary to comply with the
limitations of this Section with respect to a Participant in
this Plan shall be made in his/her accrued benefit in
accordance with applicable law; provided, however, that
reductions shall first be made in accrued benefits in
accordance with the provisions of any defined contribution
plan of a controlled group member in which the Participant
also participates prior to reduction in annual additions
pursuant to a defined benefit plan, and to that end the
Company shall reduce such accrued benefits to the extent
necessary so that the defined contribution fraction set forth
in Subsection (a) (1) of this Section is reduced so that such
limitations are not exceeded, and reduction of annual
additions shall then be made in accordance with the provisions
of this Plan as are necessary to comply with the limitations
of this Section.
SECTION 3. ANTI-DISCRIMINATION TEST
Notwithstanding the terms of the Plan, the Pre-tax Savings Plan Contributions of
a Participant shall be limited, to the extent necessary to satisfy the
anti-discrimination tests set forth in Code Section 401(k)(3). For each Plan
Year the Average Actual Deferral Percentage for the Highly Compensated Employees
with respect to any Plan Year shall not exceed the greater of (a) or (b):
(a) The average Actual Deferral Percentage for the Eligible Employees who
are Non- Highly Compensated Employees for the Plan Year multiplied by
1.25, or
(b) The Actual Deferral Percentage for the Eligible Employees who are
Non-Highly Compensated Employees multiplied by 2; provided, however,
that the Average Actual Deferral Percentage for the Highly Compensated
Employees may not exceed the Actual Deferral Percentage for the
Eligible Employees who are Non-Highly Compensated Employees by more
than two (2) percentage points (or such lesser amount as determined by
the Secretary of Treasury).
If, at any time during a Plan Year, the Actual Deferral Percentage for
the Highly Compensated Employees exceeds or is reasonably expected by
the Committee to exceed the greater of (a) or (b) above, then the
Committee, in its sole and absolute discretion, shall distribute the
Excess Contributions (as hereinafter defined) and income allocable to
the contributions to the Highly Compensated Employees on whose behalf
such Excess Contributions were made. For purposes of this Section 3,
Excess Contributions shall mean the amount determined pursuant to
Section 401(k)(8)(B) of the Code. A Participant's Excess Contribution
shall be reduced, as determined by Secretary of the Treasury, by the
amount of any Excess Deferrals which are distributed to the Participant
pursuant to Section 1 of Article III. Any distribution of the Excess
Contributions shall be made to each Highly Compensated Employee based
on his respective portion of the Excess Contributions by reducing the
amount of Pre-Tax Savings Plan Contributions
38
actually paid over to the Trust on behalf of the Employee whose Pre-Tax
Savings Plan Contribution is the greatest of the Highly Compensated
Employees until such Participant's Pre-Tax Savings Plan Contribution is
equal to the Pre-Tax Savings Plan Contribution of the Highly
Compensated Employees whose Pre-Tax Savings Plan Contribution is the
second greatest and continuing to prospectively reduce the amount of
Company Contributions to be paid over to the Trust on behalf of the
Highly Compensated Employees in a like manner until the Actual Deferral
Percentage of the Highly Compensated Employees equals (by rounding up)
for the Plan Year the greater of (a) or (b) above.
The income allocable to a Participant's Excess Contributions shall be
determined by multiplying the income allocable to the Participant's
Pre-tax Savings Plan Contribution by a fraction, the numerator of which
is the Participant's Excess Contribution and the denominator of which
is the Participant's balance in his Company Wage Reduction Contribution
Account as of the last day of the Plan Year.
The Excess Contributions which would otherwise be distributed to the
Participant shall be adjusted for income; shall be reduced, in
accordance with regulations, by the amount of Excess Deferrals
distributed to the Participant; shall, if there is a loss allocable to
the Excess Contributions, in no event be less than the lesser of the
Participant's Accounts under the Plan or the Participant's Company Wage
Reduction Contribution for the Plan Year.
Amounts distributed under this Section 3 shall be treated as a
reduction in the amount of Compensation to be reduced pursuant to
Section 1 of Article III by each Participant.
In calculating the actual deferral percentage for purposes of section
401(k), the actual deferral ratio of a Highly Compensated Employee will
be determined by treating all cash or deferred arrangements under which
the Highly Compensated Employee is eligible (other than those that may
not be permissively aggregated) as a single arrangement.
This paragraph shall apply until January 1, 1997. In the case of a
Highly Compensated Employee who is one of the ten most Highly
Compensated Employees and is thereby subject to the family aggregation
rules of Section 414(q)(6), the actual deferral ratio (ADR) for the
family group (which is treated as one Highly Compensated Employee) is
the ADR determined by combining the elective contributions,
compensation and amounts treated as elective contributions of all
eligible family members. Except to the extent taken into account in the
preceding sentence, the elective contributions, compensation, and
amounts treated as elective contributions of all family members are
disregarded in determining the Actual Deferral Percentages for the
groups of Highly Compensated Employees and nonhighly compensated
employees.
This paragraph shall apply until January 1, 1997. In the case of a
Highly Compensated Employee whose ADR is determined under the family
aggregation rules, the determination of the amount of excess
contributions shall be made as follows: The ADR is reduced in
accordance with the "leveling" method described in section
1.401(k)-1(f)(2)
39
of the regulations and the excess contributions are allocated among the
family members in proportion to the contributions of each family member
that have been combined.
Failure to correct Excess Contributions by the close of the Plan Year
following the Plan Year for which they were made will cause the Plan to
fail to satisfy the requirements of Code Section 401(k)(3) for the Plan
Year for which the Excess Contributions were made and for all
subsequent years they remain in the Trust Fund. The Company will be
liable for a ten percent (10%) excise tax on the amount of Excess
Contributions unless they are corrected within two and one-half (2 1/2)
months after the close of the Plan Year for which they were made.
To the extent required by the Code and Treasury Regulations, the
limitations set forth in Section 2 shall be applied separately to each
of the Non-ESOP Feature and the ESOP Feature. Notwithstanding the
foregoing, for purposes of applying this Section 3 for any Plan Year in
which
(c) the ESOP Feature is maintained, and
(d) the requirements of Sections 401(k)(12) and 401(m)(11) of the Code are
not satisfied a single Actual Deferral Percentage will be calculated
for the group of eligible Employees who are Highly Compensated
Employees and a single Actual Deferral Percentage will be calculated
for the group of Eligible Employees who are Non-Highly Compensated
Employees for the Plan Year, notwithstanding the existence of the ESOP
portion of the Plan and the disaggregation rules of Treasury Regulation
Sections 1.401(k)-1(g)(11) and 1.410(b)-7(c)(2), by reason of the fact
that, notwithstanding the ESOP, all Pre-Tax Savings Plan Contributions
made in such Plan Year are allocated to the Pre-Tax Savings Plan
Contributions subaccount of the Participant's Non-ESOP Account in such
Plan Year (including any Pre-Tax Savings Plan Contributions that are
invested in Common Stock) and such account is not part of the ESOP, and
all Company Contributions made in such Plan Year are allocated to the
Company Contribution subaccount of the Participant's Non-ESOP Account
in such Plan Year (including any Company Contributions that are
invested in Common Stock) and such account is not part of the ESOP.
40
ARTICLE XIII
RESERVED
41
ARTICLE XIV
ADMINISTRATION OF THE PLAN
SECTION 1. SAVINGS PLAN COMMITTEE
The Plan shall be administered by the Defined Contribution Plan Committee which
shall be appointed by the Board of Directors of the Company.
The Committee shall consist of at least three (3) members who shall be
designated from time to time by the Board of Directors of the Company, and shall
act by at least a majority of members.
The Committee, by a majority vote of its members, shall appoint a plan
administrator, chairman and secretary. The plan administrator as appointed by
the Committee shall be the "Named Fiduciary" of the Plan with respect to
administrative matters, and the Trustee shall be the "Named Fiduciary" with
respect to the handling of Plan assets.
The Board of Directors shall, from time to time, notify the Trustee of the
number and the identity of the members of the Committee and the Trustee shall be
entitled to rely upon such notices.
SECTION 2. ADMINISTRATION OF THE PLAN BY THE COMMITTEE
The Committee shall adopt such uniform and nondiscriminatory administrative
regulations under the Plan as it shall deem to be necessary or appropriate for
the efficient administration of the Plan.
The Committee shall have sole and absolute discretion to interpret the
provisions of the Plan or Trust Agreement (including, without limitation, by
supplying omissions from, correcting deficiencies in, or resolving
inconsistencies or ambiguities in, the language of the Plan or Trust Agreement),
to make factual findings with respect to any issue arising under the Plan, to
determine the rights and status under the Plan of Participants and other
persons, to decide disputes arising under the Plan and to make any
determinations and factual and other findings with respect to the benefits
payable thereunder and the persons entitled thereto as may be required for the
purposes of the Plan. In furtherance of, but without limiting, the foregoing,
the Committee is hereby granted the following specific authorities, which it
shall discharge in its sole and absolute discretion in accordance with the terms
of the Plan (as interpreted, to the extent necessary, by the Committee):
(a) to resolve questions (including factual questions) arising under the
provisions of the Plan as to any individual's entitlement to become a
Participant;
(b) to determine the amount of benefits, if any, payable to any person
under the Plan (including, to the extent necessary, making any factual
findings with respect thereto); and
(c) to conduct the review procedure specified in Section 3(g) of this
Article.
The Committee shall have full power and authority to administer the Plan and to
interpret its provisions, and its interpretations shall be final and binding
upon the Company, its personnel, the
42
Union, the Trustee and all other parties in interest, subject to the provisions
of Section 3 of this Article.
SECTION 3. FIDUCIARY PROVISIONS
(a) Named Fiduciaries
Among the named fiduciaries under the Plan shall be the Company, and
the Trustee, investment advisors or insurance companies, each of which
shall have such powers, duties, responsibilities and authority as shall
be specified in the Plan or trust agreement entered into for the
purpose of managing the Trust Fund, subject to any delegation thereof
as provided in the Plan or such trust agreement. Any other person,
entity, committee, board, department, office, or identifiable part of
any legal entity may be designated by the Company as a named fiduciary
by an instrument signed by the Company, delivered to such designated
named fiduciary and to the Trustee and accepted in writing by the
designated named fiduciary. Any such designation may be terminated at
any time by the Company or by such named fiduciary by written notice
delivered to the other of them and to the Trustee.
(b) Liability of Fiduciaries
To the extent permitted by law, (1) neither the Company nor any
director, officer, or Employee shall be personally liable upon any
contract or other instrument made or executed by him/her or it or in
his/her or its behalf in the administration of the Plan or the Trust
Fund; (2) neither the Company nor any director, officer, or Employee
who is a fiduciary shall be liable for the neglect, omission or
wrongdoing of any other fiduciary; (3) the Company, person, committee
or board and each member thereof to whom the Company delegates (or the
Plan or trust agreement assigns) any duty with respect to the Plan or
Trust Fund, may rely and shall be fully entitled to act upon the advice
of counsel, who may be of counsel for the Company, and upon the
opinion, certificate, valuation, report, recommendation or
determination of an actuary appointed by the Company to assist in the
operation of the Plan; (4) the Company and each director, officer, or
Employee who is a fiduciary shall be solely responsible for his/her own
acts or omissions; and (5) if any responsibility of the Company or of a
director, officer, or Employee who is a fiduciary is allocated to any
other person or if a person is designated to carry out any
responsibility in accordance with the provisions of the Plan or trust
agreement, then such fiduciary shall not be responsible for any act or
omission of such person in carrying out such responsibility.
(c) Delegation of Fiduciary Duties
The Company may delegate to any person, entity, committee, board,
department, office, or identifiable part of any legal entity any one or
more powers, functions, duties or responsibilities with respect to the
Plan or the Trust Fund, provided that no such power, function, duty or
responsibility which is assigned to a fiduciary (other than the
Company) pursuant to some other Section of the Plan or the trust
agreement shall be so delegated without the written consent of such
fiduciary.
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Any delegation pursuant to the preceding provisions: (1) shall be
signed by the Company and be delivered to and accepted in writing by
the delegate, (2) shall contain such provisions and conditions relating
to such delegation as the Company deems appropriate, (3) may be amended
from time to time by written agreement signed on behalf of the Company
and the delegate and (4) may be revoked (in whole or in part) at any
time by written notice from the Company delivered to the delegate or
from the delegate to the Company.
(d) Personal Liability of Non-Fiduciaries
Except for gross neglect or malfeasance, no non-fiduciary officers,
directors or Employees of the Company shall be personally liable for
acts done hereunder or related hereto, or for the making, retention or
sale of any contract or contracts made as herein provided, or for the
failure to invest or reinvest any funds or for any loss to or
diminution of the Trust Fund, nor shall any of them be personally
liable for or answerable to any Participant or any other person in
connection with any exercise of discretion under the terms of this
instrument relating to the payment or non-payment of benefits.
(e) Defense of Fiduciaries and Non-Fiduciaries
The Company shall, at its expense, defend or provide for the defense of
any or all fiduciary or non-fiduciary officers, directors or employees
of the Company against any such claims, allegations, suits, or charges
relating to or incidental to the above matter, and shall continue to do
so in any given cases, unless and until it shall clearly appear that
gross neglect or malfeasance is involved in any such particular case.
(f) Claims for Benefits
Claims for benefits from this Plan shall be submitted to the designated
representative of the Committee on such forms as may be designated by
the Committee.
(g) Appeals Procedure
Upon the denial of any form of benefit, either partial or total, the
Participant or Designated Beneficiary shall have the right to receive
from the Committee a written notice stating:
(1) The specific reason for denial,
(2) The pertinent Section of the Plan on which the denial was
based,
(3) Other information the Committee may feel necessary to explain
the denial, and
(4) An explanation of the claims review procedure.
The Participant, Designated Beneficiary or a duly authorized
representative, may, within ninety (90) days of such denial, file with
the Plan Administrator an appeal for review of denial of benefits. In
considering any appeal pursuant to this Section 3(g), the Plan
44
Administrator shall have the same powers to interpret the Plan and make
factual findings with respect thereto as are granted to the Committee
under Section 2 hereof. The Participant, Designated Beneficiary or duly
authorized representative shall have the right to examine all pertinent
documents relating to the original denial within sixty (60) days of the
filing date of such appeal, the Committee shall review such appeal and
provide the Participant a decision as to denial or approval. Such
decision shall be in writing and shall cover all pertinent facts
considered in making the decision.
SECTION 4. ACTION BY THE COMPANY
Any action by the Company under this Plan shall be made pursuant to
authorization of its Board of Directors.
SECTION 5. DELEGATION OF TRUSTEE'S FUNCTIONS
The Trustee and the Committee may, by agreement in writing, arrange for the
delegation by the Trustee to the Company of any of the functions of the Trustee,
except the custody and distribution of assets, the voting of Common Stock held
by the Trustee, and the purchase and sale or redemption of securities.
SECTION 6. DUTIES OF THE TRUSTEE
The Trustee shall keep accurate and detailed accounts of all investments,
receipts and disbursements and other transactions.
The Trustee shall annually, following the close of each Plan Year, revalue and
adjust each Participant's Account at its current market value at the end of the
Plan Year.
The Trustee shall furnish at least annually to each Participant a statement
showing the status of his/her Account under the Plan. This statement shall be
deemed to have been accepted as correct unless written notice to the contrary is
received by the Trustee within thirty (30) days after its mailing or delivery
(if distribution is other than by mail) to a Participant.
SECTION 7. ACCOUNTS OF THE TRUSTEE
The annual financial statement of the Plan shall be audited annually by auditors
selected by the Company.
SECTION 8. RECORDS
The records of the Trustee, Committee and the Company shall be conclusive with
respect to all matters involved in the administration of this Plan.
SECTION 9. VOTING OF COMMON STOCK
(a) Each Participant shall have the right to direct the Trustee as to the
manner in which voting rights with respect to shares of Common Stock
held in the Participant's Account shall be exercised.
45
(b) In order to implement the voting rights granted in this Section, the
Company shall furnish to the Trustee such information as will be
distributed to shareholders of the Company in connection with each such
vote and a form for the use by Participants in directing the Trustee as
to the manner in which voting rights shall be exercised (the
"Documents"), in quantities approximately equal to the number of
Participants holding shares of Common Stock in Accounts at the time of
such distribution. The Trustee shall use its best efforts to distribute
or cause to be distributed to each Participant the Documents as soon as
practicable following the furnishing of the Documents to the Trustee.
The Trustee will follow the written directions of each Participant with
respect to the voting of the shares of Common Stock held in such
Participant's Account, provided that such written directions are
received by the Trustee by the close of business two (2) days prior to
the time such shares must be voted. Any such written direction by a
Participant to the Trustee shall be effective as of the date such
direction is received by the Trustee. Each Participant shall be
permitted to revoke or change such direction, provided such revocation
or change is received in writing by the Trustee by the close of
business two (2) days prior to the time such shares of Common Stock
must be voted.
(c) In the absence of written direction from a Participant in accordance
with Section 9(b) of this Article, the Trustee shall vote all shares of
Common Stock held in such Participant's Account in the same manner in
which the Trustee is directed by Participants, pursuant to Section 9(b)
of this Article, to vote the majority of the aggregate shares of Common
Stock held in such Participants' Accounts unless the Trustee is
required, by ERISA, to vote the stock in a different manner.
(d) The right granted to each Participant pursuant to this Section 9 to
direct the manner in which shares of Common Stock allocated to such
Participant's Account are voted, and the provisions instructing the
Trustee regarding the manner in which voting rights with respect to
such shares shall be exercised in the absence of written directions
from a Participant, shall include the manner in which the rights with
respect to corporate action by shareholder consent is exercised.
(e) The Designated Beneficiary of each Participant shall be entitled to
receive all distributions of Documents and to exercise all of the
rights granted to each such Participant pursuant to this Section 9 in
the event of the death of such Participant.
SECTION 10. NOTICES
All notices, reports and statements given, made, delivered or transmitted to a
Participant shall be duly given, made, delivered or transmitted as the Committee
may deem appropriate.
Written directions, notices and other communications from Participants to the
Committee shall be in such form as may be prescribed by the Committee.
Such written directions, notices and other communications shall be mailed by
first class mail or delivered to the secretary of the Committee and shall be
deemed to have been given when received by the secretary or his/her duly
authorized representative.
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SECTION 11. COSTS AND EXPENSES
Except as provided in Article XV Section 3 with respect to transaction expenses,
all costs and expenses incurred in the administration of the Plan shall be paid
by the Company; provided, however, that any taxes which may be imposed on the
income or the assets of the trust shall be paid out of the assets in the hands
of the Trustee and shall be charged ratably against the Accounts of the
Participants. Notwithstanding the foregoing, any taxes incurred by reason of
specific investments or transactions shall be charged against those Accounts of
the Participants which were involved in such investments or transactions on the
basis of the respective interests of such Accounts in the investments or
transactions generating such tax liability.
SECTION 12. MISCELLANEOUS
(a) Construction Of Agreement
The Plan shall be governed by and construed in accordance with the laws
of the State of Ohio, to the extent those laws have not been superseded
by Federal law (which shall otherwise apply).
(b) Participant's Rights
Participation in the Plan by a Participant shall in no way affect any
of the Company's rights as contained in the Basic Labor Agreement
between the Company and the Union.
(c) Headings
The headings and captions contained in this document are for
convenience of reference only, and are not deemed to constitute a part
of the Plan.
(d) Against Public Policy
Should any provision (or part of any provision) of this Plan be
determined by a court of competent jurisdiction to be contrary to law
or unenforceable as a matter of public policy, such provision shall be
considered severable, and this Plan shall be considered not to include
the provision in issue. The Plan shall be construed by the Committee,
by the Plan Administrator, and all other persons relying on this
document as though such provision (or part thereof) did not exist, and
the Plan shall be applied and enforced in the manner determined by the
Plan Administrator to be most nearly consistent with the deleted
provision as is permissible under law and public policy.
(e) Certain Reversions to the Company Permitted
Reversions of contributions to the Company will be permitted to the
extent provided by Section 403(c) of ERISA.
Any contribution made by the Company because of a mistake of fact must
be returned to the Company within one year of the contribution.
47
In the event the deduction of a contribution made by the Company is
disallowed under section 404 of the Code, such contribution (to the
extent disallowed) must be returned to the Company within one year of
the disallowance of the deduction.
In the event that the Commissioner of Internal Revenue determines that
the plan is not initially qualified under the Internal Revenue Code,
any contribution made incident to that initial qualification by the
Company must be returned to the Company within one year after the date
the initial qualification is denied, but only if the application for
the qualification is made by the time prescribed by law for filing the
Company's return for the taxable year in which the plan is adopted, or
such later date as the Secretary of the Treasury may prescribe.
(f) Payment to Minor or Incompetent Person
In the event that any benefit payable under this Plan is payable to or
for the benefit of a minor, an incompetent person, or other person
incapable of receipting therefor, such benefit shall be deemed paid
when paid to such person's guardian or to the party providing or
reasonably appearing to provide for the care of such person, and such
payment shall fully discharge the Trustee, the Plan Administrator, the
Company and all other parties with respect thereto.
(g) Forfeiture if Participant or Designated Beneficiary Cannot Be Located
In the event that any benefit payable under this Plan to any
Participant or Designated Beneficiary cannot be paid because the proper
payee cannot be located or identified by the Trustee, such benefit
shall be deemed forfeited thirty-six (36) months from the date on which
the Trustee or Plan Administrator first attempted to locate such payee,
provided, however, that upon presentation by such proper payee of a
subsequent claim for such forfeited benefit, the full amount of the
forfeited benefit shall be restored.
(h) Merger or Consolidation
In the event of the merger or consolidation of this Plan (or any part
thereof) into any other plan, or the transfer to or from this Plan of
any of the assets held for the benefit of Participants and Designated
Beneficiaries, each Participant and Designated Beneficiary affected by
such merger, consolidation or transfer shall have an accrued benefit in
the surviving or transferee plan (determined as if such plan were then
terminated immediately after such merger, consolidation or transfer)
that is equal to or greater than his/her accrued benefit to which
he/she would have been entitled, had the Plan been terminated
immediately prior to the occurrence of such merger, consolidation or
transfer.
(i) Electronic Media
Notwithstanding any provision of the Plan to the contrary, including
any provision which requires the use of a written instrument, to the
extent permitted by applicable law, the Committee may establish
procedures for the use of electronic media in communications and
transactions between the Plan or the Committee and Participants and
Beneficiaries. Electronic media may
48
include, but are not limited to, e-mail, the Internet, intranet systems and
automated telephonic response systems.
(j) Plan Conversions
Notwithstanding any provision of the Plan to the contrary, during any
conversion period, in accordance with procedures established by the
Committee, the Committee may temporarily suspend, in whole or in part,
certain provisions of the Plan, which may include, but are not limited
to, a Participant's right to change his contribution election, a
Participant's right to change his investment election and a
Participant's right to borrow or withdraw from his Account or obtain a
distribution for his Account.
SECTION 13. DESIGNATION OF TRUSTEE
In order to implement the Plan, the Company will enter into a trust agreement
with the Trustee to the end that contributions of the Participants and the
contributions of the Company shall be invested in accordance with the provisions
of this Plan and shall be held in Trust for the exclusive benefit of the
Participants or their Designated Beneficiaries.
The Company may, without further reference to or action by any Participant, from
time to time, enter into such further agreements with the Trustee or other
parties and make such amendments to said trust agreements or said further
agreements as it may be necessary or desirable to carry out the Plan, may from
time to time designate a successor Trustee or successor Trustees, or may take
such other steps to execute such other instruments as it may deem necessary or
desirable to put the Plan into effect or to carry out the provisions thereof.
SECTION 14. TENDER AND EXCHANGE OFFERS
Notwithstanding any other provision contained herein to the contrary (including,
without limitation, the provisions of ARTICLE XIII), in the event the Trustee
receives (i) any tender offer which is subject to Section 14(d)(1) of the
Securities Exchange Act of 1934, as amended from time to time, and to
regulations promulgated thereunder, or (ii) any other offer or option to buy or
exchange more than thirty (30) percent of the outstanding shares of Common
Stock, the provisions of this Section 14 of ARTICLE XIV shall apply.
(a) Each Participant shall have the right to direct the Trustee as to
whether to tender and sell or exchange pursuant to such offer any whole
and fractional shares of Common Stock held in the Participant's
Account.
(b) In order to implement the rights granted in this Section 14 of ARTICLE
XIV, the Company shall furnish to the Trustee such information as may
be distributed by it to shareholders of the Company in connection with
each such offer (the "Tender Document"), in quantities approximately
equal to the number of Participants holding shares of Common Stock in
Accounts at the time of such distribution. The Trustee shall use its
best efforts to distribute or cause to be distributed to each
Participant the Tender Documents together with all other materials that
the Trustee receives as a shareholder from any other party with respect
to such offer (the "Additional Tender Documents") and a form prepared
by the Trustee for the use by Participants in directing the Trustee as
to whether or not shares
49
of Common Stock in the Participants' Accounts shall be tendered and
sold or exchanged as soon as practicable following the furnishing of
the Tender Documents and Additional Tender Documents to the Trustee.
The Trustee will follow the written directions of each Participant with
respect to the tender, and sale or exchange if the tender is accepted,
of the whole and fractional shares of Common Stock held in such
Participant's Account, provided that such written directions are
received by the Trustee by the close of business two (2) days prior to
the time such shares must be tendered. Any such written direction by a
Participant to the Trustee shall be effective as of the date such
direction is received by the Trustee. Each Participant shall be
permitted to revoke or change such direction, provided such revocation
or change is received in writing by the Trustee by the close of
business two (2) days prior to the time such shares of Common Stock
must be tendered. The Trustee shall tender all shares of Common Stock
as to which valid and timely directions to do so have been received by
it and have not been subsequently timely revoked prior to the
expiration date of the offer to which the directions relate, and, to
the extent the tender is accepted, the shares so tendered shall be sold
or exchanged as soon as practical thereafter. Each Participant may
direct the Trustee to withdraw any shares of Common Stock in the
Participant's Account which were previously tendered, and the Trustee
shall withdraw such shares of Common Stock prior to the withdrawal date
of the offer, provided such direction is received in writing by the
Trustee by the close of business two (2) days prior to the withdrawal
date of the offer. Any and all directions given to the Trustee by any
Participant pursuant to this Section 14 of ARTICLE XIV shall remain in
the strict confidence of the Trustee.
(c) In the absence of written direction from a Participant in accordance
with Section 14(b) of ARTICLE XIV, the Trustee shall tender, and sell
or exchange in the event the tender is accepted, at the times provided
in Section 14(b) of ARTICLE XIV, all whole and fractional shares of
Common Stock held in such Participant's Account only if the Trustee is
directed by Participant, pursuant to Section 14(b) of ARTICLE XIV, to
tender and sell or exchange the majority of the aggregate shares of
Common Stock held in such Participants' Accounts.
(d) The Designated Beneficiary of each Participant shall be entitled to
receive all distributions of Tender Documents and Additional Tender
Documents and to exercise all of the rights granted to each such
Participant pursuant to this Section 14 of ARTICLE XIV in the event of
the death of such Participant.
(e) The price at which sales of the Company's Common Stock in accordance
with this Section 14 of ARTICLE XIV pursuant to a tender or exchange
offer described herein shall be credited to the Participants' Accounts
shall be the price paid in connection with the tender or exchange
offer. Shares of Common Stock sold in accordance with this Section 14
of ARTICLE XIV pursuant to a tender of exchange offer described herein
shall not be considered in computing weighted average price under
Section 2 of ARTICLE XV. The cash proceeds from the sale or exchange of
any shares of Common Stock tendered and sold or exchanged pursuant to
this Section 14 of ARTICLE XIV shall be invested in accordance with the
terms of the Plan. If, as a result of a tender and sale or exchange,
the Trustee receives securities or other property, such securities or
property shall be held or reinvested in accordance with the terms of
the Plan. Any shares of Common Stock
50
tendered or offered but not purchased or exchanged shall be held or
reinvested by the Trustee in the trust created under this Plan in
accordance with the terms of the Plan.
(f) Transactions in the Company's Common Stock pursuant to a tender or
exchange offer in accordance with this Section 14 of ARTICLE XIV need
not be made through the facilities of the New York Stock Exchange.
(g) The Account of each Participant for whom the Trustee has sold or
exchanged shares of Common Stock in connection with any tender offer or
exchange offer described in this Section 14 of ARTICLE XIV shall be
charged with a pro rata share of all expenses incurred by the Trustee
in all sales or exchanges pursuant to such offer.
51
ARTICLE XV
SECURITIES TRANSACTIONS BY TRUSTEE
SECTION 1. TRANSACTION PERIOD
For convenience in administration, the Committee and the Trustee shall establish
a period for (a) the purchase and sale of Mutual Fund shares or the Company's
Common Stock or (b) the deposit and withdrawal of Cash With Interest, which
shall be known as a Transaction Period. The Transaction Period shall commence at
4:00 p.m. Eastern Time on a day when both the Trustee and the New York Stock
Exchange are open for business and shall end at 4:00 p.m. Eastern Time on the
next succeeding day when both the Trustee and the New York Stock Exchange are
open for business. All purchases and sales of the Company's Common Stock or
Mutual Fund shares or the deposit and withdrawal of Cash With Interest made by
the Trustee during the Transaction Period shall be in accordance with the
instructions and directions of the Participants (or of the Company as to
purchases of the Company's Common Stock with amounts to be credited to a
Participant's Account from Company Contributions attributable to Participant's
Contributions) which are received during a Transaction Period. The Trustee shall
not be required to respond to any subsequent instruction or direction received
during any Transaction Period until the next succeeding Transaction Period.
SECTION 2. POOLED ACCOUNT FOR SECURITIES TRANSACTIONS
The transaction price for purchases and sales of Company's Common Stock shall be
determined based upon the closing price of the Company's Common Stock on the New
York Stock Exchange on a day when both the Trustee and the New York Stock
Exchange are open for business, times the total number of shares of the
Company's Common Stock in the Common Stock pooled account, plus uninvested cash
and accrued income, divided by the number of shares in the Common Stock pooled
account.
The transaction price for purchases and sales in each of the Mutual Funds shall
be determined based upon the closing price of each such Mutual Funds on a day
when both the Trustee and the New York Stock Exchange are open for business,
times the total number of shares in each such Mutual Funds pooled account, plus
uninvested cash and accrued income; divided by the total number of shares of
each such Mutual Funds pooled account.
Purchases and sales of the Cash With Interest Investment Option shall be charged
or credited on the basis of actual purchase and sale prices for the particular
transaction.
SECTION 3. ALLOCATING TRANSACTION EXPENSE
Each Participant for whom the Trustee has sold and/or purchased shares in one or
more of the Investment Options available in the Plan pursuant to the
Participant's specific investment directions shall be charged for the expenses
incurred by the Plan in the exercise of the Participant's specific investment
option direction.
SECTION 4. REGISTRATION OF SECURITIES
Securities held by the Trustee may be registered in the name of the Trustee or
its nominee.
52
SECTION 5. MISCELLANEOUS
The Trustee shall invest in the Company's Common Stock Investment Option, the
Cash With Interest Investment Option, or Mutual Fund Investment Option as
promptly as practicable after the receipt of Employee contributions.
Contributions temporarily held for investment in one of the Investment Options
shall be invested by the Trustee in a short term fund approved by the Committee.
All Transactions in the Company's Common Stock shall be made through the
facilities of the New York Stock Exchange except for the purchase of stock from
the Company as provided in Section 4 of Article V.
53
ARTICLE XVI
ASSIGNABILITY
It is a condition of the Plan, and all rights of each Participant shall be
subject thereto, that, except as provided in a qualified domestic relations
order as defined in Section 414(p) of the Code, no right or interest of any
Participant in the Plan or in the Account shall be assignable or transferable in
whole or in part, either directly or by operation of law or otherwise,
including, but not by the way of limitation, execution, levy, garnishment,
attachment, pledge, bankruptcy or in any other manner, but excluding the
consequence of death, or mental incompetency, and no right of interest of any
Participant of the Plan or in the Account shall be liable for, or subject to,
any obligation or liability of such Participant. Notwithstanding any provision
of the Plan to the contrary, effective for judgments, orders, decrees or
settlements issued on or after August 5, 1997, the Plan shall honor a judgment,
order, decree or settlement providing for the offset of all or a part of a
Participant's benefit under the Plan, to the extent permitted under Code Section
401(a)(13)(C); provided that the requirements of Code Section 401(a)(13)(C)(iii)
relating to the protection of the Participant's spouse (if any) are satisfied.
54
ARTICLE XVII
AMENDMENT, MODIFICATION, SUSPENSION OR TERMINATION OF THE PLAN
SECTION 1. AMENDMENT
Subject to Section 2 of this Article XVII, the Company may at any time and from
time to time, amend the Plan if in the opinion of the Company such amendment is
necessary to enable the Plan to meet the requirements of the Code (including the
regulations and rulings issued thereunder) or the requirements of any
governmental authority.
SECTION 2. LIMITATION ON AMENDMENT
The Company shall make no amendment to the Plan which shall result in the
forfeiture or reduction of the interest of any Employee, Participant, former
Participant or person claiming under or through any one or more of them pursuant
to the Plan, except that nothing herein contained shall restrict the right to
amend the provisions hereof relating to the administration of the Plan.
Moreover, no such amendment shall be made hereunder which shall permit any part
of Participants' contributions to revert to any Company or be used or be
diverted to purposes other than the exclusive benefit of Employees,
Participants, former Participants, and beneficiaries.
SECTION 3. TERMINATION
This Plan shall continue in effect until and including the 31st day of October,
2003. Thereafter it shall renew itself for yearly periods unless written notice
is given by either party to the other not less than sixty (60) days, but not
more than seventy-five (75) days, prior to the expiration date or any extension
thereof, that it is desired to terminate or amend the Plan. In the event such
notice is given, the parties shall begin negotiations not less than forty-two
(42) days prior to the termination date, unless otherwise mutually agreed to. If
negotiations are not completed prior to the expiration date, this Plan shall
terminate unless extended by mutual agreement of the parties. Upon termination,
this Plan shall terminate in all respects, except that no distributions shall be
made from the Plan until ninety (90) days following such termination, and any
distributions made upon termination of the Plan shall be subject to the terms of
Article XI Section 3. Except as herein otherwise provided, no provision of this
Plan shall be subject to change prior to the expiration date as determined
above.
Upon any termination or partial termination of the Plan, the rights of each
Participant to the assets then held in his/her Account under the Plan shall be
non-forfeitable.
55
ARTICLE XVIII
ESOP FEATURE
SECTION 1. ESTABLISHMENT OF ESOP
(a) The provisions of this Article XVIII shall become effective January 1,
2002.
(b) The Plan shall consist of two components, the ESOP Feature and the
Non-ESOP Feature. The ESOP Feature shall consist of the ESOP Account.
The ESOP Feature is intended to qualify as a stock bonus plan under
Code Section 401(a) and as an employee stock ownership plan under Code
Section 4975(e)(7). The ESOP Feature is designed to invest primarily in
"qualifying employer securities," as defined in Code Sections
4975(e)(8) and 409(l) and ERISA Section 407(d)(5). The ESOP Feature is
described in this Article XVIII. The provisions of this Article XVIII
shall supercede any contrary provisions of the Plan.
SECTION 2. ESOP ACCOUNT
(a) The Committee shall establish an ESOP Account in the name of each
Participant and shall thereafter maintain a record thereof.
(b) The ESOP Account of each Participant shall be credited and debited
periodically during each Plan Year in which the ESOP is maintained with
any additions or reductions in the number of shares of Common Stock
held for such Participant in the Plan due to the reallocation of the
investment of the Participant's Non-ESOP Account and ESOP Account, and
with any stock and cash dividends paid on Common Stock attributable to
units of the Common Stock fund.
(c) In the event that a Participant elects a partial liquidation of the
investment of his Account in Common Stock pursuant to Section 5 of
Article V, Common Stock shall be liquidated pro-rata from the
Participant's Non-ESOP Account and ESOP Account.
SECTION 3. ESOP CONTRIBUTIONS
The Company, in its discretion, may make ESOP Contributions from time to time in
such amounts as are determined by the Company. All ESOP Contributions shall be
made in Common Stock. ESOP Contributions for a Plan Year shall be allocated
among active Participants for the Plan Year. The amount allocated to each active
Participant shall be determined by multiplying each active Participant's
Compensation for such Plan Year by a fraction, the numerator of which is the
ESOP Contribution for such Plan Year, and the denominator of which is the total
Compensation of all active Participants for such Plan Year. ESOP Contributions
shall be treated as Company Contributions for purposes of distributions and
withdrawals from the Plan. The ESOP Contribution subaccount of a Participant
shall be invested in Common Stock, subject to the diversification rules provided
in Section 4 of this Article.
56
SECTION 4. DIVERSIFICATION OF INVESTMENT
Participants who are at least age 55 may diversify the investment of amounts,
including amounts not Vested, held in their ESOP Accounts by transferring
amounts out of the Common Stock fund to one of the other Investment Options in
accordance with the provisions of Section 5 of Article V. Any transfer of such
amounts out of the Common Stock fund to another Investment Option shall be
deemed to be a transfer from the ESOP Feature to the Non-ESOP Feature.
SECTION 5. PUT OPTION
(a) If shares of Common Stock distributable to a Participant or his
Beneficiary are at the time of the distribution not readily tradable on
an established market, the Participant or Beneficiary will have an
option (the "Put") to require the Company to purchase all of the shares
actually distributed to him. The Put may be exercised at any time
during the Option Period (as defined below) by giving the Company
written notice of the election to exercise the Put. The Put may be
exercised by a former Participant or the Beneficiary only during the
Option Period in which the former Participant or Beneficiary receives a
distribution of shares of Common Stock.
(b) The "Option Period" is the 60-day period following the day on which a
Participant or his Beneficiary receives a distribution. If the former
Participant or Beneficiary does not exercise the Put during that 60-day
period, the Option Period will also be the 60-day period beginning
after the new determination of the fair market value of Common Stock by
the Committee (and notice to the Participant) in the following Plan
Year. The Option Period will be extended by the amount of time during
which the Company is unable to honor the Put by reason of applicable
federal or state law.
(c) The "Option Price" will be the fair market value of each share of
Common Stock as of the valuation date immediately preceding the date
the Put is exercised, multiplied by the number of shares to be sold
under the Put, with appropriate adjustments to reflect intervening
stock dividends, stock splits, stock redemptions, or similar changes to
the number of outstanding shares.
(d) The terms of payment for the sale of Common Stock pursuant to the Put
shall be as provided in the Put and may be either paid in a lump sum or
in installments as provided by the Committee. An agreement to pay
through installments shall be permissible only if the Common Stock
subject to the put option is part of a 'total distribution', as defined
in Code Section 409(h)(5), and--
(i) the agreement is adequately secured, as determined by the
Committee,
(ii) a reasonable rate of interest is charged, as determined by the
Committee,
(iii) annual payments are equal,
(iv) installment payments must begin not later than 30 days after
the date the Put option is exercised, and
57
(v) the term of the payment does not extend beyond five years from
the date the Put option is exercised.
(e) The Put will not be assignable, except that the former Participant's
donees or, in the event of a Participant's death, his personal
representative, will be entitled to exercise the Put during the Option
Period for which it is applicable.
(f) The Trustee in its discretion may, with the Company's consent, assume
the Company's obligation under this Section at the time a former
Participant or Beneficiary exercises the Put. If the Trustee does
assume the Company's obligations, the provisions of this Section that
apply to the Company will also apply to the Trustee.
(g) The Put will also apply to shares of Common Stock that are publicly
traded without restriction when distributed but which cease to be
publicly traded or which become subject to a trading limitation during
the Option Period. In that event, the Committee will notify in writing
each former Participant or Beneficiary to whom the Put becomes
applicable that the shares of Common Stock held by the former
Participant or Beneficiary are subject to the Put for the remainder of
the applicable Option Period and will inform the Participant or
Beneficiary of the terms of the Put. If the written notice is given
later than ten days after the shares of Common Stock cease to be
publicly traded or become subject to a trading limitation, the period
during which the Put may be exercised will be extended by the number of
days between the tenth day and the date the notice is actually given.
(h) The Committee will notify each former Participant or Beneficiary who is
eligible to exercise the Put of the fair market value of each share of
Common Stock as soon as practicable following its determination. The
Committee and the Company will send all notices required under this
Subsection to the last known address of a former Participant or
Beneficiary, and it will be the duty of those persons to inform the
Committee of any changes in address.
SECTION 6. PAYMENT OF DIVIDENDS
(a) The Committee, in its sole discretion, may provide that any dividends
paid in cash during the Plan Year on shares of Common Stock in which
Participants' ESOP Accounts are invested shall be (i) paid in cash
directly to the Participant, (ii) paid to the Plan and subsequently
distributed to the Participant in cash no later than 90 days after the
close of the Plan Year in which the dividends are paid to the Plan, or
(iii) at the election of the Participant, either (A) paid to the
Participant as provided in Clause (i) or (ii) (as determined by the
Committee) or (B) paid to the Participant's ESOP Account to be
reinvested in the Common Stock. Such dividends shall be paid in
accordance with procedures established by the Committee.
(b) If an election pursuant to Paragraph (a)(iii) is provided by the
Committee, each Participant may make the election, in the manner and at
the time specified by the Committee, with respect to dividends received
on shares of Common Stock comprising the portion of the Common Stock
fund allocated to the Participant's ESOP Account. If an election
pursuant
58
to Paragraph (a)(iii) is provided by the Committee and a Participant
does not make such an election, such dividends shall be paid to the
Participant's ESOP Account to be reinvested in Common Stock.
(c) The Beneficiary of a deceased participant shall have the same rights as
a Participant has under this Section 6.
(d) The provisions of this Section 6 are intended to comply with Section
404(k) of the Code, and shall be interpreted and construed accordingly.
SECTION 7. INDEPENDENT APPRAISER
Common Stock held in Participants' ESOP Accounts shall be valued as of each
valuation date, or at the discretion of the Committee, more frequently. All
valuations of Common Stock held in Participants' ESOP Accounts which is not
readily tradable on an established securities market shall be made by an
independent appraiser meeting requirements similar to those contained in
Treasury Regulations under Code Section 170(a)(1).
SECTION 8. SHARE LEGEND
Shares of Common Stock in the ESOP Feature held or distributed by the Trustee
may include such legend restrictions on transferability as the Company may
reasonably require in order to assure compliance with applicable federal and
state securities laws.
59
IN WITNESS WHEREOF, Cooper Tire & Rubber Company has caused this
Restated Plan to be executed and adopted this 26th day of February, 2002.
COOPER TIRE & RUBBER COMPANY
By: /s/ Stephen O. Schroeder
-----------------------------------
Treasurer
By: /s/ Richard N. Jacobson
-----------------------------------
Assistant Secretary
60
AMENDMENT NO. 1 TO THE
COOPER TIRE & RUBBER COMPANY
PRE-TAX SAVINGS PLAN (FINDLAY)
(AS AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 2001)
The Cooper Tire & Rubber Company (the "Company") hereby adopts
this Amendment No. 1 to the Cooper Tire & Rubber Company Pre-Tax Savings Plan
(Findlay) (As Amended and Restated Effective as of January 1, 2001) (the
"Plan"). The provisions of this Amendment shall be effective as of January 1,
2002, unless otherwise indicated. Words and phrases used herein with initial
capital letters which are defined in the Plan are used herein as so defined.
One of the purposes of this Amendment is to reflect the
adoption of various provisions of the Economic Growth and Tax Relief
Reconciliation Act of 2001 ("EGTRRA"). The Company intends for this Amendment to
satisfy the "good faith" compliance requirements of EGTRRA and to be construed
in accordance with EGTRRA and guidance issued thereunder.
SECTION 1
Section (12) of Article I of the Plan is hereby amended in its
entirety to read as follows:
"(12) 'Compensation' - includes all payments of wages, bonus,
Company Wage Reduction Contributions to this Plan and any
taxable payments paid to the Participant in a calendar year,
except that there shall be excluded from Compensation:
supplemental unemployment benefits, supplemental worker's
compensation, accident and sickness benefits, and other
amounts which either are excludable or deductible from income
in whole or in part for federal income tax purposes or which
represent payments pursuant to a program of benefits or
deferred compensation (other than Company Wage Reduction
Contributions), whether or not qualified under the Code.
Notwithstanding the above, the maximum amount of compensation
taken into account each year for all computations shall not
exceed the amount prescribed pursuant to Section 401(a)(17) of
the Code, as amended, or such amount as the Secretary of the
Treasury shall prescribe from time to time."
SECTION 2
Section 1(a)(ii) of Article III of the Plan is hereby amended
in it entirety to read as follows:
"(ii) the dollar limitation contained in Section 402(g) of the
Code in effect for such taxable year."
SECTION 3
61
Section 1 of Article IV of the Plan is hereby amended by (i)
deleting the fifth paragraph therein and (ii) deleting the word "either" and the
phrase "or multiple use rules" in the sixth paragraph where they occur therein.
SECTION 4
Section 1(a) of Article IX of the Plan is hereby amended in
its entirety to read as follows:
"the Participant's retirement, death, Total and Permanent
Disability, or severance from employment;"
SECTION 5
Section 1 of Article IX of the Plan is hereby amended by (i)
deleting subsections (d) and (e) and (ii) renumbering subsection (f) as
subsection (d).
SECTION 6
The last paragraph of Section 2 of Article IX of the Plan is
hereby amended in its entirety to read as follows:
"Employees who make a hardship withdrawal may not
make elective deferrals and employee after-tax contributions
under this Plan and all other plans of the Company for 6
months after receipt of the distribution."
SECTION 7
Section 6(d)(1)(i) of Article XI of the Plan is hereby amended
in its entirety to read as follows:
"(i) Eligible Rollover Distribution: An Eligible Rollover
Distribution is any distribution of all or any portion of the
balance to the credit of the Distributee except that an
Eligible Rollover Distribution does not include any
distribution to the extent such distribution is required under
section 401(a)(9) of the Code, any distribution that is one of
a series of substantially equal periodic payments (paid not
less frequently than annually) over the life (or life
expectancy) of the distributee or the joint lives (or life
expectancies) of the distributee and a designated beneficiary
or for a specified period of ten years or more, the portion of
any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities), such other
amounts specified in Treasury regulations and rulings, notices
or announcements issued under Section 402(c) of the Code, and
any distribution which is made upon hardship of the
distributee. Notwithstanding the foregoing, a portion of a
distribution shall not fail to be an Eligible Rollover
62
Distribution merely because the portion consists of after-tax
employee contributions which are not includible in gross
income. However, such portion may be transferred only to an
individual retirement account or annuity described in Section
408(a) or (b) of the Code, or to a qualified defined
contribution plan described in Sections 401(a) or 403(a) of
the Code that agrees to separately account for amounts so
transferred, including separately accounting for the portion
of such distribution which is includible in gross income and
the portion of such distribution which is not so includible."
SECTION 8
Section 6(d)(1)(ii) of Article XI of the Plan is hereby
amended in its entirety to read as follows:
"(2) Eligible Retirement Plan: An Eligible Retirement Plan is
an individual retirement account described in Section 408(a)
of the Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, a qualified trust described in
Section 401(a) of the Code, an annuity contract described in
Section 403(b) of the Code, or an eligible plan under Section
457(b) of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a
state or political subdivision of a state that accepts the
Distributee's Eligible Rollover Distribution."
SECTION 9
The first two sentences of Section 1(a) of Article XII of the
Plan are hereby amended in their entirety to read as follows:
"(a) MAXIMUM ANNUAL ADDITION: The "annual addition" to a
Participant's Account shall not exceed the lesser of (i)
$40,000, as adjusted for increases in the cost-of-living under
Section 415(d) of the Code or (ii) 100% of the Participant's
Compensation (as defined in paragraph (d) below) for that Plan
Year. The Compensation limit referred to in (ii) shall not
apply to any contribution for medical benefits after
separation from service (within the meaning of Section 401(h)
or Section 419A(f)(2) of the Code) which is otherwise treated
as an annual addition."
63
SECTION 10
Section 3(f) of Article XIV of the Plan is hereby amended in
its entirety to read as follows:
"(f) Claims for Benefits (other than disability benefits)
Any Participant or Designated Beneficiary who
believes that he or she is entitled to receive a
benefit under the Plan which he or she has not
received may file with the designated representative
of the Committee, on such forms as may be designated
by the Committee, a written claim specifying the
basis for his or her claim and the facts upon which
he or she relies in making such claim. Such a claim
must be signed by the claimant or his or her
authorized representative and shall be deemed filed
when delivered to the designated representative of
the Committee.
Unless such claim is allowed in full by the
Committee, the Committee shall (within 90 days after
such claim was filed, plus an additional period of 90
days if required for processing and if notice of the
90-day extension of time indicating the specific
circumstances requiring the extension and the date by
which a decision shall be rendered is given to the
claimant within the first 90-day period) cause
written notice to be mailed to the claimant of the
total or partial denial of such claim. Such notice
shall be written in a manner calculated to be
understood by the claimant and shall state
(1) the specific reason(s) for the denial of the
claim,
(2) specific reference(s) to pertinent
provisions of the Plan and/or Trust Fund on
which the denial of the claim was based,
(3) a description of any additional material or
information necessary for the claimant to
perfect the claim and an explanation of why
such material or information is necessary,
and
(4) an explanation of the review procedure
specified in Section 3(g) of this Article
XIV."
64
SECTION 11
Section 3(g) of Article XIV of the Plan is hereby amended in
its entirety to read as follows:
"(g) Appeals Procedure
Within 90 days after the denial of his or her claim,
the claimant may appeal such denial by filing with
the Plan Administrator his or her written request for
a review of the claim. Such request for review must
be signed by the claimant or his or her authorized
representative and shall be deemed filed when
delivered to the Plan Administrator or its designee.
If the claimant does not file a request for review of
his or her claim within such 90-day period, the
claimant shall be conclusively presumed to have
accepted as final and binding the initial decision of
the Plan Administrator on his or her claim. In
considering any appeal pursuant to this Section 3(g),
the Plan Administrator shall have the same powers to
interpret the Plan and make factual findings with
respect thereto as are granted to the Committee under
Section 2 hereof.
If such an appeal is so filed within such 90-day
period then the Plan Administrator, or a named
fiduciary designated by the Administrator, shall
conduct a full and fair review of such claim. During
such full review, the claimant shall be provided with
the opportunity to submit written comments,
documents, records, and other information relating to
the claim for benefits, and with reasonable access to
and copies of, upon request and free of charge, all
documents, records, and other information relevant to
the claimant's claim for benefits. In addition, such
full and fair review shall take into account all
comments, documents, records, and other information
submitted by the claimant relating to the claim,
without regard to whether such information was
submitted or considered in the initial benefit
determination.
After the completion of such full review, the
reviewer shall mail or deliver to the claimant a
written decision on the matter based on the facts and
pertinent provisions of the Plan and/or Trust Fund
and/or applicable law. Such decision shall be mailed
or delivered to the claimant within a period of 60
days after the Administrator's receipt of the request
for review unless special circumstances require an
extension of time, in which case such decision shall
be rendered not later than 120 days after receipt of
such request. (If an extension of time for review is
required, written notice of the extension shall be
furnished to the claimant prior to the commencement
of the extension.) Such decision (1) shall be written
in a manner calculated to be understood by the
claimant, (2) shall state the specific reason(s) for
the decision, (3) shall make specific reference(s) to
pertinent provisions of the Plan and/or Trust Fund on
which the decision is
65
based and (4) shall, to the extent permitted by
applicable law, be final and binding on all
interested persons. The notice of the adverse
determination shall also include a statement that the
claimant is entitled to receive, upon request, and
free of charge, reasonable access to, and copies of,
all documents, records, and other information
relevant to the claimant's claim for benefits, and
contain a statement describing any voluntary appeal
procedures offered by the Plan and the claimant's
right to obtain information about such procedures and
a statement of the claimant's right to bring an
action under Section 502(a) of ERISA."
SECTION 12
Section 3 of Article XIV of the Plan is hereby amended by
adding a new subsection (h) to the end thereof, immediately following subsection
(g), to read as follows:
"(h) Claims for Benefits Upon Total and Permanent
Disability:
(1) Notwithstanding the foregoing provisions
of this Article, in the case of a claim for benefits
upon Total and Permanent Disability, unless such
claim is allowed in full by the Committee, the
Committee shall (within a reasonable period of time,
but not later than 45 days, unless such period is
extended as provided in Section 3(h)(2), below, after
receipt of the claim) cause written notice to be
mailed or delivered to the claimant of the total or
partial denial if his claim. Such notice shall be
written in a manner calculated to be understood by
the claimant and shall include
(i) the specific reason(s) for the
denial of the claim,
(ii) specific reference(s) to the
provisions of the Plan and/or Trust
Fund on which the denial of the
claim was based,
(iii) a description of any additional
material or information necessary
for the claimant to perfect the
claim and an explanation of why
such material or information is
necessary,
66
(iv) an explanation of the review
procedures specified in Section
3(h)(3) of this Article XIV and the
time limits applicable to such
procedures, and
(v) a specific reference to the internal
rule, guideline, protocol or other
similar criterion, if any, that was
relied upon in making the adverse
determination or a statement that
such rule, guideline, protocol, or
other similar criterion, if any, was
relied upon in making the adverse
determination and that a copy of
such rule, guideline, protocol, or
other similar criterion will be
provided free of charge to the
claimant upon request.
(2) The 45-day period set forth in Section
3(h)(1), above, may be extended by the Committee for
up to 30 days, provided that the Committee determines
that such an extension is necessary due to matters
beyond the control of the Committee and notifies the
claimant, prior to the expiration of the initial
45-day period, of the circumstances requiring the
extension of time and the date by which the Committee
expects to render a decision. Additionally, if, prior
to the end of the first 30-day extension period, the
Committee determines that, due to matters beyond the
control of the Committee, a decision cannot be
rendered within that extension period, the period for
making the determination may be extended for up to an
additional 30 days, provided that the Committee
notifies the claimant, prior to the expiration of the
first 30-day extension period, of the circumstances
requiring the extension and the date as of which the
Committee expects to render a decision. In the event
of any extension under this Section 3(h)(2), the
notice of extension shall specifically explain the
standards on which entitlement to a benefit is based,
the unresolved issues that prevent a decision on the
claim, and the additional information needed to
resolve the issues. The claimant shall be afforded at
least 45 days within which to provide the specified
information. Additionally, in the event that a period
of time is extended due to a claimant's failure to
submit information necessary to decide a claim, the
period for making the benefit determination shall be
tolled from the date on which the notification of the
extension is sent to the claimant until the date on
which the claimant responds to the request for
additional information.
(3) Within 180 days after receipt of a
notification of a denial of a claim, the claimant or
his duly authorized representative may appeal such
denial
67
by filing with the Committee his written request for
a review of his claim. If such an appeal is so filed
within 180 days, a Named Fiduciary designated by the
Committee shall conduct a full and fair review of
such claim. During such full and fair review, the
claimant shall be provided with the opportunity to
submit written comments, documents, records, and
other information relating to the claim for benefits
and reasonable access to and copies of, upon request
and free of charge, all documents, records, and other
information relevant to the claimant's claim for
benefits. In addition, such full and fair review
shall (i) take into account all comments, documents,
records, and other information submitted by the
claimant relating to the claim, without regard to
whether such information was submitted or considered
in the initial benefit determination, (ii) not afford
deference to the initial adverse benefit
determination, (iii) be conducted by a Named
Fiduciary who is neither the individual who made the
adverse benefit determination that is the subject of
the appeal, nor the subordinate of such individual,
(iv) provide that, in deciding any appeal of any
adverse benefit determination that is based in whole
or in part on a medical judgment, the Named Fiduciary
shall consult with a health care professional who has
appropriate training and experience in the field of
medicine involved in the medical judgment and who is
neither the individual who was consulted in
connection with the adverse benefit determination
that is the subject of the appeal, nor the
subordinate of any such individual, and (v) provide
for the identification of medical or vocational
experts whose advice was obtained on behalf of the
Plan in connection with the claimant's adverse
benefit determination, without regard to whether the
advice was relied upon in making the initial benefit
determination.
The decision of the Named Fiduciary shall be made in
a writing delivered to the claimant within a
reasonable time, but in no event later than 45 days
after the receipt of the request for review unless
special circumstances require an extension of time
for processing. If the Named Fiduciary determines
that an extension of time for processing is required,
written notice of the extension shall be furnished to
the claimant setting forth the special circumstances
requiring an extension of time and the date by which
the Named Fiduciary expects to render a decision on
review, and shall be furnished prior to the
termination of the initial 45-day period. In no event
shall such extension exceed a period of 45 days from
the end of the initial 45-day period.
In the case of an adverse benefit determination on
review, the notice of the determination shall be
written in a manner calculated to be understood by
the claimant and shall include (i) the specific
reasons for the determination, (ii) specific
reference(s) to specific provisions of the Plan
and/or Trust Fund on which the determination is
based, (iii) a statement that the claimant is
entitled to receive, upon request, and free of
charge,
68
reasonable access to, and copies of all documents,
records, and other information relevant to the
claimant's claim for benefits, (iv) a statement
describing any voluntary appeal procedures offered by
the Plan and the claimant's right to obtain
information about such procedures, including a
statement of the claimant's right to bring a civil
action under section 502(a) of ERISA and (v) if an
internal rule, guideline, protocol or other similar
criterion was relied upon in making the adverse
determination, either the specific rule, guideline,
protocol, or other similar criterion, or a statement
that such rule, guideline, protocol, or other similar
criterion was relied upon in making the adverse
determination and that a copy of the rule, guideline,
protocol or other similar criterion will be provided
free of charge to the claimant upon request. To the
extent permitted by applicable law, the determination
on review shall be final and binding on all
interested persons. In performing the duties under
this Section 3(h)(3), the Named Fiduciary shall have
the same powers to interpret the Plan and make
factual findings with respect thereto as are granted
to the Committee under Section 2 hereof."
EXECUTED this 27th day of December 2002.
THE COOPER TIRE & RUBBER COMPANY
By: /s/ Stephen O. Schroeder
-----------------------------
Treasurer
By: /s/ Charles F. Nagy
-----------------------------
Assistant Treasurer
69