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EXHIBIT 4-C
FIRST FINANCIAL BANCORP THRIFT
PLAN AND TRUST
Original Effective Date: September 1, 1977
Amended and Restated: January 1, 1983
January 1, 1984
January 1, 1986
TRA '86 Restatement Effective Date: January 1, 1989
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FIRST FINANCIAL BANCORP THRIFT
PLAN AND TRUST
TABLE OF CONTENTS
Section Page
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ARTICLE I - Introduction........................................................................................I-1
1.01 Plan Established..............................................................................I-1
1.02 Exclusive Benefit.............................................................................I-1
1.03 Type of Plan..................................................................................I-1
ARTICLE II - Definitions.......................................................................................II-1
2.01 "Actuarial Equivalent".......................................................................II-1
2.02 "Administrator"..............................................................................II-1
2.03 "Account"....................................................................................II-1
2.04 "Actual Contribution Percentage".............................................................II-1
2.05 "Actual Deferral Percentage" or "ADP"........................................................II-1
2.06 "Aggregate Limit"............................................................................II-1
2.07 "Annual Addition"............................................................................II-2
2.08 "Annual Benefit".............................................................................II-2
2.09 "Annuity Starting Date"......................................................................II-2
2.10 "Authorized Leave of Absence"................................................................II-2
2.11 Reserved.....................................................................................II-2
2.12 "Break in Service"...........................................................................II-2
2.13 "Code".......................................................................................II-2
2.14 "Committee"..................................................................................II-2
2.15 "Compensation"...............................................................................II-2
2.16 Compensation.................................................................................II-4
2.17 "Contract"...................................................................................II-5
2.18 "Contribution Agreement".....................................................................II-5
2.19 "Contribution Percentage"....................................................................II-5
2.20 "Contribution Percentage Amounts"............................................................II-5
2.21 "Determination Year".........................................................................II-5
2.22 Reserved.....................................................................................II-5
2.23 Reserved.....................................................................................II-5
2.24 Reserved.....................................................................................II-5
2.25 "Earned Income"..............................................................................II-5
2.26 "Effective Date".............................................................................II-5
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Section Page
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2.27 "Elective Deferrals".........................................................................II-5
2.28 "Elective Deferral Account"..................................................................II-6
2.29 "Employee"...................................................................................II-6
2.30 "Employee After-Tax Contribution"............................................................II-6
2.31 "Employee After-Tax Contribution Account"....................................................II-6
2.32 "Employer"...................................................................................II-6
2.33 "Employer Contributions".....................................................................II-6
2.34 "Employer Contribution Account"..............................................................II-6
2.35 "Entry Date".................................................................................II-6
2.36 "ERISA"......................................................................................II-7
2.37 "Excess Aggregate Contribution"..............................................................II-7
2.38 Reserved.....................................................................................II-7
2.39 "Excess Contributions".......................................................................II-7
2.40 "Excess Elective Deferrals"..................................................................II-7
2.41 "Fiscal Year"................................................................................II-7
2.42 "Highly Compensated Employee"................................................................II-7
2.43 "Hour of Service"............................................................................II-9
2.44 Reserved....................................................................................II-10
2.45 "Investment Manager"........................................................................II-10
2.46 "Leased Employee"...........................................................................II-10
2.47 "Limitation Year"...........................................................................II-10
2.48 "Look-Back Year"............................................................................II-10
2.49 "Matching Contribution".....................................................................II-11
2.50 "Matching Contribution Account".............................................................II-11
2.51 "Maximum Permissible Amount"................................................................II-11
2.52 "Named Fiduciary"...........................................................................II-11
2.53 "Nonhighly Compensated Employee"............................................................II-11
2.54 "Normal Retirement Age".....................................................................II-11
2.55 "Normal Retirement Date"....................................................................II-11
2.56 "Owner-Employee"............................................................................II-11
2.57 "Participant"...............................................................................II-11
2.58 "Participation Commencement Date"...........................................................II-11
2.59 "Plan"......................................................................................II-11
2.60 "Plan Year".................................................................................II-11
2.61 "Projected Annual Benefit"..................................................................II-12
2.62 "Qualified Domestic Relations Order"........................................................II-12
2.63 "Qualified Election"........................................................................II-12
2.64 "Qualified Employer Contribution"...........................................................II-12
2.65 "Qualified Employer Contribution Account"...................................................II-12
2.66 "Qualified Joint and Survivor Annuity"......................................................II-12
2.67 "Qualified Pre-Retirement Survivor Annuity".................................................II-13
2.68 "Qualified Voluntary Employee Contribution".................................................II-13
2.69 "Qualified Voluntary Employee Contribution Account".........................................II-13
2.70 "Qualifying Employer Real Property".........................................................II-13
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Section Page
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2.71 "Qualifying Employer Securities"............................................................II-13
2.72 "Required Beginning Date"...................................................................II-13
2.73 "Rollover Account"..........................................................................II-13
2.74 "Self-Employed Individual"..................................................................II-13
2.75 "Spouse" ...................................................................................II-13
2.76 "Suspense Account"..........................................................................II-13
2.77 Reserved....................................................................................II-13
2.78 "Trust" or "Trust Fund".....................................................................II-14
2.79 "Trustee"...................................................................................II-14
2.80 "Valuation Date"............................................................................II-14
2.81 "Year of Service"...........................................................................II-14
2.82 "Former Participant"........................................................................II-14
2.83 "Employer Stock Fund".......................................................................II-14
2.84 "Market Value"..............................................................................II-14
ARTICLE III - Eligibility and Participation...................................................................III-1
3.01 Eligibility Requirements....................................................................III-1
3.02 Application for Participation...............................................................III-1
3.03 Reemployment Prior to Break in Service (Eligibility)........................................III-2
3.04 Reemployment After Break in Service (Eligibility)...........................................III-2
3.05 Authorized Leave of Absence.................................................................III-2
3.06 Past Service with Former Employer...........................................................III-2
ARTICLE IV - Employer Contributions............................................................................IV-1
4.01 Employer Contributions.......................................................................IV-1
4.02 Matching Contributions for Elective Deferrals................................................IV-1
4.03 Reserved.....................................................................................IV-1
4.04 Form of Contribution.........................................................................IV-1
4.05 For Exclusive Benefit of Participants........................................................IV-2
4.06 Limitations on Allocations...................................................................IV-2
4.07 Allocation of Forfeitures....................................................................IV-5
4.08 Return of Contributions......................................................................IV-6
ARTICLE V - Participant Contributions...........................................................................V-1
5.01 Employee After-Tax Contributions..............................................................V-1
5.02 Elective Deferral Contributions...............................................................V-1
5.03 Qualified Voluntary Employee Contributions....................................................V-2
5.04 Annual Elective Deferral Limitation...........................................................V-2
ARTICLE VI - Non-Discrimination Testing........................................................................VI-1
6.01 Actual Deferral Percentage Test..............................................................VI-1
6.02 Excess Contributions.........................................................................VI-2
6.03 Recharacterization of Excess Contributions...................................................VI-3
6.04 Actual Contribution Percentage Test..........................................................VI-3
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Section Page
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6.05 Excess Aggregate Contributions...............................................................VI-5
6.06 Qualified Employer Contributions.............................................................VI-5
ARTICLE VII - Accounts........................................................................................VII-1
7.01 Account Allocations.........................................................................VII-1
7.02. Matching Contribution Investment............................................................VII-1
7.03. Investment Elections........................................................................VII-1
7.04. Valuation of Assets.........................................................................VII-3
7.05. Account Adjustments.........................................................................VII-3
7.06 Annual Report...............................................................................VII-4
ARTICLE VIII - Vesting.......................................................................................VIII-1
8.01 Vesting Requirements.......................................................................VIII-1
8.02 Reserved...................................................................................VIII-1
8.03 Reserved...................................................................................VIII-1
ARTICLE IX - Payment of Benefits...............................................................................IX-1
9.01 Payable Events...............................................................................IX-1
9.02 Normal Form of Benefit.......................................................................IX-3
9.03 Pre-Retirement Death Benefit.................................................................IX-3
9.04 Optional Forms of Benefit....................................................................IX-3
9.05 Determination of Amount......................................................................IX-4
9.06 Time of Payment..............................................................................IX-4
9.07 Reserved.....................................................................................IX-5
9.08 Beneficiary Designation and Consent of Spouse................................................IX-5
9.09 Mandatory Distributions......................................................................IX-5
9.10 Amount and Payment of Death Benefits.........................................................IX-6
9.11 Notice of Rollover Treatment.................................................................IX-7
9.12 Hardship Distributions.......................................................................IX-7
9.13 In-Service Distributions.....................................................................IX-8
9.14 Other Distributable Amounts..................................................................IX-8
ARTICLE X - Named Fiduciary Powers and Responsibilities.........................................................X-1
10.01 Allocation of Responsibility..................................................................X-1
10.02 Discretionary Authority.......................................................................X-1
ARTICLE XI - Trustee Powers and Responsibilities...............................................................XI-1
11.01 Basic Responsibilities.......................................................................XI-1
11.02 Investment Powers and Duties.................................................................XI-1
11.03 Participant Direction........................................................................XI-2
11.04 Investment Manager...........................................................................XI-2
11.05 Rollover Contributions.......................................................................XI-3
11.06 Reserved.....................................................................................XI-4
11.07 Other Powers.................................................................................XI-4
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Section Page
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11.08 Duties Regarding Contributions and Payments..................................................XI-5
11.09 Trustee's Compensation and Expenses and Taxes................................................XI-5
11.10 Annual Report................................................................................XI-6
11.11 Records and Actions..........................................................................XI-6
11.12 Appointment, Resignation, Removal and Succession of Trustee..................................XI-6
11.13 Liability of Trustee.........................................................................XI-7
ARTICLE XII - Committee Powers and Responsibilities...........................................................XII-1
12.01 Appointment of Committee....................................................................XII-1
12.02 Powers......................................................................................XII-2
12.03 No Discrimination...........................................................................XII-2
12.04 Action by the Committee.....................................................................XII-2
12.05 Records.....................................................................................XII-2
12.06 Compensation and Expenses...................................................................XII-2
12.07 Indemnification.............................................................................XII-2
12.08 Statutory Claims Procedure..................................................................XII-3
12.09 Reserved....................................................................................XII-3
ARTICLE XIII - Amendment, Termination, and Mergers...........................................................XIII-1
13.01 Amendment..................................................................................XIII-1
13.02 Amendment of Vesting Schedule..............................................................XIII-1
13.03 Termination; Discontinuance of Contributions...............................................XIII-2
13.04 Merger or Consolidation....................................................................XIII-3
ARTICLE XIV - Top-Heavy Provisions............................................................................XIV-1
14.01 Application of Article......................................................................XIV-1
14.02 Definitions.................................................................................XIV-1
14.03 Top-Heavy Determination.....................................................................XIV-2
14.04 Top-Heavy Ratio.............................................................................XIV-2
14.05 Minimum Vesting.............................................................................XIV-3
14.06 Minimum Benefit.............................................................................XIV-3
14.07 Limitation on Contribution..................................................................XIV-4
ARTICLE XV - Participant Loans.................................................................................XV-1
15.01 Availability of Loans........................................................................XV-1
15.02 Reserved.....................................................................................XV-1
15.03 Reserved.....................................................................................XV-1
15.04 Reserved.....................................................................................XV-1
15.05 Reserved.....................................................................................XV-1
15.06 Reserved.....................................................................................XV-1
15.07 Reserved.....................................................................................XV-1
15.08 Reserved.....................................................................................XV-1
15.09 Reserved.....................................................................................XV-1
15.10 Reserved.....................................................................................XV-1
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Section Page
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15.11 Reserved.....................................................................................XV-1
ARTICLE XVI - Miscellaneous...................................................................................XVI-1
16.01 Participant's Rights........................................................................XVI-1
16.02 Alienation..................................................................................XVI-1
16.03 Construction of Plan........................................................................XVI-1
16.04 Gender and Number...........................................................................XVI-2
16.05 Prohibition Against Diversion of Funds......................................................XVI-2
16.06 Bonding.....................................................................................XVI-2
16.07 Protective Clause...........................................................................XVI-2
16.08 Receipt and Release for Payments............................................................XVI-2
16.09 Action by the Employer......................................................................XVI-3
16.10 Headings....................................................................................XVI-3
16.11 Uniformity..................................................................................XVI-3
16.12 Participating Employers.....................................................................XVI-3
16.13 Missing Persons.............................................................................XVI-3
16.14 Mutual Exclusivity of Benefits..............................................................XVI-4
16.15 Severability................................................................................XVI-4
16.16 Spendthrift Clause..........................................................................XVI-4
16.17 Payment to Minor or Incompetent.............................................................XVI-4
16.18 Legal Actions...............................................................................XVI-5
16.19 Voting of Stock.............................................................................XVI-5
APPENDIX A......................................................................................................A-1
SCHEDULE A....................................................................................................- 1 -
SCHEDULE B....................................................................................................- 1 -
CERTIFICATION.................................................................................................- 6 -
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FIRST FINANCIAL BANCORP THRIFT
PLAN AND TRUST
The First Financial Bancorp Thrift Plan and Trust ("Plan") is hereby executed by
and between First Financial Bancorp ("Company") and Society Bank, N.A. (Dayton)
("Trustee").
ARTICLE I
Introduction
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1.01 PLAN ESTABLISHED.
Effective September 1, 1977, the Company established a Profit Sharing
Plan known as the First National Bank of Southwestern Ohio Employee Thrift Plan.
The Plan shall be hereinafter known as the First Financial Bancorp Thrift Plan
and Trust. This restated Plan hereby amends and restates the Plan as originally
adopted by the Company and as amended and restated January 1, 1983 and as
amended and restated January 1, 1984, and as amended and restated January 1,
1986. This amendment and restatement is effective January 1, 1989. Except as
otherwise stated, all provisions of the Plan shall be effective for Plan Years
commencing after December 31, 1988.
1.02 EXCLUSIVE BENEFIT.
The Plan is for the exclusive benefit of the Employees of the Company and of any
proprietorship, corporation or partnership adopting the Plan and listed on
Appendix A, as amended, attached hereto and made a part hereof. No part of the
trust corpus or income shall ever be used for or diverted to any purpose other
than for the exclusive benefit of the Participants or their beneficiaries.
1.03 TYPE OF PLAN.
The Plan is designated as a 401(k) profit sharing plan.
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ARTICLE II
Definitions
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As used herein, the following words shall have the meaning stated herein, unless
otherwise specifically provided:
2.01 "ACTUARIAL EQUIVALENT" shall mean equality in value of the
aggregate amounts expected to be received under different forms of benefit
payments. In determining the amount of any actuarially equivalent form of
payment, the mortality table shall be the 1971 Group Annuity Table and the
interest rate shall be a five percent (5%) interest assumption.
2.02 "ADMINISTRATOR" shall mean the Company unless the Company
designates a Committee to administer the Plan, pursuant to Section 12.01.
2.03 "ACCOUNT" shall mean the combined value of all accounts maintained
for a Participant under this Plan.
2.04 "ACTUAL CONTRIBUTION PERCENTAGE" or "ACP" shall mean the average
of the Contribution Percentages of the Eligible Participants in a group.
2.05 "ACTUAL DEFERRAL PERCENTAGE" or "ADP" shall mean, for a specified
group of Participants for a Plan Year, the average of the ratios (calculated
separately for each Participant in such group) of (1) the amount of Employer
contributions, as defined in this Section 2.05, actually paid over to the Trust
Fund on behalf of such Participant for such Plan Year to (2) the Participant's
Compensation for such Plan Year (whether or not the Employee was a Participant
for the entire Plan Year). Employer contributions on behalf of any Participant
shall include: (1) any Elective Deferrals made pursuant to the Participant's
deferral election, including Excess Elective Deferrals of Highly Compensated
Employees, but excluding Elective Deferrals that are taken into account in the
Contribution Percentage test (provided the ADP test is satisfied both with and
without exclusion of these Elective Deferrals); and (2) at the election of the
Employer, Employer Contributions. For purposes of computing the Actual Deferral
Percentage, an Employee who would be a Participant but for the failure to make
Elective Deferrals shall be treated as a Participant on whose behalf no Elective
Deferrals are made.
2.06 "AGGREGATE LIMIT" shall mean the sum of (i) 125 percent of the
greater of the ADP of the Nonhighly Compensated Employees for the Plan Year or
the ACP of Nonhighly Compensated Employees under the Plan subject to Section
401(m) of the Code for the Plan Year beginning with or within the Plan Year of
the cash or deferred arrangement and (ii) the lesser of 200 percent or two plus
the lesser of such ADP or ACP. "Lesser" is substituted for "greater" in "(i)",
above, and "greater" is substituted for "lesser" after "two plus the" in "(ii)"
if it would result in a larger Aggregate Limit.
2.07 "ANNUAL ADDITION" shall mean the sum of the following amounts
allocated on behalf of a Participant for a Limitation Year: (a) all Employer
contributions; (b) all forfeitures; and (c) all
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Participant contributions. Except to the extent provided in Treasury
regulations, Annual Additions include excess contributions described in Section
401(k) of the Code, excess aggregate contributions described in Section 401(m)
of the Code, and excess deferrals described in Section 402(g) of the Code,
irrespective of whether the Plan distributes or forfeits such excess amounts.
Annual Additions also include Excess Amounts reapplied to reduce Employer
contributions under Section 4.05. Amounts allocated after March 31, 1984, to an
individual medical account (as defined in Section 415(l)(2) of the Code)
included as part of a pension or annuity plan maintained by the Employer are
Annual Additions. Furthermore, Annual Additions include contributions paid or
accrued after December 31, 1985, for taxable years ending after December 31,
1985, attributable to post-retirement medical benefits allocated to the separate
account of a key employee (as defined in Section 419A(d)(3) of the Code) under a
welfare benefit fund (as defined in Section 419(e) of the Code) maintained by
the Employer, but only for purposes of the dollar limitation applicable to the
Maximum Permissible Amount.
2.08 "ANNUAL BENEFIT" shall mean the amount payable annually in the
form of a life annuity if the Participant is unmarried, or a Qualified Joint and
Survivor Annuity, if married, with no ancillary benefits. Benefits not directly
related to retirement shall not be taken into account.
2.09 "ANNUITY STARTING DATE" shall mean the first day of the first
period for which an amount is payable as an annuity or in any other form.
2.10 "AUTHORIZED LEAVE OF ABSENCE" shall mean any absence authorized by
the Employer under its standard personnel practices, including, but not limited
to, service in the United States Armed Forces on account of war or other
emergency, provided the Participant returns to employment with the Employer
prior to the expiration of such authorized absence or as provided by law.
2.11 Reserved.
2.12 "BREAK IN SERVICE" shall mean any twelve (12) consecutive month
period, as described in Section 2.81 for purposes of determining eligibility
during which such Employee has not completed more than 500 Hours of Service with
the Employer.
2.13 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
2.14 "COMMITTEE" shall mean the committee established under Article
XII.
2.15 "COMPENSATION", for purposes other than Section 4.06, shall mean
the total base earnings paid to a Participant by the Employer during a Plan Year
reported or reportable on U. S. Treasury Department Wage and Tax Statement, Form
W-2 (or similar form which may be required for such purposes), excluding
bonuses, commissions and any credits or benefits paid under this Plan or any
other benefit plan of the Employer, any amounts paid to Participants as
reimbursement for Employer-incurred expenses, including scheduled overtime and
amounts earned prior to the date that an Employee becomes a Participant.
Notwithstanding the above, Compensation shall include elective contributions
that are made by the Employer that are not includible in income under Sections
125, 402(a)(8), 402(h) or 403(b) of the
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Code, compensation deferred under Section 457(b) of the Code, or employee
contributions under Section 414(b)(2) that are picked up by the employing unit.
Notwithstanding the above, Compensation for purposes of Article VI shall include
the total base earnings paid to a Participant by the Employer during a Plan Year
reported or reportable on U.S. Treasury Department Wage and Tax Statement, Form
W-2 (or similar form which may be required for such purposes).
Notwithstanding the above, Compensation with respect to each Self-Employed
Individual shall mean Earned Income.
The measuring period for determining Compensation shall be the Plan Year.
Only amounts earned and paid during such period shall be included in the
definition of Compensation.
The annual Compensation of a Participant taken into account under the Plan for
any Plan Year beginning after December 31, 1988 shall not exceed $200,000, as
adjusted by the Secretary of the Treasury at the same time and in the same
manner as under Section 415(d) of the Code. In determining the Compensation of a
Participant for purposes of the $200,000 limitation, the rules of Section
414(q)(6) of the Code shall apply, except in applying such rules, the term
"family" shall include only the Spouse of the participant and any lineal
descendants of the participant who have not attained age 19 before the close of
the year. If, as a result of the application of such rules the adjusted $200,000
limitation is exceeded, then (except for purposes of determining the portion of
compensation up to the Integration Level if this Plan provides for permitted
disparity), the limitation shall be prorated among the affected individuals in
proportion to each such individual's Compensation compared to the total
Compensation of such individuals as determined under this Section prior to the
application of this limitation.
In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provisions of the plan to the contrary, for plan years
beginning on or after January 1, 1994, the annual compensation of each employee
taken into account under the plan shall not exceed the OBRA '93 annual
compensation limit. 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 1
month, 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
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this purpose, for determination periods beginning before the first day of the
first play year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
Except where indicated, the above definition of Compensation shall be effective
for Plan Years beginning after December 31, 1986.
2.16 COMPENSATION, solely for purposes of Section 4.06, shall mean with
respect to each Participant, Section 415 safe-harbor compensation, including
wages, salaries, and fees for professional services and other amounts received
(without regard to whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with the Employer
maintaining the Plan to the extent that the amounts are includible in gross
income (including, but not limited to, commissions paid to sales persons,
compensation for services on the basis of a percentage of profits, commissions
on insurance premiums, tips, bonuses, fringe benefits, reimbursements, and
expense allowances), and excluding the following:
(i) employer contributions to a plan of deferred compensation
which are not includible in the Participant's gross income for
the taxable year in which contributed, or employer
contributions under a simplified employee pension to the
extent such contributions are deductible by the employee, or
any distributions from a plan of deferred compensation;
(ii) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the
employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture;
(iii) amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option; and
(iv) other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a
salary reduction arrangement) towards the purchase of an
annuity described in Section 403(b) of the Code (whether or
not the amounts are actually excludable from the gross income
of the employee).
Notwithstanding the above, Compensation with respect to each Self-Employed
Individual shall mean Earned Income.
For purposes of this Section, the measuring period for determining Compensation
shall be the Limitation Year. For Limitation Years beginning after December 31,
1991, compensation for a Limitation Year is the Compensation actually paid or
includible in gross income during such Limitation Year.
2.17 "CONTRACT" shall mean any life insurance policy or annuity
contract (group or individual) issued on the life of a Participant.
2.18 "CONTRIBUTION AGREEMENT" shall mean a written agreement signed by
a Participant by which he authorizes the Employer to deduct and withhold from
such Participant's Compensation a
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specified amount and to contribute such amount to the Plan pursuant to the
provisions of Section 5.01 and Section 5.02.
2.19 "CONTRIBUTION PERCENTAGE" shall mean the ratio (expressed as a
percentage) of the Participant's Contribution Percentage Amounts to the
Participant's Compensation for the Plan Year.
2.20 "CONTRIBUTION PERCENTAGE AMOUNTS" shall mean the sum of the
Employee After-Tax Contributions, Matching Contributions, and Qualified Matching
Employer Contributions (to the extent not taken into account for purposes of the
ADP test) made under the Plan on behalf of the Participant for the Plan Year.
Such Contribution Percentage Amounts shall include forfeitures of Excess
Aggregate Contributions or Matching Contributions allocated to the Participant's
Account which shall be taken into account in the year in which such forfeiture
is allocated. The Employer may elect to use Elective Deferrals in the
Contribution Percentage Amounts so long as the ADP test is met before the
Elective Deferrals are used in the ACP test and continues to be met following
the exclusion of those Elective Deferrals that are used to meet the ACP test.
2.21 "DETERMINATION YEAR" shall mean the current Plan Year.
2.22 Reserved.
2.23 Reserved.
2.24 Reserved.
2.25 "EARNED INCOME" shall mean the net earnings from self-employment
in the trade or business with respect to which the Plan is established, for
which personal services of the individual are a material income-producing
factor. Net earnings will be determined without regard to items not included in
gross income and the deductions allocable to such items. Net earnings are
reduced by contributions by the Employer to a qualified plan to the extent
deductible under Section 404 of the Code. Net earnings shall be determined with
regard to the deduction allowed to the taxpayer by Section 164(f) of the Code
for taxable years beginning after December 31, 1989.
2.26 "EFFECTIVE DATE" shall mean January 1, 1989, except as otherwise
stated throughout the Plan.
2.27 "ELECTIVE DEFERRALS" shall mean the Employer Contributions made at
the election of the Participant, in lieu of cash compensation under Section
5.02. With respect to any taxable year, a Participant's Elective Deferral is the
sum of all Employer Contributions made on behalf of such Participant pursuant to
an election to defer under any qualified cash or deferred arrangement as
described in Section 401(k) of the Code, any simplified employee pension, cash
or deferred arrangement as described in Section 402(h)(1)(B) of the Code, any
eligible deferred compensation plan under Section 457 of the Code, any plan as
described under Section 501(c)(18) of the Code, and any Employer Contributions
made on the behalf of a Participant for the purchase of an annuity contract
under Section 403(b) of the Code pursuant to a salary reduction agreement.
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2.28 "ELECTIVE DEFERRAL ACCOUNT" shall mean an account established for
a Participant for the purpose of receiving contributions made to the Plan by the
Employer on behalf of the Participant pursuant to Section 5.02. The Elective
Deferral Account shall also include Participant Discretionary Contributions made
during 1985 under the terms of the Plan in effect from January 1, 1985 through
December 31, 1985.
2.29 "EMPLOYEE" shall mean any person employed by the Employer or any
other employer required to be aggregated with such Employer under Sections
414(b), (c), (m) or (o) of the Code.
The term Employee shall include Owner-Employees and any Leased Employee deemed
to be an Employee as provided in Sections 414(n) or (o) of the Code of any
Employer described in the preceding paragraph. Provided, however, Leased
Employee shall not be considered an Employee unless such participation is
required to meet the minimum coverage requirements under Section 410(b) of the
Code.
The term Employee shall exclude any independent contractor.
2.30 "EMPLOYEE AFTER-TAX CONTRIBUTION" shall mean any contribution made
by or on behalf of a Participant on an after-tax basis pursuant to Section 5.01,
if applicable.
2.31 "EMPLOYEE AFTER-TAX CONTRIBUTION ACCOUNT" shall mean an account
established for a Participant for the purpose of receiving contributions made to
the Plan by the Participant pursuant to Section 5.01, if applicable. The
Employee After Tax Contribution Account shall also include contributions made
prior to January 1, 1985, required to participate.
2.32 "EMPLOYER" shall mean the Company and any other entity adopting
this Plan pursuant to Section 16.12.
2.33 "EMPLOYER CONTRIBUTIONS" shall mean contributions made by the
Employer pursuant to Section 4.01.
2.34 "EMPLOYER CONTRIBUTION ACCOUNT" shall mean an account established
for a Participant for the purpose of receiving contributions made to the Plan by
the Employer pursuant to Section 4.01.
2.35 "ENTRY DATE" shall mean the first day of each Plan Year and the
first day of the seventh month of each Plan Year.
2.36 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
2.37 "EXCESS AGGREGATE CONTRIBUTION" shall mean, with respect to any
Plan Year, the excess of:
(a) The aggregate Contribution Percentage Amounts taken into account in
computing the numerator of the Contribution Percentage actually made on behalf
of a Highly Compensated Employee for such Plan Year, over
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(b) The maximum Contribution Percentage Amounts permitted by the ACP test
(determined by reducing contributions made on behalf of Highly Compensated
Employees in order of their Contribution Percentages beginning with the highest
of such percentages).
Such determination shall be made after first determining Excess Elective
Deferrals pursuant to Section 5.04 and then determining Excess Contributions
pursuant to Section 6.02.
2.38 Reserved.
2.39 "EXCESS CONTRIBUTIONS" shall mean, with respect to any Plan
Year, the excess of:
(a) The aggregate amount of Employer Contributions actually taken into account
in computing the ADP of Highly Compensated Employees for such Plan Year, over
(b) The maximum amount of such contributions permitted by the ADP test
(determined by reducing contributions made on behalf of Highly Compensated
Employees in order of the ADPs beginning with the highest of such percentages).
2.40 "EXCESS ELECTIVE DEFERRALS" shall mean those Elective Deferrals
that are includible in a Participant's gross income under Section 402(g) of the
Code to the extent such Participant's Elective Deferrals for a taxable year
exceed the dollar limitation under such Section of the Code. Excess Elective
Deferrals shall be treated as Annual Additions under the Plan.
2.41 "FISCAL YEAR" shall mean the twelve (12) month period beginning
January 1 and ending December 31.
2.42 "HIGHLY COMPENSATED EMPLOYEE" shall include highly compensated
active employees and highly compensated former employees.
A highly compensated active employee includes any Employee who performs service
for the Employer during the Determination Year and who, during the Look-Back
Year:
(a) Received compensation from the Employer in excess of $75,000 (as adjusted
pursuant to Section 415(d) of the Code);
(b) Received compensation from the Employer in excess of $50,000 (as adjusted
pursuant to Section 415(d) of the Code) and was a member of the top-paid group
for such year; or
(c) Was an officer of the Employer and received compensation that is greater
than fifty percent (50%) of the dollar limitation in effect under Section
415(b)(1)(A) of the Code.
Any Employee who is both described in (b) or (c) above if the term
"Determination Year" is substituted for the term "Look-Back Year" and who is one
of the 100 Employees who received the most compensation from the Employer during
the Determination Year shall be treated as a Highly Compensated Employee.
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Any Employee who is a five percent (5%) or more owner at any time during the
Look-Back Year or Determination Year shall be treated as a Highly Compensated
Employee.
If no officer has satisfied the compensation requirement of (c) above during
either the Determination Year or the Look-Back Year, then the highest paid
officer for such year shall be treated as a Highly Compensated Employee.
A highly compensated former employee includes any Employee who separated from
service (or was deemed to have separated) prior to the Determination Year,
performs no service for the Employer during the Determination Year, and was a
highly compensated active employee for either the Plan Year in which such
Employee's separation from service occurs or any Plan Year ending on or after
the Employee's 55th birthday.
If an Employee is, during the Determination Year or the Look-Back Year, a family
member of either a five percent (5%) owner who is an active or former Employee
or a Highly Compensated Employee who is one of the ten (10) most highly
compensated Employees ranked on the basis of compensation paid by the Employer
during such year, then the family member and the five percent (5%) owner or
top-ten Highly Compensated Employees shall be aggregated and treated as a single
Employee and any compensation and Employer Contributions or benefits paid to
such family member shall be treated as if paid to (or on behalf of) the five
percent (5%) owner or top-ten Highly Compensated Employees. For purposes of this
Section 2.42, 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, the
top 100 Employees, and the number of Employees treated as officers and the
compensation that is considered, will be made in accordance with Section 414(q)
of the Code and the Regulations thereunder.
The above definition of Highly Compensated Employee is effective for Plan Years
beginning after December 31, 1986.
2.43 "HOUR OF SERVICE" shall mean:
(a) Each hour for which an Employee is paid, or shares in income, or is entitled
to payment or to share in income, for the performance of duties or services for
the Employer. These hours shall be credited to the Employee for the computation
period or periods in which the duties are performed; and
(b) Each hour for which an Employee is paid, or entitled to payment, by the
Employer on account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including Disability), layoff, jury
duty, military duty or leave of absence. No more than 501 hours of service shall
be credited under this paragraph for any single continuous period (whether or
not such period occurs in a single computation period). Hours under this
paragraph shall be calculated and credited pursuant to Section
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17
2530.200b-2 of the Department of Labor Regulations which are incorporated herein
by this reference; and
(c) Each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to in writing by the Employer. The same hours of
service shall not be credited both under paragraph (a) or paragraph (b) above,
as the case may be, and under this paragraph (c). These hours shall be credited
to the Employee for the Computation Period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made.
(d) Solely for purposes of determining whether a Break in Service for
participation and vesting purposes has occurred, an Employee who is on a
maternity or paternity leave of absence shall be given credit for each hour
which otherwise would have been credited to such Employee but for such absence.
In the event it cannot be determined how many hours would have been credited to
such Employee, credit shall be given for eight (8) hours of service per normal
workday of absence. No more than 501 Hours of Service shall be credited under
this paragraph by reason of any such maternity or paternity leave of absence.
The hours credited under this paragraph shall be treated as Hours of Service
only in the year that the absence from work begins if such treatment would
prevent a Participant from incurring a Break in Service in that year. In any
other case, hours credited under this paragraph shall be treated as Hours of
Service in the year following the year in which the absence from work begins.
"maternity or paternity leave of absence" shall mean absence from work for any
period by reason of the pregnancy of the Employee, the birth of a child of the
Employee, the placement of a child with the Employee in connection with the
adoption of such child by the Employee, or absence for the purpose of caring for
a child during the period immediately following such birth or placement.
Hours of service will be credited for employment with other members of an
affiliated service group (under Section 414(m) of the Code), a controlled group
of corporations (under Section 414(b) of the Code), or a group of trades or
businesses under common control (under Section 414(c) of the Code) of which the
adopting Employer is a member, and any other entity required to be aggregated
with the Employer pursuant to Section 414(o) of the Code and the Regulations
thereunder.
Hours of service will also be credited for any individual considered an Employee
for purposes of this Plan under Code Section 414(n) or Code Section 414(o) and
the regulations thereunder.
2.44 Reserved.
2.45 "INVESTMENT MANAGER" shall mean a fiduciary other than the Company
appointed pursuant to Section 11.04 to manage, acquire or dispose of any asset
of the Trust Fund who acknowledges in writing his fiduciary obligation to the
Plan and Trust and who fulfills the requirements set forth in Section 11.04.
2.46 "LEASED EMPLOYEE" shall mean any person (other than an employee of
the recipient) who pursuant to an agreement between the recipient Employer and
any other person ("leasing organization") has performed services for the
recipient Employer (or for the recipient Employer and related persons determined
in accordance with Section 414(n)(6) of the Code)) on a substantially full
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time basis for a period of at least one year, and such services are of a type
historically performed by employees in the business field of the recipient
Employer. Contributions or benefits provided a Leased Employee by the leasing
organization which are attributable to services performed for the recipient
employer shall be treated as provided by the recipient Employer.
A Leased Employee shall not be considered an Employee of the recipient Employer
if:
(a) Such employee is covered by a money purchase pension plan maintained
by the leasing organization and which provides:
(i) A nonintegrated employer contribution rate of at least 10 percent
(10%) of compensation, as defined in Section 415(c)(3) of the Code, but
including amounts contributed pursuant to a salary reduction agreement
which are excludable from the employee's gross income under Section
125, Section 402(a)(8), Section 402(h) or Section 403(b) of the Code;
(ii) Immediate participation; and
(iii) Full and immediate vesting.
(b) Leased Employees do not constitute more than 20 percent (20%) of the
recipient Employers nonhighly compensated workforce.
This definition shall be effective for Leased Employee services performed after
December 31, 1986.
2.47 "LIMITATION YEAR" shall mean the calendar year.
2.48 "LOOK-BACK YEAR" shall mean the twelve (12) consecutive month
period immediately preceding the Determination Year.
2.49 "MATCHING CONTRIBUTION" shall mean an Employer contribution made
to this or any other defined contribution plan on behalf of a Participant on
account of an Employee After-Tax Contribution made by such Participant, or on
account of a Participant's Elective Deferrals, under a plan maintained by the
Employer.
2.50 "MATCHING CONTRIBUTION ACCOUNT" shall mean an account established
for a Participant for the purpose of receiving Matching Contributions made by
the Employer to the Plan pursuant to Section 4.02 or Section 4.03.
2.51 "MAXIMUM PERMISSIBLE AMOUNT" shall mean for the Limitation Year
with respect to any Participant the lesser of twenty-five percent (25%) of the
Participant's Compensation for the Limitation Year or $30,000 (or, if greater,
one-fourth of the defined benefit dollar limitation set forth in Section
415(b)(1) of the Code as in effect for the Limitation Year). If there is a short
Limitation Year because of a change in the Limitation Year, the Administrator
will multiply the $30,000 limitation (or larger limitation) by the following
fraction: number of months in the short Limitation Year divided by twelve (12).
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2.52 "NAMED FIDUCIARY" shall mean the Company.
2.53 "NONHIGHLY COMPENSATED EMPLOYEE" shall mean an Employee of the
Employer who is neither a Highly Compensated Employee nor a family member whose
compensation is required to be aggregated with a Highly Compensated Employee.
2.54 "NORMAL RETIREMENT AGE" shall mean the date on which a Participant
or a former Participant attains age 65.
2.55 "NORMAL RETIREMENT DATE" shall mean the first day of the month
coinciding with or following the date on which a Participant retires after
attaining Normal Retirement Age.
2.56 "OWNER-EMPLOYEE" shall mean an individual who is a sole
proprietor, or who is a partner owning more than 10 percent (10%) of either the
capital or profits interest of the partnership.
2.57 "PARTICIPANT" shall mean an Employee who has commenced
participation in the Plan after having met the eligibility requirements of
Article III.
2.58 "PARTICIPATION COMMENCEMENT DATE" shall mean the first day of the
first Plan Year in which the Participant commenced participation in the Plan.
2.59 "PLAN" shall mean the First Financial Bancorp Thrift Plan and
Trust, as set forth herein or as hereafter amended.
2.60 "PLAN YEAR" shall mean the twelve (12) consecutive month period
beginning January 1 and ending December 31.
2.61 "PROJECTED ANNUAL BENEFIT" shall mean a Participant's annual
benefit under any defined benefit plans of the Employer that are provided by
Employer contributions, based on the assumptions that the Participant will
continue employment until his Normal Retirement Age, that his actual
compensation will continue at the same rate as in effect for the Limitation Year
under consideration until his Normal Retirement Age and that all other relevant
factors used to determine benefits under the Plan will remain constant as of the
current Limitation Year for all future Limitation Years.
2.62 "QUALIFIED DOMESTIC RELATIONS ORDER" shall mean a domestic
relations order as defined in Section 414(p) of the Code and Section
206(d)(3)(B) of ERISA and those other domestic relations orders permitted to be
so treated by the Administration under the provisions of the Retirement Equity
Act of 1984.
2.63 "QUALIFIED ELECTION" shall mean a waiver of a Qualified Joint and
Survivor Annuity or Qualified Pre-Retirement Survivor Annuity made in writing
and consented to by the Participant's Spouse. Any election shall not be
effective unless: (a) the Participant's Spouse consents in writing to the
election; (b) the election designates a specific beneficiary including any class
of beneficiaries or any contingent beneficiaries, which may not be changed
without Spousal consent (or the Spouse expressly permits designations by the
Participant without any further Spousal consent); (c) the
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Spouse's consent acknowledges the effect of the election; and (d) the Spouse's
consent is witnessed by a plan representative or notary public. Additionally, a
Participant's waiver shall not be effective unless the election designates a
form of benefit payment which may not be changed without Spousal consent (or the
Spouse expressly permits designations by the Participant without any further
spousal consent). If it is established to the satisfaction of a Plan
representative that there is no Spouse or that the Spouse cannot be located, a
waiver will be deemed a Qualified Election. Any consent by a Spouse (or
establishment that the consent of a Spouse may not be obtained) shall be
effective only with respect to such Spouse. A consent that permits designations
by the Participant without any requirement of further consent by such Spouse
must acknowledge that the Spouse has the right to limit consent to a specific
beneficiary, and a specific form of benefit where applicable, and that the
Spouse voluntarily elects to relinquish either or both of such rights. A
revocation of a prior waiver may be made by a Participant without the consent of
the Spouse at any time before the commencement of benefits. The number of
revocations shall not be limited. No consent obtained under this provision shall
be valid unless the Participant has received notice as provided in Section 9.02
or 9.03.
2.64 "QUALIFIED EMPLOYER CONTRIBUTION" shall mean contributions made by
the Employer and elected under Section 6.06 to be treated as Qualified Employer
Contributions.
2.65 "QUALIFIED EMPLOYER CONTRIBUTION ACCOUNT" shall mean an account
established for a Participant for the purpose of receiving Qualified Employer
Contributions made by the Employer to the Plan pursuant to Section 6.06.
2.66 "QUALIFIED JOINT AND SURVIVOR ANNUITY" shall mean an immediate
annuity for the life of the Participant with a survivor annuity to the
Participant's Spouse which is not less than one-half, nor more than 100 percent
(100%), of the amount of the annuity which is payable during the joint lives of
the Participant and the Participant's Spouse and which is the amount of benefit
which can be purchased with the Participant's vested Account balance.
2.67 "QUALIFIED PRE-RETIREMENT SURVIVOR ANNUITY" shall mean an annuity
for the life of the surviving Spouse which is the amount that can be purchased
with the Participant's vested Account balance (as of the date of death).
2.68 "QUALIFIED VOLUNTARY EMPLOYEE CONTRIBUTION" shall mean any
deductible voluntary employee contribution made to the Plan by or on behalf of a
Participant pursuant to Section 5.03.
2.69 "QUALIFIED VOLUNTARY EMPLOYEE CONTRIBUTION ACCOUNT" shall mean an
account established for a Participant for the purpose of receiving contributions
made to the Plan by the Employer pursuant to the pursuant to Section 5.03.
2.70 "QUALIFYING EMPLOYER REAL PROPERTY" shall mean such property as
defined in Section 407(d)(4) of ERISA.
2.71 "QUALIFYING EMPLOYER SECURITIES" shall mean such securities as
defined in Section 407(d)(5) of ERISA.
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2.72 "REQUIRED BEGINNING DATE" shall mean April 1 following the close
of the calendar year in which the Participant or former Participant attains age
70-1/2.
2.73 "ROLLOVER ACCOUNT" shall mean an account established for an
Employee for the purposes of receiving a rollover contribution made to the Plan
in accordance with the terms of Section 11.05 or receiving a trustee to trustee
transfer made in accordance with the terms of Section 11.06.
2.74 "SELF-EMPLOYED INDIVIDUAL" shall mean an individual who has Earned
Income for the taxable year from the trade or business for which the Plan is
established; also, an individual who would have had Earned Income but for the
fact that the trade or business had no net profits for the taxable year.
2.75 "SPOUSE" shall mean the spouse or surviving spouse of the
Participant, provided that a former spouse, to the extent provided under a
Qualified Domestic Relations Order as described in Section 414(p) of the Code,
will be treated as the spouse or surviving spouse, and further provided the
Participant and Spouse had been married throughout the one (1) year period
ending on the earlier of the Participant's Annuity Starting Date or the
Participant's date of death.
2.76 "SUSPENSE ACCOUNT" shall mean an account established for the
purpose of holding forfeitures pursuant to Section 8.03.
2.77 Reserved.
2.78 "TRUST" or "TRUST FUND" shall mean the assets of the Plan and
Trust as shall exist from time to time.
2.79 "TRUSTEE" shall mean Society Bank, N.A. (Dayton) or the person(s)
or entity(ies) serving as Trustee pursuant to Article XI and any successor
thereto.
2.80 "VALUATION DATE" shall mean the last day of March, June, September
and December in each Plan Year, and such other date or dates deemed necessary or
appropriate by the Administrator.
2.81 "YEAR OF SERVICE" shall mean any twelve consecutive month period
during which an employee is an Employee of the Employer.
For purposes of determining eligibility to participate in the Plan it shall mean
the twelve (12) consecutive month period during which an Employee completes
1,000 Hours of Service and it shall begin on the day an Employee first performs
an Hour of Service and end on the day immediately preceding the anniversary
thereof. Succeeding Years of Service shall be based on the Plan Year and shall
begin with the Plan Year in which the first anniversary of an Employee's
employment with the Employer commences. An Employee who is credited with 1000
Hours of Service in both the initial eligibility computation period and the
first Plan Year which commences prior to the first anniversary of the Employees
initial eligibility computation period will be credited with two (2) Years of
Service for purposes of eligibility to participate.
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For purposes of determining vesting, all accounts are 100% vested upon
completion of the participation requirements as set forth herein.
For purposes of determining eligibility for allocations of contributions or
forfeitures, see Sections 4.02, 4.03, and 4.07.
2.82 "FORMER PARTICIPANT" shall mean any person who ceases to be a
participant but whose interest in the Trust Fund has not been wholly
distributed.
2.83 "EMPLOYER STOCK FUND" shall mean the fund consisting of shares of
common stock of an Employer.
2.84 "MARKET VALUE" shall mean:
(a) For the Employer Stock Fund, the share bid value quoted publicly and
generally accepted as official on a specified date or, if not quoted
publicly, the fair market value of fund assets, as reported by the fund
manager to the Trustee, including investment earnings.
(b) For the Fixed Income Fund, the share value of the fund quoted publicly
and generally accepted as official on a specific date or if not
publicly traded or if managed under an investment contract, the value
of the fund including interest thereon as reported by the fund or
investment manager to the Trustee.
(c) For the Diversified Stock Fund, the share bid value quoted publicly and
generally accepted as official on a specified date or, if not quoted
publicly, the fair market value of fund assets, as reported by the fund
manager to the trustee, including investment earnings.
(d) For the Savings Account Fund, the dollar value of the savings accounts,
certificates of deposit and/or other interest bearing fund assets with
the interest accrued or credited thereon.
(e) For the Balanced Fund, effective as of January 1, 1995, the share value
of the fund quoted publicly and generally accepted as official on a
specific date or if not publicly traded or if managed under an
investment contract, the value of the fund including interest thereon
as reported by the fund or investment manager to the Trustee.
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ARTICLE III
Eligibility and Participation
-----------------------------
3.01 ELIGIBILITY REQUIREMENTS.
An Employee shall be eligible to participate in the Plan on the Entry Date (if
employed on that date) immediately following the date on which he completes one
(1) (not to exceed 1) Year of Service and attains age 21 (not to exceed 21).
Provided, however, such date shall be not later than the earlier of: (1) the
first day of the Plan Year beginning after the date on which the Employee has
met the eligibility requirements or (2) six months after the date the
eligibility requirements are met.
An Employee otherwise eligible, who is in an ineligible class of employees, will
immediately participate in the Plan on becoming a member of an eligible class.
An eligible Employee will become a Participant on the Entry Date only if he
enrolls and authorizes payroll deductions for his contributions for the period
prior to December 31, 1984, or an Elective Deferral of a portion of his
Compensation for the period after December 31, 1984, as provided in Section 5.02
of this Plan. If an eligible Employee fails to enroll on the first Entry Date he
is eligible to participate, he may enroll as of any subsequent Entry Date and
become a Participant on that date.
Once an Employee becomes a Participant he shall remain a Participant until he
terminates employment with an Employer regardless of the number of Hours of
Service he completes in a Plan Year, except that a Participant who is on Leave
of Absence shall remain a Participant while on leave unless and until he
terminates employment.
For purposes of this Section, all of an Employee's Hours of Service with the
Employer and Hours of Service with a predecessor of the Employer, are counted to
determine a Year of Service.
The Administrator shall determine the eligibility of each Employee to
participate in the Plan for each Plan Year based on information furnished by the
Employer. Such determination shall be within the absolute discretion of the
Administrator and shall be conclusive and binding upon all persons as long as
the same is made pursuant to the Plan and ERISA.
3.02 APPLICATION FOR PARTICIPATION.
Participation in the Plan is voluntary and may be commenced by an Employee who
has met the eligibility requirements of Section 3.01 as of any Entry Date. The
Administrator shall provide forms for enrollment of an Employee as a Participant
in the Plan.
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3.03 REEMPLOYMENT PRIOR TO BREAK IN SERVICE (ELIGIBILITY)
If an Employee who has met the eligibility requirements of Section 3.01
terminates employment and subsequently resumes employment prior to incurring a
one (1) year Break in Service, the rehired Employee shall continue to be
eligible to participate in the Plan in the same manner as if such termination
had not occurred. If an Employee who has not met the eligibility requirements of
Section 3.01 terminates employment and subsequently resumes employment prior to
incurring a one (1) year Break in Service, the rehired Employee shall be
eligible to participate in the Plan on the Entry Date (if employed on that date)
coincident with or immediately following the date such Employee meets the
eligibility requirements of Section 3.01 hereof.
3.04 REEMPLOYMENT AFTER BREAK IN SERVICE (ELIGIBILITY).
If any Participant is reemployed after a one (1) year Break in Service has
occurred, Years of Service for eligibility purposes shall include Years of
Service prior to the occurrence of such one (1) year Break in Service subject to
the following rules:
(a) If a Participant has a one (1) year Break in Service, such Participant's
pre-break and post-break service shall be used for computing Years of Service
for eligibility purposes only after such Participant has completed one (1) Year
of Service following the date of his reemployment with the Employer. In such
event, such Participant shall participate in the Plan from the date on which
such Participant first performs an Hour of Service for the Employer upon rehire.
(b) If a Participant has consecutive one (1) year Breaks in Service which equal
or exceed the greater of (i) five (5) or (ii) the aggregate number of such
Participant's pre-break Years of Service, such Participant's Years of Service
otherwise allowable under (a) above shall be disregarded for eligibility
purposes and such Participant shall be deemed a new Employee for purposes of
eligibility to participate in the Plan.
3.05 AUTHORIZED LEAVE OF ABSENCE.
A Participant on an Authorized Leave of Absence shall not be deemed to have
incurred a Break in Service, provided such Participant returns to the employ of
the Employer after such Authorized Leave of Absence ends.
3.06 PAST SERVICE WITH FORMER EMPLOYER.
Service with a predecessor Employer must be counted for purposes of the Plan if
the successor continues to maintain the Plan of the predecessor Employer.
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ARTICLE IV
Employer Contributions
----------------------
4.01 EMPLOYER CONTRIBUTIONS.
The Employer shall not be required to make contributions to the Plan except for
Elective Deferrals made on behalf of Participants, as described in Section 5.02,
or as required in the event the Plan is Top-Heavy pursuant to the provisions of
Article XIV.
Provided that any such Employer Contribution amount shall not exceed the maximum
amount deductible for Federal income tax purposes. Employer Contributions shall
be allocated to each Participant's Employer Contribution Account and shall be
vested as provided in Section 8.01.
The Employer's Contribution shall be paid to the Plan not later than the time
prescribed by law for filing the Employer's Federal income tax return (including
extensions) for the Employer's taxable year with respect to which a deduction
for the contribution is claimed.
4.02 MATCHING CONTRIBUTIONS FOR ELECTIVE DEFERRALS.
The Employer shall make Matching Contributions to the Plan in a percentage
amount equal to fifty percent (50%) of the Elective Deferrals made by a
Participant pursuant to Section 5.02.
Provided, however, such Matching Contributions shall not be made on Elective
Deferrals which exceed six percent (6%) of the Participant's Compensation.
Such Matching Contributions shall be vested as provided in Section 8.01 and
shall be allocated to the Matching Contribution Account of all eligible
Participants who shall include any Participant regardless of the Participant's
Hours of Service.
Matching Contributions may be made by the Employer at any time, provided,
however, such Matching Contributions shall be made no later than the time
prescribed by law for filing the Employer's Federal income tax return (including
extensions) for the taxable year with respect to which the Matching
Contributions are made.
4.03 Reserved.
4.04 FORM OF CONTRIBUTION.
Contributions made by the Employer may be in cash, Qualifying Employer
Securities, Qualifying Employer Real Property, and any other form as the
Employer, in its discretion, shall determine.
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4.05 FOR EXCLUSIVE BENEFIT OF PARTICIPANTS.
Any and all contributions made by the Employer to the Trust Fund, with the
exception contained in Section 4.08, shall be irrevocable and neither such
contributions nor any income therefrom shall be used for, nor diverted to,
purposes other than for the exclusive benefit of Participants or their
beneficiaries under the Plan.
4.06 LIMITATIONS ON ALLOCATIONS
(a) GENERAL LIMITATION. Notwithstanding any other provisions of this Plan, the
aggregate Annual Addition to a Participant's Account under this Plan and all
other defined contribution plans (as defined in Section 414(i) of the Code) of
the Employer covering such Participant shall not exceed the Maximum Permissible
Amount, effective January 1, 1987.
(b) DISPOSITION OF EXCESS AMOUNT. The Employer shall not contribute an amount to
the Plan which would cause the Annual Addition to any Participant's Account to
exceed the Maximum Permissible Amount. Excess Amount, for purposes of this
Section shall mean the excess of the Participant's Annual Additions for the
Limitation Year over the Maximum Permissible Amount.
However, if the Annual Addition to any Participant's Account exceeds the Maximum
Permissible Amount due to forfeitures or a reasonable error in estimating
Compensation, any contributions made by the Participant for the Plan Year, to
the extent of the excess, shall be treated as follows:
(i) So much of the Participant's voluntary contributions which cause the
Participant's accounts to exceed the maximum annual additions shall be returned
to the Participant.
(ii) The Employer will deposit to an individual suspense account the excess
amounts in the Participant's Employer Matching Contribution Account.
(iii) The amount in the individual suspense account will be used to reduce the
Employer matching contributions for that Participant for the next Limitation
Year and any succeeding Limitation Years as long as the Participant is covered
by the Plan at the end of the Limitation Year.
(iv) If such Participant is not covered by the Plan at the end of the Limitation
Year, then such amounts must be held unallocated in a suspense account for the
Limitation Year and shall be allocated and reallocated in the next Limitation
Year (and succeeding Limitation Years, as necessary) to all of the remaining
Participants. Such amounts must be used to reduce Employer contributions in the
Limitation Year (and succeeding Limitation Years, as necessary).
(v) Notwithstanding any other provision contained in this Plan, the Employer
shall not contribute any amount that would cause an allocation to a suspense
account as of the date the contribution is allocated. If the contribution is
made prior to the date as of which it is to be allocated, then such contribution
shall not exceed an amount that would cause an allocation to the suspense
account if the date of contribution were an Adjustment Date.
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The $30,000 maximum annual addition shall be adjusted to reflect any cost of
living increases pursuant to Section 415(d) of the Code ant Regulations
thereunder.
A Participant may not choose to defer an amount that would cause the annual
additions in this Plan alone to exceed the maximum allowed. Adjustments to the
annual additions must be made in accounts other than the Employee Deferral
Account.
No profits or losses attributable to the assets of the Trust shall be allocated
to such holding account. The Employer shall not make any contributions to the
Plan and the Plan shall not accept any Participant contributions that would
constitute Annual Additions until all amounts held in such holding account are
allocated to Participants' Accounts in succeeding Limitation Years.
Notwithstanding the foregoing, the otherwise permissible Annual Addition for any
Participant under this Plan may be further reduced to the extent necessary, as
determined by the Administrator, to prevent disqualification of the Plan under
Section 415 of the Code, which imposes additional limitations on the benefits
payable to Participants who also may be participating in another tax qualified
pension, profit sharing, savings or stock bonus plan of the Employer. The
Administrator shall advise affected Participants of any such additional
limitation on their Annual Additions.
(c) MORE THAN ONE DEFINED CONTRIBUTION PLAN.
This Section applies if, in addition to this Plan, the Participant is covered
under another qualified defined contribution plan maintained by the Employer, a
welfare benefit fund, as defined in Section 419(e) of the Code maintained by the
Employer, or an individual medical account, as defined in Section 415(1)(2) of
the Code, maintained by the Employer, which provides an Annual Addition during
any Limitation Year. If the Annual Additions with respect to the Participant
under other defined contribution plans and welfare benefit funds maintained by
the Employer are less than the Maximum Permissible Amount and the Employer
Contribution that would otherwise be contributed or allocated to the
Participant's Account under this Plan would cause the Annual Additions for the
Limitation Year to exceed this limitation, the amount contributed or allocated
will be reduced so that the Annual Additions under all such plans and funds for
the Limitation Year will equal the Maximum Permissible Amount. If the Annual
Additions with respect to the Participant under such other defined contribution
plans and welfare benefit funds in the aggregate are equal to or greater than
the Maximum Permissible Amount, no amount will be contributed or allocated to
the Participant's Account under this Plan for the Limitation Year. If as a
result of the allocation, a Participant's Annual Additions under this Plan and
such other plans would result in an excess amount for a Limitation Year, the
excess amount will be deemed to consist of the Annual Additions last allocated,
except that Annual Additions attributable to a welfare benefit fund or
individual medical account will be deemed to have been allocated first
regardless of the actual allocation date. If an Excess Amount was allocated to a
Participant on an allocation date of this Plan, which coincides with an
allocation date of another plan, the Excess Amount will not be attributed as of
such date to this Plan.
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(d) DEFINED BENEFIT/DEFINED CONTRIBUTION LIMITATION.
If the Participant at any time participates, or has ever participated, under a
defined benefit plan maintained by the Employer, then the sum of the defined
benefit plan fraction and the defined contribution plan fraction for the
Participant for that Limitation Year must not exceed 1.0. To the extent
necessary to satisfy this limitation, the Employer will reduce the Participant's
Projected Annual Benefit under the defined benefit plan under which the
Participant participates.
(e) DEFINITIONS. For purposes of this Section 4.06, the following terms shall
mean:
(i) "DEFINED BENEFIT PLAN FRACTION" means the Projected Annual Benefit of the
Participant under the defined benefit plan(s) (whether or not terminated)
divided by the lesser of (1) 125% of the dollar limitation in effect under
Section 415(b)(1)(A) of the Code for the Limitation Year, or (2) 140% of the
Participant's average Compensation for his high three (3) consecutive Years of
Service.
Notwithstanding the above, if the Participant was a Participant as of the first
day of the first Limitation Year beginning after December 31, 1986 in one or
more defined benefit plans maintained by the Employer which were in existence on
May 6, 1986, the dollar limitation used in the denominator of this fraction will
not be less than the Participant's Current Accrued Benefit. A Participant's
Current Accrued Benefit is the sum of the annual benefits under such defined
benefit plans which the Participant had accrued as of the end of the 1986
Limitation Year (the last Limitation Year beginning before January 1, 1987),
determined without regard to any change in the terms or conditions of the Plan
made after May 5, 1986, and without regard to any cost of living adjustment
occurring after May 5, 1986. This Current Accrued Benefit rule applies only if
the defined benefit plans individually and in the aggregate satisfied the
requirements of Section 415 of the Code as in effect at the end of the 1986
Limitation Year.
(ii) "DEFINED CONTRIBUTION PLAN FRACTION" means a fraction, the numerator of
which is the sum of the Annual Additions to the Participant's Account under all
the defined contribution plans (whether or not terminated) maintained by the
Employer for the current and all prior Limitation Years (including the Annual
Additions attributable to the Participant's nondeductible employee contributions
to all defined benefit plans, whether or not terminated, maintained by the
employer, and the Annual Additions attributable to all welfare benefits funds,
as defined in Section 419(e) of the Code, and individual medical accounts, as
defined in Section 415(1)(2) of the Code, maintained by the Employer), and the
denominator of which is the sum of the Maximum Aggregate Amounts for the current
and all prior Limitation Years of service with the Employer (regardless of
whether a defined contribution plan was maintained by the Employer). The Maximum
Aggregate Amount in any Limitation Year is the lesser of 125 percent of the
dollar limitation determined under Sections 415(b) and (d) of the Code in effect
under Section 415(c)(1)(A) of the Code or thirty-five percent (35%) of the
Participant's Compensation for such year.
If the Employee was a Participant as of the end of the first day of the first
Limitation Year beginning after December 31, 1986, in one or more defined
contribution plans maintained by the Employer which were in existence on May 6,
1986, the numerator of this fraction will be adjusted if the sum of this
fraction and the defined benefit fraction would otherwise exceed 1.0 under the
terms of this Plan. Under the adjustment, an amount equal to the product of (1)
the excess of the sum of the
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29
fractions over 1.0 times (2) the demoninator of this fraction, will be
permanently subtracted from the numerator of this fraction. The adjustment is
calculated using the fractions as they would be computed as of the end of the
last Limitation Year beginning before January 1, 1987, and disregarding any
changes in the terms and conditions of the Plan made after May 5, 1986, but
using the Section 415 limitation applicable to the first Limitation Year
beginning on or after January 1, 1987.
The Annual Addition for any Limitation Year beginning before January 1, 1987,
shall not be recomputed to treat all Employee After-Tax Contributions as Annual
Additions.
(iii) "COMPENSATION", solely for purposes of this Section 4.06, shall mean
Compensation as defined in Section 2.16.
4.07 ALLOCATION OF FORFEITURES.
(a) ELIGIBILITY FOR ALLOCATION. The Employer Contributions and forfeitures to
the Plan for each Plan Year, if any, shall be allocated to the Employer
Contribution Account of eligible Participants who shall include any Participant
regardless of the Participant's Hours of Service.
Provided, however, any Participant whose employment with the Employer was
terminated during the Plan Year prior to completion of the necessary Hours of
Service, shall receive an allocation if he terminated as a result of his death,
disability or retirement on or after attaining Normal Retirement Age.
(b) FORFEITURE ALLOCATION. All amounts in the plan are 100% vested.
(c) PRORATA ALLOCATION METHOD. Employer Contributions for the Plan Year shall be
allocated to each eligible Participant's Employer Contribution Account in the
ratio that each Participant's Compensation bears to the Compensation received by
all such eligible Participants.
(d) CORRECTION OF ALLOCATIONS.
Notwithstanding the above, if the Plan would otherwise fail to meet the
requirements of Section 401(a)(26), 410(b)(1), or 410(b)(2)(A)(i) of the Code
and the Regulations thereunder because Employer Contributions have not been
allocated to a sufficient number or percentage of employees for a Plan Year,
then the following rules shall apply:
(i) The group of Participants eligible to share in the Employer Contribution and
forfeitures for the Plan Year shall be expanded to include the minimum number of
participants who would not otherwise be eligible as are necessary to satisfy the
applicable test specified above. The specific employees who shall become
eligible to participate under the terms of this Section 4.07(d) shall be those
who are actively employed on the last day of the Plan Year and, when compared to
similarly situated employees have completed the greatest number of Hours of
Service in the Plan Year.
(ii) If after application of paragraph (i) above, the applicable test is still
not satisfied, then the group of participants eligible to share in the Employer
Contribution and forfeitures for the Plan Year
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30
shall be further expanded to include the minimum number of employees who are not
actively employed on the last day of the Plan Year as are necessary to satisfy
the applicable test. The specific employees who shall become eligible to share
shall be those employees, when compared to similarly situated employees, who
have completed the greatest number of Hours of Service in the Plan Year before
terminating employment.
Nothing in this Section 4.07(d) shall permit the reduction of a Participant's
accrued benefit. Therefore any amounts that have previously been allocated to
Participants may not be reallocated to satisfy these requirements. In such
event, the Employer shall make an additional contribution equal to the amount
such affected Participants would have received had they been included in the
allocations, even if it exceeds the amount which would be deductible under
Section 404 of the Code. Any adjustment to the allocations pursuant to this
paragraph shall be considered a retroactive amendment adopted by the last day of
the Plan Year.
4.08 RETURN OF CONTRIBUTIONS.
All contributions made by the Employer are made for the exclusive benefit of the
Participants and their beneficiaries. Notwithstanding the foregoing, effective
as of December 22, 1987, amounts contributed to the Trust by the Employer
pursuant to this Article IV shall be returned to the Employer under the
circumstances and subject to the limitations set forth herein:
(a) DISALLOWANCE OF DEDUCTION. To the extent that a Federal income tax deduction
is disallowed for any contribution made by the Employer, the Trustee shall
refund to the Employer the amount of such contribution disallowed within one (1)
year of the date of such disallowance upon presentation of evidence of
disallowance.
(b) DENIAL OF INITIAL QUALIFICATION. In the event that the Commissioner of
Internal Revenue determines that the Plan is not initially qualified under the
Code, any contribution made incident to that initial qualification by the
Employer must be returned to the Employer within one (1) year after the date the
initial qualification is denied, but only if the application for the
qualification is made by the time prescribed by law for filing the Employer's
return for the taxable year in which the Plan is adopted, or such later date as
the Secretary of the Treasury may prescribe.
(c) MISTAKE OF FACT. Any contribution made by the Employer because of a mistake
shall be returned to the Employer within one (1) year of the contribution.
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31
ARTICLE V
Participant Contributions
-------------------------
5.01 EMPLOYEE AFTER-TAX CONTRIBUTIONS.
(a) AMOUNT. Employee After-Tax Contributions to the Plan are not permitted after
December 31, 1985.
One time per calendar year, upon application to the Plan Administrator, a
Participant may withdraw all or any portion of his Employee After-Tax
Contribution Account.
Provided, a Participant who makes a withdrawal pursuant to this Section shall be
ineligible to make any contribution until the Entry Date next succeeding a
period of six months from the date of withdrawal. Any withdrawal shall not cause
a forfeiture of any Employer contributions or earnings thereon. A Participant
not recontribute to the Plan any amounts withdrawn in accordance with this
Section.
The remainder of Section 5.01 is reserved.
5.02 ELECTIVE DEFERRAL CONTRIBUTIONS.
(a) AMOUNT. Each Participant may, but shall not be required to, authorize the
Employer to deduct and withhold from such Participant's Compensation a
percentage thereof of such Employee's Compensation and to contribute such amount
to the Trust Fund on a before-tax basis, subject to the limitation of Section
5.04. Such Elective Deferral Contribution shall be held in the Participant's
Elective Deferral Account and shall be fully vested and non-forfeitable at all
times.
In no event may the Participant authorize such deduction of less than one
percent (1%) of such Participant's Compensation (rounded to the nearest whole
dollar) or in excess of twelve percent (12%) (rounded to the nearest whole
dollar) of such Participant's Compensation.
In no event, however, will a Participant be permitted to make a contribution for
any year to the extent that the portion of his contribution which counts (for
ceiling purposes) as an Annual Addition to all of his accounts in all individual
account plans with the Employer, when added to the Employer Contributions,
Matching Contributions, and forfeitures credited to his Account, causes the
Annual Additions to his Account to exceed the Maximum Permissible Amount.
(b) DEPOSITS. Amounts withheld shall be contributed to the Trustee within a
reasonable period of time following the last day of the month during which the
amount was withheld. All contributions shall be made no later than thirty (30)
days following the close of the Plan Year with respect to which the contribution
was made. Contributions shall be credited to a Participant's Elective Deferral
Account upon receipt by the Trustee.
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32
(c) CONTRIBUTION AGREEMENT. An initial Contribution Agreement shall be effective
as soon as practicable after the date the Employee is first eligible to
participate provided it is filed with the Employer at least thirty (30) days
prior to any entry date following eligibility and shall remain in effect until a
new Contribution Agreement is filed with the Employer.
A Contribution Agreement may be revoked at any time, in writing, provided that
any revocation shall be effective as soon as practical after the revocation is
filed with the Employer on a prospective basis only.
A Contribution Agreement may be modified one time during a Plan Year, provided
that any modification shall be in writing and effective as soon as practical
after the modification is filed with the Employer, on a prospective basis only.
The Employer may amend or terminate any Contribution Agreement on written notice
to the Participant.
If a Participant has not authorized the Employer to withhold at the maximum rate
and desires to increase the total amount withheld for a Plan Year, such
Participant may authorize the Employer to withhold a supplemental amount of his
Compensation for one or more pay periods assuming such compensation has not yet
been earned.
(d) TAX TREATMENT. In accordance with Section 401(k) of the Code, all amounts
withheld from a Participant's Compensation and contributed to such Participant's
Elective Deferral Account shall not be included in the gross income of the
Participant for Federal income tax purposes and shall be deemed for tax purposes
to be an Employer Contribution to the Plan.
5.03 QUALIFIED VOLUNTARY EMPLOYEE CONTRIBUTIONS.
Qualified Voluntary Employee Contributions (QVECs) to the Plan are not
permitted.
5.04 ANNUAL ELECTIVE DEFERRAL LIMITATION.
In no event may the sum of the Employee Elective Deferrals withheld under the
Contribution Agreement plus any supplemental withholding on behalf of any
Participant to the Plan (or to any other plan maintained by the Employer) exceed
the dollar limitation contained in Section 402(g) of the Code ("Section 402(g)
Limit") for any taxable year of the Participant. If the Employer determines that
the Elective Deferrals of any Employee for a calendar year would exceed the
Section 402(g) Limit for the calendar year, the Employer shall not make any
additional Elective Deferrals with respect to that Employee for the remainder of
such calendar year, shall pay in cash to the Employee any amounts which would
cause the Elective Deferrals to exceed the Section 402(g) Limit, and the Trustee
shall distribute the amount in excess of the Section 402(g) Limit (the "Excess
Elective Deferrals"), as adjusted for allocable income or loss, no later than
April 15 of the following year. The Employer or the Trustee shall determine the
amount of income or loss allocable to the Employee's Excess Elective Deferrals
in a manner similar to the allocable income or loss determination described in
Section 6.02(c) for Excess Contributions, except the Employer or Trustee shall
make the determination with reference to the income or loss allocable to such
Elective Deferrals and with
V-2
33
reference to the Employee's taxable year rather than the Plan Year; provided,
however, that no income or loss attributable to such excess for the period from
the end of the Plan Year to the date of return need be calculated for a
distribution adjustment. If the Trustee distributes the Excess Elective
Deferrals by the appropriate April 15, it may make the distribution irrespective
of any other provision under this Plan or the Code.
If an Employee participates in another plan under which he makes elective
deferrals pursuant to Section 401(k) of the Code, elective deferrals under a
simplified employee pension, or salary reduction contributions to a tax
sheltered annuity, irrespective of whether the Employee maintains the other
plan, the Employee may assign to this Plan any Excess Elective Deferrals made
during a taxable year of the Participant by providing the Employer a written
claim for excess deferrals made for a calendar year. The eligible Employee must
submit the claim no later than the March 1 following the close of the
individual's taxable year and the claim shall specify the amount of the
Employee's Elective Deferrals under this Plan which are excess deferrals. If the
Employer receives a timely claim, it shall direct the Trustee to distribute to
the Employee the excess deferral, as adjusted for allocable income or loss,
which the Employee has assigned to this Plan in accordance with the distribution
procedure described in the immediately preceding paragraph.
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34
ARTICLE VI
Non-Discrimination Testing
--------------------------
6.01 ACTUAL DEFERRAL PERCENTAGE TEST.
The requirements of Section 6.01 are effective for all Plan Years beginning
after December 31, 1986.
(a) ADP TEST. The ADP for Participants who are Highly Compensated Employees for
each Plan Year and the ADP for Participants who are Nonhighly Compensated
Employees for the same Plan Year must satisfy one of the following tests:
(i) The ADP for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the ADP for Participants who are Nonhighly Compensated
Employees for the same Plan Year multiplied by 1.25; or
(ii) The ADP for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the ADP for Participants who are Nonhighly Compensated
Employees for the same Plan Year multiplied by 2.0, provided that the ADP for
Participants who are Highly Compensated Employees does not exceed the ADP for
Participants who are Nonhighly Compensated Employees by more than two (2)
percentage points.
(b) SPECIAL RULES. The following rules shall apply for purposes of the ADP test:
(i) The ADP for any Participant who is a Highly Compensated Employee for the
Plan Year and who is eligible to have Elective Deferrals (and Qualified Employer
Contributions if treated as Elective Deferrals for purposes of the ADP test)
allocated to his or her Accounts under two or more arrangements described in
Section 401(k) of the Code, that are maintained by the Employer, shall be
determined as if such Elective Deferrals (and, if applicable, such Qualified
Employer Contributions) were made under a single arrangement. If a Highly
Compensated Employee participates in two or more cash or deferred arrangements
that have different Plan Years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single arrangement.
(ii) In the event that this Plan satisfies the requirements of Sections 401(k),
401(a)(4), or 410(b) of the Code only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of such sections
of the Code only if aggregated with this Plan, then this Section 6.01 shall be
applied by determining the ADP of employees as if all such plans were a single
plan. For Plan Years beginning after December 31, 1989, plans may be aggregated
in order to satisfy section 401(k) of the Code only if they have the same Plan
Year.
(iii) For purposes of determining the ADP of a Participant who is a five-percent
(5%) owner or one of the ten (10) most highly-paid Highly Compensated Employees,
the Elective Deferrals (and Qualified Employer Contributions if treated as
Elective Deferrals for purposes of the ADP test) and compensation of such
Participant shall include the Elective Deferrals (and, if applicable, Qualified
Employer Contributions) and compensation for the Plan Year of family members (as
defined in
VI-1
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Section 414(q)(6) of the Code). Family members, with respect to such Highly
Compensated Employees, shall be disregarded as separate employees in determining
the ADP both for Participants who are Nonhighly Compensated Employees and for
Participants who are Highly Compensated Employees.
(iv) For purposes of determining the ADP test, Elective Deferrals and Qualified
Employer Contributions must be made before the last day of the twelve (12) month
period immediately following the Plan Year to which contributions relate.
(v) The Employer shall maintain records sufficient to demonstrate satisfaction
of the ADP test and the amount of Qualified Employer Contributions used in such
test.
(vi) The determination and treatment of the ADP amounts of any Participant shall
satisfy such other requirements as may be prescribed by the Secretary of the
Treasury.
6.02 EXCESS CONTRIBUTIONS.
The requirements of Section 6.02 are effective for all Plan Years beginning
after December 31, 1986.
(a) DISTRIBUTION. Notwithstanding any other provision of this Plan, Excess
Contributions, plus any income and minus any loss allocable thereto, shall be
distributed no later than the last day of each Plan Year to Participants to
whose accounts such Excess Contributions were allocated for the preceding Plan
Year. If such excess amounts are distributed more than two and one-half (2 1/2)
months after the last day of the Plan Year in which such excess amounts arose, a
ten percent (10%) excise tax will be imposed on the Employer maintaining the
plan with respect to such amounts. Such distributions shall be made to Highly
Compensated Employees on the basis of the respective portions of the Excess
Contributions attributable to each of such Employees. Excess Contributions shall
be allocated to Participants who are subject to the family member aggregation
rules of Section 414(q)(6) of the Code in the manner prescribed by the
regulations.
(b) ACCOUNTING. Excess Contributions shall be distributed from the Participant's
Elective Deferral Account and Qualified Employer Contribution Account (if
applicable) in proportion to the Participant's Elective Deferrals and Qualified
Employer Contributions (to the extent used in the ADP test) for the Plan Year.
Excess Contributions (including the amounts recharacterized as provided in
Section 6.03) shall be treated as Annual Additions under the Plan.
(c) DETERMINATION OF INCOME OR LOSS. Excess Contributions shall be adjusted for
any income or loss up to the date of distribution; provided, however, that no
income or loss attributable to such excess for the period from the end of the
Plan Year to the date of return need be calculated for a distribution
adjustment. The income or loss allocable to Excess Contributions is the sum of:
(1) income or loss allocable to the Participant's Elective Deferral Account
(and, if applicable, the Qualified Employer Contributions Account) for the Plan
Year multiplied by a fraction, the numerator of which is such Participant's
Excess Contributions for the year and the denominator is the Participant's
account balance attributable to Elective Deferrals (and Qualified Employer
Contributions
VI-2
36
if any of such contributions are included in the ADP test) without regard to any
income or loss occurring during such Plan Year.
6.03 RECHARACTERIZATION OF EXCESS CONTRIBUTIONS.
The requirements of Section 6.03 are effective for all Plan Years beginning
after December 31, 1986.
A Participant may treat his or her Excess Contributions as an amount distributed
to the Participant and then contributed by the Participant to the Plan as an
Employee After-Tax Contribution, however, such recharacterized amounts will
remain nonforfeitable and subject to the same distribution requirements as
Elective Deferrals. Amounts may not be recharacterized by a Highly Compensated
Employee to the extent that such amount in combination with other Employee
After-Tax Contributions made by that Employee would exceed the stated limit
under the Plan on Employee After-Tax Contributions.
Recharacterization must occur no later than two and one-half (2 1/2) months
after the last day of the Plan Year in which such Excess Contributions arose and
is deemed to occur no earlier than the date the last Highly Compensated Employee
is informed in writing of the amount recharacterized and the consequences
thereof. Recharacterized amounts will be taxable to the Participant for the
Participant's tax year in which the Participant would have received such amount
in cash.
6.04 ACTUAL CONTRIBUTION PERCENTAGE TEST.
The requirements of Section 6.04 are effective for all Plan Years beginning
after December 31, 1986.
(a) ACP TEST. The ACP for Participants who are Highly Compensated Employees for
each Plan Year and the ACP for Participants who are Nonhighly Compensated
Employees for the same Plan Year must satisfy one of the following tests:
(i) The ACP for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the ACP for Participants who are Nonhighly Compensated
Employees for the same Plan Year multiplied by 1.25; or
(ii) The ACP for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the lesser of (a) the ACP for Participants who are
Nonhighly Compensated Employees for the same Plan Year multiplied by two (2), or
(b) the ACP for Participants who are Nonhighly Compensated Employees plus two
(2) percentage points.
(b) SPECIAL RULES. The following rules shall apply for purposes of the ACP test:
(i) Multiple Use: If one or more Highly Compensated Employees participate in
both a cash or deferral arrangement (CODA) and a plan subject to the ACP test
maintained by the Employer, and the sum of the ADP and ACP of those Highly
Compensated Employees subject to either or both tests exceeds the Aggregate
Limit, then the ACP of those Highly Compensated Employees who also participate
in a CODA will be reduced (beginning with such Highly Compensated Employee whose
ACP is the highest) so that the limit is not exceeded. The amount by which each
Highly Compensated
VI-3
37
Employee's Contribution Percentage Amounts is reduced shall be treated as an
Excess Aggregate Contribution. The ADP and ACP of the Highly Compensated
Employees are determined after the corrections required to meet the ADP and ACP
tests. Multiple use does not occur if either the ADP or ACP of the Highly
Compensated Employees does not exceed 1.25 multiplied by the ADP and ACP of the
Nonhighly Compensated Employees.
(ii) For purposes of this section, the Contribution Percentage for any
Participant who is a Highly Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his or her account under two or
more plans described in Section 401(a) of the Code, or arrangements described in
Section 401(k) of the Code that are maintained by the Employer, shall be
determined as if the total of such Contribution Percentage Amounts was made
under each plan. If a Highly Compensated Employee participates in two or more
cash or deferred arrangements that have different plan years, all cash or
deferred arrangements ending with or within the same calendar year shall be
treated as a single arrangement.
(iii) In the event that this Plan satisfies the requirements of Sections 401(m),
401(a)(4) or 410(b) of the Code only if aggregated with one or more other plans,
or if one or more other plans satisfy the requirements of such Sections of the
Code only if aggregated with this Plan, then this Section shall be applied by
determining the Contribution Percentage Amount of Employees as if all such plans
were a single plan. For plans years beginning after December 31, 1989, plans may
be aggregated in order to satisfy Section 401(m) of the Code only if they have
the same Plan Year.
(iv) For purposes of determining the Contribution Percentage of a Participant
who is a five-percent (5%) owner or one of the ten most highly-paid Highly
Compensated Employees, the Contribution Percentage Amounts and Compensation of
such Participant shall include the Contribution Percentage Amounts and
Compensation for the Plan Year of family members (as defined in section
414(q)(6) of the Code). Family members, with respect to Highly Compensated
Employees, shall be disregarded as separate Employees in determining the
Contribution Percentage both for Participants who are Nonhighly Compensated
Employees and for Participants who are Highly Compensated Employees.
(v) For purposes of determining the Contribution Percentage test, Employee
After-Tax Contributions are considered to have been made in the Plan Year in
which contributed to the Trust Fund. Matching Contributions and Qualified
Employer Contributions will be considered made for a Plan Year if made no later
than the end of the twelve (12) month period beginning on the day after the
close of the Plan Year.
(vi) The Employer shall maintain records sufficient to demonstrate satisfaction
of the ACP test and the amount of Qualified Employer Contributions used in such
test.
(vii) The determination and treatment of the Contribution Percentage of any
Participant shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
6.05 EXCESS AGGREGATE CONTRIBUTIONS.
The requirements of Section 6.05 are effective for all Plan Years beginning
after December 31, 1986.
VI-4
38
(a) DISTRIBUTION. Notwithstanding any other provision of this Plan, Excess
Aggregate Contributions, plus any income and minus any loss allocable thereto,
shall be forfeited, if forfeitable, or if not forfeitable, distributed no later
than the last day of each Plan Year to Participants to whose Accounts such
Excess Aggregate Contributions were allocated for the preceding Plan Year.
Excess Aggregate Contributions shall be allocated to Participants who are
subject to the family member aggregation rules of Section 414(q)(6) of the Code
in the manner prescribed by Treasury regulations. If such Excess Aggregate
Contributions are distributed more than two and one-half (2 1/2) months after
the last day of the Plan Year in which such excess amounts arose, a ten percent
(10%) excise tax will be imposed on the Employer maintaining the plan with
respect to those amounts. Excess Aggregate Contributions shall be treated as
Annual Additions under the Plan.
(b) ACCOUNTING. Excess Aggregate Contributions shall be forfeited, if
forfeitable or distributed on a prorata basis from the Participant's Employee
After-Tax Contribution Account, Matching Contribution Account, and Qualified
Employer Contribution Account (and, if applicable, Elective Deferral Account).
Forfeitures of Excess Aggregate Contributions shall be applied to reduce
Employer Contributions.
(c) DETERMINATION OF INCOME OR LOSS. Excess Aggregate Contributions shall be
adjusted for any income or loss up to the date of distribution; provided,
however, that no income or loss attributable to such excess for the period from
the end of the Plan Year to the date of return need be calculated for a
distribution adjustment. The income or loss allocable to Excess Aggregate
Contributions is the sum of: (i) income or loss allocable to the Participant's
Employee After-Tax Contribution Account, Matching Contribution Account (if any,
and if all amounts therein are not used in the ADP test) and, if applicable,
Qualified Employer Contribution Account and Elective Deferral Account for the
Plan Year multiplied by a fraction, the numerator of which is such Participant's
Excess Aggregate Contributions for the year and the denominator is the
Participant's account balance(s) attributable to Contribution Percentage Amounts
without regard to any income or loss occurring during such Plan Year.
6.06 QUALIFIED EMPLOYER CONTRIBUTIONS.
Effective for Plan Years beginning after December 31, 1986 the Employer may
elect to treat all or a part of its Matching Contributions and its Employer
Contributions as Qualified Employer Contributions for purposes of meeting the
ADP test or ACP test. Qualified Employer Contributions shall be allocated to the
Participants' Qualified Employer Contribution Account which shall be fully
vested and nonforfeitable at all times.
VI-5
39
ARTICLE VII
Accounts
--------
7.01 ACCOUNT ALLOCATIONS.
The Plan Administrator shall determine the Participants, Former Participants,
and Beneficiaries who are entitled to one or more of the allocations hereinafter
described, and it shall, as of each Valuation Date, prepare a statement showing
the information necessary to make the proper allocation. This information shall
include the full names of all Participants, Former Participants, and
Beneficiaries, the amount allocated to the Matching Contribution Account, the
amount allocated to the Participant's Elective Deferral Account and the amount
allocated to the Employee Contribution Account. The information shall also
include the names of the Former Participants whose employment has terminated.
The Plan Administrator shall maintain for each Participant a separate Elective
Deferral Account to record his interest in the Trust Fund which is attributable
to his Elective Deferrals, a separate Matching Contribution Account to record
his interest in the Trust Fund which is attributable to Matching Contributions
and a separate Employee After-Tax Contribution Account to record his interest in
the Trust Fund which is attributable to contributions under Sections 2.28 and
5.01 herein.
The accounts of each Participant shall be made up of subaccounts reflecting the
Participants investment elections. Each subaccount shall be adjusted as provided
in Section 7.05 of this Plan.
7.02. MATCHING CONTRIBUTION INVESTMENT.
All Matching Contributions and the earnings credited thereon shall be invested
in the Employer Stock Fund and are not subject to transfer to another investment
fund.
7.03. INVESTMENT ELECTIONS.
(a) Each Participant shall elect the manner in which his Employee After-Tax
Contribution Account, if any, and Elective Deferral Account amounts are to be
invested. The first such election shall be made by an employee prior to becoming
a Participant. Subsequent elections may be made effective on July 1 of each
year. Each election shall specify how any future contributions shall be
invested. The election may also specify how any present balance as of June 30 of
the Plan Year shall be invested. Only one investment fund may be designated for
all amounts covered by a particular election. The Participant may choose to have
his accounts invested in one or more of the following Funds, subject to any
nondiscriminatory restrictions the Plan Administrator may from time to time,
place on the availability of a particular Fund or Funds:
(1) EMPLOYER STOCK FUND. This fund shall be primarily invested in common stock
of the First Financial Bancorp, or its successors by merger, and adopting
Related Employers.
VII-1
40
(2) FIXED INCOME FUND. The Fixed Income Fund shall consist primarily of high
quality corporate and/or U. S. Government bonds which provide a fixed rate of
return, determinable in advance, with the objective of providing stability and a
good current yield.
(3) DIVERSIFIED STOCK FUND. Investments are primarily in common stock or
securities convertible into common stocks of many companies or units of other
collective equity funds, with objectives of long-term capital appreciation.
Performance is to be achieved through a portfolio consisting of a diversified
cross-section of companies.
(4) SAVINGS ACCOUNT FUND. Investments are primarily in savings accounts,
certificates of deposit and/or other interest bearing fund assets with the
interest thereon.
This section (a) is effective up to and through May 24, 1993. Effective
May 25, 1993, investment elections are governed by paragraph (b) as set forth
below.
(b) Each Participant shall elect the manner in which his Employee
After-Tax Contribution, if any, and Elective Deferral amounts are to be
invested. The first such election shall be made by an Employee prior to becoming
a Participant. Subsequent elections may be made effective on any Valuation Date
in the Plan Year. Each election shall specify how any future contributions shall
be invested. The election may also specify how any present balance as of such
date shall be invested. Only one investment fund may be designated for all
amounts covered by a particular election. The Participant may choose to have his
accounts invested in one or more of the following Funds, subject to any
nondiscriminatory restrictions the Plan Administrator may from time to time,
place on the availability of a particular Fund or Funds:
(1) EMPLOYER STOCK FUND. This fund shall be primarily invested in
common stock of the First Financial Bancorp, or its successors by merger, and
adopting Related Employers.
(2) FIXED INCOME FUND. The Fixed Income Fund shall consist primarily
of high quality corporate and/or U. S. Government bonds which provide a fixed
rate of return, determinable in advance, with the objective of providing
stability and a good current yield.
(3) DIVERSIFIED STOCK FUND. Investments are primarily in common stock
or securities convertible into common stocks of many companies or units of other
collective equity funds, with objectives of long-term capital appreciation.
Performance is to be achieved through a portfolio consisting of a diversified
cross-section of companies.
(4) SAVINGS ACCOUNT FUND. Investments are primarily in savings
accounts, certificates of deposit and/or other interest bearing fund assets with
the interest thereon.
(5) BALANCED FUND. Effective January 1, 1995, a Participant may invest
in the Balanced Fund. The Fund will consist of investments in stocks, bonds and
other fixed-income securities, with the objective of conservation of capital,
current income and long-term growth of capital and income.
Effective January 1, 1995, Participant may specify how present and
future account balances are to be invested, effective on any Valuation Date in
the Plan Year. Any change in investment
VII-2
41
direction for prior account balances and future account balances made on or
after January 1, 1995, must be a change expressed in multiples of twenty percent
(20%) of the amount in the fund.
7.04. VALUATION OF ASSETS.
In any valuation of the assets of the Trust Fund the Market Value thereof shall
be used on any Valuation Date. The Trustee shall use such Market Value to
determine the earnings or losses of the Trust. The Trustee shall report the net
worth of the assets and shall report such values in writing to the Plan
Administrator.
7.05. ACCOUNT ADJUSTMENTS.
Each Participant's accounts shall be made up of subaccounts reflecting their
investment elections. As of each Valuation Date the accounts of each Participant
shall be adjusted in the manner and order stated:
(a) PAYMENTS: There shall be subtracted the-total amount of any payments made
from the accounts since the preceding Valuation Date to him or for his benefit.
Payments shall be subtracted from the subaccount designated by the Participant.
If no designation was made, then payments will be subtracted proportionately
from all subaccounts.
(b) ELECTIVE DEFERRALS: There shall be added to the Elective Deferral Account
and to the appropriate subaccount, as directed by the Participant, 1/2 of any
deferrals of compensation made since the preceding Valuation Date.
(c) MATCHING CONTRIBUTIONS: There shall be added to the Matching Contribution
Account of each Participant or Former Participant one/half of an amount which
equals 50% of the Compensation deferred since the preceding Valuation Date,
disregarding any Compensation in excess of 6% of the Participant's Compensation.
(d) NET GAIN OR LOSS: Each Fund will be valued on the Valuation Date at fair
market value. Each subaccount invested in that Fund will be increased or
decreased to reflect a proportionate share of the net increase or net decrease
of the Fund since the preceding Valuation Date in the same ratio that each
subaccount (as adjusted in (a) through (d) above) bears to the total of all
subaccounts invested in that Fund as of the preceding Valuation Date (also
adjusted as provided in subparagraphs (a) through (d) above). The findings of
the Trustee as to the net increase or net decrease of the value of the funds
shall be conclusive.
(e) ELECTIVE DEFERRALS: There shall be added to the Employee Deferral Account
and to the appropriate subaccount, as directed by the Participant. 1/2 of any
deferrals of compensation made since the preceding Valuation Date.
(f) EMPLOYEE AFTER-TAX CONTRIBUTIONS: There shall be added to the Employee
Voluntary Contribution Account and each appropriate subaccount, as directed by
the Participant, one-half of any voluntary contribution the Participant made
since the preceding Valuation Date.
VII-3
42
(g) MATCHING CONTRIBUTIONS: There shall be added to the Employer Matching
Contribution Account of each Participant or Former Participant one-half of an
amount which equals 50% of the Compensation deferred since the preceding
Valuation Date, disregarding any Compensation deferred in excess of 6% of the
Participant's Compensation.
(h) TRANSFER OF INVESTMENT: Any change in the investment direction by the
Participant shall be put in effect on the June 30 Valuation Date after all
adjustments above have been made. There shall be added or subtracted any amounts
from one investment fund to another. The subaccounts making up the accounts of
the Participants shall reflect such a change. This paragraph on transfer of
investments is effective up to and through May 24, 1993. Effective May 25, 1993,
investment transfers and/or changes in investment direction shall be as follows
in the paragraph set forth below.
Any change in the investment direction by the Participant shall be put in effect
on the Valuation Date after all adjustments above have been made. There shall be
added or subtracted any amounts transferred from one investment fund to another.
The subaccounts making up the accounts of the Participants shall reflect such a
change.
The Plan Administrator may from time to time adopt rules of uniform application
providing (i) for longer or shorter periods for the making of investment option
elections provided by this Section 7, (ii) for different or additional dates for
the changing of investment option elections or transfer between such options,
and (iii) for minimum limits on the amount that may be withdrawn if such amount
is less than all of the Participant's interest in such option.
7.06 ANNUAL REPORT.
The Trustee shall furnish each Participant a written report regarding the value
of his Accounts within a reasonable period of time after each Valuation Date.
VII-4
43
ARTICLE VIII
Vesting
-------
8.01 VESTING REQUIREMENTS.
(a) FULLY VESTED ACCOUNTS. A Participant's interest in his total Account shall
be fully vested and nonforfeitable at all times. The remainder of Section VIII
is reserved.
8.02 Reserved.
8.03 Reserved.
VIII-1
44
ARTICLE IX
Payment of Benefits
-------------------
9.01 PAYABLE EVENTS.
Subject to the provisions of this Article IX, a Participant's entire vested
Account shall be payable to him, or in the event of his death to his
beneficiary, upon the first to occur of his termination of employment by reason
of his death, retirement, or other separation from service in accordance with
this Article IX.
Notwithstanding anything contained herein to the contrary, in the event the
value of the Participant's vested Account exceeds $3,500 (or at the time of any
prior distributions exceeded $3,500), no distribution shall be made prior to the
date the Participant attains (or would have attained if not deceased) the later
of Normal Retirement Age or age 62 without the Participant's written consent and
the written consent of the Participant's Spouse, if required. Failure to consent
shall be deemed to defer commencement of payment of any amount until Participant
reaches Normal Retirement Age.
Nothing contained in this Plan prevents the Trustee, in accordance with the
direction of the Administrator or the Committee, from complying with the
provisions of a Qualified Domestic Relations Order (as defined in Code
Sec. 414(p)). This Plan specifically permits distribution to an alternate payee
under a Qualified Domestic Relations Order at any time, irrespective of whether
the Participant has attained his earliest retirement age (as defined under Code
Sec. 414(p)) under the Plan. A distribution to an alternate payee prior to the
Participant's attainment of earliest retirement age is available only if: (1)
the order specifies distribution at that time or permits an agreement between
the Plan and the alternate payee to authorize an earlier distribution; and (2)
if the present value of the alternate payee's benefits under the Plan exceeds
$3,500, and the order requires, the alternate payee consents to any distribution
occurring prior to the Participant's attainment of earliest retirement age.
Nothing in this Section gives a Participant a right to receive distribution at a
time otherwise not permitted under the Plan nor does it permit the alternate
payee to receive a form of payment not otherwise permitted under the Plan.
The Administrator or the Committee must establish reasonable procedures to
determine the qualified status of a domestic relations order. Upon receiving a
domestic relations order, the Administrator or the Committee promptly will
notify the Participant and any alternate payee named in the order, in writing,
of the receipt of the order and the Plan's procedures for determining the
qualified status of the order. Within a reasonable period of time after
receiving the domestic relations order, the Administrator or the Committee must
determine the qualified status of the order and must notify the Participant and
each alternate payee, in writing, of its determination. The Administrator or the
Committee must provide notice under this paragraph by mailing to the
individual's address specified in the Qualified Domestic Relations Order, or in
a manner consistent with Department of Labor regulations.
IX-1
45
If any portion of the Participant's Nonforfeitable Accrued Benefit is payable
during the period the Administrator or Committee is making its determination of
the qualified status of the domestic relations order, the Administrator or the
Committee must make a separate accounting of the amounts payable. If the
Administrator or the Committee determines the order is a Qualified Domestic
Relations Order within 18 months of the date amounts first are payable following
receipt of the order, the Administrator or the Committee will direct the Trustee
to distribute the payable amounts in accordance with the order. If the
Administrator or the Committee does not make its determination of the qualified
status of the order within the 18 month determination period, the Administrator
or the Committee will direct the Trustee to distribute the payable amounts in
the manner the Plan would distribute if the order did not exist and will apply
the order prospectively if the Administrator or the Committee later determines
the order is a Qualified Domestic Relations Order.
To the extent it is not inconsistent with the provisions of the Qualified
Domestic Relations Order, the Administrator or the Committee may direct the
Trustee to invest any partitioned amount in a segregated subaccount or separate
account and to invest the account in Federally insured, interest-bearing savings
account(s) or time deposit(s) (or a combination of both), or in other fixed
income investments. A segregated subaccount remains a part of the Trust, but it
alone shares in any income it earns, and it alone bears any expense or loss it
incurs. The Trustee will make any payments or distributions required under this
Section by separate benefit checks or other separate distribution to the
alternate payee(s).
In no event may any distribution of a Participant's Elective Deferral Account or
Qualified Employer Contribution Account be distributed to such Participant
before his death, retirement, termination of employment, or attainment of age
59-1/2 except as provided in Sections 9.12 and 9.13 and 9.14.
(a) NORMAL RETIREMENT BENEFITS. When a Participant attains his Normal Retirement
Age all amounts then credited to such Participant's Account shall become 100%
vested and nonforfeitable and if the Participant elects to terminate employment,
benefits shall become payable as of the Participant's Normal Retirement Date in
the form described in Section 9.02, unless the Participant or Spouse has chosen
an optional form of payment under Section 9.04.
(b) DEFERRED RETIREMENT BENEFITS. In the event a Participant remains in the
service of the Employer after his Normal Retirement Age, he shall nonetheless
continue to have contributions allocated to his Account and participation in the
Plan shall continue until his actual termination of employment at which time
benefits shall be payable as of the date he elects to retire in the form
described in Section 9.02.
(c) RESERVED.
(d) RESERVED.
(e) PRE-RETIREMENT DEATH BENEFITS. In the event of the Participant's death
before the Annuity Starting Date, all amounts then credited to such
Participant's Account shall become payable in the form described in Section
9.03, unless the Participant or Spouse has chosen an optional form of payment
under Section 9.04. Such benefits shall be payable to the beneficiary designated
by the
IX-2
46
Participant pursuant to Section 9.08 and such beneficiary may elect to have such
benefits distributed as set forth in Section 9.10.
(f) TERMINATION BENEFITS.
If a Participant terminates employment with an Employer, he shall be entitled to
receive the amounts in his accounts determined as of the last preceding
Valuation Date plus any additional Employer Contributions, Elective Deferrals,
or Employee After-Tax Contributions made by or for him since such Valuation
Date.
9.02 NORMAL FORM OF BENEFIT.
The Participant's Account shall be payable in one lump sum payment in cash or in
property unless an optional form of benefit, as specified in Section 9.04, is
selected by the Participant or Spouse. The Plan does not offer a Qualified Joint
and Survivor Annuity.
In no event shall payments under any optional method extend beyond the later of
the lifetime of the Participant, the lifetime of the Participant and the
Participant's Beneficiary, the life expectancy of the Participant or the joint
life expectancies of the Participant and his Beneficiary. If the Participant's
entire interest is to be distributed in other than a lump sum, then the amount
to be distributed each year must be at least an amount equal to the quotient
obtained by dividing the Participant's entire interest by the life expectancy of
the Participant or joint and last survivor expectancy of the Participant and
designated Beneficiary. Life expectancy and joint and last survivor expectancy
are computed by the use of the return multiples contained in Section 1.72-9 of
the regulations issued under the Code. For purposes of this computation, a
Participant's life expectancy may be recalculated no more frequently than
annually, however, the life expectancy of a nonspouse Beneficiary may not be
recalculated. If the Participant's spouse is not the designated Beneficiary, the
method of Distribution selected must assure that at least 50 percent of the
present value of the amount available for distribution J is paid within the life
expectancy of the Participant.
9.03 PRE-RETIREMENT DEATH BENEFIT.
The Participant's vested Account shall be payable in one lump sum payment in
cash or in property unless an optional form of benefit, as specified in Section
9.04, is selected by the Participant or Spouse. The Plan does not offer a
Qualified Pre-Retirement Survivor Annuity.
9.04 OPTIONAL FORMS OF BENEFIT.
In lieu of the form of benefit provided under Section 9.02 or Section 9.03, a
Participant or Spouse may elect to have the Participant's vested Account paid in
one of the following forms.
In installment payments over a period certain of not more than five (5)
years in monthly, cash payments. If such method of payment would result in
payments of less than $100 per month, such amount shall be paid at the rate of
$100 per month until it is exhausted. The total amount credited to the accounts
of the Former Participant shall remain in the Trust Fund and shall be adjusted
as of each Valuation Date as provided in the Plan, and such installments shall
be modified to reflect such
IX-3
47
adjustments. If the Participant dies prior to the exhaustion of his accounts,
the payments shall continue to his beneficiary in the manner chosen by the
Participant subject to the provisions of Section 9.06.
Notwithstanding the provisions of Sections 9.01 and 9.02, in the event the
Participant's vested Account is $3,500 or less (and at the time of any prior
distributions did not exceed $3,500) the Trustee shall distribute the entire
vested Account to the Participant (or to his beneficiary) in one lump sum
payment.
9.05 DETERMINATION OF AMOUNT.
For purposes of this Article IX, the value of the Participant's Account shall be
determined as of the last preceding Valuation Date coincident with or
immediately preceding the date the Participant's vested Account is distributed,
plus, any additional contributions to the Employee After-Tax Contribution
Account, the Elective Deferral Account and the Matching Contribution Account
made by or for him since such Valuation Date.
9.06 TIME OF PAYMENT.
Unless the Participant or Spouse elects otherwise or the distribution is
otherwise deferred, any benefits authorized by Section 9.01 shall commence as
soon as administratively reasonable after the Valuation Date following the date
the Participant's vested Account becomes payable as provided in Section 9.01.
Notwithstanding the above, unless the Participant or Spouse elects otherwise,
distribution of benefits will begin no later than the sixtieth (60th) day after
the latest of the close of the Plan Year in which:
(1) the Participant attains age 65 (or Normal Retirement Age, if
earlier);
(2) occurs the 10th anniversary of the year in which the Participant
commenced participation in the Plan; or
(3) the Participant terminates service with the Employer.
If a distribution is one to which sections 401(a)(11) and 417 of the Internal
Revenue Code do not apply, such distribution may commence less than 30 days
after the notice required under section 1.411(a)(11)(c) of the Income Tax
Regulations is given, provided that:
(1) the plan administrator clearly informs the participant that the
participant has a right to a period of at least 30 days after receiving the
notice to consider the decision of whether or not to elect a distribution (and,
if applicable, a particular distribution option), and
(2) the participant, after receiving the notice, affirmatively
elects a distribution.
9.07 Reserved.
IX-4
48
9.08 BENEFICIARY DESIGNATION AND CONSENT OF SPOUSE.
The beneficiary of any benefit payable upon the death of a married Participant
shall be the Participant's Spouse. The beneficiary of any benefit payable upon
the death of an unmarried participant shall be the beneficiary(ies) designated
by the Participant under procedures established by the Administrator.
The Participant may designate a beneficiary other than his Spouse if:
(a) the Spouse consents in writing to such beneficiary designation, or
(b) the Participant has no Spouse, or
(c) the Spouse cannot be located.
In such event, the designation of a beneficiary shall be made on a form
satisfactory to the Administrator. A Participant may, with the written consent
of his Spouse, at any time revoke his designation of a beneficiary or change his
beneficiary by filing written notice of such revocation or change with the
Administrator. Any consent by the Participant's Spouse to any beneficiary
designation must be irrevocable, in writing, must acknowledge the effect of such
beneficiary designation and the specific non-Spouse beneficiary, and be
witnessed by a Plan representative or a notary public.
Provided, however, that in the event any Participant becomes divorced or any
Participant's marriage is dissolved, any designation of beneficiary pre-existing
such event is hereby revoked except as provided in a Qualified Domestic
Relations Order as described in Section 414(q) of the Code.
In the event no valid designation of beneficiary exists at the time of the
Participant's death, the death benefit shall be payable to such Participant's
estate.
9.09 MANDATORY DISTRIBUTIONS.
Notwithstanding any other provision of this Article:
(a) A Participant's benefits under the Plan will:
(i) be distributed to him not later than the Required Beginning Date; or
(ii) be distributed commencing not later than the Required Beginning Date,
in accordance with regulations prescribed by the Secretary of Treasury, over the
life of such Participant or over the lives of such Participant and designated
beneficiary (or over a period not extending beyond the life expectancy of the
Participant or the life expectancy of the Participant and his designated
beneficiary). The Participant may elect whether or not life expectancies used to
calculate the mandatory distributions will be recalculated. Such election must
be made prior to the Required Beginning Date and will be irrevocable. If no
election is made, life expectancy must be recalculated annually.
IX-5
49
(b) If the Participant dies after distribution has commenced pursuant to
subsection (a)(ii) but before his entire interest in the Plan has been
distributed to him, the remaining portion of his interest in the Plan must be
distributed to his beneficiary at least as rapidly as under the method of
distribution in effect at the time of the Participant's death. If the
Participant dies before distribution has commenced pursuant to subsection
(a)(ii), distribution of the Participant's entire interest shall be completed by
December 31 of the calendar year containing the fifth anniversary of the
Participant's death unless his beneficiary makes an election to receive
distributions in accordance with (i) or (ii):
(i) If any portion of the Participant's interest is payable to a
designated beneficiary, distributions may be made over the life of such
designated beneficiary, beginning not later than one (1) year after the
date of the Participant's death;
(ii) if the designated beneficiary is the Participant's surviving
Spouse, the date distributions are required to begin under (i) above
shall not be earlier than the later of; (1) December 31 of the calendar
year immediately following the calendar year in which the Participant
died, and (2) December 31 of the calendar year in which the Participant
would have attained age 70-1/2.
The method of distribution must be elected by the designated beneficiary no
later than the earlier of (1) December 31 of the calendar year in which
distributions would be required to begin under this Section, or (2) December 31
of the calendar year which contains the fifth anniversary of the date of the
Participant's death. If an election is not made, the Participant's entire
interest shall be paid to his beneficiary within five (5) years after the death
of the Participant.
(c) For calendar years beginning before January 1, 1989, a Participant may not
elect a form of distribution pursuant to Section 9.04 providing payments to a
beneficiary who is other than his surviving Spouse unless at least fifty percent
(50%) of the present value of the amount available for distribution is paid
within the life expectancy of the Participant and for calendar years beginning
after December 31, 1988, the amount to be distributed each year, beginning with
distributions for the first distribution calendar year shall not be less than
the quotient obtained by dividing the Participant's benefit by the lesser of (1)
the applicable life expectancy or (2) if the Participant's Spouse is not the
designated beneficiary, the applicable divisor determined from the table set
forth in Section 1.401(a)(9)-2 (Q&A-4) of the Treasury Regulations.
9.10 AMOUNT AND PAYMENT OF DEATH BENEFITS.
As of the Valuation Date coincident with or next following the death of a
Participant or Former Participant, his Beneficiary shall be entitled to receive
the balance of the Participant's accounts, if any. If the Participant has
retired and benefit payments have commenced, payments will continue in
accordance with the option chosen under Sections 9.02 or 9.04 of this Plan. If
benefit payments have not commenced, such amount shall be paid to the
Beneficiary or applied for his benefit in a manner selected by the Beneficiary,
provided that payment will commence within one year after the Participant's
death and the entire account will be distributed within five years after the
Participant's death.
9.11 NOTICE OF ROLLOVER TREATMENT.
IX-6
50
When a distribution is made to a Participant or beneficiary, such Participant or
beneficiary shall be furnished with a written explanation which includes a
general description of the tax treatment available for such distribution if the
distribution qualifies for either rollover treatment or taxation as a lump sum
distribution under Section 402(e) of the Code.
9.12 HARDSHIP DISTRIBUTIONS.
Distribution of Elective Deferrals (and earnings thereon accrued as of December
31, 1988) may be made to a Participant in the event of hardship. For the
purposes of this Section, hardship is defined as an "immediate and heavy"
financial need of the Employee where such distribution is "necessary" because
the Employee lacks other available resources. Hardship distributions are subject
to the Spousal consent requirements contained in Sections 401(a)(11) and 417 of
the Code.
Hardship shall be determined based on all the facts and circumstances and
(a) A distribution will be considered as "necessary" to satisfy an immediate and
heavy financial need of the Employee only if:
(i) The Employee has obtained all distributions, other than hardship
distributions, and all nontaxable loans under all plans maintained by the
Employer;
(ii) All plans maintained by the Employer provide that the Employee's
Elective Deferrals (and Employee After-Tax Contributions) will be suspended for
twelve (12) months after the receipt of the hardship distribution;
(iii) The distribution is not in excess of the amount of an immediate
and heavy financial need including the amount needed to pay taxes and penalties
thereon, if requested; and
(iv) All plans maintained by the Employer provide that the Employee may
not make Elective Deferrals for the employee's taxable year immediately
following the taxable year of the hardship distribution in excess of the
applicable limit under Section 402(g) of the Code for such taxable year less the
amount of such Employee's Elective Deferrals for the taxable year of the
hardship distribution; and
(v) the amount of any distribution under this section 9.11 shall be the
lesser of:
(a) An amount as determined by the Plan Administrator to be sufficient
to alleviate the hardship, or
(b) The value of the Participant's Elective Deferral Account.
The Plan Administrator shall apply the provisions of this Section on a
uniform and consistent basis to all Participants in similar circumstances and
shall make any rules, regulations, prescribe the use of such forms, and any
other powers it deems necessary to properly carry out the provision and intent
of this Section.
IX-7
51
9.13 IN-SERVICE DISTRIBUTIONS.
At the election of the Participant, the Administrator, may distribute a portion
or the entire amount then credited to the Participant's Matching Contribution
Account as of the succeeding Valuation Date and earnings credited to After-Tax
Contribution Account.
Provided further, that the Participant may withdraw only the amounts credited to
the Accounts described above that have been in the above-described accounts for
more than eight (8) calendar quarters. A Participant who makes a withdrawal
pursuant to this Section shall be ineligible to make any Elective Deferrals to
the Plan until the Entry Date next succeeding a period of twelve (12) months
from the date of the receipt of the withdrawal. Any distribution made pursuant
to this Section shall be made in a manner consistent with this Article IX,
including, but not limited to, all notice and consent requirements of Sections
411(a)(11) and 417 of the Code and the Regulations thereunder.
9.14 OTHER DISTRIBUTABLE AMOUNTS.
Effective for Plan Years beginning after December 31, 1984, a Participant's
Elective Deferral Account or Qualified Employer Contribution Account may be
distributed upon the occurrence of any of the following events:
(a) Termination of the Plan without the establishment of another defined
contribution plan.
(b) The disposition by the Employer to an unrelated corporation of substantially
all of the assets (within the meaning of Section 409(d)(2) of the Code) used in
a trade or business of the Employer if the Employer continues to maintain this
Plan after the disposition, but only with respect to Employees who continue
employment with the corporation acquiring such assets.
(c) The disposition by the Employer to an unrelated entity of the Employer's
interest in a subsidiary (within the meaning of Section 409(d)(3) of the Code)
if the Employer continues to maintain this Plan, but only with respect to
Employees who continue Employment with such subsidiary.
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ARTICLE X
Named Fiduciary Powers and Responsibilities
-------------------------------------------
10.01 ALLOCATION OF RESPONSIBILITY.
The Named Fiduciary shall have only those specific powers, duties,
responsibilities, and obligations as are specifically given them under the Plan.
(a) The Company shall have the sole responsibility for making the contributions
provided for hereunder and shall have the sole authority to appoint and remove
the Trustee, the Administrator, and any Investment Manager which may be provided
for under the Plan; to formulate the Plan's "funding policy and method"; and to
amend or terminate, in whole or in part, the Plan.
(b) The Administrator shall have the responsibility for the administration of
the Plan, which responsibility is specifically described in the Plan including
the responsibility to construe any question of Plan interpretation, subject to
the provisions of Section 10.02.
(c) The Trustee shall have the sole responsibility of management of the assets
held under the Trust, except those assets, the management of which has been
assigned to an Investment Manager, who shall be solely responsible for the
management of the assets assigned to it, all as specifically provided in the
Plan.
(d) Each Named Fiduciary warrants that any directions given, information
furnished, or action taken by it shall be in accordance with the provisions of
the Plan, authorizing or providing for such direction, information or action.
Furthermore, each Named Fiduciary may rely upon any such direction, information
or action of another Named Fiduciary as being proper under the Plan, and is not
required under the Plan to inquire into the propriety of any such direction,
information or action. It is intended under the Plan that each Named Fiduciary
shall be responsible for the proper exercise of its own powers, duties,
responsibilities and obligations under the Plan. No Named Fiduciary shall
guarantee the Trust Fund in any manner against investment loss or depreciation
in asset value. Any person or group may serve in more than one fiduciary
capacity.
(e) Except as otherwise provided in the Act, a named fiduciary shall not be
responsible or liable for acts or omissions of another named fiduciary with
respect to its fiduciary responsibilities. A named fiduciary of the Plan shall
be responsible and liable only for its own acts or omissions/ with respect to
fiduciary duties specifically allocated to it and designated as its
responsibility.
10.02 DISCRETIONARY AUTHORITY.
In accordance with Section 503 of Title I of ERISA, the Named Fiduciary under
the Plan has complete authority to make final determinations regarding
eligibility and to review all denied claims for benefits under the Plan. In
exercising its fiduciary responsibilities, the Named Fiduciary shall have
absolute discretionary authority to determine whether and to what extent
participants and beneficiaries are eligible to participate or are entitled to
benefits, and to construe disputed or doubtful Plan terms. The Named Fiduciary
shall be
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deemed to have properly exercised such authority unless it has abused its
discretion hereunder by acting arbitrarily and capriciously.
X-2
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ARTICLE XI
Trustee Powers and Responsibilities
-----------------------------------
11.01 BASIC RESPONSIBILITIES.
The Trustee shall have the following categories of responsibilities:
(a) Consistent with the "funding policy and method" determined by the Company,
to invest (subject to participant direction of investment), manage, and control
the Plan assets subject, however, to the direction of any Investment Manager
appointed to manage all or a portion of the assets of the Plan;
(b) At the direction of the Administrator, to pay benefits required under the
Plan to be paid to Participants, or, in the event of their death, to their
beneficiaries;
(c) To maintain records of receipts and disbursements and furnish to the
Employer and/or Administrator for each Fiscal Year a written annual report
pursuant to Section 11.10.
11.02 INVESTMENT POWERS AND DUTIES.
(a) The Trustee shall invest and reinvest the Trust Fund to keep the Trust Fund
invested without distinction between principal and income and in such securities
or property, real or personal, wherever situated, as the Trustee shall deem
advisable, including, but not limited to, stocks, common or preferred, bonds and
mortgages, mutual funds, common trust funds including common trust funds and
collective funds of the Trustee and/or any of its affiliates or other fiduciary
and/or any of its affiliates, collective investment funds, and group annuity or
deposit administration contracts and other evidences of indebtedness or
ownership, and real estate or any interest therein, and subject to the
limitations set forth in Sections 7.02 and 7.03. The Trustee shall at all times
in making investments of the Trust Fund consider, among other factors, the short
and long-term financial needs of the Plan on the basis of information furnished
by the Employer. In making such investments, the Trustee shall not be restricted
to securities or other property of the character expressly authorized by the
applicable law for trust investments; however, the Trustee shall give due regard
to any limitations imposed by the Code or ERISA so that at all times the Plan
may qualify as a qualified 401(k) profit sharing plan and trust.
By way of illustration but not limitation, the Trustee may invest the funds of
the Trust in such securities and properties as it may determine and shall not be
restricted by any applicable laws prescribing forms of property which may be
held or acquired by a Trustee.
The Trustee may purchase Qualified Employer Securities or Qualifying Employer
Real Property from the Employer or from any other source. All such purchases
must be made at fair market values.
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(b) The Trustee may employ a bank or trust company pursuant to the terms of its
usual and customary bank agency agreement, under which the duties of such bank
or trust company shall be of a custodial, clerical and recordkeeping nature.
11.03 PARTICIPANT DIRECTION.
Each Participant may elect to direct the investment of his Account as set forth
in Section 7.02 and Section 7.03 herein.
A Participant must submit written instructions to the Trustee for every change
in selection of investments.
If a Participant has elected to direct the investment of his Account and a
tender offer is made for any shares of stock held in the Participant's Account,
the Participant shall make the decision as to whether to tender the shares by
submitting timely written instructions to the Trustee.
Further, amounts, if any, held in the Qualified Employer Contribution Account,
any Rollover Account, or in the Qualified Voluntary Employee Contribution
Account shall be invested under the terms set forth in Section 7.03.
The Plan is intended to constitute a plan described in ERISA Section 404(c) and
Title 29 of the Code of Federal Regulations Section 2550.404c-1 for all accounts
except for the Employer Stock Fund as described in Section 7.03.
11.04 INVESTMENT MANAGER.
The Administrator may direct the Trustee to appoint an Investment Manager
designated by the Committee and shall designate the portion of the Trust Fund to
be managed by the Investment Manager. The Investment Manager shall direct the
Trustee in the exercise of any of the powers described in Section 11.02(a).
However, the Investment Manager may not direct investment in securities issued
by the Employer, an Affiliate, the Trustee or any entity related through common
ownership to the Trustee.
As a prerequisite to being appointed an Investment Manager, said Investment
Manager shall:
(a) (1) be registered as an investment advisor under the Investment
Advisers Act of 1940,
(2) be a bank, as defined in the Investment Advisers Act of 1940, or
(3) be an insurance company qualified under the laws of more than one
state to manage, acquire and dispose of the assets of the Trust under the Plan,
and
(b) have acknowledged in writing that it is a fiduciary with respect to the
Plan.
The Trustee shall not be liable for the acts or omissions of such Investment
Manager or be under any obligation to invest or otherwise manage any assets of
the Trust under the Plan which are subject to the management of such Investment
Manager.
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The Trustee shall, however, be liable for any such act or omission if it
participates knowingly therein or knowingly undertakes to conceal such act or
omission, knowing that by such action or failure to act it would be committing
or participating in a breach of fiduciary duty.
In the event that the Investment Manager should resign or be removed by the
Employer, the Trustee shall be responsible for the Management of the Trust Fund
as otherwise provided in this Plan and Trust unless another Investment Manager
is appointed herein.
11.05 ROLLOVER CONTRIBUTIONS.
The Plan does not accept Rollovers.
The following paragraphs of this section 11.05 apply to distributions made on or
after January 1, 1993.
Notwithstanding any provisions of the plan to the contrary that would otherwise
limit a distributee's election under this Article, a distributee may elect, at
the time and in the manner prescribed by the plan administrator to have any
portion of an eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct rollover.
The definition included in the section 11.05 applies to distributions made on or
after January 1, 1993, only.
Eligible rollover distribution: An eligible rollover distribution is any
distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic payments
(not less frequently than annually) made for the life (or life expectancy) of
the distributee or the join lives (or join life expectancy) of the distributee
and the distributee's designated beneficiary, or for a specified period of ten
years or more; any distribution to the extent such distribution is required
under section 401(a)(9) of the Code; and the portion of any distribution that is
not includible in gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer securities).
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 trustee 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.
Distributee: A distributee includes an employee or former employee. In addition,
the employee's or former employee's surviving spouse and the employee's spouse
or former spouse who is the alternate payee under a qualified domestic relations
order, as defined in section 414(p) of the Code, are distributees with regard to
the interest of the spouse or former spouse.
Direct rollover: A direct rollover is a payment by the plan to the eligible
retirement plan specified by the distributee.
XI-3
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The plan administrator may require that the eligible rollover distribution (or
portion thereof) to be distributed in a direct rollover be paid to single
eligible retirement plan selected by the distributee.
A participant may elect to rollover a distribution of an offset amount that is
otherwise an eligible rollover distribution under Internal Revenue Code
regulations section 1.402(c)-IT.
11.06 Reserved.
11.07 OTHER POWERS.
The Trustee, in addition to all powers and authorities under common law,
statutory authority, including ERISA, and other provisions of the Plan,
including but not limited to, the funding policy and method determined by the
Company, and subject to the powers of the Administrator and any Participant
shall have the following powers and authorities, to be exercised in the
Trustee's sole discretion:
(a) To sell any such property at such time and upon such terms and conditions as
the Trustee deems appropriate. Such sales may be public or private, for cash or
credit, or partly for cash and partly for credit, and may be made without notice
or advertisement of any kind.
(b) To exchange, mortgage or lease any such property and to convey; transfer or
dispose of any such property on such terms and conditions as the Trustee deems
appropriate.
(c) To grant options for the sale, transfer, exchange or disposal of any such
property.
(d) To exercise all voting rights pertaining to any securities, to consent to or
request any action on the part of the issuer of any such securities, and to give
general or special proxies or powers of attorney with or without power of
substitution.
(e) To consent to or participate in amalgamations, reorganizations,
recapitalizations, consolidations, mergers, liquidations, or similar
transactions with respect to any securities, and to accept and to hold any other
securities issued in connection therewith.
(f) To exercise any subscription rights or conversion privileges with respect to
any securities held in the Trust Fund.
(g) To collect and receive any and all money and other property of whatsoever
kind or nature due or owing or belonging to the Trust Fund and to give full
discharge and acquittance therefore, and to extend the time of payment of any
obligation at any time owing to the Trust Fund, as long as such extension is for
a reasonable period and continues reasonable interest.
(h) To cause any securities or other property to be registered in, or
transferred to, the individual name of the Trustee or in the name of one or more
of its nominees, or one or more nominees of any system for the centralized
handling of securities, or it may retain them unregistered and in a form
permitting transferability by delivery, but the books and record of the Trust
shall at all times show that all such investments are a part of the Trust Fund.
XI-4
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(i) To organize under the laws of any State or corporation for the purpose of
acquiring and holding title to any property which it is authorized to acquire
under this Plan and to exercise with respect thereto any or all of the powers
set forth in this Plan.
(j) To manage, operate, repair, improve, develop, preserve, mortgage or lease
for any period any real property or any oil, mineral or gas properties,
royalties, interest or rights held by it directly or through any corporation,
either alone or by joining with others, using other Trust assets for any of such
purposes, to modify extend, renew, waive or otherwise adjust any or all of the
provisions of any such mortgage or lease, and to make provision for amortization
of the investment in or depreciation of the value of such property.
(k) To settle, compromise, or submit to arbitration any claims, debts or damages
due or owing to or from the Trust, to commence or defend suits or legal
proceedings whenever, in its judgment, any interest of the Trust requires it,
and to represent the Trust in all suits or legal proceedings in any court of law
or equity or before any other body or tribunal, insofar as such suits or
proceedings relate to any property forming part of the Trust Fund or to the
administration of the Trust Fund.
(l) To borrow money from others for the purposes of the Trust, but the Trustee
shall not be authorized to borrow any money from its banking department or from
the Employer or any Related Employer except as allowed by applicable law.
(m) Generally to do all acts, whether or not expressly authorized, which the
Trustee deems necessary or desirable, but acting at all times according to the
principles of prudence.
(n) To do all such acts and exercise all such rights and privileges, although
not specifically mentioned herein, as the Trustee may deem necessary to carry
out the purposes of the Plan and Trust.
11.08 DUTIES REGARDING CONTRIBUTIONS AND PAYMENTS.
At the direction of the Administrator, the Trustee shall, from time to time, in
accordance with the terms of the Plan: (a) accept contributions to Plan,
including but not limited, contributions by the Employer; the Trustee is not
obligated to collect any contributions from the Employer or to see that such
funds are deposited according to the provisions of the Plan or to see that the
contributions received comply with the provisions of the Plan; and (b) make
payments out of the Trust Fund; except as otherwise provided herein, the Trustee
shall not be responsible in any way for the application of such payments. Any
distributions made from the Trust shall be in cash, securities, or other
property as the Company shall determine. If payment is in securities, the
securities to be used in making such payment shall be those which the
Administrator shall in his sole discretion determine, and such securities shall
be valued for the purpose of such payment at the value thereof as of the date of
such payment.
11.09 TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES.
The Trustee shall be paid such reasonable compensation as shall from time to
time be agreed upon in writing by the Company and the Trustee. An individual
serving as Trustee who already receives full-time pay from the Employer shall
not receive compensation from the Plan. In addition, the Trustee shall be
reimbursed for any reasonable expenses, including reasonable counsel fees
incurred by it as Trustee. Such compensation and expenses shall be paid from the
Trust Fund unless paid or advanced by the Employer.
XI-5
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All taxes of any kind and all kinds whatsoever that may be levied or assessed
under existing or future laws upon, or in respect of, the Trust Fund or the
income thereof, shall be paid from the Trust Fund.
11.10 ANNUAL REPORT.
Within three (3) months after the end of each Plan Year or receipt of the
Employer's contribution for each Plan Year, the Trustee shall furnish to the
Company and Administrator a written statement of account with respect to the
Plan Year for which such contribution was made setting forth:
(a) the net income or loss of the Trust Fund;
(b) the gains or losses realized by the Trust Fund upon sales or other
disposition of the assets;
(c) the increase or decrease in the value of the Trust Fund;
(d) all payments and distributions made from the Trust Fund; and
(e) such further information as the Trustee and/or Administrator deems
appropriate.
The Company, upon its receipt of each such statement of account, shall
acknowledge receipt thereof in writing and advise the Trustee and/or
Administrator of its approval or disapproval thereof. Failure by the Company to
disapprove any such statement of account within thirty (30) days after its
receipt thereof shall be deemed an approval thereof. The annual report may also
be prepared at such intervals as requested by the Plan Administrator or
Committee with respect to the transactions effected by the Trustee during the
Plan Year or such other period.
11.11 RECORDS AND ACTIONS.
The Trustee shall keep accurate and detailed accounts of all investments,
receipts and disbursements and other transactions hereunder, and all its
accounts, books and records relating to the Trust shall be open to inspection
and audit by any person designated by the Employer at all reasonable times.
11.12 APPOINTMENT, RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE.
(a) The Company hereby appoints the Trustee named in Section 2.77 to serve as
Trustee hereunder. The Company may designate one or more successors prior to the
death, resignation, incapacity, or removal of a Trustee. In the event a
successor is so designated by the Company and accepts such designation, the
successor shall, without further act, become vested with all the estate, rights,
powers, discretions, and duties of his predecessor with the like effect as if he
were originally named as Trustee herein immediately upon the death, resignation,
incapacity, or removal of his predecessor. If there shall be more than one
Trustee, they shall act by a majority of their number, but may authorize one or
more of them to sign documents on their behalf.
(b) The Trustee may resign at any time by delivering to the Company a written
notice of his resignation.
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(c) The Company may remove the Trustee at any time by giving reasonable notice
in writing, addressed to such Trustee at his last known address.
(d) Upon the death, resignation, incapacity, or removal of any Trustee, a
successor may be appointed by the Company; and such successor, upon accepting
such appointment in writing and delivering same to the Company, shall, without
further act, become vested with all the estate, rights, powers, discretions, and
duties of his predecessor with like respect as if he were originally named as a
Trustee herein. Until such a successor is appointed, the remaining Trustee or
Trustees shall have full authority to act under the terms of the Plan.
(e) Whenever any Trustee hereunder ceases to serve as such, he shall furnish to
the Company and Administrator a written statement of account with respect to the
portion of the Fiscal Year during which he served as Trustee. This statement
shall be either (i) included as part of the annual statement of account for the
Fiscal Year required under Section 11.10 or (ii) set forth in a special
statement. Any such special statement of account should be rendered to the
Employer no later than 60 days after the removal or resignation of the Trustee.
The procedures set forth in Section 11.10 for the approval by the Company of
annual statements of account shall apply to any special statement of account
rendered hereunder and approval by the Company of any such special statement in
the manner provided in Section 11.10 shall have the same effect upon the
statement as the Company's approval of an annual statement of account. No
successor to the Trustee shall have any duty or responsibility to investigate
the acts or transactions of any predecessor who has rendered all statements of
account required by Section 11.10 and this subparagraph.
11.13 LIABILITY OF TRUSTEE.
(a) The Trustee shall be entitled to rely upon a certification of the
Administrator with respect to any instruction or direction of the Administrator
and also to rely upon the certification of the Employer as to the name of the
Administrator then authorized and in continuing to rely upon such certification
until a subsequent certification is filed with the Trustee. The Trustee shall be
entitled to act in reliance upon any instrument, certificate, or paper believed
by Trustee to be genuine and to be signed or presented by the proper person or
persons, and the Trustee shall be under no duty to make any investigation or
inquiry as to any statement contained in any such writing, but may accept the
same as conclusive evidence of the truth and accuracy of the statements therein
contained. Notwithstanding the above, any action of the Employer pursuant to any
of the provisions of this Plan and Trust may be evidenced by a resolution of the
Employer certified over the signature of the Secretary or an Assistant Secretary
of the Employer and under its corporate seal, and the Trustee shall be protected
to the extent the law permits in acting in accordance with any such resolution
so certified. Any action of the Employer pursuant to any of the provisions of
this Plan and Trust may be evidenced by a letter or other communication signed
by any officer of the Employer.
All requests, directions, orders, requisitions and instructions of the Plan
Administrator or Committee to the Trustee shall be in writing. They shall be
signed either by the Secretary of the Plan Administrator or Committee or by any
one member of the Committee, if any; authorized by the majority to sign. The
Trustee shall act in accordance with, and shall be protected to the extent the
law permits in acting in accordance with and relying upon, such requests,
directions, orders, requisitions, instructions and any other communications,
unless upon their faces such communications constitute prohibited transactions
as defined by Section 4975(b) of the Internal Revenue Code of 1954, or if such
transactions would not be in the best interest of the Participants and
Beneficiaries.
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The Plan Administrator shall furnish the Trustee from time to time with
certified copies of the resolutions of its Board evidencing the appointment and
termination of the office of any members of the Committee and the appointment of
successors thereto. The Trustee shall be entitled to assume that the membership
of the Committee is so stated in any such certified copy of resolutions of the
Plan Administrator delivered to it, and the Trustee shall not be charged with
notice of any charge in the membership of a Committee until it shall have
received a certified copy of a resolution of the Board evidencing such change.
If at any time the full number of Committee members provided for in the Plan has
not been designated by the Plan Administrator, the member or members acting at
such time shall be deemed to be the Committee.
The Trustee may from time to time consult with counsel, who may be its own
counsel, and shall be protected to the extent the law permits in acting upon
such advice of counsel as respects legal questions. The Trustee may also from
time to time employ agents and expert assistants and delegate to them such
ministerial duties as it sees fit, provided that such delegation is permitted by
the Employer. In the event that the Trustee does delegate such ministerial
duties, it shall periodically review the performance of the person(s) to whom
these duties have been delegated.
The Trustee may make any distribution or payment required to be made by it
hereunder by mailing its check for the specified amount, or delivering the
specified property, to the person to whom such distribution or payment is to be
made at such address as may have been last furnished to the Trustee, or if no
such address shall have been so furnished, to such person in care of the
Employer, the Plan Administrator or the Committee, or (if so directed by the
Plan Administrator or Committee) by crediting the account of such person or by
transferring funds to such person's account by bank wire or transfer.
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ARTICLE XII
Committee Powers and Responsibilities
-------------------------------------
12.01 APPOINTMENT OF COMMITTEE.
The Plan Administrator may appoint a Committee which shall serve at the pleasure
of the Plan Administrator to assume any or all responsibilities the Plan
Administrator may choose to delegate to it. If appointed, the Committee shall
constitute a named fiduciary under the Plan. Any member of the Committee may
resign, and his successor, if any, shall be appointed by the Plan Administrator.
If a Committee is appointed, the members of the Committee shall elect a Chairman
and may elect an acting Chairman. They shall also elect a Secretary and may
elect an acting Secretary, either of whom may be, but need not be, a member of
the Committee. The Committee may appoint from its membership such subcommittees
with such powers as the Committee shall determine and may authorize one or more
of its members, or any agent, to execute or deliver any instruments or to make
any payment in behalf of the Committee.
If appointed, the Committee shall hold such meetings upon such notice at such
places and at such intervals as it may from time to time determine. Notice of
meetings shall not be required if notice is waived in writing by all of the
members of the Committee or if all such members are present at the meeting.
A majority of the members of the Committee shall constitute a quorum for the
transaction of business. All resolutions or other actions taken by the Committee
at any meeting shall be by vote of a majority of those present and entitled to
vote at any such meeting. Resolutions may be adopted or other action taken
without a meeting upon written consent thereto signed by all of the members of
the Committee.
No individual member of the Committee shall have any right to vote or decide
upon any matter relating solely to himself or to any of his rights or benefits
under the Plan (except that such member may sign unanimous written consent to
resolutions adopted or other action taken without a meeting).
No fee or compensation shall be paid to the Plan Administrator or any member of
the Committee for services as such.
The Plan Administrator or Committee shall be entitled to reimbursement out of
the Trust Fund for any reasonable expenses properly and actually incurred in the
performance of duties in the administration of the Plan.
All requests, directions, requisitions and instructions of the Committee to the
Trustee shall be in writing and signed by the Plan Administrator or Secretary of
the Committee or by any member of the Committee, appointed and authorized by the
majority to sign.
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12.02 POWERS.
The Committee shall administer the Plan in accordance with its terms. The
Committee shall have all powers necessary to enable it to carry out its duties
as provided herein. Not in limitation, but in amplification of the foregoing,
the Committee shall have the power to interpret and construe the Plan and to
determine all questions that may arise hereunder as to the status and rights of
Participants and others hereunder, consistent with the provisions hereof. The
Committee shall have discretion in interpreting the terms of the Plan and in
making determinations regarding the status and rights of Participants and others
under the Plan, subject to the provisions of Section 10.02.
12.03 NO DISCRIMINATION.
The Committee shall not take any action nor direct the Trustee to take any
action which would result in benefiting one Participant or group of Participants
at the expense of another Participant or in discriminating between Participants
who are similarly situated.
12.04 ACTION BY THE COMMITTEE.
The Committee shall act by a majority of the members constituting the Committee
at any given time. Such action may be taken either by vote at a meeting or in
writing without a meeting, in which case such writing shall be signed by all the
members.
12.05 RECORDS.
The Committee shall keep a record of all its proceedings and all information
necessary for the proper administration of the Plan.
12.06 COMPENSATION AND EXPENSES.
The members of the Committee shall serve without compensation for their services
as such, but shall be reimbursed by the Employer for all necessary expenses
incurred in the discharge of their duties.
12.07 INDEMNIFICATION.
The Employer shall indemnify any person who is or was a member of the Committee
and any person who is or was an Employee of the Employer and who performs or
performed services with respect to the Plan, against all liabilities and all
reasonable expenses (including, without limitation, counsel fees and amounts
paid in settlement other than to the Employer) incurred or paid in connection
with any threatened or pending action, suit or proceeding to which he (or his
executor, administrator or other legal representative) may be made to a party,
or in which he may otherwise be involved, by reason of the fact that he serves
or has served as a member of the Committee or otherwise performs or has
performed services with respect to the Plan; provided, however that (a) if such
action, suit or proceeding shall be prosecuted against such person (or his
executor, administrator or other legal representative) to final determination on
the merits or otherwise, it shall be finally adjudged in such action, suit or
proceeding that such person is liable for gross negligence or willful misconduct
in the performance of his duty to the Employer or the Plan in relation to the
matter or matter in respect of which indemnification is claimed, or (b) if such
action, suit or proceeding
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shall be settled or otherwise terminated as against such person (or his
executor, administer or other legal representative) without a final
determination, it shall be determined that such person was not guilty of gross
negligence or willful misconduct in the performance of his duty to the Employer
or the Plan in relation to the matter or matters in respect of which
indemnification is claimed, such determination to be made by a majority of the
members of the Board of Directors of the Employer or by independent counsel to
whom the question may be referred by the Board of Directors.
12.08 STATUTORY CLAIMS PROCEDURE.
The Administrator shall have discretion regarding benefit determinations. Unless
waived by the Administrator, any person entitled to benefits hereunder must file
a claim with the Administrator upon forms furnished by the Administrator and as
prepared by the Committee. Notwithstanding any other provision of this Plan,
payment of benefits need not be made until receipt of the claim and the
expiration of the time periods specified in this Section 12.08 for rendering a
decision on the claim. In the event a claim is denied, benefits need not be made
or commence until a final decision is reached by the Administrator, subject to
the provisions of Section 10.02.
The Administrator shall notify the claimant of its decision within ninety (90)
days after receipt of the claim. However, if special circumstances require, the
Administrator may defer action on a claim for benefits for an additional period
not to exceed ninety (90) days, and in that case it shall notify the claimant of
the special circumstances involved and the time by which it expects to render a
decision.
If the Administrator determines that any benefits claimed should be denied, it
shall give notice to the claimant setting forth the specific reason or reasons
for the denial and provide a specific reference to the Plan provisions on which
the denial is based. The Administrator shall also describe any additional
information necessary for the Participant to perfect the claim and explain why
the information is necessary. Such claimant shall be entitled to full and fair
review by the Administrator of the denial. The claimant shall have sixty (60)
days after receipt of the denial in which to file a notice of appeal with the
Administrator. A final determination by the Administrator shall be rendered
within sixty (60) days after receipt of the claimant's notice of appeal. Under
special circumstances such determination may be delayed for an additional period
not to exceed sixty (60) days, in which case the claimant shall be notified of
the delay prior to the close of the initial sixty (60) day period. Prior to the
decision of the Plan Administrator or Committee pursuant to Section 12.08 the
claimant shall be given an opportunity to review pertinent documents and to
submit issues and comments in writing. The Administrator's final decision shall
set forth the reasons and the references to the Plan provisions on which it is
based. The Administrator shall have discretion in interpreting the terms of the
Plan and in making claim determinations. In accordance with Section 10.02, final
determinations shall be made by the Named Fiduciary and such determinations
shall be conclusive and binding on all persons. If the Plan Administrator or
Committee fails to notify the claimant of the decision regarding his claim in
accordance with this Article, the claim shall be deemed denied, and the claimant
shall then be permitted to proceed with the claims review procedure provided
herein. The decision of the Plan Administrator or committee shall be deemed
final and conclusive.
12.09 Reserved.
XII-3
65
ARTICLE XIII
Amendment, Termination, and Mergers
-----------------------------------
13.01 AMENDMENT.
(a) The Employer shall have the right at any time to amend the Plan. However, no
such amendment shall authorize or permit any part of the Trust Fund (other than
such part as is required to pay taxes and administration expenses) to be used
for or diverted to purposes other than for the exclusive benefit of the
Participants or their beneficiaries or estates; no such amendment shall cause
any reduction in the amount credited to the account of any Participant; no such
amendment shall eliminate or reduce an early retirement benefit, eliminate an
optional form of benefit (as provided in Treasury regulations) or restrict,
directly or indirectly, the benefit provided to any Participant prior to the
amendment; no amendment shall cause or permit any portion of the Trust Fund to
revert to or become the property of the Employer; and no such amendment which
affects the rights, duties or responsibilities of the Trustee and/or the
Administrator may be made without the Trustee's and/or the Administrator's
written consent. Any amendment to the Plan shall become effective as provided
therein upon its execution. The Trustee shall not be required to execute any
such amendment unless the amendment affects the duties of the Trustee hereunder.
The Authority to amend the Plan shall be exercised in an Action signed by the
Board of Directors.
(b) An amendment (including the adoption of this Plan as a restatement of an
existing plan) may not decrease a Participant's accrued benefit, except to the
extent permitted under Section 412(c)(8) of the Code, and may not reduce or
eliminate protected benefits under Section 411(d)(6) of the Code determined
immediately prior to the adoption date (or, if later, the effective date) of the
amendment. An amendment reduces or eliminates protected benefits under Section
411(d)(6) of the Code if the amendment has the effect of either (i) eliminating
or reducing an early retirement benefit or a retirement-type subsidy (as defined
in Treasury Regulations), or (ii) except as provided by Treasury Regulations,
eliminating an optional form of benefit.
The Administrator must disregard an amendment to the extent application of the
amendment would fail to satisfy this subparagraph (b). If the Administrator must
disregard an amendment because the amendment would violate clause (i) or clause
(ii), the Administrator must maintain a schedule of the early retirement option
or other optional forms of benefit the Plan must continue for the affected
Participants.
13.02 AMENDMENT OF VESTING SCHEDULE.
(a) If the Plan's vesting schedule is amended, or the Plan is amended in any way
that directly or indirectly affects the computation of the Participant's
nonforfeitable percentage or if the Plan is deemed amended by an automatic
change to or from a Top-Heavy vesting schedule, each Participant with at least
three (3) Years of Service with the Employer may elect, within a reasonable
period after the adoption of the amendment or change, to have the nonforfeitable
percentage computed under the Plan without regard to such amendment or change.
For Participants who do not have at least one (1) Hour of Service in any Plan
Year beginning after December 31, 1988, the preceding sentence shall be applied
by substituting "five (5) Years of Service" for "three (3) Years of Service"
where such language appears.
XIII-1
66
(b) The period during which the election may be made shall commence with the
date the amendment is adopted or deemed to be made and shall end on the latest
of:
(i) Sixty (60) days after the amendment is adopted;
(ii) Sixty (60) days after the amendment becomes effective; or
(iii) Sixty (60) days after the Participant is issued written notice of the
amendment by the Employer or Administrator.
13.03 TERMINATION; DISCONTINUANCE OF CONTRIBUTIONS.
The Company shall have the right at any time to discontinue its contributions
hereunder and to terminate or partially terminate this Plan and the Trust hereby
created, by delivering to the Trustee written notice of such discontinuance or
termination. The Authority to terminate, partially terminate or discontinue
contributions shall be exercised in an Action signed by the Board of Directors.
Notice of such termination shall be given to the Trustee by an instrument in
writing, executed by the Company and acknowledged in the same form as this Plan
and Trust, together with a certified copy of the resolution of the Board of
Directors authorizing such termination. The Company shall send a copy of such
notice to each member of the Committee, if appointed.
Upon complete discontinuance of the Company's contributions, or full or partial
termination of the Trust, all affected Participants' interests and rights to
benefits shall become fully vested, and shall not thereafter be subject to
forfeiture except to the extent that law or regulations my preclude such vesting
in order to prevent discrimination in favor of officers, shareholders or Highly
Compensated Employees. Upon final termination of the Trust, the Administrator
shall direct the Trustee to distribute all assets remaining in the Trust, such
distribution to commence as determined by the Administrator. Until the
Administrator so directs, the Trustee shall continue to administer the Trust in
accordance with the provisions hereof, and shall make distributions in the event
of death, Disability, or other termination of employment as herein provided. In
the event the Administrator shall not within a reasonable time after such
termination have given the Trustee the directions provided in this Section, the
assets then remaining in the Trust shall be distributed in such manner as may be
directed by a judgment or decree of a court of competent jurisdiction.
In distributing Participants' Accounts, the Trustee may deduct therefrom before
distribution all expenses properly chargeable against the Trust Fund, and shall
then distribute such Accounts to the Participants in accordance with the value
of the interests of such Participants as of the date of such distribution. Such
distribution of the Accounts of every Participant or his beneficiary shall be in
cash or in the assets in which the Trust Fund may be invested unless annuities
have been purchased.
Upon termination and after payment of all Trust expenses and liabilities and
benefits to Participants and beneficiaries, the balance of any residual Trust
assets, if any, shall unless the Company determines otherwise, be delivered to
and for the benefit of the Company.
XIII-2
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13.04 MERGER OR CONSOLIDATION.
This Plan and Trust may be merged or consolidated with, or its assets and/or
liabilities may be transferred to any other plan and trust only if the benefits
which would be received by a Participant of this Plan, immediately after such
transfer, merger or consolidation (if the Plan then terminated), are at least
equal to the benefits the Participant was entitled to immediately before the
transfer, merger or consolidation (if the Plan had then terminated). The
authority to transfer, merge or consolidate shall be exercised in an Action
signed by the Board of Directors.
In order to carry a merger into effect, special provisions applicable only to
accounts of the merging plans may be necessary. Special provisions are set forth
at Schedule A and Schedule B.
XIII-3
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ARTICLE XIV
Top-Heavy Provisions
--------------------
14.01 APPLICATION OF ARTICLE.
The provisions of this Article shall be effective for any Plan Year in which the
Plan is determined to be Top Heavy.
14.02 DEFINITIONS.
For purposes of this Article, the following words shall have the meanings stated
after them unless otherwise specifically provided:
(a) "Key Employee" shall mean any Employee, former Employee, or beneficiary who
at any time during the Plan Year containing the Determination Date, or the four
preceding Plan Years:
(i) Was an officer of the Employer and received compensation greater
than fifty percent (50%) of the defined benefit dollar limit of Section
415(b)(1)(A) of the Code;
(ii) One of the ten employees owning the largest interest in the
Employer or considered owning such interest by virtue of Section 318 of
the Code and who received compensation from the Employer in excess of
the defined contribution dollar limit;
(iii) A five percent (5%) owner of the Employer; or
(iv) A one percent (1%) owner of the Employer who received compensation
in excess of $150,000 per year.
Annual "compensation" means compensation as defined in Section 415(c)(3) of the
Code, but including amounts contributed by the Employer pursuant to a salary
reduction agreement which are excludible from the Employee's gross income under
Section 125, Section 402(a)(8), Section 402(h) or Section 403(b) of the Code.
The determination period is the Plan Year containing the Determination Date and
the four (4) preceding Plan Years.
(b) "NON-KEY EMPLOYEE" shall mean those Employees who are not Key Employees.
(c) "DETERMINATION DATE" shall mean, with respect to any Plan Year, the last day
of the preceding Plan Year. In the case of the first Plan Year, "Determination
Date" shall mean the last day of the first Plan Year.
(d) "REQUIRED AGGREGATION GROUP" shall mean (1) each qualified plan of the
Employer in which at least one Key Employee participates, and (2) any other
qualified plan of the Employer (including any plan that has been terminated
within the five year period ending on the Determination Date) which enables a
plan described in clause (1) to meet the requirements of Sections 401(a)(4) or
410 of the Code.
XIV-1
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(e) "PERMISSIVE AGGREGATION GROUP" shall mean the Required Aggregation Group
plus any other plan or plans of the Employer which, when considered as a group
with the Required Aggregation Group, would continue to satisfy the requirements
of Sections 401(a)(4) and 410 of the Code.
14.03 TOP-HEAVY DETERMINATION.
A Plan shall be considered a Top-Heavy Plan for the Plan Year if, as of the
Determination Date:
(a) The Top-Heavy Ratio for this Plan exceeds sixty percent (60%); or
(b) The Plan is part of a Required Aggregation Group and the Top-Heavy Ratio for
such Group exceeds sixty percent (60%).
However, and notwithstanding (a) and (b) above, the Plan shall not be considered
a Top-Heavy Plan for any Plan Year in which the Plan is a part of a Required or
Permissive Aggregation Group and the Top-Heavy Ratio for such Group is sixty
percent (60%) or less.
14.04 TOP-HEAVY RATIO.
(a) If this is the only plan maintained by the Employer or if only defined
contribution plans are aggregated with this Plan in making the Top-Heavy
determination, the Top-Heavy Ratio for this Plan or for the Required or
Permissive Aggregation Group shall be a fraction, the numerator of which is the
sum of the Accounts of all Key Employees as of the Determination Date (including
any part of any Account distributed during the five-year period ending on the
Determination Date), and the denominator of which is the sum of the Accounts of
all Participants as of the Determination Date (including any part of any
Accounts distributed during the five-year period ending on the Determination
Date). Both the numerator and the denominator of the Top-Heavy Ratio shall be
adjusted to reflect any contribution which is required to be taken into account
under Section 416 of the Code.
(b) If the Employer maintains a defined benefit plan or plans that are
aggregated with this Plan in making the Top-Heavy Determination, the Top-Heavy
Ratio for the Required or Permissive Aggregation Group shall be a fraction, the
numerator of which is the sum of Accounts under the aggregated defined
contribution plan or plans for all Key Employees, determined in accordance with
(a) above, plus the present value of accrued benefits under the aggregated
defined benefit plan or plans for all Key Employees as of the Determination
Date, and the denominator of which is the sum of the Accounts under the
aggregated defined contribution plan or plans for all Participants, determined
in accordance with (a) above, plus the present value of accrued benefits under
the aggregated defined benefit plan or plans for all Participants as of the
Determination Date. The accrued benefits under a defined benefit plan in both
the numerator and the denominator of the Top-Heavy Ratio shall be adjusted for
any distribution of an accrued benefit made during the five-year period ending
on the Determination Date. The present value of any accrued benefit shall be
determined based on the actuarial assumptions contained in the aggregated
defined benefit plan.
(c) For purposes of subparagraphs (a) and (b) above, the value of the Accounts
and the present value of accrued benefits shall be calculated as of the
Determination Date and the Accounts and accrued benefits of any Participant (i)
who is not a Key Employee but who was a Key Employee in a prior year, or (ii)
who has not performed any service for any Employer maintaining the Plan at any
time during the five-year period
XIV-2
70
ending on the Determination Date shall be disregarded. The calculation of the
Top-Heavy Ratio, and the extent to which distributions, rollovers and transfers
are taken into account shall be made in accordance with Section 416 of the Code
and the Regulations thereunder. When aggregating plans, the value of the Account
and accrued benefits shall be calculated with reference to the Determination
Dates that fall within the same calendar year.
The accrued benefit of a Participant other than a Key Employee shall be
determined under (a) the method, if any, that uniformly applies for accrual
purposes under all defined benefit plans maintained by the Employer, or (b) if
there is no such method, as if such benefit accrued not more rapidly than the
slowest accrual rate permitted under the fractional rule of Section 411(b)(1)(c)
of the Code.
14.05 MINIMUM VESTING.
For any Plan Year in which this Plan is Top-Heavy, the following vesting
schedule shall apply:
the vesting schedule as shown in Section 8.01(a) which provides for full and
immediate vesting for a Participant's total Account.
The minimum vesting schedule applies to all benefits within the meaning of
Section 411(a)(7) of the Code except those attributable to Participant
Contributions, including benefits accrued before the effective date of Section
416 of the Code and benefits accrued before the Plan became Top-Heavy. Further,
no decrease in a Participant's nonforfeitable percentage may occur in the event
the Plan's status as Top-Heavy changes for any Plan Year. However, this Section
does not apply to the Account balances of any Employee who does not have an Hour
of Service after the Plan has initially become Top-Heavy and such employee's
Account balance will be determined without regard to this Section 14.05.
14.06 MINIMUM BENEFIT.
If the provisions of this Article apply for any Plan Year, the contributions and
forfeitures allocated to the Account of any Non-Key Employee who is employed by
the Employer on the last day of the Plan Year shall equal at least three percent
(3%) of the Compensation of such Non-Key Employee. However, in the event that
the largest percentage of Compensation provided on behalf of any Key Employee
for the Plan Year is less than three percent (3%) of such Key Employee's
Compensation, the minimum percentage of Compensation that must be provided for
any Non-Key Employee for the Plan Year under this Section 14.06 is the largest
percentage of Compensation provided on behalf of any Key Employee for that Plan
Year.
This minimum allocation shall be made even though under other Plan provisions,
the Participant would not otherwise be entitled to receive an allocation, or
would have received a lesser allocation for the Plan Year because of (i) the
Participant's failure to complete 1000 Hours of Service (or any equivalent
provided in the Plan), or (ii) the Participant's failure to make mandatory
Employee After-Tax Contributions to the Plan, or (iii) Compensation less than a
stated amount. This shall not apply to any Participant who was not employed by
the Employer on the last day of the Plan Year. The provision shall not apply to
any Participant to the extent the Participant is covered under any other plan or
plans of the Employer and the Employer has provided that the minimum allocation
or benefit requirement applicable to top-heavy plans will be met in the other
plan or plans.
XIV-3
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14.07 LIMITATION ON CONTRIBUTION.
For any Plan Year in which the Plan is Top-Heavy, with respect to any
Participant who is covered under a defined benefit plan, the "defined benefit
plan fraction" and the "defined contribution plan fraction" referred to in
Section 4.05 shall be computed by substituting "1.0" in lieu of "1.25" in both
denominators.
XIV-4
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ARTICLE XV
Participant Loans.
15.01 AVAILABILITY OF LOANS.
No Plan loans are permitted.
15.02 Reserved.
15.03 Reserved.
15.04 Reserved.
15.05 Reserved.
15.06 Reserved.
15.07 Reserved.
15.08 Reserved.
15.09 Reserved.
15.10 Reserved.
15.11 Reserved.
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73
ARTICLE XVI
Miscellaneous
-------------
16.01 PARTICIPANT'S RIGHTS.
This Plan shall not be deemed to constitute a contract between the Employer and
any Participant or to be a consideration or an inducement for the employment of
any Participant or Employee. Nothing contained in this Plan shall be deemed to
give any Participant or Employee the right to be retained in the service of the
Employer or to interfere with the right of the Employer to discharge any
Participant or Employee at any time regardless of the effect which such
discharge shall have upon him as a Participant of this Plan.
16.02 ALIENATION.
(a) Subject to the exceptions provided below, no benefit which shall be payable
out of the Trust Fund to any person (including a Participant or his beneficiary)
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be
void; and no such benefit shall in any manner be liable for, or subject to, the
debts, contracts, liabilities, engagements, or torts of any such person, nor
shall it be subject to attachment or legal process for or against such person,
and the same shall not be recognized by the Trustee, except to such extent as
may be required by law.
(b) This provision shall not apply to the extent a Participant or beneficiary is
indebted to the Plan, for any reason, under any provision of the Plan. At the
time a distribution is to be made to or for a Participant's or beneficiary's
benefit, such proportion of the amount distributed as shall equal such
indebtedness shall be paid by the Trustee to the Trustee or the Administrator,
at the direction of the Administrator, to apply against or discharge such
indebtedness. Prior to making a payment, however, the Participant or beneficiary
must be given written notice by the Administrator that such indebtedness is to
be so paid in whole or part from his Participant's Account. If the Participant
or beneficiary does not agree that the indebtedness is a valid claim against his
Account, he shall be entitled to a review of the validity of the claim in
accordance with procedures provided in Article XII.
(c) Subparagraph (a) shall not apply to a Qualified Domestic Relations Order.
The Administrator shall establish a written procedure to determine the qualified
status of domestic relations orders as set forth in Section 9.01 herein and to
administer distributions under such qualified orders.
16.03 CONSTRUCTION OF PLAN.
This Plan and Trust shall be construed and enforced according to ERISA and the
Code and the laws of the State of Ohio, and other than its laws respecting
choice of law, to the extent not preempted by ERISA.
XVI-1
74
16.04 GENDER AND NUMBER.
Wherever any words are used herein in the masculine, feminine or neuter gender,
they shall be construed as though they were also used in another gender in all
cases where they would so apply, and whenever any words are used herein in the
singular or plural form, they shall be construed as though they were also used
in the other form in all cases where they would so apply.
16.05 PROHIBITION AGAINST DIVERSION OF FUNDS.
Except as provided below and otherwise specifically permitted by law, it shall
be impossible by operation of the Plan or of the Trust, by termination of
either, by power of revocation or amendment, by the happening of any
contingency, by collateral arrangement or by any other means, for any part of
the corpus or income of any trust fund maintained pursuant to the Plan or any
funds contributed thereto to be used for, or diverted to, purposes other than
the exclusive benefit of Participants or their beneficiaries.
16.06 BONDING.
Every fiduciary, except a bank or an insurance company, unless exempted by ERISA
and regulations thereunder shall be bonded in an amount not less than ten
percent (10%) of the amount of the funds such fiduciary handles; provided,
however, that the minimum bond shall be $1,000 and the maximum bond $500,000.
The amount of funds handled shall be determined at the beginning of each Plan
Year by the amount of funds handled by such person, group, or class to be
covered and their predecessors, if any, during the preceding Plan Year, or if
there is no preceding Plan Year, then by the amount of the funds to be handled
during the then current year. The bond shall provide protection to the Plan
against any loss by reason of acts of fraud or dishonesty by the fiduciary alone
or in connivance with others. The surety shall be a corporate surety company (as
such term is used in Section 412(a)(2) of ERISA), and the bond shall be in a
form approved by the Secretary of Labor. Notwithstanding anything in the Plan to
the contrary, the cost of such bonds shall be an expense of and may, at the
election of the Administrator, be paid from the Trust Fund or by the Employer.
16.07 PROTECTIVE CLAUSE.
Neither the Company nor the Employer nor the Trustee, nor their successors,
shall be responsible for the validity of any insurance contract issued hereunder
or for the failure on the part of the insurer to make payments provided by any
such Contract, or for the action of any person which may delay payment or render
a Contract null and void or unenforceable in whole or in part.
16.08 RECEIPT AND RELEASE FOR PAYMENTS.
Any payment to any Participant, his legal representative, beneficiary, or to any
guardian or committee appointed for such Participant or beneficiary in
accordance with the provisions of the Plan, shall, to the extent thereof, be in
full satisfaction of all claims hereunder against the Trustee and the Employer
and the Company, either of whom may require such Participant, legal
representative, beneficiary, guardian or committee, as a condition precedent to
such payment, to execute a receipt and release thereof in such form as shall be
determined by the Trustee or the Company or the Employer.
XVI-2
75
16.09 ACTION BY THE EMPLOYER.
Whenever the Employer under the terms of the Plan is permitted or required to do
or perform any act or matter or thing, it shall be done and performed by a
person duly authorized by its legally constituted authority. Unless waived by
the party to whom directed, all notices, reports, requests, elections,
designations, claims or other communications referred to in the Plan, and all
actions taken pursuant to the Plan, shall be in writing.
16.10 HEADINGS.
The headings and subheadings of this Plan have been inserted for convenience of
reference and are to be ignored in any construction of the provisions hereof.
16.11 UNIFORMITY.
All provisions of this Plan shall be interpreted and applied in a uniform,
nondiscriminatory manner.
16.12 PARTICIPATING EMPLOYERS.
Any company deemed to be a member of a controlled group of corporations or
trades or business under common control or an affiliated service group pursuant
to Section 414(b), (c), (m) or (o) of the Code which the Company is also a
member may, with the consent of the Company and action of such company's Board
of Directors, elect to participate in the Plan and may adopt the Plan and Trust
hereby created. From and after the effective date when such company shall have
become a party to this Agreement, it shall for all purposes of this Agreement be
included within the meaning of the word "Employer." Provided, however, such
participating employers shall not be required to authorize an amendment to the
agreement in order to effectuate an amendment or to terminate this Plan and
Trust.
16.13 MISSING PERSONS.
It is the intent of the Employer that contributions to the Plan shall be for the
exclusive benefit of the Participants and their beneficiaries. In the event the
Administrator cannot locate an individual entitled to receive a distribution
under the Plan, the Administrator can act to prevent reversion of such benefits
to the state. If the whereabouts of any former Participant and/or beneficiary
who is entitled to any distribution under the Plan cannot be determined by the
Administrator or the Employer, then the Administrator may instruct the Trustee
to maintain such Participant's or beneficiary's Account in suspense. The
Administrator shall, from time to time during the following three (3) years,
make reasonable efforts to locate such missing Participant or beneficiary. If
the Participant or beneficiary to whom payment is due cannot be found within
such three (3) year period, the Administrator may declare such Account a
forfeiture and allocate it in accordance with Section 4.07. If a claim is later
made by a Participant or beneficiary for an Account which has been forfeited
pursuant to this Section, the forfeited benefit shall be restored out of
forfeitures occurring during the Plan Year or by means of a special Employer
Contribution and be paid to such claimant.
Alternatively, the Administrator may deposit the Participant's Account in a
"bank" defined in Section 581 of the Code.
XVI-3
76
It shall be the responsibility of the terminating Participant to keep the
Administrator informed as to his address, and the Trustee and the Administrator
shall not be required to do anything further than sending all papers, notices,
payments or the like to the last address given them by such Participant unless
they can be shown to have acted in bad faith, having had knowledge of the
Participant's actual whereabouts.
16.14 MUTUAL EXCLUSIVITY OF BENEFITS.
No Participant or beneficiary shall be entitled to receive more than one type of
benefit under this Plan. Any election or type of benefit made by the Participant
shall be binding on the Participant as well as his beneficiary.
16.15 SEVERABILITY.
If any provision of this Plan shall be for any reason invalid or unenforceable,
the remaining provisions shall nevertheless be carried into effect.
16.16 SPENDTHRIFT CLAUSE.
The right of any Participant or beneficiary to any benefit or to any payment
hereunder or to any separate account shall not be subject to alienation or
assignment. If any Participant shall, except as hereby permitted, attempt to
assign, transfer or dispose of such right, or should such right be subjected to
attachment, execution, garnishment, sequestration or other legal, equitable or
other process, it shall ipso facto pass to such one or more persons as may be
appointed by the Administrator from among the beneficiaries, if any, therefore
designated by such Participant and the Spouse and blood relatives of the
Participant. However, the Administrator, in his sole discretion, may reappoint
the Participant to receive any payment thereafter becoming due either in whole
or in part. Any appointment made by the Administrator hereunder may be revoked
by the Administrator at any time, and further appointment made by him.
All provisions in this instrument for the vesting and payment of any sum or
interest are subject to the provisions that such sum and interest shall not be
anticipated, alienated or in any other manner assigned by the Participant and
shall not be subject to be reached or applied either by any creditor, Spouse or
divorced Spouse of any Participant, nor by or under any agreement or decree of
separation or divorce, voluntary or involuntary, of any Participant, but shall
be for the benefit of the beneficiary chosen by the Participant or Administrator
pursuant to this Section, except as provided pursuant to a Qualified Domestic
Relations Order.
16.17 PAYMENT TO MINOR OR INCOMPETENT.
In the event that any amount is payable to a minor or other legally incompetent
persons, such payment shall be made for the benefit of such minor or other
incompetent person in any of the following ways as the Administrator, in his
sole discretion, shall determine: (a) to the legal representative or custodian
of such minor or other incompetent person, as defined in the Ohio Rev. Code
Section 1339.34; (b) to some near relative of such minor or other incompetent
person, to be used for the latter's benefit. The Administrator shall not be
required to see to the proper application of any such payment made to any person
pursuant to the provisions of this Section.
XVI-4
77
16.18 LEGAL ACTIONS.
Except as may be specifically provided for by law, in any action or proceeding
involving the Trust or any property constituting a part or all thereof, or the
administration thereof, the Company, the Employer, the Administrator, and the
Trustee shall be the only necessary parties and no Employees or former Employees
of the Employer or their beneficiaries or any other person having or claiming to
have an interest in the Trust or under the Plan shall be entitled to any notice
or process.
Except as may be specifically provided for by law, any final judgment which is
not appealed or appealable that may be entered in any such action or proceeding
shall be binding and conclusive on the parties hereto and all persons having or
claiming to have an interest in the Trust or under the Plan.
16.19 VOTING OF STOCK.
Shares of stock held in the Employer Stock Fund shall be voted by the Trustee in
accordance with the directions of the Participants. Each Participant shall vote
the equivalent number of shares for the sums allocated to his accounts as of the
next preceding Valuation Date. The number of full shares of stock to be voted as
directed by the Participant shall be determined by multiplying the total number
of shares held by the Employee Stock Fund by a fraction, the numerator of which
is the Participant's balance in the Employer Stock Fund and the denominator of
which is the total balance of the Employer Stock Fund.
This Plan and Trust is adopted by the Company and the Trustee as of the dates
appearing opposite their respective signatures.
COMPANY:
FIRST FINANCIAL BANCORP
Date: By:
------------------------ ---------------------------------------
TRUSTEE:
SOCIETY BANK, N.A. (DAYTON)
Date:
------------------------ -----------------------------------------
XVI-5
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XVI-6
79
FIRST FINANCIAL BANCORP THRIFT
PLAN AND TRUST
APPENDIX A
LIST OF PARTICIPATING EMPLOYERS
(March 31, 1996)
BRIGHT NATIONAL BANK (JANUARY 1, 1996)
P.O. Box 188
Flora, IN 46929
(219) 967-4151
CITIZENS COMMERCIAL BANK & TRUST CO.
225 N. Main Street, Box 170
Celina, OH 45822
(419) 586-5121
CITIZENS FIRST STATE BANK
101 W. Washington St., Box 720
Hartford City, IN 47348
(317) 348-2350
CLYDE SAVINGS BANK (JANUARY 1, 1995)
137 W. Buckeye St., Box 118
Clyde, OH 43410
(419) 547-7733
FAYETTE FEDERAL SAVINGS BANK
A DIVISION OF HOME FEDERAL BANK, FSB
630 Central Ave., Box 267
Connersville, IN 47331
(317) 825-5121
FIDELITY FEDERAL SAVINGS BANK
116 W. 4th Street, Box 1480
Marion, IN 46952-7880
(317) 662-6668
HOME FEDERAL BANK, A FEDERAL SAVINGS BANK
Third & Court Streets, Box 296
Hamilton, OH 45012
(513) 868-0100
A-1
80
INDIANA LAWRENCE BANK
106 N. Market St., Box 502
North Manchester, IN 46962
PEOPLES BANK & TRUST (JANUARY 1, 1996)
Hwy. 101 North, Box 168
Sunman, IN 47041-0168
(812) 623-2237
UNION BANK & TRUST COMPANY
7 North Fifth Street
P.O. Box 17
North Vernon, IN 47265
(812) 346-2215
UNION TRUST BANK
221 W. Pearl Street, Box 447
Union City, IN 47390
(317) 964-3185
VAN WERT NATIONAL BANK
102 E. Main Street, Box 11
Van Wert, OH 45891
(419) 238-2265
FIRST NATIONAL BANK OF SOUTHWESTERN OHIO
Third & High Sts., Box 476
Hamilton, OH 45012
(513) 867-4700
FIRST FINANCIAL BANCORP THRIFT
81
PLAN AND TRUST
APPENDIX A
LIST OF PARTICIPATING EMPLOYERS
CITIZENS COMMERCIAL BANK & TRUST CO.
225 N. Main Street, Box 170
Celina, OH 45822
(419) 586-5121
CITIZENS FIRST STATE BANK
101 W. Washington St., Box 720
Hartford City, IN 47348
(317) 348-2350
FAYETTE FEDERAL SAVINGS BANK
630 Central Ave., Box 267
Connersville, IN 47331
(317) 825-5121
FIDELITY FEDERAL SAVINGS BANK
116 W. 4th Street, Box 1480
Marion, IN 46952-7880
(317) 662-6668
HOME FEDERAL BANK, A FEDERAL SAVINGS BANK
Third & Court Streets, Box 296
Hamilton, OH 45012
(513) 868-0100
INDIANA LAWRENCE BANK
106 N. Market St., Box 502
North Manchester, IN 46962
UNION BANK & TRUST COMPANY
7 North Fifth Street
P.O. Box 17
North Vernon, IN 47265
(812) 346-2215
UNION TRUST BANK
221 W. Pearl Street, Box 447
Union City, IN 47390
(317) 964-3185
VAN WERT NATIONAL BANK
102 E. Main Street, Box 11
82
Van Wert, OH 45891
(419) 238-2265
FIRST NATIONAL BANK OF SOUTHWESTERN OHIO
Third & High Sts., Box 476
Hamilton, OH 45012
(513) 867-4700
83
SCHEDULE A
This Schedule A was adopted by First Financial Bancorp in conjunction
with the merger of the FIDELITY FEDERAL SAVINGS AND LOAN ASSOCIATION RETIREMENT
SAVINGS PLAN (the "Fidelity Plan") into the First Financial Bancorp Thrift Plan
(the "First Financial Plan") effective July 1, 1991. The principal purpose of
this Schedule is to protect rights and optional forms of benefit offered by the
Fidelity Plan. The effective date of this Schedule is July 1, 1991 and was
adopted as an amendment to the Plan on August 27, 1991.
(1) All Service with Fidelity Federal Savings and Loan Association is
recognized.
(2) Former Fidelity Plan Matching Contribution Accounts are fully
vested effective July 1, 1991.
(3) Former Fidelity Plan Participants may irrevocably elect to have
their Matching Contribution Account (as of July 1, 1991) invested in a Savings
Account Fund to be selected or established by the Plan Committee. Funds invested
in this Savings Account Fund are not eligible for transfer to any other fund.
(4) The accounts of former Fidelity Plan Participants (July 1, 1991
balances plus subsequent earnings) are subject to, Special Provisions. These
Special Provisions protect rights and benefit options of former Fidelity
Participants as required by Code Section 411(d)(6). The Plan Committee shall
establish procedures for separately accounting for transferred assets and income
therefrom. The Special Provisions have priority over other Plan provisions but
only apply to assets transferred from the Fidelity Plan by reason of merger and
do not apply to contributions made on or after July 1, 1991 to this First
Financial Plan. All provisions of this First Financial Plan not inconsistent
with the Special Provisions apply to assets transferred by plan merger.
The Special Provisions are as set forth below:
SCHEDULE OF SPECIAL PROVISIONS
This Schedule applies ONLY to assets (and income earned by such assets)
transferred by plan merger from the Fidelity Plan effective July l, 1991. This
Schedule is effective July 1, 1991.
PAYABLE EVENTS. Subject to the provisions of this Schedule, a
Participant's entire Account shall be payable to him, or in the event of his
death to his beneficiary, upon the first to occur of his termination of
employment by reason of his death, Disability, retirement, or other separation
from service in accordance with this Schedule.
Notwithstanding anything contained herein to the contrary, in the event
the value of the Participant's vested Account exceeds $3,500 (or at the time of
any prior distributions exceeded $3,500), no distribution shall be made prior to
the date the Participant attains (or would have attained if not deceased) the
later of Normal Retirement Age or age 62 without the Participant's written
consent and the written consent of the Participant's Spouse, if required.
Failure to consent shall be deemed to defer commencement of payment of any
amount until Participant reaches Normal Retirement Age.
NORMAL FORM OF BENEFIT. The Participant's vested Account shall be
payable to an unmarried Participant in the form of a life annuity and to a
married Participant in the form of a Qualified Joint and Survivor Annuity unless
an optional form of benefit, as specified below, is selected pursuant to a
Qualified Election within the ninety (90) day period ending on the Annuity
Starting Date.
The Plan Administrator shall provide each Participant, within a period
no less than thirty (30) days and no more than ninety (90) days prior to the
Annuity Starting Date, a written explanation of:
(a) the terms and condition of a Qualified Joint and Survivor
Annuity;
(b) the Participant's right to make and the effect of an election
to waive the Qualified Joint and Survivor Annuity form of benefit;
(c) the rights of a Participant's Spouse; and
(d) the right to make and, the effect of, a revocation of a
previous election to waive the Qualified Joint and Survivor Annuity.
PRE-RETIREMENT DEATH BENEFIT. If a Participant dies before benefits
have commenced, benefits shall be payable to the Spouse (or other properly
designated beneficiary) of a married Participant in the form of a Qualified
Pre-Retirement Survivor Annuity or to an unmarried Participant in the form of a
life annuity unless an optional form of benefit, as specified below, has been
selected pursuant to a Qualified Election.
A Participant may make a Qualified Election within the period which
begins on the first day of the Plan Year in which the Participant attains age 35
and ends on the date of the Participant's death. If a Participant separates from
service prior to the first day of the Plan Year in which age 35 is attained,
with respect to the Account balance as of the date of separation, the election
period shall begin on the date of separation.
A Participant who will not yet attain age 35 as of the end of any
current Plan Year may make a special qualified election to waive the Qualified
Pre-Retirement Survivor Annuity for the period beginning on the date of such
election and ending on the first day of the Plan Year in which the Participant
will attain age 35. Such election shall not be valid unless the Participant
receives a written explanation of the Qualified Pre-Retirement Survivor Annuity.
Qualified Pre-Retirement Survivor Annuity coverage will be automatically
reinstated as of the first day of the Plan Year in which the Participant attains
age 35. Any new waiver on or after such date shall be subject to the full
requirements of a Qualified Election.
The Plan Administrator shall provide each Participant within the
"Applicable Period" a written explanation of:
(a) the terms and conditions of a Qualified Pre-Retirement
Survivor Annuity;
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84
(b) the Participant's right to make and the effect of an election
to waive the Qualified Joint and Survivor Annuity form of
benefit;
(c) the rights of a Participant's Spouse; and (d) the right to
make, and the effect of, a revocation of a previous election
to waive the Qualified Pre-Retirement Survivor Annuity.
The "Applicable Period" for a Participant is whichever of the following
periods ends last: (i) the period beginning with the first day of the Plan Year
in which the Participant attains age 32 and ending with the close of the Plan
Year preceding the plan year in which the Participant attains age 35; (ii) a
reasonable period ending after the individual becomes a participant; (iii) a
reasonable period ending after this Section first applies to the Participant.
Notwithstanding the foregoing, notice must be provided within a reasonable
period ending after separation from service in the case of a Participant who
separates from service before attaining age 35.
For purposes of applying the preceding paragraph, a reasonable period
ending after the enumerated events described in (ii) or (iii) is the end of the
two-year period beginning one (1) year prior to the date the applicable event
occurs, and ending one (1) year after that date. In the case of a Participant
who separates from service before the Plan Year in which age 35 is attained,
notice shall be provided within the two (2) year period beginning one (1) year
prior to separation and ending one (1) year after separation. If such a
Participant thereafter returns to employment with the Employer, the Applicable
Period for such Participant shall be redetermined.
OPTIONAL FORMS OF BENEFIT. In lieu of the form of benefit provided
above, a Participant may elect, provided his Spouse consents pursuant to a
Qualified Election, to have his vested Account paid in one of the following
forms:
In one lump sum payment in cash or in property;
In installment payments over a period certain in monthly, quarterly,
semi-annual or annual cash payments;
As an annuity contract from a legal reserve life insurance company as
selected by the Participant (or, in the absence of such Participant selection,
by the Employer). The annuity may be paid in equal monthly payments over any of
the following periods: (i) the life of the Participant; (ii) a period certain,
or a period certain and life, which period is not longer than the life
expectancy of the Participant, or (iii) a period certain, or a period certain
and life, which period is not longer than the joint life and last survivor
expectancy of the Participant and his designated beneficiary.
In any combination of the foregoing which in the aggregate is the
equivalent to the lump sum value of such vested interest.
In the event Participant shall elect to receive benefits in the form of
installment payments, the Trustee shall segregate such Participant's Account in
a separate, federally insured savings account, certificate of deposit in a bank
or savings and loan association, money market certificate or other liquid
short-term security. Such installment payments shall be for a period not to
extend beyond the Participant's life expectancy or the life expectancy of the
Participant and his designated beneficiary.
Notwithstanding the provisions above, in the event the Participant's
vested Account is $3,500 or less (and at the time of any prior distributions did
not exceed $3,500) the Trustee shall distribute the entire vested Account to the
Participant (or to his beneficiary) in one lump sum payment.
BENEFICIARY DESIGNATION AND CONSENT OF SPOUSE. The beneficiary of any
benefit payable upon the death of a married Participant shall be the
Participant's Spouse. The beneficiary of any benefit payable upon the death of
an unmarried participant shall be the beneficiary(ies) designated by the
Participant under procedures established by the Administrator.
The Participant may designate a beneficiary other than his Spouse if:
(a) the Spouse consents in writing to such beneficiary
designation, or
(b) the Participant has no Spouse, or
(c) the Spouse cannot be located.
In such event, the designation of a beneficiary shall be made on a form
satisfactory to the Administrator. A Participant may, with the written consent
of his Spouse, at any time revoke his designation of a beneficiary or change his
beneficiary by filing written notice of such revocation or change with the
Administrator. Any consent by the Participant's Spouse to any beneficiary
designation must be irrevocable, in writing, must acknowledge the effect of such
beneficiary designation and the specific non-Spouse beneficiary, and be
witnessed by a Plan representative or a notary public.
IN-SERVICE DISTRIBUTIONS. At the election of the Participant, the
Administrator may distribute the entire amount then credited to the
Participant's Accounts.
Provided, however, such distribution shall not apply to a Participant's
Elective Deferral Account, Employer Contribution Account, Matching Contribution
Account, Qualified Employer Contribution Account, or Rollover Account.
In the event that the Administrator makes such a distribution, the
Participant shall continue to be eligible to participate in the plan on the same
basis as any other Employee. Any distribution made pursuant to this Section
shall be made in a manner consistent with this Article IX, including, but not
limited to, all notice and consent requirements of Sections 411(a)(11) and 417
of the Code and the Regulations thereunder.
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85
SCHEDULE B
This Schedule B was made in conjunction with the merger of the HOME
FEDERAL SAVINGS AND LOAN ASSOCIATION OF HAMILTON 401(K) RETIREMENT SAVINGS PLAN
(the "Home Federal Plan") into the First Financial Bancorp Thrift Plan (the
"First Financial Plan") effective January 1, 1992. The principal purpose of this
Schedule is to protect rights and optional forms of benefit offered by the Home
Federal Plan. The effective date of this Schedule is January 1, 1992 and was
adopted as an amendment to the Plan on May 12, 1993.
(1) All Service with Home Federal Savings Bank is recognized.
(2) The accounts of former Participants (January 1, 1992 balances plus
subsequent earnings) are subject to Special Provisions. These Special Provisions
protect rights and benefit options of former Home Federal Plan Participants as
required by Code Section 411(d)(6). The Plan Committee shall establish
procedures for separately accounting for transferred assets and income
therefrom. The Special Provisions have priority over other Plan provisions but
only apply to assets transferred from the Home Federal Plan by reason of merger
and do not apply to contributions made on or after January 1, 1992 to this First
Financial Plan. All provisions of this First Financial Plan not inconsistent
with the Special Provisions apply to assets transferred by plan merger.
The Special Provisions are as set forth below:
SCHEDULE OF SPECIAL PROVISIONS
This Schedule applies ONLY to assets (and income earned by such assets)
transferred by plan merger from the Home Federal Plan effective January 1, 1992.
This Schedule is effective January 1, 1992.
PAYABLE EVENTS. Subject to the provisions of this Schedule, a
Participant's entire Account shall be payable to him, or in the event of his
death to his beneficiary, upon the first to occur of his termination of
employment by reason of his death, Disability, retirement, or other separation
from service in accordance with this Schedule.
As used herein, the term "Disability" shall mean a physical or mental
condition of a Participant resulting from bodily injury, disease, or mental
disorder which renders him totally and permanently incapable of continuing his
usual and customary employment with the Employer. The Disability of a
Participant shall be determined by a licensed physician chosen by the Employer.
Notwithstanding anything contained herein to the contrary, in the event
the value of the Participant's vested Account exceeds $3,500 (or at the time of
any prior distributions exceeded $3,500), no distribution shall be made prior to
the date the Participant attains (or would have attained if not deceased) the
later of Normal Retirement Age or age 62 without the Participant's written
consent and the written consent of the Participant's Spouse, if required.
Failure to consent shall be deemed to defer commencement of payment of any
amount until Participant reaches Normal Retirement Age.
NORMAL FORM OF BENEFIT. The Participant's vested Account shall be
payable to an unmarried Participant in the form of a life annuity and to a
married Participant in the form of a Qualified Joint and Survivor Annuity unless
an optional form of benefit, as specified below, is selected pursuant to a
Qualified Election within the ninety (90) day period ending on the Annuity
Starting Date. The Participant may elect to receive a smaller annuity benefit
with continuation of payments to the spouse at a rate of seventy-five percent
(75%) or one hundred percent (100%) of the rate payable to a Participant during
his lifetime.
The Plan Administrator shall provide each Participant, within a period
no less than thirty (30) days and no more than ninety (90) days prior to the
Annuity Starting Date, a written explanation of:
(a) the terms and condition of a Qualified Joint and
Survivor Annuity;
(b) the Participant's right to make and the effect of an
election to waive the Qualified Joint and Survivor
Annuity form of benefit;
(c) the rights of a Participant's Spouse; and
(d) the right to make and, the effect of, a revocation of
a previous election to waive the Qualified Joint and
Survivor Annuity.
PRE-RETIREMENT DEATH BENEFIT. If a Participant dies before benefits
have commenced, benefits shall be payable to the Spouse (or other properly
designated beneficiary) of a married Participant in the form of a Qualified
Pre-Retirement Survivor Annuity or to an unmarried Participant in the form of a
life annuity unless an optional form of benefit, as specified below, has been
selected pursuant to a Qualified Election.
A Participant may make a Qualified Election within the period which
begins on the first day of the Plan Year in which the Participant attains age 35
and ends on the date of the Participant's death. If a Participant separates from
service prior to the first day of the Plan Year in which age 35 is attained,
with respect to the Account balance as of the date of separation, the election
period shall begin on the date of separation.
A Participant who will not yet attain age 35 as of the end of any
current Plan Year may make a special qualified election to waive the Qualified
Pre-Retirement Survivor Annuity for the period beginning on the date of such
election and ending on the first day of the Plan Year in which the Participant
will attain age 35. Such election shall not be valid unless the Participant
receives a written explanation of the Qualified Pre-Retirement Survivor Annuity.
Qualified Pre-Retirement Survivor Annuity coverage will be automatically
reinstated as of the first day of the Plan Year in which the Participant attains
age 35. Any new waiver on or after such date shall be subject to the full
requirements of a Qualified Election.
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86
The Plan Administrator shall provide each Participant within the
"Applicable Period" a written explanation of:
(a) the terms and conditions of a Qualified Pre-Retirement
Survivor Annuity;
(b) the Participant's right to make and the effect of an election
to waive the Qualified Joint and Survivor Annuity form of
benefit;
(c) the rights of a Participant's Spouse; and
(d) the right to make, and the effect of, a revocation of a
previous election to waive the Qualified Pre-Retirement
Survivor Annuity.
The "Applicable Period" for a Participant is whichever of the following
periods ends last: (i) the period beginning with the first day of the Plan Year
in which the Participant attains age 32 and ending with the close of the Plan
Year preceding the plan year in which the Participant attains age 35; (ii) a
reasonable period ending after the individual becomes a participant; (iii) a
reasonable period ending after this Section first applies to the Participant.
Notwithstanding the foregoing, notice must be provided within a reasonable
period ending after separation from service in the case of a Participant who
separates from service before attaining age 35.
For purposes of applying the preceding paragraph, a reasonable period
ending after the enumerated events described in (ii) or (iii) is the end of the
two-year period beginning one (1) year prior to the date the applicable event
occurs, and ending one (1) year after that date. In the case of a Participant
who separates from service before the Plan Year in which age 35 is attained,
notice shall be provided within the two (2) year period beginning one (1) year
prior to separation and ending one (1) year after separation. If such a
Participant thereafter returns to employment with the Employer, the Applicable
Period for such Participant shall be redetermined.
OPTIONAL FORMS OF BENEFIT. In lieu of the form of benefit provided
above, a Participant may elect, provided his Spouse consents pursuant to a
Qualified Election, to have his vested Account paid in one of the following
forms:
In one lump sum payment in cash or in property;
In installment payments over a period certain in monthly, quarterly,
semi-annual or annual cash payments;
As an annuity contract from a legal reserve life insurance company as
selected by the Participant (or, in the absence of such Participant selection,
by the Employer). The annuity may be paid in equal monthly payments over any of
the following periods: (i) the life of the Participant; (ii) a period certain,
or a period certain and life, which period is not longer than the life
expectancy of the Participant, or (iii) a period certain, or a period certain
and life, which period is not longer than the joint life and last survivor
expectancy of the Participant and his designated beneficiary.
In the event Participant shall elect to receive benefits in the form of
installment payments, the Trustee shall segregate such Participant's Account in
a separate, federally insured savings account, certificate of deposit in a bank
or savings and loan association, money market certificate or other liquid
short-term security. Such installment payments shall be for a period not to
extend beyond the Participant's life expectancy or the life expectancy of the
Participant and his designated beneficiary.
Notwithstanding the provisions above, in the event the Participant's
vested Account is $3,500 or less (and at the time of any prior distributions did
not exceed $3,500) the Trustee shall distribute the entire vested Account to the
Participant (or to his beneficiary) in one lump sum payment.
BENEFICIARY DESIGNATION AND CONSENT OF SPOUSE. The beneficiary of any
benefit payable upon the death of a married Participant shall be the
Participant's Spouse. The beneficiary of any benefit payable upon the death of
an unmarried participant shall be the beneficiary(ies) designated by the
Participant under procedures established by the Administrator.
The Participant may designate a beneficiary other than his
Spouse if:
(a) the Spouse consents in writing to such beneficiary
designation, or
(b) the Participant has no Spouse, or
(c) the Spouse cannot be located.
In such event, the designation of a beneficiary shall be made on a form
satisfactory to the Administrator. A Participant may, with the written consent
of his Spouse, at any time revoke his designation of a beneficiary or change his
beneficiary by filing written notice of such revocation or change with the
Administrator. Any consent by the Participant's Spouse to any beneficiary
designation must be irrevocable, in writing, must acknowledge the effect of such
beneficiary designation and the specific non-Spouse beneficiary, and be
witnessed by a Plan representative or a notary public.
IN-SERVICE DISTRIBUTIONS. At the election of the Participant, the
Administrator may distribute the entire amount then credited to the
Participant's Voluntary Contribution Account.
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87
SCHEDULE C
This Schedule C is made in conjunction with the merger of the CLYDE
SAVINGS BANK COMPANY RETIREMENT AND SAVINGS PLAN (the "Clyde Plan") into the
First Financial Bancorp Thrift Plan (the "First Financial Plan") effective
January 1, 1995. The principal purpose of this Schedule is to protect rights and
optional forms of benefit offered by the Clyde Plan. The effective date of this
Schedule is January 1, 1995. The Schedule is adopted by the administrative
Committee of the First Financial Plan pursuant to authority granted the
Committee by First Financial Bancorp Board of Directors' Resolutions dated
November 22, 1994.
(1) All Service with Clyde Savings Bank Company ("Clyde Savings
Bank") is recognized.
(2) Participants in the Clyde Plan as of December 31, 1994 are
fully vested in all their accounts.
(3) The accounts of former Participants (January 1, 1995 balances plus
subsequent earnings) are subject to Special Provisions. These Special Provisions
protect rights and benefit options of former Clyde Plan Participants as required
by Code Section 411(d)(6). The Plan Committee shall establish procedures for
separately accounting for transferred assets and income therefrom. The Special
Provisions have priority over other Plan provisions but only apply to assets
transfered from the Clyde Plan by reason of merger and do not apply to
contributions made on or after January 1, 1995 to this First Financial Plan. All
provisions of the First Financial Plan not inconsistent with the Special
Provisions apply to assets transferred by plan merger. The Special Provisions
are set forth below:
SCHEDULE OF SPECIAL PROVISIONS
This Schedule applies ONLY to assets (and income earned by such assets)
transfered by plan merger from the Clyde Plan effective January 1, 1995. This
Schedule is effective January 1, 1995.
PAYABLE EVENTS. (Section 9.01). Disability is specifically recognized
as a payable event. A Participant is Disabled if he is determined by the
administrative Committee to meet one or more of the following requirements:
(1) The Participant is receiving disability benefits under the
Social Security Act as the result of total and permanent disability.
(2) The Participant is receiving benefits under a disability income
plan maintained by the Employer as a result of total and permanent disability.
(3) The Participant is determined by a physician chosen by the
Committee to be totally and permanently disabled.
ADDITIONAL OPTIONAL FORMS OF BENEFIT. (Section 9.04)
In addition to forms of benefit provided by Sections 9.02 and 9.04 of
the First Financial Plan, the following optional forms are available as if
incorporated in Section 9.04.
(1) In the form of monthly, quarterly, semi-annual or annual
installments over a period not to exceed the life expectancy of the
Participant and the Participant's Beneficiary; or
(2) For any Participant who participated in the Plan during a Plan Year
beginning before January 1, 1989, in any optional form of benefit provided under
the Clyde Plan immediately prior to January 1, 1989.
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88
SCHEDULE D
This Schedule D is made in conjunction with the merger of THE BRIGHT
NATIONAL BANK 401(k) PROFIT SHARING PLAN (the "Bright Plan") into the First
Financial Bankcorp Thrift Plan (the "First Financial Plan") effective January 1,
1996. The principal purpose of this Schedule is to protect rights and optional
forms of benefit offered by the Bright Plan. The effective date of this Schedule
is January 1, 1996. The Schedule is adopted by the administrative Committee of
the First Financial Plan pursuant to authority granted the Committee by First
Financial Bancorp Board of Directors resolutions dated August 22, 1995.
(1) All Service with The Bright National Bank is recognized.
(2) The accounts of all former Bright Plan participants who become
participants in the First Financial Plan are fully vested effective January 1,
1996.
(3) Former Bright Plan Participants may irrevocably elect to have their
Matching Contribution Account (as of January 1, 1996) invested in a Savings
Account Fund to be selected or established by the Plan Committee. Funds invested
in this Savings Account Fund are not eligible for transfer to any other fund.
(4) The accounts of former Bright Plan Participants (January 1, 1996
balances plus subsequent earnings) are subject to, Special Provisions. These
Special Provisions protect rights and benefit options of former Bright
Participants as required by Code Section 411(d)(6). The Plan Committee shall
establish procedures for separately accounting for transferred assets and income
therefrom. The Special Provisions have priority over other Plan provisions but
only apply to assets transferred from the Bright Plan by reason of merger and do
not apply to contributions made on or after July 1, 1996 to this First Financial
Plan. All provisions of this First Financial Plan not inconsistent with the
Special Provisions apply to assets transferred by plan merger. The Special
Provisions are as set forth below:
SCHEDULE OF SPECIAL PROVISIONS
This Schedule applies ONLY to assets (and income earned by such assets)
transferred by plan merger from the Bright Plan effective January 1, 1996. This
Schedule is effective January 1, 1996.
WHEN BENEFIT PAYMENTS BEGIN FOR DISABLED PARTICIPANTS. Benefits payable
to a Disabled Participant will begin as soon as practicable after the first day
of the month following the date the Participant becomes a Disabled Participant.
A Participant is Disabled when a physician chosen by the Plan Administrator
determines that the Participant is totally and permanently disabled.
METHODS OF BENEFIT PAYMENT. Subject to the $3,500 cash out rule, if a
Participant's Accrued Benefit becomes payable, the Accrued Benefit shall be paid
in one of the settlement options described in subsections (a), (b) or (c), as
the Participant shall elect:
(a) in the form of a lump sum
(b) in the form of monthly, quarterly, semi-annual or annual
installments over a period not to exceed the life expectancy of the Participant
and the Participant's Beneficiary; or
(c) for any Participant who participated in the Plan (Bright
Plan) during a Plan Year beginning before January 1, 1989, in any optional form
of benefit provided under the Prior Plan.
LOANS. The loan provisions of Article X of the Bright Plan are not
continued under the First Financial Plan, except that any loans outstanding to
former participants in the Bright Plan as of January 1, 1996 shall continue to
be administered pursuant to the provisions of the Bright Plan until such loans
are repaid in full or otherwise collected by the Plan.
REHIRES. If any participant in the Bright Plan who was not 100% vested,
separated from service on or before December 31, 1995 and received or is deemed
to have received a distribution pursuant to the Bright Plan, resumes employment
covered under this Plan, such participant shall have the right to repay to the
Plan the full amount of the distribution attributable to employer contributions
on or before the earlier of the date that the participant incurs 5 consecutive
1-year Breaks in Service following the date of distribution or five years after
the first date on which the participant is subsequently reemployed. In such
event participant's account shall be restored to value thereof at the time the
distribution was made; intervening investment gains (if any) shall be ignored.
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89
CERTIFICATION
-------------
I hereby certify that the foregoing is a true and authentic copy of the
First Financial Bancorp Thrift Plan and Trust, effective as of the 1st day of
January, 1989 and amended and restated on the day of , 1994.
FIRST FINANCIAL BANCORP
Date: By:
------------------------- ---------------------------
90
FIRST FINANCIAL BANCORP
APRIL 23, 1996
WHEREAS, this Corporation sponsors the First Financial Bancorp Thrift
Plan (the "Plan") last restated effective January 1, 1989; and
WHEREAS, legal counsel has recommended that certain provisions of
Article VII of the Plan be amended to simplify references to Participant
investment options;
NOW, THEREFORE, BE IT RESOLVED:
(1) That effective January 1, 1995, Section 7.03 of the Plan is
amended to read as set forth below:
7.03 INVESTMENT ELECTIONS.
Each Participant shall elect the manner in which his Employee After-Tax
Contribution, if any, and Elective Deferral amounts are to be invested. The
first such election shall be made by an Employee prior to becoming a
Participant. Subsequent elections may be made effective on any Valuation Date in
the Plan Year. Participants may specify how present and future account balances
are to be invested. Any change in investment direction for prior account
balances and future account balances must be a change expressed in multiples of
twenty percent (20%) of the amount in the fund.
The Participant may choose to have his Employee After-Tax Contribution
and Elective Deferral accounts invested in the Employer Stock Fund or in any of
the alternate investment funds established by the Trustee as part of the overall
Trust fund.
EMPLOYER STOCK FUND
This fund shall be primarily invested in common stock of First
Financial Bancorp, or its successors by merger.
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This Section 7.03 is effective January 1, 1995.
(2) That the proper officers of this Corporation or any subsidiary are
authorized and directed to take such action as may be necessary, appropriate or
advisable to insure the continued qualification of the Plan, including
submission of the amendment to the Internal Revenue Service for a determination
letter and incident thereto to adopt such changes to the Plan as may be noted to
them by the Internal Revenue Service as necessary to qualify the Plan under
Sections 401(a) and 501(a) of the Internal Revenue Code of 1986.
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The undersigned, being the Secretary of First Financial Bancorp, an
Ohio corporation, with offices at Hamilton, Ohio, does certify that the
foregoing resolutions were adopted by the Board of Directors of First Financial
Bancorp at a meeting held on April 23, 1996, at which a quorum was present.
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Secretary
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