PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN
AND TRUST/CUSTODIAL ACCOUNT
Sponsored By
PNC BANK, NATIONAL ASSOCIATION
BASIC PLAN DOCUMENT #04
February 1993
COPYRIGHT 1993 THE McKAY HOCHMAN COMPANY, INC.
THIS DOCUMENT IS COPYRIGHTED UNDER THE LAWS OF THE UNITED STATES. USE,
DUPLICATION OR REPRODUCTION, INCLUDING THE USE OF ELECTRONIC MEANS, IS
PROHIBITED BY LAW WITHOUT THE EXPRESS CONSENT OF THE AUTHOR.
ARTICLE XVI
GOVERNING LAW
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN AND TRUST/CUSTODIAL
ACCOUNT
Sponsored By
PNC BANK, NATIONAL ASSOCIATION
The Sponsor hereby establishes the following Prototype Retirement Plan and
Trust/Custodial Account for use by those of its customers who qualify and
wish to adopt a qualified retirement program. Any Plan and Tnist/Custodial
Account established hereunder shall be administered for the exclusive benefit
of Participants and their beneficiaries under the following terms and
conditions:
ARTICLE I
DEFINITIONS
1.1 Actual Deferral Percentage - The ratio (expressed as a percentage and
calculated separately for each Participant) of:
(a) the amount of Employer contributions [as defined at (c) and (d)]
actually paid over to the Fund on behalf of such Participant for the Plan
Year to
(b) the Participant's Compensation for such Plan Year.
Compensation will only include amounts for the period during which the
Employee was eligible to participate.
Employer contributions on behalf of any Participant shali include:
(c) any Elective Deferrals made pursuant to the Participant's deferral
election, including Excess Elective Deferrals, but excluding Elective
Deferrals that are either taken into account in the Contribution Percentage
test (provided the ADP test is satisfied both with and without exclusion of
these Elective Deferrals) or are returned as excess Annual Additions; and
(d) at the election of the Employer, Qualified Non-Elective Contributions
and Qualified Matching Contributions.
For purposes of computing Actual Deferral Percentages, an Employee who would
be a Participant but for the failure to make Elective Deferrals shall be
treated as a Participant on whose behalf no Elective Deferrals are made.
1.2 Adoption Agreement - The document attached to this Plan by which an
Employer elects to establish a qualified retirement plan and trust/custodiaI
account under the terms of this Prototype Plan and Trust/Custodial Account.
1.3 Aggregate Limit - The sum of:
(a) 125 percent of the greater of the ADP of the non-Highly Compensated
Employees for the Plan Year or the ACP of non-Highly Compensated Employees
under the Plan subject to Code Section 401(m) for the Plan Year beginning
with or within the Plan Year of the cash or deferred arrangement as described
in Code Section 401(k) or Code Section 402(h)(1)(B), and
(b) the lesser of 260% or two percent plus the lesser of such ADP or ACP.
Alternatively, the aggregate limit can be determined by substituting "the
lesser of 200% or 2 percent plus" for 125 % of" in (a) above, and
substituting "1 25 % of" for "the lesser of 200% or 2 percent plus" in
(b) above.
1.4 Annual Additions - The sum of the following amounts credited to a
Participant's account for the Limitation Year:
(a) Employer Contributions,
(b) Employee Contributions (under Article IV),
(c) forfeitures,
(d) amounts allocated after March 31, 1994 to an individual medical
account, as defined in Code Section 415(l)(2), which is part of a pension or
annuity plan maintained by the Employer (these amounts are treated as Annual
Additions to a Defined Contribution Plan though they arise under a Defined
Benefit Plan), and
(e) amounts derived from contributions paid or accrued after 1985, in
taxable years ending after 1985, which are either attributable to post-
retirement medical benefits allocated to the account of a Key Emplovee, or
to a Welfare Benefit Fund maintained by the Employer, are also treated as
Annual Additions to a Defined Contribution Plan. For purposes of this
paragraph, an Employee is a Key Employee if he or she meets the requirements
of paragraph 1.43 at any time during the Plan Year or any preceding Plan Year.
Welfare Benefit Fund is defined at paragraph 1.89.
Excess amounts applied in a Limitation Year to reduce Employer contributions
will be considered Annual Additions for such Limitation Year, pursuant to
the provisions of Article X.
1.5 Annuity Starting Date - The first day of the first period for which an
amount is paid as an annuity or in any other form.
1.6 Applicable Calendar Year - The First Distribution Calendar Year, and
in the event of the recalculation of life expectancy, such succeeding
calendar year. If payments commence in accordance with paragraph 7.4(c)
before the Required Beginning Date, the Applicable Calendar Year is the year
such payments commence. If distribution is in the form of an immediate
annuity purchased after the Participant's death with the Participant's
remaining interest, the Applicable Calendar Year is the year of purchase.
1.7 Applicable Life Expectancy - Used in determining the required minimum
distribution. The life expectancy (or joint and last survivor expectancy)
calculated using the attained age of the Participant (or Designated
Beneficiary) as of the Participant's (or Designated Beneficiary's) birthday
in the Applicable Calendar Year reduced by one for each calendar year which
has elapsed since the date life expectancy was first calculated. If life
expectancy is being recalculated, the Applicable Life Expectancy shall be
the life expectancy as so recalculated. The life expectancy of a non-Spouse
Beneficiary may not be recalculated.
1.8 Average Contribution Percentage (ACP) - The average of the Contribution
Percentages for each Highly Compensated Employee and for each non-Highly
Compensated Employee.
1.9 Average Deferral Percentage (ADP) - The average of the Actual Deferral
Percentages for each Highly Compensated Employee and for each non-Highly
Compensated Employee.
1.10 Break In Service - A Inconsecutive month period during which an
Employee fails to complete more than 500 Hours of Service.
1.11 Code - The Internal Revenue Code of 1986, including any
amendments.
1.12 Compensation - The Employer may select one of the following
three safe-harbor definitions of Compensation in the Adoption Agreement.
Compensation shall only include amounts earned while a Participant if Plan
Year is chosen as the applicable computation period.
(a) Code Section 3401 (a) Wages. Compensation is defined as wages within
the meaning of Code Section 3401 (a) for the purposes of Federal income tax
withholding at the source but determined without regard to any rules that
limit the remuneration included in wages based on the nature or location of
the employment or the services performed [such as the exception for
agricultural labor in Code Section 3401(a)(2)].
(b) Code Section 6041 and 6051 Wages. Compensation is defined as wages as
defined in Code Section 3401(a) and all other payments of compensation to an
Employee by the Employer (in the course of the Employer's trade or business)
for which the Employer is required to furnish the employee a written statement
under Code Section 6041(d) and 6051(a)(3). Compensation must be determined
without regard to any rules under Code Section 3401(a) that limit the
remuneration included in wages based on the nature or location of the
employment or the services performed [such as the exception for agricultural
labor in Code Section 3401(a)(2)].
(c) Code Section 415 Compensation. For purposes of applying the
limitations of Article X and Top-Heavy, Minimums, the definition of
Compensation shall be Code Section 415 Compensation defined as follows: a
Participant's Earned Income, 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 salesmen, Compensation for services on the basis of a
percentage of profits, commissions on insurance premiums, tips, bonuses,
fringe benefits and reimbursements or other expense allowances under a
nonaccountable plan (as described in Regulation 1.62-2(c)], and excluding
the following:
1 . Employer contributions to a plan of deferred compensation which are
not includible in the Employee's gross income for the taxable year in which
contributed, or Employer contributions under a Simplified Emplovee Pension
Plan or any distributions from a plan of deferred compensation,
2. 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,
3 . Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and
4 . Other amounts which received special tax benefits, or contributions
made bv the Employer (whether or not under a salary reduction agreement)
towards the purchase of an annuity contract described in Code Section 403(b)
(whether or not the contributions are actually excludible from the gross
income of the Employee).
For purposes of applying the limitations of Article X and Top-Heavy Minimums,
the definition of Compensation shall be Code Section 415 Compensation
described in this paragraph 1. 12(c). Also, for purposes of applying the
limitations of Article X, Compensation for a Limitation Year is the
Compensation actually paid or made available during such Limitation Year.
Notwithstanding the preceding sentence, Compensation for a Participant in a
defined contribution plan who is permanently and totally disabled [as defined
in Code Section 22(e)(3)] is the Compensation such Participant would have
received for the Limitation Year if the Participant had been paid at the
rate of Compensation paid immediately before becoming permanently and
totally disabled. Such imputed Compensation for the disabled Participant
may be taken into account only if the participant is not a Highly
Compensated Employee [as defined in Code Section 414(q)] and contributions
made on behalf of such Participant are nonforfeitable when made.
If the Employer fails to pick the applicable period in the Adoption
Agreement, the Plan Year shall be used. Unless otherwise specified by the
Employer in the Adoption Agreement, Compensation shall be determined as
provided in Code Section 3401(a) [as defined in this paragraph 1.12(a)]. In
nonstandardized Adoption Agreement 002, the Employer may choose to eliminate
or exclude categories of Compensation which do not violate the provisions of
Code Sections 401(a)(4), 414(s) the regulations thereunder and Revenue
Procedure 8965.
Beginning with 1989 Plan Years, the annual Compensation of each Participant
which may be taken into account for determining all benefits provided under
the Plan (including benefits under Article XIV) for any year shall not exceed
$200,000, as adjusted under Code Section 415(d). In determining the
Compensation of a Participant for purposes of this limitation, the rules of
Code Section 414(q)(6) 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 end of
the Plan 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 as determined
under this section prior to the application of this limitation.
If a Plan has a Plan Year that contains fewer than 12 calendar months, then
the annual Compensation limit for that period is an amount equal to the
$200,000 as adjusted for the calendar year in which the Compensation period
begins, multiplied by a fraction the numerator of which is the number of
full months in the Short Plan Year and the denominator of which is 12. If
Compensation for any prior Plan Year is taken into account in determining
an Employee's contributions or benefits for the current year, the
Compensation for such prior year is subject to the applicable annual
Compensation limit in effect for that prior year. For this purpose, for
years beginning before January 1, 1990, the applicable annual Compensation
limit is $200,000.
Compensation shall not include deferred Compensation other than contributions
through a salary reduction agreement to a cash or deferred plan under Code
Section 401(k), a Simplified Employee Pension Plan under Code Section 402(h)
(1)(B), a cafeteria plan under Code Section 125 or a tax-deferred annuity
under Code Section 403(b). Unless elected otherwise by the Employer in the
Adoption Agreement, these deferred amounts will be considered as Compensation
for Plan purposes. These deferred amounts are not counted as Compensation for
purposes of Articles X and XIV. When applicable to a Self-Employed Individual
Compensation shall mean Earned Income.
1.13 Contribution Percentage - The ratio (expressed as a percentage and
calculated separately for each Participant) of:
(a) the Participant's Contribution Percentage Amounts [as defined at
(c)-(f)] for the Plan Year, to
(b) the Participant's Compensation for the Plan Year. Compensation will
only include amounts for the period during which the Employee was eligible to
participate.
Contribution Percentage Amounts on behalf of any Participant shall include:
(c) the amount of Employee Voluntary Contributions, Matching Contributions,
and Qualified Matching Contributions (to the extent not taken into account
for purposes of the ADP test) made under the Plan on behalf of the
Participant for the Plan Year,
(d) 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,
(e) at the election of the Employer, Qualified Non-Elective Contributions,
and
(f) the Employer also 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.
Contribution Percentage Amounts shall not include Matching Contributions,
whether or not Qualified, that are forfeited either to correct Excess
Aggregate Contributions, or because the contributions to which they relate
are Excess Deferrals, Excess Contributions, or Excess Aggregate Contributions.
1.14 Custodian - The Sponsor of this Prototype, or, if applicable, an
affiliate or successor, shall serve as Custodian if a Custodian is appointed
in the Adoption Agreement.
1.15 Defined Benefit Plan - A Plan under which a Participant's benefit is
determined by a formula contained in the Plan and no individual accounts are
maintained for Participants.
1.16 Defined Benefit (Plan) Fraction - A fraction, the numerator of which
is the sum of the Participant's Projected Annual Benefits under all the Defined
Benefit Plans (whether or not terminated) maintained by the Employer, and the
denominator of which is the lesser of 125 percent of the dollar limitation
determined for the Limitation Year under Code Sections 415(b) and (d) or 140
percent of the Highest Average Compensation, including any adjustments under
Code Section 415(b).
Notwithstanding the above, if the Participant was a Participant as of the
first day of the first Limitation Year beginning after 1986, in one or more
Defined Benefit Plans maintained by the Employer which were in existence on
May 6, 1986, the denominator of this fraction will not be less than 125
percent of the sum of the annual benefits under such plans which the
Participant had accrued as of the close of the last Limitation Year
begirming before 1987, disregarding any changes in the terms and conditions
of the plan after May 5, 1986. The preceding sentence applies only if the
Defined Benefit Plans individually and in the aggregate satisfied the
requirements of Section 415 for all Limitation Years beginning before 1987.
1.17 Defined Contribution Dollar Limitation - Thirty thousand dollars
($30,000)or if greater, one-fourth of the defined benefit dollar limitation
set forth in Code Section 415(b)(1) as in effect for the Limitation Year.
1.18 Defined Contribution Plan - A Plan under which individual accounts
are maintained for each Participant to which all contributions, forfeitures,
investment income and gains or losses, and expenses are credited or deducted.
A Participant's benefit under such Plan is based solely on the fair market
value of his or her account balance.
1.19 Defined Contribution (Plan) Fraction - 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 Benefit Funds, as defined in paragraph 1.89 and individual medical
accounts, as defmed in Code Section 415(l)(2), 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 the Limitation Year is the
lesser of 125 percent of the dollar limitation determined under Code Sections
415(b) and (d) in effect under Code Section 415(c)(1)(A) or 35 percent of
the Participant's Compensation for such year.
If the Employee was a Participant as of the end of the first day of the first
Limitation Year beginning after 1986, in one or more Defined Contribution
Plans maintained by the Employer which were in existence on May 6,1986, the
numerator of this fraction will be adjusted if the sum of this fraction and
the Defined Benefit Fraction would otherwise exceed 1.0 under the terms of
this Plan. Under the adjustment, an amount equal to the product of (1) the
excess of the sum of the fractions over 1.0 times (2) the denominator of
this fraction will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as they would
be computed as of the end of the last Limitation Year beginning before 1987,
and disregarding any changes in the terms and conditions of the Plan made
after May 6, 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 1987, shall not be
re-computed to treat all Employee Contributions as Annual Additions.
1.20 Designated Beneficiary - The individual who is designated as
the beneficiary under the Plan in accordance with Code Section 401(a)(9)
and the regulations thereunder.
1.21 Disability - An illness or injury of a potentially permanent nature,
expected to last for a continuous period of not less than 12 months,
certified by a physician selected by or satisfactory to the Employer, which
prevents the Employee from engaging in anv occupation for wage or profit for
which the Employee is reasonably fitted by training, education or experience.
1.22 Distribution Calendar Year - A calendar year for which a minimum
distribution is required.
1.23 Early Retirement Age - The age set by the Employer in the Adoption
Agreement (but not less than 55), which is the earliest age at which a
Participant may retire and receive his or her benefits under the Plan.
1.24 Earned Income - Net earnings from self-employment in the trade or
business with respect to which the Plan is established, determined without
regard to items not included in gross income and the deductions allocable to
such items, provided that personal services of the individual are a material
income-producing factor. Earned income shall be reduced by contributions
made by an Employer to a qualified plan to the extent deductible under Code
Section 404. For tax years beginning after 1989, net earnings shall be
determined taking into account the deduction for one-half of self-employment
taxes allowed to the Employer under Code Section 164(f) to the extent
deductible.
1.25 Effective Date - The date on which the Employer's retirement plan or
amendment to such plan becomes effective. For amendments reflecting
statutory and regulatory changes post Tax Reform Act of 1986, the Effective
Date will be the earlier of the date upon which such amendment is first
administratively applied or the first day of the Plan Year following the
date of adoption of such amendment.
1.26 Election Period - The period which begins on the first day of the Plan
Year in which the Participant attains age 35 and ends on the date of the
Participant's death. If a Participant separates from service prior to the
first day of the Plan Year in which age 35 is attained, the Election Period
shall begin on the date of separation, with respect to the account balance as
of the date of separation.
1.27 Elective Deferral - Employer contributions made to the Plan at the
election of the Participant, in lieu of cash Compensation. Elective
Deferrals shall also include contributions made pursuant to a Salary Savings
Agreement or other deferral mechanism, such as a cash option contribution.
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 Code Section 401(k), any simplified employee pension cash or
deferred arrangement as described in Code Section 402(h)(1)(B), any eligible
deferred compensation plan under Code Section 457, any plan as described
under Code Section 501(c)(18), and any Employer contributions made on the
behalf of a Participant for the purchase of an annuity contract under Code
Section 403(b) pursuant to a Salary Savings Agreement. Elective Deferrals
shall not include any deferrals properly distributed as Excess Annual
Additions.
1.28 Eligible Participant - Any Employee who is eligible to make a
Voluntary Contribution, or an Elective Deferral (if the Employer takes such
contributions into account in the calculation of the Contribution Percentage),
or to receive a Matching Contribution (including forfeitures) or a Qualified
Matching Contribution. If a Voluntary Contribution or Elective Deferral is
required as a condition of participation in the Plan, any Employee who would
be a Participant in the Plan if such Employee made such a contribution
shall be treated as an Eligible Participant even though no Voluntary
Contributions or Elective Deferrals are made.
1.29 Employee - Any person employed by the Employer (including Self-
Employed Individuals and partners), all Employees of a member of an affiliated
service group [as defined in Code Section 414(m)], Employees of a controlled
group of corporations [as defined in Code Section 414(b)], all Employees of any
incorporated or unincorporated trade or business which is under common
control [as defined in Code Section 414(c)], Leased Employees [as defined in
Code Section 414(n)) and any Employee required to be aggregated by Code
Section 414(o). All such Employees shall be treated as employed by a single
Employer.
1.30 Employer - The Self-Employed Individual, partnership, corporation or
other organization which adopts this Plan including any firm that succeeds
the Employer and adopts this Plan. For purposes of Article X, Limitations on
Allocations, Employer shall mean the Employer that adopts this Plan, and all
members of a controlled group of corporations [as defined in Code Section 414
(b) as modified by Code Section 415(h)], all commonly controlled trades or
businesses [as defined in Code Section 414(c) as modified by Code Section 415
(h)] or affiliated service groups [as defined in Code Section 414(m)] of
which the adopting Employer is a part, and any other entity required to be
aggregated with the Employer pursuant to regulations under Code Section
414(o).
1.31 Entry Date - The date on which an Employee commences participation in
the Plan as determined by the Employer in the Adoption Agreement.
1.32 Excess Aggregate Contributions - The excess, with respect to any Plan
Year, of:
(a) The aggregate Contribution Percentage Amounts taken into account in
computing the numerator of the Contribution Percentage actually made on
behalf of Highly Compensated Employees for such Plan Year, over
(b) The maximum Contribution Percentage Amounts permitted by the ACP
test (determined by reducing contributions made on behalf of Highly
Compensated Employees in order of their Contribution Percentages beginning
with the highest of such percentages),
Such determination shall be made after first determining Excess Elective
Deferrals pursuant to paragraph 1.35 and then determining Excess
Contributions pursuant to paragraph 1.34.
1.33 Excess Amount - The excess of the Participant's Annual Additions for
the Limitation Year over the Maximum Permissible Amount.
1.34 Excess Contribution - 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).
1.35 Excess Elective Deferrals - Those Elective Deferrals that are
includible in a Participant's gross income under Code Section 402(g) to the
extent such Participant's Elective Deferrals for a taxable year exceed the
dollar limitation under such Code Section. Excess Elective Deferrals shall be
treated as Annual Additions under the Plan, unless such amounts are
distributed no later than the first April 15th following the close of the
Participant's taxable year.
1.36 Family Member - The Employee's Spouse, any lineal descendants and
ascendants and the Spouse of such lineal descendants and ascendants.
1.37 First Distribution Calendar Year - For distributions beginning before
the Participant's death, the First Distribution Calendar Year is the calendar
year immediately preceding the calendar year which contains the Participant's
Required Beginning Date. For distributions beginning after the Participant's
death, the First Distribution Calendar Year is the calendar year in which
distributions are required to begin pursuant to paragraph 7.10.
1.38 Fund - All contributions received by the Trustee/Custodian under this
Plan and Trust/Custodial Account, investments thereof and earnings and
appreciation thereon.
1.39 Hardship - An immediate and heavy financial need of the Employee where
such Employee lacks other available resources.
1.40 Highest Average Compensation - The average Compensation for the three
consecutive Years of Service with the Employer that produces the highest
average. A Year of Service with the Employer is the Inconsecutive month
period defmed in the Adoption Agreement.
1.41 Highly Compensated Employee - Any Employee who performs service for
the Employer during the determination year and who, during the immediate prior
year:
(a) received Compensation from the Employer in excess of $75,000 [as
adjusted pursuant to Code Section 415(d)]; or
(b) received Compensation from the Employer in excess of $50,000 [as
adjusted pursuant to Code Section 415(d)] and was a member of the Top-Paid
Group for such year; or
(c) was an officer of the Employer and received Compensation during such
year that is greater than 50 percent of the dollar limitation in effect under
Code Section 415(b)(1)(A).
Notwithstanding (a), (b) and (c), an Employee who was not Highly Compensated
during the preceding Plan Year shall not be treated as a Highly Compensated
Employee with respect to the current Plan Year unless such Employee is a
member of the 100 Employees paid the greatest Compensation during the year
for which such determination is being made.
(d) Employees who are five percent (5 %) Owners at any time during the
immediate prior year or determination year.
Highly Compensated Employee includes Highly Compensated active Employees and
Highly Compensated former Employees.
1.42 Hour Of Service
(a) Each hour for which an Employee is paid, or entitled to payment, for
the performance of duties for the Employer. These hours shall be credited
to the Employee for the computation period in which the duties are performed;
and
(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 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 by the Employer. The same Hours of Service
shall not be credited both under paragraph (a) or paragraph (b), 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) Hours of Service shall be credited for employment with the Employer
and with other members of an affiliated service group [as defined in Code
Section 414(m)], a controlled group of corporations [as defined in Code
Section 414(b)], or a group of trades or businesses under common control
[as defined in Code Section 414(c)] of which the adopting Employer is a
member, and any other entity required to be aggregated with the Employer
pursuant to Code Section 414(o) and the regulations thereunder. Hours of
Service shall 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.
(e) Solely for purposes of determining whether a Break in Service, as
defined in paragraph 1. IO. for participation and vesting purposes has
occurred in a computation period, an individual who is absent from work for
maternity or paternity reasons shall receive credit for the Hours of Service
which would otherwise have been credited to such individual but for such
absence, or in any case in which such hours cannot be determined, 8 Hours of
Service per day of such absence. For purposes of this paragraph, an absence
from work for maternity or paternity reasons means an absence by reason of
the pregnancy of the individual, by reason of a birth of a child of the
individual, by reason of the placement of a child with the individual in
connection with the adoption of such child by such individual, or for
purposes of caring for such child for a period beginning immediately
following such birth or placement. The Hours of Service credited under
this paragraph shall be credited in the computation period in which the
absence begins if the crediting is necessary to prevent a Break in Service
in that period, or in all other cases, in the following computation period.
No more than 501 hours will be credited under this paragraph.
(f) Hours of Service shall be determined on the basis of the method
selected in the Adoption Agreement.
1.43 Key Employee - Any Employee or former Employee (and the beneficiaries
of such employee) who at any time during the determination period was an
officer of the Employer if such individual's annual compensation exceeds 50%
of the dollar limitation under Code. Section 415(b)(1)(A) (the defined
benefit maximum annual benefit), an owner (or considered an owner under
Code Section 318) of one of the ten largest interests in.the employer
if such individual's compensation exceeds 100% of the dollar limitation
under Code Section 415(c)(1)(A), a 5 % owner of the Employer, or a 1% owner
of the Employer who has an annual compensation of more than $150,000. For
purposes of determining who is a Key Employee, annual compensation shall mean
Compensation as defined for Article X, but including amounts deferred through
a salary reduction agreement to a cash or deferred plan under Code Section
401(k), a Simplified Employee Pension Plan under Code Section 408(k), a
cafeteria plan under Code Section 125 or a tax-deferred annuity under Code
Section 403(b). The determination period is the Plan Year containing the
Determination Date and the four preceding Plan Years. The determination of
who is a Key Employee will be made in accordance with Code Section 416(i)(1)
and the regulations thereunder.
1.44 Leased Employee - Any person (other than an Employee of the recipient)
who, pursuant to an agreement between the recipient and any other person
('leasing organization'), has performed services for the recipient [or for
the recipient and related persons determined in accordance with Code Section
414(n)(6)] on a substantially full-time basis for a period of at least one
year, and such services are of a type historically performed by Employees
in the business field of the recipient Employer.
1.45 Limitation Year - The calendar year or such other 12 consecutive month
period designated by the Employer in the Adoption Agreement for purposes
of determining the maximum Annual Addition to a Participant's account. All
qualified plans maintained by the Employer must use the same Limitation Year.
If the Limitation Year is amended to a different 12 consecutive month period,
the new Limitation Year must begin on a date within the Limitation Year in
which the amendment is made.
1.46 Master Or Prototype Plan - A plan, the form of which is the subject of
a favorable opinion letter from the Internal Revenue Service.
1.47 Matching Contribution - An Employer contribution made to this or any
other defined contribution plan on behalf of a Participant on account of an
Employee Voluntary Contribution made by such Participant, or on account of
a Participant's Elective Deferral, under a Plan maintained by the Employer.
1.48 Maximum Permissible Amount - The maximum Annual Addition that may be
contributed or allocated to a Participant's account under the plan for any
Limitation Year shall not exceed the lesser of:
(a) the Defined Contribution Dollar Limitation, or
(b) 25% of the Participant's Compensation for the Limitation Year.
The compensation limitation referred to in (b) shall not apply to any
contribution for medical benefits [within the meaning of Code Section 401(h)
or Code Section 419A(f)(2)] which is otherwise treated as an Annual Addition
under Code Section 415(l)(1) or 419(d)(2). If a short Limitation Year is
created because of an amendment changing the Limitation Year to a different
12 consecutive month period, the Maximum Permissible Amount will not exceed
the Defined Contribution Dollar Limitation multiplied by the following
fraction: Number of months in the short Limitation Year divided by 12.
1.49 Net Profit - The current and accumulated operating earnings of the
Employer before Federal and State income taxes, excluding nonrecurring or
unusual items of income, and before contributions to this and any other
qualified plan of the Employer. Alternatively, the Employer may fix
another definition in the Adoption Agreement.
1.50 Normal Retirement Age - The age, set by the Employer in the Adoption
Agreement, at which a Participant may retire and receive his or her benefits
under the Plan.
1.51 Owner-Employee - A sole proprietor, or a partner owning more than 10%
of either the capital or profits interest of the partnership.
1.52 Paired Plans - Two or more Plans maintained by the Sponsor designed
so that a single or any combination of Plans adopted by an Employer will meet
the antidiscrimination rules, the contribution and benefit limitations, and
the Top-Heavy provisions of the Code.
1.53 Participant - Any Employee who has met the eligibility requirements
and is participating in the Plan.
1.54 Participant's Benefit - The account balance as of the last Valuation
Date in the calendar year immediately preceding the Distribution Calendar
Year (valuation calendar year) increased by the amount of any contributions
or forfeitures allocated to the account balance as of the dates in the
valuation calendar year after the Valuation Date and decreased by
distributions made in the valuation calendar year after the Valuation Date.
A special exception exists for the second distribution Calendar Year.
For purposes of this paragraph, if any portion of the minimum distribution
for the First Distribution Calendar Year is made in the second Distribution
Calendar Year on or before the Required, Beginning Date, the amount of the
minimum distribution made in the second distribution calendar vear shall
be treated as if it had been made in the immediately preceding Distribution
Calendar Year.
1.55 Permissive Aggregation Group - Used for Top-Heavy testing purposes, it
is the Required Aggregation Group of plans plus any other plan or plans of
the Employer which, when considered as a group with the Required Aggregation
Group, A would continue to satisfy the requirements of Code Sections 401(a)
(4) and 410.
1.56 Plan - The Employer's retirement plan as embodied herein and in the
Adoption Agreement.
1.57 Plan Administrator - The Employer.
1.58 Plan Year - The 12 consecutive month period designated by the Employer
in the Adoption Agreement.
1.59 Present Value - Used for Top-Heavy test and determination purposes,
when determining the Present Value of accrued benefits, with respect to any
Defined Benefit Plan maintained by the Employer, interest and mortality rates
shall be determined in accordance with the provisions of the respective
plan. If applicable, interest and mortality assumptions will be specified
in Section II of the Adoption Agreement.
1.60 Projected Annual Benefit - Used to test the maximum benefit which may
be obtained from a combination of retirement plans, it is the annual
retirement benefit (adjusted to an actuarial equivalent straight life
annuity if such benefit is expressed in a form other than a straight life
annuity or Qualified Joint and Survivor Annuity) to which the Participant
would be entitled under the terms of a Defined Benefit Plan or plans,
assuming:
(a) the Participant will continue employment until Normal Retirement Age
under the plan (or current age, if later), and
(b) the Participant's Compensation for the current Limitation Year and
all other relevant factors used to determine benefits under the plan will
remain constant for all future Limitation Years.
1.61 Qualified Deferred Compensation Plan Any pension, profit-sharing,
stock bonus, or other plan which meets the requirements of Code Section 401
and includes a trust exempt from tax under Code Section 501(a) or any annuity
plan described in Code Section 403(a).
An Eligible Retirement Plan is an individual retirement account (IRA) as
described in Code Section 408(a), an individual retirement annuity (IRA) as
described in Code Section 408(b), an annuity plan as described in Code
Section 403(a), or a qualified trust as described in Code Section 401(a),
which accepts Eligible Rollover Distributions. However in the case of an
Eligible Rollover Distribution to a Surviving Spouse, an Eligible Retirement
Plan is an individual retirement account or individual retirement annuity.
1.62 Qualified Domestic Relations Order - A QDRO is a signed Domestic
Relations Order issued by a State Court which creates, recognizes or assigns
to an alternate payee(s) the right to receive all or part of a Participant's
Plan benefit and which meets the requirements of Code Section 414(p). An
alternate payee is a Spouse, former Spouse, child, or other dependent who is
treated as a beneficiary under the Plan as a result of the QDRO.
1.63 Qualified Early Retirement Age - For purposes of paragraph
8.9 Qualified Early Retirement Age is the latest of:
(a) the earliest date, under the Plan on which the Participant may
elect to receive retirement benefits, or
(b) the first day of the 120th month beginning before the Participant
reaches Normal Retirement Age, or
(c) the date the Participant begins participation.
1.64 Qualified Joint And Survivor Annuity - An immediate annuity for the
life of the Participant with a survivor annuity for the life of the
Participant's Spouse which is at least one-half of but not more than the
amount of the annuity payable during the joint lives of the Participant and
the Participant's Spouse. The exact amount of the Survivor Annuity is to
be specified by the Employer in the Adoption Agreement. If not designated by
the Employer, the Survivor Annuity will be 1/2 of the amount paid to the
Participant during his or her lifetime. The Qualified Joint and Survivor
Annuity will be the amount of benefit which can be provided by the
Participant's Vested Account Balance.
1.65 Qualified Matching Contribution - Matching Contributions which when
made are subject to the distribution and nonforfeitability requirements
under Code Section 401(k).
1.66 Qualified Non-Elective Contributions - Contributions (other than
Matching Contributions or Qualified Matching Contributions) made by the
Employer and allocated to Participants' accounts that the Participants may
not elect to receive in cash until distributed from the Plan; that are
nonforfeitable when made; and that are distributable only in accordance with
the distribution provisions that are applicable to Elective Deferrals and
Qualified Matching Contributions.
1.67 Qualified Voluntary Contribution - A tax-deductible voluntary
Employee contribution. These contributions may no longer be made to the Plan.
1.68 Required Aggregation Group - Used for Top-Heavy testing purposes, it
consists of:
(a) each qualified plan of the Employer in which at least one Key
Employee participates or participated at any time during the determination
period (regardless of whether the plan has terminated), and
(b) any other qualified plan of the Employer which enables a plan
described in (a) to meet the requirements of Code Sections 401(a)(4) or
410.
1.69 Required Beginning Date - The date on which a Participant is required
to take his or her first minimum distribution under the Plan. The rules are
set forth at paragraph 7.5.
1.70 Rollover Contribution - A contribution made by a Participant of an
amount distributed to such Participant from another Qualified Deferred
Compensation Plan in accordance with Code Sections 402(a)(5), (6), and (7).
An Eligible Rollover Distribution is any distribution of all or anv portion
of the balance to the credit of the Participant except that an Eligible
Rollover Distribution does not include:
(a) 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 Participant or the joint lives (or joint life
expectancies) of the Participant and the Participant's Designated Beneficiary,
or for a specified period of ten years or more;
(b) any distribution to the extent such distribution is required under
Code Section 401 (a)(9); and
(c) 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).
A Direct Rollover is a payment by the plan to the Eligible Retirement
Plan specified by the Participant.
1.71 Salary Savings Agreement - An agreement between the Employer and a
participating Employee where the Employee authorizes the Emplover to
withhold a specified percentage of his or her Compensation for deposit to
the Plan on behalf of such Employee.
1.72 Self-Employed Individual - An individual who has Earned Income for
the taxable year from the trade or business for which the Plan is established
including an individual who would have had Earned Income but for the fact
that the trade or business had no Net Profit for the taxable year.
1.73 Service - The period of current or prior employment with the Employer.
If the Employer maintains a plan of a predecessor employer, Service for such
predecessor shall be treated as Service for the Employer.
1.74 Shareholder Employee - An Employee or Officer who owns [or is
considered as owning within the meaning of Code Section 318(a)(1)], on any
day during the taxable year of an electing small business corporation
(S Corporation), more than 5% of such corporation's outstanding stock.
1.75 Simplified Employee Pension Plan - An individual retirement account
which meets the requirements of Code Section 408(k), and to which the
Employer makes contributions pursuant to a written formula. These plans are
considered for contribution limitation and Top-Heavy testing purposes.
1.76 Sponsor - PNC BANK, NATIONAL ASSOCIATION, or any successor(s) or assign
(s).
1.77 Spouse (Surviving Spouse) - The Spouse or Surviving Spouse of the
Participant, provided that a former Spouse will be treated as the Spouse or
Surviving Spouse and a current Spouse will not be treated as the Spouse or
Surviving Spouse to the extent provided under a Qualified Domestic Relations
Order as described in Code Section 414(p).
1.78 Super Top-Heavy Plan - A Plan described at paragraph 1. 81 under which
the Top-Heavy Ratio [as defined at paragraph 1.82]exceeds 90%.
1.79 Taxable Wage Base - For plans with an allocation formula which takes
into account the Employer's contribution under the Federal Insurance
Contributions Act (FICA), the maximum amount of earnings which may be
considered wages for such Plan Year under the Social Security Act [Code
Section 3121(a)(1)], or the amount elected by the Employer in the Adoption
Agreement.
1.80 Top-Heavy Determination Date - For any Plan Year subsequent to the
first Plan Year, the last day of the preceding Plan Year. For the first
Plan Year of the Plan, the last day of that year.
1.81 Top-Heavy Plan - For any Plan Year beginning after 1983, the Employer's
Plan is top-heavy if any of the following conditions exist:
(a) If the Top-Heavy Ratio for the Employer's Plan exceeds 60% and this
Plan is not part of any required Aggregation Group or Permissive Aggregation
Group of Plans.
(b) If the Employer's plan is a part of a Required Aggregation Group of
plans but not part of a Permissive Aggregation Group and the Top-Heavy Ratio
for the group of plans exceeds 60 %.
(c) If the Employer's plan is a part of a Required Aggregation Group and
part of a Permissive Aggregation Group of plans and the Top-Heavy Ratio for
the Permissive Aggregation Group exceeds 60%.
1.82 Top-Heavy Ratio
(a) If the Employer maintains one or more Defined Contribution plans
(including any Simplified Employee Pension Plan) and the Employer has not
maintained any Defined Benefit Plan which during the 5-year period ending on
the Determination Date(s) has or has had accrued benefits, the Top-Heavy
Ratio for this Plan alone, or for the Required or Permissive Aggregation
Group as appropriate, is a fraction,
(1) the numerator of which is the sum of the account balances of all Key
Employees as of the Determination Date(s) [including any part of any account
balance distributed in the 5-year period ending on the Determination
Date(s)], and
(2) the denominator of which is the sum of all account balances
[including any part of any account balance distributed in the 5-year period
ending on the Determination Date(s)], both computed in accordance with Code
Section 416 and the regulations thereunder.
Both the numerator and denominator of the Top-Heavy Ratio are increased to
reflect any contribution not actually made as of the Determination Date, but
which is required to be taken into account on that date under Code Section
416 and the regulations thereunder.
(b) If the Employer maintains one or more Defined Contribution Plans
(including any Simplified Employee Pension Plan) and the Employer maintains
or has maintained one or more Defined Benefit Plans which during the 5-year
period ending on the Determination Date(s) has or has had any accrued
benefits, the Top-Heavy Ratio for any Required or Permissive Aggregation
Group as appropriate is a fraction, the numerator of which is the sum of
account balances under the aggregated Defined Contribution Plan or Plans for
all Key Employees, determined in accordance with (a) above, and the Present
Value of accrued benefits under the aggregated Defined Benefit Plan or Plans
for all Key Employees as of the Determination Date(s), and the denominator
of which is the sum of the account balances under the aggregated Defined
Contribution Plan or Plans for all Participants, determined in accordance
with (a) above, and the Present Value of accrued benefits under the Defined
Benefit Plan or Plans for all Participants as of the Determination Date(s),
all determined in accordance with Code Section 416 and the regulations
thereunder. The accrued benefits under a Defined Benefit Plan in both the
numerator and denominator of the Top-Heavy Ratio are increased for any
distribution of an accrued benefit made in the 5-year period ending on the
Determination Date.
(c) For purposes of (a) and (b) above, the value of account balances and
the Present Value of accrued benefits will be determined as of the most
recent Valuation Date that falls within or ends with the 12-month period
ending on the Determination Date, except as provided in Code Section 416 and
the regulations thereunder for the first and second plan years of a Defined
Benefit Plan. The account balances and accrued benefits of a participant (1)
who is not a Key Employee but who was a Key Employee in a prior year, or (2)
who has not been credited with at least one hour of service with any Employer
maintaining the Plan at any time during the 5-year period ending on the
Determination Date will be disregarded. The calculation of the Top-Heavy
Ratio, and the extent to which distributions, rollovers, and transfers are
taken into account will be made in accordance with Code Section 416 and the
regulations thereunder. Qualified Voluntary Employee Contributions will not
be taken into account for purposes of computing the Top-Heavy Ratio. When
aggregating plans the value of account balances and accrued benefits will be
calculated with reference to the Determination Dates that fall within the
same calendar year. The accrued benefit of a Participant other than a Key
Employee shall be determined under (1) the method, if any, that uniformly
applies for accrual purposes under all Defined Benefit Plans maintained by
the Employer, or (2) 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 Code Section 41 1 (b)(1)(C).
1.83 Top-Paid Group The group consisting of the top 20% of Employees when
ranked on the basis of Compensation paid during such year. For purposes of
determining the number of Employees in the group (but not who is in it),
the following Emplovees shall be excluded:
(a) Employees who have not completed 6 months of Service.
(b) Employees who normally work less than 17-1/2 hours per week.
(c) Employees who normally do not work more than 6 months during any year.
(d) Employees who have not attained age 21.
(e) Employees included in a collective bargaining unit, covered by an
agreement between employee representatives and the Employer, where retirement
benefits were the subject of good faith bargaining and provided that 90% or
more of the Employer's Employees are covered by the agreement.
(f) Employees who are nonresident aliens and who receive no earned income
which constitutes income from sources within the United States.
1.84 Transfer Contribution - A non-taxable transfer of a Participant's
benefit directly from a Qualified Deferred Compensation Plan to this Plan.
1.85 Trustee - The Sponsor of this Prototype Plan shall serve as Trustee.
1.86 Valuation Date - The last day of the Plan Year or such other date as
agreed to by the Employer and the Trustee/Custodian on which Participant
accounts are revalued in accordance with Article V hereof. For Top-Heavy
purposes, the date selected by the Employer as of which the Top-Heavy Ratio
is calculated.
1.87 Vested Account Balance - The aggregate value of the Participant's
Vested Account Balances derived from Employer and Employee contributions
(including Rollovers), whether vested before or upon death, including the
proceeds of insurance contracts, if any, on the Participant's life. The
provisions of Article VIII shall apply to a Participant who is vested in
amounts attributable to Employer contributions, Employee contributions (or
both) at the time of death or distribution.
1.88 Voluntary Contribution - An Employee contribution made to the Plan by
or on behalf of a Participant that is included in the Participant's gross
income in the year in which made and that is maintained under a separate
account to which earnings and losses are, allocated.
1.89 Welfare Benefit Fund - Any fund that is part of a plan of the Employer,
or has the effect of a plan, through which the Employer provides welfare
benefits to Employees or their beneficiaries. For these purposes, Welfare
Benefits means any benefit other than those with respect to which Code
Section 83(h) (relating to transfers of property in connection with the
performance of services), Code Section 404 (relating to deductions for
contributions to an Employee's trust or annuity and Compensation under a
deferred payment plan), Code Section 404A (relating to certain foreign
deferred compensation plans) apply. A "Fund" is any social club, voluntary
employee benefit association, supplemental unemployment benefit trust or
qualified group legal service organization described in Code Section 501(c)
(7), (9), (17) or (20); any trust, corporation, or other organization not
exempt from income tax, or to the extent provided in regulations, any account
held for an Employer by any person.
1.90 Year Of Service - A 12 consecutive month period during which an
Employee is credited with not less than 1,000 (or such lesser number as
specified by the Employer in the Adoption Agreement) Hours of Service.
ARTICLE II
ELIGIBILITY REQUIREMENTS
2.1 Participation - Employees who meet the eligibility requirements in the
Adoption Agreement on the Effective Date of the Plan shall become Participants
as of the Effective Date of the Plan. If so elected in the Adoption
Agreement, all Employees employed on the Effective Date of the Plan may
participate, even if they have not satisfied the Plan's specified eligibility
requirements. Other Employees shall become Participants on the Entry Date
coinciding with or immediately following the date on which they meet the
eligibility requirements. The Employee must satisfy the eligibility
requirements specified in the Adoption Agreement and be employed on the
Entry Date to become a Participant in the Plan. In the event an Employee
who is not a member of the eligible class of Employees becomes a member of
the eligible class, such Employee shall participate immediately if such
Employee has satisfied the minimum age and service requirements and would
have previously become a Participant had he or she been in the eligible
class. A former Participant shall again become a Participant upon
returning to the employ of the Employer at the next Entry Date or if
earlier, the next Valuation Date. For this purpose, Participant's
Compensation and Service shall be considered from date of rehire.
2.2 Change In Classification Of Employment - In the event a Participant
becomes ineligible to participate because he or she is no longer a member of
an eligible class of Employees, such Employee shall participate upon his or
her return to an eligible class of Employees.
2.3 Computation Period - To determine Years of Service and Breaks in
Service for purposes of eligibility, the 12 consecutive month period shall
commence on the date on which an Employee first performs an Hour of Service
for the Employer and each anniversary thereof, such that the succeeding
12 consecutive month period commences with the employee's first anniversary
of employment and so on. If, however, the period so specified is one year
or less, the succeeding 12 consecutive month period shall commence on the
first day of the Plan Year prior to the anniversary of the date they first
performed an Hour of Service regardless of whether the Employee is entitled
to be credited with 1,000 (or such lesser number as specified by the Employer
in the Adoption Agreement) Hours of Service during their first employment
year.
2.4 Employment Rights - Participation in the Plan shall not confer upon a
Participant any employment rights, nor shall it interfere with the Employer's
right to terminate the employment of any Employee at any time.
2.5 Service With Controlled Groups - All Years of Service with other
members of a controlled group of corporations [as defined in Code Section
414(b)], trades or businesses under common control [as defined in Code
Section 414(c)], or members of an affiliated service group [as defined in
Code Section 414(m)] shall be credited for purposes of determining an
Employee's eligibility to participate.
2.6 Owner-Employees - If this Plan provides contributions or benefits for
one or more Owner-Employees who control both the business for which this Plan
is established and one or more other trades or businesses, this Plan and the
Plan established for other trades or businesses must, when looked at as a
single Plan, satisfy Code Sections 401(a) and (d) for the Employees of this
and all other trades or businesses.
If the Plan provides contributions or benefits for one or more Owner-
Employees who control one or more other trades or businesses, the Employees
of the other trades or businesses must be included in a Plan which satisfies
Code Sections 40 1 (a) and (d) and which provides contributions and benefits
not less favorable than provided for Owner-Employees under this Plan.
If an individual is covered as an Owner-Employee under the plans of two or
more trades or businesses which are not controlled, and the individual
controls a trade or business, then the contributions or benefits of the
Employees under the plan of the trades or businesses which are controlled
must be as favorable as those provided for him or her under the most
favorable plan of the trade or business which is not controlled.
For purposes of the preceding sentences, an Owner-Employee, or two or more
Owner-Employees, will be considered to control a trade or business if the
Owner-Employee, or two or more Owner-Employees together:
(a) own the entire interest in an unincorporated trade or business, or
(b) in the case of a partnership, own more than 50% of either the capital
interest or the profits interest in the partnership.
For purposes of the preceding sentence, an Owner-Employee, or two or more
Owner-Employees shall be treated as owning any interest in a partnership
which is owned, directly or indirectly, by a partnership which such Owner
Employee, or such two or more Owner-Employees, are considered to control
within the meaning of the preceding sentence.
2.7 Leased Employees - Any Leased Employee shall be treated as an Employee
of the recipient Employer; however, contributions or benefits provided 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 Emplovee of the recipient if
such Employee is covered by a money purchase pension plan providing:
(a) a non-integrated Employer contribution rate of at least 10% of
Compensation, [as defined in Code Section 415(c)(3) but including amounts
contributed bv the Employer pursuant to a salary reduction agreement, which
are excludable from the Employee's gross income under a cafeteria plan
covered by Code Section 125, a cash or deferred profit-sharing plan under
Section 401(k) of the Code, a Simplified Employee Pension Plan under Code
Section 402(h)(1)(B) and a tax-sheltered annuity under Code Section 403(b)],
(b) immediate participation, and
(c) full and immediate vesting.
This exclusion is only available if Leased Employees do not constitute more
than twenty percent (20%) of the recipient's non-highly compensated work
force.
2.8 Thrift Plans - If the Employer makes an election in the Adoption
Agreement to require Voluntary Contributions to participate in this Plan,
the Employer shall notify each eligible Employee in writing of his or her
eligibility for participation at least 30 days prior to the appropriate
Entry Date. The Employee shall indicate his or her intention to join the
Plan by authorizing the Employer to withhold a percentage of his or her
Compensation as provided in the Plan. Such authorization shall be returned
to the Employer at least 10 days prior to the Employee's Entry Date.
The Employee may decline participation by so indicating on the enrollment
form or by failure to return the enrollment form to the Employer prior to
the Employee's Entry Date. If the Employee declines to participate, such
Employee shall be given the opportunity to join the Plan on the next Entry
Date. The taking of a Hardship Withdrawal under the provisions of paragraph
6.9 will impact the Participant's ability to make these contributions.
ARTICLE III
EMPLOYER CONTRIBUTIONSS
3.1 Amount - The Employer intends to make periodic contributions to the
Plan in accordance with the formula or formulas selected in the Adoption
Agreement. However, the Employer's contribution for any Plan Year shall be
subject to the limitations on allocations contained in Article X.
3.2 Expenses And Fees - The Employer shall also be authorized to reimburse
the Fund for all expenses and fees incurred in the administration of the Plan
or Trust/Custodial Account and paid out of the assets of the Fund. Such
expenses shall include, but shall not be limited to, fees for professional
services, printing and postage. Brokerage commissions may not be reimbursed.
3.3 Responsibility For Contributions Neither the Trustee/Custodian nor
the Sponsor shall be required to determine if the Employer has made a
contribution or if the amount contributed is in accordance with the Adoption
Agreement or the Code. The Employer shall have sole responsibility in this
regard. The Trustee/Custodian shall be accountable solely for contributions
actually received by it, within the limits of Article XI.
3.4 Return Of Contributions - Contributions made to the Fund by the
Employer shall be irrevocable except as provided below:
(a) Any contribution forwarded to the Trustee/Custodian because of
a mistake of fact, provided that the contribution is returned to
the Employer within one year of the contribution.
(b) In the event that the Commissioner of Internal Revenue determines that
the Plan is not initially qualified under the Internal Revenue Code, any
contribution made incident to that initial qualification by the Employer must
be returned to the Employer within one year after the date the initial
qualification is denied, but only if the application for the qualification is
made by the time prescribed by law for filing the Employer's return for the
taxable year in which thePlan is adopted, or such later date as the Secretary
of the Treasury may prescribe.
(c) Contributions forwarded to the Trustee/Custodian are presumed
to be deductible and are conditioned on their deductibility. Contributions
which are determined to not be deductible will be returned to the
Employer.
ARTICLE IV
EMPLOYEE CONTRIBLMONS
4.1 Voluntary Contributions - An Employee may make Voluntary Contributions
to the Plan established hereunder if so authorized by the Employer in a
uniform and nondiscriminatory manner. Such contributions are subject to the
limitations on Annual Additions and are subject to antidiscrimination testing.
4.2 Qualified Voluntary Contributions A Participant may no longer
make Qualified Voluntary Contributions to the Plan. Amounts already
contributed may remain in the Trust Fund/Custodial Account until distributed
to the Participant. Such amounts will be maintained in a separate
account which will be nonforfeitable at all times. The account will share
in the gains and losses of the Trust in the same manner as described at
paragraph 5.4 of the Plan. No part of the Qualified Voluntary Contribution
account will be used to purchase life insurance. Subject to Article VIII,
Joint and Survivor Annuity Requirements (if applicable), the Participant
may withdraw any part of the Qualified Voluntary Contribution account by
making a written application to the Plan Administrator.
4.3 Rollover Contribution - Unless provided otherwise in the Adoption
Agreement, a Participant may make a Rollover Contribution to any Defined
Contribution Plan established hereunder of all or any part of an amount
distributed or distributable to him or her from a Qualified Deferred
Compensation Plan provided:
(a) the amount distributed to the Participant is deposited to the Plan
no later than the sixtieth day after such distribution was received by the
Participant,
(b) the amount distributed is not one of a series of substantially equal
periodic payments made for the life (or life expectancy) of the Participant
or the joint lives (or joint life expectancies) of the Participant and the
Participant's Designated Beneficiary, or for a specified period of ten years
or more;
(c) the amount distributed is not required under Code Section 401(a)(9);
(d) if the amount distributed included property such property is rolled
over, or if sold the proceeds of such property may be rolled over,
(e) the amount distributed is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect
to employer securities).
In addition, if the Adoption Agreement allows Rollover Contributions, the
Plan will also accept any Eligible Rollover Distribution (as defined at
paragraph 1.70) directly to the Plan.
Rollover Contributions, which relate to distributions prior to January 1,
1993, must be made in accordance with paragraphs (a) through (e) and
additionally meet the requirements of paragraph (f):
(f) The distribution from the Qualified Deferred Compensation Plan
constituted the Participant's entire interest in such Plan and was
distributed within one taxable year to the Participant:
(1) on account of separation from Service, a Plan termination, or in the
case of a profit-sharing or stock bonus plan, a complete discontinuance of
contributions under such plan within the meaning of Code Section 402(a)(6)
(A), or
(2) in one or more distributions which constitute a qualified lump sum
distribution within the meaning of Code Section 402(e)(4)(A), determined
without reference to subparagraphs (B) and (H).
Such Rollover Contribution may also be made through an individual retirement
account qualified under Code Section 408 where the IRA was used as a conduit
from the Qualified Deferred Compensation Plan, the Rollover Contribution is
made in accordance with the rules provided under paragraphs (a) through (e)
and the Rollover Contribution does not include any regular IRA contributions,
or earnings thereon, which the Participant may have made to the IRA.
Rollover Contributions, which relate to distributions prior to January 1,
1993, may be made through an IRA in accordance with paragraphs (a) through
(f) and additional requirements as provided in the previous sentence. The
Trustee/Custodian shall not be held responsible for determining the tax free
status of any Rollover Contribution made under this Plan.
4.4 Transfer Contribution - Unless provided otherwise in the Adoption
Agreement a Participant may, subject to the provisions of paragraph 4.5, also
arrange for the direct transfer of his or her benefit from a Qualified
Deferred Compensation Plan to this Plan. For accounting and record keeping
purposes, Transfer Contributions shall be treated in the same manner as
Rollover Contributions.
In the event the Employer accepts a Transfer Contribution from a Plan in
which the Employee was directing the investments of his or her account, the
Employer may continue to permit the Employee to direct his or her investments
in accordance with paragraph 13.7 with respect only to such Transfer
Contribution. Notwithstanding the above, the Employer may refuse to accept
such Transfer Contributions.
4.5 Employer Approval Of Transfer Contributions - The Employer maintaining
a Safe-Harbor Profit-Sharing Plan in accordance with the provisions of
paragraph 8.7, acting in a nondiscriminatory manner, may in its sole
discretion refuse to allow Transfer Contributions to its profit-sharing plan,
if such contributions are directly or indirectly being transferred from a
defined benefit plan, a money purchase pension plan (including a target
benefit plan), a stock bonus plan, or another profit-sharing plan which would
otherwise provide for a life annuity form of payment to the Participant.
4.6 Elective Deferrals - A Participant may enter into a Salary Savings
Agreement with the Employer authorizing the Employer to withhold a portion
of such Participant's Compensation not to exceed $7,000 per calendar year as
adjusted under Code Section 415(d) or, if lesser, the percentage of
Compensation specified in the Adoption Agreement and to deposit such amount
to the Plan. No Participant shall be permitted to have Elective Deferrals
made under this Plan or any other qualified plan maintained by the Employer,
during any taxable year, in excess of the dollar limitation contained in Code
Section 402(g) in effect at the beginning of such taxable year. Thus, the
$7,0001imit may be reduced if a Participant contributes pre-tax contributions
to qualified plans of this or other Employers. Any such contribution shall
be credited to the Employee's Salary Savings Account. Unless otherwise
specified in the Adoption Agreement, a Participant may amend his or her
Salary Savings Agreement to increase, decrease or terminate the percentage
upon 30 days written notice to the Employer. If a Participant terminates his
or her agreement, such Participant shall not be permitted to put a new
Salary Savings Agreement into effect until the first pay period in the next
Plan Year, unless otherwise stated in the Adoption Agreement. The Employer
may also amend or terminate said 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 withheld for a Plan
Year, such Participant may authorize the Employer upon 30 days notice to
withhold a supplemental amount up to 100% of his or her Compensation for
one or more pay periods. In no event may the sum of the amounts withheld
under the Salary Savings Agreement plus the supplemental withholding exceed
25 % of a Participant's Compensation for a Plan Year. The Employer may
also recharacterize, as after-tax Voluntary Contributions all or any
portion of amounts previously withheld under any Salary Savings Agreement
within the Plan Year as provided for at paragraph 10.9. This may be done to
insure that the Plan will meet one of the antidiscrimination tests under Code
Section 401(k). Elective Deferrals shall be deposited in the Trust within
30 days after being withheld from the Participant's pay.
4.7 Required Voluntary Contributions - If the Employer makes a thrift
election in the Adoption Agreement, each eligible Participant shall be
required to make Voluntary Contributions to the Plan for credit to his or
her account as provided in the Adoption Agreement. Such Voluntary
Contributions shall be withheld from the Employee's Compensation and shall
be transmitted by the Employer to the Trustee/Custodian as agreed between
the Employer and Trustee/Custodian. A Participant may discontinue
participation or change his or her Voluntary Contribution percentage by so
advising the Employer at least 10 days prior to the date on which such
discontinuance or change is to be effective. If a Participant discontinues
his or her Voluntary Contributions, such Participant may not again authorize
Voluntary Contributions for a period of one year from the date of
discontinuance. A Participant may voluntarily change his or her Voluntary
Contribution percentage once during any Plan Year and may also agree to
have a reduction in his or her contribution, if required to satisfy the
requirements of the ACP test.
4.8 Direct Rollover Of Benefits - Notwithstanding any provision of the Plan
to the contrary that would otherwise limit a Participant's election under
this paragraph, for distributions made on or after January 1, 1993, a
Participant 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 Participant in a
Direct Rollover. Any portion of a distribution which is not paid directly
to an Eligible Retirement Plan shall be distributed to the Participant. For
purposes of this paragraph, a Surviving Spouse or a Spouse or former Spouse
who is an alternate payee under a Qualified Domestic Relations Order as
defined in Code Section 414(p), will be permitted to elect to have any
Eligible Rollover Distribution paid directly to an individual retirement
account (IRA) or an individual retirement annuity(IRA).
The plan provisions otherwise applicable to distributions continue to apply
to Rollover and Transfer Contributiors
ARTICLE V
PARTICIPANT ACCOUNTS
5.1 Separate Accounts - The Employer shall establish a separate bookkeeping
account for each Participant showing the total value of his or her interest
in the Fund. Each Participant's account shall be separated for bookkeeping
purposes into the following sub-accounts:
(a) Employer contributions.
(1) Matching Contributions.
(2) Qualified Matching Contributions.
(3) Qualified Non-Elective Contributions.
(4) Discretionary Contributions.
(5) Elective Deferrals.
(b) Voluntary Contributions (and additional amounts including required
contributions and, if applicable either repayments of loans previously
defaulted on and treated as "deemed distributions" on which a tax report has
been issued, and amounts paid out upon a separation from service which have
been included in income and which are repaid after being re-hired by the
Employer).
(c) Qualified Voluntary Contributions (if the Plan previously accepted
these).
(d) Rollover Contributions and Transfer Contributions.
5.2 Adjustments To Participant Accounts - As of each Valuation Date of the
Plan, the Employer shall add to each account:
(a) the Participant's share of the Employer's contribution and forfeitures
as determined in the Adoption Agreement,
(b) any Elective Deferrals, Voluntary, Rollover or Transfer Contributions
made by the Participant,
(c) any repayment of amounts previously paid out to a Participant upon a
separation from Service and repaid by the Participant since the last
Valuation Date, and
(d) the Participant's proportionate share of any investment earnings and
increase in the fair market value of the Fund since the last Valuation Date,
as determined at paragraph 5.4.
The Employer shall deduct from each account:
(e) any withdrawals or payments made from the Participant's account since
the last Valuation Date, and
(f) the Participant's proportionate share of any decrease in the fair
market value of the Fund since the last Valuation Date, as determined at
paragraph 5.4.
5.3 Allocating Employer Contributions - The Emplyer's contribution shall
be allocated to Participants in accordance with the allocation formula
selected by the Employer in the Adoption Agreement, and the mini contribution
and allocation requirements for Top-Heavy Plans. Beginning with the 1990
Plan Year and thereafter, for plans on Standardized Adoption Agreement 001,
Participants who are credited with more than 500 Hours of Service or are
employed on the last day of the Plan Year must receive a full allocation of
Employer contributions. In Nonstandardized Adoption Agreement 002, Employer
contributions shall be allocated to the accounts of Participants employed by
the Employer on the last day of the Plan Year unless indicated otherwise in
the Adoption Agreement. In the case of a non-Top-Heavy, Nonstandardized Plan,
Participants must also have completed a Year of Service unless otherwise
specified in the Adoption Agreement. For Nonstandardized Adoption Agreement
002, the Employer may only apply the last day of the Plan Year and Year of
Service requirements if the Plan satisfies the requirements of Code Sections
401(a)(26) and 410(b) and the regulations thereunder including the exception
for 401(k) plans. If, when applying the last day and Year of Service
requirements, the Plan fails to satisfy the aforementioned requirements,
additional Participants will be eligible to receive an allocation of
Employer Contributions until the requirements are satisfied. Participants
who are credited with a Year of Service, but not employed at Plan Year end,
are the first category of additional Participants eligible to receive an
allocation. If the requirements are still not satisfied, Participants
credited with more than 500 Hours of Service and employed at Plan Year end
are the next category of Participants eligible to receive an allocation.
Finally, if necessary to satisfy the said requirements, any Participant
credited with more than 500 Hours of Service will be eligible for an
allocation of Employer Contributions. The Service requirement is not
applicable with respect to any Plan Year during which the Employer's Plan
is Top-Heavy.
5.4 Allocating Investment Earnings And Losses - A Participant's share of
investment earnings and any increase or decrease in the fair market value of
the Fund shall be based on the proportionate value of all active accounts
(other than accounts with segregated investments) as of the last Valuation
Date less withdrawals since the last Valuation Date. If Employer and/or
Employee contributions are made monthly, quarterly, or on some other
systematic basis, the adjusted value of such accounts for allocation of
investment income and gains or losses shall include one-half the
contributions for such period. If Employer and/or Employee contributions
are not made on a systematic basis, it is assumed that they are made at the
end of the valuation period and therefore will not receive an allocation of
investment earnings and gains or losses for such period. Account balances
not yet forfeited shall receive an allocation of earnings and/or losses.
Accounts with segregated investments shall receive only the income or loss
on such segregated investments.
5.5 Participant Statements - Upon completing the allocations described
above for the Valuation Date coinciding with the end of the Plan Year, the
Employer shall prepare a statement for each Participant showing the additions
to and subtractions from his or her account since the last such statement and
the fair market value of his or her account as of the current Valuation Date.
Employers so choosing may prepare Participant statements for each Valuation
Date.
ARTICLE VI
RETIREMENT BENEFITS AND DISTRIBUTIONS
6.1 Normal Retirement Benefits - A Participant shall be entitled to receive
the balance held in his or her account from Employer contributions upon
attaining Normal Retirement Age or at such earlier dates as the provisions
of this Article VI may allow. If the Participant elects to continue working
past his or her Normal Retirement Age, he or she will continue as an active
Plan Participant and no distribution shall be made to such Participant until
his or her actual retirement date unless the employer elects otherwise in
the Adoption Agreement, or a minimum distribution is required by law.
Settlement shall be made in the normal form, or if elected, in one of the
optional forms of payment provided below.
6.2 Early Retirement Benefits - If the Employer so provides in the Adoption
Agreement, an Early Retirement Benefit will be available to individuals who
meet the age and Service requirements. An individual who meets the Early
Retirement Age requirements and separates from Service, will become fully
vested, regardless of any vesting schedule which otherwise might apply. If
a Participant separates from Service before satisfying the age requirements.
but after having satisfied the Service requirement, the Participant will be
entitled to elect an Early Retirement benefit upon satisfaction of the age
requirement.
6.3 Benefits On Termination Of Employment
(a) If a Participant terminates employment prior to Normal Retirement Age,
such Participant shall be entitled to receive the vested balance held in his
or her account payable at Normal Retirement Age in the normal form, or if
elected, in one of the optional forms of payment provided hereunder. If
applicable, the Early Retirement Benefit provisions may be elected.
Notwithstanding the preceding sentence, a former Participant may, if allowed
in the Adoption Agreement, make application to the Employer requesting
early payment of any deferred vested and nonforfeitable benefit due.
(b) If a Participant terminates employment, and the value of that
Participant's Vested Account Balance derived from Employer and Employee
contributions is not greater than $3,500,the Participant may receive a lump
sum distribution of the value of the entire vested portion of such account
balance and the non-vested portion will be treated as a forfeiture. The
Employer shall continue to follow their consistent policy, as may be
established, regarding immediate cash-outs of Vested Account Balances of
$3,500 or less. For purposes of this Article, if the value of a Participant's
Vested Account Balance is zero, the Participant shall be deemed to have
received a distribution of such Vested Account Balance immediately following
termination. Likewise, if the Participant is reemployed prior to incurring
5 consecutive 1-year Breaks in Service they will be deemed to have immediately
repaid such distribution. For Plan Years beginning prior to 1989, a
Participant's Vested Account Balance shall not include Qualified Voluntary
Contributions. Notwithstanding the above, if the Employer maintains or has
maintained a policy of not distributing any amounts until the Participant's
Normal Retirement Age, the Employer can continue to uniformly apply such
policy.
(c) If a Participant terminates employment with a Vested Account Balance
derived from Employer and Employee contributions in excess of $3,500, and
elects (with his or her Spouse's consent, if required) to receive 100% of
the value of his or her Vested Account Balance in a lump sum, the non-vested
portion will be treated as a forfeiture. The Participant (and his or her
Spouse, if required) must consent to any distribution, when the Vested
Account Balance described above exceeds $3,500or if at the time of any prior
distribution it exceeded $3,500. For purposes of this paragraph, for Plan
Years beginning prior to 1989, a Participant's Vested Account Balance shall
not include Qualified Voluntary Contributions.
(d) Distribution of less than 100% of the Participant's Vested Account
Balance shall only be permitted if the Participant is fully vested upon
termination of employment.
(e) If a Participant who is not 100% vested receives or is deemed to
receive a distribution pursuant to this paragraph and resumes employment
covered under this Plan, the 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, the Participant's account shall be
restored to the value thereof at the time the distribution was made and may
further be increased by the Plan's income and investment gains and/or losses
on the undistributed amount from the date of distribution to the date of
repayment.
(f) A Participant shall also have the option, to postpone payment of
his or her Plan benefits until the first day of April following the calendar
year in which he or she attains age 70-1/2. Any balance of a Participant's
account resulting from his or her Employee contributions not previously
withdrawn, if any, may be withdrawn by the Participant immediately following
separation from Service.
(g) If a Participant ceases to be an active Employee as a result of a
Disability as defined at paragraph 1.21, such Participant shall be able to
make an application for a disability retirement benefit payment. The
Participant's account balance will be deemed "immediately distributable" as
set forth in paragraph 6.4, and will be fully vested pursuant to paragraph
9.2.
6.4 Restrictions On Immediate Distributions
(a) An account balance is immediately distributable if any part of the
account balance could be distributed to the Participant (or Surviving Spouse)
before the Participant attains (or would have attained if not deceased) the
later of the Normal Retirement Age or age 62.
(b) If the value of a Participant's Vested Account Balance derived from
Employer and Employee Contributions exceeds (or at the time of any prior
distribution exceeded) $3,500,and the account balance is immediately
distributable, the Participant and his or her Spouse (or where either the
Participant or the Spouse has died, the survivor) must consent to any
distribution of such account balance. The consent of the Participant and
the Spouse shall be obtained in writing within the 90-day period ending on
the annuity starting date, which is the first day of the first period for
which an amount is paid as an annuity or any other form. The Plan
Administrator shall notify the Participant and the Participant's Spouse of
the right to defer any distribution until the Participant's account balance
is no longer immediately distributable. Such notification shall include a
general description of the material features, and an explanation of the
relative values of, the optional forms of benefit available under the plan
in a manner that would satisfy the notice requirements of Code Section 417(a)
(3), and shall be provided no less than 30 days and no more than 90 days
prior to the annuity starting date.
(c) Notwithstanding the foregoing, only the Participant need consent to
the commencement of a distribution.in the form of a qualified Joint and
Survivor Annuity while the account balance is immediately distributable.
Furthermore, if payment in the form of a Qualified Joint and Survivor
Annuity is not required with respect to the Participant pursuant to
paragraph 8.7 of the Plan, only the Participant need consent to the
distribution of an account balance that is immediately distributable.
Neither the consent of the Participant nor the Participant's Spouse shall
be required to the extent that a distribution is required to satisfy Code
Section 401(a)(9) or Code Section 415. In addition, upon termination of
this Plan if the Plan does not offer an annuity option (purchased from a
commercial provider), the Participant's account balance may, without the
Participant's consent, be distributed to the Participant or transferred
to another Defined Contribution Plan [other than an employee stock ownership
plan as defined in Code Section 4975(e)(7)] within the same controlled group.
(d) For purposes of determining the applicability of the foregoing
consent requirements to distributions made before the first day of the first
Plan Year beginning after 1988, the Participant's Vested Account Balance
shall not include amounts attributable to Qualified Voluntary Contributions.
6.5 Normal Form Of Payment - The normal form of payment for a profit-
sharing plan satisfying the requirements of paragraph 8.7 hereof shall be a
lump sum with no option for annuity payments. For all other plans, the
normal form of payment hereunder shall be a Qualified Joint and Survivor
Annuity as provided under Article VIII. A Participant whose Vested Account
Balance derived from Employer and Employee contributions exceeds $3,500, or if
at the time of any prior distribution it exceeded S3,500, shall (with the
consent of his or her Spouse) have the right to receive his or her benefit in
a lump sum or in monthly, quarterly, semi-annual or annual payments from the
Fund over any period not extending beyond the life expectancy of the
Participant and his or her Beneficiary. For purposes of this paragraph,
for Plan Years prior to 1989, a Participant's Vested Account Balance shall
not include Qualified Voluntary Contributions. The normal form of payment
shall be automatic, unless the Participant files a written request with the
Employer prior to the date on which the benefit is automatically payable,
electing a lump sum or installment payment option. No amendment to the Plan
may eliminate one of the optional distribution forms listed above.
6.6 Commencement Of Benefits
(a) Unless the Participant elects otherwise, distribution of benefits
will begin no later than the 60th day after the close of the Plan Year in
which the latest of the following events occurs:
(1) the Participant attains age 65 (or normal retirement age if earlier),
(2) the 10th anniversary of the year in which the Participant commenced
participation in the Plan, or
(3) the Participant terminates Service with the Employer.
(b) Notwithstanding the foregoing, the failure of a Participant and
Spouse (if necessary) to consent to a distribution while a benefit is
immediately distributable, within the meaning of paragraph 6.4 ereof, shall
be deemed an election to defer commencement of payment of any benefit
sufficient to satisfy this paragraph.
6.7 Claims Procedures - Upon retirement, death, or other severance of
employment, the Participant or his or her representative may make application
to the Employer requesting payment of benefits due and the manner of payment.
If no application for benefits is made, the Employer shall automatically pay
any vested benefit due hereunder in the normal form at the time prescribed
at paragraph 6.4. If an application for benefits is made, the Employer shall
accept, reject, or modify such request and shall notify the Participant in
writing setting forth the response of the Employer and in the case of a
denial or modification the Employer shall:
(a) state the specific reason or reasons for the denial,
(b) provide specific reference to pertinent Plan provisions on which the
denial is based,
(c) provide a description of any additional material or information
necessary for the Participant or his representative to perfect the claim and
an explanation of why such material or information is necessary, and
(d) explain the Plan's claim review procedure as contained in this Plan.
In the event the request is rejected or modified, the Participant or his or
her representative may within 60 days following receipt by the Participant or
representative of such rejection or modification, submit a written request
for review by the Employer of its initial decision. Within 60 days
following such request for review, the Employer shall tender its final
decision in writing to the Participant or representative stating specific
reasons for such decision. If the Participant or representative is not
satisfied with the Employer's final decision, the Participant or representative
can institute an action in a federal court of competent jurisdiction; for
this purpose, process would be served on the Emplover.
6.8 In-Service Withdrawals - An Employee may withdraw all or any part of
the fair market value of his or her Mandatory Contributions, Voluntary
Contributions, Qualified Voluntary Contributions or Rollover Contributions,
upon written request to the Employer. Transfer Contributions, which originate
from a Plan meeting the safeharbor provisions of paragraph 8.7, may also be
withdrawn by an Employee upon written request to the Employer. Transfer
Contributions not meeting the safe-harbor provisions may only be withdrawn
upon retirement, death, Disability, termination or termination of the Plan,
and will be subject to Spousal consent requirements contained in Code
Sections 411(a)(11) and 417. No such withdrawals are permitted from a
money purchase plan until the participant reaches Normal Retirement Age.
Such request shall include the Participant's address, social security number,
birthdate, and amount of the withdrawal. If at the time a distribution of
Qualified Voluntary Contributions is received the Participant has not a
ttained age 59-1/2 and is not disabled, as defined at Code Section 22(e)(3),
the Participant will be subject to a federal income tax penalty, unless the
distribution is rolled over to a qualified plan or individual retirement plan
within 60 days of the date of distribution. A Participant may withdraw all
or any part of the fair market value of his or her pre-1987 Voluntary
Contributions with or without withdrawing the earnings attributable thereto.
Post-1986 Voluntary Contributions may only be withdrawn along with a portion
of the earnings thereon. The amount of the earnings to be withdrawn is
determined by using the formula: DA[1-(V/V+E)], where DA is the
distribution amount, V is the amount of Voluntary Contributions and V + E is
the amount of Voluntary Contributions plus the earnings attributable thereto.
A Participant withdrawing his or her other contributions prior to attaining
age 591/2, will be subject to a federal tax penalty to the extent that the
withdrawn amounts are includible in income. Unless the Employer provides
otherwise in the Adoption Agreement, any Participant in a profit-sharing plan
who is 100 % fully vested in his or her Employer contributions may withdraw
all or any part of the fair market value of any of such contributions that
have been in the account at least two years, plus the investment earnings
thereon, after attaining age 59-1/2 without separation from Service. Such
distributions shall not be eligible for redeposit to the Fund. A withdrawal
under this paragraph shall not prohibit such Participant from sharing in any
future Employer Contribution he or she would otherwise be eligible to share
in. A request to withdraw amounts pursuant to this paragraph must if
applicable, be consented to by the Participant's Spouse. The consent shall
comply with the requirements of paragraph 6.4 relating to immediate
distributions.
Elective Deferrals, Qualified Non-elective Contributions, and Qualified
Matching Contributions, and income allocable to each are not distributable to
a Participant or his or her Beneficiary or Beneficiaries, in accordance with
such Participant's or Beneficiary's or Beneficiaries' election, earlier than
upon separation from Service, death, or Disability. Such amounts may also
be distributed upon:
(a) Termination of the Plan without the establishment of another Defined
Contribution Plan.
(b) The disposition by a corporation to an unrelated corporation of
substantially all of the assets [within the meaning of Code Section 409(d)
(2)] used in a trade or business of such corporation if such corporation
continues to maintain this Plan after the disposition, but only with respect
to Employees who continue employment with the corporation acquiring such
assets.
(c) The disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary [within the meaning of Code Section
409(d)(3)] if such corporation continues to maintain this plan, but only with
respect to Employees who continue employment with such subsidiary.
(d) The attainmnent of age 59-1/2.
(e) The Hardship of the Participant as described in paragraph 6.9.
All distributions that may be made pursuant to one or more of the foregoing
distributable events are subject to the Spousal and Participant consent
requirements, if applicable, contained in Code Sections 401 (a)(11) and
417.
6.9 Hardship Withdrawal - If permitted by the Trustee/Custodian and the
Employer in the Adoption Agreement, a Participant may request a Hardship
withdrawal prior to attaining age 59-1/2. If the Participant has not
attained age 59-1/2, the Participant may be subject to a federal income tax
penalty. Such request shall be in writing to the Employer who shall have
sole authority to authorize a Hardship withdrawal, pursuant to the rules
below. Hardship withdrawals may include Elective Deferrals regardless of
when contributed and any earnings accrued and credited thereon as of the
last day of the Plan Year ending before July 1, 1989 and Employer related
contributions, including but not limited to Employer Matching Contributions.
plus the investment earnings thereon to the extent vested. Qualified
Matching Contributions, Qualified Non-Elective Contributions and Elective
Deferrals reclassified as Voluntary Contributions plus the investment
earnings thereon are only available for Hardship withdrawal prior to age 59-1/2
to the extent that they were credited to the Participant's
Account as of the last day of the Plan Year ending prior to July 1, 1989.
The Plan Administrator may limit withdrawals to Elective Deferrals and the
earnings thereon as stipulated above. Hardship withdrawals are subject to
the Spousal consent requirements contained in Code Sections 401 (a)(11)
and 417. Only the following reasons are valid to obtain Hardship withdrawal:
(a) medical expenses [within the meaning of Code Section 213(d)],
incurred or necessary for the medical care of the Participant, his or her
Spouse, children and other dependents,
(b) the purchase (excluding mortgage payments) of the principal residence
for the Participant,
(c) payment of tuition and related educational expenses for the next
twelve (12) months of post-secondary education for the Participant, his or
her Spouse, children or other dependents, or
(d) the need to prevent eviction of the Employee from or a foreclosure
on the mortgage of, the Employee's principal residence.
Furthermore, the following conditions must be met in order for a withdrawal
to be authorized:
(e) the Participant has obtained all distributions, other than hardship
distributions, and all nontaxable loans under all plans maintained by the
Employer,
(f) all plans maintained by the Employer, other than flexible benefit
plans under Code Section 125 providing for current benefits, provide that
the Employee's Elective Deferrals and Voluntary Contributions will be
suspended for twelve months after the receipt of the Hardship distribution,
(g) the distribution is not in excess of the amount of the immediate
and heavy financial need [(a) through (d) above], including amounts
necessary to pay any federal, state or local income tax or penalties
reasonably anticipated to result from the distribution, and
(h) all plans maintained by the Employer provide that an 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 Code Section 402(g) for such taxable year, less the
amount of such Employee's pre-tax contributions for the taxable year of the
Hardship distribution.
If a distribution is made at a time when a Participant has a nonforfeitable
right to less than 100% of the account balance derived from Emplover
contributions and the Participant may increase the nonforfeitable percentage
in the account:
(a) A separate account will be established for the Participant's interest
in the Plan as of the time of the distribution, and
(b) At any relevant time the Participant's nonforfeitable portion of the
separate account will be equal to an amount ("X') determined by the formula:
X = P [AB + (R X D)] - (R X D)
For purposes of applying the formula: 'P'is the nonforfeitable percentage at
the relevant time, "AB' is the account balance at the relevant time, "D" is
the amount of the distribution and 'R"is the ratio of the account balance
at the relevant time to the account balance after distribution.
ARTICLE VII
DISTRIBUTION REQUIREMENTS
7.1 Joint And Survivor Annuity Requirements - All distributions made under
the terms of this Plan must comply with the provisions of Article VIII
including, if applicable, the safe harbor provisions thereunder.
7.2 Minimum Distribution Requirements - All distributions required under
this Article shall be determined and made in accordance with the minimum
distribution requirements of Code Section 401(a)(9) and the regulations
thereunder, including the minimum distribution incidental benefit rules
found at Regulations Section 1.401(a)(9)-2. The entire interest of a
Participant must be distributed or begin to be distributed no later than
the Participant's Required Beginning Date. Life expectancy and joint and
last survivor life expectancy are computed by using the expected return
multiples found in Tables V and VI of Regulations Section 1.72-9.
7.3 Limits On Distribution Periods - As of the First Distribution Calendar
Year, distributions if not made in a single-sum, may only be made over one
of the following periods (or a combination thereof):
(a) the life of the Participant,
(b) the life of the Participant and a Designated Beneficiary,
(c) a period certain not extending beyond the life expectancy of the
participant, or
(d) a period certain not extending beyond the joint and last survivor
expectancy of the Participant and a designated beneficiary.
7.4 Required Distributions On Or After The Required Beginning Date
(a) If a participant's benefit is to be distributed over (1) a period not
extending beyond the life expectancy of the Participant or the joint life and
last survivor expectancy of the Participant and the Participant's Designated
Beneficiary or (2) a period not extending beyond the life expectancy of the
Designated Beneficiary, the amount required to be distributed for each
calendar year, beginning with distributions for the First Distribution
Calendar Year, must at least equal the quotient obtained by dividing the
Participant's benefit by the Applicable Life Expectancy.
(b) For calendar vears beginning before 1989, if the Participant's
Spouse is not the Designated Beneficiary, the method of distribution selected
must have assured that at least 50% of the Present Value of the amount
available for distribution was to be paid within the life expectancy of the
Participant.
(c) For calendar years beginning after 1988, the amount to be distributed
each year, beginning with distributions for the First Distribution Calendar
Year shall not be less than the quotient obtained by dividing the Participant's
benefit by the lesser of (1) the Applicable Life Expectancy or (2) if the
Participant's Spouse is not the Designated Beneficiary, the applicable
divisor determined from the table set forth in Q&A-4 of Regulations Section
1.401(a)(9)-2. Distributions after the death of the Participant shall be
distributed using the Applicable Life Expectancy as the relevant divisor
without regard to Regulations Section 1.401(a)(9)-2.
(d) The minimum distribution required for the Participant's First
Distribution Calendar Year must be made on or before the Participant's
Required Beginning Date. The minimum distribution for other calendar years,
including the minimum distribution for the Distribution Calendar Year
in which the Participant's Required Beginning Date occurs, must be
made on or before December 31 of that Distribution Calendar Year.
(e) If the Participant's benefit is distributed in the form of an annuity
purchased from an insurance company, distributions thereunder shall be
made in accordance with the requirements of Code Section 401(a)(9) and
the Regulations thereunder.
(f) For purposes of determining the amount of the required
distribution for each Distribution Calendar Year, the account balance to
be used is the account balance determined as of the last valuation
preceedig the Distribution Calendar Year. This balance will be increased
by the amount of any contributions or forfeitures allocated to the
account balance after the valuation date in such preceding calendar year.
Such balance will also be decreased by distributions made after the
Valuation Date in such preceding Calendar Year.
(g) For purposes of subparagraph 7.4(f), if any portion of the
minimum distribution for the First Distribution Calendar Year is made in
the second Distribution Calendar Year on or before the Required
Beginning Date, the amount of the minimum distribution made in the
second Distribution Calendar Year shall be treated as if it had been
made in the immediately preceding Distribution Calendar Year.
7.5 Required Beginning Date
(a) General Rule, The Required Beginning Date of a Participant is the
first day of April of the calendar year following the calendar year in which
the Participant attains age 70-1/2.
(b) Transitional Rules. The Required Beginning Date of a Participant who
attains age 70-1/2 before 1988, shall be determined in accordance with (1) or
(2) below:
(1) Non-5-percent owners. The Required Beginning Date of a Participant
who is not a 5-percent owner is the first day of April of the calendar year
following the calendar year in which the later of retirement or attaimnent of
age 70-1/2 occurs. In the case of a Participant who is not a 5-percent owner
who attains age 70-1/2 during 1988 and who has not retired as of January 1,
1989, the Required Beginning Date is April 1, 1990.
(2) 5-percent owners. The Required Beginning Date of a Participant who
is a 5-percent owner during any year beginning after 1979, is the first day
of April following the later of:
(i) the calendar year in which the Participant attains age 70-1/2,
or
(ii) the earlier of the calendar year with or within which ends
the plan year in which the Participant becomes a 5-percent owner, or the
calendar year in which the Participant retires.
(c) A Participant is treated as a 5-percent owner for purposes of this
Paragraph if such Participant is a 5-percent owner as defined in Code Section
416(i) (determined in accordance with Code Section 416 but without regard to
whether the Plan is Top-Heavy) at any time during the Plan Year ending with or
within the calendar year in which such Owner attains age 66-1/2 or any
subsequent Plan Year.
(d) Once distributions have begun to a 3-percent owner under this
paragraph, they must continue to be distributed, even if the Participant
ceases to be a 5-percent owner in a subsequent year.
7.6 Tmnsitional Rule
(a) Notwithstanding the other requirements of this Article and subject
to the requirements of Article VIII, Joint and Survivor Annuity Requirements,
distribution on behalf of any Employee, including a 5-percent owner, may be
made in accordance with all of the following requirements (regardless of when
such distribution commences):
(1) The distribution by the Trust is one which would not have disqualified
such Trust under Code Section 401(a)(9) as in effect prior to amendment by
the Deficit Reduction Act of 1984.
(2) The distribution is in accordance with a method of distribution
designated by the Employee whose interest in the Trust is being distributed
or, if the Employee is deceased by a beneficiary of such Employee.
(3) Such designation was in writing, was signed by the Employee or the
beneficiary, and was made before 1984.
(4) The Employee had accrued a benefit under the Plan as of December 31,
1983.
(5) The method of distribution designated by the Employee or the
beneficiary specifies the time at which distribution will commence, the
period over which distributions will be made, and in the case of any
distribution upon the Employee's death, the beneficiaries of the Employee
listed in order of priority.
(b) A distribution upon death will not be covered by this transitional
rule unless the information in the designation contains the required
information described above with respect to the distributions to be made
upon the death of the Employee.
(c) For any distribution which commences before 1984, but continues
after 1983, the Employee or the beneficiary, to whom such distribution is
being made, will be presumed to have designated the method of distribution
under which the distribution is being made if the method of distribution was
specified in writing and the distribution satisfies the requirements in
subparagraphs (a)(1) and (5) above.
(d) If a designation is revoked, any subsequent distribution must
satisfy the requirements of Code Section 401(a)(9) and the regulations
thereunder. If a designation is revoked subsequent to the date distributions
are required to begin, the Trust must distribute by the end of the calendar
year following the calendar year in which the revocation occurs the total
amount not yet distributed which would have been required to have been
distributed to satisfy Code Section 401(a)(9) and the regulations thereunder,
but for the section 242(b)(2) election of the Tax Equity and Fiscal
Responsibility Act of 1982. For calendar years beginning after 1988, such
distributions must meet the minimum distribution incidental benefit
requirements in section 1.401(a)(9)-2 of the Income Tax Regulations. Any
changes in the designation will be considered to be a revocation of the
designation. However, the mere substitution or addition of another
beneficiary (one not named in the designation) under the designation will
not be considered to be a revocation of the designation, so long as such
substitution or addition does not alter the period over which distributions
are to be made under the designation, directly or indirectly (for example,
by altering the relevant measuring life). In the case in which an amount is
transferred or rolled over from one plan to another plan, the rules in Q&A
J-2 and Q&A J-3 of the regulations shall apply.
7.7 Designation Of Beneficiary For Death Benefit - Each Participant shall
file a written designation of beneficiary with the Employer upon qualifying
for participation in this Plan. Such designation shall remain in force until
revoked by the Participant by filing a new beneficiary form with the Employer.
The Participant may elect to have a portion of his or her account balance
invested in an insurance contract. If an insurance contract is purchased
under the Plan, the Trustee must be named as Beneficiary under the terms of
the contract. However, the Participant shall designate a Beneficiary to
receive the proceeds of the contract after settlement is received by the
Trustee. Under a profit-sharing plan satisfying the requirements of paragraph
8.7, the Designated Beneficiary shall be the Participant's Surviving Spouse,
if any, unless such Spouse properly consents otherwise.
7.8 Nonexistence Of Beneficiary - Any portion of the amount payable
hereunder which is not disposed of because of the Participant's or former
Participant's failure to designate a beneficiary, or because all of the
Designated Beneficiaries predeceased the Participant, shall be paid to his
or her Spouse. If the Participant had no Spouse at the time of death,
payment shall be made to the personal representative of his or her estate
in a lump sum.
7.9 Distribution Beginning Before Death - If the Participant dies after
distribution of his or her interest has begun, the remaining portion of such
interest will continue to be distributed at least as rapidly as under the
method of distribution being used prior to the Participant's death.
7.10 Distribution Beginning After Death - If the Participant dies before
distribution of his or her interest begins, distribution of the Participant's
entire interest shall be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's death except to the
extent that an election is made to receive distributions in accordance with
(a) or (b) below:
(a) If any portion of the Participant's interest is payable to a
Designated Beneficiary, distributions may be made over the life or over a
period certain not greater than the life expectancy of the Designated
Beneficiary commencing on or before December 31 of the calendar year
immediately following the calendar year in which the Participant died;
(b) If the Designated Beneficiary is the Participant's surviving Spouse,
the date distributions are required to begin in accordance with (a) above
shall not be earlier than the later of (1) December 31 of the calendar year
immediately following the calendar year in which the participant died or (2)
December 31 of the calendar year in which the Participant would have attained
age 70-1/2.
If the Participant has not made an election pursuant to this paragraph 7. 10
by the time of his or her death, the Participant's Designated Beneficiary
must elect the method of distribution no later than the earlier of (1)
December 31 of the calendar year in which distributions would be required to
begin under this section, or (2) December 31 of the calendar year which
contains the fifth anniversary of the date of death of the participant. If
the Participant has no Designated Beneficiary, or if the Designated
Beneficiary does not elect a method of distribution, then distribution of
the Participant's entire interest must be completed by December 31 of the
calendar year containing the fifth anniversary of the Participant's death.
For purposes of this paragraph if the Surviving Spouse dies after the
Participant, but before payments to such Spouse begin, the provisions of
this paragraph with the exception of paragraph (b) therein, shall be applied
as if the Surviving Spouse were the Participant. For the purposes of this
paragraph and paragraph 7.9,distribution of a Participant's interest is
considered to begin an the Participant's Required Beginning Date (or, if the
preceding sentence is applicable, the date distribution is required to begin
to the Surviving Spouse). If distribution in the form of an annuity
described in paragraph 7.4(e) irrevocably commences to the Participant
before the Required Beginning Date, the date distribution is considered
to begin is the date distribution actually commences.
7.11 Distribution Of Excess Elective Deferrals
(a) Notwithstanding any other provision of the Plan, Excess Elective
Deferrals plus any income and minus any loss allocable thereto, shall be
distributed no later than April 15, 1988, and each April 1 thereafter, to
Participants to whose accounts Excess Elective Deferrals were allocated for
the preceding taxable year, and who claim Excess Elective Deferrals for such
taxable year. Excess Elective Deferrals shall be treated as Annual Additions
under the Plan, unless such amounts are distributed no later than the first
April 15th following Elie close of the Participant's taxable year. A
Participant is deemed to notify the Plan Administrator of any Excess Elective
Deferrals that arise by taking into account only those Elective Deferrals
made to this Plan and any other plans of this Employer.
(b) Furthermore, a Participant who participates in another plan allowing
Elective Deferrals may assign to this Plan any Excess Elective Deferrals made
during a taxable year of the Participant by notifying the Plan Administrator
of the amount of the Excess Elective Deferrals to be assigned. The
Participant's claim shall be in writing; shall be submitted to the Plan
Administrator not later than March 1 of each year; shall specify the amount
of the Participant's Excess Elective Deferrals for the preceding taxable
year, and shall be accompanied by the Participant's written statement that
if such amounts are not distributed, such Excess Elective Deferrals, when
added to amounts deferred under other plans or arrangements described in Code
Sections 401 (k), 408(k) [Simplified Employee Pensions], or 403(b) [annuity
programs for public schools and charitable organizations] will exceed the
$7,000 limit as adjusted under Code Section 415(d) imposed on the Participant
by Code Section 402(g) for the year in which the deferral occurred.
(c) Excess Elective Deferrals shall be adjusted for any income or loss up
to the end of the taxable year, during which such excess was deferred.
Income or loss will be calculated under the method used to calculate
investment earnings and losses elsewhere in the Plan.
(d) If the Participant receives a return of his or her Elective Deferrals,
the amount of such contributions which are returned must be brought into the
Employee's taxable income.
7.12 Distributions of Excess Contributions
(a) 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 2-1/2 months after the last
day of the Plan Year in which such excess amounts arose, a ten (10) percent
excise tax will be imposed on the Employer maintaining the Plan with respect
to such amounts. Such distributions shall be made to Highly Compensated
Employees on the basis of the respective portions of the Excess Contributions
attributable to each of such Employees. Excess Contributions of Participants
who are subject to the Family Member aggregation rules of Code Section 414(q)
(6) shall be allocated among the Family Members in proportion to the Elective
Deferrals (and amounts treated as Elective Deferrals) of each Family Member
that is combined to determine the Average Deferral Percentage.
(b) Excess Contributions (including the amounts recharacterized) shall be
treated as Annual Additions under the Plan.
(c) Excess Contributions shall be adjusted for any income or loss up to
the end of the Plan Year. Income or loss will be calculated under the method
used to calculate investment earnings and losses elsewhere in the Plan.
(d) Excess Contributions shall be distributed from the Participant's
Elective Deferral account and Qualified Matching Contribution account (if
applicable) in proportion to the Participant's Elective Deferrals and
Qualified Matching Contributions (to the extent used in the ADP test) for
the Plan Year. Excess Contributions shall be distributed from the Participant's
Qualified Non-Elective Contribution account onlyto the extent that such
Excess Contributions exceed the balance in the Participant's Elective
Deferral account and Qualified Matching Contribution account.
7.13 Distribution or Excess Aggregate Contributions
(a) 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 Code Section 414(q)(6) in
the manner prescribed by the regulations. If such Excess Aggregate
Contributions are distributed more than 2-1/2 months after the last day of
the Plan Year in which such excess amounts arose, a ten (1O) percent excise
tax will be imposed on the Employer maintaining the Plan with respect to
those amounts. Excess Aggregate Contributions shall be treated as Annual
Additions under the plan.
(b) Excess Aggregate Contributions shall be adjusted for any income or
loss up to the end of the Plan Year. The income or loss allocable to Excess
Aggregate Contributions is the sum of income or loss for the Plan Year
allocable to the Participant's Voluntary Contribution account, Matching
Contribution account (if any, and if all amounts therein are not used in the
ADP test) and, if applicable, Qualified Non-Elective Contribution account
and Elective Deferral account. Income or loss will be calculated under the
method used to calculate investment earnings and losses elsewhere in the Plan.
(c) Forfeitures of Excess Aggregate Contributions may either be
reallocated to the accounts of non-Highly Compensated Employees or applied
to reduce Employer contributions, as elected by the employer in the Adoption
Agreement.
(d) Excess Aggregate Contributions shall be forfeited if such amount is
not vested. If vested, such excess shall be distributed on a pro-rata basis
from the Participant's Voluntary Contribution account (and, if applicable,
the Participant's Qualified Non-Elective Contribution account, Matching
Contribution account, Qualified Matching Contribution account, or Elective
Deferral account, or both).
ARTICLE VIII
JOINT AND SURVIVOR-ANNUITY REQUIREMENTS
8.1 Applicability Of Provisions - The provisions of this Article shall
apply to any Participant who is credited with at least one Hour of Service with
the Employer on or after August 23, 1984 and such other Participants as
provided in paragraph 8.8.
8.2 Payment Of Qualified Joint And Survivor Annuity - Unless an optional
form of benefit is selected pursuant to a Qualified Election within the 90-day
period ending on the Annuity Starting Date, a married Participant's Vested
Account Balance will be paid in the form of a Qualified Joint and Survivor
Annuity and an unmarried Participant's Vested Account Balance will be paid
in the form of a life annuity. The Participant may elect to have such annuity
distributed upon attainment of the Early Retirement Age under the Plan.
8.3 Payment Of Qualified Pre-Retirement Survivor Annuity - Unless an
optional form of benefit has been selected within the Election Period
pursuant to a Qualified Election, if a Participant dies before benefits have
commenced then the Participant's Vested Account Balance shall be paid in the
form of an annuity for the life of the Surviving Spouse. The Surviving
Spouse may elect to have such annuity distributed within a reasonable period
after the Participant's death.
A Participant who does not meet the age 35 requirement set forth in the
Election Period 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 in such terms
as are comparable to the explanation required under paragraph 8.5. 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 this Article.
8.4 Qualified Election - A Qualified Election is an election to either
waive a Qualified Joint and Survivor Annuity or a qualified pre-retirement
survivor annuity. Any such 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 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 Parrticipant's waiver of the Qualified Joint and Survivor
Annuity shall not be effective unless the election designates a form of
benefit payment which may not be changed without spousal consent (or the
Spouse expressly permits designations by the Participant without any further
spousal consent). If it is established to the satisfaction of the Plan
Administrator that there is no Spouse or that the Spouse cannot be located,
a waiver will be deemed a Qualified Election. Any consent by a Spouse
obtained under this provision (or establishment that the consent of a Spouse
may not be obtained) shall be effective only with respect to such Spouse.
A consent that permits designations by the Participant without any requirement
of further consent by such Spouse must acknowledge that the Spouse has the
right to limit consent to a specific beneficiary, and a specific form of
benefit where applicable, and that the Spouse voluntarily elects to
relinquish either or both of such rights. A revocation of a prior waiver
may be made by a Participant without the consent of the Spouse at any time
before the commencement of benefits. The number of revocations shall not be
limited. No consent obtained under this provision shall be valid unless the
Participant has received notice as provided in paragraphs 8.5 and 8.6 below.
8.5 Notice Requirements For Qualified Joint And Survivor Annuity -In the
case of a Qualified Joint and Survivor Annuity, the Plan Administrator shall,
nonless than 30 days and no more than 90 days prior to the Annuity Starting
date, provide each Participant a written explanation of:
(a) the terms and conditions 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.
8.6 Notice Requirements For Qualified Pre-Retirement Survivor Annuity- In
the case of a qualified preretirement survivor annuity as described in
paragraph 8.3, the Plan Administrator shall provide each Participant within
the applicable period for such Participant a written explanation of the
qualified pre-retirement survivor annuitv in such terms and in such manner
as would be comparable to the explanation provided for meeting the requirements
of paragraph 8.5 applicable to a Qualified Joint and Survivor Annuity. The
applicable period for a Participant is whichever of the following periods
ends last:
(a) 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,
(b) a reasonable period ending after the individual becomes a Participant;
(c) a reasonable period ending after this Article 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 events described in (b) and (c) is the end of the two-year period
beginning one-year prior to the date the applicable event occurs, and ending
one-year after that date. In the case of a Participant who separates from
Service before the Plan Year in which age 35 is attained, notice shall be
provided within the two-year period beginning one year prior to separation
and ending one year after separation. If such a Participant subsequently
returns to employment with the Employer, the applicable period for such
Participant shall be re-determined.
8.7 Special Safe-Harbor Exception For Certain Prorit-Sharing Plans
(a) This paragraph shall apply to a Participant in a profit-sharing plan,
and to any distribution, made on or after the first day of the first plan
year beginning after 1988, from or under a separate account attributable
solely to Qualified Voluntary contributions, as maintained on behalf of a
Participant in a money purchase pension plan, (including a target benefit
plan) if the following conditions are satisfied:
(1) the Participant does not or cannot elect payments in the form of a life
annuity; and
(2) on the death of a Participant, the Participant's Vested Account
Balance will be paid to the Participant's Surviving Spouse, but if there is
no Surviving Spouse, or if the Surviving Spouse has consented in a manner
conforming to a Qualified Election, then to the Participant's Designated
Beneficiary. The Surviving Spouse may elect to have distribution of the
Vested Account Balance commence within the 90-day period following the date
of the Participant's death. The account balance shall be adjusted for gains
or losses occurring after the Participant's death in accordance with the
provisions of the Plan governing the adjustment of account balances for other
types of distributions. These safe-harbor rules shall not be operative with
respect to a Participant in a profit-sharing plan if that plan is a direct or
indirect transferee of a Defined Benefit Plan, money purchase plan, a target
benefit plan, stock bonus plan, or profit-sharing plan which is subject to
the survivor annuity requirements of Code Section 401(a)(11) and Code
Section 417, and would therefore have a Qualified Joint and Survivor Annuity
as its normal form of benefit.
(b) The Participant may waive the spousal death benefit described in this
paragraph at any time provided that no such waiver shall be effective unless
it satisfies the conditions (described in paragraph 8.4) that would apply to
the Participant's waiver of the Qualified Pre-Retirement Survivor Annuity.
(c) If this paragraph 8.7 is operative, then all other provisions of this
Article other than paragraph 8.8 are inoperative.
8.8 Transitional Joint And Survivor Annuity Rules - Special transition
rules apply to Participants who were not receiving benefits on August 23, 1984.
(a) Any living Participant not receiving benefits on August 23, 1984, who
would otherwise not receive the benefits prescribed by the previous paragraphs
of this Article, must be given the opportunity to elect to have the prior
paragraphs of this Article apply if such Participant is credited with at
least one Hour of Service under this Plan or a predecessor Plan in a Plan
Year beginning on or after January 1, 1976 and such Participant had at least
10 Years of Service for vesting purposes when he or she separated from Service.
(b) Any living Participant not receiving benefits on August 23,1984, who
was credited with at least one Hour of Service under this Plan or a
predecessor Plan on or after September 2, 1974, and who is not otherwise
credited with any Service in a Plan Year beginning on or after January 1,
1976, must be given the opportunity to have his or her benefits paid in
accordance with paragraph 8.9.
(c) The respective opportunities to elect [as described in (a) and (b)
above] must be afforded to the appropriate Participants during the period
commencing on August 23, 1984 and ending on the date benefits would otherwise
commence to said Participants.
8.9 Automatic Joint And Survivor Annuity And Early Survivor Annuity - Any
Participant who has elected pursuant to paragraph 8.8(b) and any Participant
who does not elect under paragraph 8.8(a) or who meets the requirements of
paragraph 8.8(a), except that such Participant does not have at least 10
years of vesting Service when he or she separates from Service, shall have
his or her benefits distributed in accordance with all of the following
requirements if benefits would have been payable in the form of a life
annuity.
(a) Automatic Joint and Survivor Annuity. If benefits in the form of a
life annuity become payable to a married Participant who:
(1) begins to receive payment s under the Plan on or after Normal
Retirement Age, or
(2) dies on or after Normal Retirement Age while still working for
the Employer, or
(3) begins to receive payments on or after the Qualified Early
Retirement Age, or
(4) separates from Service on or after attaining Normal Retirement
(or the Qualified Early Retirement Age) and after satisfying the eligibility
requirements for the payment of benefits under the Plan and thereafter dies
before beginning to receive such benefits, then such benefits will be received
under this Plan in the form of a Qualified Joint and Survivor Annuity, unless
the Participant has elected otherwise during the Election Period. The
Election Period must begin at least 6 months before the Participant attains
Qualified Earlv Retirement Age and end not more than 90 days before the
commencement of benefits. Any election will be in writing and may be changed
by the Participant at any time.
(b) Election of Early Survivor Annuity. A Participant who is employed
after attaining the Qualified Early Retirement Age will be given the
opportunity to elect, during the Election Period, to have a survivor annuity
payable on death. If the Participant elects the survivor annuity, payments
under such annuity must not be less than the payments which would have been
made to the Spouse under the Qualified Joint and Survivor Annuity if the
Participant had retired on the day before his or her death. Any election
under this provision will be in writing and may be changed by the Participant
at any time. The Election Period begins on the later of:
(1) the 90th day before the Participant attains the Qualified
Early Retirement Age, or
(2) the date on which participation begins, and ends on the date
the Participant terminates employment.
8.10 Annuity Contracts - Any annuity contract distributed under this Plan
must be nontransferable. The terms of any annuity contract purchased and
distributed by the Plan to a Participant or Spouse shall comply with the
requirements of this Plan.
ARTICLE IX
VESTING
9.1 Employee Contributions - A Participant shall always have a 100 %
vested and nonforfeitable interest in his or her Elective Deferrals,
Voluntary Contributions, Qualified Voluntary Contributions, Rollover
Contributions,and Transfer Contributions plus the earnings thereon. No
forfeiture of Employer related contributions (including any minimum
contributions made under paragraph 14.2) will occur solely as a result of
an Employee's withdrawal of any Employee contributions.
9.2 Employer Contributions - A Participant shall acquire a vested and
nonforfeitable interest in his or her account attributable to Employer
contributions in accordance with the table selected in the Adoption
Agreement, provided that if a Participant is not already fully vested, he
or she shall become so upon attaining Normal Retirement Age, Early Retirement
Age, on death prior to normal retirement, on retirement due to Disability,
or on termination of the Plan.
9.3 Computation Period - The computation period for purposes of determining
Years of Service and Breaks in Service for purposes of computing a
Participant's nonforfeitable right to his or her account balance derived
from Employer contributions shall be determined by the Employer in the
Adoption Agreement. In the event a former Participant with no vested
interest in his or her Employer contribution account requalifies for
participation in the Plan after incurring a Break in Service, such
Participant shall be credited for vesting with all pre-break and post-break
Service.
9.4 Requalification Prior To Five Consecutive One-Year Breaks In Service -
The account balance of such Participant shall consist of any undistributed
amount in his or her account as of the date of re-employment plus any future
contributions added to such account plus the investment earnings on the
account. The Vested Account Balance of such Participant shall be determined
by multiplying the Participant's account balance (adjusted to include any
distribution or redeposit made under paragraph 6.3) by such Participant's
vested percentage. All Service of the Participant, both prior to and
following the break, shall be counted when computing the Participant's
vested percentage.
9.5 Requalification After Five Consecutive One-Year Breaks In Service - If
such Participant is not fully vested upon re-employment, a new account shall
be established for such Participant to separate his or her deferred vested
and nonforfeitable account, if any, from the account to which new allocations
will be made. The Participant's deferred account to the extent remaining
shall be fully vested and shall continue to share in earnings and losses of
the Fund. When computing the Participant's vested portion of the new account,
all pre-break and post-break Service shall be counted. However, notwithstanding
this provision, no such former Participant who has had five consecutive
one-year Breaks in Service shall acquire a larger vested and nonforfeitable
interest in his or her prior account balance as a result of requalification
hereunder.
9.6 Calculating Vested Interest - A Participant's vested and nonforfeitable
interest shall be calculated by multiplying the fair market value of his or
her account attributable to Employer contributions on the Valuation Date
preceding distribution by the decimal equivalent of the vested percentage as
of his or her termination date. The amount attributable to Employer
contributions for purposes of the calculation includes amounts previously
paid out pursuant to paragraph 6.3 and not repaid. The Participant's vested
and nonforfeitable interest, once calculated above, shall be reduced to
reflect those amounts previously paid out to the Participant and not repaid
by the Participant. The Participant's vested and nonforfeitable interest so
determined shall continue to share in the investment earnings and any
increase or decrease in the fair market value of the Fund up to the Valuation
Date preceding or coinciding with payment.
9.7 Forfeitures - Any balance in the account of a Participant who has
separated from Service to which he or she is not entitled under the foregoing
provisions, shall be forfeited and applied as provided in the Adoption
Agreement. A forfeiture may only occur if the Participant has received a
distribution from the Plan or if the Participant has incurred five
consecutive 1-year Breaks in Service. Furthermore, a Highly Compensated
Employee's Matching Contributions may be forfeited, even if vested, if the
contributions to which they relate are Excess Deferrals, Excess Contributions
or Excess Aggregate Contributions.
9.8 Amendment Of Vesting Schedule - No amendment to the Plan shall have
the effect of decreasing a Participant's vested interest determined without
regard to such amendment as of the later of the date such amendment is
adopted or the date it becomes effective. Further, if the vesting schedule
of the Plan is amended, or the Plan is amended in any way that directly or
indirectly affects the computation of any 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
Years of Service with the Employer may elect, within a reasonable period
after the adoption of the amendment, to have his or her nonforfeitable
percentage computed under the Plan without regard to such amendment. For
Participants who do not have at least one Hour of Service in any Plan Year
beginning after 1988, the preceding sentence shall be applied by substituting
"Five Years of Service" for 'Three Years of Service" where such language
appears. The period during which the election may be made shall commence
with the date the amendment is adopted and shall end on the later of:
(a) 60 days after the amendment is adopted;
(b) 60 days after the amendment becomes effective; or
(c) 60 days after the Participant is issued written notice of the
amendment by the Employer or the Trustee/Custodian. If the Trustee/Custodian
is asked to so notify, the Fund will be charged for the costs thereof.
No amendment to the Plan shall be effective to the extent that it has the
effect of decreasing a Participant's accrued benefit. Notwithstandine the
preceding sentence, a Participant's account balance may be reduced to the
extent permitted under section 412(c)(8) of the Code (relating to financial
hardships). For purposes of this paragraph, a Plan amendment which has the
effect of decreasing a Participant's account balance or eliminating an
optional form of benefit, with respect to benefits attributable to service
before the amendment, shall be treated as reducing an accrued benefit.
9.9 Service With Controlled Groups - All Years of Service with other
members of a controlled group of corporations [as defined in Code Section
414(b)], trades or businesses under common control [as defined in Code
Section 414(c)], or members of an affiliated service group [as defined in
Code Section 414(m)] shall be considered for purposes of determining a
Participant's nonforfeitable percentage.
ARTICLE X
LIMITATIONS ON ALLOCATIONS
AND ANTIDISCRIMINATION TESTING
10.1 Participation In This Plan Only - If the Participant does not
participate in and has never participated in another qualified plan, a
Welfare Benefit Fund (as defined in paragraph 1.89) or an individual medical
account, as defined in Code Section 415(l)(2), maintained by the adopting
Employer, which provides an Annual Addition as defined in paragraph 1.4,the
amount of Annual Additions which may be credited to the Participant's account
for any Limitation Year will not exceed the lesser of the Maximum Permissible
Amount or any other limitation contained in this Plan. If the Employer
contribution that would otherwise be contributed or allocated to the
Participant's account would cause the Annual Additions for the Limitation
Year to exceed the Maximum Permissible Amount, the amount contributed or
allocated will be reduced so that the Annual Additions for the Limitation
Year will equal the Maximum Permissible Amount. Prior to determining the
Participant's actual Compensation for the Limitation Year, the Employer may
determine the Maximum Permissible Amount for a Participant on the basis of
a reasonable estimate of the Participant's Compensation for the Limitation
Year, uniformly determined for all Participants similarly situated. As soon
as is administratively feasible after the end of the Limitation Year, the
Maximum Permissible Amount for the Limitation Year will be determined on the
basis of the Participant's actual Compensation for the Limitation Year.
10.2 Disposition Of Excess Annual Additions - If, pursuant to paragraph
10.1 or as a result of the allocation of forfeitures, there is an Excess
Amount, the excess will be disposed of under one of the following methods as
determined in the Adoption Agreement. If no election is made in the Adoption
Agreement then method "(a)" below shall apply.
(a) Suspense Account Method
(1) Any nondeductible Employee Voluntary, Required Voluntary Contributions
and unmatched Elective Deferrals to the extent they would reduce the Excess
Amount will be returned to the Participant. To the extent necessary to
reduce the Excess Amount, non-Highly Compensated Emplovees will have all
Elective Deferrals returned whether or not there was a corresponding match.
(2) If after the application of paragraph (1) an Excess Amount still
exists, and the Participant is covered by the Plan at the end of the
Limitation Year, the Excess Amount in the Participant's account will be used
to reduce Employer contributions (including any allocation of forfeitures)
for such Participant in the next Limitation Year, and each succeeding
Limitation Year if necessary;
(3) If after the application of paragraph (1) an Excess Amount still
exists, and the Participant is not covered by the Plan at the end of the
Limitation Year, the Excess Amount will be held unallocated in a suspense
account. The suspense account will be applied to reduce future Employer
contributions (including allocation of any forfeitures) for all remaining
Participants in the next Limitation Year, and each succeeding Limitation
Year if necessary;
(4) If a suspense account is in existence at any time during the
Limitation Year pursuant to this paragraph, it will not participate in the
allocation of investment gains and losses. If a suspense account is in
existence at any time during a particular Limitation Year, all amounts in
the suspense account must be allocated and reallocated to Participants'
accounts before any Employer contributions or any Employee Contributions.
may be made to the Plan for that Limitation Year. Excess amounts may not
be distributed to Participants or former Participants.
(b) Spillover Method
(1) Any nondeductible Employee Voluntary, Required Voluntary Contributions
and unmatched Elective Deferrals to the extent they would reduce the Excess
Amount will be returned to the Participant. To the extent necessary to reduce
the Excess Amount, non-Highly Compensated Employees will have all Elective
Deferrals returned whether or not there was a corresponding match.
(2) Any Excess Amount which would be allocated to the account of an
individual Participant under the Plan's allocation formula will be reallocated
to other Participants in the same manner as other Emplover contributions. No
such reallocation shall be made to the extent that it will result in an
Excess Amount being created in such Participant's own account.
(3) To the extent that amounts cannot be reallocated under (1) above,
the suspense account provisions of (a) above will apply.
10.3 Participation In This Plan And Another Master and Prototype Defined
Contribution Plan, Welfare Benefit Fund Or Individual Medical Account
Maintained By The Employer - The Annual Additions which may be credited to
a Participant's account under this Plan for any Limitation Year will not
exceed the Maximum Permissible Amount reduced by the Annual Additions
credited to a Participant's account under the other Master or Prototype
Defined Contribution Plans, Welfare Benefit Funds, and individual medical
accounts as defmed in Code Section 415(l)(2), maintained by the Employer,
which provide an Annual Addition as defined in paragraph 1.4 for the same
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 limitations 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. Prior to determining the Participant's actual
Compensation for the Limitation Year, the Employer may determine the Maximum
Permissible Amount for a Participant in the manner described in paragraph
10.1. As soon as administratively feasible after the end of the Limitation
Year, the Maximum Permissible Amount for the Limitation Year will be
determined on the basis of the Participant's actual Compensation for the
Limitation Year.
10.4 Disposition Of Excess Annual Additions Under Two Plans - If, pursuant
to paragraph 10.3 or as a result of forfeitures, 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 as defined in Code
Section 415(l)(2) 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 attributed to this Plan
will be the product of:
(a) the total Excess Amount allocated as of such date, times
(b) the ratio of:
(1) the Annual Additions allocated to the Participant for the Limitation
Year as of such date under the Plan, to
(2) the total Annual Additions allocated to the Participant for the
Limitation Year as of such date under this and all the other qualified Master
or Prototype Defmed Contribution Plans.
Any Excess Amount attributed to this Plan will be disposed of in the manner
described in paragraph 10.2.
10.5 Participation In This Plan And Another Defined Contribution Plan
Which Is Not A Master Or Prototype Plan If the Participant is covered under
another qualified Defined Contribution Plan maintained by the Employer which
is not a Master or Prototype Plan, Annual Additions which may be credited to
the Participant's account under this Plan for any Limitation Year will be
limited in accordance with paragraphs 10.3 and 10.4 as though the other plan
were a Master or Prototype Plan, unless the Employer provides other limitations
in the Adoption Agreement.
10.6 Participation In This Plan And A Defined Benefit Plan - If the
Employer maintains, or at any time maintained a qualified Defined Benefit
Plan covering any Participant in this Plan, the sum of the Participant's
Defined Benefit Plan Fraction and Defined Contribution Plan Fraction will not
exceed 1.0 in any Limitation Year. For any Plan Year during which the Plan is
Top-Heavy, the Defined Benefit and Defined Contribution Plan Fractions shall
be calculated in accordance with Code Section 416(h). The Annual Additions
which may be credited to the Participant's account under this Plan for any
Limitation Year will be limited in accordance with the provisions set forth
in the Adoption Agreement.
10.7 Average Deferral Percentage (ADP) Test With respect to any Plan Year,
the Average Deferral Percentage for Participants who are Highly Compensated
Employees and the Average Deferral Percentage for Participants who are
non-Highly Compensated Employees must satisfy one of the following tests:
(a) Basic Test - The Average Deferral Percentage for Participants who are
Highly Compensated Employees for the Plan Year is not more than 1.25 times
the Average Deferral Percentage for Participants who are non-Highly
Compensated Employees for the same Plan Year, or
(b) Alternative Test - The Average Deferral Percentage for Participants
who are Highly Compensated Employees for the Plan Year does not exceed the
Average Deferral Percentage for Participants who are non-Highly Compensated
Employees for the same Plan Year by more than 2 percentage points provided
that the Average Deferral Percentage for Participants who are Highly
Compensated Employees is not more than 2.0 times the Average Deferral
Percentage for Participants who are non-Highly Compensated Employees.
10.8 Special Rules Relating To Application Of ADP Test
(a) The Actual Deferral Percentage for any Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to have Elective
Deferrals (and Qualified Non-Elective Contributions or Qualified Matching
Contributions, or both, if treated as Elective Deferrals for purposes of the
ADP test) allocated to his or her accounts under two or more arrangements
described in Code Section 401(k), that are maintained by the Employer, shall
be determined as if such Elective Deferrals (and, if applicable, such
Qualified Non-Elective Contributions or Qualified Matching Contributions, or
both) were made under a single arrangement. If a Highly Compensated Employee
participates in two or more cash or deferred arrangements that have different
Plan Years, all cash or deferred arrangements ending with or within the
same calendar year shall be treated as a single arrangement.
(b) In the event that this Plan satisfies the requirements of Code
Sections 401(k), 401(a)(4), or 410(b), only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
Code Sections only if aggregated with this Plan, then this Section shall be
applied by determining the Actual Deferral Percentage of Employees as if all
such plans were a single plan. For Plan Years beginning after 1989,plans may
be aggregated in order to satisfy Code Section 401(k) only if they have the
same Plan Year.
(c) For purposes of determining the Actual Deferral Percentage of a
Participant who is a 5 percent owner or one of the ten most highly-paid Highly
Compensated Employees, the Elective Deferrals (and Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both, 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 Non-Elective Contributions and Qualified Matching Contributions,
or both) for the Plan Year of Family Members as defined in paragraph 1.36 f
this Plan. Family Members, with respect to such Highly Compensated Employees,
shall be disregarded as separate Employees in determining the ADP both for
Participants who are non-Highly Compensated Emplovees and for Participants
who are Highly Compensated Employees. In the event of repeal of the family
aggregation rules under Code Section 414(q)(6), all applications of such
rules under this Plan will cease as of the effective date of such repeal.
(d) For purposes of determining the ADP test, Elective Deferrals,
Qualified Non-Elective Contributions and Qualified Matching Contributions
must be made before the last day of the twelve-month period immediately
following the Plan Year to which contributions relate.
(e) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both, used in such
test.
(f) The determination and treatment of the Actual Deferral Percentage
amounts of any Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
10.9 Recharacterization - If the Employer allows for Voluntary Contributions
in the Adoption Agreement, a Participant may treat his or her Excess
Contributions as an amount distributed to the Participant and then
contributed by the Participant to the Plan. Recharacterized amounts will
remain nonforfeitable and subject to the same distribution requirements as
Elective Deferrals. Amounts may not be recharacterized by a Highly
Compensated Employee to the extent that such amount in combination with
other Employee Contributions made by that Employee would exceed any stated
limit under the Plan on Voluntary Contributions. Recharacterization must
occur no later than two and one-half months after the last day of the Plan
Year in which such Excess Contributions arose and is deemed to occur no
earlier than the date the last Highly Compensated Employee is informed in
writing of the amount recharacterized and the consequences thereof.
Recharacterized amounts will be taxable to the Participant for the
Participant's tax year in which the Participant would have received them
in cash.
10.10 Average Contribution Percentage (ACP) Test - If the Employer makes
Matching Contributions or if the Plan allows Employees to make Voluntary
Contributions the Plan must meet additional nondiscrimination requirements
provided under Code Section 401(m). If Employee Contributions (including
any Elective Deferrals recharacterized as Voluntary Contributions) are made
pursuant to this Plan, then in addition to the ADP test referenced in
paragraph 10.7, the Average Contribution Percentage test is also applicable.
The Average Contribution Percentage for Participants who are Highly
Compensated Employees for each Plan Year and the Average Contribution
Percentage for Participantswho are Non-Highly Compensated Employees for the
same Plan Year must satisfy one of the following tests:
(a) Basic Test - The Average Contribution Percentage for Participants
who are Highly Compensated Employees for the Plan Year shall not exceed the
Average Contribution Percentage for Participants who are non-Highly Compensated
Employees for the same Plan Year multiplied by 1.25 or
(b) Alternative Test - The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the Average Contribution
Percentage for Participants who are non-Highly Compensated Employees for the
same Plan Year multiplied by two (2), provided that the Average Contribution
Percentage for Participants who are Highly Compensated Employees does not
exceed the Average Contribution Percentage for Participants who are non-Highly
Compensated Employees by more than two (2) percentage points.
10.11 Special Rules Relating To Application of ACP Test
(a) If one or more Highly Compensated Employees participate in both a
cash or deferred arrangement and a plan subject to the ACP test maintained
by the Employer and the sum of the ADP and ACP of those Highly Compensated
Employees subject to either or both tests exceeds the Aggregate Limit, then
the ADP or ACP of those Highly Compensated Employees who also participate in
a cash or deferred arrangement will be reduced (beginning with such Highly
Compensated Employee whose ADP or ACP is the highest) as set forth in the
Adoption Agreement so that the limit is not exceeded. The amount by which
each Highly Compensated Employee's Contribution Percentage Amounts is reduced
shall be treated as an Excess Aggregate Contribution. The ADP and ACP of the
Highly Compensated Employees are determined after any corrections required
to meet the ADP and ACP tests. Multiple use does not occur if both the ADP
and ACP of the Highly Compensated Employees does not exceed 1.25 multiplied
by the ADP and ACP of the non-Highly Compensated Employees.
(b) For purposes of this Article, 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 Code Section 401(a), or arrangements described in
Code Section 401 (k) 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.
(c) In the event that this Plan satisfies the requirements of Code
Sections 401(a)(4), 401(m), or 410(b) only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
Code Sections only if aggregated with this Plan, then this Section shall be
applied by determining the Contribution Percentage of Employees as if all
such plans were a single plan. For plan years beginning after 1989, plans
may be aggregated in order to satisfy Code Section 401(m) only if the
aggregated plans have the same Plan Year.
(d) For purposes of determining the Contribution percentage of a
Participant who is a five-percent owner or one of the ten most highly-paid,
Highly Compensated Employees, the Contribution Percentage Amounts and
Compensation of such Participant shall include the Contribution Percentage
Amounts and Compensation for the Plan Year of Family Members as defined in
Paragraph 1.36 of this Plan. Family Members, with respect to Highly
Compensated Employees, shall be disregarded as separate Employees in
determining the Contribution Percentage both for Participants who are non-
Highly Compensated Employees and for Participants who are Highly Compensated
Employees. In the event of repeal of the family aggregation rules under Code
Section 414(q)(6), all applications of such rules under this Plan will cease
as of the effective date of such repeal.
(e) For purposes of determining the Contribution Percentage test,
Employee Contributions are considered to have been made in the Plan Year in
which contributed to the trust. Matching Contributions and Qualified Non-
Elective Contributions will be considered made for a Plan Year if made no
later than the end of the twelve-month period beginning on the day after the
close of the Plan Year.
(f) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both, used in such
test.
(g) 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.
(h) Qualified Matching Contributions and Qualified Non-Elective
Contributions used to satisfy the ADP test may not be used to satisfy the
ACP test.
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator - The Employer shall be the named fiduciary and
Plan Administrator. These duties shall include:
(a) appointing the Plan's attorney, accountant, actuary, or any other
party needed to administer the Plan,
b) directing the Trustee/Custodian with respect to payments from
the Fund.
(c) communicating with Employees regarding their participation and
benefits under the Plan, including the administration of all claims
procedures,
(d) filing any returns and reports with the Internal Revenue Service,
Department of Labor, or any other governmental agency,
(e) reviewing and approving any financial reports, investment reviews.
or other reports prepared by any party appointed by the Employer under
paragraph (a),
(f) establishing a funding policy and investment objectives consistent
with the purposes of the Plan and the Employee Retirement Income Security Act
of 1974, and
(g) construing and resolving any question of Plan interpretation. The
Plan Administrator's interpretation of Plan provisions including eligibility
and benefits under the Plan is formal, and unless it can be shown to be
arbitrary and capricious will not be subject to "de novo' review.
11.2 Trustee/Custodian - The Trustee/Custodian shall be responsible for the
administration of investments held in the Fund. These duties shall include:
(a) receiving contributions under the terms of the Plan,
(b) making distributions from the Fund in accordance with written
instructions received from an authorized representative of the Employer,
(c) keeping accurate records reflecting its administration of the Fund
and making such records available to the Employer for review and audit
Within 90 days after each Plan Year, and within 90 days after its removal or
resignation, the Trustee/Custodian shall file with the Employer an accounting
of its administration of the Fund during such year or from the end of the
preceding Plan Year to the date of removal or resignation. Such accounting
shall include a statement of cash receipts and disbursements since the date
of its last accounting and shall contain an asset list showing the fair
market value of investments held in the Fund as of the end of the Plan Year.
The value of marketable investments shall be determined using the most
recent price quoted on a national securities exchange or over the counter
market. The value of non-marketable investments shall be determined in the
sole judgement of the Trustee/Custodian which determination shall be binding
and conclusive. The value of investments in securities or obligations of
the Employer in which there is no market shall be determined in the sole
judgement of the Employer and the Trustee/Custodian shall have no
responsibility with respect to the valuation of such assets.
the Employer shall review the Trustee/Custodian's accounting and notify
the Trustee/Custodian in the event of its disapproval of the report within
90 days, providing the Trustee/Custodian with a written description of the
items in question. The Trustee/Custodian shall have 60 days to provide the
Employer with a.written explanation of the items in question. If the
Employer again disapproves, the Trustee/Custodian shall file its accounting
in a court of competent jurisdiction for audit and adjudication, and
(d) employing such agents, attorneys or other professionals as the
Trustee may deem necessary or advisable in the performance of its duties.
The Trustee's/Custodian's duties shall be limited to those described above.
The Employer shall be responsible for any other administrative duties
required under the Plan or by applicable law.
11.3 Administrative Fees And Expenses - All reasonable costs, charges and
expenses incurred by the Trustee/Custodian in connection with the
administration of the Fund and all reasonable costs, charges and expenses
incurred by the Plan Administrator in connection with the administration of
the Plan (including fees for legal services rendered to the Trustee/Custodian
or Plan Administrator) may be paid by the Employer, but if not paid by the
Employer when due, shall be paid from the Fund. Such reasonable compensation
to the Trustee/Custodian as may be agreed upon from time to time between
the Employer and the Trustee/Custodian and such reasonable compensation to
the Plan Administrator as may be agreed upon from time to time between the
Employer and Plan Administrator may be paid by the Employer, but if not paid
by the Employer when due shall be paid by the Fund. The Trustee shall have
the right to liquidate trust assets to cover its fees. Notwithstanding the
foregoing, no compensation other than reimbursement for expenses shall be
paid to a Plan Administrator who is the Emplover or a full-time Employee of
the Employer. In the event any part of the Trust/Custodial Account becomes
subject to tax, all taxes incurred will be paid from the Fund unless the Plan
Administrator advises the Trustee/Custodian not to pay such tax.
11.4 Division Of Duties And Indemnification
(a) The Trustee/Custodian shall have the authority and discretion to
manage and govern the Fund to the extent provided in this instrument, but
does not guarantee the Fund in any manner against investment loss or
depreciation in asset value, or guarantee the adequacy of the Fund to meet
and discharge all or any liabilities of the Plan.
(b) The Trustee/Custodian shall not be liable for the making, retention
or sale of any investment or reinvestment made by it, as herein provided, or
for any loss to, or diminution of the Fund, or for any other loss or damage
which may result from the discharge of its duties hereunder except to the
extent it is judicially detemiined that the Trustee/Custodian has failed to
exercise the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise of a like
character with like aims.
(c) The Employer warrants that all directions issued to the Trustee/
Custodian by it or the Plan Administrator will be in accordance with the
terms of the Plan and not contrary to the provisions of the Employee
Retirement Income Security Act of 1974 and regulations issued thereunder.
(d) The Trustee/Custodian shall not be answerable for any action taken
pursuant to any direction, consent, certificate, or other paper or document
on the belief that the same is genuine and signed by the proper person.
All directions by the Employer, Participant or the Plan Administrator shall be
in writing. The Employer shall deliver to the Trustee/Custodian certificates
evidencing the individual or individuals authorized to act as set forth in the
Adoption Agreement or as the Employer may subsequently inform the Trustee/
Custodian in writing and shall deliver to the Trustee/Custodian specimens of
their signatures.
(e) The duties and obligations of the Trustee/Custodian shall be limited
to those expressly imposed upon it by this instrument or subsequently agreed
upon by the parties. Responsibility for administrative duties required under
the Plan or applicable law not expressly imposed upon or agreed to by the
Trustee/Custodian, shall rest solely with the Employer.
(f) The Trustee shall be indemnified and saved harmless by the Employer
from and against any and all liability to which the Trustee/Custodian may be
subjected, including all expenses reasonably incurred in its defense, for any
action or failure to act resulting from compliance with the instructions of
the Employer, the employees or agents of the Employer, the Plan Administrator,
or any other fiduciary to the Plan, and for any liability arising from the
actions or non-actions of any predecessor Trustee/Custodian or fiduciary or
other fiduciaries of the Plan.
(g) The Trustee/Custodian shall not be responsible in any way for the
application of any payments it is directed to make or for the adequacy of
the Fund to meet and discharge any and all liabilities under the Plan.
ARTICLE XII
TRUST FUND/CUSTODIAL ACCOUNT
12.1 The Fund - The Fund shall consist of all contributions made under A
rticle III and Article IV of the Plan and the investment thereof and earnings
thereon. All contributions and the earnings thereon less payments made under
the terms of the Plan, shall constitute the Fund. The Fund shall be
administered as provided in this document.
12.2 Control Of Plan Assets - The assets of the Fund or evidence of
ownership shall be held by the Trustee/Custodian under the terms of the Plan
and Trust/Custodial Account. If the assets represent amounts transferred
from another turstee/custodian under a former plan, the Trustee/Custodian
named hereunder shall not be responsible for the propriety of any investment
under the former plan.
12.3 Exclusive Benefit Rules - No part of the Fund shall be used for, or
diverted to, purposes other than for the exclusive benefit of Participants,
former Participants with a vested interest, and the beneficiary or
beneficiaries of deceased Participants having a vested interest in the Fund
at death.
12.4 Assignment And Alienation Of Benefits No right or claim to, or
interest in, any part of the Fund, or any payment from the Fund shall be
assignable, transferable, or subject to sale, mortgage, pledge, hypothecation,
commutation, anticipation, garnishment, attachment, execution, or levy of
any kind. The Trustee/Custodian shall not recognize any attempt to assign,
transfer, sell, mortgage, pledge, hypothecate, commute, or anticipate the
same, except to the extent required by law. The preceding sentences shall
also apply to the creation, assignment, or recognition of a right to any
benefit payable with respect to a Participant pursuant to a domestic
relations order, unless such order is determined to be a qualified domestic
relations order, as defined in Code Section 414(p), or any domestic
relations order entered before January 1, 1985 which the Plan attorney and
Plan Administrator deem to be qualified.
12.5 Determination Of Qualified Domestic Relations Order (QDRO) A Domestic
Relations Order shall specifically state all of the following in order to be
deemed a Qualified Domestic Relations Order ('QDRO"):
(a) Tne name and last known mailing address (if any) of the Participant
and of each alternate payee covered by the QDRO. However, if the QDRO does
not specify the current mailing address of the alternate payee, but the Plan
Administrator has independent knowledge of that address, the QDRO will still
be valid.
(b) The dollar amount or percentage of the Participant's benefit to be
paid by the Plan to each alternate payee, or the manner in which the amount
or percentage will be determined.
(c) The number of payments or period for which the order applies.
(d) The specific plan (by name) to which the Domestic Relations Order
applies.
The Domestic Relations Order shall not be deemed a QDRO if it requires the
Plan to provide:
(e) any type or form of benefit, or any option not already provided for
in the Plan;
(f) increased benefits, or benefits in excess of the Participant's
vested rights;
(g) payment of a benefit earlier than allowed by the Plan's earliest
retirement provisions or in the case of a profit-sharing plan, prior to the
allowability of in-service withdrawals, or
(h) payment of benefits to an alternate payee which are required to be
paid to another alternate payee under another QDRO.
Promptly, upon receipt of a Domestic Relations Order ('Order") which may or
may not be "Qualified', the Plan Administrator shall notify the Participant
and any alternate payee(s) named in the Order of such receipt, and include
a copy of this paragraph 12.5. The Plan Administrator shall then forward the
Order to the Plan's legal counsel for an opinion as to whether or not the
Order is in fact 'Qualified'as defined in Code Section 414(p). Within a
reasonable time after receipt of the Order, not to exceed 60 days, the
Plan's legal counsel shall make a determination as to its 'Qualified' status
and the Participant and any alternate payee(s) shall be promptly notified
in writing of the determination.
If the "Qualified" status of the Order is in question, there will be a delay
in any payout to any payee including the Participant, until the status is
resolved. In such event, the Plan Administrator shall segregate the amount
that would have been payable to the alternate payee(s) if the Order had been
deemed a QDRO. If the Order is not Qualified, or the status is not resolved
(for example, it has been sent back to the Court for clarification or
modification) within 18 months beginning with the date the first payment
would have to be made under the Order, the Plan Administrator shall pay the
segregated amounts plus interest to the person(s) who would have been
entitled to the benefits had there been no Order. If a detemiination as to
the Qualified status of the Order is made after the 18-month period described
above, then the Order shall only be applied on a prospective basis. If the
Order is determined to be a QDRO, the Participant and alternate payee(s)
shall again be notified promptly after such determination. Once an Order is
deemed a QDRO, the Plan Administrator shall pay to the alternate payee(s)
all the amounts due under the QDRO, including segregated amounts plus
interest which may have accrued during a dispute as to the Order's
qualification.
Unless specified otherwise in the Adoption Agreement, the earliest retirement
age with regard to the Participant against whom the order is entered shall
be the date the order is detemiined to be qualified. This will only allow
payouts to alternate payee(s) and not the Participant.
ARTICLE XIII
INVESMENTS
13.1 Fiduciary Standards - The Trustee/Custodian shall invest and reinvest
principal and income in the Fund in accordance with the investment objectives
established by the Employer provided that:
(a) such investments are prudent under the Employee Retirement Income
Security Act of 1974 and the regulations thereunder,
(b) such investments are sufficiently diversified or otherwise insured
or guaranteed to minimize the risk of large losses, and
(c) such investments are similar to those which would be purchased by
another professional money manager for a like plan with similar investment
objectives.
13.2 Funding Arrangement - The Employer shall, in the Adoption Agreement,
appoint the Sponsor to serve as either Trustee or Custodian of the Fund. If
the Sponsor is appointed Trustee, the Fund shall be invested in any of the
alternatives available to the Trustee under paragraph 13.3 herein. If the
Sponsor is appointed Custodian. the Fund shall be invested only in the
alternatives available to the Custodian under paragraph 13.4 herein.
13.3 Investment Alternatives Of The Trustee - As Trustee, the Sponsor shall
implement an investment program based on the Employer's investment objectives
and the Employee Retirement Income Security Act of 1974. In addition to
powers given by law, the Trustee may:
(a) invest the Fund in any form of property, including common and
preferred stocks, exchange traded put and call options, bonds, money market
instruments, mutual funds (including funds for which the Trustee or its
affiliates serve as investment advisor), savings accounts, certificates of
deposit, Treasury bills, insurance policies and contracts, or in any other
property, real or personal, having a ready market. The Trustee may invest
in time deposits (including, if applicable, its own or those of affiliates)
which bear a reasonable interest rate. No portion of any Qualified Voluntary
Contribution, or the earnings thereon, may be invested in life insurance
contracts or, as with any Participant-directed investment, in tangible
personal property characterized by the IRS as a collectible,
(b) transfer any assets of the Fund to a group or collective trust
established to permit the pooling of funds of separate pension and profit-
sharing trusts, provided the Internal Revenue Service has ruled such group
or collective trust to be qualified under Code Section 401 (a) and exempt
under Code Section 501 (a) (or the applicable corresponding provision of any
other Revenue Act) or to any other common, collective, or comniingled trust
fund which has been or may hereafter be established and maintained by the
Trustee and/or affiliates of the Trustee. Such commingling of assets of the
Fund with assets of other qualified trusts is specifically authorized, and to
the extent of the investment of the Fund in such a group or collective trust,
the terms of the instrument establishing the group or collective trust shall
be a part hereof as though set forth herein,
(c) invest up to 100% of the Fund in the common stock, debt obligations,
or any other security issued by the Employer or by an affiliate of the
Employer within the limitations provided under Sections 406, 407, and 408
of the Employee Retirement Income Security Act of 1974 and further provided
that such investment does not constitute a prohibited transaction under Code
Section 4975. Any such investment in Employer securities shall only be made
upon written direction of the Employer who shall be solely responsible for
propriety of such investment.
(d) hold cash uninvested and deposit same with any banking or savings
institution, including its own banking department,
(e) join in or oppose the reorganization, recapitalization, consolidation,
sale or merger of corporations or properties, including those in which it is
interested as Trustee, upon such terms as it deems wise,
(f) hold investments in nominee or bearer form,
(g) vote proxies and, if appropriate, pass them on to any investment
manager which may have directed the investment in the equity giving rise to
the proxy,
(h) exercise all ownership rights with respect to assets held in the Fund.
13.4 Investment Alternatives Of The Custodian As Custodian, the Sponsor
shall be depository of the Fund and shall, at the direction of the Employer,
invest all contributions exclusively in savings or time accounts, savings
certificates of deposit, or other savings or time instruments offered by the
Custodian and, if offered, by an affiliate of the Custodian.
13.5 Par-ticipant Loans If agreed upon by the Trustee and permitted by
the Employer in the Adoption Agreement, a Plan Participant may make
application to the Employer requesting a loan from the Fund. The Employer
shall have the sole right to approve or disapprove a Participant's
application provided that loans shall be made available to all Participants
on a reasonably equivalent basis. Loans shall not be made available to
Highly Compensated Employees (as defined in Code. Section 414(q)] in an
amount greater than the amount made available to other Employees. Any loan
granted under the Plan shall be made subject to the following rules:
(a) No loan, when aggregated with any outstanding Participant loan(s),
shall exceed the lesser of (i) $50.000reduccd by the excess, if any, of the
highest outstanding balance of loans during the one year period ending on the
day before the loan is made, over the outstanding balance of loans from the
Plan on the date the loan is made or (ii) one-half of the fair market value
of a Participant's Vested Account Balance built up from Employer Contributions,
Voluntary Contributions. and Rollover Contributions. If the Participant's
Vested Account Balance is $20,000 or less, the maximum loan shall not exceed
the lesser of $10,000 or 100% of the Participant's Vested Account Balance.
For the purpose of the above limitation, all loans from all plans of the
Employer and other members of a group of employers described in Code Sections
414(b), 414(c), and 414(m) are aggregated. An assignee or pledge of any
portion of the Participant's interest in the Plan and a loan, pledge, or
assignment with respect to any insurance contract purchased under the Plan,
will be treated as a loan under this paragraph.
(b) All applications must be made on forms provided by the Employer and
must be signed by the Participant.
(c) Any loan shall bear interest at a rate reasonable at the time of
application, considering the purpose of the loan and the rate being charged
by representative commercial banks in the local area for a similar loan
unless the Employer sets forth a different method for determining loan
interest rates in its loan procedures. The loan agreement shall also
provide that the payment of principal and interest be amortized in level
payments not less than quarterly.
(d) The term of such loan shall not exceed five years except in the case
of a loan for the purpose of acquiring any house,..apartment, condominium, or
mobile home (not used on a transient basis) which is used, or is to be used
within a reasonable time as the principal residence of the Participant. The
term of such loan shall be determined by the Employer considering the
maturity dates quoted by representative commercial banks in the local area
for a similar loan.
(e) The principal and interest paid by a Participant on his or her loan
shall be credited to the Fund in the same manner as for any other Plan
investment. If elected in the Adoption Agreement, loans may be treated as
segregated investments of the individual Participants. This provision is not
available if its election will result in discrimination in operation of the
Plan.
(f) If a Participant's loan application is approved by the Employer, such
Participant shall be required to sign a note, loan agreement, and assignment
of 50% of his or her interest in.the Fund as collateral for the loan. The
Participant, except in the case of a profit-sharing plan satisfying the
requirements of paragraph 8.7 must obtain the consent of his or her Spouse,
if any, within the 90 day period before the time his or her account balance
is used as security for the loan. A new consent is required if the account
balance is used for any renegotiation, extension, renewal or other revision
of the loan, including an increase in the amount thereof. The consent must
be written, must acknowledge the effect of the loan, and must be witnessed
by a plan representative or notary public. Such consent shall subsequently
be binding with respect to the consenting Spouse or any subsequent Spouse.
(g) If a valid Spousal consent has been obtained, then, notwithstanding
any other provision of this Plan, the portion of the Participant's Vested
Account Balance used as a security interest held by the Plan by reason of a
loan outstanding to the Participant shall be taken into account for purposes
of determining the amount of the account balance payable at the time of death
or distribution, but only if the reduction is used as repayment of the loan.
If less than 100% of the Participant's Vested Account Balance (determined
without regard to the preceding sentence) is payable to the Surviving Spouse,
then the account balance shall be adjusted by first reducing the Vested
Account Balance by the amount of the security used as repayment of the loan,
and then determining the benefit payable to the Surviving Spouse.
(h) The Employer may also require additional collateral in order to
adequately secure the loan.
(i) A Participant's loan shall immediately become due and payable if
such Participant terminates employment for any reason or fails to make a
principal and/or interest payment as provided in the loan agreement.
If such Participant terminates employment, the Employer shall immediately
request payment of principal and interest on the loan. If the Participant
refuses payment following termination, the Employer shall reduce the
Participant's Vested Account Balance by the remaining principal and interest
on his or her loan. If the Participant's Vested Account Balance is less
than the amount due, the Employer shall take whatever steps are necessary to
collect the balance due directly from the Participant. However, no
foreclosure on the Participant's note or attachment of the Participant's
account balance will occur until a distributable event occurs in the Plan.
(j) No loans will be made to Owner-Employees (as defined in paragraph
1.51) or Shareholder-Employees (as defined in paragraph 1.74), unless the
Employer obtains a prohibited transaction exemption from the Department of
Labor.
13.6 Insurance Policies - If agreed upon by the Trustee and permitted by
the Employer in the Adoption Agreement, Employees may elect the purchase of
life insurance policies under the Plan. If elected, the maximum annual
premium for a whole life policy shall not exceed 50% of the aggregate
Employer contributions allocated to the account of a Participant. For
profit-sharing plans the 50% test need only be applied against Employer
contributions allocated in the last two years. Whole life policies are
policies with both nondecreasing death benefits and nonincreasing premiums.
The maximum annual premium for term contracts or universal life policies and
all other policies which are not whole life shall not exceed 25 % of
aggregate Employer contributions allocated to the account of a Participant.
The two-year rule for profit-sharing plans again applies. The maximum annual
premiums for a Participant with both a whole life and a term contract or
universal life policies shall be limited to one-half of the whole life
premium plus the term premium, but shall not exceed 25% of the aggregate
Employer contributions allocated to the account of a Participant, subject to
the two year rule for profit-sharing plans. Any policies purchased under
this Plan shall be held subject to the following rules:
(a) The Trustee shall be applicant and owner of any policies issued.
(b) All policies or contracts purchased hereunder shall be endorsed as
nontransferable, and must provide that proceeds will be payable to the
Trustee; however, the Trustee shall be required to pay over all proceeds of
the contracts to the Participant's Designated Beneficiary in accordance with
the distribution provisions of this Plan. Under no circumstances shall the
Trust retain any part of the proceeds.
(c) Each Participant shall be entitled to designate a beneficiary under
the terms of any contract issued; however, such designation will be given
to the Trustee which must be the named beneficiary on any policy. Such
designation shall remain in force, until revoked by the Participant, by
filing a new beneficiary form with the Trustee. A Participant's Spouse will
be the Designated Beneficiary of the proceeds in all circumstances unless a
Qualified Election has been made in accordance with paragraph 8.4. The
beneficiary of a deceased Participant shall receive, in addition to the
proceeds of the Participant's policy or policies, the amount credited to
such Participant's investment account.
(d) A Participant who is uninsurable or insurable at substandard rates,
may elect to receive a reduced amount of insurance, if available, or may
waive the purchase of any insurance.
(e) All dividends or other returns received on any policy purchased shall
be applied to reduce the next premium due on such policy, or if no further
premium is due, such amount shall be credited to the Fund as part of the
account of the Participant for whom the policy is held.
(f) If Employer contributions are inadequate to pay all premiums on all
insurance policies, the Trustee may, at the option of the Employer, utilize
other amounts remaining in each Participant's account to pay the premiums on
his or her respective policy or policies, allow the policies to lapse,
reduce the policies to a level at which they may be maintained, or borrow
against the policies on a prorated basis, provided that the borrowing does
not discriminate in favor of the policies on the lives of Officers,
Shareholders, and highly compensated Employees.
(g) On retirement or termination of employment of a Participant, the
Employer shall direct the Trustee to cash surrender the Participant's policy
and credit the proceeds to his or her account for distribution under the
terms of the Plan. However, before so doing, the Trustee shall first offer
to transfer ownership of the policy to the Participant in exchange for
payment by the Participant of the cash value of the policy at the time of
transfer. Such payment shall be credited to the Participant's account for
distribution under the terms of the Plan. All distributions resulting from
the application of this paragraph shall be subject to the Joint and Survivor
Annuity Rules of Article VIII, if applicable.
(h) The Employer shall be solely responsible to see that these insurance
provisions are administered properly and that if there is any conflict
between the provisions of this Plan and any insurance contracts issued that
the terms of this Plan will control.
13.7 Employer Investment Direction - If agreed upon by the Trustee and
approved by the Employer in the Adoption Agreement, the Emplover shall have
the right to direct the Trustee with respect to investments of the Fund, may
appoint an investment manager (registered as an investment advisor under the
Investment Advisors Act of 1940) to direct investments, or may give the
Trustee sole investment management responsibility, The Employer may purchase
and sell interests in a registered investment company (i.e., mutual funds)
for which the Sponsor, its parent, affiliates, or successors, mav serve as
investment advisor and receive compensation from the registered investment
companv tor its services as investment advisor. The Employer shall advise
the Trustee in writing regarding the retention of investment powers, the
appointment of an investment manager, or the delegation of investment powers
to the Trustee. Any investment directive under this Plan shall be made in
writing by the Employer or investment manager, as the case may be. In the
absence of such written directive, the Trustee shall automatically invest
the available cash in its discretion in an appropriate interim investment
until specific investment directions are received. Such instructions
regarding the delegation of investment responsibility shall remain in force
until revoked or amended in writing. The Trustee shall not be responsible
for the propriety of any directed investment made and shall not be required
to consult with or advise the Employer regarding the investment quality of
any directed investment held hereunder. If the Employer fails to designate
an investment manager, the Trustee shall have full investment authority.
If the Employer does not issue investment directions, the Trustee shall have
authority to invest the Fund in its sole discretion. While the Employer may
direct the Trustee with respect to Plan investments, the Employer may not:
(a) borrow from the Fund or pledge any of the assets of the Fund as
security for a loan,
(b) buy property or assets from or sell property or assets to the Fund,
(c) charge any fee for services rendered to the Fund, or
(d) receive any services from the Fund on a preferential basis.
13.8 Employee Investment Direction - If agreed to by the Trustee and
approved by the Employer in the Adoption Agreement, Participants shall be
given the option to direct the investment of their personal contributions
and their share of the Employer's contribution among alternative investment
funds established as part of the overall Fund. Unless otherwise specified by
the Employer in the Adoption Agreement, such investment funds shall be under
the fail control of the management of the Trustee. If investments outside
the Trustee's control are allowed, Participants may not direct that
investments be made in collectibles, other than U.S. Government or State
issued gold and silver coins. In this connection, a Participant's right to
direct the investment of any contribution shall apply only to selection of
the desired fund. The following rules shall apply to the administration of
such funds.
(a) At the time an Employee becomes eligible for the Plan, he or she
shall complete an investment designation form stating the percentage of his
or her contributions to be invested in the available funds.
(b) A Participant may change his or her election with respect to future
contributions by filing a new investment designation form with the Employer
in accordance with the procedures established by the Plan Administrators.
(c) A Participant may elect to transfer all or part of his or her balance
from one investment fund to another by filing an investment designation form
with the Employer in accordance with the procedures established by the Plan
Administrators.
(d), The Employer shall be responsible when transmitting Employee and
Employer contributions to show the dollar amount to be credited to each
investment fund for each Employee.
(e) Except as otherwise provided in the Plan, neither the Trustee, nor
the Employer, nor any fiduciary of the Plan shall be liable to the Participant
or any of his or her beneficiaries for any loss resulting from action taken
at the direction of the Participant.
ARTICLEN XIV
TOP-HEAVY PROVISIONS
14.1 Applicability Of Rules - If the Plan is or becomes Top-Heavy in any
Plan Year beginning after 1983, the provisions of this Article will supersede
any conflicting provisions in the Plan or Adoption Agreement.
14.2 Minimum Contribution - Notwithstanding any other provision in the
Employer's Plan, for any Plan Year in which the Plan is Top-Heavy or Super
Top-Heavy, the aggregate Employer contributions and forfeitures allocated on
behalf of any Participant (without regard to any Social Security contribution)
under this Plan and any other Defined Contribution Plan of the Employer shall
be lesser of 3 % of such Participant's Compensation or the largest percentage
of Employer contributions and forfeitures, as a percentage of the first
$200,000,as adjusted under Code Section 415(d), of the Key Employee's
Compensation, allocated on behalf of any Key Employee for that year.
Each Participant who is employed by the Employer on the last day of the Plan
Year shall be entitled to receive an allocation of the Employer's minimum
contribution for such Plan Year. The minimum allocation applies even though
under other Plan provisions the Participant would not otherwise be entitled
to receive an allocation, or would have received a lesser allocation for the
year because the Participant fails to make Mandatory Contributions to the
Plan, the Participant's Compensation is less than a stated amount, or the
Participant fails to complete 1,000 Hours of Service (or such lesser number
designated by the Employer in the Adoption Agreement) during the Plan Year.
A Paired profit-sharing plan designated to provide the minimum Top-Heavy
contribution must do so regardless of profits. An Employer may make the
minimum Top-Heavy contribution available to all Participants or just non-Key
Employees.
For purposes of computing the minimum allocation, Compensation shall mean
Compensation as defined in paragraph 1. 12(c) of the Plan.
The Top-Heavy minimum contribution does not apply to any Participant to the
extent the Participant is covered under any other plan(s) of the Employer and
the Employer has provided in Section 11 of the Adoption Agreement that the
minimum allocation or benefit requirements applicable to Top-Heavy Plans
will be met in the other plan(s).
If a Key Employee makes an Elective Deferral or has an allocation of Matching
Contributions made to his or her account, a Top-Heavy minimum will be
required for non-Key Employees who are Participants, however, neither
Elective Deferrals by nor Matching Contributions to non-Key Employees may
be taken into account for purposes of satisfying the top-heavy Minimum
Contribution requirement.
14.3 Minimum Vesting - For any Plan Year in which this Plan is Top-Heavy,
the minimum vesting schedule elected by the Employer in the Adoption Agreement
will automatically apply to the Plan. If the vesting schedule selected by
the Employer in the Adoption Agreement is less liberal than the allowable
schedule, the schedule will automatically be modified. If the vesting
schedule under the Employer's Plan shifts in or out of the Top-Heavy schedule
for any Plan Year, such shift is an amendment to the vesting schedule and
the election in paragraph 9.8 of the Plan applies. The minimum vesting
schedule applies to all accrued benefits within the meaning of Code Section
41 1 (a)(7) except those attributable to Employee contributions, including
benefits accrued before the effective date of Code Section 416 and benefits
accrued before the Plan became Top-Heavy. Further, no reduction in vested
benefits may occur in the event the Plan's status as Top-Heavy changes for
any Plan Year. However, this paragraph does not apply to the account
balances of any Employee who does not have an Hour of Service after the Plan
initially becomes Top-Heavy and such Employee's account balance attributable
to Employer contributions and forfeitures will be determined without regard
to this paragraph.
14.4 Limitations On Allocations - In any Plan Year in which the Top-Heavy
Ratio exceeds 90% (i.e.The Plan becomes Super Top-Heavy), the denominators
of the Defined Benefit Fraction (as defined in paragraph 1.16) and Defined
Contribution Fraction (as defined in paragraph 1.19) shall be computed using
1 00 % of the dollar limitation instead of 125 %.
ARTICLE XV
AND TERMINATTON
15.1 Amendment By Sponsor - The Sponsor may amend any or all provisions of
this Plan and Trust/Custodial Account at any time without obtaining the
approval or consent of any Employer which has adopted this Plan and Trust/
Custodial Account provided that no amendment shall authorize or permit any
part of the corpus or income of the Fund to be used for or diverted to
purposes other than for the exclusive benefit of Participants and their
beneficiaries, or eliminate an optional form of distribution. In the case
of a mass-submitted plan, the mass submitter shall amend the Plan on behalf
of the Sponsor.
15.2 Amendment By Emplover - The Employer may amend any option in the
Adoption Agreement, and may include language as permitted in the Adoption
Agreement,
(a) to satisfy Code Section 415, or
(b) to avoid duplication of minimums under Code Section 416 because of
the required aggregation of multiple plans.
The Employer may add certain model amendments published by the Internal
Revenue Service which specifically provide that their adoption will not cause
the Plan to be treated as an individually designed plan for which the
Employer must obtain a separate determination letter.
If the Employer amends the Plan and Trust/Custodial Account other than as
provided above, the Employer's Plan shall no longer participate in this
Prototype Plan and will be considered an individually designed plan.
15.3 Termination - Employers shall have the right to terminate their Plans
upon 60 days notice in writing to the Trustee/Custodian. If the Plan is
terminated, partially terminated, or if there is a complete discontinuance of
contributions under a profit-sharing plan maintained by the Employer, all
amounts credited to the accounts of Participants shall vest and become
nonforfeitable. In the event of a partial termination, only those who are
affected by such partial temrmination shall be fully vested. In the event of
termination, the Employer shall direct the Trustee/Custodian with respect to
the distribution of accounts to or for the exclusive benefit of Participants
or their beneficiaries. The Trustee/Custodian shall dispose of the Fund in
accordance with the written directions of the Plan Administrator, provided
that no liquidation of assets and payment of benefits, (or provision
therefore), shall actually be made by the Trustee/Custodian until after it is
established by the Employer in a manner satisfactory to the Trustee/
Custodian, that the applicable requirements, if any, of the Employee
Retirement Income Security Act of 1974 and the Internal Revenue Code
governing the termination of employee benefit plans, have been or are being,
complied with, or that appropriate authorizations, waivers, exemptions, or
variances have been, or are being obtained.
15.4 Qualification Of Employer's Plan - If the adopting Employer fails to
attain or retain Internal Revenue Service qualification, such Employer's
Plan shall no longer participate in this Prototype Plan and will be
considered an individually designed plan.
15.5 Mergers And Consolidations
(a) In the case of any merger or consolidation of the Employer's Plan
with, or transfer of assets or liabilities of the Employer's Plan to, any
other plan, Participants in the Employer's Plan shall be entitled to receive
benefits immediately after the mrger, consolidation, or transfer which are
equal to or greater than the benefits they would have been entitled to
receive immediately before the merger, consolidation, or transfer if the
Plan had then terminated.
(b) Any corporation into which the Trustee/Custodian or any successor
trustee/custodian may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Trustee/
Custodian or any successor trustee/custodian may be a party, or any
corporation to which all or substantially all the trust business of the
Trustee/Custodian or any successor trustee/custodian may be transferred,
shall be the successor of such Trustee/Custodian without the filing of any
instrument or performance of any further act, before any court.
15.6 Resignation And Removal - The Trustee/Custodian may resign by written
notice to the Employer which shall be effective 60 days after delivery.
The Employer may discontinue its participation in this Prototype Plan and
Trust/Custodial Account effective upon 60 days written notice to the Sponsor.
In such event the Employer shall, prior to the effective date thereof, amend
the Plan to eliminate any reference to this Prototype Plan and Trust/Custodial
Account and appoint a successor trustee or custodian or arrange for another
funding agent. The Trustee/Custodian shall deliver the Fund to its successor
as practicable, provided that this shall not waive any lien the Trustee/
Custodian may have upon the Fund for its compensation or expenses. If the
Employer fails to amend the Plan and appoint a successor trustee, custodian,
or other funding agent within the said 60 days, or such longer period as
the Trustee/Custodian may specify in writing, the Plan shall be deemed
individually designed and the Employers shall be deemed the successor
trustee/custodian. The Employer must then obtain its own determination
letter.
15.7 Qualification Of Prototype - The Sponsor intends that this Prototype
Plan will meet the requirements of the Code as a qualified Prototype
Retirement Plan and Trust/Custodial Account. Should the Commissioner of
Internal Revenue or any delegate of the Commissioner at any time determine
that the Plan and Trust/Custodial Account fails to meet the requirements of
the Code, the Sponsor will amend the Plan and Trust/Custodial Account to
maintain its qualified status.
ARTICLE XVI
GOVERNING LAW
Construction, validity and administration of the Prototype Plan and Trust/
Custodial Account, and any Employer Plan and Trust/Custodial Account as
embodied in the Prototype document and accompanying Adoption Agreement, shall
be governed by Federal law to the extent applicable and to the extent not
applicable by the laws of the State/Commonwealth in which the principal
office of the Sponsor is located.
PART I -SECTION 401(a)(17) LIMITATION
MAU BE ADOPTED BY DEFINED CONTRIBUTION
AND DEFINED BENEFIT PLANS]
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan
Years beginning on or after January 1, 1994, the annual Compensation of each
Employee taken into account under the Plan shall not exceed the 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)(19) of the Internal Revenue
Code. The cost-of-living in effect for a calendar year applies to any
period, not exceeding 12 months, over which Compensation is determined
(determination period) beginning in such calendar year. If a determination
period consists of fewer than 12 months, the OBRA '93 annual compensation
limit will be multiplied by a fraction, the numerator of which is the number
of months in the detern-Lination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in this
Plan to the limitation under Section 401(a)(17) of the Code shall mean the
OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period.
For this purpose, for determination periods beginning before the first day
of the first Plan Year beginning on or after January 1, 1994, the OBRA '93
annual compensation limit is $150,000.
MODEL AMENDMENT
Revenue Procedure 9347
(This model amendment allows Participants receiving distribution from safe-
harbored profit sharing plans to waive the 30-day period required under the
Unemployment Compensation Act of 1992. Non-safe harbored plans must still
provide notice not less than 30 days and not more than 90 days prior to the
distribution.)
If a distribution is one to which Section 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 1.41 I(a)-1 I (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.