Exhibit 10.9
PENHALL INTERNATIONAL, INC.
AND AFFILIATED COMPANIES
EMPLOYEES' PROFIT SHARING (401(k)) PLAN
AND TRUST AGREEMENT
WHEREAS, PENHALL COMPANY, a California corporation, heretofore
established the PENHALL COMPANY AMENDED PROFIT SHARING PLAN (hereinafter
referred to as the "Plan") and, in connection therewith, established a trust
fund (hereinafter referred to as the "Trust"), by executing a plan and a trust
instrument (hereinafter referred to as the "Agreements");
WHEREAS, PENHALL INTERNATIONAL, INC., a California corporation
(hereinafter referred to as the "Sponsoring Company"), subsequently assumed
sponsorship of the Plan and now maintains the Trust; and
WHEREAS, the Sponsoring Company desires to amend and restate
the Agreement to include certain of the provi sions now required to be included
in the Plan as a result of the enactment of new laws and to enable certain
Affiliated Companies (as hereinafter defined) to adopt the Plan and to make
contributions to the Trust;
NOW, THEREFORE, the Sponsoring Company hereby amends the Plan
to read as hereinafter set forth, effective July 1, 1989:
ARTICLE I
PURPOSE OF PLAN AND TRUST; DEFINITIONS
1.1 - Purpose.
This Plan and Trust, which shall be known as the PEN HALL
INTERNATIONAL, INC. AND AFFILIATED COMPANIES Employees' Profit Sharing (401(k))
Plan and Trust, are designed and intended to qualify as a qualified plan and
trust under the applicable provisions of the Code.
1.2 - Definitions.
(a) "Accounts" means the accounts established and maintained for the
Participants pursuant to the provisions hereof.
(b) "Accrued Benefit" means the sum of the balances of a Participant's
Company Contributions and Matching Contribu
tions Accounts.
(c) "Act" means the Employee Retirement Income Security Act of 1974,
as modified by any subsequent amend ments thereto.
(d) "Adjustment Factor" means the cost of living ad justment factor
prescribed by the Secretary of the Treasury pursuant to the provisions of
Section 415(d) of the Code for years beginning after December 31, 1987.
(e) "Adopting Company" means the Sponsoring Company and each
Affiliated Company which has adopted the Plan.
(f) "Affiliated Company" means any corporation which, together with
the Sponsoring Company, constitutes an Af filiated Service Group, a controlled
group of corporations as defined in Section 414(b) of the Code as modified by
Section 415(h) of the Code, a trade or business, (whether incorporated or not)
which, together therewith, are under common control as defined in Section 414(c)
of the Code as modified by Section 415(h) of the Code, and any other entity
required to be aggregated with the Sponsoring Company pursuant to regulations
under Section 414(o) of the Code.
(g) "Affiliated Service Group" means:
(1) A group of organizations consisting of a Service Organization
(the "First organization") and one or more of the following:
(A) Any Service Organization which:
(i) is a shareholder or partner in the first
organization, and
(ii) regularly performs services for the first
organization or is regularly associated
with the first
organization in performing services for third
persons, and
(B) Any other organization if:
(i) a significant portion of the business of such
organization is the performance of services (for the
first organization, for organizations described in
subpart (A) above, or for both) of a type
historically performed in such service field by
employees, and
(ii) Ten Percent (10%) or more of the interest in such
organization is held by persons who are officers,
highly compensated employees, or owners of the first
organization or an organization described in subpart
(A) above.
(2) A group of organizations consisting of:
(A) An organization or group of "related organizations" which
is performing, on a regular and con tinuing basis,
management functions for one organization or group of
"related organizations," and
(B) The organization or group of "related organizations"
described in subpart (A) above for which such functions
are performed.
As used hereinabove, the term "related or ganizations" shall be
deemed to have the same meaning as the term "related persons"
as used in Section 103(b)(6)(C) of the Code.
(h) "Anniversary Date" means the last day of each Plan Year.
(i) "Annuity Starting Date" means the first day of the first period
for which an amount is payable if distribution of a Participant's benefit is to
be made in the form of an annuity or as of which all events must occur to
entitle a Participant or his Beneficiary to distribution of his benefit if
distribution thereof is not to be made in the form of an annuity.
(j) "Beneficiary" means the person last designated by a Participant
pursuant to the provisions of Section 2.3 to receive the benefits, if any,
payable in the event of his death.
(k) "Calendar Year Elective Deferral Dollar Limitation" means Seven
Thousand Dollars ($7,000), as adjusted by the Adjustment Factor.
(l) "Code" means the Internal Revenue Code of 1986, as modified by any
subsequent amendments thereto.
(m) "Committee" means the Committee established by an Adopting Company
pursuant to the provisions of Article VII hereof, and, unless otherwise
indicated, with respect to a particular Participant, the Committee of the
Adopting Com pany by which such Participant is employed.
(n) "Company Contributions Account" means the account established and
maintained for each Participant to which any Salary Reduction Contributions made
to the Plan on his behalf are credited.
(o) "Compensation" means:
(1) For purposes of computing the limitations on benefits and
contributions under Section 415 of the Code, an Employee's
wages, salary, fees for professional services and other
amounts paid to or accrued for such Employee for personal
services actually rendered for an Adopting Company for any
Plan limitation year prior to July 1, 1991, and paid to or
made available to such Employee for personal services actually
rendered for the Company for any Plan limitation year
beginning after June 30, 1991, specifically including but not
limited to (A) commissions, (B) compensation based on a
percentage of profits, (C) commissions payable with respect to
insurance premiums, (D) tips, (E) bonuses, (F) in the case of
any Self-Employed Individual, earned income, as defined in
Section 402(c)(2) of the Code, (G) earned income from sources
outside of the United States, (H) amounts described in
Sections 104(a)(3), 105(a) and 105(h) of the Code to the
extent includable in gross income, (I) amounts described in
Section 105(d) of the Code, (J) amounts paid or reimbursed by
an Adopting Company for moving expenses to the extent not
deductible under Section 217 of the Code, (K) the value of any
nonqualified stock option includable in gross income for the
year during which such option is granted, (L) any amount
includable in gross income as a result of making an election
described in Section 83(b) of the Code and (M) reimbursements
or other expense allowances under a nonaccountable plan (as
described in Treasury Regulation Section 1.62-2(c)), but shall
not include (A) any contributions made to any deferred
compensation plan which are not includable in gross income for
the year in which contributed, (B) any contributions made to a
simplified employee pension plan to the extent deductible by
the Employee, (C) any distributions made under any deferred
compensation plan, (D) any amount includable in gross income
as a result of the exercise of a nonqualified stock option or
the lapse of restrictions on any restricted stock or property
which renders such
stock or property freely transferable or no longer subject to
any substantial risk or forfeiture, (E) any amount includable
in gross income as a result of the exercise of any qualified
stock option, (F) any other amounts accorded special tax
favored treatment, such as premiums for group term life
insurance to the extent not includable in gross income, or
(G) any contributions made towards the purchase of an annuity
contract described in Section 403(b) of the Code, whether or
not made pursuant to a salary reduction agreement.
(2) For purposes of computing benefits here under or
contributions to the Plan, Compensa tion as defined in
subsection (1) hereinabove, except that (A) items (H) through
(L), inclusive, described as specifically included in such
definition and (B) the amount or cost of any other welfare
benefit provided or paid for by an Adopting Company shall be
excluded.
(3) For purposes of identifying Highly Com pensated Employees,
Compensation as defined in subsection (1) hereinabove but
without regard to the provisions of Sections 125, 402(a)(8),
402(h)(1)(B) and 403 of the Code.
(4) For Plan Years beginning after 1988, Compensation shall
not exceed the "Compensation Limit." The "Compensation Limit"
means $200,000, modified by the Adjustment Factor for years
after 1989. Modifications in effect on January 1 of any
calendar year shall be effective for Plan Years beginning in
such calendar year and the first adjustment to the $200,000
limitation is effective on January 1, 1990. If the Plan
determines Compensation on a period of time that contains
fewer that 12 calendar months, then the applicable
Compensation Limit shall be an amount equal to the
Compensation Limit for the calendar year in which the compen
sation period begins multiplied by the ratio obtained by
dividing the number of full months in the period by 12. In
applying the Compensation Limit, the rules of Section
414(q)(6) of the Code shall apply, except that the term Family
Member shall include only the Participant's spouse and lineal
descendants under age 19 as of the close of the applicable
year. If as a result of the application of such rules the
Compensation Limit is exceeded, then the Compensation Limit
shall be prorated among the affected individuals in proportion
to each such individual's Compensation prior to the
application of this Compensation Limit. Notwithstanding any
other provision of the Plan, the Compensation Limit shall not
apply for any purpose prior to the Plan Year beginning in
1989.
(p) "Contract" means any individual or group annuity contract issued
by an Insurer and acquired by the Trustee for the benefit of one or more of the
Participants.
(q) "Date of Employment" means the first day upon which an Eligible
Employee is credited with an Hour of Service.
(r) "Date of Re-employment" means the first day upon which a Former
Participant is again credited with an Hour of Service.
(s) "Effective Date" means July 1, 1973, as to PENHALL INTERNATIONAL,
INC., July 1, 1989, as to each Affiliated Company which adopts the Plan
concurrently herewith and the date specified as such in the Joinder Agreement
whereby any other Affiliated Company subsequently adopts the Plan as to such
other Affiliated Company.
(t) "Eligibility Computation Period" means the twelve (12) consecutive
month period beginning with a Participant's Date of Employment or Date of
Re-employment.
(u) "Eligible Employee" means each Employee of an Adopting Company
other than Employees who are included in a unit of Employees covered by an
agreement which the Secretary of Labor finds to be a collective bargaining
agreement between employee representatives and an Adopting Company, if there is
evidence that retirement benefits were the subject of good faith bargaining
between such employee representatives and such Adopting Company or Companies.
(v) "Employee" means any person who is employed by an Adopting
Company, including Leased Employees.
(w) "Entry Date" means, as to each Adopting Company, each July 1st and
January 1st after the Effective Date of the Plan as to such Adopting Company.
(x) "Family Member" means the spouse, lineal ancestors, lineal
descendants and spouses of any lineal ancestors or descendants of (i) a Five
Percent Owner or (ii) a Highly Compensated Employee who is among the Ten (10)
Highly Compensated Employees receiving the greatest amount of Compensation
during any Plan Year.
(y) "Fiduciary" means any person who (i) exercises any discretionary
authority or control with respect to the man agement of the Plan or control with
respect to the manage ment or disposition of the assets thereof, (ii) renders
any investment advice for a fee or other compensation, direct or indirect, with
respect to any moneys or other property of the Plan, or has any discretionary
authority or responsibility to do so, or (iii) has any discretionary authority
or responsibility in the administration of the Plan, including any other persons
(other than Trustees) designated by any Named Fiduciary to carry out fiduciary
responsibilities, except to the extent otherwise provided by the Act.
(z) "Former Participant" means a Participant who has separated from
the service of an Adopting Company and incur red one or more One Year Breaks In
Service.
(aa) "Highly Compensated Employee" means highly compensated active
Employees and highly compensated former Employees.
A highly compensated active Employee includes any Employee who
performs service for an Affiliated Company during the determination year and
who, during the look-back year: (i) received Compensation from an Affiliated
Company in excess of $75,000 (as adjusted by the Adjustment Factor); (ii)
received Compensation from an Affiliated Company in excess of $50,000 (as
adjusted by the Adjustment Factor) and was a member of the Top-Paid Group of
Employees for such year; or (iii) was an officer of an Affiliated Company and
received Compensation during such year that is greater than 50 percent of the
dollar limitation in effect under Section 415(b)(1)(A) of the Code.
The term Highly Compensated Employee also includes: (i)
Employees who are both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back year" and the
Employee is one of the 100 Employees who received the most Compensation from an
Affiliated Company during the determination year; and (ii) Employees who are 5
percent owners at any time during the look-back year or the determination year.
If no officer has satisfied the Compensation requirement of
(iii) above during either a determination year or a look back year, the highest
paid officer for such year shall be treated as a Highly Compensated Employee.
For this purpose, the determination year shall be the Plan
Year. The look-back year shall be the twelve-month period immediately preceding
the determination year.
A highly compensated former Employee includes any Employee who
separated from service (or was deemed to have separated) prior to the
determination year, performs no service for an Affiliated Company during the
determination year, and was a highly compensated active Employee for either the
separation year or any determination year ending on or after the Employee's 55th
birthday.
If an Employee is, during a determination year or look-back
year, a Family Member of either a 5 percent owner who is an active or former
Employee or a Highly Compensated Employee who is one of the 10 most Highly
Compensated Employees ranked on the basis of Compensation paid by an Affiliated
Company during such year, then the Family Member and the 5 percent owner or
top-ten Highly Compensated Employee shall be treated as a single Employee
receiving Compensation and Plan contributions equal to the sum of such
Compensation and Contributions of the Family Member and 5 percent owner or
top-ten Highly Compensated Employee.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of Employees in
the Top-Paid Group of Employees, the top 100 Employees, the number of Employees
treated as officers and the Compensation that is considered, will be made in
accordance with Section 414(q) of the Code and the regulations thereunder.
(bb) "Hour of Service" means each hour for which (i) an Employee is
paid or entitled to payment for the performance of duties for an Affiliated
Company, (ii) an Employee is paid or entitled to payment for the non-performance
of duties for an Affiliated Company, and (iii) back pay, irrespective of
mitigation of damages, is either awarded or agreed to by an Affiliated Company.
However, an Employee shall not be credited with Hours of Service under both
clause (iii) and (i) or (ii) of the foregoing sentence. Hours of Service for the
non-performance of duties shall be credited in accordance with Department of
Labor Regulation Section 2530.200b-2(b) and Hours of Service in general shall be
credited to the applicable computation period in accordance with Department of
Labor Regulation Section 2530.200b-2(c).
(cc) "Inactive Participant" means any Employee or Former Employee who
has ceased to be a Participant but for whose benefit an Account is maintained
under the Plan.
(dd) "Insurer" means any legal reserve life insurance company
authorized to do business in the state of California selected by the Sponsoring
Company's Committee from time to time to issue any Contract acquired hereunder.
(ee) "Investment Manager" means any Fiduciary other than a trustee or
Named Fiduciary (i) who has the power to manage, acquire or dispose of any asset
of the Plan; (ii) who is (a) registered as an investment adviser under the
Investment Advisers Act of 1940; (b) is a bank, as defined in such Act; or (c)
is an insurance company qualified to perform the services described in clause
(i) hereof under the laws of more than one state of the United States; and (iii)
has acknowledged in writing that he is a Fiduciary with respect to the Plan.
(ff) "Joinder Agreement" means the separate document by which an
Affiliated Company other than one which is a sig natory hereto on the date of
the execution hereof subse quently adopts the Plan and specifies the Effective
Date of the Plan as to such Affiliated Company.
(gg) "Key Employee" means each Employee, Former Employee or Beneficiary
thereof who, at any time during the current Plan Year or any of the four (4)
immediately preced ing Plan Years, is or was (i) an Officer of an Adopting
Company who has received annual Compensation greater than One Hundred Fifty
Percent (150%) of the amount specified in Section 415(c)(1)(A) of the Code, as
adjusted by the Adjustment Factor, for any of such Years beginning prior to
January 1, 1987, or Fifty Percent (50%) of the amount specified in Section
415(b)(1)(A) of the Code, as adjusted by the Adjustment Factor, for any of such
Years beginning after December 31, 1986, (ii) among the ten (10) Employees
owning or considered to own (within the meaning of Section 318 of the Code, as
modified by Section 416 of the Code) the largest interests in an Adopting
Company and who has received annual Compensation greater than the amount
specified in Section 415(c)(1)(A) of the Code, as adjusted by the Adjustment
Factor, for any of such Years, (iii) an Employee owning or considered to own
Five Percent (5%) or more of an Adopting Company ("Five Percent Owner"), or (iv)
an Employee owning or considered to own One Percent (1%) or more of an Adopting
Company and receiving more than One Hundred Fifty Thousand Dollars
($150,000.00), as adjusted by the Adjustment Factor, of annual Compensation
therefrom. Notwithstanding the foregoing, no more than Fifty (50) Employees or,
if less, the greater of (i) three (3) or (ii) Ten Percent (10%) of the Employees
of an Adopting Company excluding any Employees described in Section 414(q)(8) of
the Code, shall be treated as officers; for the purposes of determining
ownership under clauses (iii) and (iv), the provisions of Section 414(b), (c)
and (m) of the Code shall not apply; and, for purposes of clause (ii), if two
(2) Employees own or are considered to own equal percentages of an Adopting
Company, the Employee who has received the grea ter amount of Compensation shall
be considered to own a lar ger interest such Adopting Company. Annual
Compensation means Compensation as defined herein, but including amounts
contributed by the Adopting Company pursuant to a salary reduction agreement
which are excludable from the Employee's gross income under Section 125, Section
402(a)(8), Section 402(h) or Section 403(b) of the Code.
(hh) "Leased Employee" means any person other than an Employee who has
performed services for an Adopting Company or for an Adopting Company and a
party determined to be a "related person" pursuant to the provisions of Section
414(n)(6) of the Code ("recipient") on a substantially full time basis for a
period of at least one (1) year and such services are of a type historically
performed by employees in the business field of the recipient pursuant to an
agreement between the recipient and any other person ("leasing organization").
However, any contributions made or benefits provided by the leasing organization
which are attributable to the services performed for the recipient shall be
deemed to have been made or provided by the recipient. Notwithstanding the
foregoing, a person who would otherwise be deemed to be a Leased Employee shall
not be deemed to be an Employee if (1) such person is a participant in a money
purchase pension plan providing for (A) a nonintegrated employer contribution of
at least ten percent (10%) of compensation, as defined in SEction 415(c)(3) of
the Code, but including any amounts contributed pursuant to a salary reduction
agreement which are excludible from such employee's gross income under the
provisions of Section 125, 402(a)(8), 402(h) or 403(b) of the Code, (B)
immediate participation and (C) full and immediate vesting and (2) Leased
Employees do not constitute more than twenty percent (20%) of the recipient's
nonhighly compensated workforce.
(ii) "Matching Contributions Account" means the account established and
maintained for each Participant to which any Matching Company Contribution made
to the Plan on his behalf is credited.
(jj) "Maternity or Paternity Absence" means any period of time during
which an Eligible Employee or Participant is absent from work by reason of
pregnancy, the birth of a child thereto or adoption of a child thereby or for
the purpose of caring for such child for a period beginning immediately
following such birth or adoption.
(kk) "Named Fiduciary" means the Fiduciary or Fiducia ries named herein
who jointly or severally have the authority to control and manage the operation
and adminis tration of the Plan.
(ll) "Net Profit" means the amount of the taxable income of an Adopting
Company for Federal Income Tax pur poses for any Plan Year before any deduction
for any con tribution to be made to the Plan.
(mm) Non-Highly Compensated Employee means an Employee who is neither
a Highly-Compensated Employee nor a Family Member thereof.
(nn) "Non-Key Employee" means each Participant who is not a Key
Employee.
(oo) "Normal Retirement Age" means age sixty-five (65).
(pp) "Normal Retirement Date" means the first day of the first month
following the date upon which a Participant attains his Normal Retirement Age.
(qq) "One Year Break In Service" means each Vesting and Eligibility
Computation Period during which an Eligible Em ployee or Participant is not
credited with more than Five Hundred (500) Hours of Service. However, subject to
the conditions hereinafter set forth, for Plan Years beginning after August 23,
1984, an Eligible Employee or Participant shall be credited with the number of
Hours of Service with which he or she would have been credited but for any
absence from work constituting a Maternity or Paternity Absence or, if the
number of such hours may not be determined, with eight (8) Hours of Service for
each day of such absence. In general, any Hours of Service with which an
Eligible Employee or Participant is so credited shall be credited only to the
Eligibility or Vesting Computation Period during which such absence begins and
only if he or she would otherwise incur a One Year Break In Service during such
Period. However, if an Eligible Employee or Participant would not otherwise
incur a One Year Break In Service during the Eligibility or Vesting Computation
Period during which such Maternity or Paternity Absence begins, such Hours of
Service shall be credited to the immediately succeeding Eligibility or Vesting
Computation Period. Notwithstanding anything herein to the contrary, in no event
shall any Eli gible Employee or Participant be credited with more than Five
Hundred and One (501) Hours of Service in such Eligi bility or Vesting
Computation Period as a result of the foregoing provisions or with any such
Hours of Service un less he or she provides such information as may be reason
ably required to establish that such absence constitutes a Maternity or
Paternity Absence and the number of days of such absence qualifying as such on a
timely basis.
(rr) "Owner-Employee" means the owner of the entire interest in an
unincorporated trade or business or a partner who owns more than Ten Percent
(10%) of either the capital interest or profits interest in a partnership and,
to the extent provided in applicable regulations, an individual who has been an
Owner-Employee.
(ss) "Participant" means an Eligible Employee of an Adopting Company
who has satisfied the requirements for par ticipation in the Plan.
(tt) "Party-In-Interest" means any person described in Section 3(14) of
the Act, which description includes but is not limited to any Fiduciary, any
person (including legal counsel) providing services to the Plan, an Adopting
Company and the Employees thereof.
(uu) "Plan" means the Employees' Profit Sharing (401(k)) Plan
established by this Agreement and all subse quent amendments thereof.
(vv) "Plan Year" means the twelve (12) consecutive month period
beginning on each July 1st and ending June 30.
(ww) "Self-Employed Individual" means, with respect to any taxable
year, an individual who has earned income for such Year and, to the extent
provided in applicable regula tions, includes any individual who would be
self-employed but for the fact that his or her trade or business did not have
any net profits for such year and any individual who has been a Self-Employed
Individual for any prior taxable year.
(xx) "Service Organization" shall mean an organization the principal
purposes of which is the performance of ser vices.
(yy) "Sponsoring Company" means PENHALL INTERNATIONAL, INC., a
California corporation.
(zz) "Top Heavy" means that the aggregate of the balan ces of the
Company Contributions Accounts of all Key Em ployees of all Adopting Companies
hereunder, including (i) any amounts distributed to any Participants, Former
Participants or Beneficiaries thereof during the five (5) Plan Years ending on
the immediately preceding Anniversary Date or, if the first Plan Year begins
after December 31, 1983, as of the Anniversary Date thereof, and (ii) any
contribution not actually made as of the Anniversary Date which is required to
be taken into account on that date under Section 416 of the Code and the
regulations thereunder, but excluding (i) any Rollover Contribution or similar
transfer initiated by an Eligible Employee or a Participant, made after December
31, 1983, and to a plan maintained by an employer other than an Adopting Company
or required to be aggregated with such Adopting Company pursuant to the
provisions of Section 414(b), (c) or (m) of the Code, (ii) the value of the
Company Contributions Account of each then Non-Key Employee of all Adopting Com
panies who was previously a Key Employee and (iii) for Plan Years beginning
after December 31, 1984, the value of the Company Contributions Account of any
individual who has not performed any services for an Adopting Company or any
other employer described in clause (i) hereinbefore at any time during the five
(5) Plan Years ending on such Anniversary Date, exceeds Sixty Percent (60%) of
the aggregate of the balances of the Company Contributions Accounts of all Par
ticipants (with the same inclusions and exclusions) as of such Anniversary Date.
Moreover, the Plan shall be aggre gated with each other plan maintained by an
Adopting Company in which a Key Employee participates or which enables the Plan
to meet the requirements of Section 401(a)(4) or 410 of the Code and may be
aggregated with any
other plan main tained by an Adopting Company with which the Plan need not be so
aggregated but which meets the requirements of said Sections of the Code when
considered together therewith.
(aaa) "Top Heavy Compensation" means the maximum amount of the
Compensation of a Participant who is employed by an Adopting Company which may
be taken into account dur ing any Plan Year the Plan is Top Heavy with respect
to such Adopting Company for purposes of determining the amount of deductible
contributions hereto (currently Two Hundred Thousand Dollars ($200,000)), as
adjusted by the Adjustment Factor.
(bbb) "Top-paid Group of Employees" means the Employees who, when
ranked on the basis of Compensation, constitute the Twenty Percent (20%) of the
Employees receiving the greatest Compensation for the Plan Year; provided,
however, that Employees who (i) have not completed six (6) months of service,
(ii) normally work less than Seventeen and One-half (17-1/2) hours per week,
(iii) normally work less than six (6) months during the year, (iv) have not
attained the age of twenty-one (21) years, (v) except to the extent provided in
regulations, are Employees who are included in a unit of Employees covered by an
agreement which the Secretary of Labor finds to be a collective bargaining
agreement between employee representatives and an Adopting Company, if there is
evidence that retirement benefits were the subject of good faith bargaining
between such employee representatives and such Adopting Company or Companies, or
(vi) are non-resident aliens as defined in Section 414(q)(8)(F) of the Code
shall be excluded for purposes of determining the number of such Employees.
(ccc) "Trust" means the trust established and maintained pursuant to
the provisions of this Agreement.
(ddd) "Trust Fund" means the assets held by the Trustee hereof for and
on behalf of the Plan and the Participants.
(eee) "Trustee" means the person, persons or other en tities designated
by the Sponsoring Company as the Trustee hereof and initially means Roger C.
Stull.
(fff) "Year of Service" for eligibility purposes means each Eligibility
Computation Period during which an Eligible Employee is credited with at least
One Thousand (1,000) Hours of Service and for benefit accrual purposes means
each Plan Year during which a Participant is credited with at least One Thousand
(1,000) Hours of Service. In determining the number of Years of Service with
which an Eligible Employee or Participant is credited for eligibility and
benefit accrual purposes, service with both the Sponsoring Company and any
Adopting Company shall be taken into consideration and service with any
predecessor to the Spon soring Company or an Adopting Company shall be taken
into consideration if the Plan was established or maintained by such
predecessor.
ARTICLE II
PARTICIPATION
2.1 - Commencement of Participation.
Each Eligible Employee shall commence participation on the Entry Date
coinciding with or immediately following the later of (a) the last day of his
first Eligibility Compu tation Period for which he is credited with a Year of
Service for eligibility purposes or (b) the date upon which he attains the age
of twenty-one (21) years.
2.2 - Certification By Adopting Company.
Within thirty (30) days after each Entry Date, each Adopting Company
shall notify the Sponsoring Company's Com mittee, in writing, of the Eligible
Employees employed thereby who have become eligible to participate in the Plan
as of such Entry Date. Such notification shall be in such form and contain such
information as the Sponsoring Company's Committee may specify and, except in the
case of a possible mistake, need not be questioned by such Committee.
2.3 - Enrollment of Participant and Designation of Beneficiary.
Each Eligible Employee shall, upon notification that he has become a
Participant hereunder, designate a Bene ficiary, in writing, on a form provided
by and filed with the Sponsoring Company's Committee. An unmarried Participant
may, from time to time, change his Beneficiary without the consent of such
Beneficiary by filing a new written designation with the Sponsoring Company's
Committee. A married Participant may, from time to time, change his Beneficiary
by filing a new written designation with the Sponsoring Company's Committee but,
if such Participant desires to designate a party other than his spouse as a
Beneficiary of all or any portion of the amount payable from the Plan upon his
death, only with the written consent of his spouse. Any such written consent by
a Participant's spouse shall be witnessed by a Notary Public unless it is
established to the satisfaction of such Committee that such consent is not
required as a result of a prior written con sent or cannot be obtained because
such Participant is not married, because his spouse cannot be located or because
of such other circumstances as may be prescribed in any regula tions promulgated
under Section 417 of the Code. The Sponsoring Company's Committee, the Adopting
Company by which such Participant is employed and the Trustee may rely upon the
last designation so filed for purposes of making distribution of any amount
payable hereunder as the result of a Participant's death.
2.4 - Duration of Participation.
A Participant shall continue to participate during his subsequent
employment with any Adopting Company until the date he separates from the
service thereof for any reason ("Separation Date").
2.5 - Retirement.
A Participant shall retire on his Normal Retirement Date unless he
elects to continue in the employ of an Adopt ing Company beyond such date with
the approval thereof.
2.6 - Reparticipation By Former Participant.
A Former Participant shall again become a Participant on his
subsequent Date of Re-employment.
2.7 - Ineligible Employees.
An Employee who is not an Eligible Employee shall be come a
Participant on the Entry Date coinciding with or next following the date such
Employee first meets the re quirements specified in Section 2.1. A Participant
who loses his status as an Eligible Employee and subsequently regains such
status shall again become a Participant on the date he regains status as an
Eligible Employee.
ARTICLE III
COMPANY CONTRIBUTIONS
3.1 - Obligation.
Prior to the execution hereof, the Sponsoring Company has paid to the
Trustee the sum of at least One Hundred Dol lars ($100.00) as its initial
contribution to the Trust and each Adopting Company shall, subject to its rights
under Article X, make additional contributions for each Plan Year of the amount
determined under Section 3.2.
3.2 - Adopting Company Contributions.
Each Plan Year, each Adopting Company shall make a contribution to the
Plan on behalf of each Participant em ployed thereby who has elected to have his
Compensation re duced pursuant to the provisions of Section 4.1 hereof of the
amount equal to the sum of (a) such Participant's Salary Reduction Amount (the
"Salary Reduction Contribution") and (b) may, but shall not be required to, make
an additional contribution (the "Matching Contribution"), whether or not such
Adopting Company has current or accumulated Net Profits for such Year. The
Salary Reduction Contribution, if any, made on behalf of each Participant shall
be credited to his Company Contributions Account. Notwithstanding the foregoing,
the Plan is designed and intended to qualify as a profit sharing plan for
purposes of Section 401(a), 402 and 417 of the Code.
3.3 - Limitations on Contributions.
The total amount of the contribution made to the Plan by any Adopting
Company for any Plan Year shall not exceed Fifteen Percent (15%) of the Net
Compensation of all Participants employed thereby for such Year. Moreover, the
Net Compensation of each Participant taken into account for purposes of the
computing the foregoing limitation shall not exceed Two Hundred Thousand Dollars
($200,000), as adjusted by the Adjustment Factor.
3.4 - Payment of Contributions.
Each Adopting Company shall deliver its Salary Reduc tion
Contributions to the Trustee at such time or times as may be convenient for such
Adopting Company but in any case within forty-five (45) days of the date any
such amounts are deducted from the Compensation of the Participants employed
thereby. In addition, each Adopting Company shall deliver any Matching
Contributions made thereby for any Plan Year to the Trustee but may do so on any
date or dates selected by such Company so long as all of such contributions are
so delivered to the Trustee within the time permitted by the Code to obtain a
Federal income tax deduction for such Year. Any amount delivered to the Trustee
after the last day of any Plan Year but within such time shall be treated as a
contribution on account of such Year and as if delivered on the last day thereof
provided such amount has either been designated as a contribution on account of
or is claimed as a deduction for such Year.
ARTICLE IV
PARTICIPANTS' SALARY REDUCTIONS
4.1 - Salary Reductions.
Subject to the provisions hereinafter set forth in this Article IV,
each Participant shall elect to have his Compensation for each Plan Year (or, if
such Participant's Entry Date is any day other than the first day of a Plan
Year, initially for the period beginning with his Entry Date and ending with the
following Anniversary Date, and thereaf ter, for each Plan Year) reduced by such
amount as he may select ("Salary Reduction Amount").
4.2 - Specification of Salary Reduction Amount.
(a) Each Participant shall specify his Salary Reduction Amount in a
written election delivered to the Adopting Company by which he is employed
during the first Salary Reduction Election Period beginning immediately prior to
his Entry Date. The term "Salary Reduction Election Period" means each thirty
(30) day period ending on each May 1st or December 1st subsequent to the
Effective Date.
(b) Each Participant shall specify his Salary Reduction Amount in the
form of a percentage, in increments of one percent (1%), or, with the approval
of the Adopting Company by which he is employed in accordance with a uniform and
non-discriminatory policy, of a fixed dollar amount, of his Compensation for
each regular payroll period.
4.3 - Modification of Salary Reduction Amount.
A Participant may modify his Salary Reduction Amount only during a
subsequent Salary Reduction Election Period or during such other periods as the
Sponsoring Company, in ac cordance with a uniform and non-discriminatory policy,
may specify from time to time. Any such modification shall be effective as of
the first day of the first regular payroll period beginning at least fifteen
(15) days after the date upon which written notice of such modification is
delivered by the Participant to the payroll or accounting department of the
Adopting Company by which he is employed.
4.4 - Revocation of Salary Reduction Election.
A Participant may revoke his election to have his Com pensation
reduced at any time but shall not thereafter be entitled to make any subsequent
election to again reduce his Compensation until the next succeeding Salary
Reduction Election Period. Any such revocation shall be effective as of the
first day of the first regular payroll period begin ning at least fifteen (15)
days after the date upon which written notice of such revocation is delivered to
the payroll or accounting department of the Adopting Company by which he is
employed.
4.5 - Limitations on Salary Reduction Amounts.
(a) The Salary Reduction Amount of each Participant who is a Highly
Compensated Employee, when expressed as a percentage of his Net Compensation,
shall not exceed Twelve Percent (12%) for any Plan Year, the Salary Reduction
Amount of each Participant who is a Non-Highly Compensated Employee, when
expressed as a percentage of his Net Compen sation, shall not exceed Seventeen
and Sixty Five One Hundredths Percent (17.65%) of his Net Compensation for any
Plan Year and, in the case of any Participant, shall not exceed the Calendar
Year Elective Deferral Dollar Limitation, whether he is a Highly Compensated
Employee or a Non-Highly Compensated Employee.
(b) Notwithstanding anything herein to the contrary, each Adopting
Company shall have the right and shall be re quired to limit the Salary
Reduction Amount of each Parti cipant employed thereby who is a Highly
Compensated Employee to the extent necessary to assure that the Average Actual
Deferral Percentage for the Highly Compensated Employees ("High Average Actual
Deferral Percentage") for each Plan Year, after giving effect to the provisions
of Section 5.1 for such Year, will not exceed the higher of the following two
percentages ("Percentage Limitations"):
(1) The percentage which is one and one-quarter (1 1/4) times
the Average Actual Deferral Percentage for all Participants who are not
Highly Compensated Employees ("Low Average Actual Deferral
Percentage"); or
(2) The percentage which is two (2) times the Low Average
Actual Deferral Percentage; provided such percentage does not exceed
the Low Average Actual Deferral Percentage by more than
two (2) percentage points.
(c) The term "Average Actual Deferral Percentage" means the average of
the Actual Deferral Percentages of the relevant group of Participants; the term
"Actual Deferral Percentage" means for a specified group of Participants for a
Plan Year, the average of the ratios (calculated separately for each Participant
in such group) of (1) the amount of Salary Deferral Contributions actually paid
over to the Trust on behalf of such Participant for the Plan Year to (2) the
Participant's Compensation for such Plan Year. Salary Deferral Contributions on
behalf of any Participant shall include Excess Deferrals of Highly Compensated
Employees, but exclude Excess Deferrals of Non-highly Compensated Employees that
arise solely from Salary Deferral Contributions made under the Plan or plans of
an Adopting Company. For purposes of computing Actual Deferral Percentages, an
Employee who would be a Participant but for the failure to make Salary Deferral
Contributions shall be treated as a Participant on whose behalf no Salary
Deferral Contributions are made.
4.6 - Distribution of Excess Contributions.
(a) "Excess contributions" means, with respect to any Plan Year, the
excess of:
(1) The aggregate amount of Salary Deferral Contributions
actually taken into account in computing the Actual Deferral Percentage
of Highly Compensated Employees for such Plan Year; over
(2) The maximum amount of such amounts permitted by the Actual
Deferral Percentage test (determined by reducing contributions made on
behalf of Highly Compensated Employees in order of the Actual Deferral
Percentage, beginning with the highest of such percentages).
(b) 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 Adopting Company 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 such
Employee. Excess contributions shall be allocated to Participants who are
subject to the Family Member aggregation rules of Section 414(q)(6) of the Code
in proportion to the Salary Deferral Contributions of each Family Member that is
combined to determine the combined Actual Deferral Percentage. Excess
contributions shall be treated as Annual Additions under the Plan.
(c) Excess contributions shall be adjusted for any income or loss up to
the date of distribution. The income or loss allocable to excess contributions
is the sum of: (1) income or loss allocable to the Participant's Company
Contributions Account for the Plan Year multiplied by a fraction, the numerator
of which is such Participant's excess contributions for the year and the
denominator of which is the Participant's Company Contributions Account without
regard to any income or loss occurring during such Plan Year; and (2) ten
percent of the amount determined under (1) multiplied by the number of whole
calendar months between the end of the Plan Year and the date of distribution,
counting the month of distribution if distribution occurs after the 15th day of
such month.
4.7 - Additional Rules.
(a) The Actual Deferral Percentage for any Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to have Salary
Deferral Contributions allocated to his Accounts under two or more arrangements
described in Section 401(k) of the Code that are maintained by an Adopting
Company or any Affiliated Company, shall be determined as if such Salary
Deferral Contributions were made under a single arrangement. If a Highly
Compensated Employee participates in two or more cash or deferred arrangements
that have different Plan Years, all cash or deferred arrangements ending with or
within the same
calendar year shall be treated as a single arrangement. Notwithstanding the
foregoing, certain plans shall be treated as separate if mandatorily
disaggregated under the regulations of Code Section 401(k).
(b) In the event that this Plan satisfies the requirements of Sections
401(k), 401(a)(4), or 410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan, then this Section shall
be applied by determining the Actual Deferral Percentage of Employees as if all
such plans were a single plan. For Plan Years beginning after December 31, 1989,
plans may be aggregated in order to satisfy Section 401(k) of the Code only if
they have the same Plan Year.
(c) Each Adopting Company shall maintain records sufficient to
demonstrate satisfaction of the Actual Deferral Percentage test.
(d) 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.
(e) The Compensation and Salary Deferral Contributions of an individual
who is a 5 percent owner as determined under Section 416(i) of the Code or one
of the ten most highly-paid Highly Compensated Employees shall include the
Salary Deferral Contributions of Family Members of such individual. Such Family
Members shall be disregarded as separate Employees in determining the Actual
Deferral Percentage both for Participants who are Nonhighly Compensated
Employees and for Participants who are Highly Compensated Employees.
(f) Salary Deferral Contributions must be deposited into the Trust
before the last day of the twelve-month period immediately following the Plan
Year to which contributions relate in order to be considered in calculating the
Actual Deferral Percentage. 4.8 - Excess Deferrals.
On or before March 1 of any year, each Participant may advise the
Sponsoring Company's Committee of the amount by which the aggregate of all
elective deferrals he has made during the immediately preceding calendar year to
all plans described in Sections 401(k), 403(b) and 408(k) of the Code exceeds
the Calendar Year Elective Deferral Dollar Limitation, if any ("Excess
Deferrals") and the amount, if any, of such Excess Deferrals which he desires to
be deemed to have been made to this Plan. If a Participant designates any
portion of the Salary Deferral Contribution contributed to this Plan on his
behalf as an Excess Deferral, the Committee shall direct the Trustee to
distribute such amount, together with any income attributable thereto, to such
Participant on or before the following April 15th. The income or loss allocable
to Excess Deferrals is the sum of: (1) income or loss allocable to the
Participant's Company Contributions Account for the preceding calendar year
multiplied by a fraction, the numerator of which is such Participant's Excess
Deferrals for such year and the denominator is the Participant's account balance
attributable to Salary Deferral Contributions without regard to any income or
loss occurring during such year; and (2) ten percent of the amount determined
under (1) multiplied
by the number of whole calendar months between the end of such year and the date
of distribution, counting the month of distribution if distribution occurs after
the 15th day of such month.
ARTICLE V
MATCHING CONTRIBUTIONS
5.1 - Allocation of Matching Contributions.
(a) Any contribution made by an Adopting Company for a Plan Year shall
first be allocated to the Matching Contribu tions Accounts of those Participants
employed thereby who have been credited with a Year of Service for such Year as
follows:
(1) For the Plan Year ending June 30, 1990, if the High
Average Actual Deferral Percentage for such Plan Year would exceed the
higher of the two Percentage Limitations described in Section 4.5(b),
the portion of such Adopting Company's contribution for such Year which
equals the smal lest aggregate amount which, when allocated to the
Matching Contributions Accounts of those Partici pants employed thereby
who are Non-Highly Compensated Employees in the same ratios which each
such Participant's Salary Reduction Contribution for such Year bears to
the aggregate of the Salary Reductions Contributions of all of such
Participants and included as constituting Salary Reduction
Contributions of such Participants in computing the Low Average Actual
Deferral Percentage, will result in the High Ave rage Actual Deferral
Percentage meeting one of such Percentage Limitations shall be
allocated to the Matching Company Contributions Accounts of such
Participants who are Non-Highly Compensated Employees. By so providing,
each Adopting Company intends that any amount allocated to the Matching
Contributions Account of a Participant who is a Non-Highly Compensated
Employee pursuant to the provisions of this Section 5.1(a)(1)
constitute a qualified nonelective contribution. Accordingly, all of
such amounts shall be deemed to constitute Salary Reduction
Contributions for purposes hereof.
(2) For Plan Years beginning after June 30, 30, 1990, the
portion of such Adopting Company's contribution which equals the
aggregate amount which, when allocated to the Matching Contributions
Account of each Participant employed thereby on the basis of One Dollar
($1.00) for each One Dollar ($1.00) of such Participant's Sal ary
Reduction Contribution for such Year up to but not exceeding Two
Hundred Dollars ($200.00), or such other amount as the Sponsoring
Company may specify for such Plan Year (the "Dollar For Dollar Match
Limit"), shall be allocated to each such Participant's Matching
Contributions Account. All of such amounts shall be deemed to
constitute Salary Reduction Contributions for all purposes hereof other
than the provisions of Section 5.1(a)(4); thereafter, for succeeding
Plan Years beginning after June 30, 1991, the portion of such Adopting
Company's contribution which equals the aggregate amount which, when
allocated to the Matching
Contributions Account of each Participant employed thereby on the basis
of Fifty Cents ($0.50) for each One Dollar ($1.00) of such
Participant's Salary Reduction Contribution for such Year up to but not
to exceed Four Hundred Dollars ($400.00), or such other amount as the
Sponsoring Company may specify for such Plan Year (the "50% Match
Limit"), shall be allocated to each such Participant's Matching
Contributions Account. All of such amounts shall be deemed to
constitute Salary Reduction Contributions for all purposes hereof other
than the provisions of Section 5.1(a)(4).
(4) For Plan Years beginning after June 30, 1990, if the High
Average Actual Deferral Per centage for such Plan Year would exceed the
higher of the two Percentage Limitations described in Section 4.5(b),
the portion of such Adopting Company's contribution for such Year which
equals the smallest aggregate amount which, when allocated to the
Matching Contributions Accounts of those Participants employed thereby
who are Non-Highly Compensated Employees in the same ratios which each
such Participant's Salary Reduction Contribution for such Year bears to
the aggregate of the Salary Reductions Contributions of all of such
Participants and included as constituting Salary Reduction
Contributions of such Participants in computing the Low Average Actual
Deferral Percentage, will result in the High Average Actual Deferral
Percentage meeting one of such Percentage Limitations shall be
allocated to the Matching Company Contributions Accounts of such
Participants who are Non-Highly Compensated Employees. By so providing,
each Adopting Company intends that any amount allocated to the Matching
Contributions Account of a Participant who is a Non-Highly Compensated
Employee pursuant to the provisions of this Section 5.1(a)(3)
constitute a qualified nonelective contribution. Accordingly, all of
such amounts shall be deemed to constitute Salary Reduction
Contributions for purposes hereof.
(5) If the contribution made by an Adopting Company for the
Plan Year ending June 30, 1990, exceeds the amount, if any, required to
be allocated to the Matching Contributions Accounts of Participants who
are Non-Highly Compensated Employees pursuant to the provisions of
Section 5.1(a)(1), or, for Plan Years beginning after June 30, 1990,
the amount, if any, required to be allocated to the Matching
Contributions accounts of Participants who are Non-Highly Compensated
Employees pursuant to the provisions of Section 5.1(a)(3), the balance
of such Adopting Company's contributions for such Year shall be
allocated to the Matching Contributions Accounts of those Participants
employed thereby who have been credited with a Year of Service for such
Year in the same ratios that each such Participant's Salary Reduction
Contribution for such Year bears to the Salary Reduction Contributions
of all Participants employed thereby for such Year; provided,
however, that the Salary Reduction Contribution for such Year of each
Participant who is a Non-Highly Compensated Employee shall be deemed to
include the amount, if any, required to be allocated to the Matching
Contribution Account of such Participant pursuant to the provisions of
Section 5.1(a)(1) or 5.1(a)(3), as the case may be. By so providing,
each Adopting Company intends to comply with the provisions of Section
401(m)(3) of the Code.
(b) Notwithstanding the provisions of subsection (a) hereinabove, if
an Adopting Company does not maintain a qualified defined benefit retirement
plan, or does maintain such a plan but each Non-Key Employee thereof does not ac
crue the minimum benefit thereunder required by Section 416 of the Code, such
Adopting Company's contribution, if any, for any Plan Year beginning after
December 31, 1983 for which this Plan is Top Heavy as to such Adopting Company
shall be allocated on the basis of the Top Heavy Compensa tion of each
Participant therein and in such manner as may be prescribed by the Code or any
pertinent regulations pro mulgated thereunder as will result in each Non-Key
Employee who is a Participant therein receiving an allocation here under of the
amount which, when added to the amount allocat ed to his Company Contribution
Account under any other qualified defined contribution retirement plan
maintained by such Adopting Company for such Year, will at least equal the
lesser of (i) Three Percent (3%) of his Top Heavy Compensa tion, (ii) the
highest percentage computed by dividing the amount of the Company contributions
so allocated to the Ac counts of each Key-Employee who is a Participant therein
by his Top Heavy Compensation, or (iii) the amount otherwise required after any
credit against or reduction of the mini mum amounts described in clauses (i) or
(ii) allowable for benefits accrued under any such defined benefit plan. How
ever, if such Adopting Company maintains any other qualified defined benefit
retirement plan and this Plan is aggregated therewith for purposes of meeting
the requirements of Sec tion 401(a)(4) or 410 of the Code, the minimum amount
des cribed in clause (ii) of the preceding sentence shall not be applicable.
Further, if such Adopting Company maintains any other qualified defined benefit
plan for purposes of provid ing the additional benefits permissible by Section
415 of the Code, and each Non-Key Employee does not accrue the minimum benefit
thereunder required by Section 416 of the Code, the percentage set forth in
clause (i) hereinabove shall be deemed to be Four Percent (4%). For purposes of
the foregoing, the term Non-Key Employee shall include each Non-Key Employee who
must be considered to be a Participant to satisfy the coverage requirements of
Section 410(b) of the Code in accordance with Section 401(a)(5) of the Code,
whether or not he has been credited with One Thousand (1,000) Hours of Service,
declined to make mandatory contri butions to the Plan or has been excluded from
the Plan be cause his Compensation is less than a stated amount set forth in the
Plan.
(c) The Annual Additions to a Participant's Accounts (including the
additions to his accounts under any other qualified defined contribution
retirement plan to which an Affiliated Company contributes on his behalf) during
any Plan Year shall not exceed the lesser of (i) the greater of (A) Thirty
Thousand Dollars ($30,000) or (B) one quarter (1/4) of the Defined Benefit
Dollar Limit (as defined in Section 5.2(a)(3)), or (ii) Twenty-Five Percent
(25%) of his Compensation during
such Plan Year. If a short limitation year is created because of an amendment
changing the limitation year to a different 12-consecutive month period, the
maximum permissible amount will not exceed the defined contribution dollar
limitation multiplied by the following fraction:
Number of months in the short limitation year: 12
The term "Annual Additions" means the sum of:
(1) each Affiliated Company's contributions;
(2) the Participant's voluntary contributions for such period;
and
(3) any amounts contributed by an Affiliated Company and
allocated to any individual medical account which is part of any
pension or annuity plan, including the Plan, maintained by such Company
and any amounts contributed by such Company and allocated to a separate
account main tained by such Company in connection with a funded welfare
benefit plan from which medical or life insurance benefits are provided
for a Key Employee employed thereby after retirement.
If the Annual Additions to a Participant's Accounts for any Year would exceed
the limitation described hereinabove, the amount by which such Annual Additions
so exceed such limita tion ("Excess Annual Additions") shall be credited to a
suspense account, such suspense account shall be adjusted as of the immediately
following Anniversary Date to reflect the increase or decrease in the fair
market value of the Trust Fund attributable thereto (including gains and other
income or losses thereof as of such Anniversary Date and shall then be allocated
or reallocated to the Company Contributions Accounts of all Participants
employed by the Adopting Company making the contributions resulting in such
Excess Annual Additions who have been credited with a Year of Service for
benefit accrual purposes as of such Anniversary Date in the same ratios that
each such Participant's Compen sation for the Plan Year ending with such
Anniversary Date bears to the total Compensation of all of such Participants for
such Plan Year before allocation of any contributions made to the Plan for such
Plan Year by such Adopting Company. Moreover, if the Plan is terminated, the
balance then credited to the suspense account and not previously reallocated to
the Participant's Company Contributions and Matching Contributions Accounts
shall revert to the appropriate Adopting Company, notwithstanding any provision
hereof to the contrary.
5.2 - Additional Limitations in the Event of Adopting Company Defined Benefit
Pension Plan.
(a) If an Affiliated Company has established or establishes and
maintains a qualified defined benefit pen sion plan, the sum of the Defined
Benefit Fraction and the Defined Contribution Fraction for each Participant
therein for any Plan Year shall not exceed 1.0.
(1) The Defined Benefit Fraction for each Participant for any
Year is a fraction, the numerator of which is the Participant's
projected annual benefit under such defined benefit pension plan and
the denominator of which is the lesser of (i) the product of 1.25
multiplied by the Defined Benefit Dollar Limit for such Year or (ii)
the product of 1.4 multiplied by his Defined Benefit Compensation
Limit.
Nothwithstanding the above, at the election of the
Committee, if the Participant was a Participant as of the first day of
the first limitation year beginning after December 31, 1986, in one or
more defined benefit plans maintained by an Affiliated Company 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 beginning before January 1, 1987, disregarding any
changes in the terms and conditions of the Plan after May 5, 1986. The
preceding sentence applies only if the defined benefit plans
individually and in the aggregate satisfied the requirements of Section
415 for all limitation years beginning before January 1, 1987.
(2) The Defined Contribution Fraction for each Participant for
any Year is a fraction, the numerator of which is the sum of the Annual
Addi tions to his account for such Year and the denomi nator of which
is the lesser of (i) the product of (A) 1.25 and (B) Thirty Thousand
Dollars ($30,000), as adjusted by the Adjustment Factor, or (ii) the
product of (A) 1.4 and (B) Twenty-five Percent (25%) of his
Compensation for such Year. Notwithstanding the foregoing, at the
election of the plan administrator, the amount taken into account for
purposes of computing the denominator of the Defined Contribution
Fraction of any Par ticipant for all Years ending before January 1,
1983 shall be equal to the product of (i) the amount determined as the
denominator of the Defined Contribution Fraction for the Year ending in
1982 multiplied by (ii) a fraction the numer ator of which is the
lesser of (a) $51,875 or (b) the product of 1.4 multiplied by
Twenty-five Percent (25%) of his Net Compensation for the Year ending
in 1981, and the denominator of which is the lesser of (a) $41,500 or
(b) Twenty-five Percent (25%) of his Net Compensation for the Year
ending in 1981.
Notwithstanding the foregoing, at the election of the
Committee, if the Employee was a Participant as of the end of the first
day of the first limitation year beginning after December 31, 1986, in
one or more defined contribution plans maintained by an Affiliated
Company which were in existence on May 6, 1986, the numerator of this
fraction will be adjusted if the sum of this fraction and the defined
benefit fraction would otherwise exceed 1.0 under the terms of this
Plan. Under the adjustment, an
amount equal to the product of (1) the excess of the sum of the
fractions over 1.0 times (2) the denominator of this fraction, will be
permanently subtracted from the numerator of this fraction. The
adjustment is calculated using the fractions as they would be computed
as of the end of the last limitation year beginning before January 1,
1987, and disregarding any changes in the terms and conditions of the
Plan made after May 5, 1986, but using the Section 415 limitation
applicable to the first limitation year beginning on or after January
1, 1987. The annual addition for any limitation year beginning before
January 1, 1987, shall not be recomputed to treat all employee
contributions as annual additions.
(3) The Defined Benefit Dollar Limit for any Year is the
projected annual benefit provided for a Participant by an Adopting
Company's contribu tions to any defined benefit pension plan estab
lished and maintained by such Adopting Company, expressed as a benefit
payable annually in the form of a straight life annuity with no
ancillary benefits which does not exceed the lesser of (i) Ninety
Thousand Dollars ($90,000), as adjusted by the Adjustment Factor, or
(ii) One Hundred Percent (100%) of his Compensation averaged over his
high Three (3) years; provided, however, that both such limits shall be
reduced by One-tenth (1/10th) (i) for Plan years beginning before
January 1, 1987, for each Year of Service for benefit accrual pur poses
or (ii) for Plan Years beginning before December 31, 1986, for each
year of participation in the plan less than Ten (10) which such Partici
pant will have at his Normal Retirement Date. In addition, the Defined
Benefit Dollar Limit shall be further adjusted in accordance with any
regulations promulgated under Section 415 of the Code, as follows:
(a) If payment of a Participant's re tirement income
benefit under such defined benefit pension plan would begin before the
age used as retirement age under Section 216(1) of the Social Security
Act without regard to the age increase factor and as if the early
retirement age under said section of the Social Security Act were
sixty-two (62) (the "Social Security Retirement Age") to the equivalent
of an annual retirement income benefit of the Defined Benefit Dollar
Limit beginning at the Social Security Retirement Age.
(b) For Plan Years beginning before January 1, 1987,
if payment of a Participant's retirement income benefit would begin
before age Fifty-five (55), to the equivalent of an annual retirement
income benefit of Seventy-Five Thousand Dollars ($75,000) beginning age
Fifty-five (55); or
(c) For Plan Years beginning before January 1, 1987,
if payment of such benefit would begin after age Sixty-five (65), or,
for Plan Years beginning after December 31, 1986, the Social Security
Retirement Age, to the
equivalent of an annual retirement income benefit of the Defined
Benefit Dollar Limit beginning at age Sixty-five (65) or the Social
Security Retirement age, as the case may be.
In making the adjustments described in sub-subsec tions (a) and (b)
above, the interest rate assump tion shall be no less than the greater
of Five Percent (5%) or such other rate as may be specified in the
plan, and in making the adjustment described in subsubsection (c)
above, the interest rate assumption shall be no greater than the lesser
of Five Percent (5%) or such other rate as may be specified in such
plan. Moreover, the accrued benefit of each Non Key Employee shall be
computed (i) under the method, if any, which is applied uniformly to
all defined pension plan maintained by the Company for purposes of
computing accrued benefits or (ii) as if such benefit accrued at a rate
which is not more rapid than the slowest rate at which benefits may be
accrued pursuant to the fractional rule described in Section
411(b)(1)(C) of the Code.
5.3 - Annual Valuation.
On each Anniversary Date, each Participant's Accounts, including the
Accounts of Inactive Participants, shall be adjusted to reflect the net increase
or decrease in the fair market value of the assets constituting the Trust Fund
since the preceding Anniversary Date. Any such increase or de crease
attributable to (a) assets which have been acquired at the direction of
Participants shall be allocated solely to the Accounts to which such assets are
credited, (b) any Contract shall be deemed to have been credited to the Ac
counts of the Participants for whom held and (c) the assets not described in the
preceding clauses (a) and (b) shall be apportioned among the Participant's
Accounts in the same ratios which the fair market value of each of such Accounts
attributable to such assets bore to the aggregate fair market value of such
assets or the proceeds or avails of which assets were used to acquire such
assets as of the preceding Anniversary Date. Moreover, any expenses incurred in
connection with the acquisition or disposition of assets which have been
acquired at the direction of Participants, including any additional
administration expenses incurred in connection therewith, shall be charged
solely to the Accounts to which such Assets are allocated and if any Contracts
constitute part for the Trust Fund, the interest of each Participant therein
shall be deemed to have been allocated to the appropriate Accounts thereof. No
Adopting Company, any member of the Committee established thereby or Trustee
warrant, guarantee or represent in any manner or to any extent that the value of
a Participant's Accounts will at any time equal or exceed the total amount
previously contributed thereto by any Adopting Company, any Participant or both.
5.4 - Interim Valuations.
The fair market value of the assets, other than assets acquired at the
direction of Participants and interests in Contracts, allocated to the Accounts
of a Participant whose participation hereunder ceases as
of a date other than an Anniversary Date shall not be revalued as of such date
unless a substantial change in the fair market value of such assets has
occurred. In any such case, the Committee shall cause the Trustee to determine
the fair market value of the assets constituting the Trust Fund, other than
assets acquired at the direction of Participants and interests in any Contracts,
as of the last day of the calendar month immediately preceding the month during
which such Participant's participation hereunder ceases, divide such fair market
value by the fair market value of such assets as of the preceding Anniversary
Date and multiply the result thereof by the portion of the values of the
Participant's Accounts attributable thereto as of the immediately preceding
Anniversary Date. All such interim valuations shall be made in a uniform and
nondiscriminatory manner.
ARTICLE VI
BENEFITS
6.1 - Vesting of Company Contributions.
Each Participant shall have a nonforfeitable vested interest in the
balances credited to his Company Contribu tions and Matching Contributions
Accounts, which balances shall be determined, at any point in time, after any
adjust ments required to be made pursuant to the provisions of Article V.
6.2 - Changes in Vesting Schedule.
Notwithstanding anything herein to the contrary, each Participant who
has been credited with three (3) or more Years of Service for vesting purposes
as of the date any modification of the schedule used to determine such Partici
pant's vested percentage in his Accrued Benefit becomes effective shall have the
right to elect, during the period beginning with the effective date of such
modification and ending on the later of (a) the date which is sixty (60) days
after such date or (b) the date which is sixty (60) days after the date upon
which such Participant is provided with written notice of such modification, to
elect to have his vested percentage in his Accrued Benefit determined in
accordance with the schedule in effect prior to such modi fication.
6.3 - Amount Distributable.
A Participant shall be entitled to receive the amount equal to the
balances of his Company Contributions and Matching Contributions Accounts,
adjusted in accordance with the provisions of Section 5.3, and further adjusted,
if required, in accordance with the provisions of Section 5.4 ("Distributable
Amount").
6.4 - Events Entitling Participant of Beneficiary to Distribution.
Except as provided in Section 6.9, a Participant or his Beneficiary
shall only be entitled to distribution of his, or in the case of a Beneficiary,
such Participant's Distributable Amount as a result of his attainment of his
Normal Retirement Age, becoming disabled within the meaning of Section 5.1(b) or
termination of employment with all Adopting Companies or, in the case of a
Beneficiary of a Participant whose participation hereunder ceases as a result of
his death, the Participant's death, termination of the Plan without the
establishment of a successor plan (other than an employee stock ownership plan
under Code Section 4975(e) or a simplified employee pension under Code Section
408(k))or the occurrence of any other event prescribed in Section 401(k)(2)(B)
of the Code, subject to the provisions of Section 6.8.
6.5 - Distribution of Benefits.
(a) When a Participant becomes entitled to receive distribution of his
Distributable Amount, the Sponsoring Company's Committee shall,
upon computing the amount thereof, authorize and direct the Trustee to make
distribution of such benefit in a lump sum; provided, however, that if the
amount thereof exceeds Three Thousand Five Hundred Dollars ($3,500), the written
consent of both such Participant and his spouse, if any, shall be required
within the 90-day period ending on the Annuity Starting Date. Further, if such
sum is less than Thirty Five Hundred Dollars ($3,500) but distribution thereof
is to be made after the Participant's Annuity Starting Date, the written consent
of the Participant and his spouse, if any, or if the Participant has died, of
his surviving spouse, shall be required.
(b) The Sponsoring Company's Committee shall notify the Participant and
the Participant's spouse of the right to defer any distribution of the
Participant's Distributable Amount. Such notification shall include a general
description of the material features, and an explanation of the relative values
of the optional forms of benefit available under the Plan in a manner that would
satisfy the notice requirements of Section 417(a)(3), and shall be provided no
less than 30 days and no more than 90 days prior to the Annuity Starting Date.
Neither the consent of the Participant nor the Participant's spouse shall be
required to the extent that a distribution is required to satisfy Section
401(a)(9) or Section 415 of the Code.
6.6 - Form of Distribution.
The assets or interests therein allocated to a Par ticipant's Company
Contributions and Matching Contributions Accounts shall be distributed in kind
or, if so requested by such Participant or his Beneficiary, in writing, or if re
quired by the Insurer issuing any Contract, be converted to cash and the cash so
realized distributed.
6.7 - Commencement of Benefits.
(a) If the participation of a Participant terminates for any reason
other than death, disability or retirement on or after attaining Normal
Retirement Age, distribution of his Distributable Amount shall be made on or
after, but not more than Sixty (60) days after, the Anniversary Date of the Plan
Year during which such Former Participant attains his Normal Retirement Age.
However, the Sponsoring Company's Committee may, in accordance with a uniform
and nondiscriminatory policy, but shall not be required to, authorize
distribution of such Participant's Accrued Benefit prior to such Anniversary
Date.
(b) If the participation of a Participant terminates as a result of
death, disability or retirement on or after attaining his Normal Retirement Age,
distribution of his Accrued Benefit shall be made at such time as the Sponsoring
Company's Committee may, in accordance with a uniform and nondiscriminatory
policy, determine but in no event after whichever of the dates specified
hereinafter is applicable. If the participation of a Participant terminates as a
result of his death and such Participant is survived by his spouse, such
Participant's spouse shall have the right to require that distribution of his
Distributable Amount begin within a reasonable time following the Participant's
death.
(c) If a Participant dies after the date his participation terminates
but prior to the date distribution of his Distributable Amount is made,
distribution of such Distributable Amount shall be made within Five (5) years
after the date of his death.
(d) Notwithstanding anything herein to the contrary, distribution of
the Distributable Amount of each Participant hereunder shall be made not later
than the Sixtieth (60th) day after the latest of the close of the Plan Year in
which:
(1) such Participant attains his Normal Retirement Age; or
(2) such Participant terminates his employ ment with all
Adopting Companies;
unless he elects otherwise but in any case on or before April 1st of the
calendar year following the later of the calendar year during which the
Participant attains the age of Seventy and One-half (70 1/2) years.
(e) If the Sponsoring Company's Committee contemplates directing the
Trustee to distribute an amount which has become payable hereunder as a result
of the death of a Par ticipant to the person or persons specified in a
beneficiary designation from on file therewith but any dispute arises regarding
the validity thereof, such Committee may direct the Trustee to interplead such
amount with any court of competent jurisdiction. Any and all costs incurred in
connection with so doing shall be charged against the amount so interpleaded.
(f) If the Distributable Amount of a Participant or his Beneficiary
cannot be distributed thereto because the Sponsoring Company's Committee cannot
locate such Partici pant or Beneficiary after making a reasonable effort to do
so, such Committee may authorize and direct the Trustee to deposit such Amount
in a segregated interest bearing account until such Participant or Beneficiary
is located. If such Participant or Beneficiary cannot be located within one (1)
year of the date as of which written notice of the availability of such Amount
has been deposited in the U.S. Postal service, postage prepaid, certified return
receipt requested and addressed to the Participant or Beneficiary at the last
known address to such Committee, such Committee may treat such amount as an
offset against the amount of the Salary Reduction Contribution or Matching
Contribution otherwise required to be made by the Adopting Company by which such
Participant was employed for the Plan Year with or within which such one (1)
year period expires. However, if the Participant or Beneficiary entitled to
receive such Amount subsequently files a claim therefor, such Amount shall be
reinstated.
(g) If a Participant has failed to provide the Committee with a valid
and effective Beneficiary designation, the Committee may direct that any amount
which becomes payable as a result of such Participant's death be paid to such
Participant's surviving spouse or, if such Participant is not survived by a
spouse, to such Participant's issue who have survived him, or, if such
Participant is not survived by a spouse or by any issue, to the personal
representative of his estate.
(h) For purposes of the foregoing, any amount paid to a child
of a Participant shall be deemed to have been paid to such Participant's spouse
if such amount would have been paid to such Participant's spouse if such child
had attained the age of majority at the time payment thereof was made.
(i) If a Participant, Former Participant, the Beneficiary
thereof or any other party who is entitled to receive payments made hereunder
is declared incompetent by a court of competent jurisdiction or is otherwise
under any legal disability, the Trustee may make payment of all or any
portions of any of such payments to which such recipient is entitled to the
guardian, conservator or other judicially appointed fiduciary of such
person's estate. Moreover, if the Committee determines that a Participant,
Former Participant, the Beneficiary thereof or any other party entitled to
receive payments made hereunder is unable to manage his or her own financial
affairs, the Committee may direct the Trustee to make any payments which
would otherwise be made to such person hereunder to the legal representative
thereof or, if such person does not have a legal representative, to a
relative or friend or on behalf of such person.
6.8 - Loans to Participants.
The Sponsoring Company's Committee is specifically authorized to
establish and administer a Participant loan program. Moreover, such Committee is
further authorized to develop the procedures and guidelines to be followed in
granting Participant loans made on or after October 18, 1989. Such procedures
and guidelines shall be set forth in a written addendum to the Plan and Trust
Agreement and to the summary plan description provided to the Participants
hereunder, and shall include but not be limited to the following:
(a) A statement declaring that such Committee is authorized to
administer the loan program.
(b) A description of the procedures to be followed in applying
for a Participant loan.
(c) A description of the basis upon which applications for
loans will be approved or denied.
(d) A description of the limitations, if any, imposed on the
types and amounts of loans available. However, in no event shall a loan
in excess of Ten Thousand ($10,000.00) be made to a Participant or
beneficiary if the amount exceeds the lesser of (1) Fifty Thousand
Dollars ($50,000.00), reduced by the excess, if any, of the highest
outstanding balance of all loans made to such Participant or
beneficiary during the one (1) year period ending on the day preceding
the date such loan is made or (2) one-half (1/2) of the balance
credited to the Company Contributions Account of the Participant or
beneficiary to whom such loan is made, unless he acknowledges in
writing that he understands that any loan in excess of such limitation
may be treated as a premature loan distribution subject to the
penalties imposed
by Section 72(p) of the Code. Moreover, no such loan of any amount
shall be made to any Participant if such loan would constitute a
transaction subject to the tax imposed by Section 4975 of the Code and
no loan in excess of one-half (1/2) of the balance credited to the
Company Contributions Account of a Participant or beneficiary shall be
made to such Participant or beneficiary on or after October 18, 1989,
if the only security for such loan is such balance.
(e) A description of the method by which the rate of interest
to be charged will be determined.
(f) A description of the types of assets other than or in
addition to the balance credited to the Company Contributions Account
of the Par ticipant or beneficiary to whom such loan is to be made
which may constitute collateral for such loan.
(g) A description of the event or occurrence which will
constitute a default and the action which may be taken to preserve Plan
assets in the event of any such default.
(h) All such loans shall, at the direction of the Sponsoring
Company's Committee, be available to all Participants and beneficiaries
on a uniform and non-discriminatory basis (but considering the
credit-worthiness of each such Participant or beneficiary), bear a
reasonable rate of interest and be adequately secured. Moreover, if the
balance of credited to a Participant's Company Contributions Account
constitutes all or any portion of the security for a loan made pursuant
to the provisions of this Section 6.8, such Participant and his spouse,
if any, shall consent, in writing, to the making of such loan, the use
of such balance as security for such loan and the possible reduction of
such balance which may subsequently occur as a result thereof within
the Ninety (90) day period immediately preceding the date such loan is
made or the date such balance is pledged as security therefor. Any such
written consent shall be witnessed by a member of the Committee or
Notary Public unless it is established to the satisfaction of such
Committee member that such consent cannot be obtained because the
Participant is not married, his spouse cannot be located or because of
such other circumstances as may be prescribed in any regulations
promulgated under Section 417 of the Code.
(i) Except in the case of a "home loan," each such loan shall,
by its terms, be repaid within five (5) years and be repaid in
substantially equal installments, payable at least quarterly, of
principal and interest. A "home loan" is any loan used to acquire any
dwelling unit which within a reasonable time is to be used (determined
at the time the loan is made) as the principal residence of the
Participant.
(j) For purposes of subparagraph (a) above, the current
outstanding balances of all loans made to a
Participant from all qualified retirement plans of all Adopting
Companies and any Affiliated Companies shall be considered as one
having been made by this Plan.
6.9 - Hardship Distributions of Salary Reduction Contributions.
A Participant who incurs an immediate and heavy finan cial need
("Hardship") may request, in writing, that he be allowed to withdraw such
portion of the amount credited to his Company Contributions Account constituting
Salary Reduc tion Contributions (and any earnings credited to such Participant's
Account on such Salary Reduction Contributions as of June 30, 1989) as is
necessary to satisfy such Hardship. Any such request shall set forth all of the
facts and circumstances necessary to enable the Sponsoring Company's Committee
to make a determination as to (i) whether the financial need constitutes a
Hardship, (ii) the amount necessary to satisfy such Hardship and (iii) whether a
distribution of all or some portion of the balance credited to such
Participant's Company Contributions Account and constituting Salary Reduction
Contributions but not the earnings thereof is required to satisfy such hardship
in accordance with the following guidelines:
(a) Only amounts required to (1) pay medical expenses
described in Section 213(d) of the Code incurred by or necessary to
such Participant, his spouse or his dependents (as defined in Section
152 of the Code), (2) purchase a principal resi dence (excluding
mortgage payments), (3) pay tuition and related educational fees for
the next 12 months of post-secondary education for the Participant, his
spouse or any of his dependents, (4) prevent his eviction from his
principal residence or foreclosure on a mortgage on his principal
residence or (5) satisfy such other need as the Internal Revenue
Service may specify in regulations or other pronouncements issued
thereby shall constitute immediate and heavy financial needs.
(b) Any determination as to whether a dis tribution of all or
some portion of the balance of a Participant's Company Contributions
Account is necessary to enable a Participant to satisfy a Hardship
shall be based on all of the facts and circumstances, including but not
limited to whether alternate financial resources are reasonably
available. However, if a Participant represents, in writing, that the
Hardship will not or cannot be satisfied by (i) reimbursement or
compensation by insurance, (ii) reasonable liquidation of the
Participant's other assets, (iii) revocation of his election to reduce
his Compensation, or (iv) by other distributions or nontaxable (at the
time of the loan) loans from any other plan maintained by the Adopting
Company by which he is employed and in which the Participant is a
participant or by borrowing from a commercial source on then reasonable
commercial terms, and the Committee reasonably relies there on, a
distribution shall be deemed to be necessary to satisfy
such Hardship provided the amount of such distribution does not exceed
the amount necessary to satisfy such Hardship, including amounts
necessary to pay any federal, state or local income taxes or penalties
reasonably anticipated to result from the distribution.
Any withdrawal made as a result of Hardship shall be effected as soon as
possible after approval of the request for a Hardship withdrawal.
Neither this Plan, nor any other plan maintained by an Affiliated
Company may permit an Employee who receives a Hardship Withdrawal to elect
Salary Deferral Contributions for the Employee's taxable year immediately
following the taxable year of the Hardship Withdrawal in excess of the Calendar
Year Elective Deferral Dollar Limitation for such taxable year less the amount
of such Employee's Salary Deferral Contribution for the taxable year of the
Hardship Withdrawal.
ARTICLE VII
THE COMMITTEE
7.l - Members.
Each Adopting Company shall appoint a Committee of not less than one
(1) nor more than five (5) individuals, each of whom shall serve at the pleasure
of such Company. Any vacancy on such Committee shall be filled by the
appropriate Adopting Company as soon as is reasonably possible after such
vacancy occurs. However, the remaining members or member of such Committee shall
have full authority to act until such vacancy is so filled. Each Adopting
Company shall advise the Sponsoring Company's Committee, in writing, of the
names of the members of its Committee and, as changes in the membership thereof
occur, the names of any new members. The Committee is the Named Fiduciary and
Administrator of the plan of each Adopting Company required to be specified by
the Act.
7.2 - Committee Action.
Each Committee shall choose a secretary who shall keep the minutes of
the Committee's proceedings and all data, records and documents pertaining to
the Committee's adminis tration of the Plan with respect to the Participants
employed by the Adopting Company establishing such Commit tee. Each Committee
shall act by vote of a majority of its members and such action may be taken
either by a vote at a meeting or in writing without a meeting; provided,
however, that no member of such Committee who is also a Participant hereunder
shall vote or act upon any matter relating solely to himself unless such member
is the only member of such Committee. Each Committee may, by such majority
action, authorize its secretary or any one or more of its members to execute any
document or documents on behalf of such Commit tee, in which event such
Committee shall notify the Trustee in writing of such action and the name or
names of those so designated. The Trustee thereafter shall accept and rely
conclusively upon any direction or document executed by such secretary, member
or members as representing action duly taken by such Committee until such
Committee files a written revocation of such designation with the Trustee.
7.3 - Rights and Duties.
Each Committee shall have the duty to administer the Plan in
accordance with the provisions set forth herein and shall have all powers
necessary to do so, including but not limited to the following:
(a) To resolve all questions relating to the eligibility of
Employees to participate;
(b) To compute and certify to the Sponsoring Company's
Committee and the Trustee the amount and nature of benefits payable to
Participants or their Beneficiaries;
(c) To authorize all disbursements to be made by the Trustee
from the Trust;
(d) To maintain all records necessary for the administration
of the Plan other than those maintained by each other Adopting Company
and the Trustee;
(e) To interpret the provisions of the Plan and to make and
publish such rules for the opera tion of the Plan as are not
inconsistent with the terms hereof; and
(f) Except to the extent an investment is to be made at the
direction of a Participant, to approve or disapprove investment changes
recom mended by the Trustee with respect to the assets of the Plan
acquired by contributions made by the Adopting Company.
Notwithstanding anything herein to the contrary, no Commit tee shall interpret
or operate the Plan in any manner which will cause discrimination in favor of
Employees who are officers, shareholders or highly compensated.
7.4 - Participant Direction of Investments.
(a) The Participants are specifically authorized to direct the manner
in which the amounts credited to their respective Company Contributions Accounts
are invested. Accordingly, the Sponsoring Company's Committee shall deter mine
the investment alternatives which are to be available ("Permitted Investments").
Such alternatives shall include but need not be limited to (1) investment by (A)
deposit in an interest bearing account with a bank, savings and loan association
or other similar financial institution, which account shall have a high degree
of liquidity and be fully insured against loss by the United States or an agency
thereof ("Savings Account") or (B) in a pooled investment fund, the assets of
which consist solely of cash and securi ties issued or guaranteed by the United
States or an agency thereof and the principal investment objectives of which
include a high level of current income consistent with the preservation of
capital and a high degree of liquidity and (2) three (3) or more groups of
diversified investments, at least one of which can reasonably be expected to
generate a high level of income while preserving capital in the long term, one
of which can be reasonably expected to generate capital appreciation and one of
which can be reasonably expected to generate a high level of current income
consistent with the preservation of capital and a high degree of liquidity so as
to afford each Participant with a reasonable opportunity to diversify the
investment of the amounts credited to his Accounts and thereby minimize the risk
of large losses. Moreover, such Committee shall be deemed to have intended to
provide each Participant with the opportunity to exercise control over the
assets allocated to the Accounts maintained hereunder for his benefit in a
manner and to the extent necessary to result in no other person who would
otherwise be a fiduciary with respect to the Plan being liable for any loss, or
with respect to any breach of part 4 of Title I of the Act, which is a direct
and necessary result of the exercise of control over such assets by such
Participant or his Beneficiary.
(b) The Sponsoring Company's Committee shall also advise each
Participant and Beneficiary of the following procedures to be followed in
exercising control over the assets allocated to his Account:
(1) Each Participant or Beneficiary shall obtain a prospectus
and any other documents or other information relating to any investment
in which a Participant may invest required to be delivered to an
investor therein by law. Such Participant or Beneficiary shall also
represent and warrant that he has received such prospectus, other
documents or other information relating to such investment to such
Committee.
(2) Each Participant may, during such periods as such
Committee may specify from time to time, but at least annually, direct
that one or more assets constituting a Permitted Investment be
acquired.
(3) In no event shall the Trustee be required to acquire any
asset if any income generated thereby would be taxable to the Trust.
(c) If a Participant fails to advise whichever of the Sponsoring
Company's Committee or the Trustee is appropriate as to the manner in which all
or any portion of the amounts credited to his Accounts in cash are to be
invested, such Committee or the Trustee shall invest such amounts in one or more
Savings Accounts.
(d) Notwithstanding anything herein to the contrary, each Participant
may, subject to the terms and conditions or any Contract or any limitation to
which such Participant agreed at the time he directed that an asset be acquired,
instruct the Trustee or the Sponsoring Company's Committee to dispose of any
asset acquired at his direction and to purchase any other asset or interest
therein which constitutes a Permitted Investment.
7.5 - Information.
Each Adopting Company shall provide such information to its Committee
as such Committee may require to properly administer the Plan and to furnish the
Trustee with such information as may be pertinent to the Trustee's administra
tion of the Trust Fund on a timely basis.
7.6 - Compensation, Indemnity, and Liability.
Each Adopting Company shall pay all expenses incurred and shall
furnish such clerical and other services as are required by its Committee in
order to perform its duties hereunder. In addition, each Adopting Company hereby
prom ises to indemnify each member of its Committee against and hold each such
member harmless from any and all expenses or liabilities incurred or arising as
the result of his member ship on such Committee, except such expenses or
liabilities as may result from such member's wilful misconduct or gross
negligence.
ARTICLE VIII
THE TRUSTEE
8.1 - Acceptance of Trust.
The Trustee, by execution hereof, acknowledges accep tance of the
trusteeship of this Trust, agrees to hold and administer the Trust Fund in
accordance with the terms of and provisions set forth herein and to otherwise
perform all of the obligations imposed thereon hereby.
8.2 - Single Fund.
The Trustee shall hold and administer the Trust Fund as a single fund.
However, the Trustee shall maintain adequate records so as to be able to
accurately identify the assets or interests therein acquired at the direction or
on behalf of each Participant in the Plan.
8.3 - Duty of Care.
The Trustee and each Fiduciary shall discharge its duties under the
Plan and Trust solely in the interests of the Participants and their
beneficiaries and with the care, skill, prudence and diligence under the
circumstances then prevailing which a prudent man, acting in a like capacity and
familiar with such matters, would use in the conduct of an enterprise of a like
character and with like aims and by diversifying the investments of the Plan and
Trust so as to minimize the risk of large losses unless under the circum stances
it is clearly prudent not to do so and except to the extent the Participants
direct the Trustee as to the manner in which the amounts credited to their
respective Company Contributions and Matching Contributions Accounts are in
vested.
8.4 - Trustee's Rights and Powers.
To carry out the purposes of this Trust, the Trustee, subject to any
limitations specified in the provisions of Sections 8.5 through 8.9 hereof,
inclusive, shall have the following rights and powers, in addition to any now or
here after conferred by law:
(a) To acquire any asset or interest therein, including any
real or personal property.
(b) To sell, assign or convey, at public or private sale, for
cash or on credit, exchange, partition, divide, subdivide, or grant
options upon any Trust asset or interest therein;
(c) To lease any Trust asset or interest therein for terms
within or beyond the term of this Trust for any purpose, including the
exploration for and removal of gas, oil or other minerals and to enter
into any pooling, uniti zation, repressurization, community or other
types of agreements relating to the development, operation and
conservation of mineral properties;
(d) To maintain, repair, alter, develop or improve any Trust
asset and, pursuant thereto, to raze or demolish any structure
thereupon or portion thereof;
(e) To invest and reinvest the Trust Funds as provided by law,
from time to time existing, in any type of asset, including any
collective investment or common trust fund now or hereafter established
by, or stock of, any corporate Trustee hereof;
(f) To retain such portion of the Trust Fund in the form of
cash or other property unproductive of income without any liability for
income which might otherwise be derived therefrom as the Committee
determines is necessary or proper;
(g) To deposit cash in any bank or savings and loan
association up to such amounts as will be federally insured by the
appropriate governmental agencies;
(h) To participate or continue to participate in any business
or other enterprise and to effect incorporation, dissolution, or other
change in the form or organization of any business or enterprise held,
acquired or received;
(i) To participate in foreclosures, reor ganizations,
consolidations, mergers, liquidations, pooling agreements and voting
trusts, assent to corporate sales and other acts and, in connection
therewith, to deposit securities with and transfer title to any
protective or other committee upon such terms as the Trustee deems
advisable;
(j) To vote stock, give proxies, pay calls for assessments,
and purchase, sell or exercise stock subscription or conversion rights,
warrants, puts and calls;
(k) To hold securities, or other property in its own name or
in the name of its nominee, without disclosing any fiduciary
relationship;
(l) To advance money for the protection of the Trust, and for
all expenses, losses, and liabilities sustained in the administration
of the Trust or as a result of the holding or ownership of any Trust
assets, for which advances, and any interest thereon, the Trustee shall
have a lien on the Trust assets as against any Adopting Company,
Participant or beneficiary thereof;
(m) To borrow money for any Trust purpose, hypothecate or
encumber the Trust Fund or any portion thereof by mortgage, deed of
trust, pledge or otherwise and replace, renew and extend any
encumbrance thereon and pay loans or other obliga tions of the Trust;
(n) To make loans or advances to any party, at reasonable
rates of interest and upon reasonable terms and conditions;
(o) To acquire and maintain insurance, in cluding liability
insurance, of such kind and in such amounts as is necessary to insure
the Trust assets against damage or loss;
(p) To institute, prosecute or defend any action or proceeding
with respect to the Trust and to contest, arbitrate, compromise,
adjust, settle, pay, release or abandon, in whole or in part, any
claims existing in favor of or against the Trust; and
(q) To employ such agents and advisors as may be reasonable
for the administration of the Trust Fund and to pay them reasonable
compensation for services rendered.
The enumeration of certain powers of the Trustee shall not limit its general
powers, the Trustee, subject always to the discharge of its fiduciary
obligations, being vested with and having all the rights, powers and privileges
which an absolute owner of the same property would have. However, all
investments of the Trust Fund shall be made in accordance with the provisions of
Section 2261 of the Cali fornia Civil Code and the Trustee shall be responsible
for compliance therewith except in the case of any investment made at the
direction of a Participant.
8.5 - Compliance with Directions Re: Management and Investment of Trust Fund.
Upon receipt of any directions from a Participant, the Trustee shall
comply therewith unless such compliance would be in violation of or contrary to
any laws or regulations governing the management and investment of the assets
hereof.
8.6 - Notices; Directions.
All notices or directions provided to the Trustee, whether by the
Sponsoring Company, its Committee or a Parti cipant shall be in writing and
signed by such person or persons as have been duly authorized to act on behalf
there of. However, delivery of any notice or direction to the Trustee by
photostatic teletransmission, telegram or other method by which a written
document results which contains duplicate or facsimile signatures shall be
deemed to fulfill the foregoing requirements unless and until the Trustee is
notified in writing by the appropriate party to the contrary. The Trustee may
rely upon any notices or direc tions received in such manner and shall not incur
any liability to any party for the consequences resulting from any unauthorized
use of such devices or methods of deliver ing notices or directions unless the
Trustee was aware that such use was unauthorized.
8.7 - Limitations on Trustee's Duties; Liability.
So long as an Adopting Company, its Committee, one or more Investment
Managers, Participants or any combination thereof are
authorized to direct the management and invest ment of the Trust Fund or any
portion thereof, the Trustee, to the extent the Trustee does not have such
right:
(a) May, in the case of such authorization of any Investment
Manager or Managers, assume that the person or persons designated as
Investment Managers qualify as such and continue to be entitled to
manage and invest the Trust Fund (or such portion thereof) until such
time as the appropriate Adopting Company or its Committee, as the case
may be, notify the Trustee to the contrary.
(b) Shall have no duty to take any action with respect to the
management and investment of the Trust Fund or to review or make any
recommendations with respect thereto in the absence of, or to request,
any such directions. The Trustee may, however, in the absence of any
such directions, take such action as the Trustee deems appropriate and
advisable under the circumstances and shall not be subject to or incur
any liability to any party as the result thereof if such action is
taken in good faith.
(c) Shall have no duty or obligation to determine the
existence of any conversion, redemp tion, exchange, subscription or
other right which may relate to any security held as part of the Trust
Fund if notice of such right was given prior to the acquisition of such
security, or to exer cise any such right unless and until informed of
the existence thereof and directed to exercise such right by the
appropriate party within a reasonable time prior to the expiration of
such right.
(d) Shall not be liable in any manner to an Adopting Company,
its Committee, any Investment Manager, any Participant or any
beneficiary of any Participant for any losses or other unfavorable
results sustained by or incurred by the Trust Fund as the result of
complying with the directions provided thereby to the Trustee; provided
such compliance has not been in violation of or contrary to any
provision of any applicable law governing the management and investment
of the assets hereof.
(e) If the party having the right to manage and invest the
Trust Fund directs the Trustee to purchase any security issued by any
foreign government or agency thereof, or by any corporation domiciled
outside of the United States, the Trustee shall have no duty to take
any action necessary to comply with any laws, regulations or other
requirements imposed by the government or agency thereof issuing such
securities or whose laws, regulations or other re quirements govern
such corporation, including those applicable to the receipt of
dividends or interest paid with respect to such securities, unless and
until advised of such laws, regulations or other requirements by the
party directing the Trustee to make such purchase.
8.8 - Records; Accounting.
The Trustee shall keep accurate and complete records of all
transactions made or entered into by the Trustee on behalf of the Trust which
each Committee shall have the right to examine at any time during the Trustee's
regular business hours. In addition, the Trustee shall, within ninety (90) days
of the close of each Plan Year, beginning with the first Plan Year ending after
the Effective Date, provide an annual statement of account to the Sponsoring
Company's Committee. Such statement of account shall set forth all receipts and
disbursements of the Trust during such year and contain a list of all of the
assets held by the Trust, the cost and fair market value thereof as of the end
of such year.
Unless the Trustee receives written notice of any error contained or
believed to be contained in such annual statement of account from the Sponsoring
Company's Committee within sixty (60) days of the date upon which such account
has been provided thereto, the Trustee may presume that such account has been
approved thereby. If any dispute arises between such Committee and the Trustee
with respect to any item contained in such annual statement of account and such
dispute cannot be otherwise resolved, the Trustee may elect to have its account
judicially settled.
8.9 - Valuation of Trust Fund.
The Trustee shall determine the fair market value of the Trust Fund,
based upon such information as the Trustee deems to be reliable, including but
not limited to infor mation contained in (i) newspapers of general circulation,
(ii) financial periodicals or publications generally relied upon by the public,
(iii) statistical or valuation service reports, and (iv) the records of any
securities exchanges, Investment Managers, brokerage firms or any combination
thereof. The fair market value of the Trust Fund attribut able to any Contract
shall be determined by the Insurer issuing such contract using such method as is
specified therein and the determination of such fair market value by such
Insurer in accordance therewith shall be binding upon the Trustee. Moreover, in
making any such determination, any and all expenses arising under any Contract
shall be charged to and deducted from the value of the Participants' Accounts
thereunder in accordance with the provisions specified in any such Contract.
8.10 - Compensation.
Each Adopting Company promises and agrees to pay such reasonable
amounts of compensation for services rendered by the Trustee as may be agreed
upon from time to time promptly upon request therefor by the Trustee. Unless
otherwise specifically agreed upon in writing, the amount of the com pensation
to which the Trustee shall be entitled shall be determined in accordance with
the fee schedule regularly published by the Trustee, as in effect and applicable
at the time such compensation becomes payable, if any. Moreover, the Trustee
shall be entitled to reimbursement for any expenses incurred thereby in the
performance of its duties as Trustee, including reasonable fees for legal
counsel. The amount of any such compensation and reimbursable expenses shall be
chargeable to and constitute a lien on the Trust Fund until paid and the Trustee
is authorized to withdraw such amounts from the Trust Fund if such amounts are
not otherwise paid by the Sponsoring Company within sixty (60) days of the date
upon which a statement of the amount so due is presented to the Company.
8.11 - Third Persons.
No person dealing with the Trustee shall be required to make any
inquiry as to whether an Adopting Company, its Committee, any Investment Manager
or a Participant has in structed the Trustee to take or decline to take any
specific action, whether any action so taken or which the Trustee declines to
take has been authorized thereby or to see to the application of any moneys or
other property delivered to the Trustee. Further, any such person may rely upon
the signature of any single Trustee individually unless and until such person
has been provided with written notice that the signatures of all or a majority
of the persons acting as Trustee is required.
8.12 - Indemnification.
Each Adopting Company and its Committee jointly and severally promise
and agree to indemnify the Trustee against and hold the Trustee harmless from
all liabilities which may arise as the result of the lawful performance of its
duties under this Agreement. Further, the Trustee shall not be required to
perform any act or take any action for or on behalf of the Trust unless and
until the Trustee has been indemnified to its satisfaction, to the extent it
deems nec essary and as often as it may determine.
8.13 - Controversy Re: Trust Fund Assets.
If any controversy arises with respect to any asset of the Trust
Fund, the Trustee may retain possession of such asset pending resolution of such
controversy without liabi lity.
8.14 - Joinder of Parties.
Only the Trustee, the Committees and the Adopting Companies need be
joined as parties to any legal action or other proceeding affecting the Trust or
any asset of the Trust Fund. No Participant, any beneficiary of any Partici pant
or any other person having or claiming
any right to or interest in any asset of the Trust Fund shall be entitled to any
notice of any such legal action or proceeding but any judgment entered in or
with respect to any such action or proceeding shall be binding upon all persons
having any in terest in or claim against the Plan or Trust.
8.15 - Consultation with Legal Counsel.
The Trustee may consult with or engage the services of such legal
counsel (including counsel for an Adopting Company) as the Trustee may select
and shall be not subject to any liability as the result of taking any action or
failing to take any action in good faith pursuant to the advice of such counsel.
8.16 - Prohibited Transactions.
(a) Except as provided in subsection (c) hereof, neither the Trustee
nor any Fiduciary shall cause the Plan to engage in a transaction if he knows or
should know that such transaction constitutes a direct or indirect:
(1) Sale or exchange, or leasing of any property between the
Plan and a Party-In-Interest; or
(2) Lending of money or extension of credit between the Plan
and Party-In-Interest other than as provided in Section 6.8; or
(3) Furnishing of goods, services or facili ties between the
Plan and a Party-In-Interest;
(4) Transfer to, or use by or for the benefit of a
Party-In-Interest, of any assets of the Plan; or
(5) Acquisition, on behalf of the Plan, of any qualifying
employer security or employer real property.
(b) Except as provided in subsection (c) of this Section 8.16, a
Fiduciary shall not:
(1) Deal with the assets of the Plan to his own interest or
for his own account;
(2) In his individual or any other capacity, act in any
transaction involving the Plan on behalf of a party or represent a
party whose interests are adverse to the interests of the Plan, its
Participants or their beneficiaries;
(3) Receive any consideration for his own personal account
from any party dealing with such Plan in connection with a transaction
involving the assets of the Plan; or
(4) Permit the indicia of ownership of any Trust asset to be
maintained at any location which is outside
of the jurisdiction of the District Courts of the United States except
as otherwise authorized by the Secretary of Labor.
(c) The prohibited transaction rules set forth in this Section 8.16
shall not prevent a Fiduciary from:
(1) Receiving benefits from the Plan as a Participant or
beneficiary so long as the benefits are consistent with the terms of
the Plan as ap plied to all other Participants and beneficiaries;
(2) Receiving reasonable compensation for services to the Plan
unless such Fiduciary receives full-time pay from the Employer;
(3) Receiving reimbursement for expenses incurred;
(4) Serving as an officer, employee or agent of a
Party-In-Interest;
(5) Making payments to Parties-In-Interest for reasonable
compensation for office space and legal, accounting and other services
necessary to operate the Plan; or
(6) Taking other actions pursuant to specific instructions and
authorizations in the Plan governing document so far as consistent with
all other fiduciary rules of the Act.
8.17 - Liability Insurance.
The following parties may purchase and maintain liability insurance
under the following terms and condi tions:
(a) Each Committee, as an authorized expense of the Plan, to cover
liability or losses occurring by reason of the act or omission of
a Fiduciary; provided such insurance permits recourse by the Insurer
against the Fiduciary in the case of a breach of a fiduciary obligation
by such Fiduciary;
(b) A Fiduciary, to cover liability from and for his own account; or
(c) An Adopting Company, to cover potential liability of one or
more persons who serve in a fiduciary capacity with regard to the Plan.
8.18 - Prohibition Against Certain Persons Holding Certain Positions.
No person who has been convicted of, or has been imprisoned as a
result of his conviction of, robbery, brib ery, extortion, embezzlement, fraud,
grand larceny, burglary, arson, a felony violation of Federal or State law
involving substances defined in Section 102(6) of the Com prehensive Drug Abuse
Prevention and Control Act of 1970, murder, rape,
kidnapping, perjury, assault with intent to kill, any crime described in Section
9(a)(1) of the Investment Company Act of 1940, a violation of any provision of
the Employee Retirement Income Security Act of 1974, a vio lation of Section 302
of the Labor-Management Relations Act, 1947, a violation of Chapter 63 of Title
18, United States Code, a violation of Section 874, 1026, 1503, 1505, 1506,
1510, 1951, or 1954 of Title 18, United States Code, a vio lation of the
Labor-Management Reporting and Disclosure Act of 1959, or conspiracy to commit
any such crimes or attempt to commit any such crimes, or a crime in which any of
the foregoing crimes is an element, within the preceding five (5) years shall
serve or be permitted to serve
(a) as an administrator, fiduciary, officer, trustee, custodian,
counsel, agent, or employee of any employee benefit plan; or
(b) as a consultant to any employee benefit plan.
8.19 - Bonding Requirements.
(a) Every Fiduciary of the Plan and every person who handles funds or
other property of the Plan shall be bonded as hereinafter set forth; provided,
however, that no such bond shall be required of a Fiduciary (or of any director,
officer, or employee of such Fiduciary) if such Fiduciary
(1) is a corporation organized and doing business under the
laws of the United States or of any State;
(2) is authorized under such laws to exercise trust powers or
to conduct an insurance business;
(3) is subject to supervision or examination by Federal or
State authority; and
(4) has at all times a combined capital and surplus in excess
of such minimum amount as may be established by regulations issued by
the Secretary of Labor, which amount shall be at least $1,000,000.
(b) The amount of such bond shall be fixed at the beginning of each
Plan Year. Such amount shall be not less than ten percent (10%) of the amount of
funds handled. In no event shall such bond be less than $1,000 nor more than
$500,000, except that the Secretary of Labor, after due no tice and opportunity
for hearing to all interested parties, may prescribe an amount in excess of
$500,000, subject to the ten percent (10%) limitation of the preceding sentence.
Such bond shall provide protection to the Plan against loss by reason of acts of
fraud or dishonesty on the part of the Plan official, directly or through
connivance with others.
8.20 - Payment of Taxes.
If the Trustee becomes liable for the payment of any estate,
inheritance, income or other tax on behalf of a Participant or his Beneficiary,
the Trustee shall have the right to pay such tax from the portion of the Trust
Fund held for the benefit of such person and shall not incur any liability to
any person whose interest in the Trust Fund is reduced thereby. However, the
Trustee may require such re leases or other documents from such persons,
including the party to whom such payment is to be made, as the Trustee may deem
necessary or proper prior to making any such payment.
ARTICLE IX
RESIGNATION AND REMOVAL OF TRUSTEE
9.1 - Resignation, Removal.
(a) Any Trustee, or if more than one person is acting as Trustee, any
one or more of such persons, may resign at any time by delivering written notice
of the intention to resign to the Sponsoring Company.
(b) The Sponsoring Company may remove any Trustee or, if more than one
person is acting as Trustee, any one or more of such persons, by delivering
written notice of such removal to such Trustee or person.
(c) The notice of such intent to resign or to remove any Trustee or
person acting as such shall specify the date as of which such resignation or
removal shall be effective, which date shall not be less than thirty (30) days
after the date upon which such notice is delivered unless the party to whom such
notice is required to be provided hereunder other wise agrees.
9.2 - Appointment of Successor Trustee.
Upon providing notice of the removal of any Trustee, receipt of any
notice of the intention of any Trustee or person or persons acting as such to
resign, or the death or other inability of any Trustee or person or persons
acting as such to so act, the Sponsoring Company shall promptly appoint one or
more individuals, any corporation authorized to accept trusts in the State of
California, or any combina tion thereof, as successor Trustee. However, any
remaining Trustee shall exercise all of the powers and discharge all of the
duties of the Trustee until such successor has been so appointed.
9.3 - Transfer of Rights.
Upon written notice of acceptance of any duly ap pointed successor
Trustee of the trusteeship hereof, the resigning or removed Trustee shall
transfer all right, title and interest in and to the Trust Fund to such
successor Trustee and shall perform such other acts and execute such documents
as may be necessary or proper to transfer all rights and privileges as trustee
hereof to such successor Trustee.
ARTICLE X
AMENDMENT; TERMINATION
10.1 - Amendment.
The Sponsoring Company may, from time to time, amend this by
instrument in writing signed by a duly authorized representative thereof.
Thereupon, the provisions of such amendment shall be binding upon the Sponsoring
Company, each Adopting Company, each Committee, the Trustee and all of the
Participants in the Plan and their beneficiaries. Notwith standing the
foregoing, no such amendment shall:
(a) Cause any portion of the Trust Fund to be used for or
diverted to purposes other than for the exclusive benefit of the
Participants or their beneficiaries;
(b) Retroactively deprive any Participant or beneficiary of a
Participant of any benefit pre viously vested except to the extent
necessary to permit the Plan to meet or continue to meet the applicable
requirements of the Act or the Code or to assure the deductibility of
the contributions hereto by the Company for federal income tax pur
poses;
(c) Cause any prohibited discrimination in favor of any
Participant who is an officer, share holder or highly compensated
employee; or
(d) Increase the duties or responsibilities of the Trustee
without the written consent of the Trustee.
10.2 - Termination of Trust.
This Trust is irrevocable and the Sponsoring Company and each Adopting
Company anticipate that the Plan and Trust shall continue indefinitely. However,
neither the Sponsoring Company nor any Adopting Company has assumed or shall be
deemed to have assumed any obligation to continue the Plan and Trust.
Accordingly, the Sponsoring Company or any Adopting Company may, upon fifteen
(15) days written no tice to the Trustee, terminate the Plan, the Trust, or both
as to its Employees. Further, the Sponsoring Company or any Adopting Company may
reduce the benefits to be provided to Participants employed thereby under the
Plan prospectively at any time. However, in the event of any partial or total
complete termination of the Plan, the interest of each Participant shall
immediately become one hundred percent (100%) vested and nonforfeitable to the
extent then funded. There upon, the Trustee, after deducting or reserving the
amounts necessary to defray all expenses of the Plan and Trust, in cluding the
reasonable compensation of the Trustee and any anticipated costs of liquidating
or distributing the assets hereof, shall distribute any remaining balance of the
Trust Fund in accordance with the written instructions of the ap propriate
Committee, which instructions shall conform to the requirements of the Plan.
ARTICLE XI
EMPLOYEE RIGHTS
11.1 - General Rights of Participants and Beneficiaries.
The Plan is established and the Trust Fund is held for the exclusive
purpose of providing benefits for Partici pants and their Beneficiaries. Such
benefits may be payable upon retirement, death, disability or termination of
employ ment with all Adopting Companies, subject to the specific provisions of
the Plan.
Every Participant and Beneficiary receiving benefits under the Plan
is entitled to receive, on a regular basis, a current, comprehensible and
detailed written account of his personal benefit status and of the relevant
terms of the Plan which provides these benefits.
11.2 - Regular Reports and Disclosure Requirements.
Every Participant covered under the Plan and every Beneficiary
receiving benefits under the Plan shall receive a summary plan description,
summary of the latest annual re port of the Plan, or such other information as
may be re quired to be furnished by law, under any of the following
circumstances:
(a) When the Plan is established, or any material modification
or amendment is proposed or adopted;
(b) Within ninety (90) days after he becomes a Participant or
begins to receive benefits under the Plan;
(c) Within two hundred and ten (210) days after the close of
the Plan's Fiscal Year.
11.3 - Information Generally Available.
The appropriate Committee shall make copies of the Plan description
and the latest annual report and any bar gaining agreement, trust agreement,
contract or other instruments under which the Plan was established or is
operated available for examination by any Plan Participant or Beneficiary in the
principal office of such Committee and such other locations as may be necessary
to make such infor mation reasonably accessible to all interested parties, and
subject to a reasonable charge to defray the cost of fur nishing such copies,
the appropriate Committee shall, upon written request of any Participant or
Beneficiary, furnish a copy of the latest updated summary plan description, and
the latest annual report, any terminal report, any bargaining agreement, trust
agreement, contracts, or other instruments under which this Plan is established
or operated to the par ty making such request.
11.4 - Special Disclosures.
Upon written request to the appropriate Committee once during any
twelve (12) month period, a Participant or Beneficiary shall be furnished with a
written statement, based on the latest available information, of the total
benefits accrued, or the earliest date on which such bene fits will become
non-forfeitable.
Prior to the distribution of any benefits to which any Participant or
Beneficiary may be entitled, he must be provided with a written explanation of
the terms and condi tions of the various distribution options that are available
and must in turn, file a written election with the appropri ate Committee.
Upon termination of employment, an Employee who has been a
Participant in the Plan is entitled to a written explanation of and accounting
for any vested deferred bene fits which have accrued to his account and of any
applicable options regarding the disposition of those benefits. Such information
will also be provided to the Social Security Ad ministration by the Internal
Revenue Service on the basis of information required to be reported by the
Committee.
11.5 - Employee Right to Comment.
Pursuant to rights granted by the Act and the Reg ulations issued
pursuant to that authority, the Participants shall be advised with respect to,
and given an opportunity to comment on, the application of the Plan for a ruling
re garding:
(a) Initial qualification determination under the requirements
of the Internal Revenue Code;
(b) Any material amendment to the Plan;
(c) Any partial or complete termination of the Plan.
11.6 - Filing a Claim for Benefits.
A Participant or Beneficiary or the Adopting Company acting on his
behalf, shall notify the appropriate Committee of a claim of benefits under the
Plan. Such request may be in any form acceptable to such Committee and shall set
forth the basis of such claim and shall authorize such Committee to conduct such
examinations as may be necessary to determine the validity of the claim and to
take such steps as may be necessary to facilitate the payment of any benefits to
which the Participant or Beneficiary may be en titled under the terms of the
Plan.
11.7 - Denial of Claim.
Whenever a claim for benefits by any Participant or Beneficiary has
been denied, a written notice, prepared in a manner calculated to be understood
by the Participant, must be provided, setting forth the specific reasons for the
denial and explaining the procedure for an appeal and review of the decision by
the appropriate Committee.
11.8 - Remedies Available to Participants.
A Participant or Beneficiary shall be entitled, either in his own
name or in conjunction with any other in terested parties, to bring such actions
in law or equity or to undertake such administrative actions or to seek such
relief as may be necessary or appropriate to compel the dis closure of any
required information, to enforce or protect his rights, to recover present
benefits under the Plan.
11.9 - Protection From Reprisal.
No Participant or Beneficiary may be discharged, fined, suspended,
expelled, disciplined, or otherwise dis criminated against for exercising any
right to which he is entitled or for cooperation with any inquiry or investiga
tion under the provisions of this Plan or any governing law or Regulations.
No person shall, directly or indirectly, through the use or
threatened use of fraud, force or violence, restrain, coerce or intimidate any
Participant or Beneficiary for the purpose of interfering with or preventing the
exercise of or enforcement of any right, remedy or claim to which he is entitled
under the terms of this Plan or any relevant law or Regulations.
11.10 - Mergers, Consolidations or Transfers.
In the case of any merger or consolidation with, or transfer of
assets or liability to, any other plan after the date of enactment of the Act,
each Participant in the Plan will (if the Plan is then terminated) receive a
benefit immediately after such merger, consolidation, or transfer which will be
equal to or greater than the benefit he would have been entitled to receive
immediately before such mer ger, consolidation, or transfer if the Plan then
terminated.
ARTICLE XII
MISCELLANEOUS
12.1 - Contributions Not Recoverable.
After an initial determination by the Commissioner of the Internal
Revenue Service ("Commissioner") that the Trust is a "qualified" trust as
defined in Section 401 of the Code as to any Adopting Company, no portion of the
principal or income of the Trust shall be used for or diverted to any purpose
other than the exclusive benefit of the Participants employed thereby in the
Plan or their Beneficiaries. Not withstanding the foregoing, if the Commissioner
determines that the Trust is not a "qualified" trust as defined in Sec tion 401
of the Code as to any Adopting Company, such Company may recover its
contributions made hereto prior to such determination. Further, if an Adopting
Company con tributes an amount in excess of that required by reason of a mistake
of fact, the Trustee shall, upon written demand, distribute cash or property
having value equal to amount thereof within one (1) year of the date made.
However, the Trustee shall not distribute any cash or property represent ing
earnings attributable to such excess contribution and shall reduce the amount
otherwise so returned by the amount of any losses attributable thereto.
12.2 - Limitation on Participants' Rights.
No person shall be deemed to have acquired any right to be retained
in the employ of an Adopting Company or any interest in or claim against the
Plan or Trust as the result of becoming a Participant except as otherwise
provided here in. Each Adopting Company specifically reserves the right to
discharge any Employee without liability to such Company or for any claim
against the Plan or Trust, except to the extent otherwise provided in the Plan
or Trust. Further, any and all benefits to be provided under the Plan shall be
payable solely from assets of the Plan and no Adopting Company assumes any
responsibility for any act or failure to act of the Trustee with respect to the
assets of the Plan.
12.3 - Nonalienation.
No benefit under the Plan, whether payable from this Trust or
otherwise, may be anticipated, alienated, assigned, sold, pledged or encumbered
in any manner except to secure a loan made by the Plan to a Participant or
beneficiary thereof which is exempt from the tax imposed by Section 4975 of the
Code by reason of the provisions of Section 4975(d) thereof nor shall any such
benefit be subject to any claim of any creditor of any Participant or
beneficiary thereof, whether by way of attachment, garnishment or other legal
process; provided, however, that the foregoing shall not apply to the extent
required to allow payment of benefits hereunder in accordance with any domestic
relations order which is determined to be a "qualified domestic relations order"
within the meaning of Section 414(p) of the Code, or entered before January 1,
1985.
12.4 - Governing Law.
This Plan and Trust shall be governed by and the terms and provisions
hereof construed under the applicable Federal law, but to the extent no Federal
law is applicable, by or under the laws of the State of California. If any
provision hereof is susceptible of more than one interpreta tion, such provision
shall be interpreted in the manner which results in the Plan and Trust being
deemed to be a qualified retirement plan and trust within the meaning of the
Code and the Act. If any provision of this Agreement is void, invalid or
unenforceable, the remaining provisions hereof shall continue to be of full
force and effect.
12.5 - Rule Against Perpetuities.
If the validity of the Trust depends upon compliance with the rule
against perpetuities, the Trust shall terminate within twenty-one (21) years of
the date of the death of the last to survive of the Participants in the Plan
living on the date of the execution hereof.
12.6 - Fiduciary Liability.
No provision of this Agreement shall be construed so as to relieve
any Fiduciary of the Plan or Trust, including the Trustee hereof, of any
liability except to the extent permissible by law.
12.7 - Headings Not Part of Agreement.
The headings and subheadings in this Agreement have been inserted for
the convenience of reference only and shall not be considered in the
construction hereof.
12.8 - Instrument in Counterparts.
This Agreement may be executed in several counter parts, each of
which shall be deemed an original but shall constitute but one and the same
instrument which may be suf ficiently evidenced by one such counterpart.
12.9 - Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns.
12.10 - Gender.
As used herein, the masculine, feminine and neuter and the singular
and plural shall each be deemed to include the others.
IN WITNESS WHEREOF, the Sponsoring Company and a duly authorized
representative of each Affiliated Company which is adopting this Plan, have
executed this Agreement.
"SPONSORING COMPANY"
PENHALL INTERNATIONAL, INC.,
a California corporation
By /s/ Roger C. Stull
----------------------------
ROGER C. STULL, President
"ADOPTING COMPANIES"
PENHALL COMPANY, a California
corporation
By /s/ John T. Sawyer
----------------------------
John T. Sawyer, President
-----------------
PENHALL ENVIRONMENTAL
SERVICES,
a California corporation
By /s/ illegible
----------------------------
, President
-----------------
PHOENIX CONCRETE CUTTING, INC.,
an Arizona corporation
By /s/ C. George Bush
----------------------------
C. George Bush, President
-----------------
"TRUSTEE"
/s/ Roger C. Stull
------------------------------
ROGER C. STULL
PENHALL INTERNATIONAL, INC. AND AFFILIATED COMPANIES
EMPLOYEES' PROFIT-SHARING (401(k)) PLAN
AND TRUST AGREEMENT
PENHALL INTERNATIONAL, INC. AND AFFILIATED COMPANIES
EMPLOYEES' PROFIT-SHARING (401(k)) PLAN
AND TRUST AGREEMENT
Table of Contents
Article Title Page
- ------- ----- ----
ARTICLE I PURPOSE OF PLAN AND TRUST; DEFINITIONS 1
ARTICLE II PARTICIPATION 17
ARTICLE III COMPANY CONTRIBUTIONS 19
ARTICLE IV PARTICIPANT'S SALARY REDUCTIONS 21
ARTICLE V MATCHING CONTRIBUTIONS 28
ARTICLE VI BENEFITS 38
ARTICLE VII THE COMMITTEE 47
ARTICLE VIII THE TRUSTEE 51
ARTICLE IX RESIGNATION AND REMOVAL OF TRUSTEE 63
ARTICLE X AMENDMENT; TERMINATION 64
ARTICLE XI EMPLOYEE RIGHTS 66
ARTICLE XII MISCELLANEOUS 70
AMENDMENT TO THE
PENHALL INTERNATIONAL, INC.
AND AFFILIATED COMPANIES
EMPLOYEES' PROFIT SHARING 401(k) PLAN AND TRUST
Pursuant to Article X of the PENHALL INTERNATIONAL, INC. AND AFFILIATED
COMPANIES EMPLOYEES' PROFIT SHARING 401(k) PLAN AND TRUST (the "Plan"), Penhall
International, Inc. amends the Plan as follows effective January 1, 1995.
1. Section 1.2(w) is deleted and the following inserted in its place:
"(w) "Entry Date" means each January 1, April 1, July 1 and
October 1. Plan participation commences on the Entry Date
following completion of the minimum age and service
requirements."
This Plan Amendment is executed this ___ day of ________________, 1995,
at Anaheim, California.
PENHALL INTERNATIONAL, INC.
By:
---------------------------
Robert C. Stull, President
AMENDMENT TO THE
PENHALL INTERNATIONAL, INC.
AND AFFILIATED COMPANIES
EMPLOYEES' PROFIT SHARING (401(k)) PLAN
AND TRUST AGREEMENT
Pursuant to Section 10.1 of the PENHALL INTERNATIONAL, INC. AND
AFFILIATED COMPANIES EMPLOYEES' PROFIT SHARING (401(k)) PLAN AND TRUST AGREEMENT
(the "Plan"), PENHALL INTERNATIONAL, INC., a California corporation, the
Sponsoring Company, hereby amends the Plan in the following particulars only
effective on the date this Amendment is executed.
1. The following is added as a new Section 4.9:
"4.9 - Rollovers From Qualified Plans.
(a) With the consent of the Committee, the Trustee may receive
and hold an Eligible Employee's or Participant's qualifying
distribution from any other qualified retirement plan ("Rollover
Contribution"). The Trustee may accept such Rollover Contribution
directly from such other plan, from such Eligible Employee or
Participant within sixty (60) days of the receipt thereof by the
Eligible Employee or Participant, or from an individual retirement
account provided such individual retirement account contains no assets
other than those representing employer contributions, earnings thereon
and earnings on employee contributions thereto. Any such Rollover
Contributions shall be separately accounted for, nonforfeitable and
distributed with and in addition to any other benefit to which the
Participant effecting such contribution is entitled hereunder.
(b) Whenever a Participant elects to make Rollover
Contributions to this Plan as provided herein, the Committee shall
establish a separate Rollover Contribution Account to which such
Participant's Rollover Contributions shall be allocated when received
by the Trustee.
(c) A Participant may, upon thirty (30) days' written notice
to the Committee, withdraw any portion of his Rollover Contributions
Account; provided, however, that if such Participant is then married,
the written consent to such withdrawal by his spouse shall be required
as provided in Section 6.5(b). Any such written consent by a
Participant's spouse shall be witnessed by a Notary Public unless it is
established to the satisfaction of such Committee that such consent is
not required as a result of a prior written consent or cannot be
obtained because such Participant is not married, because his spouse
cannot be located or
because of such other circumstances as may be prescribed in any
regulations promulgated under Section 417 of the Code."
2. Section 6.3 is deleted and the following inserted in its place:
"6.3 - Amount Distributable.
A Participant shall be entitled to receive the amount equal
to the balances of his Company Contributions Account, Matching
Contributions Account and Rollover Contributions Account, adjusted in
accordance with the provisions of Section 5.3, and further adjusted, if
required, in accordance with the provisions of Section 5.4
("Distributable Amount")."
3. The first clause of Section 6.4 is deleted and the following
inserted in its place:
"6.4 - Events Entitling Participant of Beneficiary to
Distribution.
Except as provided in Sections 6.9 and 4.9(c),"
This Plan Amendment is executed and effective this 21st day of
May, 1996.
PENHALL INTERNATIONAL, INC.
By: /s/ Roger C. Stull
--------------------------------------
Robert C. Stull, President
AMENDMENT TO THE
PENHALL INTERNATIONAL, INC.
AND AFFILIATED COMPANIES
EMPLOYEES' PROFIT SHARING (401(k)) PLAN
AND TRUST AGREEMENT
Pursuant to Section 10.1 of the PENHALL INTERNATIONAL, INC. AND
AFFILIATED COMPANIES EMPLOYEES' PROFIT SHARING (401(k)) PLAN AND TRUST AGREEMENT
(the "Plan"), PENHALL INTERNATIONAL, INC., a California corporation, the
Sponsoring Company, hereby amends the Plan in the following particulars only,
effective as set forth below.
1. Section 5.1(a) is deleted and the following inserted in its place:
"5.1 - Allocation of Matching Contributions.
(a) Any contribution made by an Adopting Company for a Plan
Year shall first be allocated to the Matching Contributions Accounts of
those Participants (i) employed thereby who have been credited with a
Year of Service for such Year and (ii) who made Salary Reduction
Contributions for the Plan Year as follows:
(1) For Plan Years beginning after June 30, 1998, the
portion of such Adopting Company's contribution which equals
the aggregate amount which, when allocated to the Matching
Contributions Account of each Participant employed thereby on
the basis of Fifty Cents ($0.50) for each One Dollar ($1.00)
of such Participant's Sal ary Reduction Contribution for such
Year up to but not exceeding One Thousand Dollars ($1,000.00)
($0.50 x $1,000.00 = $500.00 maximum), or such other amount as
the Sponsoring Company may specify for such Plan Year, shall
be allocated to each such Participant's Matching Contributions
Account. All of such amounts shall be deemed to constitute
Salary Reduction Contributions for all purposes hereof other
than the provisions of Section 5.1(a)(5)
(2) Next, for Plan Years beginning after June 30,
1998, the portion of such Adopting Company's contribution
which equals the aggregate amount which, when allocated to the
Matching Contributions Account of each Participant employed
thereby on the basis of Thirty Cents ($0.30) for each
One Dollar ($1.00) of such Participant's Salary Reduction
Contribution for such Year exceeding One Thousand Dollars
($1,000.00) up to but not to exceed Three Thousand Dollars
($3,000.00) ($0.30 x $2,000.00 = $600.00 maximum),
or such other amount as the Sponsoring Company may specify
for such Plan Year, shall be allocated to each such
Participant's Matching Contributions Account. All of such
amounts shall be deemed to constitute Salary Reduction
Contributions for all purposes hereof other than the
provisions of Section 5.1(a)(5).
(3) Next, for Plan Years beginning after June 30,
1998, the portion of Penhall Company's contribution which
equals the aggregate amount which, when allocated to the
Matching Contributions Account of each Participant employed by
Penhall Company dba Highway Services (and only that division
of the Sponsoring Company) on the basis of Thirty Cents
($0.30) for each One Dollar ($1.00) of such Participant's
Salary Reduction Contribution for such Year exceeding Three
Thousand Dollars ($3,000.00) up to but not to exceed Six
Thousand Dollars ($6,000.00) ($0.30 x $3,000.00 = $900.00
maximum), or such other amount as the Sponsoring Company may
specify for such Plan Year, shall be allocated to each such
Participant's Matching Contributions Account. All of such
amounts shall be deemed to constitute Salary Reduction
Contributions for all purposes hereof other than the
provisions of Section 5.1(a)(5).
(4) Next, for Plan Years beginning after June 30,
1998, if the High Average Actual Deferral Per centage for such
Plan Year would exceed the higher of the two Percentage
Limitations described in Section 4.5(b), the portion of such
Adopting Company's contribution for such Year which equals the
smallest aggregate amount which, when allocated to the
Matching Contributions Accounts of those Participants employed
thereby who are Non-Highly Compensated Employees in the same
ratios which each such Participant's Salary Reduction
Contribution for such Year bears to the aggregate of the
Salary Reductions Contributions of all of such Participants
and included as constituting Salary Reduction Contributions of
such Participants in computing the Low Average
Actual Deferral Percentage, will result in the High Average
Actual Deferral Percentage meeting one of such Percentage
Limitations shall be allocated to the Matching Company
Contributions Accounts of such Participants who are Non-Highly
Compensated Employees. By so providing, each Adopting Company
intends that any amount allocated to the Matching
Contributions Account of a Participant who is a Non-Highly
Compensated Employee pursuant to the provisions of this
Section 5.1(a)(4) constitute a qualified nonelective
contribution. Accordingly, all of such amounts shall be deemed
to constitute Salary Reduction Contributions for purposes
hereof.
(5) Lastly, if the contribution made by an Adopting
Company for any Plan Year ending after June 30, 1998, exceeds
the amount, if any, required to be allocated to the Matching
Contributions Accounts of Participants pursuant to the
provisions of Sections 5.1(a)(1), 5.1(a)(2) and 5.1(a)(3),
plus the amount, if any, required to be allocated to the
Matching Contributions accounts of Participants who are
Non-Highly Compensated Employees pursuant to the provisions of
Section 5.1(a)(4), the balance of such Adopting Company's
contributions for such Year shall be allocated to the Matching
Contributions Accounts of all Participants employed thereby
who have been credited with a Year of Service for such Year in
the same ratios that each such Participant's Salary Reduction
Contribution for the Year bears to the Salary Reduction
Contributions of all Participants employed thereby for such
Year; pro vided, however, that the Salary Reduction
Contribution for such Year of each Participant who is a
Non-Highly Compensated Employee shall be deemed to include the
amount, if any, required to be allocated to the Matching
Contribution Account of such Participant pursuant to the
provisions of Section 5.1(a)(4). By so providing, each
Adopting Company intends to comply with the provisions of
Section 401(m)(3) of the Code."
2. Effective immediately, the following special provision shall apply:
"Special Eligibility and Vesting Rules for Penhall Company dba Highway
Services Employees.
Penhall Company is in the process of acquiring substantially
all of the assets of a company known as Highway Services, Inc., which
company will be operated by Penhall Company as one of its divisions, to
be known as 'Penhall Company dba Highway Services.' Effective upon the
closing of that acquisition:
(a) Any Employee hereafter employed by an Adopting Company
will be credited with past service credit for eligibility and vesting
purposes under this Plan with all service performed by that Employee
for Highway Services, Inc. prior to the acquisition, applying the rules
of this Plan as they related to crediting service;
(b) The term "Eligible Employee" includes Employees of Penhall
Company dba Highway Services (and only that division of the Sponsoring
Company) who are included in a unit of Employees covered by a
collective bargaining agreement between employee representatives and
Penhall Company; and
(c) The Plan will have a special one-time Entry Date solely
for each Employee who was employed by Highway Services, Inc.
immediately prior to the closing of the acquisition, and who commences
employment with an Adopting Company during the period from the date of
closing of the acquisition through June 30, 1998. That Entry Date is
the Employee's Date of Employment (without taking into account
paragraph (a) above)."
This Plan Amendment is executed this 27th day of April, 1998.
PENHALL INTERNATIONAL, INC.
By: /s/ Roger C. Stull
-------------------------------------
Robert C. Stull, President
AMENDMENT TO THE PENNHALL INTERNATIONAL, INC. AND
AFFILIATED COMPANIES EMPLOYEES' PROFIT-SHARING
(401k) PLAN AND TRUST AGREEMENT
(THE "PLAN")
Pursuant to Section 10.1 of the Plan, Pennhall International, Inc., as
Sponsoring Company under the Plan, hereby amends the Plan in the following
particulars only:
1. The following paragraph is added to Section 6.4.
"Notwithstanding Sections 6.4, 6.5, 6.6, and 6.7 herein,
benefits may be distributed to the "alternate payee" under a "qualified
domestic relations order" (as those terms are defined in Section 414(p)
of the Code) as required by such order, regardless of the age or
employment status of the Participant, provided that: (a) the form and
commencement of distribution is authorized under Sections 6.6 and 6.7,
assuming the alternate payee to be an unmarried Participant who has
terminated employment on the date of entry of the order; and (b)
subsequent distributions to persons other than the alternate payee,
with respect to the same Participant, shall be reduced if necessary to
prevent duplicate distributions with respect to the same benefit
amount."
IN WITNESS WHEREOF, the Sponsoring Company has executed this Plan
Amendment effective March 1, 1992.
"SPONSORING COMPANY"
PENNHALL INTERNATIONAL, INC., a
California corporation
By
------------------------------------
Roger C. Stull, President
AMENDMENT TO THE
PENHALL INTERNATIONAL, INC.
AND AFFILIATED COMPANIES
EMPLOYEES' PROFIT SHARING 401(k) PLAN AND TRUST
Pursuant to Article X of the PENHALL INTERNATIONAL, INC. AND AFFILIATED
COMPANIES EMPLOYEES' PROFIT SHARING 401(k) PLAN AND TRUST (the "Plan"), Penhall
International, Inc. amends the Plan (as recently amended and restated) as
follows effective July 1, 1989.
1. The following is added to Section 4.5(c):
"Salary Reduction Contributions must relate to Compensation
that either would have been received by the Employee in the
Plan Year (but for the Salary Reduction Election) or is
attributable to services performed by the Employee in the Plan
Year and would have been received by the Employee within 2-1/2
months after the close of the Plan Year (but for the Salary
Reduction Election) in order to be considered in calculating
the Actual Deferral Percentage."
2. The following is added as Section 1.2(ggg):
"(ggg) 'Limitation Year' means the Plan Year."
3. The following sentence is added to Section 3.2:
"The Plan shall accept no transfer contributions."
4. The reference to Plan Section 5.1(a)(3) in Section 5.1(a)(4) is
changed to read "5.1(a)(4)." The two references to Plan Section 5.1(a)(3) in
Section 5.1(a)(5) are changed to read "5.1(a)(4)." There is no Plan Section
5.1(a)(3).
5. Section 4.7(f) is deleted and the following inserted in its place:
"(f) Salary Reduction Contributions will be taken into account
in computing Actual Deferral Percentages for a Plan Year only
if allocated to
the Participant's Account as of a date within
such Plan Year. For this purpose, Salary Reduction
Contributions are considered allocated as of a
date within a Plan Year if the allocation is not contingent on
participation or performance of services after such date and
the Salary Reduction Contribution is actually paid to the
Trust no later than 12 months after the Plan Year to which
such Contribution relates."
6. The parenthetical at the end of Section 4.6(a)(2) is deleted and the
following inserted in its place:
"(determined in accordance with Section 4.6(d) below)."
7. The following is added as Section 4.6(d):
"(d) The amount of excess contributions for a
Highly Compensated Employee is determined as follows:
(1) First, the Actual Deferral Percentage of the
Highly Compensated Employee with the highest Actual
Deferral Percentage is reduced to the extent
necessary to satisfy the Actual Deferral Percentage
test or cause such Percentage to equal the Actual
Deferral Percentage of the Highly Compensated
Employee with the next highest Percentage.
(2) Second, this process is repeated until the Actual
Deferral Percentage test is
satisfied.
The amount of excess contributions for a Highly Compensated
Employee is then equal to the total Salary Reduction
Contributions and Matching Contributions taken into account
for the Actual Deferral Percentage test less the product of
such Employee's reduced Actual Deferral Percentage as
determined above and the Employee's Compensation.
Notwithstanding the foregoing, the amount of excess
contributions to be distributed shall be reduced by Excess
Deferrals previously distributed for the taxable year ending
in the same Plan Year, and Excess Deferrals to be distributed
for a
taxable year will be reduced by excess contributions
previously distributed for the Plan Year beginning in such
taxable year."
This Plan Amendment is executed this 25th day of March, 1994, at
Anaheim, California.
PENHALL INTERNATIONAL, INC.
By: /s/ Roger C. Stull
---------------------------
Robert C. Stull, President
PLAN AMENDMENT
The employer named below ("Employer") is the sponsor of the
tax-qualified retirement plan named below (the "Plan"). Employer hereby amends
the Plan by adding the following provisions effective as provided below.
1. The following is added effective January 1, 1994:
"OBRA '93 Annual Compensation Limit
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 Code Section
401(a)(17)(B). The cost-of-living adjustment in effect for a calendar
year applies to any period, not exceeding 12 months, over which
Compensation is determined (the "determination period") beginning in
such calendar year. If a determination period consists of fewer than 12
months, the OBRA '93 Annual Compensation Limit will be multiplied by a
fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under Code Section 401(a)(17) 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 the
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."
2. The following is added effective January 1, 1993:
"Waiver of 30-Day Hold on Distributions
If a distribution is one to which Code Sections 401(a)(11) and 417 do
not apply, such distribution may commence less than 30 days after the
notice required under Regulation Section 1.411(a)-11(c) 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
(2) The Participant, after receiving such notice,
affirmatively elects a distribution."
Employer: Penhall International, Inc.
----------------------------
Plan: Penhall International, Inc. and
Affiliated Companies Employees'
Profit Sharing Plan (401(k)) Plan
--------------------------------
Date: April 5, 1993 By: /s/ Charles D. Steichen
------------- ------------------------------
Title: Vice President
---------------------------
DIRECT ROLLOVER
PLAN AMENDMENT
The employer named below ("Employer") is the sponsor of the
tax-qualified retirement plan named below (the "Plan). Employer hereby amends
the Plan effective January 1, 1993, by adding the following provisions to comply
with Code Section 401(a)(31).
"DIRECT ROLLOVERS
Section A. These provisions apply to Plan distributions made on or
after January 1, 1993. Notwithstanding any provisions of the Plan to the
contrary that would otherwise limit a Distributee's election under these
provisions, a "Distributee" may elect, at the time and in the manner prescribed
by the Plan Administrator, to have any portion of an "Eligible Rollover
Distribution" paid directly to an "Eligible Retirement Plan" specified by the
Distributee in a "Direct Rollover."
Section B. "Eligible Rollover Distribution": An Eligible Rollover
Distribution is any distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover Distribution does
not include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint life expectancies)
of the Distributee and the Distributee's designated beneficiary, or for a
specified period of 10 years or more; any distribution to the extent such
distribution is required under Code Section 401(a)(9); and the portion of any
distribution that is not includible in gross income (determined without regard
to the exclusion for net unrealized appreciation with respect to employer
securities).
Section C. Eligible Retirement Plan: An Eligible Retirement Plan is
an individual retirement account described in Code Section 408(a), an individual
retirement annuity described in Code Section 408(b), an annuity plan described
in Code Section 403(a), or a qualified trust described in Code Section 401(a),
that accepts the Distributee's Eligible Rollover Distribution. However, in the
case of an Eligible Rollover Distribution to the
surviving spouse, an Eligible Retirement Plan is an individual retirement
account or individual retirement annuity.
Section D. Distributee: A Distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's surviving spouse and
the Employee's or former Employee's spouse or former spouse who is the alternate
payee under a Qualified Domestic Relations Order, as defined in Code Section
414(p), are Distributees with regard to the interest of the spouse or former
spouse.
Section E. Direct Rollover: A Direct Rollover is a payment by the Plan
to the Eligible Retirement Plan specified by the Distributee."
Employer:
--------------------------
Plan:
------------------------------
Date: , 1993 By:
------------- --------------------------------
Title:
-----------------------------
INTERIM PLAN AMENDMENT
The undersigned "Sponsoring Employer" of the "Employee Pension Benefit
Plan" set forth below (the "Plan") hereby amends the Plan effective for Plan
Years commencing on or after January 1, 1997 as follows:
1. WHEREAS: HR 3448, the Small Business Protection Act of 1996 (the '96
Act"), provides in general in Section 1404(b) that, except for five percent
owners, plan participants must begin to receive minimum required distributions
under Section 401(a)(9)(C) of the Internal Revenue Code of 1986 (the "Code") by
April 1 of the calendar year following the year in which the participant reaches
age 70-1/2 or, if later, the year in which the participant retires. The
Sponsoring Employer wishes to give Plan participants who (a) are not five
percent owners, (b) are currently employed by the Sponsoring Employer and (c)
are currently receiving minimum required distributions, the election to stop
receiving those distributions until otherwise required by law.
THE PLAN IS AMENDED AS FOLLOWS: "Notwithstanding anything in the Plan
to the contrary: (a) Participants who are not five percent owners (as defined in
Code Section 416) are not required to receive minimum required distributions
until April 1 of the calendar year following the later of (i) the calendar year
in which the participant attains age 70-1/2 or (ii) the calendar year in which
the employee retires. (b) Participants who (i) are not five percent owners (as
defined in Code Section 416), (ii) are currently employed by the Sponsoring
Employer and (iii) are currently receiving minimum required distributions, shall
have the right to elect to stop receiving those distributions until otherwise
required by law."
2. WHEREAS: Section 1431 of the '96 Act changes the definition of
"highly compensated employee." New Code Section 414(q)(1)(B)(2) allows the
employer to elect to limit the group of highly compensated employees (other than
five percent owners) to those in the top-paid group of employees for the
preceding year. The Sponsoring Employer wishes to make that election.
THE PLAN IS AMENDED AS FOLLOWS: "Beginning with the Plan Year
commencing on or after January 1, 1997, the Sponsoring Employer makes the
election set forth in Code Section 414(q)(1)(B)(2), electing to limit the group
of highly compensated employees (other than five percent
owners) to those in the top-paid group of employees for the
preceding year."
This Interim Plan Amendment is executed this 10th day of
February, 1997.
Sponsoring Employer: /s/ Roger C. Stull
---------------------------------------------------------
Name of Employee Pension Benefit Plan: Penhall International, Inc. and
Affiliated Companies Employees' Profit
Sharing (401(k)) Plan and Trust
Agreement
----------------------------------------