EMPLOYEE STOCK OWNERSHIP PLAN
AND TRUST AGREEMENT
OF
FRONTEER DIRECTORY CO.
FRONTEER DIRECTORY CO., a corporation organized under the laws of the
State of Colorado, referred to as the "Employer", makes this Agreement with
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, collectively referred to as
the "Trustee".
Recitals
The Employer hereby establishes, within this Trust Agreement, a Plan
for the administration and distribution of contributions made by the Employer
for the purpose of providing retirement benefits for eligible Employees. The
provisions of this Plan shall apply solely to an Employee whose employment with
the Employer terminates on or after the Effective Date.
NOW, THEREFORE, in consideration of their mutual covenants, the
Employer and the Trustee agree as follows:
ARTICLE I
Definitions
1.01 Plan means the retirement plan established by the Employer in the
form of this Agreement, designated as the Fronteer Directory Co. Employee Stock
Owenrship Plan. The Employer has designed this plan to invest primarily in
Employer Securities.
1.02 Employer means Fronteer Directory Co.
1.03 Trustee means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇, or any successor in office who in writing accepts the position of Trustee.
1.04 Plan Administrator is the Employer unless the Employer designates
another person to hold the position of Plan Administrator. In addition to other
duties, the Plan Administrator has full responsibility for compliance with the
reporting and disclosure rules under ERISA as respects this Agreement.
1.05 Advisory Committee means the Employer's Advisory Committee as
from time to time constituted.
1.06 Employee means any employee of the Employer.
1.07 Highly Compensated Employee means an Employee who, during the
Plan Year or during the preceding 12-month period:
(a) is a more than 5% owner of the Employer (applying the constructive
ownership rules of Code Section 318, and applying the principles of
Code Section 318, for an unincorporated entity);
(b) has Compensation in excess of $75,000 (as adjusted by the
Commissioner of Internal Revenue for the relevant year);
(c) has Compensation in excess of $50,000 (as adjusted by the
Commissioner of Internal Revenue for the relevant year) and is part of
the top-paid 20% group of employees (based on Compensation for the
relevant year);
(d) has Compensation in excess of 50% of the dollar amount prescribed
in Code Section 415(b)(1)(A)(relating to defined benefit plans) and is
an officer of the Employer.
If the Employee satisfies the definition in clause (b), (c) or (d) in
the Plan Year but not during the preceding 12-month period and does not satisfy
clause (a) in either period, the Employee is a Highly Compensated Employee only
if he is one of the 100 most highly compensated Employees for the Plan Year. The
number of officers taken into account under clause (d) will not exceed the
greater of 3 or 10% of the total number (after application of the Code Section
414(q) exclusions) of Employees, but no more than 50 officers. If no Employee
satisfies the Compensation requirement in clause (d) for the relevant year, the
Advisory Committee will treat the highest paid officer as satisfying clause (d)
for that year.
For purposes of this Section 1.07, "Compensation" means Compensation as
defined in Section 1.10, except any exclusions from Compensation other than the
exclusions described in paragraphs (a), (b), (c) and (d) of Section 1.10, and
Compensation must include: (i) elective deferrals under a Code Section 401(k)
arrangment or under a Simplified Employee Pension maintained by the Employer;
and (ii) amounts paid by the Employer which are not currently includible in the
Employee's gross income because of Code Section 125 (cafeteria plans) or Code
Section 403(b) (tax-sheltered annuities). The Advisory Committee must make the
determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of the top paid 20% group, the top 100
paid Employees, the number of officers includible in clause (d) and the relevant
Compensation, consistent with Code Section 414(q) and regulations issued under
the Code section. The Employer may make a calendar year election to determine
the Highly Compensated Employees for the Plan Year, as prescribed by Treasury
regulations. A calendar year election must apply to all plans and arrangements
of the Employer. For purposes of applying any nondiscrimination test required
under the Plan or under the Code, in a manner consistent with applicable
Treasury regulations, the Advisory Committee will not treat as a separate
Employee a family member (a spouse, a lineal ascendant or descendant, or a
spouse of a lineal ascendant or descendant) of a Highly Compensated Employee
described in clause (a) of this Section, or a family member of one of the ten
Highly Compensated Employees with the greatest Compensation for the Plan Year,
but will treat the Highly Compensated Employee and all familiy members as a
single Highly Compensated Employee. This aggregation rule applies to a family
member even if that family member is a Highly Compensated Employee without
family aggregation.
The term "Highly Compensated Employee" also includes any former
Employee who separated from Service (or has a deemed Separation from Service, as
determined under Treasury regulations) prior to the Plan Year, performs no
Service for the Employer during the Plan Year, and was a Highly Compensated
Employee either for the separation year or any Plan Year ending on or after his
55th birthday. If the former Employee's Separation from Service occurred prior
to January 1, 1987, he is a Highly Compensated Employee only if he satisfied
clause (a) of this Section 1.07 or received Compensation in excess of $50,000
during: (1) the year of his Separation from Service (or the prior year); or (2)
any year ending after his 54th birthday.
1.08 Participant is an Employee who is eligible to be and becomes a
Participant in accordance with the provisions of Section 2.01.
1.09 Beneficiary is a person designated by a Participant who is or may
become entitled to a benefit under the Plan. A Beneficiary who becomes entitled
to a benefit under the Plan shall remain a Beneficiary under the Plan until the
Trustee has fully distributed his benefit to him. A Beneficiary's right to (and
the Plan Administrator's, the Advisory Committee's, or a Trustee's duty to
provide to the Beneficiary) information or data concerning the Plan shall not
arise until he first becomes entitled to receive a benefit under the Plan.
1.10 Compensation means the Participant's wages, salaries, fees for
professional service and other amounts received for personal services actually
rendered in the course of employment with the Employer maintaining the plan
(including, but not limited to, commissions paid salesmen, compensation for
services on the basis of a percentage of profits, commissions on insurance
premiums, tips and bonuses). Compensation also includes elective contributions
made by the Employer on the Employee's behalf. "Elective contributions" are
amounts excludible from the Employee's gross income under Code Section 402(a)(8)
(relating to a Code Section 401(k) arrangement), Code Section 402(h) (relating
to a Simplified Employee Pension), Code Section 125 (relating to a cafeteria
plan) or Code Section 403(b) (relating to a tax-sheltered annuity). The term
"Compensation" does not include:
(a) Employer contributions (other than "elective contributions") to a
plan of deferred compensation to the extent the contributions are not
included in the gross income of the Employee for the taxable year in
which contributed, on behalf of an Employee to a Simplified Employee
Pension Plan to the extent such contributions are excludible from the
Employee's gross income, and any distributions from a plan of deferred
compensation, regardless of whether such amounts are includible in the
gross income of the Employee when distributed.
(b) Amounts realized from the exercise of a non-qualified stock option,
or when restricted stock (or property) held by an Employee either
becomes freely transferable or is no longer subject to a substantial
risk of forfeiture.
(c) Amounts realized from the sale, exchange or other dispostion of
stock acquired under a qualified stock option.
(d) Other amounts which receive special tax benefits, such as premiums
for group term life insurance (but only to the extent that the premiums
are not includible in the gross income of the Employee), or
contributions made by an Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity contract
described in Code Section 403(b) (whether or not the contributions are
excludible from the gross income of the Employee),other than "elective
contributions".
Any reference in this Plan to Compensation is a reference to the
definition in this Section 1.10, unless the Plan reference specifies a
modification to this definition. The Advisory Committee will take into account
only Compensation actually paid for the relevant period.
For any Plan Year beginning after December 31, 1988, the Advisory
Committee must take into account only the first $200,000 (or beginning January
1, 1990, such larger amount as the Commissioner of Internal Revenue may
prescribe) of any Participant's Compensation. The $200,000 Compensation
limitation applies to the combined Compensation of the Employee and of any
family member aggregated with the Employee under Section 1.09 and who is either
(i) the Employee's spouse; or (ii) the Employee's lineal descendant under the
age of 19. If the $200,000 (or adjusted) Compensation limitation applies to the
combined Compensation of the Employee and one or more family members, the
Advisory Committee will apply the contribution and allocation provisions of
Article III by prorating the $200,000 (or adjusted) limitation among the
affected Participants in proportion to each such Participant's Compensation
determined prior to application of this limitation. For any Plan Year beginning
prior to January 1, 1989, this $200,000 limitation (but not the family
aggregation requirement) applies only if the Plan is top heavy (as determined
under Section 1.29) for such Plan Year.
Nondiscrimination. For purposes of determining whether the Plan
discriminates in favor of Highly Compensated Employees, Compensation means
Compensation as defined in this Section 1.10, except any exclusions from
Compensation other than the exclusions described in paragraphs (a), (b), (c) and
(d), unless the Employer elects to use an alternate nondiscriminatory
definition, in accordance with the requirements of Code Section 414(s) and the
regulations issued under that Code section. The Employer may elect to include
all elective contributions made by the Employer on behalf of the Employees. The
Employer's election to include elective contributions must be consistent and
uniform with respect to Employees and all plans of the Employer for any
particular Plan Year. The Employer may make this election to include elective
contributions for nondiscrimination testing purposes, irrespective of whether
this Section 1.10 includes elective contributions in the general Compensation
definition applicable to the Plan.
1.11 Account means the separate account(s) which the Advisory Committee
or Trustee shall maintain for a Participant under the Plan.
1.12 Accrued Benefit means the amount standing in a Participant's
Account as of any date derived from both Employer contributions and Employee
contributions, if any.
1.13 Nonforfeitable means a Participant's or Beneficiary's
unconditional claim, legally enforceable against the Plan, to the Participant's
Accrued Benefit.
1.14 Plan Year means the fiscal year of the Plan, a 12 consecutive
month period ending every September 30.
1.15 Effective Date of this Plan is October 1, 1989.
1.16 Plan Entry Date means Effective Date and every April 1 and October
1 after the Effective Date.
1.17 Accounting Date is the last day of the Plan Year. Unless otherwise
specified in the Plan, the Advisory Committee will make all Plan allocations for
a particular Plan Year as of the Accounting Date of the Plan Year.
1.18 Trust means the Trust created under the Plan.
1.19 Trust Fund means all property of every kind held or acquired by
the Trustee under this Agreement.
1.20 Nontransferable Annuity means an annuity which by its terms
provides that it may not be sold, assigned, discounted, pledged as collateral
for a loan or security of the performance of an obligation or for any purpose to
any person other than the insurance company. If the Trustee distributes an
annuity contract, the contract must be a Nontransferable Annuity.
1.21 ERISA means the Employee Retirement Income Security Act of 1974,
as amended.
1.22 Code means the Internal Revenue Code of 1986, as amended.
1.23 Service means any period of time the Employee is in the employ of
an Employer, including any period the Employee is on unpaid leave of absence
authorized by the Employer under a uniform, nondiscriminatory policy applicable
to all Employees. "Separation from Service" means a separation from Service with
the Employer maintaining this Plan.
1.24 Hour of Service means:
(a) Each Hour of Service for which the Employer, either
directly or indirectly, pays an Employee, or for which the Employee is entitled
to payment, for the performance of duties during the Plan Year. The Advisory
Committee credits Hours of Service under this paragraph (a) to the Employee for
the computation period in which the Employee performs the duties, irrespective
of when paid;
(b) Each Hour of Service for back pay, irrespective of
mitigation of damages, to which the Employer has agreed or for which the
Employee has received an award. The Advisory Committee credits Hours of Service
under this paragraph (b) to the Employee for the computation period(s) to which
the award or the agreement pertains rather than the computation period in which
the award, agreement or payment is made; and
(c) Each Hour of Service for which the Employer, either
directly or indirectly, pays an Employee, or for which the Employee is entitled
to payment (irrespective of whether the employment relationship is terminated),
for reasons other than for the performance of duties during a computation
period, such as leave of absence, vacation, holiday, sick leave, illness,
incapacity (including disability), layoff, jury duty or military duty. The
Advisory Committee will credit no more than 501 Hours of Service under this
paragraph (c) to an Employee on account of any single continuous period during
which the Employee does not perform any duties (whether or not such period
occurs during a single computation period). The Advisory Committee credits Hours
of Service under this paragraph (c) in accordance with the rules of paragraph
(b) and (c) of Labor Reg. Section 2530.200b-2, which the Plan, by this
reference, specifically incorporates in full within this paragraph (c).
The Advisory Committee shall not credit an Hour of Service
under more than one of the above paragraphs. A computation period for purposes
of this Section 1.24 is the Plan Year, Year of Service period, Break in Service
period or other period, as determined under the Plan provision for which the
Advisory Committee is measuring an Employee's Hours of Service in favor of the
Employee.
The Advisory Committee will resolve any ambiguity with respect to the
crediting of an Hour of Service in favor of the Employee. The Advisory Committee
will credit every Employee with Hours of Service on the basis of the "actual"
method. For purposes of the Plan, "actual" method means the determination of
Hours of Service from records of hours worked and hours for which the Employer
makes payment or for which payment is due from the Employer.
Solely for purposes of determining whether the Employee incurs a Break
in Service under any provision of this Plan, the Advisory Committee must credit
Hours of Service during an Employee's unpaid absence period due to maternity or
paternity leave. The Advisory Committee considers an Employee on maternity or
paternity leave if the Employee's absence is due to the Employee's pregnancy,
the birth of the Employee's child, the placement with the Employee of an adopted
child, or the care of the Employee's child immediately following the child's
birth or placement. The Advisory Committee credits Hours of Service under this
paragraph on the basis of the number of Hours of Service the Employee would
receive if he were paid during the absence period or, if the Advisory Committee
cannot determine the number of Hours of Service the Employee would receive, on
the basis of 8 hours per day during the absence period. The Advisory Committee
will credit only the number (not exceeding 501) Hours of Service necessary to
prevent an Employee's Break in Service. The Advisory Committee credits all Hours
of Service described in this paragraph to the computation period in which the
absence period begins or, if the Employee does not need these Hours of Service
to prevent a Break in Service in the computation period in which his absence
period begins, the Advisory Committee credits these Hours of Service to the
immediately following computation period.
1.25 Disability means the Participant, because of a physical or mental
disability, will be unable to perform the duties of his customary position of
employment (or is unable to engage in any substantial gainful activity) for an
indefinite period which the Advisory Committee considers will be of long
continued duration. A Participant also is disabled if he incurs the permanent
loss or loss of use of a member or function of the body, or is permanently
disfigured, and incurs a Separation from Service. The Plan considers a
Participant disabled on the date the Advisory Committee determines the
Participant satisfies the definition of disability. The Advisory Committee may
require a Participant to submit to a physical examination in order to confirm
disability. The Advisory Committee will apply the provisions of this Section
1.25 in a nondiscriminatory, consistant and uniform manner.
1.26 Service for Predecessor Employer. If the Employer maintains the
plan of a predecessor employer, the Plan treats service of the Employee with the
predecessor employer as service with the Employer.
1.27 Related Employers. A related group is a controlled group of
corporations (as defined in Code Section 414(b)), trades or businesses (whether
or not incorporated) which are under common control (as defined in Code Section
414(c)) or an affiliated service group (as defined in Code Section 414(m) or in
Code Section 414(o)). If the Employer is a member of a related group, the term
"Employer" includes the related group members for purposes of crediting Hours of
Service, determining Years of Service and Breaks in Service under Articles II
and V, applying the limitations on allocations in Part 2 of Article III,
applying the top heavy rules and the minimum allocation requirements of Article
III, the definitions of Employee, Highly Compensated Employee, Compensation and
Leased Employee, and for any other purpose required by the Applicable Code
section or by a Plan provision. However, only an Employer described in Section
1.02 may contribute to the Plan and only an Employee employed by an Employer
described in Section 1.02 is eligible to participate in this Plan. For Plan
allocation purposes, "Compensation" does not include Compensation received from
a related employer that is not participating in this Plan.
1.28 Leased Employees. The Plan treats a Leased Employee as an Employee
of the Employer. A Leased Employee is an individual (who otherwise is not an
Employee of the Employer) who, pursuant to a leasing agreement between the
Employer and any other person, has performed services for the Employer (or for
the Employer and any persons related to the Employer within the meaning of Code
Section 144(a)(3)) on a substantially full time basis for at least one year and
who performs services historically performed by employees in the Employer's
business field. If a Leased Employee is treated as an Employee by reason of this
Section 1.28 of the Plan, "Compensation" includes Compensation from the leasing
organization which is attributable to services performed for the Employer.
Safe harbor plan exception. The Plan does not treat a Leased Employee
as an Employee if the leasing organization covers the employee in a safe harbor
plan and, prior to application of this safe harbor plan exception, 20% or less
of the Employer's Employees (other than Highly Compensaqted Employees) are
Leased Employees. A safe harbor plan is a money purchase pension plan providing
immediate participation, full and immediate vesting, and a nonintegrated
contribution formula equal to at least 10% of the employee's compensation
without regard to employment by the leasing organization on a specified date.
The safe harbor plan must determine the 10% contribution on the basis of
compensation as defined in Code Section 415(c)(3) plus elective contributions
(as defined in Section 1.10).
Other requirements. The Advisory Committee must apply this Section 1.28
in a manner consistent with Code Section 414(n) and Code Section 414(o) and the
regulations issued under those Code sections. The Advisory Committee will reduce
a Leased Employee's allocation of Employer contributions under this Plan by the
Leased Employee's allocation under the leasing organization's plan, but only to
the extent that allocation is attributable to the Leased Employee's service
provided to the Employer. The leasing organization's plan must be a money
purchase plan which would satisfy the definition under this Section 1.28 of a
safe harbor plan, irrespective of whether the Employer is able to use the safe
harbor plan exception.
1.29 Determination of Top Heavy Status. If this Plan is the only
qualified plan maintained by the Employer, the Plan is top heavy for a Plan Year
if the top heavy ratio as of the Determination Date exceeds 60%. The top heavy
ratio is a fraction, the numerator of which is the sum of the present value of
Accrued Benefits of all Key Employees as of the Determination Date and the
denominator of which is a similar sum determined for all Employees. The Advisory
Committee must include in the top heavy ratio, as part of the present value of
Accrued Benefits, any contribution not made as of the Determination Date but
includible under Code Section 416 and the applicable Treasury regulations, and
distributions made within the Determination Period. The Advisory Committee must
calculate the top heavy ratio by disregarding the Accrued Benefit (and
distributions, if any, of the Accrued Benefit) of any Non-Key Employee who was
formerly a Key Employee, and by disregarding the Accrued Benefit (including
distributions, if any, of the Accrued Benefit) of an individual who has not
received credit for at least one Hour of Service with the Employer during the
Determination Period. The Advisory Committee must calculate the top heavy ratio,
including th extent to which it must take into account distributions, rollovers
and transfers, in accordance with Code Section 416 and the regulations under
that Code section.
If the Employer maintains other qualified plans (including a simplified
employee pension plan), or maintained another such plan which now is terminated,
this Plan is top heavy only if it is part of the Required Aggregation Group, and
the top heavy ratio for the Required Aggregation Group and for the Permissive
Aggregation Group, if any, each exceeds 60%. The Advisory Committee will
calculate the top heavy ratio in the same manner as required by the first
paragraph of this Section 1.29, taking into account all plans within the
Aggregation Group. To the extent the Advisory Committee must take into account
distributions to a Participant, the Advisory Committee must include
distributions from a terminated plan which would have been part of the Required
Aggregation Group if it were in existence on the Determination Date. The
Advisory Committee will calculate the present value of Accrued Benefits under
defined benefit plans or simplified employee pension plans included within the
group in accordance with the terms of those plans, Code Section 416 and the
regulations under that Code section. If a Participant in a defined benefit plan
is a Non-Key Employee, the Advisory Committee will determine his Accrued Benefit
under the accrual method, if any, which is applicable uniformly to all defined
benefit plans maintained by the Employer or, if there is no uniform method, in
accordance with the slowest accrual method described in Code Section
411(b)(1)(C). To calculate the present value of benefits from a defined benefit
plan, the Advisory Committee will use the actuarial assumptions (interest and
mortality only) prescribed by the defined benefit plan(s) to value benfits for
top heavy purposes. If an aggregated plan does not have a valuation date
coinciding with the Determination Date, the Advisory Committee must value the
Accrued Benefits in the aggregated plan as of the most recent valuation date
falling within the twelve-month period ending on the Determination Date, except
as Code Section 416 and applicable Treasury regulations require for the first
and second plan year of a defined benefit plan. The Advisory Committee will
calculate the top heavy ratio with reference to the Determination Dates that
fall within the same calendar year.
Definitions. For purposes of applying the provisions of this Section
1.29:
(a) Key Employee means, as of any Determination Date, any Employee or
former Employee (or Beneficiary of such Employee) who, for any Plan
year in the Determination Period: (i) has Compensation in excess of 50%
of the dollar amount presecribed in Code Section 415(b)(1)(A) (relating
to defined benefit plans) and is an officer of the Employer; (ii) has
Compensation in excess of the dollar amount prescribed in Code Section
415(c)(1)(A) (relating to defined contribution plans) and is one of the
Employees owning the ten largest interests in the Employer; (iii) is a
more than 5% owner of the Employer; or (iv) is a more than 1% owner of
the Employer and has Compensation of more than $150,000. The
constructive ownership rules of Code Section 318 (or the principles of
that section, in the case of an unincorporated Employer,) will apply to
determine ownership in the Employer. The number of officers taken into
account under clause (i) will not exceed the greater of 3 or 10% of the
total number (after application of the Code Section 414(q)(8)
exclusions) of Employees, but no more than 50 officers. The Advisory
Committee will make the determination of who is a Key Employee in
accordance with Code Section 416(i)(1) and the regulations under that
Code section.
(b) Non-Key Employee is an employee who does not meet the definition
of Key Employee.
(c) Compensation means Compensation as determined under Section 1.07
(relating to the Highly Compensated Employee definition).
(d) Required Aggregation Group means: (1) each qualified plan of the
Employer in which at least one Key Employee participates at any time
during the Determination Period; and (2) any other qualified plan of
the Employer which enables a plan described in clause (1) to meet the
requirements of Code Section 401(a)(4) or Code Section 410.
(e) Permissive Aggregation Group is the Required Aggregation Group plus
any other qualified plans maintained by the Employer, but only if such
group would satisfy in the aggregate the requirements of Code Section
401(a)(4) and Code Section 410. The Advisory Committee will determine
the Permissive Aggregation Group.
(f) Employer means the Employer that adopts this Plan and any related
employers described in Section 1.27.
(g) Determination Date for any Plan Year is the Accounting Date of the
preceding Plan Year, or in the case of the first Plan Year of the Plan,
the Accounting Date of the Plan Year. The "Determination Period" is the
5 year period ending on the Determination Date.
1.30 Disqualified Person has the meaning ascribed to that term under
Code Section 4975(e)(2).
1.31 Employer Securities means voting common stock issued by the
Employer, or by a corporation which is a member of the same controlled group of
corporations, which is readily tradable on an established securities market.
1.32 Exempt Loan means a loan made to this Plan by a Disqualified
Person, or a loan to this Plan which is a Disqualified Person guarantees,
provided the loan satisfies the requirements to Treasury Regulation Sections
54.4975-7(b).
1.33 Leveraged Employer Securities means Employer Securities acquired
by the Trust with the proceeds of an Exempt Loan and which satisfy the
definition of "qualifying employer securities" in Code Section 4975(e)(8).
ARTICLE II
Employee Participants
2.01 Eligibility. Each Employee employed by the Employer on the
Effective Date, October 1, 1989, shall become a Participant as of October 1,
1989. Each Employee who first earns an Hour of Service after October 1, 1989
shall become a Participant in the Plan on the Plan Entry Date (if employed on
that date) coincident with or immediately following the later of the date on
which he completes one Year of Service or attains the age of 21.
2.02 Year of Service - Participation. For purposes of an Employee's
participation in the Plan under Section 2.01, the Plan takes into account all of
his Years of Service with the Employer, except as provided in Section 2.03.
"Year of Service" means a 12 consecutive month period during which the Employee
completes not less than 1,000 Hours of Service, measuring the beginning of the
first 12 month period from the Employment Commencement Date. If the Employee
does not complete 1,000 Hours of Service during the 12 month period commencing
with the Employment Commencement Date, the Plan measures the second 12 month
period from the first day of the Plan Year which includes the anniversary of the
Employment Commencement Date. The Plan measures any subsequent 12 month period
necessary for a determination of Year of Service for participation by reference
to succeeding Plan Years. "Employment Commencement Date" means the date on which
the Employee first performs an Hour of Service for the Employer.
2.03 Break in Service - Participation. For purposes of participation
in the Plan, the Plan does not apply any Break in Service rule.
2.04 Participation Upon Re-Employment. A Participant whose employment
terminates shall re-enter the Plan as a Participant on the date of his
re-employment. An Employee who satisfies the Plan's eligibility condition(s) but
who terminates employment prior to becoming a Participant becomes a Participant
in the Plan on the later of the Plan Entry Date on which he would have entered
the Plan had he not terminated employment or the date of his reemployment. Any
Employee who terminates employment prior to satisfying the Plan's eligibility
conditions becomes a Participant in accordance with the provisions of Section
2.01.
ARTICLE III
Employer Contributions and Forfeitures
Part 1. Amount of Employer Contributions and Plan Allocations: Sections 3.01
through 3.06
3.01 Amount. For each Plan Year, the Employer will contribute to the
Trust an amount which the Employer may from time to time deem advisable. The
Employer may make its contribution in cash or in Employer Securities as the
Employer from time to time may determine. The Employer may make its contribution
of Employer Securities at fair market value determined at the time of
contribution. Although the Employer may contribute to this Plan irrespective of
whether it has net profits, the Employer intends the Plan to be a profit-sharing
plan for all purposes of the Code. The Employer may not make a contribution to
the Trust for any Plan Year to the extent the contribution would exceed the
Participants' "Maximum Permissible Amounts" under Section 3.08.
The Trustee, upon written request from the Employer, must return to the
Employer the amount of the Employer's contribution made by the Employer by
mistake of fact or the amount of the Employer's contribution disallowed as a
deduction under Code Section 404. The Trustee will not return any portion of the
Employer's contribution under the provisions of this Section 3.01 more than one
year after: (a) the Employer made the contribution by mistake of fact; or (b)
the disallowance of the contribution as a deduction, and then, only to the
extent of the disallowance. The Trustee will not increase the amount of the
Employer contribution returnable under this Section 3.01 for any earnings
attributable to the contribution, but the Trustee will decrease the Employer
contribution returnable for any losses attributable to it. The Trustee may
require the Employer to furnish the Trustee whatever evidence the Trustee deems
necessary to enable the Trustee to confirm the amount the Employer has requested
be returned is properly returnable under ERISA.
3.02 Determination of Contribution. The Employer, from its records,
determines the amount of any contributions to be made by it to the Trust under
the terms of the Plan.
3.03 Time of Payment of Contribution. The Employer may pay its
contribution for each Plan Year in one or more installments without interest.
The Employer must make its contribution to the Trustee within the time
prescribed by the Code or applicable Treasury regulations.
3.04 Contribution Allocation.
(A) Method of Allocation. Subject to Section 3.04(B) and any restoration
allocation required under Section 5.04, the Advisory Committee will allocate the
credit each annual Employer contribution (and Participant forfeitures, if any),
to the Account of each Participant who satisfies the conditions of Section 3.06,
in the same ratio that each Participant's Compensation for the Plan year bears
to the total Compensation of all Participants for the Plan year.
(B) Top Heavy Minimum Allocation.
(1) Minimum Allocation. If the Plan is top heavy in any Plan Year:
(a) Each Non-Key Employee (as defined in Section 1.29) who is
a Participant and is employed by the Employer on the last day
of the Plan Year will receive a top heavy minimum allocation
for the Plan Year, irrespective of whether he satisfies the
Hours of Service condition under Section 3.06; and
(b) The top heavy minimum allocation is the lesser of 3% of
the Non-Key Employee's Compensation for the Plan Year or the
highest contribution rate for the Plan Year made on behalf of
any Key Employee (as defined in Section 1.29). However, if a
defined benefit plan maintained by the Employer which benefits
a Key Employee depends on this Plan to satisfy the
antidiscrimination rules of Code Section 401(a)(4) or the
coverage rules of Code Section 410 (or another plan benefiting
the Key Employee so depends on such defined benefit plan), the
top heavy minimum allocation is 3% of the Non-Key Employee's
Compensation regardless of the contribution rate for the Key
Employees.
For purposes of this Section 3.04(B), the term "Participant"
includes any Employee otherwise eligible to participate in the Plan but
who is not a Participant because of his failure to make elective
deferrals under a Code Section 401(k) arrangement or because of his
failure to make mandatory employee contributions. For purposes of
clause (b), "Compensation" means Compensation as defined in Section
1.10, disregarding elective contributions and any exclusions from
Compensation, other than the exclusions described in paragraphs (a),
(b), (c) and (d) of Section 1.10 and disregarding the requirements of
Section 3.06. For purposes of this Section 3.04(B), a Participant's
contribution rate is the sum of Employer contributions (not including
Employer contributions to Social Security) and forfeitures allocated to
the Participant's Account for the Plan Year divided by his Compensation
for the entire Plan Year. However, for Plan Years beginning after
December 31, 1988, a Non-Key Employee's contribution rate does not
include any elective contributions under a Code Section 401(k)
arrangement nor any Employer matching contributions subject to the
nondiscrimination requirements of Code Section 401(k) or of Code
Section 401(m). To determine a Participant's contribution rate, the
Advisory Committee must treat all qualified top heavy defined
contribution plans maintained by the Employer (or by any related
Employers described in Section 1.27) as a single plan.
(2) Method of Compliance. The Plan will satisfy the top heavy minimum
allocation in accordance with this Section 3.04(B)(2). The Advisory
Committee first will allocate the Employer contributions (and
Participant forfeitures, if any) for the Plan Year in accordance with
the allocation formula under Section 3.04(A). The Employer then will
contribute an additional amount for the Account of any Participant who
is entitled under this Section 3.04(B) to a top heavy minimum
allocation and who contribution rate for the Plan Year is less than the
top heavy minimum allocation. The additional amount is the amount
necessary to increase the Participant's contribution rate to the top
heavy minimum allocation. The Advisory Committee will allocate the
additional contribution to the Account of the Participant on whose
behalf the Employer makes the contribution.
3.05 Forfeiture Allocation. The amount of a Participant's Accrued
Benefit forfeited under the Plan is a Participant forfeiture. Subject to any
restoration allocation required under Sections 5.04 or 9.14, the Advisory
Committee will allocate the forfeiture in accordance with Section 3.04, as an
Employer contribution for the Plan Year in which the forfeiture occurs, as if
the Participant forfeiture were an additional Employer contribution for the Plan
Year. The Advisory Committee will continue to hold the undistributed non-vested
portion of a terminated Participant's Accrued Benefit in his Account solely for
this benefit until a forfeiture occurs at the time specified in Section 5.09.
Except as provided under Section 5.04, a Participant will not share in the
allocation of a forfeiture of any portion of his Accrued Benefit. In making a
forfeiture allocation under this Section 3.05, the Advisory Committee will base
forfeitures of Employer Securities upon the fair market value of the Employer
Securities as of the Accounting Date of the forfeitures.
3.06 Accrual of Benefit. The Advisory Committee will determine the
accrual of benefit (Employer contributions and Participant forfeitures) on the
basis of the Plan Year.
Compensation Taken Into Account. In allocating an Employer contribution
to a Participant's Account, the Advisory Committee, except for purposes of
determining the top heavy minimum contribution under Section 3.04(B), will take
into account only the Compensation determined for the portion of the Plan Year
in which the Employee actually is a Participant.
Hours of Service Requirement. Subject to the top heavy minimum
allocation requirement of Section 3.04(B), the Advisory Committee will not
allocate any protion of an Employer contribution for a Plan Year to any
Participant's Account if the Participant does not complete a minimum of 1,000
Hours of Service during the Plan Year, unless the Participant terminates
employment during the Plan Year because of death or disability or because of the
attainment of Normal Retirement Age in the current Plan Year or in a prior Plan
Year.
Employment Requirement. A Participant who, during a particular Plan
Year, completes the Hours of Service requirement under this Section 3.06 will
not share in the allocation of Employer contributions and Participant
forfeitures, in any, for that Plan Year unless he is employed by the Employer on
the Accounting Date of the Plan Year, unless the Participant terminates
employment during the Plan Year because of death or disability or because of the
attainment of Normal Retirement Age in the current Plan Year or in a prior Plan
Year. Part 2. Limitations on Allocations: Sections 3.07 and 3.08
3.07 Limitations on Allocations to Participants' Accounts. The amount
of Annual Additions the Advisory Committee may allocate under this Plan on a
Participant's behalf for a Limitation Year may not exceed the Maximum
Permissible Amount. If the amount the Employer otherwise would contribute to the
Participant's Account would cause the Annual Additions for the Limitation Year
to exceed the Maximum Permissible Amount, the Employer will reduce the amount of
its contribution so the Annual Additions for the Limitation Year will equal the
Maximum Permissible Amount. If an allocation of Employer contributions, pursuant
to Section 3.04, would result in an Excess Amount (other than an Excess Amount
resulting from the circumstances described in Section 3.07(B)) to the
Participant's Account, the Advisory Committee will reallocate the Excess Amount
to the remaining Participants who are eligible for an allocation of Employer
contributions for the Plan Year in which the Limitation Year ends. The Advisory
Committee will make this reallocation on the basis of the allocation method
under the Plan as if the Participant whose Account otherwise would receive the
Excess Amount is not eligible for an allocation of Employer contributions.
(A) Estimation of Compensation. Prior to the determination of the Participant's
actual Compensation for a Limitation Year, the Advisory Committee may determine
the Maximum Permissible Amount on the basis of the Participant's estimated
annual Compensation for such Limitation Year. The Advisory Committee must make
this determination on a reasonable and uniform basis for all Participants
similarly situated. The Advisory Committee must reduce any Employer
contributions (including any allocation of forfeitures) based on estimated
annual Compensation by an Excess Amount carried over from prior years. As soon
as is administratively feasible after the end of the Limitation Year, and the
Advisory Committee will determine the Maximum Permissible Amount for such
Limitation Year on the basis of the Participant's actual Compensation for such
Limitation Year.
(B) Disposition of Excess Amount. If, pursuant to Section 3.07(A), or because of
the allocation of forfeitures, there is an Excess Amount with respect to a
Participant for a Limitation Year, the Advisory Committee will dispose of such
Excess Amount as follows:
(a) The Advisory Committee will return any nondeductible voluntary
Employee contributions to the Participant to the extent that the return
would reduce the Excess Amount.
(b) If, after the application of paragraph (a), and Excess Amount still
exists, and the Plan covers the Participant at the end of the Limiation
Year, then the Advisory Committee will use the Excess Amount(s) to
reduce future Employer contributions (including any allocation of
forfeitures) under the Plan for the next Limitation Year and for each
succeeding Limitation Year, as is necessary, for the Participant. The
Participant may elect to limit his Compensation for allocation purposes
to the extent necessary to reduce his allocation for the Limitation
Year to the Maximum Permissible Amount and eliminate the excess Amount.
(c) If, after the application of paragraph (a), an Excess Amount still
exists, and the Plan does not cover the Participant at the end of the
Limitation Year, then the Advisory Committee will hold the Excess
Amount unallocated in a suspense account. The Advisory Committee will
apply the suspense account to reduce Employer Contributions (including
allocation of forfeitures) for all remaining Participants in the next
Limitation Year, and in each succeeding Limitation Year if necessary.
(d) The Advisory Committee will not distribute any Excess Amount(s) to
Participants or to former Participants.
(C) Defined Benefit Plan Limitation. The Employer does not maintain and never
has maintained a defined benefit plan covering any Participant in this Plan.
Accordingly, no special defined benefit plan limitation applies under this Plan.
3.08 Definitions - Article III. For purposes of Article III, the
following terms mean:
(a) Annual Addition - The sum of the following amount
allocated on behalf of a Participant for a Limitation Year, of (i) all Employer
contributions; (ii) all forfeitures; and (iii) all Employee contributions.
Except to the extent provided in Treasury Regulations, Annual Additions include
excess contributions described in Code Section 401(k), excess aggregate
contributions described in Code Section 401(m) and excess deferrals described in
Code Section 402(g), irrespective of whether the Plan distributes or forfeits
such excess amounts. Annual Additions also shall include Excess Amounts
reapplied to reduce Employer contributions under Section 3.07. Amounts allocated
to an individual medical account (as defined in Code Section 415(l)(2)) included
as part of a defined benefit plan maintained by the Employerare Annual
Additions. Furthermore, Annual Additions include contributions paid or accrued
after December 31, 1985, for taxable years ending after December 31, 1985,
attributable to post-retirement medical benefits allocated to the separate
account of a key employee (as defined in Code Section 419A(d)(3)) under a
welfare benefit fund (as defined in Code Section 419(e)) maintained by the
Employer, but only for purposes of the dollar limitation applicable to the
Maximum Permissible Amount.
"Annual Additions" do not include any Employer contributions applied by
the Advisory Committee (not later than the due date, including extensions, for
filing the Employer's Federal income tax return for that Plan Year) to pay
interest on an Exempt Loan, and any Leveraged Employer Securities the Advisory
Committee allocates as forfeitures; provided, however, the provisions of this
sentence do not apply in a Plan Year for which the Advisory Committee allocates
more than one-third (1/3) of the Employer contributions applied to pay principal
and interest on an Exempt Loan to Restricted Participants. The Advisory
Committee may reallocate the Employer contributions in accordance with Section
3.04 to the Accounts of non-Resticted Participants to the extent necessary in
order to satisfy this special limitation. For purposes of this Section 3.08,
"Restricted Participants" mean Participants who are Highly Compensated Employees
within the meaning of Code Section 414(q).
(b) Compensation - For purposes of applying the limitations of
Part 2 of this Article III, "Compensation" means Compensation as defined in
Section 1.10, disregarding elective contributions and any exclusions from
Compensation, other than the exclusions described in paragraphs (a), (b), (c)
and (d) of Section 1.10.
(c) Maximum Permissible Amount - The lesser of (i) $30,000
(or, if greater, one-fourth (1/4) of the defined benefit dollar limitation under
Code Section 415(b)(1)(A)), or (ii) 25% of the Participant's Compensation for
the Limitation Year. The dollar amount of clause (i) will increase by the lesser
of (1) 100% of the dollar amount in effect for the Plan Year; or (2) the amount
of the Employer Securities allocated to the Participant's Employer Securities
Account as an Employer contribution for the Plan Year. The immediately preceding
sentence does not apply for any Plan Year for which the Advisory Committee
allocates more than one-third of the Employer contribution to Restricted
Participants. If there is a short Limitation Year, the Advisory Committee will
multiply the $30,000 (or adjusted) limitation by the following fraction:
Number of months in the short Limitation Year
12
(d) Employer - The Employer that adopts this Plan and any
related employers described in Section 1.27. Solely for purposes of applying the
limitations of Part 2 of this Article III, the Advisory Committee will determine
related employers described in Section 1.27 by modifying Code Section 414(b) and
(c) in accordance with Code Section 415(h).
(e) Excess Amount - The Excess of the Participant's Annual
Additions credited to the Participant's Account for the Limitation Year over the
Maximum Permissible Amount.
(f) Limitation Year - The Plan Year. If the Employer amends
the Limitation Year to a different 12 consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year for which the
Employer makes the amendment, creating a short Limitation Year.
(g) Defined Contribution Plan - A retirement plan which
provides for an individual account for each participant and for benefits based
solely on the amount contributed to the participant's account, and any income,
expenses, gains or losses, and any forfeitures of accounts of other participants
which the Plan may allocate to such participant's account. The Advisory
Committee must treat all defined contribution plans (whether or not terminated)
maintained by the Employer as a single plan. For purposes of the limitations of
Part 2 of this Article III, the Advisory Committee will treat employee
contributions made to a defined benefit plan maintained by the Employer as a
separate defined contribution plan. The Advisory Committee also will treat as a
defined contribution plan an individual medical account (as defined in Code
Section 415(1)(2)) included as part of a defined benefit plan maintained by the
Employer and, for taxable years ending after December 31, 1985, a welfare
benefit fund under Code Section 419(e) maintained by the Employer to the extent
there are post-retirement medical benefits allocated to the separate account of
a key employee (as defined in Code Section 419A(d)(3)).
(h) Defined Benefit Plan - A retirement plan which does not provide for
individual accounts for Employer contributions. The Advisory Committee must
treat all defined benefit plans (whether or not terminated) maintained by the
Employer as a single plan.
ARTICLE IV
Participant Contributions
4.01 Participant Voluntary Contributions. The Plan does not permit nor
require Participant voluntary contributions.
4.02 Participant Rollover Contributions. The Plan does not permit
Participant rollover contributions.
ARTICLE V
Termination of Service - Participant Vesting
5.01 Normal Retirement Age. A Participant's Normal Retirement Age is 65
years of age. A Participant who remains in the employ of the Employer after
attaining Normal Retirement Age will continue to participate in Employer
contributions. A Participant's Accrued Benefit derived from Employer
contributions is 100% Nonforfeitable upon and after his attaining Normal
Retirement Age (if employed by the Employer on or after that date).
5.02 Participant Disability or Death. If a Participant's employment
with the Employer terminates as a result of death or disability, the
Participant's Accrued Benefit derived from Employer contributions will be 100%
Nonforfeitable.
5.03 Vesting Schedule. Except as provided in Sections 5.01 and 5.02,
for each Year of Service, a Participant's Nonforfeitable percentage of his
Accrued Benefit derived from Employer contributions equals the percentage in the
following vesting schedule:
Years of Service Percent of Nonforfeitable
With the Employer Accrued Benefit
----------------- -------------------------
Any service less than one (1) year None
At least one (1) year None
At least two (2) years 20%
At least three (3) years 40%
At least four (4) years 60%
At least five (5) years 80%
At least six (6) or more years 100%
5.04 Cash-Out Distributions to Partially-Vested Participants/
Restoration of Forfeited Accrued Benefit. If, pursuant to Article VI, a
partially-vested Participant receives a cash-out distribution before he incurs a
Forfeiture Break in Service (as defined in Section 5.08), the cash-out
distribution will result in an immediate forfeiture of the nonvested portion of
the Participant's Accrued Benefit derived from Employer contributions. See
Section 5.09. A partially-vested Participant is a Participant whose
Nonforfeitable Percentage determined under Section 5.03 is less than one hundred
percent (100%). A cash-out distribution is a distribution of the entire present
value of the Participant's Nonforfeitable Accrued Benefit.
(A) Restoration and Conditions upon Restoration. A partially-vested Participant
who is re-employed by the Employer after receiving a cash-out distribution of
the Nonforfeitable percentage of his Accrued Benefit may repay the Trustee the
amount of the cash-out distribution attributable to Employer restoration
contributions, unless the Participant no longer has a right to restoration under
the requirements of this Section 5.04. If a partially-vested Participant makes
the cash-out distribution repayment, the Advisory Committee subject to the
conditions of this paragraph (A), must restore his Accrued Benefit attributable
to Employer contributions to the same dollar amount as the dollar amount of his
Accrued Benefit on the Accounting Date, or other valuation date, immediately
preceding the date of the cash-out distribution, unadjusted for any gains or
losses occurring subsequent to that Accounting Date, or other valuation date.
Restoration of the Participant's Accrued Benefit shall include restoration of
all Code Section 411(d)(6) protected benefits with respect to that restored
Accrued Benefit, in accordance with applicable Treasury regulations. The
Advisory Committee shall not restore a re-employed Participant's Accrued Benefit
under this paragraph if: (1) 5 years have elapsed since the Participant's first
re-employment date following the cash-out distribution; or (2) The Participant
incurred a Forfeiture Break in Service (as defined in Section 5.08). This
condition also applies if the Participant makes repayment within the Plan Year
in which he incurs the Forfeiture Break in Service and that Forfeiture Break in
Service would result in a complete forfeiture of the amount the Advisory
Committee otherwise would restore.
(B) Time and Method of Restoration. If neither of the two conditions preventing
restoration of the Participant's Accrued Benefit applies, the Advisory Committee
will restore the Participant's Accrued Benefit as of the Plan Year Accounting
Date coincident with or immediately following the repayment. To restore the
Participant's Accrued Benefit, the Advisory Committee, to the extent necessary,
will allocate to the Participant's Account: (1) the amount, if any, of
Participant forfeitures the Advisory Committee would otherwise allocate under
Section 3.05; (2) the amount, if any, of the Trust Fund net income or gain for
the Plan Year; and (3) the Employer contribution of the Plan Year to the extent
made under a discretionary formula. To the extent the amounts described in
clauses (1), (2) and (3) are insufficient to enable the Advisory Committee to
make the required restoration, the Employer must contribute, without regard to
any requirement or condition of Section 3.01, the additional amount necessary to
enable the Advisory Committee to make the required restoration. If, for a
particular Plan Year, the Advisory Committee must restore the Accrued Benefit of
more than one re-employed Participant, then the Advisory Committee will make the
restoration allocation(s) to each such Participant's Account in the same
proportion that a Participant's restored amount for the Plan Year bears to the
restored amount for the Plan Year of all re-employed Participants. The Advisory
Committee will not take into account the allocation(s) under this Section 5.04
in applying the limitation on allocations under Part 2 of Article III.
A Participant's Nonforfeitable Accrued Benefit will never be less than
the lesser of $25 or his entire Accrued Benefit, even in the application of the
vesting schedule would result in a smaller Nonforfeitable Accrued Benefit.
5.05 Segregated Account for Repaid Amount. Until the Advisory Committee
restores the Participant's Accrued Benefit, as described in Section 5.04, the
Trustee will invest the cash-out amount the Participant has repaid in a
segregated Account maintained solely for that Participant. The Trustee must
invest the amount in the Participant's segregated Account in Federally insured
interest bearing savings account(s) or time deposit(s) (or a combination of
both), or in other fixed income investments. Until commingled with the balance
of the Trust Fund on the date the Advisory Committee restores the Participant's
Accrued Benefit, the Participant's segregated Account remains a part of the
Trust, but it alone shares in any income it earns and it alone bears any expense
or loss it incurs. The Advisory Committee will direct the Trustee to repay to
the Participant as soon as is administratively practicable the full amount of
the Participant's segregated Account if the Advisory Committee determines either
of the conditions of Section 5.04(a), prevents restoration as of the applicable
Accounting Date, notwithstanding the Participant's repayment. The Advisory
Committee will direct the Trustee to commingle the Participant's segregated
account with the balance of the Trust Fund as of the second Accounting Date
immediately following the date of the Participant's repayment.
5.06 Year of Service - Vesting. For purposes of vesting under Section
5.03, Year of Service means any Plan Year during which an Employee completes not
less than 1,000 Hours of Service with the Employer.
5.07 Break in Service - Vesting. For purposes of this Article V, a
Participant incurs a "Break in Service" if during any Plan Year he does not
complete more than 500 Hours of Service with the Employer.
5.08 Included Years of Service - Vesting. For purposes of determining
"Years of Service" under Section 5.06, the Plan takes into account all Years of
Service an Employee completes with the Employer except any Year of Service
during the period the Employer did not maintain this Plan or a predecessor plan.
For the sole purpose of determining a Participant's Nonforfeitable percentage of
his Accrued Benefit derived from Employer contributions which accrued for his
benefit prior to a Forfeiture Break in Service, the Plan disregards any Year of
Service after the Participant first incurs a Forfeiture Break in Service. The
Participant incurs a Forfeiture Break in Service when he incurs 5 consecutive
Breaks in Service.
5.09 Forfeiture Occurs. A Participant's forfeiture, if any, of the
Participant's Accrued Benefit derived from Employer contributions occurs under
the Plan or the earlier of: (a) The last day of the Accounting Date of the Plan
Year in which the Participant first incurs a Forfeiture Break in Service; or,
(b) The date the Participant receives a cash-out distribution. The Advisory
Committee determines the percentage of a Participant's Accrued Benefit
forfeiture, if any, under this Section 5.09 solely by reference to the vesting
schedule of Section 5.03. A Participant will not forfeit any portion of his
Accrued Benefit for any other reason or cause except as expressly provided by
this Section 5.09 or as provided under Section 9.14.
ARTICLE VI
Time and Method of Payment of Benefits
6.01 Time of Payment of Accrued Benefit. Unless, pursuant to Section
6.03, the Participant or the Beneficiary elects in writing to a different time
or method of payment, the Advisory Committee will direct the Trustee to commence
distribution of a Participant's Nonforfeitable Accrued Benefit in accordance
with this Section 6.01. A Participant must consent, in writing, to any
distribution required under this Section 6.01 if the present value of the
Participant's Nonforfeitable Accrued Benefit, at the time of the distribution to
the Participant, exceeds $3,500 and the Participant has not attained the later
of Normal Retirement Age or age 62. Furthermore, the Participant's spouse also
must consent, in writing, to any distribution, for which Section 6.04 requires
the spouse's consent. For all purposes of this Article VI, the term "annuity
starting date" means the first day of the first period for which the Plan pays
an amount as an annuity or in any other form. A distribution date under this
Article VI, unless otherwise specified within the Plan, is the 60th day of the
Plan Year, or as soon as administratively practicable following a distribution
date. For purposes of the consent requirements under this Article VI, if the
present value of the Participant's Nonforfeitable Accrued Benefit, at the time
of any distribution, exceeds $3,500, the Advisory Committee must treat that
present value as exceeding $3,500 for purposes of all subsequent Plan
distributions to the Participant.
(A) Termination of Employment for a Reason Other Than Death. For a Participant
who terminates employment with the Employer for a reason other than death, the
Advisory Committee will direct the Trustee to commence distribution of the
Participant's Accrued Benefit, as follows:
(1) Participant's Nonforfeitable Accrued Benefit Not Exceeding $3,500.
In a lump sum, on the first distribution date after the Participant's Separation
from Service with the Employer, but in no event later than the 60th day
following the close of the Plan Year in which the Participant attains Normal
Retirement Age. If the participant has obtained Normal Retirement Age when he
separates from Service with the Employer, the distribution under this paragraph
will occur no later than the 60th day following the close of the Plan year in
which the Participant's Separation from Service occurs.
(2) Participant's Nonforfeitable Accrued Benefit Exceeds $3,500. In a
form and at the time elected by the Participant, pursuant to Section 6.03. In
the absence of an election by the Participant, the Advisory Committee will
direct the Trustee to distribute the Participant's Nonforfeitable Accrued
Benefit in a lump sum (or, if applicable, the normal annuity form of
distribution required under Section 6.04), on the 60th day following the close
of the Plan Year in which the latest of the following events occurs: (a) the
Participant attains Normal Retirement Age; (b) the Participant attains age 62;
or (c) the Participant separates from Service.
(3) Disability. If the Participant terminates employment because of
disability, in lump sum, on the first distribution date following the date in
which the Participant terminates employment because of disability, subject to
the notice and consent requirements of this Article VI and to the applicable
mandatory commencement dates described in Paragraph (1) or in Paragraph (2). (B)
Required Beginning Date. If any distribution commencement date described under
Paragraph A. of this Section 6.01, either by Plan provision or by Participant
election (or nonelection), is later than the Participant's Required Beginning
Date, the Advisory Committee instead must direct the Trustee to make
distribution under this Section 6.01 on the Participant's Required Beginning
Date. A Participant's Required Beginning Date is the April 1 following the close
of the calendar year in which the Participant attains age 70 1/2. However, if
the Participant, prior to incurring a Separation from Service, attained age 70
1/2 by January 1, 1988, and, for the five Plan Year period ending in the
calendar year in which he attained age 70 1/2 and for all subsequent years, the
Participant was not a more than 5% owner (as defined in Section 1.07(a)), the
Required Beginning Date is the April 1 following the close of the calendar year
in which the Participant separates from Service or, if earlier, the April 1
following the close of the calendar year in which the Participant becomes a more
than 5% owner. Furthermore, if a Participant who was not a more than 5% owner
attained age 70 1/2 during 1988 and did not incur a Separation from Service
prior to January 1, 1989, his Required Beginning Date is April 1, 1990. A
mandatory distribution at the Participant's Required Beginning Date will be in
lump sum (or, if applicable, the normal annuity form of distribution required
under Section 6.04) unless the Participant, pursuant to the provisions of this
Article VI, makes a valid election to receive an alternative form of payment.
(C) Death of the Participant. The Advisory Committee will direct the Trustee, in
accordance with this Section 6.01(C), to distribute to the Participant's
Beneficiary the Participant's Nonforfeitable Accrued Benefit remaining in the
Trust at the time of the Participant's death. Subject to the requirements of
Section 6.04, the Advisory Committee will determine the death benefit by
reducing the Participant's Nonforfeitable Accrued Benefit by any security
interest the Plan has against that Nonforfeitable Accrued Benefit by reason of
an outstanding Participant loan.
(1) Deceased Participant's Nonforfeitable Accrued Benefit Does Not
Exceed $3,500. The Advisory Committee, subject to the requirements of Section
6.04, must direct the Trustee to pay the deceased Participant's Nonforfeitable
Accrued Benefit in a single cash sum, as soon as administratively practicable
following the Participant's death or, if later, the date on which the Advisory
Committee receives notification of or otherwise confirms the Participant's
death.
(2) Deceased Participant's Nonforfeitable Accrued Benefit Exceeds
$3,500. The Advisory Committee must direct the Trustee to pay the deceased
Participant's Nonforfeitable Accrued Benefit at the time and in the form elected
by the Participant or, if applicable by the Beneficiary, as permitted under this
Article VI. In the absence of an election, subject to the requirements of
Section 6.04, the Advisory Committee must direct the Trustee to distribute the
Participant's undistributed Nonforfeitable Accrued Benefit in a lump sum on the
first distribution date following the date of the Participant's death, or, if
later, the first distribution date following the date the Advisory Committee
receives notificaiton of or otherwise confirms the Participant's death. If the
death benefit is payable to the Participant's surviving spouse in full, the
surviving spouse, in addition to the distribution options provided in this
Section 6.01(C), may elect distribution at any time or in any form (other than
the joint and survivor annuity) this Article VI would permit for a Participant.
6.02 Method of Payment of Accrued Benefit. Subject to the annuity
distribution requirements, if any, prescribed by Section 6.04, and any
restrictions prescribed by Section 6.03, a Participant or Beneficiary may elect
distribution under one, or any combination, of the following methods: (a) by
payment in a lump sum; or (b) by payment in monthly, quarterly or annual
installments over a fixed reasonable period of time, not exceeding the life
expectancy of the Participant, or the joint life and last survivor expectancy of
the Participant and his Beneficiary.
The distribution options permitted under this Section 6.02 are
available only if the present value of the Participant Nonforfeitable Accrued
Benefit, at the time of the distribution to the Participant, exceeds $3,500. To
facilitate installment payments under this Article VI, the Advisory Committee
may direct the Trustee to segregate all or any part of the Participant's Accrued
Benefit in a separate Account. The Trustee will invest the Participant's
segregated Account in Federally insured interest bearing savings account(s) or
time deposit(s) (or a combination of both), or in other fixed income
investments. A segregated Account remains a part of the Trust, but it alone
shares in any income it earns, and it alone bears any expense or loss it incurs.
A Participant or Beneficiary may elect to receive an installment distribution in
the form of a Nontransferable Annuity Contract. Under an installment
distribution, the Participant or Beneficiary, at any time, may elect to
accelerate the payment of all, or any portion, of the Participant's unpaid
Nonforfeitable Accrued Benefit, subject to the requirements of Section 6.04.
(A) Minimum Distribution Requirements for Participants. The Advisory Committee
may not direct the Trustee to distribute the Participant's Nonforfeitable
Accrued Benefit, nor may the Participant elect to have the Trustee distribute
his Nonforfeitable Accrued Benefit, under a method of payment which, as of the
Required Beginning Date, does not satisfy the minimum distribution requirements
under Code Section 401(a)(9) and the applicable Treasury regulations. The
minimum distribution for a calendar year equals the Participant's Nonforfeitable
Accrued Benefit as of the latest valuation date preceding the beginning of the
calendar year divided by the Participant's life expectancy or, if applicable,
the joint and last survivor expectancy of the Participant and his designated
Beneficiary (as determined under Article VIII, subject to the requirements of
the Code Section 401(a)(9) regulations). The Advisory Committee will increase
the Participant's Nonforfeitable Accrued Benefit, as determined on the relevant
valuation date, for contributions for forfeitures allocated after the valuation
date and by December 31 of the valuation calendar year, and will decrease the
valuation by distributions made after the valuation date and by December 31 of
the valuation calendar year. For purposes of this valuation, the Advisory
Committee will treat any portion of the minimum distribution for the first
distribution calendar year made after the close of that year as a distribution
occurring in that first distribution calendar year. In computing a minimum
distribution, the Advisory Committee must use the unisex life expectancy
multiples under Treasury Regulation Section 1.72-9. The Advisory Committee, only
upon the Participant's written request, may compute the minimum distribution for
a calendar year subsequent to the first calendar year for which the Plan
requires a minimum distribution by redetermining the applicable life expectancy.
If the Participant's spouse is not his designated Beneficiary, a method
of payment to the Participant (whether by Participant election or by Advisory
Committee direction) may not provide more than incidental benefits to the
Beneficiary. For Plan Years beginning after December 31, 1988, the Plan must
satisfy the minimum distribution incidental benefit ("MDIB") requirement in the
Treasury regulations issued under Code Section 401(a)(9) for distributions made
on or after the Participant's Required Beginning Date and before the
Participant's death. To satisfy the MDIB requirement, the Advisory Committee
will compute the minimum distribution required by this Section 6.02(A) by
substituting the applicable MDIB divisor for the applicable life expectancy
factor, if the MDIB divisor is a lesser number. Following the Participant's
death, the Advisory Committee will compute the minimum distribution required by
this Section 6.02(A) solely on the basis of the applicable life expectancy
factor and will disregard the MDIB factor. For Plan Years beginning prior to
January 1, 1989, the Plan satisfies the incidental benefits requirement if the
distributions to the Participant satisfied the MDIB requriement or if the
present value of the retirement benefits payable solely to the Participant is
greater than 50% of the present value of the total benefits payable to the
Participant and his Beneficiaries. The Advisory Committee must determine whether
benefits to the Beneficiary are incidental as of the date the Trustee is to
commence payment of the retirement benefits to the Participant, or as of any
date the Trustee redetermines the payment period to the Participant.
The minimum distribution for the first distribution calendar year is
due by the Participant's Required Beginning Date. The minimum distribution for
each subsequent distribution calendar year, including the calendar year in which
the Participant's Required Beginning Date falls, is due by December 31 of that
year. If the Participant receives distribution in the form of a Nontransferable
Annuity Contract, the distribution satisfies this Section 6.02(A) if the
contract complies with the requirements of Code Section 401(a)(9) and the
applicable Treasury regulations.
(B) Minimum Distribution Requirements for Beneficiaries. The method of
distribution to the Participant's Beneficiary must satisfy Code Section
401(a)(9) and the applicable Treasury regulations. If the Participant's death
occurs after his Required Beginning Date or, if earlier, the date the
Participant commences an irrevocable annuity pursuant to Section 6.04, the
method of payment to the Beneficiary must provide for completion of payment over
a period which does not exceed the payment period which had commenced for the
Participant. If the Participant's death occurs prior to his Required Beginning
Date, and the Participant had not commenced an irrevocable annuity pursuant to
Section 6.04, the method of payment to the Beneficiary, subject to Section 6.04,
must provide for completion of payment to the Beneficiary over a period not
exceeding: (i) 5 years after the date of the Participant's death; or (ii) if the
Beneficiary is a designated Beneficiary, the designated Beneficiary's life
expectancy. The Advisory Committee may not direct payment of the Participant's
Nonforfeitable Accrued Benefit over a period described in clause (ii) unless the
Trustee will commence payment to the designated Beneficiary no later than the
December 31 following the close of the calendar year in which the Participant's
death occurred or, if later, and the designated Beneficiary is the Participant's
surviving spouse, December 31 of the calendar year in which the Participant
would have attained age 70 1/2. If the Trustee will make distribution in
accordance with clause (ii), the minimum distribution for a calendar year equals
the Participant's Nonforfeitable Accrued Benefit as of the latest valuation date
preceding the beginning of the calendar year divided by the designated
Beneficiary's life expectancy. The Advisory Committee must use the unisex life
expectancy multiples under Treasury Regulation Section 1.72-9 for purposes of
applying this paragraph. The Advisory Committee, only upon the written request
of the Participant or of the Participant's surviving spouse, may calculate the
life expectancy of the Participant's surviving spouse not more frequently than
annually, but may not recalculate the life expectancy of a nonspouse designated
Beneficiary after the Trustee commences payment to the designated Beneficiary.
The Advisory Committee will apply this paragraph by treating any amount paid to
the Participant's child, which becomes payable to the Participant's surviving
spouse upon the child's attaining the age of majority, as paid to the
Participant's surviving spouse. Upon the Beneficiary's written request, the
Advisory Committee will direct the Trustee to accelerate payment of all, or any
portion, of the Participant's unpaid Accrued Benefit, as soon as
administratively practicable following the effective date of that request.
6.03 Benefit Payment Elections. Not earlier than 90 days before nor
later than 30 days before the Participant's annuity starting date, the Plan
Administrator must provide a benefit notice to a Participant who is eligible to
make an election under this Section 6.03. The benefit notice must explain the
optional forms of benefit in the Plan, including the material features and
relative values of those options, and the Participant's right to defer
distribution until he attains the later of Normal Retirement Age or age 62. If a
Participant or Beneficiary makes an election prescribed by this Section 6.03,
the Advisory Committee will direct the Trustee to distribute the Participant's
Nonforfeitable Accrued Benefit in accordance with that election. Any election
under this Section 6.03 is subject to the requirements of Section 6.02 and of
Section 6.04. The Participant or Beneficiary must make an election under this
Section 6.03 by filing his election form with the Advisory Committee at any time
before the Trustee otherwise would commence to pay a Participant's Accrued
Benefit in accordance with the requirements of Article VI. (A) Participant
Elections After Termination of Employment. If the present value of a
Participant's Nonforfeitable Accrued Benefit exceeds $3,500, he may elect to
have the Trustee commence distribution as of any distribution date in the Plan
Year following the year of his Seperation from Service. The Participant may
reconsider an election at any time prior to the annuity starting date and elect
to commence distribtuion as of any other distribution date, but not earlier than
the date described in the first sentence of this Paragraph (A). A Participant
who has separated from Service may elect distribution as of any distribution
date following his attainment of Normal Retirement Age, irrespective of the
restrictions otherwise applicable under this Section 6.03(A). If the Participant
is partially-vested in his Accrued Benefit, an election under this Paragraph (A)
to distribute prior to the Participant's incurring a Forfeiture Break in Service
(as defined in Section 5.08), must be in the form of a cash-out distribution (as
defined in Article V). A Participant may not receive a cash-out distribution if,
prior to the time the Trustee actually makes the cash-out distribution, the
Participant returns to employment with the Employer.
(B) Participant Elections Prior to Termination of Employment. After a
Participant attains Normal Retirement Age, the Participant, until he retires,
has a continuing election to receive all or any portion of his Accrued Benefit.
A Participant must make an election under this Paragraph (B) on a form
prescribed by the Advisory Committee at any time during the Plan Year for which
his election is to be effective. In his written election, the Participant must
specify the percentage or dollar amount he wishes the Trustee to distribute to
him. The Participant's election relates solely to the percentage or dollar
amount specified in his election form and his right to elect to receive an
amount, if any, for a particular Plan Year greater than the dollar amount or
percentage specified in his election form terminates on the Accounting Date. The
Trustee must make a distribution to a Participant in accordance with his
election under this Paragraph (B) within the 90 day period (or as soon as
administratively practicable) after the Participant files his written election
with the Trustee. The Trustee will distribute the balance of the Participant's
Accrued Benefit not distributed pursuant to his election(s) in accordance with
the other distribution provisions of this Plan.
(C) Death Benefit Elections. If the present value of the deceased Participant's
Nonforfeitable Accrued Benefit exceeds $3,500, the Participant's Beneficiary may
elect to have the Trustee distribute the Participant's Nonforfeitable Accrued
Benefit in a form and within a period permitted under Section 6.02. The
Beneficiary's election is subject to any restrictions designated in writing by
the Participant and not revoked as of his date of death.
6.04 Annuity Distributions to Participants. The joint and survivor
annuity requirements do not apply to this Plan. The Plan does not provide any
annuity distributions to Participants nor to surviving spouses. A transfer
agreement described in Section 13.05 may not permit a plan which is subject to
the provisions of Code Section 417 to transfer assets to this Plan, unless the
transfer is an elective transfer, as described in Section 13.05.
6.05 Special Distribution and Payment Requirements. Unless the
Participant elects in writing to have the Trustee apply other distribution
provisions of the Plan, or unless other distribution provisions of the Plan
require earlier distribution of the Participant's Accrued Benefit, the Trustee
must distribute the portion of the Participant's Accured Benefit attributable to
Employer Securities (the "Eligible Portion") no later than the time prescribed
by this Section 6.05, irrespective of any other provision of the Plan. The
distribution provisions of this Section 6.05 are subject to the consent and form
of distribution requirements of Articles V and VI of the Plan.
(a) If the Participant separates from Service by reason of the
attainment of Normal Retirement Age, death, or disability, the Advisory
Committee will direct the Trustee to commence distribution of the
Eligible Portion not later than one year after the close of the Plan
Year in which that event occurs.
(b) If the Participant separates from Service for any reason other than
by reason of the attainment of Normal Retirement Age, death or
disability, the Advisory Committee will direct the Trustee to commence
distribution of the Eligible Portion not later than one year after the
Service. If the Participant resumes employment with the Employer on or
before the last day of the fifth Plan Year following the Plan Year of
his separation from Service, the distribution provisions of this
paragraph (b) do not apply. For purposes of this Section 6.05, Employer
Securites do not include any
Employer Securities acquired with the proceeds of an Exempt Loan until the close
of the Plan Year in which the borrower repays the Exempt Loan in full.
6.06 Distributions Under Domestic Relations Orders. Nothing contained
in this Plan prevents the Trustee, in accordance with the direction of the
Advisory Committee, from complying with the provisions of a qualified domestic
relations order (as defined in Code Section 414(p)). This Plan specifically
permits distribution to an alternate payee under a qualified domestic relations
order at any time, irrespective of whether the Participant has attained his
earliest retirement age (as defined under Code Section 414(p)) under the Plan. A
distribution to an alternate payee prior to the Participant's attainment of
earliest retirement age is available only if: 1) the order specifies
distribution at that time or permits an agreement between the Plan and the
alternate payee to authorize an earlier distribution; and (2) if the present
value of the alternate payee's benefits under the Plan exceeds $3,500, and the
order requires, the alternate payee consents to any distribution occurring prior
to the Participant's attainment of earliest retirement age. Nothing in this
Section 6.06 permits a Participant a right to receive distribution at a time
otherwise not permitted under the Plan nor does it permit the alternate payee to
receive a form of payment not permitted under the Plan. The Plan Administrator
must establish reasonable procedures to determine the qualified status of a
domestic relations order. Upon receiving a domestic relations order, the Plan
Administrator promptly will notify the Participant and any alternate payee named
in the order, in writing, of the receipt of the order and the Plan's procedures
for determining the qualified status of the order. Within a reasonable period of
time after receiving the domestic relations order, the Plan Administrator must
determine the qualified status of the order and must notify the Participant and
each alternate payee, in writing, of its determination. The Plan Administrator
must provide notice hereunder by mailing to the individual's address specified
in the domestic relations order, or in a manner consistent with Department of
Labor regulations. If any portion of the Participant's Nonforfeitable Accrued
Benefit is payable during the period the Plan Administrator is making its
determination of the qualified status of the domestic relations order, the
Advisory Committee must make a separate accounting of amounts payable. If the
Plan Administrator determines the order is a qualified domestic relations order
within 18 months of the date amounts first are payable following receipt of the
order, the Advisory Committee will direct the Trustee to distribute the payable
amounts in accordance with the order. If the Plan Administrator does not make
its determination of the qualified status of the order within the 18 month
determination period, the Advisory Committee will direct the Trustee to
distribute the payable amounts in the manner the Plan would distribute if the
order did not exist and will apply the order prospectively if the Plan
Administrator later determines the order is a qualified domestic relations
order. To the extent it is not inconsistent with the provisions of the qualified
domestic relations order, the Advisory Committee may direct the Trustee to
invest any partitioned amount in Federally insured, interest-bearing savings
account(s) or time deposit(s) (or a combination of both), or in other fixed
income investments. A segregated subaccount remains a part of the Trust, but it
alone shares in any income it earns, and it alone bears any expense or loss it
incurs. The Trustee will make any payments or distribution required under this
Section 6.06 by separate benefit checks or other separate distribution to
alternate payee(s).
ARTICLE VII
Employer Administrative Provisions
7.01 Information to Committee. The Employer must supply current
information to the Advisory Committee as to the name, date of birth, date of
employment, annual compensation, leaves of absence, Years of Service and date of
termination of employment of each Employee who is, or who will be eligible to
become, a Participant under the Plan, together with any other information which
the Advisory Committee considers necessary. The Employer's records as to the
current information the Employer furnishes to the Advisory Committee are
conclusive as to all persons.
7.02 No Liability. The Employer assumes no obligation or responsibility
to any of its Employees, Participants or Beneficiaries for any act of, or
failure to act, on the part of its Advisory Committee, (unless the Employer is
the Advisory Committee), the Trustee or the Plan Administrator (unless the
Employer is the Plan Administrator).
7.03 Indemnity of Committee. The Employer indemnifies and saves
harmless the Plan Administrator and the members of the Advisory Committee, and
each of them, from and against any and all loss resulting from liability to
which the Plan Administrator and the Advisory Committee, or the members of the
Advisory Committee, may be subjected by reason of any act or conduct (except
willful misconduct or gross negligence) in their official capacities in the
administration of this Trust or Plan or both, including all expenses reasonably
incurred in their defense, in case the Employer fails to provide such defense.
The indemnification provisions of this Section 7.03 do not relieve the Plan
Administrator or any Advisory Committee member from any liability he may have
under ERISA for breach of a fiduciary duty. Furthermore, the Plan Administrator
and the Advisory Committee members and the Employer may execute a letter
agreement further delineating the indemnification agreement of this Section
7.03, provided the letter agreement must be consistent with and must not violate
ERISA. The indemnification provisions of this Section 7.03 extend to the Trustee
solely to the extent provided by a letter agreement executed by the Trustee and
the Employer.
7.04 Employer Direction of Investment. The Employer has the right to
direct the Trustee to the investment and re-investment of assets comprising the
Trust Fund only if the Trustee consents in writing to permit such direction. If
the Trustee consents to Employer direction of investment, the Trustee and the
Employer shall execute a letter agreement as a part of this Plan containing such
conditions, limitations and other provisions they deem appropriate before the
Trustee will follow any Employer direction as respects the investment or
re-investment of any part of the Trust Fund.
7.05 Amendment to Vesting Schedule. Though the Employer reserves the
right to amend the vesting schedule at any time, the Advisory Committee will not
apply the amended vesting schedule to reduce the nonforfeitable percentage of
any Participant's Accrued Benefit derived from Employer contributions
(determined as of the later of the date of the Employer adopts the amendment, or
the date the amendment become effective) to a percentage less than the
Nonforfeitable percentage computed under the Plan without regard to the
amendment. If the Employer makes a permissible amendment to the vesting
schedule, each Participant having at least 3 Years of Service with the Employer
may elect to have the percentage of his Nonforfeitable Accrued Benefit computed
under the Plan without regard to the amendment. The Participant must file his
election with the Plan Administrator within 60 days of the latest of (a) the
Employer's adoption of the amendment; and (b) the effective date of the
amendment; or (c) his receipt of a copy of the amendment. The Plan
Administrator, as soon as practicable, must forward a true copy of any amendment
to the vesting schedule to each affected Participant, together with an
explanation of the effect of the amendment, the appropriate form upon which the
Participant may make an election to remain under the vesting schedule provided
under the Plan prior to the amendment and notice of the time within which the
Participant must make an election to remain under the prior vesting schedule.
For purposes of this Section 7.05, an amendment to the vesting schedule includes
any Plan amendment which directly or indirectly affects the computation of the
Nonforfeitable percentage of an Employee's rights to his Employer derived
Accrued Benefit.
ARTICLE VIII
Participant Administrative Provisions
8.01 Beneficiary Designation. Any Participant may from time to time
designate, in writing, any person or persons, contingently or successively, to
whom the Trustee will pay his Accrued Benefit on event of his death and the
Participant may designate the form and method of payment. The Advisory Committee
will prescribe the form for the written designation of Beneficiary and, upon the
Participant's filing the form with the Advisory Committee, the form effectively
revokes all designations filed prior to that date by the same Participant.
Coordination with survivor requirements. If the joint and survivor
requirements of Article VI apply to the Participant, this Section 8.01 does not
impose any special spousal consent requirements on the Participant's Beneficiary
designation. However, in the absence of spousal consent (as required by Article
VI) to the Participant's Beneficiary designation: (1) any waiver of the joint
and survivor annuity or of the preretirement survivor annuity is not valid; and
(2) if the Participant dies prior to his annuity starting date, the
Participant's Beneficiary designation will apply only to the portion of hte
death benefit which is not payable as a preretirement survivor annuity.
Regarding clause (2), if the Participant's surviving spouse is a primary
Beneficiary under the Participant's Beneficiary designation, the Trustee will
satisfy the spouse's interest in the Participant's death benefit first from the
portion which is payable as a preretirment survivor annuity.
Profit sharing plan exception. If, pursuant to Section 6.04, the joint
and survivor requirements do not apply to a married Participant, that
Participant's Beneficiary designation is not valid unless the Participant's
spouse consents to the Beneficiary designation. The spousal consent requirement
in this paragraph does not apply if the Participant and his spouse are not
married throughout the one year period ending on the date of the Participant's
death, or if the Participant's spouse is the Participant's sole primary
Beneficiary.
8.02 No Beneficiary Designation. If a Participant fails to name a
Beneficiary in accordance with Section 8.01, or if the Beneficiary named by a
Participant predeceases him or dies before complete distribution of the
Participant's Accrued Benefit as prescribed by the Participant's Beneficiary
form, then the Trustee will pay the Participant's Accrued Benefit in one, or any
combination, of the methods specified under Section 6.02 in the following order
of priority to: (a) the Participant's surviving spouse; (b) the Participant's
surviving children, including adopted children, in equal shares; (c) the
Participant's surviving parents, in equal shares, or (d) the legal
representative of the estate of the last to die of the Participant and his
Beneficiary. The Advisory Committee will direct the Trustee as to the method and
to whom the Trustee will make payment under this Section 8.02.
8.03 Personal Data to Committee. Each Participant and each Beneficiary
of a deceased Participant must furnish to the Advisory Committee such evidence,
data or information as the Advisory Committee considers necessary or desirable
for the purpose of administering the Plan. The provisions of this Plan are
effective for the benefit of each Participant upon the condition precedent that
each Participant will furnish promptly full, true and complete evidence, data
and information when requested by the Advisory Committee, provided the Advisory
Committee advises each Participant of the effect of his failure to comply with
its request.
8.04 Address for Notification. Each Participant and each Beneficiary of
a deceased Participant must file with the Advisory Committee from time to time,
in writing, his post office address and any change of post office address. Any
communication, statement or notice addressed to a Participant, or Beneficiary,
at his last post office address filed with the Advisory Committee, or as shown
on the records of the Employer, binds the Participant, or Beneficiary, for all
purposes of this Plan.
8.05 Assignment or Alienation. Subject to Code Section 414(p) relating
to qualified domestic relations orders, neither a Participant nor a Beneficiary
may anticipate, assign or alienate (either at law or in equity) any benefit
provided under the Plan, and the Trustee will not recognize any such
anticipation, assignment or alienation. Furthermore, a benefit under the Plan is
not subject to attachment, garnishment, levy, execution or other legal or
equitable process.
8.06 Notice of Change in Terms. The Plan Administrator, within the time
prescribed by ERISA and the applicable regulations, must furnish all
Participants and Beneficiaries a summary description of any material amendment
to the Plan or notice of discontinuance of the Plan and all other information
request by ERISA to be furnished without charge.
8.07 Litigation Against the Trust. A court of competent jurisdiction
may authorize any appropriate equitable relief to redress violations of ERISA or
to enforce any provisions of ERISA or the terms of the Plan. A fiduciary may
receive reimbursement of expenses properly and actually incurred in the
performance of his duties with the Plan.
8.08 Information Available. Any Participant in the Plan or any
Beneficiary may examine copies of the Plan description, latest annual report,
any bargaining agreement, this Plan and Trust, contract or any other instrument
under which the Plan was established or is operated. The Plan Administrator will
maintain all of the items listed in this Section 8.08 in his office, or in such
other place or places as he may designate from time to time in order to comply
with the regulations issued under ERISA, for examination during reasonable
business hours. Upon the written request of a Participant or Beneficiary the
Plan Administrator will furnish him with a copy of any item listed in this
Section 8.08. The Plan Administrator may make a reasonable charge to the
requesting person for a copy so furnished.
8.09 Appeal Procedure for Denial of Benefits. The Plan Administrator
will provide adequate notice in writing to any Participant or to any Beneficiary
("Claimant") whose claim for benefits under the Plan the Advisory Committee has
denied. The Plan Administrator's notice to the Claimant must set forth: (a) the
specific reason for the denial; (b) specific references to pertinent Plan
provisions on which the Advisory Committee based its denial; (c) a description
of any additional material and information needed for the Claimant to perfect
his claim and an explanation of why the material or information is needed; and
(d) that any appeal the Claimant wishes to make of the adverse determination
must be in writing to the Advisory Committee within 75 days after receipt of the
Plan Administrator's notice of denial of benefits. The Plan Administrator's
notice must further advise the Claimant that his failure to appeal the action to
the Advisory Committee in writing within the 75 day period will render the
Advisory Committee's determination final, binding and conclusive. If the
Claimant should appeal to the Advisory Committee, he, or his duly authorized
representative, may submit, in writing, whatever issues and comments he, or his
duly authorized representative, believes are pertinent. The Claimant, or his
duly authorized representative, may review pertinent Plan documents. The
Advisory Committee will re-examine all facts related to the appeal and make a
final determination as to whether the denial of benefits is justified under the
circumstances. The Advisory Committee must advise the Claimant of its decision
within 60 days of the Claimant's written request for review, unless special
circumstances (such as a hearing) would make the rendering of a decision within
the 60 day limit unfeasible, but in no event shall the Advisory Committee render
a decision respecting a denial for a claim for benefits later than 120 days
after its receipt of a request for review. The Participant's notice of denial of
benefits must identify the name of each member of the Advisory Committee and the
name and address of the Advisory Committee member to whom the Claimant may
forward his appeal.
8.10 Participant Direction of Investment. Except as provided in this
Section 8.10, a Participant does not have the right to direct the Trustee with
respect to the investment or re-investment of the assets comprising the
Participant's individual Account. Each Qualified Participant may direct the
Trustee as to the investment of 25% of the value of the Participant's Accrued
Benefit attributable to the Employer Securities (the "Eligible Accrued Benefit")
within 90 days after the Accounting Date of each Plan Year (to the extent a
direction amount exceeds the amount to which a prior direction under this
Section 8.10 applies) during the Participant's Qualified Election Period. For
the last Plan Year in the Participant's Qualified Election Period, the Trustee
will substitute "50%" for "25%" in the immediately preceding sentence. The
Qualified Participant must make his direction to the Trustee in writing, the
direction may be effective no later than 180 days after the close of the Plan
Year to which the direction applies, and the direction must specify which, if
any, of the investment options the Participant selects.
A Qualified Participant may chose one of the following investment
options:
(a) The distribution of the portion of his Eligible Accrued Benefit
covered by the election. The Trustee will make the distribution within
90 days after the last day of the period during which the Qualified
Participant may make the election. The provisions of this Plan
applicable to a distribution of Employer Securities, including the put
option requirements of Article XI, apply to this investment option.
(b) The direct transfer of the portion of his Eligible Accrued Benefit
covered by the election to another qualified plan of the Employer which
accepts such transfers, but only if the transferee plan permits
employee-directed investment and does not invest in Employer Securities
to a substantial degree. The Trustee will make the direct transfer no
later than 90 days after the last day of the period during which the
Qualified Participant may make the election. For purposes of this
Section 8.10, the following definitions apply:"
(i) "Qualified Participant" means a Participant who has attained age 55
and who has completed at least 10 years of participation in the Plan. A
"year of participation" means a Plan Year in which the Participant was
eligible for an allocation of Employer contributions, irrespective of
whether the Employer actually contributed to the Plan for that Plan
year.
(ii) "Qualified Election Period" means the 6 Plan Year period beginning
with the Plan Year in which the Participant first becomes a Qualified
Participant.
ARTICLE IX
Advisory Committee - Duties with Respect to Participants' Accounts
9.01 Members' Compensation, Expenses. The Employer must appoint an
Advisory Committee to administer the Plan, the members of which may or may not
be Participants in the Plan, or which may be the Plan Administrator acting
alone. The members of the Advisory Committee will serve without compensation for
services as such, but the Employer will pay all expenses of the Advisory
Committee, including the expense for any bond required under ERISA.
9.02 Term. Each member of the Advisory Committee serves until his
successor is appointed.
9.03 Powers. In case of vacancy in the membership of the Advisory
Committee, the remaining members of the Advisory Committee may exercise any and
all of the powers, authority, duties and discretion conferred upon the Advisory
Committee pending the filling of the vacancy.
9.04 General. The Advisory Committee has the following powers and
duties:
(a) To select a secretary, who need not be a member of the Advisory
Committee;
(b) To determine the rights of eligibility of an Employee to
participate in this Plan, the value of a Participant's Accrued Benefit, and the
Nonforfeitable percentage of each Participant's Accrued Benefit;
(c) To adopt rules of procedure and regulations necessary for
the proper and efficient administration of the Plan provided the rules are not
inconsistent with the terms of this Agreement;
(d) To enforce the terms of the Plan and the rules and regulations it
adopts;
(e) To direct the Trustee as respects the crediting and distribution
of the Trust;
(f) To review and render decisions respecting a claim for (or denial
of a claim for) a benefit under the Plan;
(g) To furnish the Employer with information which the Employer may
require for tax or other purposes;
(h) To engage the service of agents whom it may deem advisable to
assist it with the performance of its duties;
(i) To engage the services of an investment manager or managers (as
defined in ERISA Section 3(38)), each of whom will have full power and authority
to manage, acquire or dispose (or direct the Trustee with respect to acquisition
or disposition) of any Plan asset under its control;
(j) To establish a nondiscriminatory policy which the Trustee must
observe in making loans, if any, to Participants; and
The Advisory Committee must exercise all of its powers, duties, and
discretion under the Plan in a uniform and nondiscriminatory manner.
Loan Policy. A loan policy described in paragraph (j) must be a written
document and must include: (1) the identity of the person or positions
authorized to administer the participant loan program; (2) a procedure for
applying for the loan; (3) the criteria for approving or denying a loan; (4) the
limitations, if any, on the types and amounts of loans available; (5) the
procedure for determining a reasonable rate of interest; (6) the types of
collateral which may secure the loan; and (7) the events constituting default
and the steps the Plan will take to preserve plan assets in the event of
default.
9.05 Funding Policy. The Advisory Committee will review, not less often
than annually, all pertinent Employee information and Plan data in order to
establish the funding policy of the Plan, and to determine the appropriate
methods of carrying out the Plan's objectives. The Advisory Committee must
communicate periodically, as it deems appropriate, to the Trustee and to the
Plan investment manager the Plan's short-term and long-term financial needs so
investment policy can be coordinated with Plan financial requirements.
9.06 Manner of Action. The decision of a majority of the members
appointed and qualified controls.
9.07 Authorized Representative. The Advisory Committee may authorize
any one of its members, or its secretary, to sign on its behalf any notices,
directions, applications, certificates, consents, approvals, waivers, letters,
or other documents. The Advisory Committee must evidence this authority by an
instrument signed by all members and filed with the Trustee.
9.08 Interested Member. No member of the Advisory Committee may decide
or determine any matter concerning the distribution, nature or method of
settlement of his own benefits under the Plan, except in exercising an election
available to that member in his capacity as a Participant, unless the Plan
Administrator is acting alone in the capacity of the Advisory Committee.
9.09 Individual Accounts. The Advisory Committee will maintain, or
direct the Trustee to maintain, a separate Account, or multiple Accounts, in the
name of each Participant to reflect the Participant's Accrued Benefit under the
Plan. The Advisory Committee must maintain one Account designated as the
Employer Securities Account to reflect a Participant's interest in Employer
Securities held by the Trust and another Account designated as the General
Investments Account designated as the Employee Securities Account to reflect the
Participant's interest in the Trust Fund attributable to assets other than
Employer Securities. If a Participant re-enters the Plan subsequent to his
having a Forfeiture Break in Service (as defined in Section 5.08), the Advisory
Committee, or the Trustee, must maintain a spearate Account for the
Participant's pre-Forfeiture Break in Service Accrued Benefit and a separate
Account for his post-Forfeiture Break in Service Accrued Benefit unless the
Participant's entire Accrued Benefit under the Plan is 100% Nonforfeitable.
The Advisory Committee will make its allocations, or request the
Trustee to make its allocations, to the Accounts of the Participants in
accordance with the provsiions of Section 9.11. The Advisory Committee may
direct the Trustee to maintain a temporary segregated investment Account in the
name of a Participant to prevent a distortion of income, gain or loss
allocations under Section 9.11. The Advisory Committee shall maintain records of
its activities.
9.10 Value of Participant's Accrued Benefit. The value of each
Participant's Accrued Benefit consists of that proportion of the net worth (at
fair market value) of the Employer's Trust Fund which the net credit balance in
his Account bears to the total net credit balance in the Accounts of all
Participants. For purposes of a distribution under the Plan, the value of a
Participant's Accrued Benefit is its value as of the valuation date immediately
preceding the date of the distribution.
9.11 Allocations To Participant's Accounts. A "valuation date" under
this Plan is each Accounting Date and each interim valuation date determined
under Section 10.14. As of each valuation date the Advisory Committee must
adjust General Investment Accounts to reflect net income, gain or loss since the
last valuation date. The valuation period is the period beginning the day after
the last valuation date and ending on the current valuation date.
[A] Employer Securities Account. As of the Accounting Date of each Plan Year,
the Advisory Committee first will reduce Employer Securities Accounts for any
forfeitures arising under Section 5.09 and then will credit the Employer
Securities Account maintained for each Participant with the Participant's
allocable share of Employer Securities (including fractional shares) purchased
and paid for by the Trust or contributed in kind to the Trust, with any
forfeitures of Employer Securities and with any stock dividends on Employer
Securities allocated to his Employer Securities Account. The Advisory Committee
will allocate Employer Securities acquired with an Exempt Loan under Section
10.03(C) in accordance with that Section. Except as otherwise specifically
provided in Section 10.03[C], the Advisory Committee will base allocations to
the Participants' Accounts on dollar values expressed as shares of Employer
Securities or on the basis of actual shares where there is a single class of
Employer Securities. In making a forfeiture reduction under this Section 9.11,
the Advisory Committee, to the extent possible, first must forfeit from a
Participant's General Investments Account before making a forfeiture from his
Employer Securities Account.
[B] General Investments Account.
Trust Fund Accounts. The allocation provisions of this paragraph apply
to all Participant General Investment Accounts other than segregated investment
Accounts. The Advisory Committee first will adjust the Participant General
Investment Accounts, as those Accounts stood at the beginning of the current
valuation period, by reducing the Accounts for any forfeitures arising under
Section 5.09 or under Section 9.14 for amounts charged during the valuation
period to the Accounts in accordance with Section 9.13 (relating to
distributions) and for the amount of any General Investment Account which the
Trustee has fully distributed since the immediately preceding valuation date.
The Advisory Committee then, subject to the restoration allocation requirements
of Section 5.04 or of Section 9.14, will allocate the net income, gain or loss
pro rata to the adjusted Participant General Investment Accounts. The allocable
net income, gain or loss is the net income (or net loss), including the increase
or decrease in the fair market value of assets, since the last valuation date.
In making its allocations under this Section 9.11[B], the Advisory Committee
will exclude Employer Securities allocated to Employer Securities Accounts,
stock dividends on allocated Employer Securities and interest paid by the Trust
on an Exempt Loan. The Advisory Committee will include as income (available for
payment on an Exempt Loan) any cash dividends on Employer Securities except cash
dividends which the Advisory Committee has directed to the Trustee to distribute
in accordance with Section 10.08.
Segregated investment Accounts. A segregated investment Account
receives all income it earns and bears all expense or loss it incurs. As of the
valuation date, the Advisory Committee must reduce a segregated Account for any
forfeiture arising under Section 5.09 after the Advisory Committee has made all
other allocations, changes or adjustments to the Account for the Plan Year.
Additional rules. An Excess Amount or suspense account described in
Part 2 of Article III does not share in the allocation of net income, gain or
loss described in this Section 9.11[B]. This Section 9.11[B] applies solely to
the allocation of net income, gain or loss of the Trust. The Advisory Committee
will allocate the Employer contributions and Participant forfeitures, if any, in
accordance with Article III.
9.12 Individual Statement. As soon as practicable after the Accounting
Date of each Plan Year but within the time prescribed by ERISA and the
regulations under ERISA, the Plan Administrator will deliver to each Participant
(and to each Beneficiary) a statement reflecting the condition of his Accrued
Benefit in the Trust as of that date and such other information ERISA requires
be furnished the Participant or Beneficiary. No Participant, except a member of
the Advisory Committee, has the right to inspect the records reflecting the
Account of any other Participant.
9.13 Account Charged. The Advisory Committee will charge all
distributions made to a Participant or to his Beneficiary from his Account
against the Account of the Participant when made.
9.14 Unclaimed Account Procedure. The Plan does not require either the
Trustee or the Advisory Committee to search for, or ascertain the whereabouts
of, any Participant or Beneficiary. At the time the Participant's or
Beneficiary's benefit becomes distributable under Article VI, the Advisory
Committee, by certified or registered mail addressed to his last known address
of record with the Advisory Committee or the Employer, must notify any
Participant, or Beneficiary, that he is entitled to a distribution under this
Plan. The notice must quote the provisions of this Section 9.14 and otherwise
must comply with the notice requirements of Article VI. If the Participant, or
Beneficiary, fails to claim his distributive share or make his whereabouts known
in writing to the Advisory Committee within 6 months from the date of mailing of
the notice, the Advisory Committee will treat the Participant's or Beneficiary's
unclaimed payable Accrued Benefit as forfeited and will reallocate the unclaimed
payable Accrued Benefit in accordance with Section 3.05. Where the benefit is
distributable to the Participant, the forfeiture under this paragraph occurs as
of the last day of the notice period, if the Participant's Nonforfeitable
Accrued Benefit does not exceed $3,500, or as of the first day of the benefit is
distributable without the Participant's consent, if the present value of the
Participant's Nonforfeitable Accrued Benefit exceeds $3,500. Where the benefit
is distributable to a Beneficiary, the forfeiture occurs on the date the notice
period ends except, if the Beneficiary is the Participant's spouse and the
Nonforfeitable Accrued Benefit payable to the spouse exceeds $3,500, the
forfeiture occurs as of the first day the benefit is distributable without the
spouse's consent. Pending forfeiture, the Advisory Committee, following the
expiration of the notice period, may direct the Trustee to segregate the
Nonforfeitable Accrued Benefit in a segregated Account and to invest that
segregated Account in Federally insured interest bearing savings accounts or
time deposits (or in a combination of both), or in other fixed income
investments.
If a Participant or Beneficiary who has incurred a forfeiture of his
Accrued Benefit under the provisions of the first paragraph of this Section 9.14
makes a claim, at any time, for his forfeited Accrued Benefit, the Advisory
Committee must restore the Participant's or Beneficiary's forfeited accrued
Benefit to the same dollar amount as the dollar amount of the Accrued Benefit
forfeited, unadjusted for any gains or losses occurring subsequent to the date
of the forfeiture. The Advisory Committee will make the restoration during the
Plan Year in which the Participant or Beneficiary makes the claim first from the
amount, if any, of Participant forfeitures the Advisory Committee otherwise
would allocate for the Plan Year, then from the amount, if any, of the Trust
Fund net income or gain for the Plan Year and then from the amount, or
additional amount, the Employer contributes to enable the Advisory Committee to
make the required restoration. The Advisory Committee will direct the Trustee to
distribute the Participant's or Beneficiary's restored Accrued Benefit to him
not later than 60 days after the close of the Plan Year in which the Advisory
Committee restores the forfeited Accrued Benefit. The forfeiture provisions of
this Section 9.14 apply solely to the Participant's or to the Beneficiary's
Accrued Benefit derived from Employer contributions.
ARTICLE X
Trustee, Powers and Duties
10.01 Acceptance. The Trustee accepts the Trust created under the Plan
and agrees to perform the obligations imposed. The Trustee must provide bond for
the faithful performance of its duties under the Trust to the extent required by
ERISA.
10.02 Receipt of Contributions. The Trustee is accountable to the
Employer for the funds contributed to it by the Employer, but does not have any
duty to see that the contributions received comply with the provisions of the
Plan. The Trustee is not obliged to collect any contributions from the Employer,
nor is obliged to see that funds deposited with it are deposited according to
the provisions of the Plan.
10.03 Full Investment Powers.
(A) Trustee Powers. The Trustee has full discretion and authority with regard to
the investment of the Trust Fund, except with respect to a Plan asset under the
control or direction of a properly appointed Investment Manager or with respect
to a Plan asset subject to Employer, Participant or Advisory Committee direction
of investment. The Trustee must coordinate its investment policy with Plan
financial needs as communicated to it by the Advisory Committee. The Trustee is
authorized and empowered, but not by way of limitation, with the following
powers, rights and duties:
(a) To invest the Trust Fund primarily in Employer Securities
("primarily" meaning the authority to hold and to acquire not more than 100% of
the Trust Fund in Employer Securities) and to invest any part or all of the
Trust Fund in any common or preferred stocks, open-end or closed-end mutual
funds, put and all options traded on a national exchange, United States
retirement plan bonds, corporate bonds, debentures, convertible debentures,
commercial paper, U.S. Treasury bills, U.S. Treasury notes and other direct or
indirect obligations of the United States Government or its agencies, improved
or unimproved real estate situated in the United States, limited partnerships,
insurance contracts of any type, mortgages, notes or other property of any kind,
real or personal, and to buy or sell options on common stock on a nationally
recognized exchange with or without holding investments the Trustee deems
appropriate as a aprudent man would do under like circumstances with due regard
for the purposes of this Plan. An investment made or retained by the Trustee in
good faith is proper but must be of a kind (with the exception of Employer
Securities) constituting a diversification considered by law suitable for trust
investments.
(b) To retain in cash so much of the Trust Fund as it may deem
advisable to satisfy liquidity needs of the Plan and to deposit any cash held in
the Trust Fund in a bank account at reasonable interest. If the Trustee is a
bank or similar financial institution supervised by the United States or by a
State, this paragraph (b) includes specific authority to invest in any type of
deposit of the Trustee (or of a bank related to the Trustee within the meaning
of Code Section 414(b)) at a reasonable rate of interest or in a common trust
fund (the provisions of which govern the investment of such assets and which the
Plan incorporates by this reference) as described in Code Section 584 which the
Trustee (or its affiliate, as defined in Code Section 1504) maintains
exclusively for the collective investment of money contributed by the bank (or
the affiliate) in its capacity as Trustee and which conforms to the rules of the
Comptroller of the Currency.
(c) To manage, sell, contract to sell, grant options to purchase,
convey, exchange, transfer, abandon, improve, repair, insure, lease for any term
even though commencing in the future or extending beyond the term of the Trust,
and otherwise deal with all property, real or personal, in such manner, for such
consideration and on such terms and conditions as the Trustee decides.
(d) To credit and distribute the Trust as directed by the Advisory
Committee. The Trustee is not obliged to inquire as to whether any payee or
distributee is entitled to any payment or whether the distribution is proper or
within the terms of the Plan, or as to the manner of making any payment or
distribution. The Trustee is accountable only to the Advisory Committee for any
payment or distribution made by it in good faith on the order or direction of
the Advisory Committee.
(e) To borrow money, to assume indebtedness, extend mortgages and
encumber by mortgage or pledge.
(f) To compromise, contest, arbitrate or abandon claims and demands,
in its discretion.
(g) To vote, subject to Section 10.16, all voting stock held by the
Trust Fund.
(h) To lease for oil, gas and other mineral purposes and to create
mineral severances by grant or reservation; to pool or unitize interests in oil,
gas and other minerals; and to enter into operating agreements and to execute
division and transfer orders.
(i) To hold any securities or other property in the name of the Trustee
or its nominee, or in another form as it may deem best, with or without
disclosing the trust relationship.
(j) To perform any and all other acts in its judgment necessary or
appropriate for the proper and advantageous management, investment and
distribution of the Trust.
(k) To retain any funds or property subject to any dispute without
liability for the payment of interest, and to decline to make payment or
delivery of the funds or property until final adjudication is made by a court of
competent jurisdiction.
(l) To file all tax returns required of the Trustee.
(m) To furnish to the Employer, the Plan Administrator, and the
Advisory Committee an annual statement of account showing the condition of the
Trust Fund and all investment, receipts, disbursements and other transactions
effected by the Trustee during the Plan year covered by the statement and also
stating the assets of the Trust held at the end of the Plan Year, which accounts
are conclusive on all persons, including the Employer, the Plan administrator,
and the Advisory Committee, except as to any act or transaction concerning which
the Employer, the Plan Administrator or the Advisory Committee files with the
Trustee written exceptions or objections within 90 days after the receipt of the
accounts, or for which ERISA authorizes a longer period within which to object.
(n) To begin, maintain or defend any litigation necessary in connection
with the administration of the Plan, except that the Trustee is not obliged or
required to do so unless indemnified to its satisfaction.
(o) The Trustee will allocate any insurance proceeds received from the
purchase of insurance contracts under paragraph (a) to Participants' Accounts in
the same manner as the allocation under Section 3.04 of the Employer
contribution for the Plan Year in which the death of the insured Participant
occurs.
[B] Participant Loans. This Section 10.03[B] specifically authorizes the Trustee
to make loans on a nondiscriminatory basis to a Participant in accordance with
the loan policy established by the Advisory Committee, provided: (1) the loan
policy satisfies the requirements of Section 9.04; (2) any loan is adequately
secured and bears a reasonable rate of interest; (3) the loan provides for
repayment within a specified time; (4) the default provisions of the note
prohibit offset of the Participant's Nonforfeitable Accrued Benefit prior to the
time the Trustee otherwise would distribute the Participant's Nonforfeitable
Accrued Benefit; (5) the amount of the loan does not exceed (at the time the
Plan extends the loan) the present value of the Participant's Nonforfeitable
Accrued Benefit; and (6) the loan otherwise conforms to the exemption provided
by Code Section 4975(d)(1).
[C] Exempt Loan. This Section 10.03[C] specifically authorizes the Trustee to
enter into an Exempt Loan transaction. The following terms and conditions will
apply to any Exempt Loan:
1) The Trustee will use the proceeds of the loan within a reasonable
time after receipt only for any or all of the following purposes: (i)
to acquire Employer Securities; (ii) to repay such loan; or (iii) to
repay a prior Exempt Loan. Except as provided under Article XI, no
Employer Security acquired with the proceeds of an Exempt Loan may be
subject to a put, call or other option, or buy-sell or similar
arrangement while held by and when distributed from this Plan, whether
or not this Plan is then an employee stock ownership plan.
(2) The interest rate of the loan may not be more than a reasonable
rate of interest.
(3) Any collateral the Trustee pledges to the creditor must consist
only of the assets purchased by the borrowed funds and those assets the
Trust used as collateral on the prior Exempt Loan repaid with the
proceeds of the current Exempt Loan.
(4) The creditor may have no recourse against the Trust under the loan
except with respect to such collateral given for the loan,
contributions (other than contributions of Employer Securities) that
the Employer makes to the Trust to meet its obligations under the loan,
and earnings attributable to such collateral and the investment of such
contributions. The payment made with respect to an Exempt Loan by the
Plan during a Plan Year must not exceed an amount equal to the sum of
such contributions and earnings received during or prior to the year
less such payments in prior years. The Advisory Committee and the
Trustee must account separately for such contributions and earnings in
the books of account of the Plan until the Trust repays the loan.
(5) In the event of default upon the loan, the value of Plan assets
transferred in satisfaction of the loan must not exceed the amount of
the default, and if the lender is a Disqualified Person, the loan must
provide for transfer of Plan assets upon default only upon and to the
extent of the failure of the Plan to meet the payment schedule of the
loan.
(6) The Trustee must add and maintain all assets acquired with the
proceeds of an Exempt Loan in a suspense Account. In withdrawing assets
from the suspense Account, the Trustee will apply the provisions of
Treas. Reg. Sections 54.4975-7(b)(8) and (15) as if all securities in
the suspense Account were encumbered. Upon the payment of any portion
of the loan, the Trustee will effect the release of assets in the
suspense Account from encumbrances. For each Plan Year during the
duration of the loan, the number of Employer Securities released must
equal the number of encumbered Employer Securities held immediately
before release for the current Plan Year multiplied by a fraction. The
numerator of the fraction is the amount of principal and interest paid
for the Plan Year. The denominator of the fraction is the sum of the
numerator plus the principal and interest to be paid for all future
Plan Years. The number of future Plan Years under the loan must be
definitely ascertainable and must be determined without taking into
account any possible extension or renewal periods. If the interest rate
under the loan is variable, the interest to be paid in future Plan
Years must be computed by using the interest rate applicable as of the
end of the Plan Year. If collateral includes more than one class of
Employer Securities, the number of Employer Securities of each class to
be released for a Plan Year must be determined by applying the same
fraction to each such class. The Advisory Committee will allocate
assets withdrawn from the suspense Account to the Accounts of
Participants who otherwise share in the allocation of the Employer's
contribution for the Plan Year for which the Trustee has paid the
portion of the loan resulting in the release of the assets. The
Advisory Committee consistently will make this allocation as of each
Accounting Date on the basis of non-monetary units, taking into account
the relative Compensation of all such Participants for such Plan Year.
(7) The loan must be for a specific term and may not be payable at the
demand of any person except in the case of default.
(8) Notwithstanding the fact this Plan ceases to be an employee stock
ownership plan, Employer Securities acquired with the proceeds of an
exempt loan will continue after the Trustee repays the loan to be
subject to the provisions of Treas. Reg. Sections 54.4975(b)(4), (10),
(11) and (12) relating to put, call or other options and to buy-sell or
similar arrangements, except to the extent these regulations are
inconsistent with Code Section 409(h).
10.04 Records and Statements. The records of the Trustee pertaining to
the Plan must be open to the inspection of the Plan Administrator, the Advisory
Committee, and the Employer at all reasonable times and may be audited from time
to time by any person or persons as the Employer, Plan Administratior or
Advisory Committee may specify in writing. The Trustee must furnish the
Employer, Advisory Committee, or the Plan Administrator with whatever
information relating to the Trust Fund the Advisory Committee or Plan
Administrator considers necessary.
10.05 Fees and Expenses From Fund. The Trustee will receive reasonable
annual compensation as may be agreed upon from time to time between the Employer
and the Trustee. The Trustee will pay all expenses reasonably incurred by it in
its administration of the Plan from the Trust Fund unless the Employer pays the
expenses. The Advisory Committee will not treat any fee or expense paid,
directly or indirectly, by the Employer as an Employer contribution, provided
the fee or expense relates to the ordinary and necessary administration of the
Fund. No person who is receiving full pay from the Employer shall receive
compensation for services as Trustee.
10.06 Parties to Litigation. Except as otherwise provided by ERISA,
only the Employer, the Plan Administrator, the Advisory Committee, and the
Trustee are necessary parties to any court proceeding involving the Trustee or
the Trust Fund. No Participant, or Beneficiary, is entitled to any notice of
process unless required by ERISA. Any final judgment entered in any proceeding
will be conclusive upon the Employer, the Plan Administrator, the Advisory
Committee, the Trustee, Participants and Beneficiaries.
10.07 Professional Agents. The Trustee may employ and pay from the
Trust Fund reasonable compensation to agents, attorneys, accountants and other
persons to advise the Trustee as in its opinion may be necessary. The Trustee
may delegate to any agent, attorney, accountant or other person selected by it
any non-trustee power or duty vested in it by the Plan, and the Trustee may act
or refrain from acting on the advice or opinion of any agent, attorney,
accountant or other person so selected.
10.08 Distribution of Trust Fund. The Trustee will make all
distributions of benefits under the Plan in Employer Securities valued at fair
market value at the time of distribution. The Trustee will pay in cash any
fractional security share to which a Participant or his Beneficiary is entitled.
In the event the Trustee is to make a distribution in shares of Employer
Securities, the Trustee may apply any balance in a Participant's General
Investments Account to provide whole shares of Employer Securities for
distribution at the then fair market value.
If the Employer's charter or bylaws restrict ownership of substantially
all shares of Employer Securities to Employees and the Trust, as described in
Code Section 409(h)(2), the Trustee will make the distribution of a
Participant's Accrued Benefit entirely in cash.
Notwithstanding the preceding provisions of this Section 10.08, the
Trustee, if directed in writing by the Advisory Committee, will pay, in cash,
any cash dividends on Employer Securities allocated, or allocable to
Participants Employer Securities Accounts, irrespective of whether a Participant
is fully vested in his Employer Securities Account. The Advisory Committee's
direction must state whether the Trustee is to pay the cash dividend
distributions currently, or within the 90 day period following the close of the
Plan Year in which the Employer pays the dividends to the Trust. The Advisory
Committee may request the Employer to pay dividends on Employer Securities
directly to Participants.
10.09 Distribution Directions. If no one claims a payment or
distribution made from the Trust, the Trustee must promptly notify the Advisory
Committee and shall dispose of the payment in accordance with the subsequent
direction of the Advisory Committee.
10.10 Third Party. No person dealing with the Trustee is obligated to
see to the proper application of any money paid or property delivered to the
Trustee, or to inquire whether the Trustee has acted pursuant to any of the
terms of the Plan. Each person dealing with the Trustee may act upon any notice,
request or representation in writing by the Trustee, or by the Trustee's duly
authorized agent, and is not liable to any person in so acting. The certificate
of the Trustee that it is acting in accordance with the Plan will be conclusive
in favor of any person relying on the certificate. The decision of a majority of
the Trustee(s) shall control with respect to any decision regarding the
administration or investment of the Trust Fund.
10.11 Resignation. The Trustee may resign at any time as Trustee of the
Plan by giving 30 days' written notice in advance to the Employer and to the
Advisory Committee. If the Employer fails to appoint a successor Trustee within
60 days of its receipt of the Trustee's written notice of resignation, the
Trustee will treat the Employer as having appointed itself as Trustee and as
having filed its acceptance of appointment with the former Trustee.
10.12 Removal. The Employer, by giving 30 days' written notice in
advance to the Trustee, may remove any Trustee. In the event of the resignation
or removal of a Trustee, the Employer must appoint a successor Trustee if it
intends to continue the Plan. If two or more persons hold the position of
Trustee, in the event of the removal of one such person, during any period the
selection of a replacement is pending, or during any period such person is
unable to serve for any reason, the remaining person or persons will act as the
Trustee.
10.13 Interim Duties and Successor Trustee. Each successor Trustee
succeeds to the title to the Trust vested in his predecessor by accepting in
writing his appointment as successor Trustee and filing the acceptance with the
former Trustee and the Advisory Committee without the signing or filing of any
further statement. The resigning or removed Trustee, upon receipt of acceptance
in writing of the Trust by the successor Trustee, must execute all documents and
do all acts necessary to vest the title of record in any successor Trustee. Each
successor Trustee has and enjoys all of the powers, both discretionary and
ministerial, conferred under this Agreement upon his predecessor. A successor
Trustee is not personally liable for any act or failure to act of any
predecessor Trustee, except as required under ERISA. With the approval of the
Employer and the Advisory Committee, a successor Trustee, with respect to the
Plan, may accept the account rendered and the property delivered to it by a
predecessor Trustee without incurring any liability or responsibility for so
doing.
10.14 Valuation of Trust. The Trustee must value the Trust Fund as of
each Accounting Date to determine the fair market value of each Participant's
Accrued Benefit in the Trust, and the Trustee also must value the Trust Fund on
such other dates, as directed by the Advisory Committee. With respect to
activities carried on by the Plan, an independent appraiser meeting requirements
similar to those prescribed by Treasury regulations under Code Section 170(a)(1)
must perform all valuations of Employer Securities which are not readily
tradeable on an established securities market.
10.15 Limitation on Liability - If Investment Manager Appointed. The
Trustee is not liable for the acts or omissions of any Investment Manager or
Managers the Advisory Committee may appoint, nor is the Trustee be under any
obligation to invest or otherwise manage any asset of the Plan which is subject
to the management of a properly appointed Investment Manager. The Advisory
Committee, the Trustee and any properly appointed Investment Manager may execute
a letter agreement as a part of this Plan delineating the duties,
responsibilities and liabilities of the Investment Manager with respect to any
part of the Trust Fund under the control of the Investment Manager.
10.16 Participant Voting Rights--Employer Securities. With respect to
the voting of Employer Securities which are not part of a registration-type
class of securities (as defined in Code Section 409(e)(4)), a Participant has
the right to direct the Trustee regarding the voting of such Employer Securities
allocated to his Employer Securities Account with respect to any corporate
matter which involves the approval of disapproval of any corporate merger or
consolidation, recapitalization, reclassification, liquidation, dissolution,
sale of substantially all assets of a trade or business, or such similar
transaction as the Treasury may prescribe in regulations. As to any Employer
Securities allocated to the Participant's Employer Securities Account which are
part of a registration-type class of securities, the voting rights provided in
this Section 10.16 extend to all corporate matters requiring a vote of
stockholders. The Trustee does not have the right to vote any Employer
Securities which a Participant (or Beneficiary) fails to vote as authorized by
this Section 10.16.
ARTICLE XI
REPURCHASE OF EMPLOYER SECURITIES
11.01 Put Option. The Employer will issue a "put option" to each
Participant receiving a distribution of Employer Securities from the Trust. The
put option will permit the Participant to sell the Employer Securities to the
Employer, at any time during two option periods, at the current fair market
value. The first put option period runs for a period of at least 60 days
commencing on the date of distribution of Employer Securities to the
Participant. The second put option period runs for a period of at least 60 days
commencing after the new determination of the fair market value of Employer
Securities by the Advisory Committee and notice to the Participant of the new
fair market value. If a Participant (Beneficiary) exercises his put option, the
Employer must purchase the Employer Securities at fair market value upon the
terms provided under Section 11.04. The Employer may grant the Trust an option
to assume the Employer's rights and obligations at the time a Participant
exercises an option under this Section 11.01.
11.02 Restriction on Employer Securities. Except upon the prior written
consent of the Employer, no Participant (or Beneficiary) may sell, assign, give
pledge, encumber, transfer or otherwise dispose of any Employer Securities now
owned or subsequently acquired by him without complying with the terms of this
Article XI. If a Participant (or Beneficiary) pledges or encumbers any Employer
Securities with the required prior written consent, any security holder's rights
with respect to such Employer Securities are subordinate and subject to the
rights of the Employer.
11.03 Lifetime Transfer/Right of First Refusal. If any Participant (or
Beneficiary) who receives Employer Securities under this Plan desires to dispose
of any of his Employer Securities for any reason during his lifetime (whether by
sale, assignment, gift or any other method of transfer), he first must offer the
Employer Securities for sale to the Employer. The Advisory Committee may require
a Participant (or beneficiary) entitled to a distribution of Employer Securities
to execute an appropriate stock transfer agreement (evidencing the right of
first refusal) prior to receiving a certificate for Employer Securities.
In the case of an offer by a third party, the offer to the Employer is
subject to all the terms and conditions set forth in Section 11.04 based on the
price equal to the fair market value per share and payable in accordance with
the terms of Section 11.04 unless the selling price and terms offered to the
Participant by the third party are more favorable to the Participant than the
selling price and terms of Section 11.04, in the event the selling price and
terms of the offer of the third party apply. The Employer must give written
notice to the offering Participant of its acceptance of the Participant's offer
within 14 days after the Participant has given written notice to the Employer or
the Employer's rights under this Section 11.03 will lapse. The Employer may
grant the Trust the option to assume the Employer's rights and obligations with
respect to all or any part of the Employer Securities offered to the Employer
under this Section 11.03.
11.04 Payment of Purchase Price. If the Employer (or the Trustee, at
the direction of the Advisory Committee) exercises an option to purchase a
Participant's Employer Securities pursuant to an offer given under Section
11.03, the purchaser(s) must make payment in lump sum or, if the distribution to
the Participant (or to his Beneficiary) constitutes a Total Distribution, in
substantially equal installments over a period not exceeding five years. A
"Total Distribution" to a Participant (or to a Beneficiary) is the distribution,
within one taxable year of the recipient, of the entire balance to the
Participant's credit under the Plan. In the case of a distribution which is not
a Total Distribution or which is a Total Distribution with respect to which the
purchaser(s) will make payment in lump sum, the purchaser(s) must pay the
Participant (or Beneficiary) the fair market value of the Employer Securities
repurchased no later than 30 days after the date the Participant (or
Beneficiary) exercises the option. In the case of a Total Distribution with
respect to which the purchaser(s) will make installment payments, the
purchaser(s) must make the first installment payment no later than 30 days after
the Participant (or Beneficiary) exercises the put option. For installment
amounts not paid within 30 days of the exercise of the put option, the
purchaser(s) must evidence the balance of the purchase price by executing a
promissory note, delivered to the selling Participant at the Closing. The note
delivered at Closing must bear a reasonable rate of interest, determined as of
the Closing Date, and the purchaser(s) must provide adequate security. The note
must provide for equal annual installments with interest payable with each
installment, the first installment being due and payable one year after the
Closing Date. The note further must provide for acceleration in the event of 30
days' default of the payment on interest or principal and must grant to the
maker of the note the right to prepay the note in whole or in part at any time
or times without penalty; provided, however, the purchaser(s) may not have the
right to make any prepayment during the calendar year or fiscal year of the
Participant (Beneficiary) in which the Closing Date occurs.
11.05 Notice. A person has given Notice permitted or required under
this Article XI when the person deposits the Notice in the United States mail,
first class, postage prepaid, addressed to the person entitled to the Notice at
the address currently listed for him in the records of the Advisory Committee.
Any person affected by this Article XI has the obligation of notifying the
Advisory Committee of any change of address.
11.06 Terms and Definitions. For purposes of this Article XI:
(a) "Fair market value" means the value of the Employer Securities: (i)
determined as of the date of the exercise of an option if the exercise
is by a Disqualified Person; or (ii) in all other cases, determined as
of the most recent Accounting Date. The Advisory Committee must
determine fair market value of Employer Securities for all purposes of
the Plan by engaging the services of an independent appraiser. See
Section 10.14.
(b) "Notice" means any offer, acceptance of an offer, payment or any
other communication.
(c) "Beneficiary" includes the legal representative of a deceased
Participant.
(d) "Closing" means the place, date and time ("Closing Date") to which
the selling Participant (or his Beneficiary) and purchaser may agree
for purposes of a sale and purchase under this Article XI, provided
Closing must take place not later than 30 days after the exercise of an
offer under Section 11.01.
ARTICLE XII
Miscellaneous
12.01 Evidence. Anyone required to give evidence under the terms of the
Plan may do so by certificate, affidavit, document or other information which
the person to act in reliance may consider pertinent, reliable and genuine, and
to have been signed, made or presented by the proper party or parties. Both the
Advisory Committee and the Trustee are fully protected in acting and relying
upon any evidence described under the immediately preceding sentence.
12.02 No Responsibility for Employer Action. Neither the Trustee nor
the Advisory Committee has any obligation nor responsibility with respect to any
action required by the Plan to be taken by the Employer, any Participant or
eligible Employee, or for the failure of any of the above persons to act or make
any payment or contribution, or to otherwise provide any benefit contemplated
under this Plan. Furthermore, the Plan does not require the Trustee or the
Advisory Committee to collect any contribution required under the Plan, or
determine the correctness of the amount of any Employer contribution. Neither
the Trustee nor the Advisory Committee need inquire into or be responsible for
any action or failure to act on the part of the others. Any action required of a
corporate Employer must be by its Board of Directors or its designate.
12.03 Fiduciaries Not Insurers. The Trustee, the Advisory Committee,
the Plan Administrator and the Employer in no way guarantee the Trust Fund from
loss or depreciation. The Employer does not guarantee the payment of any money
which may be or becomes due to any person from the Trust Fund. The liability of
the Advisory Committee and the Trustee to make any payment from the Trust Fund
at any time and all times is limited to the then available assets of the Trust.
12.04 Waiver of Notice. Any person entitled to notice under the Plan
may waive the notice.
12.05 Successors. The Plan is binding upon all persons entitled to
benefits under the Plan, their respective heirs and legal representatives, upon
the Employer, it successors and assigns, and upon the Trustee, the Advisory
Committee, the Plan Administrator and their successors.
12.06 Word Usage. Words used in the masculine also apply to the
feminine where applicable, and wherever the context of the Plan dictates, the
plural includes the singular and singular includes the plural.
12.07 State Law. Colorado law shall determine all questions arising
with respect to the provisions of this Agreement except to the extent Federal
statutes supersede Colorado law.
12.08 Employment Not Guaranteed. Nothing contained in this Plan, or
with respect to the establishment of the Trust, or any modification or amendment
to the Plan or Trust, or in the creation of any Account, or the payment of any
benefit, gives any Employee, Participant, or any Beneficiary any right to
continue employment, any legal or equitable right against the Employer, or
Employee of the Employer, or against the Trustee, or its agents or employees, or
against the Plan Administrator, except as expressly provided by the Plan, the
Trust, ERISA or by a separate agreement.
ARTICLE XIII
Exclusive Benefit, Amendment, Termination
13.01 Exclusive Benefit. Except as provided under Article III, the
Employer has no beneficial interest in any asset of the Trust and no part of any
asset in the Trust shall ever revert to or be repaid to an Employer, either
directly or indirectly; nor prior to the satisfaction of all liabilities with
respect to the Participants and their Beneficiaries under the Plan, may any part
of the corpus of income of the Trust Fund, or any asset of the Trust, be (at any
time) used for, or diverted to, purposes other than the exclusive benefit of the
Participants or their Beneficiaries. However, if the Commissioner of Internal
Revenue, upon the Employer's request for initial approval of this Plan,
determines that the Trust created under the Plan is not a qualified trust exempt
from Federal income tax, then and only then (and only then) the Trustee, upon
written notice from the Employer, will return the Employer's contributions (and
increment attributable to the contributions) to the employer. The Trustee must
make the return of the Employer contribution under this Section 13.01 within one
year of a final disposition of the Employer's request for initial approval of
the Plan. The Plan and Trust will terminate upon the Trustee's return of the
Employer's contributions.
13.02 Amendment by Employer. The Employer has the right at any time and
from time to time: (a) to amend this Agreement in any manner it deems necessary
or advisable in order to qualify (or maintain qualification of) this Plan and
the Trust created under it under the appropriate provisions of Code Section
401(a); and (b) to amend this Agreement in any other manner. No amendment may
authorize or permit any of the Trust Fund (other than the part required to pay
taxes and administration expenses) to be used for or diverted to purposes other
than for the exclusive benefit of the Participants or their Beneficiaries or
estates. No amendment may cause or permit any portion of the Trust Fund to
revert to or become a property of the Employer. The Employer also may not make
any amendment which affects the rights, duties or responsibilities of the
Trustee, the Plan Administrator, or the Advisory Committee without the written
consent of the affected Trustee, the Plan Administrator, or the affected member
of the Advisory Committee.
Code Section 411(d)(6) protected benefits. An amendment (including the
adoption of this Plan as a restatement of an existing plan) may not decrease a
Participant's Accrued Benefit, except to the extent permitted under Code Section
412(c)(8), and may not reduce or eliminate Code Section 411(d)(6) protected
benefits determined immediately prior to the adoption date (or, if later, the
effective date) of the amendment. An amendment reduces or eliminates Code
Section 411(d)(6) protected benefits if the amendment has the effect of either
(1) eliminating or reducing an early retirement benefit or a retirement-type
subsidy (as defined in Treasury regulations), or (2) except as provided by
Treasury regulations, eliminating an optional form of benefit. The Advisory
Committee must disregard an amendment to the extent application of the amendment
would fail to satisfy this paragraph. If the Advisory Committee must disregard
an amendment because the amendment would violate clause (1) or clause (2), the
Advisory Committee must maintain a schedule of the early retirement option or
other optional forms of benefit the Plan must continue for the affected
Participants.
The Employer must make all amendments in writing. Each amendment must
state the date to which it is either retroactively or prospectively effective.
13.03 Discontinuance. The Employer has the right, at any time, to
suspend or discontinue its contributions under the Plan, and to terminate, at
any time, this Plan and the Trust created under this Agreement. The Plan will
terminate upon the first to occur of the following: (a) the date terminated by
action of the Employer; (b) the date the Employer shall be judicially declared
bankrupt or insolvent unless the proceeding authorized continued maintenance of
the Plan; (c) the dissolution, merger, consolidation or reorganization of the
Employer or the sale by the Employer of all or substantially all of its assets,
unless the successor or purchaser makes provision to continue the Plan, in which
event the successor or purchaser shall substitute itself as the Employer under
this Plan.
13.04 Full Vesting on Termination. Upon either full or partial
termination of the Plan, or, if applicable, upon the date of complete
discontinuance of profit-sharing plan contributions to the Plan, an affected
Participant's right to his Accrued Benefit shall be 100% Nonforfeitable
irrespective of the Nonforfeitable percentage which otherwise would apply under
Article V.
13.05 Merger/Direct Transfer. The Trustee may not consent to, or be a
party to, any merger or consolidation with another plan, or to a transfer of
assets or liabilities to another plan, unless immediately after the merger,
consolidation or transfer, the surviving Plan provides each Participant a
benefit equal to or greater than the benefit each Participant would have
received had the Plan terminated immediately before the merger or consolidation
or transfer. The Trustee possesses the specific authority to enter into merger
agreements or direct transfer of assets agreements with the trustees of other
retirement plans described in Code Section 401(a), including an elective
transfer, and to accept the direct transfer of plan assets, or to transfer
assets as a party to any such agreement, provided the other retirement plan is
not subject to the joint and survivor annuity provisions of Code Section 417.
The Trustee may accept a direct transfer of plan assets on behalf of an Employer
prior to the date the Employee satisfies the Plan's eligibility condition(s). If
the Trustee accepts such a direct transfer of plan assets, the Advisory
Committee and the Trustee must treat the Employee as a Participant for all
purposes of the Plan except the Employee is not a Participant for purposes of
sharing in Employer contributions or Participant forfeitures under the Plan
until he actually becomes a Participant in the Plan. The Trustee may not consent
to, or be a party to a merger, consolidation or transfer of assets with a
defined benefit plan, except with respect to an elective transfer. The Trustee
will hold, administer and distribute the transferred assets as a part of the
Trust Fund and the Trustee must maintain a separate Employer contribution
Account for the benefit of the Employee on whose behalf the Trustee accepted the
transfer in order to reflect the value of the transferred assets. Unless a
transfer of assets to this Plan is an elective transfer, the Plan will preserve
all Code Section 411(d)(6) protected benefits with respect to those transferred
assets, in the manner described in Section 13.02. A transfer is an elective
transfer if: (1) the transfer satisfies the first paragraph of this Section
13.05, (2) the transfer is voluntary, under a fully informed election by the
Participant; (3) the Participant has an alternative that retains his Code
Section 411(d)(6) protected benefits (including an option to leave his benefit
in the transferor plan, if that plan is not terminating); (4) the transfer
satisfies the applicable spousal consent requirements of the Code; (5) the
transferor plan satisfies the joint and survivor notice requirements of the
Code, if the Participant's transferred benefit is subject to those requirements;
(6) the Participant has a right to immediate distribution from the transferor
plan, in lieu of the elective transfer; (7) the transferred benefit is at least
the greater of the single sum distribution provided by the transferor plan for
which the Participant is eligible or the present value of the Participant's
accrued benefit under the transferor plan payable at that plan's normal
retirement age; (8) the Participant has a one hundred percent (100%)
Nonforfeitable interest in the transferred benefit; and (9) the transfer
otherwise satisfies applicable Treasury regulations. An elective transfer may
occur between two defined contribution plans, between qualified plans of any
type.
Distribution restrictions under Code Section 401(k). If the Plan
receives a direct Transfer (by merger or otherwise) of elective contributions
(or amounts treated as elective contributions) under a Plan with a Code Section
401(k) arrangement, the distribution restrictions of Code Sections 401(k)(2) and
401(k)(10) continue to apply to those transferred elective contributions.
13.06 Termination. Upon termination of the Plan, the distribution
provisions of Article VI remain operative, with the following exceptions: (1) if
the present value of the Participant's Nonforfeitable Accrued Benefit does not
exceed $3,500, the Advisory Committee will direct the Trustee to distribute the
Participant's Nonforfeitable Accrued Benefit to him in lump sum as soon as
administratively practicable after the Plan terminates; and (2) if the present
value of the Participant's Nonforfeitable Accrued Benefit exceeds $3,500, the
Participant or the Beneficiary, in addition to the distribution events permitted
under Article VI, may elect to have the Trustee commence distribution of his
Nonforfeitable Accrued Benefit as soon as administratively practicable after the
Plan terminates. To liquidate the Trust, the Advisory Committee will purchase a
deferred annuity contract for each Participant which protects the Participants's
distribution rights under the Plan, if the Participant's Nonforfeitable Accrued
Benefit exceeds $3,500 and the Participant does not elect an immediate
distribution pursuant to clause (2) above. The Trust will continue until the
Trustee in accordance with the direction of the Advisory Committee has
distributed all of the benefits under the Plan. On each valuation date, the
Advisory Committee will credit any part of a Participant's Accrued Benefit
retained in the Trust with its proportionate share of the Trust's income,
expenses, gains and losses, both realized and unrealized. Upon termination of
the Plan, the amount, if any, in a suspense account under Article III will
revert to the Employer, subject to the conditions of the Treasury regulations
permitting such a reversion. A resolution or amendment to freeze all future
benefit accruals but otherwise to continue maintenance of the Plan, is not a
termination for purposes of this Section 13.06.
IN WITNESS WHEREOF, the Employer and the Trustee have executed this
Plan and Trust Agreement this 6th day of October, 1989.
EMPLOYER:
FRONTEER DIRECTORY CO.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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President
ATTEST:
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Secretary
TRUSTEE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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