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Exhibit 10.17
THE CORPORATEplan for RETIREMENT(SM)
(PROFIT SHARING/401(K) PLAN)
A FIDELITY PROTOTYPE PLAN
Non-Standardized Adoption Agreement 002
Basic Plan No. 07
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ADOPTION AGREEMENT
ARTICLE 1
NON-STANDARDIZED PROFIT SHARING PLAN
1.01 PLAN INFORMATION
(a) Name of Plan:
This is the Marine Transport Lines, Inc. Salaried Employees
Retirement Income Plan (the "Plan").
(b) Type of Plan:
(1) |X| 401(k) and Profit Sharing
(2) |_| Profit Sharing Only
(3) |_| 401(k) Only
(c) Name of Plan Administrator, if not the Employer:
Name:
--------------------------------------------
Address:
----------------------------------------
Phone Number:
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The Plan Administrator is the agent for service of legal process for
the Plan.
(d) Limitation Year (check one):
(1) |X| Calendar Year
(2) |_| Plan Year
(3) |_| Other:
(e) Three Digit Plan Number: 001
(f) Plan Year End (month/day): December 31
(g) Plan Status (check one):
(1) |_| Effective Date of new Plan: ______________
(2) |X| Amendment Effective Date: 10/1/94 . This is (check one):
(A) |_| an amendment of The CORPORATEplan for Retirement(SM)
Adoption Agreement previously executed by the Employer;
or
(B) |X| conversion from another plan document into The
CORPORATEplan for Retirement(SM).
The original effective date of the Plan: 1/1/83
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The substantive provisions of the Plan shall apply prior
to the Effective Date to the extent required by the Tax
Reform Act of 1986 or other applicable laws.
1.02 EMPLOYER
(a) The Employer is: Marine Transport Lines, Inc.
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact's Name: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
(1) Employer's Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
(2) Business form of Employer (check one):
(A) |X| Corporation
(B) |_| Sole proprietor or
(C) |_| Subchapter S
(D) |_| Governmental
(E) |_| Tax exempt partnership organization
(F) |_| Rural Electric Corporation Cooperative
(3) Employer's fiscal year end: 12/31
(4) Date business commenced: January 1, 1941
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(b) The term "Employer" includes the following Related Employer(s) (as
defined in Section 2.01(a)(26)):
1.03 COVERAGE
(a) All Employees who meet the conditions specified below will be
eligible to participate in the Plan:
(1) Service requirement (check one):
(A) |X| no service requirement.
(B) |_| three consecutive months of service (no minimum
number Hours of Service can be required).
(C) |_| six consecutive months of service (no minimum number
Hours of Service can be required).
(D) |_| one Year of Service (1,000 Hours of Service is
required during the Eligibility Computation Period.)
(2) Age requirement (check one):
(A) |X| no age requirement.
(B) |_| must have attained age ____ (not to exceed 21).
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(3) The class of Employees eligible to participate in the Plan
(check one):
(A) |X| includes all Employees of the Employer.
(B) |_| includes all Employees of the Employer except for
(check the appropriate box(es)):
(i) |_| Employees covered by a collective bargaining
agreement.
(ii) |_| Highly Compensated Employees as defined in
Code Section 414(q).
(iii) |_| Leased Employees as defined in Section
2.01(a)(18).
(iv) |_| Nonresident aliens who do not receive any
earned income from the Employer which constitutes
United States source income.
(v) |_| Other
Note: No exclusion in this section may create a discriminatory
class of employees. An Employer's Plan must still pass
the Internal Revenue Code coverage and participation
requirements if one or more of the above groups of
Employees have been excluded from the Plan.
(b) The Entry Date(s) shall be (check one):
(1) |_| the first day of each Plan Year (do not select if Section
1.03 (a)(1)(D) is elected or if there is an age requirement of
greater than 20 1/2 in Section 1.03(a)(2)(B)).
(2) |_| the first day of each Plan Year and the date six months
later.
(3) |_| the first day of each Plan Year and the first day of the
fourth, seventh, and tenth months.
(4) |X| the first day of each month.
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(c) Date of Initial Participation - An Employee will become a
Participant unless excluded by Section 1.03(a)(3) above on the Entry
Date immediately following the date the Employee completes the
service and age requirement(s) in Section 1.03(a), if any, except
(check one):
(1) |_| No exceptions.
(2) |X| Employees employed on the Effective Date in Section
1.01(g) will become Participants on that date.
(3) |_| Employees who meet the age and service requirement(s) of
Section 1.03(a) on the Effective Date in Section 1.01(g) will
become Participants on that date.
1.04 COMPENSATION
(a) For purposes of determining contributions under the Plan,
Compensation shall be as defined in Section 2.01(a)(7), but
excluding (check the appropriate box(es)):
(1) |_| Overtime Pay.
(2) |_| Bonuses.
(3) |_| Commissions.
(4) |_| The value of a qualified or a non-qualified stock option
granted to an Employee by the Employer to the extent such
value is includable in the Employee's taxable income.
Note: These exclusions shall not apply for purposes of the "Top
Heavy" requirements in Section 9.03 or for allocating
Discretionary Employer Contributions if an Integrated Formula
is elected in Section 1.05(a)(2).
(5) |X| No exclusions.
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(b) Compensation for the First Year of Participation
Contributions for the Plan Year in which an Employee first becomes a
Participant shall be determined based on the Employee's Compensation
(check one):
(1) |X| For the entire Plan Year.
(2) |_| For the portion of the Plan Year in which the Employee is
eligible to participate in the Plan.
1.05 CONTRIBUTIONS
(a) |X| Employer Contributions :
(1) |X| Fixed Formula - Nonintegrated Formula (check (A) or (B)):
(A) |X| Fixed Percentage Employer Contribution:
For each Plan Year, the Employer will contribute for
each eligible Participant an amount equal to 3% (not to
exceed 15%) of such Participant's Compensation.
(B) |_| Fixed Flat Dollar Employer Contribution:
For each Plan Year, the Employer will contribute for
each eligible Participant an amount equal to $ ____ .
(2) |X| Discretionary Formula
The Employer may decide each Plan Year whether to make a
discretionary Employer contribution on behalf of eligible
Participants in accordance with Section 4.06. Such
contributions shall be allocated to eligible Participants
based upon the following (check (A) or (B)):
(A) |X| Nonintegrated Allocation Formula: In the ratio that
each eligible Participant's Compensation bears to the
total Compensation paid to all eligible Participants for
the Plan Year.
(B) |_| Integrated Allocation Formula: In accordance with
Section 4.06.
Note: An Employer who maintains any other plan that provides
for Social Security Integration (permitted disparity)
may not elect (2)(B).
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(3) Eligibility Requirement(s)
A Participant shall be entitled to Employer Contributions for
a Plan Year under this Subsection (a) if the Participant
satisfies the following requirement(s) (Check the appropriate
box(es) - Options (B) and (C) may not be elected together):
(A) |X| is employed by the Employer on the last day of the
Plan Year.
(B) |_| earns at least 500 Hours of Service during the Plan
Year.
(C) |_| earns at least 1,000 Hours of Service during the
Plan Year.
(D) |_| no requirements.
Note: If option (A), (B) or (C) above is selected then
Employer contributions can only be funded by the
Employer after Plan Year end. Employer contributions
funded during the Plan Year shall not be subject to the
eligibility requirements of this Section 1.05(a)(3).
(b) |X| Deferral Contributions
(1) Regular Contributions
The Employer shall make a Deferral Contribution in accordance
with Section 4.01 on behalf of each Participant who has an
executed salary reduction agreement in effect with the
Employer for the payroll period in question, not to exceed 15%
(no more than 15%) of Compensation for that period.
(A) A Participant may increase or decrease, on a prospective
basis, his salary reduction agreement percentage (check
one):
(i) |_| As of the beginning of each payroll period.
(ii) |X| As of the first day of each month.
(iii) |_| As of the next Entry Date.
(iv) |_| (Specify, but must be at least once per Plan
Year)
(B) A Participant may revoke, on a prospective basis, a
salary reduction agreement at any time upon proper
notice to the Administrator but in such case may not
file a new salary reduction agreement until (check one):
(i) |_| The first day of the next Plan Year.
(ii) |_| Any subsequent Plan Entry Date.
(iii) |X| (Specify, but must be at least once per Plan
Year)
January 1 and July 1
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(2) |X| Catch-Up Contributions
The Employer may allow Participants upon proper notice and
approval to enter into a special salary reduction agreement to
make additional Deferral Contributions in an amount up to 100%
of their Compensation for the payroll period(s) in the final
month of the Plan Year.
(3) |X| Bonus Contributions
The Employer may allow Participants upon proper notice and
approval to enter into a special salary reduction agreement to
make Deferral Contributions in an amount up to 100% of any
Employer paid cash bonuses made for such Participants during
the Plan Year. The Compensation definition elected by the
Employer in Section 1.04(a) must include bonuses if bonus
contributions are permitted.
Note: A Participant's contributions under (2) and/or (3) may
not cause the Participant to exceed the percentage limit
specified by the Employer in (1) after the Plan Year.
The Employer has the right to restrict a Participant's
right to make Deferral Contributions if they will
adversely affect the Plan's ability to pass the actual
deferral percentage and/or the actual contribution
percentage test.
(4) |X| Qualified Discretionary Contributions
The Employer may contribute an amount which it designates as a
Qualified Discretionary Contribution to be included in the
actual deferral percentage or actual contribution percentage
test. Qualified Discretionary Contributions shall be allocated
to Non-highly Compensated Employees (check one):
(A) |X| in the ratio which each such Participant's
Compensation for the Plan Year bears to the total of all
such Participants' Compensation for the Plan Year.
(B) |_| as a flat dollar amount for each such Participant
for the Plan Year.
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(c) |X| Matching Contributions (only if Section 1.05(b) is checked) **
(1) The Employer shall make a Matching Contribution on behalf of
each Participant in an amount equal to the following
percentage of a Participant's Deferral Contributions during
the Plan Year (check one):
(A) |_| 50%
(B) |X| 100% **
(C) |_| %
(D) |_| (Tiered Match)
____ % of the first_________________% of the
Participant's Compensation contributed to the Plan,
____ % of the first_________________% of the
Participant's Compensation contributed to the Plan,
____ % of the first_________________% of the
Participant's Compensation contributed to the Plan.
Note: The percentages specified above for Matching
Contributions may not increase as the percentage of
Compensation contributed increases.
(E) |_| The percentage declared for the year, if any, by a
Board of Directors' Resolution (or by a Letter of Intent
for a Sole Proprietor or Partnership).
(2) |_| The Employer may at Plan Year end make an additional
Matching Contribution equal to a percentage declared by the
Employer, through a Board of Directors' Resolution (or by a
Letter of Intent for a Sole Proprietor or Partnership), of the
Deferral Contributions made by each Participant during the
Plan Year (only if an option is checked under Section
1.05(c)(1)).
(3) |X| Matching Contribution Limits (check the appropriate box):
(A) |X| Deferral Contributions in excess of 3% of the
Participant's Compensation for the ** period in question
shall not be considered for Matching Contributions.
Note: If the Employer elects a percentage limit in (A)
above and requests the Trustee to account
separately for matched and unmatched Deferral
Contributions, the Matching Contributions
allocated to each Participant must be computed,
and the percentage limit applied, based upon each
payroll period.
(B) |_| Matching Contributions for each Participant for each
Plan Year shall be limited to $_______________ .
(4) Eligibility Requirement(s)
A Participant who makes Deferral Contributions during the Plan
Year under Section 1.05(b) shall be entitled to Matching
Contributions for that Plan Year if the Participant satisfies
the following requirement(s) (Check the appropriate box(es).
Options (B) and (C) may not be elected together):
(A) |_| Is employed by the Employer on the last day of the
Plan Year.
(B) |_| Earns at least 500 Hours of Service during the Plan
Year.
** Effective January 1, 1999, signed by ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Secretary.
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(C) |_| Earns at least 1,000 Hours of Service during the
Plan Year.
(D) |_| Is not a Highly Compensated Employee for the Plan
Year.
(E) |_| Is not a Partner of the Employer, if the Employer is
a Partnership.
(F) |X| No requirements. **
Note: If option (A), (B) or (C) above is selected then
Matching Contributions can only be funded by the
Employer after the Plan Year ends. Any Matching
Contribution funded before Plan Year end shall not be
subject to the eligibility requirements of this Section
1.05(c)(4)). If option (A), (B), or (C) is adopted
during a Plan Year, such option shall not become
effective until the first day of the next Plan Year.
(d) |X| Employee After-Tax Contributions (check one):
(1) |X| Future Contributions
Participants may make voluntary non-deductible Employee
Contributions pursuant to Section 4.09 of the Plan. This
option may only be elected if the Employer has elected to
permit Deferral Contributions under Section 1.05(b). Matching
Contributions by the Employer are not allowed on any voluntary
non-deductible Employee Contributions. Withdrawals are limited
to one per year unless Employee Contributions were allowed
under a previous plan document which authorized more frequent
withdrawals.
(2) |_| Frozen Contributions
Participants may not make voluntary non-deductible Employee
Contributions, but the Employer does maintain frozen
Participant voluntary non-deductible Employee Contribution
Accounts.
** Effective January 1, 1999, signed by ▇▇▇▇▇ ▇. Popv,
Secretary.
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1.06 RETIREMENT AGE(S)
(a) The Normal Retirement Age under the Plan is (check one):
(1) |X| age 65.
(2) |_| age _____ (specify between 55 and 64).
(3) |_| later of the age _____ (can not exceed 65) or the fifth
anniversary of the Participant's Employment Commencement Date.
(b) |X| The Early Retirement Age is the first day of the month after the
Participant attains age 55 (specify 55 or greater) and completes 0
Years of Service for Vesting.
(c) |_| A Participant is eligible for Disability Retirement if he/she
(check the appropriate box(es)):
(1) |_| satisfies the requirements for benefits under the
Employer's Long-Term Disability Plan.
(2) |_| satisfies the requirements for Social Security disability
benefits.
(3) |_| is determined to be disabled by a physician approved by
the Employer.
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1.07 VESTING SCHEDULE
(a) The Participant's vested percentage in Employer contributions (Fixed
or Discretionary) elected in Section 1.05(a) and/or Matching
Contributions elected in Section 1.05(c) shall be based upon the
schedule(s) selected below, except with respect to any Plan Year
during which the Plan is Top-Heavy. The schedule elected in Section
1.12(d) shall automatically apply for a Top-Heavy Plan Year and all
Plan Years thereafter unless the Employer has already elected a more
favorable vesting schedule below.
(1) Employer Contributions
(check one):
(A) |_| N/A - No Employer Contributions
(B) |X| 100% Vesting immediately
(C) |_| 3 year cliff (see C below)
(D) |_| 5 year cliff (see D below)
(E) |_| 6 year graduated (see E below)
(F) |_| 7 year graduated (see F below)
(G) |_| Other vesting (complete G1 below)
(2) Matching Contributions
(check one):
(A) |_| N/A - No Matching Contributions
(B) |X| 100% Vesting immediately **
(C) |_| 3 year cliff (see C below)
(D) |_| 5 year cliff (see D below)
(E) |_| 6 year graduated (see E below)
(F) |_| 7 year graduated (see E below)
(G) |_| Other vesting (complete G2 below)
Years of Vesting Schedule
Service for
Vesting C D E F G1 G2
------- - - - - -- --
0 0% 0% 0% 0% ___% ___%
1 0% 0% 0% 0% ___% ___%
2 0% 0% 20% 0% ___% ___%
3 100% 0% 40% 20% ___% ___%
4 100% 0% 60% 40% ___% ___%
5 100% 100% 80% 60% ___% ___%
6 100% 100% 100% 80% ___% ___%
7 100% 100% 100% 100% 100% 100%
Note: A schedule elected under G1 or G2 above must be at least as favorable as
one of the schedules in C, D, E or F above.
(b) |_| Years of Service for Vesting shall exclude:
(1) |_| for new plans, service prior to the Effective Date as
defined in Section 1.01(g)(1).
(2) |_| for existing plans converting from another plan document,
service prior to the original Effective Date as defined in
Section 1.01(g)(2).
** Effective January 1, 1999, signed by ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Secretary.
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1.08 PREDECESSOR EMPLOYER SERVICE
|_| Service for purposes of eligibility in Section 1.03(a)(1) and
vesting in Section 1.07(a) of this Plan shall include service with
the following employer(s):
1.09 PARTICIPANT LOANS
Participant loans (check (a) or (b)):
(a) |_| will be allowed in accordance with Section 7.09, subject to a
$1,000 minimum amount and will be granted (check (1) or (2)):
(1) |_| for any purpose.
(2) |_| for hardship withdrawal (as defined in Section 7.10)
purposes only.
(b) |X| will not be allowed.
1.10 HARDSHIP WITHDRAWALS
Participant withdrawals for hardship prior to termination of employment
(check one):
(a) |X| will be allowed in accordance with Section 7.10, subject to a
$1,000 minimum amount.
(b) |_| will not be allowed.
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1.11 DISTRIBUTIONS
(a) Subject to Articles 7 and 8 and (b) below, distributions under the
Plan will be paid (check the appropriate box(es)):
(1) |X| as a lump sum.
(2) |X| under a systematic withdrawal plan (installments).
(b) |X| Check if a Participant will be entitled to receive a
distribution of all or any portion of the following Accounts without
terminating employment upon attainment of age 59 1/2 (check one):
(1) |X| Deferral Contribution Account
(2) |_| All Accounts
(c) |X| Check if the Plan was converted (by plan amendment) from another
defined contribution plan, and the benefits were payable as (check
the appropriate box(es)):
(1) |X| a form of single or joint and survivor life annuity.
(2) |_| an in-service withdrawal of vested Employer Contributions
maintained in a Participant's Account (check (A) and/or (B)):
(A) |_| for at least ______ (24 or more) months.
(B) |_| after the Participant has at least 60 months of
participation.
(3) |X| another distribution option that is a "protected benefit"
under Section 411(d)(6) of the Internal Revenue Code. Please
attach a separate page identifying the distribution option(s).
These additional forms of benefit may be provided for such plans
under Articles 7 or 8.
Note: Under Federal Law, distributions to Participants must
generally begin no later than April 1 following the year in
which the Participant attains age 70 1/2.
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1.12 TOP HEAVY STATUS
(a) The Plan shall be subject to the Top-Heavy Plan requirements of
Article 9 (check one):
(1) |_| for each Plan Year.
(2) |X| for each Plan Year, if any, for which the Plan is
Top-Heavy as defined in Section 9.02.
(3) |_| Not applicable. (This option is available for plans
covering only employees subject to a collective bargaining
agreement and there are no Employer or Matching Contributions
elected in Section 1.05.)
(b) In determining Top-Heavy status, if necessary, for an employer with
at least one defined benefit plan, the following assumptions shall
apply:
(1) Interest rate: ________% per annum
(2) Mortality table: _______________
(3) |X| Not Applicable.
(c) In the event that the Plan is treated as Top-Heavy for a Plan Year,
each non-key Employee shall receive an Employer Contribution of at
least 3 (3, 4, 5, or 7 1/2) % of Compensation for the Plan Year in
accordance with Section 9.03 (check one):
(1) |X| under this Plan in any event.
(2) |_| under this Plan only if the Participant is not entitled to
such contribution under another qualified plan of the
Employer.
(3) |_| Not applicable. (This option is available for plans
covering only employees subject to a collective bargaining
agreement and there are no Employer or Matching Contributions
elected in Section 1.05.)
Note: Such minimum Employer contribution may be less than the
percentage indicated in (c) above to the extent provided
in Section 9.03(a).
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(d) In the event that the Plan is treated as Top-Heavy for a Plan Year,
the following vesting schedule shall apply instead of the
schedule(s) elected in Section 1.07(a) for such Plan Year and each
Plan Year thereafter (check one):
(1) |X| 100% vested after 1 (not in excess of 3) years of service
for vesting.
(2) |_| Years of Service
for Vesting Vesting Percentage Must be at Least
0 ______________ 0%
1 ______________ 0%
2 ______________ 20%
3 ______________ 40%
4 ______________ 60%
5 ______________ 80%
6 ______________ 100%
Note: If the schedule(s) elected in Section 1.07(a) is(are) more
favorable in all cases than the schedule elected in (d) above,
then the schedule(s) in Section 1.07(a) will continue to apply
even in Plan Years in which the Plan is Top-Heavy.
1.13 TWO OR MORE PLANS - Code Section 415 limitation on annual additions
If the Employer maintains or ever maintained another qualified plan in
which any Participant in this Plan is (or was) a participant or could
become a participant, the Employer must complete this section. The
Employer must also complete this section if it maintains a welfare benefit
fund, as defined in Section 419(e) of the Code, or an individual medical
account, as defined in Section 415(l)(2) of the Code, under which amounts
are treated as annual additions with respect to any Participant in this
Plan.
(a) If the Employer maintains, or maintained, any other defined
contribution plan which is not a Master or Prototype Plan, Annual
Additions for any Limitation Year to this Plan will be limited
(check one):
(1) |X| in accordance with Section 5.03 of this Plan.
(2) |_| in accordance with another method set forth on an attached
separate sheet.
(3) |_| Not Applicable.
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(b) If the Employer maintains, or maintained, any defined benefit plan(s), the
sum of the Defined Contribution Fraction and Defined Benefit Fraction for
a Limitation Year may not exceed the limitation specified in Code Section
415(e), modified by section 416(h)(1) of the Code. This combined plan
limit will be met as follows (check one):
(1) |_| Annual Additions to this Plan are limited so that the sum
of the Defined Contribution Fraction and the Defined Benefit
Fraction does not exceed 1.0.
(2) |_| another method of limiting Annual Additions or reducing
projected annual benefits is set forth on an attached
schedule.
(3) |X| Not Applicable.
1.14 ESTABLISHMENT OF TRUST AND INVESTMENT DECISIONS
(a) Investment Directions
Participant Accounts will be invested (check one):
(1) |_| in accordance with investment directions provided to the
Trustee by the Employer for allocating all Participant
Accounts among the options listed in (b) below.
(2) |X| in accordance with investment directions provided to the
Trustee by each Participant for allocating his entire Account
among the options listed in (b) below.
(3) |_| in accordance with investment directions provided to the
Trustee by each Participant for all contribution sources in a
Participant's Account except the following sources shall be
invested as directed by the Employer (check (A) and/or (B)):
(A) |_| Fixed or Discretionary Employer Contributions
(B) |_| Employer Matching Contributions
The Employer must direct the applicable sources among the same
investment options made available for Participant directed
sources listed in (b) below.
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(b) Plan Investment Options
The Employer hereby establishes a Trust under the Plan in accordance
with the provisions of Article 14, and the Trustee signifies
acceptance of its duties under Article 14 by its signature below.
Participant Accounts under the Trust will be invested among the
Fidelity Funds listed below pursuant to Participant and/or Employer
directions.
Fund Name Fund Number
1 Fidelity Retirement Government Money
Market Portfolio 0631
2 Fidelity Managed Income Portfolio 0632
3 Fidelity Investment Grade Bond Fund 0026
4 Fidelity International Bond Fund 0451
5 Fidelity Growth & Income Portfolio 0027
6 Fidelity Magellan(R)Fund 0021
7 Fidelity Growth Company Fund 0025
8 Fidelity Overseas Fund 0094
9 Fidelity Puritan(R)Fund 0004
10 Fidelity Contrafund 0022
11 Fidelity Low-Priced Stock Fund 0316
12 Spartan(R)U.S. Equity Index Fund 0650
Note: An additional annual recordkeeping fee will be charged for
each fund in excess of seven funds.
To the extent that the Employer selects as an investment
option the Managed Income Portfolio of the Fidelity Group
Trust for Employee Benefit Plans (the "Group Trust"), the
Employer hereby (A) agrees to the terms of the Group Trust and
adopts said terms as a part of this Agreement and (B)
acknowledges that it has received from the Trustee a copy of
the Group Trust, the Declaration of Separate Fund for the
Managed Income Portfolio of the Group Trust, and the Circular
for the Managed Income Portfolio.
Note: The method and frequency for change of investments will be
determined under the rules applicable to the selected funds
or, if applicable, the rules of the Employer adopted in
accordance with Section 6.03. Information will be provided
regarding expenses, if any, for changes in investment options.
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1.15 RELIANCE ON OPINION LETTER
An adopting Employer may not rely on the opinion letter issued by the
National Office of the Internal Revenue Service as evidence that this Plan
is qualified under Section 401 of the Code. If the Employer wishes to
obtain reliance that his or her Plan(s) are qualified, application for a
determination letter should be made to the appropriate Key District
Director of the Internal Revenue Service. Failure to fill out the Adoption
Agreement properly may result in disqualification of the Plan.
This Adoption Agreement may be used only in conjunction with Fidelity
Prototype Plan Basic Plan Document No. 07. The Prototype Sponsor shall
inform the adopting Employer of any amendments made to the Plan or of the
discontinuance or abandonment of the prototype plan document.
1.16 PROTOTYPE INFORMATION:
Name of Prototype Sponsor: Fidelity Management & Research Co.
Address of Prototype Sponsor: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Questions regarding this prototype document may be directed to the
following telephone number: ▇-(▇▇▇) ▇▇▇-▇▇▇▇.
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EXECUTION PAGE
(Fidelity's Copy)
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed this 24th day of June, 1994.
Employer Marine Transport Lines, Inc.
-----------------------------------
By Signed by ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title Secretary
-----------------------------------
Employer Marine Transport Lines, Inc.
-----------------------------------
By Signed by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title President
-----------------------------------
Accepted by
Fidelity Management Trust Company, as Trustee
By Signed by ▇▇▇▇ ▇. ▇▇▇▇▇ Date July 22, 1994
---------------------------------- -----------------------------
Title Legal Counsel/Authorized Signatory
----------------------------------
21
22
EXECUTION PAGE
(Employer's Copy)
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed this 24th day of June, 1994.
Employer Marine Transport Lines, Inc.
-----------------------------------
By Signed by ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title Secretary
-----------------------------------
Employer Marine Transport Lines, Inc.
-----------------------------------
By Signed by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title President
-----------------------------------
Accepted by
Fidelity Management Trust Company, as Trustee
By Signed by ▇▇▇▇ ▇. ▇▇▇▇▇ Date June 21, 1994
---------------------------------- -----------------------------
Title Legal Counsel/Authorized Signatory
----------------------------------
22
23
Exhibit 10.17
The CORPORATEplan for Retirement
THE PROFIT SHARING/401(K) PLAN
FIDELITY BASIC PLAN DOCUMENT NO. 07
24
THE CORPORATE PLAN FOR RETIREMENT
PROFIT SHARING/401(K) PLAN
ARTICLE 1
ADOPTION AGREEMENT
ARTICLE 2
DEFINITIONS
2.01 - Definitions
ARTICLE 3
PARTICIPATION
3.01 - Date of Participation
3.02 - Resumption of Participation Following Reemployment
3.03 - Cessation or Resumption of Participation Following a Change in Status
3.04 - Participation by Owner-Employee; Controlled Businesses
3.05 - Omission of Eligible Employee
ARTICLE 4
CONTRIBUTIONS
4.01 - Deferral Contributions
4.02 - Additional Limit on Deferral Contributions
4.03 - Matching Contributions
4.04 - Limit on Matching Contributions and Employee Contributions
4.05 - Special Rules
4.06 - Fixed/Discretionary Employer Contributions
4.07 - Time of Making Employer Contributions
4.08 - Return of Employer Contributions
4.09 - Employee Contributions
4.10 - Rollover Contributions
4.11 - Deductible Voluntary Employee Contributions
4.12 - Additional Rules for Paired Plans
ARTICLE 5
PARTICIPANTS' ACCOUNTS
5.01 - Individual Accounts
5.02 - Valuation of Accounts
5.03 - Code Section 415 Limitations
ARTICLE 6
INVESTMENT OF CONTRIBUTIONS
6.01 - Manner of Investment
6.02 - Investment Decisions
6.03 - Participant Directions to Trustee
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ARTICLE 7
RIGHT TO BENEFITS
7.01 - Normal or Early Retirement
7.02 - Late Retirement
7.03 - Disability Retirement
7.04 - Death
7.05 - Other Termination of Employment
7.06 - Separate Account
7.07 - Forfeitures
7.08 - Adjustment for Investment Experience
7.09 - Participant Loans
7.10 - In-Service Withdrawals
7.11 - Prior Plan In-Service Distribution Rules
ARTICLE 8
DISTRIBUTION OF BENEFITS PAYABLE AFTER TERMINATION OF SERVICE
8.01 - Distribution of Benefits to Participants and Beneficiaries
8.02 - Annuity Distributions
8.03 - Joint and Survivor Annuities/Preretirement Survivor Annuities
8.04 - Installment Distributions
8.05 - Immediate Distributions
8.06 - Determination of Method of Distribution
8.07 - Notice to Trustee
8.08 - Time of Distribution
8.09 - Whereabouts of Participants and Beneficiaries
ARTICLE 9
TOP-HEAVY PROVISIONS
9.01 - Application
9.02 - Definitions
9.03 - Minimum Contribution
9.04 - Adjustment to the Limitation on Contributions and Benefits
9.05 - Minimum Vesting
ARTICLE 10
AMENDMENT AND TERMINATION
10.01 - Amendment by Employer
10.02 - Amendment by Prototype Sponsor
10.03 - Amendments Affecting Vested and/or Accrued Benefits
10.04 - Retroactive Amendments
10.05 - Termination
10.06 - Distribution Upon Termination of the Plan
10.07 - Merger or Consolidation of Plan; Transfer of Plan Assets
ARTICLE 11
AMENDMENT AND CONTINUATION OF PREDECESSOR PLAN; TRANSFER OF FUNDS
TO OR FROM OTHER QUALIFIED PLANS
11.01 - Amendment and Continuation of Predecessor Plan
11.02 - Transfer of Funds from an Existing Plan
11.03 - Acceptance of Assets by Trustee
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11.04 - Transfer of Assets from Trust
ARTICLE 12
MISCELLANEOUS
12.01 - Communication to Participants
12.02 - Limitation of Rights
12.03 - Nonalienability of Benefits and Qualified Domestic Relations Orders
12.04 - Facility of Payment
12.05 - Information Between Employer and Trustee
12.06 - Effect of Failure to Qualify Under Code
12.07 - Notices
12.08 - Governing Law
ARTICLE 13
PLAN ADMINISTRATION
13.01 - Powers and Responsibilities of the Administrator
13.02 - Nondiscriminatory Exercise of Authority
13.03 - Claims and Review Procedures
13.04 - Named Fiduciary
13.05 - Costs of Administration
ARTICLE 14
TRUST AGREEMENT
14.01 - Acceptance of Trust Responsibilities
14.02 - Establishment of Trust Fund
14.03 - Exclusive Benefit
14.04 - Powers of Trustee
14.05 - Accounts
14.06 - Approving of Accounts
14.07 - Distribution from Trust Fund
14.08 - Transfer of Amounts from Qualified Plan
14.09 - Transfer of Assets from Trust
14.10 - Separate Trust or Fund for Existing Plan Assets
14.11 - Voting; Delivery of Information
14.12 - Compensation and Expenses of Trustee
14.13 - Reliance by Trustee on other Persons
14.14 - Indemnification by Employer
14.15 - Consultation by Trustee with Counsel
14.16 - Persons Dealing with the Trustee
14.17 - Resignation or Removal of Trustee
14.18 - Fiscal Year of the Trust
14.19 - Discharge of Duties by Fiduciaries
14.20 - Amendment
14.21 - Plan Termination
14.22 - Permitted Reversion of Funds to Employer
14.23 - Governing Law
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Article 1. Adoption Agreement.
Article 2. Definitions.
2.01. Definitions.
(a) Wherever used herein, the following terms have the meanings set forth
below, unless a different meaning is clearly required by the context:
(1) "Account" means an account established on the books of the Trust
for the purpose of recording contributions made on behalf of a
Participant and any income, expenses, gains or losses incurred
thereon.
(2) "Administrator" means the Employer adopting this Plan, or other
person designated by the Employer in Section 1.01(c).
(3) "Adoption Agreement" means Article 1, under which the Employer
establishes and adopts, or amends, the Plan and Trust and designates
the optional provisions selected by the Employer, and the Trustee
accepts its responsibilities under Article 14. The provisions of the
Adoption Agreement shall be an integral part of the Plan.
(4) "Annuity Starting Date" means the first day of the first period
for which an amount is payable as an annuity or in any other form.
(5) "Beneficiary" means the person or persons entitled under Section
7.04 to receive benefits under the Plan upon the death of a
Participant, provided that for purposes of Section 7.04 such term
shall be applied in accordance with Section 401(a)(9) of the Code
and the regulations thereunder.
(6) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(7) "Compensation" shall mean
(A) for purposes of Article 4 (Contributions), compensation as
defined in Section 5.03(e)(2) excluding any items elected by
the Employer in Section 1.04(a), reimbursements or other
expense allowances, fringe benefits (cash and non-cash),
moving expenses, deferred compensation and welfare benefits,
but including amounts that are not includable in the gross
income of the Participant under a salary reduction agreement
by reason of the application of Sections 125, 402(a)(8),
402(h), or 403(b) of the Code; and
(B) for purposes of Section 2.01(a)(16) (Highly Compensated
Employees), Section 5.03 (Code Section 415 Limitations), and
Section 9.03 (Top-Heavy Plan Minimum Contribution),
compensation as defined in Section 5.03(e)(2).
28
Compensation shall generally be based on the amount actually
paid to the Participant during the Plan Year or, for purposes of
Article 4 if so elected by the Employer in Section 1.04(b), during
that portion of the Plan Year during which the Employee is eligible
to participate. Notwithstanding the preceding sentence, compensation
for purposes of Section 5.03 (Code Section 415 Limitations) shall be
based on the amount actually paid or made available to the
Participant during the Limitation Year. Compensation for the initial
Plan Year for a new plan shall be based upon eligible Participant
Compensation, subject to Section 1.04(b), from the Effective Date
listed in Section 1.01(g)(1) through the end of the first Plan Year.
In the case of any Self-Employed Individual, Compensation
shall mean the Individual's Earned Income.
For years beginning after December 31, 1988, the annual
Compensation of each Participant taken into account for determining
all benefits provided under the plan for any determination period
shall not exceed $200,000. This limitation shall be adjusted by the
Secretary at the same time and in the same manner as under Section
415(d) of the Code, except that the dollar increase in effect on
January 1 of any calendar year is effective for years beginning in
such calendar year and the first adjustment to the $200,000
limitation is effected on January 1, 1990. If a plan determines
Compensation on a period of time that contains fewer than 12
calendar months, then the annual Compensation limit is the amount
equal to the annual Compensation limit for the calendar year in
which the Compensation period begins multiplied by the ratio
obtained by dividing the number of full months in the period by 12.
If Compensation for any prior determination period is taken
into account in determining an Employee's allocations or benefits
for the current determination period, the Compensation for such
prior year is subject to the applicable annual compensation limit in
effect for that prior year. For this purpose, for years beginning
before January 1, 1990, the applicable annual compensation limit is
$200,000.
In determining the Compensation of a Participant for purposes
of this limitation, the rules of Section 414(q)(6) of the Code shall
apply, except that in applying such rules, the term "family" shall
include only the spouse of the Participant and any lineal
descendants of the Participant who have not attained age 19 before
the close of the year. If the $200,000 limitation is exceeded as a
result of the application of these rules, then the limitation shall
be prorated among the affected individuals in proportion to each
such individual's Compensation as determined under this Section
prior to the application of this limitation.
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29
(8) "Earned Income" means the net earnings of a Self-Employed
Individual derived from the trade or business with respect to which
the Plan is established and for which the personal services of such
individual are a material income-providing factor, excluding any
items not included in gross income and the deductions allocated to
such items, except that for taxable years beginning after December
31, 1989 net earnings shall be determined with regard to the
deduction allowed under Section 164(f) of the Code, to the extent
applicable to the Employer. Net earnings shall be reduced by
contributions of the Employer to any qualified plan, to the extent a
deduction is allowed to the Employer for such contributions under
Section 404 of the Code.
(9) "Eligibility Computation Period" means each 12-consecutive month
period beginning with the Employment Commencement Date and each
anniversary thereof or, in the case of an Employee who, before
completing the eligibility requirements set forth in Section
1.03(a)(1), incurs a break in service for participation purposes and
thereafter returns to the employ of the Employer or Related
Employer, each 12-consecutive month period beginning with the first
day of reemployment and each anniversary thereof.
A "break in service for participation purposes" shall mean an
Eligibility Computation Period during which the participant does not
complete more than 500 Hours of Service with the Employer.
(10) "Employee" means any employee of the Employer, any
Self-Employed Individual or Owner-Employee. The Employer must
specify in Section 1.03(a)(3) any Employee or class of Employees not
eligible to participate in the Plan. If the Employer elects to
exclude collective bargaining employees, the exclusion applies to
any employee of the Employer included in a unit of employees covered
by an agreement which the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and
one or more employers unless the collective bargaining agreement
requires the employee to be included within the Plan. The term
"employee representatives" does not include any organization more
than half the members of which are owners, officers, or executives
of the Employer.
For purposes of the Plan, an individual shall be considered to
become an Employee on the date on which he first completes an Hour
of Service and he shall be considered to have ceased to be an
Employee on the date on which he last completes an Hour of Service.
The term also includes a Leased Employee, such that contributions or
benefits provided by the leasing organization which are attributable
to services performed for the Employer shall be treated as provided
by the Employer. Notwithstanding the above, a Leased Employee shall
not be considered an Employee if Leased Employees do not constitute
more than 20 percent of the Employer's non-highly compensated
work-force (taking into account all Related Employers) and the
Leased Employee is covered by a money purchase pension plan
maintained by the
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30
leasing organization and providing (A) a nonintegrated employer
contribution rate of at least 10 percent of compensation, as defined
for purposes of Section 415(c)(3) of the Code, but including amounts
contributed pursuant to a salary reduction agreement which are
excludable from gross income under Section 125, Section 402(a)(8),
Section 402(h) or Section 403(b) of the Code, (B) full and immediate
vesting, and (C) immediate participation by each employee of the
leasing organization.
(11) "Employer" means the employer named in Section 1.02(a) and any
Related Employers required by this Section 2.01(a)(11). If Article 1
of the Employer's Plan is the Standardized Adoption Agreement, the
term "Employer" includes all Related Employers. If Article 1 of the
Employer's Plan is the Non-standardized Adoption Agreement, the term
"Employer" includes those Related Employers designated in Section
1.02(b).
(12) "Employment Commencement Date" means the date on which the
Employee first performs an Hour of Service.
(13) "ERISA" means the Employee Retirement Income Security Act of
1974, as from time to time amended.
(14) "Fidelity Fund" means any Registered Investment Company or
Managed Income Portfolio of the Fidelity Group Trust for Employee
Benefit Plans which is made available to plans utilizing the
CORPORATEplan for Retirement.
(15) "Fund Share" means the share, unit, or other evidence of
ownership in a Fidelity Fund.
(16) "Highly Compensated Employee" means both highly compensated
active Employees and highly compensated former Employees.
A highly compensated active Employee includes any Employee who
performs service for the Employer during the determination year and
who, during the "look-back year," (A) received compensation from the
Employer in excess of $75,000 (as adjusted pursuant to Section
415(d) of the Code), (B) received compensation from the Employer in
excess of $50,000 (as adjusted pursuant to Section 415(d) of the
Code) and was a member of the top-paid group for such year, or (C)
was an officer of the Employer and received compensation during such
year that is greater than 50 percent of the dollar limitation in
effect under Section 415(b)(1)(A) of the Code. The term "Highly
Compensated Employee" also includes (i) Employees who are both
described in the preceding sentence if the term "determination year"
is substituted for the term "look-back year" and the Employee is one
of the 100 Employees who received the most compensation from the
Employer during the determination year, and (ii) Employees who are
5-percent owners at any time during the look-back year or
determination year.
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31
If no officer has satisfied the compensation requirement of
(C) above during either a determination year or look-back year, the
highest paid officer for such year shall be treated as a highly
compensated Employee.
For this purpose, the determination year shall be the Plan
Year. The look-back year shall be the twelve-month period
immediately preceding the determination year. The Employer may elect
to make the look-back year calculation for a determination on the
basis of the calendar year ending with or within the applicable
determination year, as prescribed by Section 414(q) of the Code and
the regulations issued thereunder.
A highly compensated former Employee includes any Employee who
separated from service (or was deemed to have separated) prior to
the determination year, performs no service for the Employer during
the determination year, and was a highly compensated active Employee
for either the separation year or any determination year ending on
or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back
year, a family member of either a 5-percent owner who is an active
or former Employee or a highly compensated Employee who is one of
the 10 most highly compensated Employees ranked on the basis of
compensation paid by the Employer during such year, then the family
member and the 5-percent owner or top-ten highly compensated
Employee shall be aggregated. In such case, the family member and
5-percent owner or top-ten highly compensated Employee shall be
treated as a single Employee receiving compensation and plan
contributions or benefits equal to the sum of such compensation and
contributions or benefits of the family member and 5-percent owner
or top-ten highly compensated Employee. For purposes of this
Section, family member includes the spouse, lineal ascendants and
descendants of the Employee or former Employee and the spouses of
such lineal ascendants and descendants.
The determination of who is a highly compensated Employee,
including the determinations of the number and identity of Employees
in the top-paid group, the top 100 Employees, the number of
Employees treated as officers, and the compensation that is
considered, will be made in accordance with Section 414(q) of the
Code and the regulations thereunder.
(17) "Hour of Service" means, with respect to any Employee,
(A) Each hour for which the Employee is directly or indirectly
paid, or entitled to payment, for the performance of duties
for the Employer or a Related Employer, each such hour to be
credited to the Employee for the Eligibility Computation
Period in which the duties were performed;
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32
(B) Each hour for which the Employee is directly or indirectly
paid, or entitled to payment, by the Employer or Related
Employer (including payments made or due from a trust fund or
insurer to which the Employer contributes or pays premiums) on
account of a period of time during which no duties are
performed (irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness, incapacity,
disability, layoff, jury duty, military duty, or leave of
absence, each such hour to be credited to the Employee for the
Eligibility Computation Period in which such period of time
occurs, subject to the following rules:
(i) No more than 501 Hours of Service shall be credited
under this paragraph (B) on account of any single
contin-uous period during which the Employee performs no
duties;
(ii) Hours of Service shall not be credited under this
paragraph (B) for a payment which solely reimburses the
Employee for medically-related expenses, or which is
made or due under a plan maintained solely for the
purpose of complying with applicable workmen's
compensation, unemployment compensation or disability
insurance laws; and
(iii) If the period during which the Employee performs
no duties falls within two or more Eligibility
Computation Periods and if the payment made on account
of such period is not calculated on the basis of units
of time, the Hours of Service credited with respect to
such period shall be allocated between not more than the
first two such Eligibility Computation Periods on any
reasonable basis consistently applied with respect to
similarly situated Employees; and
(C) Each hour not counted under paragraph (A) or (B) for which
back pay, irrespective of mitigation of damages, has been
either awarded or agreed to be paid by the Employer or a
Related Employer, shall be credited to the Employee for the
Eligibility Computation Period to which the award or agreement
pertains rather than the Eligibility Computation Period in
which the award agreement or payment is made.
For purposes of determining Hours of Service, Employees
of the Employer and of all Related Employers will be treated
as employed by a single employer. For purposes of paragraphs
(B) and (C) above, Hours of Service will be calculated in
accordance with the provisions of Section 2530.200b-2(b) of
the Department of Labor regulations, which are incorporated
herein by reference.
Solely for purposes of determining whether a break in
service for participation purposes has occurred in a
computation period, an individual who is absent from work for
maternity or paternity reasons shall receive credit for
6
33
the hours of service which would otherwise have been credited
to such individual but for such absence, or in any case in
which such hours cannot be determined, 8 hours of service per
day of such absence. For purposes of this paragraph, an
absence from work for maternity or paternity reasons means an
absence (i) by reason of the pregnancy of the individual, (ii)
by reason of a birth of a child of the individual, (iii) by
reason of the placement of a child with the individual in
connection with the adoption of such child by such individual,
or (iv) for purposes of caring for such child for a period
beginning immediately following such birth or placement. The
hours of service credited under this paragraph shall be
credited (a) in the computation period in which the absence
begins if the crediting is necessary to prevent a break in
service in that period, or (b) in all other cases, in the
following computation period.
(18) "Leased Employee" means any individual who provides services to
the Employer or a Related Employer (the "recipient") but is not
otherwise an employee of the recipient if (A) such services are
provided pursuant to an agreement between the recipient and any
other person (the "leasing organization"), (B) such individual has
performed services for the recipient (or for the recipient and any
related persons within the meaning of Section 414(n)(6) of the Code)
on a substantially full-time basis for at least one year, and (C)
such services are of a type historically performed by employees in
the business field of the recipient.
(19) "Normal Retirement Age" means the normal retirement age
specified in Section 1.06(a) of the Adoption Agreement. If the
Employer enforces a mandatory retirement age, the Normal Retirement
Age is the lesser of that mandatory age or the age specified in
Section 1.06(a).
(20) "Owner-Employee" means, if the Employer is a sole
proprietorship, the individual who is the sole proprietor, or if the
Employer is a partnership, a partner who owns more than 10 percent
of either the capital interest or the profits interest of the
partnership.
(21) "Participant" means any Employee who participates in the Plan
in accordance with Article 3 hereof.
(22) "Plan" means the plan established by the Employer in the form
of the prototype plan, as set forth herein as a new plan or as an
amendment to an existing plan, by executing the Adoption Agreement,
together with any and all amendments hereto.
(23) "Plan Year" means the 12-consecutive-month period ending on the
date designated by the Employer in Section 1.01(f).
(24) "Prototype Sponsor" means Fidelity Management and Research
Company or its successor.
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34
(25) "Registered Investment Company" means any one or more
corporations, partnerships or trusts registered under the Investment
Company Act of 1940 for which Fidelity Management and Research
Company serves as investment advisor.
(26) "Related Employer" means any employer other than the Employer
named in Section 1.02(a) if the Employer and such other employer are
members of a controlled group of corporations (as defined in Section
414(b) of the Code) or an affiliated service group (as defined in
Section 414(m)), or are trades or businesses (whether or not
incorporated) which are under common control (as defined in Section
414(c)), or such other employer is required to be aggregated with
the Employer pursuant to regulations issued under Section 414(o).
(27) "Self-Employed Individual" means an individual who has Earned
Income for the taxable year from the Employer or who would have had
Earned Income but for the fact that the trade or business had no net
profits for the taxable year.
(28) "Trust" means the trust created by the Employer in accordance
with the provisions of Section 14.01.
(29) "Trust Agreement" means the agreement between the Employer and
the Trustee, as set forth in Article 14, under which the assets of
the Plan are held, administered, and managed.
(30) "Trust Fund" means the property held in Trust by the Trustee
for the Accounts of the Participants and their Beneficiaries.
(31) "Trustee" means the Fidelity Management Trust Company, or its
successor.
(32) "Year of Service for Participation" means, with respect to any
Employee, an Eligibility Computation Period during which the
Employee has been credited with at least 1,000 Hours of Service. If
the Plan maintained by the Employer is the plan of a predecessor
employer, an Employee's Years of Service for Participation shall
include years of service with such predecessor employer. In any case
in which the Plan maintained by the Employer is not the plan
maintained by a predecessor employer, service for such predecessor
shall be treated as service for the Employer, to the extent provided
in Section 1.08.
(33) "Years of Service for Vesting" means, with respect to any
Employee, the number of whole years of his periods of service with
the Employer or a Related Employer (the elapsed time method to
compute vesting service), subject to any exclusions elected by the
Employer in Section 1.07(b). An Employee will receive credit for the
aggregate of all time period(s) commencing with the Employee's
Employment Commencement Date and ending on the date a break in
service begins, unless any such years are excluded by Section
1.07(b). An Employee will also receive credit for any period of
8
35
severance of less than 12 consecutive months. Fractional periods of
a year will be expressed in terms of days.
In the case of a Participant who has 5 consecutive 1-year
breaks in service, all years of service after such breaks in service
will be disregarded for the purpose of vesting the Employer-derived
account balance that accrued before such breaks, but both pre-break
and post-break service will count for the purposes of vesting the
Employer-derived account balance that accrues after such breaks.
Both accounts will share in the earnings and losses of the fund.
In the case of a Participant who does not have 5 consecutive
1-year breaks in service, both the pre-break and post-break service
will count in vesting both the pre-break and post-break
employer-derived account balance.
A break in service is a period of severance of at least 12
consecutive months. Period of severance is a continuous period of
time during which the Employee is not employed by the Employer. Such
period begins on the date the Employee retires, quits or is
discharged, or if earlier, the 12-month anniversary of the date on
which the Employee was otherwise first absent from service.
In the case of an individual who is absent from work for
maternity or paternity reasons, the 12-consecutive month period
beginning on the first anniversary of the first date of such absence
shall not constitute a break in service. For purposes of this
paragraph, an absence from work for maternity or paternity reasons
means an absence (A) by reason of the pregnancy of the individual,
(B) by reason of the birth of a child of the individual, (C) by
reason of the placement of a child with the individual in connection
with the adoption of such child by such individual, or (D) for
purposes of caring for such child for a period beginning immediately
following such birth or placement.
If the Plan maintained by the Employer is the plan of a
predecessor employer, an Employee's Years of Service for Vesting
shall include years of service with such predecessor employer. In
any case in which the Plan maintained by the Employer is not the
plan maintained by a predecessor employer, service for such
predecessor shall be treated as service for the Employer to the
extent provided in Section 1.08.
(b) Pronouns used in the Plan are in the masculine gender but include the
feminine gender unless the context clearly indicates otherwise.
Article 3. Participation.
3.01. Date of Participation. All Employees in the eligible class (as defined in
Section 1.03(a)(3)) who are in the service of the Employer on the Effective Date
will become Participants on the date elected by the Employer in Section 1.03(c).
Any other Employee will become a
9
36
Participant in the Plan as of the first Entry Date on which he first satisfies
the eligibility requirements set forth in Section 1.03(a). In the event that an
Employee who is not a member of an eligible class (as defined in Section
1.03(a)(3)) becomes a member of an eligible class, the individual shall
participate immediately if such individual had already satisfied the eligibility
requirements and would have otherwise previously become a Participant.
If an eligibility requirement other than one Year of Service is elected in
1.03(a)(1), an Employee may not be required to complete a minimum number of
Hours of Service before becoming a Participant. An otherwise eligible Employee
subject to a minimum months of service requirement shall become a Participant on
the first Entry Date following his completion of the required number of
consecutive months of employment measured from his Employment Commencement Date
to the coinciding date in the applicable following month. For purposes of
determining consecutive months of service, the Related Employer and predecessor
employer rules contained in Sections 2.01(a)(17) and 2.01(a)(32) shall apply.
3.02. Resumption of Participation Following Reemployment. If a Participant
ceases to be an Employee and thereafter returns to the employ of the Employer he
will be treated as follows:
(a) he will again become a Participant on the first date on which he
completes an Hour of Service for the Employer following his reemployment
and is in the eligible class of Employees as defined in Section
1.03(a)(3), and
(b) any distribution which he is receiving under the Plan will cease
except as otherwise required under Section 8.08.
3.03. Cessation or Resumption of Participation Following a Change in Status. If
any Participant continues in the employ of the Employer or Related Employer but
ceases to be a member of an eligible class as defined in Section 1.03(a)(3), the
individual shall continue to be a Participant for most purposes until the entire
amount of his benefit is distributed; however, the individual shall not be
entitled to receive an allocation of contributions or forfeitures during the
period that he is not a member of the eligible class. Such Participant shall
continue to receive credit for service completed during the period for purposes
of determining his vested interest in his Accounts. In the event that the
individual subsequently again becomes a member of an eligible class of
Employees, the individual shall resume full participation immediately upon the
date of such change in status.
3.04. Participation by Owner-Employee; Controlled Businesses. If the Plan
provides contributions or benefits for one or more Owner-Employees who control
both the trade or business with respect to which the Plan is established and one
or more other trades or businesses, the Plan and any plan established with
respect to such other trades or businesses must, when looked at as a single
plan, satisfy Sections 401(a) and 401(d) of the Code with respect to the
employees of this and all such other trades or businesses. If the Plan provides
contributions or benefits for one or more Owner-Employees who control one or
more
10
37
other trades or businesses, the Employees of each such other trade or business
must be included in a plan which satisfies Sections 401(a) and 401(d) of the
Code and which provides contributions and benefits not less favorable than
provided for Owner-Employees under the Plan.
If an individual is covered as an Owner-Employee under the plans of two or
more trades or businesses which are not controlled and the individual controls a
trade or business, then the contributions or benefits of the Employees under the
plan of the trades or businesses which are controlled must be as favorable as
those provided for him under the most favorable plan of the trade or business
which is not controlled.
For purposes of this Section, an Owner-Employee, or two or more
Owner-Employees, shall be considered to control a trade or business if such
Owner-Employee, or such Owner-Employees together, (a) own the entire interest in
an unincorporated trade or business or (b) in the case of a partnership, own
more than 50 percent of either the capital interest or the profits interest in
such partnership. For this purpose, an Owner-Employee, or two or more
Owner-Employees, shall be treated as owning any interest in a partnership which
is owned, directly or indirectly, by a partnership controlled by such
Owner-Employee or such Owner-Employees.
3.05. Omission of Eligible Employee. If any Employee who should be included as a
Participant in the Plan is erroneously omitted and discovery of such omission is
not made until after a contribution by his Employer for the year has been made,
the Employer shall make a subsequent contribution, if necessary, so that the
omitted Employee receives the total amount which the said Employee would have
received had he not been omitted. For purposes of this Section 3.05, the term
"contribution" shall not include Deferral Contributions and Matching
Contributions made pursuant to Sections 4.01 and 4.03, respectively.
Article 4. Contributions.
4.01. Deferral Contributions.
(a) 4.01. If so provided by the Employer in Section 1.05(b), each
Participant may elect to execute a salary reduction agreement with the
Employer to reduce his Compensation by a specified percentage not
exceeding 15% per payroll period, subject to any exceptions elected by the
Employer in Section 1.05(b)(2) and 1.05(b)(3) and equal to a whole number
multiple of one (1) percent. Such agreement shall become effective on the
first day of the first payroll period for which the Employer can
reasonably process the request. The Employer shall make a Deferral
Contribution on behalf of the Participant corresponding to the amount of
said reduction, subject to the restrictions set forth below. Under no
circumstances may a salary reduction agreement be adopted retroactively.
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38
(b) A Participant may elect to change or discontinue the percentage by
which his Compensation is reduced by notice to the Employer as provided in
Section 1.05(b)(1).
(c) No Participant shall be permitted to have Deferral Contributions made
under the Plan, or any other qualified plan maintained by the Employer,
during the taxable year, in excess of the dollar limitation contained in
Section 402(g) of the Code in effect at the beginning of such taxable
year.
A Participant may assign to the Plan any Excess Deferrals made
during the taxable year of the Participant by notifying the Plan
Administrator on or before March 15 following the taxable year of the
amount of the Excess Deferrals to be assigned to the Plan. A Participant
is deemed to notify the Administrator of any Excess Deferrals that arise
by taking into account only those Deferral Contributions made to the Plan
and any other plan of the Employer. Notwithstanding any other provision of
the Plan, Excess Deferrals, plus any income and minus any loss allocable
thereto, shall be distributed no later than April 15 to any Participant to
whose Account Excess Deferrals were so assigned for the preceding year and
who claims Excess Deferrals for such taxable year.
"Excess Deferrals" shall mean those Deferral Contributions that are
includable in a Participant's gross income under Section 402(g) of the
Code to the extent such Participant's Deferral Contributions for a taxable
year exceed the dollar limitation under such Code section. For purposes of
determining Excess Deferrals, the term "Deferral Contributions" shall
include the sum of all Employer Contributions made on behalf of such
Participant pursuant to an election to defer under any qualified CODA as
described in Section 401(k) of the Code, any simplified employee pension
cash or deferred arrangement as described in Section 402(h)(1)(B) of the
Code, any eligible deferred compensation plan under Section 457 of the
Code, any plan as described under Section 501(c)(18) of the Code, and any
Employer Contributions made on the behalf of a Participant for the
purchase of an annuity contract under Section 403(b) of the Code pursuant
to a salary reduction agreement. Deferral Contributions shall not include
any deferrals properly distributed as excess annual additions. Excess
Deferrals shall be treated as annual additions under the Plan, unless such
amounts are distributed no later than the first April 15 following the
close of the Participant's taxable year.
Excess Deferrals shall be adjusted for any income or loss up to the
date of distribution. The income or loss allocable to Excess Deferrals is
(1) income or loss allocable to the Participant's Deferral Contributions
Account for the taxable year multiplied by a fraction, the numerator of
which is such Participant's Excess Deferrals for the year and the
denominator is the Participant's Account balance attributable to Deferral
Contributions without regard to any income or loss occurring during such
taxable year, or (2) such other amount determined under any reasonable
method, provided that such method is used consistently for all
Participants
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39
in calculating the distributions required under this Section 4.01(c) and
Sections 4.02(d) and 4.04(d) for the Plan Year, and is used by the Plan in
allocating income or loss to Participants' Accounts. Income or loss
allocable to the period between the end of the Plan Year and the date of
distribution shall be disregarded in determining income or loss.
(d) In order for the Plan to comply with the requirements of Sections
401(k), 402(g) and 415 of the Code and the regulations promulgated
thereunder, at any time in a Plan Year the Administrator may reduce the
rate of Deferral Contributions to be made on behalf of any Participant, or
class of Participants, for the remainder of that Plan Year, or the
Administrator may require that all Deferral Contributions to be made on
behalf of a Participant be discontinued for the remainder of that Plan
Year. Upon the close of the Plan Year or such earlier date as the
Administrator may determine, any reduction or discontinuance in Deferral
Contributions shall automatically cease until the Administrator again
determines that such a reduction or discontinuance of Deferral
Contributions is required.
4.02. Additional Limit on Deferral Contributions.
(a) The Actual Deferral Percentage (hereinafter "ADP") for Participants
who are Highly Compensated Employees for each Plan Year and the ADP for
participants who are Non-highly Compensated Employees for the same Plan
Year must satisfy one of the following tests:
(1) The ADP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ADP for Participants who are
Non-highly Compensated Employees for the same Plan Year multiplied
by 1.25; or
(2) The ADP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ADP for Participants who are
Non-highly Compensated Employees for the same Plan Year multiplied
by 2.0, provided that the ADP for Participants who are Highly
Compensated Employees does not exceed the ADP for Participants who
are Non-highly Compensated Employees by more than two (2) percentage
points.
(b) The following special rules apply for the purposes of this Section:
(1) The ADP for any Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Deferral Contributions
(and Qualified Discretionary Contributions if treated as Deferral
Contributions for purposes of the ADP test) allocated to his or her
accounts under two or more arrangements described in Section 401(k)
of the Code that are maintained by the Employer, shall be determined
as if such Deferral Contributions (and, if applicable, such
Qualified Discretionary Contributions) were made under a single
arrangement. If a
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40
Highly Compensated Employee participates in two or more cash or
deferred arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same calendar year
shall be treated as a single arrangement. Notwithstanding the
foregoing, certain plans shall be treated as separate if mandatorily
disaggregated under regulations under Section 401(k) of the Code.
(2) In the event that this Plan satisfies the requirements of
Sections 401(k), 401(a)(4), or 410(b) of the Code only if aggregated
with one or more other plans, or if one or more other plans satisfy
the requirements of such Sections of the Code only if aggregated
with this plan, then this Section shall be applied by determining
the ADP of Employees as if all such plans were a single plan. For
Plan Years beginning after December 31, 1989, plans may be
aggregated in order to satisfy section 401(k) of the Code only if
they have the same Plan Year.
(3) For purposes of determining the ADP of a Participant who is a
5-percent owner or one of the ten most highly-paid Highly
Compensated Employees, the Deferral Contributions (and Qualified
Discretionary Contributions if treated as Deferral Contributions for
purposes of the ADP test) and Compensation of such Participant shall
include the Deferral Contributions (and, if applicable, Qualified
Discretionary Contributions) and Compensation for the Plan Year of
Family Members (as defined in Section 414(q)(6) of the Code). Family
Members, with respect to between the end of the Plan Year and the
date of distribution shall be disregarded in determining income or
loss.
Excess Contributions shall be distributed from the Participant's
Qualified Discretionary Contribution account only to the extent that such
Excess Contributions exceed the balance in the Participant's Deferral
Contributions account.
(4) For purposes of determining the ADP test, Deferral Contributions
and Qualified Discretionary Contributions must be made before the
last day of the twelve-month period immediately following the Plan
Year to which contributions relate.
(5) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified
Discretionary Contributions used in such test.
(6) The determination and treatment of the ADP amounts of any
Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(c) The following definitions shall apply for purposes of this Section:
(1) "Actual Deferral Percentage" shall mean, for a specified group
of Participants for a Plan Year, the average of the ratios
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41
(calculated separately for each Participant in such group) of (A)
the amount of Employer contributions actually paid over to the Trust
on behalf of such Participant for the Plan Year to (B) the
Participant's Compensation for such Plan Year. Employer
contributions on behalf of any Participant shall include (i) any
Deferral Contributions made pursuant to the Participant's deferral
election, including Excess Deferrals of Highly Compensated
Employees, but excluding (a) Excess Deferrals of Non-highly
Compensated Employees that arise solely from Deferral Contributions
made under the Plan or plans of the Employer and (b) Deferral
Contributions that are taken into account in the Contribution
Percentage test (provided the ADP test is satisfied both with and
without exclusion of these Deferral Contributions) and (ii) at the
election of the Employer, Qualified Discretionary Contributions.
Matching Contributions, whether or not non-forfeitable when made,
shall not be considered as Employer Contributions for purposes of
this paragraph. For purposes of computing Actual Deferral
Percentages, an Employee who would be a Participant but for the
failure to make Deferral Contributions shall be treated as a
Participant on whose behalf no Deferral Contributions are made.
(2) "Excess Contributions" shall mean, with respect to any Plan
Year, the excess of
(a) The aggregate amount of Employer contributions actually
taken into account in computing the ADP of Highly Compensated
Employees for such Plan Year, over
(b) The maximum amount of such contributions permitted by the
ADP test (determined by reducing contributions made on behalf
of Highly Compensated Employees in order of the ADPs,
beginning with the highest of such percentages).
(3) "Qualified Discretionary Contributions" shall mean contributions
made by the Employer as elected in Section 1.05(b)(4) and allocated
to Participant Accounts of Non-highly Compensated Employees that
such Participants may not elect to receive in cash until distributed
from the Plan, that are nonforfeitable when made, and that are
distributable only in accordance with the distribution provisions
that are applicable to Deferral Contributions. Participants shall
not be required to satisfy any hours of service or employment
requirement in order to receive an allocation of such contributions.
(d) Notwithstanding any other provision of this Plan, Excess
Contributions, plus any income and minus any loss allocable thereto, shall
be distributed no later than the last day of each Plan Year to
Participants to whose Accounts such Excess Contributions were allocated
for the preceding Plan Year. If such excess amounts are distributed more
than 2 1/2 months after the last day of the Plan Year in which such excess
amounts arose, a ten- (10-) percent excise tax will be imposed on the
Employer maintaining the Plan with respect to such amounts. Such
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42
distributions shall be made to Highly Compensated Employees on the basis
of the respective portions of the Excess Contributions attributable to
each of such employees. Excess Contributions of Participants who are
subject to the family member aggregation rules of Section 414(q)(6) of the
Code shall be allocated among the family members in proportion to the
Deferral Contributions (and amounts treated as Deferral Contributions) of
each family member that is combined to determine the combined ADP.
Excess Contributions shall be treated as annual additions under the Plan.
Excess Contributions shall be adjusted for any income or loss up to the
date of distribution. The income or loss allocable to Excess Contributions
is (1) income or loss allocable to the Participant's Deferral Contribution
Account (and if applicable, the Qualified Discretionary Contribution
Account) for the Plan Year multiplied by a fraction, the numerator of
which is such Participant's Excess Contributions for the year and the
denominator is the Participant's Account balance attributable to Deferral
Contributions without regard to any income or loss occurring during such
Plan Year, or (2) an amount determined under any reasonable method,
provided that such method is used consistently for all Participants in
calculating any distributions required under Section 4.02(d) and Sections
4.01(c) and 4.04(d) for the Plan Year, and is used by the Plan in
allocating income or loss to the Participants' Accounts. Income or loss
allocable to the period between the end of the Plan Year and the date of
distibution shall be disregarded in determining income or loss.
Excess Contributions shall be distributed from the Participant's Qualified
Discretionary Contribution Account only to the extent that such Excess
Contributions exceed the balance in the Participant's Deferral
Contributions Account.
4.03 Matching Contributions: If so provided by the Employer in Section 1.05(c),
the Employer shall make a Matching Contribution on behalf of each Participant
who had Deferral Contributions made on his behalf during the year and who meets
the requirement, if any, of Section 1.05(c)(4). The amount of the Matching
Contribution shall be determined in accordance with Section 1.05(c), subject to
the limitations set forth in Section 4.04 and Section 404 of the Code. Matching
Contributions will not be allowed to be made by the Employer on any voluntary
non-deductible Employee Contributions.
4.04 Limit on Matching Contributions and Employee Contributions:
(a) The Average Contribution Percentage (hereinafter "ACP") for
Participants who are Highly Compensated Employees for each Plan Year and
the ACP for Participants who are Non-highly Compensated Employees for the
same Plan Year must satisfy one of the following tests:
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43
(1) The ACP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ACP for Participants who are
Non-highly Compensated Employees for the same Plan Year multiplied
by 1.25; or
(2) The ACP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ACP for Participants who are
Non-highly Compensated Employees for the same Plan Year multiplied
by two (2), provided that the ACP for Participants who are Highly
Compensated Employees does not exceed the ACP for Participants who
are Non-highly Compensated Employees by more than two (2) percentage
points.
(b) The following special rules apply for purposes of this section:
(1) If one or more Highly Compensated Employees participate in both
a qualified cash or deferred arrangement described in Section 401(k)
of the Code (hereafter "CODA") and a plan subject to the ACP test
maintained by the Employer and the sum of the ADP and ACP of those
Highly Compensated Employees subject to either or both tests exceeds
the Aggregate Limit, then the ACP of those Highly Compensated
Employees who also participate in a CODA will be reduced (beginning
with such Highly Compensated Employee whose ACP is the highest) so
that the limit is not exceeded. The amount by which each Highly
Compensated Employee's Contribution Percentage Amounts is reduced
shall be treated as an Excess Aggregate Contribution. The ADP and
ACP of the Highly Compensated Employees are determined after any
corrections required to meet the ADP and ACP tests. Multiple use
does not occur if either the ADP or ACP of the Highly Compensated
Employees does not exceed 1.25 multiplied by the ADP and ACP of the
Non-highly Compensated Employees.
(2) For purposes of this section, the Contribution Percentage for
any Participant who is a Highly Compensated Employee and who is
eligible to have Contribution Percentage Amounts allocated to his or
her account under two or more plans described in section 401(a) of
the Code, or arrangements described in section 401(k) of the Code
that are maintained by the Employer, shall be determined as if the
total of such Contribution Percentage Amounts was made under each
plan. If a Highly Compensated Employee participates in two or more
cash or deferred arrangements that have different plan years, all
cash or deferred arrangements ending with or within the same
calendar year shall be treated as a single arrangement.
Notwithstanding the foregoing, certain plans shall be treated as
separate if mandatorily disaggregated under regulations under
Section 401(m) of the Code.
(3) In the event that this Plan satisfies the requirements of
Sections 401(m), 401(a)(4) or 410(b) of the Code only if aggregated
with one or more other plans, or if one or more other plans satisfy
the requirements of such sections of the Code only
17
44
if aggregated with this Plan, then this section shall be applied by
determining the Contribution Percentage of Employees as if all such
plans were a single plan. For plan years beginning after December
31, 1989, plans may be aggregated in order to satisfy Section 401(m)
of the Code only if they have the same Plan Year.
(4) For purposes of determining the Contribution percentage of a
Participant who is a five-percent owner or one of the ten most
highly-paid Highly Compensated Employees, the Contribution
Percentage Amounts and Compensation of such Participant shall
include the Contribution Percentage Amounts and Compensation for the
Plan Year of family members (as defined in Section 414(q)(6) of the
Code). Family members, with respect to Highly Compensated Employees,
shall be disregarded as separate Employees in determining the
Contribution Percentage both for Participants who are Non-highly
Compensated Employees and for Participants who are Highly
Compensated Employees.
(5) For purposes of determining the Contribution Percentage test,
Employee Contributions made pursuant to Section 1.05(d)(1) are
considered to have been made in the Plan Year in which contributed
to the Trust. Matching Contributions and Qualified Discretionary
Contributions will be considered made for a Plan Year if made no
later than the end of the twelve-month period beginning on the day
after the close of the Plan Year.
(6) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified
Discretionary Contributions used in such test.
(7) The determination and treatment of the Contribution Percentage
of any Participant shall satisfy such other requirements as may be
prescribed by the Secretary of Treasury.
(c) The following definitions shall apply for purposes of this Section:
(1) "Aggregate Limit" shall mean the greater of (A) or (B) where (A)
is the sum of (i) 125 percent of the greater of the ADP of the
Non-highly Compensated Employees for the Plan Year or the ACP of
Non-highly Compensated Employees under the Plan subject to Section
401(m) of the Code for the Plan Year beginning with or within the
Plan Year of the CODA and (ii) the lesser of 200% or two plus the
lesser of such ADP or ACP and where (B) is the sum of (i) 125
percent of the lesser of the ADP of the Non-highly Compensated
Employees for the Plan Year or the ACP of Non-highly Compensated
Employees under the Plan subject to Section 401(m) of the Code for
the Plan Year beginning with or within the Plan Year of the CODA and
(ii) the lesser of 200% or two plus the greater of such ADP or ACP.
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45
(2) "Average Contribution Percentage" or "ACP" shall mean the
average of the Contribution Percentages of the Eligible Participants
in a group.
(3) "Contribution Percentage" shall mean the ratio (expressed as a
percentage) of the Participant's Contribution Percentage Amounts to
the Participant's Compensation for the Plan Year.
(4) "Contribution Percentage Amounts" shall mean the sum of the
Employee Contributions and Matching Contributions made under the
plan on behalf of the Participant for the Plan Year. Such
Contribution Percentage Amounts shall not include Matching
Contributions that are forfeited either to correct Excess Aggregate
Contributions or because the contributions to which they relate are
Excess Deferrals, Excess Contributions or Excess Aggregate
Contributions. If so elected by the Employer in Section 1.05(b)(4),
the Employer may include Qualified Discretionary Contributions in
the Contribution Percentage Amounts. The Employer also may elect to
use Deferral Contributions in the Contribution Percentage Amounts so
long as the ADP test is met before the Deferral Contributions are
used in the ACP test and continues to be met following the exclusion
of those Deferral Contributions that are used to meet the ACP test.
(5) "Deferral Contribution" shall mean any contribution made at the
election of the Participant pursuant to a salary reduction agreement
in accordance with Section 4.01(a).
(6) "Eligible Participant" shall mean any Employee who is eligible
to make an Employee Contribution, or a Deferral Contribution (if the
Employer takes such contributions into account in the calculation of
the Contribution Percentage), or to receive a Matching Contribution.
(7) "Employee Contribution" shall mean any voluntary non-deductible
contribution made to the plan by or on behalf of a Participant that
is included in the Participant's gross income in the year in which
made and that is maintained in a separate Account to which earnings
and losses are allocated.
(8) "Matching Contribution" shall mean an Employer contribution made
to this or any other defined contribution plan on behalf of a
Participant on account of a Participant's Deferral Contribution.
(9) "Excess Aggregate Contributions" shall mean, with respect to any
Plan Year, the excess of
(A) The aggregate Contribution Percentage Amounts taken into
account in computing the numerator of the Contribution
Percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over
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46
(B) The maximum Contribution Percentage Amounts permitted by
the ACP test (determined by reducing contributions made on
behalf of Highly Compensated Employees in the order of their
Contribution Percentages beginning with the highest of such
percentages).
Such determination shall be made after first determining
Excess Deferrals pursuant to Section 4.01 and then determining
Excess Contributions pursuant to Section 4.02.
(d) Notwithstanding any other provision of the Plan, Excess Aggregate
Contributions, plus any income and minus any loss allocable thereto, shall
be forfeited, if forfeitable, or if not forfeitable, distributed no later
than the last day of each Plan Year to Participants to whose Accounts such
Excess Aggregate Contributions were allocated for the preceding Plan Year.
Excess Aggregate Contributions of Participants who are subject to the
family member aggregation rules of Section 414(q)(6) of the Code shall be
allocated among the family members in proportion to the Employee and
Matching Contributions of each family member that is combined to determine
the combined ACP. If such Excess Aggregate Contributions are distributed
more than 2 1/2 months after the last day of the Plan Year in which such
excess amounts arose, a ten (10) percent excise tax will be imposed on the
employer maintaining the Plan with respect to those amounts. Excess
Aggregate Contributions shall be treated as annual additions under the
Plan.
Excess Aggregate Contributions shall be adjusted for any income or
loss up to the date of distribution. The income or loss allocable to
Excess Aggregate Contributions is (1) income or loss allocable to the
Participant's Employee Contribution Account, Matching Contribution Account
(if any, and if all amounts therein are not used in the ADP test) and if
applicable, Qualified Non-elective Contribution Account for the Plan Year
multiplied by a fraction, the numerator of which is such Participant's
Excess Aggregate Contributions for the year and the denominator is the
Participant's Account balance(s) attributable to Contribution Percentage
Amounts without regard to income or loss occurring during such Plan Year,
or (2) such other amount determined under any reasonable method, provided
that such method is used consistently for all Participants in calculating
any distributions required under Section 4.04(d) and Sections 4.01(c) and
4.02(d) for the Plan Year, and is used by the Plan in allocating income or
loss to the Participants' Accounts. Income or loss allocable to the period
between the end of the Plan Year and the date of distribution shall be
disregarded in determining income or loss.
Forfeitures of Excess Aggregate Contributions shall be applied to
reduce Employer contributions; the forfeitures shall be held in the money
market fund, if any, listed in Section 1.14(b) pending such application.
Excess Aggregate Contributions shall be forfeited, if forfeitable,
or distributed on a prorata basis from the
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47
Participant's Employee Contribution Account, Matching Contribution Account
and if applicable, the Participant's Deferral Contributions Account or
Qualified Discretionary Contribution Account or both.
4.05. Special Rules. Deferral Contributions and Qualified Discretionary
Contributions and income allocable to each are not distributable to a
Participant or his or her Beneficiary or Beneficiaries, in accordance with such
Participant's or beneficiary's or beneficiaries' election, earlier than upon
separation from service, death, or disability, except as otherwise provided in
Section 7.10, 7.11 or 10.06. Such amounts may also be distributed, but after
March 31, 1988, in the form of a lump sum only, upon
(a) Termination of the Plan without establishment of another defined
contribution plan, other than an employee stock ownership plan (as defined
in Section 4975(e) or Section 409 of the Code) or a simplified employee
pension plan as defined in Section 408(k) of the Code.
(b) The disposition by a corporation to an unrelated corporation of
substantially all of the assets (within the meaning of Section 409(d)(2)
of the Code) used in a trade or business of such corporation if such
corporation continues to maintain this Plan after the disposition, but
only with respect to Employees who continue employment with the
corporation acquiring such assets.
(c) The disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary (within the meaning of Section
409(d)(2) of the Code) if such corporation continues to maintain this
Plan, but only with respect to Employees who continue employment with such
subsidiary.
The Participant's accrued benefit derived from Deferral Contributions,
Qualified Discretionary Contributions and Employee Contributions (as defined in
Section 4.09) is nonforfeitable. Separate Accounts for Deferral Contributions,
Qualified Discretionary Contributions, Employee Contributions and Matching
Contributions will be maintained for each Participant. Each Account will be
credited with the applicable contributions and earnings thereon.
4.06. Fixed/Discretionary Employer Contributions. If so provided by the Employer
in Sections 1.05(a)(1) or 1.05(a)(2), for the Plan Year in which the Plan is
adopted and for each Plan Year thereafter, the Employer will make Fixed or
Discretionary Employer contributions to the Trust in accordance with Section
1.05 to be allocated as follows:
(a) Fixed Employer contributions shall be allocated among eligible
Participants (as determined in accordance with Section 1.05(a)(3)) in the
manner specified in Section 1.05(a).
(b) Discretionary Employer contributions shall be allocated among
eligible Participants, as determined in accordance with Section
1.05(a)(3), as follows:
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48
(1) If the Non-Integrated Formula is elected in Section
1.05(a)(2)(A), such contributions shall be allocated to
eligible Participants in the ratio that each Participant's
Compensation bears to the total Compensation paid to all
eligible Participants for the Plan Year; or
(2) If the Integrated Formula is elected in Section
1.05(a)(2)(B), such contributions shall be allocated in the
following steps:
(A) First, to each eligible Participant in the same
ratio that the sum of the Participant's Compensation and
Excess Compensation for the Plan Year bears to the sum
of the Compensation and Excess Compensation of all
Participants for the Plan Year. This allocation as a
percentage of the sum of each Participant's Compensation
and Excess Compensation shall not exceed 5.7%.
(B) Any remaining Discretionary Employer Contribution
shall be allocated to each eligible Participant 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.
For purposes of this Section, "Excess Compensation" means
Compensation in excess of the taxable wage base, as determined
under Section 230 of the Social Security Act, in effect on the
first day of the Plan Year. Further, this Section 4.06(b)(2)
shall be modified as provided in Section 9.03 for years in
which the Plan is top heavy under Article 9.
4.07. Time of Making Employer Contributions. The Employer will pay its
contribution for each Plan Year not later than the time prescribed by law for
filing the Employer's federal income tax return for the fiscal (or taxable) year
with or within which such Plan Year ends (including extensions thereof). The
Trustee will have no authority to inquire into the correctness of the amounts
contributed and paid over to the Trustee, to determine whether any contribution
is payable under this Article 4, or to enforce, by suit or otherwise, the
Employer's obligation, if any, to make a contribution to the Trustee.
4.08. Return of Employer Contributions. The Trustee shall, upon request by the
Employer, return to the Employer the amount (if any) determined under Section
14.22. Such amount shall be reduced by amounts attributable thereto which have
been credited to the Accounts of Participants who have since received
distributions from the Trust, except to the extent such amounts continue to be
credited to such Participants' Accounts at the time the amount is returned to
the Employer. Such amount shall also be reduced by the losses of the Trust
attributable thereto, if and to the extent such losses exceed the gains and
income attributable thereto, but will not be increased by the gains and income
of the Trust
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attributable thereto, if and to the extent such gains and income exceed the
losses attributable thereto. In no event will the return of a contribution
hereunder cause the balance of the individual Account of any Participant to be
reduced to less than the balance which would have been credited to the Account
had the mistaken amount not been contributed.
4.09. Employee Contributions. If the Employer elected to permit Deferral
Contributions in Section 1.05(b) and if so provided by the Employer in Section
1.05(d), each Participant may elect to make Employee Contributions to the Plan
in accordance with the rules and procedures established by the Employer and in
an amount not less than one percent (1%) and not greater than ten percent (10%)
of such Participant's Compensation for the Plan Year. Such contributions and all
Employee Contributions for Plan Years beginning after December 31, 1986, shall
be subject to the nondiscrimination requirements of Section 401(m) of the Code
as set forth in Section 4.04.
For purposes of this Plan, "Employee Contributions" shall mean any
voluntary non-deductible contribution made to a plan by or on behalf of a
Participant that is or was included in the Participant's gross income in the
year in which made and that is maintained under a separate account to which
applicable earnings and losses are allocated. Excess Contributions may not be
recharacterized as Employee Contributions.
Employee Contributions shall be paid over to the Trustee not later than
thirty (30) days following the end of the month in which the Participant makes
the contribution. A Participant shall have a fully vested 100% nonforfeitable
right to his Employee Contributions and the earnings or losses allocated
thereon. Distributions of Employee Contributions shall be made in accordance
with Section 7.10.
4.10. Rollover Contributions.
(a) Rollover of Eligible Rollover Distributions
(1) An Employee who is or was a distributee of an "eligible rollover
distribution"(as defined in Section 402(c)(4) of the Code and the
regulations issued thereunder) from a qualified plan may directly
transfer all or any portion of such distribution to the Trust or
transfer all or any portion of such distribution to the Trust within
sixty (60) days of payment. The transfer shall be made in the form
of cash or allowable Fund Shares only.
(2) The Employer may refuse to accept rollover contributions or
instruct the Trustee not to accept rollover contributions under the
Plan.
(b) Treatment of Rollover Amount.
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(1) An account will be established for the transferring Employee
under Article 5, the rollover amount will be credited to the account
and such amount will be subject to the terms of the Plan, including
Section 8.01, except as otherwise provided in this Section 4.10.
(2) The rollover account will at all times be fully vested in and
nonforfeitable by the Employee.
(c) Entry into Plan by Transferring Employee. Although an amount may be
transferred to the Trust Fund under this Section 4.10 by an Employee who
has not yet become a Participant in accordance with Article 3, and such
amount is subject to the terms of the Plan as described in paragraph (b)
above, the Employee will not become a Participant entitled to share in
Employer contributions until he has satisfied such requirements.
(d) Monitoring of Rollovers.
(1) The Administrator shall develop such procedures and require such
information from transferring Employees as it deems necessary to
insure that amounts transferred under this Section 4.10 meet the
requirements for tax-free rollovers established by such Section and
by Section 402(c) of the Code. No such amount may be transferred
until approved by the Administrator.
(2) If a transfer made under this Section 4.10 is later determined
by the Administrator not to have met the requirements of this
Section or of the Code or Treasury regulations, the Trustee shall,
within a reasonable time after such determination is made, and on
instructions from the Administrator, distribute to the Employee the
amounts then held in the Trust attributable to the transferred
amount.
4.11. Deductible Voluntary Employee Contributions. The Administrator will not
accept deductible Employee Contributions which are made for a taxable year
beginning after December 31, 1986. Contributions made prior to that date will be
maintained in a separate Account which will be nonforfeitable at all times and
which will share in the gains and losses of the trust in the same manner as
described in Section 5.02. No part of the deductible voluntary contribution
Account will be used to purchase life insurance. Subject to Article 8, the
Participant may withdraw any part of the deductible voluntary contribution
Account upon request.
4.12. Additional Rules for Paired Plans. If the Employer has adopted a qualified
plan under Fidelity Basic Plan Document No. 09 which is to be considered as a
paired plan with this Plan, the elections in Section 1.03 must be identical to
the Employer's corresponding elections for the other plan. When the paired plans
are top-heavy or are deemed to be top-heavy as provided in Section 9.01, the
plan paired with this Plan will provide a minimum contribution to each non-key
Employee which is equal to 3 percent (or such other percent elected by the
Employer in Section 1.12(c)) of such Employee's Compensation. Notwithstanding
the
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preceding sentence, the minimum contribution shall be provided by this Plan if
contributions under the other plan paired with this Plan are frozen.
Article 5. Participants' Accounts.
5.01. Individual Accounts. The Administrator will establish and maintain an
Account for each Participant which will reflect Employer and Employee
Contributions made on behalf of the Participant and earnings, expenses, gains
and losses attributable thereto, and investments made with amounts in the
Participant's Account. The Administrator will establish and maintain such other
accounts and records as it decides in its discretion to be reasonably required
or appropriate in order to discharge its duties under the Plan.
5.02. Valuation of Accounts. Participant Accounts will be valued at their fair
market value at least annually as of a date specified by the Administrator in
accordance with a method consistently followed and uniformly applied, and on
such date earnings, expenses, gains and losses on investments made with amounts
in each Participant's Account will be allocated to such Account. Participants
will be furnished statements of their Account values at least once each Plan
Year.
5.03. Code Section 415 Limitations. Notwithstanding any other provisions of the
Plan:
Subsections (a)(1) through (a)(4)--(These subsections apply to Employers
who do not maintain any qualified plan, including a Welfare Benefit Fund, an
Individual Medical Account, or a simplified employee pension in addition to this
Plan.)
(a)(1) If the Participant does not participate in, and has never
participated in any other qualified plan, Welfare Benefit Fund, Individual
Medical Account, or a simplified employee pension, as defined in section
408(k) of the Code, maintained by the Employer, which provides an annual
addition as defined in Section 5.03(e)(1), the amount of Annual Additions
to a Participant's Account for a Limitation Year shall not exceed the
lesser of the Maximum Permissible Amount or any other limitation contained
in this Plan. If the Employer contribution that would otherwise be
contributed or allocated to the Participant's Account would cause the
Annual Additions for the Limitation Year to exceed the Maximum Permissible
Amount, the amount contributed or allocated will be reduced so that the
Annual Additions for the Limitation Year will equal the Maximum
Permissible Amount.
(a)(2) Prior to the determination of the Participant's actual Compensation
for a Limitation Year, the Maximum Permissible Amount may be determined on
the basis of a reasonable estimation of the Participant's compensation for
such Limitation Year, uniformly determined for all Participants similarly
situated. Any Employer contributions based on estimated annual
compensation shall be reduced by any Excess Amounts carried over from
prior years.
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(a)(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for such Limitation Year
shall be determined on the basis of the Participant's actual Compensation
for such Limitation Year.
(a)(4) If, pursuant to subsection (a)(3) or as a result of the allocation
of forfeitures or a reasonable error in determining the total Elective
Deferrals there is an Excess Amount with respect to a Participant for a
Limitation Year, such Excess Amount shall be disposed of as follows:
(A) Any nondeductible voluntary employee contributions ("employee
contributions") or Elective Deferrals, to the extent they would reduce the
Excess Amount, will be returned to the Participant. Any gains attributable
to returned employee contributions will also be returned or will be
treated as additional employee contributions for the Limitation Year in
which the employee contributions were made.
(B) If after the application of paragraph (A) an Excess amount still
exists and the Participant is in the service of the Employer which is
covered by the Plan at the end of the Limitation Year, then such Excess
Amount shall be reapplied to reduce future Employer contributions under
this Plan for the next Limitation Year (and for each succeeding year, as
necessary) for such Participant, so that in each such Year the sum of
actual Employer contributions plus the reapplied amount shall equal the
amount of Employer contributions which would otherwise be made to such
Participant's Account.
(C) If after the application of paragraph (A) an Excess Amount still
exists and the Participant is not in the service of the Employer which is
covered by the Plan at the end of a Limitation Year, then such Excess
Amount will be held unallocated in a suspense account. The suspense
account will be applied to reduce future Employer contributions for all
remaining Participants in the next Limitation Year and each succeeding
Limitation Year if necessary.
(D) If a suspense account is in existence at any time during the
Limitation Year pursuant to this subsection, it will not participate in
the allocation of the Trust Fund's investment gains and losses. All
amounts in the suspense account must be allocated to the Accounts of
Participants before any Employer contribution may be made for the
Limitation Year. Except as provided in paragraph (A), Excess Amounts may
not be distributed to Participants or former Participants.
Subsections (b)(1) through (b)(6)--(These subsections apply to Employers
who, in addition to this Plan, maintain one or more plans, all of which are
qualified Master or Prototype defined contribution Plans, any Welfare Benefit
Fund, any Individual Medical Account, or any simplified employee pension.)
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(b)(1) If, in addition to this Plan, the Participant is covered under any
other qualified defined contribution plans (all of which are qualified
Master or Prototype Plans), Welfare Benefit Funds, Individual Medical
Accounts, or simplified employee pension Plans, maintained by the
Employer, that provide an annual addition as defined in Section
5.03(e)(1), the amount of Annual Additions to a Participant's Account for
a Limitation Year shall not exceed the lesser of
(A) the Maximum Permissible Amount, reduced by the sum of any Annual
Additions to the Participant's accounts for the same Limitation Year under
such other qualified Master or Prototype defined contribution plans, and
Welfare Benefit Funds, Individual Medical Accounts, and simplified
employee pensions, or
(B) any other limitation contained in this Plan.
If the annual additions with respect to the Participant under other
qualified Master or Prototype defined contribution Plans, Welfare Benefit
Funds, Individual Medical Accounts, and simplified employee pensions
maintained by the Employer are less than the maximum permissible amount
and the Employer contribution that would otherwise be contributed or
allocated to the Participant's account under this plan would cause the
annual additions for the limitation year to exceed this limitation, the
amount contributed or allocated will be reduced so that the annual
additions under all such plans and funds for the limitation year will
equal the maximum permissible amount. If the annual additions with respect
to the Participant under such other qualified Master or Prototype defined
contribution Plans, Welfare Benefit Funds, Individual Medical Accounts,
and simplified employee pensions in the aggregate are equal to or greater
than the maximum permissible amount, no amount will be contributed or
allocated to the Participant's account under this plan for the limitation
year.
(b)(2) Prior to the determination of the Participant's actual Compensation
for the Limitation Year, the amounts referred to in (b)(1)(A) above may be
determined on the basis of a reasonable estimation of the Participant's
compensation for such Limitation Year, uniformly determined for all
Participants similarly situated. Any Employer contribution based on
estimated annual compensation shall be reduced by any Excess Amounts
carried over from prior years.
(b)(3) As soon as is administratively feasible after the end of the
Limitation Year, the amounts referred to in (b)(1)(A) shall be determined
on the basis of the Participant's actual Compensation for such Limitation
Year.
(b)(4) If a Participant's Annual Additions under this Plan and all such
other plans result in an Excess Amount, such Excess Amount shall be deemed
to consist of the Annual Additions last allocated, except that Annual
Additions attributable to a simplified employee
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pension will be deemed to have been allocated first, followed by Annual
Additions to a Welfare Benefit Fund or Individual Medical Account
regardless of the actual allocation date.
(b)(5) If an Excess Amount was allocated to a Participant on an allocation
date of this Plan which coincides with an allocation date of another plan,
the Excess Amount attributed to this Plan will be the product of
(A) the total Excess Amount allocated as of such date (including any
amount which would have been allocated but for the limitations of
Section 415 of the Code), and
(B) the ratio of (i) the Annual Additions allocated to the
Participant as of such date under this Plan, and (ii) the Annual
Additions allocated as of such date under all qualified defined
contribution plans (determined without regard to the limitations of
Section 415 of the Code).
(b)(6) Any Excess Amounts attributed to this Plan shall be disposed of as
provided in subsection (a)(4).
Subsection (c)--(This subsection applies only to Employers who, in
addition to this Plan, maintain one or more qualified plans which are qualified
defined contribution plans other than Master or Prototype Plans.)
(c) If the Employer also maintains another plan which is a qualified
defined contribution plan other than a Master or Prototype Plan, Annual
Additions allocated under this Plan on behalf of any Participant shall be
limited in accordance with the provisions of (b)(1) through (b)(6), as
though the other plan were a Master or Prototype Plan, unless the Employer
provides other limitations in the Adoption Agreement.
Subsection (d)--(This subsection applies only to Employers who, in
addition to this Plan, maintain or at any time maintained a qualified defined
benefit plan.)
(d) If the Employer maintains, or at any time maintained, a qualified
defined benefit plan, the sum of any Participant's Defined Benefit
Fraction and Defined Contribution Fraction shall not exceed the combined
plan limitation of 1.0 in any Limitation Year. The combined plan
limitation will be met as provided by the Employer in the Adoption
Agreement.
Subsections (e)(1) through (e)(11)--(Definitions.)
(e)(1) "Annual Additions" means the sum of the following amounts credited
to a Participant for a Limitation Year:
(A) all Employer contributions,
(B) all Employee Contributions,
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(C) all forfeitures,
(D) amounts allocated, after March 31, 1984, to an Individual
Medical Account which is part of a pension or annuity plan
maintained by the Employer are treated as Annual Additions to a
defined contribution plan. Also, amounts derived from contributions
paid or accrued after December 31, 1985, in taxable years ending
after such date, which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee, as
defined in Section 419A(d)(3) of the Code, under a Welfare Benefit
Fund maintained by the Employer are treated as Annual Additions to a
defined contribution plan, and
(E) allocations under a simplified employee pension.
For purposes of this Section 5.03, amounts reapplied to reduce
Employer contributions under subsection (a)(4) shall also be included as
Annual Additions.
(e)(2) "Compensation" means wages as defined in Section 3401(a) of the
Code and all other payments of compensation to an employee by the employer
(in the course of the employer's trade or business) for which the employer
is required to furnish the employee a written statement under Sections
6041(d) and 6051(a)(3) of the Code. Compensation must be determined
without regard to any rules under Section 3401(a) of the Code that limit
the remuneration included in wages based on the nature or location of the
employment or the services performed (such as the exception for
agricultural labor in Section 3401(a)(2) of the Code.)
For any Self-Employed Individual compensation will mean Earned Income.
For limitation years beginning after December 31, 1991, for purposes of
applying the limitations of this article, compensation for a limitation
year is the compensation actually paid or made available during such
limitation year.
(e)(3) "Defined Benefit Fraction" means a fraction, the numerator of which
is the sum of the Participant's annual benefits (adjusted to an
actuarially equivalent straight life annuity if such benefit is expressed
in a form other than a straight life annuity or qualified joint and
survivor annuity) under all the defined benefit plans (whether or not
terminated) maintained by the Employer, each such annual benefit computed
on the assumptions that the Participant will remain in employment until
the normal retirement age under each such plan (or the Participant's
current age, if later) and that all other factors used to determine
benefits under such plan will remain constant for all future Limitation
Years, and the denominator of which is the lesser of 125 percent of the
dollar limitation determined for the Limitation Year under Sections
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415(b)(1)(A) and 415(d) of the Code or 140 percent of the Participant's
highest average Compensation for 3 consecutive calendar years of service
during which the Participant was active in each such plan, including any
adjustments under Section 415(b) of the Code. However, if the Participant
was a participant as of the first day of the first Limitation Year
beginning after December 31, 1986, in one or more defined benefit plans
maintained by the Employer which were in existence on May 6, 1986 then the
denominator of the Defined Benefit Fraction shall not be less than 125
percent of the Participant's total accrued benefit as of the close of the
last Limitation Year beginning before January 1, 1987, disregarding any
changes in the terms and conditions of the plan after May 5, 1986, under
all such defined benefit plans that met, individually and in the
aggregate, the requirements of Section 415 of the Code for all Limitation
Years beginning before January 1, 1987.
(e)(4) "Defined Contribution Fraction" means a fraction, the numerator of
which is the sum for the current and all prior Limitation Years of (A) all
Annual Additions (if any) to the Participant's accounts under each defined
contribution plan (whether or not terminated) maintained by the Employer
and (B) all Annual Additions attributable to the Participant's
nondeductible Employee Contributions to all defined benefit plans (whether
or not terminated) maintained by the Employer, and the Participant's
Annual Additions attributable to all Welfare Benefit Funds, Individual
Medical Accounts, and simplified employee pensions, maintained by the
Employer, and the denominator of which is the sum of the maximum aggregate
amounts for the current and all prior Limitation Years during which the
Participant was an Employee (regardless of whether the Employer maintained
a defined contribution plan in any such year).
The maximum aggregate amount in any Limitation Year is the lesser of
125 percent of the dollar limitation in effect under Section 415(c)(1)(A)
of the Code for each such year or 35 percent of the Participant's
Compensation for each such year.
If the Participant was a participant as of the first day of the
first Limitation Year beginning after December 31, 1986, in one or more
defined contribution plans maintained by the Employer which were in
existence on May 6, 1986, then the numerator of the Defined Contribution
Fraction shall be adjusted if the sum of this fraction and the Defined
Benefit Fraction would otherwise exceed 1.0 under the terms of this Plan.
Under the adjustment an amount equal to the product of (i) the excess of
the sum of the fractions over 1.0 and (ii) the denominator of this
fraction will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as they would
be computed as of the end of the last Limitation Year beginning before
January 1, 1987, and disregarding any changes in the terms and conditions
of the plan made after May 6, 1986, but using the Section 415 limitation
applicable to the first Limitation Year beginning on or after January 1,
1987.
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The annual addition for any limitation year beginning before January
1, 1987 shall not be recomputed to treat all employee contributions as
annual additions.
(e)(5) "Employer" means the Employer and any Related Employer that adopts
this Plan. In the case of a group of employers which constitutes a
controlled group of corporations (as defined in Section 414(b) of the Code
as modified by Section 415(h)) or which constitutes trades or businesses
(whether or not incorporated) which are under common control (as defined
in Section 414(c) of the Code as modified by Section 415(h) of the Code)
or which constitutes an affiliated service group (as defined in Section
414(m)of the Code) and any other entity required to be aggregated with the
Employer pursuant to regulations issued under Section 414(o) of the Code,
all such employers shall be considered a single employer for purposes of
applying the limitations of this Section 5.03.
(e)(6) "Excess Amount" means the excess of the Participant's Annual
Additions for the Limitation Year over the Maximum Permissible Amount.
(e)(7) "Individual Medical Account" means an individual medical account as
defined in Section 415(l)(2) of the Code.
(e)(8) "Limitation Year" means the Plan Year. All qualified plans of the
Employer must use the same Limitation Year. If the Limitation Year is
amended to a different 12-consecutive month period, the new Limitation
Year must begin on a date within the Limitation Year in which the
amendment is made.
(e)(9) "Master or Prototype Plan" means a plan the form of which is the
subject of a favorable opinion letter from the Internal Revenue Service.
(e)(10) "Maximum Permissible Amount" means for a Limitation Year with
respect to any Participant the lesser of (A) $30,000 or, if greater, 25
percent of the dollar limitation set forth in Section 415(b)(1) of the
Code, as in effect for the Limitation Year, or (B) 25 percent of the
Participant's Compensation for the Limitation Year. If a short Limitation
Year is created because of an amendment changing the Limitation Year to a
different 12-consecutive-month period, the Maximum Permissible Amount will
not exceed the limitation in (e)(10)(A) multiplied by a fraction whose
numerator is the number of months in the short Limitation Year and whose
denominator is 12.
The compensation limitation referred to in subsection (e)(10)(B)
shall not apply to any contribution for medical benefits within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code after
separation from service which is otherwise treated as an Annual Addition
under Section 419A(d)(2) or Section 415(l)(1) of the Code.
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(e)(11) "Welfare Benefit Fund" means a welfare benefit fund as defined in
Section 419(e) of the Code.
Article 6. Investment of Contributions.
6.01. Manner of Investment. All contributions made to the Accounts of
Participants shall be held for investment by the Trustee. The Accounts of
Participants shall be invested and reinvested only in eligible investments
selected by the Employer in Section 1.14(b), subject to Section 14.10.
6.02. Investment Decisions. Investments shall be directed by the Employer or by
each Participant or both, in accordance with the Employer's election in Section
1.14(a). Pursuant to Section 14.04, the Trustee shall have no discretion or
authority with respect to the investment of the Trust Fund.
(a) With respect to those Participant Accounts for which Employer
investment direction is elected, the Employer has the right to direct the
Trustee in writing with respect to the investment and reinvestment of
assets comprising the Trust Fund in the Fidelity Fund(s) designated in
Section 1.14(b) and as allowed by the Trustee.
(b) If Participant investment direction is elected, each Participant shall
direct the investment of his Account among the Fidelity Funds listed in
Section 1.14(b). The Participant shall file initial investment
instructions with the Administrator, on such form as the Administrator may
provide, selecting the Funds in which amounts credited to his Account will
be invested.
(1) Except as provided in this Section 6.02, only authorized Plan
contacts and the Participant shall have access to a Participant's
Account. While any balance remains in the Account of a Participant
after his death, the Beneficiary of the Participant shall make
decisions as to the investment of the Account as though the
Beneficiary were the Participant. To the extent required by a
qualified domestic relations order as defined in Section 414(p) of
the Code, an alternate payee shall make investment decisions with
respect to a Participant's Account as though such alternate payee
were the Participant.
(2) If the Trustee receives any contribution under the Plan as to
which investment instructions have not been provided, the Trustee
shall promptly notify the Administrator and the Administrator shall
take steps to elicit instructions from the Participant. The Trustee
shall credit any such contribution to the Participant's Account and
such amount shall be invested in the Fidelity Fund selected by the
Employer for such purposes or, absent Employer selection, in the
most conservative Fidelity Fund listed in Section 1.14(b), until
investment instructions have been received by the Trustee.
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(c) All dividends, interest, gains and distributions of any nature
received in respect of Fund Shares shall be reinvested in additional
shares of that Fidelity Fund.
(d) Expenses attributable to the acquisition of investments shall be
charged to the Account of the Participant for which such investment is
made.
6.03. Participant Directions to Trustee. All Participant initial investment
instructions filed with the Administrator pursuant to the provisions of Section
6.02 shall be promptly transmitted by the Administrator to the Trustee. A
Participant shall transmit subsequent investment instructions directly to the
Trustee by means of the telephone exchange system maintained by the Trustee for
such purposes. The method and frequency for change of investments will be
determined under the (a) rules applicable to the investments selected by the
Employer in Section 1.14(b) and (b) the additional rules of the Employer, if
any, limiting the frequency of investment changes, which are included in a
separate written administrative procedure adopted by the Employer and accepted
by the Trustee. The Trustee shall have no duty to inquire into the investment
decisions of a Participant or to advise him regarding the purchase, retention or
sale of assets credited to his Account.
Article 7. Right to Benefits.
7.01. Normal or Early Retirement. Each Participant who attains his Normal
Retirement Age or, if so provided by the Employer in Section 1.06(b), Early
Retirement Age, will have a 100-percent nonforfeitable interest in his Account
regardless of any vesting schedule elected in Section 1.07. If a Participant
retires upon the attainment of Normal or Early Retirement Age, such retirement
is referred to as a normal retirement. Upon his normal retirement the balance of
the Participant's Account, plus any amounts thereafter credited to his Account,
subject to the provisions of Section 7.08, will be distributed to him in
accordance with Article 8.
If a Participant separates from service before satisfying the age
requirements for early retirement, but has satisfied the service requirement,
the Participant will be entitled to elect an early retirement distribution upon
satisfaction of such age requirement.
7.02. Late Retirement. If a Participant continues in the service of the Employer
after attainment of Normal Retirement Age, he will continue to have a
100-percent nonforfeitable interest in his Account and will continue to
participate in the Plan until the date he establishes with the Employer for his
late retirement. Until he retires, he has a continuing election to receive all
or any portion of his Account. Upon the earlier of his late retirement or the
distribution date required under Section 8.08, the balance of his Account, plus
any amounts
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thereafter credited to his Account, subject to the provisions of Section 7.08,
will be distributed to him in accordance with Article 8 below.
7.03. Disability Retirement. If so provided by the Employer in Section 1.06(c),
a Participant who becomes disabled will have a 100-percent nonforfeitable
interest in his Account, the balance of which Account, plus any amounts
thereafter credited to his Account, subject to the provisions of Section 7.08,
will be distributed to him in accordance with Article 8 below. A Participant is
considered disabled if he cannot engage in any substantial, gainful activity
because of a medically determinable physical or mental impairment likely to
result in death or to be of a continuous period of not less than 12 months, and
terminates his employment with the Employer. Such termination of employment is
referred to as a disability retirement. Determinations with respect to
disability shall be made by the Administrator who may rely on the criteria set
forth in Section 1.06(c) as evidence that the Participant is disabled.
7.04. Death. Subject, if applicable, to Section 8.04, if a Participant dies
before the distribution of his Account has commenced, or before such
distribution has been completed, his Account shall become 100 percent vested and
his designated Beneficiary or Beneficiaries will be entitled to receive the
balance or remaining balance of his Account, plus any amounts thereafter
credited to his Account, subject to the provisions of Section 7.08. Distribution
to the Beneficiary or Beneficiaries will be made in accordance with Article 8.
A Participant may designate a Beneficiary or Beneficiaries, or change any
prior designation of Beneficiary or Beneficiaries by giving notice to the
Administrator on a form designated by the Administrator. If more than one person
is designated as the Beneficiary, their respective interests shall be as
indicated on the designation form. In the case of a married Participant, the
Participant's spouse shall be deemed to be the designated Beneficiary unless the
Participant's spouse has consented to another designation in the manner
described in Section 8.03(d).
A copy of the death notice or other sufficient documentation must be filed
with and approved by the Administrator. If upon the death of the Participant
there is, in the opinion of the Administrator, no designated Beneficiary for
part or all of the Participant's Account, such amount will be paid to his
surviving spouse or, if none, to his estate (such spouse or estate shall be
deemed to be the Beneficiary for purposes of the Plan). If a Beneficiary dies
after benefits to such Beneficiary have commenced, but before they have been
completed, and, in the opinion of the Administrator, no person has been
designated to receive such remaining benefits, then such benefits shall be paid
in a lump sum to the deceased Beneficiary's estate.
7.05. Other Termination of Employment. If a Participant terminates his
employment for any reason other than death or normal, late, or disability
retirement, he will be entitled to a termination benefit equal to the sum of (a)
the vested percentage(s) of the value of the Matching and/or Fixed/Discretionary
Contributions to his Account, as
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adjusted for income, expense, gain, or loss, such percentage(s) determined in
accordance with the vesting schedule(s) selected by the Employer in Section
1.07, and (b) the value of the Deferral, Employee, Qualified Discretionary and
Rollover Contributions to his Account as adjusted for income, expense, gain or
loss. The amount payable under this Section 7.05 will be subject to the
provisions of Section 7.08 and will be distributed in accordance with Article 8
below.
7.06. Separate Account. If a distribution from a Participant's Account has been
made to him at a time when he has a nonforfeitable right to less than 100
percent of his Account, the vesting schedule in Section 1.07 will thereafter
apply only to amounts in his Account attributable to Employer contributions
allocated after such distribution. The balance of his Account immediately after
such distribution will be transferred to a separate account which will be
maintained for the purpose of determining his interest therein according to the
following provisions.
At any relevant time prior to a forfeiture of any portion thereof under
Section 7.07, a Participant's nonforfeitable interest in his Account held in a
separate account described in the preceding paragraph will be equal to P(AB +
(RxD))-(RxD), where P is the nonforfeitable percentage at the relevant time
determined under Section 7.05; AB is the account balance of the separate account
at the relevant time; D is the amount of the distribution; and R is the ratio of
the account balance at the relevant time to the account balance after
distribution. Following a forfeiture of any portion of such separate account
under Section 7.07 below, any balance in the Participant's separate account will
remain fully vested and nonforfeitable.
7.07. Forfeitures. If a Participant terminates his employment, any portion of
his Account (including any amounts credited after his termination of employment)
not payable to him under Section 7.05 will be forfeited by him upon the complete
distribution to him of the vested portion of his Account, if any, subject to the
possibility of reinstatement as described in the following paragraph. For
purposes of this paragraph, if the value of an Employee's vested Account balance
is zero, the Employee shall be deemed to have received a distribution of his
vested interest immediately following termination of employment. Such
forfeitures will be applied to reduce the contributions of the Employer next
payable under the Plan (or administrative expenses of the Plan); the forfeitures
shall be held in a money market fund pending such application.
If a Participant forfeits any portion of his Account under the preceding
paragraph but again becomes an Employee after such date, then the amount so
forfeited, without any adjustment for the earnings, expenses, or losses or gains
of the assets credited to his Account since the date forfeited, will be
recredited to his Account (or to a separate account as described in Section
7.06, if applicable) but only if he repays to the Plan before the earlier of
five years after the date of his reemployment or the date he incurs 5
consecutive 1-year breaks in service following the date of the distribution the
amount previously distributed to him, without interest, under Section 7.05. If
an
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Employee is deemed to receive a distribution pursuant to this Section 7.07, and
the Employee resumes employment before 5 consecutive 1-year breaks in service,
the Employee shall be deemed to have repaid such distribution on the date of his
reemployment. Upon such an actual or deemed repayment, the provisions of the
Plan (including Section 7.06) will thereafter apply as if no forfeiture had
occurred. The amount to be recredited pursuant to this paragraph will be derived
first from the forfeitures, if any, which as of the date of recrediting have yet
to be applied as provided in the preceding paragraph and, to the extent such
forfeitures are insufficient, from a special Employer contribution to be made by
the Employer.
If a Participant elects not to receive the nonforfeitable portion of his
Account following his termination of employment, the non-vested portion of his
Account shall be forfeited after the Participant has incurred five consecutive
1-year breaks in service as defined in Section 2.01(a)(33).
No forfeitures will occur solely as a result of a Participant's withdrawal
of Employee contributions.
7.08. Adjustment for Investment Experience. If any distribution under this
Article 7 is not made in a single payment, the amount retained by the Trustee
after the distribution will be subject to adjustment until distributed to
reflect the income and gain or loss on the investments in which such amount is
invested and any expenses properly charged under the Plan and Trust to such
amounts.
7.09. Participant Loans. If permitted under Section 1.09, the Administrator
shall allow Participants to apply for a loan from the Plan, subject to the
following:
(a) Loan Application. All Plan loans shall be administered by the
Administrator. Applications for loans shall be made to the Administrator
on forms available from the Administrator. Loans shall be made available
to all Participants on a reasonably equivalent basis. For this purpose,
the term "Participant" means any Participant or Beneficiary, including an
alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, who is a party-in-interest (as determined
under ERISA Section 3(14)) with respect to the Plan except no loans will
be made to (1) an Employee who makes a rollover contribution in accordance
with Section 4.10 who has not satisfied the requirements of Section 3.01
or (2) a shareholder-employee or Owner-Employee. For purposes of this
requirement, a shareholder-employee means an employee or officer of an
electing small business (Subchapter S) corporation who owns (or is
considered as owning within the meaning of Section 318(a)(1) of the Code),
on any day during the taxable year of such corporation, more than 5% of
the outstanding stock of the corporation.
A Participant with an existing loan may not apply for another loan
until the existing loan is paid in full and may not refinance an existing
loan or attain a second loan for the purpose of paying
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off the existing loan. A Participant may not apply for more than one loan
during each Plan Year.
(b) Limitation of Loan Amount/Purpose of Loan. Loans shall not be made
available to Highly Compensated Employees in an amount greater than the
amount made available to other Employees. No loan to any Participant or
Beneficiary can be made to the extent that such loan when added to the
outstanding balance of all other loans to the Participant or Beneficiary
would exceed the lesser of (1) $50,000 reduced by the excess (if any) of
the highest outstanding balance of loans during the one-year period ending
on the day before the loan is made over the outstanding balance of loans
from the plan on the date the loan is made, or (2) one-half the present
value of the nonforfeitable Account of the Participant. For the purpose of
the above limitation, all loans from all plans of the Employer and Related
Employers are aggregated. A Participant may not request a loan for less
than $1,000. The Employer may provide that loans only be made from certain
contribution sources within Participant Account(s) by notifying the
Trustee in writing of the restricted source.
Loans may be made for any purpose or if elected by the Employer in
Section 1.09(a), on account of hardship only. A loan will be considered to
be made on account of hardship only if made on account of an immediate and
heavy financial need described in Section 7.10(b)(1).
(c) Terms of Loan. All loans shall bear a reasonable rate of interest as
determined by the Administrator based on the prevailing interest rates
charged by persons in the business of lending money for loans which would
be made under similar circumstances. The determination of a reasonable
rate of interest must be based on appropriate regional factors unless the
Plan is administered on a national basis in which case the Administrator
may establish a uniform reasonable rate of interest applicable to all
regions.
All loans shall by their terms require that repayment (principal and
interest) be amortized in level payments, not less than quarterly, over a
period not extending beyond five years from the date of the loan unless
such loan is for the purchase of a Participant's primary residence, in
which case the repayment period may not extend beyond ten years from the
date of the loan. A Participant may prepay the outstanding loan balance
prior to maturity without penalty.
(d) Security. Loans must be secured by the Participant's Accounts not to
exceed 50 percent of the Participant's vested Account. A Participant must
obtain the consent of his or her spouse, if any, to use a Participant
Account as security for the loan, if the provisions of Section 8.03 apply
to the Participant. Spousal consent shall be obtained no earlier than the
beginning of the 90-day period that ends on the date on which the loan is
to be so secured. The consent must be in writing, must acknowledge the
effect of the loan, and must be witnessed by a Plan representative
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or notary public. Such consent shall thereafter be binding with respect to
the consenting spouse or any subsequent spouse with respect to that loan.
(e) Default. The Administrator shall treat a loan in default if
(1) any scheduled repayment remains unpaid more than 90 days
or
(2) there is an outstanding principal balance existing on a loan
after the last scheduled repayment date.
Upon default or termination of employment, the entire outstanding
principal and accrued interest shall be immediately due and payable. If a
distributable event (as defined by the Code) has occurred, the
Administrator shall direct the Trustee to foreclose on the promissory note
and offset the Participant's vested Account by the outstanding balance of
the loan. If a distributable event has not occurred, the Administrator
shall direct the Trustee to foreclose on the promissory note and offset
the Participant's vested Account as soon as a distributable event occurs.
(f) Pre-existing loans. The provision in paragraph (a) of this Section
7.09 limiting a Participant to one outstanding loan shall not apply to
loans made before the Employer adopted this prototype plan document. A
Participant may not apply for a new loan until all outstanding loans made
before the Employer adopted this prototype plan have been paid in full.
The Trustee may accept any loans made before the Employer adopted this
prototype plan document except such loans which require the Trustee to
hold as security for the loan property other than the Participant's vested
Account.
As of the effective date of amendment of this Plan in Section
1.01(g)(2), the Trustee shall have the right to reamortize the outstanding
principal balance of any Participant loan that is delinquent. Such
reamortization shall be based upon the remaining life of the loan and the
original maturity date may not be extended.
Notwithstanding any other provision of this Plan, the portion of the
Participant's vested Account used as a security interest held by the plan
by reason of a loan outstanding to the Participant shall be taken into
account for purposes of determining the amount of the Account payable at
the time of death or distribution, but only if the reduction is used as
repayment of the loan. If less than 100% of the Participant's vested
Account (determined without regard to the preceding sentence) is payable
to the surviving spouse, then the Account shall be adjusted by first
reducing the vested Account by the amount of the security used as
repayment of the loan, and then determining the benefit payable to the
surviving spouse.
No loan to any Participant or Beneficiary can be made to the extent
that such loan when added to the outstanding balance of all
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other loans to the Participant or Beneficiary would exceed the lesser of
(1) $50,000 reduced by the excess (if any) of the highest outstanding
balance of loans during the one-year period ending on the day before the
loan is made over the outstanding balance of loans from the plan on the
date the loan is made or (2) one-half the present value of the
nonforfeitable Account of the Participant. For the purpose of the above
limitation, all loans from all plans of the Employer and Related Employers
are aggregated.
7.10. In-Service/Hardship Withdrawals. Subject to the provisions of Article 8, a
Participant shall not be permitted to withdraw any Employer or Employee
Contributions (and earnings thereon) prior to retirement or termination of
employment, except as follows:
(a) Age 59 1/2. If permitted under Section 1.11(b), a Participant who has
attained the age of 59 1/2 is permitted to withdraw upon request all or any
portion of the Accounts specified by the Employer in 1.11(b).
(b) Hardship. If permitted under Section 1.10, a Participant may apply to
the Administrator to withdraw some or all of his Deferral Contributions (and
earnings thereon accrued as of December 31, 1988) and, if applicable, Rollover
Contributions and such other amounts allowed by a predecessor plan, if such
withdrawal is made on account of a hardship. For purposes of this Section, a
distribution is made on account of hardship if made on account of an immediate
and heavy financial need of the Employee where such Employee lacks other
available resources. Determinations with respect to hardship shall be made by
the Administrator and shall be conclusive for purposes of the Plan, and shall be
based on the following special rules:
(1) The following are the only financial needs considered immediate
and heavy: expenses incurred or necessary for medical care (within
the meaning of Section 213(d) of the Code) of the Employee, the
Employee's spouse, children, or dependents; the purchase (excluding
mortgage payments) of a principal residence for the Employee;
payment of tuition and related educational fees for the next twelve
(12) months of post-secondary education for the Employee, the
Employee's spouse, children or dependents; or the need to prevent
the eviction of the Employee from, or a foreclosure on the mortgage
of, the Employee's principal residence.
(2) A distribution will be considered as necessary to satisfy an
immediate and heavy financial need of the Employee only if:
(i) The Employee has obtained all distributions, other than
the hardship distributions, and all nontaxable (at the time of
the loan) loans currently available under all plans maintained
by the Employer;
(ii) The Employee suspends Deferral Contributions and Employee
Contributions to the Plan for the 12-month period
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following the date of his hardship distribution. The
suspension must also apply to all elective contributions and
Employee Contributions to all other qualified plans and
non-qualified plans maintained by the Employer, other than any
mandatory employer contribution portion of a defined benefit
plan, including stock option, stock purchase and other similar
plans, but not including health and welfare benefit plans
(other than the cash or deferred arrangement portion of a
cafeteria plan);
(iii) The distribution is not in excess of the amount of an
immediate and heavy financial need (including amounts
necessary to pay any Federal, state or local income taxes or
penalties reasonably anticipated to result from the
distribution); and
(iv) The Employee agrees to limit Deferral Contributions
(elective contributions)to the Plan and any other qualified
plan maintained by the Employer for the Employee's taxable
year immediately following the taxable year of the hardship
distribution to the applicable limit under Section 402(g) of
the Code for such taxable year less the amount of such
Employee's Deferral Contributions for the taxable year of the
hardship distribution.
(3) A Participant must obtain the consent of his or her spouse, if
any, to obtain a hardship withdrawal, if the provisions of Section
8.03 apply to the Participant.
(c) Employee Contributions. A Participant may elect to withdraw, in cash,
up to one hundred percent of the amount then credited to his Employee
Contribution Account. Such withdrawals shall be limited to one (1) per
Plan Year unless this prototype plan document is an amendment of a prior
plan document, in which case the rules and restrictions governing Employee
Contribution withdrawals, if any, are incorporated herein by reference.
7.11. Prior Plan In-Service Distribution Rules. If designated by the Employer in
Section 1.11(b), a Participant shall be entitled to withdraw at anytime prior to
his termination of employment, subject to the provisions of Article 8 and the
prior plan, any vested Employer Contributions maintained in a Participant's
Account for the specified period of time.
Article 8. Distribution of Benefits Payable After Termination of Service.
8.01. Distribution of Benefits to Participants and Beneficiaries.
(a) Distributions from the Trust to a Participant or to the Beneficiary of
the Participant shall be made in a lump sum in cash or, if elected by the
Employer in Section 1.11, under a systematic withdrawal plan
(installment(s)) upon retirement, death,
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disability, or other termination of employment, unless another form of
distribution is required or permitted in accordance with paragraph (d) of
this Section 8.01 or Sections 1.11(c), 8.02, 8.03, 8.04 or 11.02. A
distribution may be made in Fund Shares, at the election of the
Participant, pursuant to the qualifying rollover of such distribution to a
Fidelity Investments individual retirement account.
(b) Distributions under a systematic withdrawal plan must be made in
substantially equal annual, or more frequent, installments, in cash, over
a period certain which does not extend beyond the life expectancy of the
Participant or the joint life expectancies of the Participant and his
Beneficiary, or, if the Participant dies prior to the commencement of his
benefits the life expectancy of the Participant's Beneficiary, as further
described in Section 8.04.
(c) Notwithstanding the provisions of Section 8.01(b) above, if a
Participant's Account is, and at the time of any prior distribution(s)
was, $3,500 or less, the balance of such Account shall be distributed in a
lump sum as soon as practicable following retirement, disability, death or
other termination of employment.
(d) This paragraph (d) applies to distributions made on or after January
1, 1993. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a distributee's election under this Article 8, a
distributee may elect, at the time and in the manner prescribed by the
Administrator, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the distributee
in a direct rollover. The following definitions shall apply for purposes
of this paragraph (d):
(1) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an eligible
rollover distribution does not include: any distribution that is one
of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life expectancies) of
the distributee and the distributee's designated beneficiary, or for
a specified period of ten years or more; any distribution to the
extent such distribution is required under Section 401(a)(9) of the
Code; and the portion of any distribution that is not includable in
gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(2) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in Section 408(a) of the
Code, an individual retirement annuity described in Section 408(b)
of the Code, an annuity plan described in Section 403(a) of the
Code, or a qualified trust described in Section 401(a) of the Code,
that accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover
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distribution to a surviving spouse, an eligible retirement plan is
an individual retirement account or individual retirement annuity.
(3) Distributee: A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse or former
spouse who is the alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are
distributees with regard to the interest of the spouse or former
spouse.
(4) Direct rollover: A direct rollover is a payment by the plan to
the eligible retirement plan specified by the distributee.
8.02. Annuity Distributions. If so provided in Section 1.11(c), a Participant
may elect distributions made in whole or in part in the form of an annuity
contract subject to the provisions of Section 8.03.
(a) An annuity contract distributed under the Plan must be purchased from
an insurance company and must be nontransferable. The terms of an annuity
contract shall comply with the requirements of the Plan and distributions
under such contract shall be made in accordance with Section 401(a)(9) of
the Code and the regulations thereunder.
(b) The payment period of an annuity contract distributed to the
Participant pursuant to this Section may be as long as the Participant
lives. If the annuity is payable to the Participant and his spouse or
designated Beneficiary, the payment period of an annuity contract may be
for as long as either the Participant or his spouse or designated
Beneficiary lives. Such an annuity may provide for an annuity certain
feature for a period not exceeding the life expectancy of the Participant.
If the annuity is payable to the Participant and his spouse such period
may not exceed the joint life and last survivor expectancy of the
Participant and his spouse, or, if the annuity is payable to the
Participant and a designated Beneficiary, the joint life and last survivor
expectancy of the Participant and such Beneficiary. If the Participant
dies prior to the commencement of his benefits, the payment period of an
annuity contract distributed to the Beneficiary of the Participant may be
as long as the Participant's Beneficiary lives, and may provide for an
annuity certain feature for a period not exceeding the life expectancy of
the Beneficiary. Any annuity contract distributed under the Plan must
provide for nonincreasing payments.
8.03. Joint and Survivor Annuities/Preretirement Survivor Annuities.
(a) Application. The provisions of this Section supersede any conflicting
provisions of the Plan; however, paragraph (b) of this Section shall not
apply if the Participant's Account does not exceed or at the time of any
prior distribution did not exceed
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$3,500. A Participant is described in this Section only if (i) the
Participant has elected distribution of his Account in the form of an
Annuity Contract in accordance with Section 8.02, or (ii) the Trustee has
directly or indirectly received a transfer of assets from another plan
(including a predecessor plan) to which Section 401(a)(11) of the Code
applies with respect to such Participant.
(b) Retirement Annuity. Unless the Participant elects to waive the
application of this subsection in a manner satisfying the requirements of
subsection (d) below, to the extent applicable to the Participant, within
the 90-day period preceding his Annuity Starting Date (which election may
be revoked, and if revoked, remade, at any time in such period), the
vested Account due any Participant to whom this subsection (b) applies
will be paid to him by the purchase and delivery to him of an annuity
contract described in Section 8.02 providing a life annuity only form of
benefit or, if the Participant is married as of his Annuity Starting Date,
providing an immediate annuity for the life of the Participant with a
survivor annuity for the life of the Participant's spouse (determined as
of the date of distribution of the contract) which is 50 percent of the
amount of the annuity which is payable during the joint lives of the
Participant and such spouse. The Participant may elect to receive
distribution of his benefits in the form of such annuity as of the
earliest date on which he could elect to receive retirement benefits under
the Plan. Within the period beginning 90 days prior to the Participant's
Annuity Starting Date and ending 30 days prior to such Date, the
Administrator will provide such Participant with a written explanation of
(1) the terms and conditions of the annuity contract described herein, (2)
the Participant's to make, and the effect of, an election to waive
application of this subsection, (3) the rights of the Participant's spouse
under subsection (d), and (4) the right to revoke and the period of time
necessary to revoke the election to waive application of this subsection.
(c) Annuity Death Benefit. Unless the Participant elects to waive the
application of this subsection in a manner satisfying the requirements of
subsection (d) below at any time within the applicable election period
(which election may be revoked, and if revoked, remade, at any time in
such period), if a married Participant to whom this Section applies dies
before his Annuity Starting Date, then notwithstanding any designation of
a Beneficiary to the contrary, 50 percent of his vested Account will be
applied to purchase an annuity contract described in Section 8.02
providing an annuity for the life of the Participant's surviving spouse,
which contract will then be promptly distributed to such spouse. In lieu
of the purchase of such an annuity contract, the spouse may elect in
writing to receive distributions under the Plan as if he or she had been
designated by the Participant as his Beneficiary with respect to 50
percent of his Account. For purposes of this subsection, the applicable
election period will commence on the first day of the Plan Year in which
the Participant attains age 35 and will end on the date of the
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Participant's death, provided that in the case of a Participant who
terminates his employment the applicable election period with respect to
benefits accrued prior to the date of such termination will in no event
commence later than the date of his termination of employment. A
Participant may elect to waive the application of this subsection prior to
the Plan Year in which he attains age 35, provided that any such waiver
will cease to be effective as of the first day of the Plan Year in which
the Participant attains age 35.
The Administrator will provide a Participant to whom this subsection
applies with a written explanation with respect to the annuity death
benefit described in this subsection (c) comparable to that required under
subsection (b) above. Such explanation shall be furnished within whichever
of the following periods ends last: (1) the period beginning with the
first day of the Plan Year in which the Participant reaches age 32 and
ending with the end of the Plan Year preceding the Plan Year in which he
reaches age 35, (2) a reasonable period ending after the Employee becomes
a Participant, (3) a reasonable period ending after this Section 8.04
first becomes applicable to the Participant in accordance with Section
8.04(a), (4) in the case of a Participant who separates from service
before age 35, a reasonable period of time ending after separation from
service. For purposes of the preceding sentence, the two-year period
beginning one year prior to the date of the event described in clause (2),
(3) or (4), whichever is applicable, and ending one year after such date
shall be considered reasonable, provided, that in the case of a
Participant who separates from service under (4) above and subsequently
recommences employment with the Employer, the applicable period for such
Participant shall be redetermined in accordance with this subsection.
(d) Requirements of Elections. This subsection will be satisfied with
respect to a waiver or designation which is required to satisfy this
subsection if such waiver or designation is in writing and either
(1) the Participant's spouse consents thereto in writing, which
consent must acknowledge the effect of such waiver or designation
and be witnessed by a notary public or Plan representative, or
(2) the Participant establishes to the satisfaction of the
Administrator that the consent of the Participant's spouse cannot be
obtained because there is no spouse, because the spouse cannot be
located, or because of such other circumstances as the Secretary of
Treasury may prescribe.
Any consent by a spouse, or establishment that the consent of
a spouse may not be obtained, will be effective only with respect to
a specific Beneficiary (including any class of Beneficiaries or any
contingent Beneficiaries) or form of benefits identified in the
Participant's waiver or designation, unless the consent of the
spouse expressly permits designations
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by the Participant without any requirement of further consent by the
spouse. A consent which permits such designations by the Participant
shall acknowledge that the spouse has the right to limit consent to
a specific Beneficiary and form of benefits and that the spouse
voluntarily elects to relinquish both such rights. A consent by a
spouse shall be irrevocable once made. Any such consent, or
establishment that such consent may not be obtained, will be
effective only with respect to such spouse. For purposes of
subsections (b) and (c) above, no consent of a spouse shall be valid
unless the notice required by whichever subsection is applicable has
been provided to the Participant.
(e) Former Spouse. For purposes of this Section 8.03, a former spouse of a
Participant will be treated as the spouse or surviving spouse of the
Participant, and a current spouse will not be so treated, to the extent
required under a qualified domestic relations order, as defined in Section
414(p) of the Code.
(f) Vested Account Balance. For purposes of this Section, vested Account
shall include the aggregate value of the Participant's vested Account
derived from Employer and Employee Contributions (including rollovers),
whether vested before or upon death. The provisions of this Section shall
apply to a Participant who is vested in amounts attributable to Employer
contributions, Employee Contributions, or both, upon death or at the time
of distribution.
8.04 Installment Distributions. This Section shall be interpreted and applied in
accordance with the regulations under Section 401(a)(9) of the Code, including
the minimum distribution incidental benefit requirement of Section 1.401(a)(9)-2
of the Proposed Treasury Regulations, or any successor regulations of similar
import.
(a) In General. If a Participant's benefit may be distributed in
accordance with Section 8.01(b), the amount to be distributed for each
calendar year for which a minimum distribution is required shall be at
least an amount equal to the quotient obtained by dividing the
Participant's interest in his Account by the life expectancy of the
Participant or Beneficiary or the joint life and last survivor expectancy
of the Participant and his Beneficiary, whichever is applicable. For
calendar years beginning before January 1, 1989, if a Participant's
Beneficiary is not his spouse, the method of distribution selected must
insure that at least 50 percent of the present value of the amount
available for distribution is paid within the life expectancy of the
Participant. For calendar years beginning after December 31, 1988, the
amount to be distributed for each calendar year shall not be less than an
amount equal to the quotient obtained by dividing the Participant's
interest in his Account by the lesser of (1) the applicable life
expectancy under Section 8.01(b), or (2) if a Participant's Beneficiary is
not his spouse, the applicable divisor determined under Section
1.401(a)(9)-2, Q&A 4 of the Proposed Treasury Regulations, or any
successor regulations of similar import. Distributions after the death of
the Participant shall be made
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using the applicable life expectancy under (1) above, without regard to
Section 1.401(a)(9)-2 of such regulations.
The minimum distribution required under this subsection (a) for the
calendar year immediately preceding the calendar year in which the
Participant's required beginning date, as determined under Section
8.08(b), occurs shall be made on or before the Participant's required
beginning date, as so determined. Minimum distributions for other calendar
years shall be made on or before the close of such calendar year.
(b) Additional Requirements for Distributions After Death of Participant.
(1) Distribution beginning before Death. If the Participant dies
before distribution of his benefits has begun, distributions shall
be made in accordance with the provisions of this paragraph.
Distributions under Section 8.01(a) shall be completed by the close
of the calendar year in which the fifth anniversary of the death of
the Participant occurs. Distributions under Section 8.01(b) shall
commence, if the Beneficiary is not the Participant's spouse, not
later than the close of the calendar year immediately following the
calendar year in which the death of the Participant occurs.
Distributions under Section 8.01(b) to a Beneficiary who is the
Participant's surviving spouse shall commence not later than the
close of the calendar year in which the Participant would have
attained age 70 1/2 or, if later, the close of the calendar year
immediately following the calendar year in which the death of the
Participant occurs. In the event such spouse dies prior to the date
distribution to him or her commences, he or she will be treated for
purposes of this subsection (other than the preceding sentence) as
if he or she were the Participant. If the Participant has not
designated a Beneficiary, or the Participant or Beneficiary has not
effectively selected a method of distribution, distribution of the
Participant's benefit shall be completed by the close of the
calendar year in which the fifth anniversary of the death of the
Participant occurs.
Any amount paid to a child of the Participant will be treated as if
it had been paid to the surviving spouse if the amount becomes
payable to the surviving spouse when the child reaches the age of
majority.
For purposes of this subsection (b)(1), the life expectancy of a
Beneficiary who is the Participant's surviving spouse shall be
recalculated annually unless the Participant's spouse irrevocably
elects otherwise prior to the time distributions are required to
begin. Life expectancy shall be computed in accordance with the
provisions of subsection (a) above.
(2) Distribution beginning after Death. If the Participant dies
after distribution of his benefits has begun, distributions to the
Participant's Beneficiary will be made at least as
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rapidly as under the method of distribution being used as of the
date of the Participant's death.
For purposes of this Section 8.04(b), distribution of a
Participant's interest in his Account will be considered to begin as of
the Participant's required beginning date, as determined under Section
8.08(b). If distribution in the form of an annuity irrevocably commences
prior to such date, distribution will be considered to begin as of the
actual date distribution commences.
(c) Life Expectancy. For purposes of this Section, life expectancy shall
be recalculated annually in the case of the Participant or a Beneficiary
who is the Participant's spouse unless the Participant or Beneficiary
irrevocably elects otherwise prior to the time distributions are required
to begin. If not recalculated in accordance with the foregoing, life
expectancy shall be calculated using the attained age of the Participant
or Beneficiary, whichever is applicable, as of such individual's birth
date in the first year for which a minimum distribution is required
reduced by one for each elapsed calendar year since the date life
expectancy was first calculated. For purposes of this Section, life
expectancy and joint life and last survivor expectancy shall be computed
by use of the expected return multiples in Table V and VI of section
1.72-9 of the income tax Regulations.
A Participant's interest in his Account for purposes of this Section
8.04 shall be determined as of the last valuation date in the calendar
year immediately preceding the calendar year for which a minimum
distribution is required, increased by the amount of any contributions
allocated to, and decreased by any distributions from, such Account after
the valuation date. Any distribution for the first year for which a
minimum distribution is required made after the close of such year shall
be treated as if made prior to the close of such year.
8.05. Immediate Distributions. If the Account distributable to a Participant
exceeds, or at the time of any prior distribution exceeded, $3,500, no
distribution will be made to the Participant before he reaches his Normal
Retirement Age (or age 62, if later), unless the written consent of the
Participant has been obtained. Such consent shall be made in writing within the
90-day period ending on the Participant's Annuity Starting Date. Within the
period beginning 90 days before the Participant's Annuity Starting Date and
ending 30 days before such Date, the Administrator will provide such Participant
with written notice comparable to the notice described in Section 8.03(b)
containing a general description of the material features and an explanation of
the relative values of the optional forms of benefit available under the Plan
and informing the Participant of his right to defer receipt of the distribution
until his Normal Retirement Age (or age 62, if later).
The consent of the Participant's spouse must also be obtained if the
Participant is subject to the provisions of Section 8.03(a), unless the
distribution will be made in the form of the applicable retirement
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annuity contract described in Section 8.03(b). A spouse's consent to early
distribution, if required, must satisfy the requirements of Section 8.03(d).
Neither the consent of the Participant nor the Participant's spouse shall
be required to the extent that a distribution is required to satisfy Section
401(a)(9) or Section 415 of the Code. In addition, upon termination of the Plan
if it does not offer an annuity option (purchased from a commercial provider)
and if the Employer or any Related Employer does not maintain another defined
contribution plan (other than an employee stock ownership plan as defined in
Code Section 4975(e)(7)) the Participant's Account will, without the
Participant's consent, be distributed to the Participant. However, if any
Related Employer maintains another defined contribution plan (other than an
employee stock ownership plan as defined in Section 4975(e)(7) of the Code) then
the Participant's Account will be transferred, without the Participant's
consent, to the other plan if the Participant does not consent to an immediate
distribution.
8.06. Determination of Method of Distribution. The Participant will determine
the method of distribution of benefits to himself and may determine the method
of distribution to his Beneficiary. Such determination will be made prior to the
time benefits become payable under the Plan. If the Participant does not
determine the method of distribution to his Beneficiary or if the Participant
permits his Beneficiary to override his determination, the Beneficiary, in the
event of the Participant's death, will determine the method of distribution of
benefits to himself as if he were the Participant. A determination by the
Beneficiary must be made no later than the close of the calendar year in which
distribution would be required to begin under Section 8.04(b) or, if earlier,
the close of the calendar year in which the fifth anniversary of the death of
the Participant occurs.
8.07. Notice to Trustee. The Administrator will notify the Trustee in writing
whenever any Participant or Beneficiary is entitled to receive benefits under
the Plan. The Administrator's notice shall indicate the form of benefits that
such Participant or Beneficiary shall receive and (in the case of distributions
to a Participant) the name of any designated Beneficiary or Beneficiaries.
8.08. Time of Distribution. In no event will distribution to a Participant be
made latest than the earlier of the dates described in (a) and (b) below:
(a) Absent the consent of the Participant (and his spouse, if
appropriate), the 60th day after the close of the Plan Year in which
occurs the later of the date on which the Participant attains age 65, the
date on which the Participant ceases to be employed by the Employer, or
the 10th anniversary of the year in which the Participant commenced
participation in the Plan; and
(b) April 1 of the calendar year first following the calendar year in
which the Participant attains age 70 1/2 or, in the case of a Participant
who had attained age 70 1/2 before January 1, 1988,
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the required beginning date determined in accordance with (1) or (2)
below:
(1) The required beginning date of a Participant who is not a
5-percent owner is the first day of April of the calendar year
following the calendar year in which the later of retirement or
attainment of age 70 1/2 occurs.
(2) The required beginning date of a Participant who is a 5-percent
owner during any year beginning after December 31, 1979, is the
first day of April following the later of
(A) the calendar year in which the Participant attains age 70
1/2, or
(B) the earlier of the calendar year with or within which ends
the Plan Year in which the Participant becomes a 5-percent
owner, or the calendar year in which the Participant retires.
Notwithstanding the foregoing, in the case of a Participant who attained
age 70 1/2 during 1988 and who had not retired prior to January 1, 1989, the
required beginning date described in this paragraph shall be April 1, 1990.
Notwithstanding (a) above, the failure of a Participant (and spouse) to
consent to a distribution while a benefit is immediately distributable, within
the meaning of Section 8.05, shall be deemed to be an election to defer
commencement of payment of any benefit sufficient to satisfy (a) above.
Once distributions have begun to a 5-percent owner under (b) above, they
must continue to be distributed, even if the Participant ceases to be a
5-percent owner in a subsequent year.
For purposes of (b) above, a Participant is treated as a 5-percent owner
if such Participant is a 5-percent owner as defined in Section 416(i) of the
Code (determined in accordance with Section 416 but without regard to whether
the Plan is top-heavy) at any time during the Plan Year ending with or within
the calendar year in which such owner attains age 66 1/2 or any subsequent Plan
Year.
The Administrator shall notify the Trustee in writing whenever a
distribution is necessary in order to comply with the minimum distribution rules
set forth in this Section.
8.09. Whereabouts of Participants and Beneficiaries. The Administrator will at
all times be responsible for determining the whereabouts of each Participant or
Beneficiary who may be entitled to benefits under the Plan and will at all times
be responsible for instructing the Trustee in writing as to the current address
of each such Participant or Beneficiary. The Trustee will be entitled to rely on
the latest written statement received from the Administrator as to such
addresses. The Trustee will be under no duty to make any distributions under the
Plan
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unless and until it has received written instructions from the Administrator
satisfactory to the Trustee containing the name and address of the distributee,
the time when the distribution is to occur, and the form which the distribution
will take. Notwithstanding the foregoing, if the Trustee attempts to make a
distribution in accordance with the Administrator's instructions but is unable
to make such distribution because the whereabouts of the distributee is unknown,
the Trustee will notify the Administrator of such situation and thereafter the
Trustee will be under no duty to make any further distributions to such
distributee until it receives further written instructions from the
Administrator. If a benefit is forfeited because the Administrator determines
that the Participant or Beneficiary cannot be found, such benefit will be
reinstated by the Sponsor if a claim is filed by the Participant or Beneficiary
with the Administrator and the Administrator confirms the claim to the Sponsor.
Article 9. Top-Heavy Provisions.
9.01 Application. If the Plan is or becomes a Top-Heavy Plan in any Plan Year or
is automatically deemed to be Top-Heavy in accordance with the Employer's
election in Section 1.12(a)(1) of the Adoption Agreement, the provisions of this
Article 9 shall supersede any conflicting provision in the Plan.
9.02 Definitions. For purposes of this Article 9, the following terms have the
meanings set forth below:
(a) Key Employee. Any Employee or former Employee (and the Beneficiary of
any such Employee) who at any time during the determination period was (1)
an officer of the Employer whose annual Compensation exceeds 50 percent of
the dollar limitation under Section 415(b)(1)(A) of the Code, (2) an owner
(or considered an owner under Section 318 of the Code) of one of the ten
largest interests in the Employer if such individual's annual Compensation
exceeds the dollar limitation under Section 415(c)(1)(A) of the Code, (3)
a 5-percent owner of the Employer, or (4) a 1-percent owner of the
Employer who has annual Compensation of more than $150,000. For purposes
of this paragraph, the determination period is the Plan Year containing
the Determination Date and the four preceding Plan Years. The
determination of who is a Key Employee shall be made in accordance with
Section 416(i)(1) of the Code and the regulations thereunder. Annual
Compensation means compensation as defined in Section 5.03(e)(2), but
including amounts contributed by the Employer pursuant to a salary
reduction agreement which are excludable from the employee's gross income
under Section 125, Section 402(a)(8), and Section 403(b) of the Code.
(b) Top-Heavy Plan. The Plan is a Top-Heavy Plan if any of the following
conditions exists:
(1) the Top-Heavy Ratio for the Plan exceeds 60 percent and the Plan
is not part of any Required Aggregation Group or Permissive
Aggregation Group,
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(2) the Plan is a part of a Required Aggregation Group but not part
of a Permissive Aggregation Group and the Top-Heavy Ratio for the
Required Aggregation Group exceeds 60 percent, or
(3) the Plan is a part of a Required Aggregation Group and a
Permissive Aggregation Group and the Top-Heavy Ratio for both Groups
exceeds 60 percent.
(c) Top-Heavy Ratio.
(1) With respect to this Plan, or with respect to any Required
Aggregation Group or Permissive Aggregation Group that consists
solely of defined contribution plans (including any simplified
employee pension plans) and the Employer has not maintained any
defined benefit plan which during the 5-year period ending on the
determination date(s) has or has had accrued benefits, the Top-Heavy
Ratio is a fraction, the numerator of which is the sum of the
account balances of all Key Employees under the plans as of the
Determination Date (including any part of any account balance
distributed in the 5-year period ending on the Determination Date),
and the denominator of which is the sum of all account balances
(including any part of any account balance distributed in the 5-year
period ending on the Determination Date) of all participants under
the plans as of the Determination Date. Both the numerator and
denominator of the Top-Heavy Ratio shall be increased, to the extent
required by Section 416 of the Code, to reflect any contribution
which is due but unpaid as of the Determination Date.
(2) With respect to any Required Aggregation Group or Permissive
Aggregation Group that includes one or more defined benefit plans
which, during the 5-year period ending on the Determination Date,
has covered or could cover a Participant in this Plan, the Top-Heavy
Ratio is a fraction, the numerator of which is the sum of the
account balances under the defined contribution plans for all Key
Employees and the present value of accrued benefits under the
defined benefit plans for all Key Employees, and the denominator of
which is the sum of the account balances under the defined
contribution plans for all participants and the present value of
accrued benefits under the defined benefit plans for all
participants. Both the numerator and denominator of the Top-Heavy
Ratio shall be increased for any distribution of an account balance
or an accrued benefit made in the 5-year period ending on the
Determination Date and any contribution due but unpaid as of the
Determination Date.
(3) For purposes of (1) and (2) above, the value of Accounts and the
present value of accrued benefits will be determined as of the most
recent Valuation Date that falls within or ends with the 12-month
period ending on the Determination Date, except as provided in
Section 416 of the Code and the regulations thereunder for the first
and second plan years of a defined benefit plan. The Account and
accrued benefits of a Participant
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(A) who is not a Key Employee but who was a Key Employee in a prior
year, or (B) who has not been credited with at least one Hour of
Service with the Employer at any time during the 5-year period
ending on the Determination Date, will be disregarded. The
calculation of the Top-Heavy Ratio, and the extent to which
distributions, rollovers, and transfers are taken into account,
shall be made in accordance with Section 416 of the Code and the
regulations thereunder. Deductible employee contributions shall not
be taken into account for purposes of computing the Top-Heavy Ratio.
When aggregating plans, the value of Accounts and accrued benefits
shall be calculated with reference to the Determination Dates that
fall within the same calendar year.
For purposes of determining if the Plan, or any other plan
included in a Required Aggregation Group of which this Plan is a
part, is a Top-Heavy Plan, the accrued benefit in a defined benefit
plan of an Employee other than a Key Employee shall be determined
under (i) the method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Employer, or (ii) if
there is no such method, as if such benefit accrued not more rapidly
than the slowest accrual rate permitted under the fractional accrual
rate of Section 411(b)(1)(C) of the Code.
(d) Permissive Aggregation Group. The Required Aggregation Group plus any
other qualified plans of the Employer or a Related Employer which, when
considered as a group with the Required Aggregation Group, would continue
to satisfy the requirements of Sections 401(a)(4) and 410 of the Code.
(e) Required Aggregation Group.
(1) Each qualified plan of the Employer or Related Employer in which
at least one Key Employee participates, or has participated at any
time during the determination period (regardless of whether the plan
has terminated), and
(2) any other qualified plan of the Employer or Related Employer
which enables a plan described in (1) above to meet the requirements
of Sections 401(a)(4) or 410 of the Code.
(f) Determination Date. For any Plan Year of the Plan subsequent to the
first Plan Year, the last day of the preceding Plan Year. For the first
Plan Year of the Plan, the last day of that Plan Year.
(g) Valuation Date. The Determination Date.
(h) Present Value. Present value shall be based only on the interest rate
and mortality table specified in the Adoption Agreement.
9.03. Minimum Contribution.
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(a) Except as otherwise provided in (b) and (c) below, the
Fixed/Discretionary Contributions made on behalf of any Participant who is
not a Key Employee shall not be less than the lesser of 3 percent (or such
other percent elected by the Employer in Section 1.12(c)) of such
Participant's Compensation or, in the case where the Employer has no
defined benefit plan which designates this Plan to satisfy Section 401 of
the Code, the largest percentage of Employer contributions, as a
percentage of the first $200,000 of the Key Employee's Compensation, made
on behalf of any Key Employee for that year. If the Employer selected the
Integrated Formula in Section 1.05(a)(2), the minimum contribution shall
be determined under paragraph (e) of this Section 9.03. Further, the
minimum contribution under this Section 9.03 shall be made even though,
under other Plan provisions, the Participant would not otherwise be
entitled to receive a contribution, or would have received a lesser
contribution for the year, because (1) the Participant failed to complete
1,000 Hours of Service or any equivalent service requirement provided in
the Adoption Agreement; or (2) the Participant's Compensation was less
than a stated amount.
(b) The provisions of (a) above shall not apply to any Participant who was
not employed by the Employer on the last day of the Plan Year.
(c) The Employer contributions for the Plan Year made on behalf of each
Participant who is not a Key Employee and who is a participant in a
defined benefit plan maintained by the Employer shall not be less than 5
percent of such Participant's Compensation, unless the Employer has
provided in Section 1.12(c) that the minimum contribution requirement will
be met in the other plan or plans of the Employer.
(d) The minimum contribution required under (a) above (to the extent
required to be nonforfeitable under Section 416(b) of the Code) may not be
forfeited under Section 411(a)(3)(B) or 411(a)(3)(D) of the Code.
(e) If the Employer elected an Integrated Formula in Section 1.05(a)(2),
the allocation steps in Section 4.06(b)(2) shall be preceded by the
following steps:
(1) The Discretionary Employer Contributions will be allocated
to each eligible Participant (as determined under this Section 9.03)
in the ratio that the Participant's Compensation bears to all
Participants' Compensation, but not in excess of 3%(or such other
percent elected by the Employer in Section 1.12(c).
(2) Any Discretionary Employer Contributions remaining after
(e)(1) above will be allocated to each eligible Participant in the
ratio that the Participant's Excess Compensation for the Plan Year
bears to the Excess Compensation of all eligible Participants, but
not in excess of 3%(or such other percent elected by the Employer in
Section 1.12(c)).
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9.04. Adjustment to the Limitation on Contributions and Benefits. If this Plan
is in Top-Heavy status, the number 100 shall be substituted for the number 125
in subsections (e)(3) and (e)(4) of Section 5.03. However, this substitution
shall not take effect with respect to this Plan in any Plan Year in which the
following requirements are satisfied:
(a) The Employer contributions for such Plan Year made on behalf of each
Participant who is not a Key Employee and who is a participant in a
defined benefit plan maintained by the Employer is not less than 7 1/2
percent of such Participant's Compensation.
(b) The sum of the present value as of the Determination Date of (1) the
aggregate accounts of all Key Employees under all defined contribution
plans of the Employer and (2) the cumulative accrued benefits of all Key
Employees under all defined benefit plans of the Employer does not exceed
90 percent of the same amounts determined for all Participants under all
plans of the Employer that are Top-Heavy Plans, excluding Accounts and
accrued benefits for Employees who formerly were but are no longer Key
Employees.
The substitutions of the number 100 for 125 shall not take effect in
any Limitation Year with respect to any Participant for whom no benefits
are accrued or contributions made for such Year.
9.05. Minimum Vesting. For any Plan Year in which the Plan is a Top-Heavy Plan
and all Plan Years thereafter, the Top-Heavy vesting schedule elected in Section
1.12(d) will automatically apply to the Plan. The Top-Heavy vesting schedule
applies to all benefits within the meaning of Section 411(a)(7) of the Code
except those attributable to Employee Contributions or those already subject to
a vesting schedule which vests at least as rapidly in all cases as the schedule
elected in Section 1.12(d), including benefits accrued before the Plan becomes a
Top-Heavy Plan. Further, no decrease in a Participant's nonforfeitable
percentage may occur in the event the Plan's status as a Top-Heavy Plan changes
for any Plan Year. However, this Section 9.05 does not apply to the Account of
any Employee who does not have an Hour of Service after the Plan has initially
become a Top-Heavy Plan and such Employee's Account attributable to Employer
Contributions will be determined without regard to this Section 9.05.
Article 10. Amendment and Termination.
10.01 Amendment by Employer. The Employer reserves the authority, subject to the
provisions of Article 1 and Section 10.03, to amend the Plan:
(a) Changes to Elections Contained in the Adoption Agreement. By filing
with the Trustee an amended Adoption Agreement, executed by the Employer
only, on which said Employer has indicated a change or changes in
provisions previously elected by it. Such changes are to be effective on
the effective date of such amended Adoption
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Agreement except that retroactive changes to a previous election or
elections pursuant to the regulations issued under Section 401(a)(4) of
the Code shall be permitted. Any such change notwithstanding, no
Participant's Account shall be reduced by such change below the amount to
which the Participant would have been entitled if he had voluntarily left
the employ of the Employer immediately prior to the date of the change.
The Employer may from time to time make any amendment to the Plan that may
be necessary to satisfy Sections 415 or 416 of the Code because of the
required aggregation of multiple plans by completing overridingplan
language in the Adoption Agreement. The Employer may also add certain
model amendments published by the Internal Revenue Service which
specifically provide that their adoption will not cause the Plan to be
treated as an individually designed plan; or
(b) Other Changes. By amending any provision of the Plan for any reason
other than those specified in (a) above. However, upon making such
amendment, including a waiver of the minimum funding requirement under
Section 412(d) of the Code, the Employer may no longer participate in this
prototype plan arrangement and will be deemed to have an individually
designed plan. Following such amendment, the Trustee may transfer the
assets of the Trust to the trust forming part of such newly adopted plan
upon receipt of sufficient evidence (such as a determination letter or
opinion letter from the Internal Revenue Service or an opinion of counsel
satisfactory to the Trustee) that such trust will be a qualified trust
under the Code.
10.02. Amendment by Prototype Sponsor. The Prototype Sponsor may in its
discretion amend the Plan or the Adoption Agreement at any time, subject to the
provisions of Article 1 and Section 10.03, and provided that the Prototype
Sponsor mails a copy of such amendment to the Employer at its last known address
as shown on the books of the Prototype Sponsor.
10.03. Amendments Affecting Vested and/or Accrued Benefits.
(a) Except as permitted by Section 10.04, no amendment to the Plan shall
be effective to the extent that it has the effect of decreasing a
Participant's Account or eliminating an optional form of benefit with
respect to benefits attributable to service before the amendment.
Furthermore, if the vesting schedule of the Plan is amended, the
nonforfeitable interest of a Participant in his Account, determined as of
the later of the date the amendment is adopted or the date it becomes
effective, will not be less than the Participant's nonforfeitable interest
in his Account determined without regard to such amendment.
(b) If the Plan's vesting schedule is amended, including any amendment
resulting from a change to or from Top-Heavy Plan status, or the Plan is
amended in any way that directly or indirectly affects the computation of
a Participant's nonforfeitable interest in his Account, each Participant
with at least three (3) Years of Service for Vesting with the Employer may
elect, within a
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reasonable period after the adoption of the amendment, to have the
nonforfeitable percentage of his Account computed under the Plan without
regard to such amendment. The Participant's election may be made within 60
days from the latest of (1) the date the amendment is adopted, (2) the
date the amendment becomes effective, or (3) the date the Participant is
issued written notice of the amendment by the Employer or the
Administrator.
10.04. Retroactive Amendments. An amendment made by the Prototype Sponsor in
accordance with Section 10.02 may be made effective on a date prior to the first
day of the Plan Year in which it is adopted if such amendment is necessary or
appropriate to enable the Plan and Trust to satisfy the applicable requirements
of the Code or to conform the Plan to any change in federal law, or to any
regulations or ruling thereunder. Any retroactive amendment by the Employer
shall be subject to the provisions of Section 10.01.
10.05. Termination. The Employer has adopted the Plan with the intention and
expectation that contributions will be continued indefinitely. However, said
Employer has no obligation or liability whatsoever to maintain the Plan for any
length of time and may discontinue contributions under the Plan or terminate the
Plan at any time by written notice delivered to the Trustee without any
liability hereunder for any such discontinuance or termination.
10.06. Distribution upon Termination of the Plan. Upon termination or partial
termination of the Plan or complete discontinuance of contributions thereunder,
each Participant (including a terminated Participant with respect to amounts not
previously forfeited by him) who is affected by such termination or partial
termination or discontinuance will have a fully vested interest in his Account,
and, subject to Section 4.05 and Article 8, the Trustee will distribute to each
Participant or other person entitled to distribution the balance of the
Participant's Account in a single lump sum payment. In the absence of such
instructions, the Trustee will notify the Administrator of such situation and
the Trustee will be under no duty to make any distributions under the Plan until
it receives written instructions from the Administrator. Upon the completion of
such distributions, the Trust will terminate, the Trustee will be relieved from
all liability under the Trust, and no Participant or other person will have any
claims thereunder, except as required by applicable law.
10.07. Merger or Consolidation of Plan; Transfer of Plan Assets. In case of any
merger or consolidation of the Plan with, or transfer of assets and liabilities
of the Plan to, any other plan, provision must be made so that each Participant
would, if the Plan then terminated, receive a benefit immediately after the
merger, consolidation or transfer which is equal to or greater than the benefit
he would have been entitled to receive immediately before the merger,
consolidation or transfer if the Plan had then terminated.
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Article 11. Amendment and Continuation of Predecessor Plan; Transfer of Funds to
or from Other Qualified Plans.
11.01. Amendment and Continuation of Predecessor Plan. In the event the Employer
has previously established a plan (the "predecessor plan") which is a defined
contribution plan under the Code and which on the date of adoption of the Plan
meets the applicable requirements of section 401(a) of the Code, the Employer
may, in accordance with the provisions of the predecessor plan, amend and
continue the predecessor plan in the form of the Plan and become the Employer
hereunder, subject to the following:
(a) Subject to the provisions of the Plan, each individual who was a
Participant or former Participant in the predecessor plan immediately
prior to the effective date of such amendment and continuation will become
a Participant or former Participant in the Plan;
(b) No election may be made under the vesting provisions of the Adoption
Agreement if such election would reduce the benefits of a Participant
under the Plan to less than the benefits to which he would have been
entitled if he voluntarily separated from the service of the Employer
immediately prior to such amendment and continuation;
(c) No amendment to the Plan shall decrease a Participant's accrued
benefit or eliminate an optional form of benefit and if the amendment of
the predecessor plan in the form of the Plan results in a change in the
method of crediting service for vesting purposes between the general
method set forth in Section 2530.200b-2 of the Department of Labor
Regulations and the elapsed-time method in Section 2.01(a)(33) of the
Plan, each Participant with respect to whom the method of crediting
vesting service is changed shall be treated in the manner set forth by the
provisions of Section 1.410(a)-7(f)(1) of the Treasury Regulations which
are incorporated herein by reference;
(d) The amounts standing to the credit of a Participant's Account
immediately prior to such amendment and continuation which represent the
amounts properly attributable to (1) contributions by the Participant and
(2) contributions by the Employer and forfeitures will constitute the
opening balance of his Account or Accounts under the Plan;
(e) Amounts being paid to a former Participant or to a Beneficiary in
accordance with the provisions of the predecessor plan will continue to be
paid in accordance with such provisions;
(f) Any election and waiver of the qualified pre-retirement annuity in
effect after August 23, 1984, under the predecessor plan immediately
before such amendment and continuation will be deemed a valid election and
waiver of Beneficiary under Section 8.04 if such designation satisfies the
requirements of Section 8.04(d), unless
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and until the Participant revokes such election and waiver under the Plan;
and
(g) Unless the Employer and the Trustee agree otherwise, all assets of the
predecessor trust will be deemed to be assets of the Trust as of the
effective date of such amendment. Such assets will be invested by the
Trustee as soon as reasonably practicable pursuant to Article 6. The
Employer agrees to assist the Trustee in any way requested by the Trustee
in order to facilitate the transfer of assets from the predecessor trust
to the Trust Fund.
11.02. Transfer of Funds from an Existing Plan. The Employer may from time to
time direct the Trustee, in accordance with such rules as the Trustee may
establish, to accept cash, allowable Fund Shares or participant loan promissory
notes transferred for the benefit of Participants from a trust forming part of
another qualified plan under the Code, provided such plan is a defined
contribution plan. Such transferred assets will become assets of the Trust as of
the date they are received by the Trustee. Such transferred assets will be
credited to Participants' Accounts in accordance with their respective interests
immediately upon receipt by the Trustee. A Participant's interest under the Plan
in transferred assets which were fully vested and nonforfeitable under the
transferring plan will be fully vested and nonforfeitable at all times. Such
transferred assets will be invested by the Trustee in accordance with the
provisions of paragraph (g) of Section 11.01 as if such assets were transferred
from a predecessor plan. No transfer of assets in accordance with this Section
may cause a loss of an accrued or optional form of benefit protected by Section
411(d)(6) of the Code.
11.03. Acceptance of Assets by Trustee. The Trustee will not accept assets which
are not either in a medium proper for investment under the Plan, as set forth in
Section 1.14(b), or in cash. Such assets shall be accompanied by written
instructions showing separately the respective contributions by the prior
employer and by the Employee, and identifying the assets attributable to such
contributions. The Trustee shall establish such accounts as may be necessary or
appropriate to reflect such contributions under the Plan. The Trustee shall hold
such assets for investment in accordance with the provisions of Article 6, and
shall in accordance with the written instructions of the Employer make
appropriate credits to the Accounts of the Participants for whose benefit assets
have been transferred.
11.04. Transfer of Assets from Trust. The Employer may direct the Trustee to
transfer all or a specified portion of the Trust assets to any other plan or
plans maintained by the Employer or the employer or employers of a former
Participant or Participants, provided that the Trustee has received evidence
satisfactory to it that such other plan meets all applicable requirements of the
Code. The assets so transferred shall be accompanied by written instructions
from the Employer naming the persons for whose benefit such assets have been
transferred, showing separately the respective contributions by the Employer and
by each Participant, if any, and identifying the assets
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attributable to the various contributions. The Trustee shall have no further
liabilities with respect to assets so transferred.
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Article 12. Miscellaneous.
12.01. Communication to Participants. The Plan will be communicated to all
Participants by the Employer promptly after the Plan is adopted.
12.02. Limitation of Rights. Neither the establishment of the Plan and the
Trust, nor any amendment thereof, nor the creation of any fund or account, nor
the payment of any benefits, will be construed as giving to any Participant or
other person any legal or equitable right against the Employer, Administrator or
Trustee, except as provided herein; and in no event will the terms of employment
or service of any Participant be modified or in any way affected hereby. It is a
condition of the Plan, and each Participant expressly agrees by his
participation herein, that each Participant will look solely to the assets held
in the Trust for the payment of any benefit to which he is entitled under the
Plan.
12.03. Nonalienability of Benefits and Qualified Domestic Relations Orders. The
benefits provided hereunder will not be subject to alienation, assignment,
garnishment, attachment, execution or levy of any kind, either voluntarily or
involuntarily, and any attempt to cause such benefits to be so subjected will
not be recognized, except to such extent as may be required by law. The
preceding sentence shall also apply to the creation, assignment, or recognition
of a right to any benefit payable with respect to a Participant pursuant to a
domestic relations order, unless such order is determined by the Plan
Administrator to be a qualified domestic relations order, as defined in Section
414(p) of the Code, or any domestic relations order entered before January 1,
1985. The Administrator must establish reasonable procedures to determine the
qualified status of a domestic relations order. Upon receiving a domestic
relations order, the Administrator will promptly notify the Participant and any
alternate payee named in the order, in writing, of the receipt of the order and
the Plan's procedures for determining the qualified status of the order. Within
a reasonable period of time after receiving the domestic relations order, the
Administrator must determine the qualified status of the order and must notify
the Participant and each alternate payee, in writing, of its determination. The
Administrator must provide notice under this paragraph by mailing to the
individual's address specified in the domestic relations order, or in a manner
consistent with the Department of Labor regulations.
If any portion of the Participant's Account is payable during the period
the Administrator is making its determination of the qualified status of the
domestic relations order, the Administrator must make a separate accounting of
the amounts payable. If the 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 Administrator will direct the Trustee to
distribute the payable amounts in accordance with the order. If the
Administrator does not make his determination of the qualified status of the
order within the 18-month determination period, the Administrator 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
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prospectively if the Administrator later determines the order is a qualified
domestic relations order.
A domestic relations order will not fail to be deemed a qualified domestic
relations order merely because it requires the distribution or segregation of
all or part of a Participant's Account with respect to an alternate payee prior
to the Participant's earliest retirement age (as defined in Section 414(p) of
the Code) under the Plan. A distribution to an alternate payee prior to the
Participant's attainment of the earliest retirement age is available only if (a)
the order specifies distribution at that time and (b) if the present value of
the alternate payee's benefits under the Plan exceeds $3,500, and the order
requires, and the alternate payee consents to, a distribution occurring prior to
the Participant's attainment of earliest retirement age.
12.04. Facility of Payment. In the event the Administrator determines, on the
basis of medical reports or other evidence satisfactory to the Administrator,
that the recipient of any benefit payments under the Plan is incapable of
handling his affairs by reason of minority, illness, infirmity or other
incapacity, the Administrator may direct the Trustee to disburse such payments
to a person or institution designated by a court which has jurisdiction over
such recipient or a person or institution otherwise having the legal authority
under state law for the care and control of such recipient. The receipt by such
person or institution of any such payments shall be complete acquittance
therefore, and any such payment to the extent thereof, shall discharge the
liability of the Trust for the payment of benefits hereunder to such recipient.
12.05. Information between Employer and Trustee. The Employer agrees to furnish
the Trustee, and the Trustee agrees to furnish the Employer, with such
information relating to the Plan and Trust as may be required by the other in
order to carry out their respective duties hereunder, including without
limitation information required under the Code and any regulations issued or
forms adopted by the Treasury Department thereunder or under the provisions of
ERISA and any regulations issued or forms adopted by the Labor Department
thereunder.
12.06. Effect of Failure to Qualify Under Code. Notwithstanding any other
provision contained herein, if the Employer fails to obtain or retain approval
of the Plan by the Internal Revenue Service as a qualified Plan under the Code,
the Employer may no longer participate in this prototype Plan arrangement and
will be deemed to have an individually designed plan.
12.07. Notices. Any notice or other communication in connection with this Plan
shall be deemed delivered in writing if addressed as provided below and if
either actually delivered at said address or, in the case of a letter, three
business days shall have elapsed after the same shall have been deposited in the
United States mails, first-class postage prepaid and registered or certified:
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(a) If to the Employer or Administrator, to it at the address set forth in
the Adoption Agreement, to the attention of the person specified to
receive notice in the Adoption Agreement;
(b) If to the Trustee, to it at the address set forth in the Adoption
Agreement;
or, in each case at such other address as the addressee shall have specified by
written notice delivered in accordance with the foregoing to the addressor's
then effective notice address.
12.08. Governing Law. The Plan and the accompanying Adoption Agreement will be
construed, administered and enforced according to ERISA, and to the extent not
preempted thereby, the laws of the Commonwealth of Massachusetts.
Article 13. Plan Administration.
13.01. Powers and Responsibilities of the Administrator. The Administrator has
the full power and the full responsibility to administer the Plan in all of its
details, subject, however, to the requirements of ERISA. The Administrator's
powers and responsibilities include, but are not limited to, the following:
(a) To make and enforce such rules and regulations as it deems necessary
or proper for the efficient administration of the Plan;
(b) To interpret the Plan, its interpretation thereof in good faith to be
final and conclusive on all persons claiming benefits under the Plan;
(c) To decide all questions concerning the Plan and the eligibility of any
person to participate in the Plan;
(d) To administer the claims and review procedures specified in Section
13.03;
(e) To compute the amount of benefits which will be payable to any
Participant, former Participant or Beneficiary in accordance with the
provisions of the Plan;
(f) To determine the person or persons to whom such benefits will be paid;
(g) To authorize the payment of benefits and provide for the distribution
of Code Section 402(f) notices;
(h) To comply with the reporting and disclosure requirements of Part 1 of
Subtitle B of Title I of ERISA;
(i) To appoint such agents, counsel, accountants, and consultants as may
be required to assist in administering the Plan;
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(j) By written instrument, to allocate and delegate its fiduciary
responsibilities in accordance with Section 405 of ERISA including the
formation of an Administrative Committee to administer the Plan;
(k) To provide bonding coverage as required under Section 412 of ERISA.
13.02. Nondiscriminatory Exercise of Authority. Whenever, in the administration
of the Plan, any discretionary action by the Administrator is required, the
Administrator shall exercise its authority in a nondiscriminatory manner so that
all persons similarly situated will receive substantially the same treatment.
13.03. Claims and Review Procedures.
(a) Claims Procedure. If any person believes he is being denied any rights
or benefits under the Plan, such person may file a claim in writing with
the Administrator. If any such claim is wholly or partially denied, the
Administrator will notify such person of its decision in writing. Such
notification will contain (1) specific reasons for the denial, (2)
specific reference to pertinent Plan provisions, (3) a description of any
additional material or information necessary for such person to perfect
such claim and an explanation of why such material or information is
necessary, and (4) information as to the steps to be taken if the person
wishes to submit a request for review. Such notification will be given
within 90 days after the claim is received by the Administrator (or within
180 days, if special circumstances require an extension of time for
processing the claim, and if written notice of such extension and
circumstances is given to such person within the initial 90-day period).
If such notification is not given within such period, the claim will be
considered denied as of the last day of such period and such person may
request a review of his claim.
(b) Review Procedure. Within 60 days after the date on which a person
receives a written notice of a denied claim (or, if applicable, within 60
days after the date on which such denial is considered to have occurred),
such person (or his duly authorized representative) may (1) file a written
request with the Administrator for a review of his denied claim and of
pertinent documents and (2) submit written issues and comments to the
Administrator. The Administrator will notify such person of its decision
in writing. Such notification will be written in a manner calculated to be
understood by such person and will contain specific reasons for the
decision as well as specific references to pertinent Plan provisions. The
decision on review will be made within 60 days after the request for
review is received by the Administrator (or within 120 days, if special
circumstances require an extension of time for processing the request,
such as an election by the Administrator to hold a hearing, and if written
notice of such extension and circumstances is given to such person within
the initial 60-day period). If the decision on review is not made within
such period, the claim will be considered denied.
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13.04. Named Fiduciary. The Administrator is a "named fiduciary" for purposes of
Section 402(a)(1) of ERISA and has the powers and responsibilities with respect
to the management and operation of the Plan described herein.
13.05. Costs of Administration. Unless some or all are paid by the Employer, all
reasonable costs and expenses (including legal, accounting, and employee
communication fees) incurred by the Administrator and the Trustee in
administering the Plan and Trust will be paid first from the forfeitures (if
any) resulting under Section 7.07, then from the remaining Trust Fund. All such
costs and expenses paid from the Trust Fund will, unless allocable to the
Accounts of particular Participants, be charged against the Accounts of all
Participants on a prorata basis or in such other reasonable manner as may be
directed by the Employer.
Article 14. Trust Agreement.
14.01. Acceptance of Trust Responsibilities. By executing the Adoption
Agreement, the Employer establishes a trust to hold the assets of the Plan. By
executing the Adoption Agreement, the Trustee agrees to accept the rights,
duties and responsibilities set forth in this Article 14.
14.02. Establishment of Trust Fund. A trust is hereby established under the Plan
and the Trustee will open and maintain a trust account for the Plan and, as part
thereof, Participants' Accounts for such individuals as the Employer shall from
time to time give written notice to the Trustee are Participants in the Plan.
The Trustee will accept and hold in the Trust Fund such contributions on behalf
of Participants as it may receive from time to time from the Employer. The Trust
Fund shall be fully invested and reinvested in accordance with the applicable
provisions of the Plan in Fund Shares or as otherwise provided in Section 14.10.
14.03. Exclusive Benefit. The Trustee shall hold the assets of the Trust Fund
for the exclusive purpose of providing benefits to Participants and
Beneficiaries and defraying the reasonable expenses of administering the Plan.
No assets of the Plan shall revert to the Employer except as specifically
permitted by the terms of the Plan.
14.04. Powers of Trustee. The Trustee shall have no discretion or authority with
respect to the investment of the Trust Fund but shall act solely as a directed
trustee of the funds contributed to it. In addition to and not in limitation of
such powers as the Trustee has by law or under any other provisions of the Plan,
the Trustee will have the following powers, each of which the Trustee exercises
solely as directed Trustee in accordance with the written direction of the
Employer except to the extent a Plan asset is subject to Participant direction
of investment and provided that no such power shall be exercised in any manner
inconsistent with the provisions of ERlSA:
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(a) to deal with all or any part of the Trust Fund and to invest all or a
part of the Trust Fund in investments available under the Plan, without regard
to the law of any state regarding proper investment;
(b) to retain uninvested such cash as it may deem necessary or advisable,
without liability for interest thereon, for the administration of the Trust;
(c) to sell, convert, redeem, exchange, or otherwise dispose of all or any
part of the assets constituting the Trust Fund;
(d) to enforce by suit or otherwise, or to waive, its rights on behalf of
the Trust, and to defend claims asserted against it or the Trust, provided that
the Trustee is indemnified to its satisfaction against liability and expenses;
(e) to employ such agents and counsel as may be reasonably necessary in
collecting, managing, administering, investing, distributing and protecting the
Trust Fund or the assets thereof and to pay them reasonable compensation;
(f) to compromise, adjust and settle any and all claims against or in
favor of it or the Trust;
(g) to oppose, or participate in and consent to the reorganization,
merger, consolidation, or readjustment of the finances of any enterprise, to pay
assessments and expenses in connection therewith, and to deposit securities
under deposit agreements;
(h) to apply for or purchase annuity contracts in accordance with Section
8.02;
(i) to hold securities unregistered, or to register them in its own name
or in the name of nominees;
(j) to appoint custodians to hold investments within the jurisdiction of
the district courts of the United States and to deposit securities with stock
clearing corporations or depositories or similar organizations;
(k) to make, execute, acknowledge and deliver any and all instruments that
it deems necessary or appropriate to carry out the powers herein granted; and
(l) generally to exercise any of the powers of an owner with respect to
all or any part of the Trust Fund.
The Employer specifically acknowledges and authorizes that affiliates of
the Trustee may act as its agent in the performance of ministerial, nonfiduciary
duties under the Trust. The expenses and compensation of such agent shall be
paid by the Trustee.
The Trustee shall provide the Employer with reasonable notice of any claim
filed against the Plan or Trust or with regard to any related
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matter, or of any claim filed by the Trustee on behalf of the Plan or Trust or
with regard to any related matter.
14.05. Accounts. The Trustee will keep full accounts of all receipts and
disbursements and other transactions hereunder. Within 60 days after the close
of each Plan Year, within 60 days after termination of the Trust, and at such
other times as may be appropriate, the Trustee will determine the then net fair
market value of the Trust Fund as of the close of the Plan Year, as of the
termination of the Trust, or as of such other time, whichever is applicable, and
will render to the Employer and Administrator an account of its administration
of the Trust during the period since the last such accounting, including all
allocations made by it during such period.
14.06. Approving of Accounts. To the extent permitted by law, the written
approval of any account by the Employer or Administrator will be final and
binding, as to all matters and transactions stated or shown therein, upon the
Employer, Administrator, Participants and all persons who then are or thereafter
become interested in the Trust. The failure of the Employer or Administrator to
notify the Trustee within six (6) months after the receipt of any account of its
objection to the account will, to the extent permitted by law, be the equivalent
of written approval. If the Employer or Administrator files any objections
within such six (6) month period with respect to any matters or transactions
stated or shown in the account, and the Employer or Administrator and the
Trustee cannot amicably settle the question raised by such objections, the
Trustee will have the right to have such questions settled by judicial
proceedings. Nothing herein contained will be construed so as to deprive the
Trustee of the right to have judicial settlement of its accounts. In any
proceeding for a judicial settlement of any account or for instructions, the
only necessary parties will be the Trustee, the Employer and the Administrator.
14.07. Distribution from Trust Fund. The Trustee shall make such distribution
from the Trust Fund as the Employer or Administrator may in writing direct, as
provided by the terms of the Plan, upon certification by the Employer or
Administrator that the same is for the exclusive benefit of Participants or
their Beneficiaries, or for the payment of expenses of administering the Plan.
14.08. Transfer of Amounts from Qualified Plan. If the Plan provides that
amounts may be transferred to the Plan from another qualified plan or trust
under Section 401(a) of the Code, such transfer shall be made in accordance with
the provisions of the Plan and with such rules as may be established by the
Trustee. The Trustee will only accept assets which are in a medium proper for
investment under this agreement or in cash. Such amounts shall be accompanied by
written instructions showing separately the respective contributions by the
prior employer and the transferring Employee, and identifying the assets
attributable to such contributions. The Trustee shall hold such assets for
investment in accordance with the provisions of this agreement.
14.09. Transfer of Assets from Trust. Subject to the provisions of the Plan, the
Employer may direct the Trustee to transfer all or a specified
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portion of the Trust assets to any other plan or plans maintained by the
Employer or the employer or employers of a former Participant or Participants,
provided that the Trustee has received evidence satisfactory to it that such
other plan meets all applicable requirements of the Code. The assets so
transferred shall be accompanied by written instructions from the Employer
naming the persons for whose benefit such assets have been transferred, showing
separately the respective contributions by the Employer and by each Participant,
if any, and identifying the assets attributable to the various contributions.
The Trustee shall have no further liabilities with respect to assets so
transferred.
14.10. Separate Trust or Fund for Existing Plan Assets. With the consent of the
Trustee, the Employer may maintain a trust or fund (including a group annuity
contract) under this prototype plan document separate from the Trust Fund for
Plan assets purchased prior to the adoption of this prototype plan document
which are not Fidelity Funds listed in Section 1.14(b). The Trustee shall have
no authority and no responsibility for the Plan assets held in such separate
trust or fund. The duties and responsibilities of the trustee of a separate
trust shall be provided by a separate trust agreement, between the Employer and
the trustee.
Notwithstanding the preceding paragraph, the Trustee or an affiliate of
the Trustee may agree in writing to provide ministerial recordkeeping services
for guaranteed investment contracts held in the separate trust or fund. The
guaranteed investment contract(s) shall be valued as directed by the Employer or
the Trustee of the separate trust.
The trustee of the separate trust (hereafter referred to as "trustee")
will be the owner of any insurance contract purchased prior to the adoption of
this prototype plan document. The insurance contract(s) must provide that
proceeds will be payable to the trustee; however the trustee shall be required
to pay over all proceeds of the contract(s) to the Participant's designated
Beneficiary in accordance with the distribution provisions of this plan. A
Participant's spouse will be the designated Beneficiary of the proceeds in all
circumstances unless a qualified election has been made in accordance with
Article 8. Under no circumstances shall the trust retain any part of the
proceeds. In the event of any conflict between the terms of this plan and the
terms of any insurance contract purchased hereunder, the plan provisions shall
control.
Any life insurance contracts held in the Trust Fund or in the separate
trust are subject to the following limits:
(a) Ordinary life - For purposes of these incidental insurance provisions,
ordinary life insurance contracts are contracts with both nondecreasing
death benefits and nonincreasing premiums. If such contracts are held,
less than 1/2 of the aggregate employer contributions allocated to any
Participant will be used to pay the premiums attributable to them.
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(b) Term and universal life - No more than 1/4 of the aggregate employer
contributions allocated to any participant will be used to pay the
premiums on term life insurance contracts, universal life insurance
contracts, and all other life insurance contracts which are not ordinary
life.
(c) Combination - The sum of 1/2 of the ordinary life insurance premiums
and all other life insurance premiums will not exceed 1/4 of the aggregate
employer contributions allocated to any Participant.
14.11. Voting; Delivery of Information. The Trustee shall deliver, or cause to
be executed and delivered, to the Employer or Plan Administrator all notices,
prospectuses, financial statements, proxies and proxy soliciting materials
received by the Trustee relating to securities held by the Trust or, if
applicable, deliver these materials to the appropriate Participant or the
Beneficiary of a deceased Participant. The Trustee shall not vote any securities
held by the Trust except in accordance with the written instructions of the
Employer, Participant or the Beneficiary of the Participant, if the Participant
is deceased; however, the Trustee may, in the absence of instructions, vote
"present" for the sole purpose of allowing such shares to be counted for
establishment of a quorum at a shareholders' meeting. The Trustee shall have no
duty to solicit instructions from Participants, Beneficiaries, or the Employer.
14.12. Compensation and Expenses of Trustee. The Trustee's fee for performing
its duties hereunder will be such reasonable amounts as the Trustee may from
time to time specify by written agreement with the Employer. Such fee, any taxes
of any kind which may be levied or assessed upon or with respect to the Trust
Fund, and any and all expenses, including without limitation legal fees and
expenses of administrative and judicial proceedings, reasonably incurred by the
Trustee in connection with its duties and responsibilities hereunder will,
unless some or all have been paid by said Employer, be paid first from
forfeitures resulting under Section 7.07, then from the remaining Trust Fund and
will, unless allocable to the Accounts of particular Participants, be charged
against the respective Accounts of all Participants, in such reasonable manner
as the Trustee may determine.
14.13. Reliance by Trustee on Other Persons. The Trustee may rely upon and act
upon any writing from any person authorized by the Employer or Administrator to
give instructions concerning the Plan and may conclusively rely upon and be
protected in acting upon any written order from the Employer or Administrator or
upon any other notice, request, consent, certificate, or other instructions or
paper reasonably believed by it to have been executed by a duly authorized
person, so long as it acts in good faith in taking or omitting to take any such
action. The Trustee need not inquire as to the basis in fact of any statement in
writing received from the Employer or Administrator.
The Trustee will be entitled to rely on the latest certificate it has
received from the Employer or Administrator as to any person or persons
authorized to act for the Employer or Administrator hereunder
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and to sign on behalf of the Employer or Administrator any directions or
instructions, until it receives from the Employer or Administrator written
notice that such authority has been revoked.
Notwithstanding any provision contained herein, the Trustee will be under
no duty to take any action with respect to any Participant's Account (other than
as specified herein) unless and until the Employer or Administrator furnishes
the Trustee with written instructions on a form acceptable to the Trustee, and
the Trustee agrees thereto in writing. The Trustee will not be liable for any
action taken pursuant to the Employer's or Administrator's written instructions
(nor for the collection of contributions under the Plan, nor the purpose or
propriety of any distribution made thereunder).
14.14. Indemnification by Employer. The Employer shall indemnify and save
harmless the Trustee from and against any and all liability to which the Trustee
may be subjected by reason of any act or conduct (except willful misconduct or
negligence) in its capacity as Trustee, including all expenses reasonably
incurred in its defense.
14.15. Consultation by Trustee with Counsel. The Trustee may consult with legal
counsel (who may be but need not be counsel for the Employer or the
Administrator) concerning any question which may arise with respect to its
rights and duties under the Plan and Trust, and the opinion of such counsel
will, to the extent permitted by law, be full and complete protection in respect
of any action taken or omitted by the Trustee hereunder in good faith and in
accordance with the opinion of such counsel.
14.16. Persons Dealing with the Trustee. No person dealing with the Trustee will
be bound to see to the application of any money or property paid or delivered to
the Trustee or to inquire into the validity or propriety of any transactions.
14.17. Resignation or Removal of Trustee. The Trustee may resign at any time by
written notice to the Employer, which resignation shall be effective 60 days
after delivery to the Employer. The Trustee may be removed by the Employer by
written notice to the Trustee, which removal shall be effective 60 days after
delivery to the Trustee.
Upon resignation or removal of the Trustee, the Employer may appoint a
successor trustee. Any such successor trustee will, upon written acceptance of
his appointment, become vested with the estate, rights, powers, discretion,
duties and obligations of the Trustee hereunder as if he had been originally
named as Trustee in this Agreement.
Upon resignation or removal of the Trustee, the Employer will no longer
participate in this prototype plan and will be deemed to have adopted an
individually designed plan. In such event, the Employer shall appoint a
successor trustee within said 60-day period and the Trustee will transfer the
assets of the Trust to the successor trustee upon receipt of sufficient evidence
(such as a determination letter or opinion letter from the Internal Revenue
Service or an opinion of
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counsel satisfactory to the Trustee) that such trust will be a qualified trust
under the Code.
The appointment of a successor trustee shall be accomplished by delivery
to the Trustee of written notice that the Employer has appointed such successor
trustee, and written acceptance of such appointment by the successor trustee.
The Trustee may, upon transfer and delivery of the Trust Fund to a successor
trustee, reserve such reasonable amount as it shall deem necessary to provide
for its fees, compensation, costs and expenses, or for the payment of any other
liabilities chargeable against the Trust Fund for which it may be liable. The
Trustee shall not be liable for the acts or omissions of any successor trustee.
14.18. Fiscal Year of the Trust. The fiscal year of the Trust will coincide with
the Plan Year.
14.19. Discharge of Duties by Fiduciaries. The Trustee and the Employer and any
other fiduciary shall discharge their duties under the Plan and this Trust
Agreement solely in the interests of Participants and their Beneficiaries in
accordance with the requirements of ERISA.
14.20. Amendment. In accordance with provisions of the Plan, and subject to the
limitations set forth therein, this Trust Agreement may be amended by an
instrument in writing signed by the Employer and the Trustee. No amendment to
this Trust Agreement shall divert any part of the Trust Fund to any purpose
other than as provided in Section 2 hereof.
14.21. Plan Termination. Upon termination or partial termination of the Plan or
complete discontinuance of contributions thereunder, the Trustee will make
distributions to the Participants or other persons entitled to distributions as
the Employer or Administrator directs in accordance with the provisions of the
Plan. In the absence of such instructions and unless the Plan otherwise
provides, the Trustee will notify the Employer or Administrator of such
situation and the Trustee will be under no duty to make any distributions under
the Plan until it receives written instructions from the Employer or
Administrator. Upon the completion of such distributions, the Trust will
terminate, the Trustee will be relieved from all liability under the Trust, and
no Participant or other person will have any claims thereunder, except as
required by applicable law.
14.22. Permitted Reversion of Funds to Employer. If it is determined by the
Internal Revenue Service that the Plan does not initially qualify under Section
401 of the Code, all assets then held under the Plan will be returned by the
Trustee, as directed by the Administrator, to the Employer, but only if the
application for determination is made by the time prescribed by law for filing
the Employer's return for the taxable year in which the Plan was adopted or such
later date as may be prescribed by regulations. Such distribution will be made
within one year after the date the initial qualification is denied. Upon such
distribution the Plan will be considered to be rescinded and to be of no force
or effect.
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Contributions under the Plan are conditioned upon their deductibility
under Section 404 of the Code. In the event the deduction of a contribution made
by the Employer is disallowed under Section 404 of the Code, such contribution
(to the extent disallowed) must be returned to the Employer within one year of
the disallowance of the deduction.
Any contribution made by the Employer because of a mistake of fact must be
returned to the Employer within one year of the contribution.
14.23. Governing Law. This Trust Agreement will be construed, administered and
enforced according to ERISA and, to the extent not preempted thereby, the laws
of the Commonwealth of Massachusetts.
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ADDENDUM
to
CORPORATEplan for Retirement
THE PROFIT SHARING/401(K) PLAN
FIDELITY BASIC PLAN DOCUMENT No. 07
Re: Retroactive Effective Dates
This Addendum is intended to clarify and set forth the effective dates of
certain provisions of the Plan with respect to the adopting Employer. This
Addendum applies only to the extent that the Employer has not amended the Plan
with respect to the applicable provisions of the Tax Reform Act of 1986 ("TRA
'86"). Unless otherwise specifically provided by the terms of the Plan, this
amendment and restatement is effective with respect to each change made to
satisfy the provisions of (i) TRA '86, (ii) any other change in the Code or
ERISA, or (iii) regulations, rulings, or other published guidance issued under
the Code, ERISA, or TRA '86, the first day of the first period (which may or may
not be the first day of a Plan year) with respect to which such change became
required because of such provision (including any day that became such as a
result of an election or waiver by an Employer or a waiver or exemption issued
under the Code, ERISA, or TRA `86), including, but not limited to, the
following:
(a) The following changes as required by TRA '86 are effective for Plan Years
beginning after December 31, 1986, unless a delayed effective date applies
because the Plan is collectively-bargained or because of an applicable exemption
or waiver:
(1) Changes in the definition of Employee in Section 2.01(a)(10) to
reflect changes in the safe harbor exclusion for Leased Employees;
(2) Changes in the definition of Highly Compensated Employee in Section
2.01(a)(16)
(3) Addition of the aggregate deferral limit under Section 402(g) of the
Code in Section 4.01(c);
(4) Changes to the Code Section 401(k) discrimination test in Section
4.02;
(5) Addition of the Code Section 401(m) discrimination test and
application of the Aggregate Limit in Section 4.04;
(6) Compliance with the Code Section 414(s) compensation definition
requirements in Sections 5.03 and 9.03;
(7) Changes in the Participant Loan provisions in Section 7.09; if
applicable, to reflect new dollar limitations, repayment
requirements, and restrictions applicable to Highly Compensated
Employees under Section 72(p) of the Code;
(8) Changes in the definition of Key Employee in Section 9.02(a); and
99
(9) Changes in the definition of Top-Heavy Ratio in Section 9.02(c)(3)
to provide for ratable accrual.
(b) Changes in the 415 limitations in Section 5.03 as required by TRA '86 are
effective for limitation years beginning after December 31, 1986, unless a
delayed effective date applies because the Plan is collectively-bargained or
because of an applicable waiver or exemption; provided, however, that Annual
Additions shall not be recalculated to take into account all Employee
contributions for limitation years beginning before the effective date.
(c) The following changes as required by TRA '86 are effective for Plan years
beginning After December 31, 1987, unless a delayed effective date applies
because the Plan is collectively-bargained or because of an applicable waiver or
exemption:
(1) Changes required to provide that allocations shall not be decreased
or discontinued because of attainment of any age, if any; and
(2) Changes in the definition of Normal Retirement Age in Section
1.06(a), if any, to reflect the five years of participation rule.
(d) The following changes as required by TRA '86 are effective for Plan Years
beginning after December 31, 1988, unless a delayed effective date applies
because the Plan is collectively-bargained or because of an applicable waiver or
exemption:
(1) Changes in the vesting schedule specified in Section 1.07, if
applicable;
(2) Changes in the permitted disparity rules in Section 4.06(b0(2), if
applicable; and
(3) Changes in the requirements for electing a former vesting schedule
in Section 10.03, if applicable.
Notwithstanding the foregoing and subject to applicable law, with respect to
Plan years beginning after December 31, 1986, and before the date of this
restatement of the Plan, the Employer may elect to operate the Plan in
accordance with any transitional rule published by the Internal Revenue Service
or a reasonable, good faith interpretation of TRA '86 and related applicable
law, in which event such transitional rule or good faith interpretation shall
prevail over the provisions in this restatement of the Plan with respect to such
Plan Year.
Each other change made under the Plan is effective as of the date specified in
Section 1.01(g) of the Adoption Agreement, unless otherwise specifically
provided by the terms of the Plan.
2
100
CORPORATEplan for Retirement(SM)
Profit Sharing/401(k) Plan
Fidelity Basic Plan Document No. 07
Amendment One
Section 2.01(a)(7) "Compensation" is amended to include:
In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provision of the plan to the contrary, for plan years
beginning on or after January 1, 1994, the annual compensation of each Employee
taken into account under the plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding 12
months, over which compensation is determined (determination period) beginning
in such calendar year. If a determination period consists of fewer than 12
months, the OBRA '93 annual compensation will be multiplied by a fraction, the
numerator of which is the number of months in the determination period, and the
denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in
this plan to the limitation under section 401(a)(17) of the Code shall mean the
OBRA '93 annual compensation limit set forth in this provision. Notwithstanding
2.01(a)(7)(A), for purpose of Section 4.02 (Additional Limit on Deferral
Contributions) and Section 4.04 (Limit on Matching Contributions), the Employer
may use Compensation as defined in Section 5.03(e)(2) excluding reimbursements
or other expense allowances, fringe benefits (cash and non-cash), moving
expenses, deferred compensation and welfare benefits, but including amounts that
are not includable in the gross income of the Participant under a salary
reduction agreement by reason of the application of Section 125, 402(a)(8),
402(h) or 403(b) of the Code.
If compensation for any prior determination period is taken into account
in determining an Employee's benefits accruing in the current plan year, the
compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first plan year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
Section 8.01(d) "Distribution of Benefits to Participants and Beneficiaries" is
amended to include:
(5) If a distribution is one to which sections 401(a)(11) and 417 of the
Internal Revenue Code do not apply, such distribution may commence less than 30
days after the notice required under section 1.411(a)-11(c) of the Income Tax
Regulations is given, provided that:
(1) the administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or
not to elect a distribution (and, if applicable, a particular
distribution option), and
3
101
the Participant, after receiving the notice, affirmatively
elects a distribution.
4
102
Model Amendment to
The CORPORATEplan FOR RETIREMENT(SM)
PROFIT SHARING / 401 (k) PLAN
(Document No. 07)
This amendment is effective for plan years beginning after December 11,
1994.
Notwithstanding any provision of this plan to the contrary, to the extent
any optional form of benefit under this plan permits a distribution prior to the
employee's retirement, death, disability, or severance from employment, and
prior to plan termination, the optional form of benefit is not available with
respect to benefits attributable to assets (including the post-transfer earnings
thereon) and liabilities that are transferred, within the meaning of ss. 414 (1)
of the Internal Revenue Code, to this plan from a money purchase pension plan
qualified under ss. 401(a) of the Internal Revenue Code (other than any portion
of those assets and liabilities attributable to voluntary employee
contributions).
5
103
CORPORATEplan for Retirement(SM)
Profit Sharing/401(k) Plan
Fidelity Basic Plan Document No. 07
Amendment Two
Effective December 1, 1996, Section 2.01(a)(25) shall be amended to read as
follows:
(25) "Registered Investment Company" means any one or more corporations,
partnerships or trusts registered under the Investment Company Act of
1940.
6
104
SUMMARY PLAN DESCRIPTION
MARINE TRANSPORT LINES, INC. SALARIED EMPLOYEES
RETIREMENT INCOME PLAN
[LOGO]
105
SUMMARY PLAN DESCRIPTION
MARINE TRANSPORT LINES, INC. SALARIED EMPLOYEES
RETIREMENT INCOME PLAN
MARINE TRANSPORT LINES, INC. SALARIED EMPLOYEES RETIREMENT INCOME PLAN
I. BASIC PLAN INFORMATION....................................................................... 1
A. Account............................................................................. 2
B. Employer............................................................................ 2
C. Participant......................................................................... 2
D. Plan Administrator.................................................................. 2
E. Plan Number......................................................................... 2
F. Plan Qualification.................................................................. 2
G. Plan Year........................................................................... 2
H. Service of Process.................................................................. 2
I. Trust Fund.......................................................................... 2
J. Trustee............................................................................. 3
II. PARTICIPATION............................................................................... 3
A. Eligibility Requirements............................................................ 3
III. CONTRIBUTIONS.............................................................................. 3
A. Employee Pretax Contributions....................................................... 4
B. Employee After-Tax Contributions.................................................... 5
C. Employer Matching Contributions..................................................... 5
D. Employer Contributions.............................................................. 5
E. Limit on Contributions.............................................................. 5
F. Rollover Contributions.............................................................. 5
IV. INVESTMENTS................................................................................. 6
A. Investments......................................................................... 7
B. Statement of Account................................................................ 8
V. VESTING...................................................................................... 9
VII. HARDSHIP WITHDRAWALS....................................................................... 10
VIII. IN-SERVICE WITHDRAWALS.................................................................... 11
106
A. Withdrawals After Age 59-1/2........................................................ 11
IX. TOTAL DISTRIBUTION OF BENEFITS.............................................................. 11
A. Benefit on Termination of Employment................................................ 12
B. Death Benefit....................................................................... 12
C. Retirement Benefit.................................................................. 12
D. Payment and Form of Benefits........................................................ 12
X. MISCELLANEOUS INFORMATION.................................................................... 14
A. Benefits Not Insured by PBGC........................................................ 15
B. Nontransferable Account............................................................. 15
C. Plan Amendment...................................................................... 15
D. Plan Termination.................................................................... 15
E. Interpretation of Plan.............................................................. 15
XI. INTERNAL REVENUE SERVICE TEST............................................................... 15
A. Non-Discrimination Test............................................................. 16
B. Top Heavy Test...................................................................... 16
XII. PARTICIPANT RIGHTS......................................................................... 16
A. Claims.............................................................................. 17
B. Statement of ERISA Rights........................................................... 17
107
SUMMARY PLAN DESCRIPTION
MARINE TRANSPORT LINES, INC. SALARIED EMPLOYEES RETIREMENT INCOME PLAN
The Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan (the
'Plan') of Marine Transport Lines, Inc. (the 'Employer') has been amended as of
October 1, 1994 (the 'Effective Date'). This Plan is intended to be a qualified
retirement plan under the Internal Revenue Code.
The purpose of the Plan is to enable eligible Employees to save for retirement.
It may also provide certain benefits in the event of death, disability, or other
termination of employment. The Plan is for the exclusive benefit of eligible
Employees and their beneficiaries.
This booklet is called a Summary Plan Description (SPD) and it contains a
summary in understandable language of your rights and benefits under the Plan.
If you have difficulty understanding any part of this SPD, you should contact
the Plan Administrator identified on page two during normal business hours for
assistance.
This SPD is a brief description of the Plan and Trust Agreement (Plan Document).
It is not meant to interpret, extend or change the Plan Document in any way. A
copy of the Plan Document is on file with the Plan Administrator and may be read
by any Employee at any reasonable time. The Plan Document shall govern in the
event of any discrepancy between this SPD and the actual provisions of the Plan.
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 1
108
I. BASIC PLAN INFORMATION
A. ACCOUNT
This is an Account established by the Trustee for the purpose of recording
contributions made on your behalf and any income, expenses, gains or losses
thereon. It may also be referred to as 'Account' balance.
B. EMPLOYER
The name, address and business telephone number of the Employer is:
Marine Transport Lines, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
The Employer's Identification Number is ▇▇-▇▇▇▇▇▇▇.
C. PARTICIPANT
A participant is an eligible Employee who has satisfied the eligibility and
entry date requirements and is eligible to participate in the Plan.
D. PLAN ADMINISTRATOR
The Plan Administrator is responsible for the administration of the Plan. The
Plan Administrator's duties are specifically identified in the Plan Document.
The name, address and business telephone number of the Plan Administrator is:
Marine Transport Lines, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
E. PLAN NUMBER
The Plan number is 001.
F. PLAN QUALIFICATION
The Employer intends to request an individual Determination Letter from the
Internal Revenue Service for the qualification of the Plan.
G. PLAN YEAR
The Plan Year is the twelve-month period ending on the last day of December.
H. SERVICE OF PROCESS
The Plan's agent for service of legal process is the Plan Administrator.
I. TRUST FUND
The Plan is administered under a trust fund arrangement. There is a written Plan
and Trust Agreement entered into between the Trustee and the Employer.
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 2
109
J. TRUSTEE
The trustee is responsible for holding the Plan assets. The trustee's duties are
specifically identified in the Plan Document and relate only to the assets in
its possession. The name and address of the Plan's Trustee is:
Fidelity Management Trust Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
II. PARTICIPATION
A. ELIGIBILITY REQUIREMENTS
You are eligible to participate in the Plan if you are an Employee of the
Employer. You will become eligible to participate in the Plan on the first day
of the following month. However, if you are employed as of October 1, 1994 then
you will become eligible to participate on that date.
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 3
110
III. CONTRIBUTIONS
For purposes of computing contributions under the Plan, as listed below, your
Employer must first define 'compensation'. Eligible compensation generally means
the taxable compensation for a Plan Year reportable by your Employer on your IRS
Form W-2 for a Plan Year. Your compensation will also include any Employee
pretax contributions you made under the Plan and any salary reductions you made
under your Employer's cafeteria plan, 401(k) plan or other similar plan, if any.
Compensation does not include any taxable fringe benefits or taxable Employee
moving and other expense reimbursements reportable on your annual IRS Form W-2.
Compensation for your first year of eligible Plan participation will be based
upon compensation paid for the entire Plan Year. Tax laws limit the amount of
compensation that may be taken into account each Plan Year and the maximum
amount for the 1999 Plan Year is $160,000 (this amount is subject to adjustment
each year).
A. EMPLOYEE PRETAX CONTRIBUTIONS
(1). REGULAR CONTRIBUTIONS
You may elect to contribute a percentage of your eligible compensation
into the Plan after you satisfy the Plan's eligibility requirements.
The percentage of your compensation you elect will be withheld from
each payroll on a pretax basis and contributed to the Plan on your
behalf. You may defer, in whole percentages, up to an annual maximum of
the lesser of 15% of eligible compensation or $10,000 in a calendar
year (in 1999 and thereafter as adjusted by the Secretary of the
Treasury). Your Employee pretax contributions belong to you and cannot
be forfeited for any reason. However, there are special Internal
Revenue Code rules which must be satisfied and may require that the
amount of your contributions be reduced. If a reduction in your
contribution is necessary, you will be notified by the Plan
Administrator. You may increase or decrease the amount you contribute
as of the first day of each month. You may completely suspend your
contributions with sufficient notice to the Plan Administrator.
Thereafter, if you want to resume your Employee pretax contributions as
of January 1 and July 1, you must complete a new election form.
(2). BONUS CONTRIBUTIONS
You may make Employee pretax contributions on any Employer-paid bonus.
You may defer a whole percentage from 1 to 100% of any bonus designated
by the Employer into the Plan on a pretax basis by completing a special
election form. The total amount of your bonus, catch up and Employee
pretax contributions for the Plan Year may not exceed 15% of your
eligible compensation or other applicable Internal Revenue Code limits.
The Employer may refuse to accept any or all of your bonus contribution
if it will have an adverse effect on the Plan's Non-Discrimination
Test.
(3). CATCH UP CONTRIBUTIONS
You may make 'catch up' Employee pretax contributions in December. You
may defer a whole percentage between 1 to 100% of your eligible
compensation in December into the Plan on a pretax basis by completing
a special election form. The total amount of your catch up, bonus, and
Employee pretax contributions for the Plan Year may not exceed 15% of
your eligible compensation or other applicable Internal Revenue Code
limits. The Employer may refuse to accept any or all of your catch up
contribution if it will have an adverse effect on the Plan's
Non-Discrimination Test.
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 4
111
B. EMPLOYEE AFTER-TAX CONTRIBUTIONS
After you satisfy the Plan's eligibility requirements, you may elect to
contribute a percentage of your compensation into the Plan on an after-tax
basis. You may contribute, in whole percentages, up to an annual maximum of 10%
of eligible compensation. However, there are special Internal Revenue Code rules
which must be satisfied and the maximum may be a lower percentage. If a
reduction in your contribution is necessary, you will be notified by the Plan
Administrator. The Employer may refuse to accept your after-tax contributions if
they will have an adverse effect on the Plan's Non-Discrimination Test. Your
after-tax contributions belong to you and cannot be forfeited for any reason.
C. EMPLOYER MATCHING CONTRIBUTIONS
Each Plan Year the Employer will make matching contributions in an amount equal
to 100% of your employee pretax contributions but subject to a maximum of 3% of
your eligible compensation contributed to the Plan. You become eligible for the
matching contribution only if you make a pretax Employee contribution.
D. EMPLOYER CONTRIBUTIONS
After you satisfy the Plan's eligibility requirements, the Employer will make
profit sharing contributions in an amount equal to 3%. Additionally, the
Employer may make annual discretionary profit sharing contributions in an amount
to be determined at Plan Year-end by the Board of Directors Profit sharing
contributions will be allocated in the ratio that your eligible compensation
bears to the total compensation paid to all eligible participants for the Plan
Year. You must be employed as of the last day of the Plan Year to be eligible
for any profit sharing contributions that may be made for that Plan Year.
Employer contributions must be made within prescribed legal time limits.
E. LIMIT ON CONTRIBUTIONS
Federal law requires that amounts contributed by you and on your behalf by your
Employer for a given limitation year generally may not exceed the lesser of:
- $30,000 (or such amount as may be prescribed by the Secretary
of the Treasury); or
- 25% of your annual compensation, excluding any salary
reductions to an employer sponsored cafeteria plan, a 401(k)
plan, a simplified employee pension or a tax-deferred annuity.
Contributions under this Plan may not exceed the above limits. If this does
occur then excess contributions in your Account may be forfeited or refunded to
you. Income tax consequences may apply to you on any refund. You will be
notified by the Plan Administrator if you will be subject to reduced
contributions on your behalf.
The limitation year for purposes of applying the above limits is the twelve
month period ending December 31. Rollover contributions are not included in the
limits on Employee and Employer contributions.
F. ROLLOVER CONTRIBUTIONS
You can rollover part or all of an 'eligible rollover distribution' you received
from a prior employer's qualified plan, if allowed by the Plan Administrator.
(The Plan Administrator reserves the right to refuse to accept any rollover
contribution.) Alternatively, you may rollover a distribution you received from
a rollover Individual Retirement Account (▇▇▇) which consisted solely of an
eligible rollover distribution and earnings thereon. If the rollover to the Plan
is not a direct rollover (i.e. you received a cash distribution from your prior
employer's plan or from your rollover ▇▇▇), then it must be received by the
Trustee within 60 DAYS of your receipt of the distribution.
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 5
112
You may make a rollover contribution to the Plan before becoming a Participant.
However, you will not become a Participant entitled to make Employee pretax
contributions and share in Employer contributions until you have met the Plan's
eligibility and entry date requirements. Your rollover contribution Account will
be subject to the terms of this Plan and will always be fully vested and
nonforfeitable.
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 6
113
IV. INVESTMENTS
A. INVESTMENTS
The Employee Retirement Income Security Act of 1974 (ERISA) imposes certain
duties on the parties who are responsible for the operation of the plan. These
parties, called fiduciaries, have a duty to invest plan assets in a prudent
manner. However, an exception exists for plans which comply with ERISA Section
404(c) and permit a participant to exercise control over the assets in his/her
Account and choose from a broad range of investment alternatives. This Plan is
intended to be a Section 404(c) plan. This means that you and not the Plan
fiduciaries are responsible for the investment decisions relating to the assets
in your individual Account under the Plan.
You will have the opportunity to direct the investments of your Account among
the following Fidelity Investments Funds (the Fidelity Fund Number assigned to
each fund is identified in parentheses):
1. Fidelity Retirement Government Money Market Portfolio (0631)
Objective: Seeks a high current income, preservation of capital,
and liquidity from money market instruments issued by
the U.S. Government or its agencies.
2. Managed Income Portfolio (0632)
Objective: Seeks the preservation of capital and high current
income from GIC's, BIC's and money market
instruments.
3. Fidelity Investment Grade Bond Fund (0026)
Objective: Seeks a high current income consistent with
reasonable investment risk. The Fund also seeks
capital appreciation where appropriate.
4 Fidelity Growth & Income Portfolio (0027)
Objective: Seeks high total return through a combination of
current income and capital appreciation. Invests
mainly in equity securities of companies that pay
current dividends and offer potential growth of
earnings.
5. Fidelity Growth Company Fund (0025)
Objective: Seeks long-term capital appreciation through
investments in companies with above-average growth
potential.
6. Fidelity Magellan Fund (0021)
Objective: Seeks growth of capital through investments in common
stocks or securities convertible into common stocks.
7. Fidelity Global Bond Fund (0451)
Objective: Seeks high total return by investing principally in
debt securities issued anywhere in the world.
8. Fidelity Overseas Fund (0094)
Objective: Long-term capital appreciation; invests mainly in
foreign securities of issuers whose principal
activities are outside of the U.S.
9. Fidelity Puritan Fund (0004)
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 7
114
Objective: High income consistent with preservation of capital;
invests in a broadly diversified portfolio of
high-▇▇▇▇▇▇▇▇ common stocks, preferred stocks, and
bonds of any quality.
10. Fidelity Contrafund (0022)
Objective: Capital appreciation; a broad -based stock fund that
seeks out undervalued or out-of-favor companies both
in the U.S. and abroad.
11. Fidelity Low-Priced Stock (0316)
Objective: Capital appreciation; invests mainly in a portfolio
of low-priced stocks ($25 or less at time of
purchase) that may be undervalued,overlooked or
out-of-favor.
12. Spartan U.S. Equity Index Portfolio (0650)
Objective: Seeks investment results that correspond to the total
return performance of the Standard and Poor's 500
Index by duplicating the investment composition.
You may obtain a prospectus or financial report for each of the above mutual
funds by calling Fidelity at ▇-▇▇▇-▇▇▇-▇▇▇▇. You may redirect the investment of
your future contributions or exchange your existing Account balance among the
above Fidelity mutual funds by calling 1-800-835-5097 on any business day
between 8:30 AM (ET) and 8:00 PM (ET). Exchanges of your existing Account
balance may only be made . You may call this same number 24 hours per day, seven
days per week to check Account balances, prices or yields. All telephone calls
will be recorded. You have the right to vote any mutual funds proxies based on
the number of shares you own.
Exchanges requested before 4:00 PM (ET) will be processed on that same business
day based on the closing price of the mutual fund. Exchanges requested after
4:00 PM (ET) will be processed based on the next business day's closing price of
the mutual fund. The minimum exchange is the lesser of $250 or 100% of your
Account balance in the mutual fund. If your exchange is less than $250 then it
may only be exchanged into one mutual fund. A written confirmation of your
exchange will be mailed to you within seven business days. Fidelity reserves the
right to change, restrict, or terminate participant exchange procedures to
protect mutual fund shareholders.
Exchanges from the Managed Income Portfolio* to certain bond or money market
funds (considered "competing funds"), must first be exchanged to an option that
is "non-competing", such as an equity mutual fund. After 90-days, you can then
exchange to a "competing fund". Please contact your Plan Administrator or a
Fidelity Participant Services Group representative at 1-800-835-5097 for more
information.
* The Managed Income Portfolio is not a mutual fund, but it is a commingled pool
of the Fidelity Group Trust for Employee Benefit Plan. It is managed by Fidelity
Management Trust Company.
B. STATEMENT OF ACCOUNT
Your Account will be updated each business day to reflect any investment
earnings or losses on each Fidelity Investments mutual fund. A quarterly
statement disclosing the value of your Account will be mailed to you within 20
days of the following dates: January 31, April 30, July 31 and October 31
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 8
115
V. VESTING
The term 'vesting' refers to your nonforfeitable right to the money in your
Account. You receive vesting credit for the number of year(s) that you have
worked for the Employer and any other legally related Employer. If you terminate
your employment with the Employer, then you may be able to receive a portion or
all of your Account based on your vested percentage. You are always 100% vested
in your own Employee pretax Account, after-tax Account, Employer match, Employer
profit sharing contribution Account, rollover Account and earnings thereon.
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 9
116
VII. HARDSHIP WITHDRAWALS
If approved by the Plan Administrator, you may withdraw your Employee pretax
contributions, and rollover contributions if applicable, to satisfy any of the
following immediate and heavy financial needs: (1) unreimbursed medical expenses
for you, your spouse, children or dependents; (2) the purchase of your principal
residence; (3) to prevent your eviction from or foreclosure on your principal
residence; or (4) to pay for post-secondary education expenses for you, your
spouse, children or dependents for the next twelve months.
In accordance with Internal Revenue Service regulations you must first withdraw
your Employee after-tax contributions Account and exhaust all other assets
available to you prior to obtaining a hardship withdrawal. This includes
obtaining a withdrawal of any Employee after-tax contribution in your Account
and a loan from any other qualified plan maintained by your Employer. Your
Employee pretax contributions to this Plan and any other Employer-sponsored
qualified or non-qualified plan will be suspended for twelve months after your
receipt of the hardship withdrawal. If you are married your spouse's consent
will be required on the hardship withdrawal form. Your spouse's consent must be
witnessed by a Plan representative or a Notary Public. The minimum hardship
withdrawal is $1,000.
The Plan Administrator will provide you with the appropriate form upon request.
Hardship withdrawals will be withdrawn from available investment options in the
order established by the Trustee. Consult your Plan Administrator for more
information.
You will be taxed on the amount of any hardship withdrawal under Internal
Revenue Code rules and a 10% IRS premature distribution penalty tax may also be
imposed on your withdrawal. Your hardship withdrawal will also be subject to the
mandatory 20% Federal income tax withholding. You should refer to the 'Total
Distribution of Benefits' section of this SPD.
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 10
117
VIII. IN-SERVICE WITHDRAWALS
A. WITHDRAWALS AFTER AGE 59-1/2
If you have reached age 59-1/2 then you may elect to withdraw all or a portion
of your entire Account while you are still employed by your Employer. The Plan
Administrator will provide you with the appropriate form upon request.
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Marine Transport Lines, Inc. Salaried Employees Retirement Income Plan 11
118
IX. TOTAL DISTRIBUTION OF BENEFITS
A. BENEFIT ON TERMINATION OF EMPLOYMENT
If you terminate your employment with your Employer, then you may elect to
receive a distribution of your vested Account balance from the Plan. You should
contact the Plan Administrator to obtain the appropriate form to complete to
request a distribution.
B. DEATH BENEFIT
If you die while a Participant in the Plan or before any or all benefits are
paid to you, then your beneficiary or beneficiaries will be entitled to receive
your Account balance. You may designate a beneficiary or beneficiaries on a
designation form. The completed beneficiary designation form must be filed with
the Plan Administrator. If you are married and want to designate someone other
than your spouse as your primary beneficiary, then your spouse must consent to
this designation by signing the form. His/her signature must be witnessed by a
Plan representative or a Notary Public. You should contact the Plan
Administrator to obtain a beneficiary designation form.
C. RETIREMENT BENEFIT
You do not have to terminate your employment with your Employer just because you
attain your early retirement age of 55 or you attain your normal retirement age
of 65.
D. PAYMENT AND FORM OF BENEFITS
The Plan is designed to provide you with benefits at the time of your
retirement. However, if your employment with your Employer is terminated because
of death, disability, retirement, or for any other reason, then you may request
a distribution of your vested Account balance upon proper written direction
delivered to the Plan Administrator. You should contact the Plan Administrator
to obtain the appropriate form to request a distribution and a copy of the
'Special Tax Notice Regarding Plan Payments'. Even if your employment with the
Employer has not terminated, the Plan Administrator will direct the Trustee to
begin distributions to you no later than April 1 of the calendar year after you
attain the age of 70-1/2.
The Plan Administrator will direct the Trustee to make a lump sum distribution
to you if you terminate your employment and your vested Account balance is less
than $5,000 regardless of whether you request the distribution. Your written
consent and your spouse's written consent will be required for any distribution
before age 65 if your vested Account balance is greater than $5,000. Properly
authorized distribution requests will be processed by the Trustee on a monthly
basis. The following forms of benefits are available under the Plan:
- LUMP SUM DISTRIBUTIONS
Your entire vested Account balance will be paid to you within one
calendar year. If your vested Account balance is greater than
$5,000 and you are a married Participant, spousal consent for a
lump sum distribution will be required on the Payout Request Form.
The consent must be witnessed by a Plan representative or a Notary
Public.
- INSTALLMENT DISTRIBUTIONS
Your vested Account balance will be paid to you in periodic
payments if your Account balance is greater than $5,000. If you are
a married Participant, spousal consent for an installment
distribution will be required on the Payout Request Form and must
be witnessed by a Plan representative or a Notary Public.
- PURCHASE OF AN ANNUITY
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The normal form of payment under this Plan is an annuity. This
means that your vested Account balance as of your annuity starting
date will be used to purchase a life annuity contract from an
insurance company if you are single, or a qualified joint and
survivor annuity if you are married. (The annuity starting date is
the date that is ninety days prior to the initial annuity payment.)
The insurance company will make monthly payments to you for your
life based upon the type of annuity purchased. Upon your death,
your spouse, if he/she is still living at your death, will receive
50% of the monthly amount you received. The annuity will stop once
your spouse dies and all payments will cease.
You may choose a form of payment other than the annuity only upon
proper election by you and your spouse, if applicable. Any election
to waive the qualified joint and survivor annuity must be made in
writing by you and your spouse. Your spouse's signature must be
witnessed by a Plan representative or a Notary Public. You may
obtain the appropriate waiver election form from the Plan
Administrator.
If you are 35 or older and die while you are still employed by the
Employer then your surviving spouse will be entitled to a qualified
pre-retirement survivor annuity. Your Account balance may be used
to purchase an annuity contract from an insurance company. Monthly
benefit payments will then be made from the insurance company
directly to your spouse for his/her lifetime. You and your spouse
may waive the qualified pre-retirement survivor annuity upon proper
election and choose another form of payment or another beneficiary.
Any waiver must be made in writing by you and your spouse. Your
spouse's signature must be witnessed by a Plan representative or a
Notary Public. You can obtain the appropriate waiver election form
from the Plan Administrator.
Lump sum distributions and in certain situations installment distributions will
be subject to the following rules:
(1). CASH DISTRIBUTION
Any taxable distribution paid by the Trustee directly to you will
be subject to mandatory Federal income tax withholding of 20% of
the requested distribution. You will receive 80% of the taxable
distribution and the other 20% will be sent to the IRS as Federal
income tax withholding for that year. You cannot elect out of this
tax withholding. This withholding is not a penalty but rather a
prepayment of your Federal income taxes.
You may rollover the taxable distribution you receive to an ▇▇▇ or
your new employer's qualified Plan, if it accepts rollover
contributions. However, you must rollover this distribution within
60 DAYS after receipt. You will not be taxed on any amounts rolled
over directly into the ▇▇▇ or your new employer's qualified Plan
until those amounts are later distributed to you.
(2). DIRECT ROLLOVER DISTRIBUTION
As an alternative to a cash distribution, you may request that your
entire distribution be rolled directly into a Fidelity ▇▇▇, a
non-Fidelity ▇▇▇ or to your new employer's qualified plan if it
accepts rollover contributions. Federal income taxes will not be
withheld on any direct rollover distribution.
(a). Rollover to a Fidelity ▇▇▇ - You must complete a Fidelity
'SEE' Rollover ▇▇▇ application. Attach this application to
the completed Payout form. After authorizing your
distribution, the Plan Administrator will forward this
material to the Trustee. Your vested Account balance will
be transferred to a Fidelity Rollover ▇▇▇.
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(b). Rollover to a Non-Fidelity ▇▇▇ - You must complete a Payout
form and indicate the name and address of the custodian or
trustee, and Account number for your ▇▇▇. After authorizing
your distribution, the Plan Administrator will forward the
form to the Trustee. A check will be issued by the Trustee
payable to the ▇▇▇ custodian or trustee for your benefit.
The check will contain the notation 'Direct Rollover' and
it will be mailed directly to you. You will be responsible
for forwarding it on to the custodian or trustee. You must
provide the Plan Administrator with complete information to
facilitate your direct rollover distribution.
(c). Rollover to your New Employer's Qualified Plan - You
should check with your new employer to determine if
its plan will accept rollover contributions. If
allowed, then you must complete a Payout form and
indicate the name, address and plan number of your
new employer's qualified plan. After authorizing your
distribution, the Plan Administrator will forward the
form to the Trustee. A check will be issued by the
Trustee payable to the trustee of your new employer's
qualified plan. The check will contain the notation
'Direct Rollover' and it will be mailed directly to
you. You will be responsible for forwarding it on to
the new trustee. You must provide the Plan
Administrator with complete information to facilitate
your direct rollover distribution.
(3). COMBINATION CASH DISTRIBUTION AND DIRECT ROLLOVER DISTRIBUTION
You may request that part of your distribution be paid directly to
you and the balance to be rolled into an ▇▇▇ or your new employer's
qualified Plan. Any cash distribution you receive will be subject
to the Federal income tax withholding rules referred to in (1). Any
direct rollover distribution will be made in accordance with (2).
You will pay income tax on the amount of any taxable distribution
you receive from the Plan unless it is rolled into an ▇▇▇ or your
new employer's qualified Plan. A 10% IRS premature distribution
penalty tax may also apply to your taxable distribution unless it
is rolled into an ▇▇▇ or another qualified plan. The 20% Federal
income tax withheld under this section may not cover your entire
income tax liability. Consult with your tax advisor for further
details.
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X. MISCELLANEOUS INFORMATION
A. BENEFITS NOT INSURED BY PBGC
Benefits provided by the Plan are not insured or guaranteed by the Pension
Benefit Guaranty Corporation (PBGC) under Title IV of the Employee Retirement
Income Security Act of 1974 (ERISA) because the insurance provisions under ERISA
are not applicable to this particular Plan. You will only be entitled to the
vested benefits in your Account based upon the provisions of the Plan.
B. NONTRANSFERABLE ACCOUNT
Your Account may not be transferred, assigned or used as collateral for a loan
except to the extent required by law. Creditors may not attach, garnish or
otherwise interfere with your Account balance except in the case of a Qualified
Domestic Relations Order (QDRO). A QDRO is a special order issued by the court
in a divorce, child support or similar proceeding. In this situation, your
spouse (or former spouse) or someone other than you or your beneficiary, may be
entitled to a portion or all of your Account balance.
C. PLAN AMENDMENT
Certain provisions of the Plan are subject to amendment by the Employer that may
directly or indirectly modify certain Plan rights and benefits. Any amendment
changing the vesting schedule cannot reduce the existing vested percentage of
your Account balance derived from Employer contributions. If you have three or
more years of service with the Employer and the vesting schedule is amended then
you will be given a choice to have the vested percentage of future Employer
contributions made to your Account computed under the new or the old vesting
schedule. The Plan Administrator will provide you with the appropriate
information to make an informed decision if the Plan's vesting schedule is
amended.
D. PLAN TERMINATION
The Employer has no legal or contractual obligation to make annual contributions
to or to continue the Plan. With the approval of the Board of Directors, the
Employer may at any time reduce or suspend its contributions, if applicable. In
the event the Plan should terminate, the Plan Administrator will facilitate the
distribution of Account balances under the provisions of the Plan and Trust
Agreement until all assets have been distributed by the Trustee. While the
Employer intends to continue the Plan, it reserves the right to change or
terminate the Plan at any time as circumstances may dictate.
E. INTERPRETATION OF PLAN
The Plan Administrator has the power and discretionary authority to construe the
terms of the Plan and to determine all questions that arise under it. Such power
and authority include, for example, the administrative discretion necessary to
resolve issues with respect to an Employee's eligibility for benefits, credited
services, disability, and retirement, or to interpret any other term contained
in Plan documents. The Plan Administrator's interpretations and determinations
are binding on all participants, employees, former employees, and their
beneficiaries.
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XI. INTERNAL REVENUE SERVICE TEST
A. NON-DISCRIMINATION TEST
Your Plan is intended to qualify under Section 401(k) of the Internal Revenue
Code. The Internal Revenue Service requires the Plan to meet special
non-discrimination test as of the last day of each Plan Year. This test is
intended to ensure that there is a fair level of participation by all eligible
participants.
In order to meet the test, the Employer encourages participation from all
eligible Employees. Depending upon the results of the test, the Plan
Administrator may have to refund Employee pretax contributions contributed to
the Plan to certain highly compensated employees, as determined under Internal
Revenue Service regulations. Employee pretax contributions will be refunded on a
prorata basis from each investment option. You will be notified by the Plan
Administrator if any of your contributions will be refunded to you.
B. TOP HEAVY TEST
The Plan is subject to strict Internal Revenue Service rules. One of these rules
involves a 'Top-Heavy' test. Each Plan Year, the Plan Administrator tests this
Plan together with all other Employer-sponsored qualified plans to make sure
that no more than 60% of the benefits are for 'Key' Employees. If this Plan is
Top-Heavy, then the Employer may be required to make minimum annual
contributions to this Plan for you if you are employed as of Plan Year-end.
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XII. PARTICIPANT RIGHTS
A. CLAIMS
(1). CLAIM PROCEDURE
You or your Beneficiary should make a request to obtain any
benefits you are entitled to under the Plan in the event of your
termination of employment. The Plan Administrator will provide you
with a request form to complete. Your request will be considered a
claim and will be subject to a full and fair review by the Plan
Administrator. If your claim is wholly or partially denied by the
Plan Administrator then you may appeal it in accordance with the
claim review procedure.
(2). CLAIM REVIEW PROCEDURE
You or your Beneficiary may file a claim for benefits under the
Plan with the Plan Administrator on a form supplied by the
Employer. The Plan Administrator will provide you with written
notice of the disposition of your claim within 90 days after it has
been filed (or, in certain circumstances, within 180 days). In the
event the claim is denied then the reasons shall be disclosed
and/or provisions of the Plan shall be cited as appropriate.
You or your Beneficiary upon request to the Plan Administrator may
appeal the denial of your claim. If you wish further consideration
of your position then you must provide the Plan Administrator with
a written request for a hearing. You must also provide a detailed
written statement of your position for your claim and file it with
the Plan Administrator no later than 60 days after requesting a
hearing. The Plan Administrator shall make a decision on your claim
and it will be communicated to you in writing within 60 days (or,
in certain circumstances, within 120 days). It will advise you if
you have any right to appeal the decision.
B. STATEMENT OF ERISA RIGHTS
As a participant in this Plan you are entitled to certain rights and protections
under ERISA that provides that all Plan Participants shall be entitled to the
following:
- Examine, without charge, at the Plan Administrator's office and at
other specified locations such as work sites and union halls, all
Plan Documents, including insurance contracts, collective
bargaining agreements and copies of all documents filed by the Plan
with the U.S. Department of Labor, such as detailed annual reports
and Plan descriptions.
- Obtain copies of all Plan Documents and other Plan information upon
written request to the Plan Administrator; the Plan Administrator
may make a reasonable charge for the copies.
- Receive a summary of the Plan's annual financial report. The Plan
Administrator is required by law to furnish you with a copy of this
summary annual report.
- Obtain a statement of your Account under the Plan. You must direct
this request in writing to the Plan Administrator. You may request
a statement only once a year and the Plan must provide the
statement free of charge.
In addition to creating rights for Plan Participants, ERISA imposes duties upon
the people who are responsible for the operation of the employee benefit plan.
The people who operate your Plan, called 'fiduciaries' of the Plan, have a duty
to do so prudently and in the interest of you and other Plan Participants and
beneficiaries. No one, including your Employer, your union, or any other person,
may fire you or otherwise discriminate against you in any way to prevent you
from obtaining a pension benefit or exercising your rights under ERISA.
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If your claim for a benefit is denied, in whole or in part, you must receive a
written explanation of the reason for the denial. You have the right to have the
Plan Administrator review and reconsider your claim. Under ERISA, there are
steps you can take to enforce the above rights. For instance, if you request
materials from the Plan and do not receive them within 30 days, you may file
suit in a federal court. In such a case, the court may require the Plan
Administrator to provide the materials and pay you up to $100 a day until you
receive the materials, unless the materials were not sent for reasons beyond the
control of the Plan Administrator.
If you have a claim for benefits which is denied or ignored, in whole or in
part, you may file suit in a state or federal court. If it should happen that
Plan fiduciaries misuse the Plan's money, or if you are discriminated against
for asserting your rights, you may seek assistance from the U.S. Department of
Labor, or you may file suit in a federal court. If you are successful, the court
may order the person you have sued to pay these costs and fees. If you lose, the
court may order you to pay these costs and fees; for example, if it finds your
claim frivolous. If you have any questions about your Plan, you should contact
the Plan Administrator. If you have any questions about your rights under ERISA,
you should contact the nearest area office of the U.S. Labor-Management Services
Administration, Department of Labor.
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