1
Exhibit 10.7
DRAFT
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11/4/97
PRECISION ENGINE PRODUCTS CORP.
RETIREMENT FUND
EFFECTIVE AS OF JANUARY 1, 1998
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PREAMBLE
Effective January 1, 1998, Precision Engine Products Corp.
(the "Employer") establishes a retirement plan referred to as the Precision
Engine Products Corp. Retirement Fund (the "Plan") as provided herein. A Trust
Agreement has been adopted by the Employer and is intended to form a part of
this Plan. The purpose of this Plan is to encourage Employee savings for
retirement and to provide a tax qualified facility for accumulation of funds to
be used to provide benefits payable to an Employee upon his retirement, death,
termination of employment, or on certain other occasions. The benefits provided
by this Plan will be in addition to the benefits Employees are entitled to under
any other programs of the Employer.
It is intended that this Plan be qualified under Section
401(a) of the Internal Revenue Code of 1986 (the "Code"), as amended from time
to time, and meet the requirements of Code Section 401(k) as a qualified cash or
deferred arrangement. It is also intended that the Trust be exempt from taxation
as provided under Code Section 501(a).
If the Plan shall fail to initially qualify as amended under
the applicable Code Sections, it shall be null and void, and all contributions
which may have been made hereunder shall be treated in accordance with Section
4.9.
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TABLE OF CONTENTS
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PREAMBLE
ARTICLE I -- DEFINITIONS......................................................................................... 1
1.1 "Account"...................................................................................... 1
1.2 "Affiliated Employer".......................................................................... 1
1.3 "Before-Tax Contribution"...................................................................... 1
1.4 "Before-Tax Contribution Account".............................................................. 1
1.5 "Beneficiary".................................................................................. 1
1.6 "Business Day"................................................................................. 2
1.7 "Code"......................................................................................... 2
1.8 "Committee".................................................................................... 2
1.9 "Compensation"................................................................................. 2
1.10 "Disability"................................................................................... 2
1.11 "Direct Rollover".............................................................................. 2
1.12 "Effective Date"............................................................................... 2
1.13 "Eligible Employee"............................................................................ 3
1.14 "Eligible Retirement Plan"......................................................................3
1.15 "Eligible Rollover Distribution"............................................................... 3
1.16 "Employee"..................................................................................... 3
1.17 "Employer"..................................................................................... 3
1.18 "Employer Core Contribution"................................................................... 3
1.19 "Employer Core Contribution Account"........................................................... 3
1.20 "Employer Matching Contribution"............................................................... 3
1.21 "Employer Matching Contribution Account"....................................................... 3
1.22 "Employment Date".............................................................................. 3
1.23 "Entry Date"................................................................................... 4
1.24 "ERISA"........................................................................................ 4
1.25 "Fiduciary".................................................................................... 4
1.26 "Former Member"................................................................................ 4
1.27 "Highly Compensated Employee".................................................................. 4
1.28 "Highly Compensated Group"..................................................................... 4
1.29 "Hour of Service".............................................................................. 4
1.30 "Member"....................................................................................... 4
1.31 "Month of Service"............................................................................. 4
1.32 "Nonparticipating Employer".................................................................... 4
1.33 "Normal Retirement Age"........................................................................ 4
1.34 "Normal Retirement Date"....................................................................... 4
1.35 "One Year Period of Severance"................................................................. 5
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1.36 "Parental Absence"............................................................................. 5
1.37 "Payee"........................................................................................ 5
1.38 "Plan"......................................................................................... 5
1.39 "Plan Year".................................................................................... 5
1.40 "Prior Plan"................................................................................... 5
1.41 "Reemployment Date"............................................................................ 5
1.42 "Retirement"................................................................................... 5
1.43 "Rollover Contribution"........................................................................ 6
1.44 "Rollover Contribution Account"................................................................ 6
1.45 "Service"...................................................................................... 6
1.46 "Severance from Service"....................................................................... 6
1.47 "Spouse"....................................................................................... 7
1.48 "Temporary Employee"........................................................................... 7
1.49 "Trust"........................................................................................ 7
1.50 "Trust Agreement".............................................................................. 7
1.51 "Trust Fund"................................................................................... 7
1.52 "Trustee"...................................................................................... 7
1.53 "Valuation Date"............................................................................... 7
1.54 "Year of Service".............................................................................. 7
ARTICLE II -- PARTICIPATION...................................................................................... 9
2.1 Eligibility to Participate..................................................................... 9
2.2 Commencement of Participation.................................................................. 9
2.3 Transfers...................................................................................... 9
2.4 Reemployment of Terminated Employee or Resumption
of Employment Following Leave of Absence................................................... 10
2.5 Rollover Membership........................................................................... 11
ARTICLE III -- MEMBER CONTRIBUTIONS AND MAXIMUM AMOUNTS......................................................... 12
3.1 Before-Tax Contributions...................................................................... 12
3.2 After-Tax Contributions....................................................................... 12
3.3 Rollover Contributions........................................................................ 12
3.4 Change in Level of Contributions.............................................................. 13
3.5 Suspension and Resumption of Contributions.................................................... 13
3.6 Change in Compensation........................................................................ 13
3.7 Remittance of Member Contributions............................................................ 13
3.8 Limitation on Amount and Return of Before-Tax
Contributions in Certain Instances......................................................... 13
ARTICLE IV -- EMPLOYER CONTRIBUTIONS............................................................................ 17
4.1 Employer Matching Contributions............................................................... 17
4.2 Remittance of Employer Matching Contributions................................................. 17
4.3 Limitation on Amount of Employer Matching Contributions....................................... 17
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4.4 Aggregate Limit Test.......................................................................... 19
4.5 Employer Core Contributions................................................................... 20
4.6 Maximum Total Allocations..................................................................... 21
4.7 Annual Additions.............................................................................. 22
4.8 Contributions Conditioned on Tax Deductibility................................................ 23
4.9 Return of Contributions....................................................................... 23
4.10 Payment of Expenses........................................................................... 24
ARTICLE V -- INVESTMENT OF CONTRIBUTIONS........................................................................ 25
5.1 Committee to Establish Accounts............................................................... 25
5.2 Investment Options............................................................................ 25
5.3 Change in Investment Options.................................................................. 25
5.4 Investment Rules.............................................................................. 25
ARTICLE VI -- TRUST FUND........................................................................................ 27
6.1 Trust Fund.................................................................................... 27
6.2 Valuation of Funds............................................................................ 27
6.3 Allocation of Income, Profits, Losses and Expenses............................................ 27
ARTICLE VII -- DEATH............................................................................................ 28
7.1 Amount of Death Benefit....................................................................... 28
7.2 Payment of Death Benefit...................................................................... 28
7.3 Designation of Beneficiary.................................................................... 28
7.4 Payment Other Than to Beneficiary............................................................. 28
ARTICLE VIII -- VESTING AND TERMINATION OF EMPLOYMENT........................................................... 29
8.1 Vesting of Contributions...................................................................... 29
8.2 Method of Payment............................................................................. 29
8.3 Forfeiture.................................................................................... 29
ARTICLE IX -- LOANS............................................................................................. 30
9.1 Loans......................................................................................... 30
9.2 Rules Relating to Loans....................................................................... 30
ARTICLE X -- WITHDRAWALS........................................................................................ 33
10.1 Non-Hardship Withdrawals from Rollover Contribution Account................................... 33
10.2 Withdrawals After Age 59 1/2.................................................................. 33
10.3 Hardship Withdrawals.......................................................................... 33
10.4 Rules for Withdrawals......................................................................... 34
10.5 Debiting of Withdrawals....................................................................... 35
ARTICLE XI -- PAYMENT OF BENEFITS............................................................................... 36
11.1 Entitlement to Distribution................................................................... 36
11.2 Form of Payment............................................................................... 36
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11.3 Time of Payment............................................................................... 37
11.4 Amount of Distribution........................................................................ 38
11.5 Limitation on Distributions................................................................... 38
11.6 Segregated Accounts........................................................................... 39
11.7 Missing Persons............................................................................... 39
ARTICLE XII -- ADMINISTRATION................................................................................... 40
12.1 Responsibility for Plan and Trust Administration.............................................. 40
12.2 Retirement Plan Committee..................................................................... 40
12.3 Agents of the Committee....................................................................... 40
12.4 Committee Procedures.......................................................................... 40
12.5 Administrative Powers of the Committee........................................................ 41
12.6 Benefit Claims Procedures..................................................................... 41
12.7 Reliance on Reports and Certificates.......................................................... 42
12.8 Other Committee Powers and Duties............................................................. 42
12.9 Compensation of Committee..................................................................... 43
12.10 Member's Own Participation.................................................................... 43
12.11 Liability of Committee Members................................................................ 43
12.12 Indemnification............................................................................... 43
ARTICLE XIII -- FIDUCIARY RESPONSIBILITIES...................................................................... 44
13.1 Basic Responsibilities........................................................................ 44
13.2 Actions of Fiduciaries........................................................................ 44
13.3 Fiduciary Liability........................................................................... 44
ARTICLE XIV -- AMENDMENT........................................................................................ 45
14.1 Internal Revenue Service Qualification........................................................ 45
14.2 Amendment and Termination by the Employer..................................................... 45
14.3 Right to Terminate............................................................................ 45
14.4 Valuation of Assets........................................................................... 45
14.5 Distribution of Assets........................................................................ 46
ARTICLE XV -- TOP-HEAVY PLAN REQUIREMENTS....................................................................... 47
15.1 General Rule.................................................................................. 47
15.2 Minimum Contribution Provisions............................................................... 47
15.3 Limitation on Contributions................................................................... 48
15.4 Coordination With Other Plans................................................................. 48
15.5 Top-Heavy Plan Definitions.................................................................... 48
15.6 Key Employee.................................................................................. 51
15.7 Non-Key Employee.............................................................................. 51
15.8 Change from Top-Heavy Status.................................................................. 51
ARTICLE XVI -- GENERAL PROVISIONS............................................................................... 52
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16.1 Plan Voluntary................................................................................ 52
16.2 Payments to Minors and Incompetents........................................................... 52
16.3 Non-Alienation of Benefits.................................................................... 52
16.4 Use of Masculine and ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇ and Plural............................................ 55
16.5 ▇▇▇▇▇▇, Consolidation, or Transfer............................................................ 55
16.6 Leased Employees.............................................................................. 55
16.7 Governing Law................................................................................. 55
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ARTICLE I
DEFINITIONS
The following words and phrases when used in the Plan shall
have the following meanings, unless a different meaning is plainly required by
the context:
I.1 "ACCOUNT" shall mean the credit balance of a Member or Former Member in
the Trust Fund represented by his Before-Tax Contribution Account,
Employer Matching Contribution Account, Employer Core Contribution
Account, and his Rollover Contribution Account, if any.
I.2 "AFFILIATED EMPLOYER" shall mean any corporation which is included with
the Employer in a controlled group of corporations, as determined in
accordance with Code Section 414(b), any unincorporated trade or
business which, as determined under regulations of the Secretary of the
Treasury, is under common control of the Employer under Code Section
414(c), any organization that includes the Employer, which is a member
of an affiliated service group, as defined in Code Section 414(m), and
any other entity required to be aggregated with the Employer pursuant
to regulations under Code Section 414(o). For the purposes of Sections
4.6 and 4.7, Code Sections 414(b) and (c) shall be applied as modified
by Code Section 415(h).
I.3 "BEFORE-TAX CONTRIBUTION" shall mean a salary reduction contribution
made to the Plan on behalf of a Member pursuant to Article III.
I.4 "BEFORE-TAX CONTRIBUTION ACCOUNT" shall mean a Member's interest in the
Trust Fund attributable to Before-Tax Contributions made to the Plan,
including investment earnings thereon.
I.5 "BENEFICIARY" shall mean the person or persons designated by a Member
or Former Member to receive benefits under the Plan in the event of the
Member's death. If the Member is married and designates someone other
than his legal Spouse, his Beneficiary designation must include the
written consent of his legal Spouse at the time the designation
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is made in order to be valid. A former Spouse's consent shall not be
binding on a subsequent Spouse.
Such written consent must approve the specific Beneficiary designated,
acknowledge the effect of such designation, and be witnessed by a
notary public or a Plan representative. If it is established to the
satisfaction of the Committee that the Member has no Spouse, or that
the Spouse's consent cannot be obtained because the Spouse cannot be
located, or because of such other circumstances as may be prescribed in
regulations issued pursuant to Code Section 417, such written consent
shall not be required. If no valid Beneficiary designation is in effect
at the time of the Member's death, Section 7.4 shall apply.
I.6 "BUSINESS DAY" shall mean any day on which the New York Stock Exchange
is open for business.
I.7 "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any regulations issued thereunder. Reference to any
Code Section shall include any successor provision thereto.
I.8 "COMMITTEE" shall mean the person or persons designated by the Employer
to administer the Plan in accordance with Article XII.
I.9 "COMPENSATION" shall mean the total remuneration paid by the Employer
to an Employee which would be reportable on the Employee's Federal
Income Tax Withholding Statement (Form W-2) during the period
considered Service while a Member in a Plan Year; plus for any pay
period during which a Member is making Before-Tax Contributions
hereunder, the Before-Tax Contributions made for such pay period and
salary deferrals made by the Employee to a plan maintained by the
Employer which meets the requirements of Code Section 125 for such pay
period. Such remuneration shall include base pay, bonuses, commissions,
short-term disability pay, shift differential premiums, and incentive
pay paid by the Employer, but shall exclude workers' compensation
amounts, severance pay, and token bonus amounts.
A Member's Compensation taken into account under the Plan for any Plan
Year shall not exceed $160,000, or such amount as indexed pursuant to
Code Sections 401(a)(17) and 415(d) and the applicable regulations
thereunder.
I.10 "DISABILITY" shall mean a physical or mental condition which results in
the Member's qualification for benefits under the Employer's long-term
disability plan unless the Member is covered by a pension plan that
provides long-term disability benefits, provided such disability
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(a) was not contracted, suffered or incurred while the Member was
engaged in, or did not result from his or her having engaged
in, a criminal enterprise; or
(b) was not sustained while the Member was employed by anyone
other than the Employer or an Affiliated Employer.
A Member shall not have a Disability unless he or she furnishes proof
of the existence of such Disability to the Committee in the form and
manner, and at such time, as the Committee may request.
I.11 "DIRECT ROLLOVER" shall mean a payment by the Plan to the Eligible
Retirement Plan specified by the Member or Payee.
I.12 "EFFECTIVE DATE" shall mean January 1, 1998.
I.13 "ELIGIBLE EMPLOYEE" shall mean an Employee who is included in the
eligible class described in Section 2.1.
I.14 "ELIGIBLE RETIREMENT PLAN" shall mean an individual retirement account
described in Code Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan described in Code
Section 403(a), or a qualified trust described in Code Section 401(a),
that accepts the Member's or ▇▇▇▇▇'s Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to the
surviving Spouse, an Eligible Retirement Plan is an individual
retirement account or individual retirement annuity.
I.15 "ELIGIBLE ROLLOVER DISTRIBUTION" shall mean any distribution of all or
any portion of the balance to the credit of the Member, except that an
Eligible Rollover Distribution does not include (i) any distribution
that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the lives (or life
expectancies) of the Member and the Member's designated Beneficiary, or
for a specified period of 10 years or more; (ii) any distribution to
the extent such distribution is required under Code Section 401(a)(9);
and (iii) the portion of any distribution that is not includible in
gross income.
I.16 "EMPLOYEE" shall mean any common-law Employee of the Employer or an
Affiliated Employer.
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A leased employee as described in Code Section 414(n)(2) shall be
considered an Employee only to the extent required by Section 16.6.
I.17 "EMPLOYER" shall mean Precision Engine Products Corp., a Delaware
corporation, or its successors or assigns.
I.18 "EMPLOYER CORE CONTRIBUTION" shall mean a contribution by the Employer
to the Plan on behalf of a member pursuant to Section 4.5.
I.19 "EMPLOYER CORE CONTRIBUTION ACCOUNT" shall mean a Member's interest in
the Trust Fund attributable to Employer Core Contributions made to the
Plan, and the investment earnings thereon.
I.20 "EMPLOYER MATCHING CONTRIBUTION" shall mean a contribution by the
Employer made to the Plan on behalf of a Member pursuant to Section
4.1.
I.21 "EMPLOYER MATCHING CONTRIBUTION ACCOUNT" shall mean a Member's interest
in the Trust Fund attributable to Employer Matching Contributions made
to the Plan, including investment earnings thereon.
I.22 "EMPLOYMENT DATE" shall mean the first day for which an Employee
receives credit for an Hour of Service.
I.23 "ENTRY DATE" shall mean the first business day of the month coincident
with or next following the date on which an individual becomes an
Eligible Employee or any business day of any month thereafter.
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I.24 "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time. References to any Section of ERISA shall
include any successor provision thereto.
I.25 "FIDUCIARY" shall mean any person who (i) exercises any discretionary
authority or discretionary control respecting the management of the
Plan, assets held under the Plan, or disposition of Plan assets; (ii)
renders investment advice for a fee or other compensation, direct or
indirect, with respect to assets held under the Plan or has any
authority or responsibility to do so; or (iii) has any discretionary
authority or discretionary responsibility in the administration of the
Plan. Any person who exercises authority or has responsibility of a
fiduciary nature as described above shall be considered a Fiduciary
under the Plan.
I.26 "FORMER MEMBER" shall mean an individual who was a Member, has
terminated employment with the Employer and all Affiliated Employers,
and has not received a total distribution of his vested Account under
the Plan.
I.27 "HIGHLY COMPENSATED EMPLOYEE" shall mean each Employee who (i) was a 5%
owner during the Plan Year or the preceding Plan Year, or (ii) for the
preceding Plan Year had compensation as defined in Code Section
414(q)(4) in excess of $80,000 (as adjusted under Code Section 415(d)).
I.28 "HIGHLY COMPENSATED GROUP" shall mean the group of Highly Compensated
Employees who are also Eligible Employees as defined herein.
I.29 "HOUR OF SERVICE" shall mean each hour for which an Employee is
directly or indirectly paid or entitled to payment by the Employer or
any Affiliated Employer for the performance of duties.
I.30 "MEMBER" shall mean an Employee who is either currently participating
in the Plan or who has an Account under the Plan.
I.31 "MONTH OF SERVICE" shall mean a full calendar month of Service.
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I.32 "NONPARTICIPATING EMPLOYER" means a member of the Metromedia Company
controlled group other than the Employer.
I.33 "NORMAL RETIREMENT AGE" shall mean age 65.
I.34 "NORMAL RETIREMENT DATE" shall mean the first day of the month
coincident with or next following a Member's Normal Retirement Age.
I.35 "ONE YEAR PERIOD OF SEVERANCE" shall mean a one year period beginning
on the earliest of the date an Employee quits, retires, is discharged
or dies, or the first anniversary of the date that the Employee is
absent from work (with or without pay) for any other reason, and ending
on the date the Employee completes an Hour of Service following
termination of Employment.
With respect to a Member who is absent from work due to a Parental
Absence, "second anniversary" shall be substituted for "first
anniversary" in the preceding paragraph.
Additionally, for purposes of Section 2.1, any period of leave under
the Family and Medical Leave Act of 1993 shall be treated as continued
Service to the extent necessary to prevent the occurrence of a One Year
Period of Severance.
I.36 "PARENTAL ABSENCE" shall mean an Employee's absence from work for any
of the following reasons:
(a) the pregnancy of the Employee;
(b) the birth of the Employee's child;
(c) the adoption of a child by the Employee; or
(d) the need to care for the Employee's child immediately
following its birth or adoption.
I.37 "PAYEE" shall mean a Member's or Former Member's surviving Spouse and a
Member's or Former Member's Spouse or
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former Spouse who is the alternate payee under a qualified domestic
relations order, as defined in Code Section 414(p).
I.38 "PLAN" shall mean the Precision Engine Products Corp. Retirement Fund,
as set forth in this document and as amended from time to time.
I.39 "PLAN YEAR" shall mean the calendar year.
I.40 "PRIOR PLAN" shall mean the Precision Engine Products Corp. Tallahassee
Hourly Pension Plan.
I.41 "REEMPLOYMENT DATE" shall mean the day an Employee first completes an
Hour of Service following a Severance from Service, or, in the case of
an Employee on an approved leave of absence, the first day he returns
to work with the Employer or an Affiliated Employer.
I.42 "RETIREMENT" shall mean termination of employment for a reason other
than death after a Member has attained age 57 and has completed 10
Years of Service, as defined in the Prior Plan.
I.43 "ROLLOVER CONTRIBUTION" shall mean an amount received from a deferred
compensation plan which qualifies under Code Section 401 or Code
Section 403(a) and which is rolled over to the Plan pursuant to Code
Section 402(c). A Rollover Contribution can include both Direct
Rollovers and amounts distributed to a Member and then rolled over, and
also include a direct trust to trust transfer. In addition, if an
Eligible Employee had deposited a qualified total distribution within
the meaning of Code Section 401(a)(5)(E) [as in effect prior to January
1, 1993] on an Eligible Rollover Distribution into an individual
retirement account as defined in Code Section 403, he or she may
transfer the amount of the distribution plus earnings from the
individual retirement account into the Plan; provided, however, that
the rollover amount is deposited with the Trustee within sixty (60)
days after receipt from the indicated retirement account.
I.44 "ROLLOVER CONTRIBUTION ACCOUNT" shall mean a Member's interest in the
Prior Plan which was transferred into the Plan as a rollover.
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I.45 "SERVICE" mean all periods of employment with the Employer and
Affiliated Employers measured from the individual's Employment Date and
ending on such Employee's Severance from Service, and excluding any
period between his Severance from Service and his Reemployment Date, if
applicable, unless provided otherwise herein or in Section 1.46.
If an Employee leaves active Service to enter the Armed Forces of the
United States (i) through the operation of a compulsory military
service law; (ii) during a period of declared national emergency; or
(iii) pursuant to a military leave of absence granted by the Employer,
the period of his absence shall be counted as active Service; provided
the Employee returns to Service with the Employer within 90 days (or
such longer period as may be provided by law for the protection of
reemployment rights) after his discharge or release from active duty in
the Armed Forces of the United States, or within the period for which
such military leave of absence was granted by the Employer, as the case
may be. Notwithstanding any provisions of this Plan to the contrary,
contributions, benefits, and service credit with respect to qualified
military service within the meaning of Code Section 414(u)(5) will be
provided in accordance with Code Section 414(u).
I.46 "SEVERANCE FROM SERVICE" shall mean the earliest of the following:
(a) the date on which the Employee resigns, is discharged, or
retires from Service with the Employer and all Affiliated
Employers. If such an individual has a Reemployment Date
within 12 months of his Severance from Service hereunder, his
employment shall be deemed to be continuous and no Severance
from Service shall have occurred;
(b) the date the Employee dies;
(c) the first anniversary of the date on which the Employee is
laid off, starts an authorized leave of absence, or in absent
from work for any other reason other than a Parental Absence;
or
(d) the second anniversary of the date on which the Employee
commenced a Parental Absence, if such Employee has not yet
returned to work with the Employer or an Affiliated Employer.
I.47 "SPOUSE" shall mean the legal Spouse or surviving Spouse of a Member as
determined in accordance with applicable state law. A former spouse
will be treated as the Spouse or surviving Spouse to the extent
required under a qualified domestic relations order, as defined in Code
Section 414(p).
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I.48 "TEMPORARY EMPLOYEE" shall mean a person employed by the Employer
either on a full-time or part-time basis, with the understanding that
his or her employment will be terminated no later than upon completion
of a specific assignment. A temporary employee may be offered and may
accept a new temporary assignment with the Company and may retain his
status as a Temporary Employee.
I.49 "TRUST" shall mean the Precision Engine Products Corp. Retirement Fund
Trust, established to hold and invest contributions made under the Plan
for the exclusive benefit of the Employees included in the Plan and
from which benefits shall be distributed.
I.50 "TRUST AGREEMENT" shall mean the agreement between the Employer and a
Trustee, as provided for in Article XII.
I.51 "TRUST FUND" shall mean all assets held by the Trustee in accordance
with the Trust Agreement without distinction as to income or principal
and without regard to source.
I.52 "TRUSTEE" shall mean the individual, individuals, or institution
appointed by the Employer to act in accordance with the Trust account.
As of the Effective Date, The Fidelity Trust Company is the Trustee.
I.53 "VALUATION DATE" shall mean each Business Day.
I.54 "YEAR OF SERVICE" shall mean an Employee's period of employment which
is equal to the sum of:
(a) the period commencing on the date the Employee first performs
an Hour of Service and ending on the date a Period of
Severance begins; and
(b) (1) if the Employee quits, retires or is discharged,
the period commencing on the date the Employee
terminated his or her Employment and ending on the
first date on which the Employee again performs an
Hour of Service, if such date is within 12 months of
the date on which the Employee last performed an Hour
of Service; or
(2) if the Employee is absent from work for any other
reason and, within 12 months of the first day of such
absence, the Employee quits, retires or is
discharged, the period commencing on the first day of
such absence and
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ending on the first day the Employee again performs
an Hour of Service if such day is within 12 months of
the date his or her absence began.
With respect to an absence from work due to a Parental Absence, the
period between the first anniversary and the second anniversary of the
first date of such absence shall not be taken into account for any
purpose under the Plan.
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ARTICLE II
PARTICIPATION
II.1 Eligibility to Participate. Each Employee on January 1, 1998 who was a
member under the Prior Plan on December 31, 1997, shall become a Member
on January 1, 1998.
Each other Employee shall be an Eligible Employee upon satisfying all
of the following requirements:
(a) he is employed by the Employer;
(b) he is classified as a non-union employee and if he is employed
at the Employer's Tallahassee facility, and is regularly paid
on an hourly rather than salaried basis;
(c) he has a minimum of six (6) consecutive Months of Service;
(d) he is not a "leased employee", as defined under Code Section
414(n)(2) or a Temporary Employee, or an individual
characterized by the Employer as an independent contractor;
and
(e) he is not a nonresident alien who received no earned income
from the Employer which constitutes income from United States
sources.
II.2 Commencement of Participation. Except as provided in Section 2.4, each
Eligible Employee shall become a Member (or if his participation has
terminated, shall again become a Member) on the Entry Date next
following the date on which he:
(a) meets the requirements of Section 2.1; and
(b) enrolls in the Plan by completing an election form to initiate
contributions pursuant to Article III. However, if an Eligible
Employee fails to enroll when first eligible to do so, such
Employee shall be eligible to enroll on any following Entry
Date; provided that he is then an Eligible Employee. Such
enrollment will be effective as of the next payroll period.
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II.3 Transfers. The following provisions shall govern in the case of an
Employee who changes employment status:
(a) In the event that an Eligible Employee directly transfers to
an ineligible class of Employees, he shall be deemed to
continue as a Member for all purposes of the Plan except that
he shall not be permitted to direct any further Before-Tax
Contributions on his behalf under the Plan nor shall he
receive any further Employer Matching Contributions or
Employer Core Contributions unless he again becomes an
Eligible Employee. Such an Employee shall continue to accrue
Months of Service pursuant to Section 1.31 and Years of
Service pursuant to Section 1.54.
(b) In the event that an Employee in an ineligible class transfers
to an employment classification as an Eligible Employee, his
Years of Service earned during his employment with all
Affiliated Employers shall be credited under this Plan for
purposes of meeting the eligibility requirements of Section
2.1. Such Employee shall be eligible to become a Member when
he meets the requirements of Sections 2.1 and 2.2.
II.4 Reemployment of Terminated Employee or Resumption of Employment
Following Leave of Absence.
(a) A Former Member who terminates employment for any reason and
returns to work shall be eligible to participate in the Plan
on the first day of any pay period coincident with or next
following his Reemployment Date, provided that he has not
forfeited his prior Months of Service under Section 2.4(c);
and provided further that he is then an Eligible Employee.
(b) (i) An Eligible Employee who was not a Member of the
Plan prior to termination of employment or leave of
absence may, upon resumption of active employment
with the Employer, elect to become a Member on the
first day of any pay period coincident with or next
following his Reemployment Date; provided that he is
then an Eligible Employee under Section 2.1 and has
not forfeited his prior Months of Service under
Section 2.4(c) below.
(ii) A former Employee who was not previously a Member of
the Plan will be treated as a new Employee if his
prior Months of Service are forfeited
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pursuant to Section 2.4(c) below. In such case, the
individual may elect to become a Member in accordance
with Section 2.2; provided that he is an Eligible
Employee as described in Section 2.1. Such an
individual will be required to complete six (6)
Months of Service after his Reemployment Date to meet
the service requirements of Section 2.1(c).
(c) For purposes of satisfying the service requirement of Section
2.1(c), if an Employee who is not an Eligible Employee incurs
a One Year Period of Severance, he shall lose his Months of
Service accumulated before such period only if the length of
the Period of Severance does not exceed the greater of five
(5) consecutive One Year Periods of Severance or the length of
the Employee's past service.
II.5 Rollover Membership. An Eligible Employee who makes a Rollover
Contribution shall become a Member as of the date of such Contribution
provided he or she has met the requirements of Section 2.1.
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ARTICLE III
MEMBER CONTRIBUTIONS AND MAXIMUM AMOUNTS
III.1 Before-Tax Contributions.
(a) Each Eligible Employee may elect, in writing, to authorize the
Employer to reduce his Compensation and make a corresponding
Before-Tax Contribution to the Plan on his behalf. This
reduction in Compensation must be in any whole percentage from
2% to 17% of such Compensation. Authorization to reduce
Compensation shall be in writing and shall be delivered to the
Committee no later than 30 days prior to the date as of which
the Before-Tax Contribution becomes effective, unless the
Committee agrees to accept a later authorization according to
such uniform and nondiscriminatory rules as it may adopt. Such
Compensation reduction shall continue unchanged until the
Member terminates employment, changes or suspends the
Before-Tax Contribution in accordance with Section 3.4 or 3.5,
or transfers to the employment of a Nonparticipating Employer
or an ineligible class of Employees.
(b) Except as provided under Section 2.4 for certain reemployed
Members, regular Before-Tax Contributions made under Section
3.1(a) shall commence on an Entry Date.
(c) In addition to regular Before-Tax Contributions under Section
3.1(a), a Member may also elect once each calendar quarter, on
such forms as the Committee may prescribe, to make a single
sum reduction in Compensation which has not yet been received,
but which is due to be paid in such quarter.
(d) The aggregate reduction of such Member's Compensation for the
Plan Year resulting from single sum and regular payroll
reductions shall be no more than 17% of his Compensation for
such Plan Year, and the rate of regular payroll reductions
cannot be less than 2% of Compensation.
Before-Tax Contributions made under this Section 3.1 shall be subject
to the limitations of Sections 3.8, 4.4, and 4.6.
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III.2 After-Tax Contributions.
After-tax contributions are not permitted.
III.3 Rollover Contributions.
With the approval of the Committee, any Eligible Employee who is a
Member may make a Rollover Contribution to the Plan. A Rollover
Contribution shall be in cash or in such other property as is
acceptable to the Trustee. In the event that an Eligible Employee makes
a contribution pursuant to this Section that was intended to be a
Rollover Contribution which the Trustee later discovers not to be a
Rollover Contribution, the Trustee shall distribute to such Member as
soon as practicable after such discovery the account balance of his or
her Rollover Contribution Account. Any Eligible Employee who wishes to
make a Rollover Contribution to the Plan shall provide the Committee
with certification as to the eligibility of such contribution in the
form and manner, and at such time, as the Committee may request.
III.4 Change in Level of Contributions.
The Before-Tax Contribution percentage as designated by the Member
shall continue in effect, notwithstanding any change in his
Compensation, until he elects to change such percentage. Subject to the
requirements of Section 3.1, a Member may increase or decrease the rate
of such contributions on a daily basis by notifying the Trustee.
III.5 Suspension and Resumption of Contributions.
A Member may suspend the making of Before-Tax Contributions as of the
end of any payroll period. Providing he is still an Eligible Employee,
a Member who suspends his contributions pursuant to the above rule may
resume such contributions at any time, effective as of the beginning of
the next payroll period.
III.6 Change in Compensation.
In the event of a change in the Compensation of a Member, the
percentage of his Compensation that he has authorized as his Before-Tax
Contribution shall be applied as soon as practicable with respect to
such changed Compensation without action by the Member.
III.7 Remittance of Member Contributions.
Before-Tax Contributions
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will be remitted to the Trustee by the Employer as soon as practicable
(normally within 10 business days from the date such amounts would
otherwise be available to a Member in cash). All Before-Tax
Contributions shall be invested in accordance with the Member's
investment direction pursuant to Article V.
III.8 Limitation on Amount and Return of Before-Tax Contributions in Certain
Instances.
(a) In no event shall a Member's Before-Tax Contributions for a
taxable year exceed the dollar limit on excludable salary
deferrals under Code Section 402(g)(1) as adjusted for
increases in the cost of living pursuant to Code Section
402(g)(5). In the event a Member's Before-Tax Contributions
should exceed such dollar limit for a taxable year, the
excess, together with any investment earnings attributable
thereto, shall be returned to the Member no later than April
15 following the close of the taxable year for which the
excess contribution was made. For the purposes of this
Section, the Committee shall assume that the Member's taxable
year is the calendar year unless the Member notifies the
Committee to the contrary.
(b) In the event a Member's Before-Tax Contributions for a taxable
year under this Plan, together with his Before-Tax
Contributions under another plan which meets the requirements
of Code Section 401(k), exceed the limits set forth in (a)
above, the Member may treat a portion of such excess as having
been contributed to this Plan and request a return of such
excess together with any investment earnings attributable
thereto. Any such request shall be made no later than March 1
following the close of the taxable year for which the excess
contribution was made, and the return of such excess shall be
made no later than the immediately following April 15.
(c) For each Plan Year, the "average deferral percentage"
authorized by the Highly Compensated Group as Before-Tax
Contributions and Qualified Matching Contributions must meet
one of the following tests:
(i) the "average deferral percentage" of the Highly
Compensated Group may not exceed 1.25 multiplied by
the "average deferral percentage" of all other
Eligible Employees who are not in such group; or
(ii) the "average deferral percentage" of the Highly
Compensated Group may not exceed 2.0 multiplied by
the "average deferral percentage" of all other
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Eligible Employees, who are not in such group,
subject to a maximum differential of two percentage
points.
(d) The "average deferral percentage" for a group of eligible
Highly Compensated Employees for a Plan Year shall be the
average of the ratios (computed separately for each eligible
Highly Compensated Employee) of (i) the amount of each Highly
Compensated Employee's Before-Tax Contributions for the Plan
Year to (ii) the eligible Highly Compensated Employee's
Compensation for the Plan Year. The "average deferral
percentage" for all the Employees for a Plan Year shall be the
average of the ratios (computed separately for each Eligible
Employee) of (i) the amount credited to each Employee's
Before-Tax Contribution Account for the previous Plan Year to
(ii) the eligible Employee's Compensation for such preceding
Plan Year.
Compensation for this purpose, shall mean wages as defined in
Code Section 3401(a) for income tax withholding at the source)
determined without regard to any rules under Code Section
3401(a) that limit the remuneration included in wages based on
the nature or location of the employment or the services
performed (such as the exception for agricultural labor in
Code Section 3401(a)(2)). Compensation shall include Employer
contributions made pursuant to a salary reduction agreement
which are not includible in the Eligible Employee's gross
income under Code Section 125, 402(e)(3), 402(h), or 403(b).
For purposes of the foregoing, only Before-Tax Contributions
allocated to the Member's Account on a date within a Plan Year
and paid to the Trust Fund within 12 months following the
close of such Plan Year shall be considered in determining his
deferral percentage for such Plan Year. In addition, only
Before-Tax Contributions which are attributable to the
Compensation an Employee receives from the Employer during a
Plan Year or within 2 1/2 months following the close of such
Plan Year shall be considered in determining the Employee
deferral. If the Employer sponsors two or more plans which
include a cash or deferred arrangement but are considered one
plan for purposes of Code Section 401(a)(4) or 410(b), the
cash or deferred arrangements included in such plans shall be
treated as one plan for purposes of determining the "average
deferral percentage".
If any Eligible Employee who is a member of the Highly
Compensated Group is participating in two or more cash or
deferred arrangements sponsored by the Employer or an
Affiliated Employer, such cash or deferred arrangements shall
be treated as one arrangement for purposes of determining the
"deferral percentage" for such Eligible Employee.
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(e) From time to time, the Committee shall review the Before-Tax
Contributions authorized by Eligible Employees. If, upon such
review, the Committee determines that the average percentage
of such contributions applicable to the Highly Compensated
Group exceeds or is likely to exceed the maximum average
percentage necessary to comply with the above rules, the
Committee may reduce the Before-Tax Contributions of the
Highly Compensated Group, to the extent necessary to comply
with such rules. Such reduction shall be effected by
successive reductions of the highest dollar amount authorized
by one or more members of the Highly Compensated Group until
the average percentage applicable to the Highly Compensated
Group does not exceed the maximum average percentage referred
to above. Notwithstanding the foregoing sentence, the
Committee may impose a maximum dollar limitation which is less
than the amount specified in Code Section 402(g), or a maximum
percentage which is less than the percentage in Section 3.1 to
all Before-Tax Contributions made by the Highly Compensated
Group.
(f) If, after the end of the Plan Year, the Committee determines
that the Before-Tax Contributions made on behalf of Highly
Compensated Employees are in excess of the amounts allowed
under (c)(i) and (c)(ii) above, the Committee shall return any
Before-Tax Contributions in excess of the amount permitted
above, plus earnings thereon, to the affected Members until
the rules in either (c)(i) or (c)(ii) above are met. The
return of such excess contributions shall be made in the same
manner as described in paragraph (e) above. Such excess
contributions shall be distributed within 2 1/2 months, if at
all possible, following the end of the Plan Year in which such
Before-Tax Contributions were made and in no event later than
the close of the following Plan Year. The return of any excess
Before-Tax Contributions shall be made on a pro rata basis
from the funds in which the Before-Tax Contributions are then
invested, unless the Committee shall permit the Member to
elect such other method of return based on such uniform and
nondiscriminatory rules as it may adopt.
(g) For purposes of determining the investment earnings or losses
to be distributed pursuant to paragraphs (a), (b) and (f)
hereunder, the following rules shall apply:
The earnings or losses allocable to Before-Tax Contributions
is the earnings or losses allocable to the Member's Before-Tax
Contribution Account for the Plan Year multiplied by a
fraction, the numerator of which is the Before-Tax
Contributions to be distributed to the Member for the year and
the denominator is the Member's Account balance attributable
to Before-Tax Contributions without regard to any earnings or
losses occurring during such Plan Year.
(h) In the event that the Employer made an Employer Matching
Contribution with respect to any Before-Tax Contributions
returned pursuant to this Section, such Employer Matching
Contribution shall be distributed to the affected Members of
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the Highly Compensated Group or forfeited, as determined by
the Committee according to such uniform and nondiscriminatory
rules as it may adopt.
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ARTICLE IV
EMPLOYER CONTRIBUTIONS
IV.1 Employer Matching Contributions
(a) Each payroll period, the Employer shall make an Employer
Matching Contribution on behalf of each of its Members on the
first $200 per annum of Before-Tax Contributions. The amount
of such Employer Matching Contribution shall be equal to 50%
of the Member's Before-Tax Contributions during such Plan Year
up to a maximum match of $100 per Member per Plan Year (or
such higher maximum amount as the Employer may determine). All
Members who make Before-Tax Contributions during a Plan Year,
including those who incur a Severance from Service during the
Plan Year, shall be eligible for an Employer Matching
Contribution. Employer Matching Contributions shall be
allocated on the date such monies are received by the Trustee.
Employer Matching Contributions made under this Section 4.1 shall be
subject to the limitations of Sections 4.3, 4.4, and 4.6.
IV.2 Remittance of Employer Matching Contributions
Employer Matching Contributions will be paid by the Employer to the
Trustee as soon as practicable after such contribution amounts are
determined, but in no event later than the Employer's tax filing
deadline for its fiscal year in which such Plan Year ends. Employer
Matching Contributions shall be invested in accordance with the
Member's investment direction pursuant to Article V.
IV.3 Limitation on Amount of Employer Matching Contributions
(a) For each Plan Year, the "average contribution percentage" of
the Highly Compensated Group must meet one of the following
tests:
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(i) the "average contribution percentage" of the Highly
Compensated Group may not exceed 1.25 multiplied by
the "average contribution percentage" of all other
Eligible Employees who are not in such group; or
(ii) the "average contribution percentage" of the Highly
Compensated Group may not exceed 2.0 multiplied by
the "average contribution percentage" of all other
Eligible Employees who are not in such group, subject
to a maximum differential of two percentage points.
(b) The term "average contribution percentage" with respect to an
eligible Highly Compensated Employee for a Plan Year shall
mean the average of the value (calculated separately for each
Highly Compensated Employee) of (i) the Employee Matching
Contributions allocated to such Employee for the Plan Year,
compared to (ii) his Compensation for such Plan Year. With
respect to all eligible Employees who are not Highly
Compensated Employees the average contribution percentage
shall be the average of the ratios (calculated separately for
each Eligible Employee) of (1) the Eligible Employee's
Matching Contribution for the preceding Plan Year compared to
all compensation for such preceding Plan Year.
For purposes of this Section 4.3(b), Compensation shall have
the same meaning as under Section 3.8(d).
If the Employer sponsors two or more plans to which Employer
Matching Contributions are made and which are subject to Code
Section 401(m) but are considered one plan for purposes of
Code Section 401(a)(4) or 410(b), such plans shall be treated
as one plan for purposes of determining the "average
contribution percentage".
If any Eligible Employee who is a member of the Highly
Compensated Group is participating in two or more plans
sponsored by the Employer or an Affiliated Employer that
include Employer Matching Contributions subject to Code
Section 401(m), all such contributions will be treated as made
under one plan for purposes of this paragraph (b).
(c) If for any Plan Year the average contribution percentage for
the Highly Compensated Group exceeds the limits set forth in
(a) and (b) above, the excess aggregate contributions, (as
defined in Code Section 401(m)(6)(B)) shall be distributed to
the Highly Compensated Group within 2 1/2 months, if at all
possible, following the end of the Plan Year in which such
contributions were made and in no event later than the close
of the following Plan Year. The amount of such excess
aggregate contributions to be distributed shall be determined
by reductions of the Employer Matching Contribution percentage
of one or more members of the
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Highly Compensated Group who have contributed the largest
dollar amount until the average contribution percentage
applicable to the Highly Compensated Group does not exceed the
maximum average contribution percentage, referred to above.
The distribution of any "excess aggregate contributions" shall
be made on a pro rata basis from the funds in which the excess
aggregate contributions are then invested, unless the
Committee shall permit the Member to elect such other method
of distribution based on such uniform and nondiscriminatory
rules as it may adopt.
(d) The "excess aggregate contributions" to be distributed to a
Member shall be adjusted for investment earnings or losses
applicable thereto.
(e) For purposes of determining the investment earnings or losses
to be distributed pursuant to the foregoing paragraphs, the
following rules shall apply:
The earnings or losses equal the sum of (i) earnings or losses
allocable to the Member's Employer Matching Contribution
Account for the Plan Year multiplied by a fraction, the
numerator of which is Employer Matching Contributions to be
returned to the Eligible Employee for the year and the
denominator is the Eligible Employee's Account balance(s)
attributable to Employer Matching Contributions without regard
to any earnings or losses occurring during such Plan Year; and
(ii) 10% of the amount determined under (i) multiplied by the
number of whole calendar months between the end of the Plan
Year and the date of distribution, counting the month of
distribution if distribution occurs after the 15th of such
month.
IV.4 Aggregate Limit Test
(a) For any Plan Year in which the "average deferral percentage"
(as defined in Section 3.8) and the "average contribution
percentage" (as defined in Section 4.3) of the Highly
Compensated Group can only satisfy the limitations set forth
in Sections 3.8(c)(ii) and 4.3(b) respectively, but neither
can satisfy the limitations set forth in Sections 3.8(c)(i)
and 4.3(a), respectively, and all corrective measures have
been taken under Sections 3.8 and 4.3 to ensure compliance
with the provisions of Code Sections 401(k) and 401(m), the
aggregate limit test, prescribed under Treasury Regulation
Section 1.401(m)-2(b)(3), shall be applicable. The "aggregate
limit test" shall be deemed met if (i) below is greater than
or equal to (ii) below where:
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(i) equals the sum of (A) and (B) below where:
(A) equals 1.25 multiplied by the greater of (1)
or (2) where:
(1) equals the "average deferral
percentage" of the non-Highly
Compensated Group of Eligible
Employees; and
(2) equals the average contribution
percentage of the non-Highly
Compensated Group of Eligible
Employees; and
(B) equals the lesser of (1) or (2) above plus
two percentage points. In no event, however,
shall this amount exceed 2.0 multiplied by
the lesser of (1) or (2) above; and
(ii) equals the sum of (C) and (D) below where:
(C) equals the "average deferral percentage" of
the Highly Compensated Group; and
(D) equals the "average contribution percentage"
of the Highly Compensated Group.
(b) An alternative aggregate limit test may be used in place of
the "aggregate limit test" set forth in (a) above as long as
such test is permitted by the Internal Revenue Service. This
alternative aggregate limit test shall be deemed met if (i)
below is greater than or equal to (ii) below where:
(i) equals the sum of (A) and (B) below where:
(A) equals 1.25 multiplied by the lesser of (1)
or (2) where:
(1) equals the "average deferral
percentage" of the non-Highly
Compensated Group of Eligible
Employees; and
(2) equals the "average contribution
percentage" of the non-Highly
Compensated Group of Eligible
Employees; and
(B) equals the greater of (1) or (2) above plus
two percentage points. In no event, however,
shall this amount exceed 2.0 multiplied by
the greater of (1) or (2) above; and
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35
(ii) equals the sum of (C) and (D) below where:
(C) equals the "average deferral percentage" of
the Highly Compensated Group; and
(D) equals the average contribution percentage
of the Highly Compensated Group.
(c) In the event the applicable limits set forth in this Section
4.4 are not satisfied, the average contribution percentage for
all Highly Compensated Employees shall be reduced in
accordance with the provisions of Treasury Regulation Section
1.401(m)-2(c).
IV.5 Employer Core Contributions. Each Plan Year, the Employer will
contribute $300 on behalf of each Member, one half of which ($150) will
be paid as soon as practicable after the end of June and one-half of
which ($150) will be paid as soon as practicable after the end of
December. To be eligible to receive an allocation, a Member must be
employed throughout the six month period ending in June or December
provided, however, that notwithstanding the foregoing, a Member (or his
Beneficiary, as applicable) will be entitled to a pro-rated allocation
in the event of the Member's Retirement or death. The aforementioned
proration shall be based upon Months of Service, with a Member
receiving credit for a Month of Service if he is credited with one Hour
of Service for that month.
IV.6 Maximum Total Allocations.
(a) Anything to the contrary herein notwithstanding, in no event
shall the Annual Additions, as defined in Section 4.7, for any
Employee for any Plan Year exceed the lesser of:
(i) $30,000 or, if greater, 1/4 of the dollar limitation
in effect under Code Section 415(b)(1)(A) (which
amount shall be subject to adjustments as provided by
Treasury regulations under Code Section 415); or
(ii) 25% of the Employee's Compensation (as defined by
Treasury regulations under Code Section 415(c)) from
the Employer.
For purposes of this Section 4.6(a), the limitation year shall
be the Plan Year.
In the event an Annual Addition in excess of the lesser of (i)
or (ii) above is allocated to an Employee for a Plan Year,
such excess shall be corrected in the following order to the
extent required to eliminate the excess:
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36
(iii) After-Tax Contributions, plus any allocable interest
shall be refunded to the Employee if such
contributions were made to any qualified plan of the
Employer for the Plan Year.
(iv) Before-Tax Contributions shall be reduced. Any
reduction of Before-Tax Contributions shall be
credited to a suspense account and treated as the
first allocation of Before-Tax Contributions on
behalf of such Employee for the following Plan Year
(and succeeding Plan Years as necessary). In the
event that any Before-Tax Contributions in the
suspense account have not been allocated as
Before-Tax Contributions to the Employee as of his
Severance from Service, the Employer shall distribute
such remaining amounts to the Employee, including any
investment earnings thereon.
(v) Employer Matching Contributions shall be reduced. Any
reduction in Employer Matching Contributions shall be
used as the first allocation of Employer Matching
Contributions on behalf of such Employee for the
following Plan Year and subsequent Plan Years until
fully utilized. If such Employee is not covered by
the Plan during such subsequent Plan Years, the
remaining excess amounts shall be held in a suspense
account and allocated pro rata to the Employer
Matching Contribution Accounts of the other Employees
on the last day of the applicable following Plan
Year; thereby reducing the Employer's Actual Matching
Contribution for such Plan Year.
No contributions shall be made to the Plan on behalf of an
Employee for any period during which a suspense account is in
existence for such Employee.
(b) In the case of an Employee who has participated in a defined
benefit plan maintained by the Employer or an Affiliated
Employer, the sum of the "defined benefit plan fraction" and
the "defined contribution plan fraction" determined as of the
close of any Plan Year, shall not exceed one. An Employee's
defined benefit plan fraction and defined contribution plan
fraction shall be determined as follows:
(i) The "defined benefit plan fraction" is a fraction
with a numerator equal to the Employee's projected
annual retirement benefit determined (other than any
benefit attributable to Employee contributions) under
the defined benefit plan and a denominator equal to
the lesser of (A) 1.25 multiplied by the dollar
limitation in effect under Code Section 415(b)(1)(A)
for such Plan Year; or (B) 1.4 multiplied by 100% of
the Employee's compensation (as defined by Treasury
regulations under Code Section 415) which may be
taken into account for such Plan Year.
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(ii) The "defined contribution plan fraction" is a
fraction with a numerator equal to the sum of the
Annual Additions to the Employee's Account and a
denominator equal to the sum for each calendar year
of the Employee's employment with the Employer, any
predecessor of the Employer, or an Affiliated
Employer of the lesser of (A) 1.25 multiplied by the
amount determined in accordance with Code Section
415(3)(B)(i) for each such Plan Year; or (B) 1.4
multiplied by 25% of the Employee's compensation (as
defined by Treasury regulations under Code Section
415) which may be taken into account for each such
Plan Year.
For the purpose of applying this Section 4.6(b), all defined benefit
plans and all defined contribution plans maintained by the Employer and
all Affiliated Employers, including plans that have been terminated
shall be aggregated.
If, in any Plan Year, the sum of the "defined benefit plan fraction"
and "defined contribution plan fraction" of a Member would exceed one
without adjustment of the amount of Annual Additions that can be
allocated to such Member, then the amount of maximum annual benefit
that can be paid to such Member under any defined benefit plan
maintained by an Affiliated Employer shall be reduced to the extent
necessary to reduce the sum of the defined benefit plan fraction and
defined contribution plan fraction for such Member to one.
IV.7 Annual Additions. The Annual Addition with respect to an Employee for
any Plan Year shall be the sum of the following amounts allocated to
his Account for the Plan Year:
(a) all after-tax contributions under any other plan of the
Employer; plus
(b) Employer Matching Contributions, Employer Core Contributions
and any other Employer contributions; plus
(c) Before-Tax Contributions; plus
(d) any forfeitures allocated to a Member under any other plan
maintained by the Employer; plus
(e) any amount applied from the suspense account (pursuant to
Section 4.6); plus
(f) excess contributions and excess aggregate contributions as
defined in Code Sections 401(k)(8)(B) and 401(m)(6)(B),
respectively; plus
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(g) excess deferrals as defined in Code Section 402(g)(2) which
are not distributed to the Employee by the April 15 following
the individual's tax year in which such excess deferrals
occurred; plus
(h) amounts described in Code Sections 415(1)(1) and 419A(d)(2).
For purposes of applying this Section 4.7, all defined contribution
plans maintained by the Employer and all Affiliated Employers shall be
aggregated.
The term Annual Additions shall not include any Rollover Contributions.
IV.8 Contributions Conditioned on Tax Deductibility. All Before-Tax
Contributions, Employer Matching Contributions and Employer Core
Contributions shall be conditioned upon their deductibility by the
Employer for Federal income tax purposes; provided, however, that no
contributions shall be returned to the Employer, except as provided in
Section 4.9.
IV.9 Return of Contributions. Notwithstanding any other provision of this
Plan, a Before-Tax Contribution or an Employer Matching Contribution,
upon request by the Employer, may be returned to the Employer who made
the contribution if:
(a) the contribution was made by reason of a mistake of fact;
(b) the contribution was conditioned upon its deductibility for
income tax purposes and the deduction was disallowed; or
(c) the contribution was made under the assumption that the Plan
would initially be qualified by the Internal Revenue Service,
but a notice is received by the Employer that the Plan fails
to be initially qualified under the applicable Code Sections.
The return to the Employer of the amount involved in either (a), (b),
or (c) shall occur within 1 year of the mistaken payment of the
contribution, the disallowance of the deduction, or upon notification
that the Plan fails to initially qualify, as the case may be.
The amount which may be returned to the Employer is the excess of the
amount contributed over the amount that would have been contributed had
there not occurred the circumstances causing the excess. Earnings
attributable to the excess contribution may not be returned to the
Employer, but losses thereto shall reduce the amount to be returned.
Furthermore, if the withdrawal of the amount attributable to the excess
contribution would
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39
cause the balance of the Account of any Member to be reduced to less
than the balance which would have been in the Account had the excess
amount not been contributed, then the amount to be returned to the
Employer shall be limited to avoid such reduction. In the event any
Before-Tax Contributions are returned to an Employer pursuant to this
Section 4.9, the Employer shall directly reimburse affected Members for
the amounts so returned.
Pursuant to Section 4.9(c), if the initial determination letter is
issued by the Internal Revenue Service to the effect that the Plan and
Trust herein set forth or as amended prior to the receipt of such
letter do not meet the requirements of Code Sections 401(a) and 501(a),
the Employer shall be entitled at its option to withdraw, within 1 year
of the receipt of such letter, all contributions made on and after the
Effective Date. In such event, the Plan and Trust shall then terminate
and all rights of the Employees shall be those as if the Plan had never
been adopted.
IV.10 Payment of Expenses. In addition to its contributions, the Employer may
elect to pay the reasonable administrative expenses of the Plan and
fees and retainers of the Plan's Trustees, consultants, administrators,
recordkeepers, auditors, counsel, and other advisors or service
providers so long as the Plan or Trust Fund remains in effect. If the
Employer does not elect to pay all or part of such expenses, the
Trustee may pay these reasonable expenses and charge the payment
thereof against the Trust Fund proportionate to the market value of
each Investment Fund as of the most recent Valuation Date.
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ARTICLE V
INVESTMENT OF CONTRIBUTIONS
V.1 Committee to Establish Accounts. The Committee shall establish and
maintain a separate accounting in the name of each Member and Former
Member which shall reflect all contributions by the Member or Former
Member, all amounts contributed by the Employer under the Plan on his
behalf, earnings on all such contributions, any distributions,
withdrawals, and any expenses charged against such contributions. The
separate accounting in the name of each Member and Former Member shall
include a separate accounting for Before-Tax Contributions, Employer
Matching Contributions, Employer Core Contribution, and Rollover
Contributions.
V.2 Investment Options. Subject to the provisions of Sections 5.3 and 5.4,
a Member and any Former Member shall provide direction as to the
investment of his Before-Tax Contributions and Rollover Contributions.
Employer Matching Contributions and Employer Core Contributions shall
be invested in the same manner as the Member's Before-Tax
Contributions. The Committee shall establish the investment funds in
which Members may invest contributions and may, in its sole discretion,
eliminate one or more investment funds, offer additional investment
funds, or alter the underlying investments of one or more funds from
time to time. Members shall be notified of any changes in investment
funds prior to the effective date of such changes.
V.3 Change in Investment Options. Subject to Section 5.4, a Member may
change the investment allocation of his future Before-Tax Contributions
on a daily basis. Subject to Section 5.4, a Member or Former Member may
also change the investment allocation of his existing Account on a
daily basis.
V.4 Investment Rules. The following rules shall govern all aspects of this
Article V:
(a A Member shall provide direction for the investment of his
current Before-Tax Contributions and Rollover Contributions in
multiples of 5%, in any of the
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available investment funds. Employer Matching Contributions
and Employer Core Contributions shall be invested in the same
percentages as the Member's Before-Tax Contributions.
Reallocation of the Member's or Former Member's existing
Account pursuant to Section 5.3 shall also be made to any of
the available investment funds in multiples of 5%.
(b Any investment direction given by a Member or Former Member
shall continue in effect until changed by such Member or
Former Member as provided hereunder.
(c In the absence of any designation of investment preference by
the Member or Former Member, Before-Tax Contributions,
Employer Matching Contributions, Employer Core Contribution,
and Rollover Contributions shall be invested 100% in a money
market fund. The Member shall acknowledge in writing this
default option.
(d Notwithstanding any instruction from any Member or Former
Member for investment of funds as provided in this Article V,
the Trustee shall have the right to hold uninvested, or
invested in short-term fixed income investments, any funds
intended for investment or reinvestment as otherwise provided
in this Article V for such time as the Trustee, in its sole
discretion, deems advisable.
(e The Committee may limit changes otherwise permitted hereunder
in the investment allocation of a Member's or Former Member's
Account to the extent a change is precluded as a result of a
temporary period of adverse liquidity with respect to an
investment fund or to the extent a change would adversely
affect the investment return of Accounts of other Members or
Former Members.
(f The Committee may establish rules to implement the provisions
of this Article V, including, without limitation, the use of a
voice response system.
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ARTICLE VI
TRUST FUND
VI.1 Trust Fund. All Accounts shall be held in the Trust Fund and each
Member's and Former Member's interest in the investment funds shall be
valued in accordance with Sections 6.2 and 6.3.
VI.2 Valuation of Funds. The Accounts of all Members shall be adjusted on a
daily basis to reflect the effects of contributions and withdrawals,
income, realized and unrealized gains and losses, and expenses
applicable to the investment fund or funds in which such Accounts are
invested.
VI.3 Allocation of Income, Profits, Losses and Expenses. The Accounts of all
Members and Former Members shall be adjusted on a daily basis to
reflect the effects of contributions and withdrawals, income, realized
and unrealized gains and losses, and expenses applicable to the fund or
funds where such Accounts are invested. As provided by written
procedures established by the Committee, such adjustments shall be
based upon the proportion that each Member's and Former Member's
Account invested in a fund bears to the total of all Accounts of all
Members and Former Members invested in the same fund.
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ARTICLE VII
DEATH
VII.1 Amount of Death Benefit. Upon the death of a Member or Former Member
prior to the complete distribution of his Account in accordance with
Article XI, his Beneficiary shall be entitled to 100% of the Member's
Account.
VII.2 Payment of Death Benefit. After receipt by the Committee of due notice
of the death of the Member or Former Member, the benefit payable under
this Article VII shall be paid to his Beneficiary in one lump sum as
soon as practicable after the Valuation Date coincident with or next
following the date of such Member's death.
VII.3 Designation of Beneficiary. Each Member or Former Member shall have the
right, by written notice to the Committee, to designate or to change
the Beneficiary to receive any benefit payable in the event of his
death, subject to the spousal consent requirements of Section 1.5, if
he is then married.
VII.4 Payment Other Than to Beneficiary. If a Member has not designated a
Beneficiary, or the Member's designated Beneficiary dies before the
Member, or the Beneficiary dies after the death of the Member or Former
Member but prior to receiving the full death benefit hereunder, the
Member's remaining Account shall be paid with priority as follows:
(a the Member's surviving Spouse;
(b children, and children of deceased children, per stirpes;
(c brothers and sisters, or if deceased, the children of such
brothers and sisters, per stirpes; and
(d the estate of the Member.
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ARTICLE VIII
VESTING AND TERMINATION OF EMPLOYMENT
VIII.1 Vesting of Contributions. A Member shall at all times be 100% vested in
his Rollover Contribution Account and Before-Tax Contribution Account.
A Member shall vest in his Employer Matching Contribution Account and
his Employer Core Contribution Account after the completion of five (5)
Years of Service, provided, however, that notwithstanding the
foregoing, an employee will be fully vested in his Employer Matching
Contribution Account and his Employer Core Contribution Account upon
attaining his Normal Retirement Age. If a Member incurs a Severance
from Service prior to the completion of five (5) Years of Service, the
balance in the Member's Employer Matching Contribution Account and
Employer Core Contribution Account shall be forfeited.
VIII.2 Method of Payment. When a Member incurs a Severance from Service, his
vested Account shall be distributed pursuant to the provisions of
Article XI. If a Member's vested percentage is zero when he incurs a
Severance from Service, he shall be deemed to have received a
distribution of zero dollars.
VIII.3 Forfeiture. Any forfeiture arising hereunder shall be used to reduce
future Employer Matching Contributions and Employer Core Contributions,
respectively.
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ARTICLE IX
LOANS
IX.1 Loans. The Plan may lend a Member who is actively employed an amount
not in excess of the lesser of (i) $50,000 reduced by the Member's
highest outstanding loan balance from the Plan during the preceding
12-month period; or (ii) 50% of the value of his vested Account as of
the date on which the loan is approved.
IX.2 Rules Relating to Loans. All loans shall comply with the following
terms and conditions:
(a Loan amounts shall be in $100 increments and the minimum
amount that may be borrowed under the Plan shall be $500.
(b Loans may be applied for as of any date with prior notice as
the Committee may approve according to uniform and
nondiscriminatory rules it may adopt. No more than one loan
may be made to a Member in a calendar year and no more than
two loans may be outstanding to a Member at any time.
(c An application for a loan by a Member shall be made by
contacting the Trustee.
(d Unless the Member is on an unpaid leave of absence, repayment
of a loan shall be made based on level amortization of the
loan amount and shall be made no less frequently than
quarterly over the term of the loan. The Member shall
authorize the Employer to make regular payroll deduction in
level amounts sufficient to accomplish the repayment. All loan
repayments shall be made with after-tax dollars.
(e The period of repayment for any loan shall be arrived at by
mutual agreement between the Committee, or its delegate, and
the Member, but subject to a minimum repayment period of 1
year and a maximum repayment period of 4 years. Loans may be
prepaid in full at any time without penalty. Partial
repayments are also permitted.
(f Each loan shall be made against the collateral assignment of
the Member's right, title, and interest in the portion of his
Account against which the loan is taken,
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evidenced by such Member's collateral promissory note for the
amount of the loan, including interest, payable to the order
of the Plan and shall not exceed 50% of the Member's Account
balance.
(g Each loan shall bear a reasonable rate of interest, which
shall be the prime rate of interest as published in the "money
rate" section of the Wall Street Journal as of the first
business day of the month preceding the effective date of the
loan, plus 2%. The Committee shall review the rate of interest
to determine if it is consistent with commercial rates for
similar loans and if not, the Committee shall have the
authority to modify such rate of interest for new loans to be
consistent with such commercial rates.
(h In the event a loan repayment is not made, or is not paid at
maturity, or in the event of a Member's bankruptcy or
impending bankruptcy, insolvency, or impending insolvency, the
loan shall be deemed to be in default and the Committee, or
its delegate, shall give written notice of such default to
such Member to his last known address. If the default is not
cured by the end of the calendar quarter following the
calendar quarter in which the initial participant has missed,
the Member's Account shall be reduced by the amount of the
unpaid balance of the loan, together with the interest
thereon, and the Member's indebtedness shall thereupon be
discharged. This reduction shall occur as soon as the Member
could have received a distribution of the portion of the
Account balance so reduced under applicable law, disregarding
the provisions of (i) below.
(i Upon termination or Retirement prior to complete repayment of
the loan, a Member must elect to continue repayment of the
loan, or elect to treat the outstanding loan balance as a
distribution from the Plan. All loans shall be restricted to a
Member's Before-Tax Contribution Account.
(j All loans shall be debited to the investment of a Member's
Account as such Account is invested in the amount(s)
authorized by the Member. In the absence of any authorization
from the Member, a loan shall be debited on a pro rata basis
from the funds in which his Account is invested at the time
the loan is originated.
(k Upon receipt of a loan repayment and associated interest, the
Trustee shall deposit such repayment in accordance with the
Member's current investment election for contributions at the
time of the repayment. The Trustee shall also credit such
repayment to the Member's Before-Tax Contribution Account.
(l Loans will be made available hereunder on a reasonably
equivalent basis.
(m There will be a loan initiation fee of $35 for each new loan
chargeable to the Member.
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(n No loan shall be made to any Former Member unless he is a
party-in-interest under ERISA Section 3(14).
(o Loan repayments will be suspended under this Plan as permitted
under Code Section 414(u)(4) for any part of any period during
which an Employee is performing services in the uniformed
services, whether or not qualified military service.
(p The Committee may adopt such other rules and regulations
relating to loans as it may deem appropriate.
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ARTICLE X
WITHDRAWALS
X.1 Non-Hardship Withdrawals from Rollover Contribution Account. Subject to
the provisions of Sections 10.4 and 10.5, a Member may elect to
withdraw any portion of his Rollover Contribution Account for any
reason as of any Valuation Date. A Member may elect one such withdrawal
in any calendar quarter.
X.2 Withdrawals After Age 59 1/2. Subject to the provisions of Sections
10.4 and 10.5, a Member who has attained age 59 1/2 may elect to
withdraw any portion of his vested Account for any reason as of any
Valuation Date.
X.3 Hardship Withdrawals. Subject to the provisions of Sections 10.4 and
10.5, a Member who has not attained age 59 1/2 shall have the right to
withdraw the portion of his Pre-Tax Account needed to meet a "financial
hardship", as defined herein:
(a For the purpose of this Section 10.3, a financial hardship
shall mean an immediate and heavy financial need as specified
in Treasury Regulation Section 1.401(k)-I(d)(2)(iv) which
cannot be met from any other available resource. These are:
(i medical expenses described in Code Section 213(d)
incurred by the Member, his Spouse, or dependents;
(ii costs directly related to the purchase of the
Member's principal residence (other than mortgage
payments);
(iii tuition payments for the post-secondary education of
the Member, his Spouse, children, or dependents; and
(iv payments needed to prevent eviction from, or
foreclosure on, the Member's principal residence.
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The Committee shall determine in its sole discretion whether a
financial hardship exists to warrant a withdrawal, and if such
hardship exists, the amount of the withdrawal necessary to
meet the hardship.
(b A Member shall be deemed to lack other resources to satisfy
the financial hardship as required under subsection (a) of
this Section if the following conditions are satisfied:
(i the Member has withdrawn all amounts available to him
under all of the Employer's (and Affiliated
Employer's) qualified plans;
(ii the Member has borrowed any amounts available to him
under this Plan pursuant to Article IX and from any
other qualified plans of the Employer and Affiliated
Employers, unless the repayment of the amount
borrowed would constitute a financial hardship to the
Member;
(iii if the Member has made a withdrawal from his
Before-Tax Contribution Account, the Member's
Before-Tax Contributions to the Plan are suspended
for the 12-month period immediately following the
date of the hardship withdrawal; and
(iv if the Member has made a withdrawal from his
Before-Tax Contribution Account, the Member's maximum
Before-Tax Contribution permitted under Article III
for the Plan Year following the Plan Year in which
the hardship withdrawal was made is reduced by the
amount of the Member's Before-Tax Contributions made
during the Plan Year in which the hardship withdrawal
occurred.
(c In lieu of the conditions outlined in (b) above, a Member may
provide the Committee with written documentation that he lacks
other resources to satisfy his financial hardship. The written
documentation required to be provided by the Member for such
demonstration shall be determined by the Committee.
In no event shall the amount of the withdrawal exceed the amount
necessary to meet the Member's financial hardship.
X.4 Rules for Withdrawals. The following rules shall apply to withdrawals
made pursuant to this Article X:
(a No more than one non-hardship withdrawal from the Rollover
Contribution Account may be made in any calendar quarter
unless otherwise permitted in
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accordance with such uniform and nondiscriminatory rules as
the Committee may adopt.
(b A Member who has not attained age 59 1/2 may not withdraw that
portion of his Before-Tax Contribution Account which is
attributable to investment earnings.
(c Except as provided in Section 10.2, a Member may not elect to
withdraw Employer Matching Contributions or Employer Core
Contribution made on behalf of such Member for any Plan Year.
(d A Member shall request a withdrawal hereunder by providing the
Committee or its designee with advance request of the
withdrawal, except that the Committee may agree to accept a
later request in the case of a withdrawal for financial
hardship. The Member will receive such payment as soon as
practicable after the Committee receives the request.
(e The amount otherwise available as a withdrawal from the Plan
under this Article shall be reduced by the amount of any loan
outstanding at the time a withdrawal request is made, and no
withdrawal shall be permitted under this Article X to the
extent that such withdrawal would cause the aggregate of the
loans outstanding to exceed the limits expressed in Article
IX.
(f Withdrawals shall be effective as of the date the Committee
approves the withdrawal.
(g Any withdrawal shall be paid in cash as soon as practicable
following the Valuation Date coincident with or next following
the approval of the withdrawal.
X.5 Debiting of Withdrawals. All withdrawals under Section 10.2 shall be
debited to a Member's vested Account first from his Rollover
Contribution Account, next from the available portion of his Employer
Core Contribution Account, next from the available portion of his
Employer Matching Contribution Account, and then from his Before-Tax
Contribution Account.
In the event that the provisions of this Article X prohibit a
withdrawal from a Member's Account in the sequence described in the
preceding sentence, the amounts withdrawn shall follow such sequence
only to the extent otherwise permitted by the provisions of this
Article X. All withdrawals shall be debited against the investment
funds in the same proportion as such Account is then invested.
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ARTICLE XI
PAYMENT OF BENEFITS
XI.1 Entitlement to Distribution. If a Member incurs a Severance from
Service or becomes Disabled, he may elect to receive the vested portion
of his Account as provided herein. Notwithstanding the foregoing, a
Member who is laid off with rights of recall may not elect to receive
the vested portion of his Account until his recall rights have expired.
XI.2 Form of Payment.
(a An Account whose value is $5,000 or less shall automatically
be distributed in one lump sum payment in accordance with the
provisions of Section 11.3.
(b The normal form of payment for an Account whose value is more
than $5,000 shall also be one lump sum payment. The
distribution of any Account, the value of which exceeds
$5,000, shall require the written consent of the Member or
Former Member, if such distribution is scheduled to occur
prior to the date such Member attains age 65.
(c If a Member or Former Member incurs a Severance from Service
and meets the eligibility requirements for Retirement, he may
elect to receive a distribution of his Account:
(i in one lump sum payment;
(ii in a partial lump sum payment and defer distribution
of the remaining Account balance until any date up to
age 70;
(iii in the form of substantially equal installments,
payable no less than annually, over a specified
number of years which shall not exceed the lesser of
10 and the Member's life expectancy period determined
under the applicable provisions of Code Section
401(a)(9) and the regulations thereunder. Each year
the amount of such installment payment shall be
determined by dividing the Member's remaining Account
balance by a divisor. The initial divisor shall be
equal to the number of annual
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installments. Each year such divisor shall be reduced
by one until there are no remaining installments; or
(iv notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Member's (or a
Payee's) election under this Section, a Member (or a
Payee) may elect, at the time and in the manner
prescribed by the Committee, to have any portion of
an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan specified by a Member (or a
Payee) in a Direct Rollover.
(d Not more than 90 days nor less than 30 days before a Member's
payment date, the Committee shall furnish the Member with a
notice containing information about electing the form in which
benefits are to be paid. Each Member may elect, in such manner
as the Committee may provide, not to take the normal form of
benefit payment and to elect an optional form of benefit
payment. The election period is the 90-day period ending on
the date the Member is entitled to receive payment. The
Committee may, on a uniform and nondiscriminatory basis,
provide for other periods that comply with regulations issued
under Code Sections 401(a)(11) and 417.
If a Member does not make an election within 90 days of the
receipt of his election form, the Member shall be deemed to
have elected a lump sum distribution.
If the normal form of benefit payment is one to which Code
Section 401(a)(11) and 417 do not apply, such benefit payment
may commence less than 30 days after the notice required under
Treasury Regulation Section 1.411(a)-11(c) is given, provided
that:
(i the Committee clearly informs the Member that the
Member 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 or an
optional form of benefit payment, and
(ii the Member, after receiving the notice, affirmatively
elects a distribution.
XI.3 Time of Payment.
(a To the extent practicable, and unless otherwise elected by the
Member or Former Member pursuant to Section 11.3(c) or (d),
any distribution shall be made as soon as practicable after
the event which gave rise to the distribution, but in no event
more than twelve months thereafter. Generally, benefits will
not commence hereunder until the Member or Former Member
returns a completed form to the
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Committee or its designee with 30 days prior notice or such
lesser notice as the Committee shall approve according to
uniform and nondiscriminatory rules it may adopt. However, if
the Member or Former Member fails to return the completed
election form to the Committee, benefits will automatically
commence within the period described in Section 11.3(b),
11.3(c), or 11.5, whichever is applicable.
(b Unless a Member or Former Member elects a deferred payment in
accordance with Section 11.3(c) or (d), or unless Section 11.5
applies, distribution shall commence no later than 60 days
after the close of the Plan Year in which (i) the Member or
Former Member attains age 65; (ii) the 10th anniversary of the
Member's or Former Member's commencement of participation
occurs; or (iii) the Member or Former Member terminates
employment, whichever is latest.
(c A Member or Former Member who has an Account which is $5,000
or less shall have such Account distributed to him as soon as
practicable following his Severance from Service. However, a
Member or Former Member may elect, in such manner as the
Committee may provide, to defer the commencement of such
distribution under this Article XI to a date which is not
later than the first anniversary of his Severance from
Service, subject to the limitations of Section 11.5. In the
event a Member or Former Member elects to defer receipt of his
Account pursuant to this paragraph, his Account shall continue
to be valued in accordance with Article VI and shall be
invested in accordance with such election under Article V. If
a Member or Former Member whose Account balance is $5,000 or
less makes no deferral election, his Account shall be
distributed to him as soon as practicable following his
Severance from Service.
(d A Member or Former Member who has an Account which is greater
than $5,000 may elect, by not consenting in writing to a
distribution, to defer the commencement of such distribution
under this Article XI to a date which is not later than
December 31 of the calendar year preceding his attainment of
age 70. In the event a Member or Former Member elects to defer
receipt of his Account pursuant to this paragraph, his Account
shall continue to be valued in accordance with Article VI and
shall be invested in accordance with such election under
Article V.
(e If a Member or Former Member has elected a deferred payment
under Section 11.3(c) or (d), he may at any time thereafter
elect to change the time or manner of payment of the unpaid
portion of his Account in accordance with the further
provisions of this Article XI.
XI.4 Amount of Distribution. The amount of any
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distribution shall be determined by the amount in the Member's or
Former Member's Account as of the date of such distribution.
XI.5 Limitation on Distributions. With respect to 5% owners within the
meaning of Code Section 416(i), distribution of benefits shall not be
deferred beyond the April 1 following the calendar year in which the
Member attains age 70-1/2. With respect to non-5% owners, distribution
of benefits shall be deferred under the April 1 of the calendar year
following the later of the year in which the Employee attains age
70-1/2 or retires. In the event distributions must commence to a Member
as provided in the previous sentence, the Member may elect a full
distribution of his Account or installment payments as described in
Section 11.2(c). If installments are elected, the divisor under Section
11.2(c) for any year shall be the lesser of the divisor under such
paragraph, or the divisor that would be required under Code Section
401(a)(9) and attendant regulations. Upon the death of a Member,
distribution of his remaining Account shall be made to his Beneficiary
no later than 5 years following the Member's death. In any event,
distributions hereunder shall be made in accordance with Code Section
401(a)(9), including the incidental death benefit requirements of such
Code Section, and regulations thereunder, including Treasury Regulation
Section 1.401(a)(9)-2. Such regulations and applicable rulings or
announcements, including any grandfather provisions or provisions
delaying the effective date of Code Section 401(a)(9), are hereby
incorporated by reference.
XI.6 Segregated Accounts. If a Member or Former Member has elected to have
his Account distribution, or any part thereof, deferred to a later date
pursuant to Section 11.2 or 11.3, the Account of such individual will
continue to be invested in accordance with the most recent investment
direction on file with the Committee. If there is no investment
direction on file, the Committee shall direct the Trustee to segregate
the Member's or Former Member's interest in the Plan and invest such
interest in a money market fund as described in Section 5.4(c). Amounts
invested in this manner shall share the earnings, on a pro rata basis,
attributable to such fund.
XI.7 Missing Persons. If the Committee shall be unable, within 5 years after
any amount becomes due and payable from the Plan to a Member or
Beneficiary, to make payment because the identity or whereabouts of
such person cannot be ascertained, the Committee may mail a notice by
registered mail to the last known address of such person outlining the
action to be taken unless such person makes written reply to the
Committee within 90 days from the mailing of such notice. The Committee
may direct that such amount and all further benefits with respect to
such person shall be forfeited and all liability for the payment
thereof shall terminate. However, in the event of the subsequent
reappearance of the Member or Beneficiary prior to termination of the
Plan, the benefit
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which was forfeited (but not any earnings attributable to such
forfeiture) shall be reinstated in full. Any benefits forfeited shall
be applied to reduce future Employer Matching Contributions or Employer
Core Contribution to the Plan, as applicable.
Reinstatement of any benefit forfeited under this Section 11.7 shall be
made by the Employer with an additional contribution to the Plan.
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ARTICLE XII
ADMINISTRATION
XII.1 Responsibility for Plan and Trust Administration. The Employer shall
have the sole authority to appoint and remove the Trustee, members of
the Committee, and any investment manager which may be provided for
under the Trust, and to amend or terminate, in whole or in part, this
Plan or the Trust. The Employer, through its Committee, shall have the
responsibility for the administration of this Plan, which is
specifically described in this Plan and the related Trust Agreement.
The Employer shall be the named Fiduciary for purposes of the Code and
ERISA.
XII.2 Retirement Plan Committee. The Plan shall be administered by the
Employer through the Retirement Fund Plan Committee, referred to as
"Committee", consisting of no fewer than three nor more than five
persons to be appointed by and to serve at the pleasure of the
Employer. Any person appointed as a member of the Committee may resign
from the Committee by delivering his written resignation to both the
Board of Directors of the Employer and the Secretary of the Committee.
The Committee shall be the Plan Administrator, within the meaning of
Section 3(16)(A) of ERISA.
XII.3 Agents of the Committee. The Committee may delegate specific
responsibilities to other persons as the Committee shall determine. The
Committee may authorize one or more of their number, or any agent, to
execute or deliver any instrument or to make any payment in their
behalf. The Committee may employ and rely on the advice of counsel,
accountants, and such other persons as may be necessary in
administering the Plan.
XII.4 Committee Procedures. The Committee may adopt such rules as it deems
necessary, desirable, or appropriate. All rules and decisions of the
Committee shall be uniformly and consistently applied to all Members in
similar circumstances. When making a determination or calculation, the
Committee shall be
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entitled to rely upon information furnished by a Member, Former Member,
or Beneficiary, the Employer, the legal counsel of the Employer, or the
Trustee.
The Committee may act at a meeting or in writing without a meeting. The
Committee shall elect one of its members as chairman, appoint a
secretary, who may or may not be a Committee member and advise the
Trustee of such actions in writing. The secretary shall keep a record
of all meetings and forward all necessary communications to the
Employer and the Trustee. The Committee may adopt such bylaws and
regulations as it deems desirable for the conduct of its affairs. All
decisions of the Committee shall be made by the vote of the majority
including actions in writing taken without a meeting.
XII.5 Administrative Powers of the Committee. The Committee may from time to
time establish rules for the administration of the Plan. Except as
otherwise herein expressly provided, the Committee will have the
exclusive right and discretionary authority to interpret the Plan and
decide any matters arising hereunder in the administration and
operation of the Plan, and any interpretations or decisions so made
will be conclusive and binding on all persons having an interest in the
Plan; provided, however, that all such interpretations and decisions
will be applied in a uniform and nondiscriminatory manner to all
Employees. The Committee shall have no right to modify any provisions
of the Plan as herein set forth.
XII.6 Benefit Claims Procedures. All claims for benefits under the Plan shall
be in writing and shall be submitted to the Committee member designated
as Committee secretary by the Committee. If any application for payment
of a benefit under the Plan shall be denied, the Committee shall notify
the claimant within 90 days of such application setting forth the
specific reasons therefor and shall afford such claimant a reasonable
opportunity for a full and fair review of the decision denying his
claim. If special circumstances require an extension of time for
processing the claim, the claimant will be furnished with a written
notice of the extension prior to the termination of the initial 90-day
period. In no event shall such extension exceed a period of 90 days
from the end of such initial period. The extension notice shall
indicate the special circumstances requiring an extension of time and
the date by which the Committee expects to render its decision.
Notice of such denial shall set forth, in addition to the specific
reasons for the denial, the following:
(a reference to pertinent provisions of the Plan;
(b such additional information as may be relevant to the denial
of the claim;
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(c an explanation of the claims review procedure; and
(d notice that such claimant may request the opportunity to
review pertinent Plan documents and submit a statement of
issues and comments. The notice must also provide a
description of any additional information necessary for the
claimant to substantiate his claim and an explanation of why
such materials are necessary.
Within 60 days following notice of denial of his claim, upon written
request made by any claimant for a review of such denial to the
Committee secretary, the Committee shall take appropriate steps to
review its decision in light of any further information or comments
submitted by such claimant.
The Committee shall render a decision within 60 days after the
claimant's request for review and shall advise said claimant in writing
of its decision on such review, specifying its reasons and identifying
appropriate provisions of the Plan. If special circumstances require an
extension of time for processing, a decision will be rendered as soon
as possible, but not later than 120 days after receipt of a request for
the review. If the extension of time for review is required because of
special circumstances, written notice of the extension shall be
furnished to the claimant prior to the commencement of the extension.
If the decision is not furnished within such time, the claim shall be
deemed denied on review. The decision on review shall be in writing and
shall include specific reasons for the decision, written to the best of
the Committee's ability in a manner calculated to be understood by the
claimant without legal counsel, as well as specific references to the
pertinent Plan provisions on which the decision in based.
XII.7 Reliance on Reports and Certificates. The Employer (or the Committee if
so designated by the Employer) will be entitled to rely conclusively
upon all valuations, certificates, opinions, and reports which may be
furnished by the recordkeeper, or any accountant, controller, counsel,
or other person who is employed or engaged for such purposes and shall
exercise the authority and responsibility as it deems appropriate to
comply with all of the legal and governmental regulations affecting the
Plan.
XII.8 Other Committee Powers and Duties. The Committee shall have such duties
and powers as may be necessary to discharge its duties hereunder,
including, but not by way of limitation, the following:
(a to prescribe written procedures to be followed by Members,
Former Members, or Beneficiaries filing applications for
benefits;
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(b to prepare and distribute, in such manner as the Committee
determines to be appropriate, information explaining the Plan;
(c to receive from the Employer, Members, and Former Members such
information as shall be necessary for the proper
administration of the Plan;
(d to furnish the Employer, upon request, such annual reports
with respect to the administration of the Plan as are
reasonable and appropriate;
(e to receive and review the periodic valuations of the Plan made
by the recordkeeper; and
(f to receive, review, and keep on file (as it deems convenient
or proper) reports of benefit payments by the Trustee and
reports of disbursements for expenses directed by the
Committee.
The Committee shall have no power to add to, subtract from, or modify
any of the terms of the Plan, or to change or add to any benefits
provided by the Plan, or to waive or fail to apply any requirements of
eligibility for a benefit under the Plan.
XII.9 Compensation of Committee. No member of the Committee who is an
Employee will receive any compensation for his services as such, but
will be reimbursed for reasonable expenses incident to the performance
of such services. The reimbursement of expenses shall be paid in whole
or in part by the Employer, and any expenses not paid by the Employer
shall be paid by the Trustee out of the income of the Trust Fund.
XII.10 Member's Own Participation. No member of the Committee may act, vote,
or otherwise influence a decision of the Committee specifically
relating to his own participation under the Plan.
XII.11 Liability of Committee Members. No member of the Committee will be
liable for any act of omission or commission except as provided by
Federal law.
XII.12 Indemnification. The Board of Directors of the Employer, the Committee,
and the individual members thereof shall be indemnified by the Employer
and not the Trust Fund against any and all expenses, costs, and
liabilities arising
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by reason of any act or failure to act, unless such act or failure to
act is judicially determined to be gross negligence or willful
misconduct.
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ARTICLE XIII
FIDUCIARY RESPONSIBILITIES
XIII.1 Basic Responsibilities. Any Plan Fiduciary, whether specifically
designated or not, shall:
(a discharge all duties solely in the interest of Members, Former
Members, and Beneficiaries and for the exclusive purpose of
providing benefits and defraying reasonable administrative
expenses under the Plan;
(b discharge his responsibilities with the care, skill, prudence,
and diligence a prudent man would use in similar
circumstances; and
(c conform with the provisions of the Plan.
No person who is ineligible by law to act as a fiduciary will be
permitted to serve as Fiduciary.
XIII.2 Actions of Fiduciaries. Any Plan Fiduciary:
(a may serve in more than one fiduciary capacity with respect to
the Plan;
(b may employ one or more persons to render advice with regard to
or to carry out any responsibility that such Fiduciary has
under the Plan; and
(c may rely upon any discretion, information, or action of any
other Plan Fiduciary, acting within the scope of its
responsibilities under the Plan, as being proper under the
Plan.
XIII.3 Fiduciary Liability. No Plan Fiduciary shall be personally liable for
any losses resulting from his action, except as provided by Federal
law. Each Plan Fiduciary shall have only the authority and duties which
are specifically allocated to him, shall be responsible for the proper
exercise of his own authority and
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duties, and shall not be responsible for any act or failure to act of
any other Plan Fiduciary.
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ARTICLE XIV
AMENDMENT
XIV.1 Internal Revenue Service Qualification. It is the intention of the
Employer that the Plan shall be and remain qualified and exempt under
Code Sections 401(a) and 501(a) and meet the requirements of Code
Sections 401(k) and 401(m). The Employer may authorize any modification
or amendment of this Plan, which is deemed necessary or appropriate to
qualify or maintain the qualification and exemption of the Plan within
the requirements of Code Sections 401(a), 401(k), 401(m), and 501(a),
or any other applicable provisions of the Code as now in effect or
hereafter amended or adopted.
XIV.2 Amendment and Termination by the Employer. The Employer reserves the
right to modify, suspend, or terminate the Plan in whole or in part
(including the provisions relating to contributions). The Employer
shall not have the power to modify, suspend, amend, or terminate the
Plan in such manner as will cause or permit any part of the Trust Fund
to be used for or diverted to purposes other than the exclusive benefit
of Members, Former Members, or their Beneficiaries, or for the payment
of expenses pursuant to the provisions of the Plan. Further, except as
otherwise specifically provided in Sections 4.8 and 4.9, no portion of
the Trust Fund may revert to or become the property of the Employer, so
as to divest a Member or Former Member from or deprive him of any
benefits which may have accrued to him upon termination or partial
termination of the Plan or complete discontinuance of contributions, as
such term is defined in Code Section 411, the amounts credited to the
Accounts of Members affected by such termination or partial termination
shall be nonforfeitable.
Notwithstanding anything to the contrary contained herein, upon such
termination of the Plan, the Employer shall have no obligation or
liability whatsoever to make any further payments to the Trustee.
XIV.3 Right to Terminate. The Employer by action of its Board of Directors or
other governing authority shall have the right to terminate, as to
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itself, the Plan by delivering written notice authorizing the
termination to the Employer, the Committee, and the Trustee.
XIV.4 Valuation of Assets. In determining the value of the Accounts of the
Members or Former Members as of the date of the termination of the
Plan, the assets of the Trust Fund shall be valued by the Trustee at
fair market value as of the close of business on the termination date.
The Accounts of the Members and Former Members shall be adjusted in the
manner provided in Article VI.
XIV.5 Distribution of Assets. If the Plan is terminated, the Trustee shall
distribute all assets, as soon as practicable thereafter. If there is
another defined contribution plan described in Code Section 401(a)
maintained by an Affiliated Employer, a Member shall have the option of
having such Account transferred to such other Plan, as permitted by
applicable law, until all assets remaining in the Trust Fund after
payment of any expenses properly chargeable to the Trust Fund are
distributed to Members, Former Members, or their Beneficiaries. Such
distribution shall be equal to the value of the Accounts of the Members
as of the date of the termination of the Plan adjusted for any earnings
and expenses of the Trust Fund and Plan between such date and the date
of distribution. Payment will be made in cash. The Committee's
determination shall be final and binding on all persons.
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ARTICLE XV
TOP-HEAVY PLAN REQUIREMENTS
XV.1 General Rule. For any Plan Year for which this Plan is a Top-Heavy
Plan, as defined in Section 15.5, any other provisions of the Plan to
the contrary notwithstanding, the Plan shall be subject to the
following provisions:
(a) the minimum contribution provisions of Section 15.2; and
(c) the limitation on contributions set by Section 15.3.
XV.2 Minimum Contribution Provisions. Subject to the provisions of Sections
15.3 and 15.4, each Eligible Employee who (i) is a Non-Key Employee (as
defined in Section 15.7); and (ii) is employed on the last day of the
Plan Year shall be entitled to have Employer Matching Contributions
allocated to his Account of not less than 3% (the "Minimum Contribution
Percentage") of his Compensation (as defined for purposes of applying
the limits of Code Section 415) or such other amount, if any, as may be
necessary to comply with the rules established by the Internal Revenue
Service.
The Minimum Contribution Percentage set forth above shall be reduced
for any Plan Year to the percentage at which contributions are made (or
required to be made) under the Plan for the Plan Year for the Key
Employee (as defined in Section 15.6) for whom such percentage is the
highest for such Plan Year.
For this purpose, the percentage with respect to a Key Employee shall
be determined by dividing the contributions made for such Key Employee
by his total Compensation for the Plan Year not to exceed $160,000 or
such higher amount as indexed pursuant to Code Sections 401(a)(17) and
415(d) and the applicable regulations thereunder.
Contributions taken into account under the immediately preceding
sentence shall include contributions under this Plan and under all
other defined contribution plans required to be included in an
Aggregation Group (as defined in Section 15.5), but shall not include
any plan required to be included in such Aggregation Group if such plan
enables a defined
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benefit plan required to be included in such group to meet the
requirements of the Code prohibiting discrimination as to contributions
or benefits in favor of employees who are officers, shareholders or
Highly Compensated Employees, or prescribing the minimum participation
standards.
Contributions taken into account under this Section 15.2 shall not
include any contributions under the Social Security Act or any other
Federal or state law.
XV.3 Limitation on Contributions. In the event that the Employer also
maintains a defined benefit plan providing benefits on behalf of
Members of this Plan, one of the two following provisions shall apply:
(a) if for the Plan Year this Plan would be a Top-Heavy Plan if
"90%" were substituted for "60%", then Section 15.2 shall
apply for such Plan Year as if amended so that "4%" were
substituted for the "3%"; or
(b) if for the Plan Year (i) this Plan is subject to paragraph (a)
above but does not provide the required additional minimum
contribution; or (ii) this Plan would continue to be a
Top-Heavy Plan if "90%" were substituted for "60%", then the
denominator of both the defined contribution plan fraction and
the defined benefit plan fraction shall be calculated as set
forth in Section 4.5 for the limitation year ending in such
Plan Year by substituting "1.0" for "1.25" in each place such
figure appears, except with respect to any individual for whom
there are no Employer Matching Contributions, forfeitures, or
voluntary nondeductible contributions allocated or any
accruals for such individual under the defined benefit plan.
XV.4 Coordination With Other Plans. In the event that another defined
contribution or defined benefit plan maintained by the Employer or an
Affiliated Employer provides contributions or benefits on behalf of
Members in this Plan, such other plan shall be treated as a part of
this Plan pursuant to the applicable principles set forth in Revenue
Ruling 81-202 in determining whether the plans are providing benefits
at least equal to the minimum benefit required under the defined
benefit plan. If the Plan is subject to Section 15.3(b) but the
Employer does not substitute "1.0" for "1.25" as required, the
applicable percentage under the defined benefit plan shall be increased
by one percentage point (up to a maximum of ten percentage points).
Such determination shall be made by the Committee.
XV.5 Top-Heavy Plan Definitions. This Plan shall be a Top-Heavy Plan for any
Plan Year if, as of the Determination Date,
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the Aggregate of the Accounts under the Plan for Members and Former
Members who are Key Employees exceeds 60% of the present value of the
Aggregate of the Accounts for all Members and Former Members, or if
this Plan is required to be in an Aggregation Group which for such Plan
Year is a Top-Heavy Group. For purposes of making this determination,
the present value of the Aggregate of the Accounts for a Member (i) who
is not a Key Employee, but who was a Key Employee in a prior year; or
(ii) who has not performed any Services for the Employer at any time
during the 5-year period ending on the Determination Date, shall be
disregarded.
(a) "Determination Date" shall mean for any Plan Year the last day
of the immediately preceding Plan Year (except that for the
first Plan Year the Determination Date means the last day of
such Plan Year).
(b) "Aggregate of the Accounts" shall mean the sum of (i) the
Accounts determined as of the most recent Valuation Date that
is within the 12-month period ending on the Determination
Date; and (ii) the adjustment for contributions due as of the
Determination Date, and as described in the regulations under
the Code.
(c) "Aggregation Group" shall mean the group of plans, if any,
that includes both the group of plans that are required to be
aggregated and, if the Committee so elects, the group of plans
that are permitted to be aggregated.
(i) The group of plans that are required to be aggregated
(the "Required Aggregation Group") includes (i) each
plan of the Employer in which a Key Employee is a
Member, including collectively-bargained plans; and
(ii) each other plan of the Employer or an Affiliated
Employer, including collectively-bargained plans,
which enables a plan in which a Key Employee is a
Member to meet the requirements of the Code
prohibiting discrimination as to contributions or
benefits in favor of Employees who are officers,
shareholders, or the Highly-Compensated or
prescribing the minimum participation standards.
(ii) The group of plans that are permitted to be
aggregated (the "Permissive Aggregation Group")
includes the Required Aggregation Group plus one or
more plans of the Employer or an Affiliated Employer
that is not part of the Required Aggregation Group
and that the Committee certifies as constituting a
plan within the Permissive Aggregation Group. Such
plan or plans may be added to the Permissive
Aggregation Group only if, after the addition, the
Aggregation Group as a whole continues not to
discriminate as to contributions or benefits in favor
of Employees who are officers, shareholders, or the
Highly-Compensated and to meet the minimum
participation standards under the Code.
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(d) "Top-Heavy Group" shall mean the Aggregation Group, if as of
the applicable Determination Date, the sum of the present
value of the cumulative accrued benefits for Key Employees
under all defined benefit plans included in the Aggregation
Group; plus the Aggregate of the Accounts of Key Employees
under all defined contribution plans included in the
Aggregation Group exceeds 60% of the sum of the present value
of the cumulative accrued benefits for all employees under all
such defined benefit plans; plus the aggregate accounts for
all employees under such defined contribution plans. For
purposes of making this determination, the present value of
the accrued benefits for a Member (i) who is not a Key
Employee, but who was a Key Employee in a prior year; or (ii)
who has not performed Services for the Employer at any time
during the 5-year period ending on the Determination Date,
shall be disregarded. If the Aggregation Group that is a
Top-Heavy Group is a Required Aggregation Group, each plan in
the Group will be Top-Heavy. If the Aggregation Group that is
a Top-Heavy Group is a Permissive Aggregation Group, only
those plans that are part of the Required Aggregation Group
will be treated as Top-Heavy. If the Aggregation Group is not
a Top-Heavy Group, no plan within such Group will be
Top-Heavy.
(e) In determining whether this Plan constitutes a Top-Heavy Plan,
the Committee shall make the following adjustments in
connection therewith:
(i) When more than one plan is aggregated, the Committee
shall determine separately for each plan as of each
plan's Determination Date the present value of the
accrued benefits or the sum of account balances. Such
accrued benefits shall be determined by using the
method which is used for accrual purposes for all
plans of the Employer, or, if there is no such
method, as if such benefit accrued not more rapidly
than the slowest accrual rate permitted under Code
Section 411(b)(1)(C).
(ii) In determining the present value of the cumulative
accrued benefit or the amount of the account of any
Employee, such present value or account shall include
the dollar value of the aggregate distributions made
to such Employee under the applicable plan during the
5-year period ending on the Determination Date,
unless reflected in the value of the accrued benefit
or account balance as of the most recent Valuation
Date. Such amounts shall include distributions to
Employees which represented the entire amount
credited to their accounts under the applicable plan,
and distributions made on account of the death of a
Member to the extent such death benefits do not
exceed the present value of the accrued benefit or
account.
(iii) Further, in making such determination, such present
value, or such account, shall include any rollover
contribution (or similar transfer), as follows:
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(A) if the rollover contribution (or similar
transfer) is initiated by the Employee and
made to or from a plan maintained by another
employer, the plan providing the
distribution shall include such distribution
in the value of such account; the plan
accepting the distribution shall not include
such distribution in the value of such
account; or
(B) if the rollover contribution (or similar
transfer) in not initiated by the Employee
or made from a plan maintained by another
employer, the plan accepting the
distribution shall include such distribution
in the present value of such account; the
plan making the distribution shall not
include the distribution in the present
value of such account.
XV.6 Key Employee. The term "Key Employee" shall mean any Employee (and any
Beneficiary of an Employee) under this Plan who is a Key Employee as
determined in accordance with Code Section 416(i)(1), excluding in any
event individuals who have not performed Services for the Employer
during the 5-year period ending on the date on which the Top-Heavy
determination is made.
XV.7 Non-Key Employee. The term "Non-Key Employee" shall mean any Employee
(and any Beneficiary of an Employee) who is not a Key Employee,
excluding in any event individuals who have not performed Services for
the Employer during the 5-year period ending on the date on which the
Top-Heavy determination is made.
XV.8 Change from Top-Heavy Status. In the event the Plan should become a
Top-Heavy Plan for a Plan Year and subsequently reverts to a Plan which
is not Top-Heavy, the change from a Top-Heavy plan to a plan which is
not Top-Heavy shall not reduce a Member's Account.
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ARTICLE XVI
GENERAL PROVISIONS
XVI.1 Plan Voluntary. Although it is intended that the Plan shall be
continued and that contributions shall be made as herein provided, this
Plan is entirely voluntary on the part of the Employer and the
continuance of this Plan and the payment of contributions hereunder are
not to be regarded as contractual obligations of the Employer, and the
Employer neither guarantees or promises to pay or to cause to be paid
any of the benefits provided by this Plan. Each person who shall claim
the right to any payment or benefit under this Plan shall be entitled
to look only to the Fund for any such payment or benefit and shall not
have any right, claim, or demand therefore against any Employer, except
as provided by Federal law. The Plan shall not be deemed to constitute
a contract between the Employer and any Employee or to be a
consideration for, or an inducement for, the employment of any Employee
by the Employer. Nothing contained in the Plan shall be deemed to give
any Employee the right to be retained in the Service of the Employer or
to interfere with the right of any Employer to discharge or to
terminate the Service of any Employee at any time without regard to the
effect such discharge or termination may have on any rights under the
Plan.
XVI.2 Payments to Minors and Incompetents. If any Member, Former Member, or
Beneficiary entitled to receive any benefits hereunder is a minor or is
deemed by the Committee or is adjudged to be legally incapable of
giving valid receipt and discharge for such benefits, they will be paid
to such person or institution as the Committee may designate, or to the
duly appointed guardian. Such payment shall, to the extent made, be
deemed a complete discharge of any liability for such payment under the
Plan.
XVI.3 Non-Alienation of Benefits.
(a) No amount payable to, or held under the Plan for the Account
of, any Member or Former Member shall be subject in any manner
to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, or charge, and any attempt to so
anticipate, alienate, sell, transfer, assign, pledge,
encumber, or charge the same shall be void; nor shall any
amount payable to, or held under the
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Plan for the Account of any Member or Former Member be in any
manner liable for his debts, contracts, liabilities,
engagements, or torts, or be subject to any legal process to
levy upon or attach, except as may be provided under a
qualified domestic relations order as defined in Code Section
414(p).
(b) Notwithstanding the foregoing, the preceding sentence shall
not apply to the offset of a Member's benefits hereunder
against an amount that the Member is required to pay to the
Plan, if:
(i) the order or requirement to pay arises:
(A) under a judgment of conviction for a crime
involving such plan;
(B) under a civil judgment (including a consent
order or decree) entered by a Court in an
action brought in connection with a
violation (or alleged violation) of part 4
of Title I of ERISA, or
(C) pursuant, to a settlement agreement between
the Secretary of Labor and the Member, or a
settlement between the PBGC and the Member,
in connection with a violation (or alleged
violation) of Part 4 of Table I of ERISA by
a fiduciary, any other persons.
(ii) the judgment, order, decree or settlement agreement
expressly provides for the offset of all or a part of
the amount ordered or required to be paid to the plan
against a Member's benefits hereunder; and
(iii) if the Member has a Spouse at the time at which the
offset is to be made:
(A) Either such Spouse has consented in writing
to such offset and such consent is witnessed
by a notary public or a representative of
the Plan (or it is established to the
satisfaction of the Plan representative that
such consent may not be obtained by reason
of circumstances described in Code Section
417(a)(2)(B)); or
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(B) such Spouse is ordered or required in such
judgment, order, decree or settlement to pay
an amount to the Plan in connection with a
violation of Part 4 of Title I of ERISA.
(c) Under a qualified domestic relations order, an alternate payee who
had been married to the Member or Former Member may be treated as a
Spouse with respect to the portion of the Member's or Former Member's
benefit in which such alternate payee has an interest; provided that
the qualified domestic relations order provides for such treatment.
However, under no circumstances may the spouse of any alternate payee
(who is not a Member or Former Member hereunder) be treated as a Spouse
under the terms of the Plan.
Upon receipt of any judgement, decree, or order (including
approval of a property settlement agreement) relating to the
provision of payment by the Plan to an alternate payee
pursuant to a state domestic relations law, the Committee
shall promptly notify the affected Member or Former Member,
and any alternate payee of the receipt of such judgement,
decree, or order and shall notify the affected Member or
Former Member, and any alternate payee of the Committee's
procedure for determining whether or not the judgement,
decree, or order is a qualified domestic relations order.
The Committee shall establish a procedure to determine the
status of a judgement, decree, or order as a qualified
domestic relations order and to administer Plan distributions
in accordance with qualified domestic relations orders. Such
procedure shall be in writing, shall include a provision
specifying the notification requirements enumerated in the
preceding paragraph, shall permit an alternate payee to
designate a representative for receipt of communications from
the Committee, and shall include other provisions as the
Committee shall determine, including those which may be
required under regulations promulgated by the Secretary of the
Treasury.
During any period in which the issue of whether a judgement,
decree, or order is a qualified domestic relations order is
being determined (by the Committee, a court of competent
jurisdiction, or otherwise), the Committee shall segregate in
a separate account under the Plan the amount, if any, which
would have been payable to the alternate payee during such
period if the judgement, decree, or order had been determined
to be a qualified domestic relations order. Such segregated
amount shall be held separately invested in an escrow account
during the determination period.
If the judgement, decree, or order is determined by the
Committee to be a qualified domestic relations order before
the first payments would otherwise be due under
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such order, then payment of the appropriate amount shall be
paid to the alternate payee(s) as required under the order. If
a domestic relations order is determined by the Committee to
be a qualified order within the 18-month period beginning on
the date that the first payment would have been due under such
order, the separately accounted for amounts (plus reasonable
interest thereon) shall be retroactively paid to the alternate
payee(s) named in the order. Subsequent payments shall not
include any interest component.
If the Committee first determines that the order is a
qualified domestic relations order after the 18-month period
beginning on the date on which the first payment would have
been due under the order, then the provisions of such order
shall be applied on a prospective basis only.
If a domestic relations order is determined to constitute a
qualified domestic relations order, payment shall be made
immediately or as soon as administratively feasible following
such determination in accordance with the order.
XVI.4 Use of Masculine and Feminine; Singular and Plural. Wherever used in
this Plan, the masculine gender will include the feminine gender and
the singular will include the plural, unless the context indicates
otherwise.
XVI.5 Merger, Consolidation, or Transfer. In the event that the Plan is
merged or consolidated with any other plan, or should the assets or
liabilities of the Plan be transferred to any other plan, each Member
shall be entitled to a benefit immediately after such merger,
consolidation, or transfer if the Plan should then terminate equal to
or greater than the benefit he would have been entitled to receive
immediately before such merger, consolidation, or transfer if the Plan
had then terminated.
XVI.6 Leased Employees. Any individual who performs Services for the Employer
or an Affiliated Employer and who, by application of Code Section
414(n)(2) and regulations issued pursuant thereto, would be considered
a leased employee, shall, for purposes of determining the number of
Employees of the Employer and its Affiliated Employers, and for
purposes of the requirements enumerated in Code Section 414(n)(3), be
considered an Employee.
When the total of all leased employees constitutes less than 20% of the
Employer's non-Highly Compensated Employee work force within the
meaning of Code Section
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414(n)(5)(c)(ii), however, a leased employee shall not be considered an
Employee if the organization from which the individual is leased
maintains a qualified safe harbor plan (as defined in Code Section
414(n)(5)) in which such individual participates.
"Leased Employees" who are deemed to be Employees for purposes of this
Section 16.6 shall not be eligible to participate in the Plan unless
specifically provided for in Article II.
XVI.7 Governing Law. The Plan shall be administered, construed, and enforced
according to the laws of the State of Connecticut (without regard to
its choice of law or conflict of law principles); provided, however,
where applicable ERISA shall govern and in such event the laws of the
United States of America shall be applied and to the extent necessary,
its courts shall have competent jurisdiction.
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