Employees Savings & Retirement Plan (401(k)) – Barr Laboratories Inc.
BARR LABORATORIES, INC.
EMPLOYEES SAVINGS & RETIREMENT PLAN (401(k))
(Restated and Amended Effective January 1, 1989)
ARTICLE I 1
DEFINITIONS 1
1.1 "Act" 1
1.2 "Administrator" 1
1.3 "Aggregate Account" 1
1.4 "Beneficiary" 1
1.5 "Code" 1
1.6 "Compensation" 1
1.7 "Elective Contribution 1
1.8 "Eligible Employee" 2
1.9 "Employee" 2
1.10 "Employer" 2
1.11 "Excessive Aggregate Contributions" 2
1.12 "Excessive Elective Allocations" 2
1.13 "Excessive Contributions" 2
1.14 "Fiduciary" 2
1.15 "Forfeiture" 2
1.16 "Former Participant" 2
1.17 "Highly Compensated Employee" 2
1.18 "Hour of Service" 3
1.19 "Key Employee" 4
1.20 "Non-Elective Contribution 4
1.21 "Non-Key Employee" 4
1.22 "Normal Retirement Date" 4
1.23 "Break in Service" 4
1.24 "Participant" 4
1.25 "Participant's Employer Contribution Account" 4
1.26 "Participant's Elective Contribution Account" 4
1.27 "Plan" 5
1.28 "Plan Year" 5
1.29 "Regulation" 5
1.30 "Pre-Retirement Survivor Annuity" 5
1.31 "Retired Participant" 5
1.32 "Retirement Date" 5
1.33 "Severance from Service Date" 5
1.34 "Suspense Account" 5
1.35 "Terminated Participant" 5
1.36 "Top Heavy Plan Year" 5
1.37 "Total and Permanent Disability" 5
1.38 "Trustee" 5
1.39 "Trust Fund" 6
1.40 "Valuation Date" 6
1.41 "Voluntary Contribution Account" 6
1.42 "Voluntary Contributions" 6
1.43 "Years of Service" 6
ARTICLE II 7
ADMINISTRATION 7
2.1 Powers and Responsibilities of the Employer 7
2.2 Assignment and Designation of
Administrative Authority 7
2.3 Allocation and Delegation of Responsibilities 7
2.4 Powers, Duties and Responsibilities 8
2.5 Records and Reports 9
2.6 Appointment of Advisors 9
2.7 Information From Employer 9
2.8 Payment of Expenses 9
2.9 Majority Actions 10
2.10 Claims Procedure 10
2.11 Claims Review Procedure 10
ARTICLE III 11
ELIGIBILITY 11
3.1 Conditions of Eligibility 11
3.2 Authorization for Elective Contributions & Voluntary
Contributions 11
3.3 Determination of Eligibility 11
3.4 Termination of Eligibility 11
3.5 Omission of Eligible Employee 11
3.6 Inclusion of Ineligible Employee 12
ARTICLE IV 13
CONTRIBUTION AND ALLOCATION 13
4.1 Formula for Determining Employer's
Non-Elective Contributions 13
4.2 Participant's Elective Contributions 13
4.3 Amount of Employer's Contribution 14
4.3.1Special Provisions for Union Employees 14
4.4 Time of Payment of Non-Elective Contribution 14
4.5 Time of Payment of Elective Contribution 14
4.6 Allocation of Contribution, Earnings
and Forfeitures 14
4.7 Limitation on Deferred Compensation Elections 16
4.8 Correction of Excessive Allocations 17
4.9 Correction of Excessive Elective Contributions 17
4.10 Recharacterization of Excessive Contributions 18
4.11 Limitation on Employer Matching Contribution
and Voluntary Contributions 19
4.12 Correction of Excess Aggregate Contributions 20
4.13 Special Rule for Family Members 21
4.14 Maximum Annual Additions 22
4.15 Adjustment for Excessive Annual Additions 24
4.16 Transfers from Qualified Plans 24
4.17 Voluntary Contributions 25
ARTICLE V 26
ACCOUNTING & VALUATIONS 26
5.1 Accounting 26
5.2 Valuations 26
ARTICLE VI 27
DETERMINATION AND DISTRIBUTION OF BENEFITS 27
6.1 Determination of Benefits Upon Retirement 27
6.2 Determination of Benefits Upon Death 27
6.3 Determination of Benefits in Event of Disability 28
6.4 Determination of Benefits Upon Termination 28
6.5 Distribution of Benefits 30
6.6 Distribution of Benefits Upon Death 33
6.7 Time of Segregation or Distribution 35
6.8 Distribution for Minor Beneficiary 36
6.9 Location of Participant or Beneficiary Unknown 36
6.10 Advance Distribution for Hardship 36
6.11 Advance Distributions for Loans to Participants 38
6.12 Limitations on Benefits and Distributions 39
6.13 Direct Transfer 39
ARTICLE VII 41
TOP HEAVY RULES 41
7.1 Top Heavy Plan Requirements 41
7.2 Determination of Top Heavy Status 41
7.3 Minimum Allocations 44
ARTICLE VIII 46
TRUSTEE 46
ARTICLE IX 48
AMENDMENT, TERMINATION AND MERGERS 48
9.1 Amendment 48
9.2 Termination 48
9.3 Merger or Consolidation 48
ARTICLE X 50
MISCELLANEOUS 50
10.1 Participant's Rights 50
10.2 Alienation 50
10.3 Construction of Plan 51
10.4 Gender and Number 51
10.5 Legal Action 51
10.6 Prohibition Against Diversion of Funds 51
10.7 Bonding 52
10.8 Receipt and Release For Payments 52
10.9 Action By The Employer 52
10.10 Named Fiduciaries and Allocation
of Responsibility 52
10.11 Uniformity 53
10.12 Headings 53
ARTICLE XI 54
PARTICIPATING EMPLOYERS 54
11.1 Adoption By Other Employers 54
11.2 Requirements of Participating Employers 54
11.3 Designation of Agent 55
11.4 Employee Transfers 55
11.5 Participating Employers Contributions 55
11.6 Amendment 55
11.7 Discontinuance of Participation 55
11.8 Administrator's Authority 56
11.9 Participating Employer Contribution for Affiliate56
Barr Laboratories, Inc.
Employees Savings & Retirement Plan (401(k))
THIS AGREEMENT is by and between BARR LABORATORIES, INC. (the
"Employer") and THE TRUSTEES OF THE BARR LABORATORIES, INC.,
Profit-Sharing Plan and Trust.
The parties hereto agree as follows:
WHEREAS, the Board of Directors of the Employer authorized the
adoption of the Barr Laboratories, Inc. Profit-Sharing Plan and
Trust (the "Plan") having an original effective date of July 1,
1983; and
WHEREAS, the Board of Directors of the Employer wishes to restate
and amend the terms of the Plan to conform with the requirements
of the Tax Reform Act of 1986 and other subsequent legislation;
and
WHEREAS, the Board of Directors of the Employer restated and
amended the Plan effective April 1, 1985, and the parties hereto
agreed that the Plan would be renamed as the Barr Laboratories,
Inc. Employees Savings & Retirement Plan; and
NOW, THEREFORE, effective January 1, 1989, the parties hereto
agree to the terms of the Plan as follows:
ARTICLE I
DEFINITIONS
1.1 "Act" means the Employee Retirement Income Security Act of
1974, as it may be amended from time to time.
1.2 "Administrator" means the person or persons designated by
the Employer or its Board of Directors pursuant to Section
2.2 to administer the Plan on behalf of the Employer. If no
such person is designated, the Employer shall be the
Administrator.
1.3 "Aggregate Account" means, with respect to each Participant,
the value of all accounts maintained on behalf of a
Participant, whether attributable to Employer or Employee
contributions.
1.4 "Beneficiary" means the person to whom the share of a
deceased Participant's total account is payable, subject to
the restrictions of Section 6.2 and 6.6.
1.5 "Code" means the Internal Revenue Code of 1986, as amended
or replaced from time to time.
1.6 "Compensation" with respect to any Participant means the
total compensation paid by the Employer including base pay,
overtime pay, bonuses and commissions. Amounts contributed
by the Employer under the Plan and any taxable and non-
taxable fringe benefits, director's fees, annual service
awards and expense reimbursements shall not be considered as
compensation. That portion of an Employee's Compensation
that is deferred pursuant to Section 4.2 shall be considered
as Compensation for all Plan purposes.
The annual amount of Compensation taken into account for a
Participant shall not exceed $200,000 (as adjusted for cost-
of-living increases (pursuant to Code Section 401(a)(17))
for Plan Years beginning prior to July 1st, 1994 and
$150,000 (as adjusted for cost of living increases pursuant
to Code Section 401(a)(17) for Plan Years beginning on and
after July 1st, 1994. In determining Compensation of a
Participant for purposes of this limitation, the rules of
Code Section 414(q)(6) shall apply except in applying such
rules, the term "family" shall include only the spouse of
the Participant and any lineal descendants of the
Participant who have not attained age 19 before the end of
the Plan Year. If, as a result of the application of such
rules, the adjusted Compensation limitation is exceeded,
then the limitation shall be prorated among the affected
individuals in proportion to each such individual's
Compensation as determined under this section prior to the
application of this limitation. The determination of a
Participant's Compensation will be in accordance with the
records maintained by the Employer and shall be conclusive.
1.7 "Elective Contribution" means contributions to the Plan that
are made pursuant to the Participant's deferral election
provided in Section 4.2.
1.8 "Eligible Employee" means any Employee who has satisfied the
provisions of Section 3.1 other than leased employees who
are included in the definition of Employee in Section 1.9.
1.9 "Employee" means any person who is employed by the Employer,
but excludes any person who is employed as an independent
contractor. The term Employee shall include leased
employees as that term is defined in Code Section 414(n)
except leased employees shall not be deemed employees for
any purpose if leased employees are (i) covered by a plan
described in Code Section 414(n); and (ii) leased employees
do not constitute more than 20% of the Employer's nonhighly
compensated workforce.
1.10"Employer" means Barr Laboratories, Inc., and any
Participating Employer (as defined in Section 11.1) which
shall adopt this Plan; any successor which shall maintain
this Plan; and any predecessor which has maintained this
Plan. For purposes of the controlled group rules under Code
Section 414 and all Code Sections referred to therein, the
term "Employer" shall refer to any corporation, partnership
or other entity which is related to Barr Laboratories, Inc.
within the meaning of Code Sections 414(b), (c), (m), (n)
and (o).
1.11"Excessive Aggregate Contributions" means the amount
described under Code Section 401(m)(6)(B).
1.12"Excessive Allocations" means salary reduction elections of
a Participant in excess of the limitation under Code Section
402(g).
1.13"Excessive Elective Contributions" means the amount
described under Code Section 401(k)(8).
1.14"Fiduciary" means any person who (a) exercises any
discretionary authority or discretionary control respecting
management of the Plan or exercises any authority or control
respecting management or disposition of assets, (b) renders
investment advice for a fee or other compensation, direct or
indirect, with respect to any monies or other property of
the Plan or has any authority or responsibility to do so, or
(c) has any discretionary authority or discretionary
responsibility in the administration of the Plan, including
but not limited to, the Trustee, the Employer and the
Administrator.
1.15"Forfeiture" means that portion of a Participant's Account
that is not vested and occurs with respect to a Participant
who has terminated employment at the end of a One-Year Break
in Service.
1.16"Former Participant" means a person who has been a
Participant, but who has ceased to be a Participant for any
reason.
1.17"Highly Compensated Employee" means an Employee who at any
time during the Plan Year or preceding Plan year is an
employee described in Code Section 414(q)(1); including both
Highly Compensated active Employees and Highly Compensated
former Employees. A Highly Compensated active Employee
includes any Employee who performs services for the Employer
during the determination year and who, during the look-back
year (a) received Compensation in excess of $75,000 (as
adjusted pursuant to Code Section 415(d); (b) received
Compensation from the Employer in excess of $50,000 (as
adjusted pursuant to Code Section 415(d) and was a member of
the top-paid group for such year; or (c) was an officer of
the Employer and received Compensation during such year that
is greater than 150 percent of the defined contribution
dollar limitation. The term Highly Compensated active
Employee also includes: (a) an Employee who is both (i)
described in the preceding sentence if the term
"determination year" is substituted for the term "look-back
year" and (ii) is one of the 100 Employees who received the
most Compensation from the Employer during the look-back
year or determination year. If no officer has Compensation
in excess of 150 percent of the defined contribution
limitation, during either a determination year or a look-
back year, the highest paid officer for each such year shall
be treated as a Highly Compensated Employee. The
determination of who is a Highly Compensated Employee,
including the determination of the number and identity of
Employees in the top-paid group, the top 100 Employees, the
number of Employees treated as officers and the Compensation
that is considered will be made in accordance with Code
Section 414(q) and in accordance with Treasury Regulation
Section 1.414(q)-IT.
1.18"Hour of Service" means (1) each hour for which an Employee
is directly or indirectly compensated or entitled to
Compensation by the Employer for the performance of duties
during the applicable computation period; (2) each hour for
which an Employee is directly or indirectly compensated or
entitled to Compensation by the Employer (irrespective of
whether the employment relationship has terminated) for
reasons other than performance of duties (such as vacation,
holidays, sickness, jury duty, disability, lay-off, military
duty or leave of absence) during the applicable computation
period; (3) each hour for which back pay is awarded or
agreed to by the Employer without regard to mitigation of
damages.
Notwithstanding the above, no more than 501 Hours of Service
are required to be credited to an Employee on account of any
single continuous period during which the Employee performs
no duties (whether or not such period occurs in a single
computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on
account of a period during which no duties are performed is
not required to be credited to the Employee if such payment
is made or due under a plan maintained solely for the
purpose of complying with applicable worker's compensation,
or unemployment compensation or disability insurance laws;
and (iii) Hours of Service are not required to be credited
for a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the
Employee.
For purposes of this Section, a payment shall be deemed to
be made by or due from the Employer regardless of whether
such payment is made by or due from the Employer directly,
or indirectly through, among others, a trust fund, or
insurer, to which the Employer contributes or pays premium
and regardless of whether contributions made or due to the
trust fund, insurer or other entity are for the benefit of
particular Employees or are on behalf of the group of
Employees in the aggregate.
An Hour of Service must be counted for the purpose of
determining a Year of Service, a Break in Service and
employment commencement date (or reemployment
commencement date). The provisions of Department of
Labor Regulations 2530.200b-2(b) and (c) are
incorporated herein by reference.
1.19"Key Employee" means those Employees defined in Code Section
416(i) and the Regulations thereunder.
1.20"Non-Elective Contribution" means the Employer's
contributions to the Plan provided for in Section 4.1(a) and
(b).
1.21"Non-Key Employee" means any Employee or former Employee
(and his Beneficiaries) who is not a Key Employee.
1.22"Normal Retirement Date" means the date the Participant
attains age 65.
1.23"Break in Service" means a 12-consecutive month period
beginning on a Severance From Service date and ending on the
anniversary of such date during which an Employee has not
completed an Hour of Service. Solely for the purpose of
determining whether a Participant has incurred a Break in
Service, Hours of Service shall be recognized for
"authorized leaves of absence" and "maternity and paternity
leaves of absence".
"An authorized leave of absence" means an unpaid, temporary
cessation from active employment with the Employer pursuant
to an established nondiscriminatory policy, whether
occasioned by illness, military service or any other reason.
A "maternity or paternity leave of absence" shall mean, for
Plan Years beginning after December 31, 1984, an absence
from work for any period by reason of the Employee's
pregnancy, birth of the Employee's child, placement of a
child with the Employee in connection with the adoption of
such child, or any absence for the purpose of caring for
such child for a period immediately following such birth or
placement. For purposes of determining whether a Break in
Service has occurred, the first year of a maternity or
paternity absence shall be deemed to be a Year of Service
and the second year of a maternity or paternity absence
shall be considered neither a Year of Service nor a Break in
Service.
1.24"Participant" shall mean any Eligible Employee who satisfies
the provision of Section 3.1 and who has not for any reason
become ineligible to participate further in the Plan.
1.25"Participant's Employer Contribution Account" shall mean the
account established and maintained by the Administrator for
each Participant with respect to his total interest in the
Plan and Trust resulting from the Employer's Non-Elective
Contributions, and includes the Participant's balance in his
Employee's Account under the prior provisions of the Plan.
1.26"Participant's Elective Contribution Account" shall mean the
account established and maintained by the Administrator for
each Participant with respect to his total interest in the
Plan and Trust resulting from Elective Contributions.
1.27"Plan" shall mean this instrument Barr Laboratories, Inc.
Employees Savings & Retirement Plan (401(k)) including all
amendments thereto.
1.28"Plan Year" means the Plan's accounting year of twelve (12)
months commencing on July 1st of each year and ending the
following June 30th.
1.29"Regulation" means the income Tax Regulations as promulgated
by the Secretary of the Treasury or his delegate, and as
amended from time to time.
1.30"Pre-Retirement Survivor Annuity" means an annuity for the
life of the Participant's spouse the payments under which
must be equal to the amount of benefit which can be
purchased with the accounts of a Participant used to provide
the death benefit under the Plan.
1.31"Retired Participant" means a person who has been a
Participant but who has become entitled to retirement
benefits under the Plan.
1.32"Retirement Date" means the date as of which a Participant
retires on a Normal Retirement Date.
1.33 "Severance from Service Date" means the earlier of:
(i) the date on which an Employee quits, retires, is
discharged or dies; or
(ii) the first anniversary of the date in which an
Employee is absent from service for any other reason.
1.34"Suspense Account" means the total forfeitable portion of
all Former Participant's Accounts which has not yet become a
Forfeiture during any Plan Year.
1.35"Terminated Participant" means a person who has been a
Participant, but whose employment has been terminated other
than by death, Total and Permanent Disability or retirement.
1.36"Top Heavy Plan Year" means that, for a particular Plan Year
commencing after December 31, 1983, the Plan is a Top Heavy
Plan.
1.37"Total and Permanent Disability" means a physical or mental
condition of a Participant resulting from bodily injury,
disease or mental disorder which renders him incapable of
continuing his usual and customary employment with the
Employer. The disability of a Participant shall be
determined by a licensed physician chosen by the
Administrator. The determination shall be applied uniformly
to all Participants.
1.38"Trustee" means the person or entity named as trustee herein
or in any separate trust forming a part of this Plan, and
any successors.
1.39"Trust Fund" means the assets of the Plan and Trust as the
same shall exist from time to time.
1.40"Valuation Date" means the last day of each calendar month
and such other date at the discretion of the Administrator.
1.41"Voluntary Contribution Account" means the account
established and maintained by the Administrator for each
Participant with respect to his total interest in the Plan
resulting from the Participant's Voluntary Contributions
made pursuant to Section 4.17 of the Plan, and includes the
Participant's balance in his Employee's Account under the
prior provisions of the Plan.
1.42"Voluntary Contributions" mean the Participant's non-
deductible voluntary contributions made pursuant to Section
4.17 of the Plan.
1.43"Years of Service" means the aggregate number of years and
months of service beginning on the date the Employee first
performs an Hour of Service and ending on the Participant's
Severance from Service Date.
Years of Service with any corporation, trade or business
which is a member of a controlled group of corporations or
under common control [as defined by Code Section 414(b) and
Section 414(c)] or is a member of an affiliated service
group [as defined by Code Section 414(m)], or is an entity
required to be aggregated with the Employer pursuant to
regulations under Code Section 414(o) shall be recognized.
In determining Years of Service, Years of Service prior to
the vesting computation period in which an Employee attained
his eighteenth birthday shall be excluded.
ARTICLE II
ADMINISTRATION
2.1 Powers and Responsibilities of the Employer
(a)The Employer or its Board of Directors shall be
empowered to appoint and remove the Trustee and the
Administrator from time to time as it deems necessary
for the proper administration of the Plan to assure
that the Plan is being operated for the exclusive
benefit of the Participants and their Beneficiaries in
accordance with the terms of the Plan, the Code and the
Act.
(b)The Employer shall periodically review the
performance of any Fiduciary or other person to whom
duties have been delegated or allocated by it under the
provisions of this Plan or pursuant to procedures
established hereunder. This requirement may be
satisfied by formal periodic review by the Employer or
by a qualified person specifically designated by the
Employer, through day-to-day conduct and evaluation, or
through other appropriate ways.
(c)The Employer may to the extent permitted by law
agree in writing to indemnify all persons to whom the
Employer has delegated fiduciary duties, except any
consultant or other person or organization hired to
render services in connection with the administration
of the Plan, against any and all claims, loss, damages,
expense and liability arising from their
responsibilities in connection with the Plan, unless
the same is determined to be due to a breach of
fiduciary obligation.
2.2 Assignment and Designation of Administrative Authority
The Employer shall appoint one or more Administrators. Any
person, including, but not limited to, the Employees of the
Employer, shall be eligible to serve as an Administrator.
Any person so appointed shall signify his acceptance by
filing written acceptance with the Employer. An
Administrator may resign by delivering his written
resignation to the Employer or be removed by the Employer by
delivery of written notice of removal, to take effect at a
date specified therein, or upon delivery to the
Administrator if no date is specified.
The Employer, upon the resignation or removal of an
Administrator, shall promptly designate in writing a
successor to this position. If the Employer does not
appoint an Administrator, the Employer will function as the
Administrator.
2.3 Allocation and Delegation of Responsibilities
If more than one person is appointed as Administrator, the
responsibilities of each Administrator may be specified by
the Employer and accepted in writing by each Administrator.
In the event that no such delegation is made by the
Employer, the Administrators may allocate the
responsibilities among themselves, in which event the
Administrators shall notify the Employer and the Trustee in
writing of such action and specify the responsibilities of
each Administrator. The Trustee thereafter shall accept and
rely upon any documents executed by the appropriate
Administrator until such time as the Employer or the
Administrators file with the Trustee a written revocation of
such designation.
2.4 Powers, Duties and Responsibilities
The primary responsibility of the Administrator is to
administer the Plan for the exclusive benefit of the
Participants and their Beneficiaries, subject to the
specific terms of the Plan. The Administrator shall
administer the Plan in accordance with its terms and shall
have the power to determine all questions arising in
connection with the administration, interpretation and
application of the Plan. Any such determination by the
Administrator shall be conclusive and binding upon all
persons. The Administrator may establish procedures,
correct any defect, supply any information or reconcile any
inconsistency in such manner and to such extent as shall be
deemed necessary or advisable to carry out the purpose of
this Agreement; provided however, that any procedure,
discretionary act, interpretation or construction shall be
done in a nondiscriminatory manner based upon uniform
principles consistently applied and shall be consistent with
the intent that the Plan shall continue to be deemed a
qualified plan under the terms of Code Section 401(a) and
shall comply with the terms of the Act and all regulations
issued pursuant thereto. The Administrator shall have all
powers necessary or appropriate to accomplish his duties
under this Plan.
The Administrator shall be charged with the duties of the
general administrator of the Plan including, but not limited
to the following:
(a)to determine all questions relating to the
eligibility of Employees to participate or remain a
Participant hereunder;
(b)to compute, certify and direct the Trustee with
respect to the amount and the kind of benefits to which
any Participant shall be entitled hereunder;
(c)to authorize and direct the Trustee with respect to
all non-discretionary or otherwise directed
disbursements from the Trust;
(d)to maintain all necessary records for the
administration of the Plan;
(e)to interpret the provisions of the Plan and to make
and publish such rules for regulation of the Plan as
are consistent with the terms hereof;
(f)to determine the size and type of any insurance
contract which may be purchased from an insurer or to
designate the insurer from which a contract shall be
purchased;
(g)to compute and certify to the Employer and to the
Trustee from time to time the sums of money necessary
or desirable to be contributed to the Trust Fund;
(h)to prepare and distribute to Employees a procedure
for notifying Participants and Beneficiaries of their
rights to elect joint and survivor annuities and Pre-
Retirement Survivor Annuities as may be required by the
Act and Regulations thereunder;
(i)to prepare and implement a procedure to notify
Eligible Employees that they may elect to have a
portion of their Compensation deferred or paid to them
in cash; and
(j)to assist any Participant regarding his rights,
benefits or elections available under the Plan.
2.5 Records and Reports
The Administrator shall keep a record of all actions taken
and shall keep all other books of account, records and other
data that may be necessary for proper administration of the
Plan and shall be responsible for supplying all information
and reports to the Internal Revenue Service, Department of
Labor, Participants, Beneficiaries and others as required by
law including, without limitation, records to establish
satisfaction of the requirements of Code Section 401(k) and
Code Section 401(m).
2.6 Appointment of Advisors
The Administrator, or the Trustee with the consent of the
Administrator, may appoint counsel, specialists, advisors
and other persons as the Administrator or the Trustee deems
necessary or desirable in connection with the administration
of this Plan.
2.7 Information From Employer
To enable the Administrator to perform his functions, the
Employer shall supply full and timely information to the
Administrator on all matters relating to the Compensation of
all Participants, their Hours of Service, their Years of
Service, their retirement, death, disability, or termination
of employment, and such other pertinent facts as the
Administrator may require; and the Administrator shall
advise the Trustee of such of the foregoing facts as may be
pertinent to the Trustees duties under the Plan. The
Administrator may rely upon such information as is supplied
by the Employer and shall have no duty or responsibility to
verify such information.
2.8 Payment of Expenses
All expenses of administration may be paid out of the Trust
Fund unless paid by the Employer. Such expenses shall
include any expenses incident to the functioning of the
Administrator, including but not limited to fees for
accountants, counsel and other specialists and their agents,
and other costs of administering the Plan. Until paid, the
expenses shall constitute a liability of the Trust Fund.
However, the Employer may reimburse the Trust for any
administration expense incurred.
2.9 Majority Actions
Except where there has been an allocation and delegation of
administrative authority pursuant to Section 2.3, if there
shall be more than one Administrator, they shall act by a
majority of their number, but may authorize one or more of
them to sign all papers on their behalf.
2.10Claims Procedure
Claims for benefits under the Plan may be filed with the
Administrator on forms supplied by the Employer.
Written notice of the disposition of a claim shall be
furnished to the claimant within 90 days after the
application thereof is filed. In the event the claim is
denied, the reasons for the denial shall be specifically set
forth in the notice in language calculated to be understood
by the claimant, pertinent provisions of the Plan shall be
cited, and, where appropriate, an explanation as to how the
claimant can perfect the claim will be provided. In
addition, the claimant shall be furnished with an
explanation of the Plan's claims review procedure.
2.11Claims Review Procedure
The Administrator shall establish a claims review procedure
in accordance with Section 503 of the Act.
ARTICLE III
ELIGIBILITY
3.1 Conditions of Eligibility
An Eligible Employee who has completed an Hour of Service
and attained age 18 shall be a Participant hereunder as of
the first day of the month next following the date on which
the Eligible Employee completes such requirements.
Once an Eligible Employee becomes a Participant, he shall
file with the Employer in writing, his and his beneficiary's
post office address and each change of any such address.
3.2 Authorization for Elective Contributions and Voluntary
Contributions
In order to make Elective Contributions and/or Voluntary
Contributions, each Participant must make application to the
Employer and agree to the terms regarding the contribution
of an Elective or Voluntary Contribution on forms provided
by the Employer.
3.3 Determination of Eligibility
The Administrator shall determine the eligibility of each
Eligible Employee for participation in the Plan based upon
information furnished by the Employer. Such determination
shall be conclusive and binding upon all persons, as long as
the same is made in accordance with the Plan and the Act.
Such determination shall be subject to review pursuant to
Sections 2.10 and 2.11.
3.4 Termination of Eligibility
In the event a Participant shall go from a classification of
an Eligible Employee to a non-eligible Employee, such Former
Participant shall continue to earn Years of Service for
service completed while a noneligible Employee, until such
time as his Aggregate Accounts shall be Forfeited or
distributed pursuant to the terms of the Plan.
Additionally, his interest in the Plan shall continue to
share in the earnings of the Trust Fund.
3.5 Omission of Eligible Employee
If, in any Plan Year, any Employee who should be included as
a Participant in the Plan is erroneously omitted and
discovery of such omission is not made until after
contribution by his Employer for the year has been made, the
Employer shall make a subsequent contribution with respect
to the omitted Employee in the amount which the said
Employer would have contributed with respect to him and had
he not been omitted.
3.6 Inclusion of Ineligible Employee
If, in any Plan Year, any person who should not have been
included as a Participant in the Plan is erroneously
included and discovery of such incorrect inclusion is not
made until after a contribution for the year has been made,
the Employer shall not be entitled to recover the
contribution made with respect to the ineligible person
regardless of whether or not a deduction is allowable with
respect to such contribution. In such event, the amount
contributed with respect to the ineligible person, if it has
not been previously distributed, shall constitute a
Forfeiture for the Plan Year in which the discovery is made.
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 Formula For Determining Employer's Non-Elective
Contributions
For each Plan Year, the Employer shall contribute to the
Plan:
(a)A matching contribution equal to 100% of the
Elective Contributions and Voluntary Contributions of
all Participants eligible to share in allocations,
provided however, in determining the matching
contribution specified above, Voluntary Contributions
shall be considered only up to 1% of a Participant's
Compensation.
(b)A discretionary amount determined each year by the
Employer pursuant to Section 4.3.
(c)All contributions by the Employer shall be made in
cash or in property as is acceptable to the Trustee.
4.2 Participant's Elective Contributions
(a)Each Participant may elect to defer a whole
percentage of his Compensation of not more than 9%.
(b)The balance in each Participant's Elective
Contribution Account shall be fully Vested at all times
and shall not be subject to Forfeiture for any reason.
(c)A Participant may not make withdrawals from his
Participant's Elective Contribution Account prior to
his attaining age 59-1/2, except in the event of Total
and Permanent Disability, retirement, termination of
employment or a grant of a hardship withdrawal.
(d)The Employer and the Administrator shall adopt any
procedure necessary to implement the Elective
Contribution election provided for herein, including
procedures for amending and terminating such elections.
(e)In any case, where any of the foregoing provisions
of this Section 4.2 are not in conformity with
regulations of the Department of the Treasury that are
from time to time promulgated, the nonconforming
provision may be amended retroactively to assure
conformity.
4.3 Amount of Employer's Contribution
The Employer shall determine the amount of any contribution
to be made to the Plan. The Employer's determination of
such contribution shall be binding on all Participants, the
Employer and the Trustee. The Trustee shall have no right
or duty to inquire into the amount of the Employer's
contribution or the method used in determining the amount of
the Employer's contribution, but shall be accountable only
for funds actually received by the Trustee.
4.3.1 Special Provisions for Collective Bargained Employees
Notwithstanding any other provision of this Article IV, the
following provisions shall apply to Participants represented
by Local 8-149, Oil, Chemical and Atomic Workers Internation
Union (hereinafter called "Union Participants").
(a)A Union Participant must contribute 2% of annual
straight time wages (limited if applicable to the
Compensation limitations of Section 1.6) either as an
Elective Contribution or Voluntary Contribution (or any
combination of whole percentages thereof equalling 2%).
A Union Participant may elect to contribute up to 15%
of annual straight time wages either as an Elective
Contribution or Voluntary Contribution (or any
combination of whole percentages thereof equaling a
Union Employees election) up to the limitation
described in Code Section 402(q).
(b)The Employer shall contribute a matching
contribution equal to 100% of the first 2% of annual
straight time wages a Union Participant contributes to
the Plan.
4.4 Time Of Payment Of Non-Elective Contribution
The Employer shall pay to the Trustee its Non-Elective
Contribution to the Plan for each Plan Year within the time
prescribed by law, including extensions of time, for the
filing of the Employer's federal income tax return.
4.5 Time Of Payment Of Elective Contribution
The Employer shall pay to the Trustee its Elective
Contribution to the Plan for each Plan Year not later then
90 days (or within the time prescribed by regulations issued
by the Secretary of the Treasury) from the date such amounts
are received by the Employer from the Participant; provided,
however, Elective Contributions accumulated through payroll
deductions shall be paid to the Trustee with reasonable
promptness, and in any event will be paid by the end of the
succeeding month following such payroll deductions.
4.6 Allocation Of Contributions, Earnings and Forfeitures
(a)The Administrator shall establish and maintain an
account in the name of each Participant and which shall
include a separate account of amounts contributed under
Sections 4.1, 4.2 and 4.17 and gains and losses
attributable to each such contribution shall be
accounted for on a reasonable and consistent basis.
The establishment and maintenance of any account shall
not require the physical separation of the assets of
the Plan into individual accounts and may be individual
accounts only on the books of the Employer.
(b)The Employee shall provide the Administrator with
all information required by the Administrator to make a
proper allocation of the Employer's contribution for
each Plan Year. Within 45 days after the date of
receipt by the Administrator of such information, the
Administrator shall allocate such contribution as
follows:
1)With respect to the Employer's Non-Elective Contribution
pursuant to Section 4.1(b), to each Participant's
Account in the same proportion that each such
Participant's Compensation for the year bears to
the total Compensation of all Participant's for
such year eligible to receive an allocation.
A Participant who performs less than 1,000 Hours
of Service during a Plan Year shall not share in the
Employer's Non-Elective Contribution pursuant to
Section 4.1(b) for that year, unless required
pursuant to Section 7.3(c). In the event Hours of
Service cannot be determined from records
maintained by the Employer for reasons other than
the absence of the Employee from employment, a
Participant shall be deemed to have completed 45
Hours of Service in a one-week period. A
Participant eligible to receive an allocation of
the Section 4.1(b) Non-Elective Contributions shall
be the Participants in the active employ of the
Employer on the last day of the Plan Year.
Notwithstanding the foregoing, a Participant who
retired, died or became Totally Disabled and who
subsequently is not in the employ of the Employer
on the last day of the Plan Year in which the
Participant Retired, died or became Totally
Disabled shall be deemed to be actively employed on
the last day of such Plan year provided such
Participant had completed at least 1,000 Hours of
Service in the Plan Year.
2)With respect to the Employer's Non-Elective Contribution
pursuant to Section 4.1(a), to each Participant's
Account in the same proportion that each such
Participant's Elective Contributions and Voluntary
Contributions for the Year bears to the total
Elective Contributions and Voluntary Contributions
of all Participants for such year. In making the
matching allocation provided above, Voluntary
Contributions shall be considered only up to 1% of
a Participant's Compensation.
3)With respect to Elective Contributions made pursuant
to the Section 4.2, to each Participant's Elective
Account in an amount equal to each such
Participant's Elective Contributions for the Plan
Year.
(c)As of each Valuation Date, any earnings or losses
(net appreciation or net depreciation) of the Trust
Fund shall be allocated in the same proportion that
each Participant's and Former Participant's accounts
bear to the total of all Participants' and former
Participants' accounts as of such date.
(d)For each Valuation date prior to January 1, 1994,
any amounts which became Forfeitures since the last
Valuation Date shall first be made available to
reinstate previously forfeited account balances of
Former Participants, if any, in accordance with Section
6.4(d). The remaining Forfeitures, if any, shall be
allocated among the participants' Accounts in the same
proportion that each such Participant's Compensation
for the years bears to the total Compensation of all
Participants for the year. Provided however, that in
the event the allocation of Forfeitures provided herein
shall cause the "annual addition" (as defined in
Section 4.14) to any participant's Account to exceed
the amount allowable by the Code, the excess shall be
reallocated in accordance with Section 4.15. Except
however, a Participant who performs less than a Year of
Service during any Plan Year shall not share in the
Plan Forfeitures for that year, unless required
pursuant to Section 7.3. For each Valuation Date after
January 1, 1994, forfeitures shall first be used to
reinstate any previously forfeited account balances of
Former Participants, if any, in accordance with Section
6.4(d) and any remaining forfeitures shall be used to
reduce Employer contributions in any subsequent
valuation period.
(e)If a Former Participant is reemployed after five (5)
consecutive 1-Year Breaks in Service, then separate
accounts shall be maintained as follows:
1)one account for nonforfeitable benefits attributable
to pre-break service; and
2)one account representing his status in the Plan
attributable to post-break service.
4.7 Limitation On Deferred Compensation Elections
Notwithstanding the foregoing provisions of this Article IV,
for each Plan Year the Administrator shall limit the amount
of Elective Contributions made by Participants with respect
to each Participant who is a "Highly Compensated Employee"
to the extent necessary to insure that either of the
following tests is satisfied:
(a)the "Actual Deferral Percentage" for the group of
eligible Highly Compensated Employees is not more than
the Actual Deferral Percentage of all other Employees
multiplied by 1.25; or
(b)the excess of the Actual Deferral Percentage ("ADP")
for the group of eligible Highly Compensated Employees
over that of all other Employees is not more than two
percentage points, and the Actual Deferral Percentage
for the group of eligible Highly Compensated Employees
is not more than the Actual Deferral Percentage of all
other Employees multiplied by 2.
"Actual Deferral Percentage" for a group of
Employees for a Plan Year shall be the average of the
ratios (calculated separately for each Employee) of (i)
the amount credited to each Employee's Participant's
Elective Contribution Account for the Plan year to (ii)
the Employee's Compensation for the Plan Year.
4.8 Correction of Excessive Allocations
(a)With respect to a Participant's taxable year, if the
amount of contributions made pursuant to the
Participant's Elective Contributions election exceeds
$7,000 (as adjusted by the Secretary of the Treasury),
the Participant may notify the Administrator by the
March 1st following the end of such taxable year of the
amount of such Excessive Allocations. A Participant is
deemed to notify the Administrator of any Excessive
Allocations that arise by taking into account only
those Excessive Allocations made to this Plan and any
other plans maintained by the Employer. Not later than
the April 15th following the end of such taxable year,
the Trustee shall distribute such excess amount (and
the income attributable thereto) to the Participant.
(b)The Excessive Allocations to be distributed are
adjusted for any income or loss up to the date of
distribution. The income or loss allocable to
Excessive Allocations is the sum of:
1)income or loss allocable to the Employee's
Participant's Elective Account for the taxable year
multiplied by a fraction, the numerator of which is
such Participant's Elective Account without regard
to any income or loss occurring during such taxable
year; plus
2)ten percent (10%) of the amount determined under (1)
multiplied by the number of whole calendar months
between the end of the Participant's taxable year
and the date of distribution, counting the month of
distribution if distribution occurs after the 15th
of such month.
(c)Excess Allocations are treated as annual additions
under the Plan unless such amounts are distributed no
later than the first April 15th following the close of
Participant's taxable year.
4.9 Correction Of Excessive Elective Contributions
(a)With respect to a Plan Year, if neither of the tests
described under Section 4.8 is satisfied, the amount of
the Excessive Elective Contributions (and any income
attributable to such contributions) shall be
distributed to the affected Participants prior to the
end of the following Plan Year.
(b)The Administrator shall undertake to distribute
Excessive Elective Contributions to Plan Participants
within 2-1/2 months after close of the Plan Year in
which the Excessive Elective Contributions occurred.
In the event that Excessive Elective Contributions are
not distributed to affected Participants within 2-1/2
months after the close of such Plan Year, the Company
shall be subject to a ten (10%) percent excise tax
under Code Section 4979.
(c)The Excessive Contributions to be distributed are
adjusted for income and losses up to the date of
distribution. The income or loss allocable to
Excessive Contributions equals the sum of:
1)income or loss allocable to the Employee's
Participant's Elective Account for the Plan Year
multiplied by a fraction, the numerator of which is
the Participant's Excessive Contributions for the
Plan Year and the denominator is the Participant's
Elective Account on the last day of the Plan Year
without regard to any income or loss occurring
during the Plan Year; plus
2)10% of the amount determined under (1) multiplied by
the number of 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 the month.
(d)Excessive Elective Contributions (including amounts
recharacterized under Section 4.10) are treated as
annual additions under Code Section 415.
(e)The Actual Deferral Percentage for any eligible
Participant who is a Highly Compensated Employee for
the Plan Year and who is eligible to have contributions
pursuant to a Deferred Compensation election under two
or more plans described in Code Section 401(a) or
arrangements described in Code Section 401(k) that are
maintained by the Employer is determined as if such
contributions were made under a single plan. If the
plans have different plan years, all plans ending
within the same calendar year are treated as a single
plan. Notwithstanding the foregoing, certain plans
shall be treated as separate if mandatorily
desegregated pursuant to regulations under Code Section
401(k).
(f)If this Plan satisfied the requirements of Code
Sections 401(a)(4), 401(k) or 410(b) only if aggregated
with one or more other plans, or if one or more other
plans satisfy the requirements of those Code Sections
only if aggregated with this Plan, then this Section
4.10(f) is applied by determining the Actual Deferral
Percentages of eligible Participants as if all the
plans were a single plan. Plans may be aggregated in
order to satisfy Code Section 401(k) only if such plans
have the same plan year.
4.10Recharacterization Of Excessive Contributions
A Participant may treat his Excessive Elective Contribution
as an amount distributed to the Participant and then
contributed by the Participant to the Plan. Recharacterized
amounts will remain nonforfeitable and subject to the same
distribution requirements as contributions made pursuant to
an Elective Contribution election. Amounts may not be
recharacterized by a Highly Compensated Employee to the
extent that such amount in combination with other Voluntary
Contributions made by that Employee would exceed any stated
limit under the Plan on Voluntary Contributions.
Recharacterization must occur no later than two and one-half
months after the last day of the Plan Year in which such
Excessive Elective Contributions arose and is deemed to
occur no earlier than the date the last Highly Compensated
Employee is informed in writing of the amount
recharacterized and the consequences thereof.
Recharacterized amounts will be taxable to the Participant
for the Participant's tax year in which the Participant
would have received such amounts in cash.
4.11Limitation On Employer Matching Contributions And Voluntary
Contributions
(a)Notwithstanding the foregoing provisions of this
Article IV, for each Plan Year the Administrator shall
limit the amount of contributions made by the Employer
pursuant to Section 4.1(a) and (b) and Voluntary
Contributions with respect to each Participant who is a
Highly Compensated Employee to the extent necessary to
insure that either of the following tests is satisfied:
1)the"Average Contribution Percentage" (ACP) for the
group of eligible Highly Compensated Employees is
not more than the Actual Contribution Percentage of
all other Employees for the Plan Year multiplied by
1.25; or
2)the excess of the Average Contribution Percentage for
the group of eligible Highly Compensated Employees
over that of other Employees is not more than 2
percentage points and the Average Contribution
Percentage for the group of eligible Participants
who are Highly Compensated Employees is not more
than the Average Contribution Percentage of all
other Participants who are non-Highly Compensated
Employees multiplied by 2.
"Average Contribution Percentage" for a group of
Employees for a Plan Year shall be the average of
the ratios (calculated separately for each
Employee) of (i) the sum of Employer's contribution
under Section 4.1(a) and (b) and Voluntary
Contributions made under the Plan on behalf of the
Participant for the Plan Year to (ii) the
Participant's Compensation for the Plan Year.
Such Average Contribution Percentage shall include
forfeitures of Excessive Aggregate Contributions or
Employer's Non-Elective Contributions allocated to the
Participant's account which shall be taken account in
the year in which such forfeiture is allocated.
(b)Multiple Use: If the sum of the ADP and ACP of the
Highly Compensated Employees who participate in the
Plan exceeds the "Aggregate Limit", then the ACP of
such Highly Compensated Employees shall be reduced
(beginning with such Highly Compensated Employee whose
ACP in the highest) so that the limit is not exceeded.
The amount by which each Highly Compensated Employee's
Average Contribution Percentage is reduced shall be
treated as an Excessive Aggregate Contribution. The
ADP or ACP of the Highly Compensated Employees does not
exceed 1.25 multiplied by the ADP and ACP of the non-
Highly Compensated Employees.
"Aggregate Limit" shall mean the sum of (i) 125
percent of the greater of the ADP of the non-Highly
Compensated Employees for the Plan Year or the ACP of
non-Highly Compensated Employees for the Plan Year and
(ii) the lesser of 200% or two plus the lesser of such
ADP or ACP. "Lesser" is substituted for "greater" in
(i) above and "greater" is substituted for "lesser"
after "two plus the" in (ii) if it would result in a
larger Aggregate Limit.
(c)The Administrator may treat some of all of the
contributions made pursuant to the Participant's
Elective Contribution election as Employer Elective
Contributions to the extent the ADP test can be met
before the exclusion of such Elective Contributions and
continues to be met after the exclusion of such
Elective Contributions.
(d)The Contribution Percentage for any eligible
Participant who is a Highly Compensated Employee for
the Plan Year and who is eligible to receive Employer
Non-Elective Contributions under two or more plans
described in Code Section 401(a) or arrangements
described in Code Section 401(k) that are maintained by
the Employer is determined as if all Employer Non-
Elective Contributions (and Voluntary Contributions)
were made under a single plan. If the plans have
different plan years, all plans ending within the same
calendar year are treated as a single plan.
Notwithstanding the foregoing, certain plans shall be
treated as separate if mandatorily disaggregated
pursuant to regulations under Code Section 401(m).
(e)If this Plan satisfies the requirements of Code
Sections 401(a)(4), 401(m) or 410(b) only if aggregated
with one or more other plans, or if one or more other
plans satisfy the requirements of those Code Sections
only if aggregated with this Plan, then this Section
4.11(f) is applied by determining the contribution
percentage of eligible participants as if all the plans
were a single plan. In calculating contribution
percentages under this Section 4.11(f), Participant and
nonelective contributions to the other plans are
considered.
(f)The Administrator may treat one or more plans as a
single plan with the Plan whether or not the aggregated
plans satisfy Code Sections 401(a)(4) and 410(b).
However, those plans must then be treated as one plan
under Code Section 401(a)(4), 401(m) and 410(b). Plans
may be aggregated under this Section 4.11(g) only if
they have the same plan year.
(g)The determination and treatment of the contribution
percentage of any participant must satisfy such other
requirements as the Secretary of the Treasury may
prescribe.
4.12Correction Of Excess Aggregate Contributions
(a)Excessive Aggregate Contributions and income
allocable to those contributions are forfeited, if
otherwise forfeitable under this Plan, or if not
forfeitable, distributed no later than the last day of
each Plan Year, to Participants whom Employer Non-
Elective Contributions were allocated for the preceding
Plan Year. The Administrator anticipates that the
Excessive Aggregate Contributions will be distributed
to affected Participants within 2-1/2 months after the
close of the Plan Year in which the Excessive Aggregate
Contributions occurred.
(b)If the Excessive Aggregate Contributions are not
distributed to affected Participants with 2-1/2 months
after the close of the Plan Year, the Employer will be
subject to a 10% excise tax under Code Section 4979.
(c)The Excessive Aggregate Contributions to be
distributed are adjusted for income and losses up to
the date of distribution. The income or loss allocable
to Excessive Aggregate Contributions equals the sum of:
1)income or loss allocable to the Employer's
contributions under Section 4.1(b) and Voluntary
Contributions for the Plan Year multiplied by a
fraction, the numerator of which is the
Participant's Excessive Aggregate Contributions on
the last day of the Plan Year with regard to any
income or loss occurring during the Plan Year; plus
2)10%
of the amount determined under (1) above multiplied
by the number of 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 the month.
(d)Amounts forfeited by Highly Compensated Employees
under this Section 4.12(d) shall be allocated pursuant
to Section 4.6.
(e)Excess Aggregate Contributions are treated as annual
additions under Code Section 415.
4.13Special Rule For Family Members
To determine the ADP and ACP of an eligible Participant who
is a 5-percent owner or more of the ten most highly paid
Highly Compensated Employees, contributions to the
Participant's Elective Account and Employer Non-Elective
Contributions and Compensation of the Participant include
contributions to the participant's Elective Contributions
Account, Employer Non-Elective Contributions and Voluntary
Contributions and Compensation of family members [as defined
in Code Section 414(q)(6)]. Family members are disregarded
in determining the ADP and ACP of eligible Participants who
are non-Highly Compensated Employees. Family members with
respect to such Highly Compensated Employees shall be
disregarded as separate employees in determining the ADP and
ACP both for Participants who are non-Highly Compensated
Employees and Participants who are Highly Compensated
Employees.
4.14Maximum Annual Additions
(a)Notwithstanding the foregoing, the maximum "annual
additions" credited to a Participant's Accounts for any
limitation year shall equal the lesser of: (1) $30,000
or (2) twenty-five (25%) of the Participant's "415
Compensation for such Limitation Year".
(b)For purposes of applying the limitation of Code
Section 415, "annual additions" means the sum credited
to a Participant's accounts for any "limitation year"
of (1) Employer contributions, (2) Employee
contributions, (3) Forfeitures, (4) amounts allocated,
after March 31, 1984 to an individual medical account,
as defined in Code Section 415(1)(1) which is part of a
defined benefit plan maintained by the Employer and (5)
amounts derived from contributions paid or accrued
after December 31, 1985, in taxable years ending after
such date, which are attributable to post-retirement
medical benefits [as defined in Code Section
419A(d)(3)] allocated to the separate account of a Key
Employee under a welfare benefit plan [as defined in
Code Section 419(e)] maintained by the Employer.
(c)For purposes applying the limitations of Code
Section 415, the following are not "annual additions":
(1) transfer of funds from one qualified plan to
another; (2) rollover contributions [as defined in Code
Sections 402(a)(5), 403(a)(4), 408(d)(3) and
409(b)(3)(C)]; (3) repayments of loans made to a
Participant from the Plan; (4) repayments of
distributions received by an Employee pursuant to Code
411(a)(7)(B) (cash-outs); (5) repayments of
distributions received by an Employee pursuant to Code
Section 411(a)(3)(D) (mandatory contributions); (6)
Employee contributions to a simplified employee pension
allowed as a deduction under Code Section 219(a); and
(7) deductible Employee contributions to a qualified
plan.
(d)For purposes of applying the limitations of Code
Section 415, "415 compensation" shall mean wages within
the meaning of Code Section 3401(a) (for purposes of
income tax withholding at the source) but determined
without regard to rules that limit remuneration
included in wages based on the nature or location of
the employment or the services performed.
(e)For purposes of applying the limitations of Code
Section 415, the "limitation year" shall be the Plan
Year.
(f)The limitation stated in paragraph (a)(1) above
shall be adjusted annually as provided in Code Section
415(d) pursuant to the regulations prescribed by the
Secretary of the Treasury. The adjusted limitation is
effective as of January 1st of each calendar year and
is applicable to "limitation years" ending with or
within that calendar year.
(g)For the purpose of this Section, all qualified
defined benefit plans (whether terminated or not) ever
maintained by the Employer shall be treated as one
defined
benefit plan, and all qualified defined contribution
plans (whether terminated or not) ever maintained by
the Employer shall be treated as one defined
contribution Plan.
(h)For the purpose of this Section, if the Employer is
a member of a controlled group of corporations, trades
or businesses under common control [as defined by Code
Section 1563(a) or Code Sections 414(b) and (c) as
modified by Code Section 415(h)], is a member of an
affiliated service-group (as defined by Code Section
414(m), or Code Section 414(o), all Employees of such
Employers shall be considered to be employed by a
single Employer).
(i)For the purpose of this Section, if this Plan is a
Code Section 413(c) plan, all Employers of a
Participant who maintain this Plan will be considered
to be a single Employer.
(j) 1)If a Participant participated in more than one
defined contribution plan maintained by the Employer
which have different Anniversary Dates, the maximum
"annual additions" under this Plan shall equal the
maximum "annual additions" for the "limitation
year" minus any "annual additions" previously
credited to such Participant's accounts during the
"limitation year".
2)If a Participant participates in both a defined
contribution plan subject to Code Section 412 and a
defined contribution plan not subject to Code
Section 412 maintained by the Employer which have
the same Anniversary Date, "annual additions" will
be credited to the Participant's accounts under the
defined contribution plan subject to Code Section
412 prior to crediting "annual additions" to the
Participant's accounts under the defined
contribution plan not subject to Code Section 412.
3) If a Participant participates in more than one
defined contribution plan not subject to Code Section
412 maintained by the Employer which have the same
Anniversary Date, the maximum "annual additions"
under this Plan shall equal the product of (A) the
maximum "annual additions" for the "limitation
year" minus any "annual additions" previously
credited under subparagraphs (1) or (2) above,
multiplied by (B) a fraction (i) the numerator of
which is the "annual additions" which would be
credited to such Participant's accounts under this
Plan without regard to the limitations of Code
Section 415 and (ii) the denominator of which is
such "annual additions" for all plans described in
this subparagraph.
(k)If an Employee is (or has been) a participant in one
or more defined benefit plans and one or more defined
contribution plans maintained by the Employer, the sum
of the defined benefit plan fraction and the defined
contribution plan fraction for any "limitation year"
may not exceed 1.0.
4.15 Adjustment For Excessive Annual Additions
(a)If as a result of the allocation of Forfeitures, a
reasonable error in estimating a Participant's
Compensation, a reasonable error in determining the
amount of Elective Contributions or other facts and
circumstances to which Regulation 1.415-6(b)(6) shall
be applicable, the "annual additions" under this Plan
would cause the maximum "annual additions" to be
exceeded for a Participant, the Administrator shall:
(1) return any Voluntary Contributions credited for the
"limitation year" to the extent that the return would
reduce the "excess amount" in the Participant's
accounts; (2) return any Elective Contributions to the
extent that the return would reduce the "excess amount"
in the Participant's account; (3) hold any "excess
amount" remaining after the return of any Voluntary
Contributions and Elective Contributions in a suspense
account" and; (4) used to reduce future Employer Non-
Elective Contributions in the next "limitation year"
(and succeeding "limitation years" if necessary) to all
Participants in the Plan.
(b)For purposes of this Article, "excess amount" for
any Participant for a "limitation year" shall mean the
excess, if any, of (1) the "annual additions" which
would be credited to his account under the terms of the
Plan without regard to the limitations of Code Section
415 over (2) the maximum "annual additions" determined
pursuant to Section 4.9.
4.16Transfers From Qualified Plans
(a)With the consent of the Administrator, amounts may
be transferred from other qualified plans, provided
that the trust from which such funds are transferred
permits the transfer to be made and, in the opinion of
legal counsel for the Employer, the transfer will not
jeopardize the tax exempt status of the Plan or Trust
or create adverse tax consequences for the Employer.
The amounts transferred shall be set up in a separate
account herein referred to as a "Participant's Rollover
Account". Such account shall be fully vested at all
times and shall not be subject to Forfeiture for any
reason.
(b)Amounts in a Participant's Rollover Account shall be
held by the Trustee pursuant to the provisions of this
Plan, and may be withdrawn, in part or in whole, once
in any 12-month period but only if the provisions of
Section 6.10 are satisfied.
(c)The Participant's Rollover Account shall be invested
as part of the general Trust Fund and shall share in
earnings and losses.
(d)For purposes of this Section the term "amounts
transferred from another qualified plan" shall mean:
(i) amounts transferred in a trust to trust transfer to
this Plan directly from another qualified plan; (ii)
lump sum distributions received by an Employee from
another qualified plan which are eligible for tax free
rollover treatment and which are transferred by the
Employee to this Plan within sixty (60) days following
his receipt thereof; (iii) amounts transferred to this
Plan from a conduit individual retirement account
provided that the conduit individual retirement account
has no assets other than assets which (A) were
previously distributed to the Employee by another
qualified plan as a lump sum distribution, (B) were
eligible for tax free rollover into a qualified plan,
and (C) were deposited in such conduit individual
retirement account within sixty (60) days of receipt
thereof and other than earnings on said assets; (iv)
amounts distributed to the Employee from a conduit
individual retirement account meeting the requirements
of clause (iii) above, and transferred by the Employee
to this Plan within sixty (60) days of his receipt
thereof from such conduit individual retirement
account, and (v) amounts directly rolled over to this
Plan from another qualified plan pursuant to the
provisions of Code Section 401(a)(31). Prior to
accepting any transfers to which this Sections applies,
the Administrator may require the Employee to
establish that the amounts to be transferred to this
Plan meet the requirements of this Section and may also
require the Employee to provide an opinion of counsel
satisfactory to the Employer that the amounts to be
transferred meet the requirements of this Section.
(e)For purposes of this Section, the term "qualified
plan" shall mean any tax qualified plan under Code
Section 401(a).
4.17Voluntary Contributions
(a)Each Participant may elect to voluntarily contribute
up to 6% of his aggregate Compensation earned while a
Participant under this Plan. Such contributions shall
be paid to the Trustee no later than 90 days from the
date such amounts would otherwise be payable to the
Participant in cash (or such earlier time as may be
required by law. The balance in each Participant's
Voluntary Contribution Account shall be fully vested at
all times and shall not be subject to Forfeiture for
any reason.
(b)A Participant may elect, subject to the spousal
consent rules of Section 6.5 if applicable, to withdraw
his Voluntary Contributions from his Voluntary
Contribution Account and the actual earnings thereon
once in any 12-month period.
ARTICLE V
ACCOUNTING & VALUATIONS
5.1 Accounting
The Trustee shall keep detailed accounts of all transactions
and other specific records as shall be agreed upon in
writing by the Trustee and the Employer, all of which shall
be open to inspection and audit by any person or persons
designated by the Employer at reasonable times.
5.2 Valuations
Within 90 days following each July 1st and within 90 days
after his removal or resignation, the Trustee shall file
with the Employer and Administrator an account of financial
operations and status of the Trust Fund for the preceding
year, or fraction thereof in the event of removal or
resignation. The Trustee shall value stocks, bonds and
other similar securities or assets at fair market value.
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 Determination Of Benefits Upon Retirement
Upon Normal Retirement Date and following a termination of
employment thereafter, all amounts credited to such
Participant's Aggregate Account shall become distributable.
Upon direction of the Participant, the Trustee shall
distribute all amounts credited to such Participant's
Aggregate Account in accordance with Section 6.5. A
Participant shall be fully vested in amounts credited to the
Aggregate Account upon attainment of Normal Retirement Date
provided the Participant is in the employ of the Employer on
such date.
6.2 Determination Of Benefits Upon Death
(a)Upon the death of a Participant before his Normal
Retirement Date or other termination of his employment,
all amounts credited to such Participant's Aggregate
Account shall become fully vested. On or before the
Valuation Date coinciding with or next following such
death, the Administrator shall direct the Trustee, in
accordance with the provisions of Section 6.6 and 6.7,
to distribute the value of the deceased Participant's
Aggregate Account to the Participant's Beneficiary.
(b)On or before the Valuation Date coinciding with or
next following the death of a Former Participant, the
Trustee in accordance with the provisions of Sections
6.6 and 6.7, shall distribute any remaining amounts
credited to the Aggregate Account of such deceased
Former participant to such Former participant's
Beneficiary.
(c)The Administrator may require such proper proof of
death and such evidence of the right of any person to
receive payment of the value of the Aggregate Account
of a deceased participant or a deceased Former
Participant as the Administrator may deem desirable.
(d)Unless otherwise elected in the manner prescribed in
Section 6.6, the Beneficiary of the death benefit shall
be the Participant's spouse, who shall receive such
benefit in the form of a Pre-Retirement Survivor
Annuity pursuant to Section 6.6; provided however, the
Participant may designate a Beneficiary other than his
spouse if:
1) the Participant and his spouse have validly waived
the Pre-Retirement Survivor Annuity in the manner
prescribed in Section 6.6, and the spouse has
waived his or her right to be the Participant's
Beneficiary in the manner prescribed in Section
6.5, or
2) the Participant has no spouse, or
3) the spouse cannot be located.
In such event, the designation of a Beneficiary
shall be made on a form satisfactory to the
Administrator. A Participant may at any time revoke
his designation of a Beneficiary or change his
Beneficiary by filing written notice of such revocation
or change with the Administrator. However, the
Participant's spouse must again consent in writing to
any such change or revocation. In the event no valid
designation Beneficiary exists at the time of the
Participant's death, the death benefit shall be payable
to his estate.
6.3 Determination Of Benefits In Event Of Disability
In the event of a Participant's Total and Permanent
Disability prior to his Normal Retirement Date or separation
from service, all amounts credited to such Participant's
Account shall become fully vested. On or before the
Valuation Date coinciding with or next following the event
of Total and Permanent Disability, the Trustee, subject to
the $3,500 distribution rule of Section 6.5(c), in
accordance with the provisions of Sections 6.5 and 6.7,
shall distribute to such Participant all amounts credited to
such Participant's Aggregate Account as though he had
retired.
6.4 Determination Of Benefits Upon Termination
(a)On or before the Valuation Date coinciding with or
subsequent to the termination of a Participant's
employment for any reason other than death, Total and
Permanent Disability or Retirement, a Participant may
direct the distribution of a vested Aggregate Account
pursuant to the provisions below.
Distribution of the funds due to a Terminated
Participant shall be made on the occurrence of an event
which would result in the distribution had the
Terminated Participant remained in the employ of the
Employer (upon the Participant's death, Total and
Permanent Disability or Normal Retirement), or at the
Terminated Participant's request, the Administrator
shall direct the Trustee to cause the vested portion of
the Terminated Participant's Aggregate Account to be
payable to such Terminated Participant; provided
however, that notwithstanding the foregoing, a
Terminated Participant's Vested benefit may not be paid
prior to his Normal Retirement Date without his written
consent if the value of the Aggregate Account exceeds
$3,500. Further, the spouse of the Participant must
consent in writing to any such distribution. Written
consent of the Participant's spouse to the distribution
must be obtained not more than 90 days before
commencement of the distribution.
(b)The vested portion of any Participant's Employer
Contribution Account shall be a percentage of the total
amount credited to the Participant's Employer
Contribution Account determined on the basis of the
Participant's number of Years of Service according to
the following schedule:
Completed Years of Service Percentage
Less than 1 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
(c)The computation of a Participant's nonforfeitable
percentage of his interest in the Plan shall not be
reduced as the result of any direct or indirect
amendment to this Article. In the event that the Plan
is amended to change or modify any vesting schedule, a
participant with at least three (3) Years of Service as
of the expiration date of the election period may elect
to have his nonforfeitable percentage computed under
the Plan without regard to such amendment. If a
Participant fails to make such election, then such
Participant shall be subject to the new vesting
schedule. The Participant's election period shall
commence on the adoption date of the amendment and
shall end 60 days after the latest of:
(i)the adoption date of
the amendment;
(ii)the effective date
of the amendment, or
(iii)the date the Pa
rticipant receives written notice of the
amendment from the Employer or the
Administrator.
(d) 1) If any Former Participant
shall be reemployed by the Employer before a Break
in Service occurs, he shall continue to participate
in the Plan in the same manner as if such
termination had not occurred.
2) If any Former Participant shall be
reemployed by the Employer before five (5)
consecutive years of a Break in Service, and such
Former Participant had received a distribution of
his entire vested interest prior to his
reemployment, his forfeited account shall be
reinstated only if he repays the full amount
distributed to him before the earlier of five (5)
years after the first date on which the Participant
is subsequently reemployed by the Employer, or the
date the Participant incurs five (5) consecutive
years of a Break in Service following the date of
distribution. In the event the Former Participant
does repay the full amount distributed to him, the
undistributed portion of the Participant's Account
must be restored in full, to the Valuation Date
preceding his termination.
3) If any Former Participant is reemployed
after a Break in Service has occurred, Years of
Service shall include Years of Service prior to his
Break in Service subject to the following rules:
(i)If a
Former Participant has a One Year Break in
Service, his pre-break and post-break
service shall be used for computing Years
of Service for eligibility and for vesting
purposes only after he has been employed
for one (1) Year of Service following the
date of his reemployment with the Employer;
(ii)Each non-vested
Former Participant shall lose credits
otherwise allowable under (i) above, if his
consecutive years of a Break in Service
equal or exceed five (5) years;
(iii)after five (5)
consecutive years of a Break in Service, a
Former participant's vested account balance
attributable to pre-break service shall not
be increased as a result of post-break
service;
(iv)if a Former Pa
rticipant completes one (1) Year of Service
for eligibility purposes following his
reemployment with the Employer, he shall
participate in the Plan retroactively from
his date of reemployment;
(v)if a Former Pa
rticipant completes a Year of Service (a 1-
Year Break in Service previously occurred,
but employment had not terminated), he
shall participate in the Plan retroactively
from the first day of the Plan Year during
which he completes one (1) Year of Service.
6.5 Distribution Of Benefits
(a) 1) Unless otherwise elected
as provided below, a Participant who is married on
the "annuity starting date" and who retires under
the Plan shall receive the value of his Aggregate
Account in the form of a joint and survivor
annuity. Such joint and survivor benefits
following the Participant's death shall continue to
the spouse during the spouse's lifetime at a rate
equal to sixty-six and two-thirds percent (66-2/3%)
of the rate at which such benefits were payable to
the Participant. Such married participant may
elect in writing to waive the joint and survivor
annuity subject to the spousal consent rules under
Section 6.5(a)(2).
The Participant may elect
to receive an annuity benefit with continuation of
payments to the spouse at a rate of between 50% and
100% inclusive, of the rate payable to the
Participant during his lifetime. An unmarried
Participant shall receive the value of his benefit
in the form of a life annuity. Such unmarried
Participant, however, may elect in writing to waive
the life annuity. The election must comply with
the provisions of this Section as if it were an
election to waive the joint and survivor annuity by
a married participant but without the spousal
consent requirement.
2) Any election to waive the
joint and survivor annuity must (i) be made by the
Participant in writing during the election period,
(ii) be consented to by the Participant's spouse in
writing, and (iii) designate a specific Beneficiary
which may not be changed without spousal consent.
Such spouse's written consent shall be irrevocable
and must acknowledge the effect of such election
and be witnessed by a Plan representative or a
notary public. Additionally, a Participant's
waiver of the joint and survivor annuity shall not
be effective unless the election designates a form
of benefit payment which may not be changed without
spousal consent. Such consent shall not be
required if it is established to the satisfaction
of the Administrator that the required consent
cannot be obtained because there is no spouse, the
spouse cannot be located, or other circumstances
that may be prescribed by Treasury regulations.
The election made by the Participant and consented
to by his spouse may be revoked by the Participant
in writing with the consent of the spouse at any
time during the election period. The number of
revocations shall not be limited. Any new election
must comply with the requirements of this
paragraph. A former spouse's waiver shall not be
binding on a new spouse. Spousal consent that is
obtained under this Section shall not be valid
unless the participant has received notice as
provided under Section 6.5(a)(5).
3) The election period to
waive the joint and survivor annuity shall be the
90 day period ending on the "annuity starting
date".
4) For purposes of this
Section, the "annuity starting date" means the
first day of the first period for which an amount
is received as an annuity (whether by reason of
retirement or disability).
5) With regard to the
election, the Administrator shall in not less than
30 days and not more than 90 days before the
"annuity starting date" provide the Participant a
written explanation of:
(i)the terms and
conditions of the joint and survivor
annuity, and
(ii)the Participant's
right to make and the effect of an election
to waive the joint and survivor annuity,
and
(iii)the right of the
Participant's spouse to consent to any
election to waive the joint and survivor
annuity, and
(iv)the right of the
Participant to revoke such election, and
the effect of such revocation, and
(v)the relative value
of the optional forms of benefit provided
under the Plan.
(b)In the event of a married Participant duly elects
pursuant to paragraph (a)(2) above not to receive the
retirement benefit in the form of a joint and survivor
annuity, or if such Participant is not married, in the
form of a life annuity, the Administrator shall direct
the Trustee to distribute to a Participant or his
Beneficiary any amount to which he is entitled under
the Plan in one or more of the following methods:
1) One lump-sum payment in
cash or in property;
2) Payments over a period
certain in monthly, quarterly, semiannual or annual
case installments, after first having (A)
segregated the aggregate amount thereof in a
separate, federally insured savings account,
certificate of deposit in a bank or savings and
loan association, money market certificate or other
liquid short-term security or (B) purchased a
nontransferable annuity contract providing for such
payment. The period over which such payment is to
be made shall not extend beyond the Participant's
life expectancy (or the life expectancy of the
Participant and his designated Beneficiary); or
3) Purchase of or providing
an annuity. However, such annuity may not be in
any form that will provide for payments over a
period extending beyond either the life of the
Participant (or the lives of the Participant and
his designated beneficiary) or the life expectancy
of the Participant (or the life expectancy of the
Participant and his designated Beneficiary).
(c)A Retired Participant's vested benefit derived from
Employer and Employee contributions may not be paid
without his written consent if the value exceeds
$3,500. Further, the spouse of a Retired Participant
must consent in writing to any such distribution. If
the value of the Retired Participant's benefit derived
from Employer and Employee contributions does not
exceed $3,500, the Administrator may immediately
distribute such benefit without such Retired
Participant's consent. No distribution may be made
under the preceding sentence after the annuity starting
date unless the Participant and the Participant's
spouse consent in writing t such distribution. Written
consent of the Participant and the Participant's spouse
to the distribution must be obtained not more than 90
days before commencement of the distribution.
(d)Distribution of a Participant's Accounts must begin
by the first day of April of the calendar year
following the calendar year in which the Participant
attains age 70-1/2 except for a Participant who attains
age 70 1/2 before January 1, 1988. Distribution of the
Account of a Participant who attains age 70 before
January 1, 1988 must begin as described below:
1) By the first day of April
of the calendar year following the calendar year in
which the later of retirement or attainment of age
70-1/2 occurs if a Participant is not a 5% owner.
2)By the first day of April following the later of:
(i)the calendar year in which the Participant
attains age 70-1/2;
or
(ii)the earlier of the calendar year with
or within which ends the Plan Year in which
the Participant becomes a 5% owner, or the
calendar year in which the Participant retires
if a Participant is a 5% owner.
3) By April 1, 1990 if a
Participant attains age 70-1/2 during 1988 and has
not retired as of January 1, 1989 and is not a 5%
owner.
A Participant is treated
as a 5% owner for purposes of this Section if such
Participant is a 5% owner as defined in Code
Section 416(i) (determined in accordance with Code
Section 416 but without regard to whether the plan
is top heavy) at any time during the Plan Year
ending with or within the calendar year in which
such owner attains age 66-1/2 or any subsequent
Plan Year.
Once distributions have
begun to a 5% owner under this section, they must
continue to be distributed, even if the Participant
ceases to be a 5% owner in a subsequent year.
4) All distributions required
under this Article VI shall be determined and made
in accordance with the Treasury Regulations under
Code Section 401(a)(9), including the minimum
distribution incidental benefit requirement of
Section 1.401(a)(9)-2 of the Regulations.
6.6 Distribution Of Benefits Upon Death
(a)Unless otherwise elected as provided below, a vested
Participant who dies before the annuity starting date
and who has a surviving spouse shall have his death
benefit made available immediately to his surviving
spouse in the form of a Pre-Retirement Survivor
Annuity.
(b)Any election to waive the Pre-Retirement Survivor
Annuity must be made by the Participant in writing
during the election period and shall require the
spouse's irrevocable consent in the same manner
provided for in Section 6.5(a)(2). Further, the
spouse's consent may acknowledge the specific non-
spouse Beneficiary or may be a general consent.
(c)The election period to waive the Pre-Retirement
Survivor Annuity shall begin on the first day of the
Plan Year in which the Participant attains age 35 and
end on the date of the Participant's death. In the
event a vested Participant separates from service prior
to the beginning of the election period, the election
period shall begin on the date of such separation from
service.
(d)With regard to this election, the Administrator
shall provide each Participant within the applicable
period, a written explanation of the Pre-Retirement
Survivor Annuity containing comparable information to
that required pursuant to Section 6.5(a)(5).
(e)The applicable period for a Participant is whichever
of the following periods ends last: (i) the period
beginning with the first day of the Plan Year in which
the Participant attains age 32 and ending with the
close of the Plan Year preceding the Plan Year in which
the Participant attains age 35; (ii) a reasonable
period ending after the individual becomes a
Participant; (iii) a reasonable period ending after
this Section 6.6 first applies to the Participant.
Notwithstanding the foregoing, notice must be provided
within a reasonable period ending after separation from
service in the case of a Participant who separates
before attaining age 35.
(f)For purposes of applying the preceding paragraph, a
reasonable period ending after the enumerated events
described in (ii) and (iii) is the end of the two-year
period beginning one year prior to the date the
applicable event occurs, and ending one year after that
date. In the case of a Participant who separates from
service before the Plan Year in which age 35 is
attained, notice shall be provided within the two-year
period beginning one year prior to separation and
ending one year after separation. If such a
participant thereafter returns to employment with the
Employer, the applicable period for such Participant
shall be redetermined.
(g)If the value of the Pre-Retirement Survivor Annuity
is less than $3,500, the Administrator shall direct the
immediate distribution of such amount to the
Participant's spouse; provided, however if such
distribution is to be made after the annuity starting
date, then such surviving spouse must consent in
writing to such distribution. If the value exceeds
$3,500, an immediate distribution of the entire amount
may be made to the surviving spouse, provided such
surviving spouse consents in writing to such
distribution.
(h) 1) In the event the death
benefit is not paid in the form of a Pre-Retirement
Survivor Annuity, it shall be paid to the
Participant's Beneficiary be either of the
following methods, as elected by such Beneficiary:
(i)One lump-sum payment
in cash or in property;
(ii)Payment in equal
monthly, quarterly, semi-annual or annual
cash installments over a period certain.
2) In the event the death
benefit payable pursuant to Section 6.2 is payable
in installments, then, upon the death of the
Participant, the Administrator shall direct the
Trustee to segregate into a separate Trust Fund(s)
the death benefit, and the Trustee shall invest
such segregated Trust Funds separately, and the
funds accumulated in such Trust Fund(s) shall be
used for the payment of the installments here in
above provided.
3) The Administrator may
direct the Trustee to (1) accelerate any
installment payment to a participant's Beneficiary
at such Beneficiary's request, or (2) at such
Beneficiary's request, purchase for the benefit of
such Beneficiary, an annuity with all monies or
property held in the segregated Trust Fund(s).
(i)If the distribution
of a Participant's benefit has begun in
accordance with a method selected in
Section 6.5 and the Participant dies before
his entire interest has been distributed to
him, the remaining portion of such interest
shall be distributed at least as rapidly as
under the method of distribution selected
pursuant to Section 6.5 as of his date of
death.
(ii)If a Participant
dies before he has begun to receive any
distributions of his interest under the
Plan, his death benefit shall be
distributed to his Beneficiaries within 5
years after his death.
(i)The 5-year distribution requirement of Section
6.6(h) shall not apply to any portion of the deceased
Participant's interest which is payable t or for the
benefit of a designated Beneficiary (or over a period
not extending beyond the life expectancy of such
designated Beneficiary (or over a period not extending
beyond the life expectancy of such designated
Beneficiary) provided such distribution begins not
later than one (1) year after the date of the
Participant's death (or such later date as may be
prescribed by Treasury regulations).
Except however, in the event the Participant's
spouse is his Beneficiary, the requirement that
distribution commence within one year of a
Participant's death shall not apply. In lieu thereof,
such distribution must commence no later than the date
on which the deceased Participant would have attained
age seventy and one-half (70-1/2). If the surviving
spouse dies before the distributions to such spouse
begin, then the 5-year distribution requirement of
Section 6.6(h) shall apply as if the spouse were the
Participant.
(j)For purposes of this section, the life expectancy of
a Participant and a Participant's spouse (other than in
the case of a life annuity) may be redetermined, but
not more frequently than annually and in accordance
with such rules as may be prescribed by Treasury
regulation. Further, life expectancy and joint and
last survivor expectancy shall be computed using the
return multiples of Regulation 1.72-9.
6.7 Time Of Segregation Or Distribution
Except as limited by Sections 6.5 and 6.6, whenever the
Trustee is to make a distribution or to commence a series of
payments on or as of a Valuation Date, the distribution or
series of payments may be made or begun on such date or as
soon thereafter as is practicable. Except however, unless a
Former Participant elects in writing to defer the receipt of
benefits (such election may not result in a death benefit
that is more than incidental), the payment of benefits shall
begin not later than the 60th day after the close of the
Plan Year in which the latest of the following events
occurs:
1) the date on which the Participant attains the
earlier of age 65,
2) the 5th Anniversary of the year in which the
Participant commenced participation in the Plan, or
3) the date the Participant terminates his service with
the Employer.
6.8 Distribution For Minor Beneficiary
In the event a distribution is to be made to a minor, then
the Administrator may, in the Administrator's sole
discretion, direct that such distribution be paid to the
legal guardian, or if none, to parent of such Beneficiary or
a responsible adult with whom the Beneficiary under the
Uniform Gift to Minors Act or Gift to Minors Act, if such is
permitted by the laws of the state in which said Beneficiary
resides. Such a payment to the legal guardian or parent of
a minor Beneficiary shall fully discharge the Trustee,
Employer and Plan from further liability on account thereof.
6.9 Location Of Participant Or Beneficiary Unknown
In the event that all, or any portion of the distribution
payable to a Participant or his Beneficiary hereunder shall,
at the expiration of five (5) years after it shall become
payable, remain unpaid solely by reason of the inability of
the Administrator, after sending a registered letter, return
receipt requested, to the last known address, and after
further diligent effort, to ascertain the whereabouts of
such Participant or his Beneficiary, the amount so
distributable shall be reallocated in the same manner as a
Forfeiture pursuant to this Agreement. In the event a
Participant or Beneficiary is located subsequent to his
benefit being reallocated, such benefit shall be restored.
6.10 Advance Distribution For Hardship
(a)The Administrator may direct the Trustee to
distribute to any Participant or his Beneficiary in any
one Plan Year up to 100% of the vested portion of his
Participant's Aggregate Account (including for this
purpose, the Participant's Elective Contribution
Account including income thereon as of June 30, 1989,
plus Elective Contribution made after June 30, 1989 but
no income after such date), valued as of the last
Valuation Date, in the case of proven financial
necessity as provided under Section 6.10(b).
(b)Financial necessity shall mean:
1) medical expenses incurred
by the Participant, the participant's spouse or any
dependent of the Participant, or amounts that are
necessary for the Participant, the Participant's
spouse or any dependent of the Participant to
obtain medical service;
2) the purchase (excluding
mortgage payments) of a principal residence for the
Participant;
3) the payment of tuition for
the next 12 months of post-secondary education for
the Participant, his spouse, children or
dependents;
4) the need to prevent the
eviction of the Participant from his principal
residence or the foreclosure on the mortgage of the
Participant's principal residence; or
5) any other relevant facts
and circumstance that the Administrator shall
determine creates financial necessity based on the
following criteria:
(A)the financial need is immediate and heavy;
(B)the financial need is necessary to the
physical or mental well being of the
Participant or the Participant's
immediate family;
(C)the financial need is not related to
an item or service that is connected to
recreation, convenience or pleasure;
and
(d)any other objective criteria that the
Administrator may apply and which shall
be added as an amendment to the Plan.
(c)In order to receive a hardship distribution, the
distribution must be necessary to satisfy an immediate
and heavy financial need of the participant. Such need
shall be deemed to exist if the following requirements
are satisfied:
1) the amount of the distribution does not
exceed the amount of the Participant's immediate
and heavy financial need; including amounts
necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated to result
from the distribution;
2) the Participant has received all
distributions (other than hardship distributions)
and nontaxable loans available under all qualified
plans maintained by the Employer;
3) all plans maintained by the Employer
(including nonqualified plans of deferred
compensation but excluding contributions made to a
health and welfare plan) provide that the
Participant may not make an Elective Contribution
election and Voluntary Contributions for at least
12 months after receipt of the hardship
distribution; and
4) all qualified plans maintained by the
Employer provide that the Participant may not make
an Elective Contribution election for the
Participant's taxable year immediately following
the taxable year of the hardship distribution in an
amount greater than the limitation under Code
Section 402(g) $7,000 as adjusted) less the amount
of the Participant's Elective Contributions for the
taxable year of the hardship distribution.
(d)No income attributable to contributions made
pursuant to a Participant's Elective Contributions
election may be withdrawn. A Participant can resume
participation as of the first day of the calendar
quarter following the expiration of the 12-month
suspension period.
(e)If applicable, a married Participant's election for
a distribution pursuant to this Section 6.10 must be
consented to by his spouse in the manner provided by
Section 6.6.
(f)The Administrator shall establish such rules and
procedures with respect to a hardship distribution
including suspension from further contributions, as it
shall from time to time determine. No forfeitures
shall occur as a result of any hardship distribution.
(g)Hardship distributions shall be limited to one
distribution in any 12 consecutive month period.
6.11 Advance Distributions For Loans To Participants
(a)The Trustee may make loans to Participants and
Beneficiaries under the following circumstances:
1) loans shall be made available to all
Participants and Beneficiaries on a reasonably
equivalent basis;
2) loans shall not be made available to
Highly Compensated Employees, as defined under Code
Section 414(q) in an amount greater than the amount
made available to other Participants and
Beneficiaries;
3) loans shall bear a reasonable rate of
interest;
4) loans shall be adequately secured; and
5) shall provide for periodic repayment
over a reasonable period of time.
(b)Loans with principal amounts and/or repayment
periods exceeding the limits set forth below shall not
be made under the Plan.
(c)Loans shall not be granted to any Participant or his
Beneficiary that provide for a repayment period
extending beyond such Participant's Normal Retirement
Date.
(d)Loans made pursuant to this Section shall be limited
to the lesser of:
(i) $50,000 reduced by the
excess (if any) of the highest outstanding balance
of loans during the one year period ending on the
day before the loan is made, over the outstanding
balance of loans from the Plan on the date the loan
is made, or
(ii) one-half (1/2) of the
present value of the vested interest of such
Participant's Combined Account maintained on behalf
of the Participant under the Plan.
(e)Loans shall provide periodic repayment over a period
not to exceed five (5) years; provided however, loans
used to acquire any dwelling unit which, within a
reasonable time, is to be used (determined at the time
the loan is made) as a principal residence of the
Participant, shall provide for periodic repayment over
a reasonable period of time that may exceed five (5)
years.
(f)For the purposes of this section all plans of the
Employer shall be considered one Plan.
(g)No loans shall be made to any owner-employee.
(h)Any loan made pursuant to this Section where the
vested account of the Participant is used to secure
such loan shall require the written consent of the
Participant's spouse. Such written consent must be
obtained within the 90 day period prior to the date the
loan is made.
6.12 Limitations On Benefits And Distributions
All rights and benefits, including election, provided to a
Participant in this Plan shall be subject to the rights
afforded to any "alternate payee" under a "qualified
domestic relations order" as those terms are defined in
Code Section 414(p).
6.13 Direct Transfer
The provisions of this Section 6.13 shall be effective for
distributions occurring on and after January 1, 1993.
(a)In the event a Participant, alternate payee under a
Qualified Domestic Relations Order described in Code
Section 414(p) or any other beneficiary entitled to
benefits under the Plan, is entitled to receive an
"eligible rollover distribution" from the Plan then
such Participant, alternate payee or beneficiary may
request that any or all of the taxable portion of the
distribution be paid directly from the Plan into an
"eligible retirement plan" specified by the
Participant, alternate payee or beneficiary in a direct
rollover, provided that if a Participant, alternate
payee or other beneficiary elects to make a direct
rollover of a portion of the taxable distribution and
to receive a distribution of the remaining balance,
then the portion of the distribution paid in a direct
rollover to an "eligible retirement plan" must be at
least $200.
Distributions which are less than $200 are not
eligible for direct rollover under this Section 6.13.
(b)For purposes of this section, the following terms
shall have the meanings stated herein:
(i) "Eligible Retirement Plan" means an
individual retirement account described in Section
408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, a
qualified trust described under Code Section 401(a)
that accepts eligible rollover distributions or a
Code Section 403(b) annuity. However, in the case
of an Eligible Rollover Distribution to a surviving
spouse, an eligible retirement plan is an
individual retirement account or individual
retirement annuity only.
(ii) "Eligible Rollover
Distribution" means any distribution of all or any
portion of the balance to the credit of the
Participant's account, except that an eligible
rollover distribution does not include: any
distribution that is one of a series of
substantially equal periodic payments for the life
or life expectancy of the Participant, alternate
payee or beneficiary whichever is applicable) or
payable for a specified period of ten or more
years; any distribution to the extent such
distribution is required under Section 8.02 of the
Plan and the portion of any distribution that is
not includible in gross income (determined without
regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(c)In the event a Participant, alternate payee or other
beneficiary does not elect to have the taxable portion
of a distribution paid directly to an Eligible
Retirement Plan, then such portion of the distribution
shall be subject to mandatory withholding at a rate of
20%.
(d)A Participant shall be entitled to a period of at
least 30 days and not more than 90 days to determine
whether or not a distribution shall be directly rolled
over from the date a Participant is provided notice
under Code Section 402(f); except that a Participant
may waive the 30 day requirement if the Participant is
informed of a Participant's right to a 30 day period.
A Participant will be deemed to have waived the 30-day
requirement if such Participant makes an affirmative
election to make or not make a direct rollover within
the 30-day period. A waiver under this Section (d)
shall not be deemed a waiver with respect to Code
Sections 401(a)(11) or 417.
ARTICLE VII
TOP HEAVY RULES
7.1 Top Heavy Plan Requirements
(a)For any Top Heave Plan Year the Plan shall provide
the special minimum allocation requirements of Code
Section 416(c) pursuant to Section 7.3 of the Plan.
(b)The special minimum allocation requirements under
this Section shall be in addition to any Employer
Elective Contribution.
7.2 Determination Of Top Heavy Status
(a)This Plan shall be a Top Heavy Plan for any Plan
Year commencing after December 31, 1983 in which as of
the Determination Date, (1) the Present Value of
Accrued Benefits of Key Employees, or (2) the sum of
the Aggregate Accounts of Key Employees under this Plan
and all plans of an Aggregation Group exceeds sixty
percent (60%) of the Present Value of Accrued Benefits
or, the Aggregate Accounts of all Key and Non-Key
Employees under this Plan and all plans of an
Aggregation Group.
If any Participant is a Non-Key Employee for any
Plan Year, but such Participant was a Key Employee for
any prior Plan Year, such participant's Present Value
of Accrued Benefit and/or Aggregate Account balance
shall not be taken into account for purposes of
determining whether this Plan is a Top Heavy or Super
Top Heavy Plan (or whether any Aggregation Group with
includes this Plan is a Top Heavy Group). In addition,
if a Participant or Former Participant has not
performed any services for the Employer maintaining the
Plan (other than benefits under the Plan) at any time
during the five year period ending on the Determination
Date, the Aggregate Account and/or Present Value of
Accrued Benefit for such Participant or Former
Participant shall not be taken into account for the
purposes of determining whether this Plan is a Top
Heavy or Super Top Heavy Plan.
(b)This Plan shall be a Super Top Heavy Plan for any
Plan Year commencing after December 31, 1983 in which,
as of the Determination Date, (1) the present Value of
Accrued Benefits of Key Employees, or (2) the sum of
the Aggregate Accounts of Key Employees under this Plan
and all plans of the Aggregation Group, exceeds ninety
percent (90%) of the Present Value of Accrued Benefits
and the Aggregate Accounts of all Key and Non-Key
Employees under this Plan and all plans of an
Aggregation Group.
(c)Aggregate Account: A Participant's Aggregate
Account as of the Determination Date is the sum of:
1) Participant's Combined Account balance
as of the most recent valuation occurring within a
twelve (12) months period ending on the
Determination Date;
2) an adjustment for any contributions due
as of the Determination Date. Such adjustment
shall be the amount of any contributions actually
made after the valuation date but on or before the
Determination Date, except for the first Plan Year
when such adjustment shall also reflect the amount
of any contributions made after the Determination
Date that are allocated as of a date in the first
Plan Year;
3) any Plan distributions made within the
Plan Year that includes the Determination Date or
within the four (4) preceding Plan Years. However,
in the case of distributions made after the
valuation date and prior to the Determination Date,
such distributions are not included as
distributions for top heavy purposes to the extent
that such distributions are already included in the
Participant's Aggregate Account balance as of the
valuation date. Notwithstanding anything herein to
the contrary, all distributions, including
distributions made prior to January 1, 1984 and
distributions under a terminated plan which if it
had not been terminated would have been required to
be included in an Aggregation Group, will be
counted. Further, distributions from the Plan of a
Participant's account balance because of death
shall be treated as a distribution for the purposes
of this paragraph;
4) any Voluntary Contributions;
5) with respect to unrelated rollovers and
plan-to-plan transfers (ones which are both
initiated by the Employee and made from a plan
maintained by one employer to a plan maintained by
another employer), if this Plan provides for
rollovers or plan-to-plan transfers it shall always
consider such rollover or plan-to-plan transfer as
a distribution for the purposes of this section.
If this Plan is the plan accepting such rollovers
or plan-to-plan transfers, it shall not consider
such rollovers or plan-to-plan transfers accepted
after December 31, 1983 as part of the
Participant's Aggregate Account balance. However,
rollovers or plan-to-plan transfers accepted prior
to January 1, 1984 shall be considered as part of
the Participant's Aggregate Account balance;
6) with respect to related rollovers and
plan-to-plan transfers (ones either not initiated
by the Employee or made to a plan maintained by the
same employer), if this Plan provides the rollover
or plan-to-plan transfer, it shall not be counted
as a distribution for purposes of this Section. If
this Plan is the plan accepting such rollover or
plan-to-plan transfer, it shall consider such
rollover or plan-to-plan transfer as part of the
participant's aggregate Account balance,
irrespective of the date on which such rollover or
plan-to-plan transfer is accepted; and
7) for the purposes of determining whether
two employers are to be treated as the same
employer in (5) and (6) above, all employers
aggregated under Code Sections 414(b), (c), (m) or
(o) are treated as the same employer.
(d)"Aggregation Group" means either a Required
Aggregation Group or a Permissive Aggregation Group as
hereinafter determined.
1) Required Aggregation Group: In
determining a Required Aggregation Group hereunder,
each plan of the Employer in which a Key Employee
is a Participant in the Plan Year containing the
Determination Date or any of the four preceding
Plan Years and each other plan of the Employer
which enables any plan in which a Key Employee
participates to meet the requirements of Code
Sections 401(a)(4) or 410, will be required to be
aggregated. Such group shall be known as a
Required Aggregation Group.
In the case of a Required Aggregation
Group, each plan in the group will be considered a
Top Heavy Plan if the Required Aggregation Group is
a Top Heavy Group. No plan in the Required
Aggregation Group will be considered a Top Heavy
Plan if the Required Aggregation Group is not a Top
Heavy Group.
2) Permissive Aggregation Group: The
Employer may also include any other plan not
required to be included in the Required Aggregation
Group, provided the resulting group, taken as a
whole would continue to satisfy the provisions of
Code Sections 401(a)(4) and 410. Such group shall
be known as a Permissive Aggregation Group.
In the case of a Permissive Aggregation
Group, only a plan that is part of the Required
Aggregation Group will be considered a Top Heavy
Plan if the Permissive Aggregation Group is a Top
Heavy Group. No plan in the Permissive Aggregation
Group will be considered a Top Heavy Plan if the
Permissive Aggregation Group is not a Top Heavy
Group.
3) Only those plans of the Employer in
which the Determination Dates fall within the same
calendar year shall be aggregated in order to
determine whether such plans are Top Heavy Plans.
4) An Aggregation Group shall include any
terminated plan of the Employer if it was
maintained within the last five (5) years ending on
the Determination Date.
(e)"Determination Date" means (a) the last day of the
preceding Plan Year, or (b) in the case of the first
Plan Year, the last day of such Plan year.
(f)present Value of Accrued Benefit: In the case of a
defined benefit plan a Participant's Present Value of
Accrued Benefit shall be as determined under the
provisions of the applicable defined benefit plan. The
Accrued Benefit of an Employee (other than a Key
Employee) shall be determined under the method which is
used for general purposes for all plans of the Employer
or, if there is no method so described, as if such
benefit accrued not more rapidly than the slowest
benefit accrued under Code Section 411(b)(1)(c).
(g)"Top Heavy Group" means an Aggregation group in
which, as of the Determination Date the sum of:
1) the Present Value of Accrued Benefits of
Key Employees under all defined benefit plans
included in the group, and
2) the Aggregate Accounts of Key Employees
under all defined contribution plans included in
the group exceeds sixty percent (60%) of a similar
sum determined for all Participants.
7.3 Minimum Allocations
(a)Minimum Allocation Required for Top Heavy Plan
Years: Notwithstanding the provisions of Section 4.14
for any Top Heavy Plan Year, the sum of the Employer's
contributions and Forfeitures allocated to the
Participant's Combined Account of each Non-Key Employee
shall be equal to at least three percent (3%) of such
Non-Key Employee's "415 Compensation". However, if (i)
the sum of the Employer's contributions and Forfeitures
allocated to the Participant's Combined Account of each
Key Employee for such Top Heavy Plan Year be less than
three percent (3) of each Key Employee's "415
Compensation" and (ii), this Plan is not required to be
included in an Aggregation Group to enable a defined
benefit plan to meet the requirements of Code Section
401(a)(4) or 410, the sum of the Employer's
contributions and Forfeitures allocated to the
Participant's Account of each Non-Key Employee shall be
equal to the largest percentage allocated to the
Participant's Combined Account of each Key Employee.
However, in determining whether a Non-Key Employee has
received the required minimum allocation contained
herein, any Employer contribution attributable to a
salary reduction or similar arrangement shall not be
taken into account.
Except however, no such minimum allocation shall be
required in this Plan for any Non-Key Employee who
participates in another defined contribution plan
subject to Code Section 412 included with this Plan in
a Required Aggregation Group.
(b)For purposes of the minimum allocations set forth
above, the percentage allocated to the Participant's
Account of any Key Employee shall be equal to the ratio
of the sum of the Employer's contribution and
Forfeitures allocated on behalf of such Key Employee
divided by the "415 Compensation" for such Key
Employee.
(c)For any Top Heavy Plan Year, the minimum allocations
set forth above shall be allocated to the Participant's
Account of all Non-Key Employees who are participants
and who are employed by the Employer on the last day of
the Plan year, including Non-Key Employees who have:
1) failed to complete a Year of Service and
2) declined to make mandatory contributions
(if required) to the Plan, and
3) been excluded from participation because
of their level of Compensation.
(d)In lieu of the above, in any Plan Year in which a
Non-Key Employee is a Participant in both this Plan and
a defined benefit pension plan included in a Required
Aggregation Group which is top heavy, the Employer
shall not be required to provide such Non-Key Employee
with both the full separate defined benefit plan
minimum benefit and the full separate defined
contribution plan minimum allocation.
Therefore, for any Plan Year when the Plan is a Top
Heavy Plan, Non-Key Employees who are participating in
this Plan and a defined benefit plan maintained by the
Employer shall receive a minimum monthly accrued
benefit in the defined benefit plan equal to the
product of (1) one-twelfth (1/12th) of "415
Compensation" averaged over a five (5) consecutive
"limitation years" (or actual "limitation years" if
less) which produce the highest average and (2) the
lesser of (i) two percent (2%) multiplied by Years of
Service when the Plan is top heavy or (ii) twenty
percent (20%).
(e)For the purposes of this Section "415 Compensation"
shall be as defined in Section 4.14(d) but including
amounts contributed by the Employer pursuant to a
salary reduction agreement which are excludable from
the Employee's gross income under Code Sections 125,
402(a)(8), 402(h) or 403(b).
ARTICLE VIII
TRUSTEE
8.1 The Employer shall select an individual or individuals or
institution to serve as Trustee. The Trustee shall be a
fiduciary and shall be responsible for the control and
management of any assets of the Plan.
8.2 The Trustee shall receive, hold, invest and reinvest all
contributions and monies of the Plan. Investments shall be
limited to property of a character which is consistent with
the Code for investments under qualified plans. Such
investments shall be made from contributions and monies
directed to the Plan.
8.3 The Trustee may also:
(a)Apply for, purchase, hold and own any insurance
policies in accordance with Plan provisions;
(b)Invest in any general and separate investment
accounts maintained and administered by an insurer from
monies held in connection with qualified employee
retirement plans, and to determine the allocation of
contributions among such accounts;
(c)Invest in bonds, common and preferred stocks and
other securities including shares of open-end,
management-type investment companies or unit investment
trusts as defined by the Investment Company Act of
1940;
(d)Sell for cash or credit at public or private sales,
exercise rights, convert, redeem, exchange or otherwise
dispose of investments in the Trust Fund;
(e)Hold any part of the Trust Fund invested and deposit
same with any banking institution;
(f)Join in, dissent from or oppose any reorganization,
recapitalization, consolidation, sale or merger
affecting investments held;
(g)Vote stocks and other votable investments through
proxies or voting trusts on discretionary as well as
ministerial matters;
(h)Carry investments in the name of a nominee or
nominees or in bearer form, and
(i)Do all such acts as the Trustee may deem necessary
to administer the Trust Fund.
In making investments, the Trustee has a wide latitude in
the selection of investments and shall not be restricted to
securities or other property of a character authorized or
required by applicable law for such investments. However,
the Trustee shall exercise the judgment and care under the
circumstances then prevailing, which men of prudence,
discretion and intelligence familiar with such matters
exercise in a like situation and shall diversify such
investments so as to minimize the risk of large losses. If
two or more persons are designated as Trustee, each is
required to use reasonable care to insure that his fellow
trustees do not breach their responsibilities. The Trustee
may delegate any of his ministerial powers and duties
hereunder to his agents and other persons.
8.4 Any Trustee may resign at any time by giving 60 days notice
in writing to the Employer. The Employer may remove any
Trustee at any time upon 60 days written notice to the
Trustee. In the case of resignation or removal of any
Trustee, the Employer may appoint a successor Trustee. The
appointment of a successor Trustee shall become effective
upon his acceptance in writing addressed to the Employer,
and upon such acceptance, such Trustee shall be vested with
all the rights, powers and duties of his predecessor.
8.5 Any instrument executed by the Employer, Participant or his
Beneficiary shall be received by the Trustee as conclusive
evidence of any matters mentioned in the instrument. The
Trustee as conclusive evidence of any matters mentioned in
the instrument. The Trustee shall be fully protected in
taking, permitting or omitting any action in reliance on
the instrument and shall incur no liability or
responsibility for so doing.
8.6 If more than one person has been designated and serves as
Trustee, the signature of any one trustee may be accepted
by any interested party as conclusive evidence that the
Trustee has duly authorized the action therein set forth
and as representing the will of and binding upon all the
said trustees. No person receiving such documents or
dealing with any of the said trustees in good faith and in
reliance thereon shall be obliged to ascertain the validity
of such action under the terms of the Plan.
ARTICLE IX
AMENDMENT, TERMINATION AND MERGERS
9.1 Amendment
The Employer shall have the right at any time to amend this
Plan. However, no such amendment shall authorize or permit
any part of the Trust Fund (other than such part as is
required to pay taxes and administration expenses) to be
used for or diverted to purposes other than for the
exclusive benefit of the Participants or their
Beneficiaries or estates; no such amendment shall cause any
reduction in the amount credited to the account of any
Participant or reduce the vested percentage of any
Participant, or cause or permit any portion of the Trust
Fund to revert to or become the property of the Employer;
and no such amendment which affects the rights, duties or
responsibilities of the Trustee and Administrator may be
made without the Trustee's and the Administrator's written
consent. Any such amendment shall become effective as
provided therein upon its execution. The Trustee shall not
be required to execute any such amendment that affects the
duties of the trustee hereunder.
For the purposes of this Section, a Plan amendment which
has the effect of eliminating an optional form of benefit
or decreasing, or eliminating any retirement benefit or
retirement subsidy (as provided in Treasury Regulations)
shall be treated as reducing the amount credited to the
account of a Participant.
9.2 Termination
The Employer shall have the right at any time to terminate
the Plan by delivering to the Trustee and Administrator
written notice of such termination. A complete
discontinuance of the Employer's contributions to the Plan
shall be deemed to constitute a termination. Upon any
termination (full or partial) or complete discontinuance of
contributions, as determined under Regulations all amounts
credited to the affected Participant's Aggregate Account
shall become 100% vested and shall not thereafter be
subject to Forfeiture. Upon such termination of the Plan,
the Employer, by written notice to the Trustee and
Administrator, shall direct complete distribution of the
assets in the Trust Fund to the Participants, in cash or in
kind, in one distribution as soon as practicable; provided
however, that any distribution made pursuant to this
Section shall be subject to the rights of consent afforded
to the Participant's spouse pursuant to Section 6.5.
9.3 Merger Or Consolidation
This Plan and Trust may be merged or consolidated with, or
its assets and/or liabilities may be transferred to any
other Plan and Trust only if the benefits which would be
received by a Participant of this Plan, in the event of a
termination of the Plan immediately after such transfer,
merger or consolidation, are at least equal to the benefits
the Participant would have received if the Plan had
terminated immediately before the transfer, merger or
consolidation.
ARTICLE X
MISCELLANEOUS
10.1 Participant's Rights
This Plan shall not be deemed to constitute a contract
between the Employer and any Participant or to be a
consideration or an inducement for the employment of any
participant or Employee. Nothing contained in this Plan
shall be deemed to give any participant or Employee the
right to be retained in the service of the Employer or to
interfere with the right of the Employer to discharge any
Participant or Employee at any time regardless of the
effect which such discharge shall have upon him as a
Participant of this Plan.
10.2 Alienation
(a)Subject to the exceptions provided below, no benefit
which shall be payable out of the Trust Fund to any
person (including a Participant or his Beneficiary)
shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge,
encumbrance or charge and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber or
charge the same shall be void; and no such benefit
shall in any manner be liable for or subject to the
debts, contracts, liabilities, engagements or torts of
any such person, nor shall it be subject to attachment
or legal process for or against such person and the
same shall not be recognized by the Trustee, except to
such extent as may be required by law.
(b)This provision shall not apply to the extent a
Participant or Beneficiary is indebted to the Plan for
any reason under any provision of this Agreement. At
the time a distribution is to be made to or for a
Participant's or Beneficiary's benefit, such proportion
of the amount distributed shall equal such indebtedness
shall be paid by the Trustee to the Trustee or the
Administrator, at the discretion of the Administrator,
to apply against or discharge such indebtedness. Prior
to making payment, however, the Participant or
Beneficiary must be given written notice by the
Administrator that such indebtedness is to be deducted
in whole or part from his Participant's Combined
Account. If the Participant or Beneficiary does not
agree that the indebtedness is a valid claims against
his vested Participant's Combined Account, he shall be
entitled to a review of the validity of the claim in
accordance with procedures provided in Sections 2.10
and 2.11.
(c)This provision shall not apply to a "qualified
domestic relations order" defined in Code Section
414(p) and domestic relations orders permitted to be so
treated under the provisions of the Retirement Equity
Act of 1984. The Administrator shall establish a
written procedure to determine the qualified status of
domestic relations orders and to distributions under
such qualified orders. Further, to the extent provided
under a "qualified domestic relations order", a former
spouse of a Participant shall be treated as the spouse
or surviving spouse for all purposes under the Plan.
10.3 Construction Of Plan
This Plan and Trust shall be construed under laws of the
State of New Jersey other than its laws respecting choice
of law, to the extent not preempted by the Act or other
Federal law.
10.4 Gender And Number
Wherever any words are used herein in the masculine,
feminine or neuter gender they shall be construed as though
they were also used in another gender in all cases where
they would so apply, and whenever any words are used herein
in the singular or plural form, they shall be construed as
though they were also used in the other form in all cases
where they would so apply.
10.5 Legal Action
In the event any claim, suit or proceeding is brought
regarding the Trust and/or Plan established hereunder and
the claim, suit or proceeding is resolved in favor of the
Trustee or Administrator they shall be entitled to be
reimbursed from the Trust Fund for any and all costs,
attorney's fees and other expenses pertaining thereto
incurred by them for which they shall have become liable.
10.6 Prohibition Against Diversion Of Funds
(a)Except as provided below and otherwise specifically
permitted by law, it shall be impossible by operation
of the Plan or of the Trust, by termination of either,
by power of revocation or amendment, by the happening
of any contingency, by collateral arrangement or by any
other means, for any part of the corpus of income of
any trust fund maintained pursuant to the Plan or any
funds contributed thereto to be used for or diverted to
purposes other than the exclusive benefit of
Participants, Retired Participants or their
Beneficiaries.
(b)In the event the Employer shall make an excessive
contribution under a mistake of fact pursuant to
Section 403(c)(2)(A) of the Act, the Employer may
demand repayment of such excessive contribution at any
time within one (1) year following the time of payment
and the Trustees shall return such amount to the
Employer may demand repayment of such excessive
contribution at any time within one (1) year period.
Earnings of the Plan attributable to the excess
contribution may not be returned to the Employer but
any losses attributable thereto must reduce the amount
so returned.
(c)All contributions shall be conditioned on
deductibility. Any contribution determined not to be
deductible can be returned to the Employer.
(d)Notwithstanding any provision to the contrary,
except Sections 3.7 and 4.1(d), any contribution by the
Employer to the Trust Fund is conditioned upon the
deductibility of the contribution by the Employer under
the Code and to the extent any such deduction is
disallowed, the Employer may within one (1) year
following a final determination of the disallowance,
whether by agreement with the Internal Revenue Service
or by final decision of a court of competent
jurisdiction, demand repayment of such disallowed
contribution and the Trustee shall return such
contribution within one (1) year following the
disallowance. Earnings of the Plan attributable to the
excess contribution may not be returned to the
Employer, but any losses attributable thereto must
reduce the amount so returned.
10.7 Bonding
Every Fiduciary, except a bank or an insurance company as
described under Section 412(a)(2) of the Act, unless
exempted by the Act and regulations thereunder, shall be
bonded in an amount not less than 10% of the amount of the
funds such Fiduciary handles; provided however, that the
minimum bond shall be $1,000 and the maximum bond $500,000.
The amount of funds handled shall be determined at the
beginning of each Plan Year by the amount of funds handled
by such person, group or class to be covered and their
predecessors, if any, during the preceding Plan Year. The
bond shall provide protection to the Plan against any loss
by reason of acts of fraud or dishonesty by the Fiduciary
alone or in connivance with others. The surety shall be a
corporate surety company (as such term is used in Section
412(a)(2) of the Act), and the bond shall be in a form
approved by the Secretary of Labor. Notwithstanding
anything in the Plan to the contrary, the cost of such
bonds shall be an expense of and may, at the election of
the Administrator be paid from the Trust Fund or by the
Employer.
10.8 Receipt And Release For Payments
Any payment to any Participant, his legal representative,
Beneficiary or to any guardian or committee appointed for
such participant or Beneficiary in accordance with the
provisions of the Plan shall, to the extent thereof, be in
full satisfaction of all claims hereunder against the
Trustee and the Employer, either of whom may require such
Participant, legal representative, Beneficiary, guardian or
committee as a condition precedent to such payment, to
execute a receipt and release thereof in such form as shall
be determined by the Trustee or Employer.
10.9 Action By The Employer
Whenever the Employer under the terms of the Plan is
permitted or required to do or perform any act or matter or
thing, it shall be done and performed by a person duly
authorized by its legally constituted authority.
10.10Named Fiduciaries And Allocation Of Responsibility
The "named Fiduciaries" of this Plan are (1) the Employer,
(2) the Administrator and (3) the Trustee. The named
Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are specifically given
them under the Plan. In general, the Employer shall have
the sole responsibility for making the contributions
provided for under Section 4.1; and shall have the sole
authority to appoint and remove the Trustee, the
Administrator and any Investment Manager which may be
provided for under the Plan; to formulate the Plan's
"funding policy and method"; and to amend or terminate, in
whole or in part, the Plan. The Administrator shall have
the sole responsibility for the administration of the Plan,
which responsibility is specifically described in the Plan.
The Trustee shall have the sole responsibility of
management of the assets held under the Trust, except those
assets the management of which has been assigned to an
Investment Manager, who shall be solely responsible for the
management of the assets assigned to it, all as
specifically provided in the Plan. Each named Fiduciary
warrants that any directions given, information furnished
or action taken by it shall be in accordance with the
provisions of the Plan, authorizing or providing for each
direction, information or action. Furthermore, each named
Fiduciary may rely upon any such direction, information or
action of another named Fiduciary as being proper under the
Plan and is not required under the Plan to inquire into the
propriety of any such direction, information or action. It
is intended under the Plan that each named Fiduciary shall
be responsible for the proper exercise of its own powers,
duties, responsibilities and obligations under the Plan.
No named Fiduciary guarantees the Trust Fund in any manner
against investment loss or depreciation in asset value.
Any person or group may serve in more than one Fiduciary
capacity.
10.11Uniformity
All provisions of this Plan shall be interpreted and
applied in a uniform, nondiscriminatory manner.
10.12Headings
The headings and subheadings of this Plan have been
inserted for convenience of reference and are to be ignored
in any construction of the provisions hereof.
ARTICLE XI
PARTICIPATING EMPLOYERS
11.1 Adoption By Other Employers
Notwithstanding anything herein to the contrary, with
consent of the Employer and Trustee, any other corporation
or entity, whether an affiliate or subsidiary or not, may
adopt this Plan and all provisions hereof and participate
herein and be known as a Participating Employer, by a
property executed document evidencing said intent and will
of such Participating Employer.
11.2 Requirements Of Participating Employers
(a)Each such Participating Employer shall be required
to use the same Trustee as provided in this Plan.
(b)The Trustee may, but shall not be required to,
commingle, hold and invest as one Trust Fund all
contributions made by Participating Employers as well
as all increments thereof.
(c)The transfer of any Participant from or to an
Employer participating in this Plan, whether he be an
Employee of the Employer or a Participating Employer,
shall not affect such Participant's rights under the
Plan and all amounts credited to such Participant's
Account, as well as his accumulated service time with
the transferor or predecessor, and his length of
participation in the Plan shall continue to his credit.
(d)All rights and values forfeited by termination of
employment shall inure only to the benefit of the
Employee-Participants of the Participating Employer by
which the forfeiting Participant was employed, except
if the Forfeiture is for an Employee whose Employer is
a member of an affiliated or controlled group, then
said Forfeiture shall be allocated based on
Compensation t all Participant Accounts of
Participating Employers who are members of the
affiliated or controlled group. Should an Employee of
one ("First") Employer be transferred to an associated
("Second") Employer (the Employer, an affiliate or
subsidiary), such transfer shall not cause his account
balance (generated while an Employee of "First"
Employer) in any manner or by any amount to be
forfeited. Such Employee's Participant Account balance
for all purposes of the Plan, including length of
service, shall be considered as though he had always
been employed by the "Second" Employer and as such has
received contributions, forfeitures, earnings or loss
and appreciated or depreciation in value of assets
totaling amount so transferred.
(e) Any expenses of the Trust which are to be paid by
the Employer or borne by the Trust Fund shall be paid
by each Participating Employer in the same proportion
that the total amount standing to the credit of all
Participants employed by such Employer bears to the
total standing to the credit of all Participants.
11.3 Designation Of Agent
Each Participating Employer shall be deemed to be part of
this Plan; provided however, that with respect to all of
its relations with the Trustee and Administrator for the
purpose of this Plan, each Participating Employer shall be
deemed to have designated irrevocably the Employer as its
agent. Unless the context of the Plan clearly indicates
the contrary, the word "Employer" shall be deemed to
include each Participating Employer as related to its
adoption of the Plan.
11.4 Employee Transfers
It is anticipated that an Employee may be transferred
between Participating Employers and in the event of any
such transfer, the Employee involved shall carry with him,
his accumulated service and eligibility. No such transfer
shall effect a termination of employment hereunder and the
Participating Employer to which the Employee is transferred
shall thereupon become obligated hereunder with respect to
such Employee in the same manner as was the Participating
Employer from whom the Employee was transferred.
11.5 Participating Employers Contributions
Any contribution or Forfeiture subject to allocation during
each Plan Year shall be allocated among all Participants of
all Participating Employers in accordance with the
provisions of this Plan. On the basis of the information
furnished by the Administrator, the Trustee shall keep
separate books and records concerning the affairs of each
Participating Employer hereunder and as to the accounts and
credits of the Employees of each Participating Employer.
The Trustee may, but need not, register Contracts so as to
evidence that a particular Participating Employer is the
interested Employer hereunder, but in the event of an
Employee transfer from one Participating Employer to
another, the employing Employer shall immediately notify
the Trustee thereof.
11.6 Amendment
Amendment of this Plan by the Employer at any time when
there shall be a Participating Employer hereunder, shall
only be by the written action of each and every
participating Employer and with the consent of the Trustee
where such consent is necessary in accordance with the
terms of this Plan.
11.7 Discontinuance of Participation
Any Participating Employer shall be permitted to
discontinue or revoke its participation in the Plan. At
the time of any such discontinuance or revocation,
satisfactory evidence thereof and of any applicable
conditions imposed shall be delivered to the Trustee. The
Trustee shall thereafter transfer, deliver and assign
Contracts and other Trust Fund assets allocable to the
Participants of such Participating Employer to such new
Trustee as shall have been designated by such Participating
Employer, in the event it has established a separate
pension plan for its Employees. If no successor is
designated, the Trustee shall retain such assets for the
Employees of said Participating Employer pursuant to the
provisions of Article VIII hereof. In no such event shall
any part of the corpus or income of the Trust as it relates
to such Participating Employer be used for, or delivered
for purposes other than for the exclusive benefit of the
Employees of such Participating Employer.
11.8 Administrator's Authority
The Administrator shall have the authority to make any and
all necessary rules or regulations binding upon all
Participating Employers and all Participants to effectuate
the purpose of this Article.
11.9 Participating Employer Contribution For Affiliate
If any Participating Employer is prevented in whole or in
part from making a contribution to the Trust Fund which it
would otherwise have made under the Plan by reason of
having no current or accumulated earnings or profits, or
because such earnings or profits are less than the
contribution which it would otherwise have made, then
pursuant to Code Section 404(a)(3)(B) so much of the
contribution which such Participating Employer was so
prevented from making may be made for the benefit of the
participating employees of such Participating Employer, by
the other Participating Employers who are members of the
same affiliated group within the meaning of Code Section
1504 to the extent of their current or accumulated earnings
or profits, except that such contribution by each such
other Participating Employer shall be limited to the
proportion of its total current and accumulated earnings or
profits remaining after adjustment for its contribution to
the Plan made without regard to this paragraph which the
total prevented contribution bears to the total current and
accumulated earnings or profits of all the Participating
Employers remaining after adjustment for all contributions
made to the Plan without regard to this paragraph.
A Participating Employer on behalf of whose employees a
contribution is made shall not reimburse the contributing
participating Employers.
IN WITNESS WHEREOF, this Agreement has been executed on the
11 day of October, 1994.
BY /s/ Catherine F. Higgins
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