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EXHIBIT 10.34
THE CORPORATEPLAN FOR RETIREMENT(SM)
(PROFIT SHARING/401(K) PLAN)
A FIDELITY PROTOTYPE PLAN
NON-STANDARDIZED ADOPTION AGREEMENT 002
BASIC PLAN NO. 07
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ADOPTION AGREEMENT
ARTICLE 1
NON-STANDARDIZED PROFIT SHARING PLAN
1.01 PLAN INFORMATION
(A) NAME OF PLAN:
This is the Resource Bancshares Mortgage Group, Inc. Retirement
Savings Plan (the "Plan").
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(B) TYPE OF PLAN:
(1) /X/ 401(k) and Profit Sharing
(2) / / Profit Sharing Only
(3) / / 401(k) Only
(C) NAME OF PLAN ADMINISTRATOR, IF NOT THE EMPLOYER:
Retirement Plan Committee/RBMG
Address: 0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000
Phone Number: (000) 000-0000
The Plan Administrator is the agent for service of legal process for the Plan.
(D) LIMITATION YEAR (check one):
(1) /X/ Calendar Year
(2) / / Plan Year
(3) / / Other:___________
(E) THREE DIGIT PLAN NUMBER: 001
(F) PLAN YEAR END (month/day): December 31
(G) PLAN STATUS (check one):
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(1) / / Effective Date of new Plan:
(2) /X/ Amendment Effective Date: 4/1/96 . This is (check one):
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(A) / / an amendment of The CORPORATEplan for RetirementSM Adoption
Agreement previously executed by the Employer; or
(B) / / a conversion from another plan document into The CORPORATEplan
for RetirementSM.
The original effective date of the Plan: 7/1/93
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The substantive provisions of the Plan shall apply prior to the Effective
Date to the extent required by the Tax Reform Act of 1986 or other
applicable laws.
1.02 EMPLOYER
(A) THE EMPLOYER IS Resource Bancshares Mortgage Group, Inc.
Address: 0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Contact's Name: Xxxxxx X. Xxxxxx, Xx. and Xxx XxXxxxx
Telephone Number: (000) 000-0000 (000) 000-0000
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(1) Employer's Tax Identification Number: 00-0000000
(2) Business form of Employer (check one):
(A) /x/ Corporation (D) / / Governmental
(B) / / Sole proprietor or partnership (E) / / Tax-exempt organization
(C) / / Subchapter S Corporatio (F) / / Rural Electric Cooperative
(3) Employer's fiscal year end: December 31
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(4) Date business commenced: May, 1993
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(B) THE TERM "EMPLOYER" INCLUDES THE FOLLOWING RELATED EMPLOYER(S)
(as defined in Section 2.01(a)(26)):
Intercounty Mortgage, Inc.
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1.03 COVERAGE
(A) ALL EMPLOYEES WHO MEET THE CONDITIONS SPECIFIED BELOW WILL BE ELIGIBLE
TO PARTICIPATE IN THE PLAN:
(1) SERVICE REQUIREMENT (check one):
(A) [ ] no service requirement.
(B) [ ] three consecutive
months of service (no minimum number
Hours of Service can be required).
(C) [ ] six consecutive months of service (no minimum
number Hours of Service can be required).
(D) [X] one Year of Service (1,000 Hours of
Service is required during the
Eligibility Computation Period.)
(2) AGE REQUIREMENT (check one):
(A) [ ] no age requirement.
(B) [X] must have attained age 21___ (not to exceed 21).
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(3) THE CLASS OF EMPLOYEES ELIGIBLE TO PARTICIPATE IN
THE PLAN (check one):
(A) [ ] includes all Employees of the Employer.
(B) [X] includes all Employees of the Employer except
for (check the appropriate box(es)):
(i) [ ] Employees covered by a collective bargaining
agreement.
(ii) [ ] Highly Compensated Employees as defined in
Code Section 414(q).
(iii) [ ] Leased Employees as defined in Section
2.01(a)(18).
(iv) [ ] Nonresident aliens who do not receive any
earned income from the Employer which
constitutes United States source income.
(V) [ ] Other
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NOTE: No exclusion in this section may create a
discriminatory class of employees. An Employer's Plan
must still pass the Internal Revenue Code coverage and
participation requirements if one or more of the above
groups of Employees have been excluded from the Plan.
(B) THE ENTRY DATE(S) SHALL BE (check one):
(1) [ ] the first day of each Plan Year (do not select if Section
1.03 (a)(1)(D) is elected or if there is an age requirement
of greater than 20 1/2 in Section 1.03(a)(2)(B)).
(2) [X] the first day of each Plan Year and the date six months
later.
(3) [ ] the first day of each Plan Year and the first day of the
fourth, seventh, and tenth months.
(4) [ ] the first day of each month.
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(C) DATE OF INITIAL PARTICIPATION - AN EMPLOYEE WILL BECOME A PARTICIPANT
UNLESS EXCLUDED BY SECTION 1.03(A)(3) ABOVE ON THE ENTRY DATE
IMMEDIATELY FOLLOWING THE DATE THE EMPLOYEE COMPLETES THE SERVICE AND
AGE REQUIREMENT(S) IN SECTION 1.03(A), IF ANY, EXCEPT (check one):
(1) [ ] No exceptions.
(2) [ ] Employees employed on the Effective Date in Section 1.01(g)
will become Participants on that date.
(3) [ ] Employees who meet the age and service requirement(s) of
Section 1.03(a) on the Effective Date in Section 1.01(g)
will become Participants on that date.
1.04 COMPENSATION
(A) FOR PURPOSES OF DETERMINING CONTRIBUTIONS UNDER THE PLAN, COMPENSATION
SHALL BE AS DEFINED IN SECTION 2.01(A)(7), BUT EXCLUDING (check the
appropriate box(es)):
(1) [ ] Overtime Pay.
(2) [ ] Bonuses.
(3) [ ] Commissions.
(4) [ ] The value of a qualified or a non-qualified
stock option granted to an Employee by the
Employer to the extent such value is
includable in the Employee's taxable income.
NOTE: These exclusions shall not apply for purposes of the "Top
Heavy" requirements in Section 9.03 or for allocating
Discretionary Employer Contributions if an Integrated Formula
is elected in Section 1.05(a)(2).
(5) [X] No exclusions.
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(B) COMPENSATION FOR THE FIRST YEAR OF PARTICIPATION
Contributions for the Plan Year in which an Employee first
becomes a Participant shall be determined based on the
Employee's Compensation (check one):
(1) [ ] For the entire Plan Year.
(2) [ ] For the portion of the Plan Year in which the
Employee is eligible to participate in the Plan.
1.05 CONTRIBUTIONS
(A) [X] EMPLOYER CONTRIBUTIONS :
(1) [ ] FIXED FORMULA - NONINTEGRATED FORMULA (check (A)
or (B)):
(A) [ ] Fixed Percentage Employer Contribution:
For each Plan Year, the Employer will
contribute for each eligible Participant an
amount equal to __________% (not to exceed
15%) of such Participant's Compensation.
(B) [ ] Fixed Flat Dollar Employer Contribution:
For each Plan Year, the Employer will
contribute for each eligible Participant an
amount equal to $_________.
(2) [X] DISCRETIONARY FORMULA
The Employer may decide each Plan Year whether to
make a discretionary Employer contribution on
behalf of eligible Participants in accordance with
Section 4.06. Such contributions shall be allocated
to eligible Participants based upon the following
(check (A) or (B)):
(A) [X] Nonintegrated Allocation Formula: In the
ratio that each eligible Participant's
Compensation bears to the total Compensation
paid to all eligible Participants for the
Plan Year.
(B) [ ] Integrated Allocation Formula:
In accordance with Section 4.06.
NOTE: An Employer who maintains any other plan
that provides for Social Security
Integration (permitted disparity) may not
elect (2)(B).
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(3) ELIGIBILITY REQUIREMENT(S)
A Participant shall be entitled to Employer Contributions
for a Plan Year under this Subsection (a) if the
Participant satisfies the following requirement(s) (Check
the appropriate box(es) - Options (B) and (C) may not be
elected together):
(A) [X] is employed by the Employer on the last day of
the Plan Year.
(B) [ ] earns at least 500 Hours of Service during the
Plan Year.
(C) [X] earns at least 1,000 Hours of Service during the
Plan Year.
(D) [ ] no requirements.
NOTE: If option (A), (B) or (C) above
is selected then Employer contributions can only
be FUNDED by the Employer AFTER Plan Year end.
Employer contributions funded during the Plan Year
shall not be subject to the eligibility
requirements of this Section 1.05(a)(3).
(B) [ ] DEFERRAL CONTRIBUTIONS
(1) REGULAR CONTRIBUTIONS
The Employer shall make a Deferral Contribution in
accordance with Section 4.01 on behalf of each Participant
who has an executed salary reduction agreement in effect
with the Employer for the payroll period in question, not
to exceed _ 15________% (NO MORE THAN 15%) of
Compensation for that period.
(A) A Participant may increase or decrease, on a
prospective basis, his salary reduction
agreement percentage (check one):
(i) [ ] As of the beginning of each
payroll period.
(ii) [ ] As of the first day of each
month.
(iii) [ ] As of the next Entry Date.
(iv) [ ] (Specify, but must be at
least once per Plan Year)
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(B) A Participant may revoke, on a
prospective basis, a salary reduction
agreement at any time upon proper notice
to the Administrator but in such case may
not file a new salary reduction
agreement until (check one):
(i) [ ] The first day of the next Plan
Year.
(ii) [ ] Any subsequent Plan Entry Date
(iii)[ ] (Specify, but must be at least
once per Plan Year)
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(2) [ ] CATCH-UP CONTRIBUTIONS
The Employer may allow Participants upon proper notice
and approval to enter into a special salary reduction
agreement to make additional Deferral Contributions in an
amount up to 100% of their Compensation for the payroll
period(s) in the final month of the Plan Year.
(3) [ ] BONUS CONTRIBUTIONS
The Employer may allow Participants upon proper notice and
approval to enter into a special salary reduction agreement to
make Deferral Contributions in an amount up to 100% of any
Employer paid cash bonuses made for such Participants during
the Plan Year. The Compensation definition elected by the
Employer in Section 1.04(a) must include bonuses if bonus
contributions are permitted.
NOTE: A Participant's contributions under (2) and/or
(3) may not cause the Participant to exceed the
percentage limit specified by the Employer in (1)
after the Plan Year. The Employer has the right to
restrict a Participant's right to make Deferral
Contributions if they will adversely affect the Plan's
ability to pass the actual deferral percentage and/or
the actual contribution
percentage test.
(4) [X] QUALIFIED DISCRETIONARY CONTRIBUTIONS
The Employer may contribute an amount which it designates as
a Qualified Discretionary Contribution to be included in the
actual deferral percentage or actual contribution percentage
test. Qualified Discretionary Contributions shall be
allocated to Non-highly Compensated Employees (check one):
(A) [X] in the ratio which each such Participant's
Compensation for the Plan Year bears to the
total of all such Participants' Compensation for
the Plan Year.
(B) [ ] as a flat dollar amount for each such Participant
for the Plan Year.
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(C) [X] MATCHING CONTRIBUTIONS (only if Section 1.05(b) is checked)
(1) THE EMPLOYER SHALL MAKE A MATCHING CONTRIBUTION ON BEHALF OF
EACH PARTICIPANT IN AN AMOUNT EQUAL TO THE FOLLOWING
PERCENTAGE OF A PARTICIPANT'S DEFERRAL CONTRIBUTIONS DURING
THE PLAN YEAR (check one):
(A) [ ] 50%
(B) [ ] 100%
(C) [ ] %
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(D) [ ] (Tiered Match) _________ % of the first ______% of
the Participant's Compensation contributed to the
Plan,
________ % of the next ______% of the Participant's
Compensation contributed to the Plan,
________ % of the next ______% of the Participant's
Compensation contributed to the Plan.
NOTE: THE PERCENTAGES SPECIFIED ABOVE FOR MATCHING
CONTRIBUTIONS MAY NOT INCREASE AS THE PERCENTAGE OF
COMPENSATION CONTRIBUTED INCREASES.
(E) [X] The percentage declared for the year, if any, by a
Board of Directors' Resolution (or by a Letter of
Intent for a Sole Proprietor or Partnership).
(2) [ ] THE EMPLOYER MAY AT PLAN YEAR END MAKE AN ADDITIONAL
MATCHING CONTRIBUTION EQUAL TO A PERCENTAGE
DECLARED BY THE EMPLOYER, THROUGH A BOARD OF DIRECTORS'
RESOLUTION (OR BY A LETTER OF INTENT FOR A SOLE
PROPRIETOR OR PARTNERSHIP), OF THE DEFERRAL
CONTRIBUTIONS MADE BY EACH PARTICIPANT DURING THE PLAN
YEAR (only if an option is checked under Section
1.05(c)(1)).
(3) [ ] MATCHING CONTRIBUTION LIMITS (check the appropriate box):
(A) [ ] Deferral Contributions in excess of ________%
of the Participant's Compensation for the
period in question shall not be considered for
Matching Contributions.
Note: If the Employer elects a percentage
limit in (A) above and requests the
Trustee to account separately for matched and
unmatched Deferral Contributions, the Matching
Contributions allocated to each Participant
must be computed, and the percentage limit
applied, based upon each payroll period.
(B) [ ] Matching Contributions for each Participant
for each Plan Year shall be limited to
$___________.
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(4) ELIGIBILITY REQUIREMENT(S)
A Participant who makes Deferral Contributions during the Plan Year
under Section 1.05(b) shall be entitled to Matching Contributions for that
Plan Year if the Participant satisfies the following requirement(s)
(Check the appropriate box(es). Options (B) and (C) may not be elected
together):
(A) [ ] Is employed by the Employer on the last day of the Plan Year.
(B) [ ] Earns at least 500 Hours of Service during the Plan Year.
(C) [ ] Earns at least 1,000 Hours of Service during the Plan Year.
(D) [ ] Is not a Highly Compensated Employee for the Plan Year.
(E) [ ] Is not a Partner of the Employer, if the Employer is a
Partnership.
(F) [X] No requirements.
NOTE: If option (A), (B) or (C) above is selected then
Matching Contributions can only be FUNDED by the Employer
AFTER the Plan Year ends. Any Matching Contribution funded
before Plan Year end shall not be subject to the eligibility
requirements of this Section 1.05(c)(4)). If option (A),
(B), or (C) is adopted during a Plan Year, such option shall not
become effective until the first day of the next Plan Year.
(D) [ ] EMPLOYEE AFTER-TAX CONTRIBUTIONS (check one):
(1) [ ] FUTURE CONTRIBUTIONS
Participants may make voluntary non-deductible Employee Contributions
pursuant to Section 4.09 of the Plan. This option may only be
elected if the Employer has elected to permit Deferral Contributions
under Section 1.05(b). Matching Contributions by the Employer are not
allowed on any voluntary non-deductible Employee Contributions.
Withdrawals are limited to one per year unless Employee Contributions
were allowed under a previous plan document which authorized more
frequent withdrawals.
(2) [ ] FROZEN CONTRIBUTIONS
Participants may not make voluntary non-deductible Employee
Contributions, but he Employer does maintain frozen Participant
voluntary non-deductible Employee Contribution Accounts.
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1.06 RETIREMENT AGE(S)
(A) [X] THE NORMAL RETIREMENT AGE UNDER THE PLAN IS (check one):
(1) [X] age 65.
(2) [ ] age ____ (specify between 55 and 64).
(3) [ ] later of the age ___ (can not exceed 65) or
the fifth anniversary of the Participant's Employment
Commencement Date.
(B) [ ] THE EARLY RETIREMENT AGE IS THE FIRST DAY OF THE MONTH AFTER
THE PARTICIPANT ATTAINS AGE ____________ (SPECIFY 55 OR
GREATER) AND COMPLETES _______________ YEARS OF SERVICE
FOR VESTING.
(C) [X] A PARTICIPANT IS ELIGIBLE FOR DISABILITY RETIREMENT IF HE/SHE
(check the appropriate box(es)):
(1) [ ] satisfies the requirements for benefits under
the Employer's Long-Term Disability Plan.
(2) [X] satisfies the requirements for Social Security
disability benefits.
(3) [X] is determined to be disabled by a physician
approved by the Employer.
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1.07 VESTING SCHEDULE
(A) THE PARTICIPANT'S VESTED PERCENTAGE IN EMPLOYER
CONTRIBUTIONS (FIXED OR DISCRETIONARY) ELECTED IN SECTION 1.05(A)
AND/OR MATCHING CONTRIBUTIONS ELECTED IN SECTION 1.05(C) SHALL BE
BASED UPON THE SCHEDULE(S) SELECTED BELOW, EXCEPT WITH RESPECT TO
ANY PLAN YEAR DURING WHICH THE PLAN IS TOP-HEAVY. THE SCHEDULE
ELECTED IN SECTION 1.12(D) SHALL AUTOMATICALLY APPLY FOR A
TOP-HEAVY PLAN YEAR AND ALL PLAN YEARS THEREAFTER UNLESS THE
EMPLOYER HAS ALREADY ELECTED A MORE FAVORABLE VESTING SCHEDULE
BELOW.
(1) EMPLOYER CONTRIBUTIONS (2) MATCHING CONTRIBUTIONS
(check one): (check one):
(A) [ ] N/A - No Employer Contributions (A) [ ] N/A - No Matching Contributions
(B) [ ] 100% Vesting immediately (B) [ ] 100% Vesting immediately
(C) [ ] 3 year cliff (see C below) (C) [ ] 3 year cliff (see C below)
(D) [X] 5 year cliff (see D below) (D) [ ] 5 year cliff (see D below)
(E) [ ] 6 year graduated (see E below) (E) [ ] 6 year graduated (see E below)
(F) [ ] 7 year graduated (see F below) (F) [ ] 7 year graduated (see F below)
(G) [ ] Other vesting (complete G1 below) (G) [X] Other vesting (complete G2 below)
YEARS OF VESTING SCHEDULE
SERVICE FOR ----------------
VESTING C D E F G1 G2
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0 0% 0% 0% 0% ___ 0%__
1 0% 0% 0% 0% ___ 25%_
2 0% 0% 20% 0% ___ 50%_
3 100% 0% 40% 20% ___ 75%_
4 100% 0% 60% 40% ___ 100%
5 100% 100% 80% 60% ___ ___
6 100% 100% 100% 80% ___ ___
7 100% 100% 100% 100% 100% 100%
NOTE: A schedule elected under G1 or G2 above must be at least as favorable as
one of the schedules in C, D, E or F above.
(B) [ ] YEARS OF SERVICE FOR VESTING SHALL EXCLUDE:
(1) [ ] for new plans, service prior to the Effective Date as defined in
Section 1.01(g)(1).
(2) [ ] for existing plans converting from another plan document, service
prior to the original Effective Date as defined in Section
1.01(g)(2).
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1.08 PREDECESSOR EMPLOYER SERVICE
[ ] SERVICE FOR PURPOSES OF ELIGIBILITY IN SECTION 1.03(A)(1) AND
VESTING IN SECTION 1.07(A) OF THIS PLAN SHALL INCLUDE SERVICE
WITH THE FOLLOWING EMPLOYER(S):
(A)
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(B)
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(C)
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(D)
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1.09 PARTICIPANT LOANS
PARTICIPANT LOANS (check (a) or (b)):
(A) [X] WILL BE ALLOWED IN ACCORDANCE WITH SECTION 7.09, SUBJECT TO A
$1,000 MINIMUM AMOUNT AND WILL BE GRANTED (check (1) or (2)):
(1) [X] for any purpose.
(2) [X] for hardship withdrawal (as defined in Section 7.10)
purposes only.
(B) [ ] WILL NOT BE ALLOWED.
1.10 HARDSHIP WITHDRAWALS
PARTICIPANT WITHDRAWALS FOR HARDSHIP PRIOR TO TERMINATION OF EMPLOYMENT
(check one):
(A) [X] WILL BE ALLOWED IN ACCORDANCE WITH SECTION 7.10, SUBJECT TO A
$1,000 MINIMUM AMOUNT.
(B) [ ] WILL NOT BE ALLOWED.
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1.11 DISTRIBUTIONS
(A) SUBJECT TO ARTICLES 7 AND 8 AND (B) BELOW, DISTRIBUTIONS UNDER THE
PLAN WILL BE PAID (check the appropriate box(es)):
(1) [X] as a lump sum.
(2) [ ] under a systematic withdrawal plan (installments).
(B) [ ] CHECK IF A PARTICIPANT WILL BE ENTITLED TO RECEIVE A
DISTRIBUTION OF ALL OR ANY PORTION OF THE FOLLOWING ACCOUNTS
WITHOUT TERMINATING EMPLOYMENT UPON ATTAINMENT OF AGE 591/2
(CHECK ONE):
(1) [ ] Deferral Contribution Account
(2) [ ] All Accounts
(C) [X] CHECK IF THE PLAN WAS CONVERTED (BY PLAN AMENDMENT) FROM
ANOTHER DEFINED CONTRIBUTION PLAN, AND THE BENEFITS WERE
PAYABLE AS (check the appropriate box(es)):
(1) [ ] a form of single or joint and survivor life annuity.
(2) [ ] an in-service withdrawal of vested employer contributions
maintained in a participant's account (check (A) and/or
(B)):
(A) [ ] for at least _______________ (24 or more) months.
(B) [ ] after the Participant has at least 60 months of
participation.
(3) [X] another distribution option that is a "protected benefit"
under Section 411(d)(6) of the Internal Revenue Code.
Please attach a separate page identifying the distribution
option(s).
These additional forms of benefit may be provided for such plans under
Articles 7 or 8.
NOTE: Under Federal Law, distributions to Participants must generally
begin no later than April 1 following the year in which the
Participant attains age 70 1/2.
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1.12 TOP HEAVY STATUS
(A) THE PLAN SHALL BE SUBJECT TO THE TOP-HEAVY PLAN REQUIREMENTS OF
ARTICLE 9 (check one):
(1) [ ] for each Plan Year.
(2) [X] for each Plan Year, if any, for which the Plan is
Top-Heavy as defined in Section 9.02.
(3) [ ] Not applicable. (This option is available for plans
covering only employees subject to a collective bargaining
agreement and there are no Employer or Matching
Contributions elected in Section 1.05.)
(B) IN DETERMINING TOP-HEAVY STATUS, IF NECESSARY, FOR AN EMPLOYER WITH
AT LEAST ONE DEFINED BENEFIT PLAN, THE FOLLOWING ASSUMPTIONS SHALL
APPLY:
(1) [X] Interest rate: _5.0_% per annum
(2) [X] Mortality table: _UP84________
(3) [ ] Not Applicable.
(C) IN THE EVENT THAT THE PLAN IS TREATED AS TOP-HEAVY FOR A PLAN YEAR,
EACH NON-KEY EMPLOYEE SHALL RECEIVE AN EMPLOYER CONTRIBUTION OF AT
LEAST 3 (3, 4, 5, OR 7 1/2) % OF COMPENSATION FOR THE PLAN YEAR IN
ACCORDANCE WITH SECTION 9.03 (check one):
(1) [ ] under this Plan in any event.
(2) [X] under this Plan only if the Participant is
not entitled to such contribution under another qualified
plan of the Employer.
(3) [ ] Not applicable. (This option is available for plans
covering only employees subject to a collective
bargaining agreement and there are no Employer or
Matching Contributions elected in Section 1.05.)
NOTE: Such minimum Employer contribution may be less than the
percentage indicated in (c) above to the extent provided
in Section 9.03(a).
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(D) IN THE EVENT THAT THE PLAN IS TREATED AS TOP-HEAVY FOR A PLAN YEAR,
THE FOLLOWING VESTING SCHEDULE SHALL APPLY INSTEAD OF THE
SCHEDULE(S) ELECTED IN SECTION 1.07(A) FOR SUCH PLAN YEAR AND EACH
PLAN YEAR THEREAFTER (check one):
(1) [X] 100% vested after _3____________ (not in
excess of 3) Years of Service for Vesting.
(2) [ ] Years of Service for Vesting Vesting Percentage Must be at Least
0 ________ 0%
1 ________ 0%
2 ________ 20%
3 ________ 40%
4 ________ 60%
5 ________ 80%
6 ________ 100%
NOTE: If the schedule(s) elected in Section 1.07(a) is(are) more
favorable in all cases than the schedule elected in (d) above,
then the schedule(s) in Section 1.07(a) will continue to apply
even in Plan Years in which the Plan is Top- Heavy.
1.13 TWO OR MORE PLANS - CODE SECTION 415 LIMITATION ON ANNUAL ADDITIONS
If the Employer maintains or ever maintained another qualified plan in
which any Participant in this Plan is (or was) a participant or could
become a participant, the Employer must complete this section. The
Employer must also complete this section if it maintains a welfare
benefit fund, as defined in Section 419(e) of the Code, or an individual
medical account, as defined in Section 415(l)(2) of the Code, under which
amounts are treated as annual additions with respect to any Participant
in this Plan.
(A) IF THE EMPLOYER MAINTAINS, OR MAINTAINED, ANY OTHER DEFINED
CONTRIBUTION PLAN WHICH IS NOT A MASTER OR PROTOTYPE PLAN,
ANNUAL ADDITIONS FOR ANY LIMITATION YEAR TO THIS PLAN WILL BE
LIMITED (check one):
(1) [X] in accordance with Section 5.03 of this Plan.
(2) [ ] in accordance with another method set forth
on an attached separate sheet.
(3) [ ] Not Applicable.
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(B) IF THE EMPLOYER MAINTAINS, OR MAINTAINED, ANY DEFINED BENEFIT PLAN(S),
THE SUM OF THE DEFINED CONTRIBUTION FRACTION AND DEFINED BENEFIT
FRACTION FOR A LIMITATION YEAR MAY NOT EXCEED THE LIMITATION SPECIFIED
IN CODE SECTION 415(E), MODIFIED BY SECTION 416(H)(1) OF THE CODE.
THIS COMBINED PLAN LIMIT WILL BE MET AS FOLLOWS (check one):
(1) [X] Annual Additions to this Plan are limited so
that the sum of the Defined Contribution
Fraction and the Defined Benefit Fraction
does not exceed 1.0.
(2) [ ] another method of limiting Annual Additions
or reducing projected annual benefits is set
forth on an attached schedule.
(3) [ ] Not Applicable.
1.14 ESTABLISHMENT OF TRUST AND INVESTMENT DECISIONS
(A) INVESTMENT DIRECTIONS
Participant Accounts will be invested (check one):
(1) [ ] in accordance with investment directions provided
to the Trustee by the Employer for allocating all
Participant Accounts among the options listed in (b) below.
(2) [X] in accordance with investment directions provided
to the Trustee by each Participant for allocating his
entire Account among the options listed in (b) below.
(3) [ ] in accordance with investment directions provided
to the Trustee by each Participant for all contribution
sources in a Participant's Account except the following
sources shall be invested as directed by the Employer
(check (A) and/or (B)):
(A) [ ] Fixed or Discretionary Employer Contributions
(B) [ ] Employer Matching Contributions
The Employer must direct the applicable sources among the
same investment options made available for Participant
directed sources listed in (b) below.
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(B) PLAN INVESTMENT OPTIONS
The Employer hereby establishes a Trust under the Plan in accordance
with the provisions of Article 14, and the Trustee signifies acceptance
of its duties under Article 14 by its signature below. Participant
Accounts under the Trust will be invested among the Fidelity Funds listed
below pursuant to Participant and/or Employer directions.
Fund Name Fund Number
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(1) Growth & Income Portfolio 027
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(2) Puritan Fund 004
(3) Contrafund 022
(4) Disciplined Equity Fund 315
(5) Magellan Fund 021
(6) Overseas Fund 094
(7) Managed Income Portfolio 632
(8) Emerging Growth 324
(9)
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(10)
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NOTE: An additional annual recordkeeping fee will be charged for each fund in
excess of five funds.
To the extent that the Employer selects as an investment option the
Managed Income Portfolio of the Fidelity Group Trust for Employee Benefit
Plans (the "Group Trust"), the Employer hereby (A) agrees to the terms
of the Group Trust and adopts said terms as a part of this Agreement and
(B) acknowledges that it has received from the Trustee a copy of the
Group Trust, the Declaration of Separate Fund for the Managed Income
Portfolio of the Group Trust, and the Circular for the Managed Income
Portfolio.
NOTE: The method and frequency for change of investments will be determined
under the rules applicable to the selected funds or, if applicable, the
rules of the Employer adopted in accordance with Section 6.03.
Information will be provided regarding expenses, if any, for changes in
investment options.
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1.15 RELIANCE ON OPINION LETTER
An adopting Employer may not rely on the opinion letter issued by the
National Office of the Internal Revenue Service as evidence that this
Plan is qualified under Section 401 of the Code. If the Employer
wishes to obtain reliance that his or her Plan(s) are qualified,
application for a determination letter should be made to the appropriate
Key District Director of the Internal Revenue Service. Failure to fill
out the Adoption Agreement properly may result in disqualification of
the Plan.
This Adoption Agreement may be used only in conjunction with Fidelity
Prototype Plan Basic Plan Document No. 07. The Prototype Sponsor
shall inform the adopting Employer of any amendments made to the Plan or
of the discontinuance or abandonment of the prototype plan document.
1.16 PROTOTYPE INFORMATION:
Name of Prototype Sponsor: Fidelity Management & Research Co.
Address of Prototype Sponsor: 00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Questions regarding this prototype document may be directed to the
following telephone number: 0-(000) 000-0000.
21
THE CORPORATEPLAN FOR RETIREMENT
THE PROFIT SHARING/401(K) PLAN
FIDELITY BASIC PLAN DOCUMENT NO. 07
22
THE CORPORATE PLAN FOR RETIREMENT
PROFIT SHARING/401(K) PLAN
ARTICLE 1
ADOPTION AGREEMENT
ARTICLE 2
DEFINITIONS
2.01 - Definitions
ARTICLE 3
PARTICIPATION
3.01 - Date of Participation
3.02 - Resumption of Participation Following Reemployment
3.03 - Cessation or Resumption of Participation Following a Change in Status
3.04 - Participation by Owner-Employee; Controlled Businesses
3.05 - Omission of Eligible Employee
ARTICLE 4
CONTRIBUTIONS
4.01 - Deferral Contributions
4.02 - Additional Limit on Deferral Contributions
4.03 - Matching Contributions
4.04 - Limit on Matching Contributions and Employee Contributions
4.05 - Special Rules
4.06 - Fixed/Discretionary Employer Contributions
4.07 - Time of Making Employer Contributions
4.08 - Return of Employer Contributions
4.09 - Employee Contributions
4.10 - Rollover Contributions
4.11 - Deductible Voluntary Employee Contributions
4.12 - Additional Rules for Paired Plans
ARTICLE 5
PARTICIPANTS' ACCOUNTS
5.01 - Individual Accounts
5.02 - Valuation of Accounts
5.03 - Code Section 415 Limitations
ARTICLE 6
INVESTMENT OF CONTRIBUTIONS
6.01 - Manner of Investment
6.02 - Investment Decisions
6.03 - Participant Directions to Trustee
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ARTICLE 7
RIGHT TO BENEFITS
7.01 - Normal or Early Retirement
7.02 - Late Retirement
7.03 - Disability Retirement
7.04 - Death
7.05 - Other Termination of Employment
7.06 - Separate Account
7.07 - Forfeitures
7.08 - Adjustment for Investment Experience
7.09 - Participant Loans
7.10 - In-Service Withdrawals
7.11 - Prior Plan In-Service Distribution Rules
ARTICLE 8
DISTRIBUTION OF BENEFITS PAYABLE AFTER TERMINATION OF SERVICE
8.01 - Distribution of Benefits to Participants and Beneficiaries
8.02 - Annuity Distributions
8.03 - Joint and Survivor Annuities/Preretirement Survivor Annuities
8.04 - Installment Distributions
8.05 - Immediate Distributions
8.06 - Determination of Method of Distribution
8.07 - Notice to Trustee
8.08 - Time of Distribution
8.09 - Whereabouts of Participants and Beneficiaries
ARTICLE 9
TOP-HEAVY PROVISIONS
9.01 - Application
9.02 - Definitions
9.03 - Minimum Contribution
9.04 - Adjustment to the Limitation on Contributions and Benefits
9.05 - Minimum Vesting
ARTICLE 10
AMENDMENT AND TERMINATION
10.01 - Amendment by Employer
10.02 - Amendment by Prototype Sponsor
10.03 - Amendments Affecting Vested and/or Accrued Benefits
10.04 - Retroactive Amendments
10.05 - Termination
10.06 - Distribution Upon Termination of the Plan
10.07 - Merger or Consolidation of Plan; Transfer of Plan Assets
ARTICLE 11
AMENDMENT AND CONTINUATION OF PREDECESSOR PLAN; TRANSFER OF FUNDS
TO OR FROM OTHER QUALIFIED PLANS
11.01 - Amendment and Continuation of Predecessor Plan
11.02 - Transfer of Funds from an Existing Plan
11.03 - Acceptance of Assets by Trustee
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11.04 - Transfer of Assets from Trust
ARTICLE 12
MISCELLANEOUS
12.01 - Communication to Participants
12.02 - Limitation of Rights
12.03 - Nonalienability of Benefits and Qualified Domestic Relations Orders
12.04 - Facility of Payment
12.05 - Information Between Employer and Trustee
12.06 - Effect of Failure to Qualify Under Code
12.07 - Notices
12.08 - Governing Law
ARTICLE 13
PLAN ADMINISTRATION
13.01 - Powers and Responsibilities of the Administrator
13.02 - Nondiscriminatory Exercise of Authority
13.03 - Claims and Review Procedures
13.04 - Named Fiduciary
13.05 - Costs of Administration
ARTICLE 14
TRUST AGREEMENT
14.01 - Acceptance of Trust Responsibilities
14.02 - Establishment of Trust Fund
14.03 - Exclusive Benefit
14.04 - Powers of Trustee
14.05 - Accounts
14.06 - Approving of Accounts
14.07 - Distribution from Trust Fund
14.08 - Transfer of Amounts from Qualified Plan
14.09 - Transfer of Assets from Trust
14.10 - Separate Trust or Fund for Existing Plan Assets
14.11 - Voting; Delivery of Information
14.12 - Compensation and Expenses of Trustee
14.13 - Reliance by Trustee on other Persons
14.14 - Indemnification by Employer
14.15 - Consultation by Trustee with Counsel
14.16 - Persons Dealing with the Trustee
14.17 - Resignation or Removal of Trustee
14.18 - Fiscal Year of the Trust
14.19 - Discharge of Duties by Fiduciaries
14.20 - Amendment
14.21 - Plan Termination
14.22 - Permitted Reversion of Funds to Employer
14.23 - Governing Law
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ARTICLE 1. ADOPTION AGREEMENT.
ARTICLE 2. DEFINITIONS.
2.01. DEFINITIONS.
(a) Wherever used herein, the following terms have the meanings set
forth below, unless a different meaning is clearly required by the
context:
(1) "Account" means an account established on the books of the
Trust for the purpose of recording contributions made on behalf of a
Participant and any income, expenses, gains or losses incurred
thereon.
(2) "Administrator" means the Employer adopting this Plan, or other
person designated by the Employer in Section 1.01(c).
(3) "Adoption Agreement" means Article 1, under which the Employer
establishes and adopts, or amends, the Plan and Trust and designates
the optional provisions selected by the Employer, and the Trustee
accepts its responsibilities under Article 14. The provisions of
the Adoption Agreement shall be an integral part of the Plan.
(4) "Annuity Starting Date" means the first day of the first period
for which an amount is payable as an annuity or in any other form.
(5) "Beneficiary" means the person or persons entitled under
Section 7.04 to receive benefits under the Plan upon the death of a
Participant, provided that for purposes of Section 7.04 such term
shall be applied in accordance with Section 401(a)(9) of the Code
and the regulations thereunder.
(6) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(7) "Compensation" shall mean
(A) for purposes of Article 4 (Contributions), compensation as
defined in Section 5.03(e)(2) excluding any items elected by
the Employer in Section 1.04(a), reimbursements or other
expense allowances, fringe benefits (cash and non-cash), moving
expenses, deferred compensation and welfare benefits, but
including amounts that are not includable in the gross income
of the Participant under a salary reduction agreement by reason
of the application of Sections 125, 402(a)(8), 402(h), or
403(b) of the Code; and
(B) for purposes of Section 2.01(a)(16) (Highly Compensated
Employees), Section 5.03 (Code Section 415 Limitations), and
Section 9.03 (Top-Heavy Plan Minimum Contribution),
compensation as defined in Section 5.03(e)(2).
26
Compensation shall generally be based on the amount actually
paid to the Participant during the Plan Year or, for purposes of
Article 4 if so elected by the Employer in Section 1.04(b), during
that portion of the Plan Year during which the Employee is eligible
to participate. Notwithstanding the preceding sentence,
compensation for purposes of Section 5.03 (Code Section 415
Limitations) shall be based on the amount actually paid or made
available to the Participant during the Limitation Year.
Compensation for the initial Plan Year for a new plan shall be based
upon eligible Participant Compensation, subject to Section 1.04(b),
from the Effective Date listed in Section 1.01(g)(1) through the end
of the first Plan Year.
In the case of any Self-Employed Individual, Compensation shall
mean the Individual's Earned Income.
For years beginning after December 31, 1988, the annual
Compensation of each Participant taken into account for determining
all benefits provided under the plan for any determination period
shall not exceed $200,000. This limitation shall be adjusted by the
Secretary at the same time and in the same manner as under Section
415(d) of the Code, except that the dollar increase in effect on
January 1 of any calendar year is effective for years beginning in
such calendar year and the first adjustment to the $200,000
limitation is effected on January 1, 1990. If a plan determines
Compensation on a period of time that contains fewer than 12
calendar months, then the annual Compensation limit is the amount
equal to the annual Compensation limit for the calendar year in
which the Compensation period begins multiplied by the ratio
obtained by dividing the number of full months in the period by 12.
If Compensation for any prior determination period is taken into
account in determining an Employee's allocations or benefits for the
current determination period, the Compensation for such prior year
is subject to the applicable annual compensation limit in effect for
that prior year. For this purpose, for years beginning before
January 1, 1990, the applicable annual compensation limit is
$200,000.
In determining the Compensation of a Participant for purposes of
this limitation, the rules of Section 414(q)(6) of the Code shall
apply, except that in applying such rules, the term "family" shall
include only the spouse of the Participant and any lineal
descendants of the Participant who have not attained age 19 before
the close of the year. If the $200,000 limitation is exceeded as a
result of the application of these rules, then the limitation shall
be prorated among the affected individuals in proportion to each
such individual's Compensation as determined under this Section
prior to the application of this limitation.
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27
(8) "Earned Income" means the net earnings of a Self-Employed
Individual derived from the trade or business with respect to which
the Plan is established and for which the personal services of such
individual are a material income-providing factor, excluding any
items not included in gross income and the deductions allocated to
such items, except that for taxable years beginning after December
31, 1989 net earnings shall be determined with regard to the
deduction allowed under Section 164(f) of the Code, to the extent
applicable to the Employer. Net earnings shall be reduced by
contributions of the Employer to any qualified plan, to the extent a
deduction is allowed to the Employer for such contributions under
Section 404 of the Code.
(9) "Eligibility Computation Period" means each 12-consecutive
month period beginning with the Employment Commencement Date and
each anniversary thereof or, in the case of an Employee who, before
completing the eligibility requirements set forth in Section
1.03(a)(1), incurs a break in service for participation purposes and
thereafter returns to the employ of the Employer or Related
Employer, each 12-consecutive month period beginning with the first
day of reemployment and each anniversary thereof.
A "break in service for participation purposes" shall mean an
Eligibility Computation Period during which the participant does not
complete more than 500 Hours of Service with the Employer.
(10) "Employee" means any employee of the Employer, any
Self-Employed Individual or Owner-Employee. The Employer must
specify in Section 1.03(a)(3) any Employee or class of Employees not
eligible to participate in the Plan. If the Employer elects to
exclude collective bargaining employees, the exclusion applies to
any employee of the Employer included in a unit of employees covered
by an agreement which the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and
one or more employers unless the collective bargaining agreement
requires the employee to be included within the Plan. The term
"employee representatives" does not include any organization more
than half the members of which are owners, officers, or executives
of the Employer.
For purposes of the Plan, an individual shall be considered to
become an Employee on the date on which he first completes an Hour
of Service and he shall be considered to have ceased to be an
Employee on the date on which he last completes an Hour of Service.
The term also includes a Leased Employee, such that contributions or
benefits provided by the leasing organization which are attributable
to services performed for the Employer shall be treated as provided
by the Employer. Notwithstanding the above, a Leased Employee shall
not be considered an Employee if Leased Employees do not constitute
more than 20 percent of the Employer's non-highly compensated
work-force (taking into account all Related Employers) and the
Leased Employee is covered by a money purchase pension plan
maintained by the
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leasing organization and providing (A) a nonintegrated employer
contribution rate of at least 10 percent of compensation, as defined
for purposes of Section 415(c)(3) of the Code, but including amounts
contributed pursuant to a salary reduction agreement which are
excludable from gross income under Section 125, Section 402(a)(8),
Section 402(h) or Section 403(b) of the Code, (B) full and immediate
vesting, and (C) immediate participation by each employee of the
leasing organization.
(11) "Employer" means the employer named in Section 1.02(a) and any
Related Employers required by this Section 2.01(a)(11). If Article
1 of the Employer's Plan is the Standardized Adoption Agreement, the
term "Employer" includes all Related Employers. If Article 1 of the
Employer's Plan is the Non-standardized Adoption Agreement, the term
"Employer" includes those Related Employers designated in Section
1.02(b).
(12) "Employment Commencement Date" means the date on which the
Employee first performs an Hour of Service.
(13) "ERISA" means the Employee Retirement Income Security Act of
1974, as from time to time amended.
(14) "Fidelity Fund" means any Registered Investment Company or
Managed Income Portfolio of the Fidelity Group Trust for Employee
Benefit Plans which is made available to plans utilizing the
CORPORATEplan for Retirement.
(15) "Fund Share" means the share, unit, or other evidence of
ownership in a Fidelity Fund.
(16) "Highly Compensated Employee" means both highly compensated
active Employees and highly compensated former Employees.
A highly compensated active Employee includes any Employee who
performs service for the Employer during the determination year and
who, during the "look-back year," (A) received compensation from the
Employer in excess of $75,000 (as adjusted pursuant to Section
415(d) of the Code), (B) received compensation from the Employer in
excess of $50,000 (as adjusted pursuant to Section 415(d) of the
Code) and was a member of the top-paid group for such year, or (C)
was an officer of the Employer and received compensation during such
year that is greater than 50 percent of the dollar limitation in
effect under Section 415(b)(1)(A) of the Code. The term "Highly
Compensated Employee" also includes (i) Employees who are both
described in the preceding sentence if the term "determination year"
is substituted for the term "look-back year" and the Employee is one
of the 100 Employees who received the most compensation from the
Employer during the determination year, and (ii) Employees who are
5-percent owners at any time during the look-back year or
determination year.
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29
If no officer has satisfied the compensation requirement of (C)
above during either a determination year or look-back year, the
highest paid officer for such year shall be treated as a highly
compensated Employee.
For this purpose, the determination year shall be the Plan Year.
The look-back year shall be the twelve- month period immediately
preceding the determination year. The Employer may elect to make
the look-back year calculation for a determination on the basis of
the calendar year ending with or within the applicable determination
year, as prescribed by Section 414(q) of the Code and the
regulations issued thereunder.
A highly compensated former Employee includes any Employee who
separated from service (or was deemed to have separated) prior to
the determination year, performs no service for the Employer during
the determination year, and was a highly compensated active Employee
for either the separation year or any determination year ending on
or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back
year, a family member of either a 5-percent owner who is an active
or former Employee or a highly compensated Employee who is one of
the 10 most highly compensated Employees ranked on the basis of
compensation paid by the Employer during such year, then the family
member and the 5-percent owner or top-ten highly compensated
Employee shall be aggregated. In such case, the family member and
5-percent owner or top-ten highly compensated Employee shall be
treated as a single Employee receiving compensation and plan
contributions or benefits equal to the sum of such compensation and
contributions or benefits of the family member and 5-percent owner
or top-ten highly compensated Employee. For purposes of this
Section, family member includes the spouse, lineal ascendants and
descendants of the Employee or former Employee and the spouses of
such lineal ascendants and descendants.
The determination of who is a highly compensated Employee,
including the determinations of the number and identity of Employees
in the top-paid group, the top 100 Employees, the number of
Employees treated as officers, and the compensation that is
considered, will be made in accordance with Section 414(q) of the
Code and the regulations thereunder.
(17) "Hour of Service" means, with respect to any Employee,
(A) Each hour for which the Employee is directly or indirectly
paid, or entitled to payment, for the performance of duties for
the Employer or a Related Employer, each such hour to be
credited to the Employee for the Eligibility Computation Period
in which the duties were performed;
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(B) Each hour for which the Employee is directly or indirectly
paid, or entitled to payment, by the Employer or Related
Employer (including payments made or due from a trust fund or
insurer to which the Employer contributes or pays premiums) on
account of a period of time during which no duties are
performed (irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness, incapacity,
disability, layoff, jury duty, military duty, or leave of
absence, each such hour to be credited to the Employee for the
Eligibility Computation Period in which such period of time
occurs, subject to the following rules:
(i) No more than 501 Hours of Service shall be credited
under this paragraph (B) on account of any single
contin-uous period during which the Employee performs no
duties;
(ii) Hours of Service shall not be credited under this
paragraph (B) for a payment which solely reimburses the
Employee for medically-related expenses, or which is made
or due under a plan maintained solely for the purpose of
complying with applicable workmen's compensation,
unemployment compensation or disability insurance laws;
and
(iii) If the period during which the Employee performs
no duties falls within two or more Eligibility Computation
Periods and if the payment made on account of such period
is not calculated on the basis of units of time, the Hours
of Service credited with respect to such period shall be
allocated between not more than the first two such
Eligibility Computation Periods on any reasonable basis
consistently applied with respect to similarly situated
Employees; and
(C) Each hour not counted under paragraph (A) or (B) for which
back pay, irrespective of mitigation of damages, has been
either awarded or agreed to be paid by the Employer or a
Related Employer, shall be credited to the Employee for the
Eligibility Computation Period to which the award or agreement
pertains rather than the Eligibility Computation Period in
which the award agreement or payment is made.
For purposes of determining Hours of Service, Employees of
the Employer and of all Related Employers will be treated as
employed by a single employer. For purposes of paragraphs (B)
and (C) above, Hours of Service will be calculated in
accordance with the provisions of Section 2530.200b-2(b) of the
Department of Labor regulations, which are incorporated herein
by reference.
Solely for purposes of determining whether a break in
service for participation purposes has occurred in a
computation period, an individual who is absent from work for
maternity or paternity reasons shall receive credit for
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the hours of service which would otherwise have been credited to
such individual but for such absence, or in any case in which
such hours cannot be determined, 8 hours of service per day of
such absence. For purposes of this paragraph, an absence from
work for maternity or paternity reasons means an absence (i) by
reason of the pregnancy of the individual, (ii) by reason of a
birth of a child of the individual, (iii) by reason of the
placement of a child with the individual in connection with the
adoption of such child by such individual, or (iv) for purposes
of caring for such child for a period beginning immediately
following such birth or placement. The hours of service credited
under this paragraph shall be credited (a) in the computation
period in which the absence begins if the crediting is necessary
to prevent a break in service in that period, or (b) in all other
cases, in the following computation period.
(18) "Leased Employee" means any individual who provides services to the
Employer or a Related Employer (the "recipient") but is not otherwise an
employee of the recipient if (A) such services are provided pursuant to
an agreement between the recipient and any other person (the "leasing
organization"), (B) such individual has performed services for the
recipient (or for the recipient and any related persons within the
meaning of Section 414(n)(6) of the Code) on a substantially full-time
basis for at least one year, and (C) such services are of a type
historically performed by employees in the business field of the
recipient.
(19) "Normal Retirement Age" means the normal retirement age specified
in Section 1.06(a) of the Adoption Agreement. If the Employer enforces a
mandatory retirement age, the Normal Retirement Age is the lesser of that
mandatory age or the age specified in Section 1.06(a).
(20) "Owner-Employee" means, if the Employer is a sole proprietorship,
the individual who is the sole proprietor, or if the Employer is a
partnership, a partner who owns more than 10 percent of either the
capital interest or the profits interest of the partnership.
(21) "Participant" means any Employee who participates in the Plan in
accordance with Article 3 hereof.
(22) "Plan" means the plan established by the Employer in the form of
the prototype plan, as set forth herein as a new plan or as an amendment
to an existing plan, by executing the Adoption Agreement, together with
any and all amendments hereto.
(23) "Plan Year" means the 12-consecutive-month period ending on the
date designated by the Employer in Section 1.01(f).
(24) "Prototype Sponsor" means Fidelity Management and Research Company
or its successor.
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(25) "Registered Investment Company" means any one or more
corporations, partnerships or trusts registered under the Investment
Company Act of 1940 for which Fidelity Management and Research Company
serves as investment advisor.
(26) "Related Employer" means any employer other than the Employer
named in Section 1.02(a) if the Employer and such other employer are
members of a controlled group of corporations (as defined in Section
414(b) of the Code) or an affiliated service group (as defined in
Section 414(m)), or are trades or businesses (whether or not
incorporated) which are under common control (as defined in Section
414(c)), or such other employer is required to be aggregated with the
Employer pursuant to regulations issued under Section 414(o).
(27) "Self-Employed Individual" means an individual who has Earned
Income for the taxable year from the Employer or who would have had
Earned Income but for the fact that the trade or business had no net
profits for the taxable year.
(28) "Trust" means the trust created by the Employer in accordance with
the provisions of Section 14.01.
(29) "Trust Agreement" means the agreement between the Employer and the
Trustee, as set forth in Article 14, under which the assets of the Plan
are held, administered, and managed.
(30) "Trust Fund" means the property held in Trust by the Trustee for
the Accounts of the Participants and their Beneficiaries.
(31) "Trustee" means the Fidelity Management Trust Company, or its
successor.
(32) "Year of Service for Participation" means, with respect to any
Employee, an Eligibility Computation Period during which the Employee
has been credited with at least 1,000 Hours of Service. If the Plan
maintained by the Employer is the plan of a predecessor employer, an
Employee's Years of Service for Participation shall include years of
service with such predecessor employer. In any case in which the Plan
maintained by the Employer is not the plan maintained by a predecessor
employer, service for such predecessor shall be treated as service for
the Employer, to the extent provided in Section 1.08.
(33) "Years of Service for Vesting" means, with respect to any
Employee, the number of whole years of his periods of service with the
Employer or a Related Employer (the elapsed time method to compute
vesting service), subject to any exclusions elected by the Employer in
Section 1.07(b). An Employee will receive credit for the aggregate of
all time period(s) commencing with the Employee's Employment
Commencement Date and ending on the date a break in service begins,
unless any such years are excluded by Section 1.07(b). An Employee will
also receive credit for any period of
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33
severance of less than 12 consecutive months. Fractional periods of a
year will be expressed in terms of days.
In the case of a Participant who has 5 consecutive 1-year breaks in
service, all years of service after such breaks in service will be
disregarded for the purpose of vesting the Employer-derived account
balance that accrued before such breaks, but both pre-break and
post-break service will count for the purposes of vesting the Employer-
derived account balance that accrues after such breaks. Both accounts
will share in the earnings and losses of the fund.
In the case of a Participant who does not have 5 consecutive 1-year
breaks in service, both the pre-break and post-break service will count
in vesting both the pre-break and post-break employer-derived account
balance.
A break in service is a period of severance of at least 12
consecutive months. Period of severance is a continuous period of time
during which the Employee is not employed by the Employer. Such period
begins on the date the Employee retires, quits or is discharged, or if
earlier, the 12-month anniversary of the date on which the Employee was
otherwise first absent from service.
In the case of an individual who is absent from work for maternity
or paternity reasons, the 12-consecutive month period beginning on the
first anniversary of the first date of such absence shall not constitute
a break in service. For purposes of this paragraph, an absence from work
for maternity or paternity reasons means an absence (A) by reason of the
pregnancy of the individual, (B) by reason of the birth of a child of the
individual, (C) by reason of the placement of a child with the individual
in connection with the adoption of such child by such individual, or (D)
for purposes of caring for such child for a period beginning immediately
following such birth or placement.
If the Plan maintained by the Employer is the plan of a predecessor
employer, an Employee's Years of Service for Vesting shall include years
of service with such predecessor employer. In any case in which the Plan
maintained by the Employer is not the plan maintained by a predecessor
employer, service for such predecessor shall be treated as service for
the Employer to the extent provided in Section 1.08.
(b) Pronouns used in the Plan are in the masculine gender but include the
feminine gender unless the context clearly indicates otherwise.
ARTICLE 3. PARTICIPATION.
3.01. DATE OF PARTICIPATION. All Employees in the eligible class (as defined
in Section 1.03(a)(3)) who are in the service of the Employer on the Effective
Date will become Participants on the date elected by the Employer in Section
1.03(c). Any other Employee will become a
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34
Participant in the Plan as of the first Entry Date on which he first satisfies
the eligibility requirements set forth in Section 1.03(a). In the event that
an Employee who is not a member of an eligible class (as defined in Section
1.03(a)(3)) becomes a member of an eligible class, the individual shall
participate immediately if such individual had already satisfied the
eligibility requirements and would have otherwise previously become a
Participant.
If an eligibility requirement other than one Year of Service is elected in
1.03(a)(1), an Employee may not be required to complete a minimum number of
Hours of Service before becoming a Participant. An otherwise eligible Employee
subject to a minimum months of service requirement shall become a Participant
on the first Entry Date following his completion of the required number of
consecutive months of employment measured from his Employment Commencement Date
to the coinciding date in the applicable following month. For purposes of
determining consecutive months of service, the Related Employer and predecessor
employer rules contained in Sections 2.01(a)(17) and 2.01(a)(32) shall apply.
3.02. RESUMPTION OF PARTICIPATION FOLLOWING REEMPLOYMENT. If a Participant
ceases to be an Employee and thereafter returns to the employ of the Employer
he will be treated as follows:
(a) he will again become a Participant on the first date on which he
completes an Hour of Service for the Employer following his
reemployment and is in the eligible class of Employees as defined in
Section 1.03(a)(3), and
(b) any distribution which he is receiving under the Plan will cease
except as otherwise required under Section 8.08.
3.03. CESSATION OR RESUMPTION OF PARTICIPATION FOLLOWING A CHANGE IN STATUS.
If any Participant continues in the employ of the Employer or Related Employer
but ceases to be a member of an eligible class as defined in Section
1.03(a)(3), the individual shall continue to be a Participant for most purposes
until the entire amount of his benefit is distributed; however, the individual
shall not be entitled to receive an allocation of contributions or forfeitures
during the period that he is not a member of the eligible class. Such
Participant shall continue to receive credit for service completed during the
period for purposes of determining his vested interest in his Accounts. In the
event that the individual subsequently again becomes a member of an eligible
class of Employees, the individual shall resume full participation immediately
upon the date of such change in status.
3.04. PARTICIPATION BY OWNER-EMPLOYEE; CONTROLLED BUSINESSES.
If the Plan provides contributions or benefits for one or more Owner-Employees
who control both the trade or business with respect to which the Plan is
established and one or more other trades or businesses, the Plan and any plan
established with respect to such other trades or businesses must, when looked
at as a single plan, satisfy Sections 401(a) and 401(d) of the Code with
respect to the employees of this and all such other trades or businesses. If
the Plan provides contributions or benefits for one or more Owner-Employees who
control one or more
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other trades or businesses, the Employees of each such other trade or business
must be included in a plan which satisfies Sections 401(a) and 401(d) of the
Code and which provides contributions and benefits not less favorable than
provided for Owner-Employees under the Plan.
If an individual is covered as an Owner-Employee under the plans of two
or more trades or businesses which are not controlled and the individual
controls a trade or business, then the contributions or benefits of the
Employees under the plan of the trades or businesses which are controlled must
be as favorable as those provided for him under the most favorable plan of the
trade or business which is not controlled.
For purposes of this Section, an Owner-Employee, or two or more
Owner-Employees, shall be considered to control a trade or business if such
Owner-Employee, or such Owner-Employees together, (a) own the entire interest
in an unincorporated trade or business or (b) in the case of a partnership, own
more than 50 percent of either the capital interest or the profits interest in
such partnership. For this purpose, an Owner-Employee, or two or more Owner-
Employees, shall be treated as owning any interest in a partnership which is
owned, directly or indirectly, by a partnership controlled by such
Owner-Employee or such Owner-Employees.
3.05. OMISSION OF ELIGIBLE EMPLOYEE. If any Employee who should be included
as a Participant in the Plan is erroneously omitted and discovery of such
omission is not made until after a contribution by his Employer for the year
has been made, the Employer shall make a subsequent contribution, if necessary,
so that the omitted Employee receives the total amount which the said Employee
would have received had he not been omitted. For purposes of this Section
3.05, the term "contribution" shall not include Deferral Contributions and
Matching Contributions made pursuant to Sections 4.01 and 4.03, respectively.
ARTICLE 4. CONTRIBUTIONS.
4.01. DEFERRAL CONTRIBUTIONS.
(a) 4.01. If so provided by the Employer in Section
1.05(b), each Participant may elect to execute a salary
reduction agreement with the Employer to reduce his Compensation
by a specified percentage not exceeding 15% per payroll period,
subject to any exceptions elected by the Employer in Section
1.05(b)(2) and 1.05(b)(3) and equal to a whole number multiple
of one (1) percent. Such agreement shall become effective on
the first day of the first payroll period for which the Employer
can reasonably process the request. The Employer shall make a
Deferral Contribution on behalf of the Participant corresponding
to the amount of said reduction, subject to the restrictions set
forth below. Under no circumstances may a salary reduction
agreement be adopted retroactively.
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(b) A Participant may elect to change or discontinue the percentage
by which his Compensation is reduced by notice to the Employer as
provided in Section 1.05(b)(1).
(c) No Participant shall be permitted to have Deferral Contributions
made under the Plan, or any other qualified plan maintained by the
Employer, during the taxable year, in excess of the dollar
limitation contained in Section 402(g) of the Code in effect at the
beginning of such taxable year.
A Participant may assign to the Plan any Excess
Deferrals made during the taxable year of the Participant by
notifying the Plan Administrator on or before March 15 following the
taxable year of the amount of the Excess Deferrals to be assigned to
the Plan. A Participant is deemed to notify the Administrator of
any Excess Deferrals that arise by taking into account only those
Deferral Contributions made to the Plan and any other plan of the
Employer. Notwithstanding any other provision of the Plan, Excess
Deferrals, plus any income and minus any loss allocable thereto,
shall be distributed no later than April 15 to any Participant to
whose Account Excess Deferrals were so assigned for the preceding
year and who claims Excess Deferrals for such taxable year.
"Excess Deferrals" shall mean those Deferral
Contributions that are includable in a Participant's gross income
under Section 402(g) of the Code to the extent such Participant's
Deferral Contributions for a taxable year exceed the dollar
limitation under such Code section. For purposes of determining
Excess Deferrals, the term "Deferral Contributions" shall include
the sum of all Employer Contributions made on behalf of such
Participant pursuant to an election to defer under any qualified
CODA as described in Section 401(k) of the Code, any simplified
employee pension cash or deferred arrangement as described in
Section 402(h)(1)(B) of the Code, any eligible deferred compensation
plan under Section 457 of the Code, any plan as described under
Section 501(c)(18) of the Code, and any Employer Contributions made
on the behalf of a Participant for the purchase of an annuity
contract under Section 403(b) of the Code pursuant to a salary
reduction agreement. Deferral Contributions shall not include any
deferrals properly distributed as excess annual additions. Excess
Deferrals shall be treated as annual additions under the Plan,
unless such amounts are distributed no later than the first April 15
following the close of the Participant's taxable year.
Excess Deferrals shall be adjusted for any income or
loss up to the date of distribution. The income or loss allocable
to Excess Deferrals is (1) income or loss allocable to the
Participant's Deferral Contributions Account for the taxable year
multiplied by a fraction, the numerator of which is such
Participant's Excess Deferrals for the year and the denominator is
the Participant's Account balance attributable to Deferral
Contributions without regard to any income or loss occurring during
such taxable year, or (2) such other amount determined under any
reasonable method, provided that such method is used consistently
for all Participants
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in calculating the distributions required under this Section 4.01(c)
and Sections 4.02(d) and 4.04(d) for the Plan Year, and is used by
the Plan in allocating income or loss to Participants' Accounts.
Income or loss allocable to the period between the end of the Plan
Year and the date of distribution shall be disregarded in
determining income or loss.
(d) In order for the Plan to comply with the requirements of
Sections 401(k), 402(g) and 415 of the Code and the regulations
promulgated thereunder, at any time in a Plan Year the Administrator
may reduce the rate of Deferral Contributions to be made on behalf
of any Participant, or class of Participants, for the remainder of
that Plan Year, or the Administrator may require that all Deferral
Contributions to be made on behalf of a Participant be discontinued
for the remainder of that Plan Year. Upon the close of the Plan
Year or such earlier date as the Administrator may determine, any
reduction or discontinuance in Deferral Contributions shall
automatically cease until the Administrator again determines that
such a reduction or discontinuance of Deferral Contributions is
required.
4.02. ADDITIONAL LIMIT ON DEFERRAL CONTRIBUTIONS.
(a) The Actual Deferral Percentage (hereinafter "ADP") for
Participants who are Highly Compensated Employees for each Plan Year
and the ADP for participants who are Non-highly Compensated
Employees for the same Plan Year must satisfy one of the following
tests:
(1) The ADP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ADP for Participants who
are Non-highly Compensated Employees for the same Plan Year
multiplied by 1.25; or
(2) The ADP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ADP for Participants who
are Non-highly Compensated Employees for the same Plan Year
multiplied by 2.0, provided that the ADP for Participants who
are Highly Compensated Employees does not exceed the ADP for
Participants who are Non-highly Compensated Employees by more
than two (2) percentage points.
(b) The following special rules apply for the purposes of this
Section:
(1) The ADP for any Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to have Deferral
Contributions (and Qualified Discretionary Contributions if
treated as Deferral Contributions for purposes of the ADP test)
allocated to his or her accounts under two or more arrangements
described in Section 401(k) of the Code that are maintained by
the Employer, shall be determined as if such Deferral
Contributions (and, if applicable, such Qualified Discretionary
Contributions) were made under a single arrangement. If a
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38
Highly Compensated Employee participates in two or more cash or
deferred arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same calendar year
shall be treated as a single arrangement. Notwithstanding the
foregoing, certain plans shall be treated as separate if mandatorily
disaggregated under regulations under Section 401(k) of the Code.
(2) In the event that this Plan satisfies the requirements of
Sections 401(k), 401(a)(4), or 410(b) of the Code only if aggregated
with one or more other plans, or if one or more other plans satisfy
the requirements of such Sections of the Code only if aggregated
with this plan, then this Section shall be applied by determining
the ADP of Employees as if all such plans were a single plan. For
Plan Years beginning after December 31, 1989, plans may be
aggregated in order to satisfy section 401(k) of the Code only if
they have the same Plan Year.
(3) For purposes of determining the ADP of a Participant who is
a 5-percent owner or one of the ten most highly-paid Highly
Compensated Employees, the Deferral Contributions (and Qualified
Discretionary Contributions if treated as Deferral Contributions for
purposes of the ADP test) and Compensation of such Participant shall
include the Deferral Contributions (and, if applicable, Qualified
Discretionary Contributions) and Compensation for the Plan Year of
Family Members (as defined in Section 414(q)(6) of the Code).
Family Members, with respect to between the end of the Plan Year and
the date of distribution shall be disregarded in determining income
or loss.
Excess Contributions shall be distributed from the Participant's
Qualified Discretionary Contribution account only to the extent that
such Excess Contributions exceed the balance in the Participant's
Deferral Contributions account.
(4) For purposes of determining the ADP test, Deferral Contributions
and Qualified Discretionary Contributions must be made before the
last day of the twelve-month period immediately following the Plan
Year to which contributions relate.
(5) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified
Discretionary Contributions used in such test.
(6) The determination and treatment of the ADP amounts of any
Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(c) The following definitions shall apply for purposes of this Section:
(1) "Actual Deferral Percentage" shall mean, for a specified group
of Participants for a Plan Year, the average of the ratios
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39
(calculated separately for each Participant in such group) of (A)
the amount of Employer contributions actually paid over to the Trust
on behalf of such Participant for the Plan Year to (B) the
Participant's Compensation for such Plan Year. Employer
contributions on behalf of any Participant shall include (i) any
Deferral Contributions made pursuant to the Participant's deferral
election, including Excess Deferrals of Highly Compensated
Employees, but excluding (a) Excess Deferrals of Non-highly
Compensated Employees that arise solely from Deferral Contributions
made under the Plan or plans of the Employer and (b) Deferral
Contributions that are taken into account in the Contribution
Percentage test (provided the ADP test is satisfied both with and
without exclusion of these Deferral Contributions) and (ii) at the
election of the Employer, Qualified Discretionary Contributions.
Matching Contributions, whether or not non-forfeitable when made,
shall not be considered as Employer Contributions for purposes of
this paragraph. For purposes of computing Actual Deferral
Percentages, an Employee who would be a Participant but for the
failure to make Deferral Contributions shall be treated as a
Participant on whose behalf no Deferral Contributions are made.
(2) "Excess Contributions" shall mean, with respect to any Plan
Year, the excess of
(a) The aggregate amount of Employer contributions actually
taken into account in computing the ADP of Highly Compensated
Employees for such Plan Year, over
(b) The maximum amount of such contributions permitted by the
ADP test (determined by reducing contributions made on behalf of
Highly Compensated Employees in order of the ADPs, beginning
with the highest of such percentages).
(3) "Qualified Discretionary Contributions" shall mean contributions
made by the Employer as elected in Section 1.05(b)(4) and allocated
to Participant Accounts of Non-highly Compensated Employees that
such Participants may not elect to receive in cash until distributed
from the Plan, that are nonforfeitable when made, and that are
distributable only in accordance with the distribution provisions
that are applicable to Deferral Contributions. Participants shall
not be required to satisfy any hours of service or employment
requirement in order to receive an allocation of such contributions.
(d) Notwithstanding any other provision of this Plan, Excess
Contributions, plus any income and minus any loss allocable thereto,
shall be distributed no later than the last day of each Plan Year to
Participants to whose Accounts such Excess Contributions were
allocated for the preceding Plan Year. If such excess amounts are
distributed more than 2 1/2 months after the last day of the Plan Year
in which such excess amounts arose, a ten-(10-) percent excise tax
will be imposed on the Employer maintaining the Plan with respect to
such amounts. Such
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40
distributions shall be made to Highly Compensated Employees on the
basis of the respective portions of the Excess Contributions
attributable to each of such employees. Excess Contributions of
Participants who are subject to the family member aggregation rules
of Section 414(q)(6) of the Code shall be allocated among the
family members in proportion to the Deferral Contributions (and
amounts treated as Deferral Contributions) of each family member
that is combined to determine the combined ADP.
Excess Contributions shall be treated as annual additions under the
Plan.
Excess Contributions shall be adjusted for any income or loss up to
the date of distribution. The income or loss allocable to Excess
Contributions is (1) income or loss allocable to the Participant's
Deferral Contribution Account (and if applicable, the Qualified
Discretionary Contribution Account) for the Plan Year multiplied by
a fraction, the numerator of which is such Participant's Excess
Contributions for the year and the denominator is the Participant's
Account balance attributable to Deferral Contributions without
regard to any income or loss occurring during such Plan Year, or (2)
an amount determined under any reasonable method, provided that such
method is used consistently for all Participants in calculating any
distributions required under Section 4.02(d) and Sections 4.01(c)
and 4.04(d) for the Plan Year, and is used by the Plan in allocating
income or loss to the Participants' Accounts. Income or loss
allocable to the period between the end of the Plan Year and the
date of distibution shall be disregarded in determining income or
loss.
Excess Contributions shall be distributed from the Participant's
Qualified Discretionary Contribution Account only to the extent that
such Excess Contributions exceed the balance in the Participant's
Deferral Contributions Account.
4.03 MATCHING CONTRIBUTIONS: If so provided by the Employer in Section
1.05(c), the Employer shall make a Matching Contribution on behalf of each
Participant who had Deferral Contributions made on his behalf during the year
and who meets the requirement, if any, of Section 1.05(c)(4). The amount of
the Matching Contribution shall be determined in accordance with Section
1.05(c), subject to the limitations set forth in Section 4.04 and Section 404
of the Code. Matching Contributions will not be allowed to be made by the
Employer on any voluntary non-deductible Employee Contributions.
4.04 LIMIT ON MATCHING CONTRIBUTIONS AND EMPLOYEE CONTRIBUTIONS:
(a) The Average Contribution Percentage (hereinafter "ACP") for
Participants who are Highly Compensated Employees for each Plan Year
and the ACP for Participants who are Non-highly Compensated
Employees for the same Plan Year must satisfy one of the following
tests:
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(1) The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 1.25; or
(2) The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by two (2), provided that the ACP for
Participants who are Highly Compensated Employees does not
exceed the ACP for Participants who are Non-highly Compensated
Employees by more than two (2) percentage points.
(b) The following special rules apply for purposes of this section:
(1) If one or more Highly Compensated Employees participate in
both a qualified cash or deferred arrangement described in
Section 401(k) of the Code (hereafter "CODA") and a plan subject
to the ACP test maintained by the Employer and the sum of the
ADP and ACP of those Highly Compensated Employees subject to
either or both tests exceeds the Aggregate Limit, then the ACP
of those Highly Compensated Employees who also participate in a
CODA will be reduced (beginning with such Highly Compensated
Employee whose ACP is the highest) so that the limit is not
exceeded. The amount by which each Highly Compensated
Employee's Contribution Percentage Amounts is reduced shall be
treated as an Excess Aggregate Contribution. The ADP and ACP of
the Highly Compensated Employees are determined after any
corrections required to meet the ADP and ACP tests. Multiple
use does not occur if either the ADP or ACP of the Highly
Compensated Employees does not exceed 1.25 multiplied by the ADP
and ACP of the Non-highly Compensated Employees.
(2) For purposes of this section, the Contribution Percentage
for any Participant who is a Highly Compensated Employee and who
is eligible to have Contribution Percentage Amounts allocated to
his or her account under two or more plans described in section
401(a) of the Code, or arrangements described in section 401(k)
of the Code that are maintained by the Employer, shall be
determined as if the total of such Contribution Percentage
Amounts was made under each plan. If a Highly Compensated
Employee participates in two or more cash or deferred
arrangements that have different plan years, all cash or
deferred arrangements ending with or within the same calendar
year shall be treated as a single arrangement. Notwithstanding
the foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under regulations under Section 401(m)
of the Code.
(3) In the event that this Plan satisfies the requirements of
Sections 401(m), 401(a)(4) or 410(b) of the Code only
if aggregated with one or more other plans, or if one or more
other plans satisfy the requirements of such sections of the
Code only
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42
if aggregated with this Plan, then this section shall
be applied by determining the Contribution Percentage of
Employees as if all such plans were a single plan. For plan
years beginning after December 31, 1989, plans may be aggregated
in order to satisfy Section 401(m) of the Code only if they have
the same Plan Year.
(4) For purposes of determining the Contribution percentage of
a Participant who is a five-percent owner or one of the ten most
highly-paid Highly Compensated Employees, the Contribution
Percentage Amounts and Compensation of such Participant shall
include the Contribution Percentage Amounts and Compensation for
the Plan Year of family members (as defined in Section 414(q)(6)
of the Code). Family members, with respect to Highly
Compensated Employees, shall be disregarded as separate
Employees in determining the Contribution Percentage both for
Participants who are Non-highly Compensated Employees and for
Participants who are Highly Compensated Employees.
(5) For purposes of determining the Contribution Percentage
test, Employee Contributions made pursuant to Section 1.05(d)(1)
are considered to have been made in the Plan Year in which
contributed to the Trust. Matching Contributions and Qualified
Discretionary Contributions will be considered made for a Plan
Year if made no later than the end of the twelve-month period
beginning on the day after the close of the Plan Year.
(6) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the amount of
Qualified Discretionary Contributions used in such test.
(7) The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of Treasury.
(c) The following definitions shall apply for purposes of this
Section:
(1) "Aggregate Limit" shall mean the greater of (A) or (B)
where (A) is the sum of (i) 125 percent of the greater of the
ADP of the Non-highly Compensated Employees for the Plan Year or
the ACP of Non-highly Compensated Employees under the Plan
subject to Section 401(m) of the Code for the Plan Year
beginning with or within the Plan Year of the CODA and (ii) the
lesser of 200% or two plus the lesser of such ADP or ACP and
where (B) is the sum of (i) 125 percent of the lesser of the ADP
of the Non-highly Compensated Employees for the Plan Year or the
ACP of Non-highly Compensated Employees under the Plan subject
to Section 401(m) of the Code for the Plan Year beginning with
or within the Plan Year of the CODA and (ii) the lesser of 200%
or two plus the greater of such ADP or ACP.
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(2) "Average Contribution Percentage" or "ACP" shall mean the
average of the Contribution Percentages of the Eligible
Participants in a group.
(3) "Contribution Percentage" shall mean the ratio (expressed as
a percentage) of the Participant's Contribution Percentage
Amounts to the Participant's Compensation for the Plan Year.
(4) "Contribution Percentage Amounts" shall mean the sum of the
Employee Contributions and Matching Contributions made under the
plan on behalf of the Participant for the Plan Year. Such
Contribution Percentage Amounts shall not include Matching
Contributions that are forfeited either to correct Excess
Aggregate Contributions or because the contributions to which
they relate are Excess Deferrals, Excess Contributions or Excess
Aggregate Contributions. If so elected by the Employer in
Section 1.05(b)(4), the Employer may include Qualified
Discretionary Contributions in the Contribution Percentage
Amounts. The Employer also may elect to use Deferral
Contributions in the Contribution Percentage Amounts so long as
the ADP test is met before the Deferral Contributions are used
in the ACP test and continues to be met following the exclusion
of those Deferral Contributions that are used to meet the ACP
test.
(5) "Deferral Contribution" shall mean any contribution made at
the election of the Participant pursuant to a salary reduction
agreement in accordance with Section 4.01(a).
(6) "Eligible Participant" shall mean any Employee who is
eligible to make an Employee Contribution, or a Deferral
Contribution (if the Employer takes such contributions into
account in the calculation of the Contribution Percentage), or
to receive a Matching Contribution.
(7) "Employee Contribution" shall mean any voluntary
non-deductible contribution made to the plan by or on behalf of
a Participant that is included in the Participant's gross income
in the year in which made and that is maintained in a separate
Account to which earnings and losses are allocated.
(8) "Matching Contribution" shall mean an Employer contribution
made to this or any other defined contribution plan on behalf of
a Participant on account of a Participant's Deferral
Contribution.
(9) "Excess Aggregate Contributions" shall mean, with respect to
any Plan Year, the excess of
(A) The aggregate Contribution Percentage Amounts taken into
account in computing the numerator of the Contribution
Percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over
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44
(B) The maximum Contribution Percentage Amounts permitted by
the ACP test (determined by reducing contributions made on
behalf of Highly Compensated Employees in the order of their
Contribution Percentages beginning with the highest of such
percentages).
Such determination shall be made after first
determining Excess Deferrals pursuant to Section 4.01 and
then determining Excess Contributions pursuant to Section
4.02.
(d) Notwithstanding any other provision of the Plan, Excess
Aggregate Contributions, plus any income and minus any loss
allocable thereto, shall be forfeited, if forfeitable, or if not
forfeitable, distributed no later than the last day of each Plan
Year to Participants to whose Accounts such Excess Aggregate
Contributions were allocated for the preceding Plan Year. Excess
Aggregate Contributions of Participants who are subject to the
family member aggregation rules of Section 414(q)(6) of the Code
shall be allocated among the family members in proportion to the
Employee and Matching Contributions of each family member that is
combined to determine the combined ACP. If such Excess Aggregate
Contributions are distributed more than 2 1/2 months after the last
day of the Plan Year in which such excess amounts arose, a ten (10)
percent excise tax will be imposed on the employer maintaining the
Plan with respect to those amounts. Excess Aggregate Contributions
shall be treated as annual additions under the Plan.
Excess Aggregate Contributions shall be adjusted for
any income or loss up to the date of distribution. The income or
loss allocable to Excess Aggregate Contributions is (1) income or
loss allocable to the Participant's Employee Contribution Account,
Matching Contribution Account (if any, and if all amounts therein
are not used in the ADP test) and if applicable, Qualified
Non-elective Contribution Account for the Plan Year multiplied by a
fraction, the numerator of which is such Participant's Excess
Aggregate Contributions for the year and the denominator is the
Participant's Account balance(s) attributable to Contribution
Percentage Amounts without regard to income or loss occurring during
such Plan Year, or (2) such other amount determined under any
reasonable method, provided that such method is used consistently
for all Participants in calculating any distributions required under
Section 4.04(d) and Sections 4.01(c) and 4.02(d) for the Plan Year,
and is used by the Plan in allocating income or loss to the
Participants' Accounts. Income or loss allocable to the period
between the end of the Plan Year and the date of distribution shall
be disregarded in determining income or loss.
Forfeitures of Excess Aggregate Contributions shall be
applied to reduce Employer contributions; the forfeitures shall be
held in the money market fund, if any, listed in Section 1.14(b)
pending such application.
Excess Aggregate Contributions shall be forfeited, if
forfeitable, or distributed on a prorata basis from the
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45
Participant's Employee Contribution Account, Matching
Contribution Account and if applicable, the Participant's
Deferral Contributions Account or Qualified Discretionary
Contribution Account or both.
4.05. SPECIAL RULES. Deferral Contributions and Qualified Discretionary
Contributions and income allocable to each are not distributable to a
Participant or his or her Beneficiary or Beneficiaries, in accordance with such
Participant's or beneficiary's or beneficiaries' election, earlier than upon
separation from service, death, or disability, except as otherwise provided in
Section 7.10, 7.11 or 10.06. Such amounts may also be distributed, but after
March 31, 1988, in the form of a lump sum only, upon
(a) Termination of the Plan without establishment of another
defined contribution plan, other than an employee stock ownership plan
(as defined in Section 4975(e) or Section 409 of the Code) or a
simplified employee pension plan as defined in Section 408(k) of the
Code.
(b) The disposition by a corporation to an unrelated
corporation of substantially all of the assets (within the meaning of
Section 409(d)(2) of the Code) used in a trade or business of such
corporation if such corporation continues to maintain this Plan after
the disposition, but only with respect to Employees who continue
employment with the corporation acquiring such assets.
(c) The disposition by a corporation to an unrelated entity
of such corporation's interest in a subsidiary (within the meaning of
Section 409(d)(2) of the Code) if such corporation continues to
maintain this Plan, but only with respect to Employees who continue
employment with such subsidiary.
The Participant's accrued benefit derived from Deferral Contributions,
Qualified Discretionary Contributions and Employee Contributions (as defined in
Section 4.09) is nonforfeitable. Separate Accounts for Deferral Contributions,
Qualified Discretionary Contributions, Employee Contributions and Matching
Contributions will be maintained for each Participant. Each Account will be
credited with the applicable contributions and earnings thereon.
4.06. FIXED/DISCRETIONARY EMPLOYER CONTRIBUTIONS. If so provided by the
Employer in Sections 1.05(a)(1) or 1.05(a)(2), for the Plan Year in which the
Plan is adopted and for each Plan Year thereafter, the Employer will make Fixed
or Discretionary Employer contributions to the Trust in accordance with Section
1.05 to be allocated as follows:
(a) Fixed Employer contributions shall be allocated among
eligible Participants (as determined in accordance with Section
1.05(a)(3)) in the manner specified in Section 1.05(a).
(b) Discretionary Employer contributions shall be
allocated among eligible Participants, as determined in accordance with
Section 1.05(a)(3), as follows:
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(1) If the Non-Integrated Formula is elected in Section
1.05(a)(2)(A), such contributions shall be allocated to eligible
Participants in the ratio that each Participant's Compensation bears to
the total Compensation paid to all eligible Participants for the Plan
Year; or
(2) If the Integrated Formula is elected in Section 1.05(a)(2)(B),
such contributions shall be allocated in the following steps:
(A) First, to each eligible
Participant in the same ratio that the sum
of the Participant's Compensation and
Excess Compensation for the Plan Year bears
to the sum of the Compensation and Excess
Compensation of all Participants for the
Plan Year. This allocation as a percentage
of the sum of each Participant's
Compensation and Excess Compensation shall
not exceed 5.7%.
(B) Any remaining Discretionary
Employer Contribution shall be allocated to
each eligible Participant in the same ratio
that each Participant's Compensation for
the Plan Year bears to the total
Compensation of all Participants for the
Plan Year.
For purposes of this Section, "Excess
Compensation" means Compensation in excess of the
taxable wage base, as determined under Section 230 of
the Social Security Act, in effect on the first day of
the Plan Year. Further, this Section 4.06(b)(2) shall
be modified as provided in Section 9.03 for years in
which the Plan is top heavy under Article 9.
4.07. TIME OF MAKING EMPLOYER CONTRIBUTIONS. The Employer will pay its
contribution for each Plan Year not later than the time prescribed by law for
filing the Employer's federal income tax return for the fiscal (or taxable)
year with or within which such Plan Year ends (including extensions thereof).
The Trustee will have no authority to inquire into the correctness of the
amounts contributed and paid over to the Trustee, to determine whether any
contribution is payable under this Article 4, or to enforce, by suit or
otherwise, the Employer's obligation, if any, to make a contribution to the
Trustee.
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4.08. RETURN OF EMPLOYER CONTRIBUTIONS. The Trustee shall, upon request by
the Employer, return to the Employer the amount (if any) determined under
Section 14.22. Such amount shall be reduced by amounts attributable thereto
which have been credited to the Accounts of Participants who have since
received distributions from the Trust, except to the extent such amounts
continue to be credited to such Participants' Accounts at the time the amount
is returned to the Employer. Such amount shall also be reduced by the losses
of the Trust attributable thereto, if and to the extent such losses exceed the
gains and income attributable thereto, but will not be increased by the gains
and income of the Trust attributable thereto, if and to the extent such gains
and income exceed the losses attributable thereto. In no event will the return
of a contribution hereunder cause the balance of the individual Account of any
Participant to be reduced to less than the balance which would have been
credited to the Account had the mistaken amount not been contributed.
4.09. EMPLOYEE CONTRIBUTIONS. If the Employer elected to permit Deferral
Contributions in Section 1.05(b) and if so provided by the Employer in Section
1.05(d), each Participant may elect to make Employee Contributions to the Plan
in accordance with the rules and procedures established by the Employer and in
an amount not less than one percent (1%) and not greater than ten percent (10%)
of such Participant's Compensation for the Plan Year. Such contributions and
all Employee Contributions for Plan Years beginning after December 31, 1986,
shall be subject to the nondiscrimination requirements of Section 401(m) of the
Code as set forth in Section 4.04.
For purposes of this Plan, "Employee Contributions" shall mean any
voluntary non-deductible contribution made to a plan by or on behalf of a
Participant that is or was included in the Participant's gross income in the
year in which made and that is maintained under a separate account to which
applicable earnings and losses are allocated. Excess Contributions may not be
recharacterized as Employee Contributions.
Employee Contributions shall be paid over to the Trustee not later than
thirty (30) days following the end of the month in which the Participant makes
the contribution. A Participant shall have a fully vested 100% nonforfeitable
right to his Employee Contributions and the earnings or losses allocated
thereon. Distributions of Employee Contributions shall be made in accordance
with Section 7.10.
4.10. ROLLOVER CONTRIBUTIONS.
(a) Rollover of Eligible Rollover Distributions
(1) An Employee who is or was a distributee of an "eligible rollover
distribution"(as defined in Section 402(c)(4) of the Code and the
regulations issued thereunder) from a qualified plan may directly
transfer all or any portion of such distribution to the Trust or
transfer all or any portion of such distribution to the Trust within
sixty (60) days of payment. The transfer shall be made in the form
of cash or allowable Fund Shares only.
(2) The Employer may refuse to accept rollover contributions or
instruct the Trustee not to accept rollover contributions under the
Plan.
(b) Treatment of Rollover Amount.
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(1) An account will be established for the transferring
Employee under Article 5, the rollover amount will be credited
to the account and such amount will be subject to the terms
of the Plan, including Section 8.01, except as otherwise
provided in this Section 4.10.
(2) The rollover account will at all times be fully vested
in and nonforfeitable by the Employee.
(c) Entry into Plan by Transferring Employee. Although an amount
may be transferred to the Trust Fund under this Section 4.10 by an
Employee who has not yet become a Participant in accordance with
Article 3, and such amount is subject to the terms of the Plan as
described in paragraph (b) above, the Employee will not become a
Participant entitled to share in Employer contributions until he has
satisfied such requirements.
(d) Monitoring of Rollovers.
(1) The Administrator shall develop such procedures
and require such information from transferring Employees as it
deems necessary to insure that amounts transferred under this
Section 4.10 meet the requirements for tax-free rollovers
established by such Section and by Section 402(c) of the Code.
No such amount may be transferred until approved by the
Administrator.
(2) If a transfer made under this Section 4.10 is
later determined by the Administrator not to have met the
requirements of this Section or of the Code or Treasury
regulations, the Trustee shall, within a reasonable time after
such determination is made, and on instructions from the
Administrator, distribute to the Employee the amounts then held
in the Trust attributable to the transferred amount.
4.11. DEDUCTIBLE VOLUNTARY EMPLOYEE CONTRIBUTIONS. The Administrator will not
accept deductible Employee Contributions which are made for a taxable year
beginning after December 31, 1986. Contributions made prior to that date will
be maintained in a separate Account which will be nonforfeitable at all times
and which will share in the gains and losses of the trust in the same manner as
described in Section 5.02. No part of the deductible voluntary contribution
Account will be used to purchase life insurance. Subject to Article 8, the
Participant may withdraw any part of the deductible voluntary contribution
Account upon request.
4.12. ADDITIONAL RULES FOR PAIRED PLANS. If the Employer has adopted a
qualified plan under Fidelity Basic Plan Document No. 09 which is to be
considered as a paired plan with this Plan, the elections in Section 1.03 must
be identical to the Employer's corresponding elections for the other plan.
When the paired plans are top-heavy or are deemed to be top-heavy as provided
in Section 9.01, the plan paired with this Plan will provide a minimum
contribution to each non-key Employee which is equal to 3 percent (or such
other percent elected by the Employer in Section 1.12(c)) of such Employee's
Compensation. Notwithstanding the
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preceding sentence, the minimum contribution shall be provided by this Plan
if contributions under the other plan paired with this Plan are frozen.
ARTICLE 5. PARTICIPANTS' ACCOUNTS.
5.01. INDIVIDUAL ACCOUNTS. The Administrator will establish and maintain an
Account for each Participant which will reflect Employer and Employee
Contributions made on behalf of the Participant and earnings, expenses, gains
and losses attributable thereto, and investments made with amounts in the
Participant's Account. The Administrator will establish and maintain such
other accounts and records as it decides in its discretion to be reasonably
required or appropriate in order to discharge its duties under the Plan.
5.02. VALUATION OF ACCOUNTS. Participant Accounts will be valued at their
fair market value at least annually as of a date specified by the Administrator
in accordance with a method consistently followed and uniformly applied, and on
such date earnings, expenses, gains and losses on investments made with amounts
in each Participant's Account will be allocated to such Account. Participants
will be furnished statements of their Account values at least once each Plan
Year.
5.03. CODE SECTION 415 LIMITATIONS. Notwithstanding any other provisions of
the Plan:
Subsections (a)(1) through (a)(4)--(These subsections apply to
Employers who do not maintain any qualified plan, including a Welfare Benefit
Fund, an Individual Medical Account, or a simplified employee pension in
addition to this Plan.)
(a)(1) If the Participant does not participate in, and has never
participated in any other qualified plan, Welfare Benefit Fund,
Individual Medical Account, or a simplified employee pension, as defined
in section 408(k) of the Code, maintained by the Employer, which
provides an annual addition as defined in Section 5.03(e)(1), the amount
of Annual Additions to a Participant's Account for a Limitation Year
shall not exceed the lesser of the Maximum Permissible Amount or any
other limitation contained in this Plan. If the Employer contribution
that would otherwise be contributed or allocated to the Participant's
Account would cause the Annual Additions for the Limitation Year to
exceed the Maximum Permissible Amount, the amount contributed or
allocated will be reduced so that the Annual Additions for the
Limitation Year will equal the Maximum Permissible Amount.
(a)(2) Prior to the determination of the Participant's actual
Compensation for a Limitation Year, the Maximum Permissible Amount may
be determined on the basis of a reasonable estimation of the
Participant's compensation for such Limitation Year, uniformly
determined for all Participants similarly situated. Any Employer
contributions based on estimated annual compensation shall be reduced by
any Excess Amounts carried over from prior years.
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(a)(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for such Limitation Year
shall be determined on the basis of the Participant's actual
Compensation for such Limitation Year.
(a)(4) If, pursuant to subsection (a)(3) or as a result of the
allocation of forfeitures or a reasonable error in determining the total
Elective Deferrals there is an Excess Amount with respect to a
Participant for a Limitation Year, such Excess Amount shall be disposed
of as follows:
(A) Any nondeductible voluntary employee contributions
("employee contributions") or Elective Deferrals, to the extent they
would reduce the Excess Amount, will be returned to the Participant.
Any gains attributable to returned employee contributions will also be
returned or will be treated as additional employee contributions for the
Limitation Year in which the employee contributions were made.
(B) If after the application of paragraph (A) an Excess amount
still exists and the Participant is in the service of the Employer which
is covered by the Plan at the end of the Limitation Year, then such
Excess Amount shall be reapplied to reduce future Employer contributions
under this Plan for the next Limitation Year (and for each succeeding
year, as necessary) for such Participant, so that in each such Year the
sum of actual Employer contributions plus the reapplied amount shall
equal the amount of Employer contributions which would otherwise be made
to such Participant's Account.
(C) If after the application of paragraph (A) an Excess Amount
still exists and the Participant is not in the service of the Employer
which is covered by the Plan at the end of a Limitation Year, then such
Excess Amount will be held unallocated in a suspense account. The
suspense account will be applied to reduce future Employer contributions
for all remaining Participants in the next Limitation Year and each
succeeding Limitation Year if necessary.
(D) If a suspense account is in existence at any time during the
Limitation Year pursuant to this subsection, it will not participate in
the allocation of the Trust Fund's investment gains and losses. All
amounts in the suspense account must be allocated to the Accounts of
Participants before any Employer contribution may be made for the
Limitation Year. Except as provided in paragraph (A), Excess Amounts
may not be distributed to Participants or former Participants.
Subsections (b)(1) through (b)(6)--(These subsections apply to Employers
who, in addition to this Plan, maintain one or more plans, all of which are
qualified Master or Prototype defined contribution Plans, any Welfare Benefit
Fund, any Individual Medical Account, or any simplified employee pension.)
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(b)(1) If, in addition to this Plan, the Participant is covered under
any other qualified defined contribution plans (all of which are
qualified Master or Prototype Plans), Welfare Benefit Funds, Individual
Medical Accounts, or simplified employee pension Plans, maintained by
the Employer, that provide an annual addition as defined in Section
5.03(e)(1), the amount of Annual Additions to a Participant's Account
for a Limitation Year shall not exceed the lesser of
(A) the Maximum Permissible Amount, reduced by the sum of any
Annual Additions to the Participant's accounts for the same Limitation
Year under such other qualified Master or Prototype defined contribution
plans, and Welfare Benefit Funds, Individual Medical Accounts, and
simplified employee pensions, or
(B) any other limitation contained in this Plan.
If the annual additions with respect to the Participant under other
qualified Master or Prototype defined contribution Plans, Welfare
Benefit Funds, Individual Medical Accounts, and simplified employee
pensions maintained by the Employer are less than the maximum
permissible amount and the Employer contribution that would otherwise be
contributed or allocated to the Participant's account under this plan
would cause the annual additions for the limitation year to exceed this
limitation, the amount contributed or allocated will be reduced so that
the annual additions under all such plans and funds for the limitation
year will equal the maximum permissible amount. If the annual additions
with respect to the Participant under such other qualified Master or
Prototype defined contribution Plans, Welfare Benefit Funds, Individual
Medical Accounts, and simplified employee pensions in the aggregate are
equal to or greater than the maximum permissible amount, no amount will
be contributed or allocated to the Participant's account under this plan
for the limitation year.
(b)(2) Prior to the determination of the Participant's actual
Compensation for the Limitation Year, the amounts referred to in
(b)(1)(A) above may be determined on the basis of a reasonable
estimation of the Participant's compensation for such Limitation Year,
uniformly determined for all Participants similarly situated. Any
Employer contribution based on estimated annual compensation shall be
reduced by any Excess Amounts carried over from prior years.
(b)(3) As soon as is administratively feasible after the end of the
Limitation Year, the amounts referred to in (b)(1)(A) shall be
determined on the basis of the Participant's actual Compensation for
such Limitation Year.
(b)(4) If a Participant's Annual Additions under this Plan and all such
other plans result in an Excess Amount, such Excess Amount shall be
deemed to consist of the Annual Additions last allocated, except that
Annual Additions attributable to a simplified employee
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pension will be deemed to have been allocated first, followed by Annual
Additions to a Welfare Benefit Fund or Individual Medical Account
regardless of the actual allocation date.
(b)(5) If an Excess Amount was allocated to a Participant on an
allocation date of this Plan which coincides with an allocation date of
another plan, the Excess Amount attributed to this Plan will be the
product of
(A) the total Excess Amount allocated as of such date (including
any amount which would have been allocated but for the limitations
of Section 415 of the Code), and
(B) the ratio of (i) the Annual Additions allocated to the
Participant as of such date under this Plan, and (ii) the Annual
Additions allocated as of such date under all qualified defined
contribution plans (determined without regard to the limitations
of Section 415 of the Code).
(b)(6) Any Excess Amounts attributed to this Plan shall be disposed
of as provided in subsection (a)(4).
Subsection (c)--(This subsection applies only to Employers who, in
addition to this Plan, maintain one or more qualified plans which are qualified
defined contribution plans other than Master or Prototype Plans.)
(c) If the Employer also maintains another plan which is a
qualified defined contribution plan other than a Master or
Prototype Plan, Annual Additions allocated under this Plan on
behalf of any Participant shall be limited in accordance with
the provisions of (b)(1) through (b)(6), as though the other plan
were a Master or Prototype Plan, unless the Employer provides
other limitations in the Adoption Agreement.
Subsection (d)--(This subsection applies only to Employers who, in
addition to this Plan, maintain or at any time maintained a qualified defined
benefit plan.)
(d) If the Employer maintains, or at any time maintained, a
qualified defined benefit plan, the sum of any Participant's
Defined Benefit Fraction and Defined Contribution Fraction shall
not exceed the combined plan limitation of 1.0 in any Limitation
Year. The combined plan limitation will be met as provided by
the Employer in the Adoption Agreement.
Subsections (e)(1) through (e)(11)--(Definitions.)
(e)(1) "Annual Additions" means the sum of the following amounts
credited to a Participant for a Limitation Year:
(A) all Employer contributions,
(B) all Employee Contributions,
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(C) all forfeitures,
(D) amounts allocated, after March 31, 1984, to an Individual
Medical Account which is part of a pension or annuity plan
maintained by the Employer are treated as Annual Additions to a
defined contribution plan. Also, amounts derived from
contributions paid or accrued after December 31, 1985, in taxable
years ending after such date, which are attributable to post-
retirement medical benefits allocated to the separate account of a
key employee, as defined in Section 419A(d)(3) of the Code, under
a Welfare Benefit Fund maintained by the Employer are treated
as Annual Additions to a defined contribution plan, and
(E) allocations under a simplified employee pension.
For purposes of this Section 5.03, amounts reapplied to
reduce Employer contributions under subsection (a)(4) shall also be
included as Annual Additions.
(e)(2) "Compensation" means wages as defined in Section 3401(a) of the
Code and all other payments of compensation to an employee by the
employer (in the course of the employer's trade or business) for which
the employer is required to furnish the employee a written statement
under Sections 6041(d) and 6051(a)(3) of the Code. Compensation must be
determined without regard to any rules under Section 3401(a) of the Code
that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2) of the Code.)
For any Self-Employed Individual compensation will mean Earned Income.
For limitation years beginning after December 31, 1991, for purposes of
applying the limitations of this article, compensation for a limitation
year is the compensation actually paid or made available during such
limitation year.
(e)(3) "Defined Benefit Fraction" means a fraction, the numerator of
which is the sum of the Participant's annual benefits (adjusted to an
actuarially equivalent straight life annuity if such benefit is
expressed in a form other than a straight life annuity or qualified
joint and survivor annuity) under all the defined benefit plans (whether
or not terminated) maintained by the Employer, each such annual benefit
computed on the assumptions that the Participant will remain in
employment until the normal retirement age under each such plan (or the
Participant's current age, if later) and that all other factors used to
determine benefits under such plan will remain constant for all future
Limitation Years, and the denominator of which is the lesser of 125
percent of the dollar limitation determined for the Limitation Year
under Sections
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415(b)(1)(A) and 415(d) of the Code or 140 percent of the Participant's
highest average Compensation for 3 consecutive calendar years of service
during which the Participant was active in each such plan, including any
adjustments under Section 415(b) of the Code. However, if the
Participant was a participant as of the first day of the first
Limitation Year beginning after December 31, 1986, in one or more
defined benefit plans maintained by the Employer which were in existence
on May 6, 1986 then the denominator of the Defined Benefit Fraction
shall not be less than 125 percent of the Participant's total accrued
benefit as of the close of the last Limitation Year beginning before
January 1, 1987, disregarding any changes in the terms and conditions of
the plan after May 5, 1986, under all such defined benefit plans that
met, individually and in the aggregate, the requirements of Section 415
of the Code for all Limitation Years beginning before January 1, 1987.
(e)(4) "Defined Contribution Fraction" means a fraction, the numerator
of which is the sum for the current and all prior Limitation Years of
(A) all Annual Additions (if any) to the Participant's accounts under
each defined contribution plan (whether or not terminated) maintained by
the Employer and (B) all Annual Additions attributable to the
Participant's nondeductible Employee Contributions to all defined
benefit plans (whether or not terminated) maintained by the Employer,
and the Participant's Annual Additions attributable to all Welfare
Benefit Funds, Individual Medical Accounts, and simplified employee
pensions, maintained by the Employer, and the denominator of which is
the sum of the maximum aggregate amounts for the current and all prior
Limitation Years during which the Participant was an Employee
(regardless of whether the Employer maintained a defined contribution
plan in any such year).
The maximum aggregate amount in any Limitation Year is the lesser
of 125 percent of the dollar limitation in effect under Section
415(c)(1)(A) of the Code for each such year or 35 percent of the
Participant's Compensation for each such year.
If the Participant was a participant as of the first day of the
first Limitation Year beginning after December 31, 1986, in one or
more defined contribution plans maintained by the Employer which were in
existence on May 6, 1986, then the numerator of the Defined Contribution
Fraction shall be adjusted if the sum of this fraction and the Defined
Benefit Fraction would otherwise exceed 1.0 under the terms of this
Plan. Under the adjustment an amount equal to the product of (i) the
excess of the sum of the fractions over 1.0 and (ii) the denominator of
this fraction will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as they
would be computed as of the end of the last Limitation Year beginning
before January 1, 1987, and disregarding any changes in the terms and
conditions of the plan made after May 6, 1986, but using the
Section 415 limitation applicable to the first Limitation Year beginning
on or after January 1, 1987.
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The annual addition for any limitation year beginning before
January 1, 1987 shall not be recomputed to treat all
employee contributions as annual additions.
(e)(5) "Employer" means the Employer and any Related Employer that
adopts this Plan. In the case of a group of employers which constitutes
a controlled group of corporations (as defined in Section 414(b) of the
Code as modified by Section 415(h)) or which constitutes trades or
businesses (whether or not incorporated) which are under common control
(as defined in Section 414(c) of the Code as modified by Section 415(h)
of the Code) or which constitutes an affiliated service group (as
defined in Section 414(m)of the Code) and any other entity required to
be aggregated with the Employer pursuant to regulations issued under
Section 414(o) of the Code, all such employers shall be considered a
single employer for purposes of applying the limitations of this Section
5.03.
(e)(6) "Excess Amount" means the excess of the Participant's Annual
Additions for the Limitation Year over the Maximum Permissible Amount.
(e)(7) "Individual Medical Account" means an individual medical account
as defined in Section 415(l)(2) of the Code.
(e)(8) "Limitation Year" means the Plan Year. All qualified plans of
the Employer must use the same Limitation Year. If the Limitation Year
is amended to a different 12-consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year in which
the amendment is made.
(e)(9) "Master or Prototype Plan" means a plan the form of which is the
subject of a favorable opinion letter from the Internal Revenue Service.
(e)(10) "Maximum Permissible Amount" means for a Limitation Year with
respect to any Participant the lesser of (A) $30,000 or, if greater, 25
percent of the dollar limitation set forth in Section 415(b)(1) of the
Code, as in effect for the Limitation Year, or (B) 25 percent of the
Participant's Compensation for the Limitation Year. If a short
Limitation Year is created because of an amendment changing the
Limitation Year to a different 12- consecutive-month period, the Maximum
Permissible Amount will not exceed the limitation in (e)(10)(A)
multiplied by a fraction whose numerator is the number of months in the
short Limitation Year and whose denominator is 12.
The compensation limitation referred to in subsection (e)(10)(B)
shall not apply to any contribution for medical benefits within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code after
separation from service which is otherwise treated as an Annual Addition
under Section 419A(d)(2) or Section 415(l)(1) of the Code.
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(e)(11) "Welfare Benefit Fund" means a welfare benefit fund as defined
in Section 419(e) of the Code.
ARTICLE 6. INVESTMENT OF CONTRIBUTIONS.
6.01. MANNER OF INVESTMENT. All contributions made to the Accounts of
Participants shall be held for investment by the Trustee. The Accounts of
Participants shall be invested and reinvested only in eligible investments
selected by the Employer in Section 1.14(b), subject to Section 14.10.
6.02. INVESTMENT DECISIONS. Investments shall be directed by the Employer or
by each Participant or both, in accordance with the Employer's election in
Section 1.14(a). Pursuant to Section 14.04, the Trustee shall have no
discretion or authority with respect to the investment of the Trust Fund.
(a) With respect to those Participant Accounts for which Employer
investment direction is elected, the Employer has the right to direct
the Trustee in writing with respect to the investment and reinvestment
of assets comprising the Trust Fund in the Fidelity Fund(s) designated
in Section 1.14(b) and as allowed by the Trustee.
(b) If Participant investment direction is elected, each Participant
shall direct the investment of his Account among the Fidelity Funds
listed in Section 1.14(b). The Participant shall file initial
investment instructions with the Administrator, on such form as the
Administrator may provide, selecting the Funds in which amounts credited
to his Account will be invested.
(1) Except as provided in this Section 6.02, only authorized
Plan contacts and the Participant shall have access to a
Participant's Account. While any balance remains in the Account of
a Participant after his death, the Beneficiary of the Participant
shall make decisions as to the investment of the Account as though
the Beneficiary were the Participant. To the extent required by a
qualified domestic relations order as defined in Section 414(p) of
the Code, an alternate payee shall make investment decisions with
respect to a Participant's Account as though such alternate payee
were the Participant.
(2) If the Trustee receives any contribution under the Plan as
to which investment instructions have not been provided, the Trustee
shall promptly notify the Administrator and the Administrator shall
take steps to elicit instructions from the Participant. The Trustee
shall credit any such contribution to the Participant's Account and
such amount shall be invested in the Fidelity Fund selected by the
Employer for such purposes or, absent Employer selection, in the
most conservative Fidelity Fund listed in Section 1.14(b), until
investment instructions have been received by the Trustee.
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(c) All dividends, interest, gains and distributions of any nature
received in respect of Fund Shares shall be reinvested in additional
shares of that Fidelity Fund.
(d) Expenses attributable to the acquisition of investments shall be
charged to the Account of the Participant for which such investment is
made.
6.03. PARTICIPANT DIRECTIONS TO TRUSTEE. All Participant initial investment
instructions filed with the Administrator pursuant to the provisions of Section
6.02 shall be promptly transmitted by the Administrator to the Trustee. A
Participant shall transmit subsequent investment instructions directly to the
Trustee by means of the telephone exchange system maintained by the Trustee for
such purposes. The method and frequency for change of investments will be
determined under the (a) rules applicable to the investments selected by the
Employer in Section 1.14(b) and (b) the additional rules of the Employer, if
any, limiting the frequency of investment changes, which are included in a
separate written administrative procedure adopted by the Employer and accepted
by the Trustee. The Trustee shall have no duty to inquire into the investment
decisions of a Participant or to advise him regarding the purchase, retention
or sale of assets credited to his Account.
ARTICLE 7. RIGHT TO BENEFITS.
7.01. NORMAL OR EARLY RETIREMENT. Each Participant who attains his Normal
Retirement Age or, if so provided by the Employer in Section 1.06(b), Early
Retirement Age, will have a 100-percent nonforfeitable interest in his Account
regardless of any vesting schedule elected in Section 1.07. If a Participant
retires upon the attainment of Normal or Early Retirement Age, such retirement
is referred to as a normal retirement. Upon his normal retirement the balance
of the Participant's Account, plus any amounts thereafter credited to his
Account, subject to the provisions of Section 7.08, will be distributed to him
in accordance with Article 8.
If a Participant separates from service before satisfying the age
requirements for early retirement, but has satisfied the service requirement,
the Participant will be entitled to elect an early retirement distribution upon
satisfaction of such age requirement.
7.02. LATE RETIREMENT. If a Participant continues in the service of the
Employer after attainment of Normal Retirement Age, he will continue to have a
100-percent nonforfeitable interest in his Account and will continue to
participate in the Plan until the date he establishes with the Employer for his
late retirement. Until he retires, he has a continuing election to receive all
or any portion of his Account. Upon the earlier of his late retirement or the
distribution date required under Section 8.08, the balance of his Account, plus
any amounts
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thereafter credited to his Account, subject to the provisions of Section 7.08,
will be distributed to him in accordance with Article 8 below.
7.03. DISABILITY RETIREMENT. If so provided by the Employer in Section
1.06(c), a Participant who becomes disabled will have a 100-percent
nonforfeitable interest in his Account, the balance of which Account, plus any
amounts thereafter credited to his Account, subject to the provisions of
Section 7.08, will be distributed to him in accordance with Article 8 below.
A Participant is considered disabled if he cannot engage in any substantial,
gainful activity because of a medically determinable physical or mental
impairment likely to result in death or to be of a continuous period of not
less than 12 months, and terminates his employment with the Employer. Such
termination of employment is referred to as a disability retirement.
Determinations with respect to disability shall be made by the Administrator
who may rely on the criteria set forth in Section 1.06(c) as evidence that the
Participant is disabled.
7.04. DEATH. Subject, if applicable, to Section 8.04, if a Participant dies
before the distribution of his Account has commenced, or before such
distribution has been completed, his Account shall become 100 percent vested
and his designated Beneficiary or Beneficiaries will be entitled to receive the
balance or remaining balance of his Account, plus any amounts thereafter
credited to his Account, subject to the provisions of Section 7.08.
Distribution to the Beneficiary or Beneficiaries will be made in accordance
with Article 8.
A Participant may designate a Beneficiary or Beneficiaries, or change
any prior designation of Beneficiary or Beneficiaries by giving notice to the
Administrator on a form designated by the Administrator. If more than one
person is designated as the Beneficiary, their respective interests shall be as
indicated on the designation form. In the case of a married Participant, the
Participant's spouse shall be deemed to be the designated Beneficiary unless
the Participant's spouse has consented to another designation in the manner
described in Section 8.03(d).
A copy of the death notice or other sufficient documentation must be
filed with and approved by the Administrator. If upon the death of the
Participant there is, in the opinion of the Administrator, no designated
Beneficiary for part or all of the Participant's Account, such amount will be
paid to his surviving spouse or, if none, to his estate (such spouse or estate
shall be deemed to be the Beneficiary for purposes of the Plan). If a
Beneficiary dies after benefits to such Beneficiary have commenced, but before
they have been completed, and, in the opinion of the Administrator, no person
has been designated to receive such remaining benefits, then such benefits
shall be paid in a lump sum to the deceased Beneficiary's estate.
7.05. OTHER TERMINATION OF EMPLOYMENT. If a Participant terminates his
employment for any reason other than death or normal, late, or disability
retirement, he will be entitled to a termination benefit equal to the sum of
(a) the vested percentage(s) of the value of the Matching and/or
Fixed/Discretionary Contributions to his Account, as
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adjusted for income, expense, gain, or loss, such percentage(s) determined in
accordance with the vesting schedule(s) selected by the Employer in Section
1.07, and (b) the value of the Deferral, Employee, Qualified Discretionary and
Rollover Contributions to his Account as adjusted for income, expense, gain or
loss. The amount payable under this Section 7.05 will be subject to the
provisions of Section 7.08 and will be distributed in accordance with Article 8
below.
7.06. SEPARATE ACCOUNT. If a distribution from a Participant's Account has
been made to him at a time when he has a nonforfeitable right to less than 100
percent of his Account, the vesting schedule in Section 1.07 will thereafter
apply only to amounts in his Account attributable to Employer contributions
allocated after such distribution. The balance of his Account immediately
after such distribution will be transferred to a separate account which will be
maintained for the purpose of determining his interest therein according to the
following provisions.
At any relevant time prior to a forfeiture of any portion thereof under
Section 7.07, a Participant's nonforfeitable interest in his Account held in a
separate account described in the preceding paragraph will be equal to P(AB +
(RxD))-(RxD), where P is the nonforfeitable percentage at the relevant time
determined under Section 7.05; AB is the account balance of the separate
account at the relevant time; D is the amount of the distribution; and R is the
ratio of the account balance at the relevant time to the account balance after
distribution. Following a forfeiture of any portion of such separate account
under Section 7.07 below, any balance in the Participant's separate account
will remain fully vested and nonforfeitable.
7.07. FORFEITURES. If a Participant terminates his employment, any portion of
his Account (including any amounts credited after his termination of
employment) not payable to him under Section 7.05 will be forfeited by him upon
the complete distribution to him of the vested portion of his Account, if any,
subject to the possibility of reinstatement as described in the following
paragraph. For purposes of this paragraph, if the value of an Employee's
vested Account balance is zero, the Employee shall be deemed to have received a
distribution of his vested interest immediately following termination of
employment. Such forfeitures will be applied to reduce the contributions of
the Employer next payable under the Plan (or administrative expenses of the
Plan); the forfeitures shall be held in a money market fund pending such
application.
If a Participant forfeits any portion of his Account under the preceding
paragraph but again becomes an Employee after such date, then the amount so
forfeited, without any adjustment for the earnings, expenses, or losses or
gains of the assets credited to his Account since the date forfeited, will be
recredited to his Account (or to a separate account as described in Section
7.06, if applicable) but only if he repays to the Plan before the earlier of
five years after the date of his reemployment or the date he incurs 5
consecutive 1-year breaks in service following the date of the distribution the
amount previously distributed to him, without interest, under Section 7.05. If
an
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Employee is deemed to receive a distribution pursuant to this Section 7.07, and
the Employee resumes employment before 5 consecutive 1-year breaks in service,
the Employee shall be deemed to have repaid such distribution on the date of
his reemployment. Upon such an actual or deemed repayment, the provisions of
the Plan (including Section 7.06) will thereafter apply as if no forfeiture had
occurred. The amount to be recredited pursuant to this paragraph will be
derived first from the forfeitures, if any, which as of the date of recrediting
have yet to be applied as provided in the preceding paragraph and, to the
extent such forfeitures are insufficient, from a special Employer contribution
to be made by the Employer.
If a Participant elects not to receive the nonforfeitable portion of his
Account following his termination of employment, the non-vested portion of his
Account shall be forfeited after the Participant has incurred five consecutive
1-year breaks in service as defined in Section 2.01(a)(33).
No forfeitures will occur solely as a result of a Participant's
withdrawal of Employee contributions.
7.08. ADJUSTMENT FOR INVESTMENT EXPERIENCE. If any distribution under this
Article 7 is not made in a single payment, the amount retained by the Trustee
after the distribution will be subject to adjustment until distributed to
reflect the income and gain or loss on the investments in which such amount is
invested and any expenses properly charged under the Plan and Trust to such
amounts.
7.09. PARTICIPANT LOANS. If permitted under Section 1.09, the Administrator
shall allow Participants to apply for a loan from the Plan, subject to the
following:
(a) Loan Application. All Plan loans shall be administered by the
Administrator. Applications for loans shall be made to the
Administrator on forms available from the Administrator. Loans shall be
made available to all Participants on a reasonably equivalent
basis. For this purpose, the term "Participant" means any Participant
or Beneficiary, including an alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, who is a
party-in-interest (as determined under ERISA Section 3(14)) with respect
to the Plan except no loans will be made to (1) an Employee who makes a
rollover contribution in accordance with Section 4.10 who has not
satisfied the requirements of Section 3.01 or (2) a shareholder-
employee or Owner-Employee. For purposes of this requirement, a
shareholder-employee means an employee or officer of an electing small
business (Subchapter S) corporation who owns (or is considered as owning
within the meaning of Section 318(a)(1) of the Code), on any day during
the taxable year of such corporation, more than 5% of the outstanding
stock of the corporation.
A Participant with an existing loan may not apply for another
loan until the existing loan is paid in full and may not refinance an
existing loan or attain a second loan for the purpose of paying
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off the existing loan. A Participant may not apply for more
than one loan during each Plan Year.
(b) Limitation of Loan Amount/Purpose of Loan. Loans shall not be
made available to Highly Compensated Employees in an amount greater
than the amount made available to other Employees. No loan to any
Participant or Beneficiary can be made to the extent that such loan
when added to the outstanding balance of all other loans to the
Participant or Beneficiary would exceed the lesser of (1) $50,000
reduced by the excess (if any) of the highest outstanding balance of
loans during the one-year period ending on the day before the loan
is made over the outstanding balance of loans from the plan on the
date the loan is made, or (2) one-half the present value of the
nonforfeitable Account of the Participant. For the purpose of the
above limitation, all loans from all plans of the Employer and
Related Employers are aggregated. A Participant may not request a
loan for less than $1,000. The Employer may provide that loans only
be made from certain contribution sources within Participant
Account(s) by notifying the Trustee in writing of the restricted
source.
Loans may be made for any purpose or if elected by the
Employer in Section 1.09(a), on account of hardship only. A loan
will be considered to be made on account of hardship only if made on
account of an immediate and heavy financial need described in
Section 7.10(b)(1).
(c) Terms of Loan. All loans shall bear a reasonable rate of
interest as determined by the Administrator based on the prevailing
interest rates charged by persons in the business of lending money
for loans which would be made under similar circumstances. The
determination of a reasonable rate of interest must be based on
appropriate regional factors unless the Plan is administered on a
national basis in which case the Administrator may establish a
uniform reasonable rate of interest applicable to all regions.
All loans shall by their terms require that repayment
(principal and interest) be amortized in level payments, not less
than quarterly, over a period not extending beyond five years from
the date of the loan unless such loan is for the purchase of a
Participant's primary residence, in which case the repayment period
may not extend beyond ten years from the date of the loan. A
Participant may prepay the outstanding loan balance prior to
maturity without penalty.
(d) Security. Loans must be secured by the Participant's
Accounts not to exceed 50 percent of the Participant's vested
Account. A Participant must obtain the consent of his or her
spouse, if any, to use a Participant Account as security for the
loan, if the provisions of Section 8.03 apply to the Participant.
Spousal consent shall be obtained no earlier than the beginning of
the 90-day period that ends on the date on which the loan is to be so
secured. The consent must be in writing, must acknowledge the
effect of the loan, and must be witnessed by a Plan representative
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or notary public. Such consent shall thereafter be binding with
respect to the consenting spouse or any subsequent spouse with
respect to that loan.
(e) Default. The Administrator shall treat a loan in default if
(1) any scheduled repayment remains unpaid more than 90 days
or
(2) there is an outstanding principal balance existing on a
loan after the last scheduled repayment date.
Upon default or termination of employment, the entire
outstanding principal and accrued interest shall be immediately
due and payable. If a distributable event (as defined by the
Code) has occurred, the Administrator shall direct the Trustee
to foreclose on the promissory note and offset the Participant's
vested Account by the outstanding balance of the loan. If a
distributable event has not occurred, the Administrator shall
direct the Trustee to foreclose on the promissory note and
offset the Participant's vested Account as soon as a
distributable event occurs.
(f) Pre-existing loans. The provision in paragraph (a) of
this Section 7.09 limiting a Participant to one outstanding loan
shall not apply to loans made before the Employer adopted this
prototype plan document. A Participant may not apply for a new
loan until all outstanding loans made before the Employer
adopted this prototype plan have been paid in full. The Trustee
may accept any loans made before the Employer adopted this
prototype plan document except such loans which require the
Trustee to hold as security for the loan property other than the
Participant's vested Account.
As of the effective date of amendment of this Plan in
Section 1.01(g)(2), the Trustee shall have the right to
reamortize the outstanding principal balance of any Participant loan
that is delinquent. Such reamortization shall be based upon the
remaining life of the loan and the original maturity date may
not be extended.
Notwithstanding any other provision of this Plan, the portion of
the Participant's vested Account used as a security interest held by
the plan by reason of a loan outstanding to the Participant shall be
taken into account for purposes of determining the amount of the
Account payable at the time of death or distribution, but only if
the reduction is used as repayment of the loan. If less than 100%
of the Participant's vested Account (determined without regard to
the preceding sentence) is payable to the surviving spouse, then the
Account shall be adjusted by first reducing the vested Account by
the amount of the security used as repayment of the loan, and then
determining the benefit payable to the surviving spouse.
No loan to any Participant or Beneficiary can be made to the
extent that such loan when added to the outstanding balance of all
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other loans to the Participant or Beneficiary would exceed the
lesser of (1) $50,000 reduced by the excess (if any) of the highest
outstanding balance of loans during the one-year period ending on
the day before the loan is made over the outstanding balance of
loans from the plan on the date the loan is made or (2) one-half the
present value of the nonforfeitable Account of the Participant. For
the purpose of the above limitation, all loans from all plans of the
Employer and Related Employers are aggregated.
7.10. IN-SERVICE/HARDSHIP WITHDRAWALS. Subject to the provisions of Article
8, a Participant shall not be permitted to withdraw any Employer or Employee
Contributions (and earnings thereon) prior to retirement or termination of
employment, except as follows:
(a) AGE 59 1/2. If permitted under Section 1.11(b), a Participant
who has attained the age of 59 1/2 is permitted to withdraw upon request all or
any portion of the Accounts specified by the Employer in 1.11(b).
(b) HARDSHIP. If permitted under Section 1.10, a Participant may
apply to the Administrator to withdraw some or all of his Deferral
Contributions (and earnings thereon accrued as of December 31, 1988) and, if
applicable, Rollover Contributions and such other amounts allowed by a
predecessor plan, if such withdrawal is made on account of a hardship. For
purposes of this Section, a distribution is made on account of hardship if made
on account of an immediate and heavy financial need of the Employee where such
Employee lacks other available resources. Determinations with respect to
hardship shall be made by the Administrator and shall be conclusive for
purposes of the Plan, and shall be based on the following special rules:
(1) The following are the only financial needs considered immediate
and heavy: expenses incurred or necessary for medical care (within
the meaning of Section 213(d) of the Code) of the Employee, the
Employee's spouse, children, or dependents; the purchase (excluding
mortgage payments) of a principal residence for the Employee; payment
of tuition and related educational fees for the next twelve (12)
months of post-secondary education for the Employee, the Employee's
spouse, children or dependents; or the need to prevent the eviction
of the Employee from, or a foreclosure on the mortgage of, the
Employee's principal residence.
(2) A distribution will be considered as necessary to satisfy an
immediate and heavy financial need of the Employee only if:
(i) The Employee has obtained all distributions,
other than the hardship distributions, and all nontaxable
(at the time of the loan) loans currently available under all
plans maintained by the Employer;
(ii) The Employee suspends Deferral Contributions and
Employee Contributions to the Plan for the 12-month period
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following the date of his hardship distribution. The suspension
must also apply to all elective contributions and Employee
Contributions to all other qualified plans and non-qualified
plans maintained by the Employer, other than any mandatory
employer contribution portion of a defined benefit plan,
including stock option, stock purchase and other similar plans,
but not including health and welfare benefit plans (other than
the cash or deferred arrangement portion of a cafeteria plan);
(iii) The distribution is not in excess of the amount of an
immediate and heavy financial need (including amounts necessary
to pay any Federal, state or local income taxes or penalties
reasonably anticipated to result from the distribution); and
(iv) The Employee agrees to limit Deferral
Contributions (elective contributions)to the Plan and any other
qualified plan maintained by the Employer for the Employee's
taxable year immediately following the taxable year of the
hardship distribution to the applicable limit under Section
402(g) of the Code for such taxable year less the amount of such
Employee's Deferral Contributions for the taxable year of the
hardship distribution.
(3) A Participant must obtain the consent of his or her spouse,
if any, to obtain a hardship withdrawal, if the provisions of Section
8.03 apply to the Participant.
(c) EMPLOYEE CONTRIBUTIONS. A Participant may elect to withdraw, in
cash, up to one hundred percent of the amount then credited to his
Employee Contribution Account. Such withdrawals shall be limited to one
(1) per Plan Year unless this prototype plan document is an amendment of
a prior plan document, in which case the rules and restrictions
governing Employee Contribution withdrawals, if any, are incorporated
herein by reference.
7.11. PRIOR PLAN IN-SERVICE DISTRIBUTION RULES. If designated by the Employer
in Section 1.11(b), a Participant shall be entitled to withdraw at anytime
prior to his termination of employment, subject to the provisions of Article 8
and the prior plan, any vested Employer Contributions maintained in a
Participant's Account for the specified period of time.
ARTICLE 8. DISTRIBUTION OF BENEFITS PAYABLE AFTER TERMINATION OF SERVICE.
8.01. DISTRIBUTION OF BENEFITS TO PARTICIPANTS AND BENEFICIARIES.
(a) Distributions from the Trust to a Participant or to the
Beneficiary of the Participant shall be made in a lump sum in cash or,
if elected by the Employer in Section 1.11, under a systematic
withdrawal plan (installment(s)) upon retirement, death,
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disability, or other termination of employment, unless another form
of distribution is required or permitted in accordance with
paragraph (d) of this Section 8.01 or Sections 1.11(c), 8.02, 8.03,
8.04 or 11.02. A distribution may be made in Fund Shares, at the
election of the Participant, pursuant to the qualifying rollover of
such distribution to a Fidelity Investments individual retirement
account.
(b) Distributions under a systematic withdrawal plan must be made in
substantially equal annual, or more frequent, installments, in cash,
over a period certain which does not extend beyond the life
expectancy of the Participant or the joint life expectancies of the
Participant and his Beneficiary, or, if the Participant dies prior
to the commencement of his benefits the life expectancy of the
Participant's Beneficiary, as further described in Section 8.04.
(c) Notwithstanding the provisions of Section 8.01(b) above, if a
Participant's Account is, and at the time of any prior
distribution(s) was, $3,500 or less, the balance of such Account
shall be distributed in a lump sum as soon as practicable following
retirement, disability, death or other termination of employment.
(d) This paragraph (d) applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election under
this Article 8, a distributee may elect, at the time and in the
manner prescribed by the Administrator, to have any portion of an
eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct rollover.
The following definitions shall apply for purposes of this paragraph
(d):
(1) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code;
and the portion of any distribution that is not includable in
gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(2) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in Section 408(a) of the
Code, an individual retirement annuity described in Section
408(b) of the Code, an annuity plan described in Section 403(a)
of the Code, or a qualified trust described in Section 401(a) of
the Code, that accepts the distributee's eligible rollover
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distribution. 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.
(3) Distributee: A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving spouse and the Employee's or former Employee's spouse
or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of the
Code, are distributees with regard to the interest of the spouse
or former spouse.
(4) Direct rollover: A direct rollover is a payment by the plan
to the eligible retirement plan specified by the distributee.
8.02. ANNUITY DISTRIBUTIONS. If so provided in Section 1.11(c), a Participant
may elect distributions made in whole or in part in the form of an annuity
contract subject to the provisions of Section 8.03.
(a) An annuity contract distributed under the Plan must be purchased
from an insurance company and must be nontransferable. The terms of
an annuity contract shall comply with the requirements of the Plan
and distributions under such contract shall be made in accordance
with Section 401(a)(9) of the Code and the regulations thereunder.
(b) The payment period of an annuity contract distributed to the
Participant pursuant to this Section may be as long as the
Participant lives. If the annuity is payable to the Participant and
his spouse or designated Beneficiary, the payment period of an
annuity contract may be for as long as either the Participant or his
spouse or designated Beneficiary lives. Such an annuity may provide
for an annuity certain feature for a period not exceeding the life
expectancy of the Participant. If the annuity is payable to the
Participant and his spouse such period may not exceed the joint life
and last survivor expectancy of the Participant and his spouse, or,
if the annuity is payable to the Participant and a designated
Beneficiary, the joint life and last survivor expectancy of the
Participant and such Beneficiary. If the Participant dies prior to
the commencement of his benefits, the payment period of an annuity
contract distributed to the Beneficiary of the Participant may be as
long as the Participant's Beneficiary lives, and may provide for an
annuity certain feature for a period not exceeding the life
expectancy of the Beneficiary. Any annuity contract distributed
under the Plan must provide for nonincreasing payments.
8.03. JOINT AND SURVIVOR ANNUITIES/PRERETIREMENT SURVIVOR ANNUITIES.
(a) Application. The provisions of this Section supersede any
conflicting provisions of the Plan; however, paragraph (b) of this
Section shall not apply if the Participant's Account does not exceed
or at the time of any prior distribution did not exceed
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$3,500. A Participant is described in this Section only if (i) the
Participant has elected distribution of his Account in the form of
an Annuity Contract in accordance with Section 8.02, or (ii) the
Trustee has directly or indirectly received a transfer of assets
from another plan (including a predecessor plan) to which Section
401(a)(11) of the Code applies with respect to such Participant.
(b) Retirement Annuity. Unless the Participant elects to waive
the application of this subsection in a manner satisfying the
requirements of subsection (d) below, to the extent applicable to
the Participant, within the 90-day period preceding his Annuity
Starting Date (which election may be revoked, and if revoked,
remade, at any time in such period), the vested Account due any
Participant to whom this subsection (b) applies will be paid to him
by the purchase and delivery to him of an annuity contract described
in Section 8.02 providing a life annuity only form of benefit or, if
the Participant is married as of his Annuity Starting Date,
providing an immediate annuity for the life of the Participant with
a survivor annuity for the life of the Participant's spouse
(determined as of the date of distribution of the contract) which is
50 percent of the amount of the annuity which is payable during the
joint lives of the Participant and such spouse. The Participant may
elect to receive distribution of his benefits in the form of such
annuity as of the earliest date on which he could elect to receive
retirement benefits under the Plan. Within the period beginning 90
days prior to the Participant's Annuity Starting Date and ending 30
days prior to such Date, the Administrator will provide such
Participant with a written explanation of (1) the terms and
conditions of the annuity contract described herein, (2) the
Participant's to make, and the effect of, an election to waive
application of this subsection, (3) the rights of the Participant's
spouse under subsection (d), and (4) the right to revoke and the
period of time necessary to revoke the election to waive application
of this subsection.
(c) Annuity Death Benefit. Unless the Participant elects to
waive the application of this subsection in a manner satisfying the
requirements of subsection (d) below at any time within the
applicable election period (which election may be revoked, and if
revoked, remade, at any time in such period), if a married
Participant to whom this Section applies dies before his Annuity
Starting Date, then notwithstanding any designation of a Beneficiary
to the contrary, 50 percent of his vested Account will be applied to
purchase an annuity contract described in Section 8.02 providing an
annuity for the life of the Participant's surviving spouse, which
contract will then be promptly distributed to such spouse. In lieu
of the purchase of such an annuity contract, the spouse may elect in
writing to receive distributions under the Plan as if he or she had
been designated by the Participant as his Beneficiary with respect
to 50 percent of his Account. For purposes of this subsection, the
applicable election period will commence on the first day of the
Plan Year in which the Participant attains age 35 and will end on
the date of the
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Participant's death, provided that in the case of a Participant who
terminates his employment the applicable election period with
respect to benefits accrued prior to the date of such termination
will in no event commence later than the date of his termination of
employment. A Participant may elect to waive the application of
this subsection prior to the Plan Year in which he attains age 35,
provided that any such waiver will cease to be effective as of the
first day of the Plan Year in which the Participant attains age 35.
The Administrator will provide a Participant to whom this
subsection applies with a written explanation with respect to the
annuity death benefit described in this subsection (c) comparable to
that required under subsection (b) above. Such explanation shall be
furnished within whichever of the following periods ends last: (1)
the period beginning with the first day of the Plan Year in which
the Participant reaches age 32 and ending with the end of the Plan
Year preceding the Plan Year in which he reaches age 35, (2) a
reasonable period ending after the Employee becomes a Participant,
(3) a reasonable period ending after this Section 8.04 first becomes
applicable to the Participant in accordance with Section 8.04(a),
(4) in the case of a Participant who separates from service before
age 35, a reasonable period of time ending after separation from
service. For purposes of the preceding sentence, the two-year
period beginning one year prior to the date of the event described
in clause (2), (3) or (4), whichever is applicable, and ending one
year after such date shall be considered reasonable, provided, that
in the case of a Participant who separates from service under (4)
above and subsequently recommences employment with the Employer, the
applicable period for such Participant shall be redetermined in
accordance with this subsection.
(d) Requirements of Elections. This subsection will be satisfied
with respect to a waiver or designation which is required to satisfy
this subsection if such waiver or designation is in writing and
either
(1) the Participant's spouse consents thereto in writing, which
consent must acknowledge the effect of such waiver or
designation and be witnessed by a notary public or Plan
representative, or
(2) the Participant establishes to the satisfaction of the
Administrator that the consent of the Participant's spouse
cannot be obtained because there is no spouse, because the
spouse cannot be located, or because of such other circumstances
as the Secretary of Treasury may prescribe.
Any consent by a spouse, or establishment that the consent of
a spouse may not be obtained, will be effective only with
respect to a specific Beneficiary (including any class of
Beneficiaries or any contingent Beneficiaries) or form of
benefits identified in the Participant's waiver or
designation, unless the consent of the
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by the Participant without any requirement of further consent by
the spouse. A consent which permits such designations by the
Participant shall acknowledge that the spouse has the right to
limit consent to a specific Beneficiary and form of benefits and
that the spouse voluntarily elects to relinquish both such
rights. A consent by a spouse shall be irrevocable once made.
Any such consent, or establishment that such consent may not
be obtained, will be effective only with respect to such spouse.
For purposes of subsections (b) and (c) above, no consent of a
spouse shall be valid unless the notice required by whichever
subsection is applicable has been provided to the Participant.
(e) Former Spouse. For purposes of this Section 8.03, a former
spouse of a Participant will be treated as the spouse or surviving
spouse of the Participant, and a current spouse will not be so
treated, to the extent required under a qualified domestic relations
order, as defined in Section 414(p) of the Code.
(f) Vested Account Balance. For purposes of this Section, vested
Account shall include the aggregate value of the Participant's
vested Account derived from Employer and Employee Contributions
(including rollovers), whether vested before or upon death. The
provisions of this Section shall apply to a Participant who is
vested in amounts attributable to Employer contributions, Employee
Contributions, or both, upon death or at the time of distribution.
8.04 INSTALLMENT DISTRIBUTIONS. This Section shall be interpreted and applied
in accordance with the regulations under Section 401(a)(9) of the Code,
including the minimum distribution incidental benefit requirement of Section
1.401(a)(9)- 2 of the Proposed Treasury Regulations, or any successor
regulations of similar import.
(a) In General. If a Participant's benefit may be distributed in
accordance with Section 8.01(b), the amount to be distributed for
each calendar year for which a minimum distribution is required
shall be at least an amount equal to the quotient obtained by
dividing the Participant's interest in his Account by the life
expectancy of the Participant or Beneficiary or the joint life and
last survivor expectancy of the Participant and his Beneficiary,
whichever is applicable. For calendar years beginning before
January 1, 1989, if a Participant's Beneficiary is not his spouse,
the method of distribution selected must insure that at least 50
percent of the present value of the amount available for
distribution is paid within the life expectancy of the Participant.
For calendar years beginning after December 31, 1988, the amount to
be distributed for each calendar year shall not be less than an
amount equal to the quotient obtained by dividing the Participant's
interest in his Account by the lesser of (1) the applicable life
expectancy under Section 8.01(b), or (2) if a Participant's
Beneficiary is not his spouse, the applicable divisor determined
under Section 1.401(a)(9)-2, Q&A 4 of the Proposed Treasury
Regulations, or any successor regulations of similar import.
Distributions after the death of the Participant shall be made
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using the applicable life expectancy under (1) above, without regard
to Section 1.401(a)(9)-2 of such regulations.
The minimum distribution required under this subsection
(a) for the calendar year immediately preceding the calendar year in
which the Participant's required beginning date, as determined under
Section 8.08(b), occurs shall be made on or before the Participant's
required beginning date, as so determined. Minimum distributions
for other calendar years shall be made on or before the close of
such calendar year.
(b) Additional Requirements for Distributions After Death of
Participant.
(1) Distribution beginning before Death. If the Participant
dies before distribution of his benefits has begun,
distributions shall be made in accordance with the provisions of
this paragraph. Distributions under Section 8.01(a) shall be
completed by the close of the calendar year in which the fifth
anniversary of the death of the Participant occurs.
Distributions under Section 8.01(b) shall commence, if the
Beneficiary is not the Participant's spouse, not later than the
close of the calendar year immediately following the calendar
year in which the death of the Participant occurs.
Distributions under Section 8.01(b) to a Beneficiary who is the
Participant's surviving spouse shall commence not later than the
close of the calendar year in which the Participant would have
attained age 70 1/2 or, if later, the close of the calendar year
immediately following the calendar year in which the death of
the Participant occurs. In the event such spouse dies prior to
the date distribution to him or her commences, he or she will be
treated for purposes of this subsection (other than the
preceding sentence) as if he or she were the Participant. If
the Participant has not designated a Beneficiary, or the
Participant or Beneficiary has not effectively selected a method
of distribution, distribution of the Participant's benefit shall
be completed by the close of the calendar year in which the
fifth anniversary of the death of the Participant occurs.
Any amount paid to a child of the Participant will be treated as
if it had been paid to the surviving spouse if the amount
becomes payable to the surviving spouse when the child reaches
the age of majority.
For purposes of this subsection (b)(1), the life expectancy of a
Beneficiary who is the Participant's surviving spouse shall be
recalculated annually unless the Participant's spouse
irrevocably elects otherwise prior to the time distributions are
required to begin. Life expectancy shall be computed in
accordance with the provisions of subsection (a) above.
(2) Distribution beginning after Death. If the Participant dies
after distribution of his benefits has begun, distributions to
the Participant's Beneficiary will be made at least as
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rapidly as under the method of distribution being used as of the
date of the Participant's death.
For purposes of this Section 8.04(b), distribution of a
Participant's interest in his Account will be considered to begin as
of the Participant's required beginning date, as determined under
Section 8.08(b). If distribution in the form of an annuity
irrevocably commences prior to such date, distribution will be
considered to begin as of the actual date distribution commences.
(c) Life Expectancy. For purposes of this Section, life expectancy
shall be recalculated annually in the case of the Participant or a
Beneficiary who is the Participant's spouse unless the Participant
or Beneficiary irrevocably elects otherwise prior to the time
distributions are required to begin. If not recalculated in
accordance with the foregoing, life expectancy shall be calculated
using the attained age of the Participant or Beneficiary, whichever
is applicable, as of such individual's birth date in the first year
for which a minimum distribution is required reduced by one for each
elapsed calendar year since the date life expectancy was first
calculated. For purposes of this Section, life expectancy and joint
life and last survivor expectancy shall be computed by use of the
expected return multiples in Table V and VI of section 1.72-9 of the
income tax Regulations.
A Participant's interest in his Account for purposes of this
Section 8.04 shall be determined as of the last valuation date in
the calendar year immediately preceding the calendar year for which
a minimum distribution is required, increased by the amount of any
contributions allocated to, and decreased by any distributions from,
such Account after the valuation date. Any distribution for the
first year for which a minimum distribution is required made after
the close of such year shall be treated as if made prior to the
close of such year.
8.05. IMMEDIATE DISTRIBUTIONS. If the Account distributable to a Participant
exceeds, or at the time of any prior distribution exceeded, $3,500, no
distribution will be made to the Participant before he reaches his Normal
Retirement Age (or age 62, if later), unless the written consent of the
Participant has been obtained. Such consent shall be made in writing within
the 90-day period ending on the Participant's Annuity Starting Date. Within
the period beginning 90 days before the Participant's Annuity Starting Date and
ending 30 days before such Date, the Administrator will provide such
Participant with written notice comparable to the notice described in Section
8.03(b) containing a general description of the material features and an
explanation of the relative values of the optional forms of benefit available
under the Plan and informing the Participant of his right to defer receipt of
the distribution until his Normal Retirement Age (or age 62, if later).
The consent of the Participant's spouse must also be obtained if the
Participant is subject to the provisions of Section 8.03(a), unless the
distribution will be made in the form of the applicable retirement
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annuity contract described in Section 8.03(b). A spouse's consent to early
distribution, if required, must satisfy the requirements of Section 8.03(d).
Neither the consent of the Participant nor the Participant's spouse shall
be required to the extent that a distribution is required to satisfy Section
401(a)(9) or Section 415 of the Code. In addition, upon termination of the Plan
if it does not offer an annuity option (purchased from a commercial provider)
and if the Employer or any Related Employer does not maintain another defined
contribution plan (other than an employee stock ownership plan as defined in
Code Section 4975(e)(7)) the Participant's Account will, without the
Participant's consent, be distributed to the Participant. However, if any
Related Employer maintains another defined contribution plan (other than an
employee stock ownership plan as defined in Section 4975(e)(7) of the Code)
then the Participant's Account will be transferred, without the Participant's
consent, to the other plan if the Participant does not consent to an immediate
distribution.
8.06. DETERMINATION OF METHOD OF DISTRIBUTION. The Participant will determine
the method of distribution of benefits to himself and may determine the method
of distribution to his Beneficiary. Such determination will be made prior to
the time benefits become payable under the Plan. If the Participant does not
determine the method of distribution to his Beneficiary or if the Participant
permits his Beneficiary to override his determination, the Beneficiary, in the
event of the Participant's death, will determine the method of distribution of
benefits to himself as if he were the Participant. A determination by the
Beneficiary must be made no later than the close of the calendar year in which
distribution would be required to begin under Section 8.04(b) or, if earlier,
the close of the calendar year in which the fifth anniversary of the death of
the Participant occurs.
8.07. NOTICE TO TRUSTEE. The Administrator will notify the Trustee in writing
whenever any Participant or Beneficiary is entitled to receive benefits under
the Plan. The Administrator's notice shall indicate the form of benefits that
such Participant or Beneficiary shall receive and (in the case of distributions
to a Participant) the name of any designated Beneficiary or Beneficiaries.
8.08. TIME OF DISTRIBUTION. In no event will distribution to a Participant be
made latest than the earlier of the dates described in (a) and (b) below:
(a) Absent the consent of the Participant (and his spouse, if
appropriate), the 60th day after the close of the Plan Year in which
occurs the later of the date on which the Participant attains age
65, the date on which the Participant ceases to be employed by the
Employer, or the 10th anniversary of the year in which the
Participant commenced participation in the Plan; and
(b) April 1 of the calendar year first following the calendar year
in which the Participant attains age 70 1/2 or, in the case of a
Participant who had attained age 70 1/2 before January 1, 1988,
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the required beginning date determined in accordance with (1) or (2)
below:
(1) The required beginning date of a Participant who is not a
5-percent owner is the first day of April of the calendar year
following the calendar year in which the later of retirement or
attainment of age 70 1/2 occurs.
(2) The required beginning date of a Participant who is a 5-percent
owner during any year beginning after December 31, 1979, is the
first day of April following the later of
(A) the calendar year in which the Participant attains age 70
1/2, or
(B) the earlier of the calendar year with or within which
ends the Plan Year in which the Participant becomes a
5-percent owner, or the calendar year in which the
Participant retires.
Notwithstanding the foregoing, in the case of a Participant who attained
age 70 1/2 during 1988 and who had not retired prior to January 1, 1989, the
required beginning date described in this paragraph shall be April 1, 1990.
Notwithstanding (a) above, the failure of a Participant (and spouse) to
consent to a distribution while a benefit is immediately distributable, within
the meaning of Section 8.05, shall be deemed to be an election to defer
commencement of payment of any benefit sufficient to satisfy (a) above.
Once distributions have begun to a 5-percent owner under (b) above, they
must continue to be distributed, even if the Participant ceases to be a
5-percent owner in a subsequent year.
For purposes of (b) above, a Participant is treated as a 5-percent owner
if such Participant is a 5-percent owner as defined in Section 416(i) of the
Code (determined in accordance with Section 416 but without regard to whether
the Plan is top-heavy) at any time during the Plan Year ending with or within
the calendar year in which such owner attains age 66 1/2 or any subsequent Plan
Year.
The Administrator shall notify the Trustee in writing whenever a
distribution is necessary in order to comply with the minimum distribution
rules set forth in this Section.
8.09. WHEREABOUTS OF PARTICIPANTS AND BENEFICIARIES. The Administrator will
at all times be responsible for determining the whereabouts of each Participant
or Beneficiary who may be entitled to benefits under the Plan and will at all
times be responsible for instructing the Trustee in writing as to the current
address of each such Participant or Beneficiary. The Trustee will be entitled
to rely on the latest written statement received from the Administrator as to
such addresses. The Trustee will be under no duty to make any distributions
under the Plan
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unless and until it has received written instructions from the Administrator
satisfactory to the Trustee containing the name and address of the distributee,
the time when the distribution is to occur, and the form which the distribution
will take. Notwithstanding the foregoing, if the Trustee attempts to make a
distribution in accordance with the Administrator's instructions but is unable
to make such distribution because the whereabouts of the distributee is
unknown, the Trustee will notify the Administrator of such situation and
thereafter the Trustee will be under no duty to make any further distributions
to such distributee until it receives further written instructions from the
Administrator. If a benefit is forfeited because the Administrator determines
that the Participant or Beneficiary cannot be found, such benefit will be
reinstated by the Sponsor if a claim is filed by the Participant or Beneficiary
with the Administrator and the Administrator confirms the claim to the Sponsor.
ARTICLE 9. TOP-HEAVY PROVISIONS.
9.01 APPLICATION. If the Plan is or becomes a Top-Heavy Plan in any Plan Year
or is automatically deemed to be Top- Heavy in accordance with the Employer's
election in Section 1.12(a)(1) of the Adoption Agreement, the provisions of
this Article 9 shall supersede any conflicting provision in the Plan.
9.02 DEFINITIONS. For purposes of this Article 9, the following terms have
the meanings set forth below:
(a) Key Employee. Any Employee or former Employee (and the Beneficiary of
any such Employee) who at any time during the determination period was (1)
an officer of the Employer whose annual Compensation exceeds 50 percent of
the dollar limitation under Section 415(b)(1)(A) of the Code, (2) an owner
(or considered an owner under Section 318 of the Code) of one of the ten
largest interests in the Employer if such individual's annual Compensation
exceeds the dollar limitation under Section 415(c)(1)(A) of the Code, (3)
a 5-percent owner of the Employer, or (4) a 1-percent owner of the
Employer who has annual Compensation of more than $150,000. For purposes
of this paragraph, the determination period is the Plan Year containing
the Determination Date and the four preceding Plan Years. The
determination of who is a Key Employee shall be made in accordance with
Section 416(i)(1) of the Code and the regulations thereunder. Annual
Compensation means compensation as defined in Section 5.03(e)(2), but
including amounts contributed by the Employer pursuant to a salary
reduction agreement which are excludable from the employee's gross income
under Section 125, Section 402(a)(8), and Section 403(b) of the Code.
(b) Top-Heavy Plan. The Plan is a Top-Heavy Plan if any of the
following conditions exists:
(1) the Top-Heavy Ratio for the Plan exceeds 60 percent and the
Plan is not part of any Required Aggregation Group or Permissive
Aggregation Group,
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(2) the Plan is a part of a Required Aggregation Group but not
part of a Permissive Aggregation Group and the Top-Heavy Ratio for
the Required Aggregation Group exceeds 60 percent, or
(3) the Plan is a part of a Required Aggregation Group and a
Permissive Aggregation Group and the Top- Heavy Ratio for both
Groups exceeds 60 percent.
(c) Top-Heavy Ratio.
(1) With respect to this Plan, or with respect to any Required
Aggregation Group or Permissive Aggregation Group that consists
solely of defined contribution plans (including any simplified
employee pension plans) and the Employer has not maintained any
defined benefit plan which during the 5-year period ending on the
determination date(s) has or has had accrued benefits, the Top-Heavy
Ratio is a fraction, the numerator of which is the sum of the
account balances of all Key Employees under the plans as of the
Determination Date (including any part of any account balance
distributed in the 5-year period ending on the Determination Date),
and the denominator of which is the sum of all account balances
(including any part of any account balance distributed in the 5-year
period ending on the Determination Date) of all participants under
the plans as of the Determination Date. Both the numerator and
denominator of the Top-Heavy Ratio shall be increased, to the extent
required by Section 416 of the Code, to reflect any contribution
which is due but unpaid as of the Determination Date.
(2) With respect to any Required Aggregation Group or Permissive
Aggregation Group that includes one or more defined benefit plans
which, during the 5-year period ending on the Determination Date,
has covered or could cover a Participant in this Plan, the Top-Heavy
Ratio is a fraction, the numerator of which is the sum of the
account balances under the defined contribution plans for all Key
Employees and the present value of accrued benefits under the
defined benefit plans for all Key Employees, and the denominator of
which is the sum of the account balances under the defined
contribution plans for all participants and the present value of
accrued benefits under the defined benefit plans for all
participants. Both the numerator and denominator of the Top-Heavy
Ratio shall be increased for any distribution of an account balance
or an accrued benefit made in the 5-year period ending on the
Determination Date and any contribution due but unpaid as of the
Determination Date.
(3) For purposes of (1) and (2) above, the value of Accounts and the
present value of accrued benefits will be determined as of the most
recent Valuation Date that falls within or ends with the 12-month
period ending on the Determination Date, except as provided in
Section 416 of the Code and the regulations thereunder for the first
and second plan years of a defined benefit plan. The Account and
accrued benefits of a Participant
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(A) who is not a Key Employee but who was a Key Employee in a prior
year, or (B) who has not been credited with at least one Hour of
Service with the Employer at any time during the 5-year period
ending on the Determination Date, will be disregarded. The
calculation of the Top-Heavy Ratio, and the extent to which
distributions, rollovers, and transfers are taken into account,
shall be made in accordance with Section 416 of the Code and the
regulations thereunder. Deductible employee contributions shall not
be taken into account for purposes of computing the Top-Heavy Ratio.
When aggregating plans, the value of Accounts and accrued benefits
shall be calculated with reference to the Determination Dates that
fall within the same calendar year.
For purposes of determining if the Plan, or any other plan
included in a Required Aggregation Group of which this Plan is a
part, is a Top-Heavy Plan, the accrued benefit in a defined benefit
plan of an Employee other than a Key Employee shall be determined
under (i) the method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Employer, or (ii) if
there is no such method, as if such benefit accrued not more rapidly
than the slowest accrual rate permitted under the fractional accrual
rate of Section 411(b)(1)(C) of the Code.
(d) Permissive Aggregation Group. The Required Aggregation Group plus any
other qualified plans of the Employer or a Related Employer which,
when considered as a group with the Required Aggregation Group, would
continue to satisfy the requirements of Sections 401(a)(4) and 410 of the
Code.
(e) Required Aggregation Group.
(1) Each qualified plan of the Employer or Related Employer in which
at least one Key Employee participates, or has participated at
any time during the determination period (regardless of whether the
plan has terminated), and
(2) any other qualified plan of the Employer or Related Employer
which enables a plan described in (1) above to meet the requirements
of Sections 401(a)(4) or 410 of the Code.
(f) Determination Date. For any Plan Year of the Plan subsequent to
the first Plan Year, the last day of the preceding Plan Year. For the
first Plan Year of the Plan, the last day of that Plan Year.
(g) Valuation Date. The Determination Date.
(h) Present Value. Present value shall be based only on the
interest rate and mortality table specified in the Adoption
Agreement.
9.03. MINIMUM CONTRIBUTION.
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(a) Except as otherwise provided in (b) and (c) below, the
Fixed/Discretionary Contributions made on behalf of any Participant
who is not a Key Employee shall not be less than the lesser of 3
percent (or such other percent elected by the Employer in Section
1.12(c)) of such Participant's Compensation or, in the case where
the Employer has no defined benefit plan which designates this Plan
to satisfy Section 401 of the Code, the largest percentage of
Employer contributions, as a percentage of the first $200,000 of the
Key Employee's Compensation, made on behalf of any Key Employee for
that year. If the Employer selected the Integrated Formula in
Section 1.05(a)(2), the minimum contribution shall be determined
under paragraph (e) of this Section 9.03. Further, the minimum
contribution under this Section 9.03 shall be made even though,
under other Plan provisions, the Participant would not otherwise be
entitled to receive a contribution, or would have received a lesser
contribution for the year, because (1) the Participant failed to
complete 1,000 Hours of Service or any equivalent service
requirement provided in the Adoption Agreement; or (2) the
Participant's Compensation was less than a stated amount.
(b) The provisions of (a) above shall not apply to any Participant
who was not employed by the Employer on the last day of the Plan
Year.
(c) The Employer contributions for the Plan Year made on behalf of
each Participant who is not a Key Employee and who is a participant
in a defined benefit plan maintained by the Employer shall not be
less than 5 percent of such Participant's Compensation, unless the
Employer has provided in Section 1.12(c) that the minimum
contribution requirement will be met in the other plan or plans of
the Employer.
(d) The minimum contribution required under (a) above (to the extent
required to be nonforfeitable under Section 416(b) of the Code) may
not be forfeited under Section 411(a)(3)(B) or 411(a)(3)(D) of the
Code.
(e) If the Employer elected an Integrated Formula in Section
1.05(a)(2), the allocation steps in Section 4.06(b)(2) shall be
preceded by the following steps:
(1) The Discretionary Employer Contributions will be
allocated to each eligible Participant (as determined under
this Section 9.03) in the ratio that the Participant's
Compensation bears to all Participants' Compensation, but not in
excess of 3%(or such other percent elected by the Employer in
Section 1.12(c).
(2) Any Discretionary Employer Contributions remaining
after (e)(1) above will be allocated to each eligible
Participant in the ratio that the Participant's Excess
Compensation for the Plan Year bears to the Excess Compensation
of all eligible Participants, but not in excess of 3%(or such
other percent elected by the Employer in Section 1.12(c)).
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9.04. ADJUSTMENT TO THE LIMITATION ON CONTRIBUTIONS AND BENEFITS. If this
Plan is in Top-Heavy status, the number 100 shall be substituted for the number
125 in subsections (e)(3) and (e)(4) of Section 5.03. However, this
substitution shall not take effect with respect to this Plan in any Plan Year
in which the following requirements are satisfied:
(a) The Employer contributions for such Plan Year made on behalf of
each Participant who is not a Key Employee and who is a participant
in a defined benefit plan maintained by the Employer is not less
than 7 1/2 percent of such Participant's Compensation.
(b) The sum of the present value as of the Determination Date of (1)
the aggregate accounts of all Key Employees under all defined
contribution plans of the Employer and (2) the cumulative accrued
benefits of all Key Employees under all defined benefit plans of the
Employer does not exceed 90 percent of the same amounts determined
for all Participants under all plans of the Employer that are
Top-Heavy Plans, excluding Accounts and accrued benefits for
Employees who formerly were but are no longer Key Employees.
The substitutions of the number 100 for 125 shall not take
effect in any Limitation Year with respect to any Participant for
whom no benefits are accrued or contributions made for such Year.
9.05. MINIMUM VESTING. For any Plan Year in which the Plan is a Top-Heavy
Plan and all Plan Years thereafter, the Top- Heavy vesting schedule elected in
Section 1.12(d) will automatically apply to the Plan. The Top-Heavy vesting
schedule applies to all benefits within the meaning of Section 411(a)(7) of the
Code except those attributable to Employee Contributions or those already
subject to a vesting schedule which vests at least as rapidly in all cases as
the schedule elected in Section 1.12(d), including benefits accrued before the
Plan becomes a Top-Heavy Plan. Further, no decrease in a Participant's
nonforfeitable percentage may occur in the event the Plan's status as a
Top-Heavy Plan changes for any Plan Year. However, this Section 9.05 does not
apply to the Account of any Employee who does not have an Hour of Service after
the Plan has initially become a Top-Heavy Plan and such Employee's Account
attributable to Employer Contributions will be determined without regard to
this Section 9.05.
ARTICLE 10. AMENDMENT AND TERMINATION.
10.01 AMENDMENT BY EMPLOYER. The Employer reserves the authority, subject to
the provisions of Article 1 and Section 10.03, to amend the Plan:
(a) Changes to Elections Contained in the Adoption Agreement. By
filing with the Trustee an amended Adoption Agreement, executed by
the Employer only, on which said Employer has indicated a change or
changes in provisions previously elected by it. Such changes are to
be effective on the effective date of such amended Adoption
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Agreement except that retroactive changes to a previous election or
elections pursuant to the regulations issued under Section 401(a)(4)
of the Code shall be permitted. Any such change notwithstanding, no
Participant's Account shall be reduced by such change below the
amount to which the Participant would have been entitled if he had
voluntarily left the employ of the Employer immediately prior to the
date of the change. The Employer may from time to time make any
amendment to the Plan that may be necessary to satisfy Sections 415
or 416 of the Code because of the required aggregation of multiple
plans by completing overridingplan language in the Adoption
Agreement. The Employer may also add certain model amendments
published by the Internal Revenue Service which specifically provide
that their adoption will not cause the Plan to be treated as an
individually designed plan; or
(b) Other Changes. By amending any provision of the Plan for any
reason other than those specified in (a) above. However, upon
making such amendment, including a waiver of the minimum funding
requirement under Section 412(d) of the Code, the Employer may no
longer participate in this prototype plan arrangement and will be
deemed to have an individually designed plan. Following such
amendment, the Trustee may transfer the assets of the Trust to the
trust forming part of such newly adopted plan upon receipt of
sufficient evidence (such as a determination letter or opinion
letter from the Internal Revenue Service or an opinion of counsel
satisfactory to the Trustee) that such trust will be a qualified
trust under the Code.
10.02. AMENDMENT BY PROTOTYPE SPONSOR. The Prototype Sponsor may in its
discretion amend the Plan or the Adoption Agreement at any time, subject to the
provisions of Article 1 and Section 10.03, and provided that the Prototype
Sponsor mails a copy of such amendment to the Employer at its last known
address as shown on the books of the Prototype Sponsor.
10.03. AMENDMENTS AFFECTING VESTED AND/OR ACCRUED BENEFITS.
(a) Except as permitted by Section 10.04, no amendment to the Plan
shall be effective to the extent that it has the effect of
decreasing a Participant's Account or eliminating an optional form
of benefit with respect to benefits attributable to service before
the amendment. Furthermore, if the vesting schedule of the Plan is
amended, the nonforfeitable interest of a Participant in his
Account, determined as of the later of the date the amendment is
adopted or the date it becomes effective, will not be less than the
Participant's nonforfeitable interest in his Account determined
without regard to such amendment.
(b) If the Plan's vesting schedule is amended, including any
amendment resulting from a change to or from Top-Heavy Plan status,
or the Plan is amended in any way that directly or indirectly
affects the computation of a Participant's nonforfeitable interest
in his Account, each Participant with at least three (3) Years of
Service for Vesting with the Employer may elect, within a
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reasonable period after the adoption of the amendment, to have the
nonforfeitable percentage of his Account computed under the Plan
without regard to such amendment. The Participant's election may be
made within 60 days from the latest of (1) the date the amendment is
adopted, (2) the date the amendment becomes effective, or (3) the
date the Participant is issued written notice of the amendment by
the Employer or the Administrator.
10.04. RETROACTIVE AMENDMENTS. An amendment made by the Prototype Sponsor in
accordance with Section 10.02 may be made effective on a date prior to the
first day of the Plan Year in which it is adopted if such amendment is
necessary or appropriate to enable the Plan and Trust to satisfy the applicable
requirements of the Code or to conform the Plan to any change in federal law,
or to any regulations or ruling thereunder. Any retroactive amendment by the
Employer shall be subject to the provisions of Section 10.01.
10.05. TERMINATION. The Employer has adopted the Plan with the intention and
expectation that contributions will be continued indefinitely. However, said
Employer has no obligation or liability whatsoever to maintain the Plan for any
length of time and may discontinue contributions under the Plan or terminate
the Plan at any time by written notice delivered to the Trustee without any
liability hereunder for any such discontinuance or termination.
10.06. DISTRIBUTION UPON TERMINATION OF THE PLAN. Upon termination or partial
termination of the Plan or complete discontinuance of contributions thereunder,
each Participant (including a terminated Participant with respect to amounts
not previously forfeited by him) who is affected by such termination or partial
termination or discontinuance will have a fully vested interest in his Account,
and, subject to Section 4.05 and Article 8, the Trustee will distribute to each
Participant or other person entitled to distribution the balance of the
Participant's Account in a single lump sum payment. In the absence of such
instructions, the Trustee will notify the Administrator of such situation and
the Trustee will be under no duty to make any distributions under the Plan
until it receives written instructions from the Administrator. Upon the
completion of such distributions, the Trust will terminate, the Trustee will be
relieved from all liability under the Trust, and no Participant or other person
will have any claims thereunder, except as required by applicable law.
10.07. MERGER OR CONSOLIDATION OF PLAN; TRANSFER OF PLAN ASSETS. In case of
any merger or consolidation of the Plan with, or transfer of assets and
liabilities of the Plan to, any other plan, provision must be made so that each
Participant would, if the Plan then terminated, receive a benefit immediately
after the merger, consolidation or transfer which is equal to or greater than
the benefit he would have been entitled to receive immediately before the
merger, consolidation or transfer if the Plan had then terminated.
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ARTICLE 11. AMENDMENT AND CONTINUATION OF PREDECESSOR PLAN; TRANSFER OF
FUNDS TO OR FROM OTHER QUALIFIED PLANS.
11.01. AMENDMENT AND CONTINUATION OF PREDECESSOR PLAN. In the event the
Employer has previously established a plan (the "predecessor plan") which is a
defined contribution plan under the Code and which on the date of adoption of
the Plan meets the applicable requirements of section 401(a) of the Code, the
Employer may, in accordance with the provisions of the predecessor plan, amend
and continue the predecessor plan in the form of the Plan and become the
Employer hereunder, subject to the following:
(a) Subject to the provisions of the Plan, each individual who was a
Participant or former Participant in the predecessor plan
immediately prior to the effective date of such amendment and
continuation will become a Participant or former Participant in the
Plan;
(b) No election may be made under the vesting provisions of the
Adoption Agreement if such election would reduce the benefits of a
Participant under the Plan to less than the benefits to which he
would have been entitled if he voluntarily separated from the
service of the Employer immediately prior to such amendment and
continuation;
(c) No amendment to the Plan shall decrease a Participant's accrued
benefit or eliminate an optional form of benefit and if the
amendment of the predecessor plan in the form of the Plan results in
a change in the method of crediting service for vesting purposes
between the general method set forth in Section 2530.200b-2 of the
Department of Labor Regulations and the elapsed-time method in
Section 2.01(a)(33) of the Plan, each Participant with respect to
whom the method of crediting vesting service is changed shall be
treated in the manner set forth by the provisions of Section
1.410(a)-7(f)(1) of the Treasury Regulations which are incorporated
herein by reference;
(d) The amounts standing to the credit of a Participant's Account
immediately prior to such amendment and continuation which represent
the amounts properly attributable to (1) contributions by the
Participant and (2) contributions by the Employer and forfeitures
will constitute the opening balance of his Account or Accounts under
the Plan;
(e) Amounts being paid to a former Participant or to a Beneficiary
in accordance with the provisions of the predecessor plan will
continue to be paid in accordance with such provisions;
(f) Any election and waiver of the qualified pre-retirement annuity
in effect after August 23, 1984, under the predecessor plan
immediately before such amendment and continuation will be deemed a
valid election and waiver of Beneficiary under Section 8.04 if such
designation satisfies the requirements of Section 8.04(d), unless
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and until the Participant revokes such election and waiver
under the Plan; and
(g) Unless the Employer and the Trustee agree otherwise, all assets
of the predecessor trust will be deemed to be assets of the Trust as
of the effective date of such amendment. Such assets will be
invested by the Trustee as soon as reasonably practicable pursuant
to Article 6. The Employer agrees to assist the Trustee in any way
requested by the Trustee in order to facilitate the transfer of
assets from the predecessor trust to the Trust Fund.
11.02. TRANSFER OF FUNDS FROM AN EXISTING PLAN. The Employer may from time to
time direct the Trustee, in accordance with such rules as the Trustee may
establish, to accept cash, allowable Fund Shares or participant loan promissory
notes transferred for the benefit of Participants from a trust forming part of
another qualified plan under the Code, provided such plan is a defined
contribution plan. Such transferred assets will become assets of the Trust as
of the date they are received by the Trustee. Such transferred assets will be
credited to Participants' Accounts in accordance with their respective
interests immediately upon receipt by the Trustee. A Participant's interest
under the Plan in transferred assets which were fully vested and nonforfeitable
under the transferring plan will be fully vested and nonforfeitable at all
times. Such transferred assets will be invested by the Trustee in accordance
with the provisions of paragraph (g) of Section 11.01 as if such assets were
transferred from a predecessor plan. No transfer of assets in accordance with
this Section may cause a loss of an accrued or optional form of benefit
protected by Section 411(d)(6) of the Code.
11.03. ACCEPTANCE OF ASSETS BY TRUSTEE. The Trustee will not accept assets
which are not either in a medium proper for investment under the Plan, as set
forth in Section 1.14(b), or in cash. Such assets shall be accompanied by
written instructions showing separately the respective contributions by the
prior employer and by the Employee, and identifying the assets attributable to
such contributions. The Trustee shall establish such accounts as may be
necessary or appropriate to reflect such contributions under the Plan. The
Trustee shall hold such assets for investment in accordance with the provisions
of Article 6, and shall in accordance with the written instructions of the
Employer make appropriate credits to the Accounts of the Participants for whose
benefit assets have been transferred.
11.04. TRANSFER OF ASSETS FROM TRUST. The Employer may direct the Trustee to
transfer all or a specified portion of the Trust assets to any other plan or
plans maintained by the Employer or the employer or employers of a former
Participant or Participants, provided that the Trustee has received evidence
satisfactory to it that such other plan meets all applicable requirements of
the Code. The assets so transferred shall be accompanied by written
instructions from the Employer naming the persons for whose benefit such assets
have been transferred, showing separately the respective contributions by the
Employer and by each Participant, if any, and identifying the assets
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attributable to the various contributions. The Trustee shall have no further
liabilities with respect to assets so transferred.
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ARTICLE 12. MISCELLANEOUS.
12.01. COMMUNICATION TO PARTICIPANTS. The Plan will be communicated to all
Participants by the Employer promptly after the Plan is adopted.
12.02. LIMITATION OF RIGHTS. Neither the establishment of the Plan and the
Trust, nor any amendment thereof, nor the creation of any fund or account, nor
the payment of any benefits, will be construed as giving to any Participant or
other person any legal or equitable right against the Employer, Administrator
or Trustee, except as provided herein; and in no event will the terms of
employment or service of any Participant be modified or in any way affected
hereby. It is a condition of the Plan, and each Participant expressly agrees
by his participation herein, that each Participant will look solely to the
assets held in the Trust for the payment of any benefit to which he is entitled
under the Plan.
12.03. NONALIENABILITY OF BENEFITS AND QUALIFIED DOMESTIC RELATIONS ORDERS.
The benefits provided hereunder will not be subject to alienation, assignment,
garnishment, attachment, execution or levy of any kind, either voluntarily or
involuntarily, and any attempt to cause such benefits to be so subjected will
not be recognized, except to such extent as may be required by law. The
preceding sentence shall also apply to the creation, assignment, or recognition
of a right to any benefit payable with respect to a Participant pursuant to a
domestic relations order, unless such order is determined by the Plan
Administrator to be a qualified domestic relations order, as defined in Section
414(p) of the Code, or any domestic relations order entered before January 1,
1985. The Administrator must establish reasonable procedures to determine the
qualified status of a domestic relations order. Upon receiving a domestic
relations order, the Administrator will promptly notify the Participant and any
alternate payee named in the order, in writing, of the receipt of the order and
the Plan's procedures for determining the qualified status of the order.
Within a reasonable period of time after receiving the domestic relations
order, the Administrator must determine the qualified status of the order and
must notify the Participant and each alternate payee, in writing, of its
determination. The Administrator must provide notice under this paragraph by
mailing to the individual's address specified in the domestic relations order,
or in a manner consistent with the Department of Labor regulations.
If any portion of the Participant's Account is payable during the period
the Administrator is making its determination of the qualified status of the
domestic relations order, the Administrator must make a separate accounting of
the amounts payable. If the Administrator determines the order is a qualified
domestic relations order within 18 months of the date amounts first are payable
following receipt of the order, the Administrator will direct the Trustee to
distribute the payable amounts in accordance with the order. If the
Administrator does not make his determination of the qualified status of the
order within the 18-month determination period, the Administrator will direct
the Trustee to distribute the payable amounts in the manner the Plan would
distribute if the order did not exist and will apply the order
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prospectively if the Administrator later determines the order is a qualified
domestic relations order.
A domestic relations order will not fail to be deemed a qualified
domestic relations order merely because it requires the distribution or
segregation of all or part of a Participant's Account with respect to an
alternate payee prior to the Participant's earliest retirement age (as defined
in Section 414(p) of the Code) under the Plan. A distribution to an alternate
payee prior to the Participant's attainment of the earliest retirement age is
available only if (a) the order specifies distribution at that time and (b) if
the present value of the alternate payee's benefits under the Plan exceeds
$3,500, and the order requires, and the alternate payee consents to, a
distribution occurring prior to the Participant's attainment of earliest
retirement age.
12.04. FACILITY OF PAYMENT. In the event the Administrator determines, on the
basis of medical reports or other evidence satisfactory to the Administrator,
that the recipient of any benefit payments under the Plan is incapable of
handling his affairs by reason of minority, illness, infirmity or other
incapacity, the Administrator may direct the Trustee to disburse such payments
to a person or institution designated by a court which has jurisdiction over
such recipient or a person or institution otherwise having the legal authority
under state law for the care and control of such recipient. The receipt by
such person or institution of any such payments shall be complete acquittance
therefore, and any such payment to the extent thereof, shall discharge the
liability of the Trust for the payment of benefits hereunder to such recipient.
12.05. INFORMATION BETWEEN EMPLOYER AND TRUSTEE. The Employer agrees to
furnish the Trustee, and the Trustee agrees to furnish the Employer, with such
information relating to the Plan and Trust as may be required by the other in
order to carry out their respective duties hereunder, including without
limitation information required under the Code and any regulations issued or
forms adopted by the Treasury Department thereunder or under the provisions of
ERISA and any regulations issued or forms adopted by the Labor Department
thereunder.
12.06. EFFECT OF FAILURE TO QUALIFY UNDER CODE. Notwithstanding any other
provision contained herein, if the Employer fails to obtain or retain approval
of the Plan by the Internal Revenue Service as a qualified Plan under the Code,
the Employer may no longer participate in this prototype Plan arrangement and
will be deemed to have an individually designed plan.
12.07. NOTICES. Any notice or other communication in connection with this
Plan shall be deemed delivered in writing if addressed as provided below and if
either actually delivered at said address or, in the case of a letter, three
business days shall have elapsed after the same shall have been deposited in
the United States mails, first-class postage prepaid and registered or
certified:
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(a) If to the Employer or Administrator, to it at the address set
forth in the Adoption Agreement, to the attention of the person
specified to receive notice in the Adoption Agreement;
(b) If to the Trustee, to it at the address set forth in the
Adoption Agreement;
or, in each case at such other address as the addressee shall have specified by
written notice delivered in accordance with the foregoing to the addressor's
then effective notice address.
12.08. GOVERNING LAW. The Plan and the accompanying Adoption Agreement will
be construed, administered and enforced according to ERISA, and to the extent
not preempted thereby, the laws of the Commonwealth of Massachusetts.
ARTICLE 13. PLAN ADMINISTRATION.
13.01. POWERS AND RESPONSIBILITIES OF THE ADMINISTRATOR. The Administrator
has the full power and the full responsibility to administer the Plan in all of
its details, subject, however, to the requirements of ERISA. The
Administrator's powers and responsibilities include, but are not limited to,
the following:
(a) To make and enforce such rules and regulations as it deems
necessary or proper for the efficient administration of the Plan;
(b) To interpret the Plan, its interpretation thereof in good faith
to be final and conclusive on all persons claiming benefits under
the Plan;
(c) To decide all questions concerning the Plan and the eligibility
of any person to participate in the Plan;
(d) To administer the claims and review procedures specified in
Section 13.03;
(e) To compute the amount of benefits which will be payable to any
Participant, former Participant or Beneficiary in accordance with
the provisions of the Plan;
(f) To determine the person or persons to whom such benefits will be
paid;
(g) To authorize the payment of benefits and provide for the
distribution of Code Section 402(f) notices;
(h) To comply with the reporting and disclosure requirements of Part
1 of Subtitle B of Title I of ERISA;
(i) To appoint such agents, counsel, accountants, and consultants as
may be required to assist in administering the Plan;
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(j) By written instrument, to allocate and delegate its fiduciary
responsibilities in accordance with Section 405 of ERISA including
the formation of an Administrative Committee to administer the Plan;
(k) To provide bonding coverage as required under Section 412 of
ERISA.
13.02. NONDISCRIMINATORY EXERCISE OF AUTHORITY. Whenever, in the
administration of the Plan, any discretionary action by the Administrator is
required, the Administrator shall exercise its authority in a nondiscriminatory
manner so that all persons similarly situated will receive substantially the
same treatment.
13.03. CLAIMS AND REVIEW PROCEDURES.
(a) Claims Procedure. If any person believes he is being denied any
rights or benefits under the Plan, such person may file a claim in
writing with the Administrator. If any such claim is wholly or
partially denied, the Administrator will notify such person of its
decision in writing. Such notification will contain (1) specific
reasons for the denial, (2) specific reference to pertinent Plan
provisions, (3) a description of any additional material or
information necessary for such person to perfect such claim and an
explanation of why such material or information is necessary, and
(4) information as to the steps to be taken if the person wishes to
submit a request for review. Such notification will be given within
90 days after the claim is received by the Administrator (or within
180 days, if special circumstances require an extension of time for
processing the claim, and if written notice of such extension and
circumstances is given to such person within the initial 90-day
period). If such notification is not given within such period, the
claim will be considered denied as of the last day of such period
and such person may request a review of his claim.
(b) Review Procedure. Within 60 days after the date on which a
person receives a written notice of a denied claim (or, if
applicable, within 60 days after the date on which such denial is
considered to have occurred), such person (or his duly authorized
representative) may (1) file a written request with the
Administrator for a review of his denied claim and of pertinent
documents and (2) submit written issues and comments to the
Administrator. The Administrator will notify such person of its
decision in writing. Such notification will be written in a manner
calculated to be understood by such person and will contain specific
reasons for the decision as well as specific references to pertinent
Plan provisions. The decision on review will be made within 60 days
after the request for review is received by the Administrator (or
within 120 days, if special circumstances require an extension of
time for processing the request, such as an election by the
Administrator to hold a hearing, and if written notice of such
extension and circumstances is given to such person within the
initial 60-day period). If the decision on review is not made
within such period, the claim will be considered denied.
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13.04. NAMED FIDUCIARY. The Administrator is a "named fiduciary" for purposes
of Section 402(a)(1) of ERISA and has the powers and responsibilities with
respect to the management and operation of the Plan described herein.
13.05. COSTS OF ADMINISTRATION. Unless some or all are paid by the Employer,
all reasonable costs and expenses (including legal, accounting, and employee
communication fees) incurred by the Administrator and the Trustee in
administering the Plan and Trust will be paid first from the forfeitures (if
any) resulting under Section 7.07, then from the remaining Trust Fund. All
such costs and expenses paid from the Trust Fund will, unless allocable to the
Accounts of particular Participants, be charged against the Accounts of all
Participants on a prorata basis or in such other reasonable manner as may be
directed by the Employer.
ARTICLE 14. TRUST AGREEMENT.
14.01. ACCEPTANCE OF TRUST RESPONSIBILITIES. By executing the Adoption
Agreement, the Employer establishes a trust to hold the assets of the Plan. By
executing the Adoption Agreement, the Trustee agrees to accept the rights,
duties and responsibilities set forth in this Article 14.
14.02. ESTABLISHMENT OF TRUST FUND. A trust is hereby established under the
Plan and the Trustee will open and maintain a trust account for the Plan and,
as part thereof, Participants' Accounts for such individuals as the Employer
shall from time to time give written notice to the Trustee are Participants in
the Plan. The Trustee will accept and hold in the Trust Fund such
contributions on behalf of Participants as it may receive from time to time
from the Employer. The Trust Fund shall be fully invested and reinvested in
accordance with the applicable provisions of the Plan in Fund Shares or as
otherwise provided in Section 14.10.
14.03. EXCLUSIVE BENEFIT. The Trustee shall hold the assets of the Trust Fund
for the exclusive purpose of providing benefits to Participants and
Beneficiaries and defraying the reasonable expenses of administering the Plan.
No assets of the Plan shall revert to the Employer except as specifically
permitted by the terms of the Plan.
14.04. POWERS OF TRUSTEE. The Trustee shall have no discretion or authority
with respect to the investment of the Trust Fund but shall act solely as a
directed trustee of the funds contributed to it. In addition to and not in
limitation of such powers as the Trustee has by law or under any other
provisions of the Plan, the Trustee will have the following powers, each of
which the Trustee exercises solely as directed Trustee in accordance with the
written direction of the Employer except to the extent a Plan asset is subject
to Participant direction of investment and provided that no such power shall be
exercised in any manner inconsistent with the provisions of ERlSA:
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(a) to deal with all or any part of the Trust Fund and to invest all
or a part of the Trust Fund in investments available under the Plan, without
regard to the law of any state regarding proper investment;
(b) to retain uninvested such cash as it may deem necessary or
advisable, without liability for interest thereon, for the administration of
the Trust;
(c) to sell, convert, redeem, exchange, or otherwise dispose of all
or any part of the assets constituting the Trust Fund;
(d) to enforce by suit or otherwise, or to waive, its rights on
behalf of the Trust, and to defend claims asserted against it or the Trust,
provided that the Trustee is indemnified to its satisfaction against liability
and expenses;
(e) to employ such agents and counsel as may be reasonably necessary
in collecting, managing, administering, investing, distributing and protecting
the Trust Fund or the assets thereof and to pay them reasonable compensation;
(f) to compromise, adjust and settle any and all claims against or
in favor of it or the Trust;
(g) to oppose, or participate in and consent to the reorganization,
merger, consolidation, or readjustment of the finances of any enterprise, to
pay assessments and expenses in connection therewith, and to deposit securities
under deposit agreements;
(h) to apply for or purchase annuity contracts in accordance with
Section 8.02;
(i) to hold securities unregistered, or to register them in its own
name or in the name of nominees;
(j) to appoint custodians to hold investments within the
jurisdiction of the district courts of the United States and to deposit
securities with stock clearing corporations or depositories or similar
organizations;
(k) to make, execute, acknowledge and deliver any and all
instruments that it deems necessary or appropriate to carry out the powers
herein granted; and
(l) generally to exercise any of the powers of an owner with respect
to all or any part of the Trust Fund.
The Employer specifically acknowledges and authorizes that
affiliates of the Trustee may act as its agent in the performance of
ministerial, nonfiduciary duties under the Trust. The expenses and
compensation of such agent shall be paid by the Trustee.
The Trustee shall provide the Employer with reasonable notice of any
claim filed against the Plan or Trust or with regard to any related
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matter, or of any claim filed by the Trustee on behalf of the Plan or Trust or
with regard to any related matter.
14.05. ACCOUNTS. The Trustee will keep full accounts of all receipts and
disbursements and other transactions hereunder. Within 60 days after the close
of each Plan Year, within 60 days after termination of the Trust, and at such
other times as may be appropriate, the Trustee will determine the then net fair
market value of the Trust Fund as of the close of the Plan Year, as of the
termination of the Trust, or as of such other time, whichever is applicable,
and will render to the Employer and Administrator an account of its
administration of the Trust during the period since the last such accounting,
including all allocations made by it during such period.
14.06. APPROVING OF ACCOUNTS. To the extent permitted by law, the written
approval of any account by the Employer or Administrator will be final and
binding, as to all matters and transactions stated or shown therein, upon the
Employer, Administrator, Participants and all persons who then are or
thereafter become interested in the Trust. The failure of the Employer or
Administrator to notify the Trustee within six (6) months after the receipt of
any account of its objection to the account will, to the extent permitted by
law, be the equivalent of written approval. If the Employer or Administrator
files any objections within such six (6) month period with respect to any
matters or transactions stated or shown in the account, and the Employer or
Administrator and the Trustee cannot amicably settle the question raised by
such objections, the Trustee will have the right to have such questions settled
by judicial proceedings. Nothing herein contained will be construed so as to
deprive the Trustee of the right to have judicial settlement of its accounts.
In any proceeding for a judicial settlement of any account or for instructions,
the only necessary parties will be the Trustee, the Employer and the
Administrator.
14.07. DISTRIBUTION FROM TRUST FUND. The Trustee shall make such distribution
from the Trust Fund as the Employer or Administrator may in writing direct, as
provided by the terms of the Plan, upon certification by the Employer or
Administrator that the same is for the exclusive benefit of Participants or
their Beneficiaries, or for the payment of expenses of administering the Plan.
14.08. TRANSFER OF AMOUNTS FROM QUALIFIED PLAN. If the Plan provides that
amounts may be transferred to the Plan from another qualified plan or trust
under Section 401(a) of the Code, such transfer shall be made in accordance
with the provisions of the Plan and with such rules as may be established by
the Trustee. The Trustee will only accept assets which are in a medium proper
for investment under this agreement or in cash. Such amounts shall be
accompanied by written instructions showing separately the respective
contributions by the prior employer and the transferring Employee, and
identifying the assets attributable to such contributions. The Trustee shall
hold such assets for investment in accordance with the provisions of this
agreement.
14.09. TRANSFER OF ASSETS FROM TRUST. Subject to the provisions of the Plan,
the Employer may direct the Trustee to transfer all or a specified
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portion of the Trust assets to any other plan or plans maintained by the
Employer or the employer or employers of a former Participant or Participants,
provided that the Trustee has received evidence satisfactory to it that such
other plan meets all applicable requirements of the Code. The assets so
transferred shall be accompanied by written instructions from the Employer
naming the persons for whose benefit such assets have been transferred, showing
separately the respective contributions by the Employer and by each
Participant, if any, and identifying the assets attributable to the various
contributions. The Trustee shall have no further liabilities with respect to
assets so transferred.
14.10. SEPARATE TRUST OR FUND FOR EXISTING PLAN ASSETS. With the consent of
the Trustee, the Employer may maintain a trust or fund (including a group
annuity contract) under this prototype plan document separate from the Trust
Fund for Plan assets purchased prior to the adoption of this prototype plan
document which are not Fidelity Funds listed in Section 1.14(b). The Trustee
shall have no authority and no responsibility for the Plan assets held in such
separate trust or fund. The duties and responsibilities of the trustee of a
separate trust shall be provided by a separate trust agreement, between the
Employer and the trustee.
Notwithstanding the preceding paragraph, the Trustee or an affiliate of
the Trustee may agree in writing to provide ministerial recordkeeping services
for guaranteed investment contracts held in the separate trust or fund. The
guaranteed investment contract(s) shall be valued as directed by the Employer
or the Trustee of the separate trust.
The trustee of the separate trust (hereafter referred to as "trustee")
will be the owner of any insurance contract purchased prior to the adoption of
this prototype plan document. The insurance contract(s) must provide that
proceeds will be payable to the trustee; however the trustee shall be required
to pay over all proceeds of the contract(s) to the Participant's designated
Beneficiary in accordance with the distribution provisions of this plan. A
Participant's spouse will be the designated Beneficiary of the proceeds in all
circumstances unless a qualified election has been made in accordance with
Article 8. Under no circumstances shall the trust retain any part of the
proceeds. In the event of any conflict between the terms of this plan and the
terms of any insurance contract purchased hereunder, the plan provisions shall
control.
Any life insurance contracts held in the Trust Fund or in the separate
trust are subject to the following limits:
(a) Ordinary life - For purposes of these incidental
insurance provisions, ordinary life insurance contracts are contracts
with both nondecreasing death benefits and nonincreasing premiums. If
such contracts are held, less than 1/2 of the aggregate employer
contributions allocated to any Participant will be used to pay the
premiums attributable to them.
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(b) Term and universal life - No more than 1/4 of the aggregate
employer contributions allocated to any participant will be used to pay
the premiums on term life insurance contracts, universal life insurance
contracts, and all other life insurance contracts which are not ordinary
life.
(c) Combination - The sum of 1/2 of the ordinary life insurance
premiums and all other life insurance premiums will not exceed 1/4 of
the aggregate employer contributions allocated to any Participant.
14.11. VOTING; DELIVERY OF INFORMATION. The Trustee shall deliver, or cause
to be executed and delivered, to the Employer or Plan Administrator all
notices, prospectuses, financial statements, proxies and proxy soliciting
materials received by the Trustee relating to securities held by the Trust or,
if applicable, deliver these materials to the appropriate Participant or the
Beneficiary of a deceased Participant. The Trustee shall not vote any
securities held by the Trust except in accordance with the written instructions
of the Employer, Participant or the Beneficiary of the Participant, if the
Participant is deceased; however, the Trustee may, in the absence of
instructions, vote "present" for the sole purpose of allowing such shares to be
counted for establishment of a quorum at a shareholders' meeting. The Trustee
shall have no duty to solicit instructions from Participants, Beneficiaries, or
the Employer.
14.12. COMPENSATION AND EXPENSES OF TRUSTEE. The Trustee's fee for performing
its duties hereunder will be such reasonable amounts as the Trustee may from
time to time specify by written agreement with the Employer. Such fee, any
taxes of any kind which may be levied or assessed upon or with respect to the
Trust Fund, and any and all expenses, including without limitation legal fees
and expenses of administrative and judicial proceedings, reasonably incurred by
the Trustee in connection with its duties and responsibilities hereunder will,
unless some or all have been paid by said Employer, be paid first from
forfeitures resulting under Section 7.07, then from the remaining Trust Fund
and will, unless allocable to the Accounts of particular Participants, be
charged against the respective Accounts of all Participants, in such reasonable
manner as the Trustee may determine.
14.13. RELIANCE BY TRUSTEE ON OTHER PERSONS. The Trustee may rely upon and
act upon any writing from any person authorized by the Employer or
Administrator to give instructions concerning the Plan and may conclusively
rely upon and be protected in acting upon any written order from the Employer
or Administrator or upon any other notice, request, consent, certificate, or
other instructions or paper reasonably believed by it to have been executed by
a duly authorized person, so long as it acts in good faith in taking or
omitting to take any such action. The Trustee need not inquire as to the basis
in fact of any statement in writing received from the Employer or
Administrator.
The Trustee will be entitled to rely on the latest certificate it has
received from the Employer or Administrator as to any person or persons
authorized to act for the Employer or Administrator hereunder
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and to sign on behalf of the Employer or Administrator any directions or
instructions, until it receives from the Employer or Administrator written
notice that such authority has been revoked.
Notwithstanding any provision contained herein, the Trustee will be under
no duty to take any action with respect to any Participant's Account (other
than as specified herein) unless and until the Employer or Administrator
furnishes the Trustee with written instructions on a form acceptable to the
Trustee, and the Trustee agrees thereto in writing. The Trustee will not be
liable for any action taken pursuant to the Employer's or Administrator's
written instructions (nor for the collection of contributions under the Plan,
nor the purpose or propriety of any distribution made thereunder).
14.14. INDEMNIFICATION BY EMPLOYER. The Employer shall indemnify and save
harmless the Trustee from and against any and all liability to which the
Trustee may be subjected by reason of any act or conduct (except willful
misconduct or negligence) in its capacity as Trustee, including all expenses
reasonably incurred in its defense.
14.15. CONSULTATION BY TRUSTEE WITH COUNSEL. The Trustee may consult with
legal counsel (who may be but need not be counsel for the Employer or the
Administrator) concerning any question which may arise with respect to its
rights and duties under the Plan and Trust, and the opinion of such counsel
will, to the extent permitted by law, be full and complete protection in
respect of any action taken or omitted by the Trustee hereunder in good faith
and in accordance with the opinion of such counsel.
14.16. PERSONS DEALING WITH THE TRUSTEE. No person dealing with the Trustee
will be bound to see to the application of any money or property paid or
delivered to the Trustee or to inquire into the validity or propriety of any
transactions.
14.17. RESIGNATION OR REMOVAL OF TRUSTEE. The Trustee may resign at any time
by written notice to the Employer, which resignation shall be effective 60 days
after delivery to the Employer. The Trustee may be removed by the Employer by
written notice to the Trustee, which removal shall be effective 60 days after
delivery to the Trustee.
Upon resignation or removal of the Trustee, the Employer may appoint a
successor trustee. Any such successor trustee will, upon written acceptance of
his appointment, become vested with the estate, rights, powers, discretion,
duties and obligations of the Trustee hereunder as if he had been originally
named as Trustee in this Agreement.
Upon resignation or removal of the Trustee, the Employer will no longer
participate in this prototype plan and will be deemed to have adopted an
individually designed plan. In such event, the Employer shall appoint a
successor trustee within said 60-day period and the Trustee will transfer the
assets of the Trust to the successor trustee upon receipt of sufficient
evidence (such as a determination letter or opinion letter from the Internal
Revenue Service or an opinion of
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counsel satisfactory to the Trustee) that such trust will be a qualified trust
under the Code.
The appointment of a successor trustee shall be accomplished by delivery
to the Trustee of written notice that the Employer has appointed such successor
trustee, and written acceptance of such appointment by the successor trustee.
The Trustee may, upon transfer and delivery of the Trust Fund to a successor
trustee, reserve such reasonable amount as it shall deem necessary to provide
for its fees, compensation, costs and expenses, or for the payment of any other
liabilities chargeable against the Trust Fund for which it may be liable. The
Trustee shall not be liable for the acts or omissions of any successor trustee.
14.18. FISCAL YEAR OF THE TRUST. The fiscal year of the Trust will coincide
with the Plan Year.
14.19. DISCHARGE OF DUTIES BY FIDUCIARIES. The Trustee and the Employer and
any other fiduciary shall discharge their duties under the Plan and this Trust
Agreement solely in the interests of Participants and their Beneficiaries in
accordance with the requirements of ERISA.
14.20. AMENDMENT. In accordance with provisions of the Plan, and subject to
the limitations set forth therein, this Trust Agreement may be amended by an
instrument in writing signed by the Employer and the Trustee. No amendment to
this Trust Agreement shall divert any part of the Trust Fund to any purpose
other than as provided in Section 2 hereof.
14.21. PLAN TERMINATION. Upon termination or partial termination of the Plan
or complete discontinuance of contributions thereunder, the Trustee will make
distributions to the Participants or other persons entitled to distributions as
the Employer or Administrator directs in accordance with the provisions of the
Plan. In the absence of such instructions and unless the Plan otherwise
provides, the Trustee will notify the Employer or Administrator of such
situation and the Trustee will be under no duty to make any distributions under
the Plan until it receives written instructions from the Employer or
Administrator. Upon the completion of such distributions, the Trust will
terminate, the Trustee will be relieved from all liability under the Trust, and
no Participant or other person will have any claims thereunder, except as
required by applicable law.
14.22. PERMITTED REVERSION OF FUNDS TO EMPLOYER. If it is determined by the
Internal Revenue Service that the Plan does not initially qualify under Section
401 of the Code, all assets then held under the Plan will be returned by the
Trustee, as directed by the Administrator, to the Employer, but only if the
application for determination is made by the time prescribed by law for filing
the Employer's return for the taxable year in which the Plan was adopted or
such later date as may be prescribed by regulations. Such distribution will be
made within one year after the date the initial qualification is denied. Upon
such distribution the Plan will be considered to be rescinded and to be of no
force or effect.
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Contributions under the Plan are conditioned upon their deductibility
under Section 404 of the Code. In the event the deduction of a contribution
made by the Employer is disallowed under Section 404 of the Code, such
contribution (to the extent disallowed) must be returned to the Employer within
one year of the disallowance of the deduction.
Any contribution made by the Employer because of a mistake of fact must
be returned to the Employer within one year of the contribution.
14.23. GOVERNING LAW. This Trust Agreement will be construed, administered
and enforced according to ERISA and, to the extent not preempted thereby, the
laws of the Commonwealth of Massachusetts.
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CORPORATEPLAN FOR RETIREMENTSM
PROFIT SHARING/401(K) PLAN
FIDELITY BASIC PLAN DOCUMENT NO. 07
AMENDMENT ONE
SECTION 2.01(A)(7) "COMPENSATION" is amended to include:
In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provision of the plan to the contrary, for plan years
beginning on or after January 1, 1994, the annual compensation of each Employee
taken into account under the plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding
12 months, over which compensation is determined (determination period)
beginning in such calendar year. If a determination period consists of fewer
than 12 months, the OBRA '93 annual compensation will be multiplied by a
fraction, the numerator of which is the number of months in the determination
period, and the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in
this plan to the limitation under section 401(a)(17) of the Code shall mean the
OBRA '93 annual compensation limit set forth in this provision.
Notwithstanding 2.01(a)(7)(A), for purpose of Section 4.02 (Additional Limit on
Deferral Contributions) and Section 4.04 (Limit on Matching Contributions), the
Employer may use Compensation as defined in Section 5.03(e)(2) excluding
reimbursements or other expense allowances, fringe benefits (cash and
non-cash), moving expenses, deferred compensation and welfare benefits, but
including amounts that are not includable in the gross income of the
Participant under a salary reduction agreement by reason of the application of
Section 125, 402(a)(8), 402(h) or 403(b) of the Code.
If compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current plan
year, the compensation for that prior determination period is subject to the
OBRA '93 annual compensation limit in effect for that prior determination
period. For this purpose, for determination periods beginning before the first
day of the first plan year beginning on or after January 1, 1994, the OBRA '93
annual compensation limit is $150,000.
SECTION 8.01(D) "DISTRIBUTION OF BENEFITS TO PARTICIPANTS AND BENEFICIARIES" is
amended to include:
(5) If a distribution is one to which sections 401(a)(11) and 417
of the Internal Revenue Code do not apply, such distribution may commence less
than 30 days after the notice required under section 1.411(a)-11(c) of the
Income Tax Regulations is given, provided that:
(1) the administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after receiving
the notice to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular distribution option), and
(2) the Participant, after receiving the notice, affirmatively
elects a distribution.
