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401(k) Savings Plan - National Fiberstok Corp.
THE NATIONAL FIBERSTOK CORPORATION
401 (K) SAVINGS PLAN
(January 1, 1996 Restatement)
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TABLE OF CONTENTS
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INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II ELIGIBILITY AND PARTICIPATION . . . . . . . . . . . . . . 20
2.1 Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . 20
2.2 Participation. . . . . . . . . . . . . . . . . . . . . . . . 20
2.3 Beneficiary Designation. . . . . . . . . . . . . . . . . . . 21
2.4 Notification of Individual Account Balance . . . . . . . . . 22
ARTICLE III CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . 23
3.1 Employee Pre-Tax and Post-Tax Contributions. . . . . . . . . 23
3.2 Employer Matching Contributions. . . . . . . . . . . . . . . 28
3.3 Employer Discretionary Contributions . . . . . . . . . . . . 28
3.4 Rollover Contributions . . . . . . . . . . . . . . . . . . . 28
3.5 Maximum Deductible Contribution. . . . . . . . . . . . . . . 29
3.6 Actual Deferral Percentage Test. . . . . . . . . . . . . . . 29
3.7 Payment of Contributions to Trustee. . . . . . . . . . . . . 33
3.8 Participant Investment Direction . . . . . . . . . . . . . . 33
3.9 Matching Contribution Percentage Test. . . . . . . . . . . . 34
3.10 Multiple Use Restrictions. . . . . . . . . . . . . . . . . . 36
ARTICLE IV ALLOCATIONS TO INDIVIDUAL ACCOUNTS. . . . . . . . . . . . 37
4.1 Individual Accounts. . . . . . . . . . . . . . . . . . . . . 37
4.2 Allocation of Employee Pre-Tax and Post-Tax Contributions. . 37
4.3 Allocation of Employer Matching Contributions. . . . . . . . 38
4.4 Allocation of Employer Discretionary Contributions . . . . . 38
4.5 Allocation of Adjustment . . . . . . . . . . . . . . . . . . 38
4.6 (RESERVED) . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.7 Equitable Allocations. . . . . . . . . . . . . . . . . . . . 40
4.8 Maximum Additions. . . . . . . . . . . . . . . . . . . . . . 40
4.9 Multiple Plan Participation. . . . . . . . . . . . . . . . . 42
ARTICLE V DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . 44
5.1 Retirement . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.2 Death Before Retirement or Termination of Employment . . . . 44
5.3 Termination of Employment. . . . . . . . . . . . . . . . . . 45
5.4 Method of Payment. . . . . . . . . . . . . . . . . . . . . . 49
5.5 Benefits to Minors and Incompetents. . . . . . . . . . . . . 49
5.6 Payment of Benefits. . . . . . . . . . . . . . . . . . . . . 50
5.7 Direct Rollovers . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE VI LOANS AND WITHDRAWALS . . . . . . . . . . . . . . . . . . 54
6.1 Loans to Participants. . . . . . . . . . . . . . . . . . . . 54
6.2 Hardship Withdrawals . . . . . . . . . . . . . . . . . . . . 57
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ARTICLE VII FUNDING . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.1 Contributions. . . . . . . . . . . . . . . . . . . . . . . . 62
7.2 Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE VIII FIDUCIARIES . . . . . . . . . . . . . . . . . . . . . . . 64
8.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.2 Corporation. . . . . . . . . . . . . . . . . . . . . . . . . 65
8.3 Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.4 Committee. . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.5 Claims for Benefits. . . . . . . . . . . . . . . . . . . . . 69
8.6 Denial of Benefits - Review Procedure. . . . . . . . . . . . 70
8.7 Records. . . . . . . . . . . . . . . . . . . . . . . . . . . 71
8.8 Missing Persons. . . . . . . . . . . . . . . . . . . . . . . 72
8.9 Qualified Domestic Relations Orders. . . . . . . . . . . . . 72
ARTICLE IX AMENDMENT AND TERMINATION OF THE PLAN . . . . . . . . . . 75
9.1 Amendment of the Plan. . . . . . . . . . . . . . . . . . . . 75
9.2 Termination of the Plan. . . . . . . . . . . . . . . . . . . 75
ARTICLE X PROVISIONS RELATIVE TO EMPLOYERS INCLUDED IN PLAN . . . . 77
10.1 Method of Participation. . . . . . . . . . . . . . . . . . . 77
10.2 Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE XI TOP-HEAVY PROVISIONS. . . . . . . . . . . . . . . . . . . 79
11.1 Determination of Top-Heavy . . . . . . . . . . . . . . . . . 79
11.2 Top-Heavy Definitions. . . . . . . . . . . . . . . . . . . . 81
ARTICLE XII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 83
12.1 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 83
12.2 Construction . . . . . . . . . . . . . . . . . . . . . . . . 83
12.3 Administration Expenses. . . . . . . . . . . . . . . . . . . 83
12.4 Participant's's Rights; Acquittance. . . . . . . . . . . . . 83
12.5 Spendthrift Clause . . . . . . . . . . . . . . . . . . . . . 84
12.6 Merger, Consolidation or Transfer. . . . . . . . . . . . . . 84
12.7 Mistake of Fact. . . . . . . . . . . . . . . . . . . . . . . 84
12.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE XIII ADOPTION OF THE PLAN. . . . . . . . . . . . . . . . . . . 86
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INTRODUCTION
Effective January 1, 1992, National Fiberstok Corporation adopted The
National Fiberstok Corporation 401(k) Savings Plan and Trust Agreement (the
"Plan") to provide a system of pre-tax savings and profit sharing with its
employees thru a plan qualified under the Internal Revenue Code. The Plan was
amended several times, most recently by the Third Amendment which was
effective January 1, 1995. Effective January 1, 1996, the Plan is hereby
restated to consolidate the amendments made since its adoption.
It is intended that this Plan and its associated Trust Agreement meet
all the requirements of the Employee Retirement Income Security Act of 1974
and all requirements of Code Sections 401(a) and 401(k), and the Plan shall
be interpreted to comply with those statutes.
Notwithstanding any provision of this Plan, a person whose employment
terminated before January 1, 1996, shall have his rights determined under
this Plan as it read prior to this January 1, 1996 Restatement.
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ARTICLE I
DEFINITIONS
1.1. As used herein, unless otherwise required by the context, the
following words and phrases shall have the meanings indicated:
ACTUAL DEFERRAL PERCENTAGE - (a) (1) For each Plan Year, the average of
the ratios, calculated separately for each Eligible Employee in a specified
group, of (A) the amount of Employee Pre-Tax Contributions under Section
3.1(a) (which are attributable to Deferral Compensation that would have been
received by the Employee during such Plan Year but for his salary reduction
agreement) which are allocated to the Individual Account of an Eligible
Employee as of a date within such Plan year to (B) the Testing Compensation
of such Eligible Employee while an Eligible Employee for such Plan Year.
(2) Except as provided in regulations issued by the Secretary of
the Treasury, Actual Deferral Percentage shall be determined without regard
to whether any Pre-Tax Contributions are distributed under Section 3.1(c) (2)
(A). When calculating Actual Deferral Percentage for a Highly Compensated
Employee, all cash or deferred arrangements maintained by the Employer or an
Affiliate in which such Employee participates (other than those that may not
be permissively aggregated) shall be treated as one arrangement. All
elective contributions that are made under two or more plans that are
aggregated for purposes
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of Code Section 401(a)(4) or 410(b) (other than 410(b)(2)(A)(ii)) are to be
treated as made under a single plan.
(b) (1) In the case of a Highly Compensated Employee who is either
a 5% owner or one of the ten most highly compensated Employees and is thereby
subject to the family aggregation rules of Code Section 414(q) (6), the
Actual Deferral Percentage for the family group (which consists of a highly
Compensated Employee described in this sentence and his HC Family Members and
is treated as one Highly Compensated Employee) is determined by combining the
Employee Pre-Tax Contributions and Testing Compensation of all eligible HC
Family Members with those of the Highly Compensated Employee. Except to the
extent taken into account in the preceding sentence, the Employee Pre-Tax
Contributions and Testing Compensation of all HC Family Members are
disregarded in determining the Actual Deferral Percentages for the groups of
Highly Compensated Employees and non-highly compensated employees.
(2) For purposes of applying the dollar limit on Testing
Compensation, the family group described in paragraph (1) will be treated as
a single Highly Compensated Employee with a single Testing Compensation, and
the dollar limit will be allocated among the members of the family group in
proportion to each member's individual Testing Compensation. Solely for
purposes of the Testing Compensation rule in this paragraph (2), the term "HC
Family Member" shall include only the spouse of the employee and any lineal
descendants of the employee
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who have not attained age 19 before the close of the Plan Year in question.
(c) This definition shall be interpreted in accordance with
Treasury Regulations at Section 1.401(k)-1(b) and Code Section 401(k)(3), the
provisions of which are incorporated herein by reference.
ADJUSTMENT - The net increases and decreases in the value of an
Investment Option within the Fund during a Plan Year or other specified
period. Such increases and decreases shall include such items as realized or
unrealized investment gains or losses, investment income, and may include
expenses of administering the Fund and the Plan.
AFFILIATE - An organization which is not an Employer, but which must be
considered together with an Employer under Code Sections 414(b), (c), (m) or
(o).
ALLOCATION COMPENSATION - The Section 415 Compensation paid by an
Employer to a Participant during a Plan Year. Subject to the OBRA '93 annual
compensation limit under the definition of Section 415 Compensation,
Allocation Compensation shall also include all compensation which was not
included in a Participant's Section 415 Compensation during the Plan Year
because it was an Employee Pre-Tax Contribution under this Plan or because it
was a pre-tax salary reduction contribution to a Code Section 125 cafeteria
plan.
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BENEFICIARY - Any person designated by a Participant under Section 2.3
to receive such benefits as may become payable hereunder after the death of
such Participant.
BOARD - The Board of Directors of the Corporation.
CODE - The Internal Revenue Code of 1986, as amended.
COMMITTEE - The administrative committee provided for in Section 8.4.
CONTRIBUTIONS - Payments as provided herein by the Employer or
Participant to the Trustee for the purpose of providing the benefits under
this Plan.
CORPORATION - National Fiberstok Corporation, or any successor thereto.
The Corporation is the sponsor, named Fiduciary, and plan administrator of
the Plan for purposes of ERISA as it relates to the employees of each
Employer.
CURRENT BALANCE - In regard to a Participant's Individual Account or any
sub-Account thereof, as of any date, the Account balance as of the
immediately preceding Valuation Date, plus any Employee Pre-Tax, Employee
Post-Tax and Rollover Contributions made to the Fund since such Valuation
Date on behalf of such Participant, reduced by any distributions made to such
Participant since such Valuation Date.
DEFERRAL COMPENSATION - The basic compensation paid to an Employee by
the Employer for his services before any reduction for Employee Pre-Tax or
Post-Tax Contributions or contributions to a Code Section 125 cafeteria plan,
including overtime, bonuses and commissions, and excluding tips and taxable
or non-taxable
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fringe benefits including, but not limited to, employee loans, life
insurance, relocation expenses or personal use of company vehicles.
DISABLED - A Participant is considered Disabled when he is determined by
the Committee to have a physical or mental condition which is expected to be
permanent and which renders the Participant incapable of continuing as an
Employee.
EFFECTIVE DATE - The effective date of the Plan is January 1, 1992. The
effective date of this Restatement is January 1, 1996, except as otherwise
set forth herein.
ELIGIBLE EMPLOYEE - An Employee who satisfied the participation
requirements of Section 2.1.
EMPLOYEE - Any person employed by the Employer, excluding (1)
independent contractors, (2) any person who is covered by a collective
bargaining agreement where such agreement provides for a different retirement
plan, or where no provision is made for any retirement plan after good faith
bargaining between the Employer and employee representatives and (3) any
person who is excluded from participation hereunder by the terms of his
Employer's adoption of this Plan. No person who is a leased employee of an
employer within the meaning of Code Section 414(n), or who receives
compensation solely for service as a member of the Board, shall be eligible
to participate in this Plan.
EMPLOYEE PRE-TAX ACCOUNT - That portion of a Participant's Individual
Account attributable to the Employee
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Pre-Tax Contributions allocated to such Participant under Section 4.2(a) and
the Participant's proportionate share of any Adjustment attributable to his
Employee Pre-Tax Account.
EMPLOYEE PRE-TAX CONTRIBUTIONS - Contributions made to the Plan by the
Employer under Section 3.1(a) pursuant to a salary reduction agreement
entered into between the Employer and the Participant.
EMPLOYEE POST-TAX ACCOUNT - That portion of a Participant's Individual
Account attributable to the Employee Post-Tax Contributions allocated to such
Participant under Section 4.2(b) and the Participant's proportionate share of
any Adjustment attributable to his Employee Post-Tax Account.
EMPLOYEE POST-TAX CONTRIBUTIONS - Contributions made to the Plan by the
Participant under Section 3.1(d) pursuant to a voluntary contribution
agreement entered into between the Employer and the Participant.
EMPLOYER - Collectively or individually as the context may indicate, the
Corporation and any other entity which (1) must be considered together with
the Corporation under Code Section 414(b), (c) or (m), (2) the Board shall
have authorized to adopt the Plan and (3) by action of its own board of
directors shall have adopted the Plan and become signatory to the Trust
Agreement, or any successor to one or more of such entities.
EMPLOYER DISCRETIONARY ACCOUNT - That portion of a Participant's
Individual Account attributable to the Employer Discretionary Contributions
allocated to such Participant under
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Section 4.4 and the Participant's proportionate share of any Adjustment
attributable to his Employer Discretionary Account.
EMPLOYER DISCRETIONARY CONTRIBUTIONS - Contributions made to the Plan by
the Employer under Section 3.3.
EMPLOYER MATCHING ACCOUNT - That portion of a Participant's Individual
Account attributable to the Employer Matching Contributions allocated to such
Participant under Section 4.3 and the Participant's proportionate share of
any Adjustment attributable to his Employer Matching Account.
EMPLOYER MATCHING CONTRIBUTIONS - Contributions made to the Plan by the
Employer under Section 3.2.
FIDUCIARY - The Corporation, the Employer, the Trustee, the Committee
and any individual, corporation, firm or other entity which assumes, in
accordance with Article VIII, responsibilities of the Corporation, the
Employer, the Trustee or the Committee respecting management of the Plan or
the disposition of its assets.
HIGHLY COMPENSATED EMPLOYEE - (a) an Employee is a Highly Compensated
Employee with respect to a Plan Year if during that Plan Year the Employee
performs services for an Employer and
(1) is a 5-percent owner of the Employer,
(2) receives compensation from the Employer for the Plan Year in
excess of the Code Section 414(q)(1)(B) amount for the Plan Year,
(3) receives compensation from the Employer for the Plan Year in
excess of the Code Section 414 (q)(1)(C) amount
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for the Plan Year and is a member of the top paid group of employees of the
Employer within the meaning of Code Section 414(q)(4), or
(4) is an officer and receives compensation from the Employer for
the Plan Year that is greater than 50 percent of the dollar limitation in
effect under Code Section 415(b)(1)(A). If no officer satisfies the
compensation requirement for the Plan Year, the highest paid officer for such
Year shall be treated as a Highly Compensated Employee.
(b) For purposes of subsection (a), an Employee's compensation shall be
his Section 415 Compensation for a Plan Year, increased by the amount of his
Employee Pre-Tax Contributions during the Plan Year plus any pre-tax salary
reduction contributions he makes during the Plan Year to any Code Section 125
cafeteria plan sponsored by the Employer.
(c) If an Employee is a family member of either a 5-percent owner
(whether active or former) or a Highly Compensated Employee who is one of the
10 most highly paid employees of the Employer ranked on the basis of
compensation paid by the Employer during the Plan Year, then the family
member and the 5-percent owner or top-ten highly paid employee shall be
aggregated. In such case, the family member and the 5-percent owner or
top-ten highly paid Employee shall be treated as a single Employee receiving
compensation and Plan contributions or benefits equal to the sum of the
compensation and contributions or benefits of the family member and the
5-percent owner or top-ten highly paid
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Employee. For purposes of this subsection, family member includes the spouse,
lineal ascendants and descendants of the Employee or former Employee, and the
spouses of such lineal ascendants and descendants.
(d) 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 number of employees treated as officers and the compensation taken
into account, shall be made in accordance with Code Section 414(q) and T.Reg.
Section 1.414(q)-1T to the extent they are not inconsistent with the method
established in this definition.
HC FAMILY MEMBER - With respect to a Highly Compensated Employee who is
either a 5% owner or one of the ten most highly compensated Employees, the
spouse and the lineal ascendants and descendants (and spouses of such
ascendants and descendants) of any such Highly Compensated Employee.
HOURS OF SERVICE - The sum of:
(a) (1) Each hour of which an employee is paid, or entitled to
payment for the performance of duties for the Employer during the applicable
computation period.
(2) For employees for whom the Employer is not required by law
to maintain records of hours worked, paragraph (1) shall be applied as
follows:
(A) in the case of employees who are paid weekly or
bi-weekly, Hours of Service shall be determined on the basis of 45 hours per
week;
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(B) in the case of employees who are paid semi-monthly, Hours
of Service shall be determined on the basis of 95 hours per semi-monthly
period; and
(C) in the case of employees who are paid monthly, Hours of
Service shall be determined on the basis of 190 hours per month.
(b) Each hour for which an employee is paid or entitled to payment
by the Employer 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 (including
disability), layoff, jury duty or leave of absence. However, the
determination of hours under this subsection (b) shall be subject to the
following restrictions:
(1) No more than 501 hours shall be credited to an employee
during any single period during which the employee performs no duties
(whether or not such period occurs in a single computation period).
(2) No such hours shall be credited to an employee if payment
is made or due under a plan maintained solely for the purpose of complying
with applicable workers' compensation or unemployment or disability insurance
laws.
(3) Hours shall not be credited for a payment which solely
reimburses an employee for medical or medically related expenses incurred by
the employee.
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(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer provided, however,
that the same hours shall not be credited both under subsection (a) or (b)
above, as the case may be, and under this subsection (c).
(d) (1) Hours of Service shall not include any period during
which the Employee was employed by a predecessor of the Employer, unless the
predecessor's organization maintained the Plan or a predecessor plan. Hours
of Service shall be credited for service in the armed forces of the United
States to the extent required by federal law.
(2) Hours of Service under subsections (a) and (c) above shall
be determined in accordance with Department of Labor Regulations at 29 CFR
Section 2530.200b-2. Hours of Service hereunder shall be credited to the
appropriate computation period in accordance with Department of Labor
Regulations at 29 CFR Section 2530.200b-2(c).
INDIVIDUAL ACCOUNT - The aggregate of a Participant's Employee Pre-Tax
Account, Employee Post-Tax Account, Employer Matching Account, Employer
Discretionary Account and Rollover Account.
INVESTMENT OPTION - Any investment vehicle identified by the
Corporation. The Corporation may change the Investment Options at any time.
Loans to a Participant under Section 6.1 shall constitute a separate
Investment Option for that Participant.
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MATCHING CONTRIBUTION PERCENTAGE - (a) (1) For each Plan Year,
the average of the ratios, calculated separately for each Eligible Employee
in a specified group, of (A) the amount of Employer Matching Contributions
under Section 3.2 and Employee Post-Tax Contributions under Section 3.1(d)
which are allocated to the Employer Matching Account and Employee Post-Tax
Account of an Eligible Employee as of a date within such Plan Year to (B) the
Testing Compensation of such Eligible Employee while an Eligible Employee for
such Plan Year. To the extent permitted by Treasury Regulations at
Section 1.401(m)-1(b), the Corporation may elect to take Employee Pre-Tax
Contributions into account when determining Matching Contribution Percentage.
(2) When calculating Matching Contribution Percentage for a
Highly Compensated Employee, all arrangements subject to Code Section 401(m)
maintained by the Employer or an Affiliate in which such Employee
participates (other than those that may not be permissively aggregated) shall
be treated as one arrangement. All contributions that are made under two or
more plans that are aggregated for purposes of Code Sections 401(a)(4) or
410(b) (other than 410(b)(2)(A)(ii)) are to be treated as made under a single
plan.
(b) the special HC Family Member rules set forth in subsection (b)
of the definition of Actual Deferral Percentage shall also apply in
determining Matching Contribution Percentage.
(c) This definition shall be interpreted in accordance with
Treasury Regulations at Section 1.401(m)-1(a) and Code
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Section 401(m)(2), the provisions of which are incorporated herein by reference.
NORMAL RETIREMENT AGE - Age 65
ONE YEAR BREAK IN SERVICE - (a) A Plan Year during which an Employee
does not complete at least 501 Hours of Service.
(b) Solely to determine whether a One Year Break in Service has
occurred, an Employee who is absent from work for maternity or paternity
reasons shall receive credit for the Hours of Service which would otherwise
have been credited to such Employee but for such absence, or in any case in
which Hours of Service cannot be determined, eight Hours of Service per day
of such absence. In no event shall the number of Hours of Service credited
to an Employee under the preceding sentence exceed 501. For purposes of this
definition, an absence from work for maternity or paternity reasons means an
absence (1) by reason of the pregnancy of the Employee, (2) by reason of the
birth of a child of the Employee, (3) by reason of the placement of a child
with the Employee in connection with the adoption of such child by the
Employee, or (4) for purposes of caring for such child for a period beginning
immediately following such birth or placement. The Hours of Service credited
under this subsection (b) shall be credited in the Plan Year in which the
absence begins if the crediting is necessary to prevent a One Year Break in
Service in that Year, or in all other cases in the next following Plan Year.
The Committee may request the Employee to provide satisfactory
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evidence that the absence was caused by one of the purposes listed above. If
in the judgment of the Committee such evidence is not supplied, no Hours of
Service shall be credited under this subsection (b).
(c) Solely to determine whether a One Year Break in Service has
occurred, a Participant on a leave protected under the Family and Medical
Leave Act of 1993 shall receive credit for the Hours of Service which would
otherwise have been credited to such Employee but for such leave.
PARTICIPANT - Any Employee or former Employee who has an Individual
Account balance, and any Employee who has met the participation requirements
of Section 2.1 A Participant shall cease to be a Participant in accordance
with Section 2.2.
PLAN - The National Fiberstok Corporation 401(k) Savings Plan, as
contained herein or as duly amended.
PLAN YEAR - January 1 - December 31.
ROLLOVER ACCOUNT - That portion of a Participant's Individual Account
attributable to his rollover contributions under Section 3.4 and the
Participant's proportionate share of any Adjustment attributable to his
Rollover Account.
SECTION 415 COMPENSATION - (a) An Employee's wages as defined in Code
Section 3401(a) and all other payments of compensation to an Employee by the
Employer or an Affiliate (in the course of their trade or business) for which
the Employer or Affiliate is required to furnish the Employee a written
statement under Code Sections 6041(d), 6051(a)(3) and 6052. Section 415
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Compensation shall be determined without regard to any rules that limit the
remuneration included in wages based on the nature or location of the
employment or the services performed (such as the exception for agricultural
labor in Code Section 3401(a)(2)). Section 415 Compensation does not include
Employee Pre-Tax Contributions to this Plan and salary reduction
contributions to a Code Section 125 cafeteria plan.
(b) In addition to other applicable limitations set forth in the
Plan, and notwithstanding any other provision of the Plan to the contrary,
the Section 415 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 Code Section
401(a)(17)(B). 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 limit 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.
Any reference in this plan to the limitation under Code Section
401(a)(17) shall mean the OBRA '93 annual compensation limit set forth in this
definition.
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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 January
1, 1994, the OBRA '93 annual compensation limit is $150,000.
TESTING COMPENSATION - The Section 415 Compensation paid by an
Employer to an Employee for a Plan Year. Subject to the OBRA '93 annual
compensation limit under the definition of Section 415 Compensation, Testing
Compensation may at the election of the Corporation also include all
compensation not otherwise included in a Participant's Section 415
Compensation during the Plan Year because it was an Employee Pre-Tax
Contribution under this Plan or because it was a pre-tax salary reduction
contribution to a Code Section 125 cafeteria plan.
TRUST AGREEMENT - The Trust Agreement for The National Fiberstok
Corporation 401(k) Savings Plan, as entered into between the Employer and the
Trustee under Article VII.
TRUST FUND OR FUND - All funds received by the Trustee together
with all income, profits and increments thereon, and less any expenses or
payments made out of the Trust Fund.
TRUSTEE - Such individual, individuals, financial institution, or
a combination of them as shall be designated in the Trust Agreement to hold
in trust any assets of the Plan for
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the purpose of providing benefits under the Plan, and shall include any
successor trustee to the Trustee initially designated thereunder.
VALUATION DATE - Each March 31, June 30, September 30 and December
31, or such other date as the Committee may determine from time to time. For
all Plan purposes, the Valuation Date for Plan distributions shall be the
Valuation Date immediately preceding the date of such distribution.
YEAR OF SERVICE - (a) For any Employee, a 12 month period
determined under subsection (c) during which the Employee completes 1,000 or
more Hours of Service.
(b) For purposes of eligibility to participate and vesting
periods of employment with an Affiliate which would have constituted a Year
of Service had the Employee been employed by the Employer, and periods of
employment with the Employer or an Affiliate other than as an Employee,
including employment as a leased employee within the meaning of Code Section
414(n), which would have constituted a Year of Service had the Participant
been employed as an Employee, shall be included as if such periods had been
performed for the Employer or as an Employee. Service of an Employee with the
former Double Envelope Corporation or with Diversified Assembly shall be
deemed service with an Affiliate for purposes of this definition.
(c) (1) For purposes of eligibility to participate under
Section 2.1, the 12 month period referenced in subsection (a) shall begin on
the date the Employee first
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completes an Hour of Service. If the Employee fails to earn a Year of Service
during such initial 12 month period, the 12 month period for determining the
Year of Service shall be based on Plan Years starting with the Plan Year in
which occurs the first anniversary of the date he completed his first Hour of
Service.
(2) For all other purposes of this Plan, the 12 month period
referenced in subsection (a) shall be the Plan Year.
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ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 ELIGIBILITY
(a) Any person who was a Participant in this Plan on
December 31, 1995, shall, subject to the provisions of this Plan, remain a
Participant in this Plan on January 1, 1996.
(b) Any Employee not described in subsection (a) shall
become a Participant on the January 1, April 1, July 1 or October 1
coincident with or next following the date he completes a Year of Service and
attains age 21.
2.2 PARTICIPATION
Each Participant may enter into a salary reduction agreement and a
voluntary contribution agreement in accordance with Section 3.1. Each person
who becomes a Participant shall remain a Participant so long as he remains an
Employee or maintains an Individual Account balance. If a Participant
terminates employment with no balance in his Individual Account, he shall
cease being a Participant upon his termination of employment. In the event a
Participant ceases to be an Employee and is later reemployed as an Employee,
he shall once again become a Participant upon his reemployment date, and may
enter into a salary reduction agreement or voluntary contribution agreement
in accordance with Section 3.1.
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2.3 BENEFICIARY DESIGNATION
(a) Upon commencing participation, each Participant shall designate
a Beneficiary and a Contingent Beneficiary on forms furnished by the
Committee. In the absence of any valid designation of Beneficiary or
Contingent Beneficiary the Participant shall be deemed to have designated a
Beneficiary or Beneficiaries determined from the following order of
precedence: (1) spouse; (2) children, in equal shares; (3) his estate. The
meaning of the term "Beneficiary" shall include the meaning of "Contingent
Beneficiary" unless the context clearly indicates otherwise.
(b) The Beneficiary of a married Participant shall be his spouse
unless the Participant designates someone other than his spouse as his
Beneficiary and he files with the Committee his spouse's written consent to
such designation. Such spousal consent shall be on a form approved by the
Committee, shall be irrevocable by the spouse, shall acknowledge the effect
of such designation and be witnessed by a Committee member (or a duly
appointed delegate) or a notary public. The spouse may alternatively execute
an irrevocable general consent that does not identify the designated
Beneficiary and which allows the Participant to make future changes in the
Beneficiary designation without spousal consent. Any such general consent
shall satisfy the requirements of T. Reg. Section 1.401(a)-20 Q&A-31(c).
(c) If an unmarried Participant later marries, or if a married
Participant later remarries, any prior designation
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by such Participant of a Beneficiary other than the spouse he is married to
on his date of death shall be null and void unless consented to by such
spouse in the manner provided in subsection (b).
(d) The interpretation of the Committee which respect to any
Beneficiary designation, subject to applicable law, shall be binding and
conclusive upon all parties, and no person who claims to be a Beneficiary, or
any other person, shall have the right to question any action of the
Committee.
(e) The rights of any spouse or Beneficiary hereunder shall be
subject to the provisions of any qualified domestic relations order within
the meaning of ERISA Section 206(d)(3).
2.4 NOTIFICATION OF INDIVIDUAL ACCOUNT BALANCE
As of each Valuation Date the Committee shall notify each Participant of
the amount of his share in the Adjustments and Contributions for the period
just completed and the balance of his Individual Account.
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ARTICLE III
CONTRIBUTIONS
3.1 EMPLOYEE PRE-TAX AND POST-TAX CONTRIBUTIONS
(a) Pre-Tax Contributions. A Participant may have Employee Pre-Tax
Contributions made to the Plan on his behalf as follows. All such
Contributions shall be made by payroll withholding. A Participant may enter
into a salary reduction agreement with his Employer in which it is agreed
that the Employer will reduce the Participant's Deferral Compensation during
each pay period by a designated percentage and contribute that amount so
determined to the Plan on behalf of the Participant. The Employer may modify
the salary reduction agreement to the extent necessary to insure that (1) the
Actual Deferral Percentage Test of Code Section 401(k) as set forth in
Section 3.6 is met, (2) the excess deferral rules of subsection (c) are met,
or (3) the limitations set forth in Sections 3.5 or 4.8 are not exceeded.
Such Employee Pre-Tax Contributions may be any whole percentage between 1%
and 10% of the Deferral Compensation otherwise payable to the Participant.
The salary reduction agreement of an Employee who becomes eligible to
participate in the Plan shall be effective for the Employee's first pay date
coincident with or next following the January 1, April 1, July 1 or October 1
following his satisfying the eligibility requirements of Section 2.1 and his
proper completion and filing of a salary reduction agreement. Salary
reduction
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agreements must be filed at least 15 days before the pay date as of which
they are to be effective (or upon such shorter notice as may be acceptable to
the Committee).
(b) (1) Each Participant, by written notice filed with the
Committee at least 15 days in advance of the effective date of such notice
(or upon such shorter notice as may be acceptable to the Committee), may
elect to prospectively suspend his salary reduction agreement. Such election
shall become effective for the first pay date coincident with or next
following the expiration of the notice period and shall not have retroactive
effect. If Contributions are suspended hereunder, a Participant may again
sign a salary reduction agreement effective for the first pay date following
any subsequent January 1, April 1, July 1 or October 1, provided he gives 15
days written notice (or such shorter notice as may be acceptable to the
Committee) prior to such pay date.
(2) A Participant may change his salary reduction agreement as of
the first pay date coincident with or next following any January 1, April 1,
July 1 or October 1 by written notice filed with the Committee at least 15
days (or upon such shorter notice as may be acceptable to the Committee)
prior to such pay date.
(3) Amounts contributed by salary reduction shall be remitted to
the Trustee in accordance with Section 3.7. Contributions once elected to be
deferred by a Participant shall be credited to his Employee Pre-Tax Account
under Section 4.2(a).
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(c) Excess deferrals
(1) No participant may have Employee Pre-Tax Contributions made
on his behalf under this Plan in any calendar year which exceed the dollar
limit amount specified by the Secretary of the Treasury for purposes of Code
Section 402(g)(1). For purposes of the preceding sentence, Pre-Tax
Contributions are deemed made as of the pay date for which the salary is
deferred, regardless of when the contributions are actually made to the Trust
Fund.
(2) If in any calendar year the aggregate of a Participant's
Employee Pre-Tax Contributions made on his behalf under this Plan, plus his
other elective deferrals under any other qualified cash or deferred
arrangement (as defined in Code Section 401(k)) maintained by any sponsor,
under any simplified employee pension (as defined in Code Section 408(k)), or
to purchase an annuity contract under Code Section 403(b), exceed the
limitations of paragraph (1), then no later than the March 1 following such
calendar year the Participant may notify the Committee that he has exceeded
the limitation and of the amount of his Pre-Tax Contributions under this Plan
(and earnings thereon) which he wants distributed to him notwithstanding his
salary reduction agreement so that he will not exceed the limitation. The
Committee may require the Participant to provide reasonable proof that he has
exceeded the limitation of paragraph (1). No later than the next April 15,
the Committee may (but shall not be obligated to) make the distribution
requested by the
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Participant under this subparagraph. Such distribution may be made
notwithstanding any other provision of law or this Plan. Such distribution
shall not reduce the amount of Employee Pre-Tax Contributions used in
computing Actual Deferral Percentage, but shall reduce the amount of Employee
Pre-Tax Contributions considered as Annual Additions under Section 4.8. Any
amounts not distributed under this subparagraph shall continue to be held in
accordance with the terms of this Plan.
(d) Post-Tax Contributions. (1) A Participant may make Employee
Post-Tax Contributions to the Plan as follows. All such Contributions shall
be made by payroll withholding. A Participant may enter into a voluntary
contribution agreement with his Employer in which it is agreed that the
Employer will withhold from and contribute to this Plan on a post-tax basis a
designated percentage of the Participant's Deferral Compensation during each
pay period. The Employer may modify the voluntary contribution agreement to
the extent necessary to insure that (1) the Matching Contribution Percentage
Test of Code Section 401(m) as set forth in Section 3.9 is met or (2) the
limitations set forth in Section 4.8 are not exceeded. Such Employee
Post-Tax Contributions may be any whole percentage between 1% and 10% of the
Deferral Compensation otherwise payable to the Participant. The voluntary
contribution agreement of an Employee who becomes eligible to participate in
the Plan shall be effective for the Employee's first pay date coincident with
or next following the January 1, April 1, July 1 or October 1 following his
satisfying
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the eligibility requirements of Section 2.1 and his proper completion and
filing of a voluntary contribution agreement. Voluntary contribution
agreements must be filed at least 15 days before the pay date as of which
they are to be effective (or upon such shorter notice as may be acceptable to
the Committee).
(2) Each Participant, by written notice filed with the Committee
at least 15 days in advance of the effective date of such notice (or upon such
shorter notice as may be acceptable to the Committee), may elect to
prospectively suspend his voluntary contribution agreement. Such election
shall become effective for the first pay date coincident with or next
following the expiration of the notice period and shall not have retroactive
effect. If Contributions are suspended hereunder, a Participant may again
sign a voluntary contribution agreement effective for the first pay date
following any subsequent January 1, April 1, July 1 or October 1, provided he
gives 15 days written notice (or such shorter notice as may be acceptable to
the Committee) prior to such pay date.
(3) A Participant may change his voluntary contribution agreement
as of the first pay date coincident with or next following any January 1,
April 1, July 1 or October 1 by written notice filed with the Committee at
least 15 days (or upon such shorter notice as may be acceptable to the
Committee) prior to such pay date.
(4) Amounts contributed by voluntary contribution shall be
remitted to the Trustee in accordance with
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Section 3.7. Contributions once made by a Participant shall be credited to
his Employee Post-Tax Account under Section 4.2(b).
3.2 EMPLOYER MATCHING CONTRIBUTIONS
Subject to Sections 3.5, 3.9, 3.10 and 4.8, for each Plan Year the
Employer shall make Employer Matching Contributions equal to the aggregate of
60% of each Participant's Employee Pre-Tax Contributions made during the
Year, taking into account for each Participant only so much of his Pre-Tax
Contributions for each pay period as are made at a rate which does not exceed
6% of his Deferral Compensation. The Employer's Matching Contribution
requirement shall be offset by the amount of available forfeitures under
Section 5.3(b)(2)(B).
3.3 EMPLOYER DISCRETIONARY CONTRIBUTIONS
The Employer, by action of its board of directors, may in its
discretion elect for any Plan Year to make an Employer Discretionary
Contribution. The Employer shall in any event contribute such Employer
Discretionary Contributions as may be required by Sections 5.3(b)(3) or 11.1(b).
3.4 ROLLOVER CONTRIBUTIONS
With Committee approval, an Eligible Employee (whether
or not he has yet satisfied the participation requirements of Section 2.1)
may make a rollover contribution of an amount which qualifies for tax-free
rollover treatment under Code Section 402(c). Rollover contributions shall be
held in the Employee's Rollover Account, and shall always be 100% vested.
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3.5 MAXIMUM DEDUCTIBLE CONTRIBUTION
In no event shall the Employer be obligated to make a Contribution for a
Plan Year in excess of the maximum amount deductible by it under Code Section
404(a)(3).
3.6 ACTUAL DEFERRAL PERCENTAGE TEST
(a) The Employer may distribute Employee Pre-Tax Contributions in
accordance with subsection (b) for any Plan Year in which the Actual Deferral
Percentage for the group of eligible Highly Compensated Employees exceeds the
greater of:
(1) 1.25 times the Actual Deferral Percentage of all other
Eligible Employees, or
(2) the lesser of (A) 2% plus the Actual Deferral Percentage of
all other Eligible Employees, or (B) 2.0 times the Actual Deferral Percentage
of all other Eligible Employees.
(b) (1) If for any Plan Year the Actual Deferral Percentage test of
subsection (a) is not met, then the requisite amount of Employee Pre-Tax
Contributions and income thereon as determined below made on behalf of
affected Highly Compensated Employees shall be distributed in accordance with
paragraph (2)(A). The amount of any Employee Pre-Tax Contributions to be
distributed under paragraph (2)(A) shall be reduced by any excess deferrals
previously distributed under Section 3.1(c)(2) for the calendar year ending
with or in the same Plan Year. Similarly, any excess deferrals to be
distributed under Section 3.1(c)(2) shall be reduced by any excess Employee
Pre-Tax Contributions
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previously distributed under this Section for the Plan Year beginning with or
in such calendar year. The amount to be distributed to any such Employee is
calculated as follows:
(A) An "Actual Deferral Percentage" is calculated
separately for each Highly Compensated Employee;
(B) The separate Actual Deferral Percentages of all
Highly Compensated Employees are added together;
(C) The maximum average Actual Deferral Percentage
which all Highly Compensated Employees taken together could have and still
meet the requirements of subsection (a) is determined;
(D) The value in (C) is multiplied by the number of
Highly Compensated Employees;
(E) The product in (D) is subtracted from the sum in
(B) (this remainder represents the total individual percentages which must be
distributed, and is referred to as the "Aggregate Distribution Percentage");
(F) All Highly Compensated Employees are ranked by
order of individual Actual Deferral Percentages, starting with the highest
percentage;
(G) The Highly Compensated Employee (or Employees)
whose Actual Deferral Percentage(s) is (are) the highest shall have his
(their) Actual Deferral Percentage(s) reduced to the level of the next Highly
Compensated Employee (or Employees) on the scale established in subparagraph
(F), and the
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total number of Percentage points by which such Employee's (or
Employees') Actual Deferral Percentage(s) is (are) reduced is subtracted from
the Aggregate Distribution Percentage;
(H) The procedure in subparagraph (G) is repeated (if
necessary) until the Aggregate Distribution Percentage is reduced to zero
(but not below zero);
(I) To prevent the Aggregate Distribution Percentage from
going below zero in this calculation, the Actual Deferral Percentage for any
given Highly Compensated Employee (or Employees) need not be reduced all the
way to the level of the next highest Highly Compensated Employee's Actual
Deferral Percentage.
(J) The amount of excess Employee Pre-Tax Contributions to
be distributed under paragraph (2) for each Highly Compensated Employee
affected by subparagraph (G) is the number of percentage points (and
fractions thereof) by which his Actual Deferral Percentage was reduced under
subparagraph (G), multiplied by his Testing Compensation.
(K) The amount of income (if any) to be distributed on the
excess Employee Pre-Tax Contributions determined under subparagraph (J) is
determined by multiplying the total income earned on the Highly Compensated
Employee's Employee Pre-Tax Account for the Plan Year by a fraction, the
numerator of which is the amount of excess Employee Pre-Tax Contributions
determined under subparagraph (J) and the denominator of which is the
Participant's Employee Pre-Tax
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Account balance at the end of the Plan Year, reduced by any gains and
increased by any losses allocated to the Account during the Plan Year.
(L) In the case of a Highly Compensated Employee whose
Actual Deferral Percentage is determined under the family aggregation rules,
the Actual Deferral Percentage is reduced as set forth in this subsection
(b)(1), and the excess Pre-Tax Contributions for the family group are
allocated among all members of the family group in proportion to their
Pre-Tax Contributions taken into account in determining the Actual Deferral
Percentage.
(2) (A) The amount to be distributed as determined under
paragraph (1) to each affected Highly Compensated Employee (or HC Family
Member) shall be distributed to him no later than the end of the next
following Plan Year. The Plan may make the distribution within two and
one-half months after the end of the Plan Year for which the excess
Contributions are made so as to avoid the 10% tax imposed on the Employer by
Code Section 4979. Such distribution may be made notwithstanding any other
provision of law or this Plan.
(B) In connection with a distribution of excess Employee
Pre-Tax Contributions (if any) for Highly Compensated Employees (or HC Family
Members) under subparagraph (A), Employer Matching Contributions made with
respect to distributed Employee Pre-Tax Contributions (if any) shall be
withdrawn (with earnings thereon) from such Participant's
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Employer Matching Account, and forfeited and applied against the Employer's
Matching Contribution obligation under Section 3.2.
3.7 PAYMENT OF CONTRIBUTIONS TO TRUSTEE
Unless an earlier time for contribution is specified elsewhere in this
Plan, in all events the Employer shall pay to the Trustee its Contributions
for each Plan Year within the time prescribed by law, including extensions of
time for the filing of its federal income tax return for the Employer's
taxable year during which such Plan Year ended. Employee Pre-Tax and Post-Tax
Contributions shall be transferred to the Trustee as soon as reasonably
possible, but in no event more than 90 days after the pay date on which they
would otherwise have been paid to the Employee, or such earlier date as may
be required under regulations issued by the Department of Labor.
3.8 PARTICIPANT INVESTMENT DIRECTION
(a) Participants may direct the investment of their Individual
Accounts among the Investment Options in accordance with this Section, and
subject to such rules and procedures as may be adopted by the Committee
and/or prescribed by any entity which provides or manages any funding vehicle
underlying an Investment Option. Participant investment direction hereunder
is intended to satisfy the requirements of ERISA Section 404(c) and the
regulations issued thereunder, and shall be interpreted accordingly.
(b) Each Participant's salary reduction or voluntary contribution
agreement completed for purposes of
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Section 3.1 shall also specify which Investment Option the Participant wishes
his Individual Account to be invested in. Investment Option specifications
shall be in increments as determined by the Committee. Upon 15 days advance
written notice to the Committee (or upon such shorter notice as may be
acceptable to the Committee), a Participant may change his Investment Option
specification for contributions to be made in the future, for amounts already
in his Account, or both, effective as of the Valuation Date coincident with
or next following expiration of the notice period. In the absence of any
valid Investment Option specification, a Participant's Account shall be
invested as determined by the Committee.
3.9 MATCHING CONTRIBUTION PERCENTAGE TEST
(a) (1) The Employee Post-Tax Contributions under Section 3.1(d)
and the Employer Matching Contributions under Section 3.2 made with respect
to Highly Compensated Employees shall be reduced as provided in subsection
(b) to the extent necessary to meet the requirements of paragraph (2).
(2) Subject to Section 3.10, the Matching Contribution
Percentage for the group of Highly Compensated Employees shall not exceed the
greater of:
(A) 1.25 times the Matching Contribution Percentage of all
other Eligible Employees; or
(B) the lesser of (i) 2% plus the Matching Contribution
Percentage of all other Eligible Employees,
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or (ii) 2.0 times the Matching Contribution Percentage of all other Eligible
Employees.
(b) (1) If the Employee Post-Tax Contributions and Employer
Matching Contributions for a Plan Year exceed the limits of subsection (a),
then the amount of Employee Post-Tax Contributions and Employer Matching
Contributions allocated to a Highly Compensated Employee's Employee Post-Tax
Account and Employer Matching Account shall be reduced to the extent
necessary to satisfy subsection (a) and distributed to the affected Employee
(or forfeited under paragraph (2)) in accordance with rules similar to those
used to determine the amount of Employee Pre-Tax Contributions to be
distributed under Section 3.6(b). Such distribution may be made
notwithstanding any other provision of law or this Plan. All Employee
Post-Tax Contributions of each Highly Compensated Employee who is subject to
reduction shall be distributed towards satisfying subsection (a) before any
Employer Matching Contributions of such Employee are distributed (or
forfeited).
(2) With respect to any Highly Compensated Employee whose
Employer Matching Contributions are reduced under paragraph (1), the portion
of such reduced Contributions to be distributed to him shall equal the total
reduced Contributions multiplied by his vesting percentage under Section 5.3
as of the end of the Plan Year for which the reduction is made. The remaining
non-vested percentage of such reduced Contributions shall be permanently
forfeited and applied in accordance with
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Section 5.3(b)(2)(B) as of the end of the Plan Year for which the reduction
is made.
3.10 MULTIPLE USE RESTRICTIONS
The application of the Actual Deferral Percentage Test in Section 3.6
and the Matching Contribution Percentage Test in Section 3.9 shall be
coordinated in accordance with Treasury Regulations at Section 1.401(m)-2 so
as to prohibit the multiple use of the alternative limitations set forth in
Sections 3.6(a)(2) and 3.9(a)(2)(B). Corrections required by the multiple use
restriction shall be effected by a reduction for any Highly Compensated
Employee participating in this Plan of the otherwise permissible Employee
Pre-Tax Contributions under Section 3.1(a), Employee Post-Tax Contributions
under Section 3.1(d) or Employer Matching Contributions under Section 3.2, as
shall be designated by the Corporation.
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ARTICLE IV
ALLOCATIONS TO INDIVIDUAL ACCOUNTS
4.1 INDIVIDUAL ACCOUNTS
(a) The Committee shall establish and maintain an Individual
Account in the name of each Participant, comprised of an Employee Pre-Tax
Account, an Employee Post-Tax Account, an Employer Matching Account, an
Employer Discretionary Account and a Rollover Account, to which the Committee
shall credit all amounts allocated to each such Participant under this
Article IV.
(b) The maintenance of separate accounts shall not require a
segregation of the Trust assets and no Participant shall acquire any right to
or interest in any specific asset of the Trust as a result of the allocations
provided for in this Section. All allocations shall be made as of the
applicable Valuation Date.
4.2 ALLOCATION OF EMPLOYEE PRE-TAX AND POST-TAX CONTRIBUTIONS
(a) A Participant's Employee Pre-Tax Contributions under Section
3.1(a) shall be allocated to his Employee Pre-Tax Account and invested in
accordance with his then outstanding Investment Option election.
(b) A Participant's Employee Post-Tax Contributions under Section
3.1(d) shall be allocated to his Employee Post-Tax Account and invested in
accordance with his then outstanding Investment Option election.
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4.3 ALLOCATION OF EMPLOYER MATCHING CONTRIBUTIONS
A Participant's share of the Employer Matching Contributions under
Section 3.2 shall be allocated to his Employer Matching Account and invested
in accordance with his then outstanding Investment Option election.
4.4 ALLOCATION OF EMPLOYER DISCRETIONARY CONTRIBUTIONS
As of the last day of the Plan Year, each Participant who completed a
Year of Service during the Plan Year and who is an Employee on the last day
of the Plan Year (an "eligible Participant"), shall receive an allocation
of any Employer Discretionary Contribution under Section 3.3 for that Plan
Year. Each eligible Participant's allocable share shall equal the product of
multiplying the Discretionary Contribution by a fraction, the numerator of
which is the eligible Participant's total Allocation Compensation received
while a Participant during the Plan Year and the denominator of which is the
total Allocation Compensation of all such eligible Participants received
while Participants during the Plan Year.
4.5 ALLOCATION OF ADJUSTMENT
(a) Subject to subsection (b), as of each Valuation Date, the Committee
shall determine the Adjustment for the period elapsed since the last
preceding Valuation Date of each Investment Option of the Fund. The
Adjustment for each Investment Option shall be allocated as of the Valuation
Date to all Individual Accounts invested in that Investment Option, in the
proportion that each Individual Account's "Credit Balance"
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with respect to that Investment Option on the Valuation Date bears to the
"Credit Balance" of all Individual Accounts with respect to that Investment
Option on the Valuation Date. The Credit Balance of each Individual Account
invested in an Investment Option shall be calculated by determining the
Current Balance of the Account invested in that Investment Option as of the
immediately preceding Valuation Date, from which shall be subtracted any
distributions or loans from the Account with respect to that Investment
Option since the Valuation Date, and to which shall be added (1) one-half
(1/2) of all Employee Pre-Tax, Employee Post-Tax and Employer Matching
Contributions to such Account with respect to that Investment Option made
under Sections 3.1 and 3.2 since that Valuation Date (even if subject to
later distribution or withdrawal under Sections 3.1(c)(2), 3.6(b)(2) or 3.9)
and (2) one-half (1/2) of all loan repayments to such Account with
respect to that Investment Option which are credited as of the current
Valuation Date under Section 6.1(f). An Individual Account's share of the
Adjustment with respect to any Investment Option shall be allocated pro rata
among the Employee Pre-Tax Account, Employee Post-Tax Account, Employer
Matching Account, Employer Discretionary Account and Rollover Account which
comprise the Individual Account.
(b) Earnings and losses attributable to Rollover Contributions received
since the preceding Valuation Date shall be determined and allocated by the
Committee on a pro rata basis
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reflecting the period of time such Contributions were held by the Trust Fund.
4.6 [RESERVED]
4.7 EQUITABLE ALLOCATIONS
The Committee shall establish accounting procedures for the purpose of
making the allocations, valuations and adjustments to the Participants'
Individual Accounts provided for in this Article IV. Should the Committee
determine that the strict application of its accounting procedures will not
result in an equitable and non-discriminatory allocation among the Individual
Accounts of Participants, it may modify its procedures for the purpose of
achieving an equitable and non-discriminatory allocation in accordance with
the general concepts of the Plan and the provisions of this Article.
4.8 MAXIMUM ADDITIONS
(a) Notwithstanding anything herein to the contrary, the sum of the
Employee Pre-Tax Contributions, Employee Post-Tax Contributions, Employer
Matching Contributions and Employer Discretionary Contributions allocated to
a Participant's Individual Account for any Limitation Year (the "Annual
Additions"), when combined with any annual additions credited to the
Participant for the same period under another qualified defined contribution
plan maintained by the Employer or an Affiliate, shall not exceed the lesser
of the following:
(1) $30,000 or such larger amount as may be determined under
Code Section 415(c)(1)(A); or
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(2) 25% of the Participant's total Section 415 Compensation
received from the Employer for such Limitation Year.
"Limitation Year" shall mean the Plan Year.
(b) In the event a Participant is covered by more than one defined
contribution plan maintained by the Employer (or an Affiliate), the maximum
Annual Additions to this Plan shall be decreased as determined necessary by
the Committee to insure that the limitations of Code Section 415(c) are not
exceeded.
In the event that as of any Valuation Date, corrective adjustments in
the Annual Additions to any individual Accounts are required by this Section
4.8(b) due to estimated compensation, the allocation of forfeitures, or the
making of Employee Pre-Tax or Post-Tax Contributions, or as otherwise
permitted by the Internal Revenue Service under T.Reg. Section 1.415-6(b)(6),
the adjustment shall first be made by reducing the Employee Post-Tax
Contributions, next the Employee Pre-Tax Contributions, next the Employer
Matching Contributions and finally the Employer Discretionary Contributions.
Any amounts withheld or taken from a Participant's Individual Account
pursuant to the above shall be segregated in the Fund in a separate account
and applied toward the Contribution of the Employer for the next Limitation
Year, except that Employee Pre-Tax and Post-Tax Contributions shall be
distributed to the Participant who made them.
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4.9 MULTIPLE PLAN PARTICIPATION
(a) If a Participant is a participant in a defined benefit plan
maintained by the Employer, the sum of his defined benefit plan fraction
(determined in subsection (c)) and his defined contribution plan fraction
(determined in subsection (b)) for any Limitation Year shall not exceed 1.0.
(b) The term "defined contribution plan fraction" shall mean a
fraction, the numerator of which is the sum of all of the Annual Additions to
the Participant's Individual Account under this Plan as of the close of the
Limitation Year and the denominator of which is the sum of the lesser of the
following amounts determined for such Limitation Year and for each prior
Limitation Year of employment with the Employer:
(1) the product of 1.25 multiplied by the dollar limitation
in effect under Section 4.8(a)(1) for such Year; or
(2) the product of 1.4 multiplied by an amount determined
under Section 4.8(a)(2) for such Year.
(c) The term "defined benefit plan fraction" shall mean a fraction
the numerator of which is the Participant's projected annual benefit
determined as of the close of the Limitation Year and the denominator of
which is the lesser of:
(1) the product of 1.25 multiplied by the dollar limitation
in effect under Code Section 415(b)(1)(A) for such Limitation Year; or
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(2) the product of 1.4 multiplied by the amount which may be
taken into account under Code Section 415(b)(1)(B) with respect to each
individual under the Plan for such Limitation Year.
For purposes of this limitation, all defined benefit plans maintained
by an Employer (or any Affiliate), whether or not terminated, are to be
treated as one defined benefit plan and all defined contribution plans
maintained by an Employer (or any Affiliate), whether or not terminated, are
to be treated as one defined contribution plan. Any benefit reduction
required to comply with this Section 4.9 shall be effected in the defined
benefit plan in such a manner so as to maximize the aggregate benefits
payable to such Participant.
(d) The above limitations in Section 4.8 and this Section are
intended to comply with the provisions of Code Section 415 so that the
maximum benefits able to be provided by plans of the Employer shall be
exactly equal to the maximum amounts allowed under Code Section 415. If there
is any discrepancy between the provisions of Section 4.8 or this Section 4.9
and the provisions of Code Section 415, such discrepancy shall be resolved in
such a way as to give full effect to the provisions of Code Section 415,
which provisions are hereby incorporated by reference.
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ARTICLE V
DISTRIBUTIONS
5.1 RETIREMENT
Upon the retirement of a Participant after reaching his Normal
Retirement Age, the Current Balance of his Individual Account shall become
payable as of the Valuation Date coincident with or next following his
retirement. The Committee shall thereupon direct the Trustee to distribute to
such Participant such amount in accordance with Section 5.4. If the amount
to be distributed exceeds $3,500, then no distribution shall be made before
the Participant attains age 65 unless he consents in writing to the
distribution in accordance with the notice and election requirements of
Section 5.3(c).
5.2 DEATH BEFORE RETIREMENT OR TERMINATION OF EMPLOYMENT
Upon the death of a Participant before retirement or
termination of employment, the Current Balance of his Individual Account
shall be payable to his Beneficiary as soon practicable after the Valuation
Date coincident with or next following his death. Distribution to such
Participant's Beneficiary shall be made in accordance with a method of
payment available under Section 5.4 and elected by the Beneficiary. If the
Beneficiary is the Participant's spouse and the Participant's Individual
Account has a Current Balance greater than $3,500, then no distribution shall
be made before the Participant would
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have attained age 65 unless the spouse consents in writing to the
distribution in accordance with the notice and election requirements of
Section 5.3(c).
5.3 TERMINATION OF EMPLOYMENT
(a) Upon termination of employment for any reason other than
retirement under Section 5.1 or death, a Participant shall be entitled to
the vested Current Balance of his Individual Account, payable at the time set
forth in subsection (c).
(b) (1) A Participant shall at all times be 100% vested in the
Current Balance of his Employee Pre-Tax Account, Employee Post-Tax Account
and Rollover Account.
(2) (A) (i) Subject to Section 9.2, a Participant who
terminates employment before January 1, 1995, shall be vested in the Current
Balance of his Employer Matching Account and Employer Discretionary Account
in accordance with the following schedule:
Years of Service Vested Percentage
---------------- -----------------
less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 100%
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(ii) Subject to Section 9.2, a Participant who
terminates employment on or after January 1, 1995, shall be vested in the
Current Balance of his Employer Matching Account and Employer Discretionary
Account in accordance with the following schedule:
Years of Service Vested Percentage
---------------- -----------------
less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 100%
(iii) A Participant shall become 100% vested upon
reaching age 65 or becoming Disabled while an employee of an Employer or an
Affiliate.
(B) If a Participant terminates employment before
becoming 100% vested, the unvested portion of his Employer Matching Account
and Employer Discretionary Account shall be conditionally forfeited, subject
to restoration under paragraph (3), upon distribution to him of his vested
Account balances or the first anniversary of his termination of employment,
whichever comes first. A terminated Participant with a 0% vested interest in
his Employer Matching and Discretionary Accounts shall be deemed to receive a
distribution of his vested
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Account balances upon distribution to him of all his otherwise vested
interests in his Individual Account. Forfeited amounts shall be applied first
to restore any forfeitures under paragraph (3) for the Plan Year in which the
conditional forfeitures under this paragraph (2) arise. Any conditionally
forfeited amounts which remain shall be used to reduce the Employer Matching
Contribution under Section 3.2 for that Plan Year.
(3) If a Participant who suffered a conditional
forfeiture under paragraph (2) is reemployed by the Employer (or an
Affiliate) before incurring five consecutive One Year Breaks in Service, then
any amounts which were conditionally forfeited under paragraph (2) shall
be restored to his Employer Matching and Employer Discretionary Accounts as
of the Valuation Date coincident with or next following (A) the date he is
reemployed, if he is not required to repay his previous distribution, or (B)
the date on which he repays the full amount previously distributed to him
from both such Accounts, if he is required to repay his previous
distribution. A Participant is required to repay the previous distribution if
it was made not later than the end of the second Plan Year following the Plan
Year in which he terminated employment. Any required repayment must be made
before the earlier of (A) when the Participant incurs five consecutive One
Year Breaks in Service of (B) five years after the date on which he is
reemployed. Restoration shall be funded out of forfeitures arising under
paragraph (2), and if such forfeitures are insufficient for that purpose,
out of
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the Employer's Discretionary Contribution under Section 3.3. Unless and until
a reemployed Participant (who is required to make repayment) timely repays
the full amount previously distributed to him from his Employer Matching and
Employer Discretionary Accounts, there shall be no restoration of his
conditional forfeiture.
(4) If a Participant who suffered a conditional
forfeiture under paragraph (2)(B) incurs five consecutive One Year Breaks in
Service, any amounts conditionally forfeited shall become permanently
forfeited. If the Participant had no vested interest at his prior termination
of employment, or if he did not repay his prior distribution in accordance
with paragraph (3) (if required), his Years of Service earned before the
Breaks in Service shall be permanently disregarded.
(c) As of the Valuation Date coincident with or next
following a Participant's termination of employment and submission of a
properly completed application, the Trustee shall distribute to such
Participant the vested Current Balance of his Individual Account determined
as of such Valuation Date. If the amount to be distributed exceeds $3,500,
then no distribution shall be made before the Participant attains age 65
unless he consents in writing to the distribution. A Participant shall be
provided with notice of his right to withhold consent and such other
information as is required by T.Reg. Section 1.411(a)-11(c) at least 30 but
not more than 90 days before distribution is made. Distribution may be
made less than 30 days after such notice is
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given if the Participant is clearly informed that he 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 the particular method of
distribution, and if after receiving the notice the Participant affirmatively
elects a distribution.
(d) In the event a Participant who terminated his employment
with an Employer is reemployed as an Employee prior to receiving a
distribution of his Individual Account, he shall not be entitled to a
distribution as provided in this Section 5.3 due to such termination, but
shall be entitled to a distribution as determined herein upon a subsequent
termination of employment.
5.4 METHOD OF PAYMENT
Except as provided in Section 5.6(b), each Participant or
Beneficiary shall have his Individual Account paid in a lump sum. In order to
receive a distribution, a Participant or Beneficiary must make written
application therefor on forms provided by the Committee. The Committee may
require that there be furnished to it in connection with such application all
information pertinent to any question of eligibility and the amount of any
benefit.
5.5 BENEFITS TO MINORS AND INCOMPETENTS
(a) In case any person entitled to receive payment under the
Plan shall be a minor, the Committee, in its discretion, may distribute such
payment in any one or more of the following ways:
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(1) By payment thereof directly to such minor;
(2) By application thereof for the benefit of such minor;
(3) By payment thereof to either parent of such minor or
to any person who shall be legally qualified and shall be acting as guardian
of the person or the property of such minor, provided the parent or adult
person to whom any amount shall be paid shall have advised the Committee in
writing that he will hold or use such amount for the benefit of such minor.
(b) In the event a person entitled to receive payment under
the Plan is physically or mentally incapable of personally receiving and
giving a valid receipt for any payment due (unless prior claim therefor shall
have been made by a duly qualified legal representative of such person), such
payment in the discretion of the Committee may be made to the spouse, son,
daughter, parent, brother or sister of the recipient, or to any other person
who is responsible for the welfare of such recipient.
(c) Any payments made under subsections (a) or (b) shall, to
the extent of the payments, fully discharge the obligations of the Committee
and the Plan to any other person making a claim hereunder with respect to
such payments.
5.6 PAYMENT OF BENEFITS
(a) Subject to subsection (b), in the event a Participant's
Individual Account shall be due and payable under
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this Article V and the Participant has not elected otherwise in accordance
with the Plan, any payment of benefits to the Participant shall begin not
later than 60 days after the close of the Plan Year in which occurs the
latest of:
(1) the Participant's having attained age 65; and
(2) termination of employment of the Participant with the
Employer or an Affiliate (except an Affiliate which is such solely by reason
of Code Section 414(m)).
(b) (1) Notwithstanding subsection (a) above, distribution of
a Participant's Individual Account shall be made no later than April 1 of the
calendar year following the calendar year during which such Participant
attains age 70 1/2, regardless of whether or not he has terminated
employment with the Employer. If and so long as the Participant is still an
Employee, then at the Participant's election the amount to be distributed by
such April 1 and by each following December 31 shall equal the minimum
installment payment amount required to comply with Code Section 401(a)(9),
determined using the Participant's (and Beneficiary's) life expectancy when
payments begin, without subsequent recalculation of life expectancy.
(2) Distributions under this subsection (b) shall be made
in accordance with regulations issued by the Secretary of the Treasury under
Code Section 401(a)(9), including Section 1.401(a)(9)-2, which regulations shall
override any distribution options in this Plan inconsistent with Section
401(a)(9).
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5.7 DIRECT ROLLOVERS
(a) Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under this Section, a
distributee may elect at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a
direct rollover.
(b) For purposes of this Section, the following terms have the
following meanings:
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 to the extent such distribution is required under
Code Section 401(a)(9), 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).
ELIGIBLE RETIREMENT PLAN - An eligible retirement plan is an individual
retirement account described in Code Section 408(a), an individual retirement
annuity described in Code Section 408(b), an annuity plan described in Code
Section 403(a), or a qualified trust described in Code Section 401(a), that
accepts the distributee's eligible rollover distribution. However, in the
case of an eligible rollover distribution to the
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surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
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
Code Section 414(p), are distributees with regard to the interest of the
spouse or former spouse.
DIRECT ROLLOVER - A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the distributee.
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ARTICLE VI
LOANS AND WITHDRAWALS
6.1 LOANS TO PARTICIPANTS
Upon the request of a Participant, the Committee in its
discretion and upon consideration of the creditworthiness of the Participant,
may make loans from the Fund to Participants who are "parties in interest" as
defined in ERISA Section 3(14). The following rules shall apply:
(a) A Participant may only have one loan outstanding at any
time. Any loan made to a Participant must be repaid in full before another
loan will be made to such Participant. The minimum new loan amount shall be
$1,000. If a Participant's Individual Account balance is insufficient to
support a $1,000 loan because of the maximum loan restrictions set forth
below, no loan shall be made. The maximum amount of any loan, when added to
the outstanding balance of any existing loan from this Plan or any other plan
maintained by an Employer or an Affiliate, shall be the lesser of (1) and (2):
(1) $50,000 reduced by the excess of the highest
outstanding balance of loans from the Plan during the one year period ending
on the day before the date the loan is made over the outstanding balance of
loans from the Plan on the date the loan is made.
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(2) One-half of the Participant's vested Current Balance
in his Individual Account on the date the loan is made.
(b) All loans shall be repayable over a period of not more
than five years, but, as determined by the Committee this limitation shall
instead be 10 years for any loan used by the Participant to acquire any
dwelling unit which within a reasonable time is to be used (determined at the
time the loan is made) as a principal residence of the Participant.
(c) Each loan shall be secured by the Participant's entire
Individual Account balance and such additional collateral as the Committee in
its discretion may require; bear a reasonable rate of interest as determined
by the Committee based on the prevailing rates for similar loans; be repaid
by payroll deduction each pay period in accordance with a reasonable
repayment schedule requiring substantially level payments of principal and
interest, and shall be evidenced by a written promissory note setting forth
the terms of the loan. To the extent a Participant's pay from the Employer is
insufficient to make the payments due under a loan, but such Participant is
not covered by the provisions of subsection (e), such Participant shall make
his loan payments out of his own personal funds. If a Participant fails to
make an installment payment when due under the repayment schedule, the
Committee in its sole discretion may allow a grace period in which to make
the payment before the loan will be considered in default. The grace period
with respect to
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any overdue payment shall not continue beyond the last day of the calendar
quarter following the calendar quarter in which the payment was due under the
repayment schedule.
(d) In the event of the death or termination of employment of
a Participant, the unpaid balance of any outstanding loan to such
Participant, together with accrued interest, shall be deducted from the
amount otherwise due him or his Beneficiary, notwithstanding the provisions
of Section 12.5. Alternatively, a Participant may at his option repay the
entire outstanding balance of his loan upon termination of employment in lieu
of having it deducted from the amount otherwise due him.
(e) The Committee shall apply the provisions of this Section
in a uniform and nondiscriminatory manner which is not inconsistent with
Department of Labor regulations at 29 C.F.R. Section 2550.408b-1.
(f) Each loan shall be considered a separate Investment Option
of the Individual Account of the Participant. Notwithstanding Section 4.1(b),
when a loan is made, the amount of the loan shall be withdrawn from the
Participant's Individual Account and transferred to a segregated loan account
maintained in his name. The loan amount shall be withdrawn from the
sub-Accounts and the Investment Options within the Participant's Individual
Account in the order determined by the Committee. As of each Valuation Date,
payments of principal and interest against a loan since the preceding
Valuation Date shall be credited to the Participant's Individual Account and
allocated
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pro rata to the sub-Accounts from which the loan was withdrawn and invested
in accordance with the Participant's then current Investment Option election.
(g) There may be an administrative fee imposed on each new
loan in an amount determined by the Committee. The fee shall be charged to
the Participant's Individual Account, or to the Participant directly, as
directed by the Committee.
(h) In the event a Participant defaults on a loan from this
Plan, the Plan shall foreclose on so much of the Participant's Individual
Account as is given as collateral for the loan as follows: First, the Plan
shall foreclose on the Participant's Employee Post-Tax Account; then his
Employer Matching Account; then his Employer Discretionary Account; then his
Rollover Account; then when otherwise available for distribution under the
terms of this Plan, his Employee Pre-Tax Account.
6.2 HARDSHIP WITHDRAWALS
(a) Upon request of the Participant but no more often than once
each Plan Year, and with the approval of the Committee, a Participant who is
still employed by the Employer and who has attained age 59 1/2 or who
satisfies subsection (b) shall be allowed to withdraw all or part of the
vested Current Balance of his Individual Account which is available under
subsection (d). The minimum withdrawal amount shall be $500. If a
Participant's financial need under subsection (c) is less than $500 he may
not make a withdrawal. Withdrawn amounts may
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not be repaid to the Fund. Withdrawals shall be charged first against the
Participant's Employee Post-Tax Account, then his Employee Pre-Tax Account,
then his Employer Matching Account, then his Employer Discretionary Account,
then his Rollover Account.
(b) A Participant who has not attained age 59 1/2 may only
make a withdrawal under this Section 6.2 if the withdrawal is necessary in
light of immediate and heavy financial needs of the Participant as set forth
in subsection (c)(1). Such withdrawal shall not exceed the amount required to
meet the immediate financial need created by the hardship, and the amount to
be withdrawn must not be reasonably available from other resources of the
Participant. The determination of the existence of financial hardship and the
amount needed to be withdrawn to meet the need created by the hardship shall
be made by the Committee in a uniform and non-discriminatory manner, in
accordance with the standards and restrictions set forth in subsection (c)
below.
(c) (1) Immediate and heavy financial need. A withdrawal will
be considered to be made on account of an immediate and heavy financial need
of the Participant for purposes of subsection (b) only if it is on account of:
(A) Medical expenses described in Code Section
213(d) incurred by the Participant, the Participant's spouse, or any
dependents of the Participant (as defined in Code Section 152);
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(B) Purchase (excluding mortgage payments) of a principal
residence for the Participant;
(C) Payment of tuition, related educational fees, room or
board for the next 12 months of post-secondary education for the Participant,
his spouse, children, or dependents;
(D) The need to prevent the eviction of the Participant
from his principal residence or foreclosure on the mortgage of the
Participant's principal residence; or
(E) For any other reason which the Commissioner of
Internal Revenue deems to constitute such an immediate and heavy financial
need in accordance with Treasury Regulations at Section
1.401(k)-1(d)(2)(iii)(B).
(2) Amount necessary to satisfy the need. A withdrawal will
be considered to be in an amount necessary to satisfy a Participant's need
under paragraph (1) for purposes of subsection (b) only if:
(A) It does not exceed the amount of the need under
paragraph (1), taking into account taxes that must be paid on the withdrawal;
(B) The Participant has obtained all non-hardship
distributions and non-taxable loans he is eligible for and is able to provide
collateral for under any plan the Employer may sponsor (including this Plan);
(C) The Participant may not make any Employee Pre-Tax or
Post-Tax Contributions under Section 3.1 for
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a period of 12 months after the date he receives his hardship withdrawal, nor
may he make any other elective contributions to any Employer plan as
described in Treasury Regulation Section 1.401(k)-1(d)(2)(iv)(B)(4) (but
shall still be otherwise considered an Eligible Employee during such
suspension); and
(D) The Participant's maximum annual Employee Pre-Tax
Contributions under Section 3.1(c) for the calendar year following the calendar
year in which he receives his withdrawal are reduced by the amount of Employee
Pre-Tax Contributions he made in the calendar year in which he receives his
withdrawal.
Notwithstanding subparagraphs (A) thru (D), a Participant's
withdrawal may be considered to be in an amount necessary to satisfy a need
under paragraph (1) if it satisfies a method prescribed by the Commissioner
of Internal Revenue under Treasury Regulation Section 1.401(k)-1(d)(2)(iv)(B).
(d) A Participant's hardship withdrawal under this Section 6.2
shall be limited to the aggregate of all his Employee Pre-Tax Contributions
made prior to the withdrawal, excluding earnings thereon and reduced by the
amount of any prior withdrawal of such Contributions, plus the vested Current
Balance of his Employee Post-Tax Account and Employer Matching Account,
reduced by the outstanding balance of any loans under Section 6.1 at the time
of application for the hardship withdrawal. Upon attaining age 59 1/2, a
Participant's Employer Discretionary
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Account and his Rollover Account shall also be available for withdrawal.
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ARTICLE VII
FUNDING
7.1 CONTRIBUTIONS
Contributions by the Employer and Participants as provided for in
Article III shall be paid over to the Trustee. All contributions by the
Employer shall be irrevocable, except as otherwise provided in this Plan and
may be used only for the exclusive benefit of the Participants and their
Beneficiaries.
7.2 TRUSTEE
The Corporation will maintain an agreement with the Trustee
whereunder the Trustee will receive, invest and administer as a trust fund
Contributions made under this Plan in accordance with the Trust Agreement.
Such Trust Agreement is incorporated by reference as a part of the
Plan, and the rights of all persons entitled to benefits hereunder are
subject to the terms of the Trust Agreement. The Trust Agreement specifically
provides, among other things, for the investment and reinvestment of the Fund
and the income thereof, the management of the Fund, the responsibilities and
obligations of the Trustee, removal of the Trustee and appointment of a
successor, accounting by the Trustee and the disbursement of the Fund.
Subject to a Participant's Investment Option election, the Trustee
shall, in accordance with the terms of such
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Trust Agreement, accept and receive all sums of money paid to it from time to
time by the Employer, and shall hold and invest such moneys and the earnings
thereof as a trust fund for the exclusive benefit of the Participants and
their Beneficiaries and for the payment of reasonable expenses of
administering the Plan.
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ARTICLE VIII
FIDUCIARIES
8.1 GENERAL
Each Fiduciary who is allocated specific duties or responsibilities
under the Plan or any Fiduciary who assumes such a position with the Plan
shall discharge his duties solely in the interest of the Participants and
Beneficiaries and for the exclusive purpose of providing such benefits as
stipulated herein to such Participants and Beneficiaries, or of defraying
reasonable expenses of administering the Plan. Each Fiduciary in carrying out
such duties and responsibilities shall act with the care, skill, prudence,
and diligence under the circumstances then prevailing that a prudent person
acting in a like capacity and familiar with such matters would use in
exercising such authority or duties.
A Fiduciary may serve in more than one Fiduciary capacity and may
employ one or more persons to render advice with regard to his Fiduciary
responsibilities. If the Fiduciary is serving as such without compensation,
all expenses reasonably incurred by such Fiduciary shall be reimbursed by the
Employer or, at the Corporation's direction, from the assets of the Trust.
A Fiduciary may allocate any of his responsibilities for the
operation and administration of the Plan. In limitation of this right, a
Fiduciary may not allocate any responsibilities as contained herein relating
to the
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management or control of the Fund, except (1) through the employment of an
investment manager as provided in Section 8.3 and in the Trust Agreement
relating to the Fund, or (2) to the extent Participants elect their own
Investment Options.
8.2 CORPORATION
The Corporation established and maintains the Plan for the benefit
of its Employees and those of participating Employers and of necessity
retains control of the operation and administration of the Plan. The
Corporation is the Plan administrator within the meaning of ERISA Section
3(16)(A). The Corporation in accordance with specific provisions of the Plan
has, as herein indicated, delegated certain of these rights and obligations
to the Employer, the Trustee and the Committee and these parties shall be
solely responsible for these, and only these, delegated rights and
obligations.
The Employer shall indemnify each member of the Committee and any
of its employees to whom any fiduciary responsibility with respect to the
Plan is allocated or delegated, from and against any and all liabilities,
costs and expenses incurred by such persons as a result of any act or
omission to act in connection with the performance of their fiduciary duties,
responsibilities and obligations under the Plan and under ERISA, except for
liabilities and claims arising from such fiduciary's willful misconduct or
gross negligence. For such purpose, the Employer may obtain, pay for and keep
current a policy or policies of insurance. Where such policy or policies
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of insurance are purchased, there shall be no right to indemnification under
this Section 8.2, except to the extent of any deductible amount under the
policy or policies or with regard to covered claims in excess of the insured
amount. No Plan assets may be used for any indemnification.
The Employer shall supply such full and timely information for all
matters relating to the Plan as (a) the Committee, (b) the Trustee, and (c)
the accountant engaged on behalf of the Plan by the Corporation may require
for the effective discharge of their respective duties.
8.3 TRUSTEE
The Trustee, in accordance with the Trust Agreement, shall have
authority to manage the Fund, except that the Committee may in its discretion
employ at any time and from time to time an investment manager (as defined in
Section 3(38) of ERISA) to direct the Trustee with respect to all or a
designated portion of the assets comprising the Fund, and except that the
Trustee shall give effect to Participant Investment Option elections to the
extent permitted by ERISA Section 404.
8.4 COMMITTEE
The Corporation shall appoint a Committee of not less than three
persons to hold office during the pleasure of the Corporation. In the absence
of an appointed Committee, the Corporation shall serve as the Committee. No
compensation shall be paid members of the Committee from the Fund for service
on such Committee.
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The Committee shall choose from among its members a chairman and a
secretary. Any action of the Committee shall be determined by the vote of a
majority of its members. Either the chairman or the secretary may execute any
certificate or other written direction on behalf of the Committee.
The Committee shall hold meetings upon such notice, at such place
or places and at such time or times as the Committee may from time to time
determine. Meetings may be called by the chairman or any two members. A
majority of the members of the Committee at the time in office shall
constitute a quorum for the transaction of business. The Committee may also
act by written consent in lieu of a meeting.
A Committee member may resign at any time by giving notice of his
resignation to the Corporation at least thirty days in advance, unless the
Corporation shall accept shorter notice. The Corporation shall appoint
replacement Committee members. Any Committee member who was employed by the
Employer when appointed to the Committee shall automatically be deemed to
have resigned from the Committee effective as of the date he ceases to be
employed by the Employer, unless the Corporation shall affirmatively act to
keep said member on the Committee.
Nothing herein shall prevent a Committee member from being a
Participant, or from acting on Plan matters which affect himself by virtue of
affecting all Participants generally. However, a Committee member shall not
act on any matter which
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affects himself specially. If application of the preceding sentence results
in there not being a quorum to act on any matter, the Corporation shall
appoint the necessary number of temporary Committee members to take the
action.
In accordance with the provisions hereof, the Committee has been
delegated certain administrative functions relating to the Plan with all
powers necessary to enable it properly to carry out such duties.
The Committee shall have discretionary authority to interpret and
construe the Plan, and to determine, consistent with the terms of the Plan,
all questions of interpretation, construction and fact that may arise
thereunder relating to the eligibility of individuals to participate in the
Plan, the amount of benefits to which any Participant or Beneficiary may
become entitled hereunder, and any situation not specifically covered by the
provisions of the Plan. The determination of the Committee shall be final and
binding on all interested parties. All disbursements by the Trustee, except
for the ordinary expenses of administration of the Fund or the reimbursement
of reasonable expenses at the direction of the Corporation as provided
herein, shall be made upon, and in accordance with, the written directions of
the Committee. When the Committee is required in the performance of its
duties hereunder to administer or construe, or to reach a determination under
any of the provisions of the Plan, it shall do so on a uniform, equitable and
nondiscriminatory basis.
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8.5 CLAIMS FOR BENEFITS
All claims for benefits under the Plan shall be submitted to the
Committee which shall have the responsibility for determining the eligibility
of any Participant or Beneficiary for benefits. All claims for benefits shall
be made in writing and shall set forth the facts which such Participant or
Beneficiary believes to be sufficient to entitle him to the benefit claimed.
The Committee may adopt forms for the submission of claims for benefits in
which case all claims for benefits shall be filed on such forms.
Upon receipt by the Committee of a claim for benefits, it shall
determine all facts which are necessary to establish the right of an
applicant to benefits under the provisions of the Plan and the amount
thereof. The applicant shall be notified in writing by the Committee of its
decision with respect to such applicant's claim within 90 days after the
receipt of the written claim for benefits.
If any claim for benefits is denied, the notice shall be written in
a manner calculated to be understood by the applicant and shall include:
(a) The specific reason or reasons for the denial;
(b) Specific references to the pertinent Plan provisions
on which the denial is based;
(c) A description of any additional material or
information necessary for the applicant to perfect the claim
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and an explanation why such material or information is necessary; and
(d) An explanation of the Plan's claim review procedures.
If special circumstances require an extension of time for processing the
initial claim, a written notice of the extension and the reason therefor
shall be furnished to the claimant by the Committee before the end of the
initial 90 day period. In no event shall such extension exceed 180 days after
the receipt of the initial claim for benefits.
8.6 DENIAL OF BENEFITS - REVIEW PROCEDURE
In the event a claim for benefits is denied or if the applicant has
had no response to such claim within 90 days of its submission (in which case
the claim for benefits shall be deemed to have been denied), the applicant of
his duly authorized representative, at the applicant's sole expense, may
appeal the denial by filing a written request for review with the Committee
within 60 days of the receipt of written notice of denial or 60 days from the
date such claim is deemed to be denied. In pursuing such appeal the applicant
or his duly authorized representative may review pertinent Plan documents,
and may submit issues and comments in writing.
The decision on review shall be made by the Committee within 60
days of receipt of the request for review, unless special circumstances
require an extension of time for processing, in which case a decision shall
be rendered as soon as
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possible, but not later than 120 days after receipt of a request for review.
If such an extension of time is required, written notice of the extension
shall be furnished to the claimant before the end of the original 60 day
period. The decision on review shall be in writing, shall be written in a
manner calculated to be understood by the claimant, and shall include
specific references to the provisions of the Plan on which such denial is
based. If the decision on review is not furnished within the time specified
above, the claim shall be deemed denied on review. The decision of the
Committee upon review will be final and binding on all parties.
8.7 RECORDS
All acts and determinations of the Committee shall be duly recorded
by the secretary thereof and all such records, together with such other
documents as may be necessary in exercising its duties under the Plan shall
be preserved in the custody of such secretary. Such records and documents
shall at all times be open for inspection and for the purpose of making
copies by any person designated by the Corporation. The Committee shall
provide such timely information, resulting from the application of its
responsibilities under the Plan, as needed by the Trustee and the accountant
engaged on behalf of the Plan by the Corporation, for the effective discharge
of their respective duties.
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8.8 MISSING PERSONS
The Committee shall make a reasonable effort to locate all persons
entitled to benefits under the Plan. If such a person cannot be located, the
amount to which such a person otherwise would be entitled shall be retained
by the Trustee and treated in all respects as assets of the Trust, pending
disposition of such amount in accordance with regulations promulgated by the
Secretary of Labor or the Secretary of the Treasury. The Trustee may deposit
any such amounts in an "escheat fund" maintained by such Trustee but not
within the Trust.
8.9 QUALIFIED DOMESTIC RELATIONS ORDERS
(a) The provisions of Section 12.5 shall not prohibit the creation,
recognition of or assignment to an alternate payee of the right to receive
all or a portion of the benefits payable to a Participant, if such creation,
recognition or assignment is made pursuant to a qualified domestic relations
order within the meaning of ERISA Section 206(d).
(b) Upon receipt of a domestic relations order, the Committee shall
notify the Participant and any alternate payee(s) specified in such order of
receipt thereof, and of the Plan's procedures for determining whether such
order is qualified. Within a reasonable period of time after receipt of the
domestic relations order, the Committee shall determine whether the order is
qualified and shall notify the Participant and any alternate payee(s)
specified in the order of the
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determination. Such notification shall be sent by first class mail, postage
prepaid, to the addresses specified in the order, or if no addresses are
there specified, to the last known addresses of the Participant and alternate
payee(s).
(c) The Committee shall determine whether any domestic relations
order received is qualified and shall administer distributions thereunder. An
alternate payee may designate a representative who shall be sent copies of
any notices required to be sent to such alternate payee under this Section.
(d) While the Committee, a court of competent jurisdiction, or any
other duly involved forum, is determining whether a domestic relations order
is qualified, the Trustee shall place in a segregated account any amounts
that would have been payable to an alternate payee specified under such order
if the order had been determined to be qualified. If the Committee determines
that a domestic relations order is not qualified, or if no determination is
made within eighteen months after receipt of such order, the amounts placed
in the segregated account, plus earnings thereon, shall be paid to the
Participant to the extent the Participant would have received such amounts
but for the existence of the domestic relations order. Otherwise, they shall
be returned to the Participant's Account. If within such eighteen month
period the Committee determines that a domestic relations order is qualified,
the amounts placed in the segregated account, plus earnings thereon, shall be
paid to the
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alternate payee(s). Any determination that a domestic relations order is
qualified which is made more than eighteen months after the Committee
receives such order shall be given prospective effect only.
(e) The Committee and all other Plan fiduciaries shall act in
accordance with the fiduciary responsibility provisions of this Article VIII
in determining whether a domestic relations order is qualified or in taking
any other actions under this Section with respect to such order. The
presumptions and powers afforded to any Committee or other fiduciary decision
under this Article shall apply to all matters involving domestic relations
orders.
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ARTICLE IX
AMENDMENT AND TERMINATION OF THE PLAN
9.1 AMENDMENT OF THE PLAN
The Corporation shall have the right at any time by action of the
Board to amend the Plan in whole or in part, including retroactively to the
extent necessary. The duties, powers and liability of the Trustee hereunder
shall not be increased without its written consent. The amount of benefits
which at the later of the adoption or effective date of such amendment shall
have accrued for any Participant or Beneficiary hereunder shall not be
adversely affected thereby. No such amendment shall have the effect of
revesting in the Employer any part of the principal or income of the Fund. No
amendment may eliminate or reduce any early retirement benefit or subsidy
that continues after retirement or optional form of benefit. Unless expressly
provided for in an amendment, it shall not affect the rights and obligations
of any Participant who terminated employment prior to the effective date of
the amendment.
9.2 TERMINATION OF THE PLAN
The Corporation expects to continue the Plan indefinitely, but
continuance is not assumed as a contractual obligation and each Employer
reserves the right at any time by action of its board of directors to
terminate the Plan as applicable to itself. If an Employer terminates or
partially terminates the Plan or permanently discontinues its Contributions
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at any time, each Participant affected thereby shall be then fully vested in
his Individual Account.
In the event of termination of the Plan by an Employer, the
Committee shall value the Fund as of the date of termination. That portion of
the Fund applicable to any Employer for which the Plan has not been
terminated shall be unaffected. The Individual Accounts of the Participants
and Beneficiaries affected by the termination, as determined by the
Committee, shall continue to be administered as part of the Fund or
distributed to such Participants or Beneficiaries under Section 5.4 as the
Committee, in its discretion, shall determine. Any distributions upon plan
termination of amounts attributable to Employee Pre-Tax Contributions shall
only be made to the extent permissible by Code Section 401(k)(10).
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ARTICLE X
PROVISIONS RELATIVE TO EMPLOYERS INCLUDED IN PLAN
10.1 METHOD OF PARTICIPATION
Any organization which must be considered together with the
Corporation under Code Sections 414(b), (c) or (m), may with the consent of
the Board adopt the Plan. In order to adopt the Plan, appropriate action is
required by the board of directors of the adopting organization and by the
Board. Any organization which becomes a party to the Plan shall thereafter
promptly deliver to the Trustee a certified copy of the resolutions or other
documents evidencing its adoption of the Plan and also a written instrument
showing the Board's approval of such organization's becoming a party to the
Plan. The Plan shall be maintained as a single Plan for all participating
Employers.
10.2 WITHDRAWAL
Any one or more of the Employers included in the Plan may withdraw
from the Plan at any time by giving six months advance notice in writing to
the Board and the Committee (unless a shorter notice shall be agreed to by
the Board) of its or their intention to withdraw. Upon receipt of notice of
any such withdrawal, the Committee shall certify to the Trustee the equitable
share of such withdrawing Employer in the Fund (to be determined by the
Committee).
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The Trustee shall thereupon set aside from the Fund then held by it
such securities and other property as it shall, in its sole discretion, deem
to be equal in value to such equitable share. If the Plan is to be terminated
with respect to such Employer, the amount set aside shall be dealt with in
accordance with the provisions of Section 9.2. If the Plan is not to be
terminated with respect to such Employer, the Trustee shall pay such amount
to such trustee as may be designated by such withdrawing Employer, and such
securities and other property shall thereafter be held and invested as a
separate trust of the Employer which has so withdrawn, and shall be used and
applied according to the terms of a new agreement and declaration of trust
between the Employer so withdrawing and the trustee so designated.
Neither the segregation of the Fund assets upon the withdrawal of
an Employer, nor the execution of any new agreement and declaration of trust
under this Section 10.2, shall operate to permit any part of the corpus or
income of the Fund to be used for or diverted to purposes other than for the
exclusive benefit of Participants and Beneficiaries or to defray reasonable
costs of administering the Plan and Trust.
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ARTICLE XI
TOP-HEAVY PROVISIONS
11.1 DETERMINATION OF TOP-HEAVY: (a)(1) The Plan will be considered a
Top-Heavy Plan for any Plan Year if as of the Determination Date (A) the sum
of the Individual Accounts of Participants who are Key Employees determined
as of the Valuation Date coincident with or preceding the Determination Date
(this value shall not include any allocations to be made as of or after such
Valuation Date except contributions actually made and allocated on or before
the Determination Date) exceeds 60% of the sum of the Individual Accounts of
all Participants determined as of such Valuation Date (this value shall not
include any allocations to be made as of or after such Valuation Date except
contributions actually made and allocated on or before the Determination
Date), excluding former Key Employees (the "60% Test") or (B) the Plan is
part of a Required Aggregation Group which is Top-Heavy. Notwithstanding the
results of the 60% Test, the Plan shall not be considered a Top-Heavy Plan
for any Plan Year in which the Plan is a part of a Required or Permissive
Aggregation Group which is not Top-Heavy.
(2) For purposes of the 60% Test,
(A) all distributions made from Individual Accounts within the
five year period ending on the Determination Date shall be taken into account;
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(B) if any Participant is a non-Key Employee with respect to
the Plan for any Plan Year, but such Participant was a Key Employee with
respect to the Plan for any prior Plan Year, the Individual Account of such
Participant shall not be considered.
(C) If a Participant has not performed any service for an
Employer or any Affiliate at any time during the five year period ending on
the Determination Date, the Account of such Participant shall not be
considered.
(b) MINIMUM ALLOCATIONS: Notwithstanding Section 4.4, for any Plan
Year during which the Plan is a Top-Heavy Plan, the rate of Employer
Discretionary Contributions for such Plan Year allocated to the Individual
Accounts of Participants who are non-Key Employees and who remain employed by
the Employer (or any Affiliate) at the end of the Plan Year (regardless of
any such Participant's hours of service or level of compensation during the
Plan Year) shall not be less than the lesser of:
(1) three percent (3%) of such non-Key Employee Participant's
Section 415 Compensation; or
(2) the highest aggregate percentage of Section 415
Compensation at which Employer Matching Contributions, Employer Discretionary
Contributions and Employee Pre-Tax Contributions are made (or required to be
made) and allocated under Article IV for any Key Employee for the Plan Year.
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If a Participant is covered by more than one defined contribution plan
on account of his employment with the Employer and/or any Affiliate, the
minimum allocation required by this Section shall be determined by
aggregating the allocations under all such plans.
11.2 TOP-HEAVY DEFINITIONS
DETERMINATION DATE - With respect to any Plan Year, the last day
of the preceding Plan Year, or in the case of the first Plan Year, the last
day of that Plan Year.
KEY EMPLOYEE - Any Employee or former Employee who at any time
during the Plan Year containing the Determination Date, or the four preceding
Plan Years, is or was (1) an officer of the Employer having annual Section
415 Compensation for such Plan Year which is in excess of 50 percent of the
dollar limit in effect under Code Section 415(b)(1)(A) for the calendar year
in which such Plan Year ends (but in no event shall the number of officers
taken into account as Key Employees exceed the lesser of (i) 50 or (ii) the
greater of 3 or 10% of all employees); (2) an owner of (or considered as
owning within the meaning of Code Section 318) both more than a 1/2
percent interest as well as one of the ten largest interests in the Employer
and having annual Section 415 Compensation greater than the dollar limit in
effect under Code Section 415(c)(1)(A) for such Year; (3) a five percent
owner of the Employer; or (4) a one percent owner of the Employer who has
annual Section 415 Compensation of more than $150,000. For purposes of
determining five percent and one percent owners,
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neither the aggregation rules nor the rules of subsections (b), (c) and (m)
of the Code Section 414 apply. Beneficiaries of an Employee acquire the
character of the Employee who performed services for the Employer. Also,
inherited benefits will retain the character of the benefits of the Employee
who performed services for the Employer. A non-Key Employee is any Employee
who is not a Key Employee, or who is a former Key Employee.
PERMISSIVE AGGREGATION GROUP - Each employee pension benefit plan
maintained by the Employer (or any Affiliate) which is considered part of the
Required Aggregation Group, plus one or more other employee pension benefit
plans maintained by the Employer (or any Affiliate) that are not part of the
Required Aggregation Group but that satisfy the requirements of Code Sections
401(a)(4) and 410 when considered together with the Required Aggregation
Group.
REQUIRED AGGREGATION GROUP - Each employee pension benefit plan
maintained by the Employer (or any Affiliate), whether or not terminated, in
which a Key Employee participates in the Plan Year containing the
Determination Date or any of the four preceding Plan Years, and each other
employee pension benefit plan maintained by the Employer (or any Affiliate),
whether or not terminated, in which no Key Employee participates but which
during the same period enables any employee pension benefit plan in which a
Key Employee participates to meet the requirements of Code Sections 401(a)(4)
or 410.
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ARTICLE XII
MISCELLANEOUS
12.1 GOVERNING LAW
The Plan shall be construed, regulated and administered according
to the laws of Virginia except in those areas preempted by the laws of the
United States of America.
12.2 CONSTRUCTION
The headings and subheadings in the Plan have been inserted for
convenience of reference only and shall not affect the construction of the
provisions hereof. In any necessary construction the masculine shall include
the feminine and the singular the plural, and vice versa.
12.3 ADMINISTRATION EXPENSES
The expenses of administering the Fund and the Plan may be paid by
either by the Employer or from the Fund, as directed by the Corporation.
12.4 PARTICIPANT'S RIGHTS; ACQUITTANCE
No Participant in the Plan shall acquire any right to be retained
in the Employer's employ by virtue of the Plan, nor, upon his dismissal, or
upon his voluntary termination of employment, shall he have any right or
interest in and to the Fund other than as specifically provided herein. The
Employer shall not be be liable for the payment of any benefit provided for
herein. All benefits hereunder shall be payable only from the Fund.
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12.5 SPENDTHRIFT CLAUSE
Except as provided by a qualified domestic relations order within
the meaning of ERISA Section 206(d)(3), none of the benefits, payments,
proceeds, or distributions under this Plan shall be subject to the claim of
any creditor, of a Participant or a Beneficiary hereunder or to any legal
process by any creditor of a Participant or Beneficiary. Neither a
Participant or Beneficiary shall have any right to alienate, commute,
anticipate, or assign any of the benefits, payments, proceeds or
distributions under this Plan.
12.6 MERGER, CONSOLIDATION OR TRANSFER
(a) In the event of the merger or consolidation of the Plan with
another plan or transfer of assets or liabilities from the Plan to another
plan, each then Participant or Beneficiary shall be entitled on the day
following such merger, consolidation or transfer to at least the benefit he
was entitled to on the day prior to the merger, consolidation or transfer,
determined as if the Plan had then terminated.
(b) The Plan shall not accept a transfer of assets from any other
plan which would cause this Plan to be subject to Code Section 401(a)(11)
with respect to any Participant.
12.7 MISTAKE OF FACT
Notwithstanding anything herein to the contrary, upon the
Employer's request, a Contribution which was made by a mistake of fact, or
conditioned upon initial qualification of the
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Plan or upon the deductibility of the Contribution under Code Section 404,
may be returned to the Employer by the Trustee within one year after the
payment of the Contribution, the denial of the qualification or the
disallowance of the deduction (to the extent disallowed), whichever is later.
For purposes of the preceding sentence, all contributions to the Plan made
before receipt of a favorable determination letter on qualification from the
Internal Revenue Service shall be conditioned on the Plan's initial
qualification, and all contributions, whenever made, shall be conditioned on
their deductibility under Code Section 404. A return of Contributions on
account of the Plan's failure to initially qualify shall only be permitted if
the Plan sponsor timely filed an application for determination of tax
qualified status with the Internal Revenue Service prior to the end of the
remedial amendment period determined under Treasury Regulation Section
1.401(b).
12.8 COUNTERPARTS
The Plan and the Trust Agreement may be executed in any number of
counterparts, each of which shall constitute but one and the same instrument
and may be sufficiently evidenced by any one counterpart.
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ARTICLE XIII
ADOPTION OF THE PLAN
Anything herein to the contrary notwithstanding, this Plan is adopted
and maintained under the condition that it is approved and qualified by the
Internal Revenue Service under Code Section 401(a) and that the Trust
hereunder is exempt under Code Section 501(a). In the event that it should be
found by the Internal Revenue Service that the Plan as amended and restated
hereby is not qualified, the Corporation may modify the Plan to meet Internal
Revenue Service requirements.
As evidence of its adoption of the Plan, National Fiberstok Corporation
has caused this instrument to be signed by its authorized officer this
_______ day of ___________________, 1996, effective as of January 1, 1996,
except as otherwise set forth herein.
WITNESS: NATIONAL FIBERSTOK CORPORATION
_____________________________ By:___________________________
Robert M. Miklas, President
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