Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates (Restated Effective January 1, 2005)
This agreement establishes a profit sharing plan for employees of Trinity Industries, Inc. and certain affiliated companies. The plan outlines eligibility, participation, contributions by both employer and employees, allocation of funds, and benefit payments upon retirement, disability, death, or other termination of employment. It also details plan administration, amendment procedures, and compliance with federal laws such as ERISA and the Internal Revenue Code. The plan is designed to provide retirement and related benefits to eligible employees, with specific rules for various employee groups and affiliates.
TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES
AS RESTATED EFFECTIVE JANUARY 1, 2005
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ARTICLE I PURPOSE | 1 | |||
ARTICLE II DEFINITIONS, CONSTRUCTION, ADOPTION AND APPLICABILITY | 3 | |||
2.01 Definitions | 3 | |||
2.02 Construction | 10 | |||
2.03 Adoption by Others | 10 | |||
2.04 Applicability | 10 | |||
ARTICLE III PARTICIPATION AND SERVICE | 11 | |||
3.01 Participation | 11 | |||
3.02 Service | 12 | |||
3.03 Election to Participate | 14 | |||
3.04 Transfer | 14 | |||
3.05 Special Rules for Former Collective Bargaining Employees of the LPG Division | 14 | |||
3.06 Special Rules for Employees of Syro Steel Company | 15 | |||
3.07 Special Rules for Employees of Platzer Shipyard, Inc. | 15 | |||
3.08 Special Rules for Employees of Transcisco Industries, Inc. | 16 | |||
3.09 Special Rules for Employees of DIFCO, Inc. | 17 | |||
3.10 Special Rules for Salaried Employees of Thrall Car Manufacturing Company or Duchossois Industries, Inc. | 18 | |||
3.11 Special Rules for Employees of Southern Star Concrete, Inc. | 19 | |||
3.12 Adoption of Special Rules In Connection With Future Acquisitions | 19 | |||
ARTICLE IV CONTRIBUTIONS AND FORFEITURES | 20 | |||
4.01 Employer Contributions | 20 | |||
4.02 Participant Salary Reduction | 27 | |||
4.03 Disposition of Forfeitures | 32 | |||
4.04 Rollover Contributions; Transfers | 33 | |||
4.05 Contributions by Participants | 34 | |||
4.06 Special Rules under USERRA | 34 | |||
ARTICLE V ALLOCATIONS TO PARTICIPANTS ACCOUNTS | 35 | |||
5.01 Individual Accounts | 35 | |||
5.02 Account Adjustments | 35 | |||
5.03 Maximum Additions | 36 | |||
5.04 Top-Heavy Provisions | 38 | |||
ARTICLE VI BENEFITS | 41 | |||
6.01 Retirement or Disability | 41 | |||
6.02 Death | 41 | |||
6.03 Termination for Other Reasons | 41 | |||
6.04 Payments of Benefits | 42 | |||
6.05 Required Minimum Distributions | 45 | |||
6.06 Designation of Beneficiary | 51 | |||
6.07 Loans to Participants | 52 |
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6.08 In-Service Withdrawals | 54 | |||
6.09 Partial Withdrawals Following Termination of Employment Prior to Complete Distribution | 56 | |||
6.10 Payments to Alternate Payees | 57 | |||
ARTICLE VII TRUST FUND | 58 | |||
7.01 General | 58 | |||
7.02 Special Rules for HMGI Stock Fund | 59 | |||
ARTICLE VIII ADMINISTRATION | 60 | |||
8.01 Allocation of Responsibility Among Fiduciaries for Plan and Trust Administration | 60 | |||
8.02 Appointment of Committee | 60 | |||
8.03 Claims Procedure | 60 | |||
8.04 Records and Reports | 61 | |||
8.05 Other Committee Powers and Duties | 61 | |||
8.06 Rules and Decisions | 62 | |||
8.07 Committee Procedures | 62 | |||
8.08 Authorization of Benefit Payments | 62 | |||
8.09 Application and Forms for Benefits | 62 | |||
8.10 Facility of Payment | 62 | |||
8.11 Indemnification | 63 | |||
8.12 Unclaimed Benefits | 63 | |||
ARTICLE IX MISCELLANEOUS | 64 | |||
9.01 Nonguarantee of Employment | 64 | |||
9.02 Rights to Trust Assets | 64 | |||
9.03 Nonalienation of Benefits | 64 | |||
9.04 Discontinuance of Employer Contributions | 65 | |||
9.05 Certain Social Security Increases | 65 | |||
ARTICLE X AMENDMENTS AND ACTION BY EMPLOYER | 67 | |||
10.01 Amendments | 67 | |||
10.02 Action by Employer | 67 | |||
ARTICLE XI SUCCESSOR EMPLOYER AND MERGER OR CONSOLIDATION OF PLANS | 68 | |||
11.01 Successor Employer | 68 | |||
11.02 Plan Assets | 68 | |||
ARTICLE XII PLAN TERMINATION | 69 | |||
12.01 Right to Terminate | 69 | |||
12.02 Partial Termination | 69 | |||
12.03 Liquidation of the Trust Fund | 69 | |||
12.04 Manner of Distribution | 69 |
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TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES
AS RESTATED EFFECTIVE JANUARY 1, 2005
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2.01 | Definitions |
(a) | Additions. With respect to each Year, the sum of the following amounts allocated on behalf of a Participant for a Year : (i) all Employer Contributions; (ii) all Forfeitures; and (iii) all Salary Reduction Contributions. Except to the extent provided in Treasury regulations, Additions include excess contributions (as defined in Code Section 401(k)(8)(B)) and excess aggregate contributions (as defined in Code Section 401(m)(6)(B)), irrespective of whether the Plan distributes or forfeits such excess amounts Excess deferrals (as defined in Code Section 402(g)) are not Additions unless distributed after the correction period described in Code Section 402(g). Additions also include excess amounts reapplied to reduce Employer Contributions. Amounts allocated to an individual medical account (as defined in Code Section 415(1)(2)) included as part of a defined benefit plan maintained by the Employer are Additions. | ||
(b) | Affiliate. Any corporation (other than an Employer) which is included within a controlled group of corporations (as defined in Section 414(b) of the Code) which includes an Employer; any trade or business (other than an Employer), whether or not incorporated, which is under common control (as defined in Section 414(c) of the Code) with an Employer; any organization (other than an Employer), whether or not incorporated, which is a member of an affiliated service group (as defined in Section 414(m) of the Code) which includes an Employer; and any other entity required to be aggregated with an Employer pursuant to Treasury Regulations under Section 414(o) of the Code. | ||
(c) | Annual Retirement Contribution. Any contribution made by an Employer on behalf of a Participant pursuant to Section 4.01(c) hereof. | ||
(d) | Authorized Leave of Absence. Any absence (including military leave) authorized by an Employer under the Employers standard personnel practices, uniformly applied and in accordance with applicable Federal law (other than ERISA); provided however that no absence shall be considered an Authorized Leave of Absence unless the Employee returns to employment immediately (in the case of military leave, within the 90-day period after his discharge or release or within the period prescribed by applicable law, whichever is longer) upon the expiration of such absence. An absence due to service in the Armed Forces of the United States shall be considered an Authorized Leave of Absence provided that the absence is caused by war or other emergency, or provided that the Employee is required to serve under the laws of conscription in time of peace. |
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(e) | Beneficiary. A person or persons (natural or otherwise) designated by a Participant or Former Participant in accordance with the provisions of Section 6.06 to receive any death benefit which shall be payable under this Plan. | ||
(f) | Code. The Internal Revenue Code of 1986, as amended from time to time. | ||
(g) | Committee. The persons appointed under the provisions of Article VIII to administer the Plan. | ||
(h) | Company. TRINITY INDUSTRIES, INC., a corporation organized and existing under the laws of the State of Delaware, or its successor or successors. | ||
(i) | Compensation.The total of all amounts paid annually to a Participant by the Employer for personal services as reported on the Participants Federal Income Tax Withholding Statement (Form W-2) plus any Salary Reduction Contributions described in Section 4.02 hereof and any amounts not included in the Participants gross income pursuant to Section 125 of the Code but excluding (i) any other contributions made under this Plan or any other plan of deferred compensation, (ii) tuition reimbursement payments, (iii) moving expense payments, (iv) excess life insurance imputed income, (v) income from nonqualified stock options, (vi) automobile allowance payments, (vii) medical allowance payments, (viii) safe driving bonuses, (ix) employee awards, (x) lodging allowance payments, (xi) tool allowance payments, (xii) road expense reimbursement payments, (xiii) commuting allowance payments, (xiv) meal allowance payments, (xv) third-party sick pay, (xvi) attendance/safety bonuses; (xvii) travel allowances, (xviii) company automobile; (xix) executive perquisites; and (xx) such other similar amounts as the Committee may from time to time exclude in its sole discretion; provided, however, that for purposes of determining benefits hereunder, the total Compensation of a Participant to be taken into account for a given Year shall not exceed $210,000.00 (as automatically increased in accordance with Treasury Department regulations to reflect cost of living adjustments). | ||
(j) | Disability. A physical or mental condition which, in the judgment of the Committee, totally and presumably permanently prevents a Participant from engaging in any substantial or gainful employment. Determinations of Disability shall be made on the basis of standards applied uniformly to all Participants. | ||
(k) | Effective Date. Except where otherwise indicated herein, January 1, 2005, the date on which the provisions of this amended and restated Plan became effective. | ||
(l) | Elapsed-Time Employment. With respect to an Employee, the period beginning on his Employment Commencement Date (or Re-employment Commencement Date, as the case may be) and ending on the date of his Severance from Service. Such period shall be determined without regard to the actual number of Hours of Employment completed by the Employee during such period. Except to the extent otherwise permitted by the Committee in its sole discretion, Elapsed-Time Employment completed with an Affiliate or a Participating Employer prior to the |
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date on which such Affiliate or Employer was included within a controlled group of corporations (as defined in Section 414(b) of the Code) which includes the Company shall not be recognized under this Plan. |
(m) | Employee. Any individual on the payroll of an Employer, including leased employees as defined in Code Section 414(n), whose wages from such Employer are subject to withholding for purposes of Federal income taxes and for purposes of the Federal Insurance Contributions Act. Notwithstanding the foregoing, if such leased employees constitute less than twenty percent (20%) of the Employers non-highly compensated work force within the meaning of Section 414(n)(5)(C)(ii) of the Code, the term Employee shall not include leased employees covered by a plan described in Section 414(n)(5) of the Code unless otherwise provided by the terms of this Plan. Notwithstanding the preceding, the term Employee shall not include any individual who is designated as an independent contactor by the Employer, even if the status of such individual subsequently is changed from that of an independent contractor to that of an employee as a result of administrative or legal proceedings. | ||
(n) | Employer or Participating Employer. The Company, or any other Affiliate of the Company identified on Addendum I hereto which may have adopted this Plan in accordance with the provisions of Section 2.03 hereof. | ||
(o) | Employer Contributions. Employer Matching Contributions, Annual Retirement Contributions and Start-Up Contributions. | ||
(p) | Employer Contribution Account. The Account maintained for a Participant or Former Participant to record his share of the Employer Contributions and adjustments relating thereto. The Employer Contribution Account shall consist of the following subaccounts: |
| The Employer Matching Contribution Account, holding Employer Matching Contributions and adjustments thereto; | ||
| The Start-Up Contribution Account, holding Start-Up Contributions and adjustments thereto; and | ||
| The Annual Retirement Contribution Account, holding Annual Retirement Contributions and adjustments thereto. |
(q) | Employer Matching Contribution. Any contribution to the Plan made by an Employer for the Plan Year on behalf of a Participant pursuant to Section 4.01(b) hereof. | ||
(r) | Employment Commencement Date. The first date on which an Employee completes an Hour of Employment. | ||
(s) | ERISA. Public Law No. 93-406, the Employee Retirement Income Security Act of 1974, as amended from time to time. |
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(t) | Extended Absence Employee. An Employee who is absent from his Employers employment solely because of (i) the Employees pregnancy, (ii) the birth of the Employees child, (iii) the placement of a child with the Employee in connection with the adoption of the child by the Employee, or (iv) the care of a child by the Employee during the period immediately following such childs birth to, or placement with, the Employee. | ||
(u) | Fiduciaries.The Employers, the Committee, and the Trustee, but, except to the extent of an appointment made by the Committee pursuant to Section 8.05(g) hereof, only with respect to the specific responsibilities of each for Plan and Trust administration, all as described in Section 8.01. | ||
(v) | Forfeitures. The portion of a Participants Employer Contribution Account which, subject to Section 4.03 of the Plan, is forfeited because of a Severance from Service before full vesting. | ||
(w) | Former Participant. A Participant whose Participation has terminated but who has a vested account balance under the Plan which has not been paid in full. | ||
(x) | Highly Compensated Employee. A Participant or Former Participant who is a Highly Compensated Employee, as defined in Code Section 414(q). A Participant or Former Participant is considered a Highly Compensated Employee if: |
(1) | during the Plan Year (the Determination Year) or during the twelve month period immediately preceding the Determination Year, the Participant or Former Participant was at any time a five percent owner as defined in Code Section 416(i)(l)(A)(iii); or | ||
(2) | for the preceding Plan Year, the Participant or Former Participant had Compensation from the Employer in excess of $95,000 (as automatically increased in accordance with Treasury Department regulations) and was in the top-paid group of employees for such preceding Year. An Employee is in the top-paid group of employees for any Plan Year if such Employee is in the group consisting of the top 20 percent of employees when ranked on the basis of compensation paid during such year In determining the top-paid group of employees, compensation shall have the same meaning as that set forth in Section 415(c)(3) of the Code. | ||
The Committee shall determine which Participants or Former Participants are Highly Compensated Employees in a manner consistent with Code Section 414(q) and the regulations promulgated thereunder. | |||
A Former Participant who separated from Service, or is deemed to have separated from Service under applicable Treasury Regulations, prior to the Plan Year, who performs no Service for the Employer during the Plan Year and who was a Highly Compensated Employee either for the separation year or any Plan Year ending on or after such Former Participant attained age fifty-five (55) is considered a Highly Compensated Employee. For purposes of this paragraph (x), separation |
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(y) | Hour of Employment. Each hour (i) for which an Employee is on an Authorized Leave of Absence or is directly or indirectly paid or entitled to payment by his Employer for the performance of duties or for reasons other than the performance of duties, or (ii) for which back-pay (irrespective of mitigation of damages) has been either awarded or agreed to by the Employer. In the case of clause (i) above, each such Hour of Employment shall, in general, be credited for the computation period in which the duties were performed, or to which payments or entitlements to payments relate (in cases in which Hours of Employment are credited for periods in which duties are not performed). In the case of clause (ii) above, each such Hour of Employment shall, in general, be credited for the computation period to which the agreement or award pertains. Notwithstanding any provision to the contrary herein contained, no Employee shall be credited with an Hour of Employment under both clauses (i) and (ii) above. In determining the number of Hours of Employment to be credited to an Employee in the case of a payment which is made or due to an Employee under the provisions of clause (i) above, for a period during which services were not performed (including a payment made by application of clause (ii) for a period also covered by clause (i) during which services were not performed), and the computation period(s) to which Hours of Employment shall be credited, the Committee shall apply the rules set forth in United States Department of Labor Regulations Section 2530.200b-2(b) and (c), which rules are incorporated into and made a part of this Plan by reference. Nothing in this paragraph shall be construed as denying an Employee credit for an Hour of Employment which he is required to receive under any Federal law, the nature and extent of which credit shall be determined by such Federal law. | ||
Hours of Employment shall be determined from records maintained by each Employer; provided, however, that an Employer may elect to determine Hours of Employment for any classification of Employees which is reasonable, nondiscriminatory and consistently applied, on the basis that Hours of Employment include forty-five (45) Hours of Employment for each week or portion thereof during which an Employee is credited with one (1) Hour of Employment. In determining the equivalent number of Hours of Employment to be credited to an Employee in the case of a payment made or due under paragraph (1) above, when the payment is not calculated on the basis of units of time, the Committee shall apply the rules set forth in United States Department of Labor Regulations Section 2530.200b-2(b)(2) and (3). If such a payment is calculated on the basis of units of time, which units are greater than the period of employment used in this equivalency formula, the Employee shall be credited with the number of Hours of Employment included in the periods of employment which, in the course of the Employees regular work schedule, would be included in the unit or units of time on the basis of which the payment is calculated. |
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Except to the extent otherwise permitted by the Committee in its sole discretion, Hours of Employment completed with an Affiliate or a Participating Employer prior to the date on which such Affiliate or Employer was included within a controlled group of corporations (as defined in Section 414(b) of the Code) which includes the Company shall not be recognized under this Plan. |
(z) | Income. The net gain or loss of the Trust Fund from investments, as reflected by interest payments, dividends, realized and unrealized gains and losses on securities, other investment transactions and expenses paid from the Trust Fund. In determining the Income of the Trust Fund for any period, assets shall be valued on the basis of their fair market value, as determined by the Trustee. | ||
(aa) | Key Employee. An Employee, former Employee (including a deceased Employee) who, at any time during the Plan Year in which the determination date occurs is (i) an officer of the Employer having annual compensation greater than $135,000 (as adjusted under Section 416(i)(l) of the Code) for any such Year, (ii) a 5% owner of the Employer in accordance with Section 416(i)(A)(iii) of the Code, or (iii) a 1% owner of the Employer having annual compensation in excess of $150,000. For this purpose, annual compensation means compensation within the meaning of Section 415(c)(3) of the Code. The determination of who is a Key Employee will be made in accordance with Section 416(i)(l) of the Code and Treasury Regulations thereunder. | ||
(bb) | Leased Employee. A Leased Employee is an individual (i) who otherwise is not an Employee of an Employer, (ii) who, pursuant to a leasing agreement between the Employer and any other person, has performed services for the Employer (or for the Employer and any persons related to the Employer within the meaning of Code Section 144(a)(3)) on a substantially full-time basis for at least one (1) year, and (iii) who performs services under the primary direction and control of the Employer. The Compensation of a Leased Employee includes compensation from the leasing organization which is attributable to services performed for the Employer. Notwithstanding the foregoing, a Leased Employee shall not be treated as an Employee of an Employer if the leasing organization covers the Leased Employee in a Safe Harbor Plan and, prior to the application of this exception, twenty percent (20%) or less of the Employers Employees (other than highly compensated employees, as defined in the Code) are Leased Employees. A Safe Harbor Plan is a money purchase pension plan providing immediate participation, full and immediate vesting, and a nonintegrated contribution formula equal to at least ten percent (10%) of the employees compensation (defined in Section 415(c)(3) of the Code) without regard to employment by the leasing organization on a specified date. | ||
(cc) | Non-Highly Compensated Employee. An Employee who is not a Highly Compensated Employee. | ||
(dd) | Participant. An Employee participating in the Plan in accordance with the provisions of Section 3.01. |
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(ee) | Participation. The period commencing on the date on which an Employee becomes a Participant and ending on the date on which the Employee incurs a Break in Service (as defined in Section 3.02(d)). | ||
(ff) | Plan. PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE JANUARY 1,2005, the Plan set forth herein, as amended from time to time, more commonly known as THE TRINITY 401(k) PLAN. | ||
(gg) | Prior Plan. The Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates, as in effect prior to the Effective Date. | ||
(hh) | Re-Employment Commencement Date. The first date on which an Employee completes an Hour of Employment upon his return to the employment of an Employer after a Break in Service. | ||
(ii) | Retirement Choice Election. The election offered to participants and employees eligible to become participants in the Trinity Industries, Inc. Standard Pension Plan (the Standard Plan) to either freeze participation in the Standard Plan effective as of the date specified in the Election, or continue participating in the Standard Plan without interruption or cessation. | ||
(jj) | Rollover Account. The account maintained for a Participant or Former Participant to record qualifying rollover distributions contributed to the Plan pursuant to Section 4.04 hereof and adjustments relating thereto. | ||
(kk) | Salary Reduction Contribution. Any contribution to the Plan made by an Employer for the Plan Year on behalf of a Participant pursuant to Section 4.01(a) hereof. | ||
(ll) | Salary Reduction Contribution Account. The account maintained for a Participant or Former Participant to record contributions made on his behalf by his Employer pursuant to Section 4.01(a) hereof and adjustments relating thereto. | ||
(mm) | Service. A Participants period of employment with the Employers determined in accordance with Section 3.02. | ||
(nn) | Severance from Service. With respect to an Employee, the later of (1) or (2), where: |
(1) | is the earlier of (i) the date on which he quits, or is discharged from, the employment of the Employers, or the date of his retirement or death, or (ii) the first anniversary of the first date of a period in which he remains absent from the employment of the Employers, with or without pay, for any reason other than one specified in (i), above, such as vacation, holiday, sickness, Authorized Leave of Absence or layoff; and |
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(2) | is, in the case of an Extended Absence Employee, the second anniversary of such Employees absence. |
(oo) | Short Plan Year. The period of time from April 1,2001 through December 31, 2001. | ||
(pp) | Start-Up Contribution. Any contribution made by an Employer on behalf of a Participant pursuant to Section 4.01(d) hereof. | ||
(qq) | Trust (or Trust Fund). The TRINITY INDUSTRIES, INC. MASTER TRUST maintained in accordance with the terms of the Master Trust Agreement between Trinity Industries, Inc. and the Trustee, as from time to time amended, which constitutes a part of this Plan. | ||
(rr) | Trustee. The corporation, individual or individuals appointed by the Board of Directors of the Company to administer the Trust. | ||
(ss) | Valuation Date. Each business day on which Trust assets may be purchased or sold. | ||
(tt) | Year or Plan Year. The calendar year, from January 1 through December 31. |
2.02 | Construction |
2.03 | Adoption By Others |
2.04 | Applicability |
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3.01 | Participation |
(a) | Any Employee included under the provisions of the Prior Plan as of January 1, 2005 shall continue to participate in accordance with the provisions of this Plan. | ||
(b) | The Participation of any Employee who is eligible to become a Participant on or after January 1,2005, shall commence on the first day of the month immediately following the sixty (60) day period beginning on his Employment Commencement Date. |
For purposes of the Plan, a Project Status Employee is an individual identified by a specified job code who is hired to complete a specific project under specified terms and conditions and whose relationship with the Employer terminates upon completion of the specific project. |
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eligible to participate in the Plan. The Committee is further authorized and directed to revise Addendum II, or to have Addendum II revised by the appropriate person designated by the Committee, to reflect any necessary additions and deletions thereto as soon as administratively possible following such identification by the Committee. Revisions to Addendum II shall require the adoption of a Plan amendment and, notwithstanding the provisions of Section 10.01 hereof, the Board of Directors of the Company hereby delegates to the Committee (or the Committees authorized representative) the authority to execute such an amendment from time to time. |
3.02 | Service |
(a) | In General. Subject to the Break in Service provisions of paragraph (d) of this Section, an Employees Service shall equal the total of his Elapsed-Time Employment. Service shall be counted in years and completed days. | ||
(b) | Transfers from Affiliates. In the event that an Employee who at any time was employed by an Affiliate either commences employment with a Participating Employer, or returns to the employment of a Participating Employer, then, except as otherwise provided below, such Employee shall receive Service with respect to the period of his employment with such Affiliate (to the extent not credited under paragraph (c) of this Section). In applying the provisions of the preceding sentence. |
(1) | except to the extent otherwise expressly provided in the Plan, a written addendum thereto or a separate adoption agreement, such Employee shall not receive Service with respect to any period of employment with such Affiliate completed prior to the date on which such Affiliate became an Affiliate; | ||
(2) | the amount of such Service shall be determined in accordance with paragraph (a) of this Section 3.02, as if such Affiliate were a Participating Employer; and | ||
(3) | if such Employee incurs a Break in Service (as defined in paragraph (d) of this Section and determined as if such Affiliate were a Participating Employer) prior to his commencement of employment with the Participating Employe or return to the employment of the Participating Employer, then the amount of such Employees service attributable to the period of his employment with such Affiliate shall be determined in accordance with paragraph (d) of this Section. |
(c) | Transfers to Affiliate. In the event that a Participant who at any time was employed by a Participating Employer either commences employment with an Affiliate, or returns to the employment of an Affiliate, then, except as otherwise provided below, such Participant shall receive service with respect to the period |
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(1) | the amount of such Service shall be determined in accordance with paragraph (a) of this Section, as if such Affiliate were a Participating Employer; and | ||
(2) | if such Participant incurs a Break in Service (as defined in paragraph (d) of this Section and determined as if such Affiliate were a Participating Employer) prior to his commencement of employment with the Affiliate or return to the employment of the Affiliate, then the amount of such Participants Service attributable to his prior period of employment with the Participating Employer shall be determined in accordance with paragraph (d) of this Section. |
(d) | Break in Service. An Employee who incurs a Severance from Service and who fails to complete at least one (1) Hour of Employment during the twelve (12)- month period beginning on the date of such Severance from Service shall have a Break in Service. If, during the twelve (12)-month period beginning on the date of an Employees Severance from Service, the Employee shall return to the employment of a Participating Employer by completing at least one (1) Hour of Employment within such twelve (12)-month period, then such Employee will not have a Break in Service and shall receive Service for the period beginning on the date of his Severance from Service and ending on the date of his re-employment; provided, however, that in the case of an Employee who is absent from the employment of the Participating Employers for a reason specified in Section 2.01(nn)(l)(ii) hereof and who, prior to the first anniversary of the first date of such absence incurs a Severance from Service for a reason specified in Section 2.01(nn)(l)(i) hereof, such Employee shall receive Service only if he completes at least one (1) Hour of Employment within the twelve (12)-month period beginning on the first date of such absence and shall receive such Service only for the period beginning on the first day of such absence and ending on the date of his re- employment. Upon incurring a Break in Service, an Employees rights and benefits under the Plan shall be determined in accordance with his Service at the time of the Break in Service. For a Participant who, at the time of a Break in Service, satisfied any requirements of this Plan for vested benefits, his pre-break Service shall, upon his Re-employment Commencement Date, be restored in determining his rights and benefits under the Plan. For an Employee who, at the time of a Break in Service, had not fulfilled such requirements, periods of pre- break Service shall, upon his Re-employment Commencement Date, be restored only if the consecutive periods of Break in Service were less than the greater of (i) sixty (60) months or (ii) the total periods of pre-break Service. |
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(e) | Special Rule for Extended Absence Employees. Notwithstanding the preceding provisions of this Section 3.02, in the case of an Extended Absence Employee, the period between the first and second anniversaries of such Employees absence shall, under no circumstances, be treated as a period of Service. |
3.03 | Election to Participate. |
(a) | In General. Each Employee will automatically become a Participant upon the earlier to occur of the following: |
(1) | The date on which he meets the eligibility conditions of Section 3.01 hereof; or | ||
(2) | The date on which he is eligible for an allocation of an Annual Retirement Contribution or a Start-Up Contribution. |
(b) | Participation in Salary Reduction Contributions and Employer Matching Contributions. Notwithstanding paragraph (a) of this Section 3.03, to benefit under the Salary Reduction Contribution and Employer Matching Contribution components of the Plan, an Employee, who is otherwise eligible to participate pursuant to Section 3.01, must, after having received a written explanation of the terms of, and the benefits provided under, the Plan, elect to participate in such components of the Plan in accordance with such procedures as the Committee or Trustee may prescribe and must execute a salary reduction agreement described in Section 4.02 hereof. Such election to participate and execution of a salary reduction agreement shall be effective as soon as administratively feasible after the Committee receives such agreement. |
3.04 | Transfer |
3.05 | Special Rules for Former Collective Bargaining Employees of the LPG Division |
(a) | Such Employee was eligible to become a Participant on the later of (i) January 1, 1989 or (ii) the date on which he satisfied the requirements of Section 3.01 hereof. | ||
(b) | Notwithstanding the provisions of Section 3.02 hereof, the Elapsed-Time Employment and Service of any such Employee who failed to elect to participate hereunder pursuant to Section 3.03 hereof on the date on which he was first eligible to do so pursuant to Section 3.01 hereof, shall be determined as if his Employment Commencement Date were the later of (i) January 1,1989 or (ii) the date on which he first completes an Hour of Employment. |
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3.06 | Special Rules for Employees of Syro Steel Company |
(a) | Such Employee was eligible to become a Participant in this Plan on October 1, 1992; | ||
(b) | For purposes of determining such Employees vested percentage under Section 6.03 hereof, such Employee shall receive service with respect to periods of employment credited to such Employee under the Syro Plan, or which would be credited to such Employee under the Syro Plan, in calculating his vested interest under the Syro Plan; and | ||
(c) | Such Employee shall be fully vested in benefits accrued under the Syro Plan and transferred to or merged with this Plan This paragraph (c) is intended to apply only to benefits accrued under the Syro Plan and should not be construed as conferring any greater right to benefits accrued under this Plan than may otherwise be provided hereunder. |
3.07 | Special Rules for Employees of Platzer Shipyard, Inc. |
(a) | Such Employee was eligible to become a Participant in the Plan on April 1,1994; | ||
(b) | For purposes of determining such Employees vested percentage under Section 6.03(b) hereof, such Employee shall receive credit for Service with respect to periods of employment with Platzer Shipyard, Inc. prior to April 1, 1994, as determined in accordance with the provisions of the Platzer Plan or the Plan, whichever shall provide the greater benefit; | ||
(c) | The Plan shall preserve all optional forms of benefit and methods of benefit payment provided under the Platzer Plan. Such optional forms and methods shall be available with respect to the Participants entire account balance and shall not be limited to only those amounts transferred pursuant to the merger of the Platzer Plan with the Plan; |
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(d) | The Plan shall preserve a disabled Participants right to receipt of a disability benefit under the terms of the Platzer Plan so long as the disability conforms to the requirements for disability as defined in the Platzer Plan and the disability occured prior to April 1,1994. |
3.08 | Special Rules for Employees of Transcisco Industries, Inc. |
(a) | Such Employee was eligible to become a Participant in the Plan on January 1, 1997; | ||
(b) | For purposes of determining such Employees vested percentage under Section 6.03(b) hereof, such Employee shall receive credit for Service with respect to periods of employment with Transcisco Industries, Inc. prior to January 1, 1997, as determined in accordance with the provisions of the Transcisco Plan or the Plan, whichever shall provide the greater benefit; provided that such Employee shall continue at all times to be fully vested in any qualified matching contributions credited to such Employee under the Transcisco Plan. | ||
(c) | The Plan shall preserve, with respect to such Employee, all optional forms of benefit and methods of benefit payment provided under the Transcisco Plan, including the right of any such Employee who is married to receive payment in the form of a 50% qualified joint and survivor annuity to the extent provided under the Transcisco Plan (it being understood that any such annuity shall be provided pursuant to a nontransferable annuity contract to be purchased by the Trust). Such optional forms and methods shall be available with respect to such Employees entire account balance and shall not be limited to only those amounts transferred pursuant to the merger of the Transcisco Plan into the Plan; | ||
(d) | The Plan shall preserve the right of any such Employee who is disabled to receipt of a disability benefit under the terms of the Transcisco Plan so long as the disability conforms to the requirements for disability as defined in the Transcisco Plan and the disability occurred prior to January 1,1997; | ||
(e) | In lieu of the qualified preretirement survivor annuity payable with respect to such Employee under the Transcisco Plan, there shall be paid the death benefit specified in Section 6.02 hereof; and |
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(f) | Notwithstanding the provisions of Section 6.07(c) hereof, if, prior to January 1, 1997, more than one loan from the Transcisco Plan was outstanding with respect to such Employee, such loans shall not be accelerated and the Employee shall continue to make payments in accordance with the terms of such loans. |
3.09 | Special Rules for Employees of DIFCO.Inc. |
(a) | Such Employee was eligible to become a Participant in the Plan on October 1, 1997; | ||
(b) | For purposes of determining such Employees vested percentage under Section 6.03(b) hereof, such Employee shall receive credit for Service with respect to periods of employment with DIFCO, Inc. prior to October 1, 1997, as determined in accordance with the provisions of the DIFCO Plan or the Plan, whichever shall provide the greater benefit; provided that full vesting solely by reason of attainment of age sixty-two (62) and the completion of three (3) years of service shall apply to that portion of such Employees benefit accrued as of September 30,1997; | ||
(c) | The Plan shall preserve, with respect to such Employee, all optional forms of benefit and methods of benefit payment provided under the DIFCO Plan, including the right of any such Employee who is married to receive payment in the form of a 50% qualified joint and survivor annuity to the extent provided under the DIFCO Plan (it being understood that any such annuity shall be provided pursuant to a nontransferable annuity contract to be purchased by the Trust). Such optional forms and methods shall be available with respect to such Employees entire account balance and shall not be limited to only those amounts transferred pursuant to the merger of the DIFCO Plan into the Plan; | ||
(d) | The Plan shall preserve the right of any such Employee who is disabled to receipt of a disability benefit under the terms of the DIFCO Plan so long as the disability conforms to the requirements for disability as defined in the DIFCO Plan and the disability occurred prior to October 1,1997; |
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(e) | In lieu of the qualified preretirement survivor annuity payable with respect to such Employee under the DIFCO Plan, there shall be paid the death benefit specified in Section 6.02 hereof; | ||
(f) | Notwithstanding the provisions of Section 6.07(f) hereof, if; prior to October 1, 1997, more than one loan from the DIFCO Plan was outstanding with respect to such Employee, such loans shall not be accelerated and the Employee shall continue to make payments in accordance with the terms of such loans; and | ||
(g) | Notwithstanding Section 4.05 hereof, any account(s) established for such Employee under the DIFCO Plan for after-tax employee contributions may be transferred to this Plan, with such Employee to be permitted to withdraw the full balance(s) in such account(s) at such time and within such parameters as may be determined by the Committee. |
3.10 | Special Rules for Salaried Employees of Thrall Car Manufacturing Company or Duchossois Industries, Inc. |
(a) | Such Employee was eligible to become a Participant in the Plan on October 26, 2001; and | ||
(b) | For purposes of determining such Employees vested percentage under Section 6.03(b) hereof, such Employee shall receive credit for Service with respect to periods of employment with Thrall Car Manufacturing Company or Duchossois Industries, Inc. prior to October 26, 2001, as determined in accordance with the Thrall Plan or the Plan, whichever shall provide the greater benefit. |
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3.11 | Special Rules for Employees of Southern Star Concrete, Inc. |
3.12 | Adoption of Special Rules In Connection With Future Acquisitions |
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(a) | Salary Reduction Contribution. For each Plan Year, each Employer shall contribute on behalf of each of its Employees participating in the Plan an amount agreed to be contributed by such Employer pursuant to a salary reduction agreement under Section 4.02 entered into between the Employer and the Participant for such Year. | ||
(b) | Employer Matching Contribution. |
(1) | In General. For each Plan Year, each Employer shall make an Employer Matching Contribution on behalf of each of its Employees for whom a contribution was made pursuant to paragraph (a) of this Section 4.01; provided, however, that no such Contribution shall be made prior to the first day of the Plan Year in which such Employee completes one (1) year of Service. Such Contributions shall equal an amount which, when added to the Forfeitures which have become available for application as of the end of the Year pursuant to Section 4.03 hereof, will be sufficient to credit each such Participants Employer Matching Contribution Account with an amount equal to a percentage of that portion of the Participants salary reduction for such Year, pursuant to Section 4.02 hereof, which does not exceed six percent (6%) of his Compensation for such Year, based on his years of Service as follows: |
Years of Service | Applicable Percentage | |||
Less than 1 | 0 | % | ||
1 but less than 2 | 25 | % | ||
2 but less than 3 | 30 | % | ||
3 but less than 4 | 35 | % | ||
4 but less than 5 | 40 | % | ||
5 or more | 50 | % |
For purposes of determining a Participants Employer Matching Contribution under this paragraph (b)(l), if a Participants Employment Commencement Date is any date on or after January 1, 2001 and on or before March 31, 2001, and such Participant is employed by an Employer as of the last day of the Short Plan Year, he shall be credited with a year of Service for such Short Plan Year. |
(2) | Average Contribution Percentage Discrimination Test. |
(A) | With respect to Employer Matching Contributions, either of the following discrimination tests of Code Section 401 (m) must be satisfied: |
(1) | The Average Contribution Percentage for Eligible Participants who are Highly Compensated Employees for the Year must not exceed the Average Contribution Percentage for Eligible Participants who are Non-Highly Compensated Employees for the prior Year multiplied by 1.25; or | ||
(2) | the Average Contribution Percentage for Eligible Participants who are Highly Compensated Employees for the Year must not exceed the Average Contribution Percentage for Eligible Participants who are Non-Highly Compensated Employees for the prior Year multiplied by two (2), provided that the Average Contribution Percentage for Eligible Participants who are Highly Compensated Employees does not exceed the Average Contribution Percentage for Eligible Participants who are Non-Highly |
Compensated Employees for the prior Year by more than two (2) percentage points. |
(B) | In any year in which the Average Contribution Percentage for Highly Compensated Employees who are Eligible Participants does not satisfy the limitation set forth above, the Committee shall reduce allocations of Employer Matching Contributions to such individuals in the manner provided in this paragraph. First, the Committee shall calculate the amount of excess deferrals and excess contributions, if any, under Section 4.02(d) and shall make any required distributions thereunder. Second, if the Committee then determines that the Plan continues to fail the Average Contribution Percentage Test for the Year, it shall reduce excess aggregate contributions, as adjusted for allocable income, during the next Plan Year. For purposes of this paragraph, excess aggregate contributions are the amount of aggregate Employer Matching Contributions allocated on behalf of the Highly Compensated Employees which causes the Plan to fail the Average Contribution Percentage Test. The Committee shall reduce the excess aggregate contributions to the Highly Compensated Employees in accordance with the following steps: |
(1) | The Committee shall calculate total excess aggregate contributions for the Highly Compensated Employees. | ||
(2) | The Committee shall calculate the total dollar amount by which the excess aggregate contributions for the Highly Compensated Employees must be reduced in order to satisfy the Average Contribution Percentage Test. | ||
(3) | The Committee shall calculate the total dollar amount of Employer Matching Contributions for each Highly Compensated Employee. | ||
(4) | The Committee shall reduce the Employer Matching Contributions of the Highly Compensated Employee(s) with the highest dollar amount of Employer Matching Contributions by reducing such contributions in such Highly Compensated Employee(s) Account in an amount necessary to cause the dollar amount of such Highly Compensated Employee(s) Employer Matching Contributions to equal the sum of the Employer Matching Contributions of the Highly Compensated Employee(s) with the next highest dollar amount of such contributions. | ||
(5) | If the total dollar amount reduced pursuant to Step (4) above is less than the total dollar amount of excess |
aggregate contributions, Step (4) shall be applied to the Highly Compensated Employee(s) with the next highest dollar amount of Employer Matching Contributions until the total amount of reduced Employer Matching Contributions equals the total dollar amount of excess aggregate contributions calculated in Step (2). | |||
(6) | When calculating the amount of reduction under Step (4), if a lesser reduction, when added to any amounts already reduced under this paragraph, would equal the total amount of reductions necessary to permit the Plan to satisfy the Average Contributions Percentage Test under this Section 4.01(b)(2), the lesser amount shall be reduced instead. | ||
(7) | Any Employer Matching Contributions amount reduced from a Highly Compensated Employees Account pursuant to Step (4) above, which shall be treated as an excess aggregate contribution (as defined in Code Section 401(m)(6)(B) and the regulations thereunder), together with the income allocable thereto, shall be distributed (or, if not vested, forfeited) to the Participant within two and one-half (21/2) months of the beginning of the subsequent Plan Year. |
(C) | For purposes of the discrimination tests described herein, an Eligible Participants Contribution Percentage shall mean the ratio (expressed as a percentage), of the sum of the Employer Matching Contributions under the Plan on behalf of the Eligible Participant for the Year to such Eligible Participants Compensation for the Year. The Contribution Percentage of an Eligible Participant who has no Employer Matching Contributions allocated to his Employer Contribution Account for the Year shall equal zero (0). Eligible Participant shall mean any Employee who is authorized under the terms of the Plan to have Employer Matching Contributions allocated to his Employer Contribution Account for the Year, and shall include any Employee who is eligible to make Salary Reduction Contributions under the terms of the Plan but elects not to make such contributions for the Year, who is eligible to participate under the terms of the Plan but elects not to participate pursuant to the provisions of Section 3.03(b) hereof, or who is not eligible to have Employer Matching Contributions allocated to his Employer Contribution Account due to the limitation on Additions set forth in Section 5.03 hereof. The Average Contribution Percentage is the average (expressed as a percentage) of the Contribution Percentages of all Eligible Participants. |
(D) | In the event that this Plan satisfies the requirements of Code Section 401(a)(4) and 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of Code Section 401(a)(4) and 410(b) only if aggregated with this Plan, then this subparagraph (2) shall be applied by determining the Contribution Percentage of Eligible Participants as if all such plans were a single plan. If a Highly Compensated Employee participates in two (2) or more plans of the Employers to which matching contributions are made then all such contributions shall be aggregated for purposes of this subparagraph (2). | ||
(E) | The income allocable to an excess aggregate contribution (as defined in Code Section 401(m)(6)(B) and regulations thereunder) shall be determined by multiplying the income allocable to a Participants Employer Contribution Account for the Plan Year by a fraction, the numerator of which is the excess aggregate contributions (as defined in Code Section 401(m)(6)(B) and regulations promulgated thereunder) for the Participant, as determined above, and the denominator of which is the balance of the Participants Employer Contribution Account on the last day of the Plan Year, reduced by the income allocable to such account for the Plan Year and increased by the loss allocable to such account for the Plan Year. | ||
(F) | The Committee may, in its sole discretion, elect to take contributions to a Participants Salary Reduction Contribution Account into account in computing the Average Contribution Percentage, in the manner and to the extent provided by Treasury Department regulations promulgated under Code Section 401 (m). However, in such a case, the Actual Deferral Percentage tests under Section 4.02(d)(1) must still be computed and met separately, and in connection therewith, no aggregation with Employer Matching Contributions shall be permitted Alternatively, the Employer may, in its sole discretion, elect to make qualified nonelective contributions in the manner and to the extent provided by Treasury Department regulations under Code Section 401(m), that would, in combination with Employer Matching Contributions under the Plan, satisfy the limitation set forth above. In any event, said correction of the discrimination tests described herein shall be made within twelve (12) months of the end of the Year. Qualified nonelective contributions made to a Participants Account shall at all times remain fully vested and subject to the same distribution restrictions as contributions made pursuant to a Participants salary reduction agreement. |
(c) | Annual Retirement Contribution. |
(1) | For each Plan Year, if a Participant is eligible to receive an Annual Retirement Contribution as provided in subparagraph (2) below, the amount of the Annual Retirement Contribution to the Trust Fund on his behalf will equal a percentage of such Participants Compensation for such Year based on such Participants Years of Service as follows: |
Annual Retirement | ||||
Contribution | ||||
as a Percentage of | ||||
Participants Years of | Participants | |||
Service | Compensation | |||
0 | 1.0 | % | ||
1 | 1.2 | % | ||
2 | 1.4 | % | ||
3 | 1.6 | % | ||
4 | 1.8 | % | ||
5 | 2.0 | % | ||
6 | 2.2 | % | ||
7 | 2.4 | % | ||
8 | 2.6 | % | ||
9 | 2.8 | % | ||
10 or more | 3.0 | % |
(2) | A Participant shall be eligible to receive an allocation of an Annual Retirement Contribution if he meets the requirements of subparagraphs (A) and (B) below: |
(A) | Except for a Participant who died, became Disabled, or retired after reaching his normal retirement date during the Plan Year, such Participant must be employed by an Employer on the last day of the Plan Year for which such Contribution is made. | ||
(B) | In addition, such Participant must meet any one of the following criteria: |
(1) | Such Participant must have been hired on or after January 1, 2005; | ||
(2) | Such Participant must have been hired prior to January 1, 2005 and must have made a Retirement Choice Election to freeze participation in the Standard Plan effective December 31,2004; | ||
(3) | Such Participant must have been hired prior to January 1, 2005, must have terminated employment prior to being |
(4) | Such Participant must have been hired prior to January 1, 2005, must have terminated employment prior to being offered a Retirement Choice Election, returned to employment as an eligible Employee prior to incurring a Break in Service and made a Retirement Choice Election to freeze participation in the Standard Plan effective December 31,2004. | ||
(5) | Such Participant must have been employed by an Affiliate at any time prior to January 1, 2005, and prior to such date must not have been eligible at any time to participate in the Standard Plan and on or after such date must have transferred employment to or must have been employed by the Company or a Participating Employer. |
(C) | The Annual Retirement Contribution shall be paid to the Trustee in accordance with Section 4.01(e) hereof. |
(d) | Start-Up Contribution. |
(1) | If a Participant is eligible for a Start-Up Contribution as provided in subparagraph (2) below, such Participants Employer shall make an Employer Contribution to the Trust Fund on his behalf in an amount that is equal to such Participants Years of Service multiplied by $100; provided however, such Start-Up Contribution shall in no event be less than $500 nor more than $1,000. | ||
(2) | A Participant is eligible to receive an allocation of a Start-Up Contribution if such Participant |
(A) | Was a participant in the Standard Plan at any time or was an eligible employee as defined in the Standard Plan on December 31, 2004; and | ||
(B) | Made a Retirement Choice Election to freeze participation in the Standard Plan. |
(3) | If a Participant is eligible for a Start-Up Contribution, such Contribution shall be made for the Plan Year immediately following the Plan Year in which the Participants Retirement Choice Election is made. | ||
(4) | The Start-Up Contribution shall be paid to the Trustee in accordance with Section 4.01(e) hereof. |
(e) | Limitations. All contributions of an Employer shall be made from consolidated current earnings, as computed in accordance with accepted accounting practices, before deduction of Federal income taxes and reserves for contingencies, if any, other than reasonable reserves of a type or character allowed or allowable for Federal income tax purposes, and before deduction of any contributions hereunder. In no event, however, shall the Employer Contributions and Salary Reduction Contributions for any Year exceed the amount deductible for such Year for income tax purposes (on a consolidated return basis) as a contribution to the Trust under the applicable provisions of the Code. The Employer shall pay all Employer Contributions for a Plan Year to the Trust Fund at any time and from time to time, except that the total Employer Contribution for any Plan Year shall be paid in full not later than the time prescribed by Section 404(a)(6) of the Code to enable the Employer to obtain a deduction on its federal income tax return for the Employers taxable year. The total Employer Contribution for any Plan Year shall be deemed made on the last day of that Plan Year immediately following such contribution, except for contributions made after the end of the Plan Year, designated as attributable to the prior Plan Year and contributed within the time prescribed by Code Section 404(a)(6), which shall be deemed made on the last day of the prior Plan Year. | ||
Further, the Employer Matching Contribution shall not be made for a Year unless the Companys earnings per share for such Year are sufficient to cover dividends to stockholders; provided, however, that in no event will Employer Matching Contributions be made if the Companys net profits for such Year are less man Thirty-Three and One-Third Cents ($.33-1/3) per share; provided, however, that the Board of Directors or the Human Resources Committee of the Board of Directors, in its discretion, may elect to waive this earnings requirement. |
(a) | In General. A salary reduction agreement shall apply to each payroll period during which an effective salary reduction agreement is on file with the Participants Employer. | ||
(b) | Voluntary Changes to Salary Reduction Agreements. A salary reduction agreement shall be entered into by a Participant upon commencement of Participation hereunder and may be terminated or suspended by the Participant at any time upon notice to the Committee. In addition, if a Participant voluntarily terminates or suspends his salary reduction agreement, he may enter into another salary reduction agreement at any time upon notice to the Committee. Finally, a Participant may amend his salary reduction agreement at any time upon notice to the Committee. | ||
(c) | Effective Date of Changes. Terminations or suspensions of salary reduction agreements, as well as new salary reduction agreements and amendments to salary reduction agreements, shall be effective as of, and shall not apply to any payroll period preceding, the payroll period next following the date on which such termination, suspension, salary reduction agreement or amendment is received by the Committee. | ||
(d) | Involuntary Amendment or Revocation of Salary Reduction Agreement. An Employer may amend or revoke its salary reduction agreement with any Participant at any time if the Employer determines that such revocation or amendment is necessary (i) to ensure that a Participants Additions for any Year will not exceed the limitation of Section 5.03 hereof, (ii) to ensure that a Participants Salary Reduction Contributions do not exceed the limitation of |
(1) | 401(k) Discrimination Tests and Return of Excess. |
(A) | The discrimination tests of Code Section 401(k) are satisfied in the following manner. The Actual Deferral Percentage for Eligible Participants who are Highly Compensated Employees for the Year shall bear a relationship to the Actual Deferral Percentage for Eligible Participants who are Non-Highly Compensated Employees for the prior Year whereby: |
(1) | The Actual Deferral Percentage for the group of Eligible Participants who are Highly Compensated Employees for the Year is not more than the Actual Deferral Percentage for Eligible Participants who are Non-Highly Compensated Employees for the prior Year multiplied by 1.25; or | ||
(2) | The excess of the Actual Deferral Percentage for the group of Eligible Participants who are Highly Compensated Employees for the Year over that of all Eligible Participants who are Non-Highly Compensated Employees for the prior Year shall not be more than two (2) percentage points, and the Actual Deferral Percentage for the group of Eligible Participants who are Highly Compensated Employees for the prior Year is not more than the Actual Deferral Percentage of all Eligible Participants who are Non-Highly Compensated Employees for the prior Year multiplied by two (2). |
(B) | If the allocations of the Participant Salary Reduction Contributions do not satisfy the tests set forth above, the Committee shall adjust the accounts of the Highly Compensated Employees as provided in this paragraph. The Committee shall distribute excess contributions, as adjusted for allocable income, during the next Plan Year. However, the Employer will incur an excise tax equal to 10% of the amount of excess contributions for a Year if such contributions are not distributed to the appropriate Highly Compensated Employees during the first 21/2 months of the next Plan Year. For purposes of this paragraph, excess contributions are the amount of aggregate Salary Reduction Contributions which cause the Plan to fail the Actual Deferral Percentage Test. The Committee shall make distributions to each Highly Compensated Employee of his or her respective share of excess contributions pursuant to the following steps: |
(1) | The Committee shall calculate total excess contributions for the Highly Compensated Employees. | ||
(2) | The Committee shall calculate the total dollar amount by which the excess contributions for the Highly Compensated Employees must be reduced in order to satisfy the Actual Deferral Percentage Test. | ||
(3) | The Committee shall calculate the total dollar amount of the Salary Reduction Contributions for each Highly Compensated Employee. |
(4) | The Committee shall reduce the Salary Reduction Contributions of the Highly Compensated Employee(s) with the highest dollar amount of Salary Reduction Contributions by refunding such contributions to such Highly Compensated Employee(s) in an amount sufficient to cause the dollar amount of such Highly Compensated Employee(s) Salary Reduction Contributions to equal the dollar amount of the Salary Reduction Contributions of the Highly Compensated Employee(s) with the next highest dollar amount of Salary Reduction Contributions. | ||
(5) | If the total dollar amount distributed pursuant to Step (4) above is less than the total dollar amount of excess contributions, Step (4) shall be applied to the Highly Compensated Employee(s) with the next highest dollar amount of Salary Reduction Contributions until the total amount of distributed Salary Reduction Contributions equals the total dollar amount of excess contributions calculated in Step (2). | ||
(6) | When calculating the amount of a distribution under Step (4), if a lesser reduction, when added to any amounts already distributed under this paragraph, would equal the total amount of distributions necessary to permit the Plan to satisfy the Actual Deferral Percentage Test under this Section 4.02(d)(l), the lesser amount shall be distributed from the Plan. |
(C) | For purposes of this paragraph (d), the Actual Deferral Percentage for a specified group of Eligible Participants for a Year shall be the average of the ratios (expressed as a percentage and calculated separately for each Eligible Participant in such group) of (i) the amount of each such Eligible Participants Salary Reduction Contributions actually paid over to the Trust on behalf of the Participant for such Year, to (ii) such Participants Compensation for the Year. Salary Reduction Contributions shall be taken into account for the Year if such contributions (i) relate to Compensation that would have been received during the Year (but for the deferral election) or relate to Compensation attributable to services performed during the Year that would have been received within 21/2 months after the close of the Year (but for the deferral election), and (ii) are allocated to the Participants account as of a date within the Year in accordance with Treasury Department regulations under Code Section 401(k). The Actual Deferral Percentage of an Eligible Participant for whom no Salary Reduction Contributions are paid to the Trust on his behalf for the Year shall equal zero (0). Eligible Participant shall mean any |
Employee who is authorized under the terms of the Plan to have contributions allocated to his Salary Reduction Contribution Account for all or a portion of the Year, and shall include any Employee who is eligible to make Salary Reduction Contributions under the terms of the Plan but elects not to make such contributions for the Year, whose right to make Salary Reduction Contributions has been suspended under Section 6 08(a)(3) hereof, or who is not eligible to have Salary Reduction Contributions allocated to his Salary Reduction Contribution Account due to the limitations on Additions set forth in Section 5.03 hereof. | |||
(D) | In the event that this Plan satisfies the requirements of Code Section 401(a)(4) or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of Code Section 401(a)(4) or 410(b) only if aggregated with this Plan, then this paragraph (e) shall be applied by determining the Contribution Percentage of Eligible Participants as if all such plans were a single plan. If a Highly Compensated Employee participates in two (2) or more plans of the Employers to which salary reduction contributions are made then all such contributions shall be aggregated for purposes of this paragraph (d). |
(e) | Uniform Amendment or Revocation of Salary Reduction Agreements. An Employer may revoke its salary reduction agreements with all Participants or amend its salary reduction agreements with all Participants on a uniform basis, if it determines that it will not have sufficient current profits to make the Employer Matching Contributions to the Plan required by the salary reduction agreements. |
(a) | Income. As of each Valuation Date, the Income of the Trust Fund shall be allocated in the following manner: |
(1) | The Income (hereinafter, the Fund Income) attributable to each investment fund (hereinafter, Fund) established pursuant to Article VII hereof (including, as a separate investment fund, assets, if any, invested at the discretion of the Trustee) shall first be determined. | ||
(2) | Fund Income shall then be allocated pro rata to the accounts of Participants, Former Participants, and Beneficiaries who had unpaid balances in their accounts invested in such Fund on such Valuation Date. |
(b) | Salary Reduction Contributions. Salary Reduction Contributions made on behalf of a Participant pursuant to Section 4.01(a) hereof shall be deposited in the Trust Fund and allocated to the Participants Salary Reduction Contribution Account as soon as administratively feasible, but in no event later than fifteen (15) business days after the end of the month during which such amounts would otherwise have been payable to the Participant, in accordance with Department of Labor Regulations Section 2510.3-102. | ||
(c) | Employer Matching Contributions. As of a date no later than the last day of each Year, the Employer Matching Contributions for the Year made pursuant to Section 4.01(b) hereof, plus the Forfeitures that are being applied to reduce such Employer Matching Contributions for the Year, shall be allocated to the Employer Matching Contribution Accounts of Participants for whom such contributions were made. The amount allocated to each such Participants Employer Matching Contribution Account shall be the amount determined in accordance with such Section 4.01(b). |
(d) | Annual Retirement Contribution. As of a date no later than the last day of each Year, the Annual Retirement Contribution made pursuant to Section 4.01(c) hereof, plus the Forfeitures that are being applied to reduce such contributions for the Year, shall be allocated to the Annual Retirement Contribution Account of each Participant for whom such Contribution is made. The amount allocated to each eligible Participants Annual Retirement Contribution Account shall be the amount determined in accordance with Section 4.01(c). | ||
(e) | Start-Up Contribution. A Start-Up Contribution made pursuant to Section 4.01(d) hereof, plus the Forfeitures that are being applied to reduce such Contribution for the Year, shall be allocated to the Start-Up Contribution Account of Participants for whom such Contribution is made as of a date no later than the last day of the Plan Year for which the Participant is eligible to receive such an allocation. The amount allocated to each eligible Participants Start-Up Contribution Account shall be the amount determined in accordance with Section 4.01(d). |
(a) | Notwithstanding anything contained herein to the contrary, the total additions made to the Salary Reduction Account and Employer Contribution Account of a Participant shall not exceed the lesser of (1) or (2), where: |
(1) | is $42,000 (or such greater amount as permitted under Internal Revenue Service rulings to reflect increases in the cost-of-living); and | ||
(2) | is 100% of the Participants total compensation for such limitation year. Notwithstanding the preceding, the compensation limit shall not apply to any contribution for medical benefits after Separation from Service (within the meaning of Section 401(h) or Section 419A(f)(2) of the Code) which is otherwise treated as an annual addition. |
(b) | If, as a result of the allocation of Forfeitures, a reasonable error in estimating a Participants total compensation causes such Additions to exceed the limitations set forth in paragraph (a), above, such excess shall be deemed to arise solely from Employer Matching Contributions described in Section 4.01(b) hereof and the amount of such contributions constituting the excess shall be treated as a Forfeiture for the Year. In the event that all or any portion of such excess cannot be treated as a Forfeiture for such limitation year because of the application of paragraph (a), above, the amount which cannot be so treated shall be held in a suspense account until it can be so treated in a subsequent Year, and no further Additions shall be made to Participants accounts until the amount in such suspense account has been fully allocated. Notwithstanding any provision to the contrary herein contained, if this Plan terminates during any limitation year in which such suspense account cannot be disposed of because of the application of paragraph (a), above, the amount in the suspense account shall revert to the Employers. | ||
(c) | For purposes of this limitation, all defined benefit plans of the Employer, whether or not terminated, are to be treated as one defined benefit plan and all defined contribution plans of the Employer, whether or not terminated, are to be treated as one defined contribution plan. The extent to which a Participants annual Additions under the Plan shall be reduced as compared to the extent to which his annual benefits or Additions under any other plans shall be reduced in order to achieve compliance with the limitations of Section 415 of the Code shall be determined by the Committee in such a manner as to maximize the aggregate benefits payable to such Participant. If such reduction is under this Plan, the Committee shall advise the affected Participant of any additional limitations on his annual benefits required by this paragraph. | ||
(d) | The above limitations are intended to comply with the provisions of Section 415 of the Code, so that the maximum benefits provided by plans of the Employers shall be exactly equal to the maximum amounts allowed under Section 415 of such Code and regulations thereunder. If there is any discrepancy between the provisions of Section 415 of such Code and the provisions of this Plan, such discrepancy shall be resolved in such a way as to give full effect to the provisions of such Section 415. | ||
(e) | For purposes of this Plan, the limitation year shall be the Plan Year. |
(a) | Determination of Top-Heavy Status. The Plan will be considered a Top-Heavy Plan for the Year if as of the last day of the preceding Plan Year, (the determination date): |
(1) | The value of the sum of Employer Contribution Accounts and Salary Reduction Contribution Accounts (but not including any allocations to be made as of such last day of the Year except contributions actually made on or before that date and allocated pursuant to Section 5.02(b) or 5.02(c)) of Participants who are Key Employees and their Beneficiaries exceeds sixty percent (60%) of the value of the sum of Employer Contribution Accounts and Salary Reduction Contribution Accounts (but not including any allocations to be made as of such last day of the Year, except contributions actually made on or before that date and allocated pursuant to Section 5.02(b)or 5.02(c)of all Participants and their Beneficiaries (the 60% Test) or (2) the Plan is part of a required aggregation group (within the meaning of Code Section 416(g)(2)) and the required aggregation group is top-heavy. However, and notwithstanding the results of the 60% Test, the Plan shall not be considered a Top-Heavy Plan for any Year in which the Plan is a part of a required or permissive aggregation group (within the meaning of Section 416(g)(2)) which is not top-heavy. For purposes of the 60% Test for any Plan Year, (i) the value of the Employer and Salary Reduction Contribution Accounts of individuals who are former Key Employees shall not be taken into account, (ii) the value of the Employer and Salary Reduction Contribution Accounts of individuals who have not rendered services to the Employers for the one (l)-year period ending on the determination date shall not be taken into account, and (iii) any contribution of eligible rollover contributions, or any plan-to-plan transfer described in Section 4.05 hereof, shall not be treated as part of the Participants Employer or Salary Reduction Contribution Account. | ||
(2) | Aggregation shall be determined as follows: |
(A) | Aggregation Group. |
(i) | Required Aggregation. The term aggregation group means: |
(I) | each plan of the Employer in which a Key Employee is a participant, and | ||
(II) | each other plan of the Employer that enables any plan described in subclause (I) to meet the requirements of Section 401(a)(4) or 410. |
(ii) | Permissive Aggregation. The Employer may treat any plan not required to be included in an aggregation group under clause (i) as being part of such group if such group would continue to meet the requirements of Code Sections 401(a)(4) and 410 with such plan being taken into account. |
(B) | Top-Heavy Group. The term top-heavy group means any aggregation group if: |
(i) | the sum (as of the determination date) of: |
(I) | the present value of the cumulative accrued benefits for Key Employees under all defined benefit plans included in such group, and | ||
(II) | the aggregate of the accounts of Key Employees under all defined contribution plans included in such group, |
(ii) | exceeds sixty percent (60%) of a similar sum determined for all Employees. |
(b) | Minimum Allocations. Notwithstanding the provisions of Sections 5.02(b) and 5.02(c), for any Year during which the Plan is deemed a Top-Heavy Plan, the amount of Employer contribution for the Year to be allocated to the Employer Contribution Account of each Participant who is not a Key Employee and who is employed by the Employers on the last day of the Year shall not be less than the lesser of (i) three percent (3%) of the Participants total compensation for the Year or (ii) the percentage obtained by dividing the amount allocated to the Salary Reduction Contribution Account and Employer Contribution Account of the most highly compensated Key Employee for the Year by so much of the total compensation of such Key Employee for the Year as does not exceed $150,000 (as automatically increased in accordance with Treasury Department regulations); provided, however, that an amount allocated to the Salary Reduction Contribution Account of a Participant who is not a Key Employee shall not be considered in determining the minimum allocation for such Participant hereunder; provided, further, that the requirements of this paragraph (b) shall not apply to the extent that the minimum allocations set forth herein are made under another defined contribution plan maintained by the Employer. |
(c) | Total Compensation Defined. The term total compensation as used in this Section 5.04 shall have the same meaning as that set forth in Section 415(c)(3) of the Code. |
(a) | The entire amount credited to both his Salary Reduction Contribution Account (including any Salary Reduction Contributions to be made to such account for the Year of termination of employment but not yet allocated) and his Rollover Account, plus | ||
(b) | An amount equal to the vested percentage of his Employer Contribution Account balance (including any Employer Contributions to be made to such account for the Year of termination of employment but not yet allocated). Such vested percentage shall be determined in accordance with the following schedule: |
Years of Service | Vested Percentage | Forfeited Percentage | ||||||
Less than 1 | 0 | % | 100 | % | ||||
1 but less than 2 | 20 | % | 80 | % | ||||
2 but less than 3 | 40 | % | 60 | % | ||||
3 but less than 4 | 60 | % | 40 | % | ||||
4 but less than 5 | 80 | % | 20 | % | ||||
5 or more | 100 | % | 0 | % |
(a) | In General. Payment of a Participants (or Former Participants) benefits upon entitlement under Sections 6.01-6.03 hereof shall commence as soon as administratively feasible following the receipt by the Trustee of the last contribution made on behalf of such Participant or Former Participant; provided that payment in no event shall commence earlier than the end of the month immediately following the month in which such entitlement occurs; provided further that payment prior to the date set forth in the immediately following sentence shall be made only upon completion by the recipient of a distribution request in such form as may be specified from time to time by the Committee; provided further that, in the case of a Participant or Former Participant whose vested account balance exceeds $5,000, such account balance shall not be distributed without the consent of the Participant or Former Participant, unless such Participant or Former Participant has attained age sixty-five (65). | ||
(b) | Latest Commencement Date. However, and notwithstanding anything to the contrary herein contained, payment of his benefits must commence no later than the earlier of (i) the Required Beginning Date applicable to the Participant or Former Participant pursuant to Section 6.05(b)(5)(v) hereof, or (ii) unless a Participant or Former Participant elects otherwise (which can be no later than the date specified in clause (i) of this sentence), the sixtieth (60th) day after the latest of the close of the Year in which the Participant attains age sixty-five (65) or incurs a Severance from Service; provided that, in the case of clause (ii) of this sentence, if the amount of a payment cannot be ascertained by such sixtieth (60th) day, a payment retroactive to such date may be made no later than sixty (60) days after the earliest date on which the amount of such payment can be ascertained. |
(c) | Distribution Before Age 591/2. If a Participant or Former Participant elects that a benefit payment be made to him before his attainment of age fifty-nine and one-half (591/2), the Participant or Former Participant shall be advised by the Committee that an additional income tax may be imposed equal to ten percent (10%) of the portion of the amount so received which is included in his gross income for the taxable year of receipt unless, among others, (i) such distribution is made on account of death or Disability, (ii) such distribution is part of a scheduled series of substantially equal periodic payments for the life of the Participant or Former Participant (or the joint life expectancies of the Participant or Former Participant and his Beneficiary, (iii) such distribution is used to pay medical expenses to the extent deductible under Section 213 of the Code (determined without regard to whether the Participant or Former Participant itemizes deductions), (iv) such distribution is made to an alternate payee pursuant to a qualified domestic relations order described in Section 9.03 hereof, or (v) such distribution is made to a Participant by reason of early retirement. For purposes of the preceding sentence, a Participant who terminates employment on or after his attainment of age 55 for reasons other than death, Disability or normal retirement shall be treated as having separated from service by reason of early retirement and shall be entitled to that portion of his benefit determined pursuant to Section 6.03 hereof, to be payable, subject to the foregoing provisions of this Section 6.04, as of the date of his early retirement. |
(d) | Forms of Payment. The Committee shall direct the Trustee to distribute the Participants (or Former Participants) benefits in any one of the following two methods, as elected by the recipient: |
(1) | In a lump sum; or | ||
(2) | In periodic payments of substantially equal amounts for a specified number of years not in excess of ten (10) (or, if less, the life expectancy of the Participant or Former Participant or the joint life expectancy of the Participant or Former Participant and his Beneficiary designated in accordance with Section 6.06), in which event the unpaid balance shall continue to receive an Income allocation in accordance with Section 5.02(a)). Such periodic payments shall be made not less frequently than annually. If periodic payments are made to a Participant or Former Participant prior to his death and if the Participant or Former Participant dies before receiving all payments to which he was entitled, the remaining payments shall be made in accordance with Section 6.05(b)(4)(i). If the Participant or Former Participant dies before payment of his benefits has commenced, his benefits must be distributed in accordance with Section 6.05(b)(4)(ii). |
(e) | Special Rules Applicable to Married Participants in Limited Circumstances. Notwithstanding the preceding provisions of this Section 6.04, the following special rules shall apply with respect to payments made to or on behalf of a married Participant or a married Former Participant who received a transfer to this Plan of assets (other than a transfer made pursuant to a qualifying rollover distribution described in Section 4.04 hereof), from a plan described in Section 401(a)(l l)(b)(i) and (ii) of the Code: |
(1) | Pre-Retirement Survivor Annuity. Any death benefits payable pursuant to Section 6.02 hereof, shall be paid to the Participants (or Former Participants) surviving spouse in the form of a life annuity; provided, however, that, at any time prior to the Participants (or Former Participants) death, the Participant or Former Participant and his spouse may, by written election acknowledging the effect of such election, direct that such death benefits be payable to one or more other Beneficiaries and in a form provided under paragraph (a) above. | ||
(2) | Qualified Joint and Survivor Annuity. Any benefits payable under Section 6.01 or 6.03 hereof, shall be paid in the form of a joint and survivor annuity under which a monthly amount is payable to the Participant or Former Participant for his life, and, upon his death, no less than fifty percent (50%), nor more than one hundred percent (100%), of such monthly amount is payable to his spouse, if surviving, for the remainder of the spouses life; provided, however, that within a period beginning ninety (90) days prior to the date on which benefits commence, the Participant or Former Participant and his spouse may, by a written election acknowledging the effect of such election, direct that the Participants (or Former Participants) benefits be paid in a form provided under paragraph (a) above. |
(f) | Distribution of Small Amounts. Notwithstanding the preceding provisions of this Section 6.04, a Participants (or Former Participants) benefits hereunder shall in all events be paid in a lump sum if the total of such benefits is $5,000 or less; provided, however, that unless earlier distribution is requested by the distributee, no payment shall be made prior to the end of the year in which entitlement to such payment occurs. In determining the value of a Participants nonforfeitable benefit for this purpose, the Plan shall disregard that portion of the Participants benefit |
that is attributable to Rollover Contributions (and earnings allocable thereto) within the meaning of Sections 402(c), 403(a)(4), 403(b)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of the Code, Effective March 28, 2005, in the event such a distribution is greater than $1,000, if the participant does not elect to have such distribution paid directly to an eligible retirement plan specified by the Participant in a direct rollover or to receive the distribution directly following entitlement to such distribution, then the Committee will pay the distribution in a direct rollover to an individual retirement plan designated by the Committee. |
(g) | Direct Rollovers. Notwithstanding any provision of the Plan to the contrary, the recipient of all or any portion of a Participants (or Former Participants) benefits, other than a Beneficiary who is not a surviving spouse, may elect, in the manner prescribed by the Committee, to have any portion of an eligible rollover distribution paid directly to an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, a qualified trust described in Section 401 (a) of the Code, an annuity contract described in Section 40.3(b) of the Code, or an eligible plan under Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state (and which agrees to separately account for amounts transferred into such plan from this Plan), that will accept the eligible rollover distribution, as specified by the recipient. For purposes of this Section 6.04(g), an eligible rollover distribution shall mean any distribution of all or any portion of the balance to the credit of the recipient, except (i) a distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the recipient or the joint lives (or joint life expectancies) of the recipient and the recipients designated Beneficiary, or for a specified period of ten (10) years or more; (ii) a distribution to the extent such distribution is required under Section 401(a)(9) of the Code; (iii) the portion of any distribution that is not includible in gross income; or (iv) any hardship distribution described in Section 401(k)(2)(B)(i)(IV) of the Code. An eligible rollover distribution shall include after-tax employee contributions which are not includible in gross income. However, such after-tax employee contributions may be transferred only to an individual retirement account or annuity described in Section 408(a) or (b) of the Code, or to a qualified defined contribution plan described in Section 401 (a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible. |
(a) | In General |
(1) | Subject to the provisions of this Section 6.05, commencement of a benefit will, unless the Participant elects otherwise in writing, begin not later than |
the 60th day after the later of (i) the close of the Plan Year in which the Participant attains his normal retirement date hereunder or (ii) the close of the Plan Year which contains the date on which the Participant incurs a Severance from Service. |
(2) | Notwithstanding any provision of the Plan to the contrary, all distributions required under this Section will be determined and made in accordance with the Treasury Regulations issued under Code Section 401(a)(9) on April 17, 2002 and June 14, 2004 |
(b) | Mandatory Distributions. The following provisions incorporate the IRS Model Amendment relating to mandatory distributions and shall apply for purposes of determining required minimum distributions effective for Plan Years beginning on and after January 1, 2003. Capitalized terms not otherwise defined herein shall have the meanings ascribed in paragraph (b)(5) of this Section 9.05 |
(1) | TEFRA. Notwithstanding the following provisions of this paragraph (b), distributions may be made under a designation made before January 1, 1984, in accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the Plan that relate to Section 242(b)(2) of TEFRA. | ||
(2) | Time and Manner of Distribution. |
(i) | Required Beginning Date. The Participants entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participants Required Beginning Date. | ||
(ii) | Death of Participant Before Distributions Begin. If the Participant dies before distributions begin, the Participants entire interest will be distributed, or begin to be distributed, no later than as follows: |
(A) | If the Participants surviving spouse is the Participants sole designated Beneficiary, then distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the calendar year in which the Participant would have attained age 70½, if later. | ||
(B) | If the Participants surviving spouse is not the Participants sole designated Beneficiary, then distributions to the designated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died. | ||
(C) | If there is no designated Beneficiary as of September 30 of the year following the year of the Participants death, the Participants entire interest will be distributed by December |
31 | of the calendar year containing the fifth anniversary of the Participants death. |
(D) | If the Participants surviving spouse is the Participants sole designated Beneficiary and the surviving spouse dies after the Participant but before distributions to the surviving spouse begin, this Section 6.05(b)(2)(ii), other than Section 6.05(b)(2)(ii)(A), will apply as if the surviving spouse were the Participant. |
For purposes of this Section 6.05(b)(2)(ii) and Section 6.05(b)(4), unless Section 6.05(b)(2)(ii)(D) applies, distributions are considered to begin on the Participants Required Beginning Date. If Section 6.05(b)(2)(ii)(D) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under Section 6.05(b)(2)(ii)(A). If distributions under an annuity purchased from an insurance company irrevocably commence to the Participant before the Participants Required Beginning Date (or to the Participants surviving spouse before the date distributions are required to begin to the surviving spouse under Section 6.05(b)(2)(ii)(A)), the date distributions are considered to begin is the date distributions actually commence. | |||
(iii) | Forms of Distribution. Unless the Participants interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the Required Beginning Date, as of the first distribution calendar year distributions will be made in accordance with Sections 6.05(b)(2) and (3). If the Participants interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Section 401(a)(9) of the Code and the Treasury Regulations issued thereunder. |
(3) | Required Minimum Distributions During Participants Lifetime. |
(i) | Amount of Required Minimum Distribution For Each Distribution Calendar Year. During the Participants lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of: |
(A) | the quotient obtained by dividing the Participants account balance by the distribution period in the Uniform Lifetime Table set forth in Section l.401(a)(9)-9 of the Treasury Regulations, using the Participants age as of the Participants birthday in the distribution calendar year; or |
(B) | if the Participants sole designated Beneficiary for the distribution calendar year is the Participants spouse, the quotient obtained by dividing the Participants account balance by the number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9)-9 of the Treasury Regulations, using the Participants and spouses attained ages as of the Participants and spouses birthdays in the distribution calendar year. |
(ii) | Lifetime Required Minimum Distributions Continue Through Year of Participants Death. Required minimum distributions will be determined under this Section 6.05(b)(3) beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the Participants date of death. |
(4) | Required Minimum Distributions After Participants Death. |
(i) | Death On or After Date Distributions Begin. |
(A) | Participant Survived by Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participants death is the quotient obtained by dividing the Participants account balance by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participants designated Beneficiary, determined as follows: |
(I) | The Participants remaining life expectancy is calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. | ||
(II) | If the Participants surviving spouse is the Participants sole designated Beneficiary, the remaining life expectancy of the surviving spouse is calculated for each distribution calendar year after the year of the Participants death using the surviving spouses age as of the spouses birthday in that year. For distribution calendar years after the year of the surviving spouses death, the remaining life expectancy of the surviving spouse is calculated using the age of the surviving spouse as of the spouses birthday in the calendar year of the spouses death, reduced by one for each subsequent calendar year. |
(III) | If the Participants surviving spouse is not the Participants sole designated Beneficiary, the designated Beneficiarys remaining life expectancy is calculated using the age of the Beneficiary in the year following the year of the Participants death, reduced by one for each subsequent year. |
(B) | No Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is no designated Beneficiary as of September 30 of the year after the year of the Participants death, the minimum amount that will be distributed for each distribution calendar year after the year of the Participants death is the quotient obtained by dividing the Participants account balance by the Participants remaining life expectancy calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. |
(ii) | Death Before Date Distributions Begin. |
(A) | Participant Survived by Designated Beneficiary. Except as may be elected pursuant to Section 6.05(b)(4)(iii)(A) if the Participant dies before the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participants death is the quotient obtained by dividing the Participants account balance by the remaining life expectancy of the Participants designated Beneficiary, determined as provided in Section 6.05(b)(4)(i). | ||
(B) | No Designated Beneficiary. If the Participant dies before the date distributions begin and there is no designated Beneficiary as of September 30 of the year following the year of the Participants death, distribution of the Participants entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participants death. | ||
(C) | Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the Participant dies before the date distributions begin, the Participants surviving spouse is the Participants sole designated Beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse under Section 6.05(b)(2)(ii)(A), this Section 6.05(b)(4)(ii) will apply as if the surviving spouse were the Participant. |
(iii) | Certain Elections Allowed. |
(A) | Election to Allow Participants or Beneficiaries to Elect 5-Year Rule. Participants or Beneficiaries may elect on an individual basis whether the 5-year rule or the life expectancy rule in Sections 6.05(b)(2)(ii) and 6.05(b)(4)(ii) hereof applies to distributions after the death of a Participant who has a designated Beneficiary. The election must be made no later than the earlier of September 30 of the calendar year in which distribution would be required to begin under Section 6.05(b)(2)(ii), or by September 30 of the calendar year which contains the fifth anniversary of the Participants (or, if applicable, surviving spouses) death. If neither the Participant nor Beneficiary makes an election under this paragraph, distributions will be made in accordance with Sections 6.05(b)(2)(ii) and 6.05(b)(4)(ii). | ||
(B) | Election to Allow Designated Beneficiary Receiving Distributions Under 5-Year Rule to Elect Life Expectancy Distributions. A designated Beneficiary who is receiving payments under the 5-year rule may make a new election to receive payments under the life expectancy rule until December 31, 2003, provided that all amounts that would have been required to be distributed under the life expectancy rule for all distribution calendar years before 2004 are distributed by the earlier of December 31, 2003 or the end of the 5-year period. |
(5) | Definitions. |
(i) | Designated beneficiary. The individual who is designated as the Beneficiary under Section 6.06 hereof and is the designated beneficiary under Section 401(a)(9) of the Internal Revenue Code and Section 1.401(a)(9)-l, Q&A-4, of the Treasury Regulations. | ||
(ii) | Distribution calendar year. A calendar year for which a minimum distribution is required. For distributions beginning before the Participants death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Participants Required Beginning Date. For distributions beginning after the Participants death, the first distribution calendar year is the calendar year in which distributions are required to begin under Section 6.05(b)(2)(ii). The required minimum distribution for the Participants first distribution calendar year will be made on or before the Participants Required Beginning Date. The required minimum distribution for other distribution calendar years, including the required |
minimum distribution for the distribution calendar year in which the Participants Required Beginning Date occurs, will be made on or before December 31 of that distribution calendar year. |
(iii) | Life expectancy. Life expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)-9 of the Treasury Regulations. | ||
(iv) | Participants account balance. The account balance as of the last valuation date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the account balance as of dates in the valuation calendar year after the valuation date and decreased by distributions made in the valuation calendar year after the valuation date. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year. | ||
(v) | Required beginning date. A Participants Required Beginning Date is April 1 of the calendar year immediately following the later of the calendar year in which the Participant attains age seventy and one-half (70½) or the calendar year in which the Participant terminates employment with the Employer. Notwithstanding the foregoing, with respect to a Participant who is a five-percent (5%) owner, as described in Section 401(a)(9)(C)(ii)(I) of the Code, the Required Beginning Date for such Participant is April 1 of the calendar year following the calendar year in which he attains age seventy and one-half (70½). |
(a) | any one or more of the next of kin of such Participant or Former Participant, and in such proportions as the Committee determines; or | ||
(b) | the estate of the last to die of such Participant or Former Participant and his Beneficiary or Beneficiaries. |
(a) | The source for such loan may include the Participants Salary Reduction Contribution Account and the vested portion of his Employer Matching Contribution Account. The Start-Up Contribution Account and the Annual Retirement Contribution Account shall not be available for funding a loan. | ||
(b) | An application for a loan by a Participant shall be made in writing to the Committee, whose action thereon shall be final. | ||
(c) | The period of repayment for any loan shall be arrived at by agreement between the Committee and the borrower, but such period in no event shall exceed five (5) years; provided, however, that such period may exceed five (5) years where the proceeds of the loan are to be used to acquire a dwelling which is to be used within a reasonable time as the principal residence of the Participant. The loan (i) must be in level payments, made not less frequently than quarterly, over the term of the loan, with privilege of prepayment, in whole (but not in part), at any time, and (ii) prior to termination of the borrowing Participants employment, shall be repaid by payroll deduction. Within the limitations of the immediately preceding sentence, the precise manner and frequency of payments shall be determined by the Committee at the time that the loan is made. | ||
(d) | Each loan made to a Participant shall be secured by (i) an assignment and pledge of not more than 50%, as determined immediately after the origination of the loan |
as of the current Valuation Date, of his right, title and interest in and to his Salary Reduction Contribution Account plus the vested portion of his Employer Matching Contribution Account, and (ii) his promissory note for the amount of the loan, including interest payable to the order of the Trustee. A default shall occur upon the failure by a Participant to make payment under the loan by the end of the calendar quarter following the calendar quarter in which the due date of such payment occurred; provided that in the case of a Participant who is on an Authorized Leave of Absence, no default shall occur until the end of a twelve (12)-month period beginning on such due date. Upon default, the entire remaining principal balance of the loan shall be treated as a deemed distribution to the Participant from the Plan, and the amount of such deemed distribution shall be reported to the Internal Revenue Service on Form W2-P or Form 1099-R, as appropriate. |
(e) | Each loan shall bear a rate of interest equal to the interest rate charged by commercial lenders under similar circumstances. The Committee shall determine such interest rate by applying the provisions of the immediately preceding sentence. | ||
(f) | No loan shall be made in an amount less than $1,000. No more than two loans may be outstanding at any time; provided that, in the case of a Participant who makes a direct transfer to this Plan of eligible rollover amounts pursuant to Code Section 401(a)(31), if such transfer consists of amounts to the credit of such Participant under the Thrall Plan described in Section 3.10 hereof and includes the unpaid balances of any loans made under such Thrall Plan, then, with respect to such Participant, the total number of loans outstanding hereunder shall be the greater of (i) two (2) or (ii) the total number of such transferred loans. | ||
(g) | No amount shall be loaned to a Participant which would cause his outstanding loan balance under the Plan to exceed the lesser of (1) or (2), where: |
(1) | is $50,000 reduced by the excess of the highest outstanding balance of loans to such Participant over the twelve (12) month period ending on the day before the loan is made over the outstanding balance of loans to such Participant on the date the loan is made, and | ||
(2) | is one-half (½) of the value of his Salary Reduction Contribution Account and the vested portion of his Employer Contribution Account as of the current Valuation Date. |
(h) | No distribution (other than a hardship withdrawal described in Section 6.08(a) hereof) shall be made to any Participant or Former Participant or to a Beneficiary of any such Participant unless and until all unpaid loans of such Participant have been liquidated. Foreclosure against a Participants Employer Contribution Account and Salary Reduction Contribution Account shall occur immediately upon default and shall result in the reduction of such account balances to the extent of unpaid principal; provided that there shall be no foreclosure against a |
Participants account balances until the occurrence hereunder of an event permitting distribution of such account balances. |
(i) | Loans shall be made available to Former Participants who are parties-in-interest only as required by ERISA and Department of Labor guidelines. | ||
(j) | Any loan made prior to January 1, 2005 under the Plan shall continue to be governed by the provisions of the Plan as in effect prior to such date and applicable to such loan. | ||
(k) | The Committee may from time to time promulgate such additional procedures as it deems necessary, in its sole discretion, for the governance of Plan loans; provided that such procedures shall be consistent with the foregoing provisions of this Section 6.07 and shall be applied in a uniform and nondiscriminatory manner. | ||
(l) | Loan repayments will be suspended under this Plan, as permitted under Code Section 414(u)(4), on behalf of those Participants who are on an Authorized Leave of Absence because of qualified military service, as defined in Code Section 414(u). | ||
(m) | To the extent that a Participant who has an outstanding loan is on an Authorized Leave of Absence, such Participant shall be permitted to make direct payments to repay his loan, the precise manner and frequency of which shall be determined by the Committee in its sole discretion at the time that such Participants Authorized Leave of Absence commences. In addition, if the Participants Authorized Leave of Absence is unpaid, the Committee may, in its sole discretion, suspend the Participants loan payments during a period of not more than twelve (12) months; provided, however, that the Participants loan must be repaid by the latest date permitted under Code Section 72(p)(2)(B) and the loan payments due after the Authorized Leave of Absence ends (or, if earlier, after the first year of the Authorized Leave of Absence) must not be less than those required under the terms of the original loan. To the extent that a Former Participant who has an outstanding loan on the date of his termination of employment with the Employers is not eligible to receive a distribution from the Plan due to the application of the distribution restrictions of Code Section 401(k)(2)(B)(ii), such Former Participant shall be permitted to repay his loan as if he were still an active Participant hereunder, with the precise manner and frequency of loan payments to be determined by the Committee in its sole discretion at the time that such Former Participants employment is terminated. | ||
(n) | Effective for Plan loans made after December 31, 2001, Plan provisions prohibiting loans to any owner-employee or shareholder-employee shall cease to apply. |
6.08 | In-Service Withdrawals |
(a) | Hardship Withdrawal from Salary Reduction Contribution Account. No amounts may be withdrawn by a Participant from his Salary Reduction Contribution |
Account prior to termination of employment with the Employers except to the extent of an election made in accordance with the following: |
(1) | If the Participant elects a withdrawal prior to the date on which he attains age 59½, such withdrawal (i) may not include any earnings accrued after 1988 and (ii) will require the consent of the Committee. Such consent shall be given only if the Participant is able to demonstrate financial hardship. The Committee will determine that the Participant has properly demonstrated financial hardship only if the Participant demonstrates that the purpose of the withdrawal is to meet his immediate and heavy financial needs, the amount of the withdrawal does not exceed such financial needs, and the amount of the withdrawal is not reasonably available from other resources. The Participant will be considered as having demonstrated that the purpose of the withdrawal is to meet his immediate and heavy financial needs only if he represents that the distribution is on account of: |
(A) | medical expenses (as described in Section 213(d) of the Code) incurred (or required to be paid in advance to obtain medical care) by the Participant, his spouse or any of his dependents; | ||
(B) | the purchase (excluding mortgage payments) of a principal residence for the Participant; | ||
(C) | the payment of tuition and related educational fees for the next twelve (12) months of post-secondary education for the Participant, his spouse, children or dependents; or | ||
(D) | foreclosure on the mortgage of, or eviction from, the Participants principal residence. |
(2) | Moreover, the Participant will be considered as having demonstrated that the amount of the withdrawal is unavailable from his other resources and in an amount not in excess of that necessary to satisfy his immediate and heavy financial needs only if each of the following requirements is satisfied: |
(A) | the Participant represents that the distribution is not in excess of the amount of his immediate and heavy financial needs; and | ||
(B) | the Participant has obtained all distributions, other than hardship distributions, and all nontaxable loans currently available to him under all plans currently maintained by the Employers. |
(3) | In the event of any withdrawal by a Participant pursuant to this subparagraph (1), such Participants Salary Reduction Contributions under Section 4.02 and his contributions under all other employee plans maintained by the Employers shall be suspended for a period of six (6). |
months, and the Participant may authorize no further Salary Reduction Contributions until the first business day immediately following such six (6) month period of suspension. Withdrawal elections under this subparagraph (1) may be made at any time but not more frequently than once each Plan Year. All withdrawals under this subparagraph shall be made in accordance with the provisions of Section 6.04 hereof, relating to the form of payment. To the extent elected by a Participant, any hardship withdrawal made pursuant to this subparagraph (1) to such Participant shall be increased by an amount equal to the lesser of (i) all Federal, state and local income taxes and associated penalties (including, if applicable, the additional income tax described in Section 6.04(c) hereof) imposed with respect to such hardship withdrawal or (ii) the amount, if any, in such Participants Salary Reduction Contribution Account in excess of such hardship withdrawal. |
(b) | Post Age 59½ Withdrawal from Salary Reduction Contribution Account. If the Participant elects a withdrawal on or after the date on which he attains age 59½, such a withdrawal will not require the consent of the Committee and may be made for any purpose and at any time from his Salary Reduction Contribution Account; provided that any such withdrawal must be in the form of a lump sum. | ||
(c) | Post Age 59½ Withdrawal from Matching Contribution Account. A Participant may elect to receive a lump-sum distribution of the vested amount in his Employer Matching Contribution Account at any time after such Participant or Former Participant attains age fifty-nine and one-half (59½). | ||
(d) | Withdrawal or Distribution from Rollover Account. A Participant may elect to receive a lump-sum distribution of his Rollover Account at any time for any purpose. | ||
(e) | Spousal Consent. If the Participant is married, his spouse must specifically consent to a withdrawal under this Section 6.08 within a period which is ninety (90) days prior to the date on which the withdrawal is made. | ||
(f) | Administrative. Withdrawal elections under this Section 6.08 shall be made on written forms supplied by the Committee for such purpose. |
6.09 | Partial Withdrawals Following Termination of Employment Prior to Complete Distribution |
(a) | Salary Reduction Contribution Account. Subject to the foregoing provisions, a Former Participant who is entitled to a distribution under Section 6.04 but who has not yet elected to receive such distribution may elect a withdrawal under Section 6.08(a) or (b) prior to the time that complete distribution is made if such Former Participant elects to take a distribution as of the end of the next calendar quarter in the form of a lump sum in accordance with Section 6.04 hereof. |
(b) | Matching Contribution Account. A Former Participant who is entitled to a distribution under Section 6.04 but who has not yet elected to receive such distribution may elect a withdrawal under this Section 6.09(b) prior to the time that such complete distribution is made if such Former Participant elects to take a distribution in the form of a lump sum at the time specified in, and in accordance with, Section 6.04 hereof. | ||
(c) | Withdrawal or Distribution from Rollover Account. A Former Participant who is entitled to a distribution under Section 6.04 but who has not yet elected to receive such distribution may elect to receive a lump-sum distribution of his Rollover Account at any time for any purpose. | ||
(d) | Administrative and Spousal Consent. Withdrawal elections under this Section 6.09 shall be made on written forms supplied by the Committee for such purpose. If the Former Participant is married, his spouse must specifically consent to a withdrawal made under this Section 6.09 within a period which is ninety (90) days prior to the date on which the withdrawal is made. |
6.10 | Payments to Alternate Payees. Any amounts payable to an alternate payee pursuant to Section 414(p) of the Code (as defined in such Section) shall be distributed to such payee in a lump sum as soon as reasonably possible after such payees right to such distribution is established by a qualified domestic relations order (as defined in such Section); provided that if the amount distributable to such payee exceeds $5,000, such payee must consent to any such distribution made prior to his or her attainment of age sixty-five (65). An alternate payee shall be entitled to receive a distribution pursuant to this paragraph (g) even though the associated Participant may be ineligible to receive a distribution of any portion or all of his vested account balances hereunder and notwithstanding that the related qualified domestic relations order may mandate distribution to such alternate payee at a later date. This paragraph (g) is intended to govern the timing of a distribution to an alternate payee and shall not be construed to increase the amount of such distribution. |
TRUST FUND
(a) | The HMGI Shares shall be allocated among the Participants Accounts on a pro-rata basis based on the number of shares of common stock of the Company allocated to each Participants Accounts as of March 31, 1997; provided, however, that all such allocations shall be in whole shares of HMGI common stock. To the extent that a Participant would be allocated a fractional HMGI Share on March 31, 1997, such fraction will be sold and the proceeds shall be invested in shares of the common stock of the Company. | ||
(b) | The Trustee shall not purchase any additional HMGI Shares. If the Trustee receives a distribution of cash dividends on the HMGI Shares held in the HMGI Stock Fund, such amounts shall be reinvested as if they were an additional contribution to the Plan in accordance with each Participants most recent investment election. | ||
(c) | A Participant may on any business day direct the Trustee to liquidate any portion of his investment in the HMGI Stock Fund and reinvest the proceeds in another investment media; provided, however, that such Participant shall not thereafter be permitted to invest such funds in the HMGI Stock Fund. |
(a) | to construe and interpret the Plan, decide all questions of eligibility and determine the amount, manner and time of payment of any benefits hereunder; | ||
(b) | to prescribe procedures to be followed by Participants, Former Participants, or Beneficiaries filing applications for benefits; | ||
(c) | to prepare and distribute, in such manner as the Committee determines to be appropriate, information explaining the Plan; | ||
(d) | to receive from the Employers and from Participants or Former Participants such information as shall be necessary for the proper administration of the Plan; | ||
(e) | to furnish the Employer, upon request, such annual reports with respect to the administration of the Plan as are reasonable and appropriate; | ||
(f) | to receive, review and keep on file (as it deems convenient or proper) reports of the financial condition, and of the receipts and disbursements, of the Trust Fund from the Trustee; and | ||
(g) | to appoint or employ individuals to assist in the administration of the Plan and any other agents it deems advisable, including legal and actuarial counsel, the Trustee or any other Fiduciary. |
MISCELLANEOUS
(a) | Participant Loans. If a Participant, Former Participant or Beneficiary who has become entitled to receive payment of benefits under this Agreement is indebted to the Trustee by virtue of a participant loan the Committee may direct the Trustee to pay the indebtedness and charge it against the account balance of the Participant, Former Participant or Beneficiary. | ||
(b) | Distributions Under Domestic Relations Orders. Nothing contained in this Plan shall prevent the Trustee, under the direction of the Committee, from complying with the provisions of a qualified domestic relations order, as defined in Code Section 414(p). | ||
(c) | Distributions Under Certain Judgments and Settlements. Nothing contained in this Plan shall prevent the Trustee from complying with a judgment or settlement which requires the Trustee to reduce a Participants benefits under the Plan by an amount that the Participant is ordered or required to pay to the Plan if each of the following criteria are satisfied: |
(1) | The order or requirement must arise: |
(A) | under a judgment or conviction for a crime involving the Plan; | ||
(B) | under a civil judgment (including a consent order or decree) entered by a court in an action brought in connection with an actual or alleged violation of Part 4 of Title I of ERISA; or | ||
(C) | under a settlement agreement with either the Secretary of Labor or the Pension Benefit Guaranty Corporation and the Participant in connection with an actual or alleged violation of Part 4 of Title I of ERISA by a fiduciary or any other person. |
(2) | The decree, judgment, order or settlement must expressly provide for the offset of all or part of the amount ordered or required to be paid to the Plan against the Participants benefits under the Plan. | ||
(3) | To the extent that (i) the survivor annuity requirements of Code Section 401(a)(11) apply to the portion of the Participants account balance which will be reduced or offset, and (ii) the Participant has a spouse at the time at which the reduction or offset is to be made: |
(A) | (i) the spouse must consent to the reduction or offset in writing, as witnessed by a notary public or a plan representative, (ii) it must be established that such consent may not be obtained for any of the reasons outlined in Code Section 417(a)(2)(B), or (iii) the spouse must previously have executed an election to waive his or her right to a qualified joint and survivor annuity or a qualified preretirement annuity in accordance with the requirements of Code Section 417(a); | ||
(B) | the decree, judgment, order or settlement must require the spouse to pay an amount to the Plan in connection with a violation of Part 4 of Title I of ERISA; or | ||
(C) | the decree, judgment, order or settlement must provide that the spouse shall retain his or her right to receive a survivor annuity calculated as provided in Code Section 401(a)(13)(D). |
(a) | each Participant would (if either this Plan or the other plan then terminated) receive a benefit immediately after the merger, consolidation or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidation or transfer (if this Plan had then terminated); | ||
(b) | resolutions of the Board of Directors of the Employer under this Plan, or of any new or successor employer of the affected Participants, shall authorize such transfer of assets; and, in the case of a new or successor employer of the affected Participants, its resolutions shall include an assumption of liabilities with respect to such Participants inclusion in the new employers plan; and | ||
(c) | such other plan and trust are qualified under Sections 401(a) and 501(a) of the Code. |
IN TESTIMONY WHEREOF, TRINITY INDUSTRIES, INC. has caused this instrument to be executed in its name and on its behalf, by the officer thereunto duly authorized, this day of , 2005, effective as of January 1, 2005 (except as otherwise indicated herein). |
TRINITY INDUSTRIES, INC. | ||||
By: | /s/ [ILLEGIBLE] | |||
Title: | ||||
ATTEST: | ||||
/s/ [ILLEGIBLE] |