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Consecosave Plan |
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2001 |
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CONSECOSAVE PLAN
(as amended and restated effective November 15, 1999)
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
{S} {C} {C}
ARTICLE 1 ESTABLISHMENT AND PURPOSE OF PLAN...............................................................1
ARTICLE 2 DEFINITIONS.....................................................................................1
2.1 Definitions.....................................................................................1
2.2 Gender and Number...............................................................................5
ARTICLE 3 PARTICIPATION...................................................................................6
3.1 Participation...................................................................................6
3.2 Termination of Participation....................................................................6
3.3 Reemployment....................................................................................6
3.4 Cessation of Eligible Status....................................................................7
ARTICLE 4 EMPLOYEE CONTRIBUTIONS..........................................................................7
4.1 Employee Contributions..........................................................................7
4.2 Dates of Election...............................................................................7
ARTICLE 5 EMPLOYER CONTRIBUTIONS..........................................................................8
5.1 Employer Matching Contributions.................................................................8
5.2 Discretionary Employer Contributions............................................................8
5.3 Allocation of Annual Employer Contributions and Forfeitures.....................................8
5.4 Restoration of Forfeited Amounts Upon Reemployment..............................................9
5.5 Rollover Contributions..........................................................................9
ARTICLE 6 LIMITATIONS....................................................................................10
6.1 Limitations on Annual Account Additions........................................................10
6.2 Maximum Amount of Before-Tax Deposits..........................................................12
6.3 Actual Deferral Percentage Tests...............................................................13
6.4 Adjustment to Actual Deferral Percentage Tests.................................................14
6.5 Maximum Contribution Percentage................................................................15
6.6 Adjustment For Excessive Contribution Percentage...............................................16
6.7 Limit on Total Contribution of Employer; Precluding Excess Allocations.........................17
ARTICLE 7 CREDITING OF CONTRIBUTIONS AND DEPOSITS TO
INVESTMENT FUNDS...............................................................................18
7.1 Investment Funds...............................................................................18
7.2 Investment of Employer Contribution Accounts...................................................18
7.3 Participant's Choice of Investments............................................................18
7.4 Change of Prior Investments....................................................................19
(i)
{PAGE}
Page
ARTICLE 8 ACCOUNTS.......................................................................................19
8.1 Separate Accounts..............................................................................19
8.2 Valuation of Separate Accounts.................................................................19
8.3 Determination of Fund Performance..............................................................20
8.4 Voting of Company Stock........................................................................20
ARTICLE 9 WITHDRAWALS DURING EMPLOYMENT..................................................................20
9.1 After-Tax Deposit Account Withdrawals..........................................................20
9.2 Withdrawals After Age Fifty-nine and one-half (59 1/2).........................................20
9.3 Withdrawals After Age Fifty-Five (55)..........................................................21
9.4 Hardship Withdrawals...........................................................................21
9.5 Loans..........................................................................................23
9.6 Withdrawal and Loan Fees.......................................................................24
ARTICLE 10 DISTRIBUTIONS..................................................................................25
10.1 Retirement.....................................................................................25
10.2 Death..........................................................................................25
10.3 Permanent Disability...........................................................................25
10.4 Other Termination of Employment................................................................25
10.5 Designation of Beneficiary.....................................................................26
10.6 Timing of Distributions........................................................................26
10.7 Manner of Benefit Distribution.................................................................27
10.8 Manner of Distribution and Timing of Death Distributions.......................................29
10.9 Limitation on Benefits and Distributions.......................................................29
10.10 Distributions Payable to Incompetents..........................................................29
10.11 Distribution of Before-Tax Deposits............................................................30
ARTICLE 11 NONASSIGNABILITY...............................................................................30
ARTICLE 12 TRUST AGREEMENT................................................................................30
ARTICLE 13 MANAGEMENT AND ADMINISTRATION..................................................................31
13.1 Administrator..................................................................................31
13.2 Claims Review Procedure........................................................................31
13.3 Delegation.....................................................................................31
13.4 Expenses of Administration.....................................................................32
ARTICLE 14 COMPANY AND EMPLOYER RIGHTS....................................................................32
14.1 Company's Interest in Trust....................................................................32
14.2 Inspection of Records..........................................................................32
14.3 Amendment......................................................................................32
14.4 Employment Rights..............................................................................32
14.5 Company and Employer Liability.................................................................33
(ii)
{PAGE}
Page
ARTICLE 15 PARTICIPATING EMPLOYERS........................................................................33
15.1 Adoption By Other Employers....................................................................33
15.2 Requirements of Participating Employers........................................................33
15.3 Designation of Agent...........................................................................34
15.4 Employee Transfers.............................................................................34
15.5 Participating Employer's Contribution..........................................................34
15.6 Discontinuance of Participation................................................................34
15.7 Administrator's Authority......................................................................35
15.8 Participating Employer Contribution For Affiliate..............................................35
ARTICLE 16 TERMINATION....................................................................................35
16.1 Event of Termination...........................................................................35
16.2 Effect of Termination..........................................................................35
ARTICLE 17 TRANSFERS, MERGERS AND CONSOLIDATIONS..........................................................36
ARTICLE 18 SUCCESSORS.....................................................................................36
ARTICLE 19 INTERPRETATION OF AGREEMENT....................................................................36
19.1 Interpretation of Plan.........................................................................36
19.2 Forms..........................................................................................36
19.3 Applicable Law.................................................................................36
APPENDIX I TOP-HEAVY PROVISIONS........................................................................38
APPENDIX II MERGER OF ICH SAVINGS INVESTMENT PLAN.......................................................44
APPENDIX III MERGER OF INDEPENDENT PROCESSING SERVICES
SAVINGS INVESTMENT PLAN............................................................46
APPENDIX IV MERGER OF STATESMAN SAVINGS PLAN............................................................47
APPENDIX V MERGER OF TRANSPORT HOLDINGS, INC.
401(k) PLAN........................................................................48
APPENDIX VI MERGER OF CAPITOL AMERICAN FINANCIAL
CORPORATION INVESTMENT PLAN........................................................49
APPENDIX VII MERGER OF AMERICAN TRAVELLERS LIFE INSURANCE
COMPANY RETIREMENT SAVINGS PLAN AND TRUST..........................................50
APPENDIX VIII TRANSFER OF INTRAMERICA LIFE INSURANCE
COMPANY EMPLOYEE ACCOUNTS..........................................................51
(iii)
{PAGE}
Page
APPENDIX IX MERGER OF CONTINENTAL FINANCIAL CORPORATION
401(k) RETIREMENT PLAN.............................................................53
APPENDIX X MERGER OF PIONEER FINANCIAL SERVICES, INC.
EMPLOYEE SAVINGS AND STOCK OWNERSHIP PLAN..........................................54
APPENDIX XI MERGER OF MARKMAN INTERNATIONAL
EMPLOYEE PROFIT SHARING PLAN.......................................................56
APPENDIX XII MERGER OF PROVIDENTIAL LIFE INSURANCE
401(k) RETIREMENT PLAN.............................................................59
APPENDIX XIII MERGER OF COLONIAL PENN LIFE INSURANCE
COMPANY SAVINGS PLAN ..............................................................62
APPENDIX XIV MERGER OF WASHINGTON NATIONAL EMPLOYEE
SAVINGS PLAN, WASHINGTON NATIONAL PENSION
PLAN PLUS AND WASHINGTON NATIONAL PROFIT
SHARING PLAN................................................................................64
{/TABLE}
(iv)
{PAGE}
CONSECOSAVE PLAN
ARTICLE 1
ESTABLISHMENT AND PURPOSE OF PLAN
Effective as of April 1, 1989, Conseco, Inc. (the "Company") adopted
the Conseco Savings Plan in recognition of the contribution made to its
successful operation by its employees and for the exclusive benefit of its
eligible employees. The ConsecoSave Plan (the "Plan") was last amended and
restated effective January 1, 1997 and is intended to meet the requirements of
the Internal Revenue Code of 1986 (the "Code"), and the Employee Retirement
Income Security Act of 1974 ("ERISA"), as both may be amended from time to time.
This document constitutes a further amendment and restatement of the Plan.
Effective November 15, 1999, Conseco Services, L.L.C. hereby assumes plan
sponsorship.
This amendment and restatement, made and entered on this 15th day of
November, 1999, shall be effective as of November 15, 1999, except to the extent
later internal effective dates are provided, in which event the provisions of
the Plan as in effect prior to the amendment and restatement shall continue to
apply until that date. The provisions of the Plan, as set forth herein, shall
apply only to Participants who are Employees on or after November 15, 1999. The
rights and benefits of all former employees shall be determined in accordance
with the provisions of the Plan as in effect on the date his employment
terminated.
ARTICLE 2
DEFINITIONS
2.1 Definitions. Wherever used in the Plan, the following terms shall
have the meanings set forth below unless the context clearly indicates
otherwise:
(a) Account: The bookkeeping account established and maintained
by the Administrator for each Participant with respect to his interest in the
Trust.
(b) Administrator: The Administrator of the Plan is the Company.
(c) Affiliate: Any corporation which is a member of a controlled
group of corporations (as defined in Code Section 414(b)) which includes the
Employer; any trade or business (whether or not incorporated) which is under
common control (as defined in Code Section 414(c)) with the Employer; any
organization (whether or not incorporated) which is a member of an affiliated
service group (as defined in Code Section 414(m)) which includes the Employer;
and any other entity required to be aggregated with the Employer pursuant to
Regulations under Code Section 414(o).
(d) Board: The Board of Directors of the Company.
1
{PAGE}
(e) Break-in-Service: A twelve (12) month period during which a
Participant does not have Credited Service.
(f) Company: Conseco Services, L.L.C., an Indiana limited
liability company.
(g) Compensation: The amount of compensation actually paid to the
Participant by the Employer which is reportable on the Participant's IRS Form
W-2, plus any before-tax deposits and any salary reduction contributions made on
behalf of a Participant under a plan which qualifies under Code Section 401(k)
and/or Code Section 125, but excluding income resulting from payments of
insurance premiums, moving expenses, tuition expenses, automobile expenses,
severance payments, the value of any noncash incentive awards (including any
stock options, restricted stock or other stock-based compensation), income
attributable to an Employer's forgiveness of a loan made by the Employer to a
Participant, and income attributable to a distribution to a Participant from a
nonqualified deferred compensation arrangement (including a voluntary or
incentive deferred compensation arrangement) maintained by an Employer or to the
exercise of stock options, lapse of restrictions on restricted stock, or to
other stock-based remunerations. Notwithstanding the foregoing, Compensation
shall not include any payments made pursuant to an insurance agent or agency
contract. Compensation shall not include any amounts in excess of $160,000, as
adjusted by the Commissioner for increases in the cost-of-living in accordance
with Code Section 401(a)(17)(B).
(h) Credited Service: Credited Service means a Participant's
years of employment with the Employer. For purposes of calculating Credited
Service, years of employment with Conseco Inc., or any Affiliate and any
predecessors thereto, as determined by the Administrator in its sole discretion,
shall be recognized. A Participant's period of employment by an Employer is
measured from the date a Participant first completes an Hour of Service, and
anniversaries of that date, to the date of a Participant's termination of
employment for any reason; provided, however, if a Participant who has a
termination of employment resumes employment with an Employer prior to having a
Break-in-Service, such termination of employment shall be disregarded and his
employment shall be treated as continuous through the date he resumes his
employment. In calculating a Participant's Credited Service, all periods of
employment with the Employer shall be considered, except service performed prior
to 5 consecutive 1-year Breaks-in-Service unless the Participant is reemployed
and the prior service is reinstated in accordance with Section 3.3. For purposes
of this Section and Section 3.1, an Hour of Service shall mean:
(1) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for an Employer or an Affiliate thereof.
These hours shall be credited to the Employee for the computation period in
which the duties are performed,
(2) Each hour for which an Employee is paid, or entitled to
payment, by an Employer or an Affiliate thereof on account of a period of time
during which no duties are performed (irrespective of whether the employment
relationship is terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military leave or leave of absence.
2
{PAGE}
No more than five hundred one (501) hours shall be credited under this
subsection for any single continuous period of absence (whether or not such
period occurs in a single computation period),
(3) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by an Employer or an Affiliate
thereof. The same shall not be credited both under paragraph (1) or (2), as the
case may be, and under this paragraph (3). These hours shall be credited to the
Employee for the computation period or periods to which the award or agreement
pertains rather than the computation period in which the award, agreement or
payment is made,
(4) Solely for purposes of determining whether an Employee
has a Break-in-Service under Section 2.1(e), each hour, based on the number of
hours per week that the Employee would have normally worked, or a pro rata
portion thereof, during which an Employee is absent from work (i) by reason of
the pregnancy of the Employee, (ii) by reason of the birth of a child of the
Employee, (iii) by reason of the placement of a child with the Employee, or (iv)
due to the caring of a child during the period immediately after the birth,
placement or adoption of the child by the Employee, or (v) by reason of any
leave of absence authorized under the Family and Medical Leave Act of 1993. Not
more than five hundred one (501) Hours of Service shall be credited to any
Employee under this paragraph for any one occurrence. Such hours shall be
credited to the computation period during which the event occurs to the extent
necessary to prevent a Break-in-Service, and to the extent not so necessary, to
the next following computation period, and
(5) Each hour, other than hours credited under paragraphs
(1), (2), (3) and (4), during any customary period of work, based on a
forty-hour week or pro rata portion thereof, during which the employee is laid
off, is on an Employer approved leave of absence or sick or disability leave, or
is on jury or military duty.
(6) The provisions of Department of Labor regulations
2530.2006(b) and (c) are incorporated by reference.
(i) Employee: Any person who is employed by the Company, and any
person who is employed by a Participating Employer, excluding (1) any
independent contractor, (2) any leased employee, (3) any person treated as an
independent contractor or leased employee by a Participating Employer, (4) any
person excluded from participation by the Administrator as an independent
contractor or leased employee even if such person is, at any time, determined to
be an employee of a Participating Employer by a governmental agency, court, or
other tribunal for any reason, including the agency's, court's or other
tribunal's interpretation of the plan, any law or regulation, or any facts, (5)
any non-resident aliens, (6) any employee located at the Mojave Valley Golf
Club, (7) any individual who is included within a unit of employees covered by a
collective bargaining agreement for whom retirement benefits were the subject of
good faith bargaining, unless the collective bargaining agreement provides for
said individual's participation in this Plan and (8) any employee coded for
payroll purposes as a Household Employee. A "leased employee" means any person
who is not an employee of the Employer, and provides services to the Employer if
(1) such services are provided pursuant to an agreement between the Employer and
any other person (the "leasing organization"), (2) such person has performed
such services for the Employer (or for the Employer
3
{PAGE}
and related persons determined in accordance with Code Section 414(n)) on a
substantially full-time basis for a period of at least one year, and (3) such
services are performed under the primary direction or control of the Employer.
(j) Employer: The Company and such Participating Employers as
have adopted the Plan with the consent of the Board.
(k) Former Participant: A person who has been a Participant, but
who has ceased to be a Participant for any reason.
(l) Highly Compensated Participant: A Highly Compensated
Participant means an individual described in Code Section 414(q) and the
Regulations thereunder, and generally means an Employee who performed services
for the Employer during the determination year and is in one or more of the
following groups:
(1) Employees who at any time during the determination year
or the preceding year were 5% owners of the Employer. A 5% owner means any
person who owns (or is considered as owning within the meaning of Code Section
318) more than 5% of the outstanding stock of the Employer or stock possessing
more than 5% of the total combined voting power of all stock of the Employer or,
in the case of an unincorporated business, any person who owns more than 5% of
the capital or profits interest in the Employer. In determining percentage
ownership hereunder, employers that would otherwise be aggregated under Code
Sections 414(b), (c), (m) and (o) should be treated as separate employers.
(2) Employees who for the preceding year had compensation
from the Employer in excess of $80,000 (as adjusted at the same time and in such
manner as prescribed by the Secretary of the Treasury) and were in the Top Paid
Group of Employees for the Plan Year.
The determination year shall be the Plan Year for which testing
is being performed.
Highly Compensated Participant shall include a former Employee
who had a separation year prior to the determination year and was a Highly
Compensated Participant in the year of separation from service or in any
determination year after attaining age fifty-five (55).
"Top Paid Group" means the top 20% of employees who performed
services for the Employer during the applicable year, ranked according to the
amount of Compensation received from the Employer during such year. For the
purpose of determining the number of active Employees in any year, the following
Employees shall be excluded; however, such Employees shall still be considered
for the purpose of identifying the particular Employees in the Top Paid Group:
(i) Employees with less than six (6) months of service;
(ii) Employees who normally work less than seventeen and one-half
(17 1/2) hours per week;
4
{PAGE}
(iii) Employees who normally work less than six (6) months during
a year; and
(iv) Employees who have not yet attained age twenty-one (21).
In-addition, if 90% or more of the Employees of the Employer are
covered under agreements the Secretary of Labor finds to be collective
bargaining agreements between Employee representatives and the Employer, and the
Plan covers only Employees who are not covered under such agreements, then
Employees covered by such agreements shall be excluded from both the total
number of active Employees as well as from the identification of particular
Employees in the Top Paid Group.
The foregoing exclusions set forth in this Section shall be
applied on a uniform and consistent basis for all purposes for which the Code
Section 414(q) definition is applicable.
(m) Non-Highly Compensated Participant: Any Participant or Former
Participant who is not a Highly Compensated Participant.
(n) Participant: An Employee who meets the participation
requirements of Section 3.1.
(o) Permanent Disability: A Participant's total and permanent
disability, as determined in accordance with the long term disability plan
applicable to the Participant.
(p) Plan Year: Plan Year means the twelve-month period beginning
on January 1 and ending on December 31.
(q) Trust: Shall mean the legal entity created by the trust
agreement between the Company and Trustee, fixing the rights and liabilities of
each with respect to managing and controlling the trust funds for the purposes
of the Plan.
(r) Trustee: The individual or individuals, bank or trust company
which at a particular time shall be the trustee under the Trust.
(s) Valuation Date: Each business day on which the New York Stock
Exchange is open and such other dates as may be designated by the Administrator
in a uniform and nondiscriminatory manner.
2.2 Gender and Number. Except as otherwise indicated by the context,
masculine terminology shall include the feminine and the singular shall include
the plural.
5
{PAGE}
ARTICLE 3
PARTICIPATION
3.1 Participation. Each Employee who was a Participant in the Plan on
November 14, 1999 pursuant to the terms of the Plan as in effect prior to this
restatement, shall continue as such, subject to the terms and provisions of this
Plan. Effective November 15, 1999, every other Employee shall be eligible to
become a Participant in the Plan on the first day of the fourth month
immediately following his date of hire. Eligible Employees shall become
Participants in the Plan upon the first Valuation Date following enrollment in
the Plan in accordance with procedures and rules established by the
Administrator.
3.2 Termination of Participation. Subject to the provisions of Section
3.4 hereof, an individual shall cease to be a Participant when he terminates
employment with all Employers hereunder.
3.3 Reemployment. A former Employee's eligibility to participate in
the Plan and the reinstatement of his Credited Service following his
reemployment by the Employer shall be governed by the following rules:
(a) Return Prior to Five (5) Consecutive Breaks-in-Service. The
former Employee shall resume participation in the Plan and his Credited Service
shall be reinstated immediately upon his reemployment if he was a Participant in
the Plan prior to his departure and he is reemployed by the Employer prior to
incurring five (5) consecutive 1-year Breaks-in-Service. If the former Employee
terminated employment after completing at least four (4) months of service but
prior to becoming a Participant, his Credited Service will be reinstated and he
will become a Participant as of the later of his date of reemployment or the day
on which he would have become a Participant if his employment had not been
terminated as long as he is reemployed prior to incurring five (5) consecutive
1-year Breaks-in-Service.
(b) Return After Five (5) Consecutive Breaks-in-Service. If a
former Employee had a nonforfeitable right to all or a portion of his Account at
the time of his termination of employment, his Credited Service will be
reinstated and he shall resume participation in the Plan immediately upon his
reemployment if he is reemployed by the Employer after incurring five (5)
consecutive 1-year Breaks-in-Service. If the former Employee did not have a
nonforfeitable right to any portion of his Account at the time of his
termination, he shall be considered a new Employee for all purposes if the
number of his consecutive 1-year Breaks-in-Service equal or exceed the greater
of (1) five (5) years or (2) the aggregate number of years of Credited Service
before such breaks. If such former Participant's years of Credited Service
before his termination exceed the greater of (1) five (5) years or (2) the
number of consecutive 1-year Breaks-in-Service after such termination, his
Credited Service will be reinstated and the Participant shall participate
immediately. In determining a former Employee's aggregate number of years of
Credited Service before the consecutive Breaks-in-Service, years of Credited
Service disregarded in accordance with this Section as the result of prior
periods of consecutive Breaks-in-Service shall not be considered.
6
{PAGE}
Except as noted above, for participation purposes a former
Employee will be treated as a new Employee, and his prior Credited Service shall
be disregarded upon his reemployment.
3.4 Cessation of Eligible Status. If any Participant does not suffer a
Break-in-Service but ceases to be an Employee, such Participant shall not be
credited with any Employer contributions or forfeitures for continuous service
during the period in which he ceases to be an eligible Participant; however,
such Participant shall receive credit for vesting purposes for continuous
service during the period in which he is not an eligible Participant.
ARTICLE 4
EMPLOYEE CONTRIBUTIONS
4.1 Employee Contributions. Subject to the limitations of Article 6,
each Participant may make contributions to the Plan, only by payroll deduction,
of before-tax and/or after-tax deposits in any whole percentage of his
Compensation, between 0% and 15% (or such lower percentages for Highly
Compensated Employees or the Administrator shall determine from time to time in
its sole discretion), as he elects, in accordance with the procedures and rules
established by the Administrator. The before-tax and after-tax deposits elected
by the Participant will be subject to a combined total of 15% (or such lower
percentages for Highly Compensated Employees as the Administrator shall
determine from time to time in its sole discretion) and will be deducted from
his Compensation for each payroll period and shall be paid by the Employer to
the Trust not later than the fifteenth (15th) business day of the month
following the month in which the deposits were deducted.
4.2 Dates of Election.
(a) A Participant may elect to make before-tax deposits and
after-tax deposits, as provided in Section 4.1, by authorizing payroll
deductions, in accordance with the procedures and rules established by the
Administrator.
(b) A Participant may change his before-tax deposit percentage or
after-tax deposit percentage to any other percentage authorized under Section
4.1 at any time in accordance with the procedures and rules established by the
Administrator.
(c) A Participant may discontinue before-tax deposits and/or
after-tax deposits, as provided by Section 4.1 at any time in accordance with
the procedures and rules established by the Administrator.
7
{PAGE}
ARTICLE 5
EMPLOYER CONTRIBUTIONS
5.1 Employer Matching Contributions. The Employer shall contribute to
the Plan on behalf of each Eligible Participant (as defined below) to be paid in
Company stock or in cash to be used to purchase Company stock for each Plan
Year, an amount equal to 50% of that portion of each Eligible Participant's
before-tax deposits made during the Plan Year which do not exceed 4% (6%
effective for Plan Years beginning on or after January 1, 2000) of the
Compensation paid to the Participant during the Plan Year and while such
Participant made contributions to the Plan.
For this purpose, an Eligible Participant is one who is actively
employed on the last day of the applicable Plan Year or who is on an authorized
leave of absence or who terminated employment due to death, disability, or
retirement on or after Normal Retirement Age during the Plan Year.
In addition, the Employer may contribute to the Plan for any Plan
Year such additional amount or percentage in cash or Company stock based on all
or a portion of before-tax deposits of each Participant who is actively employed
on the last day of the Plan Year or who is on an authorized leave of absence or
who terminated employment due to death, disability or retirement on or after
Normal Retirement Age during the Plan Year as the Employer determines in its
sole discretion.
In the event contributions pursuant to this section are made in
Company stock, the number of shares of Company stock to be contributed shall be
determined by using the average price of Company stock for that Plan Year which
shall be determined by averaging the closing prices of Company stock each day to
obtain a monthly average price and averaging the monthly average prices to
obtain an annual average price.
Notwithstanding any other provision of the Plan to the contrary,
contributions, benefits, and service credit with respect to qualified military
service will be provided in accordance with Code Section 414(u).
5.2 Discretionary Employer Contributions. The Employers may make, in
Company stock or in cash to be used to purchase Company stock, a discretionary
contribution to the Trust in such amount, if any, as determined by the Board.
5.3 Allocation of Annual Employer Contributions and Forfeitures. As of
the last day of each Plan Year, each eligible Participant's allocable share, if
any, of the Employer's contributions for that Plan Year shall be credited to his
Account. As of the last day of the Plan Year, any amount which becomes a
forfeiture during the Plan Year, shall first be used, in accordance with Section
15.2(d), if applicable, to reinstate previously forfeited Accounts of former
Participants, if any, in accordance with Section 5.4, and the remaining
forfeitures, if any, shall be used to reduce contributions which would otherwise
be made by the forfeiting Participant's Employer.
8
{PAGE}
Effective January 1, 1999, Discretionary Employer contributions
for the Plan Year, if any, arising under the Plan during that year shall be
allocated among the Accounts of those Participants who are actively employed on
the last day of the Plan Year and those Participants who are on an authorized
leave of absence or who terminated employment during the Plan Year due to
retirement, disability or death, in the ratio that each Participant's
Compensation for the Plan Year bears to all Participant's Compensation for that
Plan Year.
5.4 Restoration of Forfeited Amounts Upon Reemployment. If a person
who was a Participant on or after April 1, 1975 is reemployed by the Employer
before he incurs 5 consecutive 1-year Breaks-in-Service, he shall receive a
special allocation equal to the amount forfeited, if any, from such
Participant's Account upon the Participant's prior termination of employment.
The special allocation will be made as of the end of the Plan Year in which the
Participant is reemployed and shall be in addition to the contributions
described above. If, however, the Participant received a distribution equal to
his entire vested, nonforfeitable interest in his Account upon his prior
termination of employment, the special allocation will not be payable unless and
until the Participant repays to the Trustee the full amount distributed from his
Account in a timely fashion. The repayment must be made not later than the day
on which the Participant would have incurred 5 consecutive 1-year
Breaks-in-Service. The source of the special allocation shall first be any
forfeitures occurring during the Plan Year and, if that source is insufficient,
then the Employer shall make a special contribution to the Participant's Account
in an amount sufficient to cover the special allocation.
5.5 Rollover Contributions. An Employee who receives or is credited
with a distribution described in subsection (a), (b) or (c) of this Section may,
but need not, make a special contribution to this Plan, which contribution will
hereafter be referred to as a "Rollover Contribution." In making a Rollover
Contribution, the Employee must transfer, or direct the transfer of, cash equal
to the value of all or part of the property the Employee received or is entitled
to receive in the distribution to the Trustees, to the extent the fair market
value of such property exceeds an amount equal to after-tax contributions made
by the Employee to the plan from which the distribution is being made. In
addition, prior to the acceptance of a Rollover Contribution, the Employer may
require the submission of such evidence as the Employer deems necessary or
desirable to enable it to determine whether the transfer qualifies as a Rollover
Contribution. If the Employer determines subsequent to any Rollover Contribution
that any such Rollover Contribution did not in fact qualify as such, the value
of such Rollover Contribution shall be immediately distributed to the Employee.
For purposes of this Section 5.5, the following shall be eligible to be treated
as a Rollover Contribution:
(a) A distribution to an Employee from an employee's trust
described in Code Section 401(a), which trust is exempt from tax under Code
Section 501(a), or from an annuity plan qualified under Code Section 403(a),
which distribution qualifies for rollover treatment pursuant to the Code, which
was received by the Employee not earlier than 60 days prior to the date the
Rollover Contribution is credited to the Trust; or
(b) A distribution to an Employee from an Individual Retirement
Account or an Individual Retirement Annuity (other than an endowment contract)
within the meaning of Code
9
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Section 408(a) or 408(b), the assets of which are derived solely from a rollover
or transfer thereto of a prior distribution to the Employee described in (a)
above, which was received by the Employee not earlier than sixty (60) days prior
to the date the Rollover Contribution is credited to the Trust; or
(c) A distribution directly to the Plan from an eligible
retirement plan (as defined in Code Section 401(a)(31)(D)) of all or any portion
of the balance to the credit of the Employee, except that the following amounts
shall not be included: any distribution that is one (1) of a series of
substantially equal periodic payments (not less frequently than annually) made
for the life (or life expectancy) of the distributee or the joint lives (or
joint life expectancies) of the distributee and the distributee's designated
beneficiary, or for a specified period of ten (10) years or more; any
distribution to the extent such distribution is required under Code Section
401(a)(9); that portion of any distribution that would not have been includible
in gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities) if it would have been
distributed directly to the Employees; and any hardship distribution described
in Code Section 401(k)(2)(B)(i)(IV).
ARTICLE 6
LIMITATIONS
6.1 Limitations on Annual Account Additions.
(a) Annual Account Additions. The term "Annual Account Additions"
means, for any Participant for any Plan Year, the sum of --
(1) Employer and Affiliate contributions made for the
Participant under "any defined contribution plan" for
the Plan Year, including before-tax deposits and
Matching Contributions hereunder; and
(2) the Participant's after-tax contributions to "any
defined contribution plan"; and
(3) forfeitures, if any, allocated to the Participant for
the year under "any defined contribution plan"; and
(4) amounts allocated on the Participant's behalf to a
medical account, as defined in Code Section 415(l)(1)
or 419A(d)(2), although the percentage limit described
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