Amendment to Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K/A Amendment to Annual Report 56± 243K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 8± 33K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 8± 34K
4: EX-4.8 Instrument Defining the Rights of Security Holders 53± 222K
5: EX-4.9 Instrument Defining the Rights of Security Holders 20± 88K
6: EX-10.18 Material Contract 8± 41K
7: EX-10.20 Material Contract 6± 29K
8: EX-10.35 Material Contract 16± 65K
9: EX-10.36 Material Contract 62± 291K
10: EX-11.1 Statement re: Computation of Earnings Per Share 2± 14K
11: EX-21.1 Subsidiaries of the Registrant 1 7K
12: EX-23.1 Consent of Experts or Counsel 1 7K
EX-4.8 — Instrument Defining the Rights of Security Holders
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Exhibit 4.8
DOSKOCIL COMPANIES INCORPORATED
RETIREMENT AND PROFIT SHARING PLAN
(As Amended and Restated Effective as of July 1, 1993)
DOSKOCIL COMPANIES INCORPORATED
RETIREMENT AND PROFIT SHARING PLAN
(As Amended and Restated Effective as of July 1, 1993)
Table of Contents
ARTICLE 1
General. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purpose. . . . . . . . . . . . . . . . . . . . . 1
1.3 Source of Funds. . . . . . . . . . . . . . . . . . 2
1.4 Scope of Plan Coverage . . . . . . . . . . . . . . 2
1.5 Definitions. . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . 11
2.1 Eligibility Requirements.. . . . . . . . . . . . . 11
2.2 Leaves of Absence. . . . . . . . . . . . . . . . . 11
2.3 Leased Employees . . . . . . . . . . . . . . . . . 11
2.4 Transferred Participant. . . . . . . . . . . . . . 12
2.5 Disabled Participants. . . . . . . . . . . . . . . 12
ARTICLE 3
Contributions. . . . . . . . . . . . . . . . . . . . . . . . 12
3.1 Elective 401(k) Contributions. . . . . . . . . . . 12
3.2 Qualified Nonelective Contributions. . . . . . . . 13
3.3 Matching Contributions . . . . . . . . . . . . . . 13
3.4 Profit Sharing Contributions . . . . . . . . . . . 14
3.5 No Voluntary Employee Contributions. . . . . . . . 14
3.6 Maximum Annual Addition. . . . . . . . . . . . . . 14
3.7 Dollar Limitation on Elective 401(k)
Contributions. . . . . . . . . . . . . . . . . . . 14
3.8 Additional Limitations on Elective 401(k)
Contributions. . . . . . . . . . . . . . . . . . . 15
3.9 Limitations on Matching Contributions. . . . . . . 15
3.10 Multiple Use Limitation. . . . . . . . . . . . . . 16
3.11 Extent of Fractionalization. . . . . . . . . . . . 17
3.12 Corrective Distributions . . . . . . . . . . . . . 17
3.13 Attributable Income. . . . . . . . . . . . . . . . 17
3.14 Treatment of Certain Family Members. . . . . . . . 18
3.15 Aggregation of Plans . . . . . . . . . . . . . . . 19
3.16 Order of Testing . . . . . . . . . . . . . . . . . 19
3.17 Committee Rules. . . . . . . . . . . . . . . . . . 19
3.18 Rollover Contributions . . . . . . . . . . . . . . 19
ARTICLE 4
Allocation, Accounting and Investment Provisions . . . . . . 20
4.1 Eligibility to Share in an Profit Sharing
Contributions and Forfeitures. . . . . . . . . . . 20
4.2 Allocations of Elective 401(k), Qualified
Nonelective and Matching Contributions . . . . . . 21
4.3 Allocations of Profit Sharing Contributions and
Forfeitures. . . . . . . . . . . . . . . . . . . . 21
4.4 Investment Funds and Elections . . . . . . . . . . 22
4.5 Valuation of Accounts. . . . . . . . . . . . . . . 23
4.6 Doskocil Stock Fund. . . . . . . . . . . . . . . . 24
ARTICLE 5
Amount of Payments to Participants . . . . . . . . . . . . . 24
5.1 General Rule . . . . . . . . . . . . . . . . . . . 24
5.2 Normal Retirement. . . . . . . . . . . . . . . . . 25
5.3 Vesting Schedule.. . . . . . . . . . . . . . . . . 25
5.4 Treatment of Forfeitures . . . . . . . . . . . . . 25
ARTICLE 6
Distributions. . . . . . . . . . . . . . . . . . . . . . . . 26
6.1 Distributions to Participants. . . . . . . . . . . 26
6.2 Distributions to Beneficiaries . . . . . . . . . . 28
6.3 Commencement of Distributions. . . . . . . . . . . 29
6.4 Deferred Distributions . . . . . . . . . . . . . . 31
6.5 Unclaimed Distributions. . . . . . . . . . . . . . 31
6.6 Form of and Consent to Elections . . . . . . . . . 31
6.7 In-Service Withdrawals . . . . . . . . . . . . . . 32
6.8 Rules Applicable to Hardship Withdrawals.. . . . . 33
6.9 Loans. . . . . . . . . . . . . . . . . . . . . . . 35
6.10 Facility of Payment. . . . . . . . . . . . . . . . 36
6.11 Claims Procedure . . . . . . . . . . . . . . . . . 37
ARTICLE 7
Survivor Annuity Rules . . . . . . . . . . . . . . . . . . . 38
7.1 Qualified Joint and Survivor Annuity . . . . . . . 38
7.2 Qualified Preretirement Survivor Annuity . . . . . 38
ARTICLE 8
Named Fiduciaries; Allocation of Responsibilities;
Administration. . . . . . . . . . . . . . . . . . . . . 39
8.1 Named Fiduciaries. . . . . . . . . . . . . . . . . 39
8.2 Insurance Contracts. . . . . . . . . . . . . . . . 41
8.3 Procedural Matters . . . . . . . . . . . . . . . . 42
8.4 Administrative Committee Members as Participants.. 43
8.5 Complete and Separate Allocation of Fiduciary
Responsibilities . . . . . . . . . . . . . . . . . 43
8.6 Exclusive Purpose. . . . . . . . . . . . . . . . . 43
8.7 Reversion to the Employers.. . . . . . . . . . . . 43
8.8 Indemnification of Committee Members.. . . . . . . 43
8.9 Bond . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 9
Amendment or Termination . . . . . . . . . . . . . . . . . . 44
9.1 Amendment. . . . . . . . . . . . . . . . . . . . . 44
9.2 Termination. . . . . . . . . . . . . . . . . . . . 44
9.3 Form of Amendment, Discontinuance of Employer
Contributions and Termination. . . . . . . . . . . 44
9.4 Limitations on Amendments. . . . . . . . . . . . . 44
9.5 Level of Benefits upon Merger. . . . . . . . . . . 45
9.6 Vesting Upon Termination, Discontinuance of
Employer Contributions; Liquidation of Trust . . . 45
ARTICLE 10
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 46
10.1 No Guarantee of Employment, etc. . . . . . . . . . 46
10.2 No Assignment of Rights. . . . . . . . . . . . . . 46
10.3 Qualified Domestic Relations Order . . . . . . . . 46
10.4 Receipts by Participants . . . . . . . . . . . . . 46
10.5 Controlling Law. . . . . . . . . . . . . . . . . . 46
10.6 Severability . . . . . . . . . . . . . . . . . . . 47
10.7 Notification of Addresses. . . . . . . . . . . . . 47
10.8 Gender and Number. . . . . . . . . . . . . . . . . 47
ARTICLE 11
Top-Heavy Plan Requirements. . . . . . . . . . . . . . . . . 47
11.1 Definition of Top-Heavy Plan. . . . . . . . . . . 47
11.2 Top-Heavy Plan Requirements . . . . . . . . . . . 48
11.3 Definitions . . . . . . . . . . . . . . . . . . . 48
11.4 Cessation of Top-Heavy Requirements . . . . . . . 49
ARTICLE 12
Adoption by Affiliates . . . . . . . . . . . . . . . . . . . 50
12.1 Adoption of Plan. . . . . . . . . . . . . . . . . 50
12.2 Agents for Employer . . . . . . . . . . . . . . . 50
12.3 Termination . . . . . . . . . . . . . . . . . . . 50
12.4 Data to be Furnished by Employers . . . . . . . . 50
ARTICLE 1
General
1.1 Purpose. It is the intention of Doskocil Companies
Incorporated to continue to provide for the administration of the
Doskocil Companies Incorporated Retirement and Profit Sharing Plan
(formerly known as the "Doskocil Employee Investment Plan") (the
"Plan") and a Trust Fund in conjunction therewith in accordance
with the provisions of Sections 401 and 501 of the Code and in
accordance with other provisions of law relating to defined
contribution plans. The Plan is designed to be a profit sharing
plan which includes a qualified "cash or deferred arrangement"
described in Section 401(k) of the Code. Except as provided in
Section 8.7, upon the transfer by an Employer of any funds to the
Trust Fund in accordance with the provisions of this Plan, all
interest of the Employer therein shall cease and terminate, and no
part of the Trust Fund shall be used for, or diverted to, purposes
other than the exclusive benefit of Participants and their
beneficiaries and the defrayal of reasonable expenses of
administering the Plan.
1.2 Merger of Plans. For periods prior to July 1, 1993,
Wilson Foods Corporation, an affiliate of Doskocil Companies
Incorporated, actively maintained for the benefit of its eligible
employees the Retirement and Profit Sharing Plan for Salaried
Employees of Wilson Foods Corporation (the "Wilson Plan").
Effective as of July 1, 1993 (the "Merger Date"), the Wilson Plan
shall be merged with and into this Plan; the complete effectuation
of such merger, however, being expressly conditioned upon the
receipt of appropriate approvals from the Internal Revenue Service.
The above-referenced merger of plans shall be made in accordance
with Code Section 414(l) and Treasury Regulation Section 1.414(l)-
1(d) (as pertaining to the merger of defined contribution plans)
and in accordance with the following:
(a) Each participant of the Wilson Plan as of June 30, 1993
shall become a Participant of this Plan as of the Merger
Date.
(b) The fair market value of all of the account balances in
both this Plan and in the Wilson Plan as determined
immediately prior to the Merger Date shall equal the fair
market value of all the assets of this Plan determined as
of the Merger Date.
(c) The assets of this Plan and of the Wilson Plan shall be
combined as of the Merger Date to form the assets of this
Plan.
(d) As of and immediately after the Merger Date, each
participant and beneficiary of the Wilson Plan shall have
an Account balance or balances under this Plan equal to
the sum of the account balances maintained on his or her
behalf under the Wilson Plan immediately prior to the
Merger Date.
(e) Any optional forms of benefits constituting "protected
benefits" within the meaning of Code Section 411(d)(6)
and the regulations thereunder which were available to
participants under the Wilson Plan immediately prior to
the Merger Date shall be preserved and made available to
such individuals under this Plan to the extent required
by law.
(f) Amounts transferred from the Wilson Plan to this Plan in
conjunction with the above-referenced merger which are
attributable to "elective contributions" within the
meaning of Code Section 401(k) and the regulations
thereunder made by participants under the Wilson Plan
shall remain subject to the distribution limitation
provisions of Code Section 401(k)(2)(B) while maintained
under this Plan to the extent required by law.
(g) Pursuant to Code Section 414(l) and IRS Regulation
Section 1.414(l)-1(b)(1), the Wilson Plan and this Plan
are to be treated for the 1993 plan year (the plan year
of merger) as a "single plan" for purposes of the plan
qualification prescriptions of the Code. In that regard,
as with respect to the 1993 plan year, the Wilson Plan
and this Plan will be combined and treated as a single
plan for purposes of demonstrating compliance with:
(i) the minimum coverage standards of Code Section
410(b);
(ii) the actual deferral percentage test set forth
in Code Section 401(k)(3); and
(iii) all other applicable nondiscrimination
standards.
1.3 Source of Funds. The Trust Fund shall be funded and
maintained by contributions of the Employers, by Elective 401(k)
Contributions of Participants, and by such net earnings as are
realized from the investment of the assets of the Trust Fund.
1.4 Scope of Plan Coverage. The provisions of the Plan as
herein stated shall be effective as of July 1, 1993, except as
specifically provided otherwise. Except as may be required by
ERISA or the Code, the rights of any person whose status as a
Covered Employee of an Employer or an Affiliate has terminated
shall be determined pursuant to the Plan as in effect on the date
such status terminated, unless a subsequently adopted provision of
the Plan is made specifically applicable to such person.
1.5 Definitions. When used in the Plan, certain terms are
capitalized and have the respective meanings set forth in this
Article or in certain other Articles of the Plan.
Account. "Account" means any of the various Accounts
maintained under the Plan with respect to any Participant or any
beneficiary of a deceased Participant.
Actual Contribution Percentage. "Actual Contribution
Percentage" means with respect to a group of Participants the
percentage determined under Section 3.9(b).
Actual Deferral Percentage. "Actual Deferral Percentage"
means with respect to a group of Participants the percentage
determined under Section 3.8(b).
Administrative Committee. "Administrative Committee" means
the Committee serving as a named fiduciary as described in Section
8.1(d).
Affiliate. "Affiliate" means any corporation or enterprise,
other than Doskocil, which, as of a given date, is a member of the
same controlled group of corporations, the same group of trades or
businesses under common control, the same affiliated service group
or the same other group of associated organizations, determined in
accordance with Sections 414(b), (c), (m) or (o) of the Code, as is
Doskocil. For purposes of applying the limitations of Section 415
of the Code, however, "Affiliate" shall mean any corporation or
enterprise, other than Doskocil, which, as of a given date, is a
member of the same controlled group of corporations or the same
group of trades or businesses under common control, determined in
accordance with Section 414(b) or (c) of the Code as modified by
Section 415(h) thereof, as is Doskocil.
Annual Addition. "Annual Addition" means with respect to a
Participant for any Plan Year the total of the Elective 401(k)
Contributions, Qualified Nonelective Contributions, Matching
Contributions, Profit Sharing Contributions and Profit Sharing
Forfeitures (if any) allocated to his Accounts for the Plan Year,
plus any other amount so treated as an Annual Addition within the
meaning of Code Section 415(c)(2), which statutory provision is
specifically incorporated herein by reference.
Benefit Commencement Date. The term "Benefit Commencement
Date" means with respect to any Participant the date as of which
all events have occurred which entitle the Participant to receive,
or to begin to receive, a distribution from any of his Accounts
under the Plan.
Board of Directors. "Board of Directors" means the Board of
Directors of Doskocil, as from time to time constituted.
Code. "Code" means the Internal Revenue Code of 1986, as from
time to time amended.
Committee. "Committee" means the Administrative Committee
or the Investment Committee, or both of them, as the context so
indicates.
Compensation. An Employee's "Compensation" for any period is
the sum of:
(a) the total compensation paid to him by an Employer
and all other Affiliates during that period which is currently
treated as wages for income tax withholding purposes pursuant
to Code Section 3401(a) (determined without regard to any
rules under said Code Section that limit the remuneration
included in wages based on the nature or location of the
employment or the services performed);
(b) all other payments of compensation to the Employee
by an Employer or Affiliate for such period which is not
included in (a) above, but which is subject to reporting under
Code Sections 6041(d) and 6051(a)(3); and
(c) other amounts which would be so treated as wages but
for the Employee's election to have a portion of such wages
contributed by an Employer or another Affiliate on his behalf
on a salary reduction basis to a program described under
Section 125 or 401(k) of the Code.
The Compensation, and thus the Considered Compensation, of any
Employee for any annual period taken into account for any purpose
under the Plan shall not exceed $150,000 ($235,840 for 1993), or
such other amount as may be applicable for any annual period
pursuant to Code Section 401(a)(17).
Considered Compensation. Except as provided in Section
3.8(d), Participant's "Considered Compensation" for any period is
his Compensation during such period paid or deemed to be paid to
him by an Employer while he was a Covered Employee and a
Participant under the Plan. Thus, a Participant's "Considered
Compensation" shall not include any Compensation paid to him prior
to his becoming a Participant or while he is deemed to be a
Transferred Participant in accordance with Section 2.4.
Covered Employee. "Covered Employee" means an Employee of an
Employer who is not a Member of a Collective Bargaining Unit and
who is hired by an Employer to perform services on a regularly
scheduled basis for an indefinite period. For purposes of the
foregoing, an Employee shall be deemed to be performing services on
a regularly scheduled basis for an indefinite period if and as of
when such Employee completes 1,000 or more Hours of service during
the 12-month period beginning on his Employment Commencement Date,
or during any subsequent 12-month period beginning on the
anniversary of such date.
Doskocil. "Doskocil" means Doskocil Companies Incorporated,
a Delaware corporation.
Doskocil Stock Fund. "Doskocil Stock Fund" means the fund
maintained under the Plan which is described in Section 4.6.
Election Effective Date. "Election Effective Date" means
January 1, April 1, July 1 and October 1 of each Plan Year.
Elective Deferrals. "Elective Deferrals" means with respect
to any Participant for any period the sum of the contributions (if
any) made on behalf of the Participant by an employer (whether or
not an Employer or an Affiliate):
(a) under a cash or deferred arrangement (as defined in Code
Section 401(k)) to the extent not includable in the Participant's
gross income for that period pursuant to Code Section 402(a)(8)
(determined without regard to Code Section 402(g));
(b) to an individual retirement plan pursuant to a simplified
employee pension to the extent not includable in the Participant's
gross income for that period under Code Section 402(h)(1)(B)
(determined without regard to Code Section 402(g)); or
(c) which was applied toward the purchase of an annuity
contract or custodial account under Code Section 403(b) pursuant to
a salary reduction agreement (within the meaning of Code Section
3121(a)(5)(D)).
Elective 401(k) Contributions. "Elective 401(k)
Contributions" means with respect to a Participant the
contributions of an Employer made on the Participant's behalf
pursuant to the Participant's election as described in Section 3.1.
Elective 401(k) Contribution Account. A Participant's
"Elective 401(k) Contribution Account" means the Account into which
shall be credited the Elective 401(k) Contributions made on behalf
of the Participant pursuant to Section 3.1, and the earnings
attributable to such contributions. If applicable, there shall be
further credited into such Participant's Elective 401(k)
Contribution Account the value of such Participant's Deferred
Account balance under the Wilson Plan representing amounts
attributable to salary reduction contributions made on the
Participant's behalf under said plan which were transferred to this
Plan pursuant to the merger referred to in Section 1.2.
Eligible Participant. An "Eligible Participant" is a
Participant who is eligible to share in the allocations of Profit
Sharing Contributions and Profit Sharing Forfeitures for a given
Plan Year pursuant to Section 4.1(a).
Employee. "Employee" means a common law employee of an
Employer.
Employer. "Employer" means Doskocil, Wilson Foods
Corporation, and any other Affiliate of Doskocil which may become
an Employer with respect to the Plan in accordance with Section
12.1.
Employment Commencement Date. An Employee's "Employment
Commencement Date" means the first date on which the Employee
performs duties for an Employer or an Affiliate as an employee;
provided, however, that in the case of an Employee who returns to
service following his Severance Date, the Employee's "Employment
Commencement Date" means the first date on which he performs duties
for an Employer or an Affiliate as an employee following such
Severance Date.
ERISA. "ERISA" means the Employee Retirement Income Security
Act of 1974, as from time to time amended.
Excess Deferrals. "Excess Deferrals" with respect to a
Participant for any Plan Year means that amount of his Elective
401(k) Contributions, if any, in excess of the dollar limitation
set forth in Section 3.7 as applicable to such Participant for such
Plan Year.
Excess 401(k) Contributions. "Excess 401(k) Contributions"
with respect to a Participant for any Plan Year means that amount
of his Elective 401(k) Contributions for that Plan Year, if any,
which cannot be allocated to his Elective 401(k) Contribution
Account by reason of the limitation set forth under Section 3.8 or
3.10.
Excess Matching Contributions. "Excess Matching
Contributions" with respect to a Participant for any Plan Year
means the amount of his Matching Contributions which cannot be
allocated to his Matching Contribution Account by reason of the
limitation set forth under Section 3.9 or 3.10.
Excess Tentative Contribution. "Excess Tentative
Contribution" with respect to any Plan Year means an excess
contribution (if any) described in Section 4.3(f).
415 Compensation. A Participant's "415 Compensation" for any
Plan Year is the sum of:
(a) the total compensation paid to him by an Employer and all
Affiliates during that Plan Year which is currently treated as
wages for income tax withholding purposes pursuant to Code Section
3401(a) (determined without regard to any rules under said Code
Section that limit the remuneration included in wages based on the
nature or location of the employment or the services performed);
and
(b) all other payments of compensation to the Participant by
an Employer or an Affiliate for such Plan Year which is not
included in (a) above, but which is subject to reporting under Code
Sections 6041(d) and 6051(a)(3).
Highly Compensated Employee. "Highly Compensated Employee"
means, with respect to any Plan Year, an employee of an Employer or
any Affiliate who:
(a) at any time during that Plan Year or the preceding Plan
Year was a five percent owner of an Employer or an Affiliate (as
defined in Section 416(i)(1) of the Code); or
(b) during the preceding Plan Year:
(i) received Compensation in excess of $96,368 (or
such
greater amount as may be prescribed by the Commissioner of
Internal Revenue);
(ii) received Compensation in excess of $64,245 (or
such
greater amount as may be prescribed by the Commissioner of
Internal Revenue) and was among the top 20 percent of all the
employees of an Employer and all Affiliates (disregarding
those
employees excludable under Code Section 414(q)(8)) when ranked
on
the basis of Compensation paid for that Plan Year; or
(iii)was an officer of an Employer or an Affiliate and
either (A)
received Compensation in excess of 50 percent of the
limitation in
effect under Code Section 415(b)(1)(A) for that year (provided
that for this purpose, no more than 50 employees (or, if less,
the
greater of three employees or 10 percent of the total number
of
employees of an Employer and all Affiliates) shall be treated
as
officers); or (B) was the highest paid officer of an Employer
and
all Affiliates for that year; or
(c) during that Plan Year, is both (i) a member of the group
consisting of the 100 employees of an Employer and all Affiliates
receiving the greatest Compensation for that year, and (ii) a
member of the group of employees described in subparagraph (b)
above if such subparagraph (b) were applicable to the current Plan
Year.
A former employee of an Employer or an Affiliate shall be
treated as a Highly Compensated Employee if such employee (i) was
a Highly Compensated Employee with respect to the Plan Year in
which he separated from service or otherwise ceased to perform
services for an Employer and all Affiliates, or (ii) was a Highly
Compensated Employee at any time after attaining age 55.
Hour of Service. An "Hour of Service" with respect to any
employee is:
(a) each hour for which the employee is paid or entitled to
payment for the performance of duties for an Employer or an
Affiliate;
(b) each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by an Employer or an
Affiliate;
(c) each hour for which the employee is paid or entitled to
payment from an Employer or an Affiliate for a period during which
no duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness,
incapacity, layoff, jury duty, military duty, or leave of absence.
In crediting Hours of Service pursuant to this subparagraph (c),
all payments made or due shall be taken into account, whether such
payments are made directly by an Employer or an Affiliate, or
indirectly (e.g., through a trust fund or insurer to which an
Employer or Affiliate makes payments, or otherwise), except that:
(i) no more than 501 such Hours of Service shall be
credited
for any continuous period during which the employee
performs no duties;
(ii) no such Hours of Service shall be credited if
payments
are made or due under a plan maintained solely for the purpose
of
complying with any workers' compensation, unemployment
compensation or disability insurance laws; and
(iii)no such Hours of Service shall be credited for
payments which are
made solely to reimburse the employee for medical or medically
related expenses.
The Hours of Service, if any, for which an employee is credited for
a period in which he performs no duties shall be computed and
credited to computation periods in accordance with 29 C.F.R.
2530.200b-2 and other applicable regulations promulgated by the
Secretary of Labor. For purposes of computing the Hours of Service
to be credited to an employee with respect to any payment made or
due which is calculated on the basis of units of time, the number
of Hours of Service to be so credited shall be determined by
reference to the employee's regularly scheduled working hours, or,
if the employee does not have a regular work schedule, by reference
to an 8-hour workday.
Investment Committee. "Investment Committee" means the
Committee
described in Section 8.1(c).
Investment Fund. "Investment Fund" means an Investment Fund
described in Section 4.4.
Matching Contributions. "Matching Contributions" means the
contributions of an Employer described in Section 3.3.
Matching Contribution Account. A Participant's "Matching
Contribution Account" means the Account into which shall be
credited both the Matching Contributions made on the Participant's
behalf pursuant to Section 3.3, and the earnings attributable to
such contributions.
Maternity or Paternity Absence. A "Maternity or Paternity
Absence" is an absence from work by an Employee:
(a) by reason of the pregnancy of the Employee;
(b) by reason of the birth of a child of the Employee;
(c) by reason of the placement of a child with the Employee
in connection with the adoption of such child by the Employee; or
(d) for purposes of caring for such child for a period
beginning immediately following such birth or placement.
Member of a Collective Bargaining Unit. "Member of a
Collective Bargaining Unit" means any Employee who is included in
a collective bargaining unit and whose terms and conditions of
employment are covered by a collective bargaining agreement if
there is evidence that retirement benefits were the subject of
good-faith bargaining between representatives of such Employee and
an Employer unless such collective bargaining agreement makes this
Plan applicable to such Employee.
Normal Retirement Date. A Participant's "Normal Retirement
Date" shall be his sixty-fifth birthday.
One-Year Break in Service. A "One-Year Break in Service," as
such term is used in Sections 5.6 and 5.7 with respect to any
Employee, is a one-year period, commencing on the Employee's
Severance Date, during which such Employee does not perform duties
for an Employer or an Affiliate.
Participant. A "Participant" is (a) a current Covered
Employee of an Employer who has become eligible to participate in
the Plan pursuant to Section 2.1, or (b) a former Covered Employee
on whose behalf an Account under the Plan is maintained.
Plan. The "Plan" means the Doskocil Companies Incorporated
Retirement and Profit Sharing Plan, as from time to time in effect.
Plan Year. A "Plan Year" is the twelve month period beginning
January 1 and ending December 31.
Profit Sharing Account. A Participant's "Profit Sharing
Account" means the Account into which shall be credited both the
Participant's allocable share of Profit Sharing Contributions and
Profit Sharing Forfeitures (if any) made to or arising under the
Plan, and the earnings attributable to such contributions and
forfeitures.
Profit Sharing Contributions. "Profit Sharing Contributions"
means the contributions of an Employer described in Section 3.4.
Profit Sharing Forfeitures. "Profit Sharing Forfeitures"
means the value of the Profit Sharing Accounts of former
Participants which become subject to forfeiture in accordance with
Section 5.6.
Qualified Joint and Survivor Annuity. A "Qualified Joint and
Survivor Annuity" is an annuity for the life of a Participant with
payments continued upon the death of the Participant to and for the
life of his spouse in an amount which is fifty percent of the
amount payable while the Participant was living and which is
actuarially equivalent to a single-life annuity otherwise payable
to the Participant.
Qualified Nonelective Contributions. "Qualified Nonelective
Contributions" means the contributions of an Employer described in
Section 3.2.
Qualified Nonelective Contribution Account. A Participant's
"Qualified Nonelective Contribution Account" means the Account into
which shall be credited the Qualified Nonelective Contributions
made on behalf of the Participant pursuant to Section 3.2.
Qualified Preretirement Survivor Annuity. "Qualified
Preretirement Survivor Annuity" means the form of distribution
described in Section 7.2.
QVEC Account. If applicable, a Participant's "QVEC Account"
means the Account maintained under the Plan which reflects the
Participant's account balance under the Wilson Plan attributable to
deductible qualified voluntary employee contributions made by the
Participant to said plan (and the earnings thereon), which account
balance was transferred to this Plan in conjunction with the merger
referred to in Section 1.2.
Required Distribution Year. "Required Distribution Year"
means with respect to:
(a) a Participant who attained age 70-1/2 before January 1,
1988, and who was, at any time during a Plan Year ending in or
after the calendar in which he attains age 70-1/2, a 5 percent
owner of an Employer or an Affiliate within the meaning of Section
416(i)(1) of the Code, the later of:
(i) the calendar year during which he attained age 70-
1/2; and
(ii) the calendar year during which he first became such
a five percent owner;
(b) any other Participant who attained age 70-1/2 before
January 1, 1988, the later of:
(i) the calendar year during which he attained age 70-
1/2; and
(ii) the calendar year during which his employment with
an Employer and all Affiliates terminates; and
(c) a Participant who attains age 70-1/2 after December 31,
1987, the calendar year in which he attains age 70-1/2.
Rollover Account. "Rollover Account" means an Account
maintained under the Plan on behalf of a Participant as described
in Section 3.18. To the extent applicable, a Participant's
Rollover Account may consist in whole or in part of the value of
the Participant's Rollover Account balance under the Wilson Plan,
and the earnings thereon, which account balance represents amounts
attributable to rollover contributions made by the Participant to
said plan and which balance was transferred to this Plan in
conjunction with the merger referred to in Section 1.2.
Severance Date. An Employee's "Severance Date" is the earlier
of:
(a) the date on which he quits, retires, dies or is
discharged, or
(b) the first day following any one-year period (any two-year
period in the case of an Employee on a Maternity or Paternity
Absence) during which he performed no duties for an Employer or an
Affiliate.
Stoppenbach Account. If applicable, a Participant's
"Stoppenbach Account" means the value of the Participant's account
balance under the Stoppenbach, Inc. Thrift Plan and Trust (other
than amounts attributable to voluntary, after-tax contributions),
and the earnings thereon, which account balance was previously
transferred to and maintained under the Wilson Plan and
subsequently transferred to this Plan in conjunction with the
merger referred to in Section 1.2.
Tentative Profit Sharing Contribution. "Tentative Profit
Sharing Contribution" means the contribution described in Section
3.4.
Transferred Participant. A "Transferred Participant" is a
Participant described in Section 2.4.
Trustee. "Trustee" means the Trustee under the Trust referred
to in Section 8.1(b).
Trust Fund. "Trust Fund" means the assets of the Plan as held
in trust pursuant to an Agreement of Trust entered into with the
Trustee.
Valuation Date. "Valuation Date" means the last day of each
Plan Year quarter.
Voluntary Contribution Account. If applicable, a
Participant's "Voluntary Contribution Account" means the Account
maintained under the Plan which reflects, as the case may be, the
Participant's account balance under the Stoppenbach, Inc. Thrift
Plan and Trust or under the Wilson Plan attributable to voluntary,
after-tax contributions, and the earnings thereon, which account
balance was previously transferred to or otherwise became part of
this Plan. Separate subaccounts shall be maintained under the
Voluntary Contribution Account to separately account for:
(a) voluntary contributions made by the Participant under the
Plan or a predecessor plan; and
(b) the earnings attributable to such voluntary
contributions.
Wilson Plan. "Wilson Plan" means the Retirement and Profit
Sharing Plan for Salaried Employees of Wilson Foods Corporation as
in effect prior to the merger of said plan with and into this Plan
as referenced in Section 1.2.
Wilson Retirement Account. If applicable, a Participant's
"Wilson Retirement Account" means the value of the Participant's
Retirement Account balance under the Wilson Plan, and the earnings
thereon, which account balance was transferred to the Plan in
conjunction with the merger referred to in Section 1.2.
Year of Service. A "Year of Service" is a unit of service
credited to an Employee for various purposes under the Plan,
including for the purposes of determining his eligibility to become
a Participant under the Plan and, once becoming a Participant, of
determining the nonforfeitable status of his Matching Contribution
and Profit Sharing Accounts. The Years of Service to be credited
with respect to any Employee under the Plan shall be determined as
provided below.
(a) An Employee shall be credited with one Year of Service
for each full year in the period commencing on his Employment
Commencement Date and ending on his Severance Date. An Employee
shall also be credited with 1/365 of a Year of Service for each
additional day in such period for which he did not receive credit
pursuant to the preceding sentence.
(b) A former Employee who is reemployed and who performs
duties for an Employer or an Affiliate within one year after the
date he last performed duties for an Employer shall also be
credited with 1/365 of a Year of Service for each day in the period
commencing on his Severance Date and ending on his Employment
Commencement Date following such Severance Date.
(c) All of an Employee's Years of Service shall be taken into
account under the Plan, except that Years of Service before a One-
Year Break in Service shall be disregarded until such Employee has
completed one Year of Service after such One-Year Break in Service.
ARTICLE 2
Eligibility
2.1 Eligibility Requirements.
(a) Every Participant in the Plan as of July 1, 1993 shall
continue as such, subject to the provisions of the Plan.
(b) Every individual who was a participant under the Wilson
Plan as of June 30, 1993 shall become a Participant in the Plan as
of July 1, 1993, provided he is then a Covered Employee.
(c) Every other Covered Employee shall be eligible to
participate in the Plan, if he is then employed by an Employer as
a Covered Employee, as of the first day of the first payroll period
pertaining to such Covered Employee coinciding with or next
succeeding the later of the date as of which he:
(i) completes a Year of Service; and
(ii) attains age 21.
(d) A Covered Employee may make a Rollover Contribution to
the Plan prior to the date he would otherwise be eligible to
participate pursuant to subsection (c) above in accordance with and
subject to the conditions set forth in Section 3.18 and, upon such
event, shall become a Participant in the Plan. The scope of such
temporal participation, however, shall be limited to these rights
associated with the maintenance of a Rollover Account on behalf of
the Covered Employee. In that regard, no contributions or
forfeitures will be made on his behalf or otherwise allocated to
his Accounts with respect to any period prior to such date, if any,
as of which his status as a Participant is determined by reference
to subsection (c) above.
(e) Any former Employee of an Employer who was a Participant
or could have become a Participant under subsection (c) above had
he been employed as a Covered Employee, and who is reemployed by an
Employer as a Covered Employee, shall be eligible to participate
immediately upon such reemployment.
2.2 Leaves of Absence. During the period that any
Participant is granted a leave of absence by his Employer, he shall
continue to participate in the Plan in the same manner and subject
to the same conditions as if he were not on leave of absence.
Leaves of absence may be granted in writing pursuant to an
Employer's leave policy which shall be applied in a uniform and
nondiscriminatory manner to all Participants under similar
circumstances.
2.3 Leased Employees.
(a) To the extent required by Section 414(n) of the Code and
the regulations thereunder, a Leased Employee shall be treated as
an Employee. A "Leased Employee" means any individual who is not
an Employee and who provides services for an Employer if:
(i) such services are provided pursuant to an
agreement between an Employer and any other person;
(ii) such individual has performed such services for
an Employer (or a related person within the meaning of
Section 144(a)(3) of the Code) on a substantially full-
time basis for a period of at least one year; and
(iii) such services are a type historically performed
by the employees in the business field of an Employer.
(b) Notwithstanding any other provision of the Plan to the
contrary, a Leased Employee shall be deemed, on an individual-by-
individual basis, to be in a class of Employees not eligible to
participate in this Plan, unless such participation is required as
a condition of the Plan's qualification under Section 401(a)(26) or
410(b) of the Code.
2.4 Transferred Participant. A Participant who is
transferred from an Employer to employment with an Affiliate which
is not an Employer, or while continuing in the employ of an
Employer ceases to be a Covered Employee (a "Transferred
Participant") shall not be considered to have incurred a
termination of employment, service, or, except as provided below in
the next sentence, participation for purposes of the Plan. No
contributions or forfeitures attributable to Compensation paid to
an Employee for any period during which he is a Transferred
Participant shall be credited to his Accounts, but for all other
purposes of the Plan, a Transferred Participant shall be considered
a Participant. Subject to Section 2.1, if a Transferred
Participant again becomes a Covered Employee, he shall become
eligible to participate in the Plan as of that date.
2.5 Disabled Participants. A Participant who becomes
totally and permanently disabled and thereupon ceases to actively
perform services for an Employer shall continue to be treated as an
active Employee for all purposes of the Plan, including the
crediting of Years of Service, until the effective date of such
Participant's resignation from the employment of the service of the
Employers and all Affiliates. Accordingly, such a disabled
Participant shall not be entitled to a distribution from the Plan
prior to such resignation (other than an in-service withdrawal if
so eligible as prescribed in Section 6.7).
ARTICLE 3
Contributions
3.1 Elective 401(k) Contributions.
(a) Subject to the provisions of this Article 3, each
Participant may elect to have the Employers contribute to the Plan
on his behalf for each payroll period an amount equal to 1 percent
or more of his Considered Compensation for such payroll period
(which amount is hereafter referred to as his "Elective 401(k)
Contribution"). A Participant's Elective 401(k) Contribution rate
must generally be a full percentage of the Participant's Considered
Compensation. However, Elective 401(k) Contributions may be made
with respect to non-routine salary payments (for example, bonuses
or final salary payments), or in other unusual circumstances, on
the basis of a flat dollar amount or other fractional percentage of
a Participant's Considered Compensation in accordance with such
policy and procedures as may be effectuated by the Administrative
Committee from time to time. In all events, a Participant may not
designate a contribution rate which would result in his Elective
401(k) Contributions for a Plan Year to exceed 15 percent of his
Compensation for that Plan Year.
(b) A Participant who chooses to have Elective 401(k)
Contributions made on his behalf shall be eligible for Matching
Contributions as provided under Section 3.3 below.
(c) A Participant may elect to have Elective 401(k)
Contributions commence as of the date he first becomes eligible to
participate in the Plan or, thereafter, as of the first day of any
payroll period coinciding with or next following an Election
Effective Date, provided that he timely submits the required
election form to the Administrative Committee or its delegate
before such date. Such election, once made, shall govern until
modified or suspended as hereinafter provided. A Participant may
elect to increase or decrease such contribution rate, to become
effective as of the first payroll period coinciding with or next
following any future Election Effective Date (or, in the case of a
permissible election with respect to a non-routine salary payment,
such as with respect to a bonus or final salary payment, as of the
date prescribed in such election), by timely submitting the
required form to the Administrative Committee or its delegate. A
Participant may also prospectively suspend his Elective 401(k)
Contributions as of the last day of any payroll period by timely
submitting the required form to the Administrative Committee or its
delegate. For purposes of this subsection (c), a form will be
considered timely submitted if it is delivered at least 30 days
before the date it is to become effective.
(d) Upon the granting to a Participant of an unpaid leave of
absence, the Participant's Elective 401(k) Contributions to the
Plan shall be suspended. Upon his return to active employment as
a Covered Employee, Elective 401(k) Contributions shall again be
made on the Participant's behalf on the basis of the election in
effect immediately prior to such suspension, unless modified in
accordance with subsection (c) above.
(e) All Elective 401(k) Contributions made on behalf of
Participants shall be effected by salary reduction and, according-
ly, each Participant's election regarding Elective 401(k)
Contributions shall constitute his agreement with his Employer to
a reduction in his compensation in an amount equal to the amount of
the Elective 401(k) Contributions.
3.2 Qualified Nonelective Contributions. For each payroll
period, the Employers shall contribute to the Plan on behalf of
each Participant an amount equal to one percent of the
Participant's Considered Compensation for such payroll period
(which amount is hereafter referred to as a "Qualified Nonelective
Contribution"); provided, however, that the total Qualified
Nonelective Contributions which may be made on behalf of any
Participant for any Plan Year shall be limited to $250.
3.3 Matching Contributions. Subject to the provisions of
this Article 3, for each payroll period the Employers shall
contribute to the Plan on behalf of each Participant an amount
equal to the lesser of (i) the Elective 401(k) Contributions made
on behalf of such Participant for such payroll period, or (ii)
three percent of the Participant's Considered Compensation for such
payroll period.
3.4 Profit Sharing Contributions. Subject to the right
reserved to Doskocil to alter, amend or discontinue this Plan, the
Employers shall pay to the Trustee for each Plan Year such amounts,
if any, as the Board of Directors may determine (the "Tentative
Profit Sharing Contribution"), less the sum of the Excess Tentative
Contributions for such Plan Year (if any) arising under Section
4.3(f). In no event, however, shall the total contributions made
by an Employer under this Plan for any Plan Year exceed the maximum
amount deductible from the Employer's income under Section 404 of
the Code with respect to that Plan Year unless the board of
directors of such Employer specifically waives this restriction for
such Plan Year.
3.5 No Voluntary Employee Contributions. Participants are
neither required nor permitted to make voluntary, after-tax
contributions under the Plan. Notwithstanding the foregoing,
Voluntary Contribution Accounts shall continue to be maintained
under the Plan on behalf of Participants in accordance with the
terms hereof.
3.6 Maximum Annual Addition. Any other provision of this
Plan notwithstanding, in no event shall the total Annual Additions
with respect to a Participant for any Plan Year (the "Limitation
Year") exceed the lesser of:
(a) $30,000 (or such other amount for such Plan Year as may
be specified by the Secretary of the Treasury or his delegate
pursuant to Section 415(d) of the Code); or
(b) 25% of such Participant's 415 Compensation for that Plan
Year.
3.7 Dollar Limitation on Elective 401(k) Contributions.
(a) In no event may a Participant elect to have Elective
401(k) Contributions made on his behalf at a rate which will result
in his Elective Deferrals for any calendar year to exceed $8,994
(or such greater amount as may be prescribed by the Secretary of
Treasury to take into account cost-of-living increases pursuant to
Code Section 404(g)(5)).
(b) If a Participant's Elective Deferrals with respect to any
calendar year exceeds the annual dollar limit prescribed above, the
Participant may notify the Administrative Committee in writing
prior to April 1 next following the close of such calendar year of
his election to have all or a portion of such "Excess Deferral"
(and the amount thereof) to be allocated under this Plan. A
Participant shall be deemed to have so notified the Administrative
Committee of such Excess Deferrals calculated by taking into
account Elective Deferrals for the applicable calendar year made
under this Plan and all other plans maintained by an Employer or an
Affiliate. Upon such actual or deemed notification, and without
regard to any other provision of the Plan, the Administrative
Committee shall direct the Trustee to distribute to the Participant
prior to the April 15 following immediately thereafter the
Participant's Excess Deferral so allocated under this Plan, plus
any income attributable thereto.
(c) Excess Deferrals arising under the Plan shall continue to
be treated as contributions made by an Employer for purposes of the
Plan, even if distributed to a Participant in accordance with (b)
above, except as provided below:
(i) The amount of any Excess Deferrals distributed to
a
Participant in accordance with subsection (b) above shall not
be
treated as an Elective 401(k) Contribution for purposes of
the
Annual Addition limitation prescribed under Section 3.6.
(ii) Excess Deferrals of a Non-Highly Compensated
Employee
shall not be treated as an Elective 401(k) Contribution for
purposes of the Actual Deferral Percentage tests or the
multiple
use limitation prescribed under Sections 3.8 and 3.10,
respectively. Excess Deferrals of a Highly Compensated
Employee,
however, shall be treated as an Elective 401(k) Contribution
for
such purposes.
3.8 Additional Limitations on Elective 401(k) Contributions.
(a) In no event shall the Actual Deferral Percentage (as
described below) of Eligible Employees (as defined in (c)
below) who are Highly Compensated Employees for any Plan Year
exceed the greater of:
(i) the Actual Deferral Percentage of all other Eligible
Employees for such Plan Year multiplied by 1.25; or
(ii) the Actual Deferral Percentage of all other Eligible
Employees for such Plan Year multiplied by 2, provided
that the Actual Deferral Percentage of Eligible Employees who
are Highly Compensated Employees for that Plan Year does
not exceed that of all other Eligible Employees by more than 2
percentage points.
(b) The "Actual Deferral Percentage" of a group of Eligible
Employees for a Plan Year means the average of the ratios
(determined separately for each Eligible Employee in such group) of
A to B where A equals the sum of the Elective 401(k)
Contributions and Qualified Nonelective Contributions credited to
each such Eligible Employee's Accounts for such Plan Year
(without regard to the portion of any Elective 401(k) Contribution
treated as an Excess Deferral and distributed to the
Eligible Employee as provided under Section 3.7), and where B
equals the Eligible Employee's Considered Compensation for
such Plan Year.
(c) For purposes of this Section 3.8, an "Eligible Employee"
means with respect to any Plan Year any Covered Employee
who directly or indirectly is eligible to make an Elective 401(k)
Contribution under the Plan for all or any portion of said
Plan Year.
(d) For purposes of this Section 3.8, the "Considered
Compensation" of an Eligible Employee with respect to any Plan
Year means the Compensation paid or deemed to be paid to him by an
Employer during such Plan Year while he was an Eligible
Employee.
(e) The Actual Deferral Percentage of an Eligible Employee who
has no Elective 401(k) Contributions nor any Qualified
Nonelective Contributions credited to his Accounts for a Plan Year
is zero.
3.9 Limitations on Matching Contributions.
(a) In no event shall the Actual Contribution Percentage (as
described below) of Participants who are Highly
Compensated Employees for any Plan Year exceed the greater of:
(i) the Actual Contribution Percentage of all other
Participants for such Plan Year multiplied by 1.25; or
(ii) the Actual Contribution Percentage of all other
Participants for such Plan Year multiplied by 2, provided
that the Actual Contribution Percentage of the Participants who
are Highly Compensated Employees for that Plan Year
does not exceed that of all other Participants by more than 2
percentage points.
(b) The "Actual Contribution Percentage" of a group of
Participants for a Plan Year means the average of the ratios
(determined separately for each Participants in such group) of A to
B where A equals the sum of the Matching Contributions
and Qualified Nonelective Contributions credited to each such
Participant's Accounts for such Plan Year and where B equals
the Participant's Considered Compensation for such Plan Year.
3.10 Multiple Use Limitation. If for any Plan Year both
Elective 401(k) Contributions and Matching Contributions are
made under the Plan with respect to any Highly Compensated
Employee, and if both the Actual Deferral Percentage and the
Actual Contribution Percentage of Participants who are Highly
Compensated Employees with respect to such Plan Year exceed
the 1.25 limitations prescribed in Sections 3.8(a)(i) and
3.9(a)(i), respectively, then in no event shall the sum of the
Actual Deferral Percentage and the Actual Contribution Percentage
of Participants who are Highly Compensated Employees for
such Plan Year exceed the greater of (a) or (b) below:
(a) the sum of:
(i) 125 percent of the greater of the Actual Deferral
Percentage or the Actual Contribution Percentage for such Plan
Year of Eligible Employees or Participants, as relevant,
who are not Highly Compensated Employees with respect
to that Plan Year; and
(ii) two percentage points, plus the lesser of the Actual
Deferral Percentage or the Actual Contribution Percentage
of such Non-Highly Compensated Employees for such Plan
Year, provided, however, that in all events, the amount
determined under this paragraph (B) shall not exceed 200
percent of the lesser of the Actual Deferral Percentage
and the Actual Contribution Percentage of such Non-Highly
Compensated Employee group for such Plan Year.
(b) the sum of:
(i) 125 percent of the lesser of the Actual Deferral
Percentage or the Actual Contribution Percentage for such Plan
Year of Eligible Employees or Participants, as relevant,
who are not Highly Compensated Employees with respect
to that Plan Year; and
(ii) two percentage points, plus the greater of the Actual
Deferral Percentage or the Actual Contribution Percentage
of such non-Highly Compensated Employees for such Plan
Year, provided, however, that in all events, the amount
determined under this paragraph (ii) shall not exceed 200
percent of the greater of the Actual Deferral Percentage
and the Actual Contribution Percentage of such non-Highly
Compensated Employee group for such Plan Year.
If the applicable imitation prescribed above is exceeded for any
Plan Year, the corrective distributions shall be made in
accordance with Section 3.12 below.
3.11 Extent of Fractionalization. For purposes of Sections
3.8, 3.9 and 3.10 above, and, if applicable, Section 3.12,
the Actual Deferral Percentage and Actual Contribution Percentage
of any Eligible Employee or Participant, or any group of
such individuals, shall be calculated to the nearest 1/100 of 1
percent (.0001).
3.12 Corrective Distributions.
(a) If at the end of any Plan Year a portion of the Elective
401(k) Contributions or Matching Contributions made on
behalf of Participants who are Highly Compensated Employees cannot
be credited to their Accounts because of the
limitations imposed under Section 3.8, 3.9 or 3.10 above, then the
amount of the Excess 401(k) Contributions or Excess
Matching Contributions, as the case may be, which otherwise would
be credited to the Accounts of such Participants (and the
income thereon as determined in accordance with Section 3.13 below)
shall be reduced and distributed to such Participants
(without regard to any other provision of the Plan) on the basis of
the respective portions of such excess amounts
attributable to such Participants. It is intended that such
corrective distributions shall be made within 2 1/2 months
following, and in all events shall be made within 12 months after,
the end of the Plan Year to which such excess
contributions relate.
(b) The sequence of the reductions and distributions under
subsection (a) above shall begin with the Highly
Compensated Employee having the highest actual deferral ratio or
actual contribution ratio, as applicable. The amount of
the Elective 401(k) Contributions or Matching Contributions
otherwise allocable with respect to such Participant shall be
reduced to cause his actual deferral ratio or actual contribution
ratio, as applicable, to equal the ratio of the Highly
Compensated Employee having the next highest ratio (unless a
lesser reduction would enable the satisfaction of the
limitation being tested, in which case such lesser reduction shall
be applied). This process shall continue until all the
applicable limitations are satisfied, in which event the Trustee
shall distribute the appropriate dollar amounts to the
affected Participants.
3.13 Attributable Income. For purposes of Sections 3.7(b) and
3.12(a) above, the income attributable to a
Participant's Excess Deferrals, Excess 401(k) Contributions or
Excess Matching Contributions, as the case may be, for any
Plan Year shall be the gain or loss of the Trust for the Plan Year
allocable to the Participant's Elective 401(k)
Contribution Account or Matching Contribution Account, as the case
may be, multiplied by a fraction:
(a) the numerator of which is the Participant's Excess
Deferrals, Excess 401(k) Contributions or Excess Matching
Contributions, as relevant, for the Plan Year; and
(b) the denominator of which is the balance of the
Participant's Elective 401(k) Contribution Account or Matching
Contribution Account, as relevant, determined as of the end of the
Plan Year, reduced by any gains or increased by any
losses of the Trust allocated to such Account for the Plan Year.
3.14 Treatment of Certain Family Members.
(a) If with respect to any Plan Year an individual is a member
of the family of a five percent owner of an Employer
(as defined in Code Section 416(a)(1)) or of a Highly Compensated
Employee in the group consisting of the ten Highly
Compensated Employees paid the greatest Compensation (as defined in
Article 1 but determined, if applicable, without regard
to Code Sections 125, 402(a)(8), 402(h)(1)(B) and 403(b)) during
the Plan Year, then:
(i) such individual shall not be considered a separate
employee; and
(ii) any Compensation paid to such individual (and any
applicable contribution made on behalf of such individual)
shall be treated as if paid to (or on behalf of) the five
percent owner or Highly Compensated Employee as prescribed
under applicable Treasury Regulations.
(b) For purposes of this Section 3.14, the term "family" with
respect to any Employee means his spouse and lineal
ascendants and descendants, and the spouses of such lineal
ascendants and descendants.
(c) In the case of any Participant who, with respect to a Plan
Year, is a Highly Compensated Employee subject to the
family aggregation rule prescribed in (a) above, then the combined
Actual Deferral Percentage and Actual Contribution
Percentage for the family group (which is treated as one Highly
Compensated Employee) shall be determined by combining the
Elective 401(k) Contributions, Qualified Nonelective Contributions,
Matching Contributions and Considered Compensation of
all Participants included in that family group.
(d) The Elective 401(k) Contributions, Qualified Nonelective
Contributions Matching Contributions and the Considered
Compensation of all Participants who are members of a family group
shall be disregarded for purposes of determining the
Actual Deferral Percentage and Actual Contribution Percentage for
the non-Highly Compensated Employee group.
(e) If an Employee is required to be aggregated as a member of
more than one family group, all Participants who are
members of those family groups that include that Employee are
aggregated as one family group.
(f) If so required, the determination and correction of Excess
401(k) Contributions or Excess Matching Contributions
of a Highly Compensated Employee subject to the foregoing family
aggregation rules for any Plan Year shall be accomplished
by reducing the actual deferral ratio or the actual contribution
ratio, as applicable, in accord with the above and
allocating said Excess 401(k) Contributions or Excess Matching
Contributions for the family group among the members of such
group in proportion to the Elective 401(k) Contributions or
Matching Contributions, as relevant, made on behalf of each such
family member that are combined to determine the actual deferral
ratio or the actual contribution ratio, as applicable.
3.15 Aggregation of Plans. If in addition to this Plan an
Employer or other Affiliate maintains another qualified
plan providing for elective employer contributions, matching
contributions or employee contributions, then the
Administrative Committee may treat this Plan and any or all such
other plans as a single plan for purposes of applying the
Actual Deferral Percentage test, the Actual Contribution Percentage
test and the multiple use limitation set forth in
Sections 3.8, 3.9 and 3.10 above. In that event, however, such
aggregated plans shall similarly be treated as a single plan
for purposes of the nondiscrimination provisions of Section 410(b)
of the Code (other than as with respect to the
application of the average benefits percentage test prescribed
thereunder).
3.16 Order of Testing. The testing for compliance with the
various limitations imposed under this Article 3 shall be
performed in the following order:
(a) the testing for compliance with the Elective Deferral
limitation set forth in Section 3.7; then
(b) the performance of the Actual Deferral Percentage test set
forth in Section 3.8; then
(c) the performance of the Actual Contribution Percentage test
set forth in Section 3.9; then
(d) the testing for compliance of the multiple use limitation
set forth in Section 3.10; and then
(e) the testing for compliance with the Annual Addition
limitation set forth in Section 3.6.
3.17 Committee Rules. The Administrative Committee may adopt
such rules as it deems necessary or desirable to impose
limitations on the amount of Elective 401(k) Contributions chosen
by Participants pursuant to Section 3.1 for the purpose
of assuring that the various limitations prescribed under this
Article 3 are satisfied.
3.18 Rollover Contributions.
(a) Subject to the following terms and conditions, the
Administrative Committee shall permit the transfer to the
Trust Fund of a Rollover Contribution for the benefit of a
Participant.
(b) A Rollover Contribution is the entire amount held for the
benefit of a Participant (other than that portion
representing voluntary employee contributions)--
(i) in a trust which is exempt from tax under
Section 501(a) of the Code and is part of another plan
described in Section 401(a) of the Code; or
(ii) in an individual retirement account as defined
in Section 408 of the Code, established by or for the
benefit of the Participant, if attributable solely to an
amount which was transferred to such individual
retirement account as a rollover contribution satisfying
the requirements of Section 408(d)(3) of the Code.
(c) Any such Rollover Contribution shall be made from the
Participant concerned within 60 days of the Participant's
receipt thereof, or be made directly from such other trust or
individual retirement account. All Rollover Contributions
must be made in the form of cash.
(d) Any Rollover Contribution which is transferred to the
Trust Fund during a Plan Year for the benefit of a
Participant shall be allocated as of the date received to a
separate Rollover Account established and maintained on the
Participant's behalf. A Participant shall at all times be fully
vested and have a nonforfeitable interest in the balance
of his Rollover Account.
(e) Any Rollover Contribution with respect to a Participant
received directly from a trust maintained under another
plan (i.e., in a trust-to-trust transfer), and the earnings and
losses of such Rollover Contribution, shall be segregated
and separately account for under the Trust Fund. Any optional
forms of benefit distributions available to such Participant
under the transferor plan (i.e., the plan from which such Rollover
Contribution was transferred) shall be made available
hereunder to such Participant under the same terms and conditions
as applied under the transferor plan, but only as to such
segregated assets unless the same optional form of benefit
distribution is generally made available under the Plan to
Participants. Rollover Contributions received other than in a
trust-to-trust transfer (including any amounts received in
an eligible rollover distribution within the meaning of Code
Section 401(a)(31)), and all other amounts held under the Plan
on behalf of the Participant, shall be distributed solely in
accordance with the terms of this Plan.
ARTICLE 4
Allocation, Accounting and Investment Provisions
4.1 Eligibility to Share in an Profit Sharing Contributions
and Forfeitures.
(a) A Participant shall be eligible to share in the
allocations of Profit Sharing Contributions and Profit Sharing
Forfeitures with respect to a Plan Year if he is employed by an
Employer or an Affiliate as of the last day of the Plan Year
for which such contribution or forfeitures are being allocated. A
Participant who is eligible to share in such
contributions and forfeitures for a Plan Year shall be known as an
"Eligible Participant" with respect to that Plan Year.
(b) With respect to each Plan Year, a Participant shall be
eligible to receive an allocation of Matching Contributions
for each payroll period within such Plan Year for which he makes
Elective 401(k) Contributions to the Plan, and shall
further be eligible to receive a Qualified Nonelective Contribution
allocation as prescribed in Section 3.2, regardless of
whether he is employed by an Employer or an Affiliate as of the
last day of that Plan Year.
4.2 Allocations of Elective 401(k), Qualified Nonelective and
Matching Contributions. As of the last day of each
payroll period, there shall be allocated, respectively, to the
Elective 401(k) Contribution Account, the Qualified
Nonelective Contribution Account and the Matching Contribution
Account of each Participant the amounts of Elective 401(k)
Contributions, Qualified Nonelective Contributions and Matching
Contributions made by or on behalf of such Participant for
such payroll period.
4.3 Allocations of Profit Sharing Contributions and
Forfeitures. Subject to the Annual Addition limitations
prescribed under Section 3.6, the Tentative Profit Sharing
Contribution established pursuant to Section 3.4 and any Profit
Sharing Account Forfeitures which become allocable for a Plan Year
shall be allocated to the Profit Sharing Account of each
Eligible Participant on the bases of such Eligible Participant's
Age Factor, Projected Service Factor and Considered
Compensation in accordance with the following provisions.
(a) The Age Factor with respect to each Eligible Participant
shall be determined on the bases of the following table
and the attained age of the Eligible Participant as of the last day
of the Plan Year for which such determination is being
made:
Age Factor Age Factor
16 0.2583 41 1.5751
17 0.2777 42 1.6932
18 0.2985 43 1.8202
19 0.3209 44 1.9567
20 0.3449 45 2.1035
21 0.3708 46 2.2613
22 0.3986 47 2.4309
23 0.4285 48 2.6132
24 0.4606 49 2.8092
25 0.4952 50 3.0198
26 0.5323 51 3.2463
27 0.5723 52 3.4898
28 0.6152 53 3.7515
29 0.6613 54 4.0329
30 0.7109 55 4.3354
31 0.7642 56 4.6605
32 0.8215 57 5.0101
33 0.8832 58 5.3858
34 0.9494 59 5.7898
35 1.0206 60 6.2240
36 1.0972 61 6.6908
37 1.1794 62 7.1926
38 1.2679 63 7.7320
39 1.3630 64 8.3119
40 1.4652 65 and above 8.9353
(b) The Projected Service Factor with respect to each Eligible
Participant for any Plan Year shall be the number of
full Years of Service which such Participant shall have completed
at age 65 as then determined on the basis of the
assumption that such Participant remains continuously employed by
an Employer or an Affiliate until his attainment of age
65. Notwithstanding the foregoing, the Projected Service Factor of
an Eligible Participant age 65 or older as of the end
of any Plan Year shall be the number of full Years of Service
completed by such Participant as of the last day of such Plan
Year.
(c) For each Eligible Participant, there shall then be
performed a calculation to arrive at the product of the
following multipliers:
(i) the Eligible Participant's Age Factor as determined
in (a) above;
(ii) the Eligible Participant's Projected Service Factor
as determined in (b) above; and
(iii) the Eligible Participant's Considered Compensation
for such Plan Year.
The product of such calculation shall hereafter be referred to
as the Eligible Participant's "Weighing Factor."
(d) The sum of the Tentative Profit Sharing Contribution and
any Profit Sharing Forfeitures allocable for the Plan
Year shall then be provisionally allocated to the Profit Sharing
Account of each Eligible Participant in an amount equal
to the ratio that the Weighing Factor of that Eligible Participant
bears to the sum of the Weighing Factors of all Eligible
Participants.
(e) If the provisional allocation amount as determined in (d)
above does not result in the Eligible Participant's
total Annual Additions for the Plan Year to exceed the Maximum
Annual Addition with respect to such Participant for such
year as determined in Section 3.6, then such provisional allocation
amount shall be allocated to such Eligible Participant's
Profit Sharing Account.
(f) If the provisional allocation amount as determined in (d)
above will result in any Eligible Participant's total
Annual Additions for the Plan Year to exceed the Maximum Annual
Addition with respect to such Participant for such year,
then the permissible portion of such provisional amount shall be
allocated to such Eligible Participant's Profit Sharing
Account. The remaining portion of such provisional allocation
shall be treated as an Excess Tentative Contribution, and
shall thus reduce the amount of the actual amount of Profit Sharing
Contribution to be made under the Plan for such Plan
Year as otherwise prescribed under Section 3.4.
4.4 Investment Funds and Elections.
(a) The Trust Fund shall be divided into separate investment
funds ("Investment Funds") as provided in this Section
4.4. Each Investment Fund, as may from time to time be
established, shall be a common fund in which each Participant shall
have an undivided interest in the respective assets of such
Investment Fund. Except as otherwise provided, the value of
each Participant's Accounts in any Investment Fund shall be
measured by the proportion that the net credits to his Accounts
maintained under such Investment Fund bear to the total net credits
to the Accounts of all Participants and beneficiaries
maintained under such Investment Fund as of the date that such
share is being determined. For purposes of the allocation
of income and periodic valuations, each Investment Fund shall be
considered separately. No Investment Fund shall share in
the gains or losses of any other, and no Investment Fund shall be
valued by taking into account any assets of or
distributions from any other.
(b) The particular Investment Funds to be made available under
the Plan shall be determined from time to time in
accordance with the general investment policy established by the
Board of Directors, and by the implementation of such
investment policy by the Investment Committee, as prescribed in
Section 8.1. At all times, however, there shall be made
available at least three separate Investment Funds, each of which
is diversified and has materially different risk and
return characteristics. The Investment Committee may from time to
time make available additional Investment Funds adhering
to the general investment policy established by the Board of
Directors, and may also direct that Investment Funds with
similar investment objectives be consolidated.
(c) Upon becoming eligible to participate in the Plan, a
Participant may make an election directing that the
contributions to be made by him or on his behalf under the Plan be
credited to one or more of the Investment Funds, in
multiples of 10 percent of the aggregate of all such contributions
up to 100 percent thereof. In the event a Participant
declines or otherwise fails to make such an election, the
contributions made under the Plan with respect to such Participant
shall be allocated to one or more Investment Funds pursuant to the
direction of the Investment Committee.
(d) Each Participant may also elect to change the investment
of all future contributions to the Plan in any multiple
of 10 percent of such contributions, effective as of any subsequent
Election Effective Date.
(e) A Participant (or a beneficiary of a deceased Participant)
may elect to transfer amounts from one Investment Fund
to another, in multiples of 10 percent of the value of the Account
maintained under the transferor Investment Fund,
effective as of any Election Effective Date.
(f) In order to be effective, an election made under this
Section 4.4 must be submitted to the Administrative
Committee or its delegate with a reasonable time before the
applicable Election Effective Date. In this regard, such a
submission will be deemed to have been provided in such a
reasonable time if it is made at least 30 days before the intended
Election Effective Date.
(g) The Administrative Committee from time to time in its
discretion adopt administrative rules and procedures, and
may impose other guidelines and limitations pertaining to
investment elections as such Committee shall deem to be
appropriate for the efficient administration of the Plan. Any
costs charged by an Investment Fund with respect to a
transfer of assets may be charged to the Account of the Participant
electing such transfer.
4.5 Valuation of Accounts. Except as may be specifically be
provided otherwise, as of each Valuation Date, each
Account of a Participant (or a beneficiary of a deceased
Participant) in each Investment Fund shall equal:
(a) the Participant's account balance, if any, in that
Investment Fund for that Account as of the immediately
preceding Valuation Date (after adjusting for any transfers between
Investment Funds pursuant to Section 4.4); minus
(b) any withdrawal or other distributions made from that
Account since the immediately preceding Valuation Date; plus
(c) the net earnings of such Account, after adjusting for
expenses and losses, if any, since the immediately preceding
Valuation Date; plus
(d) the amount of contributions, if any, made to that
Investment Fund for that Account by or on behalf of the
Participant since the immediately preceding Valuation Date, plus
any amounts allocated to that Investment Fund for that
Account pursuant to Section 4.6.
4.6 Doskocil Stock Fund.
(a) The Doskocil Stock Fund is an investment fund into which
was credited shares of voting common stock issued by
Doskocil pursuant to the direction of Participants as permissible
under the terms of the Plan as in effect prior to January
1, 1990. Notwithstanding any provision of this Article 4 to the
contrary, the Doskocil Stock Fund shall be treated separate
and apart from the Investment Funds described in Section 4.4.
(b) A Participant shall not have the right to have amounts
held in any other Investment Fund transferred to the
Doskocil Stock Fund, nor may he direct that contributions made by
him or on his behalf under the Plan be credited to the
Doskocil Stock Fund.
(c) A Participant (or a beneficiary of a deceased Participant)
having amounts credited on his behalf under the
Doskocil Stock Fund may elect to have all or a portion of such
amounts liquidated and the proceeds transferred to any other
Investment Fund, effective as of any Election Effective Date, in
accordance with the procedures set forth in Section 4.4.
(d) In the event that the Board of Directors directs the
Trustee to liquidate all or any portion of the Doskocil stock
held on behalf of Participants under the Doskocil Stock Fund, or if
any cash dividends are paid with respect to Doskocil
stock, such proceeds or dividends, as the case may be, shall be
credited to an Investment Fund or Funds in accordance with
each such Participant's investment election as then in effect.
ARTICLE 5
Amount of Payments to Participants
5.1 General Rule. Upon the retirement, resignation, death or
other termination of employment of a Participant, he,
or in the event of his death, his beneficiary, shall be entitled to
receive from his respective Accounts in the Trust Fund
an amount equal to the sum of:
(a) the value of his Matching Contribution and his Profit
Sharing Accounts, to the extent that he is then vested in
such Accounts as determined in accordance with the succeeding
provisions of this Article 5; and
(b) the value of all other Accounts maintained on his behalf
under the Plan.
The right of all persons to receive any payments under this Plan
shall be subject to the provisions of Article 6 concerning
the time and manner of making distributions.
5.2 Normal Retirement. Any Participant may retire on or after
his Normal Retirement Date. The value of the Matching
Contribution and Profit Sharing Accounts of a Participant whose
Severance Date does not precede his Normal Retirement Date
shall become nonforfeitable upon his Normal Retirement Date. If
the retirement of a Participant is deferred beyond his
Normal Retirement Date, he shall continue in full participation in
the Plan and Trust Fund.
5.3 Vesting Schedule.
(a) If the Severance Date of a Participant occurs prior to his
Normal Retirement Date, the nonforfeitable status of
the Participant's Matching Contribution and Profit Sharing Accounts
shall be determined in accordance with the following
schedule:
The Nonforfeitable
If His Years of Vesting Percentage of His Matching
Service as of His Severance Contribution and Profit
Date Shall Have Been Sharing Accounts Shall Be
Less than 3 0%
3 or more 100%
(b) Notwithstanding the foregoing, each Covered Employee
eligible to participate in the Plan on July 1, 1993 shall
at all times be fully vested and have a nonforfeitable interest in
his Matching Contribution Account and his Profit Sharing
Account.
5.4 Treatment of Forfeitures.
(a) If as of his Severance Date a Participant does not have a
fully vested, nonforfeitable interest in his Matching
Contribution and Profit Sharing Accounts, then the value of such
Accounts shall be treated as a forfeiture as of the earlier
of (i) the Valuation Date immediately following the date the
Participant (or his beneficiary) receives a distribution from
the Plan, or (ii) the end of the Plan Year in which such Severance
Date occurred, but only, in each case, if the Participant
is then not reemployed by an Employer or an Affiliate.
(b) Forfeitures of a Participant's Matching Contribution
Account arising as of any date shall be applied, and thus
shall reduce, the amount of the Matching Contributions to be made
by the Employers for succeeding payroll periods pursuant
to Section 3.3.
(c) Forfeitures of a Participant's Profit Sharing Account
shall become allocable to the Profit Sharing Accounts of
Eligible Participants as prescribed in Section 4.3.
(d) If a terminated Participant whose Matching Contribution
and Profit Sharing Accounts were forfeited upon his
earlier separation from service is reemployed by an Employer or an
Affiliate prior to his incurring 5 consecutive One-Year
Breaks in Service, and if before the fifth anniversary of his
reemployment the Participant repays the full amount of his
other Accounts previously distributed to him (if any), the amount
of the repayment and the amount of his Matching
Contribution and Profit Sharing Accounts which was previously
forfeited shall be restored to his respective Accounts as of
the date of such repayment (or, if the Participant had not
previously received a distribution, as of the first day of the
calendar quarter coinciding with or next following his
reemployment). Such restoration shall be made from the applicable
forfeitures which otherwise would be allocable for the Plan Year in
which such restoration event occurs, or, to the extent
such forfeitures are insufficient or have not arisen, shall require
a supplemental contribution from the Employers.
ARTICLE 6
Distributions
6.1 Distributions to Participants.
(a) Except as may otherwise be provided in this Article 6,
benefits under the Plan which are distributable to any
Participant shall be distributed, as the Participant may elect, in
a non-annuity form, as a direct transfer to an eligible
retirement plan, or in an annuity form, (or, to the extent
allowable, in combination thereof) pursuant to and subject to
the terms and conditions prescribed below.
(b) A Participant may elect to receive his benefits under the
Plan distributed to him in a lump sum payment.
Alternatively, a Participant may elect a partial payment form of
distribution providing the Participant with a distribution
of a portion of the value of his Accounts, with the remaining
balance retained for distribution at a later date. A
Participant electing the partial payment form of distribution must
indicate on the distribution election form the amount
of the partial payment. The Administrative Committee shall
establish a policy and procedures regarding the order in which
partial payments are to be charged against particular Investment
Funds and against particular Accounts maintained under such
Investment Funds. All partial payments to be made from an Account
under a Investment Fund must be for at least $250, or,
if less, the total value of the Account.
(c) In lieu of receiving his benefits in a non-annuity form
described above, effective on and after January 1, 1993,
a Participant may elect to have such benefits transferred directly
to an eligible retirement plan. In this regard, an
"eligible retirement plan" means:
(i) a trust described in Section 401(a) of the Code,
which is exempt from tax under Section 501(a) of the Code,
and which forms part of a defined contribution plan, the terms
of which permit the acceptance of rollover
contributions;
(ii) an individual retirement account or an individual
retirement annuity (other than an endowment contract)
described, respectively, in Sections 408(a) or (b) of the Code;
or
(iii) an annuity plan described in Section 403(a) of the
Code.
(d) Notwithstanding the foregoing, if the total amount to be
distributed to a Participant during a Plan Year is
expected to be less than $200, then such distributions shall be
made in a lump sum payment. In addition, if the total
amount to be distributed to a Participant for a Plan Year exceeds
$500, the Participant may elect to have a portion of such
distributable amount paid to him in a lump sum payment or as a
partial payment as prescribed in (b) above, with the
remainder transferred directly to an eligible retirement plan;
provided, however, that the portion elected to be so directly
transferred must be for at least $500. In no event may a
Participant elect to have a distribution transferred directly to
more than one eligible retirement plan. Nor may a Participant
elect to have a portion of his benefits transferred directly
to an eligible retirement plan, with the remaining portion paid to
him in an annuity form as described in (e) below.
(e) Subject to subsection (f) below, a Participant may elect,
in lieu of one of the distribution forms described in
subsections (b) and (c) above, to have the distributable balance of
his Accounts under the Plan paid to him in one of the
following annuity forms, but only if the value of such
distributable balance does not exceed $3,500 (and has not exceeded
$3,500 during any period in which so distributable):
(i) if the Participant is married, as a Qualified Joint and
Survivor Annuity;
(ii) as a single life annuity;
(iii) as a monthly annuity payable for the life of the
Participant and continuing after his death for the life of his
designated contingent annuitant (which annuitant may
be his spouse); or
(iv) as a annuity payable for the life of the Participant, with
a term certain not to exceed five years.
(f) Notwithstanding the foregoing, a Participant who is
married as of his Benefit Commencement Date may not elect an
annuity described in subsection (e) (ii), (iii) or (iv) above
unless the Participant waives the Qualified Joint and Survivor
Annuity form of distribution, and his spouse consents to such
waiver, as prescribed in Sections 6.6(c) and 7.1(c).
(g) Benefits payable in the form of an annuity under
subsection (d) above (or, if applicable, as a Qualified
Preretirement Survivor Annuity under Section 7.2) may be paid by
distributing to the Participant or surviving spouse, as
the case may be, an annuity contract purchased by the Trustee at
the direction of the Administrative Committee for an amount
equal to the distributable balance of the Participant's Accounts as
of the Valuation Date immediately preceding the date
such contract is purchased on the distributee's behalf. Benefits
distributed under such annuity contract shall be subject
to the same consent and other conditions that would apply if such
benefits were paid in the applicable annuity form directly
from the Trust Fund. Any such annuity contract shall be
non-assignable and noncommutable. Delivery of any such contract
shall be in full satisfaction of the rights of the distributee
under this Plan, and upon the delivery of any such contract,
the distributee shall not have any interest in the Trust Fund but
shall look solely to the insurer issuing such contract
for the payment of benefits.
6.2 Distributions to Beneficiaries.
(a) Except as otherwise provided in this Section 6.2 (and, in
the case of a married Participant, subject to the
provisions of Section 7.2), benefits under the Plan which are
distributable by reason of a Participant's death shall be
distributed to the person effectively designated by the Participant
as his beneficiary. Such distribution shall be made
in a lump sum or as a partial payment as described in Section
6.1(b). Effective on and after January 1, 1993, a beneficiary
who is the surviving spouse of a Participant may alternatively
elect to have all or a portion of such survivorship benefits
transferred directly to an individual retirement account or an
individual retirement annuity (other than an endowment
contract) described, respectively, in Sections 408(a) and (b) of
the Code under the terms and conditions generally set forth
in Section 6.1(c) and (d) above.
(b) To be effective, a beneficiary designation must be filed
with the Administrative Committee or its delegate in such
written form as the Administrative Committee requires and may
include contingent or successive beneficiaries; provided that
any designation by a Participant who is married at the time of his
death which fails to name his surviving spouse as the
sole, primary beneficiary shall not be effective unless such
surviving spouse has consented to the designation as provided
in Section 6.6. A Participant may change his beneficiary
designation at any time by filing with the Administrative
Committee or its delegate a new beneficiary designation (with such
spousal consent as may be required).
(c) If a Participant dies and has not filed an effective
beneficiary designation or has revoked all such designations,
or has filed an effective designation but the designated
beneficiary or beneficiaries predeceased him, the distributable
portion of the Participant's Accounts shall be paid to the
Participant's surviving spouse, or, if there is no surviving
spouse, to the executor or administrator of the Participant's
estate.
(d) If the beneficiary, having survived the Participant, shall
die prior to the final and complete distribution of
the Participant's Accounts, then the distributable portion of said
Account shall be paid:
(i) to the contingent or successive beneficiary named in the
most recent effective beneficiary designation filed
by the deceased beneficiary in accordance with such
designation; or
(ii) if no such beneficiary has been named, to the executor,
administrator or other authorized representative of
the beneficiary's estate.
(e) A Participant's beneficiary may either be a natural person
or a trust, the beneficiary of which is a natural
person.
6.3 Commencement of Distributions.
(a) Except as otherwise provided in this Section 6.3, a
Participant may request a distribution from his Accounts to
be made as of any Valuation Date coinciding with or following the
Participant's Severance Date (or as soon thereafter as
is practicable), provided that such request is properly submitted
to the Administrative Committee or its delegatee at least
30 days before such Valuation Date. In the event the request for
distribution is properly submitted within 30 days of a
Valuation Date, then such distribution shall be made as of the
following Valuation Date. Notwithstanding the foregoing,
unless a Participant elects otherwise in writing, distributions
shall commence no later than the 60th day after the close
of the Plan Year in which falls the Participant's (i) Normal
Retirement Date or (ii) Severance Date, whichever is later.
(b) Notwithstanding subsection (a) above, if the distributable
value of a Participant's Accounts exceeds $3,500 (or
at the time of any prior distribution exceeded $3,500) and if such
Accounts are immediately distributable, then in no event
shall a distribution of any portion of such Accounts be made prior
to the Participant's Normal Retirement Date without the
Participant's written consent. In addition, if such a Participant
is married and the Participant elects an annuity form
of benefit other than a Qualified Joint and Survivor Annuity, then
the payment of such annuity benefits may not commence
prior to the Participant's Normal Retirement Date without the
further written consent of the Participant's spouse made in
a manner similar to that described in Section 6.6(b). Not less
than 30 days and no more than 90 days before such a
Participant's Benefit Commencement Date, the Administrative
Committee shall provide the Participant with written notice of
his right to defer the commencement of the distribution of his
benefits until his Normal Retirement Date (or until such
later benefit deferral date as may be available under the Plan).
Except with respect to distributions to be made on or
after a Participant's Normal Retirement Date, in no event shall a
distribution be made to Participant to whom this
subsection (b) applies less than 30 days after such notice has been
provided.
(c) Notwithstanding the provisions of (b) above, the consent
of the Participant to a distribution shall not be
required to the extent that the distribution is required to satisfy
Section 401(a)(9) or Section 415 of the Code. In
addition, upon termination of this Plan, and if neither an Employer
nor any Affiliate maintains another defined contribution
plan (other than an employee stock ownership plan as defined in
Section 4975(e)(7) of the Code), the Participant's Accounts
may, without the Participant's consent, be distributed to the
Participant. However, if an Employer or any Affiliate
maintains another defined contribution plan (other than an employee
stock ownership plan as defined in Section 4975(e)(7)
of the Code), then the Participant's Accounts shall be transferred,
without the Participant's consent, to the other plan
if the Participant does not consent to an immediate distribution
hereunder.
(d) In all events, distributions to a Participant shall
commence on or before the April 1 following the calendar year
first following the Participant's Required Distribution Year. The
amount of such initial distribution, and the amount and
timing of any subsequent distributions, shall be made in accordance
with the provisions of the Code Section 401(a)(9) and
the regulations promulgated thereunder (including the minimum
distribution incidental benefit requirement provisions of IRS
Regulation Section 1.409(a)-2), which statutory provisions and
regulations are specifically incorporated by reference herein.
(e) Except as provided in subsection (f) below, distributions
of benefits to a beneficiary who is the surviving spouse
of a Participant shall be made, if so directed by the spouse,
within a reasonable time after the Participant's death, and,
in all events, shall be made (or, if payable over the life or life
expectancy of the beneficiary, shall commence) on or
before the last day of the calendar year in which falls the later
of (i) the date the Participant would have attained age
70-1/2 had he survived, or (ii) the first anniversary of the
Participant's date of death. Distributions to any other
beneficiary (including, if applicable, to the beneficiary of the
deceased beneficiary of a Participant) shall be made on
or before the last day of the calendar year in which falls the
fifth anniversary of the Participant's date of death.
(f) Notwithstanding the provisions of subsection (e) above, if
the beneficiary of a deceased participant is his
surviving spouse, and if such surviving spouse dies (i) prior to
receiving the full amount of survivorship benefits payable
to such spouse, and (ii) before the date distributions were
required to commence pursuant to subsection (e) above, then the
entire remaining balance of such survivorship benefits shall be
distributed to the spouse's beneficiary on or before the
last day of the calendar year in which falls the fifth anniversary
of the spouse's date of death.
(g) If distribution of a Participant's Accounts has commenced
and the Participant dies (i) before the entire balance
of his Accounts have been distributed to him and (ii) on or after
April 1 following his Required Distribution Year, and if
the distributions to such Participant were designed to be paid over
his life or life expectancy (or the joint life or life
expectancies of the Participant and his beneficiary), then the
remaining balance of such Accounts shall be distributed to
the Participant's beneficiaries as least as rapidly as under the
method of distribution in effect at the time of the
Participant's death.
(h) Notwithstanding anything in this Section 6.3 to the
contrary, if the amount of any distribution required to
commence on a certain date cannot be ascertained by such date, a
payment retroactive to such date may be made no later than
60 days after the earliest date on which such amount can be
ascertained.
(i) Not more than 90 days prior to a Participant's Benefit
Commencement Date, the Administrative Committee shall
furnish each Participant (or other beneficiary entitled to a
distribution) with a written notice of the distribution options
described in Sections 6.1 and 6.2 of the Plan, and the general
income taxation applicable to each form of distribution.
6.4 Deferred Distributions. If the distribution of all or any
portion of a Participant's Accounts is deferred, the
undistributed vested balance of such Accounts shall share in the
net earnings or losses of the Trust Fund as provided in
Section 4.5.
6.5 Unclaimed Distributions. In the event any distribution
cannot be made because the person entitled thereto cannot
be located and the distribution remains unclaimed for 5 years after
the distribution date established by the Administrative
Committee, then such amount shall be treated as a Profit Sharing
Account forfeiture and allocated in accordance with Section
4.3. In the event such person subsequently files a valid claim for
such amount, such amount shall be restored to the
Participant's Accounts in a manner similar to the restoration of
forfeitures described under Section 5.4(d).
6.6 Form of and Consent to Elections.
(a) Any election, revocation of an election, application for
benefits or beneficiary designation made under the Plan
shall not be effective unless it is (i) made on such form, if any,
as the Administrative Committee may prescribe for such
purpose; (ii) in writing; (iii) signed by the Participant or spouse
as the case may be; and (iv) filed with the
Administrative Committee or its delegate.
(b) In addition, any designation of beneficiary to be made
under Section 6.2(a) by a married Participant (other than
a designation of his spouse as his sole, primary beneficiary) must
be consented to by the Participant's spouse. Such consent
must be in writing, must acknowledge its effect, and must be
witnessed by a Plan representative or notary public. Once
consented to by the Participant's spouse, a Participant's
designation of beneficiary may not be changed during the continued
period of marriage without the spouse's further consent.
(c) In addition, an election by a married Participant to waive
the Qualified Joint and Survivor Annuity form of
benefit under Section 7.1 shall not be effective unless such
election (i) specifies the optional form of benefit elected
in lieu of such annuity form, (ii) specifically identifies the
contingent annuitant (if applicable), and (iii) is consented
to by the Participant's spouse. Such spousal consent must be in
writing, must acknowledge its effect, and must be witnessed
by a Plan Representative or a notary public. Once consented to by
the Participant's spouse, a Participant's election in
regard to an optional form of benefit may not be changed during the
continued period of marriage without the spouse's
further consent, unless the change is a reversion to the Qualified
Joint and Survivor Annuity.
(d) Notwithstanding subsections (b) and (c) above, the consent
of the spouse of a Participant is not required if, at
the time of filing such election, the Participant establishes to
the satisfaction of the Administrative Committee that the
consent of the spouse cannot be obtained because there is no
spouse, such spouse cannot be located, or by reason of such
other circumstances as may be prescribed by regulations.
(e) Any consent of a spouse (or establishment that the consent
cannot be obtained) shall be effective only with
respect to that spouse.
6.7 In-Service Withdrawals.
(a) Any Participant for whom a Voluntary Contribution Account
is maintained under the Plan may withdraw part or all
of the funds credited to such Account, to the extent not previously
withdrawn. (b) Any Participant who has attained
age 59-1/2 may withdraw part or all of the funds credited to his
Accounts under the Plan to the extent not previously
withdrawn.
(c) Any Participant under the age of 59-1/2 may withdraw from
his Elective 401(k) Contribution Account and his
Qualified Nonelective Contribution Account part or all of the sum
of the Elective 401(k) Contributions and Qualified
Nonelective Contributions contributed by him or on his behalf to
the Plan (but not the earnings thereon), to the extent not
previously withdrawn, if the withdrawal is made on account of a
hardship within the meaning of Section 6.8 below.
(d) Notwithstanding the foregoing, in the case of a
Participant who has an unpaid loan made pursuant to Section 6.9,
no withdrawal shall be permitted to the extent that the amount
thereof would reduce the value of the nonforfeitable portion
of a Participant's Accounts below an amount equal to twice the
amount of the unpaid loan.
(e) To effectuate a withdrawal, a Participant must submit the
required form to the Administrative Committee or its
delegate, and must indicate on such form the amount requested to be
withdrawn. The Administrative Committee shall establish
a policy and procedures regarding the order in which withdrawals
are to be charged against particular Investment Funds and
against particular Accounts maintained under such Investment Funds.
All withdrawals from an Account under any Investment
Fund must be for at least $250, or, if less, the total value of the
Account.
(f) All withdrawals under the Plan shall be made as soon as
practicable after the end of each calendar month, provided
that the request for such withdrawal is received by the
Administrative Committee or its delegate at least 30 days prior to
the end of such month. Withdrawals for which the request forms are
not received before such 30 day period shall be paid
after the end of the succeeding month.
(g) Withdrawals made under this Section 6.7 shall be paid in
a lump sum or, if the Participant so elects as with
respect to a withdrawal from other than his Voluntary Contribution
Account, by a direct transfer to an eligible retirement
plan as prescribed in Section 6.1(b).
(h) A Participant making a hardship withdrawal under
subsection (c) above shall be suspended from having further
Elective 401(k) Contributions and Qualified Nonelective
Contributions made by or on his behalf under this Plan or any other
plan maintained by an Employer or an Affiliate until the beginning
of the first payroll period coincident with or next
following the end of a period of twelve months commencing with the
date of such withdrawal. Consequently, Matching
Contributions shall also cease to be made on the Participant's
behalf during such suspension period.
(i) Upon making a withdrawal on account of a hardship, the
dollar limitation on Elective 401(k) Contributions
applicable to the Participant under Section 3.7 for the calendar
year immediately following the calendar year in which such
withdrawal is made shall be reduced by the sum of the of Elective
401(k) Contributions and Qualified Nonelective
Contributions made to the Plan by or on the Participant's behalf
for the calendar year of the hardship withdrawal.
6.8 Rules Applicable to Hardship Withdrawals.
(a) For purposes of Section 6.7(c), a withdrawal shall be
deemed to be made on account of a Participant's hardship
only if the withdrawal (i) is made on account of an immediate and
heavy financial need of the Participant, and (ii) is
necessary to satisfy such financial need.
(b) The determination of whether a Participant has an
immediate and heavy financial need is to be made on the basis
of all relevant facts and circumstances. A financial need shall
not fail to qualify as immediate and heavy merely because
such need was reasonably foreseeable or voluntarily incurred by the
Participant.
(c) A withdrawal shall be deemed to be made on account of an
immediate and heavy financial need of a Participant if
the withdrawal is on account of:
(i) medical expenses described in Code Section 213(d)
incurred by the Participant, the Participant's spouse,
or any dependent of the Participant (as defined in Code Section
152), or necessary for those persons to obtain the
medical care described in Code Section 213(d);
(ii) costs directly related to the purchase (excluding
mortgage payments) of a principal residence of the
Participant;
(iii) payment of tuition and related educational fees for
the next twelve months of post-secondary education for
the Participant, his spouse, children or dependents (as defined
in Code Section 152);
(iv) the need to prevent the eviction of the Participant
from his principal residence or foreclosure on the
mortgage of the Participant's principal residence; or
(v) such other reasons as the Commissioner of the
Internal Revenue may prescribe.
(d) A withdrawal shall not be treated as necessary to satisfy
an immediate and heavy financial need of a Participant
to the extent the amount of the withdrawal is in excess of the
amount required to relieve the financial need, or to the
extent such need may be satisfied from other resources that are
reasonably available to the Participant. This determination
is to be made on the basis of all relevant facts and circumstances.
In this regard, the Participant's resources shall be
deemed to include those assets of his spouse and minor children
that are reasonably available to the Participant. The
amount necessary to satisfy an immediate and heavy financial need
may include any amounts necessary to pay any federal,
state or local income taxes or penalties reasonably anticipated to
result from the distribution.
(e) A withdrawal may be treated as necessary to satisfy a
financial need if the Administrative Committee reasonably
relies upon the Participant's representation that the need cannot
be relieved:
(i) through reimbursement or compensation by insurance
or otherwise;
(ii) by reasonable liquidation of the Participant's
assets; or
(iii) by other distributions or nontaxable loans (at the
time of the loan) from plans maintained by an Employer,
an Affiliate or any other employer, or by borrowing from
commercial sources on reasonable commercial terms in an amount
sufficient to satisfy the need.
The need will not be considered able to be relieved by any of the
above actions if the effect would be to increase the
amount of the need.
(f) A distribution shall be deemed necessary to satisfy an
immediate and heavy financial need if:
(i) the distribution is not in excess of the amount
necessary to satisfy the Participant's immediate and heavy
financial need (which may include amounts necessary to pay
federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution);
(ii) the Participant has first obtained all
distributions and withdrawals, other than hardship withdrawals, and
all nontaxable loans currently available under all plans
maintained by an Employer or an Affiliate;
(iii) the Participant's Elective 401(k) Contributions and
Qualified Nonelective Contributions for the next
taxable year under this Plan and any other plans maintained by
an Employer or an Affiliate are limited to the
applicable Elective Deferral limit referred to in Section
3.7(a) for that year, less the Participant's Elective 401(k)
Contributions and Qualified Nonelective Contributions for the
year in which he receives the hardship withdrawal;
(iv) the Participant is precluded, under the terms of a
legally enforceable agreement, from making any further
Elective 401(k) Contributions, and from having any further
elective employee contributions and qualified nonelective
contributions made on his behalf under this Plan or any other
plan maintained by an Employer or an Affiliate, until
the beginning of the first payroll period coincident with or
next following the end of a period of twelve months
commencing with the date of such withdrawal. Consequently,
Matching Contributions shall cease to be made on the
Participant's behalf under this Plan during such suspension
period. For purposes of this paragraph (iv) "any other
plan" includes all qualified and nonqualified plans of deferred
compensation, all stock option, stock bonus and similar
plans, and any cash or deferred arrangement that is part of a
cafeteria plan within the meaning of Code Section 125;
but the term does not include a health or welfare plan,
including one that is part of a cafeteria plan within the
meaning of Section 125; and
(v) the distribution meets such other requirements as
the Commissioner of Internal Revenue may prescribe.
(g) The denial of a Participant's request for a hardship
withdrawal shall be treated as a denial of a claim for a
benefit under the Plan, and shall thus be subject to the claim and
review provisions set forth under Section 6.11.
6.9 Loans.
(a) Upon the request of a Participant, the Administrative
Committee may authorize a loan to such Participant. Loans
shall be made available to all Participants on a reasonably
equivalent basis; provided, however, that no loan shall be made
to a Participant who has terminated his employment with the
Employer and all Affiliates unless otherwise required under
ERISA.
(b) The amount of any loan to a Participant may not be less
than $1,000, nor shall it exceed the lesser of:
(i) 50 percent of the amount which he would be entitled
to receive from his Accounts, if any, if he then had
resigned from the service of an Employer and all
Affiliates; and
(ii) $50,000, reduced by the excess (if any) of--
(A) the highest outstanding balance of the
Participant's loans from the Plan, or from any other qualified
plan maintained by an Employer or an Affiliate, during the
one-year period ending on the date before the date on
which the loan was made, over
(B) the outstanding balance of the Participant's
loans from the Plan, or from any other qualified plan
maintained by an Employer or an Affiliate, on the date on
which such loan was made.
(c) Loans shall be made on such terms as the Administrative
Committee may prescribe, provided that any loan shall be
evidenced by a note, shall bear a rate of interest on the unpaid
principal thereof commensurate with that charged by persons
in the business of lending money for loans which would be made
under similar circumstances, and shall be secured by the
Participant's Accounts and any other security as the Administrative
Committee in its discretion deems appropriate. All
loans made under the Plan shall be subject to an administrative
service charge.
(d) All loans shall be repaid by the Participant by payroll
deductions or any other method approved by the
Administrative Committee at least quarter-annually, over a period
not to exceed 5 years, in accordance with a substantially
level amortization schedule.
(e) Loans shall be deemed to be an earmarked investment of the
Trust Fund by the Participant with respect to his
Accounts. For purposes of Section 4.5, the interest paid on such
loans, together with any income or expenses associated
with any such loans, shall as of each Valuation Date be credited or
charged, as the case may be, to the Account or Accounts
of the Participant from which such loan was made.
(f) The Administrative Committee shall establish a policy and
procedures regarding the order in which loans are to
be charged against particular Investment Funds and against the
particular Accounts maintained under such Investment Funds.
(g) Loans shall not be made with respect to a Participant's
QVEC Account(if applicable), nor may the value of a
Participant's QVEC Account be taken into account for purposes of
the 50 percent limitation set forth in subsection(b)(i)
above.
(h) If as of the Participant's Benefit Commencement Date there
remains any unpaid balance of any loan, including any
unpaid interest, such unpaid balance shall be charged first against
his Accounts, before distribution to the Participant.
If after charging the Participant's Accounts with the unpaid
balance of the loan, including any unpaid interest, there still
remains an unpaid balance of any such loan and interest, then the
remaining unpaid balance of such loan and interest shall
be charged against any property pledged as security with respect to
such loan.
(i) The terms and conditions of a loan program initiated
pursuant to this Section 6.9 shall be contained in a written
document forming part of the Plan. Such document shall include the
following information:
(i) the identity of the person or positions authorized to
administer the loan program;
(ii) the procedure for applying for loans;
(iii) the basis on which loans shall be approved or denied;
(iv) limitations (if any) on the types and amount of loans
offered;
(v) the procedure under the program for determining a
reasonable rate of interest;
(vi) the types of collateral which may secure a
Participant loan; and
(vii) the events constituting default and the steps that
will be taken to preserve Plan assets in the event of such
default.
6.10 Facility of Payment. When, in the Administrative
Committee's opinion, a Participant or beneficiary is under a
legal disability or is incapacitated in any way so as to be unable
to manage his affairs, the Administrative Committee may
direct that payments be made:
(a) directly to the Participant or beneficiary;
(b) to a duly appointed guardian or conservator of the
Participant or beneficiary;
(c) to a custodian for the Participant or beneficiary under
the Uniform Gifts to Minors Act;
(d) to an adult relative of the Participant or beneficiary; or
(e) directly for the benefit of the Participant or
beneficiary.
Any such payment shall constitute a complete discharge therefor
with respect to an Employer, the Administrative Committee,
the Plan, and the Trustee.
6.11 Claims Procedure.
(a) Any person who believes that he is entitled to receive a
benefit under the Plan, including one greater than that
initially determined to be payable, may file a claim in writing
with the Administrative Committee or its delegate.
(b) The Administrative Committee shall within 90 days of the
receipt of a claim either allow or deny the claim in
writing. A denial of a claim shall be written in a manner
calculated to be understood by the claimant and shall include:
(i) the specific reason or reasons for the denial;
(ii) specific references to pertinent Plan provisions on
which the denial is based;
(iii) a description of any additional material or information
necessary for the claimant to perfect the claim and
an explanation of why such material or information is
necessary; and
(iv) an explanation of the Plan's claim review procedure.
(c) A claimant whose claim is denied (or his duly authorized
representative) may, within 60 days after receipt of
denial of his claim:
(i) submit a written request for review to the
Administrative Committee;
(ii) review pertinent documents; and
(iii) submit issues and comments in writing.
(d) The Administrative Committee shall notify the claimant of
its decision on review within 60 days of receipt of a
request for review. The decision on review shall be written in a
manner calculated to be understood by the claimant and
shall include specific reasons for the decision and specific
references to the pertinent Plan provisions on which the
decision is based.
(e) The 90-day and 60-day periods described in subsections (b)
and (d), respectively, may be extended at the
discretion of the Administrative Committee for a second 90- or
60-day period, as the case may be, provided that written
notice of the extension is furnished to the claimant prior to the
termination of the initial period, indicating the special
circumstances requiring such extension of time and the date by
which a final decision is expected.
(f) Participants and beneficiaries shall not be entitled to
challenge the Administrative Committee's determinations
in judicial or administrative proceedings without first complying
with the procedures in this Section. The Administrative
Committee's decisions made pursuant to this Section are intended to
be final and binding on Participants, beneficiaries and
others.
ARTICLE 7
Survivor Annuity Rules
7.1 Qualified Joint and Survivor Annuity.
(a) Notwithstanding any provision of Section 6.1(d) to the
contrary, a married Participant shall not be permitted to
elect an annuity form of distribution under the Plan (other than a
Qualified Joint and Survivor Annuity) unless such
Participant, with the written consent of his spouse as provided
under Section 6.6(c), has properly waived the Qualified
Joint and Survivor Annuity pursuant to subsection (c) below.
(b) Upon the receipt of a married Participant's request for an
annuity form of distribution, the Administrative
Committee or its delegate shall furnish such Participant with a
general written explanation of the terms and conditions of
the Qualified Joint and Survivor Annuity; the Participant's right
to make, and the effect of, a Qualified Joint and Survivor
Annuity waiver election; the rights of the Participant's spouse;
the Participant's right to revoke an election to waive the
Qualified Joint and Survivor Annuity, and the effect of such a
revocation. Such explanation shall also include a general
description of any optional forms of benefits available to the
Participant under the Plan, information explaining the
relative value of such optional forms of benefits and notice of the
Participant's right, if any, to defer receipt of the
distribution. This general explanation shall be furnished to a
Participant not less than 30 days and no more than 90 days
before the Participant's Benefit Commencement Date.
(c) A married Participant may elect to waive the Qualified
Joint and Survivor Annuity and to receive another available
annuity form of distribution at any time after the Participant
receives the notice described in subsection (b) above and
within his Election Period. A Participant's "Election Period" for
this purpose is the 90-day period preceding his Benefit
Commencement Date. Such election may be revoked by the Participant
at any time during the Election Period, and if so
revoked, the Participant's benefit shall automatically be paid in
the form of a Qualified Joint and Survivor Annuity unless
he again properly elects within the Election Period and with the
written consent of his spouse, not to receive his benefit
in such form. Elections and revocations may continue to be made
under this subsection throughout the Election Period.
7.2 Qualified Preretirement Survivor Annuity. The
provisions of this Section 7.2 shall apply only with respect
to a Participant (i) who elects any annuity form of distribution
under the Plan(including a Qualified Joint and Survivor
Annuity), (ii) who dies after making such election but before his
Benefit Commencement Date, and (iii) who was married to
the same spouse throughout the one-year period preceding the date
of his death.
(a) Upon the death of a Participant to whom this Section 7.2
applies, an amount equal to 50 percent of the
distributable balance of the Participant's Accounts shall be
applied toward the purchase of an annuity contract providing
such spouse with monthly payments for the period of her lifetime
(which annuity is referred to herein as a "Qualified
Preretirement Survivor Annuity"). The remaining balance of such
Participants Accounts shall be paid to his beneficiary (who
may in fact be his spouse) as otherwise provided in Section 6.2.
(b) Notwithstanding the foregoing, the surviving spouse of a
deceased Participant may elect, after the death of the
Participant, to receive the benefits otherwise payable to her as a
Qualified Preretirement Survivor Annuity in the form of
a lump sum payment, or as a direct transfer to an individual
retirement account or individual retirement annuity as
generally prescribed in Section 6.2.
ARTICLE 8
Named Fiduciaries;
Allocation of Responsibilities; Administration
8.1 Named Fiduciaries. The following persons are named as
fiduciaries under this Plan and shall be the only named
fiduciaries hereunder:
(a) Doskocil, as Plan sponsor, acting through its Board of
Directors, shall be responsible for all fiduciary functions
under the Plan except insofar as any such authority or
responsibility is assigned by or pursuant to the Plan to another
named fiduciary. In that regard, Doskocil shall be the
"Administrator" of the Plan within the meaning of ERISA. Authority
and responsibility reserved or assigned to Doskocil shall be
exercised by its Board of Directors, and shall include:
(i) the design of the Plan, including the right to
amend and to terminate the Plan;
(ii) the funding of the Plan as provided hereunder;
(iii) the designation of all named fiduciaries of the
Plan, including the right to remove or replace any of them;
(iv) establishment of the general investment policy of
the Plan;
(v) periodic monitoring and evaluating the performance
of all named fiduciaries; and
(vi) the employment of persons to provide services and
advice necessary to the performance of such functions.
Doskocil may, by resolution of its Board of Directors, delegate to
any member of the Investment Committee and/or any officer
of an Employer any authority or responsibility reserved or assigned
to Doskocil pursuant to the Plan.
(b) The Trustee shall be a bank or trust company appointed by
the Board of Directors. Subject to any powers of
Doskocil or a Committee to direct actions of the Trustee as
provided in the trust agreement, the Trustee shall have
exclusive authority, responsibility and discretion to manage and
control the assets held in its trust, in accordance with
such short and long-term objectives of the Trust Fund as are
communicated to the Trustee by Doskocil or the Investment
Committee, except to the extent that Doskocil or the Investment
Committee has delegated such authority, responsibility or
discretion to one or more Investment Managers pursuant to the terms
of the trust agreement and as provided in (e) below.
(c) An Investment Committee, the members of whom shall be
appointed by the Board of Directors, shall have
responsibility and authority to assure the implementation of the
investment policy of the Plan, including:
(i) monitoring and evaluating, pursuant to guidelines
set by the Board of Directors, the performance of the
Trustee and any Investment Manager and the transmittal of
information to the Trustee and Investment Manager concerning
estimated contributions and disbursements;
(ii) making recommendations to the Board of Directors as
to the appointment, continuance or removal of the
Trustee;
(iii) determining the Investment Fund or Funds to which
there are to be allocated the contributions made by or
on behalf of Participants who decline or otherwise fail to make
an investment election under Section 4.4(c); and
(iv) reporting at least annually to the Board of
Directors on investment policy.
(d) An Administrative Committee, the members of whom shall be
appointed by the Board of Directors, shall have the
responsibility and authority to control the operation and
administration of the Plan in accordance with the terms of the
Plan, including:
(i) preparation and filing of all reports required to
be filed with any agency of government, except such
reports as must be prepared or filed by other fiduciaries as
required by applicable law, and preparing such other
reports with respect to the Plan as are reasonable and
appropriate and requested by Doskocil;
(ii) compliance with all disclosure requirements imposed
by state or federal law upon the administrator of the
Plan;
(iii) maintenance of all records of the Plan other than
those required to be maintained by the Trustee;
(iv) issuance of instructions to the Trustee, as may be
required or appropriate, to pay any fees, taxes, charges
or other costs incidental to the operation and management by
the administrator of the Plan and to pay benefits as
provided in the Plan;
(v) the qualification and continuance of qualification
under applicable law of the Plan, any amendments to the
Plan and documents relating to the Plan;
(vi) receiving from the Employers and from Participants
such information as shall be necessary for the proper
administration of the Plan;
(vii) appointing or employing such agents and advisors as
it deems advisable, including legal counsel, accountants
and actuaries, as may be needed for the discharge of its
duties;
(viii) designating persons, who may but need not be
members of the Administrative Committee, to carry out any of
the foregoing duties under such procedures as may be approved
by the Board of Directors;
(ix) recommending Plan amendments to the Board of
Directors;
(x) considering and deciding all appeals of benefit
claims which have been denied, including affording a
reasonable opportunity to any Participant or beneficiary whose
claim for benefits has been denied for a full and fair
review of the decision denying the claim;
(xi) construing and interpreting the Plan, deciding all
questions of eligibility and determining the amount,
manner and time of payment of benefits under the Plan, all in
the sole discretion of the Administrative Committee; and
(xii) performance of such other duties as are assigned to
the Administrative Committee under the Plan.
The Administrative Committee shall have no power to add to,
subtract from or modify any terms of the Plan, nor to
change or add to any benefits provided by the Plan, nor to waive or
fail to apply any requirements of eligibility for a
benefit under the Plan.
(e) The Board of Directors may appoint one or more Investment
Managers to manage (including the power to acquire and
to dispose of) the assets of the Plan or any portion thereof, and,
if more than one Investment Manager is appointed, the
Board of Directors may allocate responsibility for managing
particular assets or particular portions of the assets of the
Plan among such Investment Managers; provided, however, that
custody of assets of the Plan managed by any such Investment
Manager shall be held by the Trustee. Each Investment Manager so
appointed shall be a person or entity qualified under
applicable law to serve as such, shall serve at the pleasure of the
Board of Directors and shall acknowledge in writing to
the Board of Directors that he or it is a fiduciary with respect to
the Plan.
8.2 Insurance Contracts.
(a) The Board of Directors shall have the power to direct the
Trustee to cause the assets of the Plan, or any portion
thereof, to be invested or to continue to be invested in group
annuity contracts, pension investment contracts or such other
contracts issued by any insurance company as such Board of
Directors deems desirable. In connection with and as a part of
any such contract with any insurance company, the Board of
Directors may grant to such insurance company such control over
the investment of funds deposited with or paid to such insurance
company as the Board of Directors deems desirable. Any
such contract with any insurance company may be held by the Trustee
or may be held by an Employer outside of any trust, as
the Board of Directors may from time to time determine.
(b) Notwithstanding the foregoing, in the event that any
assets of the Plan are invested in ordinary or term life
insurance contracts, the aggregate premiums paid on all contracts
on the life of any Participant, measured as a percentage
of the aggregate contributions allocated to the Participant's
Accounts at any particular time, shall be less than 50 percent
in the case of ordinary life insurance, and 25 percent in the case
of term life insurance.
8.3 Procedural Matters.
(a) Designation of Committee. Members of a Committee shall
serve at the pleasure of the Board of Directors and may
be removed by the Board of Directors at any time with or without
cause. A member of a Committee may, but need not be, an
Employee of an Employer. Any member of a Committee may resign by
delivering his written resignation to the Board of
Directors and such resignation shall become effective at delivery
or at any later date specified therein. Vacancies in a
Committee shall be filled by the Board of Directors.
(b) Rules and Decisions.
(i) A Committee may adopt such rules, consistent with
applicable by-laws (if any), as it deems necessary or
desirable. All rules and decision of a Committee shall be
uniformly and consistently applied to all Participants in
similar circumstances.
(ii) Any rule or decision which is not consistent with
the provisions of the Plan shall be conclusive and
binding upon all persons affected by it.
(iii) When making a determination or calculation, a
Committee shall be entitled to rely upon information
furnished by an Employer, the legal counsel of an Employer, or
the actuary for the Plan.
(c) Committee Procedures. A Committee may adopt by-laws and
may act by majority decision of its members in accordance
with such by-laws. A Committee may also elect a secretary (who may
but need not be a member of such Committee), and such
secretary of shall keep a record of all meetings and forward all
necessary communications to all named fiduciaries and
Investment Managers, as appropriate.
A majority of the members of a Committee at the time in office
shall constitute a quorum for the transaction of
business. All resolutions or other actions taken by a Committee at
any meeting shall be by the vote of the majority of the
members of the Committee present at the meeting. Meetings of a
Committee may be held by telephone conference. A Committee
may act without a meeting by written consent of a majority of its
members.
(d) Authorization and Benefit Payments. The Administrative
Committee shall authorize the payment of any benefits
which are to be paid from the Trust Fund pursuant to the provisions
of the Plan, and notify the Trustee in writing with
respect to all such payments of benefits. The Administrative
Committee shall keep on file, in such manner as it may deem
convenient or proper, all reports from the Trustee.
(e) Payment of Expenses. All expenses incident to the
administration or protection of the Plan and Trust, including
but not limited to, actuarial, legal, account and trustee fees,
shall be paid from the Trust Fund, unless paid directly by
the Employers. The members of a Committee who are not employees of
an Employer or an Affiliate shall not receive any
compensation for their services as such.
8.4 Administrative Committee Members as Participants. Any
Administrative Committee member may also be a Participant,
but no Administrative Committee member shall have power to take
part in any discretionary decision or action affecting his
own interest as a Participant under this Plan unless such decision
or action is upon a matter which affects all other
Participants similarly situated and confers no special right,
benefit or privilege not simultaneously conferred upon all
other such Participants.
8.5 Complete and Separate Allocation of Fiduciary
Responsibilities. This Article 8 is intended to allocate to each
named fiduciary and each Investment Manager the individual
responsibility for the prudent execution of the functions
assigned to each. The performance of such responsibilities shall
be deemed a several and not a joint assignment. None of
such responsibilities nor any other responsibility is intended to
be shared by two or more of them unless such sharing shall
be provided by a specific provision of this Plan or the Agreement
of Trust. Whenever one named fiduciary is required by
the Plan to follow the directions of another, the two shall not be
deemed to have been assigned a shared responsibility,
but the responsibility of the one giving the direction shall be
deemed to be its sole responsibility, and the responsibility
of the one receiving such direction shall be to follow it insofar
as such direction is on its face proper under the Plan
and applicable law.
8.6 Exclusive Purpose. All property and funds of the Trust
Fund, including income from investments and from all other
sources, shall be retained for the exclusive benefit of the
Participants, as provided in the Plan, and shall be used to pay
benefits to Participants or their beneficiaries, or to pay expenses
of administration of the Plan and Trust Fund to the
extent not paid by an Employer, except as provided in Section 8.7.
8.7 Reversion to the Employers. The Employers have no
beneficial interest in the Trust Fund and no part of the Trust
Fund shall ever revert or be repaid to an Employer, directly or
indirectly, except that an Employer shall upon written
request have a right to recover:
(a) any amount contributed by an Employer through a mistake of
fact (less any losses attributable thereto), provided
that such disallowed contributions are returned to an Employer
within one year after the date such contributions were made;
(b) any contributions (less any losses attributable thereto)
to the extent that their deduction under Section 404 of
the Code is disallowed, provided that such disallowed contributions
are returned to an Employer within one year after the
disallowance of the deduction; and
(c) at the termination of the Plan, any amounts remaining in
the Excess Forfeiture Suspense Account as prescribed in
Section 4.3(f).
8.8 Indemnification of Committee Members. The Employers shall
indemnify members of the Committees and their
authorized delegates who are employees of an Employer or an
Affiliate for any liability or expenses, including attorneys'
fees, incurred in the defense of any threatened or pending action,
suit or proceeding by reason of their status as members
of such Committees or as an authorized delegate thereto, to the
full extent permitted by law.
8.9 Bond. No member of a Committee shall be required to give
bond unless a bond is required by law and cannot be
waived.
ARTICLE 9
Amendment or Termination
9.1 Amendment. Doskocil reserves the right to amend this Plan
at any time to take effect retroactively or otherwise,
in any manner which it deems desirable including, but not by way of
limitation, the right to increase or diminish
contributions to be made by an Employer hereunder, to change or
modify the method of allocation of its contributions, to
change any provision relating to the distribution or payment, or
both, of any assets of the Trust.
9.2 Termination. Doskocil further reserves the right to
terminate this Plan at any time.
9.3 Form of Amendment, Discontinuance of Employer
Contributions and Termination. Any such amendment, discontinuance
of Employer contributions or termination shall be made only by
resolution or written consent of the Board of Directors.
9.4 Limitations on Amendments. The provisions of this Article
are subject to the following restrictions:
(a) Except as provided in Section 8.7, no amendment shall
operate either directly or indirectly to give an Employer
any interest whatsoever in any funds or property held by the
Trustee under the terms hereof, or to permit corpus or income
of the Trust to be used for or diverted to purposes other than the
exclusive benefit of the Participants and their
beneficiaries.
(b) Except to the extent necessary to conform to the laws and
regulations or to the extent permitted by any applicable
law or regulation, no amendment shall operate either directly or
indirectly to deprive any Participant of his nonforfeitable
beneficial interest in his Accounts as they are constituted at the
time of the amendment.
(c) No amendment shall change any vesting schedule unless each
Participant who has completed 3 or more Years of
Vesting Service is permitted to elect, within such reasonable
period after the adoption of such an amendment as the
Administrative Committee may designate, to have the nonforfeitable
percentage of his Matching Contribution and Profit
Sharing Accounts computed under the Plan without regard to such
amendment. Notwithstanding the foregoing, no election need
be offered to a Participant whose nonforfeitable percentage of such
Accounts cannot at any time be lower than such
percentage determined without regard to such amendment.
(d) Except as permitted by applicable law, no amendment shall
eliminate or reduce an early retirement benefit or a
retirement-type subsidy, or eliminate an optional form of benefit.
9.5 Level of Benefits upon Merger. This Plan shall not merge
or consolidate with, or transfer assets or liabilities
to, any other plan, unless each Participant shall be entitled to
receive a benefit immediately after said merger,
consolidation or transfer (if such other plan were then
terminated) which shall be not less than the benefit he would have
been entitled to receive immediately before said merger,
consolidation or transfer (if this Plan were then terminated).
9.6 Vesting Upon Termination, Discontinuance of Employer
Contributions; Liquidation of Trust.
(a) This Plan shall be deemed terminated if and only if the
Plan terminates by operation of law or pursuant to Section
9.2. In the event of any termination or partial termination within
the meaning of Section 411(d)(3) of the Code, or in the
event an Employers permanently discontinues the making of
contributions to the Plan, the Matching Contribution and Profit
Sharing Accounts of each affected Participant whose Severance Date
has not occurred as of the date of the occurrence of such
event shall become nonforfeitable. Thereupon, such Accounts and
all other Accounts maintained on behalf of Participants
shall be distributed to each Participant as provided under Article
6; provided, however, that in no event shall any
Participant or beneficiary have recourse to other than the Trust
Fund for the satisfaction of benefits hereunder.
(b) In the event of the termination of, or the permanent
discontinuance of contributions to, the Plan, the Trustee
shall make or commence distribution to each Participant or his
beneficiaries of the value of such Participant's Accounts
as provided herein in the manner and within the time prescribed in
Article 6. However, if after such event Doskocil shall
determine it to be impracticable to continue the Trust any longer,
Doskocil may, in its discretion, declare a date to be
treated as the employment termination date for all Participants who
are Employees, and the Trustee shall thereupon, as
promptly as shall then be reasonable under the circumstances and to
the extent permitted by law, liquidate the Trust assets.
Upon such liquidation, the Trustee shall either distribute to each
such Participant his Accounts in the Trust Fund in the
manner provided in Article 6, or transfer the value of such
Accounts to another defined contribution plan maintained by an
Employer or other Affiliate as prescribed in Section 6.3(c). In
all events, if upon termination of the Plan the value of
the Participant's Elective 401(k) Contribution Account and
Qualified Nonelective Contribution Account is not so transferred
to another plan, then such Accounts shall be distributed to the
Participant in a lump sum payment (or by a direct transfer
to an eligible retirement plan as prescribed in Section 6.1).
Upon completion of such liquidation and the concomitant
final distribution or transfer of benefits, the Trust shall finally
and completely terminate.
(c) The liquidation of the Trust, if any, in connection with
any Plan termination shall be accomplished by the
Doskocil. After directing that sufficient funds be set aside to
provide for the payment of all expenses incurred in the
administration of the Plan and the Trust, to the extent not paid or
provided for by an Employers, Doskocil shall, as
promptly as shall then be reasonable under the circumstances,
liquidate the Trust assets and distribute to each Participant
or transfer for his benefit his Accounts in the Trust Fund in the
manner provided in Article 6. Upon completion of such
liquidation and disbursement of Plan assets, the Trust shall
finally and completely terminate. In the event Doskocil is
no longer in existence, the actions to be taken by Doskocil
pursuant to this Section shall be taken by an Employer or by
the Trustee.
ARTICLE 10
Miscellaneous
10.1 No Guarantee of Employment, etc. Neither the creation of
the Plan nor anything contained in the Plan or Trust
Agreement shall be construed as giving any Participant hereunder or
other employee of an Employer any right to remain in
the employ of an Employer, any equity or other interest in the
assets, business or affairs of an Employer, or any right to
complain about any action taken or any policy adopted or pursued by
an Employer.
10.2 No Assignment of Rights. No Participant shall have any
right to sell, assign, pledge, hypothecate, anticipate
or in any way create a lien upon any part of the Trust Fund. To
the maximum extent permitted by ERISA and the Code, no
interest in the Trust Fund, or any part thereof, shall be
assignable in or by operation of law, or be subject to liability
in any way for the debts or defaults of Participants, their
beneficiaries, spouses or heirs-at-law, whether to an Employer
or to others.
10.3 Qualified Domestic Relations Order. Notwithstanding
anything in this Plan to the contrary, the Administrative
Committee shall distribute a Participant's Accounts, or any portion
thereof, in accordance with the terms of any domestic
relations order which the Administrative Committee determines to be
a qualified domestic relations order (QDRO) described
in Section 414(p) of the Code entered on or after January 1, 1985.
Such distribution may be made as soon as practicable,
irrespective of whether or not the Participant has then attained
his "earliest retirement age" as defined under Section
414(p)(4)(B) of the Code. Effective as of January 1, 1993, an
"alternate payee" with respect to a QDRO shall have the same
rights as a Participant in regard to the direct transfer of a
distribution to an eligible retirement plan as prescribed in
Section 6.1.
10.4 Receipts by Participants. Prior to the time that
distributions are to be made hereunder, the Participants, their
spouses, beneficiaries, heirs-at-law or legal representatives shall
have no right to receive cash or other things of value
from an Employer or the Trustees from or as a result of the Plan
and Trust.
10.5 Controlling Law. To the extent not preempted by the laws
of the United States of America, the laws of the State
of Kansas shall be controlling state law in all matters relating to
the Plan.
10.6 Severability. If any provision of this Plan shall be held
illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining parts of this Plan, but
this Plan shall be construed and enforced as if said
illegal or invalid provision had never been included herein.
10.7 Notification of Addresses. Each Participant and each
beneficiary of a deceased Participant shall file with his
Employer from time to time in writing his post office address and
each change of post office address. Any communication,
statement or notice addressed to the last post office address filed
with an Employer, or if no such address was filed with
an Employer, then to the last post office address of the
Participant or beneficiary as shown on an Employer's records, will
be binding on the Participant and his beneficiary for all purposes
of this Plan, and neither an Employer nor the
Administrative Committee shall be obliged to search for or
ascertain the whereabouts of any Participant or beneficiary.
10.8 Gender and Number. Whenever the context requires or
permits, the gender and number of words shall be
interchangeable.
ARTICLE 11
Top-Heavy Plan Requirements
11.1 Definition of Top-Heavy Plan. The Plan shall be
Top-Heavy with respect to a Plan Year if it is a member of a
Required Aggregation Group and the present value of the accrued
benefits for Key Employees under all plans in the
Aggregation Group exceeds 60 percent of the present value of the
accrued benefits for all employees under all plans in the
Aggregation Group. This ratio shall be computed as provided in
Section 416(g) of the Code. Such present values shall be
determined as of the last day of the preceding Plan Year of each
plan. If all plans in the Aggregation Group do not have
the same Plan Year, then such present values shall be determined as
of the last of each Plan Year ending in the same
calendar year as of the last day of the preceding Plan Year of this
Plan. Under a defined contribution plan, such present
values shall be determined by aggregating the value of all accounts
of all Key Employees and all employees respectively.
As used in this section, the term "accounts" includes certain prior
distributions, Employer contributions payable to the
Plan, employee contributions, and rollover accounts, if any, all in
accordance with Section 416(g) of the Code or
regulations thereunder.
For the purpose of determining such present values under a
defined benefit plan:
(a) The determination shall be made as of the most recent
annual plan valuation date used to compute plan costs for
purposes of compliance with the minimum funding standards of the
Code.
(b) An interest assumption of 5 percent and a post-retirement
morality assumption shall be used. No assumptions with
respect to future withdrawal or compensation increases shall be
used. Except to the extent a plan provides a non-
proportional subsidy, the present value of accrued benefits shall
be determined on the assumption that each Participant's
benefit will commence on the later of his Normal Retirement Date or
the date of the determination. The value of ancillary
benefits not related to retirement benefits, such as pre-retirement
death and disability benefits and post-retirement
medical benefits, shall not be taken into account. The value of
subsidized early retirement benefits and benefit options
shall not be taken into account unless such subsidies are
non-proportional. Any benefit which includes a non-proportional
subsidy shall be deemed to commence as of the Participant's age at
which such benefit has the highest value. A subsidy
shall be considered non-proportional unless the group of
Participants who may receive the subsidy would independently
satisfy the coverage requirements of the Code. The present value
of accrued benefits shall include previous benefit
payments or distributions of annuity contracts only to the extent
required by Section 416 of the Code.
11.2 Top-Heavy Plan Requirements. Notwithstanding any
provision of the Plan to the contrary but subject to the
Doskocil's right to terminate the Plan, the following provisions
shall apply with respect to any Plan Year in which the Plan
is Top-Heavy.
(a) Minimum Vesting. Effective as of the first day of such
Plan Year, the following vesting schedule shall apply,
unless the vesting schedule set forth in Section 5.5 with respect
to any Account is more advantageous:
The Nonforfeitable
If the Participant's Percentage of His
Years of Service Are: Employer Account Shall Be:
Less than 3 years 0%
3 or more years 100%
(b) Minimum Contribution. This subsection (b) shall apply only
to a Participant who is a Non-Key Employee and who in
a Plan Year with respect to which this subsection would otherwise
apply has not had his Accounts in all defined contribution
plans which are members of the Aggregation Group credited with
Employer contributions and forfeitures equal in the aggregate
to 3 or more percent of his Compensation for such Plan Year. An
Employer shall make a supplemental contribution from its
current or accumulated earnings to the Accounts of any such
Participant, in an amount sufficient for the total amount of
Employer contributions allocated to the Accounts of such
Participant to equal 3 percent of such Participant's Compensation
for such Plan Year. For purposes of this subsection, the term
"Participant" means a Participant who was employed by an
Employer on the last day of a Plan Year in which the Plan is
Top-Heavy.
11.3 Definitions. For purposes of this Article:
(a) A "Key Employee" is any current or former Employee (and
the beneficiaries of such Employee) who at any time during
the determination period was:
(i) an officer of an Employer if such individual's annual
compensation for that determination period exceeds 50
percent of the dollar limitation in effect under Section
415(b)(1)(A) of the Code (provided, however, that no more than
50 Employees shall be treated as officers under this
paragraph);
(ii) an owner (or considered an owner under Section 318 of
the Code) of one of the ten largest interests in an
Employer if such individual's annual compensation exceeds 100
percent of the dollar limitation in effect under Section
415(c)(1)(A) of the Code;
(iii) a 5-percent owner of an Employer; or
(iv) a 1-percent owner of an Employer who has an annual
compensation of more than $150,000.
For purposes of determining an Employee's status as a Key Employee,
"annual compensation" means the Employee's 415
Compensation, but including amounts contributed by an Employer or
Affiliate pursuant to a salary reduction agreement which
are excludable from the Employee's gross income under Sections 125,
402(a)(8), 402(h) or 403(b) of the Code. In all
regards, the determination period is the Plan Year containing the
determination date and the four preceding Plan Years.
The determination of who is a Key Employee will be made in
accordance with Section 416(i)(1) of the Code and the regulations
thereunder.
(b) A "Non-Key Employee" is an employee of an Employer other
than a Key Employee.
(c) "Aggregation Group" means a group of qualified plans
consisting of this Plan and certain other defined
contribution plans and defined benefit plans maintained by an
Employer or an Affiliate which are aggregated for purposes
of determining whether the group as a whole is Top-Heavy. The
Aggregation Group includes plans which must be aggregated
for this purpose (the "Required Aggregation Group") and other plans
which are aggregated for this purpose (the "Permissive
Aggregation Group").
(d) The "Required Aggregation Group" shall include:
(i) each employee benefit plan of an Employer or an
Affiliate qualified under Section 401(a) of the Code in which
a Key Employee is a participant; and
(ii) each other qualified plan which enables any plan
described in (i) to meet the anti-discrimination or
coverage requirements of Sections 401(a)(4) and 410 of the
Code.
(e) The "Permissive Aggregation Group" includes such other
qualified plan or plans of an Employer or an Affiliate as
the Administrative Committee may in its discretion elect, provided
the inclusion of any such plan with plans forming part
of the Required Aggregation Group in the Aggregation Group does not
cause any plan in such group to fail to meet the anti-
discrimination or coverage requirements of Sections 401(a)(4) and
410 of the Code.
11.4 Cessation of Top-Heavy Requirements.
(a) Once the Plan has been Top-Heavy but is no longer
Top-Heavy, this Article shall be inapplicable except as provided
in this Section.
(b) The vesting schedule set forth in Section 11.2(a), if
applicable, shall continue to apply to a Participant who
had 3 or more Years of Service as of the last day on which the Plan
was Top-Heavy.
(c) The Accounts of any other Participant constituted as of
the last day on which the Plan was Top-Heavy shall be
separately accounted for as a subaccount until the nonforfeitable
percentage of such Account pursuant to Section 5.5 equals
or exceeds the nonforfeitable percentage of his Account on the last
day on which the Plan was Top-Heavy. In the event such
Participant shall resign or be dismissed from the employ of an
Employer while a subaccount is being maintained, his
nonforfeitable interest in such subaccount shall be computed
pursuant to Section 5.5 but using the same nonforfeitable
percentage as was applicable to him on the last day on which the
Plan was Top-Heavy.
ARTICLE 12
Adoption by Affiliates
12.1 Adoption of Plan. Any Affiliate may adopt this Plan for
the benefit of its eligible employees by resolution of
such Affiliate's board of directors. Upon such adoption, such
Affiliate shall become an "Employer" with respect to the
Plan.
12.2 Agents for Employer. Each Affiliate which adopts and
becomes an Employer with respect to this Plan pursuant to
Section 12.1 hereby irrevocably gives and grants to Doskocil and to
the Administrative Committee full and exclusive power
conferred upon it by the terms of the Plan and authority to take or
refrain from taking any and all action which such
Employer might otherwise take or refrain from taking with respect
to the Plan, including sole and exclusive power to
exercise, enforce or waive any rights whatsoever which such
Employer might otherwise have with respect to the Trust, and
each such Employer, by adopting this Plan, irrevocably appoints
Doskocil and the Administrative Committee its agents for
such purposes. Neither the Trustee nor the Administrative
Committee nor any other person shall have any obligation to
account to any such Employer or to follow the instructions of or
otherwise deal with any such Employer. Each such Employer
shall contribute on behalf of its employees who are Participants in
the Plan such amounts as are determined under Article
3.
12.3 Termination. Any Employer which adopts this Plan
pursuant to Section 12.1 may terminate this Plan with respect
to its own employees by resolution of its board of directors.
12.4 Data to be Furnished by Employers. Each Employer which
adopts this Plan pursuant to Section 12.1 shall furnish
and maintain such records with respect to its employee Participants
as called for hereunder, and its determinations and
notifications with respect thereto shall have the same force and
effect as comparable determinations by Doskocil with
respect to its employee Participants.
Dates Referenced Herein and Documents Incorporated by Reference
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