EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST OF
SOUTHWEST GEORGIA FINANCIAL CORPORATION
(Amended and Restated Effectiveas of January 1, 2014)
TABLE OF CONTENTS
Page | ||
ARTICLE I DEFINITIONS.....2 | ||
1.1 | Account Balance.....2 |
1.2 | Adoption Date.....2 |
1.3 | Annual Compensation.....2 |
1.4 | Annual ValuationDate.....2 |
1.5 | AuthorizedLeaves of Absence.....2 |
1.6 | Beneficiary .....2 |
1.7 | Board.....3 |
1.8 | Break in Service.....3 |
1.9 | Code.....3 |
1.10 | Company.....3 |
1.11 | Effective Date.....3 |
1.12 | Eligible Participant.....3 |
1.13 | Employee.....3 |
1.14 | Employer.....3 |
1.15 | Employer Contribution Account.....3 |
1.16 | Employer Stock.....4 |
1.17 | Employment.....4 |
1.18 | ERISA.....4 |
1.19 | ESOP Committee.....4 |
1.20 | ESOP Account.....4 |
1.21 | Fiduciaries.....4 |
1.22 | FMLA Leave.....4 |
1.23 | Hour of Service.....5 |
1.24 | Non-Employer Stock Account.....6 |
1.25 | Non-Employer Securities Portion of the Plan.....6 |
1.26 | Normal Retirement Date.....6 |
1.27 | Participant.....6 |
1.28 | Plan.....6 |
1.29 | Plan Administrator.....6 |
1.30 | Plan Year.....6 |
1.31 | Qualified Election Period.....6 |
1.32 | Service.....6 |
1.33 | Trust (or Trust Fund).....6 |
1.34 | Trustee.....6 |
1.35 | Valuation Date.....7 |
1.36 | Year of Service.....7 |
ARTICLE II PARTICIPATIONANDSERVICE.....7
2.1 | Participation.....7 |
2.2 | Service.....8 |
2.3 | Effect of Break in Service.....8 |
2.4 | Inactive Account Status.....10 |
2.5 | Transfers of Employment AmongEmployers.....10 |
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2.6 | Election Not to Participate.....10 |
2.7 | Qualified Military Service.....10 |
ARTICLE III CONTRIBUTIONS.....11
3.1 | Employer Contributions.....11 |
3.2 | Fund for Exclusive Benefit of Participants.....12 |
3.3 | SpecialLimitation on Allocations for Plan Years to Which Code | |
Section 415(c)(6) Applies.....12 |
ARTICLEIVINTERESTS OFPARTICIPANTS.....12
4.1 | Accounts of Participants.....12 |
4.2 | Allocation of Shares of Employer Stock, Income, Expense, Fluctuations in |
Asset Value, Etc.....13
4.3 | Allocation ofEmployer Contributions.....13 |
4.4 | Maximum Additions.....15 |
4.5 | Directed Investments By Eligible Participants.....17 |
4.6 | Investment of Non-Employer Stock Accounts.....18 |
4.7 | Code Section1042 Transactions.....19 |
ARTICLEVBENEFITS.....20
5.1 | Normal Retirement Benefits.....20 |
5.2 | Disability Benefits.....20 |
5.3 | Postponed Retirement.....20 |
5.4 | Death Benefits.....20 |
5.5 | Benefits on Termination ofEmployment.....21 |
5.6 | Payment of Benefits.....22 |
5.7 | Restrictions onParticipants’ Right To Dispose ofEmployer Stock; |
Employer’s and Plan’s Right of First Refusal.....23
5.8 | Participant’s Right to PutEmployer Stock to the Company and the Plan.....24 |
5.9 | Securities Laws Restrictions On Resales.....25 |
5.10 | Maintenance of Accounts Prior toPayout.....26 |
5.11 | Present Value ofPayments.....26 |
5.12 | Commencement ofPayments.....26 |
5.13 | Error in Participant’s Account.....30 |
5.14 | No Other Benefits or Withdrawals.....30 |
5.15 | Voting Rights.....30 |
5.16 | Tender or Exchange Offer for EmployerStock.....31 |
5.17 | Appraisal of Employer Stock.....32 |
5.18 | Direct Transfer of Eligible Rollover Distributions.....32 |
5.19 | Notice of Right to Defer Distribution.....34 |
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ARTICLE VIDESIGNATION OFBENEFICIARY.....34
ARTICLEVIIADMINISTRATION.....35
7.1 | Allocation of Responsibility Among Fiduciaries for Plan and Trust Administration.....35 |
7.2 | Appointment of Plan Administrator.....36 |
7.3 | Claims Procedure.....36 |
7.4 | Records and Reports.....37 |
7.5 | Other Plan Administrator Powers and Duties.....37 |
7.6 | Rules and Decisions.....38 |
7.7 | Authorization of BenefitPayments.....38 |
7.8 | Application and Forms for Benefits.....38 |
7.9 | Payment for Benefit of Disabled or Incapacitated Person.....38 |
7.10 | Notices to Trustee.....38 |
7.11 | Indemnificationby the Company.....39 |
ARTICLE VIII POWERS, DUTIES ANDRESPONSIBILITIES OF THETRUSTEE.....39
8.1 | Establishment and Acceptance of Trust.....39 |
8.2 | Investment of Trust Fund.....39 |
8.3 | Discharge of Duties.....41 |
8.4 | Prohibited Transactions.....41 |
8.5 | Delegation of Responsibilities.....42 |
8.6 | Powers of Trustee.....42 |
8.7 | Payments From The Fund.....44 |
8.8 | Payment of Compensation, Expenses and Taxes.....44 |
8.9 | Accounting.....45 |
8.10 | Bond.....45 |
8.11 | Resignation or Removal of the Trustee.....45 |
ARTICLEIXAMENDMENT OF THEPLAN.....46
ARTICLEXDISCONTINUANCE OF CONTRIBUTIONS ANDTERMINATION OF PLAN.....46
10.1 | Intention to Continue Plan.....46 |
10.2 | Termination or Partial Termination of Plan.....46 |
10.3 | Discontinuance of Contributions.....47 |
ARTICLEXIMISCELLANEOUS.....47
11.1 | Participants’ Rights, Acquittance.....47 |
11.2 | Spendthrift Clause.....48 |
11.3 | Participation of AdoptingEmployers.....48 |
11.4 | SuccessorEmployer.....49 |
11.5 | Transfer of Plan Assets.....49 |
11.6 | Delegation of Authoritybythe Company.....50 |
11.7 | Construction of Agreement.....50 |
11.8 | Headings.....50 |
ARTICLE XIITOP-HEAVY PLANPROVISIONS.....50
12.1 | Application.....50 |
12.2 | Definitions.....50 |
12.3 | Allocation of Minimum Contribution.....51 |
12.4 | Post-EGTRRA Top-Heavy Provisions.....52 |
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EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST OF SOUTHWEST GEORGIA FINANCIAL CORPORATION
THISAGREEMENT ismade and entered as of the dayof December, 2014,byand between SouthwestGeorgia Financial Corporation, aholding companyorganized under the lawsof the Stateof Georgia,(the “Company”) and SouthwestGeorgia Bank, astate bankingassociation, as trustee (the “Trustee”);
W I T N E S S E TH:
WHEREAS,the Company maintainstheSouthwestGeorgia FinancialCorporation Employee Stock Ownership Plan and Trust(the “Plan”);
WHEREAS, the Plan was amended and restated effective January 1, 2000 to comply withthe TaxReform Act of 1986,as amended; the pension provisionsof the General AgreementonTariffs and Trade (“GATT”);the Uniformed ServicesEmployment and Reemployment RightsAct of 1994(“USERRA”) the SmallBusiness Job ProtectionAct of 1996(“SBJPA”), the Tax Reform Act of 1997 (“TRA‘97”), theInternal Revenue Restructuring andReform Actof 1998,and the CommunityRenewal TaxRelief Act of 2000and has subsequently beenamended andrestated effectiveas of January 1, 2005 to incorporate other changes in lawand for certainother purposes.
WHEREAS,the Companyagain amended andrestated the Plan, effectiveas of January 1, 2009, exceptwhere otherwisestated, toincorporate prior amendments tothe Plan,to reflect certain provisionsof the Economic Growthand TaxRelief ReconciliationAct of 2001(“EGTRRA”) as applicable to the Plan and to reflect other legislativechanges necessary to bringthe Plan into compliance withcurrent laws,including final Regulations issued undersection415of the Internal RevenueCode of 1986,as amended, and the Pension ProtectionAct of 2006 (“PPA”);
WHEREAS,the Companynow desires to amendand restate the Planas required orpermittedbythe Small Business JobsAct of 2010(“SBJA”), the Preservationof Access toCare for Medicare Beneficiaries and Pension Relief Act of 2010 (“PRA 2010”), the Moving Ahead forProgress inthe 21st Century Act(“MAP-21”), the American TaxpayerRelief Act of 2012(“ATRA”) and the applicable statutory or regulatorychanges included onthe 2013Cumulative List;
WHEREAS,the provisionsof thisamendment and restatementof the Plan shall apply only tothose eligible employeeswho terminateemployment with the Company onor after January 1, 2014or suchlater date asmay applyfor a provision which becomes effectiveafterwards. Benefits payable to or on behalf of a Participant whoterminates employment prior to January 1, 2014 shall notbe affectedby the termsofany Plan amendmentadopted aftersuchParticipant’s terminationof employment unlessthe amendment and restatement providesotherwise.
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NOWTHEREFORE, effective as of January 1, 2014 exceptas otherwiseprovided, thePlan is amended and restated as follows.
ARTICLE IDEFINITIONS
The following words andphrases when used herein shallhave the meanings set forth
below unless a differentmeaning is plainly requiredby the context.The masculinegender wherever used herein shallbe deemed toinclude the feminine. Words inthe singular shallbe read and construedas though used inthe plural in allcases where they would so apply,and viceversa.
1.1 Account Balance. The amountstanding tothe credit of a Participant in hisEmployer ContributionAccount and Non-Employer Stock Account, which shallat all timesbe fullyvested.
1.2 | AdoptionDate. The date this plan was originallyeffective,namelyJuly 8, 1981. |
1.3 Annual Compensation. AParticipant’s total compensationpaidby theEmployer for the PlanYear including wages, salary, overtimepay, bonuses, and anyamounts contributedby theEmployer on behalf of anEmployee pursuant to a salary reduction agreement which is not includible inthe gross income of the Employee under Code Sections125, 132(f)(4), 401(k),402(a)(8), 402(h), or 403(b), butexcluding commissions, any indirectpayments such as contributions tothis Plan or anyother profitsharing plan, pensionplan, groupinsurance plan or welfare plan, and incomefrom the exercise of stock options,stock appreciation rights, restricted stock units, restricted stock or other stock awards. The Annual Compensation of each Participant taken into account in determining contributions and allocations for any Plan Year beginning afterDecember31, 2013, shall notexceed $260,000,as adjusted forcost-of-living increases inaccordance withCode Section401(a)(17)(B). The cost-of-living adjustment ineffect for acalendar yearapplies toAnnual Compensation forthe determination period(the PlanYear orother consecutive 12-monthperiod over which Annual Compensation isotherwise determined under the plan) that begins with or within such calendar year.
1.4 | Annual ValuationDate. December 31 of each year while the Plan is in effect. |
1.5 AuthorizedLeaves of Absence.Anyabsence authorizedby the Employerunder the Employer’s standardpersonnel practices,provided that allpersons under similar circumstances mustbe treated alike inthe granting of such Authorized Leavesof Absence pursuant to Section 2.7,and provided further thatthe Employee returns withinthe period of authorizedabsence. An absence due toservice inthe armed forcesof theUnited States shall be considered an AuthorizedLeave of Absence pursuant to Section 2.7.
1.6 Beneficiary.Any personor persons (naturalor otherwise) designatedby aParticipant on a form suppliedby the ESOP Committee toreceive benefitspayable inthe event of the death of the Participant,or inthe absenceof any suchdesignated person(s), such other person(s) determined to be the beneficiary under Article VI hereof.
1.7 Board. TheBoard of Directorsof Southwest Georgia Financial Corporation, aGeorgia corporation.
1.8 Break inService. Atwelve-month computationperiod inwhich the subject Employeecompletes no more than 500 Hours of Service.
1.9 Code. The Internal Revenue Code of 1986,as amended, and the regulationsestablished pursuant theretoand the rulings issuedthereunder, as they now existor as theymayhereafter be amended or modified.
1.10 | Company. Southwest Georgia Financial Corporation, a Georgia corporation. |
1.11 Effective Date. The date upon which this amendment and restatement ofthe Planis effective,namely January 1, 2014. The Plan was originally effective as of July 8, 1981.
1.12 Eligible Participant.AnyEmployee who(i)is credited with at least ten (10)years of participation in the Plan, (ii) who has attained at least the age offifty-five (55), and (iii) who is aParticipant at the time ofanyelection under Section4.5.
1.13 Employee.Any personwho isan employee (suchterm having its customarymeaning) of the Employerand who is receiving remunerationfor personalservices renderedtothe Employer (orwho is onan AuthorizedLeave of Absence). Provided,however, thatfor purposes of this Plan,the term Employee shall notincludeany personwhose terms and conditionsof employmentare determined bycollective bargaining with a union or an affiliatethereof representing suchpersons and with respect to whom inclusion in this Planhas not beenprovided for inthe collectivebargaining agreementsetting forth those termsand conditions. In addition,the term Employee shallinclude leasedemployees withinthe meaning of Code Section414(n)(2) unless(i) such leased employees constitute lessthan twentypercent (20%) ofthe Employer’s non-highly compensated workforce withinthe meaning of Code Section414(n)(5)(C)(ii), and (ii)such leased employeesare coveredby a plandescribed inCode Section414(n)(5), inwhich event such leased employees shall notbe considered Employees forpurposes of this Plan.Leased employees shall notbe eligible to participate in the Plan. An individualclassified as an independent contractor or other individual under contract with anEmployer and classifiedby the Employer as anon-Employee shall not be eligible to participate inthePlan;provided, however, thatifany individualclassified byan Employeras anindependent contractor or other non-Employee designation islater required byaction of theInternal Revenue Service, Departmentof Labor oranyother governmental agency tobe classified as an Employee, such individual shall notbe an eligibleEmployee prior to suchreclassification and, after such reclassification,the individual’s participation shallbe in accordance with the rules established by theCompany.
1.14 Employer. The Companyandany other businessenterprise dulyadopting for the exclusivebenefit of its eligibleemployees (and their beneficiaries) the provisionsof this Planinaccordance with the terms hereof.
1.15 Employer ContributionAccount. The accountmaintained for a Participant torecord his shareof the contributionsof the Employer and adjustmentsrelating thereto inaccordance withArticleIV.
1.16 Employer Stock.The common stock,par value $1.00per share, ofSouthwest Georgia Financial Corporation, aqualifying employer securitywithin the meaning ofSection 407(d)(5) of ERISA. Employer Stock shallalso include any securities substitutedfor such stockby way of recapitalization, reorganization,merger or consolidation. The Plan shall not holdor invest inany Employer Stock unlesssuch securitiesare (i)commonstock which is readily tradable in an established market as provided in Treas. Reg. Section1.401(a)(35)-1(f)(5) or (ii)if there is nosuch readilytradable commonstock, then commonstock having a combination ofvoting power and dividendrights equal toor in excessof thatclass of commonstock having the greatest voting power and thatclass of commonstock having the greatest dividendrights; provided thatnoncallable preferred stock which isconvertible at any timeat areasonable price into common stock having the characteristics described above may be used.
1.17 Employment. Serviceas an Employee ofthe Employer. Theterm “Reemployment” shall meanEmployment following a Break inService. The terms“Employed” and “Reemployed” shallbe used inthe same sense as the termsEmployment andReemployment, respectively.
1.18 ERISA. The EmployeeRetirement Income SecurityAct of 1974,as amended from time to time.
1.19 ESOPCommittee. The committee appointedby the Boardas the PlanAdministrator to,among itsother duties:(i)conveythe directionsof Participants tothe Trustee as tothe votingor tenderof sharesof Employer Stock underArticle V thatare allocated toParticipants’ accounts and to notifythe Trusteeas tothe voting of allocatedshares of Employer Stockfor which itdoes notreceive timely directionsfrom Participantsand the tender ofunallocated sharesof Employer Stock inaccordance withArticle V; (ii)direct the Trustee as to the acquisition or disposition ofEmployer Stock, including the number of shares to purchase, theprice ofsuch sharesand when to acquiresuch sharesas provided in Section 8.2;and (iii)direct the Trustee toborrow funds toacquire Employer Stock,including the terms, amountand timingof any exemptloan. In the absenceof the appointmentof an ESOP Committee,the Company shallassume such responsibilities, exceptas otherwise restricted in the Plan.If the ESOP Committee(or any committeewhich iscarrying out any or all ofthe functionsof the ESOP Committee) decides that it cannot perform the functions required under Article V with respect tothe voting or tenderof shares of Employer Stockbecause of restrictionsunder ERISA or the Code, the Board shall designate a person, committee or entityto perform such functions.
1.20 ESOPAccount. The ESOPAccount consists of theEmployer ContributionAccount under whichEmployer Contributions are made pursuant toArticle IV.
1.21 Fiduciaries. The named fiduciaries,who shallbe theEmployer, theESOP Committee and the Trustee, and other parties designated as fiduciaries by such named fiduciaries inaccordance with the powers herein provided, butonly withrespect to the specific responsibilities of each for Plan and Trust administration as set forth herein.
1.22 FMLA Leave. The leave of absence takenby anEmployee, oneither apaid orunpaid basis, inaccordance withthe Family and MedicalLeave Act of 1993and in connection with any effective similar state familyleave law.
1.23 | Hour of Service. EachEmployee shall be credited with an Hour of Service for: |
(1) Each hour for which suchEmployee is paid, or entitled topayment, bytheEmployer for the performance of duties.These hours shallbe credited to the Employee for the computation period in which the duties are performed; and
(2) Each hour for which suchEmployee is paid, or entitled topayment, bytheEmployer on account of a periodof time duringwhich no dutiesare performed (irrespectiveof whether theemployment relationship has terminated) due to vacation,holiday, illness, incapacity(including disability), jury duty, militaryduty orleave of absence, provided, however, that underthis paragraph (2):
(i) No more than 500 Hours of Service shall be credited for any single continuousperiod (whether or notsuch period occurs in a single computationperiod) during which the Employee performs no duties:
(ii) No hours shallbe creditedif such payment is madeor due under aplan maintainedby theEmployer solelyfor purposes of complying with applicable worker’s compensation,unemployment insurance or disability insurance laws; and
(iii) No hours shallbe creditedfor apayment whichreimburses an Employee for medical or medically related expenses incurredbythe Employee; and
(3) Each hour for which backpay, irrespectiveof mitigationof damages,iseither awarded or agreed tobythe Employer. Thesehours shallbe credited tothe Employee forthe computationperiod to which the award or agreement pertainsrather than the period inwhichthe award, agreement, orpayment ismade. Thesame Hoursof Service shall notbe creditedunder paragraphs (1) or (2), as the casemaybe, and thisparagraph (3). Crediting of hoursfor back payawarded or agreed to with respect to periods described in paragraph(2) shall be subjectto the limitations of that paragraph.
(4) Hours of Service credited underthe Plan shall be calculatedand creditedsubject tothe rules and restrictions set forth inDepartment of Labor Regulations Section2530.200b-2(b),(c) and (f) which are incorporated hereinbythis reference.
(5) The method of determiningHours of Service under the Plan shallbeinaccordance withDepartment ofLabor Regulations Section2530.200b-3 and shall be applied in aconsistent and nondiscriminatory manner toEmployees or classes ofEmployees.
(6) For purposes ofdetermining whether a Break inService has occurred forparticipation and vestingpurposes, for Plan Yearsbeginning onor after January 1, 1985, Hoursof Service shallalso include hours for maternity or paternity absences inaccordance with Section2.3(e). During such absence, the Employee shallreceive creditfor Hours of Serviceequal tothe number of hours that normallywould have been credited during the absence, or ifunknown, then eighthours per day ofabsence, provided thatthe credit forHours of Service onaccount of the birthor placementof a child withthe Employee byadoption shall notexceed 501 Hours of Service perabsence. Hours of Service onaccount of pregnancyor adoption shall onlybe required to be credited if, in the Plan Year in which the maternity or paternityabsence begins,
crediting ofsuch hours is necessary to prevent aBreak in Service thatyear; otherwise, suchhours shall be credited in the following Plan Year.
1.24 Non-Employer StockAccount. The account maintained for aParticipant torecord the amounts realized pursuant to Section 5.16 and adjustments relating thereto.
1.25 Non-Employer Securities Portionof the Plan.The portionof the Planconsisting of the Non-Employer StockAccount which holdsthe proceeds of a tenderoffer, exchange or other sale or disposition ofEmployer Stock pursuant to Section 5.16.
1.26 Normal Retirement Date. Thefirst day of the monthcoincident withor nextfollowing the date on which a Participant attains the age ofsixty-five (65) years. A Participant’sright to his retirement benefits shall becomenon-forfeitable upon his attainment of agesixty-five (65).
1.27 Participant. AnyEmployee who has qualified underthe terms of the Plan for participation therein and who remains so qualified.
1.28 Plan. The Plan and Trustset forth herein, as amendedfrom time to time, which shallbe known as the Employee Stock Ownership Planand Trust of SouthwestGeorgia Financial Corporation, isintended to qualifyas anemployee stock ownershipplan as definedin Section4975(e)(7) ofthe Code, which is designed toprimarily invest inqualifying employersecurities.
1.29 PlanAdministrator. The ESOP Committee, or in its absence, the Company or any administrative committee appointed for that purpose by theCompany.
1.30 | Plan Year. January 1 through the next following December 31. |
1.31 | Qualified Election Period. The six(6) PlanYear periods beginning with later of |
(a) | the first PlanYear in whichthe relevant Participantfirst became an EligibleParticipant,or |
(b) | the first Plan Year beginning after December 31, 1986. |
1.32 Service. AParticipant’s period of employment withthe Employer, or any predecessor of theEmployer, whether a corporation,partnership or sole proprietorship, andanycorporation, sole proprietorshipor partnership that is amember of acontrolled groupofcorporations thatincludes the Employer, or isunder commoncontrol, or is amember of an affiliated service group thatincludes the Employer, or isrelated through the leasing ofemployees, as determined under Code Section 414(b), (c), (m) and (n).
1.33 Trust (or Trust Fund). The fund knownas the Employee Stock OwnershipPlan Trust of SouthwestGeorgia Financial Corporation,maintained inaccordance withthe terms of the trust agreement, as amended from time to time, which constitutes a part of the Plan.
1.34 Trustee. Southwest GeorgiaBank, a statebanking association, andanysuccessor trustee(s) designated inthe manner provided inthe Planand accepting such trustas provided herein.
1.35 Valuation Date. The periodicand regularly scheduled date(s)for valuationof the individual investmentfunds ofthe Trust and therespective Non-Employer Stock Accountsof Participants.
1.36 Year of Service. The applicable12-month period duringwhich the Employeecompletes at least 1,000Hours ofService. Year of Service shall includepast service withanyEmployerto the extent provided hereunder, provided there shall be no duplication of benefits.
ARTICLE II
PARTICIPATION ANDSERVICE
2.1 Participation
(a) Participation Requirements Prior to January 1, 1993.An Employee shallbecome aParticipant as of the January 1 or July 1(the “EntryDate”) coincident withor next following the date on whichthe Employee first completes two (2) Yearsof Service,provided thatsuch Employee isEmployed onsuch EntryDate. Notwithstanding the foregoing,an Employee who was activelyemployed on January 7, 1991 shall become a Participant on January 7, 1991 and shall be eligible for an allocation of theEmployer’s contribution for the PlanYear ending December 31, 1991 inaccordance with Section 4.3 based on hisAnnual Compensationduring such PlanYear withoutregard to hisHours of Service forsuch Plan Year provided he is in activeEmployment on December 31, 1991.
(b) Participation Requirementsfrom January 1, 1993 throughMay 31, 1997.An Employee who is firstcredited with anHour of Service onor before May 31, 1997who did not become a Participant prior to January 1, 1993 shall be eligible to participate on(i) January1, 1993if the Employee hascompleted a ninety (90) dayevaluation period onor before January 1, 1993,or (ii) inthe case of anyother eligible Employee,the first dayofthe monthfollowing the completionof a ninety(90) dayevaluation periodwhich shallbegin onthe first date the Employee is credited with an Hour of Service, provided theEmployee isemployed on suchdate. AnEmployee who isemployedin a janitorial position shall not be eligible to participate.
(c) Participation RequirementsEffective as of June 1, 1997.An Employee who isfirst credited with an Hour of Service onor after June 1, 1997shall become aParticipant on the first day of the month following the date on which the Employee completes two (2) Yearsof Service,provided thatsuch Employee isEmployed onsuch date. An Employee who isemployed in ajanitorial position shall not be eligible to participate.
(d) Computationof Service. For purposes of determining an Employee’s eligibility to participateunder Section 2.1,the computationperiod initially tobe takeninto account todetermine whetherthe Employee hascompleted aYear of Service shallbe the 12-month period commencing withthe dateof theEmployee’s Employment.In theevent thatthe Employee fails tobe credited withat least 1,000Hours of Service during this initialcomputation period, the eligibilitycomputation period shallbe thefirst PlanYear commencingafter the Employee’s dateof Employment and succeeding PlanYears. Ifthe Employee is credited withat least 1,000Hours of Service duringthe 12-monthperiod commencing withthe
date of the Employee’s Employment, the computationperiod used todetermine whetherthe Employee has been credited withthe secondYear of Service, shall bethe 12-monthperiod beginning onthe first anniversary ofthe Employee’s Employment commencement dateand,ifnecessary, succeeding yearsbased on the Employee’s date ofEmployment.
(e) Service withAcquired Employers. If an Employeewas employedbyan employer who was acquiredbythe Company oran affiliate of the Company(either as anacquisition of stock orassets), for purposesof determining the Employee’s eligibility toparticipate, the Employee’s last continuousperiod of service withsuch acquired employer shallbe creditedonly as provided in Schedule A.
(f) Participation ExclusionEffective asofMay 1, 1999. Notwithstanding theother provisionsof thisSection2.1,effective May 1, 1999,any Employeewho isemployedon an exclusively commissioned basis shall not be eligible to participate in the Plan.
2.2 Service. AParticipant’s eligibilityfor benefits underthe Plan shallbe based on his Years of Service determined as follows:
(a) Service Prior to the AdoptionDate. With regard to anEmployee who wasEmployed onthe AdoptionDate, his Yearsof Service with theEmployer prior toand includingthe Adoption Date shallbe counted as Service hereunder, including periods of AuthorizedLeave of Absence. In addition,an Employee’s Yearsof Service with MoultrieNational Bank (now, Southwest Georgia Bank) prior to the Adoption Date shall be counted as Service hereunder.
(b) Service Fromand Afterthe AdoptionDate. Subject tosubsection (a) andthe provisionswhich follow,an Employee shallaccrue aYear of Servicefor each PlanYear inwhich hehas 1,000or more Hours of Service. Provided,however, thatif the Employeehas completed at least 1,000Hours of Service duringthe 12-month period commencing onthe dateof hisEmployment andsuch period overlaps two PlanYears inneither of which has theEmployee completed at least 1,000Hours of Service,he shall neverthelessbe credited with aYear of Service forthe PlanYear in which he becomes a Participant (or inwhich he becomeseligible for re-participation) in the Plan.
(c) Service of AcquiredEmployers. If an Employee wasemployedby anEmployer who was acquiredbythe Company oran affiliateof the Company(eitherby acquisitionof stock orassets), forpurposes of determining the Employer’s eligibility toparticipate, the Employee’s lastcontinuous periodof service with suchacquired Employer shallbe creditedonly as provided in Schedule A.
2.3 Effect ofBreak inService. In the event a Participant,or an Employee whowas not aParticipant, incurs aBreak inService, the following provisionsshall apply tohis participation in the Plan:
(a) AParticipant shall remain aParticipant untilsuch timeas he incurs aBreak in Service;
(b) In the case of an Employeewho was a Participantwhen he incurred aBreak in Service, he will again be considered aParticipant on the date hecompletes one HourofService after the Break in Service; and
(c) If anEmployee who is not a Participanthas aBreak in Service, he must satisfythe eligibility requirementsof Section 2.1for participation as if he were a newEmployee whose Employment commenced onthe first date thathe completed an Hour of Service after the lastdate of the computationperiod in which the Break in Service occurred, provided that hisearlier period ofservice willbe counted if his Break in Service period does not equal or exceed fiveyears.
(d) ComputationPeriod. The PlanYear shall bethe computationperiod forpurposes of determining whether aBreak inService has occurred. The first Plan Year computationperiod for thispurpose shallbe, inthe case of Employees whowere Participantsonthe Effective Date, the PlanYear commencing on said dateand shallbe, inthe case ofEmployees who thereafter become Participants,the PlanYear which includesthe last day ofthe computation period during which the Participant satisfies the requirements forparticipation as set forth in Section 2.1 above.
(e) Maternity orPaternity Leave. In the case of an Employee who isabsent from Employment on accountof (i) the Employee’s pregnancy, (ii)the birthof a childof the Employee, (iii)the placementof a child withthe Employee in connection withthe adoptionof the child by theEmployee or(iv) an absence due tothe need for caring forsuch child for aperiod beginning immediatelyfollowing such birthor placement, the Plan shalltreat as Hours ofService, solelyfor purposesof determining whether aBreak in Servicehas occurred, the following hours:
(i) the Hours of Service which otherwise would normally have beencredited to such Employeebut for such absence; or
(ii) if the Hours of Service in(i)cannot be determined,then eight (8) Hours of Service for each day of such absence.
However, such Hours of Service credited under this Section2.3(e) shallnot exceed 501 Hours of Service for each such absence.
The Hours of Service creditedunder this Section2.3(e) shallbe credited inthe Plan Year in which the absence beginsonly if an Employee would be prevented from incurring aBreak inservice insuch PlanYear.Inany othercase, such hours shallbe credited inthe immediatelyfollowing PlanYear. The Employee shall notbe entitled toreceive credit for maternity or paternity leave under this Section 2.3(e) unless suchEmployee furnishes to the Plan Administrator withinsuch reasonable time periodas the Plan Administratormayestablish evidence thatthe absence is onaccount of one of the four (4) reasons specified inthe first paragraph of this Section 2.3(e)and evidence of the duration of such absence.
For purposes of determining whether a Break in Service has occurred for purposesof participation and vesting withrespect toan Employee who returns towork following an FMLA Leave, for periods onand after August 5, 1993, any periodof unpaidFMLALeave shall
notbe treated as or countedtoward aBreak inService. Unpaid FMLALeave shall not becounted inHours of Service except tothe extentHours of Serviceare otherwise credited forany unpaid leave of absence by theEmployer.
2.4 Inactive Account Status.Inthe event that any Participant(excluding an Employee whose employment isterminated) completes more than 500Hours of Service but lessthan 1,000Hours of Service inany PlanYear of hisparticipation, or if during a PlanYear aParticipant has no morethan 500 Hours of Service but is onan AuthorizedLeave of Absence which wouldprevent himfrom having aBreak inService, hisEmployer ContributionAccount shall be placed on inactivestatus. In such case, such Plan Year shall not be considered as a Yearof Service, andthe Participant shall not share inthe Employer’s contributionallocations madepursuant to Section 4.3foranysuch PlanYear, buthe shall continue toreceive incomeallocations in accordance with Section 4.2.In theevent such Participanthas 1,000Hours ofService in a subsequentPlan Year, his Employer Contribution Account shallrevert to active status for such Plan Year with full rights and privileges under this Plan restored.
2.5 Transfers ofEmployment AmongEmployers. Subject to Section 2.3, incomputing Service hereunder,the period ofan Employee’semployment with any other memberof agroup of related employerswhich includes theEmployer shallbe countedfor participationand vesting purposes, and a transfer of anEmployee from the employ of one suchmember to the employ of another member shall notinterrupt Employment. Relatedemployers shall bedetermined under Code Section414(b), (c), (m)and (n) toinclude members of a controlledgroup of corporations,trades or businesses under commoncontrol, members of an affiliatedservice group, and entities related through the leasing ofemployees. In the event any Participantduring the courseof any PlanYear isemployed simultaneously by morethan one such member,he shall be entitled to an allocationunder Section 4.3hereof by taking into account his aggregateAnnual Compensationfrom such simultaneousmembers. Further, if the Employee was previouslyEmployed in a jobclassification whichprecludes such Employee from participation inthe Plan, his Employment insuch jobclassification shallcount as Service hereunder for eligibility purposes.
2.6 Election Not toParticipate. An Employee who iseligible to participate in the Plan mayelect in a writing directed to the PlanAdministrator not to participate forthe PlanYears specified in suchwriting. Effective January 1, 2002,an Employee, leasedemployee, independent contractor, Beneficiary orother person with anyclaim to benefitsunder the Planwho provides the PlanAdministrator with a knowing, voluntary andirrevocable waiver ofbenefits under the Plan in aform satisfactory tothe Plan Administrator shall notbe eligible to participate in or receive benefits from the Plan and shall be treated for all purposes asineligible.
2.7 | Qualified MilitaryService. |
(a) USERRA Provisions.Notwithstandingany provisionof this Plan to thecontrary, contributions, benefits, and service credit with respect to qualified military service shall be provided as required under Code Section 414(u).
(b) | HEART Provisions. |
(i) Death Benefits.In thecase of deaths occurring on or after January 1, 2007,if a Participantdies while performingqualified military serviceas defined in Code Section 414(u), the Participant’s surviving spouse or Beneficiary shall be entitled to anyadditional benefitsas described inCode Section 401(a)(37) (otherthan benefit accruals relating to the period of qualified militaryservice) and which are provided under the Plan as if the Participant had resumed and then terminatedEmployment on account ofdeath.
(ii) ContinuedBenefit Accruals.In thecase of deathsor total andpermanent disabilitiesoccurring onor after January 1, 2007,the Planshall notprovide anycontinued benefitaccruals under the Plan inthe case of aParticipant who diesor becomes totally and permanently disabled while performing qualified military service.
(iii) Differential Wage Payments. For Plan Years beginning on orafter January 1, 2009,if a Participant on qualified military servicereceives adifferential wagepayment (as defined inCode Section3401(h)(2)), he orshe shall betreated as anEmployee ofthe Employer makingthe payment, and the differential wagepayment shallbe treatedas compensationfor all purposes ofapplying theCode except for purposes of determining contributions and benefits under the Plan.
ARTICLE III CONTRIBUTIONS
3.1 Employer Contributions.For solong as the Plancontinues ineffect, the
Employermay make a contribution annually tothe Trust for allocation tothe accounts of all Participantsor former Participants asprovided in Section4.3(a). The Employer’s contribution shallbe made in(i)cash, (ii)property acceptable tothe Trustee and approvedby the Plan Administrator,or (iii)Employer Stock (as definedherein), or any combinationof the foregoing. The amountof each such contributionto the Trust shallbe determined bythe Board of Directorsof the Employer, taking intoconsideration the then prevailing financial conditionsand fiscal requirements of the Employer and such other factorsas the Board of Directors maydeem pertinent and applicable under the circumstances. In noevent shallthe annual contributionbe lessthan an amountnecessary, when added toother available funds held bythe Plan, to pay thecurrent amounts due (if any) under any loans or purchase money obligations incurred by the Planfor the purpose of purchasing sharesof Employer Stock.The contributions by theEmployer shallbe credited to theEmployer ContributionAccounts of Participants inaccordance withArticle IV. TheEmployer shall pay tothe Trustee its contribution for each PlanYear not laterthan the close of such PlanYear or withinsuch other period thereafter as isdescribed in Code Section404(a)(6).
In noevent shallthe contributionbythe Employer be greater than the amountdeductiblebythe Employerfor federal income tax purposesfor the taxableyear withrespect to whichthe same ismade, plussuch additional amountas maybedeductiblebyreason of a deduction carryforward from aprior year oryears when less thatthe maximumdeductible amountwas actually contributed, except in anticipationof afuture contributionof lessthan the maximumamount deductible withrespect tosuch future year andthe carry-forward to such futureyear of the
current excess contributionfor deduction purposesunder applicable statutesand regulations. The contribution provisions of Code Section 404(a)(9) shall apply to the Plan and, inaccordance with such provisions, additional contributions may be made to the Plan for the purposes specified in such provisions.
No contributions by Participants shall be permitted under this Plan.
3.2 Fund for ExclusiveBenefit of Participants. All assets of the Trust Fund shall beheld hereunder forthe exclusivebenefit of the Participantsand their Beneficiaries for the purpose of distributing tosuch Participantsand Beneficiaries the corpus andincome of the TrustFund in accordance withthe provisions ofArticle Vhereof. No part of the Trust Fund corpusorincome shallbe used foror diverted to purposesother than for the exclusivebenefit of Participantsand Beneficiaries under the Plan, whetherby operation of lawor natural terminationof contracts,by powerof revocation or amendment,by the happeningof acontingency,bycollateral arrangement orby anyother means; provided thatthe Employer hereby reservesthe right to amend or revoke the Plan at any time as provided in Articles IX and Xhereof.
To the extentpermittedby the Codeand applicablerules and regulationsthereunder and notwithstanding anything herein tothe contrary, uponthe Employer’s request, acontribution which was madeby amistake of fact, or conditioned uponthe initialqualification of the Planor uponthe deductibilityofthe contribution underCode Section 404, shallbe returned to theEmployer withinoneyearafter the payment ofthe contributions,the denial of the qualified statusof the Planor the disallowance ofthe deduction forsuch contribution(to the extentdisallowed), whichever is applicable.
3.3 Special Limitation on Allocations for PlanYears to Which Code Section415(c)(6) Applies. For anyPlan Year towhich the special limitationof Code Section415(c)(6) shallotherwise apply, nomore than one-third (1/3)of the Employer contributionsfor the PlanYear shallbe allocated tothe accounts of Highly CompensatedEmployees (within the meaning of Code Section 414(q)).
ARTICLE IV
INTERESTS OFPARTICIPANTS
4.1 Accounts of Participants. The Trustee shall maintainan Employer Contribution
Account for each Participant towhich contributionsmade under the Plan shallbe creditedand aNon-Employer StockAccount for each Participantwho tenders, exchanges or otherwise sellsEmployer Stock pursuant to Section 5.16.TheParticipant’s Employer ContributionAccount may, if necessary in the view of the Trustee, be subdivided intosubaccounts to reflect allocationsof Employer Stock andallocations of non-Employer Stockassets (“Other Assets”) in eachParticipant’s Employer ContributionAccount. The Participant’s Non-Employer Stock Account may also be divided into subaccounts as deemed advisable by the Trustee.
4.2 Allocationof Shares ofEmployer Stock,Income, Expense, Fluctuations inAsset Value, Etc.
(a) InGeneral. As ofthe closeof business oneach Annual Valuation Date, the Trustee shall determine, insuch reasonable ways and from such informationas it may deemappropriate, the fair market valueof the Trust Fund.Inmaking this determination,the value ofEmployer Stock shallbe itsfair market value onsuch Annual Valuation Date as determined as the closing price on the last trading date in the month in which the Annual Valuation Date occurs or, if theEmployer Stock is not publicly traded, byan independent appraisal by a person selected bythe Plan Administratorand acceptable tothe Trusteewho customarilymakes such appraisalsand meets the requirementsof theregulations under Code Section170(a)(1). After such determination ismade of the fair market valueof the Trust Fund, theTrustee shall makeappropriate adjustments inthe Employer ContributionAccounts of all Participants, former Participantsand Beneficiaries who have unpaidbalances intheir accountsat such time, byallocating pro rataamong such accountsbased onthe respective balancesthereof as of the next preceding Annual ValuationDate (but after firstreducing each such accountbalance by any distributionfrom the accountduring the PlanYear then ending), anyincreases and decreases inthe value of the assets of the Trust Fund andany income(other than contributions),expenses, and realized gains and losses of the Trust Fund since such preceding Annual Valuation Date.
(b) Dividends onEmployer Stock.To the extent permittedbylaw, the dividends(if any) paid during a PlanYear onEmployer Stock heldby the Plan (whetherallocated or unallocated toParticipants’ accounts) maybeused topay debt onoutstanding borrowings, to payadministrative or other Plan expenses,or, inthe discretion of the Plan Administrator,be paid incash to Participants inthe Plan in accordance withthe respective number of shares ofEmployer Stock allocable toeach Participant’s accountas of the Annual Valuation Date immediately preceding the dividendpayment date.
If dividends on allocated sharesof Employer Stockare used topaydebt onoutstanding borrowings, there shallbe transferredfrom the suspense account of unallocated shares ofEmployer Stock to the accounts of Participants to which the dividends would have beenallocated the number of shares of Employer Stock equal in value to the amount of dividendsthat wouldhave been allocated tosuch accounts, but forthe use of such dividends tomake payments onborrowings. Suchallocation of sharesfrom thesuspense account shallbe made in the PlanYear inwhich the dividends wouldotherwise havebeen allocated. If dividendsare paid to Participants, they shallbe paid notlater than ninety(90) days after the close of the PlanYear in which such dividends are paid to the Trust. The direction by the Plan Administrator, which maybe acontinuing direction, to paysuch dividends toParticipants shallbe made inwriting tothe Trusteeby the Plan Administratorat least thirty(30) days prior to a dividendpayment date. Inthe eventany dividends onEmployer Stockare heldbythe Planfor atwo-year periodor longer, theymay only bedistributed incash if the provisionsof Article Vregarding cash distributionsare satisfied.
4.3 | Allocation ofEmployer Contributions. |
(a) InGeneral. For PlanYears beginning on orafter January 1, 1997,as ofeach Annual ValuationDate, andafter the allocationsprovided in Section 4.2above, the current
contributionof the Employer shall be allocated tothe Employer ContributionAccounts of(i)all Participantswho are activeEmployees on the last day of such Plan Year and who have a YearofService for such year, and (ii) all retirees and disabled Participants who have not elected pursuant to Sections 5.1, 5.2or5.3 to have their Account Balances determined asof the Annual Valuation Date nextpreceding theirdates of retirement, inthe same proportion as the Annual Compensationof each suchParticipant or former Participant bears to the aggregateAnnual Compensation of all such Participants during such year.
For PlanYears beginning onor after January 1, 1993(but before January 1, 1997), as of each Annual Valuation Date, and after the allocations provided in Section 4.2above, the current contributionof the Employer shallbe allocated tothe Employer ContributionAccounts of (i)all Participantswho are active Employees onthe last day ofsuch PlanYear, and
(ii) all Participantswho retired or become totallyand permanently disabled(as defined in Section 5.2) duringthe PlanYear, and who have notelected pursuant to Sections 5.1, 5.2or 5.3 to have their Account Balances determined as of the Annual Valuation Date next preceding theirdates ofretirement, inthe same proportion as the Annual Compensationof each such Participant or former Participant bears to the aggregateAnnual Compensation of all such Participants duringsuchyear, without regard tothe number of Hours of Service credited tosuch Participant or former Participant for such Plan Year.
For PlanYears ending onand after August 5, 1993,an Employee onFMLA Leave on the last day of the Plan Year who returns to work following such FMLA Leave shall be deemed to have been an activeEmployee on the last day of such Plan Year.
(b) Allocationof Suspense Account Employer Stock.The Trustee shall maintain asuspense account towhich it shall credit allborrowings (loans,purchasemoneyobligations, etc.) madeby it to purchaseEmployer Stock and to which it shall debit all shares ofEmployer Stockwhich are purchased withsuch borrowed funds. The shares inthe suspense account shall notbe allocated exceptas the sharesare released from the suspense account as provided for in this subsection4.3(b).
Except incircumstances where the Plan Administratorand the Trusteeagree on adifferent method, a suspense account established hereunder shall be handled as follows: oneachAnnual Valuation Date,the Trustee shall releaseshares ofEmployer Stock inthe suspense account for allocation tothe accountsof Participantswho are eligible to share in theEmployer’s contributionfor such year. The number of shares tobe released oneach Annual Valuation Date shallbe equal tothe number of encumbered securitiesheld immediatelybefore releasefor the current Plan Year multiplied by afraction, thenumerator of which is the amount of principal andinterest paid for such yearand the denominator ofwhich isthe sumof the principal and interest tobe paid forsuch year and for all future years.If the interest rate is variable,future interest shall be projected using the interest rate applicable as of the end of the PlanYear. Such releasedshares of Employer Stock shall be allocated to the eligible Participants’ Employer Contribution Accounts in the manner provided in subsection (a)above.
(c) Earnings onAdvance Employer Contributions.Earnings onadvance Employer contributions shallbe allocated to eligible Participants’ Employer Contribution Accounts in the manner provided in subsection (a)above.
4.4 | Maximum Additions. |
(a) The Annual Additions made tothe accountsof aParticipant forany PlanYear shall not exceed the lesserof: (i)$52,000 for PlanYears beginningafter December 31, 2013,as adjusted for increases inthe cost-of-living under Section 415(d)of the Code; or (ii)100% of the Participant’sannual compensation, withinthe meaning of Code Section415(c)(3), for the PlanYear. The annual compensation limit referred to in item (ii) aboveshall not apply to anycontribution for medical benefitsafter separationfrom service (withinthe meaning of CodeSection401(h) or Section 419A(f)(2)) which is otherwise treated as an annual addition.
(b) For purposesof this Section 4.4, “compensation”means compensation as defined inCode Section415(c)(3). Compensation shall include elective deferrals under Code Sections402(g), 125and 457,and elective amounts thatare notincludible inthe Participant’s gross incomebyreason of Code Section132(f)(4). Effective for PlanYears beginning on orafter July 1, 2007, “compensation” shallbe adjustedfor regular pay paidafter severance from employment if such amount ispaid bythe later of within 21/2 monthsafter aseverance from employment (withinthe meaning of Code Section401(k)(2)(B)(i)(I)) or by the endof the limitation year that includes the date of such severance fromemployment and if:
(i) the payment is regularcompensation for services during theParticipant’s regular working hours, or compensationfor services outsidethe Participant’s regular working hours (such as overtimeor shiftdifferential), commission, bonuses, or other similarpayments paid after aParticipant’s severance fromemployment withthe Employer maintaining the Plan(or anyother entitythat istreated as theEmployer pursuant to Section414(b), (c), (m), or (o) of the Code), and
(ii) the payment would havebeen paid tothe Employee if the Employment had continued.
Any otherpayment of compensation paid afterseverance of employment that isnotdescribed in this subsection(b) is not consideredcompensation withthe meaning of Section 415(c)(3) of the Code, even ifpayment is made within the time period specified above.
(c) | ExcessAllocations. |
(i) For Limitation Years Prior toJuly 1, 2007.If such Annual Additions withrespect toanyParticipant forany PlanYear wouldexceed the limitationsset forth in this Section 4.4,such excessAnnual Additions shallbe treated in accordance with the following as applicable:
(1) First, anyEmployee contributionsmadebythe Participantwhich would constitute excessAnnual Additionsfor the PlanYear shall be returned to the Participant.
(2) Second, anyremaining excessAnnual Additions shallbereallocated toother Participants inaccordance withthe method of allocation under Section 4.3hereof tothe extent thatsuch allocations do notcause the
Annual Additions to anysuch otherParticipant’s Account to exceedthe limitations set forth in this Section 4.4.
(3) To the extent thatsuch allocation or reallocation of excess amountscauses the limitationset forth in thisSection4.4 tobe exceeded withrespect toeach participantfor the Plan Year,then such amounts willbe heldunallocated in a suspense account, to be allocated in the next Plan Year(s) inaccordance with Section 4.3hereof. If such a suspense account is in existenceat any time inaccordance with this provision, allamounts insuch suspense account mustbe allocated before anyEmployer contributionsand Employee contributionwhich would constitutesuch Annual Additions may be made to the Plan.Investment gainsand lossesand other income shall notbe allocated tosuch suspense account. Upon terminationof the Plan, anyamount remaining insuch suspense account which is unallowable shall revert to theEmployer.
(ii) For Limitation Years Beginning On or AfterJuly 1, 2007.Ifsuch Annual Additions withrespect toany Participantforany PlanYear wouldexceedthelimitations set forth inthis Section 4.4,such excessAnnual Additions shallbe treatedinaccordance withthe final regulations relating toCode Section 415 thatwere madeeffective July 1, 2007. Suchfinal regulations do notinclude the correction methodsfor excess annual additions that were previously in Section1.415-6(b)(6) of the 1981 Income TaxRegulations. TheCommittee ispermitted to implement correctionsusing these methods; provided, the Plan satisfies the eligibilityrequirements forself-correction underthe Employee PlansCompliance ResolutionSystem pursuant toRev. Proc.2006-27, asamended and modified by the Internal Revenue Service from time to time.
(d) For purposesof this Section 4.4,the following definitionsand rules ofinterpretation shall apply:
(i) The “Annual Addition”of aParticipant means amountstreated as Employer contributions, plusthe Participant’s contributions(ifany). Withrespect to defined contribution plans under which forfeitures can occur, Annual Additions shall alsoinclude anyforfeitures allocable duringthe PlanYear. Further, amountsallocated toan individual medical benefitaccount, as defined in Code Section415(1)(2), which is part of a defined benefitplan maintained bythe Employer shallbe treatedas Annual Additions to a contributionplan. In noevent shall thisbe construed as applying the limitationsofCode Section415(c)(1)(B) to individual medicalaccounts or post-retirement medicalbenefits. Rollover contributionsare also not treatedas Annual Additions.For purposesof clarity, restorativepayments allocated to a Participant’s Account Balance resultfrom actions (or a failure to act) by afiduciary for which there is a reasonable riskof liabilityunder Title I ofERISA or under other applicable federalor state law,where similarly situated Participants are similarly treated, shall not constitute an Annual Addition.
(ii) “Dollar Limitation” meansthe limitationprovided inCode Section415(c)(1)(A) (adjusted in accordance withregulations ofthe Secretary ofthe Treasury) as in effect for the particular Plan Year.
(iii) For purposes of computing the maximumallocation under Section4.4(a), all defined contribution plans (whether or not terminated) of theEmployer shall be treated as one defined contribution plan.
(iv) Whenthe term Employer isused inthis Section, it shallmean theEmployer andany othercorporation or divisionwhich is a member of acontrolled group of corporations(within the meaning of Code Section414(b), as modifiedby Code Section 415(h)) of which theEmployer is also a member.
(e) In addition toother limitations set forth inthe Plan and notwithstanding any other provisionof the Plan,the Annual Additionsunder the Plan(and allother defined contributionplans required tobe aggregated with this Planunder Code Section415) shallnotincrease toan amount in excess ofthe amountpermitted (when considered with all otheraggregated plans oftheEmployer) under Code Section 415.
(f) If no morethan one-third of the Employer contributionsfor a PlanYear are allocated tothe accountsof highly compensatedemployees (as defined inCode Section414(q)), then, forpurposes of determining allocations toParticipant accounts under this Section 4.4,Employer contributionswhich are deductible under Code Section404(a)(9)(B) and charged against Participant accounts shall notbe included, inaccordance withCode Section415(c)(6).
4.5 | Directed Investments By Eligible Participants. |
(a) In General.Each Eligible Participant shall,duringanyQualified Election Period,be permitted todirect theinvestment of hisEmployer ContributionAccount inaccordance withthe provisionsof this Section4.5. Each Eligible Participant mayelect, in awriting delivered tothe Plan Administratorwithin ninety(90) days after the close of each PlanYear inthe Qualified Election Period, todirect the investmentof twenty-five percent (25%) ofsuch Participant’s AccountBalance inthe Planattributable toEmployer Stockcontributed toor acquired bythe Plan afterDecember 31, 1986,determined as of the AnnualValuation Dateforthe Plan Year precedingthe Plan Year in which such election is made (to the extent such portionexceeds the amount to which aprior election under this Section 4.5 applies);provided, however, that inthe case of the electionyear inwhich the Participant ispermitted tomake hislast such election, fifty percent (50%) shall be substitutedfor twenty-five percent (25%) inapplying this Section 4.5.AnyEmployer Stock diversified under this Section 4.5 shall be valued based on theclosing sale price of theEmployer Stockas ofthe last trading dayofthe calendar month immediately preceding the month in which the diversificationtakes place.
For purposes of this Section 4.5, a Participant’s Account Balance at the end of any PlanYear shallbe deemed not toincludeany amountsallocated to a Participant’sAccount orcontributed tothe Planafter the end of such PlanYear, evenif allocated as of the end of such PlanYear. The Plan shalloffer atleast three (3) investment options for Eligible Participantswhich are permissible under regulations issued under theCode.Any investment or reinvestmentmade pursuant to this Section 4.5 shallbe made within areasonable timeafter the Participant’swritten election isdelivered tothe PlanAdministrator, but in anyevent within ninety(90) days of the 90-dayperiod set forth in Section4.5(a). No fiduciary of the Plan shallhaveany liability
for investmentsand reinvestments made under thisSection 4.5pursuant tothe direction of an Eligible Participant. The Account Balance ofan Eligible Participantwho directs the investmentof a portionof his Account Balance shallbe charged with all costs and expensesof such investment or reinvestment or of any other transaction hereunder at the request of the Participant,as well as all income, gains, losses,etc. attributable to such investment or reinvestment.
(b) Alternative To DirectedInvestments. In lieuof permitting directed investmentsbyEligible Participants as provided insubsection (a), the Companymay determineand direct that the portionof such Eligible Participant’s Account Balance which is actuallydirected for investmentby suchParticipant be (i)distributed tosuch Participant, or (ii)transferred to anotherqualified plan of theEmployer which accepts such transfers, provided thatsuch plan permitsemployee-directed investmentand does not invest inEmployer Stock to a substantialdegree. Such distribution or transfer shall be made within ninety (90)days of the 90- day period set forth in Section4.5(a)during which such Participant directed such investment.
4.6 | Investment of Non-Employer Stock Accounts. |
(a) Non-Employer Stock Accounts. The ESOP Committee may designate that allor a portionof the Non-Employer Stock Accountsbe invested in acollective trustfund or as otherwise permitted in Section 8.2.If permitted on anondiscriminatory basisbythe ESOP Committee, allor a portionof the amounts in aParticipant’s Non-Employer Stock Account(ifany) shallbe subject tothe investmentdirection of the Participant inaccordance withthe provisionsof subsection (b). The amount tobe invested at the direction of the Participant is referred to as the “Participant Directed Amount.”
(b) Investment Direction.Any directionby a Participantof the investment ofthe amountscredited to himunder the Plan,as described in Section4.6(a), shallbe made in accordance withthis subsection.
(i) A Participant shall direct the investment, or change the direction ofthe investment,of hisParticipant Directed Amountby delivering tothe Plan Administrator astatement on such form, or byfollowing such other procedure, as maybeprescribedbythe Plan Administrator,directing the investmentof his ParticipantDirected Amount intoany or allof the separate investment options selectedby the ESOP Committee and offered under thePlan. Such statement must be submitted within a statedperiod of timeprior tothe date for which it isto be effective as designatedbythe PlanAdministrator. The Plan Administrator may prescribedifferent periodsof timefor the initialdirection of the Participant Directed Amountand for subsequent changes of direction. A Participant shall be given the opportunity to change the investment directionof hisParticipant Directed Amountspursuant tothe uniform and nondiscriminatoryprocedures established by the PlanAdministrator. Any Participantdirection shallremain in effect until superseded by a subsequent direction, or until the complete distribution of aParticipant’s Non-Employer Stock Account.
(ii) If individual direction ispermitted, the Trustee shalluse itsbest efforts to ensure that eachParticipant isprovided such informationand rights toexercise control over hisNon-Employer Stock Accountas required to satisfyall of the conditions
tomake the Non-Employer Securities Portionof the Plan an “ERISA Section 404(c) plan” (within the meaning of the ERISA 404(c) regulations) and to make each election by a Participantsubject tothe relief provided underERISA 404(c). The Participant willhave the sole responsibility for the investment of his Participant Directed Amount amongthe available investment optionsand, to the extentpermittedby law, no Fiduciary orother person will have any liabilityforany lossor diminution invalue resulting fromParticipant’s exercise of such investmentresponsibility. The investment options may be changed,eliminated, or modified from time to time by the ESOP Committee.”
4.7 Code Section 1042 Transactions.Notwithstanding anything tothe contrarycontained herein,the provisionsof this Section 4.7 shall apply ifthe Planacquires Employer Stock in asale towhich Code Section 1042applies.Insuch event, noallocation of “Code Section 1042Assets” shall be made, directly orindirectly, under the Planor any other planwhich is qualified underCode Section 401(a) andwhich is maintained bythe Employer, to any“Disqualified Participant” for the “Applicable Period.” For purposes of this Section 4.7:
(a) “Code Section 1042Assets” shallmean assets ofthe Planattributable to(or allocable in lieu of) shares ofEmployer Stockacquired in a sale to whichCode Section1042applies.
(b) | “Disqualified Participant” shall mean: |
(i) the seller of such Employer Stock;
(ii) | any individual who is related (withinthe meaning of Code |
§267(b)) to such seller; or
(iii) anyperson who owns (afterapplication of Code Section 318(a), asapplied withoutregardtothe employee trust exceptionof Code Section 318(a)(2)(B)(i)),more than twenty-five percent (25%) of the outstanding portion of (1) any class of, or(2)the totalvalue of, stock of the Company or anymember of its controlledgroup of corporations (within the meaning of Code §409(l)(4)).
(c) | “Applicable Period” shall mean: |
(i) with respect to the individuals described in clauses (b)(i) and (b)(ii)hereof, the period beginning onthe date of suchsale and ending onthe later of (1) thedate which is ten(10)yearsafter the dateof suchsale, or (2) thedateofthe allocationunder the Plan that is attributable to the finalpayment on any loan, the proceeds of which are used to acquire suchEmployer Stock;
(ii) with respect to an individual described in clause (b)(iii) hereof who metthe requirements of such clause atany time duringthe oneyear periodending onthe date of such sale, all periods during which the Plan is in existence; and
(iii) with respect to an individual described in clause (b)(iii) hereof (but not inclause (c)(ii) hereof)who meetsthe requirementsof such clause on a dateas of which Code §1042 Assets are allocated, the date of such allocation.
ARTICLE V BENEFITS
5.1 Normal Retirement Benefits. AParticipant retiring underthe Planat hisNormal
Retirement Date shall be entitled to receive the entire amount of his Account Balance in the Plandetermined, withrespect tothe ESOP Account, as of the Annual ValuationDate immediatelypreceding the paymentof such Account, provided that the Employer Stock allocated to hisAccount shallbe valuedbased onthe closing sales price of the Employer Stockas of the last trading day ofthe calendar month immediatelypreceding the month inwhich payment commences and, withrespect tothe Non-Employer Securities Portionof the Plan, as of the Valuation Date coincident withor nextpreceding the date payment commences. The mannerof payment of benefitsdistributed pursuant to this Section 5.1 shall bedetermined under the provisions of Section 5.6.
5.2 DisabilityBenefits. In the event a Participant shallbecome totallyand permanently disabled (asdefined below), he shallbe entitled toretire under the Plan for disabilityand to receive the entire amount of his Account Balance in the Plan, with respect to the ESOPAccount, asof theAnnual Valuation Date immediately precedingthe payment of such Account, provided that theEmployer Stock allocated to his Account shall be valued based on theclosing sales priceof theEmployer Stock as of the lasttradingday ofthe calendar month immediatelypreceding the month inwhich payment commences and, withrespect tothe Non- Employer Securities Portionof the Plan, determinedas ofthe Valuation Date coincident with or nextpreceding the datepayment commences. Benefits pursuant to this Section 5.2 shall be distributedas indemnificationagainst theParticipant’s injury or illness,the mannerofthepayment of which shallbe determined as provided in Section 5.6. AParticipant shall beconsidered to be totallyand permanently disabledif he is eligible forbenefits under theEmployer’s long-term disability plan.
5.3 PostponedRetirement. If requiredby lawand forpurposes of thisPlan only, an Employeemayremain inthe service of the Employer after his NormalRetirement Date. In the event a Participant remains soemployed after hisNormal Retirement Date,he shallcontinue tobe a Participant justas if he had not yetreached hisNormal RetirementDate. When such aParticipant actually retires,he shallbe entitled toreceive the entire amountof hisAccount Balance inthe Plan determined, withrespect to the ESOPAccount, as ofthe Annual Valuation Date immediately precedingthe payment of suchAccount, provided thatthe Employer Stockallocated to hisAccount shallbe valued based onthe closing sales price ofthe Employer Stockas of the last trading dayof the calendar month immediately precedingthe month in whichpayment commences and, withrespect tothe Non-Employer Securities Portionof the Plan,as of the Valuation Date coincident with or next preceding the datepayment commences. The mannerof payment of benefitsdistributed pursuant to this Section 5.3 shall bedetermined as provided in Section 5.6.
5.4 Death Benefits. In the event of the death of aParticipant before his retirementhereunder, there shallbe payable to his Beneficiarythe entire interest ofthe Participant inthe Plan determined, withrespect to the ESOPAccount, as ofthe AnnualValuation Date immediatelypreceding the payment of such Account, provided thatthe Employer Stock
allocated to hisAccount shallbe valued based onthe closing sales price ofthe Employer Stockas of the last trading dayof the calendar month immediately precedingthe month in whichpayment commences and, withrespect tothe Non-Employer Securities Portionof the Plan,asof the Valuation Date coincident with or next preceding the datepayment commences.
5.5 | Benefits on Termination ofEmployment. |
(a) Benefits Payable Upon Termination of Employment.If aParticipant’s Service isterminated for anyreason other than hisretirement, death or totaland permanent disability, hisparticipation inthe Plan will terminate upon the occurrenceof a Break inService. Each Participant shall be fully vested in his AccountBalance. Upon incurring a oneyear Break inService, the Participant mayfile a writtenclaim for benefits withthe PlanAdministrator, on aform provided bythe Plan Administratorfor thatpurpose, requesting distributionof hisAccount Balance. Notwithstandingthe precedingsentence, effective as of May 1, 1999,if a Participanthas attained age 60 andhas completed 20 ormore Years of Serviceas of his termination ofEmployment, the Participant’s AccountBalance, uponrequest of theParticipant, will be distributedas soonas administratively practicablefollowing Participant’s termination ofEmployment. HisAccount Balance inthe Plan shallbe determined, with respect to the ESOPAccount, as ofthe AnnualValuation Date immediatelypreceding the paymentof such Account,provided thatthe Employer Stock allocated to hisAccount shall be valuedbased on the closingsales price ofthe Employer Stockas of the lasttrading day ofthe calendar month immediatelypreceding the month inwhich payment commencesand, withrespect tothe Non-Employer Securities Portionof the Plan,as of the Valuation Date coincident withor next preceding the datepayment commences.
(b) Timeof Payment. Such amounts shallbe payable to aParticipant who terminates Employment, insuch mannerand oversuch periodof time asthe Participant maydetermine inaccordance with Section 5.6.Pending commencementof payment thereof, the amount sopayable shallbe maintained as provided in Section 5.10hereof. Suchpaymentshall be made to and accepted by the Participant in full and final satisfaction andsettlement of any and all of his claims and rights under the Plan and in the Trust Fund.
In the event a formerParticipant entitled tobenefits under this Section 5.5dies before such benefits shall have been paid in full, then the remainder of his Account Balance shall bepayable to hisBeneficiary.
(c) Lump SumPaymentofValue of Small Benefits.Notwithstandinganyother provision of the Plan, and irrespective of whether a Participant elects to defer receipt of hisVested Interest under subsections(a) or (b) of this Section 5.5, any benefitspayableunder the Plan maybepaid as a lump sum distributionof the Account Balance of aParticipant under thefollowing circumstances:
(i) If theParticipant’s AccountBalance is not in excessof $5,000,then the PlanAdministrator shalldirect thepaymentof such Account Balance in a lump sum tosuch Participant or hisBeneficiary within an administrativelypracticable time after the occurrence of the event which entitles suchParticipant to adistribution.Inthe event of a distributionunder this Section 5.5(c)(i) in excessof $1,000, ifthe Member
does notelect to havesuch distributionpaid directly toan Eligible Retirement Planspecifiedbythe Member in a Direct Rollover in accordance with Section 5.18ortoreceive the distributiondirectly, then the Plan Administrator will paythe distributionin aDirect Rollover to an Eligible Retirement Plan designatedbythe Plan Administrator.
(ii) If the Participant’s Account Balance exceeds $5,000,then with the written consent of the Participant, the Plan Administrator shall direct thepayment of suchAccount Balance in a lump sum to such Participant or hisBeneficiary.
5.6 Payment ofBenefits. The benefits towhich aretiring, disabledor terminatedParticipant is entitled upon hisretirement, disability or othertermination of Employment under Sections 5.1, 5.2, 5.3or 5.5, as the case may be, shall be paid as elected by the Participant in one of theways described in this Section 5.6.Any such election shall be exercised by such person inwriting filed with the Plan Administrator within the period specified in such Section 5.1, 5.2, 5.3or 5.5,as the casemay be.The available optionalmodes of payment of benefitsunder the Planare as follows:
(a) distribution in full (lump sum) during anysingle calendaryear;
(b) annual installmentsfor aperiod not toexceed fifteen (15)yearsor the life expectancy of the Participant or the life expectancy of the Participant and his spouse, ifany; or
(c) | any combination of the above. |
If aParticipant diesbefore the commencement of distributionof his benefits,the Beneficiarymay elect any ofthe alternative formsof payment under(a), (b)or (c) above whichotherwise could have beenelectedbythe Participant;provided, however, thatthe Participant’s Account Balance shall be distributed within five (5)years from the date of the Participant’s death if the Beneficiary is not an individual or if the Beneficiary is an individual and elects a lump sumdistribution. Provided,further, thatany installments shallbegin withinoneyearof the Participant’s death and continue for a period notexceeding the Beneficiary’s life expectancyifthe Beneficiary isan individualor continue for aperiod of not more than five (5)yearsfrom thedate of the Participant’s death if the Beneficiary is not an individual.
Ifany distributionincludes an insurance contract,such insurance contract shall not permit a form of distribution other than a form permitted under this Section.
Distributionof a Participant’sAccount Balance willbe made in whole sharesofEmployer Stock,cash or a combinationof both,as determinedby the Plan Administrator;provided, however, that a Participant (or hisBeneficiary) shall havethe right to demand distributionof his AccountBalance entirely in whole shares ofEmployer Stock, withthe valueof any fractional sharespaid incash. Notwithstanding thepreceding sentence, ifthe bylaws orcharter of theEmployer restrictthe ownershipof substantiallyall outstanding employersecurities toemployees or a trust described in Code Section 401(a), distribution of a Participant’sAccount Balance will be made in cash.
If Employer securities(acquired withthe proceedsof an exemptloan) which are tobe distributedunder the Planconsist of more than one class, the partyreceiving the distribution must receive substantially the same proportion of each such class.
(d) Inthe eventof deathof the Participant, the entire amountoftheParticipant’s Account, computedas of the Valuation Date coincident withor next preceding the date of his death shall be distributed as follows:
(i) Unless Section 5.6(d)(iii)applies, if the Participant’s survivingspouse isthe Participant’s sole designated Beneficiary, then distributionsto the survivingspouse willbeginbyDecember 31of the calendaryear immediatelyfollowing thecalendaryear inwhich the Participant died, or, if later,byDecember 31of the calendar year in which the Participant would have attained age70-1/2.
(ii) Unless Section5.6(d)(iii)applies, if the Participant’s survivingspouse is notthe Participant’ssole designatedBeneficiary, then distributions tothe designated Beneficiarywill beginbyDecember 31of the calendar year immediatelyfollowing the calendar year in which the Participant died.
(iii) If the designated beneficiary has elected to receive a lump sum distribution,or, if there is nodesignated Beneficiaryas of September 30of theyearfollowing theyear of theParticipant’s death,the Participant’s entire interest willbe distributed by December 31of the calendaryear containing thefifth anniversary of theParticipant’s death.
(iv) If the Participant’s spouse isthe Participant’ssole designated Beneficiaryand the survivingspouse dies after theParticipant but before distributiontothe surviving spouse has been made, Section 5.6(d)(i) will apply as ifthe surviving spouse were the Participant.
For purposes of this Section 5.6, unless Section5.6(d)(iv) applies, distributionis considered tobe made onthe Participant’s required beginningdate within the meaning of Section5.12(b). If Section5.6(d)(iv) applies, distribution is considered to be made on the date distribution is made to the surviving spouse under Section5.6(d)(i).
5.7 Restrictions on Participants’Right To Dispose ofEmployer Stock;Employer’s and Plan’s Right of First Refusal. AnyEmployer Stock distributedunder the Plan shallbesubject tothe followingrestrictions on its transfer(if it is not readily tradable onan establishedmarket when the right of first refusal isexercised) and an appropriate legend indicatingthis restriction will be placed on each stock certificate:
(a) Anyperson (the “Seller”,which shall include Participantsand theirBeneficiaries) desiring to sell, transferor assign all orany portion ofthe Employer Stock distributedunder this Plan shallfirst have received abona fide writtenoffer for the purchase ofsuch stock and shall thenoffer to sellthe same tothe Companyand the Plan,pursuant totheir right of first refusal, in the manner hereinafter set forth.
(b) The Seller shall deliver to the Trustee and the Company a notice in writingof his desire to sell or transfer hisstock which notice shall contain a signed copy ofsaid bona fide offer to purchase, stating the price and other terms and conditions of such offer and the nameand addressof the proposedpurchaser, along with awritten statement of theSeller’s willingness to sell hisstock tothe Company orthe Plan inpreference tothe proposedpurchaser. TheTrustee and the Company shallhave fourteen (14)days fromthe receipt of such notice withinwhich todecide whether topurchase allof thestock being offered and,if so,whether such purchase shall be madeby the Company or by the Plan or a part byeach (such electing party, whether the Company or the Trustee, ishereinafter called the“Purchaser”). If the Purchaser is topurchase such stock,then it shalldeliver tothe Seller (withinthe fourteen (14) day periodprovided for above) writtennotice of acceptanceof such offer designating a closing placeand date for the purchase of the Employer Stock(the “Closing”) which shall notbe more than thirty
(30)days after the date of its notice of acceptance to the Seller.
(c) If allof the Participant’s offered Employer Stock isnot tobe purchased, then the Seller shall havethe right to sellsuch Employer Stock tothe personmaking the bonafide offer within 30days following the day uponwhich the Trustee and the Company wererequired togive notice of their election topurchase. Any suchsale shallbe under terms and conditions no lessfavorable tothe Seller than those presented tothe Trustee and the Company. In the eventsuch stock is not so sold, it shall remainsubject tothe termsand conditionsof this Section 5.8.
(d) Inthe event thePurchaser elects topurchase the Seller’s stockpursuant tothe provisionshereof, theSeller shall deliverat the Closing the certificate(s)representing the shares to be sold, which certificate(s) shall be duly endorsed for transfer to the Purchaser, and thepurchase price and payment thereof shall be made by the Purchaser in accordance with the termsand provisionsof the sale. The selling price must notbe less favorable tothe Seller than the greater of(i) the purchase priceand terms offeredby the bona fidepurchaser or (ii)the fairmarket value of the Employer Stock as of the most recent Annual Valuation Date as described in Section 4.2;provided, however, in the event theSeller is a “disqualifiedperson” (as defined inCode Section4975) the fairmarket value shallbe determined in a manneracceptable tothe Plan Administrator and the Trustee as of the date of the transaction.
(e) Any purportedgift, sale,transfer, assignment,mortgage, pledgeor hypothecation of Employer Stock distributed under the Plan by a Participant or his Beneficiary in violationof this restriction shallbe null and void,and the Company andthe Plan shall notrecognize such gift, sale,transfer, assignment,mortgage, pledge orhypothecation as passinganyinterest in the stock.
(f) Nothing contained herein shall apply toany saleof Employer Stock directly to the Companyor the Plan otherthan sales made to the Planunder the right of firstrefusal provided for hereunder.
5.8 | Participant’s Right to PutEmployer Stock to the Company and the Plan. |
(a) General. In the eventthe Planacquires Employer Stock in aleveraged transaction,any Participant(or hisBeneficiary) thereafter receiving a distributionof Employer
Stock from the Plan at a time when suchEmployer Stock is not readilytradable on an established market shallhave a “put option” onsuch shares,giving himthe right tohave the Companypurchase such shares.The same right shall apply toany Employer Stock distributed to aParticipant (or hisBeneficiary) pursuant to his exercisingthe right to demandEmployer Stockdescribed in Section 5.6. The put option shall be exercisable during the following twoelection periods by giving notice in writing to theEmployer:
(i) the first optionperiod shallbe the sixty(60) day period commencing on the date of distribution of the shares ofEmployer Stock; and
(ii) the second option period shallbe the sixty(60) day periodcommencing onthe datethe fair market valueof the Employer Stock isdetermined (andthe Participant or Beneficiary is notifiedof suchdetermination) for the PlanYear next following the PlanYear inwhich such shares of Employer Stockare distributed.The Plan may begiven the opportunity to purchase shares of Employer Stocktendered to theEmployer underthe put option,as described insubsection (c) hereof. Except tothe extent otherwise required by law, the put option hereunder shall not apply at any time that theEmployer Stock is readily tradable on an established market.
(b) Price and Payment. Theprice at whichthe put option shallbe exercisable is the fair market value as of the Annual Valuation Date which precedes the date the put option isexercised except inthe case of a put option infavor of a“disqualified person” (as defined in Code Section 4975) in which event the fair market value shall be determined as of the date of thetransaction. Payment for the shares ofEmployer Stock put to theEmployer may be made in cashor in installmentsover aperiod notexceeding five(5) years,at the election of the Employer. If the purchase price is paid in installments, a reasonable interest rate and adequate security must beprovided. The periodicpayments shall beginwithin thirty (30) days after the put is exercised.
(c) Right of Plan.The Plan shallhave the optionbynotice inwriting tothe Employer to assume the rights and obligations of theEmployer under the put option provided forherein at the timethe put option isexercised. The put optionprovided for hereunder shall not bind the Plan to purchase theEmployer Stock.
(d) Continuationof Rights. The provisionsof this Section 5.8 withrespectto anyEmployer Stockacquiredby the Plan in a leveraged transaction, orwhich is distributed to Participants(or Beneficiaries) pursuant tothe rightdescribed insection5.6hereinabove in lieuof the Plan’sright to distribute Plan benefits in cash, shallbe non-terminable and shallcontinue if the loan is repaid or ifthe Plan ceases to be an ESOP, except tothe extentsuch rights haveterminated in accordance withthe terms hereof. Exceptas otherwise expresslyprovided in this Plan, anyEmployer Stockacquired in aleveraged transaction shall notbe subject to any put,call, or other optionor buy-sell or similararrangement while heldbyand when distributedfrom the Plan, regardless of whetherthe Plan is thenan ESOP. The protectionsset forth in thepreceding sentence shall be non-terminable.
5.9 Securities Laws RestrictionsOn Resales. Tothe extent thatthe sharesofEmployer Stock tobe acquiredbythe Plan have notbeen registered undereither state or federalsecurities laws, but havebeen issued and acquiredpursuant to applicable exemptions thereunder,
anysuch Employer Stock distributed toParticipants inthe Plan may only be soldby theParticipant upon registrationunder such securitieslaws or pursuant to anavailable exemptionthereunder. The shares ofEmployer Stock held and distributed by the Plan may be appropriately legended to reflect the restrictions on sale in the securities laws.
5.10 Maintenance of Accounts Prior toPayout. Subject tothe limitationsset forth in Section 5.5, during suchperiod of time between termination of a Participant’sEmploymentasdescribed in Section 5.5hereof and the date whenhe becomes entitled toactual payment of hisinterest in hisEmployer ContributionAccount, hisAccount Balance shallbe maintainedby theTrustee in the following manner:
(a) The Trustee shallsegregate on his booksthe Participant’s Account Balance as ofthe dateof the terminationof hisEmployment, and suchsegregated AccountBalance shall notthereafter share inanyEmployer contributionsor amountsotherwise allocatedas Employer contributions.The balance in asegregated accountmayremain invested as a part of the Trust Fund, sharing in the net income, net loss, net appreciation and net depreciation of theTrust Fund, tothe same extentas if such accounts had notbeen segregated, withthe Trustee having the same powersof investment, reinvestmentand comminglingas he has for all otherassets of the Trust.
(b) In the event thatan individualfor whom asegregated account ismaintained in accordance with Section5.10(a) isReemployed followinga Break in Service, suchaccounts shall continue tobe maintained as separate accounts, provided,however, the PlanAdministratormay integrate such segregated account with his post Break inService Employer Contribution Account and thereafter regard it as a single account for all purposes hereunder.
5.11 Present Value ofPayments. Any method ofpayment of benefits shall result in thepresent value ofpayments tobe paid tothe Participant being greater than fiftypercent (50%) of the present value of the total benefits to be paid to the Participant and hisBeneficiary.
5.12 | Commencement ofPayments. |
(a) In General.Notwithstanding anything herein tothe contrary, unless aParticipant otherwise elects in a writing delivered to the Plan Administrator, subject, however,tothe requirements of Section5.12(b), benefit paymentshereunder shall commence notlater than the earlier of (i)sixty(60)daysafter thelater of(A) the date onwhich such Participant reaches hisNormal Retirement Date,(B)the PlanYear in whichoccurs the tenth anniversary of the year inwhich such Participant commenced participation,or (C)the PlanYear inwhich such Participant’sEmployment with theEmployerterminates.
(b) Required BeginningDate. Payments of a Participant’sentire interest inthe Plan shallbegin nolater than the following date:(i) if the Participant is afive-percent (5%)owner (within the meaning ofCode Section416(i)(1)), April 1of the calendaryear nextfollowing the calendar year in whichthe Participant attains age70-1/2, or (ii)for any otherParticipant, April 1 of the calendaryear next following the later to occurof his attainment of age70-1/2 or his retirement.
(c) | Period of Distribution. |
(i) General. The requirementsof this Section5.12(c) will takeprecedence overany inconsistent provisionsof the Plan. All distributions required under this Section5.12(c) will be determined and made inaccordance withthe Treasury regulations under Code Section401(a)(9).
(ii) Required Beginning Date. The Participant’s entire interest will be distributed,or begin tobe distributed, tothe Participant nolater than theParticipant’s required beginning date, determined pursuant to Section5.12(b).
(iii) Forms of Distribution.Unless the Participant’sentire interestis distributed in a single lump sum on or before therequired beginning date,as of thefirst distributioncalendar year distributionswill be made inaccordance with subsections(iv), (v), (vi) and (vii) of this Section5.12(c).
(iv) Amountof Required Minimum DistributionFor Each DistributionCalendar Year. Duringthe Participant’s lifetime,the minimumamount that willbedistributed for each distribution calendaryearis the lesser of:
(1) the quotient obtainedbydividing the Participant’s Accountbalanceby the distributionperiod in the UniformLifetime Table set forth inSection 1.401(a)(9)-9 of the Treasuryregulations, using the Participant’s age as of the Participant’s birthday in the distribution calendaryear; or
(2) if the Participant’s sole designated Beneficiaryfor the distributioncalendar year isthe Participant’s spouse,the quotient obtained bydividing the Participant’sAccount balanceby thenumber inthe Jointand Last Survivor Table set forth in Section1.401(a)(9)-9 of the Treasuryregulations, using the Participant’s and spouse’s attained ages as of the Participant’s and spouse’sbirthdays in the distribution calendar year.
(v) Lifetime Required Minimum Distributions Continue Through Yearof Participant’s Death.Required minimum distributions will bedetermined under this Section5.12(c) beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the Participant’s date of death.
(vi) | Death on or After Date Distributions Begin. |
(1) Participant Survived byDesignated Beneficiary. If theParticipant dies on orafter the date distributionsbegin and there is a designatedBeneficiary, the minimum amount that willbe distributedfor each distributioncalendaryearafter theyearof the Participant’s death isthe quotientobtained bydividing the Participant’sAccount balance by thelonger of the remaining life expectancy ofthe Participantor the remaining life expectancy ofthe Participant’s designatedBeneficiary, determined as follows:
(A) The Participant’s remaining life expectancy iscalculated usingthe age of the Participant inthe year ofdeath, reducedby one for each subsequentyear.
(B) �� If the Participant’s surviving spouse is theParticipant’s sole designated Beneficiary, the remaining life expectancy ofthe surviving spouse iscalculated foreach distributioncalendar year after theyear ofthe Participant’sdeath using the surviving spouse’s ageasofthe spouse’s birthday in thatyear.For distribution calendaryearsafter theyear ofthe surviving spouse’sdeath, theremaining lifeexpectancy of thesurviving spouse iscalculated using the age of the surviving spouse as of the spouse’s birthday inthe calendaryearof the spouse’s death, reduced by one for each subsequent calendaryear.
(C) If theParticipant’s survivingspouse is notthe Participant’s sole designatedBeneficiary, the designated Beneficiary’s remaining life expectancy iscalculated using theage ofthe Beneficiary inthe year followingthe yearof the Participant’s death,reducedby one foreach subsequent year.
(2) No Designated Beneficiary. If the Participant dies on orafter the date distributionsbegin and there is nodesignated Beneficiaryas of September 30of the year after theyear ofthe Participant’s death,the minimum amount that will be distributed for each distributioncalendaryear after theyear ofthe Participant’s death isthe quotient obtained by dividingthe Participant’sAccount balance by theParticipant’s remaininglife expectancy calculated usingthe age of the Participant in the year of death, reduced by one foreach subsequentyear.
(vii) | Death Before Date Distributions Begin. |
(1) Participant Survived byDesignated Beneficiary. If the Participant dies before the date distributionsbeginand there is adesignated Beneficiary, the minimum amount that willbe distributedfor each distributioncalendaryearafter theyearof the Participant’s death isthe quotientobtained by dividing the Participant’s Account balance by the remaining life expectancy of theParticipant’s designated Beneficiary, determined as providedin Section 5.12(c)(vi).
(2) No DesignatedBeneficiary. If theParticipant dies beforethe date distributionsbegin and there is nodesignated Beneficiary asof September30 ofthe year followingthe year ofthe Participant’s death,distribution of the Participant’s entire interest willbe completedbyDecember31of the calendar year containing the fifth anniversary of the Participant’s death.
(3) Death of Surviving SpouseBefore Distributionsto Surviving Spouse Are Required toBegin. If the Participant dies before the date
distributionsbegin, the Participant’s surviving spouse isthe Participant’s soledesignated Beneficiary, and the surviving spousedies before distributionsare required tobegin to thesurviving spouse under Section5.6(d), this Section5.12(c)(vii)will apply as if the surviving spouse were the Participant.
(viii) Definitions.The following definitionsshallapplyfor purposes of Sections 5.6and5.12:
(1) Designated Beneficiary. The individualwho is designatedas the Beneficiary underArticleVI ofthe Plan and isthe designated Beneficiaryunder Code Section401(a)(9) and Section1.401(a)(9)-1, Q&A-4 of the Treasuryregulations.
(2) Distributioncalendar year. Acalendaryear forwhich a minimumdistribution is required. For distributionsbeginning before theParticipant’s death, thefirst distributioncalendaryear isthe calendaryear immediately preceding the calendaryear which contains the Participant’s requiredbeginning date. For distributionsbeginning after the Participant’s death,the first distributioncalendaryear isthe calendaryear inwhich distributionsare required tobegin under Section5.6(d). The required minimum distributionfor the Participant’s first distributioncalendaryear willbe made onor before the Participant’s required beginningdate. The required minimum distributionfor other distributioncalendar years, including the required minimum distributionfor the distributioncalendaryear inwhich the Participant’s required beginning date occurs, will be made on or before December 31 of that distribution calendaryear.
(3) Life expectancy. Life expectancyas computedbyuse of the Single Life Table in Section1.401(a)(9)-9 of the Treasury regulations.
(4) Participant’s Accountbalance. The Account balanceasofthe last valuation date inthe calendaryear immediatelypreceding thedistribution calendaryear (valuationcalendar year) increasedby the amountof any contributionsmade and allocated or forfeitures allocated tothe Account balance as of dates in the valuation calendaryear after the valuation date and decreased by distributionsmade in the valuationcalendar year after the valuationdate. The Account balance forthe valuationcalendaryearincludes any amountsrolled over or transferred to the Plan either in the valuation calendaryear or in the distributioncalendaryearif distributedor transferred tothe Planeither inthe valuation calendar year or in the distribution calendaryear if distributed or transferred in thevaluation calendaryear.
(ix) Required Minimum Distributionsfor 2009.Notwithstanding anything containedherein tothe contrary, pursuant toCode Section401(a)(9)(H), distributionsrequiredby this Section 5.12were made forthe 2009 PlanYear. Furthermore, no portionof a distributionrequired under this Section 512made to aParticipant or Designatedbeneficiary with respect tothe 2009 PlanYear was treated as
an Eligible Rollover Distributionfor purposes of the Direct Rollover optiondescribedin Section 5.18.
5.13 Error in Participant’s Account. Whenan error or omission is discovered inthe account of aParticipant, the Trustee shall, upondirectionbythe Plan Administratormake such equitable adjustmentsas the PlanAdministrator deems necessaryas of the PlanYear inwhich the error or omission is discovered.
5.14 No Other Benefits or Withdrawals. Exceptas expressly provided for inthis Article V or Section4.5(b), for so longas this Plancontinues ineffect no individual, whether aParticipant, former Participant, Beneficiary or otherwise, shallbe entitled to any payment orwithdrawal of funds from the Trust Fund.
5.15 | Voting Rights. |
(a) Voting of Allocated Shares. Exceptas provided insubsection (d) below, each Participant shall have the right to direct the Trustee confidentially with respect to the votingof Employer Stock held inthe Trust and allocated tothe Participant’s Employer ContributionAccount. The Participant shall convey his instructions withrespect to such shares in confidence inwriting tothe ESOPCommittee, which shallthen inform the Trusteeof such voting instructions.In the absence of an ESOP Committee, such instructions shall be communicated bythe Participants directly tothe Trustee. The instructions soreceived bythe ESOPCommittee and Trustee shall be heldbythe ESOPCommittee and Trustee inconfidence and shall not be divulged or released to any person. Upon timely receipt of such instructions, the Trustee shall oneach matter vote as instructedthe number of shares of Employer Stockallocated tosuch Participant’s Employer ContributionAccount. To the extent permittedbylaw,any shares withrespect to whichthe Participantdoes notgive directionsfor voting in a timely manner shall bevoted by the Trusteeas directed by the ESOPCommittee. For voting purposes, allocatedfractional sharesof Employer Stock shall be aggregated intowhole sharesof Employer Stockand votedbythe Trustee tothe extentpossible to reflect the voting instructionsof Participants withrespect towhole shares of Employer Stockallocated totheir Employer ContributionAccounts.
(b) Voting of Unallocated Shares. Exceptas provided in(d) below, shares ofEmployer Stock held by the Trustee and notyet allocated to Participants’Employer ContributionAccounts shallbe votedbythe Trustee, in the sameproportion as Participantsdirect the voting of allocated shares ofEmployer Stock.
(c) Obligations of the Company. Exceptas provided in(d) below, the Company shall inan appropriate timeand mannerfurnish the Trustee and Participants with proxy materials,notices and information statementswhen voting rights are tobe exercised.Ingeneral, the materials to befurnished Participants shallbe the same as those provided tosecurity holders.
(d) VotingNon-RegistrationType Stock.Inthe eventthe Employer Stockis notat the time aregistration-type class of securitiesas defined inCode Section409(e), then except as provided in the following sentence, theEmployer Stock held in the Trust shall be voted
inthe manner determinedbythe ESOPCommittee and communicated inwriting tothe Trustee. Withrespect toany matterwhich involvesthe votingof such shares withrespect to the approvalor disapproval ofanycorporate merger, consolidation, recapitalization, reclassification, liquidation, dissolution,sale of substantiallyall the assets or such similartransaction asprescribed in regulations, each Participant shall be entitled to direct the Trustee as to the exerciseof any voting rightsattributable toshares ofEmployer Stock allocated to hisEmployer ContributionAccount at such date. On allother matters, the ESOPCommittee and the Trustee need not solicit voting instructions from Participants.
5.16 | Tender or Exchange Offer for Employer Stock. |
(a) Tender Offer. The provisionsof this Section shall apply inthe eventanyperson, including the Company, either alone or in conjunction withothers, makes atender offer,or exchange offer, or otherwiseoffers topurchase or solicitsan offer tosell tosuch persononepercent ormore ofthe outstanding sharesof Employer Stock(herein referred toas a “TenderOffer”).
(b) Tender or Exchangeof AllocatedShares. Notwithstanding theother provisionsof the Plan, inthe event of aTender Offer at a time whensuch Employer Stock is readily tradable on an established market, each current or former Participant (or after the death of a former Participant, hisBeneficiary) who has sharesof Employer Stock allocated tohisEmployer ContributionAccount (an“Affected Participant”) shallbe given the opportunity todirect the Trustee confidentiallyregarding whether totender, exchange orotherwise sellwhole shares of Employer Stockallocated to hisEmployer Contribution Account inaccordance withthe provisions, conditionsand terms ofsuch Tender Offerand the provisionsof this Section.If Affected Participants elect totender, exchange or sell agreater number of shares of Employer Stockthan the total number of shares of Employer Stock offered in suchTender Offer(referred toas an “OversubscribedOffer”), the Trustee shallreduce, on apro rata basis,the number of shares ofEmployer Stock that each Affected Participant agreed to tender or exchange except thatTrusteemay provide thatthe prorata reduction will notapply, and willbe determined withoutregard to, Affected Participantswhose allocatedshares of Employer Stock do notexceed aprescribed amount. Eachdirection to tender,exchange or otherwise sellshares ofEmployer Stock shall bedeemed an agreement to have such number of shares reduced on a pro rata basis in the event of an Oversubscribed Offer, to the extent determinedbythe Trustee.
(c) Required Forms and Instructions. As promptly as practicableafter aTender Offer is made,the Trustee shallsend to allAffected Participantssuch materials andforms for responding as are appropriate to determinethe direction of eachAffected Participant. Anyform for responding shall prominentlynote thatfailurebyan AffectedParticipant toreturn such form within a specified reasonable period of time shall be deemed a direction to the Trustee not totender, exchange or otherwise sellthe whole shares of Employer Stockallocated tothe Employer ContributionAccount of such AffectedParticipant. The Participant shall convey his instructions inconfidence inwriting tothe ESOPCommittee, which shallthen convey such instructions tothe Trustee. In the absence of an ESOP Committee, such instructions shall beconveyed directly tothe Trustee. In carrying outthe steps necessary to determinethe directionsof Affected Participantsunder this Section, theTrustee shall adoptsuch means as it deemsappropriate toprovide Affected Participants withthe opportunity to indicatetheir directions in a
confidential manner, i.e., without the disclosure of anyAffected Participant’s individual decision to the public or theCompany.
(d) Dispositionof Allocated Employer Stock.As promptlyas practicableafter receivingan AffectedParticipant’s responseform which directs it totender, exchange orotherwise sell his wholeshares of allocated Employer Stock,the Trustee shall carry out thetender, exchange orsale of such shares; provided,however, that the Trustee shall havethe right tochange or to modify itsactions hereunder to complywith the terms of any validorder of acourt of competent jurisdictiondirecting itto take certain actions inconsistent withthe requirements of this Section.The proceeds of a dispositiondirected by anAffected Participant shallbe allocated to theNon-Employer Stock Account of each such Affected Participant.
(e) Fractional Shares. The Trustee shalldetermine the totalnumber of whole shares it was directed to tender, exchangeor sell,and the total number ofwhole shares it wasdirected not to tender, exchangeor sell (either expressly orbyfailure to timelyrespond). If the majority ofthe allocatedwhole shares of Employer Stockwere directed tobe tendered,exchanged or sold,then the Trustee shallalso tender, exchange, orsell, as promptlyas practicable, any allocated fractional shares which are held in the Trust. However, if the majorityof the allocated wholeshares ofEmployer Stockwere not directed tobe tendered,exchangedor sold,the Trustee shall nottender, exchange or sell any such allocated fractional shares unlessotherwise directedbythe ESOP Committee.
(f) Unallocated Shares.In the case of shares ofEmployer Stock that have not been allocated to theEmployer Contribution Accounts, the ESOP Committee shall conveytender or exchange instructions tothe Trustee withrespect tosuch unallocated shares, which instructions shall direct that the Trustee tender or exchange such shares in the same proportion as Participants directthe tender orexchange of shares ofEmployer Stock allocated to theirEmployer ContributionAccounts, treating for thispurpose the failure of aParticipant toinstruct or validly instruct the ESOP Committee or Trustee as a decision not to tender or exchange.
5.17 Appraisal of Employer Stock.In the event thatanyclass or seriesof Employer Stockheldbythe Plan is not readily tradable on anestablished market, all valuations, including the annual valuation, ofEmployer Stock must be performed by an independent appraiser meeting the requirements of the regulations under Code Section170(a)(1).
5.18 | Direct Transfer of Eligible Rollover Distributions. |
(a) For the purposes of this Section 5.18, the following definitions shall apply:
(i) “Eligible Rollover Distribution” shall meanany distributionof all orany portion ofthe balance tothe creditof theDistributee, except thatan Eligible Rollover Distributionshall notinclude: any distributionthat is oneof aseries of substantiallyequal periodicpayments (not less frequently thanannually) made for the life(or lifeexpectancy) of the Distributeeor the joint lives (or jointlife expectancies) of theDistributee and the Distributee’s designatedBeneficiary, or for a specifiedperiod of tenyears or more;any distributionto the extent such distribution isrequired under Code Section401(a)(9); distribution described in Code Section 401(k)(2)(B)(i)(IV); or the
portionof anyDistribution that is notincludable ingross income (determinedwithout regard tothe exclusion for net unrealizedappreciation with respect toemployer securities). For taxable years beginning after December 31, 2006, a Participant mayelect totransfer hisor her employee after-taxcontributions (ifany)by meansof adirect rollover to aqualified plan or to a403(b) plan thatagrees to accountseparately for amounts so transferred (including interest thereon), including accountingseparately for the portionof such distributionwhich isincludible ingross income andthe portionof such distribution which isnot includible in gross income.
(ii) “Eligible Retirement Plan” shallmean an individualretirement account described in Code Section 408(a),an individual retirement annuity described inCode Section408(b), an annuity plan described inCode Section 403(a), aqualified trustdescribed inCode Section401(a), that acceptsthe Distributee’s Eligible Rollover Distribution, or an annuity contract described in Code Section 403(b) and aneligible plan under Code Section 457(b) which is maintained by a state, political subdivision of a state,or any agencyor instrumentalityof astate or politicalsubdivision of astate and which agrees to separately accountfor amountstransferred intosuch plan fromthe Plan.The definitionof Eligible Retirement Plan shallalso apply inthe case of a distributionto asurviving spouse, or to aspouse or former spouse who isthe alternate payee under aqualified domesticrelation order, as defined inCode Section414(p). However, inthe case of an Eligible Rollover Distribution tothe surviving spouse, an EligibleRetirement Plan shallmean onlyan individualretirement account or individualretirement annuity. For distributionsmade after December 31, 2007,Eligible Retirement Plan shall alsoincludeaRoth IRA described in CodeSection 408A(b).
(iii) “Distributee” shall meanan Employee or formerEmployee.In addition,the Employees or former Employee’s survivingspouse and the Employee’s orformer Employee’s spouseor former spouse who isthe alternate payee under aqualified domesticrelations order, as defined inCode Section414(p), are Distributees withregard to the interest of the spouse or formerspouse. Solely for purposes of the rolloverright setforth in thisSubsection 5.18(a)(v), a Distributee shallalso include anon-spouse Beneficiarywho is a “designatedbeneficiary” underCode Section401(a)(9)(E) and the regulations thereunder.
(iv) “Direct Rollover” shallmean apayment to the Eligible Retirement Planspecifiedbythe Distributeeeitherbydirect transferfrom the Plan,orby delivery ofthe distribution check by the Distributee, provided such check is made out in a manner to ensure that it is negotiable onlyby the trustee of the Eligible Retirement Plan.
(v) Non-Spouse Beneficiary RolloverRight. For distributionsafter December31, 2009, anon-spouse Beneficiary who is a“designated beneficiary” underCode Section401(a)(9)(E) and the regulationsthereunder,by a directtrustee-to trustee transfer (“direct rollover”), mayroll over all or any portion of his or her distribution to an individualretirement account(“IRA”) the Beneficiaryestablished forpurposes ofreceiving the distribution. In order to be able to roll over the distribution, the distributionotherwise must satisfy the definition ofan “eligiblerollover distribution”under Code Section401(a)(31).
(1) Certain Requirements NotApplicable. Although a non-spouse Beneficiarymayroll over directly a distributionas provided in this Section 5.18,the distribution, if made prior toJanuary 1, 2010, is notsubject tothe direct rollover requirementsof Code Section401(a)(31) (includingCode Section 401(a)(31)(B)), thenotice requirementsof Code Section 402(f)or the mandatorywithholding requirements ofCode Section3405(c). If anon-spouse Beneficiaryreceives a distributionfrom the Plan,the distribution isnot eligiblefora 60-day(non-direct) rollover.
(2) TrustBeneficiary. If the Participant’s named Beneficiaryis a trust,the Planmaymake a direct rollover toan IRA on behalfof the trust,provided the trustsatisfies the requirements to be a designated Beneficiarywithin the meaning of Code Section401(a)(9)(E).
(3) Required Minimum Distributions Not Eligible forRollover. Anon-spouse Beneficiarymay notroll overan amount that is arequired minimum distribution,as determined under applicable Treasury Regulations andother Internal Revenue Serviceguidance. If the Participantdies before hisor herRequired Beginning Date(as defined in Section5.12(b) and the non-spouse Beneficiaryrolls over toan IRA the maximum amounteligible forrollover,the Beneficiarymayelect touse either the 5-year rule or the life expectancyrule, pursuant to Treasury Regulations Section1.401(a)(9)-3, A-4(c), indetermining the required minimum distributionsfrom the IRA thatreceives thenon-spouse beneficiary’s distribution.
(b) Notwithstandingany provisionof the Plan tothe contrary, a Distributee mayelect, at the timeand inthe manner prescribedbythe Plan Administrator, tohaveany portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specifiedby the Distributee in a DirectRollover as provided in this Section 5.18.
5.19 Notice of Right to Defer Distribution. Forany distributionnotice issued in PlanYears beginningafter December 31, 2006, suchnotice that is delivered to aParticipant withrespect to a distribution willinclude adescription of aParticipant’s right(if any) todefer receiptof a distributionand will describe the consequencesof failing todefer receiptof the distribution. Withrespect toany required distributionnotice and election form that is delivered to aParticipant before the 90th dayafter the issuanceof Treasuryregulations (unless futureguidance requires otherwise),anynotice that is delivered to a Participant with respect to a distribution willinclude at a minimum:(a)adescription indicatingthe investment optionsavailable under the Plan(including fees) that willbe available if theParticipant defers distribution;and (b)the portionof the summary plan description thatcontains any specialrules thatmight materially affect a Participant’s decision to defer
ARTICLE VI
DESIGNATION OF BENEFICIARY
EachEmployee becoming a Participant hereunder shall designate in writing, in such form
and manner as shallbe prescribedbysuch rulesand regulations as the Plan Administratormay promulgate in thisconnection, a Beneficiary ofanyinterest under thisTrust whichmay bepayable withrespect tosuch Participant inthe eventof hisdeath before or after retirement,or after such termination of Service as mayentitle him to a Vested Interest in the Trust Fund, whichdesignationmayinclude the designation of an alternate Beneficiary. Subjectalso tosuch rules and regulations as the Plan Administratormaypromulgate, aParticipant mayfrom time to time change such designation of Beneficiary (or alternateBeneficiary).
In the eventbenefits becomepayable uponthe death of aParticipant and noBeneficiary has been properly designatedas above provided,or if the designated Beneficiary shallhave predeceased him,such benefits shallbe payable in full tothe following inthe order set out:(1) tothe surviving spouseof the Participant or(2) if the Participant dies without aspouse thenliving, tothe survivingchildren ofthe Participant(per capita)or (3) if noneof the foregoingpersons is then living, tothe surviving brothers and sisters of the Participant (per capita) or(4) if none of the foregoing persons isthen living, tothe surviving parentsof the Participant (percapita) or (5) if none of the foregoing persons isthen living, tothe Participant’s estate. The identity ofthe Beneficiary of adeceased Participant’sinterest shallbe determined by the Plan Administrator after reasonableinvestigation. The determination of the Plan Administrator in thisconnection shall be final and conclusive and both the Plan Administrator and the Trustee shall be fully protected inpaying such benefits to such deceased Participant’s Beneficiaryas sodetermined, regardlessof whetherpayments are actually made to a personor persons who actually constitute beneficiaries of such deceased Participant under the provisions hereof.
Notwithstanding the foregoing provisions,the Participant’s entire interest inthe Planat hisdeath, ifany, shallbe paid tosuch Participant’s survivingspouse (ifsuch spouse isthen living) unlessprior tothe Participant’s death, thespouse consents in awriting witnessedby a Planrepresentative or a notary public to permitthe Participant todesignate aperson other than the spouse as the Participant’s Beneficiary, whichconsent mayexpressly permitdesignations ofBeneficiary(ies)bythe Participant without anyrequirement of further consent bysuch spouse. This provision shall not apply where it is established to the satisfaction of the PlanAdministrator thatsuch consent cannot be obtained because there is nospouse, because the spouse cannotbelocated, orbecause of suchother circumstances as may be permittedbythe regulations. Neither shall this provision apply unless the spouse and Participant have been married throughout the oneyear periodending on the dateof the Participant’sdeath. The Plan Administrator shall provide to each Participant within a reasonable time before such Participant is entitled to receive benefits, awritten explanation of the Participant’s spouse’sright to waivethe survivingspouse benefitsdescribed in thisArticleVI.
ARTICLE VII ADMINISTRATION
7.1 Allocationof ResponsibilityAmong Fiduciaries for Plan andTrust
Administration. The Fiduciaries shallhave onlythose specified powers, duties,responsibilities and obligationsas are specifically given themunder this Planand Trust.In general,theEmployer shallhave the sole responsibilityfor making the contributionsprovided for under Article III,and the Company shall have the sole authority to appoint and remove the Trustee, the
Plan Administratorand anyInvestment Manager or Managers which itmayelect to providefor managing all or any portion of the Trust, and to amend or terminate, in whole or in part, this Planand Trust. The Plan Administrator shall have the sole responsibilityfor the administration of the Planand the Trustee shallhave the sole responsibilityfor management ofthe assets held underthe Trust (except wherean Investment Managerhas been appointed), allas more specificallyprovided hereinafter. Each Fiduciarymay rely upon any direction, informationor action ofanother Fiduciary in theexercise of the latter’s respective powers, duties, responsibilitiesarid obligations hereunder, asbeing properunder this Planand Trust,and shall notbe required toinquire intothe proprietyof any such direction, informationor action. It isintended thateach Fiduciary shallbe responsiblefor the properexercise of itsown powers, duties,responsibilities and obligations under this Plan and Trust and shall not be responsible for anyact or failure to actof another Fiduciary. No Fiduciaryguarantees theTrust Fund inany manner againstinvestment loss or depreciation in asset value.
7.2 Appointmentof PlanAdministrator. The PlanAdministrator shallbe the ESOP Committee,or inits absence, the Employer. It isanticipated that inthe absence ofthe ESOP Committee,the Employer shall delegate itsrights, dutiesand responsibilitiesas Plan Administrator to an administrative committee consisting of one or more persons designated from time to time by the Boardof Directors ofthe Employer,and theEmployer hereby authorizessuch delegation.
The President of the Employer (or inthe event of the President’s inability or failureto act,any VicePresident of such company) shall certify in writing tothe Trustee, as promptlyas practicable afteranychange inthe membership of the ESOPCommittee, the names of the persons then serving asmembers of thecommittee. The Trustee shall be entitled to rely onthe names so certified as being the authorized and acting members of the committee until notified of any change bysubsequent certification.
The ESOP Committeeorany administrative committee may actat ameeting orby unanimous written consent without ameeting. Such committee shall electone of its members aschairman, appoint asecretary, whomay or may notbe acommittee member, and advise the Trustee of such actions inwriting. The secretary shall keep a record of allmeetings and forward all necessarycommunications tothe Employer orthe Trustee. A quorum ofthe committee shall consistof not lessthan two-thirdsof the membersthereof, and a majorityvote of those present shallcontrol on all matters acted uponat a meeting ofthe committee. Adissenting committeemember who, within a reasonable timeafter he hasknowledge ofany actionor failure to actbythe majority, registers his dissent in writing delivered to theother committeemembers, theEmployer,and the Trustee, shall not be responsible foranysuch action or failure to act.
7.3 ClaimsProcedure. The Plan Administrator shall make all determinations as to the right of any person to eligibility or a benefit under thePlan. Benefits under this Plan will be paid only ifthe Plan Administratordecides in itsdiscretion thatthe applicant is entitled tothem.If a written request for a Plan benefit by a Participant or Beneficiary is wholly or partially denied, the Plan Administrator will provide such claimant a comprehensible written notice setting forth:
(i) the specific reason or reasons for such denial;
is based;
(ii) | specific reference to pertinent Plan provisions onwhich the denial |
(iii) adescription ofany additionalmaterial or informationnecessary for the claimant to submit to perfect the claim and an explanation of why such material or information isnecessary;
(iv) adescription of the Plan’sclaim review procedure. The reviewprocedure is available uponwritten requestby theclaimant to the Plan Administrator within 60daysafter receiptby theclaimant of writtennotice of the denialof the claim, and includes the right to examinepertinent documents and submitissues and comments in writing to the PlanAdministrator. The decision on review will be made within 60daysafter receiptof the requestfor review unless circumstanceswarrant an extensionof time not to exceedan additional 60days and shallbe in writingand drafted in a mannercalculated tobe understoodbythe claimant, and include specific reasons forthe decision with references to the specific Plan provisions on which the decision is based.
7.4 Records and Reports. The Plan Administratorshall exercise such authorityand responsibilityas it deemsappropriate inorder to complywith ERISAand governmental regulations issued thereunder relating torecords of Participants’service and Account Balances; notifications to Participants;annual registration withthe Internal Revenue Service; annualreports tothe Departmentof Labor; and such other documents or reports as may berequired byERISA. The Employer shallfrom time to timemake available tothe Plan Administratorsuch information withrespect tothe Employees, their dates of employment, theircompensation, and other matters as may be necessary or desirable inconnection withthe performance bythe Plan Administrator of its duties with respect to the Plan. The Plan Administrator shall, in turn, furnish to the Trustee such information andsuch rulings and decisions as the Trustee may require or mayrequest inconnection withthe performance of its dutiesas Trustee of the Trust Fund herebycreated.
7.5 Other PlanAdministrator Powers and Duties.The Plan Administratorshall have such dutiesand powers as maybe necessary todischarge its dutieshereunder, including, butnotby way oflimitation, the provisions of Section 1.19and the following:
(a) the sole and exclusive authority to construeand interpret the Plan,decide all questionsof eligibilityand determine the amount,manner and time of payment ofanybenefits hereunder;
(b) toprescribe procedures tobe followedby Participantsor Beneficiaries filing applications for benefits;
(c) toprepare and distribute, insuch manner asthe PlanAdministrator determines to be appropriate, information explaining the Plan;
(d) toreceive fromthe Employer andfrom Participantssuch informationas shall be necessary for the proper administration of the Plan;
(e) tofurnish the Employer, uponrequest, such annualreports withrespecttothe administration of the Plan as are reasonable and appropriate;
(f) toreceive, reviewand keep onfile (as it deemsconvenient or proper)reports of the financial condition,and of the receipts and disbursements,ofthe Trust Fund fromthe Trustee (oranyInvestment Manager);
(g) to appointor employ individualsor other parties to assist inthe administrationof the Planandanyother agents itdeems advisable, including accountants andlegal and actuarial counsel; and
(h) todesignate or employpersons to carry outany ofthe Plan Administrator’s fiduciary duties or responsibilities under the Plan.
7.6 Rulesand Decisions. The Plan Administrator mayadopt suchbylaws, rulesand regulations as it deemsnecessary, desirable,orappropriate, provided thatsame shall not be inconsistent withor contrary tothe expressterms of this Plan.All such bylaws, rules, regulations and decisionsof the Plan Administrator shallbe uniformly and consistentlyapplied to all Participants in similarcircumstances. When making a determinationor calculation, the Plan Administrator shallbe entitled to rely upon informationfurnishedby aParticipant orBeneficiary, the Employer, thelegal or actuarialcounsel ofthe Employer,anyInvestment Manager, or the Trustee.
7.7 Authorizationof Benefit Payments. The Plan Administrator shallissue directions tothe Trusteeconcerning all benefits whichare tobe paid fromthe TrustFund pursuant to the provisions of the Plan.
7.8 Applicationand Formsfor Benefits. The Plan Administrator mayrequire aParticipant tocomplete andfile withthe Plan Administratoran applicationfor a benefit and allother forms approvedbythe Plan Administratorand tofurnish allpertinent informationrequestedby the PlanAdministrator. The Plan Administrator mayrely upon all such information so furnished it, including but not limited to the Participant’s current mailing address.
7.9 Payment forBenefit of Disabled or Incapacitated Person. Whenever, inthe PlanAdministrator’s opinion, a person entitled toreceiveanypayment of abenefit or installmentthereof hereunder isunder a legal disabilityor isincapacitated inany way soas tobe unabletomanage hisfinancial affairs,the PlanAdministrator may directthe Trustee tomake payments tosuch person or to his legalrepresentative or to a relativeor friend ofsuch person for his benefit,or the PlanAdministrator maydirect the Trustee to applythe payment for the benefit of such person In such manner asthe Plan Administratorconsiders advisable. Anypayment of a benefitor installmentthereof in accordance withthe provisionsof this Section shallbe acomplete discharge ofanyliability for the making of such payment under the provisions of the Plan.
7.10 Notices toTrustee. All notices from the Plan Administratoror anyInvestment Manager tothe Trustee shallbe inwriting, and theTrusteemay rely thereon incarrying outits duties and responsibilities hereunder.
7.11 IndemnificationbytheCompany. The Company shall indemnify and holdharmless the Board of Directors,anyEmployee performing duties withrespect tothe Plan,the Plan Administratorand the Trustee from and against anyand all claims, losses,damages, expensesand liabilitiesarising fromtheir responsibilities inconnection withthe Plan, unlesssuch liabilityarises fromthe person’s gross negligenceor dishonesty inthe performance of its duties.
ARTICLE VIII
POWERS, DUTIES AND RESPONSIBILITIES OF THE TRUSTEE
8.1 Establishmentand Acceptance of Trust. The Trustee shall holdand manage theassets receivedby it to be included in the Trust Fund. All contributions so received together withthe income therefrom shallbe managed, investedand reinvestedbythe Trustee in accordance with Section 8.2,subject, however, tothe rightof the Company to appointand employan Investment Manager or Managers, to manage and/or investand reinvest theTrust Fund, or anypart thereof, inwhich eventthe Investment Manager shallbe certifiedas such tothe Trustee bythe Companyand the Trustee shall notbe liable for the acts or omissionsof such Investment Manager or Managers orbe under any obligation to manageor invest theassets ofthe Trust Fund which are subject tomanagement bysuch Investment Manager or Managers. Any suchInvestment Manager soemployed mustmeet the definitionthereof contained in Section3(38) ofERISA and mustacknowledge inwriting at the timeof such employment thathe or it is a fiduciarywith respect tothe Plan.The chief executiveofficer of any suchInvestment Manager shall certify in writing tothe Trustee the namesof allpersons who shallact onbehalf of theInvestment Manager withrespect tothe Trust Fund,and the Trustee may rely thereon in its dealings with the InvestmentManager. The Trustee shall have the power to take such action andexecute such documents withrespect to the Plan,the Trust Fund createdthereunder and thebenefits provided thereunderas it may deem necessary or advisable inorder to carry out thepurposesfor which the Plan is established and operated.
8.2 | Investment of Trust Fund. |
(a) The Plan is designed to be anemployee stockownership plan as defined in Section4975(e)(7) of the Code andregulations thereunder. Therefore, the Plan shall be invested primarily inEmployer Stock.The ESOPCommittee shalldirect the Trustee inwriting as to allpurchases and sales ofEmployer Stockbythe Plan. Sharesof Employer Stockmay bepurchased inthe open market, from the Company or affiliatesof theCompany, or through privately negotiated transactions, at prices not in excess of the fair marketvalue of the Employer Stock onthe date of the purchase, as long as suchpurchases are permittedbyapplicable law. The Trusteemay suspendpurchases of Employer Stock incircumstances which, inthe opinionof counsel for the Trustee,such suspension is necessary to complywith rules and regulations of the Securities and Exchange Commission, inwhich event such purchases willbe made or resumed as or when the Trustee issatisfied thatsuch purchases are permittedunder such rules and regulations.
(b) To the extentthe Trusteedoes notreceive such writtendirection fromthe Plan Administrator and to the extent the Trust Fund is not invested in Employer Stock, thefunds
of the Trust may be invested in stocks,common or preferred, trust shares, mutualfund shares, annuitycontracts and insurance policies (including specifically “key man”insurance onany keyemployee ofthe Employer) bondsand mortgages andother evidences of indebtedness orownership, master variable notes, commercial paper, repurchase agreements issuedbypersons other than the Trusteewhich are secured byobligations of theU.S. Treasury oragencies or instrumentalitiesof the United States(except as anysuch investment maybe limitedhereunder or under the provisions ofERISA), and, consistentlywith Code Section 4975(d)(4), any deposits with SouthwestGeorgia Bank or an affiliatedstate or federally supervisedbank, including certificates of deposits or savings certificates, and in anycommon trust fund or commingled trust fund maintained by the Trustee for the investment of qualifiedemployee benefit trusts; provided, however, the Trustee or Investment Manager, as the case may be, shall be subject to the principalrequirements that the Plan is to be invested primarily inEmployer Stock and that the investmentsof the other assets of the Plan shallbe diversified tothe extentnecessary to minimizethe risk of large losses, unless under the circumstances it is clearly prudent not to do so. For purposes of therestrictions on investment inand holding of Employer Stock,the Trustee(andanyInvestment Manager) shall be permitted to invest in and hold such securities having an aggregate fair marketvalue up to100% of the fair market valueof theTrust Fund’s assets withrespect to the ESOPAccount.
(c) If the Plan Administratordirects the Trustee to disposeof shares of Employer Stock undercircumstances which would, inthe opinionof counsel for the Trustee,require registration ofsuch shares underthe SecuritiesAct of 1933 and/orqualification of theshares underthe blue skylaws ofanystate orstates, then the Trustee shall notbe requiredtoproceed with such disposition of the shares unless theEmployer takes any and all actions asmaybe deemed necessarytoeffect such registrationand/or qualification. The costsof suchregistration and/or qualification shall be borneby theEmployer.
(d) The Trusteemaycause any investment in securitiesheldbythe Trusteetobe registered inor transferred into itsname as Trustee or intothe name of such nominee as it mayappoint, or itmayretain the same unregistered and insuch form as shallpermit transferability, butthe booksand records of the Trust Fund shallat all timesshow that allsuch investments are part of the Trust Fund.
(e) The ESOPCommittee shall establishthe general investment policy andobjectives for the Trust Fund and shallcommunicate same tothe TrusteeandanyInvestment Manager whomay thenbe serving as such, as promptlyas practicableafter establishing orrevising same. It shall bethe responsibilityof theTrustee andany suchInvestment Manager toadvise theCompany, inwriting, at reasonable intervalsand atsuch other timesas the Company shallrequest of all investmentsand reinvestmentsof the Trust Fund made infurtherance of such investment policy and objectives.
(f) The Non-Employer Securities Portionof the Plan shallbe invested invarious investment optionsaccording tothe investmentdirections of Participantsor as otherwise directedbythe ESOPCommittee. If Participants may directthe investments,the Plan Administrator shall communicate the Participants’ investment directions to the Trustee who shall invest amounts credited tosuch accounts in accordance with Participants’ directions. TheParticipant Directed Amount shall not share ingeneral Trust Fund earnings, but it shall be
charged or creditedas appropriate withthe net earnings, gains, losses and expensesas wellas any appreciation or depreciation in market value attributable to such account.
(g) Notwithstanding the foregoing provisionsof this Section 8.2,the investment of Trust Fund assets shall be subject to the provisions of Article IVof the Plan.
8.3 Discharge of Duties. The ESOPCommittee, Plan Administrator,the Trustee and anyInvestment Manager (and anyother party who mayat any timebe serving as a Fiduciary with respect to the Plan) shall discharge their duties solelyin the interestsof the Participantsand Beneficiaries, for the exclusivepurpose of providing benefitsas herein described and defraying reasonable expensesof administration, inaccordance withthe Plan and consistent withthe fiduciaryresponsibility provisions of ERISA TitleI, and withthe care, skill,prudence and diligence, under the circumstances thenprevailing, that a prudentman acting in a likecapacity and familiar withsuch matters woulduse in the conduct of an enterprise of likecharacter and with like aims.
8.4 Prohibited Transactions.Notwithstanding anything herein to the contrary,neither the Trustee, norany other partyatany time servingas a Fiduciarywith respect to the Plan,shall cause the Plan toengage in any“prohibited transactions” as same are definedand applicable to this Planunder ERISA Section 406or Code Section 4975,subject to anyavailable and applicable exception contained inor allowedbyERISA or the Code, and, exceptas otherwise permittedby such exemptionand provided for herein, incomplying withsuch limitations, neither the Trusteenor anyother Fiduciary shallengage inany transactionwhich they know or should know constitutes a direct or indirect:
(a) sale or exchange orleasing ofany propertybetween the Trust Fund and a “party in interest” or a “disqualified person” (as such terms are defined underERISA);
(b) lending of money or other extensionof credit between the Trust Fund and a partyin interest oradisqualified person;
(c) furnishing of goods, services,or facilitiesbetween the Trust Fund and a party in interest or a disqualified person;
(d) transfer to,or useby orfor the benefit of, a party ininterest or a disqualified person, of any assets of the Trust Fund; or
(e) acquisition, onbehalf ofthe Trust Fund, of anyEmployer security orEmployer real property which would constitute a violation by this Plan of Section 407 ofERISA.
Unless such transaction is permissibleunder ERISA,neither the Trustee nor any other Fiduciary shall deal withthe assets of the Trust Fund intheir own interest or for their ownaccount or act inany transactioninvolving the TrustFund on behalfof a party(or represent aparty) whose interestsare adverse tothe interestsof the TrustFund orthe interestsofits Participantsor Beneficiaries.No Fiduciary shallreceiveany considerationfor itsown personalaccount fromany partydealing withthe Trust Fund inconnection with atransaction involving the assets of the Trust Fund.
8.5 Delegation of Responsibilities.The Trustee and anyotherparty servingas a Fiduciarywith respect tothe Plan shallact prudently inthe delegationor allocation of responsibilities toother persons (to the extentsuch delegation or allocation isallowable hereunder and under ERISA), and if atany timethere ismore than one authorized Trusteeserving, each Trustee shallexercise reasonablecare to prevent theother Trusteesfrom committing abreach ofsuch other Trustees’ obligationsand responsibilitieshereunder. Each Fiduciary shallconduct aperiodic review to assure thatfunctions delegatedbysuch Fiduciaryare carried outproperly. Neither the Trustee noranyother person servingatany timeas a Fiduciarywith respect to the Plan shall be liable for the actions of any other Trustee or Fiduciary unless he knowingly participates, approves, acquiesces in or conceals a breach of obligations and responsibilities committed by the other.
8.6 Powers of Trustee. Subject tothe rights ofthe ESOPCommittee withrespect tothe purchase and saleofEmployer Stock,the termsof an exemptloan, and the rightsof the Participants withrespect tothe voting and tender of Employer Stock,the Trustee (andanyInvestment Manager tothe extentapplicable toits investmentpowers and duties) shallhave the following powersand authority in the administrationand investment ofthe Trust Fund, to beexercised withoutbeing required to make or to fileany inventoryor appraisal with,nor togive any bondor be a suretythereon to,any officer,court or tribunal,and inaccordance with and subject to the above provisions of thisArticle VIII:
(a) Purchase of Property. To purchase or subscribe for any securitiesor otherproperty, real and personal, and to retain the same in trust.
(b) Sale, Exchange, Conveyance and Transfer of Property. To sell,exchange, convey, transfer or otherwise disposeof any securitiesor other property heldby it,by public orprivate sale withoutnotice, advertisement or courtorder. No person dealing with the Trustee shallbe bound tosee tothe application of the purchase money or to inquire intothe validity, expediency, or proprietyofanysuch-sale or other disposition.
(c) Exercise of Owner’s Rights. Subject to Section 5.15, tovoteinaccordance with itsfiduciary obligationshereunderany Employer Stockor any other stocks, bonds or other securitiesheld in the TrustFund on all matters for which such vote is required;togive general or special proxiesor powers of attorneywith or without powerof substitution; toexerciseany conversionprivileges, subscriptionrights, or other options,and tomakeanypayments incidental thereto; tooppose, or to consent toor otherwise participate in,corporate reorganizations or otherchanges affecting corporate securities, and todelegate discretionary powers, and to payany assessments or charges in connection therewith; and generally to exercise any ofthe powersof an owner withrespect to the Employer Stock and any other stocks, bonds, securities or other property held as part of the Trust Fund.
(d) Borrowing. To borrow or raise moneyfor the purposeof the Plan insuch amount,and upon suchterms and conditions,including entering intopurchase moneytransactions, as the ESOPCommittee appointedbythe Boardmay directand the Trustee shalldetermine appropriate; and for any sum so borrowed, to issue its promissory note as Trustee, and tosecure the repayment thereof by pledging all orany partof theTrust Fund. Aloan shall beused primarilyfor the benefitof PlanParticipants and their Beneficiaries. No person lending
money to the Trustee shall be bound to see to theapplication of the money lent or to inquireintothe validity, expediency orpropriety ofany suchborrowing.Any borrowingbythe Trustee topurchase Employer Stock shall provide for the following special provisions:
(i) the Plan shall repay to the lender the amount of such loan,together withthe interest thereon, only out of amounts contributedfor such purposes tothe Planby theEmployer;
(ii) from time totime, as the Planrepays suchloan, shares of Employer Stock shallbe released fromthe suspense account forallocationtoParticipants’ accountsas provided in Section4.3(b);
(iii) the collateral,if any, fromthe Trust Fund tosecure suchloan shallbe limited to the Employer Stock purchased withthe proceeds of such loan and thenonly tothe extent that suchstock has not beenreleased from the suspense accountforallocation to Participants’ accounts as provided for in Section 4.3;
of the Plan;
(iv) | the loan shallbe made withoutrecourse against the existingassets |
(v) inthe event of defaultbythe Planunder suchloan, the value of assets of the Plan transferred in satisfaction of the loan must not exceedthe amount of thedefault; provided, where the lender is a “disqualifiedperson” (assuch term isdefined in Code Section 4975), Plan assets may be transferred to such disqualified persononly upon and to the extent of failure to meet thepayment scheduleof the loan;
(vi) the loan must be for a specific term, and notpayable on demand,and the interestrate onthe loan must notbe in excessof a reasonablerate and theproceeds ofany suchloan shallbe used within areasonable period of timeafter themaking ofthe loan to acquireEmployer stock or to repay other such loans; and
(vii) such other requirementsas maybe necessaryfor the loan or purchase money transaction tomeet the applicable requirements of Code Section4975 for an exempt loan.
(e) Retention ofCash. To keep such portion of the Trust Fund in cash or cashbalances as the Trustee,from timeto time,may deem tobe in the best interests of the Trust, without liability for interest thereon.
(f) Retentionof Property Acquired. Toaccept andretain forsuch time as it maydeem advisable any securitiesor other propertyreceived or acquiredby itas Trustee hereunder, whetheror notsuch securities or other property would normally be purchased asinvestments hereunder.
(g) Executionof Instruments. To make, execute, acknowledge and delivery anyand alldocuments oftransfer and conveyance andanyand all other instruments that may be necessary or appropriate to carry out the powers herein granted.
(h) Settlementof Claimsand Debts. To settle, compromiseor submitto arbitrationany claims, debtsor damages due orowing to or fromthe TrustFund, to commenceor defend suits or legal or administrative proceedings, and to represent theTrust Fund in all suitsand legal and administrative proceedings.
(i) Employment of Agentsand Counsel.To employsuitable agents andcounsel (who shallbe counselfor or acceptable tothe Company), and to pay their reasonable expenses and compensation, and the Trustee shall be fully protected in relyingupon the advice of such counsel.
(j) Buy-Sell Agreements. To enter intobuy-sell agreements uponsuch terms as the Trusteedeems appropriate for the purchaseof Employer Stock whichgive the Planthe option topurchase Employer Stock uponthe deathof another party tothe agreement, butwhich do not obligate the Plan to purchase such Employer Stock.
(k) Power to DoAny NecessaryAct. To do allacts, take allsuch proceedings, and exercise allsuch rightsand privileges, although not specifically mentionedherein, as the Trusteemaydeem necessary toadminister the Trust Fundand to carry out thepurposes of this Trust.
The interest and principalpayments made withrespect to anyloanbythe Planduring a PlanYear shall not exceedthe excessof (1) the sumof the contributionsmade for such PlanYear and all prior PlanYears (together with any earnings on such contributions);over (2) theinterest andprincipal payments previously made withrespect to all loans in all prior PlanYears. Such contributionsand earnings shallbe accountedfor separatelyby the ESOPCommittee until the loan is repaid.
8.7 Payments From The Fund.The Trustee shall from time to time, onthe written directions ofthe Plan Administrator,make payments out ofthe Trust Fund to such persons,in such manner, insuch amounts,and for such purposes as may be specified inthe written directions of the Plan Administrator,pursuant toArticle V, and upon anysuch payment being made, the amountthereof shall nolonger constitute apart of the Trust Fund.Each such written direction shall be accompanied by acertificate ofthe Plan Administrator thatthe payment is inaccordance withthe Plan.The Trustee shall notbe responsible in any waywith respect tothe application of such payments,or, subject toobserving thestandards hereinabove setforth in Sections 8.1through 8.5,for the adequacy ofthe Trust Fund tomeet and discharge anyand all liabilities under the Plan.
8.8 Payment of Compensation, Expensesand Taxes.The Trustee (and anyInvestment Manager) shallbe paid such reasonablecompensation as shallfrom time to time beagreed upon inwritingbythe Employer and the Trustee or the Investment Manager, as the case maybe. In addition, they shallbe reimbursed for anyreasonable expenses,including reasonablecounsel fees, incurredby them inthe managementand investment of theTrust Fund. Suchcompensation and expenses shall bepaid eitherby the Employer orthe Trust,as directedby theEmployer, but untilpaid shall constitute acharge uponthe Trust Fund. All taxesof anyand all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respectof, the Trust Fund or the income thereof shallbe paid from the Trust Fund. Brokerage fees and
commissionsand other purchase and sale transactionassociated costs shallbe paidby the Companyorthe Trust,as directedbythe Company, but untilpaid shallconstitute acharge uponthe Trust Fund.
8.9 Accounting. The Trustee shallkeep accurateand detailed accountsof all investments,receipts, disbursementsand other transactionshereunder. Allaccounts, booksand records relating tosuch transactions shallbe open to inspectionand auditat allreasonable timesby anyperson designated by the Plan Administrator.
Within ninety(90) days following the close of each fiscalyearof the Trust and within ninety(90) days after the removal or resignationof the Trusteeas provided in Section 8.11hereof, theTrustee shallfile with the Plan Administrator awritten account setting forth all investments, receipts, disbursements, and other transactions effected by it during such fiscalyearor during the period fromthe close of the lastfiscalyear tothe dateof such removal or resignation, and setting forth the current value of the Trust Fund.
8.10 Bond.Any person or partyserving as a Fiduciarywith respect tothe Plan and anyother personor party handlingfunds of the Plan shall,if requiredbyERISA and nototherwise exempted, bebonded inan amount which shall notbe less than 10percent ofthe amountof the Trust Fund, but in noevent shall anysuch bond be less than $1,000.00nor morethan $500,000.00.The amount of such bond shall be fixed at the beginningof each Plan Year inaccordance withthe provisions of ERISA Section412(a). The Employer shall be responsible forpaying the cost of such bond.
8.11 | Resignation or Removal of the Trustee. |
(a) Term of Trustee. The Trustee shallcontinue toserve as such untilhis resignation or removal as herein provided.
(b) Resignation.Any Trusteemayresign and becomeand remain fullydischarged fromany and all further dutiesor responsibilitieshereunderby givingat leastsixty
(60) days’ prior writtennotice tothe Company statingthe effective dateof such resignation,or such shorter notice as the Companymayaccept as sufficient. Suchresignation shalltake effect on the date specified therein unless a successor Trustee(s) shall have beenappointed at an earlier date, inwhich event such resignation shall take effect immediately upon the appointment of suchsuccessor Trustee(s).
(c) Removal. AnyTrustee may be removedbythe Company’s giving at least sixty(60) days prior writtennotice tothe Trustee stating the effective dateof such removal, orsuch shorter notice as the Companymay requestand the Trusteemayaccept as sufficient, inwhich event such removed Trustee shall becomeand remain fullydischarged from all further duty or responsibilityhereunder after the effective date of such removal.
(d) Appointmentof SuccessorTrustee.Inthe eventof the resignation orremoval ofany Trustee, a successorTrustee(s) shall promptlybe appointed bythe Board of Directorsof the Company who shallgiveany remaining Trustee(s) notice ofsuch appointment. Anysuccessor Trustee(s) shall immediately upon his appointmentas asuccessor Trusteeand hisacceptance of same inwriting filed withthe Companyandanyremaining Trustee(s) become
vested with allof the property, rights,powers and dutiesof a Trustee with likeeffect asiforiginally named the Trusteehereunder.Any successor Trustee shall not be required to look into the actions of a prior Trustee unless directed to do so by the Plan Administrator.
ARTICLE IXAMENDMENT OF THE PLAN
TheCompany shall have the right at any time by instrument in writing, duly executed and
acknowledged and delivered tothe Trustee tomodify, alteror amend this Planand Trust in whole or in part, provided, however, that the duties, powers and liability of the Trustee hereunder shall notbe substantially modified without itswritten consent and provided further thatanybenefits which have actuallyaccrued and becomepayable hereunder shall notbe affectedthereby. No amendment shall be made which shall causeor authorize anypart of the Trust Fund torevert or berefunded toan Employer or tobe used for or diverted to purposesother thanthe exclusiveand sole benefitof the Participantsor their Beneficiaries (otherthan such part as isrequired to pay taxesand expenses ofadministration). The Company shall have the limited right toamend this Agreementatany time, retroactively or otherwise, in suchrespects and tosuch extentas may be necessary to qualify itunder existingand applicable lawsand regulations so as to permitthe full deductionfor taxpurposes of theEmployer’s contributionsmade hereunder,and if and tothe extent necessary toaccomplish such purposemayby suchamendment decreaseor otherwise affect the rights of Participants tobenefits which have actually accrued and becomepayable hereunder, any provision herein to the contrarynotwithstanding.
No amendment tothe Plan shallreduce a Participant’s Account Balanceor eliminatean optionalform of distribution except tothe extentpermissible under Code Sections 411, 412,or any other relevant CodeSection. No amendment to the Plan shall have the effect of decreasing aParticipant’s Account Balance determined withoutregard tosuch amendmentas of the laterof the date such amendment is adopted or the date it becomes effective.
ARTICLE X
DISCONTINUANCE OF CONTRIBUTIONS
AND TERMINATION OF PLAN
10.1 Intention to Continue Plan. The Plan herein provided for has been establishedbythe Companywith the bona fide intention that it shallbe continued in operationindefinitely and that contributionshereunder shallcontinue for an indefinite period. However, the Companyreserves the right atany time toterminate the Plan,andanyEmployer reserves the rightatany time to discontinue contributions.
10.2 Termination or Partial Terminationof Plan.The Trustee shallbe notifiedof such terminationor partial termination inwriting and shallproceed at the direction of the Plan Administrator to liquidatethe assets of the TrustFund. Upon terminationof thePlanbyan Employer, the Employer shall not thereafter make any further contributionsunder the Plan, and no amount shallthereafter be payable under the Plan toor inrespect of anyParticipants then
employedby suchEmployer, exceptas provided in thisSection Xor except as amounts maybecome payable under the Plan as aresult of such Participantscontinuing their participation inthe Planas aresult of being employedby otherparticipating Employers. To the maximum extentpermitted byERISA, transfers, distributionsor other dispositionsof assets of the Plan asprovided in thisArticle X shall constitute acomplete discharge of all liabilitiesunder the Plan. Promptly upon anysuch termination the Trustee shall(i)pay anydue and accrued expensesand liabilities of the Trust and anyexpenses involved in the termination of the Plan and appropriately adjust,as may be required, allaccounts of Participantsfor such expensesand charges; and (ii) adjustfor income, gainsand lossesof theTrust Fund tosuch terminationdate inthe mannerdescribed in Section4.2(a) hereof as if such terminationdate was an Annual Valuation Date. The interest of each affectedEmployee inthe adjusted amountthen credited tohis Employer ContributionAccount shallbe nonforfeitable as of such date. The fullcurrent valueof such adjusted amount shallbe paid from the Trust Fund toeach such Participant insuch manner of distributionspecified in Section 5.6hereof as thougheach such Participantseparated fromService as of thedate of termination,or shallcontinue tobe held inTrustatthe discretion of the Plan Administrator asprovided in Article V.
Inthe event of a partial termination ofthe Plan,the payments, adjustmentsand distributionsdescribed above shallalso be made, but onlywith respect to the portion ofthe Planbeing terminated.
Termination or partial terminationof the Plan shall notaffect the payment of benefits,inaccordance with Section 5.6hereof, from the TrustFund, nor shallsuch funds thereafter be divested by reason of any provision hereof.
10.3 Discontinuance of Contributions.Inthe event of acomplete discontinuance bythe Employer of contributions tobe madeby ithereunder, the accountsof all Participants shallbe treated, and the rightsof all Participants shallbe, as if the Plan was terminated ascontemplated under Section 10.2 onthe effectivedate of such discontinuanceor the date suchdiscontinuance is deemed tohave been effective,including, but notlimited to, nonforfeitability of all amounts credited to theEmployer Contribution Accounts of all affected Participants.
ARTICLE XI MISCELLANEOUS
11.1 Participants’ Rights,Acquittance. Except to the extentrequired or provided for
by mandatorily imposedlaw as ineffect and applicable heretofrom time to time,neither theestablishment of the Trust herebycreated, nor anymodification thereof, northe creationofanyfund or account,nor the payment ofany benefits, shallbe construed as giving toanyParticipant or other personany legalor equitable right againstthe Employer, or anyofficer or employeethereof, the Trustee or the Plan Administrator except as herein provided nor shall any Participanthaveany legal right, titleor interest in this Trustoranyof itsassets, except inthe event and tothe extent thatbenefits may actuallyaccrue to himhereunder, and the same limitations shallbe applicable with respect todeath benefits which maybepayable tothe beneficiaries of aParticipant. Under nocircumstances shall theterms of employment ofany Participant be
modified or inany wayaffected hereby. This Planand Trust shall not constitute a contract ofemployment nor afford any individual any right to be retained in the employ of theEmployer.
11.2 SpendthriftClause. Except tothe extentpermittedbythe Code,Participants are prohibitedfrom anticipating, encumbering,alienating or assigningany oftheir rights, claims orinterest in thisTrust or inany of theassets thereof, and no undertaking or attempt to do so shall in any way bindthe Plan Administratoror theTrustee orbe ofany forceor effectwhatsoever. Furthermore, except tothe extentpermittedbythe Code, nosuch rights, claimsor interest of aParticipant in thisTrust or in any ofthe assetsthereof shall inany waybesubject tosuch Participant’s debts, contractsor engagement,nor toattachment, garnishment, levyorother legal or equitable process.
The foregoing provisionagainst the assignment of a Participant’s right inthe Plan shall not apply in thecase of (i)aqualified domestic relationsorder which is determinedby the Plan Administrator tomeet the requirementsof Code Section414(p), or (ii)the Participant’s liability tothe Plandue to(A) the Participant’s convictionof acrime involving the Plan, (B) a judgment,consent order,or decree inaction for violationof fiduciary standards,or (C) a settlement involving the Department of Labor or Pension Benefit Guaranty Corporation.
Effective April 6, 2007, a domesticrelations order that otherwisesatisfies the requirements for a qualified domesticrelations order will notfail to be aqualified domestic relations order: (i)solely becausethe order is issuedafter, orrevises, another domestic relations orderor qualified domestic relations order; or (ii) solely because of the time at which the order is issued, including issuance after the Participant’s death.
Inanyaction or proceeding involving the Trust Fund, or any propertyconstituting part or allthereof, or the administrationthereof, the Employer,the Plan Administratorand the Trustee shallbe theonly necessaryparties and noEmployee or formerEmployee of the Employer or his Beneficiaryor any other person having or claiming to have an interest in the Trust Fund or underthe Planshall be entitled to anynotice or serviceof process. Anyfinal judgment which isnot appealed or appealable that may be entered in any such action or proceeding shall be binding andconclusive onthe partieshereto, the Plan Administratorand allpersons having or claiming tohaveanyinterest in the Trust Fund or under the Plan.
11.3 Participationof Adopting Employers. Withthe written consent of the Company, an adopting Employer maybecome aparty to thisagreement pursuant to authorizationby itsBoard of Directors.Inthe event an adoptingEmployer does so become aparty, it shallcontribute tothe Plan, and itsEmployees shall be entitled to benefitshereunder, in accordancewith the terms of the Plan subject tothe following special provisions:
(a) The contribution ofeach adoptingEmployer shall be determined separatelyby its Board of Directors under Article IIIhereof.
(b) In computingthe Serviceof aperson who is inthe employ of only oneof the adoptingEmployers at the same time,the periodof Serviceof suchPerson withany of theadopting Employers shallbe counted, and atransfer of an Employee fromthe employ ofone
adopting Employer to the employ of another shall notinterrupt his Service, nor shall such a transfer constitute a termination of Service under the terms of this Plan.
(c) The contribution of each adoptingEmployer shallbe allocatedamong itsEmployees separately fromthe contributionsof the others inaccordance with the provisionsof ArticleIV.Net increases and decreases inthe value of the Trust Fund resulting from increases or decreases in the valueof theassets of the Trustand earnings and losses shallbe allocatedamong allParticipants under the Plan as agroup in accordance with the provisions ofArticleIV. Participants who areEmployees of one or more adoptingEmployers shall have separate accounts with respect to their participation as an Employeeofeach such adoptingEmployer.
(d) Inthe eventof atransfer ofany Participant fromthe employ ofoneadopting Employer to the employ ofanother, hisaccount shallbe consideredand treatedthereafter as the accountof aParticipant who is anEmployee of the adopting Employer towhichhe is transferred.
In theevent of such atransfer, theParticipant transferred shall share in thenext annual contributionof each of such adoptingEmployers on apro rata basis,based uponhisAnnual Compensation witheach such Employer during itsfiscal year inwhich the transfer takesplaces.
11.4 Successor Employer. In the event of the dissolution,merger, consolidationorreorganization of the Company, provision maybemadebywhich the Plan and Trust will be continuedbythe successor, and such successor shallbe substitutedfor the Company underthe Plan.The substitution of the successor shall constitutean assumption of Planliabilitiesby the successor and the successor shall have all the powers, duties and responsibilities of the Companyunder the Plan.
11.5 Transfer of PlanAssets.Inthe event ofany mergeror consolidationof the Plan with,or transfer inwhole or in part ofthe assetsand liabilitiesof the TrustFund to another trustfund held underany otherplan ofdeferred compensationmaintained or tobe established for thebenefit of allor some of the Participantsof this Plan,the assets of the Trust Fund applicable to such Participants shall be transferred to the other trust fund onlyif:
(a) each Participant would,if either this Planor the other Plan thenterminated, receive a benefit immediately afterthe merger, consolidationor transfer whichis equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidationor transfer if the Plan had then terminated;
(b) resolutionsof the Boardof Directorsof the Employer ofthe affected Participants shall authorizesuch transferof assetsand, inthe case ofthe newor successoremployer of the affected Participants, itsresolutions shallinclude an assumptionof liabilities with respect to such Participant’s inclusion in the newemployer’s plan;
501(a); and
(c) | such other plan and trustare qualified underCode Sections 401(a) and |
(d) the Trustee is authorized to makeor receive such direct transfersat the direction of theCompany.
11.6 Delegation of Authoritybythe Company. Whenever the Company under theterms of thisAgreement ispermitted or required to door performany actor matter or thingit shallbe done and performedby anyofficer thereunto dulyauthorizedbythe Board of Directors of theCompany.
11.7 Constructionof Agreement. This Planand Trustagreement shallbe construed according to thelaws ofthe state of Georgia, and all provisions hereof shallbe administeredaccording to,and its validityand enforceability shallbe determined underthe laws of such state, except where preempted by ERISA.
11.8 Headings. The headingsof Sectionsand subsectionsare forease of reference only and shall not be construed to limit or modify thedetailed provisions hereof.
ARTICLE XII
TOP-HEAVY PLAN PROVISIONS
12.1 Application. In the event thatthe Plan isdetermined tobe a Top-HeavyPlan as hereinafter defined, thisArticleXII shall becomeeffective as ofthe first day of thePlan Year inwhich the Plan isaTop-Heavy Plan.
12.2 | Definitions. |
(a) Compensation.The compensation (within the meaning of Code Section 415(c)(3)) of the Participant from theEmployer for the Plan Year.
(b) KeyEmployee. During anyPlan Year thatthe Plan is aTop-Heavy Plan,an Employee who is a KeyEmployee withinthe meaning ofCode Section416(i), includinganyEmployee, former Employee or Beneficiary of anEmployee or formerEmployee who atanytime during the Plan Year oranyof the four (4) preceding Plan Years,is (or was):
(i) an officer of theEmployer whose Compensation isgreater than50% of the amount in effect under Code Section415(b)(1)(A) foranysuch Plan Year;
(ii) 1of the 10Employees having Compensationof more than the dollar limitation inCode Section415(c)(1)(A) and owning (or consideredas owning withinthe meaning of Code Section318) one of the largest interests inthe Employer, which interest is at least 1/2%;
(iii) aone percent (1%) owner ofthe Employerhaving Compensation of more than $170,000 (as indexed); or
(iv) | a five percent (5%) owner of theEmployer. |
Ownership shall bedetermined according toCode Section 416(i)(1)(B). For purposes of(i) above, no more than fifty (50)Employees (or if less, the greater of three (3) orten percent (10%) ofthe Employees) shallbe treatedas officers. For purposesof (ii) above,if twoEmployees have the sameinterest inthe Employer,the Employee with thehigher Compensation shallbe treatedas having thelarger interest. AnEmployee or former Employeewho is not a KeyEmployee shall be a non-KeyEmployee.
(c) MinimumContribution. For a PlanYear, the lesserof three percent (3%)of aParticipant’s compensation (withinthe meaning of Treasury Regulation Section1.415-2(d)) or a percentage of a Participant’scompensation equal tothe percentageat which contributionsare made (or required tobe made) under the Planand allother plans of the Aggregation Group for the KeyEmployee for whom such percentage ishighest.
Notwithstanding the foregoing, for PlanYears beginning on orafter January 1, 2007, solely on behalf of any individualwho iscovered under adefined benefitplan maintainedbythe Employer, the three percent (3%) minimum contributionreferenced above shallbe replacedbyfive percent (5%).
(d) Top-Heavy Plan. Withrespect toany PlanYear, this Plan shallbedeemed Top-Heavy if the aggregateof the AccountBalances of all KeyEmployees inthe Planexceeds sixtypercent (60%)of the aggregate of the Account Balances of all Participants inthe Plan,such determination tobe made inaccordance withthe procedures described inCode Section416(g) as of the Annual Valuation Date immediately preceding such Plan Year (or in thecase of thefirst PlanYear, as of the lastday ofsuch PlanYear). For purposes ofdetermining whether the Plan is aTop-Heavy Plan,the Planshall be aggregated with allother plans within the Aggregation Group.
(e) Aggregation Group. Allplans maintainedby theEmployer (i) whicharerequired to be aggregated withthe Plan inorder for the Plan tomeet the requirements of Code Sections401(a)(4) and 410, (ii) inwhich a KeyEmployee is a participant,and (iii)any otherplan of the Employer that the Employer elects to include in the Aggregation Group, provided that anysuch plan would not causethe AggregationGroup to fail tomeet the requirementsofCode Sections 401(a)(4) and 410 with such plan being taken into account.
12.3 Allocationof Minimum Contribution.For anyyear inwhich the Plan is aTop- Heavy Plan, the Minimum Contribution as defined inSection 12.2(c) hereof shall be made to theaccount of each Participantwho is anon-Key Employee, unlessthe Minimum Contributionforthe Participant ismade under another defined contributionplan maintainedbythe Employer. Such Minimum Contribution shallbe made to theEmployer ContributionAccount ofeach non- KeyEmployee Participantwho has notseparated from service onthe last dayofsuch Plan Year without regard to such Participant’s Hours of Service during such Plan Year. The Employer and Plan Administratorshall determine under which plan aParticipant shallreceive the Minimum Contribution if theEmployeeis a Participant in more than one plan maintained by theEmployer.
12.4 | Post-EGTRRA Top-Heavy Provisions. |
(a) Effective date. This Section 12.4 shall apply forpurposes of determiningwhether the Plan is a Top-Heavy Plan under Code Section416(g) for PlanYears beginningafter December 31, 2001, and whetherthe Plan satisfiesthe minimum benefits requirementsof CodeSection 416(c) for suchyears. ThisSection12.4 amends Sections 12.1through12.3 of the Plan.
(b) | Determination of Top-Heavy Status. |
(i) KeyEmployee. KeyEmployee meansany Employeeor formerEmployee (includinganydeceased Employee) whoatany time duringthe PlanYear thatincludes the determination date was an officerof the Employer having Top-Heavy Compensationgreater than $135,000(as adjustedunder Code Section416(i)(1) for PlanYears beginning after December 31, 2005), a5% owner of theEmployer, or a1%ownerof the Employer havingTop-Heavy Compensation of more than $150,000.For thispurpose, Top-Heavy Compensationmeans compensation withinthe meaning of Code Section415(c)(3). Thedetermination of who is a keyemployee willbe madeinaccordance with Code Section416(i)(1) andthe applicable regulationsand other guidance of general applicability issued thereunder.
(ii) Determination of Present Values and Amounts.This Section12.4(b)(ii) shall applyfor purposesof determiningthe amountsof Participant’saccounts asof the determination date.
(1) DistributionsDuring Year Ending onthe DeterminationDate. The amountsof accountbalances of an Employee as of the determination date shallbe increasedbythe distributionsmade withrespect tothe Employee under the Planand any planaggregated withthe Planunder Code Section416(g)(2) during the 1-year period ending on the determinationdate. Thepreceding sentence shallalso apply to distributionsunder a terminatedplan which, had it not beenterminated, would havebeen aggregated with the Planunder Code Section416(g)(2)(A)(i). In the case of a distributionmade for areason other thanseverance fromemployment, death, ordisability, this provisionshall be appliedbysubstituting “5-year period” for “1-yearperiod.”
(2) Employees Not Performing ServicesDuring Year Ending onthe Determination Date. The accounts of any individualwho has notperformed servicesfor the Employer during the1-year period ending onthe determination date shall not be taken into account.
(c) Non-Applicabilityof Top-Heavy Provisions. The top-heavy requirementsof Code Section 416and this Section 12.4of the Plan shallnot apply inanyyearbeginning afterDecember31, 2001 in whichthe Plan consists solelyof a cash or deferred arrangement whichmeets the requirementsof Code Section 401(k)(12)and matching contributions withrespect towhichthe requirements of Code Section 401(m)(11) are met.
INWITNESS WHEREOF, the Company has caused this Agreement to be executedbyits dulyauthorized corporateofficer and itscorporate seal tobe hereunto affixed,and the Trustee has executed same underseal and thereby acceptedthe Trust, as of thedayandyearfirst abovewritten.
COMPANY:
(CORPORATESEAL)
SOUTHWEST GEORGIA FINANCIAL CORPORATION
By:DeWitt Drew
Title: President and Chief Executive Officer
TRUSTEE:
(CORPORATESEAL)
SOUTHWEST GEORGIA BANK
By:DeWitt Drew
Title:President and Chief Executive Officer
53
SCHEDULE A
AcquiredEmployers Service Crediting Provisions
Acquired Company | Credited Service |
Baker CountyBank | Prior service with Baker County Bank is recognized for participation purposes. |
Moultrie Federal Savings andLoan | Anyemployee who wasactively employedon January 7, 1991 automaticallybecamea participant on January 7, 1991. |
Bank of Pavo (acquired 12/11/98) | Immediateparticipation foremployees of Bank of Pavo upon closing of acquisition. |
Empire Financial Services,Inc. | Service ofemployees withEmpire FinancialServices, Inc. prior to January 1, 2002 iscounted for eligibility andvesting but notascredited service or for allocations of Employer Contributions. |
SylvesterBanking Company | Immediate participationfor employees of Sylvester BankingCompany.
Priorservice withSylvester Banking Company isrecognized for eligibilityand vestingpurposes but notas creditedservice or forallocations of Employer Contributions.Prior service withSylvester Banking Companywill be counted for the Break in Service rules under Section2.3 of the Plan. |
A-1
SCHEDULE B
AdoptingEmployers and Dates of Adoption
AdoptingEmployerDate of Adoption
Date Ceased to beAdoptingEmployer
Southwest Georgia BankJuly 8, 1981
Empire Financial Services,Inc.
January 1, 2002
B-1