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EXHIBIT 4.1
PUBLIX SUPER MARKETS, INC.
401(k) SMART PLAN
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PUBLIX SUPER MARKETS, INC.
401(k) SMART PLAN
TABLE OF CONTENTS
ARTICLE TITLE PAGE
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I Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II Establishment and Name of the Plan . . . . . . . . . . . . . . . . . . . . . 16
III Purpose of the Plan and the Trusts . . . . . . . . . . . . . . . . . . . . . 16
IV Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
V Eligibility and Participation . . . . . . . . . . . . . . . . . . . . . . . 19
VI Contributions to the Trust . . . . . . . . . . . . . . . . . . . . . . . . . 20
VII Participants' Accounts and Allocation of Contributions . . . . . . . . . . . 30
VIII Benefits Under the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 36
IX Form and Payment of Benefits, Withdrawals . . . . . . . . . . . . . . . . . 41
X Designated Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
XI Loans to Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
XII Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
XIII Expenses of Administration of the Plan and the Trust Fund . . . . . . . . . 48
XIV Amendment and Termination . . . . . . . . . . . . . . . . . . . . . . . . . 49
XV Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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PUBLIX SUPER MARKETS, INC.
401(k) SMART PLAN
Publix Super Markets, Inc. (the "Company") hereby enters into this
Agreement on this _____ day of _______________, 1994, and establishes this
401(k) plan, effective as of January 1, 1995, to provide supplementary
retirement and other benefits for its employees.
W I T N E S S E T H:
WHEREAS, the Company desires to recognize the contributions made to
its successful operations by its employees, to reward such contributions and to
provide for the retirement of its employees by establishing a 401(k) plan for
those employees who now or may hereafter qualify for participation therein; and
WHEREAS, the officers of the Company have been authorized and directed
by the Board of Directors of the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, it is agreed as
follows:
ARTICLE I
DEFINITIONS
1.1 "ACCOUNT" or "ACCOUNTS" shall mean a Participant's Savings
Contributions Account, Matching Contributions Account, and/or such other
accounts as may be established by the Plan Administrator. A Participant's
Matching Contributions Account, and any portion of his Savings Contributions
Account invested in the Publix Stock Fund, may include an Employer Securities
Account and an Other Investments Account, as set forth hereinafter.
1.2 "ACTUAL CONTRIBUTION PERCENTAGE" shall mean, with respect to a
group of eligible Participants for the Plan Year, the average of the Actual
Contribution Ratios (calculated separately for each member of the group) of
each eligible Participant who is a member of such group (other than certain
Family Members as described in the definition of "Highly Compensated
Employees").
1.3 "ACTUAL CONTRIBUTION RATIO" shall mean the ratio of the amount
of matching contributions (including elective contributions, if any, treated as
matching contributions in accordance with Treasury Regulation Section
1.401(m)-1(b)(5)) made on behalf of an eligible Participant for a Plan Year to
the Participant's Compensation for the Plan Year.
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1.4 "ACTUAL DEFERRAL PERCENTAGE" shall mean, with respect to a
group of eligible Participants for the Plan Year, the average of the Actual
Deferral Ratios (calculated separately for each member of the group) of each
eligible Participant who is a member of such group (other than certain Family
Members as described in the definition of "Highly Compensated Employees").
1.5 "ACTUAL DEFERRAL RATIO" shall mean the ratio of the amount of
savings contributions (including savings contributions by Highly Compensated
Employees in excess of the limitation set forth in section 6.1(a)(1) to the
extent required by Treasury Regulation Section 1.402(g)-1(e)(1)(ii)) made on
behalf of an eligible Participant for a Plan Year to the Participant's
Compensation for the Plan Year.
1.6 "ADMINISTRATOR" shall mean the Plan Administrator.
1.7 "AFFILIATE" shall mean, with respect to an Employer, any
corporation other than such Employer that is a member of a controlled group of
corporations, within the meaning of Section 414(b) of the Code, of which such
Employer is a member; all other trades or businesses (whether or not
incorporated) under common control, within the meaning of Section 414(c) of the
Code, with such Employer; any service organization other than such Employer
that is a member of an affiliated service group, within the meaning of Section
414(m) of the Code, of which such Employer is a member; any other organization
that is required to be aggregated with such Employer under Section 414(o) of
the Code; and, for purposes of determining Hours of Service and Years of
Service in Plan Years beginning before January 1, 1993, Publix Food Stores,
Inc. and Publix Market, Inc. For purposes of determining the limitations on
Annual Additions, the special rules of Section 415(h) of the Code shall apply.
1.8 "AGREEMENT AND DECLARATION OF TRUST" or "AGREEMENTS AND
DECLARATIONS OF TRUST" shall mean the agreement or agreements providing for the
Trust Fund or Funds, as entered into between the Company and the Primary
Trustee and/or between the Company and the Publix Stock Fund Trustee, as the
case may be, and as each agreement may be amended from time to time.
1.9 "ANNIVERSARY DATE" shall mean an Employee's first Hour of
Service (or his first Hour of Service following a One Year Break in Service
which occurred as a result of a separation from employment) or any succeeding
anniversary thereof.
1.10 "ANNUAL ADDITIONS" shall mean the sum of:
(a) the amount of Employer contributions (including
savings contributions other than amounts distributed as "excess
deferrals" in accordance with Treasury Regulation Section
1.402(g)-1(e)(2) or (3)) allocated to the Participant under any
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defined contribution plan maintained by an Employer or an Affiliate;
(b) the amount of the Employee's contributions (other
than rollover contributions, if any) to any contributory defined
contribution plan maintained by an Employer or an Affiliate;
(c) any forfeitures separately allocated to the
Participant under any defined contribution plan maintained by an
Employer or an Affiliate; and
(d) to the extent required by law, any contributions to
an individual account on behalf of the Participant under Section
401(h) or Section 419A(d)(2) of the Code.
1.11 "BOARD OF DIRECTORS" and "BOARD" shall mean the board of
directors of the Company or, when required by the context, the board of
directors of an Employer other than the Company.
1.12 "BUSINESS DAY" shall mean a day on which the New York Stock
Exchange and the home office of any third party administrator, that contracts
with the Plan Administrator to provide services to the Plan, are open for
business.
1.13 "CODE" shall mean the Internal Revenue Code of 1986, as
amended, or any successor statute. Reference to a specific section of the Code
shall include a reference to any successor provision.
1.14 "COMPANY" shall mean Publix Super Markets, Inc., and its
successors.
1.15 (a) "COMPENSATION" shall mean the regular salaries and
wages, overtime pay, bonuses, commissions and other amounts paid by an
Employer, as well as savings contributions made on behalf of a
Participant to this Plan pursuant to Section 401(k) of the Code and
elective contributions made on behalf of a Participant to any
cafeteria plan maintained by an Employer pursuant to Section 125 of
the Code, but shall not include automobile allowances, supplemental
travel allowances, third party disability payments, credits or
benefits under this Plan, any amount contributed to any employee stock
ownership, pension, employee welfare, life insurance or health
insurance plan or arrangement (other than savings contributions to
this Plan and elective contributions to a cafeteria plan), or any
other tax-favored fringe benefits.
(b) For all purposes of the Plan, no Compensation paid by
an Employer with respect to an Employee prior to the Employee's first
day of participation in the Plan (or with respect to any period during
which the Employee is not eligible to receive any contribution as
provided in section 5.2 and Article VI) shall be taken into account.
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(c) No Compensation in excess of $150,000 (adjusted by
the Commissioner of the Internal Revenue Service in accordance with
Section 401(a)(17)(B) of the Code) shall be taken into account for any
Employee. For purposes of determining whether Compensation exceeds
$150,000 (adjusted as described above), if any Employee is a Family
Member of a Highly Compensated Employee who is (i) a 5% owner of an
Employer, or (ii) one of the ten Highly Compensated Employees paid the
greatest amount of compensation during the Plan Year, then such Family
Member shall not be considered as a separate Employee and any
compensation paid to such Family Member shall be treated as if it were
paid to or on behalf of the related Highly Compensated Employee.
(d) If Compensation attributable to one or more Family
Members and a related Highly Compensated Employee exceeds $150,000 (as
adjusted) for any Plan Year, each Participant within the aggregation
group who has attained age 19 shall first be credited with an equal
dollar amount of Compensation, which shall not exceed the lesser of
his actual compensation or one-half of $150,000 (as adjusted) for any
Plan Year. If the compensation credited under the preceding sentence
to Participants within the aggregation group who have attained age 19
does not equal $150,000 (as adjusted), the Participant within the
aggregation group who has attained age 19 and who has not been
credited with his total actual compensation then shall be credited
with his additional actual compensation, which shall not exceed the
lesser of his remaining actual compensation or the difference between
$150,000 (as adjusted) and the sum of the compensation credited
pursuant to the preceding sentence. If the compensation credited
under the two immediately preceding sentences to Participants within
the aggregation group who have attained age 19 does not equal $150,000
(as adjusted), the Participants within the aggregation group who have
not attained age 19 shall be credited with proportionate shares of
their compensation, not to exceed, in the aggregate, the difference
between $150,000 (as adjusted) and the sum of the compensation
credited under the two immediately preceding sentences.
1.16 "DIRECT ROLLOVER" shall mean a payment of an Eligible Rollover
Distribution by the Plan to an Eligible Retirement Plan specified by the
Distributee.
1.17 "DIRECTED INVESTMENT FUND" shall mean an investment fund
established pursuant to section 10.1 for purposes of investing Participants'
Savings Contributions Accounts.
1.18 "DISTRIBUTEE" shall mean
(a) a Participant who is entitled to benefits payable as
a result of his retirement, disability or other severance of
employment as provided in section 8.1, 8.2, or 8.3,
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(b) a Participant's surviving Eligible Spouse who is
entitled to death benefits payable pursuant to section 8.4, and
(c) a Participant's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined
in Section 414(p) of the Code, entitled to benefits payable as
provided by section 15.2.
1.19 "EARNINGS" attributable to any Pooled Investment Fund (other
than the Publix Stock Fund) shall mean, with respect to a Valuation Period, the
aggregate of the unrealized appreciation or depreciation accruing to the Pooled
Investment Fund during such a period; and the income earned or the loss
sustained by the Pooled Investment Fund during such period, whether from
investments or from the sale or exchange of assets. The Earnings attributable
to a separate portion of a Segregated Investment Fund credited to the
Participant's Savings Contributions Account for any Valuation Period shall be
determined by multiplying the number of shares of the Segregated Investment
Fund credited to the Participant's Savings Contributions Account by the
difference between the value of each share for the current Valuation Date and
the value of each share as of the most recent preceding Valuation Date. The
Earnings attributable to any portion the Publix Stock Fund credited to an Other
Investments Account shall mean, with respect to a Valuation Period, (i) cash
dividends received on shares of common stock of the Company allocated to
Participants' Employer Securities Accounts and (ii) the aggregate of the
unrealized appreciation or depreciation occurring in the value of, or that
portion of the income earned or the loss sustained by, the portion of the
Publix Stock Fund during such period that is invested in assets other than
shares of common stock of the Company.
1.20 "EFFECTIVE DATE" of this Plan shall mean January 1, 1995.
1.21 "ELIGIBILITY DATE" shall mean the Saturday of the week
(beginning on Saturday and ending the following Friday) during which an
Employee's Anniversary Date occurs, if he has completed his first Year of
Service and has attained age 19 as of the day immediately preceding such
anniversary. If an Employee completes his first Year of Service prior to
reaching age 19, his Eligibility Date shall mean the Saturday of the week (as
specified above) during which the Employee's 19th birthday occurs.
1.22 "ELIGIBLE RETIREMENT PLAN" shall mean an individual retirement
account described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in Section 401(a) of
the Code, that accepts a Distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to a Participant's
surviving Eligible Spouse who is entitled to death benefits payable pursuant to
section 8.4, an Eligible Retirement Plan shall mean an individual retirement
account or individual retirement annuity.
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1.23 "ELIGIBLE ROLLOVER DISTRIBUTION" shall mean any distribution
of all or any portion of the balance to the credit of a Distributee, other
than:
(a) any distribution that is one of a series of
substantially equal periodic payments (not less frequently than
annually) made
(1) for the life (or life expectancy) of the
Distributee, or the joint lives (or life expectancies) of the
Distributee and the Distributee's designated beneficiary, or
(2) for a specified period of ten years or more;
(b) any distribution to the extent such distribution is
required under Section 410(a)(9) of the Code; and
(c) the portion of any distribution that is not
includible in gross income (determined without regard to the exclusion
for net unrealized appreciation with respect to employer securities).
Notwithstanding the preceding provisions of this section, an Eligible Rollover
Distribution shall not include one or more distributions during a Plan Year if
the aggregate amount distributed during the Year is less than $200 (adjusted
under such regulations as may be issued from time to time by the Secretary of
the Treasury).
1.24 "ELIGIBLE SPOUSE" shall mean a Participant's husband or wife,
provided the Participant and such husband or wife have been married throughout
the one-year period ending on the earlier of (1) the date payment of the
Participant's benefit commences or (2) the date of the Participant's death.
1.25 (a) "EMPLOYEE" shall mean any person employed by an
Employer or an Affiliate other than:
(1) a person who serves only as a director of an
Employer,
(2) a member of a collective bargaining unit if
retirement benefits were a subject of good faith bargaining
between such unit and an Employer, and
(3) a nonresident alien who does not receive
earned income from sources within the United States.
(b) The term "Employee" shall also include any leased
employee of the Employer; provided, however, that contributions or
benefits provided by the leasing organization that are attributable to
services performed for such Employer shall be
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treated as provided by such Employer. The preceding sentence shall
not apply to any leased employee if:
(1) leased employees do not constitute more than
twenty percent (20%) of the Employer's Non-Highly Compensated
Employees (as determined without regard to this section
1.25(b)), and
(2) such leased employee is covered by a money
purchase pension plan providing:
(A) a nonintegrated employer
contribution rate of at least 10% of compensation (as
defined in Section 414(n) of the Code),
(B) immediate participation, and
(C) a full and immediate Vested Interest.
(c) For purposes of section 1.25(b), the term "leased
employee" means any person (other than an employee of the Employer)
who, pursuant to an agreement between the Employer and any other
person, has performed services for the Employer (or for the Employer
and one or more Affiliates) on a substantially full time basis for a
period of at least one year and such services are of a type
historically performed by employees in the business field of such
Employer.
1.26 "EMPLOYER" shall mean the Company and any subsidiary, related
corporation, or other entity that adopts this Plan with the consent of the
Company.
1.27 "EMPLOYER SECURITIES ACCOUNT" shall mean a subaccount which
may be established pursuant to section 7.2 with respect to matching
contributions and savings contributions invested in common stock of the Company
held within the Publix Stock Fund, and adjustments thereto.
1.28 "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, or any successor statute. References to a specific
section of ERISA shall include references to any successor provisions.
1.29 "FAMILY MEMBER" of a Highly Compensated Employee, as defined
in section 1.30, shall mean such Employee's spouse, lineal descendant or
ascendant, or the spouse of his lineal descendant or ascendant; provided,
however, that for purposes of determining the $150,000 limit on a Highly
Compensated Employee's Compensation, as described in section 1.15, the term
"Family Member" shall include only the Employee's spouse and his lineal
descendants who have not attained age 19 before the close of the Plan Year.
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1.30 "HIGHLY COMPENSATED EMPLOYEE" shall mean any Employee during
the Plan Year or the immediately preceding Plan Year
(a) who was a 5% owner of an Employer or an Affiliate;
(b) whose Section 415 Compensation was more than $75,000
(adjusted under such regulations as may be issued by the Secretary of
Treasury);
(c) whose Section 415 Compensation was more than $50,000
(adjusted under such regulations as may be issued by the Secretary of
Treasury), and who was a member of the "top paid group." As used
herein, "top paid group" shall mean all Employees who are in the top
20% of the Employer's or an Affiliate's work force on the basis of
Section 415 Compensation paid during the year; or
(d) who was an officer of an Employer or an Affiliate and
received compensation in excess of 50% of the amount in effect under
Section 415(b)(1)(A) of the Code for any such Plan Year (adjusted
under such regulations as may be issued by the Secretary of the
Treasury); provided, however, that in no event shall more than 50
Employees (or, if less, the greater of three Employees or ten percent
(10%) of the Employees) be considered Highly Compensated Employees
merely by reason of their status as officers of an Employer or an
Affiliate, and, provided further, that if no officer of an Employer or
an Affiliate received compensation in excess of 50% of the amount in
effect under Section 415(b)(1)(A) of the Code for such Plan Year, then
the highest paid officer shall be considered a Highly Compensated
Employee.
Notwithstanding the preceding provisions of this section, for purposes of
determining whether an Employee shall be treated as a "Highly Compensated
Employee" for the current Plan Year, an Employee who is not described in
subsection (b), (c) or (d) for the immediately preceding Plan Year shall not be
treated as subject to subsection (b), (c) or (d) unless such Employee is a
member of the group consisting of the 100 Employees paid the greatest Section
415 Compensation during the current Plan Year. The term "Highly Compensated
Employee" shall also mean any former Employee who separated from service (or
was deemed to have separated from service) prior to the Plan Year, performs no
service for an Employer during the Plan Year, and was an actively employed
Highly Compensated Employee in the separation year or any Plan Year ending on
or after the date the Employee attained age 55. For purposes of determining
whether a Participant is a Highly Compensated Employee, if any Employee is a
Family Member of a Highly Compensated Employee who is (i) a 5% owner of an
Employer, or (ii) one of the ten Highly Compensated Employees paid the greatest
amount of Section 415 Compensation during the Plan Year, then such Family
Member shall not be considered as a separate Employee and any Section 415
Compensation paid to such Family Member (and any applicable benefit or
contribution
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on behalf of such Family Member) shall be treated as if it were paid to or on
behalf of the related Highly Compensated Employee. For purposes of this
section, each Employee's Section 415 Compensation shall be adjusted as required
by Section 414(q)(7)(B) of the Code.
1.31 (a) "HOUR OF SERVICE" shall mean
(1) an hour for which an Employee is paid, or
entitled to payment, for the performance of duties for an
Employer or an Affiliate;
(2) an hour for which an Employee is paid, or
entitled to payment, by an Employer or an Affiliate on account
of a period of time during which no duties are performed
(irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity
(including disability), lay-off, jury duty, military duty or
leave of absence. Notwithstanding the preceding,
(A) an hour for which an Employee is
directly or indirectly paid, or entitled to payment,
on account of a period during which no duties are
performed shall not be credited under this section
1.31(a)(2) to the Employee if such payment is made or
due under a plan maintained solely for the purpose of
complying with applicable workmen's compensation,
unemployment compensation or disability insurance
laws; and
(B) an hour shall not be credited for a
payment which solely reimburses an Employee for
medical or medically related expenses incurred by the
Employee;
(3) an hour which otherwise would normally be
credited to an Employee but for the fact that such Employee is
on an unpaid leave of absence authorized by an Employer or an
Affiliate. The Hours of Service to be credited to an Employee
under the provisions of this section 1.31(a)(3) are the Hours
of Service that otherwise would normally have been credited to
such Employee but for the absence in question or, in any case
in which the Administrator is unable to determine such hours,
the number of Hours of Service credited to such Employee shall
be equal to forty (40) Hours of Service for each week of the
authorized leave of absence. Notwithstanding the preceding,
no Hours of Service shall be credited under this section
1.31(a)(3) to an Employee on account of any portion of an
authorized, unpaid leave of absence that exceeds six months
(whether or not such period occurs in a single Plan Year);
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(4) an hour credited to an Employee who has been
granted by his Employer an extended, unpaid leave of absence
solely for the purpose of serving in the armed forces of the
United States of America, whether voluntarily or as a result
of the operation of a compulsory military service law. Such
extended, unpaid leave of absence shall include the ninety
(90) day period immediately following his discharge from such
armed forces, or any longer period after his discharge in
which his employment rights are guaranteed by law. The Hours
of Service to be credited to an Employee under the provisions
of this section 1.31(a)(4) shall be equal to forty (40) Hours
of Service for each week of the extended, unpaid leave of
absence. Notwithstanding the preceding, no Hours of Service
shall be credited under this section 1.31(a)(4) to an Employee
on account of any portion of an extended, unpaid leave of
absence that exceeds five years, unless the Employee's rights
are otherwise guaranteed by law. Furthermore, no Hours of
Service shall be credited under this section 1.31(a)(4) to an
Employee on account of any portion of such a leave of absence
if the Employee fails to obtain an honorable discharge upon
completion of his military service, unless otherwise required
by law; and
(5) an hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by an
Employer or an Affiliate; provided, however, that the same
Hour of Service shall not be credited both under section
1.31(a)(1), (2), (3), or (4), as the case may be, and under
this section 1.31(a)(5). Crediting of an Hour of Service for
back pay awarded or agreed to with respect to periods
described in sections 1.31(a)(2), (3), and (4) shall be
subject to the limitations set forth in those sections.
The definition set forth in this section 1.31(a) is subject to the
special rules contained in Department of Labor Regulations Sections
2530.200b-2(b) and (c), and any regulations amending or superseding
such Sections, which special rules are hereby incorporated in the
definition of "Hour of Service" by this reference.
(b) Notwithstanding the provisions of section 1.31(a),
each Employee who was employed by the Company, Publix Food Stores,
Inc., or Publix Market, Inc. on October 1, 1975, shall be credited
with one thousand (1,000) Hours of Service for each twelve (12)
continuous months of service commencing with his most recent
employment commencement date prior to October 1, 1975, and ending
October 1, 1975. In addition, each such Employee shall be credited
with forty (40) Hours of Service for each week of employment during
the period beginning on his most
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recent Anniversary Date prior to October 1, 1975, and ending on
October 1, 1975.
(c) (1) Notwithstanding the other provisions of this
"Hour of Service" definition, in the case of an Employee who
is absent from work for any period by reason of her pregnancy,
by reason of the birth of a child of the Employee, by reason
of the placement of a child with the Employee in connection
with the adoption of such child by the Employee or for
purposes of caring for such child for a reasonable period
beginning immediately following such birth or placement, the
Employee shall be treated as having those Hours of Service
described in section 1.31(c)(2).
(2) The Hours of Service to be credited to an
Employee under the provisions of section 1.31(c)(1) are the
Hours of Service that otherwise would normally have been
credited to such Employee but for the absence in question or,
in any case in which the Plan is unable to determine such
hours, eight Hours of Service per day of such absence;
provided, however, that the total number of hours treated as
Hours of Service under this section 1.31(c) by reason of any
such pregnancy or placement shall not exceed 501 hours.
(3) The hours treated as Hours of Service under
this section 1.31(c) shall be credited only in the consecutive
12-month period beginning with the Employee's Anniversary Date
in which the absence from work begins, if the crediting is
necessary to prevent a One Year Break in Service in such
12-month period or, in any other case, in the immediately
following 12-month period.
(4) Credit shall be given for Hours of Service
under this section 1.31(c) solely for purposes of determining
whether a One Year Break in Service has occurred for
participation or vesting purposes; credit shall not be given
hereunder for any other purposes (including, without
limitation, benefit accrual).
(5) Notwithstanding any other provision of this
section 1.31(c), no credit shall be given under this section
1.31(c) unless the Employee in question furnishes to the Plan
Administrator such timely information as the Administrator may
reasonably require to establish that the absence from work is
for reasons referred to in section 1.31(c)(1) and the number
of days for which there was such an absence.
1.32 "KEY EMPLOYEE" shall mean any Employee or former Employee (and
the beneficiaries of such Employee) who is at any time during the Plan Year (or
was at any time during the four preceding Plan Years)
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(a) an officer of an Employer or an Affiliate having an
aggregate annual compensation from the Employer and its Affiliates in
excess of 50% of the amount in effect under Section 415(b)(1)(A) of
the Code for any such Plan Year, provided, however, that no more than
the lesser of--
(1) 50 Employees, or
(2) the greater of (i) three Employees or (ii)
10 percent of all Employees,
shall be treated as officers, and such officers shall be those with
the highest annual compensation in the five-year period;
(b) one of the ten Employees owning (or considered as
owning) the largest interests in an Employer or an Affiliate, owning
more than a 1/2% interest in the Employer or an Affiliate, and having
an aggregate annual compensation from the Employer and its Affiliates
of more than the limitation in effect under Section 415(c)(1)(A) of
the Code for the calendar year that includes the last day of the Plan
Year;
(c) a 5% owner of an Employer or an Affiliate; or
(d) a 1% owner of an Employer or an Affiliate having an
aggregate annual compensation from the Employer and its Affiliates of
more than $150,000.
Ownership shall be determined in accordance with Section 416(i)(1)(B) and (C)
of the Code. For purposes of subsection (b), if two Employees have the same
ownership interest in an Employer or an Affiliate, the Employee having the
greatest annual compensation from the Employer and all Affiliates shall be
treated as having a larger interest. For purposes of this section,
"compensation" shall mean compensation as defined in Section 415(c)(3) of the
Code, but including amounts contributed by an Employer on behalf of an Employee
pursuant to a salary reduction agreement which are excludable from the
Employee's gross income under Section 125, Section 402(a)(8), Section 402(h),
or Section 403(b) of the Code.
1.33 "LIMITATION YEAR" shall mean the 12-month period ending each
December 31.
1.34 "MATCHING CONTRIBUTIONS ACCOUNT" shall mean an account
established pursuant to section 7.2 with respect to contributions to this Plan
on behalf of a Participant by an Employer pursuant to section 6.2.
1.35 "NON-KEY EMPLOYEE" shall mean, with respect to any Plan Year,
an Employee or former Employee who is not a Key Employee (including any such
Employee who formerly was a Key Employee).
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1.36 "NORMAL RETIREMENT DATE" shall mean the date on which a
Participant attains the age of sixty (60) years.
1.37 "ONE YEAR BREAK IN SERVICE" shall mean a year beginning with
an Employee's Anniversary Date in which an Employee has 500 or fewer Hours of
Service, and it shall be deemed to occur on the last day of any such year.
1.38 "OTHER INVESTMENTS ACCOUNT" shall mean a subaccount which may
be established pursuant to section 7.2 with respect to matching contributions
and savings contributions, invested in assets other than common stock of the
Company held within the Publix Stock Fund, and adjustments thereto.
1.39 "PARTICIPANT" shall mean any eligible Employee of an Employer
who participates in the Plan in accordance with the provisions of Article V
and, except as otherwise provided by sections 1.2, 1.3, 1.4, 1.5, 1.15(b), 5.2
and 7.4 and Article VI, shall include any former employee of an Employer who
became a Participant under the Plan and who still has a balance in an Account
under the Plan.
1.40 "PLAN" shall mean the 401(k) plan as herein set forth, as it
may be amended from time to time.
1.41 "PLAN ADMINISTRATOR" shall mean the Company.
1.42 "PLAN YEAR" shall mean the 12-month period ending on December
31.
1.43 "POOLED INVESTMENT FUND" shall mean a Directed Investment Fund
established under Article X, the combined assets of which shall consist of the
common investments of all Participants selecting the Directed Investment Fund.
1.44 "PRIMARY TRUST FUND" shall mean the trust fund established
under the Agreement and Declaration of Trust between the Company and the
Primary Trustee from which the amounts of supplementary compensation provided
for by the Plan (other than amounts to be held by the Publix Stock Fund
Trustee) are to be paid or are to be funded.
1.45 "PRIMARY TRUSTEE" shall mean the individual, individuals, or
corporation designated as trustee under the Agreement and Declaration of Trust
for the Primary Trust Fund.
1.46 "PUBLIX STOCK FUND" shall mean the trust fund established
under the Agreement and Declaration of Trust between the Company and the Publix
Stock Fund Trustee from which the amounts of supplementary compensation
provided by the Plan and invested in common stock of the Company are to be paid
or are to be funded.
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1.47 "PUBLIX STOCK FUND TRUSTEE" shall mean the individual,
individuals, or corporation designated as trustee under the Agreement and
Declaration of Trust for the Publix Stock Fund.
1.48 "SAVINGS CONTRIBUTIONS ACCOUNT" shall mean an account
established pursuant to section 7.2 with respect to savings contributions made
under salary reduction arrangements pursuant to section 6.1.
1.49 "SECTION 415 COMPENSATION" shall include all wages and other
payments of compensation to a Participant from all Employers and all Affiliates
for personal services actually rendered for which the Employers and Affiliates
are required to furnish the Participant a written statement under Sections
6041(d), 6051(a)(3) and 6052 of the Code (and without regard to any provisions
under Section 3401(a) of the Code that limit the remuneration included in wages
based on the nature or location of the employment or the services performed).
1.50 "SEGREGATED INVESTMENT FUND" shall mean a Directed Investment
Fund established under Article X, in which the assets of each Participant
selecting the Directed Investment Fund shall be separately invested, and for
which the earnings attributable to such assets shall be separately accounted.
1.51 "TOP HEAVY PLAN" shall mean this Plan if the aggregate account
balances (not including voluntary rollover contributions made by any
Participant from an unrelated plan) of the Key Employees and their
beneficiaries for such Plan Year exceed 60% of the aggregate account balances
(not including voluntary rollover contributions made by any Participant from an
unrelated plan) for all Participants and their beneficiaries. Such values
shall be determined for any Plan Year as of the last day of the immediately
preceding Plan Year. The account balances on any determination date shall
include the aggregate distributions made with respect to Participants during
the five-year period ending on the determination date. For the purposes of
this definition, the aggregate account balances for any Plan Year shall include
the account balances and accrued benefits of all retirement plans qualified
under Section 401(a) of the Code with which this Plan is required to be
aggregated to meet the requirements of Section 401(a)(4) or 410 of the Code
(including terminated plans that would have been required to be aggregated with
this Plan) and all plans of an Employer or an Affiliate in which a Key Employee
participates; and such term may include (at the discretion of the Plan
Administrator) any other retirement plan qualified under Section 401(a) of the
Code that is maintained by an Employer or an Affiliate, provided the resulting
aggregation group satisfies the requirements of Sections 401(a) and 410 of the
Code. All calculations shall be on the basis of actuarial assumptions that are
specified by the Plan Administrator and applied on a uniform basis to all plans
in the applicable aggregation group. The account balance of any Participant
shall not be taken into account if:
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(a) he is a Non-Key Employee for any Plan Year, but
was a Key Employee for any prior Plan Year, or
(b) he has not performed any service for an Employer
during the five-year period ending on the determination date.
1.52 "TRUST" or "TRUSTS" shall mean the trust or trusts established
by one or more of the Agreements and Declarations of Trust.
1.53 "TRUSTEE" or "TRUSTEES" shall mean the Primary Trustee and/or
the Publix Stock Fund Trustee.
1.54 "TRUST FUND" or "TRUST FUNDS" shall mean the Primary Trust
Fund and/or the Publix Stock Fund.
1.55 "VALUATION DATE" shall mean March 31, June 30, September 30,
and December 31, and such other dates as may be selected by the Plan
Administrator. For purposes of determining interim valuations of any portion
of Participants' Savings Contributions Accounts attributable to any Directed
Investment Fund other than the Publix Stock Fund, the Plan Administrator may
establish an interim Valuation Date on each Business Day.
1.56 "VALUATION PERIOD" shall mean the period beginning with the
first day after a Valuation Date and ending with the next Valuation Date.
1.57 "VESTED INTEREST" shall mean, as of any date, the amount equal
to a fixed, nonforfeitable percentage of a Participant's Account balance or
contribution as determined pursuant to section 8.3(b).
1.58 (a) "YEAR OF SERVICE" shall mean each of the consecutive
12-month periods beginning with the Employee's Anniversary Date if
during such consecutive 12-month period, the Employee completes 1,000
Hours of Service for an Employer or an Affiliate thereof.
(b) For purposes of Article V and section 6.2, a Year of
Service is not completed until the end of each consecutive 12-month
period without regard to when during the period that 1,000 Hours of
Service are completed. For purposes of Article V, an Employee's Years
of Service shall not include any Years of Service prior to a One Year
Break in Service until the Employee completes a Year of Service after
the One Year Break in Service.
(c) For purposes of Article VIII and section 14.1(e), an
Employee's Years of Service shall not include the following:
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(1) any Year of Service prior to a One Year Break
in Service, but only prior to such time as the Participant has
completed a Year of Service after such One Year Break in
Service; and
(2) any Year of Service prior to a One Year Break
in Service if the Participant had no Vested Interest in the
balance of his Accounts at the time of such One Year Break in
Service and if the number of consecutive years in which a One
Year Break in Service occurred equaled or exceeded the greater
of five or the number of Years of Service completed by the
Employee prior thereto (not including any Years of Service not
required to be taken into consideration under the Plan as then
in effect as a result of any prior One Year Break in Service).
(d) For all purposes of this Plan, "Years of Service"
shall include:
(1) for persons employed in stores acquired by
the Company from Kroger Company on or after November 7, 1988,
and before September 1, 1992, service with such predecessor
employer;
(2) for persons employed by the Par 3 Golf
Center, Lakeland, Florida acquired by the Company on September
9, 1988, service with such predecessor employer; and
(3) for persons employed by Wolfson Pharmacy
acquired by the Company on July 31, 1988, service with such
predecessor employer.
ARTICLE II
ESTABLISHMENT AND NAME OF THE PLAN
A 401(k) plan is hereby established in accordance with the terms
hereof and shall be known as the "PUBLIX SUPER MARKETS, INC. 401(k) SMART
PLAN."
ARTICLE III
PURPOSE OF THE PLAN AND THE TRUSTS
3.1 EXCLUSIVE BENEFIT. This Plan is created for the sole purpose
of providing benefits to the Participants and enabling them to share in the
growth of their Employer. Except as otherwise permitted by law, in no event
shall any part of the principal or income of the Trusts be paid to or
reinvested in any Employer or be used for or diverted to any purpose whatsoever
other than for the exclusive benefit of the Participants and their
beneficiaries.
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3.2 MISTAKE OF FACT. Notwithstanding the foregoing provisions of
section 3.1, any contribution made by an Employer to this Plan by a mistake of
fact may be returned to the Employer within one year after the payment of the
contribution; and any contribution made by an Employer that is conditioned upon
the deductibility of the contribution under Section 404 of the Code (each
contribution shall be presumed to be so conditioned unless the Employer
specifies otherwise) may be returned to the Employer if the deduction is
disallowed and the contribution is returned (to the extent disallowed) within
one year after the disallowance of the deduction.
3.3 PARTICIPANT'S RIGHTS. The establishment of this Plan shall
not be considered as giving any Employee, or any other person, any legal or
equitable right against any Employer, any Affiliate, the Plan Administrator,
the Primary Trustee, the Publix Stock Fund Trustee or the principal or the
income of the Trusts, except to the extent otherwise provided by law. The
establishment of this Plan shall not be considered as giving any Employee, or
any other person, the right to be retained in the employ of any Employer or any
Affiliate.
3.4 QUALIFIED PLAN. This Plan and the Trusts are intended to
qualify under the Code as a tax-free employees' plan and trust, and the
provisions of this Plan and the Trusts should be interpreted accordingly.
ARTICLE IV
PLAN ADMINISTRATOR
4.1 ADMINISTRATION OF THE PLAN. The Plan Administrator shall
control and manage the operation and administration of the Plan, except with
respect to the investments to be made of the funds in the Trusts and except
with respect to such other duties of the Trustees as set forth in the
Agreements and Declarations of Trust.
4.2 POWERS AND DUTIES. The Administrator shall have complete
control over the administration of the Plan herein embodied, with all powers
necessary to enable it to carry out its duties in that respect. Not in
limitation, but in amplification of the foregoing, the Administrator shall have
the power and discretion to interpret or construe this Plan and to determine
all questions that may arise as to the status and rights of the Participants
and others hereunder.
4.3 DIRECTION OF TRUSTEES. It shall be the duty of the
Administrator to direct the Trustees with regard to the distribution of the
benefits to the Participants and others hereunder.
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4.4 SUMMARY PLAN DESCRIPTION. The Plan Administrator shall
prepare or cause to be prepared a Summary Plan Description (if required by law)
and such periodic and annual reports as are required by law.
4.5 DISCLOSURE. At least once each year, the Administrator shall
furnish to each Participant a statement containing the value of his interest in
the Trust Funds and such other information as may be required by law.
4.6 CONFLICT IN TERMS. The Administrator shall notify each
Employee, in writing, as to the existence of the Plan and Trusts and the basic
provisions thereof. In the event of any conflict between the terms of this
Plan and Trusts as set forth in this Plan and in the Agreements and
Declarations of Trust and as set forth in any explanatory booklet or other
description, this Plan and the Agreements and Declarations of Trust shall
control.
4.7 NONDISCRIMINATION. The Administrator shall not take any
action or direct the Trustees to take any action whatsoever that would result
in unfairly benefiting one Participant or group of Participants at the expense
of another or in improperly discriminating between Participants similarly
situated or in the application of different rules to substantially similar sets
of facts.
4.8 RECORDS. The Plan Administrator shall keep a complete record
of all its proceedings as the administrator of the Plan and all data necessary
for the administration of the Plan. All of the foregoing records and data
shall be located at an appropriate office of the Administrator (or its agent).
4.9 FINAL AUTHORITY. Except to the extent otherwise required by
law, the decision of the Plan Administrator in matters within its jurisdiction
shall be final, binding and conclusive upon each Employer and each Employee,
member and beneficiary and every other interested or concerned person or party.
4.10 CLAIMS.
(a) Claims for benefits under the Plan may be made by a
Participant or a beneficiary of a deceased Participant on forms
supplied by the Plan Administrator. Written notice of the disposition
of a claim shall be furnished to the claimant by the Administrator
within ninety (90) days after the application is filed with the
Administrator, unless special circumstances require an extension of
time for processing, in which event action shall be taken as soon as
possible, but not later than one hundred eighty (180) days after the
application is filed with the Administrator; and, in the event that no
action has been taken within such ninety (90) or one hundred eighty
(180) day period, the claim shall be deemed to be denied for the
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purposes of section 4.10(b). In the event that the claim is denied,
the denial shall be written in a manner calculated to be understood by
the claimant and shall include the specific reasons for the denial,
specific references to pertinent Plan provisions on which the denial
is based, a description of the material information, if any, necessary
for the claimant to perfect the claim, an explanation of why such
material information is necessary and an explanation of the claim
review procedure.
(b) If a claim is denied (either in the form of a written
denial or by the failure of the Plan Administrator, within the
required time period, to notify the claimant of the action taken), a
claimant or his duly authorized representative shall have sixty (60)
days after the receipt of such denial to petition the Plan
Administrator in writing for a full and fair review of the denial,
during which time the claimant or his duly authorized representative
shall have the right to review pertinent documents and to submit
issues and comments in writing. The Plan Administrator shall promptly
review the claim and shall make a decision not later than sixty (60)
days after receipt of the request for review, unless special
circumstances require an extension of time for processing, in which
event a decision shall be rendered as soon as possible, but not later
than one hundred twenty (120) days after the receipt of the request
for review. If such an extension is required because of special
circumstances, written notice of the extension shall be furnished to
the claimant prior to the commencement of the extension. The decision
of the review shall be in writing and shall include specific reasons
for the decision, written in a manner calculated to be understood by
the claimant, with specific references to the Plan provisions on which
the decision is based.
4.11 APPOINTMENT OF ADVISORS. The Administrator may appoint such
accountants, counsel (who may be counsel for an Employer), specialists and
other persons that it deems necessary and desirable in connection with the
administration of this Plan. The Administrator, by action of its Board of
Directors, shall designate one or more of its employees to perform the duties
required of the Administrator hereunder.
ARTICLE V
ELIGIBILITY AND PARTICIPATION
5.1 CURRENT EMPLOYEES. Any Employee of an Employer on the
Effective Date of this Plan who has completed one Year of Service and has
attained age 19 shall enter the Plan on such Effective Date.
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5.2 ELIGIBILITY AND PARTICIPATION. Thereafter, any Employee of an
Employer shall be eligible to become a Participant in the Plan upon completing
one Year of Service and attaining age 19. Any such eligible Employee shall
enter the Plan as a Participant, if he is still an Employee of an Employer, on
his Eligibility Date. Each Participant shall continue to participate in the
Plan so long as he is employed by an Employer and, for purposes of maintaining
his Accounts, throughout any subsequent period during which he is credited with
a balance in one or more Accounts; provided, however, a Participant who incurs
a One Year Break in Service while remaining employed by an Employer shall not
be treated as an eligible Participant, for purposes of sections 1.2, 1.3, 1.4,
1.5, 1.15(b) and 7.4 and Article VI, during the period beginning as of the
first full pay period following the Participant's Anniversary Date and ending
as of the first full pay period following the Participant's subsequent
completion of a Year of Service.
5.3 FORMER PARTICIPANTS. A Participant who ceases to be an
Employee and who subsequently reenters the employ of an Employer prior to a One
Year Break in Service shall be eligible again to participate on the date of his
reemployment. A Participant who ceases to be an Employee and incurs, or who
ceases to participate as a result of, a One Year Break in Service, and who
subsequently reenters the employ of, or continues his employment with, an
Employer shall be required to complete one Year of Service before becoming
eligible again to participate in the Plan, but upon completion of such Year of
Service, the Participant shall participate from the Saturday of the week during
which he completed such Year of Service. A person who has completed one Year
of Service and attained age 19 prior to becoming an Employee of an Employer
shall enter the Plan as a Participant on the date he becomes an Employee of an
Employer (or, if later, on his Eligibility Date).
ARTICLE VI
CONTRIBUTIONS TO THE TRUST
6.1 PARTICIPANTS' SAVINGS CONTRIBUTIONS.
(a) The Employer shall contribute to the Trust, on behalf
of each eligible Participant (as determined pursuant to section 5.2),
a savings contribution as specified in a written salary reduction
agreement (if any) between the Participant and such Employer;
provided, however, that such contribution for a Participant shall not
exceed the lesser of
(1) $9,240 (adjusted under such regulations as
may be issued from time to time by the Secretary of the
Treasury) with respect to any calendar year, or
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(2) 15% of the Participant's Compensation for
such Plan Year (or such lower percentage as may be determined
periodically by the Board of Directors).
(b) (1) If a Participant's savings contributions,
together with any elective contributions by the Participant to
any other plans of his Employer or an Affiliate intended to
qualify under Sections 401(k) or 403(b) of the Code, exceed
the limitation set forth in section 6.1(a)(1) for any calendar
year, the Administrator, upon notification from the
Participant or his Employer, shall refund to such Participant
the portion of such excess that is attributable to savings
contributions to the Plan, increased by the earnings thereon
for such calendar year and the subsequent period preceding the
date of the refund (such earnings shall be determined by the
Plan Administrator in a manner consistent with the provisions
of section 7.4 and Treasury Regulation Section
1.402(g)-1(e)(5)) and reduced by any excess savings
contributions and earnings for the Plan Year beginning with or
within the calendar year that have been previously distributed
to the Participant in accordance with the provisions of
section 6.1(f). Any such refund shall be made on or before
April 15 immediately following the calendar year in which the
excess savings contribution is made.
(2) If a Participant's savings contributions,
together with any elective contributions by the Participant to
any other plans intended to qualify under Sections 401(k),
403(b), 408(k) or 457 of the Code, exceed the limitation set
forth in section 6.1(a)(1) for any calendar year (after the
application of section 6.1(b)(1)), the Administrator may
refund to such Participant, at the Participant's request, the
portion of such excess that is attributable to savings
contributions to the Plan, increased by the earnings thereon
for such calendar year and the subsequent period preceding the
date of the refund (determined as provided in section
6.1(b)(1)) and reduced by any excess savings contributions and
earnings for the Plan Year beginning with or within the
calendar year that have been previously distributed to the
Participant in accordance with the provisions of section
6.1(f). Any such refund shall be made on or before April 15
immediately following the calendar year in which the excess
savings contribution is made.
(3) Excess savings contributions and earnings
shall be determined for purposes of section 6.1(a)(1), section
6.1(b)(1), and section 6.1(b)(2) after taking into account any
previous refunds to the Participant of excess savings
contributions and earnings for the Plan Year ending with or
within the calendar year made in accordance with the
provisions of section 6.1(f).
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(c) Any salary reduction agreement shall be executed and
in effect prior to the first day of the first pay period to which it
applies. Any such agreement may be revised by the Participant, with
the approval of the Administrator, as of any pay period if the
revision is received by the Plan Administrator prior to the first day
of the first pay period to which the revision applies.
(d) The Administrator shall have the right to require any
Participant to reduce his savings contributions under any such
agreement, or to refuse deferral of all or part of the amount set
forth in such agreement, if necessary to comply with the requirements
of this Plan and the Code.
(e) A Participant may suspend further savings
contributions to the Plan at any time, provided the request for such
suspension is received by the Plan Administrator prior to the first
day of the first pay period to which such suspension applies. Any
Participant who has previously entered into a salary reduction
agreement and who suspends further savings contributions relating to
periodic pay may reinstate such contributions by providing written
notice to the Plan Administrator prior to the first day of the first
pay period to which it applies; provided, however, that such pay
period shall not begin less than 90 days after the suspension of
savings contributions became effective.
(f) (1) In the event that the savings contributions
of Highly Compensated Employees exceed the limitations set
forth in section 6.3, such excess (plus the earnings thereon
for the Plan Year to which the excess contributions relate),
determined as set forth below, shall be distributed to the
Highly Compensated Employees on or before the 15th day of the
third month after the close of the Plan Year to which the
excess contributions relate. Notwithstanding the preceding
sentence, the Plan Administrator may delay the distribution of
any excess savings contributions (plus the earnings thereon
for the Plan Year to which the excess contributions relate)
attributable to an Employer beyond the 15th day of the third
month of such Plan Year, if the Employer consents to such
delay and the Administrator refunds all such excess amounts
not later than 12 months after the close of the Plan Year to
which the excess contributions relate.
(2) (A) The amount of such excess for a
Highly Compensated Employee for the Plan Year shall
be determined by reducing the Actual Deferral Ratio
of the Highly Compensated Employee with the highest
Actual Deferral Ratio to the extent required to
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(i) enable the arrangement to
satisfy the limitations set forth in section
6.3, or
(ii) cause such Highly Compensated
Employee's Actual Deferral Ratio to equal the
Actual Deferral Ratio of the Highly
Compensated Employee with the next highest
Actual Deferral Ratio.
This process shall be repeated until the arrangement
satisfies the limitations set forth in section 6.3.
(B) For each Highly Compensated
Employee, the amount of such excess shall be deemed
to equal
(i) the total savings contributions
on behalf of the Participant (determined
prior to the application of this section
6.1(f)), minus
(ii) the amount determined by
multiplying the Participant's Actual Deferral
Ratio (determined after application of this
section 6.1(f)) by his Compensation used in
determining such ratio.
(3) Earnings attributable to excess contributions
of a Highly Compensated Employee shall be determined by the
Plan Administrator, as of the last day of the Plan Year to
which such excess contributions relate (and taking into
account the subsequent period preceding the date of the
refund), in a manner consistent with the provisions of section
7.4 and Treasury Regulation Section 1.401(k)-1(f)(4)(ii).
(4) Excess savings contributions and earnings
determined under sections 6.1(f)(2) and (3) shall be reduced
by any excess savings contributions and earnings for the
calendar year ending with or within the Plan Year that have
been previously refunded to the Participant in accordance with
the provisions of section 6.1(b).
(5) In the event that a Highly Compensated
Employee's Actual Deferral Ratio is determined on the basis of
both his contributions and the contributions of his Family
Members, any excess savings contributions and earnings
attributable to such Highly Compensated Employee under this
section 6.1(f) shall be distributed to the Highly Compensated
Employee and his Family Members in proportion to the relative
savings contributions of the Highly Compensated Employee and
his Family Members for the Plan Year.
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6.2 MATCHING CONTRIBUTIONS.
(a) Each Employer, at the discretion of its Board of
Directors, may contribute to the Trust a matching contribution on
behalf of each eligible Participant (as determined pursuant to
sections 5.2 and 6.2(b)) for whom a savings contribution is made
during the Plan Year. Such matching contribution shall be equal to a
specified percentage of the amount of the savings contribution (or
specified percentages of separate portions of the amount of the
savings contribution) made to the Plan by the Participant, and may be
limited to a specified percentage (or percentages) of the
Participant's Compensation or a specified maximum dollar amount (or
amounts). The percentage (or percentages) of the matching
contribution, and any maximum percentage (or percentages) or dollar
amount (or amounts), shall be determined by the Board of such
Employer. No matching contribution shall be required for the portion
of a Participant's savings contribution subject to the refund
requirements of section 6.1(b) or 6.1(f).
(b) A Participant shall be eligible to share in the
matching contribution described in section 6.2(a) for a Plan Year if
(1) he has been credited with a Year of Service as of the date
preceding his Anniversary Date occurring during the Plan Year and if
he is employed by his Employer on the last day of such Plan Year, or
(2) if his employment is terminated during the Plan Year (regardless
of whether such termination is the result of retirement, disability
[as defined in section 8.2(b)], death, or severance of employment) and
he has a Vested Interest in the balance of his Matching Contributions
Account as of his date of termination.
(c) Except as noted in section 6.2(d), any matching
contribution made by an Employer on account of a savings contribution
that has been refunded pursuant to section 6.1(b) or section 6.1(f),
above, shall be forfeited, and used to reduce matching contributions
for the Plan Year in which the forfeiture occurs. In the event that
forfeitures arising pursuant to this section 6.2(c) exceed the amount
that may be used to reduce matching contributions for the Plan Year,
any additional forfeitures shall be allocated as additional matching
contributions to the Matching Contributions Accounts of Participants
other than those whose matching contributions have been reduced
hereunder.
(d) In the event that the matching contributions for
Compensated Employees exceed the limitations of section 6.3:
(1) Any nonvested excess matching contributions
(including earnings thereon for the Plan Year to which the
excess matching contributions relate), if any, shall
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be forfeited and used to reduce matching contributions under
this section 6.2.
(2) Any vested excess matching contributions
(including earnings thereon for the Plan Year to which the
excess contributions relate), if any, shall be distributed to
the Highly Compensated Employees on or before the 15th day of
the third month after the close of the Plan Year to which the
matching contributions relate. Notwithstanding the preceding
sentence, the Plan Administrator may delay the distribution of
any excess matching contributions (plus the earnings thereon
for the Plan Year to which the excess matching contributions
relate) attributable to an Employer beyond the 15th day of the
third month of such Plan Year, if the Employer consents to
such delay and the Administrator refunds all such excess
amounts not later than 12 months after the close of the Plan
Year to which the excess matching contributions relate.
(3) The amount of such excess matching
contributions for a Highly Compensated Employee for the Plan
Year shall be determined by the following leveling method,
under which the Actual Contribution Ratio of the Highly
Compensated Employee with the highest Actual Contribution
Ratio is reduced to the extent required to
(A) enable the Plan to satisfy the
limitations set forth in section 6.3, or
(B) cause such Highly Compensated
Employee's Actual Contribution Ratio to equal the
Actual Contribution Ratio of the Highly Compensated
Employee with the next highest Actual Contribution
Ratio.
This process shall be repeated until the Plan satisfies the
limitations set forth in section 6.3. For each Highly
Compensated Employee, the amount of such excess is equal to
the total matching contributions on behalf of the Employee
(determined prior to the application of this section
6.2(d)(3)) minus the amount determined by multiplying the
Employee's Actual Contribution Ratio (determined after
application of this section 6.2(d)(3)) by his Compensation
used in determining such ratio.
(4) In determining the amount of such excess,
Actual Contribution Ratios shall be rounded to the nearest
one-hundredth of one percent of the Employee's Compensation.
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(5) In no case shall the amount of such excess
with respect to any Highly Compensated Employee exceed the
amount of matching contributions on behalf of such Highly
Compensated Employee for such Plan Year.
(6) Earnings attributable to excess contributions
shall be determined by the Plan Administrator, as of the last
day of the Plan Year to which such excess contributions relate
(and taking into account the subsequent period preceding the
date of the distribution and/or forfeiture), in a manner
consistent with the provisions of section 7.4 and Treasury
Regulation Section 1.401(m)-1(e)(3)(ii).
(7) In the event that a Highly Compensated
Employee's Actual Contribution Ratio is determined on the
basis of both his matching contributions and the matching
contributions attributable to his Family Members, any excess
contributions and earnings attributable to such Highly
Compensated Employee that are forfeitable and distributable as
provided in sections 6.2(d)(1) and (2) shall be allocated to
the Highly Compensated Employee and his Family Members in
proportion to the relative contributions of the Highly
Compensated Employee and his Family Members that are taken
into account in determining the Highly Compensated Employee's
Actual Contribution Ratio for the Plan Year.
6.3 LIMITATIONS ON SAVINGS AND MATCHING CONTRIBUTIONS. The amounts
contributed as savings and matching contributions shall be limited as follows:
(a) Actual Deferral Percentage:
(1) The Actual Deferral Percentage for the group
of Highly Compensated Employees for a Plan Year shall not
exceed the Actual Deferral Percentage for the group of all
other eligible Employees multiplied by 1.25, or
(2) The excess of the Actual Deferral Percentage
for the group of Highly Compensated Employees for a Plan Year
over the Actual Deferral Percentage for the group of all other
eligible Employees shall not exceed two (2) percentage points
(or such lesser amount as may be required by section 6.3(c));
and the Actual Deferral Percentage for the group of Highly
Compensated Employees shall not exceed the Actual Deferral
Percentage for the group of all other eligible Employees,
multiplied by 2.0 (or such lesser amount as may be required by
section 6.3(c)); and
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(b) Actual Contribution Percentage:
(1) The Actual Contribution Percentage for the
group of Highly Compensated Employees for a Plan Year shall
not exceed the Actual Contribution Percentage for the group of
all other eligible Employees, multiplied by 1.25, or
(2) The excess of the Actual Contribution
Percentage for the group of Highly Compensated Employees for a
Plan Year over the Actual Contribution Percentage for the
group of all other eligible Employees shall not exceed two (2)
percentage points (or such lesser amount as may be required by
section 6.3(c)); and the Actual Contribution Percentage for
the group of Highly Compensated Employees shall not exceed the
Actual Contribution Percentage for the group of all other
eligible Employees, multiplied by 2.0 (or such lesser amount
as may be required by section 6.3(c)).
(c) Multiple Use Restriction:
(1) The provisions of this section 6.3(c) shall
apply if:
(A) one or more Highly Compensated
Employees are subject to both the Actual Deferral
Percentage test described in section 6.3(a) and the
Actual Contribution Percentage test described in
section 6.3(b);
(B) the sum of the Actual Deferral
Percentage and the Actual Contribution Percentage of
those Highly Compensated Employees subject to either
or both tests exceeds the Aggregate Limit defined in
section 6.3(c)(3) below;
(C) the Actual Deferral Percentage for
the group of Highly Compensated Employees eligible to
make savings contributions for a Plan Year exceeds
the limitation set forth in section 6.3(a)(1); and
(D) the Actual Contribution Percentage
for the group of Highly Compensated Employees
eligible to receive matching contributions for a Plan
Year exceeds the limitation set forth in section
6.3(b)(1).
(2) The Actual Deferral Percentage and the Actual
Contribution Percentage for the Highly Compensated Employees
described in section 6.3(c)(1) above shall be determined after
any corrections required by sections 6.1
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and 6.2 to meet the requirements of section 6.3(a) and section
6.3(b).
(3) "Aggregate Limit" shall mean the greater of:
(A) the sum of:
(i) 125 percent of the greater of
the Actual Deferral Percentage of the
Non-Highly Compensated Employees for the Plan
Year or the Actual Contribution Percentage of
Non-Highly Compensated Employees for the Plan
Year, and
(ii) the lesser of 200% of, or two
percentage points plus, the lesser of such
Actual Deferral Percentage and such Actual
Contribution Percentage; or
(B) the sum of:
(i) 125 percent of the lesser of
the Actual Deferral Percentage of the
Non-Highly Compensated Employees for the Plan
Year or the Actual Contribution Percentage of
Non-Highly Compensated Employees for the Plan
Year, and
(ii) the lesser of 200% of, or two
percentage points plus, the greater of such
Actual Deferral Percentage and such Actual
Contribution Percentage.
(4) If each of the provisions of section
6.3(c)(1) are met, then the Actual Contribution Percentage of
those Highly Compensated Employees eligible to receive
matching contributions for a Plan Year will be reduced
(beginning with such Highly Compensated Employee whose Actual
Contribution Ratio is the highest) so that the Aggregate Limit
is not exceeded. The amount by which each Highly Compensated
Employee's Actual Contribution Ratio is reduced shall be
treated as excess amounts subject to section 6.2(c).
(d) For purposes of this section 6.3, if two or more
plans of an Employer to which elective salary reduction contributions,
voluntary contributions or matching contributions are made are elected
by the Employer to be treated as one Plan for purposes of Section
410(b)(6) of the Code, such plans shall be treated as a single plan
for purposes of determining the Actual Deferral Percentage and the
Actual Contribution Percentage. For purposes of determining the
Actual Deferral Percentages and the Actual Contribution Percentages
for the group of Highly Compensated Employees and the group of all
other eligible Employees, all Employees of the respective group who
are
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directly or indirectly eligible to receive allocations of savings
contributions and/or matching contributions under the Plan for any
portion of the Plan Year, and all Employees of the respective group
who elect not to enter into salary reduction agreements pursuant to
section 6.1 or whose eligibility to enter into salary reduction
agreements has been suspended or otherwise limited because of an
election not to participate, a withdrawal, a loan, or a restriction on
Annual Additions as set forth in section 7.8, shall be included. For
purposes of determining the Actual Deferral Ratio and the Actual
Contribution Ratio for a Highly Compensated Employee, all cash or
deferred arrangements in which the Employee is eligible to receive
allocations of elective contributions and/or matching contributions
shall be taken into account, unless otherwise required by Treasury
Regulation Sections 1.401(k)-1(g)(1)(ii)(B) and
1.401(m)-1(f)(1)(ii)(B). For purposes of determining the Actual
Deferral Ratio and the Actual Contribution Ratio of a Highly
Compensated Employee who is (i) a 5% owner of an Employer, or (ii) one
of the ten Highly Compensated Employees paid the greatest amount of
Compensation during the Plan Year, to the extent required by Section
414(q)(6) of the Code, the elective contributions, matching
contributions, voluntary contributions and compensation of such Highly
Compensated Employee's Family Members shall be considered the elective
contributions, matching contributions, voluntary contributions and
compensation, respectively, of such Highly Compensated Employee.
6.4 MINIMUM TOP HEAVY CONTRIBUTION. For each Plan Year in which
this Plan is a Top Heavy Plan, an eligible Participant (as determined pursuant
to section 5.2) who is a Non-Key Employee, who is employed by an Employer on
the last day of such Plan Year, and who is not a participant in the Publix
Super Markets, Inc. Profit Sharing Plan or the Publix Super Markets, Inc.
Employee Stock Ownership Plan shall be entitled to receive a minimum
contribution from his Employer for such Plan Year equal to three percent (3%)
of his Section 415 Compensation (or, if less, the highest aggregate percentage
of such Section 415 Compensation allocated to a Key Employee's Savings
Contributions Account and Matching Contributions Account hereunder, as well as
his Employer contribution accounts under the Publix Super Markets, Inc. Profit
Sharing Plan, the Publix Super Markets, Inc. Employee Stock Ownership Plan, and
any other defined contribution plan maintained by such Employer or an
Affiliate), regardless of whether such Plan Year constitutes a Year of Service
for such Participant.
6.5 FORFEITURES. Except as otherwise specifically provided, any
amount forfeited pursuant to the provisions of this Plan shall be used as soon
as possible to reduce the matching contributions of an Employer under section
6.2. In the event that forfeitures subject to this section 6.5 exceed the
amount that may be used to reduce matching contributions for the Plan Year, any
additional
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forfeitures shall be used to increase matching contributions as provided in
section 7.5(b).
6.6 PARTICIPANT CONTRIBUTIONS NOT PERMITTED. The Plan
Administrator shall not accept any voluntary after-tax Participant
contributions or any rollover contributions (within the meaning of Section 402
of the Code).
6.7 FORM AND TIMING OF CONTRIBUTIONS. Payments on account of the
savings contributions due from an Employer for any Plan Year shall be made in
cash to the Primary Trustee. Payments on account of the matching contributions
due from an Employer for any Plan Year (as well as any Employer contributions
required pursuant to section 6.4) shall be made in cash or in shares of common
stock of the Company to the Publix Stock Fund Trustee. Such payments may be
made by a contributing Employer at any time, but payment of the matching
contributions for any Plan Year (as well as any Employer contributions required
pursuant to section 6.4) shall be completed on or before the time prescribed by
law, including extensions thereof, for filing such Employer's federal income
tax return for its taxable year with which or within which such Plan Year ends.
Payment of any savings contribution shall be made within ninety (90) days after
it is withheld from a Participant's pay, but not later than twelve (12) months
after the end of the Plan Year in which such withholding occurs.
6.8 NO DUTY TO INQUIRE. The Trustees shall have no right or duty
to inquire into the amount of any contribution made by an Employer or the
method used in determining the amount of any such contribution, or to collect
the same, but the Trustees shall be accountable only for funds actually
received by the Trustees.
ARTICLE VII
PARTICIPANTS' ACCOUNTS AND ALLOCATION OF CONTRIBUTIONS
7.1 COMMON FUND. Except as otherwise provided in this Plan, or
the Agreements and Declarations of Trust, the assets of the Trusts (or, to the
extent provided in Article X, the assets of any Directed Investment Fund or any
portion of a Directed Investment Fund) shall constitute a common fund in which
each Participant (or each Participant whose Accounts have been invested in such
Fund or portion of such Fund) shall have an undivided interest.
7.2 ESTABLISHMENT OF ACCOUNTS. The Plan Administrator shall
establish and maintain with respect to each Participant two Accounts,
designated as a Savings Contributions Account and a Matching Contributions
Account. The Plan Administrator may establish and maintain with respect to
each Participant's Matching Contributions Account, and any portion of his
Savings Contributions Account invested in the Publix Stock Fund, an Employer
Securities Account and an Other Investments Account, that may further reflect
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the Participant's interest in the Publix Stock Fund. The Plan Administrator
may establish such additional Accounts as are necessary to reflect a
Participant's interest in the Trust Funds.
7.3 INTEREST OF PARTICIPANT. The interest of a Participant in the
Trust Funds shall be the balance remaining from time to time in his Accounts
after making the adjustments required in sections 7.4, 7.5, and 7.6. The
balance in the Savings Contributions Account of a Participant shall equal the
aggregate interests of such Account held in the Directed Investment Funds. The
balance in the Matching Contributions Account of a Participant shall equal the
interest of such Account held in the Publix Stock Fund.
7.4 ALLOCATION OF EARNINGS. As of each Valuation Date, each of a
Participant's Accounts shall be credited or charged, as the case may be, with a
share of the earnings of the Trust Funds for the Valuation Period ending with
such current Valuation Date as follows:
(a) As of each Valuation Date, any portion of the
Participant's Savings Contributions Account that is invested in a
Pooled Investment Fund established under section 10.1 (other than the
Publix Stock Fund) shall be credited or charged, as the case may be,
with a share of the Earnings of such Pooled Investment Fund for the
Valuation Period ending with such current Valuation Date. Each
Participant's share of the Earnings of a Pooled Investment Fund for
any Valuation Period shall be determined by the Plan Administrator on
a weighted average basis, so that each Participant with a balance in
such Pooled Investment Fund shall receive a pro rata share of the
Earnings of such Pooled Investment Fund, taking into account the
period of time that each dollar invested in such Pooled Investment
Fund has been so invested.
(b) As of each Valuation Date, the portion of the
Participant's Savings Contributions Account that is invested in each
Segregated Investment Fund established under section 10.1 shall be
credited or charged, as the case may be, with the Earnings
attributable to the Participant's investment in such Segregated
Investment Fund for the Valuation Period ending with such current
Valuation Date.
(c) As of each Valuation Date, the Participant's Matching
Contributions Account, and any portion of the Participant's Savings
Contributions Account that is invested in the Publix Stock Fund
pursuant to section 10.1, shall be credited or charged, as the case
may be, with the share of the earnings attributable to the
Participant's investment in the Publix Stock Fund for the Valuation
Period ending with such current Valuation Date as follows:
(1) The portions of the Participant's Matching
Contributions Account and Savings Contributions Account
credited to Employer Securities Accounts shall be
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credited with the value of any stock dividends, as well as the
aggregate unrealized appreciation or depreciation, for the
Valuation Period ending with such current Valuation Date that
are received on, or attributable to, shares of common stock of
the Company allocated to the Participant's Employer Securities
Accounts.
(2) The portions of the Participant's Matching
Contributions Account and Savings Contributions Account
credited to Other Investments Accounts shall be credited or
charged, as the case may be, with a share of the Earnings of
such Other Investments Accounts for the Valuation Period
ending with such current Valuation Date. Each Participant's
share of the Earnings of an Other Investments Account for any
Valuation Period shall be determined by the Plan Administrator
on a weighted average basis, so that each Participant with a
balance in such Other Investments Account shall receive a pro
rata share of the Earnings of such Other Investments Account,
taking into account the period of time that each dollar
invested in such Other Investments Account has been so
invested.
(3) The Participant's Employer Securities Account
and Other Investments Account attributable to his Matching
Contributions Account (and, to the extent the Participant
elects to invest his savings contributions in the Publix Stock
Fund, his Savings Contributions Account) shall be further
credited and charged with the proceeds of any short-term
interim investments that may be made by the Primary Trustee
during periods prior to purchase dates for the acquisition of
common stock of the Company by the Publix Stock Fund Trustee.
(4) The Participant's Employer Securities Account
and Other Investments Account attributable to his Matching
Contributions Account (and, to the extent the Participant
elects to invest his savings contributions in the Publix Stock
Fund, his Savings Contributions Account) shall be further
adjusted to reflect direct or indirect purchases of the common
stock of the Company with assets other than the common stock
of the Company, and purchases of assets other than the common
stock of the Company in connection with the sale of the common
stock of the Company.
7.5 ALLOCATION OF CONTRIBUTIONS. Subject to the provisions of
section 7.8, each Participant's Accounts shall be credited with contributions
made during the Plan Year as follows:
(a) As of each Valuation Date, the Savings Contributions
Account of a Participant shall be credited with any savings
contributions made by his Employer on his behalf with respect
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to one or more dates occurring during the Valuation Period ending with
the Valuation Date.
(b) As of each Valuation Date that is the last day of a
Plan Year, the Matching Contributions Account of a Participant shall
be credited with any matching contributions made by his Employer on
his behalf pursuant to section 6.2 with respect to such Plan Year. In
addition, the Matching Contributions Account of a Participant shall be
credited with any additional matching contributions made, pursuant to
section 6.5, with forfeitures in excess of amounts necessary to fund
any matching contributions made pursuant to section 6.2. Any
additional matching contributions shall be credited to each eligible
Participant for whom a savings contribution is made during the Plan
Year, and shall equal a uniform percentage of the amount of the
savings contribution made to the Plan by the Participant for the Plan
Year; provided, however, that no additional matching contribution
shall be made for a Participant with respect to any Plan Year for the
portion of his savings contribution that is in excess of six percent
(6%) of the Participant's Compensation for such Plan Year; and
provided, further, that no additional matching contribution shall be
required for the portion of a Participant's savings contribution
subject to the refund requirements of sections 6.1(b) and 6.1(f). A
Participant will not be entitled to share in the matching
contributions or additional matching contributions unless he meets the
requirements of sections 5.2 and 6.2(b).
(c) For each Plan Year in which this Plan is a Top Heavy
Plan, a Participant who is not a participant in the Publix Super
Markets, Inc. Profit Sharing Plan or the Publix Super Markets, Inc.
Employee Stock Ownership Plan and who meets the additional eligibility
requirements set forth in section 6.4 for such Plan Year shall be
entitled to share in the contribution provided pursuant to section
6.4. Any such contribution for a Plan Year shall be credited, as of
the Valuation Date that is the last day of a Plan Year, to the
Matching Contributions Account of the Participant.
7.6 DISTRIBUTIONS. As of each Valuation Date (unless otherwise
provided hereinabove), each Participant's Accounts shall be charged with the
amount of any distribution made to, or withdrawal made by, the Participant or
his beneficiary from his Accounts during the Valuation Period ending with such
Valuation Date.
7.7 ACCRUAL METHOD. For purposes of all computations required by
this Article VII, the accrual method of accounting shall be used, and the Trust
Funds and the assets therein shall be valued at their fair market value as of
each Valuation Date. The Plan Administrator may adopt such additional
accounting procedures as are necessary to accurately reflect each Participant's
interest in the Trust Funds. All such procedures shall be applied in a
consistent nondiscriminatory manner.
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7.8 LIMITATION ON ALLOCATION OF CONTRIBUTIONS.
(a) Notwithstanding anything contained in this Plan to
the contrary, the aggregate Annual Additions to a Participant's
Accounts under this Plan and under any other defined contribution
plans maintained by an Employer or an Affiliate for any Limitation
Year shall not exceed the lesser of $30,000 (or, if greater, one
quarter of the dollar limitation in effect under Section 415(b)(1)(A)
of the Code) or 25% of the Participant's Section 415 Compensation for
such Plan Year.
(b) In the event that the Annual Additions, under the
normal administration of the Plan, would otherwise exceed the limits
set forth above for any Participant, or in the event that any
Participant participates in both a defined benefit plan and a defined
contribution plan maintained by any Employer or any Affiliate and the
aggregate annual additions to and projected benefits under all of such
plans, under the normal administration of such plans, would otherwise
exceed the limits provided by law, then the Plan Administrator shall
take such actions, applied in a uniform and nondiscriminatory manner,
as will keep the annual additions and projected benefits for such
Participant from exceeding the applicable limits provided by law.
Excess Annual Additions shall be disposed of as provided in section
7.8(c). Adjustments shall be made to this Plan, if necessary to
comply with such limits, before any adjustments shall be required to
any other Plan.
(c) If as a result of the allocation of forfeitures, a
reasonable error in estimating a Participant's Section 415
Compensation, a reasonable error in determining the amount of elective
deferrals that may be made, or other circumstances permitted under
Section 415 of the Code, the Annual Additions attributable to Employer
contributions for a particular Participant (including savings and
matching contributions) would cause the limitations set forth in this
section 7.8 to be exceeded, the excess amount shall be deemed first to
consist of the Participant's savings contributions in excess of any
amount subject to a matching contribution for the Plan Year, which
excess shall be returned to the Participant. The remaining excess
shall be deemed to consist of savings contributions and corresponding
matching contributions, in which case the excess savings contributions
shall be returned to such Participant and the corresponding matching
contributions shall be held and allocated in the manner described
below. Any excess amount attributable to matching contributions shall
be held unallocated in a suspense account for the Limitation Year,
used to reduce matching contributions on behalf of such Participant
for the next Limitation Year, and allocated to such Participant in
lieu of such reduced contribution as of the end of the next Limitation
Year under the terms of section 7.5. Any such allocations shall be
treated as Annual Additions to the Matching Contributions Account of
the Participant in the
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Limitation Year that they are allocated in lieu of such reduced
contributions. In the event that the Participant terminates his
participation in this Plan before all of the amounts in a suspense
account are allocated to his Matching Contributions Account, then such
excess amounts shall be retained in such suspense account, to be
reallocated to other Participants as of the end of the next Limitation
Year and any succeeding Limitation Years until all amounts in the
suspense account are exhausted.
(d) In the event that any Participant participates in
both a defined benefit plan and a defined contribution plan maintained
by his Employer or an Affiliate thereof, then the sum of the Defined
Benefit Plan Fraction and the Defined Contribution Plan Fraction for
any Limitation Year shall not exceed 1.0. For these purposes,
(1) The Defined Benefit Plan Fraction is a
fraction, the numerator of which is the projected annual
benefit of the Participant under the defined benefit plan
determined as of the close of the Limitation Year and the
denominator of which is the lesser of (i) the product of 1.25
times the dollar limitation in effect under Section
415(b)(1)(A) of the Code for such Limitation Year or (ii) the
product of 1.4 times the amount that may be taken into account
under Section 415(b)(1)(B) of the Code with respect to such
Participant for such Limitation Year.
(2) The Defined Contribution Plan Fraction is a
fraction, the numerator of which is the sum of the Annual
Additions to the Participant's Accounts as of the close of the
Limitation Year (less any amount that may be subtracted from
the numerator in accordance with any applicable statutes,
notices or rulings) and the denominator of which is the sum of
the lesser of the following amounts determined for such year
and for each prior Year of Service with the Employer: (i) the
product of 1.25 times the dollar limitation in effect under
Section 415(c)(1)(A) of the Code for such Limitation Year
(determined without regard to Section 415(c)(6) of the Code)
or (ii) the product of 1.4 times the amount that may be taken
into account under Section 415(c)(1)(B) of the Code with
respect to such Participant for such Limitation Year.
(3) The figure "1.0" shall be substituted for the
figure "1.25" set forth in sections 7.8(d)(1) and (2) for each
year in which this Plan is a Top Heavy Plan unless (i) the
defined benefit plan provides a minimum benefit equal to 3% of
each Participant's Compensation times the number of years (not
exceeding 10) the Plan is a Top Heavy Plan or the defined
contribution plan provides a
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minimum contribution equal to 4% (7 1/2% if the Participant
participates in both the defined benefit plan and the defined
contribution plan) of each Participant's Section 415
Compensation, and (ii) the present value of the cumulative
accrued benefits (not including rollover contributions made
after December 31, 1983) of the Key Employees for such year
does not exceed 90% of the present value of the accrued
benefits (not including rollover contributions made after
December 31, 1983) under all plans. Such values shall be
determined in the same manner as described in section 1.51.
ARTICLE VIII
BENEFITS UNDER THE PLAN
8.1 RETIREMENT BENEFIT.
(a) A Participant shall be entitled to retire from the
employ of his Employer upon such Participant's Normal Retirement Date.
Until a Participant actually retires from the employ of his Employer,
no retirement benefits shall be payable to him, and he shall continue
to be treated in all respects as a Participant; provided, however,
that a Participant who attains age 70 1/2 shall begin receiving
payment of his retirement benefit no later than the April 1 after the
end of the calendar year in which he attains age 70 1/2.
(b) Upon the retirement of a Participant as provided in
section 8.1(a) and subject to adjustment as provided in section 9.3,
such Participant shall be entitled to a retirement benefit in an
amount equal to 100% of the balance in his Accounts as of the
Valuation Date immediately preceding or concurring with the date of
his retirement, increased by the amount of contributions, if any, made
by the Employers to, and decreased by any withdrawals made by the
Participant from, the Participant's Accounts subsequent to such
Valuation Date.
8.2 DISABILITY BENEFIT.
(a) In the event a Participant's employment with his
Employer is terminated by reason of his total and permanent disability
and subject to adjustment as provided in section 9.3, such Participant
shall be entitled to a disability benefit in an amount equal to 100%
of the balance in his Accounts as of the Valuation Date immediately
preceding or concurring with the date of the termination of his
employment, increased by the amount of contributions, if any, made by
the Employers to, and decreased by any withdrawals made by the
Participant from, the Participant's Accounts subsequent to such
Valuation Date.
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(b) Total and permanent disability shall mean the total
incapacity of a Participant to perform the usual duties of his
employment with his Employer. A Participant will be deemed to have
incurred a total and permanent disability only if clear and convincing
evidence is received by the Administrator within one hundred eighty
(180) days after the date of the termination of such Participant's
employment, and only if such evidence includes a certification from a
physician who is acceptable to the Plan Administrator and who is
licensed to practice medicine in the State of Florida, pursuant to
Florida Statutes Chapter 458, (or, if a Participant is employed by his
Employer in a State other than Florida, who is licensed to practice
medicine in such State).
8.3 SEVERANCE OF EMPLOYMENT BENEFIT.
(a) In the event a Participant's employment with his
Employer is terminated for reasons other than retirement, total and
permanent disability or death, and subject to adjustment as provided
in section 9.3, such Participant shall be entitled to a severance of
employment benefit in an amount equal to his Vested Interests in the
balance in his Accounts as of the Valuation Date immediately preceding
or concurring with the date of the termination of his employment,
increased by his Vested Interests in the amount of contributions, if
any, made by the Employers to, and decreased by any withdrawals made
by the Participant from, the Participant's Accounts subsequent to such
Valuation Date.
(b) (1) The Vested Interest in the Matching
Contributions Account of each Participant performing at least
one Hour of Service on or after October 1, 1989, shall be a
percentage of the balance of such Matching Contributions
Account as of the applicable Valuation Date, based upon such
Participant's Years of Service as of the date of the
termination of his employment, as follows:
TOTAL NUMBER OF VESTED
YEARS OF SERVICE INTEREST
---------------- --------
Less than 5 Years of Service 0%
5 years or more 100%
(2) Notwithstanding the provisions of section
8.3(b)(1), for any Plan Year in which this Plan is a Top Heavy
Plan, a Participant's Vested Interest in his Matching
Contributions Account shall be a percentage of the balance of
such account as of the applicable Valuation Date, based upon
such Participant's Years of Service as of the date of the
termination of his employment, as follows:
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TOTAL NUMBER OF VESTED
YEARS OF SERVICE INTEREST
---------------- --------
Less than 2 Years of Service 0%
2 years, but less than 3 years 20%
3 years, but less than 4 years 40%
4 years, but less than 5 years 60%
5 years, but less than 6 years 80%
6 years or more 100%
(3) If at any time this Plan ceases to be a Top
Heavy Plan after being a Top Heavy Plan for one or more Plan
Years, the change from being a Top Heavy Plan shall be treated
as if it were an amendment to the Plan's vesting schedule for
purposes of sections 14.1(c) and (e).
(4) Notwithstanding the foregoing, a Participant
shall be 100% vested in his Matching Contributions Account
upon attaining his Normal Retirement Date. A Participant's
vested interest in his Savings Contributions Account shall be
100% regardless of the number of his Years of Service.
(c) If a Participant incurs five consecutive One Year
Breaks in Service while continuing his employment with an Employer or
an Affiliate, then upon the occurrence of such five consecutive One
Year Breaks in Service, the nonvested interest of the Participant in
his Matching Contributions Account as of the Valuation Date
immediately following the fifth such consecutive One Year Break in
Service shall be deemed to be forfeited and such forfeited amount
shall be reallocated, pursuant to the provisions of section 7.5, at
the end of the Plan Year during which the fifth such consecutive One
Year Break in Service occurs. If the Participant continues his
employment with an Employer or an Affiliate, the unforfeited balance,
if any, in his Matching Contributions Account that has not been
distributed to such Participant shall be set aside in a separate
account, and such Participant's Years of Service after any five
consecutive One Year Breaks in Service shall not be taken into account
for the purpose of determining the vested interest of such Participant
in the balance of his Matching Contributions Account that accrued
before such five consecutive One Year Breaks in Service.
(d) (1) Notwithstanding any other provision of this
section 8.3, if at any time a Participant is less than 100%
vested in his Matching Contributions Account and, as a result
of his severance of employment, he receives his entire vested
severance of employment benefit pursuant to the provisions of
Article IX, and the distribution of such benefit is made
before the Participant incurs a One Year Break in Service,
then upon the occurrence of such distribution, the nonvested
interest of the Participant
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in his Matching Contributions Account shall be deemed to be
forfeited and such forfeited amount shall be reallocated,
pursuant to the provisions of section 7.5, at the end of the
Plan Year immediately following or concurring with the date
such distribution occurs.
(2) If the termination of employment results in a
One Year Break in Service, then upon the occurrence of such
One Year Break in Service, the nonvested interest of the
Participant in his Matching Contributions Account as of the
Valuation Date immediately preceding or concurring with the
date of his termination of employment shall be deemed to be
forfeited and such forfeited amount shall be reallocated,
pursuant to the provisions of section 7.5, at the end of the
Plan Year during which the One Year Break in Service occurs.
(3) If a Participant is not vested as to any
portion of his Accounts, he will be deemed to have received a
distribution immediately following his severance of
employment. Upon the occurrence of such deemed distribution,
the nonvested interest of the Participant in his Accounts
shall be deemed to be forfeited and such forfeited amount
shall be reallocated, pursuant to the provisions of section
7.5, at the end of the Plan Year immediately following or
concurring with the date such deemed distribution occurs.
(4) If a Participant whose interest is forfeited
under this section 8.3(d) is reemployed by an Employer or an
Affiliate prior to the occurrence of five consecutive One Year
Breaks in Service commencing after his distribution, then such
Participant shall have the right to repay to the Trust, before
the date that is the earlier of (1) five years after the
Participant's resumption of employment, or (2) the close of a
period of five consecutive One Year Breaks in Service, the
full amount of the severance of employment benefit previously
distributed to him, if any. If the Participant elects to
repay such amount to the Trust within the time periods
prescribed herein, or if a Participant whose interest was
forfeited under section 8.3(d)(2) or (3) is reemployed by an
Employer or an Affiliate prior to the occurrence of five
consecutive One Year Breaks in Service, the nonvested interest
of the Participant previously forfeited pursuant to the
provisions of this section 8.3(d) shall be restored to the
Matching Contributions Account of the Participant, such
restoration to be made from forfeitures of nonvested interests
and, if necessary, by contributions of his Employer, so that
the aggregate of the amounts repaid by the Participant and
restored by the Employer shall not be less than the Account
balances of
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the Participant at the time of forfeiture unadjusted by any
subsequent gains or losses.
(e) Notwithstanding any other provision of this section
8.3, if a Participant is reemployed by an Employer or an Affiliate
before any distribution of benefits occurs, the Participant shall not
be entitled to any severance of employment benefit as a result of his
prior termination of employment.
8.4 DEATH BENEFIT.
(a) In the event of the death of a Participant and
subject to adjustment as provided in section 9.3, his beneficiary
shall be entitled to a death benefit in an amount equal to 100% of the
balance in his Accounts as of the Valuation Date immediately preceding
or concurring with the date of his death, increased by the amount of
contributions, if any, made by the Employers to, and decreased by any
withdrawals made by the Participant from, the Participant's Accounts
subsequent to such Valuation Date.
(b) Subject to the provisions of section 8.4(c), at any
time and from time to time, each Participant shall have the
unrestricted right to designate a beneficiary to receive his death
benefit and to revoke any such designation. Each designation or
revocation shall be evidenced by written instrument signed by the
Participant and filed with the Plan Administrator. In the event that
a Participant has not designated a beneficiary or beneficiaries, or if
for any reason such designation shall be legally ineffective, or if
such beneficiary or beneficiaries shall predecease the Participant,
then the Participant's surviving Eligible Spouse, and if none, the
estate of such Participant shall be deemed to be the beneficiary
designated to receive such death benefit.
(c) Notwithstanding the foregoing, if the Participant is
married for not less than one year as of the date of his death, the
Participant's surviving Eligible Spouse shall be deemed to be his
designated beneficiary and shall receive the full amount of the death
benefit attributable to the Participant unless the spouse consents or
has consented to the Participant's designation of another beneficiary.
Any such consent to the designation of another beneficiary must
acknowledge the effect of the consent, must be witnessed by a Plan
representative or by a notary public and shall be effective only with
respect to that spouse. A spouse's consent shall be a restricted
consent (which may not be changed as to the beneficiary unless the
spouse consents to such change in the manner described herein).
Notwithstanding the preceding provisions of this section 8.4(c), a
Participant shall not be required to obtain spousal consent to his
designation of another beneficiary if the Participant is legally
separated or the Participant has been
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abandoned, and the Participant provides the Plan Administrator with a
court order to such effect.
ARTICLE IX
FORM AND PAYMENT OF BENEFITS, WITHDRAWALS
9.1 TIME FOR DISTRIBUTION OF BENEFITS.
(a) Except as otherwise provided under this Article IX,
the amount of the benefit to which a Participant is entitled under
sections 8.1, 8.2, 8.3, or 8.4 shall be paid to him or, in the case of
a death benefit, shall be paid to said Participant's beneficiary or
beneficiaries, in a lump sum payment as soon as practicable following
the Participant's retirement, disability, severance of employment or
death, as the case may be.
(b) Any distribution paid to a Participant (or, in the
case of a death benefit, to his beneficiary or beneficiaries) pursuant
to section 9.1(a) shall commence not later than the earlier of:
(1) the 60th day after the last day of the Plan
Year in which the Participant's employment is terminated or,
if later, in which occurs the Participant's Normal Retirement
Date; or
(2) April 1 of the year immediately following the
calendar year in which he reaches age 70 1/2.
(c) Notwithstanding the foregoing, no distribution shall
be made of the benefit to which a Participant is entitled under
sections 8.1, 8.2, or 8.3 prior to the Participant's 62nd birthday
unless the value of his benefit does not exceed $3,500, or unless the
Participant consents to the distribution. The Plan Administrator
shall provide each Participant entitled to a distribution of more than
$3,500 with a written notice of his rights, which shall include an
explanation of the alternative dates for distribution of benefits and
the optional forms of benefit available to the Participant. The
Participant may elect to exercise such rights, no less than 30 days
and no more than 90 days before the first date upon which distribution
of the Participant's vested account balances may be made; provided,
however, that such distribution may commence less than 30 days after
the provision of the notice if the Plan Administrator clearly informs
the Participant that the Participant has a right to a period of at
least 30 days after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if applicable, a
particular distribution option), and if the Participant, after
receiving the notice, affirmatively elects a distribution. In the
event that a Participant does
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not consent to a distribution of a benefit in excess of $3,500 to
which he is entitled under sections 8.1, 8.2, or 8.3, the amount of
his benefit shall be paid to the Participant not later than sixty (60)
days after the last day of the Plan Year in which the Participant
reaches his 62nd birthday.
(d) Notwithstanding the foregoing, benefit payments shall
satisfy the incidental death benefit requirements and all other
applicable provisions of Section 401(a)(9) of the Code, the
regulations issued thereunder (including Proposed Regulation Section
1.401(a)(9)-2), and such other rules thereunder as may be prescribed
by the Commissioner.
9.2 FORM OF PAYMENT. The amount of any benefit to which a
Participant is entitled under Article VIII hereof shall be paid to him in cash;
provided, however, that at the request of the Participant or, in case such
Participant has died, at the request of his beneficiary or beneficiaries, the
portion of any distributable benefit attributable to the Participant's Savings
Contributions Account and Matching Contributions Account and credited to
Employer Securities Accounts shall be distributable, to the extent possible,
in shares of common stock of the Company, except that no fractional shares
shall be issued and the value of any fractional shares to which a Participant
would otherwise be entitled shall be paid in cash.
9.3 PERIODIC ADJUSTMENTS. To the extent the balances of a
Participant's Accounts have not been distributed and remain in the Plan, and
notwithstanding anything contained in the Plan to the contrary, the value of
such remaining balances shall be subject to adjustment from time to time
pursuant to the provisions of Article VII.
9.4 WITHDRAWALS AFTER AGE 59 1/2.
(a) Upon reaching age 59 1/2, a Participant who is
actively employed by an Employer may apply to the Administrator for
the withdrawal of all or a portion of his Savings Contributions
Account and his vested Matching Contributions Account. The
Administrator shall not permit more than one withdrawal in any Plan
Year. The minimum amount that may be withdrawn by a Participant shall
be $1,000. All amounts withdrawn shall be paid to the Participant in
cash.
(b) The Administrator shall direct the Trustee to
distribute to a Participant who has applied for such a withdrawal the
amount requested, which amount shall be withdrawn first from the
Participant's Savings Contributions Account and, after withdrawal of
the Participant's entire Savings Contributions Account, then from the
Participant's Matching Contributions Account.
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(c) Notwithstanding the preceding provisions of this
section 9.4, any Participant who is an officer, director or 10%
shareholder of the Company, and any other Participant who is required
to file reports under Section 16(b) of the Securities Exchange Act of
1934, shall be prohibited from withdrawing any portion of his Matching
Contributions Account, as well as any portion of his Savings
Contributions Account that is invested in the Publix Stock Fund (as
described in section 10.1(d)).
(d) The Administrator shall establish additional uniform
and nondiscriminatory rules and procedures regarding the distribution
of benefits pursuant to this section.
9.5 DIRECT ROLLOVER DISTRIBUTIONS. Notwithstanding any provision
of the Plan to the contrary, a Distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to have all or any portion of an
Eligible Rollover Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover. In the event that a
Distributee elects to have only a portion of an Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan, the portion must not be less than
$500 (adjusted under such regulations as may be issued from time to time by the
Secretary of the Treasury).
9.6 DISTRIBUTION FOR MINOR BENEFICIARY. In the event a
distribution is to be made to a beneficiary who is a minor under the laws of
the state in which the beneficiary resides, the Administrator may, in the
Administrator's sole discretion, direct that such distribution be paid to the
legal guardian or custodian of such beneficiary as permitted by the laws of the
state in which said beneficiary resides. If the amount distributable to a
minor beneficiary who is a Florida resident does not exceed $5,000, the
Administrator may direct that payment be made to a natural guardian of the
beneficiary (as defined in Florida Statute Section 744.301, or any successor
statute). If the amount distributable to such a beneficiary residing in
Florida exceeds $5,000, or if payment cannot be made to a natural guardian, the
Administrator may, in its sole discretion, direct that payment be made to (i)
a court appointed guardian of the property of the beneficiary; or (ii) a
custodian for the minor under the Florida Uniform Transfers to Minors Act. A
payment to the legal guardian or custodian of a minor beneficiary shall fully
discharge the Trustee, Employer, and Plan from further liability on account
thereof.
9.7 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN. In the
event that all, or any portion, of the distribution payable to a Participant or
his beneficiary hereunder shall, at the expiration of two (2) years after it
shall become payable, remain unpaid solely by reason of the inability of the
Administrator to ascertain the whereabouts of such Participant or his
beneficiary despite the reasonable effort of the Administrator to locate such
Participant or his beneficiary, the amount so distributable shall be treated as
a forfeiture pursuant to the Plan. In the event a Participant or
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beneficiary is located subsequent to his benefit being reallocated, such
benefit shall be restored.
ARTICLE X
DESIGNATED INVESTMENTS
10.1 PARTICIPANT DIRECTED INVESTMENTS. On the commencement of his
participation in the Plan, each Participant shall direct the Trustees to invest
his Savings Contributions Account in one or more of the following:
(a) A "Fixed Income Fund," which shall consist of a
portfolio invested in commercial paper, U.S. Government or federal
agency obligations, short-term corporate obligations, bank
certificates of deposit, savings accounts and/or comparable
investments, as may be deemed appropriate by the Plan Administrator,
designed to provide maximum protection of capital with a conservative
rate of return;
(b) A "Growth and Income Fund," which shall consist of a
portfolio invested primarily in common and preferred stocks,
governmental and corporate bonds, and other securities or investment
opportunities, as may be deemed appropriate by the Plan Administrator,
designed to provide for both capital appreciation and current income;
(c) A "Growth Fund," which shall consist of a portfolio
invested primarily in common stocks and such other securities or
investment opportunities, as may be deemed appropriate by the Plan
Administrator, providing for long-term capital appreciation;
(d) A "Company Stock Fund," which shall consist of a
portfolio invested primarily in common stock of the Company; and
(e) Such additional Directed Investment Funds as may be
made available by the Plan Administrator from time to time.
The Plan Administrator may provide each of the Directed Investment Funds
described above through mutual funds, investment contracts, or other
appropriate investment vehicles.
10.2 ELECTION PROCEDURES. Except as may be otherwise provided by
the Agreements and Declarations of Trust or by any contract entered into by a
Trustee or the Plan Administrator with an investment manager appointed to
manage all or any portion of the assets of the Plan, each Participant's
elections described in subsection (a) shall be made in writing upon his
commencement of participation in the Plan.
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(a) A Participant shall designate the percentage of his
savings contributions to be allocated to any Directed Investment Fund.
The Administrator shall establish the minimum percentage that each
Participant may select to be allocated to any Directed Investment Fund
selected by the Participant.
(b) A Participant may revise his election effective as of
the first day of each Valuation Period. The Participant's revised
election shall be effective for contributions made to the Plan after
the effective date of such revision, and may be effective for the
investment of balances previously allocated and remaining credited to
a Participant's Savings Contributions Account.
(c) The Trustees shall make requested investments on
behalf of each Participant within a reasonable period after the
receipt of written directions from the Administrator or the
Participant.
10.3 FAILURE TO DESIGNATE. If a Participant does not specifically
designate the initial investments for all of his Savings Contributions Account,
the Administrator shall not accept his initial salary reduction agreement.
10.4 PROCEDURES AND RESTRICTIONS. Except as otherwise provided
herein, the Plan Administrator shall establish uniform procedures regarding
Participant investment directions, which procedures shall be communicated to
all Participants. The Plan Administrator, at its sole discretion, may
prohibit, or otherwise restrict, investment of Savings Contributions Account
balances in the Company Stock Fund by any officer, director or 10% shareholder
of the Company, or any other Participant who is required to file reports under
Section 16(b) of the Securities Exchange Act of 1934, in order to prevent a
violation of federal law or an undue administrative burden upon the Plan
Administrator.
10.5 OTHER ACCOUNTS. The Participant shall have no right to direct
the investment of his Matching Contributions Account.
ARTICLE XI
LOANS TO PARTICIPANTS
11.1 AVAILABILITY OF LOANS.
(a) The provisions of this Article XI shall be effective
beginning June 1, 1995.
(b) The Plan Administrator, in accordance with its
uniform nondiscriminatory policy, may direct the Trustee, upon
application of a Participant who is actively employed by an Employer,
to make a loan to such Participant out of his Savings
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Contributions Account. Any such loan to a Participant shall be
considered a designated investment under Article X and without
limitation shall be subject to the provisions of Article X.
(c) Until otherwise directed by the Administrator, the
Director of Benefits Administration shall be authorized to coordinate
the loan program set forth herein. Applications shall be submitted to
such person on forms obtained from such person.
(d) The amount advanced, when added to the outstanding
balance of all other loans to the Participant from any qualified
retirement plan adopted by the Participant's Employer or an Affiliate,
may not exceed the lesser of:
(1) $50,000, reduced by the excess, if any, of:
(A) the Participant's highest aggregate
outstanding balance of all loans from the Plan (or
any other qualified retirement plan adopted by the
Participant's Employer or an Affiliate) during the
one (1) year period ending on the day before the date
on which the loan is made, over
(B) the aggregate outstanding balance of
all loans from any qualified retirement plan adopted
by the Participant's Employer or an Affiliate on the
date on which the loan is made; or
(2) 50% of the vested balance of the
Participant's Savings Contribution and Matching Contributions
Accounts; or
(3) 100% of the balance of the Participant's
Savings Contributions Account.
(e) The minimum amount that may be borrowed by the
Participant shall be $1,000.
(f) The Participant shall not be permitted to obtain more
than one loan in any Plan Year.
(g) The Participant shall not be permitted to maintain
more than one loan at any time.
(h) Any legal and administrative costs incurred by the
Plan Administrator or the Primary Trustee as a result of a loan, or
application for a loan, shall be paid by the Participant who received
or applied for such loan.
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11.2 TIME AND MANNER OF REPAYMENT. Any loan made under this
Article shall be repayable to the Trust at such times and in such manner as may
be provided by the Administrator, subject to the following limitations:
(a) Each loan shall be secured by 50% of the vested
interest of the Participant in his Accounts. The Administrator shall
not accept any other form of security. Each Participant shall agree
to have each required loan payment deducted from his pay and remitted
to the Trustee.
(b) Each loan shall bear interest at a reasonable rate
and shall provide for substantially level amortization of principal
and interest no less frequently than quarterly. The interest rate
charged shall be comparable to the rate charged by commercial lending
institutions in the region in which the Employer is located for
comparable loans as determined by the Primary Trustee at the time the
loan is approved.
(c) Each loan may be pre-paid at any time after the
completion of a one year period.
(d) Each loan shall be repaid within a five-year period
of time.
11.3 DEFAULT. In the event of default, the Trustees, at the
direction of the Administrator, may proceed to collect said loan with any legal
remedy available, including reducing the amount of any distribution permitted
under Article VIII by the amount of any such loan that may be due and owing as
of the date of distribution or any other action that may be permitted by law.
"Events of Default" shall include any failure to make a payment of principal or
interest attributable to the loan when due; failure to perform or to comply
with any obligations imposed by any agreement executed by the Borrower securing
his loan obligation; and any other conditions or requirements set forth within
a promissory note or security agreement that may be required in order to ensure
that the terms of the loan are consistent with commercially reasonable
practices.
ARTICLE XII
TRUST FUNDS
12.1 AGREEMENTS AND DECLARATIONS OF TRUST. The Primary Trust Fund
shall be held by United States Trust Company of New York, as Primary Trustee,
or by a successor trustee or trustees, for use in accordance with the Plan
under its Agreement and Declaration of Trust. The Publix Stock Fund shall be
held by Tina P. Johnson, as Publix Stock Fund Trustee, or by a successor
trustee or trustees, for use in accordance with the Plan under its Agreement
and Declaration of Trust. The Agreements and Declarations of Trust may from
time to time be amended in the manner therein provided.
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Similarly, the Trustees may be changed from time to time in the manner provided
in the Agreements and Declarations of Trust.
12.2 SEPARATE FUNDS. The Primary Trustee shall maintain the
Primary Trust Fund, which shall include assets attributable to Directed
Investment Funds (other than the Publix Stock Fund) attributable to
Participants' Savings Contributions Accounts. The Publix Stock Fund Trustee
shall maintain the Publix Stock Fund, which shall include assets attributable
to Participants' Savings Contributions Accounts and Matching Contributions
Accounts.
ARTICLE XIII
EXPENSES OF ADMINISTRATION OF THE PLAN AND THE TRUST FUND
The Company shall bear all expenses of implementing this Plan and the
Trust. For its services, any corporate trustee shall be entitled to receive
reasonable compensation in accordance with its rate schedule in effect from
time to time for the handling of a retirement trust. Any individual Trustee
shall be entitled to such compensation as shall be arranged between the Company
and the Trustee by separate instrument; provided, however, that no person who
is already receiving full-time pay from any Employer or any Affiliate shall
receive compensation from the Trust Funds (except for the reimbursement of
expenses properly and actually incurred). The Company may pay all expenses of
the administration of the Trust Funds, including the Trustee's compensation,
the compensation of any investment manager, the expense incurred by the
Administrator in discharging its duties, all income or other taxes of any kind
whatsoever that may be levied or assessed under existing or future laws upon or
in respect of the Trust Funds, and any interest that may be payable on money
borrowed by the Trustee for the purpose of the Trust and any Employer may pay
such expenses as relate to Participants employed by such Employer. Any such
payment by the Company or an Employer shall not be deemed a contribution to
this Plan. Such expenses shall be paid out of the assets of the Trust Funds
unless paid or provided for by the Company or another Employer. Any and all
expenses (including, without limitation, brokerage fees, closing costs,
liabilities arising from the ownership or management of specific properties,
and income and other taxes) incurred in connection with the investments of the
Directed Investment Funds or the Publix Stock Fund, which are paid from the
assets of the Trust Funds, shall be charged solely against, and paid solely
from, the Fund to which such investment is attributable. Notwithstanding
anything contained herein to the contrary, no excise tax or other liability
imposed upon the Trustee, the Plan Administrator or any other person for
failure to comply with the provisions of any federal law shall be subject to
payment or reimbursement from the assets of the Trust.
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ARTICLE XIV
AMENDMENT AND TERMINATION
14.1 RESTRICTIONS ON AMENDMENT AND TERMINATION OF THE PLAN. It is
the present intention of the Company to maintain the Plan set forth herein
indefinitely. Nevertheless, the Company specifically reserves to itself the
right at any time and from time to time to amend or terminate this Plan in
whole or in part; provided, however, that no such amendment:
(a) shall have the effect of vesting in any Employer,
directly or indirectly, any interest, ownership or control in any of
the present or subsequent funds held subject to the terms of the
Trust;
(b) shall cause or permit any property held subject to
the terms of the Trust to be diverted to purposes other than the
exclusive benefit of the Participants and their beneficiaries or for
the administrative expenses of the Plan Administrator and the Trust;
(c) shall reduce any Vested Interest of a Participant on
the later of the date the amendment is adopted or the date the
amendment is effective, except as permitted by law;
(d) shall reduce the Accounts of any Participant;
(e) shall amend any vesting schedule with respect to any
Participant who has at least three Years of Service at the end of the
election period described below, except as permitted by law, unless
each such Participant shall have the right to elect to have the
vesting schedule in effect prior to such amendment apply with respect
to him, such election, if any, to be made during the period beginning
not later than the date the amendment is adopted and ending no earlier
than sixty (60) days after the latest of the date the amendment is
adopted, the amendment becomes effective or the Participant is issued
written notice of the amendment by his Employer or the Plan
Administrator; or
(f) shall increase the duties or liabilities of the
Trustee without its written consent.
14.2 AMENDMENT OF PLAN. Subject to the limitations stated in
section 14.1, the Company shall have the power to amend this Plan in any manner
that it deems desirable, and, not in limitation but in amplification of the
foregoing, it shall have the right to change or modify the method of allocation
of contributions hereunder, to change any provision relating to the
administration of this Plan and to change any provision relating to the
distribution or payment, or both, of any of the assets of the Trust.
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14.3 TERMINATION OF PLAN. Any Employer, in its sole and absolute
discretion, may permanently discontinue making contributions under this Plan or
may terminate this Plan and the Trust (with respect to all Employers if it is
the Company, or with respect to itself alone if it is an Employer other than
the Company), completely or partially, at any time without any liability
whatsoever for such permanent discontinuance or complete or partial
termination. In any of such events, the affected Participants, notwithstanding
any other provisions of this Plan, shall have fully Vested Interests in the
amounts credited to their respective Accounts at the time of such complete or
partial termination of this Plan and the Trust or permanent discontinuance of
contributions. All such Vested Interests shall be nonforfeitable.
14.4 METHOD OF DISCONTINUANCE. In the event an Employer decides to
permanently discontinue making contributions, such decision shall be evidenced
by an appropriate resolution of its Board and a certified copy of such
resolution shall be delivered to the Plan Administrator and the Trustees. All
of the assets in the Trust Funds belonging to the affected Participants on the
date of discontinuance specified in such resolutions shall, aside from becoming
fully vested as provided in section 14.3, be held, administered and distributed
by the Trustees in the manner provided under this Plan. In the event of a
permanent discontinuance of contributions without such formal documentation,
full vesting of the interests of the affected Participants in the amounts
credited to their respective Accounts will occur on the last day of the Plan
Year in which a substantial contribution is made to the Trust.
14.5 METHOD OF TERMINATION.
(a) In the event an Employer decides to terminate this
Plan and the Trusts, such decision shall be evidenced by an
appropriate resolution of its Board and a certified copy of such
resolution shall be delivered to the Plan Administrator and the
Trustees. After payment of all expenses and proportional adjustments
of individual accounts to reflect such expenses and other changes in
the value of the Trust Funds as of the date of termination, each
affected Participant (or the beneficiary of any such Participant)
shall be entitled to receive, provided that the requirements set forth
in section 14.5(b) are met, any amount then credited to his Accounts
in a lump sum.
(b) In the event this Plan and the Trusts are terminated,
completely or partially, and with respect to any one Employer or with
respect to all Employers, distributions may not be made pursuant to
this section 14.5 unless:
(1) the Plan has been completely terminated and
no successor plan (within the meaning of Section 401(k)(10) of
the Code) has been established;
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(2) the Plan has been partially terminated as a
result of the sale or other disposition by an Employer to an
unrelated corporation of substantially all of the assets used
in a trade or business, in which case distribution may be made
to employees who continue employment with the acquiring
corporation; or
(3) the Plan has been partially terminated as a
result of the sale or other disposition by an Employer of its
interest in a subsidiary, in which case distribution may be
made to employees who continue employment with the subsidiary.
(c) At the election of the Participant, the Plan
Administrator may transfer the amount of any Participant's
distribution under this section 14.5 to the trustee of another
qualified plan or the trustee of an individual retirement account or
individual retirement annuity instead of distributing such amount to
the Participant. Any such election by a Participant shall be in
writing and filed with the Plan Administrator.
14.6 INITIAL QUALIFICATION OF PLAN. Notwithstanding the provisions
of section 14.1, if it is finally determined that the Plan does not qualify
initially under the Code, then, in that event, the Plan shall terminate as of
the date of such final determination and the Plan Administrator shall direct
the Trustees to pay the then aggregate of the balances in the Matching
Contributions Accounts to the appropriate Employer (provided such payment is
made within one year after the date of the final determination); and the
balance in a Participant's Savings Contributions Account shall be paid to such
Participant. The Participants and their beneficiaries shall have no further
rights under the Plan, the Trusts or the Trust Funds, and the Trustees shall be
discharged of all obligations and duties under the Trusts.
ARTICLE XV
MISCELLANEOUS
15.1 MERGER OR CONSOLIDATION. This Plan and the Trust may not be
merged or consolidated with, and the assets or liabilities of this Plan and the
Trust may not be transferred to, any other plan or trust unless each
Participant would receive a benefit immediately after the merger, consolidation
or transfer, if the plan and trust then terminated, that is equal to or greater
than the benefit the Participant would have received immediately before the
merger, consolidation or transfer if this Plan and the Trust had then
terminated.
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15.2 ALIENATION.
(a) Except as provided in section 15.2(b), no Participant
or beneficiary of a Participant shall have any right to assign,
transfer, appropriate, encumber, commute, anticipate or otherwise
alienate his interest in this Plan or the Trust or any payments to be
made thereunder; no benefits, payments, rights or interests of a
Participant or beneficiary of a Participant of any kind or nature
shall be in any way subject to legal process to levy upon, garnish or
attach the same for payment of any claim against the Participant or
beneficiary of a Participant; and no Participant or beneficiary of a
Participant shall have any right of any kind whatsoever with respect
to the Trust, or any estate or interest therein, or with respect to
any other property or right, other than the right to receive such
distributions as are lawfully made out of the Trust, as and when the
same respectively are due and payable under the terms of this Plan and
the Trust.
(b) Notwithstanding the provisions of section 15.2(a),
the Plan Administrator shall direct the Trustees to make payments
pursuant to a Qualified Domestic Relations Order as defined in Section
414(p) of the Code. The Administrator shall establish procedures
consistent with Section 414(p) of the Code to determine if any order
received by the Administrator or any other fiduciary of the Plan is a
Qualified Domestic Relations Order.
15.3 GOVERNING LAW. This Plan shall be administered, construed and
enforced according to the laws of the State of Florida, except to the extent
such laws have been expressly preempted by federal law.
15.4 ACTION BY EMPLOYER. Whenever the Company or another Employer
under the terms of this Plan is permitted or required to do or perform any act,
it shall be done and performed by the Board of Directors (or an executive
committee of the Board of Directors) of the Company or such other Employer and
shall be evidenced by proper resolution of such Board of Directors certified by
the Secretary or Assistant Secretary of the Company or such other Employer.
15.5 ALTERNATIVE ACTIONS. In the event it becomes impossible for
the Company, another Employer, the Plan Administrator, or the Trustees to
perform any act required by this Plan, then the Company, such other Employer,
the Administrator, or the Trustees, as the case may be, may perform such
alternative act that most nearly carries out the intent and purpose of this
Plan.
15.6 GENDER. Throughout this Plan, and whenever appropriate, the
masculine gender shall be deemed to include the feminine and neuter; the
singular, the plural; and vice versa.
52.
55
IN WITNESS WHEREOF, this Plan has been executed this _____ day of
_______________, 1994.
ATTEST: PUBLIX SUPER MARKETS, INC.
(CORPORATE SEAL)
______________________________ By:________________________
Secretary President
53.