Exhibit 4.(c)
CORN PRODUCTS INTERNATIONAL,
INC.
RETIREMENT SAVINGS
PLAN
FOR MAPLETON HOURLY
EMPLOYEES
Effective May 1,
2008
Table of Contents
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Page
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Article 1 Definitions
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2
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Article 2 Eligibility And
Participation
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7
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Article 3 Participant Contributions and
Deferred Contributions
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8
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Article 4 Employer Contributions
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11
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Article 5 Statutory Limitations on
Benefits
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12
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Article 6 Trust
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21
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Article 7 Investment Elections and
Allocations to Participants’ Accounts
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22
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Article 8 Withdrawals and Loans
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26
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Article 9 Distributions Upon Termination of
Employment
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33
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Article 10 Special Participation and
Distribution Rules
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36
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Article 11 Shareholder Rights with Respect
to Company Stock
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42
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Article 12 Administration
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45
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Article 13 Participation in Plan by
Affiliate
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49
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Article 14 Amendment and
Termination
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50
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Article 15 Top-Heavy Provisions
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51
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Article 16 General Provisions
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54
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i
Introduction
Corn Products International, Inc. (the
“Company”) has adopted the Corn Products
International, Inc. Retirement Savings Plan for Mapleton
Hourly Employees (the “Plan”) effective May 1,
2008 for the benefit of certain eligible employees located at the
Company’s Mapleton facility.
The Plan is intended to qualify as a profit
sharing plan within the meaning of section 401(a) of the
Internal Revenue Code of 1986, as amended (the “Code”),
with a qualified cash or deferred arrangement described in section
401(k) of the Code, and its related trust is intended to be
tax-exempt under section 501(a) of the Code.
1
Article 1
Definitions
The following words and phrases
shall, for the purpose of this Plan and any subsequent amendment
thereof, have the following meanings, unless a different meaning is
plainly required by the context:
1.1
“
Account ” means a Participant’s Account under
the Plan, which is composed of the Participant Contribution
Account, Deferred Contribution Account, Matching Contribution
Account, Profit Sharing Account, Service Award Contribution Account
and Rollover Account, maintained for a Participant under the Plan
to which are credited the Participant’s share of
contributions and earnings and debited the withdrawals and losses
thereon.
1.2
“
Affiliate ” means (i) any corporation which is a
member of a controlled group of corporations (as defined in section
414(b) of the Code) which includes the Company, (ii) any
trade or business (whether or not incorporated) which is under
common control (as defined in section 414(c) of the Code) with
the Company, (iii) any organization (whether or not
incorporated) which is a member of an affiliated service group (as
defined in section 414(m) of the Code) which includes the
Company; and (iv) any other entity required to be aggregated
with the Company pursuant to final regulations under section
414(o) of the Code; provided , however , that
such corporation, trade or business, organization, or other entity
shall be deemed to be an Affiliate only during the period in which
the particular relationship existed.
1.3
“ Board
of Directors” means the Board of Directors of the
Company, as constituted from time to time.
1.4
“ Break
in Service ” means any period during which an Employee is
not employed by an Employer which is not included in a Period of
Employment and which is in excess of twelve months.
1.5
“
Code ” means the Internal Revenue Code of 1986, as
amended from time to time.
1.6
“
Committee ” means the Committee appointed by the
Company to administer the Plan, pursuant to
Article 12.
1.7
“
Company ” means Corn Products
International, Inc.
1.8
“
Company Stock ” means common stock of the
Company.
1.9
“
Compensation ” means an Employee’s wages as
identified under Box 1 of Form W-2 (but determined without
regard to rules that limit remuneration based on the nature or
location of the employment or the services performed), plus
elective contributions that are made by an Employer on behalf of
the Employee that are not includible in gross income under section
125, 132(f)(4) or 402(e)(3) of the Code; but reduced by
all of the following items, even if includible in gross income:
amounts received as long-term incentive bonuses, income
attributable to the exercise of stock options, reimbursements
or
2
other expense allowances
(such as car allowances), fringe benefits (cash and noncash),
moving expenses, deferred compensation, and welfare benefits.
For purposes of determining Compensation earned for services
performed outside the United States, Compensation shall be imputed
at a rate equal to the current base rate of pay in effect for the
Participant based on U.S. dollars and what would otherwise be
includible in Box 1 of Form W-2.
Notwithstanding the foregoing, an
Employee’s Compensation in a Plan Year in excess of
(i) with respect to the 2008 Plan Year, $230,000 and
(ii) with respect to each subsequent Plan Year, the amount
prescribed by section 401(a)(17) of the Code, shall be disregarded
for all purposes under the Plan.
For purposes of applying the limitations
described in Section 5.1 of the Plan, in the case of a
Participant who terminates employment during the Plan Year,
Compensation shall include amounts paid after such
Participant’s termination of employment if such amounts
(i) are paid by the later of 2 ½ months after
termination of employment and the end of the Plan Year that
includes the date of termination of employment and (ii) are
payments of regular compensation for services performed during the
Participant’s regular working hours or outside of such
working hours (such as overtime), commissions, bonuses, and other
similar payments that would have been paid to the Participant prior
to a termination of employment if the Participant had continued in
employment with the Employer.
1.10
“
Deferred Contribution ” means a contribution made by
an Employer on behalf of a Participant on a before-tax basis, as
described in Section 3.3.
1.11
“
Deferred Contribution Account ” means the account
maintained for a Participant to which are allocated the Deferred
Contributions made on behalf of such Participant pursuant to
Section 3.3 on a before-tax basis, plus earnings and net of
any withdrawals or losses.
1.12
“
Disabled Participant ” means a Participant who is
entitled to receive long-term disability benefits under a long-term
disability plan maintained by an Employer.
1.13
“
Effective Date ” means May 1, 2008 (the effective
date of this amendment and restatement). Unless expressly
provided to the contrary, the new Effective Date set forth herein
shall not affect the prior effectiveness of any provisions of the
Plan as set forth in the prior version of the Plan.
1.14
“
Eligible Employee ” means each Employee of the Company
at the Company’s Mapleton Facility who is covered by the
collective bargaining agreement between the Company and the Paper,
Allied Industrial, Chemical and Energy International Union, Local
6-0507 and International Association of Machinists District
No. 8.
1.15
“
Employee ” means each individual whose relationship
with an Employer is, under common law, that of an employee.
Notwithstanding the foregoing, the term “Employee”
shall exclude any individual retained by an Employer to perform
services for such Employer (for either a definite or indefinite
duration) and is characterized thereby as a fee-for-service worker
or independent contractor or in a similar capacity (rather than in
the capacity of an employee), regardless of such individual’s
status under common law or for purposes of federal, state or local
tax withholding, employment tax or employment law.
3
1.16
“
Employer ” means the Company and any other Affiliate
which, with the consent of the Company, elects to participate in
this Plan pursuant to Section 13.1.
1.17
“
Employer Contribution ” means a contribution made by
an Employer, other than a Deferred Contribution, to a
Participant’s Account pursuant to the terms of the Plan as in
effect at the applicable time.
1.18
“
ERISA ” means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
1.19
“ Hour
of Employment ” means each hour for which an Employee is
directly or indirectly compensated by, or entitled to receive
compensation from, an Employer including hours for any period
during which he or she receives compensation without rendering
services such as paid holidays, vacations, sick leave, disability
leave, layoff, jury duty, or leave of absence. For purposes
of the preceding sentence, “compensation” shall include
any back pay, irrespective of mitigation of damages, either awarded
to the Employee or agreed to by an Employer. In addition, an
Employee shall be credited with the number of Hours of Employment
that the Committee determines he or she would have completed during
any period of qualified military service but for such qualified
military service, provided that such Employee returns to active
employment with his or her Employer within the period prescribed by
USERRA. The computation of Hours of Employment and the period
to which Hours of Employment are to be credited shall be determined
under uniform rules adopted by the Committee in accordance
with Department of Labor Regulations section 2530.200b-2(b),
(c) and (f).
1.20
“
Matching Contribution ” means a contribution made by
an Employer on behalf of a Participant as provided in
Section 4.1.
1.21
“
Matching Contribution Account ” means the account
maintained for a Participant to which are allocated the Matching
Contributions, if any, made on such Participant’s behalf,
plus earnings and net of any withdrawals or losses.
1.22
“
Participant ” means an Eligible Employee who satisfies
the requirements for participation pursuant to
Article 2.
1.23
“
Participant Contribution ” means a contribution made
by a Participant on an after-tax basis, as described in
Section 3.1.
1.24
“
Participant Contribution Account ” means the account
maintained for a Participant to which are credited the Participant
Contributions made by such Participant, plus earnings and net of
any withdrawals or losses.
1.25
“ Period
of Employment ” means each period of time during which an
Employee is employed by an Employer. An Employee’s
employment shall not be terminated by reason of a leave of absence
from active employment granted by his Employer, pursuant to a
policy uniformly applied in all similar circumstances, because of
(a) military service, attendance at a school or training
program at the request of his Employer, government service in a
civilian capacity, jury duty, or layoff; or (b) because of
disability, provided that if he does not return to active
employment with an Employer before the later of (i) the time
specified in his leave, or if
4
not specified therein, three
years from the inception thereof, or (ii) cessation of his
disability, as the case may be, his employment shall be considered
terminated as of the earlier of twelve months after the last day of
the month in which such leave began and the last day of the month
in which such leave of absence terminated.
Maternity or paternity leave shall be deemed to
be a Period of Employment where necessary to prevent a Break in
Service, either in the Plan Year such leave is begun or the
following Plan Year.
An Employee’s absence from Service because
of military service shall be considered a leave of absence granted
by his Employer and notwithstanding any provision of the first
paragraph of this subsection shall not terminate his employment if
he returns to active employment with an Employer within thirty days
following the period of time during which he has reemployment
rights under any applicable federal law.
1.26
“
Plan ” means the plan as set forth herein and as it
may be amended from time to time.
1.27
“ Plan
Administrator ” means the person appointed by the
Committee pursuant to Section 12.4 to fulfill the
responsibilities relating to the administration of the Plan
specified therein.
1.28
“ Plan
Year ” means the 12-month period ending on each
December 31.
1.29
“ Profit
Sharing Account ” means the account maintained for a
Participant to which are allocated the Profit Sharing Contributions
made on behalf of such Participant pursuant to Section 4.2
plus earnings and net of any withdrawals or losses.
1.30
“ Profit
Sharing Contribution ” means a contribution made by an
Employer on behalf of a Participant as provided in
Section 4.2.
1.31
Qualified
Reservist . An individual who is
(i) a member of a reserve component (as defined in 37 U.S.C.
§ 101) and (ii) ordered or called to active duty, for a
period in excess of 179 days or for an indefinite period, after
September 11, 2001 and before December 31,
2007.
1.32
“
Rollover Account ” means the account maintained for a
Participant to which are allocated the rollover contributions made
by the Participant pursuant to Section 10.1, plus earnings and
net of any withdrawals or losses.
1.33
“
Service ” means, if required by the terms of this Plan
or by operation of law to determine participation or vesting of an
Employee, the total of his Periods of Employment by an
Employer. Service shall be computed in terms of completed
years and completed days (with 365 days being equal to one
year). Any Break in Service of twelve months or less shall be
included in an Employee’s Service.
1.34
“
Service Award Contribution ” means a contribution made
by an Employer on behalf of a Participant as provided in
Section 4.3.
5
1.35
“
Service Award Contribution Account ” means the account
maintained for a Participant to which are allocated the Service
Award Contributions, if any, made on behalf of such Participant
pursuant to Section 4.3 plus earnings and net of any
withdrawals or losses.
1.36
“ Trust
Agreement ” means the trust agreement as amended from
time to time, between the Company (acting on behalf of the
Employers) and the Trustee or Trustees, established for the purpose
of funding the benefits under this Plan.
1.37
“ Trust
Fund ” means all such money or other property which shall
be held by the Trustee pursuant to the terms of the Trust
Agreement.
1.38
“
Trustee ” means the trustee or trustees acting as such
under the Trust Agreement, including any successor or
successors.
1.39
“
USERRA ” means the Uniformed Services Employment and
Reemployment Rights Act of 1994, as amended.
1.40
“
Valuation Date ” means any date on which the New York
Stock Exchange is open for trading.
6
Article 2
Eligibility And Participation
2.1
Eligibility to
Become a Participant . An Eligible Employee
shall be eligible to become a Participant as of his first day of
employment at the Company’s Mapleton Facility.
2.2
Election to
Commence Participation . Each Eligible
Employee is required to make an election to participate prior to
his commencement of participation in the Plan (other than for
purposes of the Profit Sharing Contributions described in
Section 4.2). An Eligible Employee’s election to
commence participation in the Plan shall become effective on the
first day of the first calendar month coincident with or next
following the date he has satisfied the eligibility requirements
set forth in Section 2.1. If an Eligible Employee does
not properly elect to commence participation as of such date, he
may commence his participation on the first day of any subsequent
month.
2.3
Cessation of
Participation . An Eligible Employee
who becomes a Participant shall remain a Participant until his
entire Account balance is distributed to him.
2.4
Leased
Employees . If an individual who
performed services as a leased employee (within the meaning of
section 414(n)(2) of the Code) of an Employer or an Affiliate
becomes an Employee, or if an Employee becomes such a leased
employee, then any period during which such services were so
performed shall be taken into account solely for the purposes of
(i) determining whether and when such individual is eligible
to participate in the Plan under this Article 2,
(ii) measuring such individual’s years of Service, and
(iii) determining when such individual has retired or
otherwise terminated his or her employment for purposes of
Article 9 to the same extent it would have been had such
service been as an Employee. This Section shall not
apply to any period of service during which such a leased employee
was covered by a plan described in section 414(n)(5) of the
Code.
7
Article 3
Participant Contributions and Deferred
Contributions
3.1
Participant
Contributions .
(a)
Subject to the
limitations prescribed in Article 5, an Eligible Employee may
elect to make Participant Contributions under the Plan on an
after-tax basis. Any such election shall be made in the
manner prescribed by the Plan Administrator. Such election
shall be effective beginning on the first day of the payroll period
which is at least one day following receipt by the Plan
Administrator of the Participant’s election or as soon as
administratively possible. The Eligible Employee’s
election shall authorize such individual’s Employer to deduct
Participant Contributions through regular payroll deductions in the
amount specified by the Participant according to the provisions of
subsection (b). An Eligible Employee who is not otherwise a
Participant in the Plan shall become a Participant upon making an
election to make Participant Contributions as described
herein. No contributions shall be made by a Participant
subsequent to the Valuation Date coincident with or immediately
preceding the date of his termination of employment.
(b)
A
Participant’s Participant Contributions shall be designated
by the Participant as a whole percentage not less than 1% nor more
than 25% of his Compensation per pay period. Participant
Contributions shall be effected by payroll deductions made each pay
period, on an after-tax basis. In no event shall the total of
Participant Contributions under this Section 3.1 and Deferred
Contributions under Section 3.3 be more than 25% of the
Participant’s Compensation during any period in which
contributions are made.
3.2
Changes in and
Terminations of Participant Contributions . The contributions
referred to in Section 3.1 shall be entirely voluntary on the
part of a Participant. A Participant may revoke his election
to contribute at any time or he may change the rate of his
contributions within the percentage limits permitted under
Section 3.1 at any time by notifying the Plan Administrator in
the manner specified by the Plan Administrator. A change in
the rate of contributions or revocation of an election to
contribute becomes effective on the first day of the payroll period
which is at least one day following the date on which the Plan
Administrator has received notification of such change or as soon
as administratively possible. Participant Contributions shall
be suspended during any approved unpaid leave of absence or any
other period which is included in determining Hours of Employment
under Section 1.20 and for which a Participant does not
receive Compensation, other than a leave which has a duration of
less than one full payroll period. Such Participant may
contribute under Section 3.1 as soon as administratively
possible following the date on which he resumes receiving
Compensation.
3.3
Deferred
Contributions .
(a)
An Eligible
Employee may elect, in the same manner and within the same time
periods set forth in Section 3.1 to have his Employer
contribute Deferred Contributions on his behalf.
8
(b)
Subject to the
limitations prescribed in Section 3.5 and Article 5, each
Employer shall contribute for each pay period on behalf of each of
its Participants who has made an election to have Deferred
Contributions made on his behalf a whole percentage not less than
1% nor more than 25% of the Participant’s Compensation per
pay period, as designated in such election. The amount of
Compensation otherwise payable for the period for which each such
contribution is made shall be reduced by the amount of such
contribution by means of a payroll deduction each pay period.
In no event shall the total of Participant Contributions under
Section 3.1 and Deferred Contributions under this
Section 3.3 be more than 25% of the Participant’s
Compensation during any period in which such contributions are
made.
(c)
Catch-up
Contributions . Each Participant who
pursuant to Section 3.3(a) is eligible to make Deferred
Contributions for a payroll period and who shall attain age 50
before the close of such Plan Year shall be eligible to have
Deferred Contributions made in addition to those described in
Section 3.3(a) (“additional Deferred
Contributions”) if no other Deferred Contributions to be made
pursuant to subsection (a) of this Section may be made to
the Plan for such payroll period by reason of the limitations of
Section 3.5 or any comparable limitation or, if the Committee
shall so determine, the 25% restriction contained in
Section 3.3(a) of the Plan. Such additional
Deferred Contributions shall be elected, made, suspended, resumed
and credited in a manner similar to that described in Sections
3.3(a) and 3.3(b) and in accordance with and subject to
such additional rules and limitations of section
414(v) of the Code and otherwise as the Committee
determines. To the extent such additional Deferred
Contributions are not “catch-up contributions” as
defined for purposes of section 414(v) of the Code, they shall
be taken into account, and to the extent such additional Deferred
Contributions are catch-up contributions they shall not be taken
into account, for purposes of Section 3.5 or other provisions
of the Plan implementing the required limitations of sections
401(k)(3), 401(k)(11), 401(k)(12), 402(g), 404, 410(b), 415 or 416
of the Code, as applicable.
3.4
Changes in and
Terminations of Deferred Contributions . Changes in and
termination of Deferred Contributions shall be made at the same
time and in the same manner and subject to the same limitations as
prescribed for Participant Contributions in
Section 3.2.
3.5
Annual Limit
on Deferred Contributions .
(a)
Notwithstanding
the provisions of Section 3.3, a Participant’s Deferred
Contributions made pursuant to such Section for any calendar
year shall not exceed the dollar limit prescribed by section
402(g) of the Code (as adjusted for cost-of-living increases
in accordance with section 402(g)(5) of the Code) for such
calendar year, except to the extent set forth in
Section 3.3(c) and section 414(v) of the Code with
respect to “catch-up” contributions made pursuant to
Section 3.3(c) and section 414(v) of the
Code.
(b)
Except to the
extent set forth in Section 3.3(c) and section
414(v) of the Code with respect to catch-up contributions
described in Section 3.3(c), if for any calendar year the
Deferred Contributions to this Plan or the aggregate of Deferred
Contributions to this Plan plus amounts contributed under other
plans or arrangements described in sections
9
401(k), 403(b),
408(k) or 408(p) of the Code will exceed the limit
imposed by subsection (a) of this Section for the
calendar year in which such contributions were made (“excess
deferred contributions”), such excess deferred contributions
plus any income and minus any loss allocable thereto shall be
recharacterized as Participant Contributions made pursuant to
Section 3.1(a). The amount of any income or loss
allocable to such excess Deferred Contributions shall be determined
pursuant to Treasury Regulation section
1.401(k)-1(f)(4)(ii)(C) and (D). Notwithstanding the
provisions of this paragraph, any such excess deferred
contributions that are distributed in accordance with Regulation
section 1.402(g)-1(e)(2) or (3) shall not be treated as
“annual additions” for purposes of
Section 5.1.
10
Article 4
Employer Contributions
4.1
Matching
Contributions . For each payroll
period during a Plan Year an Employer shall contribute to the Plan
on behalf of each Participant employed by such Employer (other than
a Participant subject to the suspension described in
Section 8.1(a)) 100% of the Deferred Contributions or
Participant Contributions made by and on behalf of the Participant
that together do not exceed 6% of such Participant’s
Compensation for such payroll period during a Plan Year. Any
contribution made pursuant to this Section shall be referred
to hereinafter as a “Matching Contribution.”
Notwithstanding anything herein to the contrary, no Participant
shall be eligible to receive any Matching Contributions with
respect to any portion of such Participant’s Catch-Up
Contributions made pursuant to Section 3.3(c).
4.2
Profit Sharing
Contributions . In addition, each
Employer shall contribute to the Plan on behalf of its Eligible
Employees, an amount equal to 1% of the aggregate Compensation for
such Plan Year of all Eligible Employees who satisfy the
eligibility requirements for an allocation of contributions
hereunder for such Plan Year, as described in Section 7.2(d).
Any contribution made pursuant to this Section shall be
referred to hereinafter as a “Profit Sharing
Contribution.” An Eligible Employee who is not
otherwise a Participant in the Plan shall become a Participant upon
receiving an allocation of Profit Sharing Contributions as
described herein.
4.3
Service Award
Contributions . For each Plan Year,
the Company shall make a contribution, as specified below, on
behalf of each of its Participants who, in such Plan Year, has
completed the number of years of Service specified below.
Such contributions shall be made at any time during or after the
end of such Plan Year but in no event later than the due date of
the Employer’s federal income tax return for the tax year in
which such Plan Year ends:
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Years of Service
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Amount of Cash
Contribution
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5
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5 times the Employer Average Stock Trading
Price
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10
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10 times the Employer Average Stock Trading
Price
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15
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15 times the Employer Average Stock Trading
Price
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20
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20 times the Employer Average Stock Trading
Price
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25
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25 times the Employer Average Stock Trading
Price
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30
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30 times the Employer Average Stock Trading
Price
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For each additional 5 years of Service, the
Participant shall receive an additional 5 times the Employer
Average Stock Trading Price.
For purposes of the foregoing, the
“Employer Average Stock Trading Price” shall mean the
average of the high and low transaction prices (as reported in the
New York Stock Exchange-Composite Transactions) in trading of
Company Stock on the “Service Award Calculation Date,”
or if such day is not a trading day, the trading day next following
such date. The “Service Award Calculation Date”
shall mean the first day of the month in which a Participant
completes the number of years of Service required to receive a
Service Award Contribution.
11
Article 5
Statutory Limitations on Benefits
5.1
Maximum Annual
Additions Under Section 415 of the Code
.
Notwithstanding any other provision of the Plan, the amounts
allocated to each Participant’s Account for any Plan Year
shall be limited so that the aggregate annual additions for such
Plan Year to the Participant’s Account in this Plan and in
all other defined contribution plans in which he is a participant
shall not exceed the lesser of:
(I)
$40,000 (as adjusted for increases
in the cost-of-living pursuant to section 415(d) of the Code)
and
(II)
100% of the Participant’s
compensation (as defined below).
If as a result of a reasonable error in
estimating a Participant’s annual compensation, a reasonable
error in determining the amount of elective deferrals that may be
made by a Participant under section 415 of the Code or under other
limited facts and circumstances as determined by the Commissioner
of Internal Revenue, the annual additions to a Participant’s
Account exceeds the limitations set forth above for any Plan Year,
the amounts that would otherwise be allocated to such
Participant’s Account for such Plan Year under any other
defined contribution plans maintained by an Employer shall be
reduced until the amount to be allocated to the Participant’s
Account under the Plan is not so limited or until the amounts
allocated under all such other plans have been reduced to zero,
whichever occurs first. If after such reduction has been made the
amount to be allocated to a Participant’s Account under the
Plan for such year would exceed the limitations set forth in this
Section, then the excess allocations shall be corrected in
accordance with the Employee Plans Compliance Resolution System of
the Internal Revenue Service. Such excess allocations shall
be deemed:
(a)
first,
Participant Contributions and corresponding Matching Contributions
(if any), plus earnings on such contributions; and
(b)
second, Deferred
Contributions and corresponding Matching Contributions (if any)
plus earnings on such contributions.
Any Matching Contributions
reduced pursuant to subparagraphs(a) and (b) above in
which a Participant is not vested shall be forfeited.
The “annual additions”
for a Plan Year to a Participant’s Account in this Plan and
in any other defined contribution plan is the sum during such Plan
Year of—
(i)
the amount of Employer
contributions allocated to such Participant’s accounts,
excluding, however, any Deferred Contributions that are
“catch-up” contributions made pursuant to
Section 3.3(c) and section 414(v) of the
Code.
(ii)
the amount of forfeitures
allocated to such Participant’s accounts,
12
(iii)
the amount allocated to any
individual medical benefit account (as defined in section
415(1) of the Code) maintained on behalf of the Participant,
the amount attributable to medical benefits allocated to a
post-retirement medical account (as described in section
419(A)(d)(2) of the Code) and mandatory employee contributions
(as defined in section 411(c)(2)(C) of the Code) to a defined
benefit plan, regardless of whether such plan is subject to the
requirements of section 411 of the Code, and
(iv)
the amount of contributions by the
Participant to such Plan but excluding any rollover contribution
made to such Plan.
For purposes of this Section, the
“limitation year” shall be the Plan Year, the terms
“compensation,” “defined contribution
plan,” and “year of service” shall have the
meanings set forth in section 415 of the Code and the Regulations
promulgated thereunder, and a Participant’s Employer shall
include entities that are members of the same controlled group
(within the meaning of section 414(b) of the Code as modified
by section 415(h) of the Code) or affiliated service group
(within the meaning of section 414(m) of the Code) as his
Employer or under common control (within the meaning of section
414(c) of the Code as modified by section 415(h) of the
Code) with his Employer or such entities.
5.2
Limitations on
Contributions for Highly Compensated Employees
.
(a)
Actual
Deferral Percentage Test Imposed by Section 401(k)(3) of
the Code . Notwithstanding the
provisions of Section 3.3, and except as provided in section
414(v) of the Code, if the Deferred Contributions made
pursuant to such Section for a Plan Year fail to satisfy both
of the tests set forth in paragraphs (1) and (2) of this
subsection, the adjustments prescribed in paragraph (1) of
subsection (d) of this Section shall be made. Any
Deferred Contributions which are “catch-up
contributions” described in Section 3.3(c) shall
not be considered as Deferred Contributions for purposes of
determining whether the tests set forth in such paragraphs
(1) and (2) of this subsection are satisfied or for
purposes of making any adjustments prescribed in
Section 5.2(d)(1).
(1)
The HCE average
deferral percentage does not exceed the product of the NHCE average
deferral percentage multiplied by 1.25.
(2)
The HCE average
deferral percentage (i) does not exceed the NHCE average
deferral percentage by more than two percentage points, and
(ii) does not exceed two times the NHCE average deferral
percentage.
The Committee may elect for any Plan
Year to exclude from consideration, for purposes of the actual
deferral percentage tests, any Eligible Employee who is not a
highly compensated employee and who has either (i) not
attained the age of 21 or (ii) not completed a year of Service
provided , however , that the group of such excluded
Eligible
13
Employees separately satisfies the
minimum coverage test of Section 410(b) of the
Code.
(b)
Actual
Contribution Percentage Test Imposed by Section 401(m) of
the Code . Notwithstanding the
provisions of Sections 3.1 and 4.1, if the aggregate of the
Participant Contributions and Matching Contributions pursuant to
Sections 3.1 and 4.1, respectively, fail to satisfy both of the
tests set forth in paragraphs (1) and (2) of this
subsection, the adjustments prescribed in paragraph (2) of
subsection (d) of this Section shall be made.
(1)
The HCE average
contribution percentage does not exceed the product of the NHCE
average contribution percentage multiplied by 1.25.
(2)
The HCE average
contribution percentage (i) does not exceed the NHCE average
contribution percentage by more than two percentage points, and
(ii) does not exceed two times the NHCE average contribution
percentage.
The Committee may elect for any Plan
Year to exclude from consideration, for purposes of the actual
contribution percentage tests, any Eligible Employee who is not a
highly compensated employee and who has either (i) not
attained the age of 21 or (ii) not completed a year of
Service, provided , however , that the group of such
excluded Eligible Employees separately satisfies the minimum
coverage test of Section 410(b) of the Code.
(c)
Definitions
and Special Rules . For purposes of this
Section, the following definitions and special rules shall
apply:
(1)
The “actual
deferral percentage test” refers collectively to the tests
set forth in paragraphs (1) and (2) of subsection
(a) of this Section relating to Deferred
Contributions. The actual deferral percentage test shall be
satisfied if either of such tests are satisfied.
(2)
The “HCE
average deferral percentage” for a Plan Year is a percentage
determined for the group of Eligible Employees who are eligible to
make Deferred Contributions for such Plan Year and who are highly
compensated employees for such Plan Year. Such percentage
shall be equal to the average of the individual ADR’s for
each such Eligible Employee for such Plan Year.
(3)
The “NHCE
average deferral percentage” for a Plan Year is a percentage
determined for the group of Eligible Employees who were eligible to
make Deferred Contributions for the prior Plan Year and who were
not
14
highly
compensated employees for such prior Plan Year. Such
percentage shall be equal to the average of the individual
ADR’s for each such Eligible Employee for the prior Plan
Year.
(4)
The “actual
contribution percentage test” refers collectively to the
tests set forth in paragraphs (1) and (2) of subsection
(b) of this Section relating to Participant Contributions
and Matching Contributions. The actual contribution
percentage test shall be satisfied if either of such tests are
satisfied.
(5)
The “HCE
average contribution percentage” for a Plan Year is a
percentage determined for the group of Eligible Employees who are
eligible to make Participant Contributions for such Plan Year, or
are eligible to make Deferred Contributions and share in an
allocation of corresponding Matching Contributions (if any) for
such Plan Year, and who are highly compensated employees for such
Plan Year. Such percentage shall be equal to the average of
the ratios, calculated separately for each such Employee to the
nearest one-hundredth of one percent, of the sum of the Participant
Contributions made by such Eligible Employee for such Plan Year (if
any) and the Matching Contributions made for the benefit of such
Eligible Employee (if any) for such Plan Year and, in the
Committee’s sole discretion, to the extent permitted by
Regulations, some or all of the Deferred Contributions made during
such Plan Year for the benefit of such Eligible Employee (if any),
to the total compensation for such Plan Year paid to such Eligible
Employee.
(6)
The “NHCE
average contribution percentage” for a Plan Year is a
percentage determined for the group of Eligible Employees who were
eligible to make Participant Contributions for the prior Plan Year,
or were eligible to make Deferred Contributions and share in an
allocation of corresponding Matching Contributions (if any) for the
prior Plan Year, and who were not highly compensated employees for
such prior Plan Year. Such percentage shall be equal to the
average of the ratios, calculated separately for each such Eligible
Employee to the nearest one-hundredth of one percent, of the sum of
the Participant Contributions made by such Eligible Employee for
such Plan Year (if any) and the Matching Contributions made for the
benefit of such Eligible Employee for such Plan Year (if any) and,
in the Committee’s sole discretion, to the
15
extent permitted
by Regulations, some or all of the Deferred Contributions made
during such Plan Year for the benefit of such Eligible Employee (if
any), to the total compensation for such Plan Year paid to such
Eligible Employee.
(7)
A “highly
compensated employee” is, for a Plan Year, any Employee who
is (a) a 5%-owner (as determined under section 416(i) of
the Code) at any time during the Plan Year or the preceding Plan
Year or (b) is paid compensation in excess of $105,000 (as
adjusted for increases in the cost of living in accordance with
section 414(q)(l)(B)(ii) of the Code) from an Employer for the
prior Plan Year. If the Committee so elects for a Plan Year,
the Employees taken into account under clause (b) above shall
be limited to those Employees who were members of the
“top-paid group” (as defined in section
414(q)(3) of the Code) for the preceding Plan Year. Any
such election shall be included in the written records of the
Committee.
(8)
The term
“compensation” shall have the meaning set forth in
section 414(s) of the Code; provided , however ,
with respect to a nonresident alien who is not a Participant in the
Plan, compensation shall not include any amounts paid to such
nonresident alien which are (i) excludable from gross income
and (ii) not effectively connected with the conduct of a trade
or business within the United States.
(9)
If the Plan and
one or more other plans of the Employer to which elective deferrals
or qualified nonelective contributions (as such term is defined in
section 401(m)(4)(C) of the Code) are made are treated as one
plan for purposes of section 410(b) of the Code, such plans
shall be treated as one plan for purposes of this
Section.
(10)
ADR (average
deferral ratio) shall mean the ratio calculated to the nearest
one-hundredth of one percent, of the Deferred Contributions for the
benefit of each Eligible Employee for a Plan Year (if any) to the
total compensation for such Plan Year paid to such
Employee.
(11)
ACR (actual
contribution ratio) shall mean the ratio, calculated to the nearest
one-hundredth of one percent, of the sum of the Participant
Contributions and the Matching Contributions made by or on behalf
of each Eligible Employee for a Plan Year (if any) to the total
compensation of such Plan Year paid to such Employee.
16
(d)
Adjustments to
Comply with Limits . This subsection sets
forth the adjustments and correction methods which shall be used to
comply with the actual deferral percentage test under section
401(k)(3) of the Code, and the actual contribution percentage
test under section 401(m) of the Code.
(1)
Adjustments to
Comply with Actual Deferral Percentage Test . (A)
Adjustment to Deferred Contributions of Highly Compensated
Employees . The Company shall cause to be made such
periodic computations as it shall deem necessary or appropriate to
determine whether the actual deferral percentage test is satisfied
during a Plan Year, and, if it appears to the Company that such
test will not be satisfied, the Company shall take such steps as it
deems necessary or appropriate to adjust, limit or restrict the
Deferred Contributions made pursuant to Section 3.3 for all or
a portion of such Plan Year on behalf of some or all of the
Participants who are highly compensated employees to the extent
necessary in order for the actual deferral percentage test to be
satisfied for the Plan Year. If, as of the end of the Plan
Year, the Committee determines that, notwithstanding any
adjustments made pursuant to the preceding sentence, neither of the
tests set forth in paragraph (1) or (2) of subsection
(a) of this Section was satisfied, the Committee shall
calculate a total amount by which Deferred Contributions must be
reduced in order to satisfy either such test, in the manner
prescribed by section 401(k)(8)(B) of the Code (the
“excess contributions amount”). The amount to be
returned to each Participant who is a highly compensated employee
shall be determined by first reducing the Deferred Contributions of
each Participant whose actual dollar amount of Deferred
Contributions for such Plan Year is highest until such reduced
dollar amount equals the next highest actual dollar amount of
Deferred Contributions made for such Plan Year on behalf of any
highly compensated employee, or until the total reduction equals
the excess contributions amount. If further reductions are
necessary, then such Deferred Contributions on behalf of each
Participant who is a highly compensated employee and whose actual
dollar amount of Deferred Contributions made for such Plan Year is
the highest (determined after the reduction described in the
preceding sentence) shall be reduced in accordance with the
preceding sentence. Such reductions shall continue to be made
to the extent necessary so that the total reduction equals the
excess contributions amount.
(B)
Corrective
Distributions . No
later than 2 1
/ 2 months after the end of the Plan Year (or
if correction by such date is administratively impracticable, no
later than the last day of the subsequent Plan Year), the Company
shall cause to be distributed to each affected Participant the
amount of Deferred Contributions to be returned to such Participant
pursuant to subparagraph (1)(A) above, plus any income and
minus any loss allocable thereto through the end of such Plan Year,
and any corresponding matching contributions related thereto, plus
any income and minus
17
any loss allocable thereto, shall be
forfeited. The amount of any income or loss allocable to any
such reductions to be so distributed or forfeited shall be
determined pursuant to applicable Regulations. The amount of
Deferred Contributions to be distributed to a Member hereunder
shall be reduced by any excess Deferred Contributions previously
distributed to such Member pursuant to Section 3.5 in order to
comply with the limitations of section 402(g) of the
Code. The unadjusted amount of any such reductions so
distributed shall be treated as “annual additions” for
purposes of Section 5.1 relating to the limitations under
section 415 of the Code.
(C)
Recharacterization
. In lieu of distributing
excess Deferred Contributions, plus any income and minus any losses
allocable thereto, pursuant to subparagraphs (1)(A) and
(B) above, the Committee may, in its sole discretion, treat
such excess amounts with respect to all Participants as amounts
distributed to such Participants and then contributed by such
Participants to the Plan as Participant Contributions. Any amounts
may not be so recharacterized as Participant Contributions on
behalf of any Participant to the extent that such amount in
combination with other Participant Contributions made by the
Participant would exceed any stated limit under the Plan on
Participant Contributions. Any such recharacterization
must occur no later than 2 1 /
2 months after the last day of the Plan Year
in which such excess Deferred Contributions arose and is deemed to
occur on the date that the Participant is informed in writing of
the amount recharacterized and the consequences thereof.
Recharacterized amounts will be taxable to the Participant for the
Participant’s tax year in which the Participant would have
received them in cash if not for the Participant’s election
under Section 3.3.
(2)
Adjustments to Comply with the
Actual Contribution Percentage Test . (A) Adjustment to Participant
Contributions and Matching Contributions of Highly Compensated
Employees . If, as of the end of the Plan Year, after
taking into account the forfeiture of Matching Contributions made
on behalf of highly compensated employees pursuant to subparagraph
(1)(B) above, the Committee determines that the actual
contribution percentage test was not satisfied, the Committee shall
calculate a total amount by which Participant Contributions made
pursuant to Section 3.1 and Matching Contributions made
pursuant to Section 4.1 must be reduced in order to satisfy
such test, in the manner prescribed by section 401(m)(6)(B) of
the Code (the “excess aggregate contributions
amount”). The amount to be reduced with respect to each
Participant who is a highly compensated employee shall be
determined by first reducing the Participant
Contributions
18
and Matching Contributions for each
Participant whose actual dollar amount of Participant Contributions
and Matching Contributions for such Plan Year is highest until the
such reduced dollar amount equals the next highest actual dollar
amount of Participant Contributions and Matching Contributions made
for such Plan Year on behalf of any highly compensated employee, or
until the total reduction equals the excess aggregate contributions
amount. If further reductions are necessary, then such
Participant Contributions and Matching Contributions on behalf of
each Participant who is a highly compensated employee and whose
actual dollar amount of Participant Contributions and Matching
Contributions made for such Plan Year is the highest (determined
after the reduction described in the preceding sentence) shall be
reduced in accordance with the preceding sentence. Such
reductions shall continue to be made to the extent necessary so
that the total reduction equals the excess aggregate contributions
amount. Any reduction prescribed by this subparagraph shall
be applied to a Participant’s Participant Contributions
first, and shall be applied to his or her Matching Contributions
only after reduction of his or her Participant Contributions for
such Plan Year to zero.
(B)
Corrective
Distributions .
With respect to the Participant Contributions and, if applicable,
Matching Contributions to be reduced on behalf of Participants who
are highly compensated employees as described in subparagraph
(2)(A) above, the Company shall, no later than 2
1 / 2
months after the end of the
Plan Year, distribute the portion of such Participant
Contributions, and if applicable, Matching Contributions, plus any
income and minus any loss allocable thereto through the end of such
Plan Year in which the Participant would be vested if he had
terminated employment on the last day of the Plan Year for which
such contributions were made (or earlier if any such Participant
actually terminated service at any earlier date), and the portion
of such Matching Contributions in which the Participant would not
be vested plus any income and minus any losses applicable thereto
shall be forfeited. The amount of any income or loss allocable to
any such reductions to be so distributed or forfeited shall be
determined pursuant to applicable Regulations. The unadjusted
amount of any such reductions so distributed shall be treated as
“annual additions” for purposes of Section 5.1
relating to the limitations under section 415 of the
Code.
(e)
Designation of
Qualified Nonelective Contributions . Each Plan Year, the
Company may, to the extent permitted by the Secretary of the
Treasury, designate an amount of any Employer contributions
allocated to Participant accounts on behalf of any group of
Participants who are not highly compensated employees to be treated
as “qualified nonelective contributions” within the
meaning of section 401(m)(4)(C) of the Code for
19
purposes of
applying the actual deferral percentage test and the actual
contribution percentage test. Any such Employer contributions
designated as qualified nonelective contributions and earnings
related thereto shall be accounted for separately by the Trustee
and shall be distributable pursuant to the provisions of the Plan
concerning distributions of Deferred Contributions (but no earlier
than the Participant’s separation from service or
death).
5.3
Limitation on
Contributions .
(a)
Deductibility
.
Notwithstanding anything contained in the Plan to the contrary,
contributions made to the Plan under Section 3.3 and
Article 4 for any Plan Year shall not exceed the maximum
amount for which a deduction is allowable to such Employer for
federal income tax purposes on account of such contributions for
the fiscal year of the Employer which ends with or within a Plan
Year. Any contribution which is determined by the Internal
Revenue Service to be nondeductible by an Employer shall be
returned to such Employer within one year following the date on
which such deduction is disallowed.
(b)
Mistake of
Fact . Any contribution made
by an Employer by reason of a good faith mistake of fact shall,
upon the request of such Employer, be returned by the Trustee to
such Employer. The Employer’s request and the return of
any such contribution must be made within one year after such
contribution was mistakenly made. The amount to be returned
to the Employer pursuant to this paragraph shall be the excess of
the amount contributed over the amount which would have been
contributed had there not been a mistake of fact. If the
return to the Employer of the amount attributable to the mistaken
contribution would cause the amount credited to any
Participant’s Account as of the date such amount is to be
returned (as if such date were a Valuation Date) to be reduced to
less than what would have been the amount credited to such Account
as of such date had the mistaken amount not been contributed, the
amount to be returned to the Employer shall be limited so as to
avoid such a reduction.
20
Article 6
Trust
A Trust shall be created by the
execution of a Trust Agreement between the Company (acting on
behalf of the Employers) and the Trustee. All contributions
under the Plan shall be made to the Trustee. The Trustee
shall hold all property received by it and invest the income and
allocate the losses from all property held by it on behalf of the
Participants collectively in accordance with the provisions of the
Plan and the Trust Agreement. The Trustee shall make
distributions from the Trust Fund at such time or times to such
person or persons (or such qualified plans or individual retirement
accounts) and in such amounts as the Committee shall direct in
accordance with the Plan.
21
Article 7
Investment Elections and Allocations to
Participants’ Accounts
7.1
Separate
Accounts and Investment Elections.
(a)
Accounts
. The
Committee shall establish and maintain, or cause the Trustee or
such other agent as the Committee may select to establish and
maintain, a separate Account for each Participant. Such
Accounts shall be solely for accounting purposes and no segregation
of assets of the Trust among the separate Accounts shall be
required. Each Account shall consist of (a) if a
Participant is making or has made Participant Contributions, a
Participant Contribution Account, (b) if Deferred
Contributions are being made or have been made for a Participant, a
Deferred Contribution Account, (c) if Matching Contributions
are being made or have been made for a Participant, a Matching
Contribution Account, (d) a Profit Sharing Account,
(e) if Service Award Contributions are being made or have been
made, a Service Award Contribution Account, and (f) if a
Participant has made a rollover contribution, a Rollover
Account.
(b)
Investment
Funds . (1) In
General . The Committee shall establish and maintain, or
shall cause to be established and maintained, three or more
investment funds, the type and number of such funds to be
determined by the Company, to which all amounts contributed under
the Plan shall be credited according to each Participant’s
investment elections pursuant to subsection (c) of this
Section. The Trustee shall establish and maintain, or cause
to be established or maintained, investment subaccounts with
respect to each such investment fund to which amounts contributed
under the Plan shall be credited according to each
Participant’s investment elections pursuant to subsection
(c) of this Section. All such subaccounts shall be for
accounting purposes only, and there shall be no segregation of
assets within the investment funds among the separate
subaccounts.
(2)
Company Stock
Fund. The Committee shall
establish or shall cause to be established a Company Stock
Fund. The assets of the Company Stock Fund shall be invested
primarily in shares of Company Stock and short-term liquid
investments in a commingled money-market fund maintained by the
Trustee, to the extent determined by the Trustee to be necessary to
satisfy such fund’s cash needs. Each
Participant’s proportional interest in the Company Stock Fund
shall be represented by units of participation, each such unit
representing a proportionate interest in all the assets of such
fund. In making purchases or sales of shares of Company Stock
for the Company Stock Fund, the Trustee shall purchase or sell
shares of Company Stock in the manner and in the proportion as
prescribed by the Company in accordance with rules adopted for
such purpose. Notwithstanding anything herein to the
contrary, any Participant’s investment election relating to
the Company Stock Fund shall be effective only to the extent such
election complies with the restrictions on transactions in Company
Stock contained in the Company’s Insider Trading Policy and
applicable law.
(c)
Investment
Elections . Each Participant
shall make an investment election which shall apply to the
investment of his Account balance and any earnings thereon and
shall
22
make an election
which shall apply to future contributions which will be made to
such Participant’s Account pursuant to Sections 3.1, 3.3, 4.1
and 4.2 and to the loan payments made pursuant to
Section 8.2(e). Such election shall specify that such
contributions be invested either (i) wholly in one fund
maintained pursuant to subsection (b) or (ii) divided
among such funds in multiples established by the Committee from
time to time. During any period in which no direction as to
the investment of a Participant’s Account is on file with the
Committee, contributions made by him or on his behalf to the Plan
shall be invested in such manner as the Committee shall
determine.
With respect to the allocation of
the Participant’s existing Account balances among the
available investment funds, a Participant may elect to change his
investment election effective as of any Valuation Date. The
Committee may prescribe uniform rules which shall govern the
time by which any such election shall be made in order to be
effective for a Valuation Date. A Participant may change his
investment elections only once during any one day.
With respect to the investment of
future contributions to the Participant’s Account among the
available investment funds, a Participant may elect to change his
investment election effective as of the date the change is
elected. The Committee may prescribe uniform rules which
shall govern the date and time by which any such election shall be
made in order to be effective for a calendar month. Such an
election may be made as of any Valuation Date, provided that in the
event a Participant makes more than one election with respect to a
calendar month, the last such election made by the Participant
shall control.
(d)
Applicability
. For
purposes of this Section, the term “Participant” shall
include any beneficiary of a deceased Participant and any alternate
payee under a qualified domestic relations order on whose behalf an
account has been established under this Plan.
7.2
Allocation of
Contributions and Withdrawals to Accounts .
(a)
Allocations of
Deferred
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