As filed with the Securities and Exchange Commission
on May 12, 2004, Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Triton PCS Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware 23-2974475
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1100 Cassatt Road 19312
Berwyn, Pennsylvania (Zip Code)
(Address of Principal Executive Offices)
TRITON MANAGEMENT COMPANY, INC.
SAVINGS AND INVESTMENT PLAN
(Full title of plan)
DOW, LOHNES & ALBERTSON, PLLC
Counsel
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036
(Name and Address of agent for service)
Telephone number of agent for service:
(202) 776-2000
CALCULATION OF REGISTRATION FEE
------------------------ --------------------- ------------------------ --------------------- -----------------------
Title of Securities Amount Being Proposed Maximum Proposed Maximum Amount Of
Being Registered Registered Offering Price(*) Aggregate Offering Registration Fee
Price(*)
------------------------ --------------------- ------------------------ --------------------- -----------------------
------------------------ --------------------- ------------------------ --------------------- -----------------------
Class A Common Stock, 2,411,211 $4.06 $9,789,516.66 $1,240.33
$0.01 par value per
share
------------------------ --------------------- ------------------------ --------------------- -----------------------
(*) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended
(the "Securities Act"). This estimate is based on the average of the high
and low per share as reported on the New York Stock Exchange on May 11,
2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in the instructions to
Part I of Form S-8 will be sent or given to employees participating in the Plan
as specified by Rule 428(b)(1) of the Securities Act. Those documents and the
documents incorporated by reference into this Registration Statement pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Triton PCS Holdings, Inc. (the "Company") incorporates the following
documents filed with the Securities and Exchange Commission (the "Commission")
herein by reference, other than information furnished under cover of a Current
Report on Form 8-K:
1. The Company's Annual Report of Form 10-K for the fiscal year ended
December 31, 2003;
2. The Company's Quarterly Report of Form 10-Q for the fiscal quarter
ended March 31, 2004;
3. The Company's Current Report of Form 8-K dated and filed with the
Commission May 10, 2004;
4. The Company's Current Report of Form 8-K dated and filed with the
Commission February 26, 2004; and
5. The Company's Form 8-A Registration Statement filed with the Commission
July 13, 2001.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, other than information
furnished under cover of a Current Report on Form 8-K, are deemed to be
incorporated by reference in this Registration Statement and are a part hereof
from the date of filing such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law authorizes corporations to limit
or eliminate the personal liability of directors of corporations and their
stockholders for monetary damages for breach of directors' fiduciary duty of
care. The duty of care requires that, when acting on behalf of the corporation,
directors must exercise an informed business judgment based on all material
information reasonably available to them. In the absence of the limitations
authorized by the Delaware statute, directors could be accountable to
corporations and their stockholders for monetary damages for conduct that does
not satisfy their duty of care. Although the statute does not change directors'
duty of care, it enables corporations to limit available relief to equitable
remedies such as injunction or rescission. The second restated certificate of
incorporation limits the liability of the Company's directors to the Company or
its stockholders to the fullest extent permitted by the Delaware statute.
Specifically, the directors of the Company will not be personably liable for
monetary damages for breach of a director's fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law (which relates to the
unlawful payment of dividend or unlawful stock purchase or redemption by a
corporation) or (iv) for any transaction from which a director derived an
improper personal benefit. The inclusion of this provision in the second
restated certificate of incorporation may have the effect of reducing the
likelihood of derivative litigation against directors and may discourage or
deter stockholders or management from bringing a lawsuit against directors for
breach of their duty of care, even though such an action, if successful might
otherwise have benefited the Company and its stockholders. Under the applicable
provisions of the Delaware General Corporation Law, in general, a corporation
may indemnify its directors, officers, employees or agents against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by them in connection with any action, suit or
proceeding brought by third parties to which they may be made parties by reason
of their being or having been directors, officers, employees or agents and shall
so indemnify such persons only if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. The second restated
certificate of incorporation gives the Company the power to indemnify its
officers, directors, employees and agents to the full extent permitted by
Delaware law.
The Company has entered into indemnification agreements with each of
its directors which generally provide for indemnification of the director to the
fullest extent provided by law. In addition, the Company has purchased
directors' and officers' liability insurance coverage for its directors and
certain of its officers in amounts customary for similarly situated companies.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits.
Exhibit Number Description of Exhibit Page
-------------- ---------------------- ----
4.1 Triton Management Company, Inc. Savings and Investment Plan 6
5.1 Opinion of Dow, Lohnes & Albertson, PLLC 33
23.1 Consent of Independent Accountants 35
23.2 Consent of Dow, Lohnes & Albertson, PLLC (contained in their opinion in 33
Exhibit 5.1)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
Annual Report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of the
expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Berwyn, Commonwealth of Pennsylvania on this 5th day
of May, 2004.
TRITON PCS HOLDINGS, INC.
By: /s/ Michael E. Kalogris
------------------------------------
Michael E. Kalogris
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act, this Registration
Statement is to be signed by the following persons in the capacities and on the
dates indicated.
Signature Capacity Date
========= ======== ====
/s/ Michael E. Kalogris Chief Executive Officer May 5, 2004
----------------------- (Principal Executive Officer)
Michael E. Kalogris and Chairman of the Board of Directors
/s/ David D. Clark Executive Vice President, Chief May 5, 2004
----------------------- Financial Officer (Principal Financial
David D. Clark Officer) and Secretary
/s/ William A. Robinson Senior Vice President and Controller May 5, 2004
----------------------- (Principal Accounting Officer)
William A. Robinson
/s/ Scott I. Anderson Director May 5, 2004
-----------------------
Scott I. Anderson
/s/ Arnold L. Chavkin Director May 5, 2004
-----------------------
Arnold L. Chavkin
/s/ Rohit M. Desai Director May 5, 2004
-----------------------
Rohit M. Desai
/s/ Mathia DeVito Director May 5, 2004
-----------------------
Mathias DeVito
/s/ Eric Haskell Director May 5, 2004
-----------------------
Eric Haskell
/s/ David N. Watson Director May 5, 2004
-----------------------
David N. Watson
Exhibit 4.1
TRITON MANAGEMENT COMPANY, INC.
SAVINGS AND INVESTMENT PLAN
ARTICLE I
PURPOSE OF PLAN
The purpose of the Plan shall be to provide tax-deferred savings and
employer contributions to eligible employees of Triton Management Company, Inc.
and its affiliates and their beneficiaries. In order to provide such benefits,
Triton Management Company, Inc. has established a trust in accordance with the
requirements of the law to which eligible employees may elect to contribute
through salary reduction arrangements a percentage of their compensation, and to
which Triton Management Company, Inc., in its sole discretion, will make
contributions in proportion to each employee's contributions. Such
contributions, and any income derived therefrom, shall be held for the exclusive
benefit of the participating employees and their beneficiaries and shall not be
used for, or diverted to, any other purpose.
This Plan constitutes a complete amendment and restatement of the
Triton Management Company, Inc. 401(k) Plan originally effective as of August 1,
1998. The Plan was last amended and restated in its entirety effective January
1, 2001 and has been amended thereafter. The effective dates of those amendments
are reflected therein. Except as otherwise provided herein, the terms of this
amended and restated Plan are effective as of January 1, 2004. This amendment
and restatement has been prepared to reflect the applicable requirements of
Section 401 of the Internal Revenue Code of 1986, as amended, for a profit
sharing plan with a cash or deferred feature.
ARTICLE II
DEFINITIONS
As used in the Plan:
2.1 Administrative Committee shall mean the administrative
committee appointed by Triton Management Company, Inc. in accordance with the
provisions of Section 17.2 of the Plan.
2.2 Affiliate means for any Plan Year a corporation which for any part
of such year is a member of a controlled group of corporations (as defined in
Section 1563(a) of the Code, disregarding Sections 1563(a)(4) and 1563(e)(3)(C))
of which the Plan Sponsor is a member, any trade or business, whether
incorporated or not, which for any part of such year is considered to be under
common control with the Plan Sponsor under regulations prescribed by the
Secretary of the Treasury pursuant to Section 414(c) of the Code, and any
organization which for any part of such year is considered under regulations
prescribed by the Secretary of the Treasury pursuant to Section 414(m) of the
Code to be a member of an affiliated service group of which the Plan Sponsor is
a member.
2.3 Beneficiary shall mean any person or persons entitled to receive a
benefit under the Plan which is payable upon or after a Participant's death
pursuant to ARTICLE XI of the Plan.
2.4 Board shall mean the Board of Directors of the Plan Sponsor.
2.5 Break in Service shall mean a one-year Period of Severance
beginning on an Employee's Severance Date. An Employee incurs a Break in Service
on the last day of a one-year Period of Severance.
2.6 Code shall mean the Internal Revenue Code of 1986, as amended.
2.7 Compensation shall mean the aggregate of all payments for services
paid by the Employer to a Participant during a Plan Year subsequent to his or
her meeting the eligibility requirement of Section 3.1, including base pay,
overtime, paid (but not accrued) bonuses, commissions; provided, there shall be
excluded from such amount (1) any severance payments; (2) stock based
compensation; (3) any sick pay paid to an Employee by a third party; (4) any
reimbursements which are made under a medical reimbursement plan sponsored by
the Employer; (5) any reimbursed moving expenses, car allowances and car
add-ins; (6) any reimbursed country club dues and expenses; (7) any cash or
prize equivalent payments; (8) any extraordinary bonuses; (9) any excess life
insurance premiums under Section 79 of the Code, or any successor section; (10)
any amounts paid upon the cancellation of an employment contract; and (11) any
Employer Contributions, Employee Contributions or elective amounts that are not
includible in the gross income of an Employee under Sections 125 and 132(f)(4)
of the Code. Notwithstanding the preceding, for purposes of Retirement
Contributions under Section 5.1(b), Compensation shall be determined in
accordance with the preceding but shall also include any Employee Contributions
or elective amounts that are not includible in the gross income of an Employee
under Sections 125 and 132(f)(4) of the Code and exclude any bonuses paid (or
accrued) to an Employee. For purposes of any contributions to the Plan, only
Compensation earned while a Participant is eligible for such contribution shall
be counted towards determining the amount of such contribution.
In no event shall a Participant's Compensation be taken into account to
the extent such Compensation exceeds $205,000, as adjusted for cost-of-living
increases in accordance with Section 401(a)(17)(B) of the Code.
2.8 Covered Employee shall mean any Employee of the Employer except any
Employee (a) who is included in a collective bargaining unit unless
participation in the Plan by any such Employee was agreed to in the process of
good faith negotiations between the Company and the collective bargaining unit's
representative; (b) who is employed by an Affiliate that is not considered an
Employer as defined in Section 2.19; (c) who is a leased employee as defined in
Section 414(n)(2) of the Code; or (d) an Employee who is a nonresident alien and
who receives no earned income (within the meaning of Section 911(d)(2) of the
Code) from the Plan Sponsor or an Affiliate which constitutes income from
services within the United States (within the meaning of Section 861(a)(3) of
the Code). Notwithstanding the foregoing, the term Covered Employee shall not
include any individual who is treated for payroll purposes as an independent
contractor even if such individual is later determined to be a common law
employee of the Employer.
2.9 Delayed Retirement Date shall mean the first day of the first month
following a Participant's Normal Retirement Date on which the Participant elects
to retire from employment with the Company.
2.10 Direct Rollover shall mean a payment by the Plan of all or any
portion of an Eligible Rollover Distribution to an Eligible Retirement Plan
designated by a Distributee.
2.11 Distributee shall mean any Participant, Former Participant,
surviving spouse of any Participant or of any Former Participant, and any
alternate payee under a qualified domestic relations order within the meaning of
Section 414(p) of the Code who receives an Eligible Rollover Distribution.
2.12 Early Retirement Date shall mean the date upon which a Participant
has attained age fifty-five (55), or any month thereafter before the
Participant's Normal Retirement Date, provided the Participant has elected such
date in advance on a form provided by the Administrative Committee as his other
Early Retirement Date.
2.13 Eligible Employee shall mean an Employee who meets the
requirements of Section 3.1 or 3.2 of the Plan.
2.14 Eligible Retirement Plan shall mean any of the following:
(a) an individual retirement account described in Section 408(a) of the
Code;
(b) an individual retirement annuity described in Section 408(b) of the
Code;
(c) an annuity plan described in Section 403(a) of the Code;
(d) a qualified plan described in Section 401(a) of the Code;
(e) An annuity contract described in Section 403(b) of the Code; or
(f) An eligible plan under Section 457 of the Code which is maintained
by a state, political subdivision of a state, or any agency or instrumentality
of a state or political subdivision of a state and which agrees to separately
account for amounts transferred into such plan from this Plan.
2.15 Eligible Rollover Distribution shall mean any distribution of all
or a portion of the balance to the credit of a Distributee, except that such
term shall not include:
(a) any distribution that is one of a series of substantially equal
periodic payments made (not less frequently than annually) for either:
(1) the life (or life expectancy) of the Distributee or the
joint lives (or joint life expectancies) of the Distributee and the
Distributee's designated Beneficiary, or
(2) a specified period of ten years or more;
(b) any distribution to the extent such distribution is required under
Section 401(a)(9) of the Code;
(c) any distribution or portion of a distribution that is not
includible in the gross income of the Distributee;
(d) returns of Employee Contributions that are returned as a result of
the limitations contained in Section 415 of the Code;
(e) corrective distributions of Employee Contributions and the income
allocable thereto in accordance with Section 4.2 of the Plan and corrective
distributions of Employer Matching Contributions and the income allocable
thereto in accordance with Sections 5.2 and 5.5 of the Plan;
(f) loans that are treated as deemed distributions pursuant to Section
72(p) of the Code and distributions that result from offset against an Employee
Contribution Account, Employer Matching Contribution Account or Retirement
Account in the event of loan default pursuant to Section 15.8 of the Plan;
(g) any amount distributed on account of hardship pursuant to Section
14.2 of the Plan; or
(h) any other type of distribution or similar item designated by the
Internal Revenue Service as exempt from the definition of Eligible Rollover
Distribution.
2.16 Employee shall mean any individual who is compensated by the
Employer or by an Affiliate for services actually rendered as a common law
employee.
2.17 Employee Contribution shall mean a voluntary contribution made by
a Participant to the Trust under the Plan pursuant to an election under Section
4.1.
2.18 Employee Contribution Account shall mean the separate account
maintained for a Participant which contains the Employee Contributions made by
such Participant under the Plan and such amounts transferred from any other
tax-qualified plan. Any Rollover Contributions accepted by the Trustee shall be
deposited into the Employee Contribution Account of an Employee and separately
accounted for as a sub-account of the Employee Contribution Account.
2.19 Employer shall mean for any Plan Year the Plan Sponsor and each
Affiliate that is listed (with the approval of the Administrative Committee) on
Schedule A that has not terminated its participation in the Plan during or prior
to such Plan Year; provided, that absent the express consent of the Board, the
participation of an Affiliate shall terminate automatically on the date the Plan
Sponsor's ownership or proprietary interest in or affiliation with such
Affiliate terminates. Employer shall include each successor corporation of an
Affiliate listed on Schedule A.
2.20 Employer Contribution shall mean a contribution made by the
Employer to the Trust under the Plan pursuant to Section 5.1.
2.21 Employer Matching Contribution shall mean a contribution made by
the Employer to the Trust under the Plan pursuant to Section 5.1(a).
2.22 Employer Matching Contribution Account shall mean the separate
account maintained for a Participant which contains the portions of the Employer
Matching Contributions made by the Employer under the Plan credited to such
Participant.
2.23 Employment Commencement Date shall mean the first date on which an
Employee is entitled to be credited with an Hour of Service.
2.24 Entry Service shall mean the total of an Employee's countable
Periods of Service with the Employer without regard to Hours of Service.
2.25 ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended, or any successor statute.
2.26 Fiscal Year of the Employer shall mean the calendar year.
2.27 Former Participant shall mean any person who has ceased to be
a Participant in the Plan for any reason other than death.
2.28 Highly Compensated Employee shall mean any Employee who performs
service for the Employer during the Plan Year and who: (i) was a five-percent
(5%) owner at any time during such Plan Year or during the preceding Plan Year,
or (ii) received compensation from the Employer during the preceding Plan Year
in excess of $90,000 (as adjusted by the Secretary of Treasury for cost of
living increases) and was a member of the top-paid group (i.e., the top twenty
percent (20%) of Employees ranked on the basis of compensation received during
such year.
For purposes of this Section 2.28, compensation shall mean compensation
as defined under Section 415(c)(3) of the Code paid to the Employee by the
Employer including any Employee Contributions made under the Plan and any salary
reduction contributions under any other plan of the Employer. The determination
of who is a Highly Compensated Employee will be made in accordance with section
414(q) of the Code and the regulations thereunder.
2.29 Hour of Service shall mean:
(a) Each hour for which an Employee is directly or indirectly
compensated or entitled to compensation by the Employer for the performance of
duties during the applicable service period.
(b) Each hour for which an Employee is directly or indirectly
compensated or entitled to compensation by the Employer (irrespective of whether
the employment relationship has terminated) for reasons other than performance
of duties (such as vacation, holidays, sickness, jury duty, disability, lay-off,
military duty or paid leave of absence) during the applicable service period.
(c) Each hour for which back pay is awarded or agreed to by the
Employer without regard to mitigation of damages. The same Hour of Service shall
not be credited under both this paragraph (c) and under either subparagraphs (a)
or (b) above. Crediting Hours of Service for back pay awarded or agreed to with
respect to periods described in subparagraph (b) above shall be subject to
limitations set forth in that subparagraph.
(d) To the extent required under the Family and Medical Leave Act of
1993, each hour that an Employee is absent from service for a family or medical
leave of absence.
Notwithstanding the above, (i) no more than 501 Hours of Service are
required to be credited to an Employee on account of any single continuous
period during which the Employee performs no duties (whether or not such period
occurs in a single computation period); (ii) 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 is not required to be credited to the
Employee if such payment is made or due under a plan maintained solely for the
purpose of complying with applicable worker's compensation, or unemployment
compensation or disability insurance laws; (iii) Hours of Service are not
required to be credited for a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the Employee; and (iv) Hours
of Service are not required to be credited during any period in which no duties
are performed if such hours would exceed the number of hours regularly scheduled
for the performance of duties during such period.
For purposes of this Section 2.29, a payment shall be deemed to be made
by or due from the Employer regardless of whether such payment is made by or due
from the Employer directly, or indirectly through, among others, a trust fund or
insurer to which the Employer contributes or pays premiums and regardless of
whether contributions made or due to the trust fund, insurer, or other entity
are for the benefit of particular Employees or are on behalf of a group of
Employees in the aggregate.
For purposes of this Section 2.29, Hours of Service shall be determined
based on records of hours of service maintained by the Employer provided that
such records accurately reflect the number of hours with which an Employee is
entitled to be credited.
Notwithstanding anything to the contrary contained herein, Hours of
Service shall be credited in accordance with Department of Labor regulations
Section 2530.200b-2 and such provisions are incorporated herein by reference.
2.30 Investment Fund(s) shall mean one or more of the investment media
offered through the Trustee as a funding vehicle for Employee Contributions. The
Administrative Committee shall have the exclusive authority to select the
Investment Fund(s) available for investment under the Plan.
2.31 Leave of Absence shall mean a leave of absence granted in writing
to an Employee in accordance with the personnel policy of the Employer by which
such Employee is employed. The employment of an Employee who is on a Leave of
Absence shall terminate (for purposes of this Plan) on the earlier of (a) the
date on which such Leave of Absence expires, if the Leave of Absence is for a
fixed period or expires upon the occurrence of a certain event, such as recovery
from a disability, unless the Employee immediately upon the expiration of the
Leave of Absence returns to the employment of the Employer, (b) subject to the
Employer's discretion, the first anniversary of the date on which such Leave of
Absence commenced, if such Leave of Absence was for an indefinite period, or (c)
the date on which the Employee dies, retires, or Terminates Employment as an
Employee.
2.32 Named Fiduciary shall mean each of the persons identified as such
in ARTICLE XVII, each of which shall have only such duties and responsibilities
in the management and administration of the Plan as are expressly assigned to
such Named Fiduciary pursuant to the Plan and the Trust Agreement.
2.33 Normal Retirement Date shall mean the first day of the month which
coincides with or next follows a Participant's sixty-fifth (65th) birthday.
2.34 Participant shall mean an Eligible Employee who becomes a
Participant in the Plan by electing to contribute in the manner provided in
ARTICLE IV.
2.35 Period of Service shall mean a period of time beginning on an
Employee's Employment Commencement Date or Rehire Date, whichever applies, and
ending on his or her Severance Date.
2.36 Period of Severance shall mean a period beginning on an Employee's
Severance Date and ending on the date he again performs an Hour of Service.
2.37 Plan shall mean the Triton Management Company, Inc. Savings and
Investment Plan as set forth in this document and as hereafter amended.
2.38 Plan Accounts shall mean a Participant's Employer Matching
Contribution Account, Retirement Account and Employee Contribution Account.
2.39 Plan Administrator shall mean Triton Management Company, Inc.
2.40 Plan Sponsor shall mean Triton Management Company, Inc. or any
successor which expressly assumes the responsibilities of the Plan Sponsor under
the Plan.
2.41 Plan Year shall mean the Plan's accounting year of twelve (12)
months commencing on January 1st and ending on the following December 31st.
2.42 Qualified Domestic Relations Order shall mean a judgment, decree
or order (including an approval of a property settlement agreement) that relates
to the provision of child support, alimony payments or marital property rights
to a spouse, former spouse, child or other dependent of a Participant or Former
Participant, that is made pursuant to a domestic relations law of a state, that
meets the requirements of Section 414(p) of the Code, and that creates or
recognizes the right of an alternate payee to receive all or a portion of the
benefit payable to a Participant or Former Participant.
2.43 Rehire Date shall mean the date an Employee first performs an Hour
of Service following a Period of Severance.
2.44 Retirement Contributions shall mean a contribution made by the
Employer to the Trust under the Plan pursuant to Section 5.1(b).
2.45 Retirement Account shall mean the separate account maintained for
a Participant which contains the portions of the Retirement Contributions made
by the Employer under the Plan credited to such Participant.
2.46 Severance Date shall mean the earlier of:
(a) the date on which an Employee quits, retires, dies or is
discharged, or
(b) the first anniversary of the date an Employee begins a one year
absence from service (with or without pay). This absence may be the result of
any combination of vacation, holiday, sickness, disability, leave of absence, or
layoff.
Solely to determine whether a one-year Period of Severance has occurred
for entry or vesting purposes for an Employee who is absent from service beyond
the first anniversary of a Leave of Absence by reason of pregnancy of the
Employee, birth of a child of the Employee, adoption of a child by the Employee
or for purposes of caring for such child for a period beginning immediately
following such birth or adoption, Severance Date is the second anniversary of
the first day of such Leave of Absence. The period between the first and second
anniversaries of the first day of such Leave of Absence is not a Period of
Service and is not a Period of Severance.
2.47 Termination of Employment, including the verb form "Terminates
Employment", shall mean the voluntary or involuntary termination of employment
with the Employer for any reason other than death or retirement.
2.48 Trust shall mean the legal entity created by the Trust Agreement
between the Plan Sponsor and the Trustee under which the Trustee shall receive
the Employer Contributions and Employee Contributions made under the Plan and
shall hold, invest and disburse the Trust Fund to, or for the benefit of,
Participants and their Beneficiaries under the Plan.
2.49 Trust Agreement shall mean the Triton Management Company, Inc.
Savings and Investment Plan Trust Agreement.
2.50 Trust Fund shall mean the total contributions made by the Employer
and by all Employees pursuant to this Plan, increased by profits, gains, income
and recoveries received, and decreased by losses, depreciation, benefits paid
and expenses incurred but not paid by the Employer in the administration of the
Trust Fund. The term "Trust Fund" shall include all assets acquired by
investment and reinvestment that are held in the Trust by the Trustee.
2.51 Trustee shall mean the parties, individual or corporate, named
as Trustee in the Trust Agreement or any successor thereto.
2.52 Year of Vesting Service shall mean a 12-consecutive month Period
of Service.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 General Rule.
(a) Any Covered Employee who was a Participant in the Plan prior to the
effective date of the Plan and who remains a Covered Employee as of the
effective date shall continue to participate in the Plan.
(b) Each Covered Employee shall be eligible to make a salary reduction
election pursuant to Section 4.1 and to receive additional contributions as
provided in Section 5.1 on the first day of the first calendar quarter following
such Covered Employee's completion of three months of Entry Service provided he
or she is a Covered Employee on such date. For purposes of the foregoing
eligibility requirement, a Covered Employee will be deemed to have completed the
three months of Entry Service if such Covered Employee remains an Employee on
the date which is three months following either his or her Employment
Commencement Date or Rehire Date. If such Employee is not a Covered Employee on
such Entry Date, he or she may commence participation on the first day of the
calendar quarter on which he or she is a Covered Employee after completing three
months of Entry Service. A Covered Employee who satisfies the eligibility
criteria of this Section 3.1(b) shall be considered a Participant for all
purposes under the Plan.
(c) Each Covered Employee other than an Employee classified for payroll
purposes as at or above the level of Senior Vice President shall be eligible to
receive Retirement Contributions on the first day of the first calendar quarter
following such Covered Employee's completion of twelve months of Entry Service
provided he or she is a Covered Employee on such date. If such Employee is not a
Covered Employee on such date, he or she will become eligible for Retirement
Contributions on the first day of the calendar quarter on which he or she is a
Covered Employee after completing twelve months of Entry Service. A Covered
Employee who satisfies the eligibility criteria of this Section 3.1(c) shall be
considered a Participant for all purposes under the Plan.
3.2 Re-employment and Leaves of Absence.
(a) A Participant who ceases to be a Covered Employee by reason of
termination of employment or otherwise shall immediately cease participation in
the Plan and shall be a Former Participant. A Former Participant who again
becomes an Employee shall commence participation in accordance with the
following rules:
(i) Except as otherwise provided in this Section, any Former
Participant who again becomes a Covered Employee shall commence
participation as of the date such Former Participant again becomes a
Covered Employee;
(ii) Any nonvested Former Participant or any Former
Participant who receives a distribution of the vested balance of his or
her Employee Account who again becomes a Covered Employee after
incurring five consecutive 1-Year Breaks in Service shall commence
participation in the Plan as a newly hired employee in accordance with
Section 3.1.
(b) Any Covered Employee who has satisfied the eligibility requirements
of Section 3.1 but who terminates employment before becoming a Participant in
the Plan and who again becomes a Covered Employee prior to incurring a 1-Year
Break in Service shall become a Participant as of the date such Employee again
becomes a Covered Employee. If such Employee again becomes a Covered Employee
after incurring a 1-Year Break in Service, such Employee shall commence
participation in the Plan in accordance with Section 3.1.
3.3 Notice of Eligibility.
(a) The Administrative Committee shall notify each Employee of his or
her status as an Eligible Employee and right to participate in the Plan. Such
determination shall be conclusive and binding upon all persons, as long as the
same is made in accordance with this Plan and ERISA.
(b) The Administrative Committee shall notify each Covered Employee of
his eligibility to participate in the Plan prior to the date such Covered
Employee first satisfies the eligibility requirements of Section 3.1.
3.4 Election to Participate.
(a) General Rule. Each Eligible Employee who is not a Rehired Employee
and who wishes to participate in the Plan shall be required, after receipt of
notification from the Administrative Committee of his or her status as an
Eligible Employee, to file an election to participate in a manner prescribed by
the Employer. The Eligible Employee shall commence participation in the Plan
within a reasonable period of time following the Employer's receipt of such
election.
(b) Rehired Employee. For purposes of this Section, "Rehired Employee"
shall mean any Employee who Terminates Employment and subsequently recommences
employment.
ARTICLE IV
EMPLOYEE CONTRIBUTIONS
4.1 Employee Contribution.
(a) Each Eligible Employee may become a Participant by electing to
contribute through payroll deductions to the Plan a percentage of his or her
Compensation not less than one percent (1%) nor more than twenty five percent
(25%) in whole percentage points. Notwithstanding the foregoing, the total
amount of such contributions under this Plan and any other cash or deferred
arrangement in which the employee participates may not exceed the dollar
limitation contained in Section 402(g) of the Code in effect for such taxable
year, except to the extent permitted under Section 4.1(b) of the Plan and
Section 414(v) of the Code, if applicable.
(b) All Eligible Employees who are projected to attain age 50 before
the close of the Plan Year shall be eligible to make catch-up contributions in
accordance with, and subject to the limitations of, Section 414(v) of the Code.
Such catch-up contributions shall not be taken into account for purposes of the
percentage limitations contained in Section 4.1(a) of the Plan, the
determination of Employer Matching Contributions and the provisions of the Plan
implementing the required limitations of Sections 402(g) and 415 of the Code.
The Plan shall not be treated as failing to satisfy the provisions of the Plan
implementing the requirements of Sections 401(k)(3), 410(b), 416 of the Code or
similar restrictions imposed by the Administrative Committee on Highly
Compensated Employees, as applicable, by reason of the making of such catch-up
contributions.
(c) Employee Contributions shall continue to be made for each
Participant at the rate elected until the Participant elects to change the rate
of contribution or to end contributions pursuant to Section 8.1. Notwithstanding
the foregoing, the Administrative Committee may, in its sole discretion,
distribute any Employee Contribution in excess of the dollar limitation
contained in Section 402(g) of the Code, plus investment gain or loss, to the
Participant no later than April 15 of the calendar year immediately following
the calendar year in which the excess occurred. The Administrative Committee is
deemed to have received notice of excess Employee Contributions from the
Participant to the extent Employee Contributions from this Plan and any other
plans maintained by the Employer exceed the limit under Section 402(g) of the
Code. Further, if the Participant provides satisfactory evidence to demonstrate
that all contributions by the Participant, in this Plan and any other qualified
plan(s), exceed the applicable limit, then the Administrative Committee may, in
its sole discretion, distribute sufficient contributions from the Plan to allow
the Participant to comply with the applicable annual limit.
4.2 Reduction of Employee Contributions. If at any time the
Administrative Committee determines that the Plan may not satisfy the actual
deferral percentage tests of Section 401(k)(3) of the Code and any guidance
issued by the Internal Revenue Service regarding Code Section 401(k)(3), as
defined in Section 4.3 hereafter, then the Administrative Committee may, in its
discretion, reduce the elected Employee Contributions of any Highly Compensated
Employee to the extent necessary to ensure, within a reasonable margin of
safety, that the above tests will be satisfied. The Administrative Committee may
accomplish this reduction by any method or combination of methods including,
without limitation, the reduction of the otherwise applicable Compensation
against which the elected rate of contributions is applied, the reduction of the
rate of contribution for any Highly Compensated Employee, or the setting of a
maximum amount of contribution for any Highly Compensated Employee. Such
reductions or limitations shall be effective only for purposes of this Section
4.2, except as may be directed otherwise by the Administrative Committee.
Notwithstanding any provisions of this Section 4.2 to the contrary, if
after the close of the Plan Year the Administrative Committee determines that
the Plan does not satisfy the actual deferral percentage test of Section
401(k)(3), as defined in Section 4.3 hereafter, then the Administrative
Committee shall reduce the Employee Contributions of Highly Compensated
Employees, to the extent necessary to satisfy the actual deferral percentage
test, in accordance with the terms of this paragraph. First, the Highly
Compensated Employee (or Highly Compensated Employees if more than one has the
same amount of Employee Contributions) with the highest Employee Contributions
shall have his or her Employee Contributions reduced until his or her Employee
Contributions equals the Employee Contributions of the Highly Compensated
Employee(s) with the next highest Employee Contributions; provided that a lesser
reduction shall be appropriate if such lesser reduction would equal the total
excess contributions computed under this Section. If the total excess
contributions are not distributed by this initial reduction, then the Highly
Compensated Employees with the highest Employee Contributions shall have their
Employee Contributions reduced until their Employee Contributions equal the
Employee Contributions of the Highly Compensated Employee(s) with the next
highest Employee Contributions; provided that a lesser reduction shall be
appropriate if such lesser reduction would equal the total excess contributions
computed under this Section. Such reductions shall continue in the same manner
until the total excess contributions have been distributed. If any monies are
distributed in accordance with this Section 4.2, any income allocable thereto
for such Plan Year and for the period between the close of the Plan Year and the
date of distribution shall be distributed to the appropriate Highly Compensated
Employees. Notwithstanding any other provision of the Plan, any excess
contributions, and income allocable thereto, shall be distributed in accordance
with this Section 4.2 no later than the last day of each Plan Year to Highly
Compensated Employees to whose Plan Accounts such excess contributions were
allocated for the preceding Plan Year.
4.3 Actual Deferral Percentage Test. For every Plan Year that a
Retirement Contribution is made, this Plan shall constitute a safe harbor plan
for purposes of nondiscrimination testing pursuant to Section 401(k)(12) of the
Code and the "actual deferral percentage test" shall be automatically satisfied.
In any Plan Year that the Employer does not make an Retirement Contribution with
respect to any group of Covered Employees, the "actual deferral percentage test"
must be satisfied with respect to such group. The "actual deferral percentage
test" shall be satisfied if: (a) the actual deferral percentage for the Highly
Compensated Employees is not more than the actual deferral percentage for all
other Eligible Employees multiplied by 1.25; or (b) the excess of the actual
deferral percentage for the Highly Compensated Employees over the actual
deferral percentage for all other Eligible Employees is not more than two
percent (2%), and the actual deferral percentage for the Highly Compensated
Employees is not more than the actual deferral percentage for all other Eligible
Employees multiplied by 2. For purposes of this Section 4.3, the "actual
deferral percentage" for Highly Compensated Employees or for all other Eligible
Employees for a Plan Year shall mean the average of the ratios, calculated
separately for each Employee in such group, of the amount of the Employee
Contributions, if any, under the Plan paid on behalf of such Employee for such
Plan Year to the Employee's compensation, as defined under Section 414(s) of the
Code, for such Plan Year. Unless otherwise elected by the Administrative
Committee in accordance with Code Section 401(k)(3)(A) and any guidance from the
Internal Revenue Service regarding such Code Section, the maximum permitted
actual deferral percentage for Highly Compensated Employees during a Plan Year
shall be determined by reference to the actual deferral percentage for
non-Highly Compensated Employees for the preceding year.
The amount of Employee Contributions, if any, to be distributed
pursuant to Section 4.2 shall be reduced by the amount of Employee Contributions
in excess of the limitations prescribed by Section 402(g) of the Code ("Excess
Deferrals") which were returned prior to the reductions required in Section 4.2;
provided that, in the event Employee Contributions are distributed to a
Participant pursuant to Section 4.2 prior to the time Excess Deferrals with
respect to a Plan Year are returned to the Participant, then the amount of such
Excess Deferrals, if any, shall be reduced by the amount of Employee
Contributions previously returned in accordance with the provisions of Section
4.2.
For purposes of this Section 4.3, the actual deferral percentage for
any Participant who is a Highly Compensated Employee and who is eligible to have
elective deferrals allocated to his or her accounts under two or more
arrangements described in section 401(k) of the Code, that are maintained by the
Employer (or of any trade or business, whether or not incorporated, which is
considered to be under common control with the Employer under regulations
prescribed by the Secretary of the Treasury pursuant to Section 414(c) of the
Code), shall be determined as if such elective deferrals were made under a
single arrangement. If a Highly Compensated Employee participates in two or more
cash or deferred arrangements that have different plan years, all cash or
deferred arrangements ending with or within the same calendar year shall be
treated as a single arrangement. Notwithstanding the foregoing, certain plans
shall be treated as separate if mandatorily disaggregated under regulations
under Section 401(k) of the Code.
In the event that the Plan satisfies the requirement of Sections
401(k), 401(a)(4) or 410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan, then this Section 4.3
shall be applied by determining the actual deferral percentages of eligible
Participants as if all such plans were a single plan.
ARTICLE V
EMPLOYER CONTRIBUTIONS
5.1 Employer Contributions.
(a) Employer Matching Contributions. With respect to each Plan Year,
the Employer may, in its sole discretion, contribute to the Trust Fund on behalf
of each Participant, an amount to be determined by the Employer based on a
Participant's Employee Contributions. Such Employer Matching Contribution shall
not exceed fifty percent (50%) of such Participant's Employee Contributions to
the extent such Employee Contributions are equal to or less than six percent
(6%) of such Participant's Compensation. Such Employer Matching Contributions
shall be paid to the Trustee with respect to each payroll period during a Plan
Year and shall be credited to the Participant's Employer Matching Contribution
Account regardless of whether or not the Participant Terminates Employment prior
to the end of such Plan Year and is not subsequently rehired.
(b) Retirement Contributions. The Employer may, in its sole discretion,
contribute on behalf of Covered Employees who have met the eligibility
requirement of Section 3.1(c) an amount equal to at least three percent (3%) of
a Covered Employee's Compensation. Such Retirement Contribution shall be
credited to the Participant's Retirement Account.
(c) Payments on account of contributions due from an Employer for any
Plan Year may be made in cash, in shares of Employer stock or in a combination
of cash and shares of Employer stock as determined solely by the Employer.
5.2 Reduction of Employer Matching Contributions. If after the close of
the Plan Year the Administrative Committee determines that the Plan may not
satisfy the actual contribution percentage test of Section 401(m)(2) of the Code
and any guidance issued by the Internal Revenue Service regarding Code Section
401(m)(2), as defined in Section 5.3 hereafter, then the Administrative
Committee shall reduce the Employer Matching Contributions of Highly Compensated
Employees, to the extent necessary to satisfy the contribution percentage test,
in accordance with the terms of this paragraph. First, the Highly Compensated
Employee (or Highly Compensated Employees if more than one has the same amount
of Employer Matching Contributions) with the highest Employer Matching
Contributions shall have his or her Employer Matching Contributions reduced
until his or her Employer Matching Contributions equals the Employer Matching
Contributions of the Highly Compensated Employee(s) with the next highest
Employer Matching Contributions; provided that a lesser reduction shall be
appropriate if such lesser reduction would equal the total excess aggregate
contributions computed under this Section. If the total excess aggregate
contributions are not distributed by this initial reduction, then the Highly
Compensated Employees with the highest Employer Matching Contributions shall
have their Employer Matching Contributions reduced until their Employer Matching
Contributions equal the Employer Matching Contributions of the Highly
Compensated Employee(s) with the next highest Employer Matching Contributions;
provided that a lesser reduction shall be appropriate if such lesser reduction
would equal the total excess aggregate contributions computed under this
Section. Such reductions shall continue in the same manner until the total
excess aggregate contributions have been distributed. To the extent possible,
any distributions shall be made from Employee Contributions first. If any monies
are distributed in accordance with this Section 5.2, any income allocable
thereto for such Plan Year and for the period between the close of the Plan Year
and the date of distribution shall be distributed to the appropriate Highly
Compensated Employees. Notwithstanding any other provision of the Plan, any
excess contributions, and income allocable thereto, shall be distributed in
accordance with this Section 5.2 no later than the last day of each Plan Year to
Highly Compensated Employees to whose Plan Accounts such excess contributions
were allocated for the preceding Plan Year.
5.3 Contribution Percentage Test. For every Plan Year that a Retirement
Contribution is made, this Plan shall constitute a safe harbor plan for purposes
of nondiscrimination testing pursuant to Section 401(k)(12) of the Code and the
"contribution percentage test" shall be automatically satisfied. In any Plan
Year that the Employer does not make a Retirement Contribution with respect to
any group of Covered Employees, the "contribution percentage test" must be
satisfied with respect to such group. The "contribution percentage test" shall
be satisfied if: (a) the contribution percentage for the Highly Compensated
Employees is not more than the contribution percentage for all other Eligible
Employees multiplied by 1.25; or (b) the excess of the contribution percentage
for the Highly Compensated Employees over the contribution percentage for all
other Eligible Employees is not more than two percent (2%), and the contribution
percentage for the Highly Compensated Employees is not more than the
contribution percentage for all other Eligible Employees multiplied by 2;
provided, that the test specified in (b) shall be used only to the extent
permitted by the Code if test (b) is used by the Plan under Section 4.2. For
purposes of this Section 5.3, the "contribution percentage" for Highly
Compensated Employees or for all other Eligible Employees for a Plan Year shall
mean the average of the ratios, calculated separately for each Employee in such
group, of the amount of the Employer Matching Contributions under the Plan paid
on behalf of such Employee for such Plan Year to the Employee's compensation, as
defined under Section 414(s) of the Code, for such Plan Year.
Unless otherwise elected by the Administrative Committee in accordance
with Code Section 401(m)(2)(A) and any guidance from the Internal Revenue
Service regarding such Code Section, the maximum permitted contribution
percentage for Highly Compensated Employees for a Plan Year shall be determined
by reference to the contribution percentage for non-Highly Compensated Employees
for the preceding Plan Year. For purposes of this Section 5.3, the contribution
percentage for any Participant who is a Highly Compensated Employee and who is
eligible to participate in more than one plan described in Section 401(a) of the
Code, or arrangements described in Section 401(k) of the Code, that are
maintained by the Employer (or of any trade or business, whether or not
incorporated, which is considered to be under common control with the Employer
under regulations prescribed by the Secretary of the Treasury pursuant to
Section 414(c) of the Code), shall be determined as if the total of such
contribution percentage amounts were made under a single plan. If a Highly
Compensated Employee participates in two or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single arrangement.
Notwithstanding the foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under regulations under Section 401(m) of the Code.
In the event that the Plan satisfies the requirement of Sections
401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan, then this Section 5.3
shall be applied by determining the contribution percentages of eligible
Participants as if all such plans were a single plan.
ARTICLE VI
ACCOUNTS AND CONTRIBUTIONS
6.1 Plan Accounts. The Trustee shall establish and maintain in the
name of each Participant separate Plan Accounts as appropriate.
6.2 Contributions to Trust. All contributions to the Trust shall be
paid directly to the Trustee. Each contribution shall be subject to instructions
from the Administrative Committee that: (i) identify each Participant on whose
behalf the contribution is being made and the amount thereof; (ii) state whether
the amount contributed on behalf of the Participant represents an Employee
Contribution under Section 4.1, an Employer Matching Contribution under Section
5.1(a), a Retirement Contribution under Section 5.1(b) or a Rollover
Contribution under Section 6.5; and (iii) direct the investment of the amount
contributed on behalf of the Participant in accordance with Section 8.1, unless
an election under Section 8.2 directing such investment has already been filed
with the Trustee.
6.3 Use of Contributions. Contributions made to the Trust Fund, with
the exception of those described in Section 5.1 shall be irrevocable and totally
nonforfeitable at all times, and shall not be used for, or diverted to, any
purpose other than the exclusive benefit of Participants or their Beneficiaries
under the Plan.
6.4 Return of Contributions.
(a) Qualification of Plan. The retention by the Trustee of
Contributions made to the Trust shall be specifically conditioned upon the
initial and continued qualification of the Plan under Section 401 of the
Internal Revenue Code. If the Plan does not so initially qualify, any Employer
Contributions made to the Trust shall be returned to the Employer and any
Employee Contributions made to the Trust shall be returned to the Participants
as soon as practicable but within one year after the date of denial of initial
qualification of the Plan.
(b) Deductibility of Contributions. The retention by the Trustee of
Contributions made to the Trust Fund shall be conditioned upon the deductibility
of such Contributions under Section 404 of the Code. To the extent such
deduction is disallowed, any Employer Contribution or Employee Contribution to
the Trust shall be returned to the Employer or the Participant, respectively, as
soon as practicable but within one year after the disallowance of the deduction.
(c) Mistake of Fact. Any Employer Contribution or Employee Contribution
made because of a mistake of fact may be returned to the Employer or the
Participant, respectively, at the discretion of the Employer as soon as
practicable but within one year after the payment of such contribution.
6.5 Rollover Contributions and Accounts.
(a) Rollover Contributions. In accordance with procedures established
by the Administrative Committee, any Employee may request to make a Rollover
Contribution to the Trust. The Administrative Committee, in its sole discretion,
shall determine whether or not such Employee shall be permitted to contribute a
Rollover Contribution to the Trust. Any election made pursuant to this Section
6.5(a) shall set forth the amount of the proposed Rollover Contribution, and a
statement, satisfactory to the Administrative Committee, that the proposed
Rollover Contribution constitutes a Rollover Contribution as defined in Section
6.5(e) hereof. Prior to accepting any Rollover Contributions to which this
Section 6.5 applies, the Administrative Committee may require the Employee to
establish that the amounts to be transferred to this Plan meet the requirements
of this Section 6.5 and may also require the Employee to provide an opinion of
counsel satisfactory to the Employer that the amounts to be transferred meet the
requirements of this Section 6.5.
(b) Rollover Account. Upon receipt of a Rollover Contribution to the
Trust, such Rollover Contribution shall become part of the Trust Fund and shall
be held by the Trustee in a sub-account of the Employee Contribution Account. In
the event an Employee is not a Participant in the Plan, the Trustee shall
establish an Employee Contribution Account to receive such Employee's Rollover
Contribution.
(c) Vesting of Rollover Contribution. Any Rollover Contribution
credited to a sub-account of the Employee Contribution Account maintained on
behalf of the individual shall be one hundred percent (100%) vested at all
times.
(d) Treatment as Employee Contributions. For all purposes under the
Plan, Rollover Contributions shall be treated as Employee Contributions.
(e) Definition of Rollover Contribution. As used in this or any other
Section of the Plan, the term `Rollover Contribution' shall mean any amount
rolled over from a retirement plan which the Trustee deems to be a qualified
plan under Section 401(a) of the Code whether such amount is distributed
directly from such qualified plan or through a conduit Individual Retirement
Account ("IRA"). Any amount rolled over from an IRA must consist exclusively of
assets (and earnings attributable thereto) distributed into the IRA from a
qualified plan under Section 401(a) of the Code. The term "Rollover
Contribution" may also include an amount rolled over from a qualified plan
described in Sections 401(a) or 403(a) of the Code, including after-tax employee
contributions; an eligible plan under Section 457(b) of the Code which is
maintained by a state, political subdivision of a state, or any agency or
instrumentality of a state or political subdivision; or an individual retirement
account or annuity described in Section 408(a) or 408(b) of the Code that is
eligible to be rolled over and would otherwise be includible in gross income.
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS TO PLAN ACCOUNTS
7.1 General Limits.
(a) Limitations on Contributions. Notwithstanding any other provision
of the Plan to the contrary, the annual addition to a Participant's Plan
Accounts under this Plan and any other defined contribution plans maintained by
the Employer (or by any trade or business, whether or not incorporated, which is
considered to be under common control with the Employer under regulations
prescribed by the Secretary of the Treasury pursuant to Section 414(c) of the
Code),with respect to a Plan Year (which shall be the "limitation year") shall
not exceed, except to the extent permitted under Section 4.1(b) of the Plan and
Section 414(v) of the Code, if applicable, the lesser of (a) $41,000, as
adjusted for cost-of-living increases under Section 415(d) of the Code and the
regulations thereunder, or (b) one hundred percent (100%) of the Participant's
total compensation as defined in this Section 7.1(a). For purposes of this
ARTICLE VII "total compensation" shall mean all compensation paid to a
Participant as an Employee during the Plan Year for personal services rendered
in the course of employment within the meaning of Section 415(c)(3) provided it
shall not include any contribution for medical benefits after separation from
service (within the meaning of Sections 401(h) or 419A(f)(2) of the Code) which
is otherwise treated as an annual addition. For the purpose of this Section 7.1,
the term "annual addition" means the sum of the amounts credited to a
Participant's Plan Accounts for any Plan Year consisting of (i) Employer
Contributions; (ii) Employee Contributions (excluding Rollover Contributions);
(iii) amounts allocated to an individual medical benefit account provided by a
pension or annuity plan, as described in Section 415(l)(2) of the Code; and (iv)
amounts attributable to post-retirement medical benefits allocated to the
separate account of a key employee, as defined in Section 419A(d)(3) of the
Code, under a welfare benefit fund as described in Section 419(e) of the Code.
(b) Excess Contributions. If, as a result of a reasonable error in
estimating a Participant's Compensation, a reasonable error in determining the
amount of Employee Contributions or other facts and circumstances to which
Treasury Regulation 1.415-6(b)(6) applies, it is determined that the annual
additions to a Participant's Plan Accounts with respect to a Plan Year exceed
the limitations contained in Section 7.1(a), such annual additions shall be
reduced to the extent necessary to bring them within such limitation by the
return to the Employee of such excess amount consisting of Employee
Contributions and earnings attributable thereto.
ARTICLE VIII
PLAN INVESTMENTS
8.1 Investment and Allocation of Contributions and Allocation of
Earnings.
(a) Investment Elections. Each Participant may elect to have his or her
Plan Accounts invested by the Trustee in shares of one or more of the Investment
Funds at a price and in the manner in which such shares are being publicly
offered, or in other investments authorized under the Trust Agreement, as
directed by the Participant pursuant to procedures established by the
Administrative Committee.
(b) Allocation of Earnings. All dividends, capital gains distributions,
and other earnings received on any shares of an Investment Fund (or other
investment) credited to a Participant's or Former Participant's Plan Account
shall be reinvested in such Investment Fund (or other investment).
(c) Directed Investments. The Trustee shall invest all Plan Accounts in
shares of one or more of the Investment Funds (or in other investments
authorized under the Trust Agreement) as directed by the Participant or Former
Participant. Any such investment directions by a Participant or Former
Participant shall be made in accordance with rules and procedures prescribed by
the Administrative Committee, and shall be timely furnished to the Trustee by
the Administrative Committee in accordance with Section 6.2. To the extent any
Participant fails to provide the Administrative Committee with directions in
accordance with such rules and procedures, the Administrative Committee shall be
responsible for directing the investment of the Participant's Plan Accounts. If
the Trustee receives any contribution to the Trust that is not subject to
instructions directing its investment, the Trustee under the Trust Agreement may
hold or return all or a portion of the contribution uninvested without liability
for loss of income or appreciation pending receipt of proper investment
directions from the Administrative Committee.
8.2 Participant Direction of Investments.
(a) The Plan is intended to constitute a plan described in Section
404(c) of ERISA, and the regulations thereunder. As a result, with respect to
elections described in Section 6.1 of the Plan and any other exercise of control
by a Participant or his or her beneficiary over assets in the Participant's Plan
Accounts, such Participant or beneficiary shall be solely responsible for such
actions and neither the Trustee, the Administrative Committee, the Employer, nor
any other person or entity which is otherwise a fiduciary shall be liable for
any loss or liability which results from such Participant's or beneficiary's
exercise of control.
(b) The Administrative Committee shall provide to each Participant or
his or her beneficiary the information described in Section
2550.404c-1(b)(2)(i)(B)(1) of the DOL regulations. In addition, upon request by
a Participant or his or her Beneficiary, the Administrative Committee shall
provide the information described in Section 2550.404c-1(b)(2)(i)(B)(2) of the
DOL regulation. The Administrative Committee may take such other actions or
implement such other procedures as it deems necessary or desirable in order that
the Plan complies with Section 404(c) of ERISA.
ARTICLE IX
VESTING AND FORFEITURES
9.1 Vesting.
(a) A Participant is always fully vested in his or her Employee
Contribution Account and Retirement Account.
(b) A Participant's vested portion of his or her Employer Matching
Contribution Account shall be a percentage of the total amount credited to his
or her Employer Matching Contribution Account determined on the basis of the
Participant's number of Years of Service according to the following schedule:
Vesting Schedule
Years of Service Vested Percentage
---------------- -----------------
Less than 1 0
1 25
2 50
3 75
4 100
(c) To the extent not fully vested, a Participant shall become 100%
vested in all amounts credited to his or her Employer Matching Contribution
Account as of his or her Early Retirement Date, Normal Retirement Date or the
date such Participant dies, or terminates employment by reason of permanent
disability, as determined in Section 10.4
9.2 Break in Service Rules.
If any Former Participant is reemployed by the Employer after a 1-Year
Break in Service has occurred, Years of Vesting Service shall include Years of
Vesting Service prior to his 1-Year Break in Service subject to the following
rules:
(a) If a Former Participant has a 1-Year Break in Service, both his
pre-break and post-break service shall be considered in computing Years of
Vesting Service for vesting purposes only after he has been employed for one (1)
Year of Vesting Service following the date of his reemployment with the
Employer;
(b) A non-vested Former Participant's Years of Vesting Service prior to
a 1-Year Break in Service shall not be considered for vesting purposes if such
Former Participant's consecutive 1-Year Breaks in Service equal or exceed five
(5) years;
(c) Any Former Participant who receives a distribution of the vested
balance of his Employer Matching Contribution Account shall be credited with
Years of Vesting Service in accordance with the foregoing rules only upon
repayment of the distributed amount in accordance with Section 9.3(c).
9.3 Forfeitures.
(a) If a Participant's employment terminates and he receives a
distribution of the vested balance of his Employer Matching Contribution
Account, the nonvested portion of such Employer Matching Contribution Account
shall be forfeited as of the date his employment terminated and allocated in
accordance with subsection (b), below. If the Participant does not receive the
vested portion of his Employer Matching Contribution Account upon termination or
if the Participant incurs a 1-Year Break in Service without termination of
employment, the nonvested portion of his Employer Matching Contribution Account
shall continue to be revalued in accordance with the Participant's investment
direction pursuant to Section 8.2, and shall not be forfeited until he incurs
five consecutive 1-Year Breaks in Service after the date the Participant
terminated employment. After such period, the nonvested portion of his Employer
Matching Contribution Account shall be forfeited and reallocated in accordance
with subsection (b) below. Amounts forfeited in accordance with this Section
shall be credited a separate account pending allocation pursuant to subsection
(b) below.
(b) The total amount of forfeitures attributable to all Participants'
nonvested Employer Matching Contribution Accounts determined as of the last day
of each Plan Year in accordance with (a) above shall be, in the discretion of
the Administrative Committee, used to offset the expenses incurred in connection
with the administration of the Plan or to offset the Employer Matching
Contribution the Employer would otherwise contribute to each Participant's
Employer Matching Contribution Account pursuant to Section 5.1.
(c) If a Former Participant is re-employed by the Employer before he
incurs five (5) consecutive 1-Year Breaks in Service, and such Former
Participant had received a distribution of the vested balance of his Employer
Matching Contribution Account, the amount forfeited in accordance with this
Section shall be reinstated if he repays the full amount distributed to him
within 5 years from the date of his reemployment. The reinstated amount shall be
credited to the Participant's Employer Matching Contribution Account first, by
allocation from forfeitures occurring in the Plan Year in which the repayment is
made and second, from the Employer Matching Contribution for such Plan Year or
any special contribution made by the Employer as determined by the Employer in
its sole discretion.
ARTICLE X
BENEFITS
10.1 Benefit Determination. A Participant whose employment is
terminated for any reason other than death shall be entitled to receive a
benefit equal in value to the sum of the amount in the Participant's Employee
Contribution Account, Retirement Account and the vested amount in the
Participant's Employer Matching Contribution Account as of the date such
benefits are distributed.
10.2 Form of Benefit. Plan benefits to be paid to a Participant on
account of termination of employment shall be in the form of a lump sum cash
payment.
10.3 Time of Distributions.
(a) Distribution of benefits under this Plan shall be paid to a
Participant in accordance with the following:
(1) Normal and Delayed Retirement. Plan benefits to be paid to
a Participant on account of retirement at the Normal Retirement Date or Delayed
Retirement Date shall be made within sixty (60) days after the Participant
retires or, at the request of the Participant and with the consent of the
Administrative Committee, the first day of any month which begins on or after
the Participant's Retirement Date.
(2) Early Retirement. Plan benefits to be paid to a
Participant on account of retirement at or after the Participant's Early
Retirement Date but before Normal Retirement Date shall be made within sixty
(60) days after the Participant reaches Normal Retirement Age or, at the request
of the Participant and with the consent of the Administrative Committee, but no
later than the April 1 of the calendar year following the calendar year in which
the Participant attains age 70 1/2.
(3) Disability. Plan benefits to be paid to a Participant on
account of disability shall be made within sixty (60) days after the date the
Participant has been determined to be disabled under Section 10.4 or, at the
election of the Participant, upon a later date; provided, that such payment
shall be made not later than the last day of the Plan Year in which the
Participant attains age 65.
(4) Termination. A Participant who terminates employment shall
receive a distribution of his or her Plan benefits distributable at the election
of the Participant within a reasonable period of time after the date the
Participant Terminates Employment, provided, however, that such payment shall
not be made later than the last day of the Plan Year in which the Participant
attains age sixty-five (65).
(b) Notwithstanding any provisions of the Plan to the contrary, if the
total vested balance in a Participant's Plan Accounts at the time a benefit
first becomes payable under ARTICLE X or ARTICLE XI is $5,000 or less, then such
balance shall be paid to the Participant or to the Participant's Beneficiary in
a lump sum cash payment as soon as practicable after the date the benefit first
becomes payable to such Participant or Beneficiary. The total vested balance in
a Participant's Plan Accounts for purposes of this Section 10.3(b) shall be
determined without regard to that portion of the vested balance that is
attributable to Rollover Contributions (and earnings allocable thereto) within
the meaning of Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii) and
457(e)(16) of the Code.
10.4 Disability Determination.
A Participant shall be treated as disabled for the purposes of this
Plan if any one of the following conditions is met: (a) he or she is eligible
for benefits under the Employer's long-term disability program, (b) he or she is
eligible to receive disability benefits under any other long-term disability
program, or (c) the Social Security Administration has made a final
determination that the Participant is disabled under the Social Security Act. A
distribution made to a Participant under Section 10.3(a)(3) shall be made, in
the discretion of the Administrative Committee, upon receipt of adequate proof
of such disability.
10.5 Required Distribution.
Any Participant who continues in the employment of the Employer beyond
the attainment of age seventy and one-half (70 1/2) shall commence to receive
benefits no later than April 1 of the calendar year following the calendar year
in which such Participant attained age seventy and one-half (70 1/2).
Notwithstanding anything in the Plan to the contrary, a Participant who
is not a five percent (5%) owner, as defined in Code Section 416 and who
commenced benefit payments at age seventy and one-half (70 1/2) and who
continues in the employment of the Employer may elect to cease receiving such
benefit payments.
Notwithstanding anything in the Plan to the contrary, a Participant who
is not a five percent (5%) owner may elect to receive benefit payments on the
later of the April 1 next following the calendar year in which the Participant
(a) attains age seventy and one-half (70 1/2), or (b) retires. A Participant who
is a five percent (5%) owner must begin receiving benefit payments not later
than April 1 next following the calendar year in which he or she attains age
seventy and one-half (70 1/2).
All distributions required under this Section 10.5 shall be made in
accordance with the regulations of Section 401(a)(9) of the Code, including the
minimum distribution incidental benefit requirements of Section 1.401(a)(9)-2 of
the proposed regulations. The amount of the distribution determined under this
Section 10.5 shall be based on the amount in the Participant's Plan Accounts as
of the last day of the Plan Year ending immediately prior to the Plan Year for
which the distribution is made and shall not include any contributions accrued
but not yet paid as of such date.
10.6 Inability to Locate Benefit Recipient.
If, after a reasonable effort has been made by the Administrative
Committee to locate a Participant or Beneficiary who is entitled to receive a
benefit provided for in ARTICLE X and ARTICLE XI, and after sending written
notice to his or her last known mailing address, such Participant or Beneficiary
(hereafter in this Section "missing person") cannot be located and no claim is
filed for the payment of such benefits on or before the fifth anniversary of the
date such benefits first became payable, such missing person shall be presumed
dead. As of a Plan Year's last day which first follows, or coincides with, such
fifth anniversary, the Plan Accounts of such missing person shall be, in the
sole discretion of the Administrative Committee, held in a suspended account, or
used to offset the expenses incurred in connection with the administration of
the Plan or to offset the Employer Contribution the Employer would otherwise
contribute to each Participant's Employer Matching Contribution Account or
Retirement Account pursuant to Section 5.1.
10.7 Claims Procedure.
All claims shall be processed in accordance with the claims procedure
described in the Summary Plan Description for the Plan.
ARTICLE XI
DEATH BENEFITS
11.1 Benefit Determination.
Upon the death of a Participant prior to retirement or Termination of
Employment, or upon the death of a Former Participant to whom payment of
benefits has not commenced, the designated Beneficiary of the deceased
Participant shall be entitled to receive a benefit equal in value to the sum of
the amount in the Participant's Plan Accounts as of the date such benefits are
distributed. Such benefit shall be paid in a lump sum, in accordance with the
provisions of Section 11.3.
11.2 Proof of Death.
The Administrative Committee may require such proof of death and such
evidence of the right of any person to receive death benefit payments under the
Plan as it may deem appropriate, and its determination shall be conclusive and
binding.
11.3 Form of Benefit.
Plan benefits to be paid to Beneficiaries of Participants or Former
Participants under Section 11.1 as a death benefit shall be in the form of a
lump sum cash payment to be made within ninety (90) days after the date of the
Participant's or Former Participant's death.
11.4 Spouse's Death Benefit.
For purposes of Section 11.3, in the case of a Participant (including a
Former Participant) who is married on the date of death, the Participant's
Beneficiary shall be the Participant's surviving spouse unless the Participant
has elected to have such benefit distributed to a Beneficiary other than the
Participant's spouse. Such an election shall be made under a procedure and on a
form provided by the Administrative Committee and shall be effective only if the
Participant's spouse at date of death has consented in writing to the election,
such consent is witnessed by a notary public and acknowledges the effect of the
election. Such spousal consent is not required, however, if the Administrative
Committee is satisfied that the Participant's spouse cannot be located.
11.5 Distribution for Minor Beneficiary.
In the event a distribution is to be made to a minor, the
Administrative Committee may, in its sole discretion, direct that such
distribution be paid to the legal guardian or, if none, to a parent of such
Beneficiary or a responsible adult with whom the Beneficiary maintains his
residence, or to the custodian for such Beneficiary under the Uniform Gift to
Minors Act or Gift to Minors Act, if such is permitted by the laws of the state
in which said Beneficiary resides. Such a payment to the legal guardian, parent,
responsible adult or custodian of a minor Beneficiary shall fully discharge the
Trustee, Employer, Administrative Committee and the Plan from further liability
on account thereof.
11.6 Location of Beneficiary Unknown.
In the event that all, or any portion of, the benefit payable to a
Beneficiary under this ARTICLE XI shall, at the expiration of five (5) years
after it shall become payable, remain unpaid solely by reason of the inability
of the Administrative Committee to locate or ascertain the whereabouts of such
Beneficiary, the amount so payable shall be forfeited and shall be used to
offset the expenses incurred in connection with the administration of the Plan
or to offset the Employer Contribution the Employer would otherwise contribute
to each Participant's Employer Matching Contribution Account or Retirement
Account pursuant to Section 5.1. In the event a Beneficiary is located
subsequent to his benefit being forfeited, such benefit shall be restored.
ARTICLE XII
DISTRIBUTION TO ALTERNATE PAYEE
12.1 Benefit Determination.
Upon obtaining a Qualified Domestic Relations Order which complies with
the provisions of Section 2.41, an alternate payee shall be entitled to receive
a benefit from the Plan Accounts of a Participant or Former Participant equal to
the amount designated in the Qualified Domestic Relations Order.
12.2 Form of Benefit.
Plan benefits to be paid to an alternate payee shall be in any form in
which such benefits could be paid to the Participant or Former Participant. Once
the Qualified Domestic Relations Order has been approved by the Plan
Administrator, such distribution shall commence on the date specified in the
order.
ARTICLE XIII
DIRECT ROLLOVER OF BENEFITS
13.1 Right to Direct Rollover.
Except as otherwise provided, any Distributee may elect, in accordance
with the provisions of this Section 13.1, to have all or a designated portion of
an Eligible Rollover Distribution paid directly to a specified Eligible
Retirement Plan in a Direct Rollover.
13.2 Limitations on Direct Rollover.
A Distributee may elect to have a portion of an Eligible Rollover
Distribution transferred directly to an Eligible Retirement Plan in a Direct
Rollover and the remaining portion paid directly to him or her. A Distributee
may elect only one Direct Rollover for each Eligible Rollover Distribution.
13.3 Election of Direct Rollover.
A Distributee may elect a Direct Rollover of an Eligible Retirement
Distribution by filing the required forms with the Administrative Committee. The
Administrative Committee is entitled to reasonably rely on the information
provided on such forms by a Distributee in making a Direct Rollover. In the
event that a Distributee does not provide all of the information requested on
the forms, or fails to submit the forms to the Administrative Committee, the
Administrative Committee will directly pay the amount of the Eligible Rollover
Distribution to the Distributee.
13.4 Payment of Direct Rollover.
If a Distributee elects a Direct Rollover of his or her Eligible
Rollover Distribution in a manner which complies with Section 13.3 hereof, such
Eligible Rollover Distribution may be accomplished by any reasonable means of
direct payment to the designated Eligible Retirement Plan. Reasonable means of
direct payment shall include:
(a) providing the Distributee with a check for delivery to the
designated Eligible Retirement Plan, so long as:
(1) the check is endorsed to [name of trustee or custodian] as
trustee of [name of Eligible Retirement Plan], and
(2) the check explicitly states that it is for the benefit of
the Distributee whose Eligible Rollover Distribution is to be transferred in a
Direct Rollover; or
(b) mailing a check, negotiable only by the trustee or custodian of the
designated Eligible Retirement Plan, to the trustee or custodian of such plan.
ARTICLE XIV
IN-SERVICE WITHDRAWALS
14.1 Withdrawals After Age 59 1/2.
A Participant who has attained age fifty-nine and one half (59 1/2) may
withdraw some or all of the amount in his or her Employee Contribution Account
and Employer Matching Contribution Account. Application to make such a
withdrawal shall be made on a form provided by the Employer.
14.2 Hardship Withdrawals.
(a) In General. At the discretion of the Administrative Committee, a
Participant may withdraw some or all of the amount in his or her Employee
Contribution Account (other than earnings accrued on Employee Contributions
after December 31, 1988) if such a withdrawal is necessary due to the immediate
and heavy financial need of the Participant. A Participant also may withdraw
some or all of the vested portion of his or her Employer Matching Contribution
Account if such a withdrawal is necessary due to the immediate and heavy
financial need of the Participant. Application to receive a hardship
distribution shall be made on a form provided by the Employer and must specify
the reasons for the distribution request. As a condition precedent to the
approval of a hardship distribution request, the Participant must take a loan
from the Plan, if available, unless the Participant demonstrates to the
satisfaction of the Administrative Committee that such a loan would not relieve
or would increase the Participant's financial hardship.
(b) Hardship. The Participant may receive a hardship distribution upon
demonstrating to the Administrative Committee that such distribution is
necessary to satisfy a financial hardship arising due to:
(1) unreimbursed medical expenses incurred by the Participant
or the Participant's spouse or dependents;
(2) the purchase of Participant's principal residence (but not
including mortgage payments),
(3) the payment of tuition and related educational expenses
for the next 12 months of post-secondary education for the Participant, the
Participant's spouse, children or his or her dependents;
(4) as necessary to prevent the eviction from the
Participant's principal residence or the foreclosure on the mortgage on the
Participant's principal residence; or
(5) any other event specifically listed in regulations
promulgated under the Code or in other official guidance issued by the Internal
Revenue Service as a deemed immediate and heavy financial need.
(c) Distribution Limitation. A withdrawal under Section 14.2 cannot be
made less than twelve (12) months after the last previous withdrawal. A
Participant's hardship distribution must not exceed the amount necessary to
satisfy the hardship. Prior to making a distribution under Section 14.2, the
Participant must have obtained all distributions, other than hardship
distributions, and all nontaxable (at the time of the loan) loans from any other
plans of the Employer in which the Participant participates. No withdrawal may
be made of an amount which has been loaned to a Participant under ARTICLE XV.
Upon approval by the Administrative Committee of a withdrawal application under
either Section 14.1 or 14.2, and, unless the Participant elects otherwise, the
Administrative Committee shall instruct the Trustee as to the Investment Fund or
Funds from which to make payments to the Participant.
(d) Suspension and Limitation on Contribution. A Participant who
receives a withdrawal pursuant to Section 14.2 shall be prohibited from making
Employee Contributions to his or her Employee Contribution Account for a period
of 12 months immediately following the Participant's receipt of such withdrawal.
Additionally, during the next Plan Year following the year in which the
Participant receives a hardship distribution under Section 14.2, the
Participant's elective contributions shall be reduced by the amount of the
Participant's elective contributions made during the year in which the
Participant received such distribution.
ARTICLE XV
LOANS TO PARTICIPANTS
15.1 In General.
Upon the written application of a Participant, and subject to the terms
of this ARTICLE XV, the Plan may lend to such Participant an amount from the
Investment Fund(s) in the Participant's Employee Contribution Account and the
vested portion of his or her Employer Matching Contribution Account as requested
by the Participant. Loans shall be made available to all Participants who are
actively employed by the Employer and who retains an interest in an Employee
Contribution Account; provided, such class of Participants does not discriminate
in favor of Highly Compensated Employees. For purposes of this ARTICLE XV only,
the term `Participant' shall include any Participant, Former Participant or
Beneficiary eligible to request a loan from the Plan.
15.2 Loan Limits.
The amount of a loan shall not exceed the least of (i) the amount in
the Participant's Employee Contribution Account or the vested portion of the
Participant's Employer Matching Contribution Account, (ii) $50,000, or (iii)
one-half (1/2) the value of the Participant's vested Plan Account balances. In
determining the maximum loan amount, the limitations under the Plan shall be
tested first and the aggregate limits under applicable law, including all
qualified plans maintained by the Employer or an Affiliate in which the
Participant participates, shall be tested second. The Participant shall be
entitled to borrow from the Plan the lesser of the two amounts. Loans shall be
made available to all Participants who are actively employed by the Employer. No
loan shall be made for an amount of less than $1,000.
15.3 Loan Application.
Application by a Participant for a loan shall be in writing on a form
prescribed by the Administrative Committee and shall be submitted to the
Administrative Committee for review. Approval of the application shall be made
by the Administrative Committee. A Participant shall be obligated to execute a
promissory note and a payroll withholding form before receiving the loan
proceeds.
15.4 Collateralization.
If the Administrative Committee approves the loan, it shall direct the
Trustee to establish a special loan account by liquidating a portion of the
investment of the Participant's Employee Contribution Account or the vested
portion of the Participant's Employer Matching Contribution Account balance in
the amount of the loan. Each loan shall be secured by an amount in the
Participant's Plan Accounts equal to the amount of the loan, but not greater
than fifty percent (50%) of the borrower's entire right, title and interest in
his vested Plan Account balances.
15.5 Availability.
The Administrative Committee shall make loans available to all
Participants on a reasonably equivalent basis, considering the
credit-worthiness, but without regard to the age, sex, race, color, religion or
national origin of the Participant. A Participant may not have more than one (1)
loan from the Plan outstanding at any time.
15.6 Interest Rate.
Each loan agreement shall provide for the payment of a reasonable rate
of interest; such interest to be fixed by the Administrative Committee at an
annual percentage rate equal to the prime rate charged, on the date the loan is
made, by large United States money center commercial banks as published in The
Wall Street Journal. The Administrative Committee shall not unreasonably
discriminate among Participants in the matter of interest rates.
15.7 Repayment.
The repayment of any loan granted pursuant to this Article shall be in
accordance with the terms and conditions determined by the Administrative
Committee; provided, every loan shall be repaid in substantially level periodic
installments of principal and interest, payable not less frequently than monthly
over the term thereof. The term of a loan shall not exceed five (5) years,
unless such loan is for the purpose of acquiring the Participant's principal
residence, in which case the loan may be for any reasonable period of time
determined by the Administrative Committee. An employee on an approved Leave of
Absence without pay may request a suspension of repayment for a period of time
not to exceed one year. Any such suspension, however, shall not extend the
maximum five (5) year term of the loan, if applicable.
15.8 Default.
A loan granted pursuant to this ARTICLE XV that is not repaid shall be
deemed to be in default upon the earlier of (1) the date the Participant retires
or Terminates Employment, (2) the Participant's failure to make payment on the
loan as due, to the extent such failure causes the loan to fail to satisfy the
requirements of Section 15.7, or (3) in the case of death while employed, within
a reasonable time established by the Administrative Committee. At the time of
such default, the Administrative Committee shall foreclose on the loan and
deduct any outstanding balance plus accrued interest from the Participant's Plan
Account balances immediately prior to distribution. Notwithstanding the
foregoing, a loan shall not be foreclosed on if a loan repayment is paid within
the cure period established under the Plan's loan guidelines provided that such
cure period may only extend a loan payment up to the end of the calendar quarter
following the calendar quarter in which the expected payment amount was due.
15.9 Additional Rules.
All loans shall be subject to such further rules and regulations as the
Administrative Committee shall from time to time prescribe and administer in a
non-discriminatory manner.
ARTICLE XVI
INALIENABILITY OF BENEFITS
The right of any Participant or Beneficiary to any benefit provided
under the Plan or to the property contained in any separate Plan Account shall
not be subject to voluntary or involuntary transfer, alienation or assignment,
and (to the fullest extent permitted by law) shall not be subject to attachment,
execution, garnishment, sequestration or other legal or equitable process,
except in compliance with a Qualified Domestic Relations Order. In the event a
Participant or Beneficiary who is receiving or is entitled to receive a benefit
provided under the Plan attempts to assign, transfer or dispose of such right,
or if an attempt is made to subject said right to such process, such assignment,
transfer or disposition shall be null and void.
ARTICLE XVII
ADMINISTRATION AND FIDUCIARIES
17.1 Powers and Duties of the Plan Sponsor. The Plan Sponsor shall
have the following specific powers and duties:
(1) to appoint and remove the Trustees;
(2) to appoint and remove Investment Managers;
(3) to set basic Plan policy on Plan administration;
(4) to ratify Plan amendments recommended by the Administrative
Committee;
(5) to periodically evaluate and review the performance of Named
Fiduciaries;
(6) to authorize Plan eligibility for employees employed by a business
acquired after the Effective Date by Triton Management Company, Inc. or by an
Affiliate which has adopted the Plan;
(7) to extend past service credit for purposes of eligibility and
vesting to certain groups of employees employed by a business acquired after the
Effective Date by Triton Management Company, Inc. or by an Affiliate which has
adopted the Plan;
(8) to report annually to the Board on the operation and status of the
Plan; and
(9) to set general investment objective and plan liquidity guidelines
to the Trustee and Investment Managers.
17.2 Administrative Committee.
(a) Appointment of Members of Administrative Committee. The Board, or a
duly authorized committee thereof, shall appoint three or more persons to act as
the Administrative Committee. Members shall serve without additional
compensation at the pleasure of the Board and may be removed at any time by the
Board. Any member may resign at any time by delivering his or her written
resignation to the Board. The Board, or a duly authorized committee thereof,
shall fill any vacancies on the Administrative Committee. Triton Management
Company, Inc. shall notify all Named Fiduciaries in writing of the names of the
members of the Administrative Committee and of each change in the membership
thereof.
(b) Powers and Duties of Administrative Committee. The Administrative
Committee shall have the following specific powers and duties:
(1) to establish and enforce such rules, regulations and
procedures as it shall deem necessary and proper for the efficient
administration of the Plan;
(2) to construe and interpret the Plan, such interpretation in
good faith to be final and conclusive;
(3) to decide all administrative questions concerning the
operation of the Plan and the eligibility of any Employee to
participate in the Plan;
(4) to reduce or recharacterize the elected Employee
Contributions of Highly Compensated Employees;
(5) to ensure that all applicable reporting and disclosure
provisions of state and Federal laws are complied with in connection
with the administration of the plan;
(6) to determine the amount, manner and time of any
distribution of benefits or withdrawal under the Plan and to approve
and insure the repayment of any loan to a Participant under the Plan;
(7) to resolve any claim for benefits;
(8) to make policy recommendations to the Plan Sponsor;
(9) to recommend Plan amendments; and
(10) to report annually to the Plan Sponsor on the operation
of the Plan.
17.3 Named Fiduciaries.
(a) General. The following fiduciaries (referred to hereinafter
individually as a "Named Fiduciary" and collectively as "Named Fiduciaries")
shall be responsible for the control, management and administration of the Plan
and the control, management and disposition of the assets of the Trust Fund:
(1) the Plan Sponsor;
(2) the Board or authorized Committee thereof;
(3) the Administrative Committee; and
(4) the Trustee.
Each Named Fiduciary shall have only such powers and responsibilities
as are expressed in the Plan, and any power or responsibility for the control,
management or administration of the Plan or Trust Fund which is not expressly
allocated to any Named Fiduciary, or with respect to which an allocation is in
doubt, shall be deemed allocated to the Plan Sponsor. Each Named Fiduciary shall
have no responsibility to inquire into the acts and omissions of any other Named
Fiduciary in the exercise of powers or the discharge of responsibilities
assigned to such other Named Fiduciary under the Plan.
(b) Allocation of Responsibility. Any Named Fiduciaries may, by
agreement among themselves, allocate any responsibility or duty assigned to a
Named Fiduciary under this Plan, other than the responsibility of the Trustee
for the management and control of the Trust Fund, to one or more other Named
Fiduciaries, provided, however, that any agreement respecting such allocation
shall be in writing and shall be filed by the Administrative Committee with the
records of the Plan. No such agreement shall be effective as to any Named
Fiduciary which is not a party to such agreement until such Named Fiduciary has
so consented in writing filed with the Administrative Committee. Any Named
Fiduciary may, by written instrument filed by the Administrative Committee with
the records of the Plan, designate a person who is not a Named Fiduciary to
carry out any of its responsibilities under the Plan, other than the
responsibility of the Trustee for the management and control of the Trust Fund,
provided, however, that no such designation shall be effective as to any other
Named Fiduciary until such other Named Fiduciary has received written notice of
such designation.
(c) Employees of Fiduciaries. Any Named Fiduciary, or a person
designated by a Named Fiduciary to perform any responsibility of a Named
Fiduciary pursuant to the procedure described in the preceding paragraph, may
employ one or more persons to render advice with respect to any responsibility
such Named Fiduciary has under the Plan or such person has by virtue of such
designation.
(d) Multiple Roles. Any person may serve in more than one fiduciary
capacity with respect to the Plan, and any person who is a fiduciary may be a
Participant if he or she otherwise satisfies the applicable Plan requirements to
be a Participant.
17.4 Committee Procedure Guidelines. The Administrative Committee
shall act in accordance with the following guidelines:
(a) The Administrative Committee shall act in accordance with the terms
of the Plan and shall have all powers necessary to carry out its provisions.
(b) In furtherance of their duties and responsibilities, the
Administrative Committee may retain and consult with, and rely upon such legal,
actuarial, medical or other opinions as they deem necessary and proper.
(c) The Administrative Committee may appoint additional persons as
agents or advisors to perform such functions as the Administrative Committee may
deem necessary and helpful to the effective performance of their duties and the
duties of the individual members thereof. The compensation of such agents or
advisors who are not employees of the Company shall be fixed by the
Administrative Committee and shall be paid from the Trust Fund.
(d) The members of the Administrative Committee may specifically
allocate among themselves by mutual consent, specific responsibilities and
functions for the operation and administration of their duties under the Plan,
provided such allocation is set forth in the minutes of the Administrative
Committee.
(e) The Administrative Committee, as a general rule, shall act by
majority vote; provided the Administrative Committee also may authorize any one
member or each member thereof to act on its behalf in certain matters, including
the execution of documents, if such authorization is filed with records of the
Administrative Committee and specifies the transactions or classes of
transactions in which the member may act upon on behalf of the Administrative
Committee.
(f) Actions of the Administrative Committee may be taken otherwise and
at a meeting upon concurrence in writing of a majority of the members.
(g) No member of the Administrative Committee shall participate in any
determination by the Administrative Committee as to his or her individual rights
or benefits under the Plan.
(h) Any person or group of persons may serve in more than one fiduciary
capacity with respect to the Plan, including without limiting the generality of
the foregoing serves as a member of the Administrative Committee, and or as an
employee of the Company.
(i) Any determination made by the Administrative Committee in
accordance with its duties and responsibilities shall be conclusive and binding
on all Participants, Beneficiaries, Employees and all other persons interested
in the Plan or asserting claims of the Plan.
17.5 Indemnification.
Triton Management Company, Inc. shall indemnify each member of each of
the Administrative Committee for any liability, assessment, loss, expense or
other cost of any kind or description whatsoever, including legal fees and
expenses, actually incurred by a member on account of any action, allegation or
proceeding, actual or threatened, which arises as a result of being a member of
the Administrative Committee, provided such action, allegation or proceeding
does not arise as a result of the member's own gross negligence, willful
misconduct or lack of good faith.
ARTICLE XVIII
TOP-HEAVY PROVISIONS
18.1 In General.
If the Plan should for any Plan Year become top-heavy as defined in
Section 18.2, then, notwithstanding any other provisions of the Plan, the rules
in Section 18.3 shall apply to the Plan.
18.2 Top-Heavy Determination.
(a) Top-Heavy Defined. The Plan is top-heavy for a Plan Year if, as of
the Determination Date, the aggregate of the Plan Accounts under the Plan for
Key Employees exceeds sixty percent (60%) of the aggregate of the Plan Accounts
for all Employees, as computed under Section 416(g) of the Code. The Plan
Account of any individual who has not performed services for the Employer during
the one-year period ending on the Determination Date shall not be taken into
account. "Key Employee" shall be defined as in Sections 416(i) and 318 of the
Code. The "Determination Date" for purposes of this ARTICLE XVIII shall mean the
last day of the Plan Year preceding the Plan Year in question. The value of the
accumulated benefit for any Employee as of the Determination Date shall include
the aggregate distributions made with respect to such Employee under the Plan
and any plan aggregated with the Plan under Section 416(g)(2) of the Code during
the one-year period ending on the Determination Date. The preceding sentence
also shall apply to distributions under a terminated plan which, had it not been
terminated, would have been aggregated with the Plan under Section
416(g)(2)(A)(i) of the Code. Notwithstanding the foregoing, in the case of a
distribution made for a reason other than separation from service, death, or
disability, this provision shall be applied by substituting "five-year period"
for "one-year period."
(b) Required Aggregation Groups. If the Plan is required to be
aggregated with other plans under the provisions of the following sentences,
then the aggregated plans taken together shall constitute the Plan for purposes
of this Section 18.2. Notwithstanding the foregoing, if the Plan is required to
be aggregated with a group of plans in a required aggregation group then if the
required aggregation group is not top-heavy for a Plan Year, the Plan is not
top-heavy for that Plan Year, and if the required aggregation group is top-heavy
for a Plan Year, then the Plan is top-heavy for that Plan Year. For purposes of
the preceding sentence, a required aggregation group means each plan of the
Employer (or of a trade or business, whether or not incorporated, which is
considered to be under common control with the Employer under regulations
prescribed by the Secretary of the Treasury pursuant to Section 414(c) of the
Code) in which a Key Employee participates, and each other such plan which
enables any plan in which a Key Employee participates to meet the coverage and
anti-discrimination requirements of Sections 401(a)(4) and 410 of the Code.
(c) Permissive Aggregation Groups. Notwithstanding the above
provisions, the Plan will not be top-heavy in any Plan Year in which a
permissive aggregation group to which the Plan belongs is not top-heavy. A
permissive aggregation group consists of plans maintained by the Employer (or by
any trade or business as described above) that are required to be aggregated
plus one or more plans that are not part of a required aggregation group but
that satisfy the requirements of Sections 401(a)(4) and 410 of the Code when
considered together with the required aggregation group.
(d) Top-Heavy Determination for a Group. A required aggregation group
or a permissive aggregation group is top-heavy for a Plan Year if, as of the
Determination Date, the sum of the present value of the cumulative accrued
benefits for Key Employees under all defined benefit plans included in such
group and the aggregate of the accounts of Key Employees under all defined
contribution plans included in such group exceeds sixty percent (60%) of a
similar sum determined for all participants in such plans under Section 416(g)
of the Code. The accrued benefits and Plan Accounts of any individual who has
not performed services for the Employer during the one-year period ending on the
Determination Date shall not be taken into account.
18.3 Top-Heavy Contingent Provisions.
If the Plan is top-heavy for a Plan Year, as defined in Section 18.2,
then the following Plan provisions shall apply for that Plan Year:
(a) The combined Employer Contribution and the contributions under any
other defined contribution plan of the Employer (or of a trade or business as
described in Section 18.2(b)) for the Plan Year for each Participant who is not
a Key Employee, expressed as a percentage of compensation and after adding
thereto all Employee Contributions made by each such Participant, shall be not
less than the lesser of 3 percent or the largest percentage calculated in the
same manner for any Key Employee. "Compensation" for purposes of this ARTICLE
XVIII shall mean all compensation paid to a Participant as an Employee during
the Plan Year for personal services rendered in the course of employment within
the meaning of Treasury Regulation 1.415-2(d) or any successor regulation.
Compensation for purposes of this ARTICLE XVIII, shall mean all compensation
paid to a Participant as an Employee during the Plan Year for personal services
rendered in the course of employment within the meaning of Section 415(c)(3) of
the Code.
(b) In calculations made under the Plan, no more than two hundred
thousand dollars ($200,000.00) of a Participant's annual compensation may be
taken into account. Such figure may be adjusted annually under determinations
made by the Secretary of the Treasury.
(c) Employer Contributions shall be taken into account for purposes of
satisfying the minimum contribution requirements of Section 416(c)(2) of the
Code and the Plan. The preceding sentence shall apply with respect to Employer
Contributions under the Plan, or if the Plan provides that the minimum
contribution requirement shall be met in another plan, such other plan. Employer
Contributions that are used to satisfy the minimum contribution requirements
shall be treated as Employer Contributions for purposes of the actual
contribution percentage test and other requirements of Section 401(m) of the
Code.
ARTICLE XIX
FUNDING POLICY
The Administrative Committee shall establish a funding policy and
method consistent with the objectives of the Plan and the requirements of Title
I of ERISA. The Administrative Committee shall meet at least annually to review
such funding policy and method. In establishing and reviewing such funding
policy and method, the Plan Sponsor shall endeavor to determine the Plan's and
Plan Participants' short-term and long-term objectives and financial needs. All
actions of the Plan Sponsor taken pursuant to this ARTICLE XIX, and the reasons
therefor, shall be communicated to the Trustee.
ARTICLE XX
VALUATION OF COMMON TRUST FUND
20.1 Valuation of the Trust Fund.
The Trustee shall determine the net worth of the Trust Fund and
allocate earnings and losses of the Trust to Participants' Plan Accounts at
least annually but more frequently if the Administrative Committee elects. In
determining such net worth, the Trustee shall value the assets at their fair
market value as of such date. As soon as practicable after such valuation, the
Trustee shall deliver to the Administrative Committee and to the Board a written
determination of the net worth of the Trust Fund together with a statement of
the amount of net income or loss (including appreciation or depreciation in the
value of Trust investments) realized or incurred by the Trust Fund since the
last such valuation. The Trustee shall also deliver at least annually to each
Participant a statement of the value of the Participant's Plan Accounts.
20.2 Common Trust Fund.
The fact that, for administrative purposes, the Trustee maintains
separate accounts for each Participant shall not be deemed to segregate for such
Participant, or to give to such Participant any direct interest in, any specific
assets held in the Trust Fund by the Trustee, except to the extent that the
Participant's Plan Accounts reflect the financial results of the Investment
Fund(s) selected by the Participant. All such assets may be held and
administered by the Trustee as a commingled fund.
ARTICLE XXI
AMENDMENT OF THE PLAN
21.1 Power to Amend Plan.
The Employer shall have the right at any time, and from time to time,
to amend, in whole or in part, any or all of the provisions of this Plan by
formal action of the Board, or a committee thereof, in accordance with state law
either at a regularly scheduled meeting of the Board, or a committee thereof, or
by written consent. Any written amendment to the Plan under this Section 21.1
shall be executed by the Plan Sponsor on behalf of the Employer. However, no
such amendment shall authorize or permit any part of the Trust Fund (other than
such part as is required to pay taxes and administration expenses) to be used
for, or diverted to, any purpose other than the exclusive benefit of the
Participants or their Beneficiaries or cause any reduction in the amount
previously credited to any Participant or permit any portion of the Trust Fund
or the Plan Accounts to revert to, or become the property of, the Employer. No
amendment to this Plan which affects the rights, duties, or responsibilities of
the Trustee may be made without the Trustee's written consent.
21.2 Effective Date of Amendment.
Any amendment to the Plan shall become effective upon the date
specified as the effective date of the amendment.
ARTICLE XXII
MERGER, CONSOLIDATION OR
TRANSFER OF PLAN ASSETS
In the event of the merger or consolidation of the Plan with, or the
transfer of the assets and/or liabilities of the Plan to, another plan which is
qualified under Section 401(a) of the Internal Revenue Code, each Participant or
Beneficiary under this Plan shall be entitled to receive benefits immediately
after the merger, consolidation or transfer which are equal to or greater than
the benefits he or she would have been entitled to receive immediately prior to
the merger, consolidation or transfer if the Plan had been terminated at such
time.
ARTICLE XXIII
TERMINATION OF PLAN AND
DISCONTINUANCE OF CONTRIBUTIONS
23.1 Plan Termination.
The Employer shall have the right, at any time, to terminate or
partially terminate the Plan by formal action of the Board, or a committee
thereof, in accordance with state law either at a regularly scheduled meeting of
the Board, or a committee thereof, or by written consent. Upon full or partial
termination of the Plan without the establishment of a successor plan, as
described in Section 401(k)(10)(A)(i) of the Code, the Plan Sponsor shall direct
the Trustee to distribute all assets remaining in the Trust, after payment of
any expenses properly chargeable against the Trust, to the Participants in
accordance with the Plan Accounts of each participant at the time of
distribution, in cash, and in such manner as the Plan Sponsor shall determine.
In the event of full or partial termination, each affected Participant shall be
fully vested in such Participants' Employer Matching Contribution Account.
23.2 Discontinuance of Contributions.
Upon complete discontinuance of Employee Contributions, Retirement
Contributions and Employer Matching Contributions to the Plan, the Plan Sponsor
shall direct the Trustee to continue to maintain separate Plan Accounts for each
Participant, to accumulate earnings and profits thereon, and to distribute
benefits under ARTICLE X of the Plan. In the event of complete discontinuance of
Employer Matching, Retirement and Employee Contributions to the Plan, each
Participant shall be fully vested in such Participant's Employer Matching
Contribution Account.
ARTICLE XXIV
RIGHTS OF REEMPLOYED VETERANS
24.1 In General. To the extent required by the Uniformed Services
Employment and Reemployment Rights Act of 1994 ("USERRA") and Section 414(u) of
the Code and in accordance with this ARTICLE XXIV, a Reemployed Veteran shall be
entitled to the restoration of certain benefits under the Plan that would have
accrued, or that he or she would have received, under the Plan but for his or
her absence from the employ of the Employer due to Qualified Military Service.
"Reemployed Veteran" shall be defined as an Employee who left the employ of the
Employer in order to perform service in the Armed Services of the United States,
and subsequently was reemployed by the Employer pursuant to USERRA. "Qualified
Military Service" shall be defined as service in the uniformed services (as
defined in chapter 43 of title 38, United States Code) performed by the
Reemployed Veteran whose entitlement to reemployment rights pursuant to USERRA
arose with respect to such service.
24.2 Crediting of Period of Qualified Military Service. To the extent
required by USERRA and Section 414(u) of the Code, the Reemployed Veteran, for
all purposes under the Plan, shall be credited with Hours of Service, as
applicable, for the period of his or her absence from employment with the
Employer due to Qualified Military Service, in accordance with the regulations
or other rules provided by the Internal Revenue Service. In no event shall such
Reemployed Veteran's absence due to Qualified Military Service constitute a
Break in Service under Section 9.2.
24.3 "Make-up" Contributions.
(a) Employee "Make-up" Contributions. To the extent required by USERRA
and Section 414(u) of the Code, the Reemployed Veteran shall be permitted,
pursuant to ARTICLE IV, to make additional Employee Contributions during the
period which (1) begins on the Reemployed Veteran's date of reemployment with
the Employer, and (2) has the same length as the lesser of:
(1) the period of Qualified Military Service multiplied by 3,
or
(2) five (5) years.
The maximum amount of additional Employee Contributions that the Reemployed
Veteran is permitted to make is the maximum amount of such contributions that
the Reemployed Veteran would have been permitted to make pursuant to ARTICLE IV
had he or she continued to be employed by the Employer during the period of
Qualified Military Service and received compensation. In addition, a Reemployed
Veteran who makes Employee Contributions for the period of his or her Qualified
Military Service shall be entitled to receive Employer Contributions under
Section 5.1 as if such Employee Contributions were made during such period of
Qualified Military Service. Compensation for purposes of this Subsection (a) and
(b), below, shall be based on the rate of pay that the Reemployed Veteran would
have received during the period of Qualified Military Service had he or she
remained employed by the Employer. If such rate of pay was not reasonably
certain, such compensation shall be based on the Reemployed Veteran's average
Compensation from the Employer during (1) the twelve (12) month period
immediately before the Qualified Military Service, or (2) if shorter, the period
of employment immediately before the Qualified Military Service.
(b) Application of Annual Limitations to "Make-up" Contributions. To
the extent permitted by USERRA and Section 414(u) of the Code, any "make-up"
contributions made pursuant to (a) above, shall not be treated as subject to the
annual limitations on contributions set forth in ARTICLE IV for the Plan Year in
which such contributions are made, but such "make-up" contributions shall be
treated as subject to such annual limitations for the Plan Year to which such
contributions relate, in accordance with the regulations or other rules provided
by the Internal Revenue Service.
24.4 Forfeitures and Earnings. A Reemployed Veteran shall not share in
the allocation of Forfeitures for any Plan Year in which the Reemployed Veteran
was performing Qualified Military Service nor shall such Reemployed Veteran be
entitled to any earnings in his or her make-up contributions until such
contributions are made. Such earnings shall be made on a prospective basis from
the date of the make-up contributions.
24.5 Suspension of Plan Loans. In the discretion of the Administrative
Committee, loan repayments may be suspended under the Plan as permitted under
ss.414(u)(4) of the Code and the regulations thereunder.
ARTICLE XXV
MISCELLANEOUS
25.1 Participants' Rights.
Except as may be otherwise specifically provided by law, neither the
establishment of the Plan nor any modification thereof, nor the creation of any
Plan Account, nor the payment of any benefit, shall be construed to give to any
Participant or to any other person a legal or equitable right against the Plan
Sponsor, the Employer, any director, officer or employee thereof, the
Administrative Committee or the Trustee. Under no circumstances shall the terms
of employment of any Employee be deemed to have been modified or in any way
affected by the establishment of the Plan, and nothing contained in this Plan
document, the Trust Agreement or any related document shall require the Employer
to retain any Employee in its service.
25.2 Benefits Supported Only by Trust Fund.
Any person having any claim for any benefit under the Plan shall look
solely to the assets of the Trust Fund for satisfaction. In no event will the
Administrative Committee, the Plan Sponsor, the Employer or the Trustee, or any
of their employees, officers, members of their Board or agents, be liable in
their individual capacities to any person whomsoever for the payment of benefits
under the provisions of the Plan except to the extent that liability is imposed
by Federal law.
25.3 Discrimination.
The Plan Sponsor, through the Administrative Committee, shall
administer the Plan in a uniform and consistent manner with respect to all
Participants and Beneficiaries and shall not permit discrimination in favor of
officers, stockholders or highly compensated Employees.
25.4 Claims.
Any payment to a Participant or Beneficiary or to their legal
representative, or heirs-at-law, made in accordance with the provisions of this
Plan shall to the extent thereof be in full satisfaction of all claims hereunder
against the Plan Sponsor, the Trustee, the Administrative Committee and the
Employer, any of whom may require such person, his or her legal representative
or heirs-at-law, as a condition precedent to such payment, to execute a receipt
and release therefor in such form as shall be determined by the Plan Sponsor,
the Trustee, the Administrative Committee or the Employer as the case may be.
25.5 Agent for Service of Process.
The agent for service of process for the Plan shall be the person
currently listed in the records of the Secretary of State of Delaware as the
agent for service of process for the Plan Sponsor.
25.6 Reporting and Disclosure.
The Plan Sponsor shall satisfy any requirement now or hereinafter
imposed through Federal or State legislation to report and disclose to any
Federal or State department or agency, or to any Participant or Beneficiary, any
information respecting the establishment or maintenance of the Plan or the Trust
Fund.
25.7 Construction of Agreement.
The Plan shall be construed in accordance with the laws of the State of
Delaware, and all provisions thereof shall be administered in accordance with
the laws of that State.
25.8 Savings Clause.
In the event that any one or more of the terms, conditions, or
provisions, or any part thereof, contained in this Plan, or the application
thereof to any person or circumstance, shall for any reason, in any respect, or
to any extent be held to be invalid, illegal, or unenforceable by any court or
governmental agency of competent jurisdiction, such invalidity, illegality, or
unenforceability shall not affect the remainder of such term, condition, or
provision, nor any other provision of this Plan, nor the application of such
term, condition, or provision to persons or circumstances other than those as to
which it is held invalid, illegal, or unenforceable, and this Plan shall be
construed as if such invalid, illegal, or unenforceable term, condition, or
provision had never been contained herein, and each term, condition, or
provision hereof shall be valid and enforced to the fullest extent permitted by
law.
25.9 Number and Gender.
Whenever appropriate, words used herein in the singular shall be
construed as though used in the plural, words used herein in the plural shall be
construed as though used in the singular, words used herein in the masculine
gender shall be construed as though used in the feminine gender, and words used
herein in the feminine gender shall be construed as though used in the masculine
gender.
25.10 Headings.
Headings of articles, sections and paragraphs of the Plan have been
inserted for convenience of reference and constitute no part of the Plan.
25.11 Legal Action.
(a) Necessary Parties. Except as may be otherwise specifically provided
by law with respect to any action or proceeding involving the Plan or the Trust,
or any property constituting part or all thereof, or the administration thereof,
the Plan Sponsor, the Employer and the Trustee shall be the only necessary
parties thereto and no Employee or former Employee of the Employer, any
Beneficiary or any other person having or claiming to have an interest in the
Trust or under the Plan shall be entitled to any notice of such action.
(b) Final Judgment Binding. Except as may be otherwise specifically
provided by law, any final judgment which is not appealed or appealable that may
be entered in any such action or proceeding shall be binding and conclusive on
the Plan Sponsor, the Employer and the Trustee and all persons having or
claiming to have any interest in the Trust or under the Plan.
25.12 Entire Plan.
This Plan contains the entire understanding and undertaking of the Plan
Sponsor and its Affiliates with respect to the subject matter hereof, and
supersedes any and all prior and contemporaneous undertakings, agreements,
understandings, inducements or conditions, whether express or implied, oral or
written, except as herein contained. This Plan may not be modified or amended
other than by a written document adopted or executed pursuant to the terms
hereof.
25.13 Plan Binding on All Parties.
This Plan shall be binding upon the parties hereto, their successors
and assigns, and upon all Plan Participants and their Beneficiaries, heirs,
executors, administrators and assigns.
25.14 Qualification.
It is the intention of the Employer that the Plan and Trust shall
comply with the provisions of Sections 401 and 501 of the Code and the
Regulations issued pursuant thereto, as well as any other requirements of ERISA
applicable to the Plan, and the terms of the Plan shall be interpreted and
administered so as to accomplish that result. In addition, the President or
Chief Financial Officer of the Plan Sponsor is hereby authorized, without action
of the Board, to execute any amendments to the Plan which may be necessary to
obtain approval by the Internal Revenue Service of the Plan as a qualified plan
or to meet any other requirements of law applicable to the Plan.
25.15 Transfer Contributions.
The Plan Administrator may direct the Trustee to receive and add to the
Trust Fund cash or other property acceptable to the Trustee distributed on
behalf of a Participant directly from another employee benefit plan and trust
qualified under Code Section 401(a) and exempt under Code Section 501(a),
provided the Plan Administrator determines the transfer will result in the
deferral of federal and state income taxation on the amount transferred to the
Trust Fund. The Trustee shall comply with the direction of the Plan
Administrator.
IN WITNESS WHEREOF, this Plan is adopted conditioned upon the receipt
of a determination by the Internal Revenue Service that the adoption hereof will
not adversely affect the continued qualification of the Plan under Sections
401(a) and 501(a) of the Internal Revenue Code of 1986, as amended.
TRITON MANAGEMENT COMPANY, INC.
By: /s/ Laura M. Shaw-Porter
------------------------------
Exhibit 5.1
Dow, Lohnes & Albertson, pllc
ATTORNEYS AT LAW
WASHINGTON, D.C.
1200 NEW HAMPSHIRE AVENUE, N.W. SUITE 800 WASHINGTON, D.C. 20036-6802
TELEPHONE 202 776 2000 FACSIMILE 202 776 2222
May 12, 2004
Triton PCS Holdings, Inc.
1100 Cassatt Road
Berwyn, Pennsylvania 19312
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel for Triton PCS Holdings, Inc., a
Delaware corporation ("Triton"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") pertaining to
2,411,211 shares (the "Shares") of Class A Common Stock, $0.01 par value per
share, being registered for issuance by Triton pursuant to the Triton Management
Company, Inc. Savings and Incentive Plan (the "Plan").
In preparing this opinion we have reviewed the following: (a) the
Registration Statement; (b) Triton's Second Restated Certificate of
Incorporation and Second Amended and Restated Bylaws; (c) the Plan; and (d) a
certificate of the Corporate Secretary of Triton relating to certain corporate
matters including, without limitation, the resolutions approving the Plan.
With respect to the foregoing documents, we have assumed: (i) the
authenticity of all documents submitted to us as originals, the conformity with
authentic original documents of all documents submitted to us as copies or
forms, the genuineness of all signatures and the legal capacity of natural
persons, and (ii) that the foregoing documents, in the forms thereof submitted
for our review, have not been altered, amended or repealed in any respect
material to our opinion as stated herein. We have not reviewed any documents
other than the documents listed above for purposes of rendering our opinion as
expressed herein, and we assume that there exists no provision of any such other
document that bears upon or is inconsistent with our opinion as expressed
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, the statements, and
information set forth therein and the additional matters recited or assumed
herein, all of which we assume to be true, complete and accurate in all material
respects.
We are members of the Bar of the District of Columbia and do not
purport to be experts on, or generally familiar with, or certified to express
legal conclusions based upon, the laws of any other jurisdiction. As to matters
of law set forth below, our opinion is limited to matters of law arising under
the General Corporation Law of the State of Delaware (the "Applicable Law");
provided, however, that the term Applicable Law includes only those laws and
regulations that a lawyer exercising customary professional diligence would
reasonably recognize as being directly applicable to the issuance and sale of
the Shares pursuant to the Plan and does not include laws of the type described
in Section 19 of the Legal Opinion Accord of the American Bar Association
Section of Business Law (1991). We express no opinion as to conflicts of law
rules or the laws of any states or jurisdictions, including state or federal
laws regulating securities, or the rules and regulations of stock exchanges or
any other regulatory body, other than as specified above.
Based upon and subject to the foregoing and any other qualifications
stated herein, we are of the opinion that the Shares, when and to the extent
issued and paid for pursuant to the provisions of the Plan, will be validly
issued, fully paid and non-assessable, subject to limitations imposed by
bankruptcy, insolvency, reorganization, moratorium or similar laws and related
court decisions of general applicability relating to or affecting creditors'
rights generally.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement and to all references to our firm in the Registration
Statement, provided, that in giving such consent we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
DOW, LOHNES & ALBERTSON, PLLC
By:/s/Michael A. Hepburn
------------------------
Michael A. Hepburn
Member
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 6, 2004, except for Note 2,
as to which the date is February 17, 2004 relating to the financial statements
and financial statement schedules of Triton PCS Holdings, Inc. (the "Company"),
which appears in the Company's Annual Report on Form 10-K for the year ended
December 31, 2003.
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
May 10, 2004